Moore v. State

RAKER, Judge. Petitioner, Frederick James Moore, was convicted by a jury in the Circuit Court for Howard County of first degree murder of Ashley Nicole Mason. Prior to trial, the State conducted DNA analysis on evidence found at the scene of the crime, and petitioner, who was represented by private counsel but for purposes of the motion was conceded to be indigent, requested state-funded expert assistance in the field of DNA analysis to prepare his defense. The trial court denied petitioner’s motion on the grounds that the Office of the Public Defender was not required to pay for an expert when a defendant is represented by private counsel, and that the trial court had no funds to pay for an expert.

The Court of Special Appeals affirmed. Moore v. State, 154 Md.App. 578 , 841 A.2d 31 (2004). We granted Moore’s petition for a writ of certiorari, to consider the following questions: I. Is a criminal defendant who is unable to afford the assistance of a DNA expert, but who has retained private counsel using his limited personal funds, entitled to public funding for expert assistance under Article 27A of the Maryland Code where the most extensive testimony offered against the defendant at trial was that of the State’s DNA expert?

II

Is a criminal defendant who is unable to afford the assistance of a DNA expert, but who has retained private counsel using his limited personal funds, entitled to public funding for expert assistance under the United States and ³⁴⁸ Maryland Constitutions where the most extensive testimony offered against the defendant at trial was that of the State’s DNA expert?

III

Did the ruling below improperly limit this Court’s decision in Sessoms v. State, 357 Md. 274, 744 A.2d 9 (2000), by denying [petitioner] the opportunity to introduce evidence relating to the past violent acts of a separately tried co-defendant, where [petitioner’s] trial centered on the relative roles of [petitioner] and that co-defendant and [petitioner]^ theory of the case was that the co-defendant committed the murder alone? Moore v. State, 381 Md. 674 , 851 A.2d 593 (2004). We granted the State’s conditional cross-petition, containing the following questions: I. Assuming arguendo that a defendant who has paid for a private attorney using his own funds could, under some circumstances, be considered “indigent” for constitutional or statutory purposes, did Moore fail to establish: (1) his indigence in this case, or (2) that a substantial question existed requiring the testimony of a defense DNA expert or that his defense could not be developed without such testimony?

II

Even assuming arguendo that the trial court erred in declining to order, either the Office of the Public Defender or the Circuit Court for Howard County to provide funds to obtain the testimony of Moore’s DNA expert, was such error harmless beyond a reasonable doubt where the DNA evidence was essentially cumulative to evidence from other sources and where there was overwhelming non-DNA evidence establishing Moore’s guilt?

III

Is Moore’s complaint regarding the exclusion of evidence unpreserved for appellate review where there was no proffer regarding the contents of the evidence and where one of the witnesses Moore wished to cross-examine about alleged prior assaults by his co-defendant answered “no” when asked if the co-defendant had assaulted her? ³⁴⁹ I. Facts On the morning of November 3, 2000, a delivery driver discovered a pool of blood in the parking lot of a Howard County restaurant. Following a bloody trail into the woods, he discovered the lifeless body of fourteen-year-old Ashley Nicole Mason. The medical examiner later determined the cause of Mason’s death to have been multiple stab wounds and strangulation. Petitioner and Scott Jory Brill were indicted by the Grand Jury for Howard County for the murder. 1 Pursuant to Md. Code (1974, 1998 RepLVol., 2000 Cum.Supp.), § 10-915(c) of the Courts and Judicial Proceedings Article, 2 the State served Moore with a timely Notice of Intention to Introduce DNA Evidence.

The State provided Moore with documents produced by Cellmark Diagnostics, Inc. (“Cellmark”), detailing results obtained by Cellmark in its laboratory analysis of evidence recovered from the crime scene. Moore filed a motion captioned “Defendant’s Motion To Have the Circuit Court for Howard County or the Office of the Public Defender Provide Financial Aid to the Defendant ³⁵⁰ for the Purpose of Providing a DNA Expert to Testify for the Defendant” (Funding Motion). In addition to asserting Moore’s inability to pay for the services of a DNA expert 3 , the Funding Motion contained the following statements: "1. That the defendant is charged with a very serious offense of murder in the first degree. 2.

That at no time did the defendant, Frederick Moore, give a statement implicating himself in the offense. 5. That ... defendant’s mother, Anita Moore, was able to scrape together $1000.00, said funds which were paid to J. Thomas McClintock, Ph.D., a microbiologist and molecular biologist as well as an expert in the field of DNA testing. 6. That counsel for defendant sent to Dr. McClintock all of the materials sent to counsel by the Office of the State’s Attorney for Dr. McClintock to review. 7. That after his review of the materials, Dr. McClintock provided defendant’s counsel with a preliminary opinion regarding the DNA testing used in the case against Frederick Moore. 10.

That the defendant believes he would be seriously prejudiced if the Court were to deny his request. 11. That the defendant believes that, BUT FOR THE FACT THAT HE IS POOR AND COMES FROM A POOR FAMILY, he would be able to hire the DNA expert which the defendant and his counsel believe would be extremely important to help explain to the jury that there are two sides to every DNA test result. 12. That the defendant believes that it is prejudicial to him if he is denied the right to have an expert witness testify on ³⁵¹ his behalf while the State is allowed to have an expert witness even though counsel for the State is not required to pay for the services of the DNA expert. 13. That counsel for defendant tiled with the Honorable Court a Motion to Suppress DNA evidence and as part of the memorandum in support of his motion, counsel for defendant listed a number of areas in which mistakes can be made by the State’s expert.

That unless counsel for the defendant is allowed to have an expert to support the defendant’s contention, the defendant will be unjustly prejudiced.” In the Suppression Motion to which Moore refers in paragraph 13 of the Funding Motion, Moore stated, in pertinent part: “9. According to the FBI standards, which have not been established as proof beyond a reasonable doubt to show guilt, nine of thirteen loci are necessary to establish proof, although again NOT BEYOND A REASONABLE DOUBT, to show that the DNA recovered at a scene of a crime is associated to a particular GROUP of individuals rather than a specific individual. In fact, when providing results, so called experts of DNA testing will state, among other things, that a person CAN NOT BE EXCLUDED as the person providing the DNA. At no time can the DNA expert state conclusively that DNA evidence can be linked conclusively to any particular person or that a particular person was present at the scene of the crime. 10.

That according to the results of the DNA testing, either Scott Brill or Frederick Moore could be included as the provider of the DNA found at the scene of the crime but the results do not state conclusively that Frederick Moore was present at the scene of the crime or that the DNA was conclusively the DNA of Frederick Moore.” The Circuit Court denied the Suppression Motion. At a hearing on the Funding Motion, Moore’s counsel again represented to the Circuit Court that Moore could not afford a DNA expert. With respect to Dr. McClintock, counsel stated: ³⁵² “Dr. McClintock has, in fact, worked with me on this case to a degree. We were able to come up with some funds, initially, to get the doctor to help me with some preparation.

His fee is $225.00 per hour, with a minimum of four hours and a maximum of ten hours. I don’t anticipate there being ten hours of work here, so I would imagine somewhere between the four and the ten at a cost of $225.00 per hour.” Regarding the usefulness or necessity of a DNA expert’s services in Moore’s case, Moore represented as follows: “[W]e got into all of the DNA testimony and evidence, rather, and it became quite obvious that Mr. Moore would be prejudiced if he were not allowed to have an expert as the State was allowed to have an expert. $ ^ $ I do feel it’s a prejudice to anyone who comes before the Court on a serious matter where experts are necessary.... It’s just impossible for anyone to properly defend a case unless they have thousands and thousands of dollars just to pay experts.” The District Public Defender for Carroll and Howard Counties appeared at the hearing by the consent of both parties. She informed the court that it was the Public Defender’s policy not to provide funds for experts in “private counsel cases,” that she had spoken to her superiors, the Public Defender and Deputy Public Defender, about Moore’s case, and that these officials had been unwilling to make an exception' to the policy.

The State indicated, both in its written response to the Funding Motion and orally at the hearing, that it took no position as to Moore’s request. Following a brief recess, the court made the following oral ruling: ³⁵³ sel and, specifically, there are not funds available — Court funds available to provide for the expert in this case. I am mindful of the Appellate Courts of the Fourth Circuit opinion in the Miller case [Miller v. Smith, 115 F.3d 1136 (4th Cir.1997), cert. denied sub nom Miller v. Corcoran, 522 U.S. 884 , 118 S.Ct. 213 , 139 L.Ed.2d 148 (1997) ] that, as 1 understand it, suggests that there is a vehicle afforded in the State of Maryland to provide counsel and the costs incurred and appeals and, as [the District Public Defender] said, the issue in the Miller case was the cost of a transcript but, I think, by analogy, it would apply to a case where a Defendant who has private counsel, seeks funds to utilize for an expert in this case. I’ll not, since, as I understand it, [defense counsel] is privately retained — You haven’t been referred as — this case by the Public Defender and this is not a Panel case if I can use that term and that may not be the correct term — you’re privately engaged in this case....

And I would not direct the Office of the Public Defender to provide fees in this case since they are not counsel of record in the case. So, I’ll specifically deny your request.” ³⁵² “I just confirmed with Judge Leasure, the administrative Judge, that — with reference to the availability of Court funds and she confirms or advises me that there are no Court funds dedicated or available to provide in general for experts in cases where an individual will have private coun- ³⁵³ Moore did not testify at the trial. His defense, conveyed to the jury by way of argument of counsel, was that although Moore was present at the scene of the crime, Scott Brill had acted alone in killing Mason, while Moore stood by, fearing for his own life. In his opening statement to the jury, defense counsel stated as follows: “Was Frederick Moore at the scene when Ashley Mason was killed?

Yes. He was. And Frederick Moore saw what Scott Brill did.... Frederick Moore was scared to death.

Frederick Moore thought he might be next because there was no logic to what Scott Brill did.” The State presented testimony that evidence had been collected at or near the crime scene. These items included blood recovered from the restaurant parking lot, Mason’s underwear, two “do-rags” (head coverings) recovered from bushes near Mason’s body, a bloody knife discovered by a garbage collector near the restaurant, clippings from Mason’s ³⁵⁴ fingernails, and swabs taken from Mason’s ankles, vagina, and anus. The State called Dr. Robin Cotton, forensic lab director for Cellmark. Dr. Cotton first explained the basis and methodology for conducting forensic DNA analysis using the polymerase chain reaction (PCR) method of amplification and short tandem repeats (STR) as genetic markers. 4 Dr. Cotton next testified to the results of Cellmark’s analysis of the evidence in the instant case.

DNA on each of the “do-rags” was consistent with Frederick Moore’s at each of the nine loci tested. Within Moore’s racial category, only one individual in 79 billion could be expected to exhibit that particular DNA profile. DNA obtained from the inside of the knife was consistent with that of Ashley Mason; DNA obtained from the outside of the knife came from multiple sources. Moore was identified as a possible contributor at six of the nine loci; the outside of the knife was inconclusive as to Brill.

The fingernail clippings from Ashley Mason’s right and left hands both revealed a mixture of DNA, with Ashley Mason identified as the primary source. There were also indications of a male as a possible source, but no further conclusion could be made. Swabs from Mason’s left ankle showed a mixture of DNA, with no primary source. Brill was included as a possible source, while Moore was excluded as a source.

Swabs from Mason’s right anide also revealed a mixture of DNA, with Mason herself as the primary source. The secondary DNA was inconclusive as to Moore and as to Brill, with both men included at four of the nine loci. The vaginal swabs yielded both sperm fractions and non-sperm fractions. The sperm fractions indicated the presence of male DNA, but no further conclusions could be drawn.

Sperm fractions recovered from the anal swabs revealed that Moore could be included as a possible source at five of the nine loci; no conclusion could be reached on the remaining four loci. 5 A ³⁵⁵ comparison with Scott Brill’s DNA was inconclusive. Sperm fractions recovered from Mason’s underwear revealed a mixture of at least two sources. Although no primary source was determined, Frederick Moore was included as a possible contributor at all nine loci. Within Moore’s racial category, approximately one individual in 40,000 could have contributed these sperm fractions.

In addition to the DNA evidence, the State presented testimony from an acquaintance of Moore and Brill, Martise Stewart, from Scott Brill’s sister, Crystal Brill, and from Moore’s cousin and the mother of Brill’s child, Danielle Ritter. According to Stewart, Ashley Mason arrived at Stewart’s home in the company of Moore and Brill. An altercation broke out, first between Mason and Brill, then between Mason and both men. Stewart observed Brill punch Mason in the face, and then Moore remarked “ij]ust go ahead and hit the bitch, man.

Hit her.” Stewart went upstairs after this exchange, but heard “a lot of loud commotion” continue in the basement. Stewart later saw Mason leave with Moore and Brill. At this time, Moore was wearing a do-rag. Some hours later, Moore and Brill returned to Stewart’s house.

Moore’s “butter Timberland” boots were “like smudged with blood,” and blood was smeared on the front of Moore’s pants legs. His do-rag was missing. Stewart did not see any blood on Brill, but Brill had lacerations on both arms, “like he was in some kind of like tussle or something.” Brill “indicated they killed her,” and said that Mason had caused his lacerations by scratching him as he choked her. Moore “said they both had killed her and they put her behind the Pizza Hut on 108, or somewhere.” 6 Moore also said that they had used a buck knife and that “he threw the knife and he couldn’t find it.” Moore told Stewart that “it was almost like ³⁵⁶ daylight outside, but he said he would’ve definitely recovered the weapon, but he couldn’t, like, find where he threw it at.” Crystal Brill identified photographs of the knife found by the garbage collector as those of a knife she had bought for Moore at a flea market, and that she knew Moore to carry it in his pocket.

Crystal Brill also identified the two do-rags found near Ashley’s body as belonging to Moore, explaining that Moore wore two do-rags simultaneously because one had a “little rip.” She recognized the same rip when the do-rags were shown to her in court. Crystal Brill testified that Moore wore butter-colored Timberland boots prior to the murder, but that she never saw him wear these boots after Ashley was killed. In addition, Crystal Brill testified that after the killing, she saw Moore wiping down the inside of the passenger door on Scott Brill’s Ford Escort with a rag. Using a photo, Crystal pointed out the area that Moore had wiped down, which included the window handle.

She had never before seen Moore wipe down the car in that fashion. Danielle Ritter testified that some weeks after the murder, Moore had told her “what had happened.” On direct examination, Ritter at first testified that Moore had told her Ashley “got killed” in a parking lot, but “didn’t really say” who had killed her. After some prodding by the State, Ritter testified that Moore had said “we” killed her. On cross-examination, however, defense counsel asked Ritter “Freddy Moore never told you he stabbed Ashley, did he,” and Ritter answered, “He don’t say who stabbed her.” Petitioner was convicted of first degree murder and was sentenced to incarceration for his natural life.

He noted a timely appeal to the Court of Special Appeals, which affirmed his conviction. Moore v. State, 154 Md.App. 578 , 841 A.2d 31 (2004). Before that court, he argued, inter alia, that the trial court erred in denying his motion requesting funding for a DNA defense expert on the grounds of indigency when he had retained and financed private counsel. He argued that the trial court (and the Public Defender) violated his federal Constitutional rights to due process, equal protection of law, ³⁵⁷ and effective assistance of counsel, as well as Maryland’s statutory framework providing legal aid to indigents.

The State argued that any statutory or Constitutional right to State funding for expert testimony was dependent upon indigency and that because Moore had retained private counsel, he could not be deemed indigent for any purpose. In addition, the State argued that Moore had failed to make the necessary showing in the trial court that he was indigent. The intermediate appellate court held that Moore was not indigent and was not entitled to State funding for the expert. The court stated as follows: “[Petitioner] paid to be represented by private counsel and did not seek representation through the public defender.

Therefore, [petitioner] is not indigent and is foreclosed from requesting public funding for a DNA expert, either through the Public Defender’s Office or the lower court. That is not to say that a defendant who proceeds with private counsel cannot later become indigent, apply for representation with the Public Defender, and avail himself or herself of the benefits of other necessary services such as an expert witness. We hold only that a defendant who pays for and retains private counsel throughout the adjudicatory process cannot be deemed indigent for purposes of obtaining a publically funded expert witness.” Id. at 592 , 841 A.2d at 39 . The Court of Special Appeals also rejected Moore’s constitutional arguments and concluded that the State had complied fully with the requirements of Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985).

The court reasoned that the evaluation of the samples giving rise to the DNA testimony in this case were “impartial, scientific and objective.” Moore, 154 Md.App. at 598 , 841 A.2d at 42 . The court concluded that “the State provided expert analysis and any constitutional duty had ended after that point.” Id.

II

Moore argues before this Court that the federal Constitutional guarantees of effective assistance of counsel, due pro ³⁵⁸ cess of law, and equal protection of law include the right to a defense expert under the circumstances presented herein, without regard to whether an indigent defendant has private counsel. Relying on Ake , he argues that he is entitled to the “basic tools of an adequate defense” and that where, as here, DNA evidence is likely to be a significant factor, he should have been afforded expert assistance. He argues that the Court of Special Appeals was wrong in concluding that Dr. Cotton, the Cellmark expert, satisfied the State’s Constitutional obligations. He asserts the Dr. Cotton did not assist with Moore’s trial preparation of cross-examination and that Moore was at a distinct disadvantage and without an opportunity to prepare a defense in a case in which DNA was central to the prosecution’s case.

Moore also argues that the trial court and intermediate appellate court erred in holding that Moore was not entitled to expert assistance because he had private counsel. He maintains that he made the requisite showing under Ake that the issue of DNA would be a significant factor at trial and that he was prejudiced by the denial of these funds to secure an expert. Finally, Moore argues that he is entitled to expert funding at State expense pursuant to Md.Code (1957, 2003 Repl.Vol., 2004 Cum.Supp.), Art. 27A (governing the duties of the Public Defender). 7 He maintains that public funding of expert costs is available to indigent defendants in Maryland without regard to a defendant’s relationship with counsel or upon accepting legal representation by the Public Defender. The State contends initially that Moore bore the burden of establishing indigency but failed to do so.

Assuming arguendo that Moore was indigent, the State argues that Ake is distinguishable from the instant case and does not compel the remedy sought by Moore. It further contends that any Constitutional right to the assistance of a DNA expert was satisfied by the State’s disclosure to Moore of the Cellmark documents and reports during discovery. ³⁵⁹ Even assuming that Ake could require the appointment of a State-funded DNA expert to an indigent defendant, the State argues that a defendant must establish that a substantial question exists requiring the testimony of a DNA expert or that the defense cannot be developed without expert assistance. It argues that Moore made only general allegations that a defense expert could potentially point out mistakes made by a government expert. With respect to Moore’s argument that he is entitled to funding under Art. 27A, the State contends that the statutory framework does not require the Public Defender to provide expert witness funding to a defendant represented by private counsel.

Rather, the State argues, indigent defendants are obliged to seek legal representation by the Public Defender before they are entitled to ancillary services provided through the budget of the Office of the Public Defender (O.P.D.). Finally, the State contends that if there were any error in denying Moore’s funding request, it was harmless.

III

A. Ake v. Oklahoma In Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), the Supreme Court reversed the conviction and death sentence of an indigent defendant after the trial court denied his request for a state-funded psychiatric examination. The issue in Ake was “whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question.” Id. at 70 , 105 S.Ct. at 1089 . Ake was an indigent defendant, charged with first degree murder and shooting with the intent to kill. Before trial, his counsel represented to the court that Ake intended to present an insanity defense.

He asked the court to arrange for a psychiatrist to examine the defendant with respect to his mental condition at the time of the offense, or to provide him with funds to enable the defense to arrange for such an ³⁶⁰ examination. The court denied this request. Consequently, Ake had no access to a psychiatrist. Based on Ake’s bizarre behavior in the courtroom pre-trial, Ake was examined by State psychiatrists to assess his competency to stand trial.

The court found Ake to be a “mentally ill person in need of care and treatment,” incompetent to stand trial, and ordered him committed to the State mental hospital. Six weeks later he was found to be competent and ordered to stand trial. Although Ake had undergone extensive court-ordered psychiatric examination with regard to his competency to stand trial, he had never been examined by a psychiatrist with respect to his mental condition at the time of the killings. Ake had entered a plea of not guilty by reason of insanity; his sole defense was lack of criminal responsibility, a defense which, because of indigency, he was obliged to present without the aid of a psychiatric expert.

At trial, there was no expert testimony for either side as to Ake’s sanity at the time of the offense. Id. at 72 , 105 S.Ct. at 1091 . Although Ake’s counsel called to the stand and questioned the State psychiatrists who had examined Ake prior to trial, none could testify as to Ake’s mental state at the time of the offense, because none had examined him on that point. Id.

The jury rejected Ake’s insanity defense and found him guilty on all counts. Id. at 73 , 105 S.Ct. at 1091 . The Supreme Court explained as follows: “This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.” Id. at 76 , 105 S.Ct. at 1092 . “In recognition of this right,” the Court stated, it had reached a series of decisions entitling indigents to various ³⁶¹ services at state expense.

See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (effective assistance of counsel); Little v. Streater, 452 U.S. 1 , 101 S.Ct. 2202 , 68 L.Ed.2d 627 (1981) (blood grouping tests in “quasi-criminal” paternity proceedings); Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963) (assistance of counsel on first direct appeal as of right); Gideon v. Wainright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) (assistance of counsel at trial); Burns v. Ohio, 360 U.S. 252 , 79 S.Ct. 1164 , 3 L.Ed.2d 1209 (1959) (waiver of Notice of Appeal filing fee); Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956) (trial transcripts on appeal). The Court further stated: “Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigent defendants to ‘an adequate opportunity to present their claims fairly within the adversary system.’ To implement this principle, we have focused on identifying the ‘basic tools of an adequate defense or appeal,’ and we have required that such tools be provided to those defendants who cannot afford to pay for them.” Ake, 470 U.S. at 77 , 105 S.Ct. at 1093 (citations omitted).

In determining whether due process demands a state-furnished psychiatrist under Ake’s circumstances, the Court found several factors relevant: the private interest that will be affected by the action of the State, the governmental interest of the State that will be affected if the safeguard is to be provided, the probable value of the additional or substitute ³⁶² procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. Id. at 77 , 105 S.Ct. at 1093 . Finding the defendant’s interest in the accuracy of a criminal trial to be “almost uniquely compelling,” the state’s interest to be only economic, and the need for psychiatric assistance critical, the Court determined that due process had required provision of a psychiatrist to Ake. The Court reasoned as follows: “[W]ithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.

With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination.” Id. at 82 , 105 S.Ct. at 1096 . The Court held as follows: “We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83 , 105 S.Ct. at 1096 . B. The Scope of Ake In the wake of Ake , several questions arise. See generally Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L.Rev. 1305 (2004).

These questions include whether Ake extends beyond the capital context, whether the right to expert assistance extends beyond the insanity context and to non-psychiatric experts, the nature of the assistance to which a defendant is entitled, and the threshold showing a defendant must make to trigger the right. ³⁶³ 1. Application of Ake Beyond the Capital Context Based on language in the concurring opinion of Chief Justice Burger in Ake , some courts have limited the application of Ake to capital cases. See, e.g., Isom v. State, 488 So.2d 12, 13 (Ala.Crim.App.1986); Bannister v. State, 726 S.W.2d 821, 828-30 (Mo.App.1987). Chief Justice Burger stated as follows: “The facts of the case and the question presented confine the actual holding of the Court.

In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases. Nothing in the Court’s opinion reaches non-capital cases.” Ake at 87 , 105 S.Ct. at 1098 (Burger, C.J., concurring). The majority of courts that have considered this question have concluded that Ake applies to non-capital cases. See Cowley v. Stricklin, 929 F.2d 640, 640 (11th Cir.1991); Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987); Palmer v. State, 486 N.E.2d 477, 481-82 (Ind.1985); State v. Coker, 412 N.W.2d 589, 592-93 (Iowa 1987); State v. Dunn, 243 Kan. 414 , 758 P.2d 718, 724-25 (1988); Pertgen v. State, 105 Nev. 282 , 774 P.2d 429, 430-31 (1989); State v. Campbell, 127 N.H. 112 , 498 A.2d 330, 332-33 (1985); People v. Stone, 195 Mich.App. 600 , 491 N.W.2d 628, 631-32 (1992); State v. Barnett, 909 S.W.2d 423, 427 (Tenn.1995); Taylor v. State, 939 S.W.2d 148, 152 (Tex.Crim.App.1996).

The Tennessee Supreme Court reasoned as follows: “We agree with the jurisdictions that have applied the Ake principle in the non-capital context because the due process principle of fundamental fairness requires that a State which prosecutes an indigent defendant assure that defendant of a fair opportunity to present his defense. It is axiomatic that fairness cannot exist where an indigent defendant is deprived by poverty of a meaningful opportunity to defend when his liberty is at stake. The due process principle of fundamental fairness applies to all criminal ³⁶⁴ prosecutions, and does not rest upon the severity of the sanction sought or imposed.” Barnett, 909 S.W.2d at 428 . We agree, and conclude that Alee extends beyond the capital context and applies to non-capital cases. 2.

Application of Alee Beyond the Insanity / Psychiatric Context The next question that arises is whether Alee is restricted to cases in which the defendant’s sanity is at issue. The majority of courts have concluded that Alee extends beyond psychiatric experts. See, e.g., Terry v. Rees, 985 F.2d 283, 284 (6th Cir.1993) (pathologist); Dunn v. Roberts, 963 F.2d 308, 313 (10th Cir.1992) (battered-spouse syndrome expert); Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir.1991) (ballistics expert); Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987) (hypnotism expert); Ex parte Moody, 684 So.2d 114, 118-19 (Ala.1996) (applicable to non-psychiatric experts generally); Ex parte Dubose, 662 So.2d 1189, 1194 (Ala.1995) (DNA expert); Ex parte Sanders, 612 So.2d 1199, 1201-02 (Ala.1993) (ballistics expert); Prater v. State, 307 Ark. 180 , 820 S.W.2d 429, 439 (1991) (DNA expert); Doe v. Superior Court, 39 Cal.App.4th 538 , 45 Cal.Rptr.2d 888, 892-93 (1995) (experts on battered spouse and post-traumatic stress syndromes); Cade v. State, 658 So.2d 550, 555 (Fla.Dist.Ct.App.1995) (DNA expert); Bright v. State, 265 Ga. 265 , 455 S.E.2d 37, 50 (1995) (toxicologist); Crawford v. State, 257 Ga. 681 , 362 S.E.2d 201, 206 (1987) (serologist, psychologist, survey expert); Thornton v. State, 255 Ga. 434 , 339 S.E.2d 240, 240-41 (1986) (forensic dentist); People v. Lawson, 163 Ill.2d 187 , 206 Ill.Dec. 119 , 644 N.E.2d 1172, 1192 (1994) (fingerprint and shoe print experts); James v. State, 613 N.E.2d 15, 21 (Ind.1993) (blood spatter expert); State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987) (expert to assist with intoxication defense); State v. Carmouche, 527 So.2d 307, 307 (La.1988) (fingerprint expert, serologist); Polk v. State, 612 So.2d 381, 393 (Miss.1992) (DNA expert); State v. Huchting, 927 S.W.2d 411, 419 (Mo.Ct.App.1996) (DNA expert); People v. Tyson, 209 A.D.2d 354 , ³⁶⁵ 618 N.Y.S.2d 796 -97 (N.Y.App.Div.1994) (voiceprint expert); State v. Bridges, 325 N.C. 529 , 385 S.E.2d 337, 339 (1989) (fingerprint expert); State v. Moore, 321 N.C. 327 , 364 S.E.2d 648, 656-58 (1988) (pathologist, non-psychiatrist physician, fingerprint expert); State v. Mason, 82 Ohio St.3d 144 , 694 N.E.2d 932, 944-45 (1998) (non-psychiatric experts generally); Rogers v. State, 890 P.2d 959, 966 (Okla.Crim.App.1995) (any expert necessary for adequate defense); State v. Rogers, 313 Or. 356 , 836 P.2d 1308, 1315 (1992) (opinion polling expert); State v. Edwards, 868 S.W.2d 682, 697 (Tenn.Crim.App.1993) (DNA expert); Taylor v. State, 939 S.W.2d 148, 153 (Tex.Crim.App.1996) (DNA expert); Rey v. State, 897 S.W.2d 333, 338-39 (Tex.Crim.App.1995) (forensic pathologist). The United States Supreme Court has not addressed this issue; in Caldwell v. Mississippi, 472 U.S. 320 , 105 S.Ct. 2633 , 86 L.Ed.2d 231 (1985), the Court did not rule explicitly on whether the state had an obligation to appoint other than a psychiatric expert for an indigent defendant.

The Court denied the defendant’s request for the appointment of a criminal investigator on the grounds that the defendant made no showing as to the reasonableness of his request and had only generally asserted a need. Id. at 323 n. 1, 105 S.Ct. at 2637 n. 1. The United States Court of Appeals for the Eighth Circuit addressed the question and concluded that “there is no principled way to distinguish between psychiatric and non-psychiatric experts.” Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir.1987), cert. denied, 487 U.S. 1210 , 108 S.Ct. 2857 , 101 L.Ed.2d 894 (1988). The court focused the issue as follows: “The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.

Letrice Little demonstrated that an expert in hypnosis would have substantially aided his defense, and that the ³⁶⁶ denial of such expert would and did have a material impact on his trial.” Id. at 1243-44. In balancing the interests of the parties, the Supreme Court reasoned that the defendant’s interest is in “the accuracy of [the] criminal proceeding,” and that “the host of safeguards fashioned ... over the years to diminish the risk of erroneous conviction stands as a testament to that concern.” Ake at 78 , 105 S.Ct. at 1093. Wrongful convictions are not limited to cases involving psychiatric issues. Where the defendant’s mental state excuses an otherwise criminal act, a psychiatrist often will be the relevant expert.

But where the defendant’s guilt turns on the interpretation of physical evidence within the competence of some other profession or learned field, an expert in that area may be no less indispensable. Accordingly, we join the vast majority of those jurisdictions having considered this issue and hold that the right announced in Ake is not limited to providing psychiatric experts. The principles enunciated in Ake apply in cases of non-psychiatric expert assistance when an indigent defendant makes the requisite showing that the requested assistance is needed for him or her to have “a fair opportunity to present his defense.” Ake, 470 U.S. at 76 , 105 S.Ct. at 1092 . C. Establishment of the Right to Expert Assistance 1.

The Necessary Showing We turn now to another issue left substantially unresolved in Ake — the level and specificity of the threshold showing a defendant must make to establish entitlement to expert assistance. Most courts that have considered the question of whether an indigent is entitled to public funded appointment of a non-psychiatric expert have applied the rationale expressed by the Supreme Court in Ake . Reading Ake and Caldwell together require that the State provide indigent defendants with the “basic tools of an adequate defense,” Ake, 470 U.S. at 77 , 105 S.Ct. at 1093 , and, when the required showing is made, require the appointment of non-psychiatric ³⁶⁷ experts. Due process and equal protection require the State to provide non-psychiatric experts to indigent defendants when the defendant makes a particularized showing of the need for assistance of such experts.

See, e.g., Little v. Armontrout, 835 F.2d 1240, 1245 (8th Cir.1987); Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.1987); Kennedy v. State, 578 N.E.2d 633, 640 (Ind.1991); State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987); Harrison v. State, 635 So.2d 894, 902 (Miss.1994); Polk v. State, 612 So.2d 381, 393 (Miss.1992); State v. Mills, 332 N.C. 392 , 420 S.E.2d 114, 117 (1992); State v. Edwards, 868 S.W.2d 682, 697 (Tenn.Crim.App.1993); Rey v. State, 897 S.W.2d 333, 343 (Tex.Crim.App.1995). It is clear that Ake does not mandate handing over the State’s checkbook to indigent defendants and their attorneys. The Supreme Court reiterated that it has never “held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, see Ross v. Moffitt, 417 U.S. 600 , 94 S.Ct. 2437 , 41 L.Ed.2d 341 (1974)” but had rather “focused on identifying the ‘basic tools of an adequate defense or appeal.’ ” Ake at 77 , 105 S.Ct. at 1093 (quoting Britt v. NoHh Carolina, 404 U.S. 226, 227 , 92 S.Ct. 431, 433 , 30 L.Ed.2d 400 (1971)). Significantly, the Court’s holding in Ake was predicated on the defendant having “demonstrated] to the trial judge that his sanity at the time of the offense is to be a significant factor at trial.” Ake at 83 , 105 S.Ct. at 1096.

Thus, in Caldwell , the Court terminated its inquiry when it found that “petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial.” Caldwell, 472 U.S. at 323 n. 1, 105 S.Ct. at 2637 n. 1. The test that seems to have been adopted by the majority of courts considering the issue is the one enunciated by the United States Court of Appeals for the Eleventh Circuit in Moore v. Kemp, 809 F.2d 702 (11th Cir.1987). The court concluded that Ake and Caldwell require that a defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the ³⁶⁸ defense and that denial of expert assistance would result in a fundamentally unfair trial. Id. at 712.

The court explained as follows: “[A] defendant must show the trial court that there exists a reasonable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a fundamentally unfair trial. Thus, if a defendant wants an expert to assist his attorney in confronting the prosecution’s proof — by preparing counsel to cross-examine the prosecution’s experts or by providing rebuttal testimony — he must inform the court of the nature of the prosecution’s case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime. By the same token, if the defendant desires the appointment of an expert so that he can present an affirmative defense, such as insanity, he must demonstrate a substantial basis for the defense, as the defendant did in Ake .

In each instance, the defendant’s showing must also include a specific description of the expert or experts desired; without this basic information, the court would be unable to grant the defendant’s motion, because the court would not know what type of expert was needed. In addition, the defendant should inform the court why the particular expert is necessary. We recognize that defense counsel may be unfamiliar with the specific scientific theories implicated in a case and therefore cannot be expected to provide the court with a detailed analysis of the assistance an appointed expert might provide. We do believe, however, that defense counsel is obligated to inform himself about the specific scientific area in question and to provide the court with as much information as possible concerning the usefulness of the requested expert to the defense’s case.” Id. at 712.

We agree with this formulation, and join those courts that have adopted it. See, e.g., Page v. Lee, 337 F.3d 411, 416 (4th Cir.2003); Williams v. Collins, 989 F.2d 841, 845-46 (5th Cir.1993); Kordenbrock v. Scroggy, 919 F.2d 1091, 1104 (6th ³⁶⁹ Cir.1990); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987); Tyson v. Keane, 991 F.Supp. 314, 324-25 (S.D.N.Y.1998); U.S. v. Ndanyi, 45 M.J. 315, 319 (C.A.A.F.1996); State v. Apelt, 176 Ariz. 349 , 861 P.2d 634, 651 (1993); Crawford v. State, 257 Ga. 681 , 362 S.E.2d 201, 206 (1987); Cade v. State, 658 So.2d 550, 553 (Fla.Dist.Ct.App.1995); State v. Touchet, 642 So.2d 1213, 1216 (La.1994); Taylor v. State, 939 S.W.2d 148 , 152 n. 3 (Tex.Crim.App.1996). The manner in which the defendant may make this required showing will depend necessarily upon the purpose for which the defendant seeks the expert assistance. For example, if the defendant seeks an expert in order to confront the prosecution’s proof, the defendant must inform the court how the expert would be useful in light of the prosecution’s case.

Moore v. Kemp, 809 F.2d at 712 . This is not to say that a defendant must predict to a certainty every detail of the prosecution’s theory, or display a highly sophisticated understanding of the contribution the requested expert would make to the defense. Defense counsel does have, however, an obligation to become informed of the specific scientific area in question in order to explain the necessity of any requested expert to the court. Id. at 712 .

The analysis of whether a defendant has fulfilled this obligation will be a dynamic one, dependent on the amount of discovery received, the extent to which a likely prosecution theory is obvious, the complexity of the scientific or technical issues, and other case-specific factors. For example, the Moore v. Kemp court opined: “In a jurisdiction ... which accords the defendant substantial discovery rights, the defendant should have no difficulty in demonstrating the theory of the government’s case and outlining the evidence the prosecutor will probably present at trial. The difficulty of the defendant’s task will vary depending on the scope of the jurisdiction’s discovery rules. In a jurisdiction still employing ‘trial, by ambush,’ the defendant might have to ask the court to make the prosecutor disclose the theory of his case and the results of any tests ³⁷⁰ that may have been performed by government experts or at the government’s request.” Moore v. Kemp, 809 F.2d at 712 n. 10 (citations omitted). 2.

Availability of Ex Parte Proceedings The Supreme Court, in Ake , referred to an ex parte hearing, stating that “[w]hen the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.” Ake, 470 U.S. at 82-83 , 105 S.Ct. at 1096 . Defendants may be required to reveal to the court the defense theory in order to demonstrate entitlement to expert assistance. A defendant may request that these disclosures be made ex parte. Paul C. Gianelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Postr-DNA World, 89 Cornell L.Rev. 1305, 1338, 1402-1404 (2004); see generally Kimberly J. Winbush, Right of Indigent Defendant in State Criminal Prosecution to Ex Parte In Camera Hearing on Request for State-Funded Expert Witness, 83 A.L.R.5th 541 (2000).

Courts have split as to the necessity of ex parte hearings. Several states have statutes requiring an ex parte hearing when an indigent defendant requests appointment of an expert. See, e.g., Minn.Stat. § 611.21 (2003); S.C. Stat. § 16-3-26(c) (2003); Tenn.Code Ann. § 40-14-207(b) (2003); Nev. Rev.Stat. Ann. § 7.135 (Michie 1998); N.Y. County Law § 722 -c (Consol.1977).

The courts in Alabama, Arkansas, Florida, Georgia, Hawaii, Indiana, Michigan, Oklahoma, Tennessee, Texas, and Washington have held that an ex parte hearing is required. See Ex parte Moody, 684 So.2d 114, 120 (Ala.1996); Wall v. State, 289 Ark. 570 , 715 S.W.2d 208, 209 (1986); Brooks v. State, 259 Ga. 562 , 385 S.E.2d 81, 83-84 (1989), cert. denied, 494 U.S. 1018 , 110 S.Ct. 1323 , 108 L.Ed.2d 498 (1990); Arnold v. Higa, 61 Haw. 203 , 600 P.2d 1383, 1385 (1979); Stanger v. State, 545 N.E.2d 1105, 1115 (Ind.App.1989); People v. Layer, 169 Mich. App. 105 , 425 N.W.2d 714, 722 (1988); McGregor v. State, 733 ³⁷¹ P.2d 416, 416-17 (Okla.Crim.App.1987); Barnett, 909 S.W.2d at 428 ; Williams v. State, 958 S.W.2d 186, 192-94 (Tex.Crim.App.1997); State v. Newcomer, 48 WashApp. 83, 737 P.2d 1285, 1291 (1987). The courts in Arizona, South Dakota, and Virginia have held that whether to hold an ex parte hearing is within the trial court’s discretion.

See State v. Apelt, 176 Ariz. 349 , 861 P.2d 634, 650 (1993); State v. Floody, 481 N.W.2d 242, 254-56 (S.D.1992); Ramdass v. Commonwealth, 246 Va. 413 , 437 S.E.2d 566, 571 (1993), vacated on other grounds, 512 U.S. 1217 , 114 S.Ct. 2701 , 129 L.Ed.2d 830 (1994). Louisiana requires an indigent defendant to show that he or she would be prejudiced if the hearing was not held ex parte. State v. Touchet, 642 So.2d 1213, 1220 (La.1994). The North Carolina Supreme Court has held that an ex parte hearing is required when the request is for a psychiatrist, State v. Ballard, 333 N.C. 515 , 428 S.E.2d 178, 180 (1993), but not required when the request is for a non-psychiatric expert.

State v. Phipps, 331 N.C. 427 , 418 S.E.2d 178, 190-91 (1992). We believe the better view is that an ex parte hearing, when timely requested, is required. See generally Justin B. Shane, Money Talks: An Indigent Defendant’s Right to an Ex Parte Hearing for Expert Funding, 17 Cap. Def.

J. 347 (2005); Giannelli, supra, at 1403-04. Indigent defendants seeking state funded experts should not be required to disclose to the State the theory of the defense when non-indigent defendants are not required to do so. See, e.g., Barnett, 909 S.W.2d at 428 (holding that “[ijndigent defendants who must seek state-funding to hire a[n] ... expert should not be required to reveal their theory of defense when their more affluent counterparts, with funds to hire experts, are not required to reveal their theory of defense.”) In Moody , the Alabama Supreme Court discussed this issue as follows: “Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege against self-incrimination, which applies at ³⁷² all stages of a criminal proceeding. The privilege against self-incrimination ‘does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution.’ Maness v. Meyers, 419 U.S. 449, 461 , 95 S.Ct. 584, 592 , 42 L.Ed.2d 574 (1975).

There should be equality between ‘indigents and those who possess the means to protect their rights.’ United States v. Tate, 419 F.2d 181 (6th Cir.1969). An indigent defendant should not have to disclose to the state information that a financially secure defendant would not have to disclose.” Moody, 684 So.2d at 120 . We agree.

IV

Article 27A and State Funding of Experts Before considering whether the State had a constitutional duty to fund Moore’s request, we must address Moore’s contention that it had a statutory duty to do so through the O.P.D. Moore contends that Art. 27A, which governs the powers and responsibilities of the Office of the Public Defender, mandated that the Public Defender fund his request even though he was not a client of the O.P.D. We must resolve whether Article 27A requires the O.P.D. to provide the services petitioner requests without concomitant representation by the Office. The State contends that Art. 27A should be read to provide that the duty of the Public Defender to provide “related necessary services” connected with representation of indigents need be furnished to an indigent defendant only if the O.P.D. is representing that defendant. The General Assembly of Maryland, in setting up the O.P.D., declared that it was establishing that agency with the policy and legislative intent to provide for representation of indigents in criminal and juvenile proceedings, including related necessary services and facilities. Art. 27A § 1. “Indigent” is defined as follows: ³⁷³ “ Indigent’ means any person taken into custody or charged with a serious crime ... who under oath or affirmation subscribes and states in writing that he is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation.” Art. 27A § 2.

Art. 27A § 4(a), sets out the duty of the O.P.D. to provide legal representation as follows: “It shall be the primary duty of the Public Defender to provide legal representation for any indigent defendant eligible for services under this article. Legal representation may be provided by the Public Defender, or, subject to the supervision of the Public Defender, by his deputy, by district public defenders, by assistant public defenders, or by panel attorneys as hereinafter provided for.” Eligibility for the services of the O.P.D. is determined on the basis of the need of the defendant. Art. 27A § 7(a). The reasonable value of any services rendered to a defendant pursuant to Art. 27A constitutes a lien on real and personal property in which the defendant has or acquires an interest in, excluding his or her residence.

Art. 27A § 7(d). The statute is silent as to whether representation by the O.P.D. and ancillary services are severable. The Court of Special Appeals addressed this issue and held that “the dual services provided by the public defender are not severable.” Moore, 154 Md.App. at 592 , 841 A.2d at 39 . The intermediate appellate court explained as follows: “We agree with those states which hold that the dual services provided by the public defender are not severable.

The language of Art. 27A § 2, defining indigent as a person unable ‘to provide for the full payment of a attorney and all other necessary expenses of legal representation,’ is a unified enactment and does not contemplate that a defendant could be indigent for purposes of ‘all other necessary expenses’ and yet able to retain private counsel. We adopt Kentucky’s position that, ‘[ujnder this definition and the general tenor of the entire Act, inability to obtain counsel ³⁷⁴ and inability to obtain necessary services go hand in hand.’ Thus, any funding for the necessary services associated with representation are conditioned upon representation by the Public Defender.” Moore, 154 Md.App. at 592 , 841 A.2d at 39 (citations omitted). We agree with the Court of Special Appeals and hold that the O.P.D. is not required to pay for expert assistance or other ancillary services if the defendant is not represented by the O.P.D. (or a panel attorney assigned by the O.P.D.).

The operative part of the statutory definition of “indigent” contained in Art. 27A is that the defendant is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation. The services provided by the O.P.D. are not severable. In order for the defendant to qualify for the benefits provided under the Act and thereby require the O.P.D. to pay for services, the defendant must be without independent means to obtain counsel. V. Satisfaction of Moore’s Ake Rights in the Instant Case A. Provision of Expert Services Through the O.P.D. The bottom line question in this case is whether the State has satisfied its constitutional obligations by establishing the O.P.D., making expert services available to clients of that Office, and requiring that, in order for an indigent to receive State-funded expert services, the defendant must seek representation by O.P.D. We conclude that the State has not deprived petitioner of any of his constitutional rights by requiring that he apply to the O.P.D. for representation before he is entitled as an indigent to State funded expert witness services.

The Supreme Court contemplated in Ake that States could place restrictions on indigent defendants’ access to state-funded expert services. The Court stated as follows: “This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a ³⁷⁵ competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right.” Ake, 470 U.S. at 88 , 105 S.Ct. at 1096 . Thus, while a State might provide funds enabling indigent defendants with retained counsel to hire experts of their own choosing, Ake does not require this approach.

Moore is correct that, if he is indigent, he has a right under Ake to state-paid supporting services necessary to an adequate defense. 8 As we have indicated, supra, Maryland has established a State-wide public defender system which provides legal representation, investigative services, and expert assistance to persons deemed indigent under Art. 27A § 2. In 1971, the Legislature created the Office of the Public Defender. See 1971 Md. Laws, Ch. 209 at 486-94. The purpose of the statutes creating that agency was set forth as follows: “It is hereby declared to be the policy of the State of Maryland to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, and to authorize the Office of Public Defender to administer and assure enforcement of the provisions of this article in accordance with its terms.” Art. 27A § 1 (emphasis added).

State v. Miller, 337 Md. 71 , 651 A.2d 845 (1994), is instructive on the question of whether the State may condition the receipt of constitutionally mandated services on representation by the O.P.D. The indigent petitioner in that case, Bernard Miller, had been convicted at trial of kidnapping, robbery, murder, and other related offenses. On appeal, as at trial, he ³⁷⁶ was represented by private counsel on a pro bono basis. Miller had refused the representation of the O.P.D., and further refused to permit his attorney to seek appointment as an assigned public defender and thereby submit to the supervision of the O.P.D. Had Miller’s counsel taken this step, the O.P.D. would have borne the costs of obtaining a stenographic transcript of the trial proceedings. Id. at 74-75 , 651 A.2d at 846 .

Miller filed in the Circuit Court a motion requesting that the court furnish a transcript without charge. The Circuit Court denied the motion on the grounds that Md. Rule 1-325(b) required the court to pay for a transcript only where a party was eligible for O.P.D. representation, had applied to the O.P.D., and had been declined representation by that agency. Id. at 75 , 651 A.2d at 846 . On appeal, Miller argued that the requirement that he be represented by, or denied representation by, the O.P.D. before receiving a free transcript violated his rights to equal protection and assistance of counsel.

We affirmed the Circuit Court. After ruling that the court had correctly interpreted Md. Rule 1 — 325(b), we noted that under Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956), the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits a state from foreclosing all opportunity for appellate review by refusing, based solely on a defendant’s indigence, to provide a trial transcript. But we also noted that Justice Black, in his plurality opinion, stated, “We do not hold, however, that Illinois must purchase a stenographer’s transcript in every case where a defendant cannot buy it. The [Illinois] Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants.” Id. at 20, 76 S.Ct. at 591 .

We then noted that “[a]llowing the states to create reasonable alternative systems by which the constitutional rights of indigents would be protected is a concept that has been applied to other rights of indigent defendants as well.” Mil ³⁷⁷ let, 337 Md. at 83 , 651 A.2d at 850 . With respect to equal protection, we concluded as follows: “Miller is entitled to a free transcript, but he cannot receive it on his own terms; he must go through the Office of the Public Defender. The State is free to place reasonable restrictions on the exercise of Miller’s rights, and Rule 1-325(b) is neither arbitrary nor unreasonable in its language or application. There can be no equal protection violation when an individual is denied a right simply because of his own failure to comply with reasonable state procedures and regulations.” Miller, 337 Md. at 85-86 , 651 A.2d at 852 .

Turning to Miller’s Sixth Amendment claim, we noted that the Supreme Court has held that although an indigent criminal defendant enjoys the right to assistance of counsel, this entitlement does not translate into an absolute right to counsel of the defendant’s choosing. Id. at 86-87 , 651 A.2d at 852 ; see Wheat v. United States, 486 U.S. 153, 159 , 108 S.Ct. 1692, 1697 , 100 L.Ed.2d 140 (1988) (“the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers”); accord Fowlkes v. State, 311 Md. 586, 605 , 536 A.2d 1149, 1159 (1988) (“for indigent defendants ... the right to counsel is but a right to effective legal representation; it is not a right to representation by any particular attorney”). We concluded as follows: “Failure to provide a free transcript to the indigent appellant cannot interfere with the right to choice of counsel where no such absolute right exists. In the absence of such a right to choice of counsel, there is no constitutional violation when the State requires that an indigent defendant avail himself of the services of the Office of the Public Defender in order to obtain a free transcript.

The State has set up a system by which all indigent appellants are provided effective assistance of counsel, whether represented by the Public Defender’s Office or by a ³⁷⁸ private attorney under the supervision of that office. Miller cannot pick and choose which of the State-provided services he wishes to receive; he must accept the available resources as provided under Art. 27A and the Maryland Rules. Miller has not been denied his right to assistance of counsel, because he may apply to the Office of the Public Defender and receive effective representation. The Public Defender system is Maryland’s ‘alternative solution’ as described in Griffin and Bounds [v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977) ], supra.

Public Defender representation, like a transcript, is part of the ‘package’ provided by the State, and requiring Miller to comply with reasonable State procedures in no way infringes upon his right to assistance of counsel.” Miller, 337 Md. at 87-88 , 651 A.2d at 853 . The United States Court of Appeals for the Fourth Circuit, sitting en banc, agreed with our holding on federal habeas corpus review. Miller v. Smith, 115 F.3d 1136 (4th Cir.1997) (en banc), cert. denied sub nom. Miller v. Corcoran, 522 U.S. 884 , 118 S.Ct. 213 , 139 L.Ed.2d 148 (1997).

Our holding in Miller governs the outcome of the case sub judice. Although the Maryland Rules contain no analogue to Md. Rule l-325(b) with respect to the appointment of experts, the practical effect of nonseverable O.P.D. services under Art. 27A is the same. Indigent defendants may utilize the O.P.D.’s complete “package” of services, or forgo them entirely. While such defendants may face difficult choices, the Constitution does not bar the State of Maryland from requiring them to choose between counsel of their choice and ancillary services provided by the O.P.D. Assuming arguendo that the assistance of a DNA expert was necessary to an adequate defense in the instant case, the State did not deny Moore that assistance.

Rather, expert assistance was available to him so long as he complied with the procedural requirement that he apply for legal representation through the O.P.D. Imposing this requirement on Moore did not violate his constitutional rights. See Wheat, 486 U.S. at ³⁷⁹ 159, 108 S.Ct. at 1697 ; Bounds v. Smith, 480 U.S. 817 , 830, 97 S.Ct. 1491, 1499 , 52 L.Ed.2d 72 (1977); Fowlkes, 311 Md. at 605 , 536 A.2d at 1159 . B. Insufficiency of Discovery and Cross-Examination Alone Although we affirm the judgment of the Court of Special Appeals, we disagree with one significant aspect of its opinion. The intermediate appellate court agreed with the State’s contention that Moore’s constitutional rights were satisfied by the State’s disclosure of the Cellmark documents and reports during discovery.

The court stated as follows: “[Tjhere is nothing to indicate that Cellmark’s evaluation of the samples was not impartial, scientific, and objective. Additionally, appellant’s counsel was provided with all the DNA documents and reports generated by Cellmark prior to trial in order to prepare a defense. Thus, the State provided expert analysis and any constitutional duty had ended after that point.” Moore v. State, 154 Md.App. 578, 598 , 841 A.2d 31, 42 (2004). The intermediate appellate court based its holding in part on Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982), in which we held that a defendant found by the trial court to be competent to stand trial following a court-ordered evaluation by psychiatrists at a State hospital was not entitled to a private psychiatrist of his own choosing to assist in his defense at State expense.

Id. at 415 , 439 A.2d at 549 . We stated as follows: “Here, Johnson was evaluated by a team of independent psychiatric experts, he was furnished with copies of the resulting reports prepared by the examiners, and he had the opportunity to subpoena and question at trial members of the examining team. Whatever the amount of required State assistance for the appointment of defense experts to enable the indigent to place this issue of insanity before the trial court, we need not determine here, for it is certain that once an accused is evaluated by state funded, impartial and competent psychiatrists, that constitutional duty, if any, ends. ‘[T]he State has no constitutional obligation to pro ³⁸⁰ mote a battle between psychiatric experts by supplying defense counsel with funds wherewith to hunt around for other experts who may be willing, as witnesses for the defense, to offer the opinion that the accused is criminally insane.’ ” Id. (Citations omitted).

In light of Alee, decided three years after Johnson , it appears to us that our holding in Johnson has been overruled implicitly to the extent it suggests that the report of a State-employed expert who does not “assist in evaluation, preparation, and presentation of the defense” would be constitutionally sufficient. We find numerous passages from Alee supportive of the proposition that due process requires the provision of a defense expert. We find the following language particularly revealing: “We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, 470 U.S. at 83 , 105 S.Ct. at 1096 (emphasis added). “[T]he assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense. In this role, psychiatrists ... know the probative questions to ask of the opposing party’s psychiatrists and how to interpret their answers.” Id. at 80 , 105 S.Ct. at 1095 (emphasis added); “[T]he psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them.” Id. at 81, 105 S.Ct. at 1095. “[Wjithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, ³⁸¹ to help determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Id,, at 82, 105 S.Ct. at 1096 (emphasis added); “[E]xperts are often necessary both for prosecution and for defense.... [A] defendant may be at an unfair disadvantage, if he is unable because of poverty to parry by his own witnesses the thrusts of those against him.” Id. at 82 n. 8, 105 S.Ct. at 1095 n. 8 (quoting Reilly v. Berry, 250 N.Y. 456 , 166 N.E. 165, 167 (1929) (Cardozo, C.J.)).

The weight of authority among courts that have considered the issue suggests that the services of a defense expert are required. See, e.g., Powell v. Collins, 332 F.3d 376, 392 (6th Cir.2003); Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir.1994); Cowley v. Stricklin, 929 F.2d 640, 644 (11th Cir.1991); Smith v. McCormick, 914 F.2d 1153, 1156-59 (9th Cir.1990); United, States v. Sloan, 776 F.2d 926, 929 (10th Cir.1985); Buttrum v. Black, 721 F.Supp. 1268, 1312-13 (N.D.Ga.1989); Lindsey v. State, 254 Ga. 444 , 330 S.E.2d 563, 566-67 (1985); People v. Lawson, 163 Ill.2d 187 , 206 Ill.Dec. 119 , 644 N.E.2d 1172, 1192 (1994); Binion v. Commonwealth, 891 S.W.2d 383, 386 (Ky.1995); Polk v. State, 612 So.2d 381, 394 (Miss.1992); State v. Gambrell, 318 N.C. 249 , 347 S.E.2d 390, 395 (1986); De Freece v. State, 848 S.W.2d 150, 159 (Tex.Crim.App.1993). Contra, Granviel v. Lynaugh, 881 F.2d 185, 191 (5th Cir.1989) (holding that a court-appointed psychiatrist, whose opinion and testimony is available to both sides, satisfies the defendant’s rights”); Commonwealth v. Reid, 537 Pa. 167 , 642 A.2d 453, 457 (1994) (finding Ake satisfied when trial court offered indigent defendant the “opportunity to be examined by a neutral court-appointed psychiatrist”); see also People v. Leonard, 224 Mich.App. 569 , 569 N.W.2d 663, 671 (1997) (trial court’s refusal to appoint DNA expert did not deny defendant effective assistance of counsel where defense attorney — who had undergraduate degree in chemistry — “effectively and comprehensively cross-examined the prosecution’s experts” after ³⁸² receiving discovery of all documents relating to DNA analysis in the case). In his comprehensive and thoroughly researched law review article, Professor Paul Giannelli addresses this issue as follows: “Appellate courts often cite the fact that the cross-examination of the prosecution expert was effective as a reason why a defense expert was not needed.

M: * * First, the same reasoning applies when prosecutors seek a psychiatric evaluation of an accused who has raised an insanity defense ... and yet virtually every jurisdiction has procedures recognizing the prosecution’s right to have the accused