97 N.C. App. 203 | N.C. Ct. App. | 1990
Lead Opinion
Appellant first assigns error to the trial court’s denial of his motion for funds to obtain the assistance of a psychiatrist and a ballistics expert to facilitate the preparation and presentation of his defense. The trial court found the testimonial and documentary evidence presented did not demonstrate the threshold showing of a “particularized need” necessary to obtain state funds for independent experts. State v. Penley, 318 N.C. 30, 51, 347 S.E.2d 783, 795 (1986). Appellant argues he made the threshold showing and asks for a new trial.
Under N.C.G.S. § 7A-450(b) and N.C.G.S. § 7A-454, the state must provide an indigent criminal defendant with counsel and other necessary expenses. To receive funds for a state-appointed expert,
Appellant claims he needed a psychiatrist to evaluate the effect his cocaine addiction had on his mental capacity at the time the crimes were committed and at the time he made inculpatory statements to law enforcement officers. We agree with the trial court that appellant failed to make the threshold showing of specific necessity required here. A suspicion that the outcome of an examination may be favorable is insufficient to show a reasonable likelihood that an expert will materially assist a defendant in preparation of his defense. Penley, at 51, 347 S.E.2d at 795; Caldwell v. Mississippi, 472 U.S. 320, 323 n.1, 86 L.Ed. 2d 231, 236 n.1 (1985) (denial of fingerprint and ballistics experts not denial of due process where defendant offered little more than undeveloped assertions).
Appellant argues State v. Moore, 321 N.C. 327, 364 S.E.2d 648, controls the determination before us. In Moore, an indigent defendant with an IQ of 51 was charged with first-degree sexual offense based almost entirely on his confession and the recovery of his palm print at the scene of the crime. The Supreme Court held the defendant had a constitutional right to psychiatric assistance to dispute the voluntariness of his confession and the right to the help of a fingerprint expert. Moore, at 327, 364 S.E.2d at 648.
The defendant in Moore established the requisite threshold by showing that: (1) because there was no positive identification
Certain similarities exist between the case before us and Moore. In neither case could the perpetrator be positively identified; in both cases the accused person confessed to committing the crime; and, in both, questions existed concerning the competency of the accused. Nevertheless, we believe the situation here is distinguishable from Moore. First, the lack of an eyewitness to the perpetrator’s identity standing alone is not sufficient to require the state to provide an indigent defendant with state funds for a psychiatrist in every situation where the state’s case is partly dependent on defendant’s confession. Where, as in the case before us, other evidence exists, an indigent criminal defendant requesting a psychiatric expert must show something more than the fact that he confessed and that his confession will be important in the state’s case against him.
The confession and ballistics evidence were not as important to the state’s case here as the confession and palm print were in Moore. Eyewitnesses at the scene described the perpetrator’s physical build, his clothing, and the vehicle used in the crime. Using this and other information gathered during the ensuing investigation, officials immediately focused on appellant as the main suspect, tracked his movements, from Clayton to Raleigh and Rock Hill, and finally apprehended him in Detroit. In addition to the descriptive evidence investigators gathered linking appellant to the crime, this evidence of flight from the scene implicates him, notwithstanding his confession and the ballistics information.
Moreover, while it has been demonstrated that appellant’s confession is important to the state’s case, unlike the defendant in Moore, appellant here has failed to show that his confession was of questionable credibility. As noted above, the defendant in Moore had an IQ of 51. More importantly, a forensic psychiatrist for the state testified in Moore that because of the defendant’s subaverage intelligence he was “easily lead and easily influenced.” Id. at 337, 364 S.E.2d at 653. Family and friends of the defendant testified to the same effect. Witnesses demonstrated the defendant was
In the present case, appellant has not made such a showing. Instead, the evidence strongly supports the state’s contentions that appellant was cognizant of his actions both at the time the crimes were committed and when he made the inculpatory statements. The officers who testified at the motions hearing stated that when interviewed appellant was alert, attentive, and capable of relating the specifics of the case and his involvement in the robbery and shooting.
Appellant’s evidence in support of his charge of incapacity primarily comes from a report issued by a state psychiatrist, who evaluated his competency to stand trial, and from appellant’s own statements. While the psychiatrist reported he believed Seaberry was a cocaine addict and intoxicated during the period of the alleged crimes, he also concluded appellant was competent to stand trial, that he understood the charges against him, that he was able to cooperate with and assist his attorney in preparing his defense, that he knew right from wrong, and that he was responsible for his actions at the time of the alleged crimes. The only conclusion in the psychiatrist’s report supporting appellant’s contention of mental incompetency — that he was a cocaine addict when he committed the crimes and when he confessed — was based largely on interviews with appellant, his girlfriend, and his attorney. The psychiatrist also reported he thought appellant was being voluntarily uncooperative during his first evaluation, and he chose to defer his final judgment on competency because he wanted to rule out “malingering” by appellant. In addition, the state presented evidence that Seaberry had made statements to another prisoner soon after he was arrested indicating he intended to fake mental illness and a drug problem to get out of the charges against him. In short, appellant has failed to make the specific evidentiary showing as outlined in Moore placing in question his mental condition.
Finally, as a practical matter, appellant had one state appointed psychiatrist when he made his request and did not need a second one. At the time of the motions hearing in Johnston County, ap
Moreover, we find no error in the trial court’s denial of defendant’s motion for a state appointed ballistics expert. In Moore the palmprint was the only physical evidence the state had against the accused. That is not the situation in this case. While the ballistics expert’s testimony may have been important for the state to prove its case against Seaberry beyond a reasonable doubt, our reading of Moore is that this fact alone is not sufficient to require the appointment of an independent expert. Second, in reaching its decision in Moore, we note that the Supreme Court emphasized the limited communication and reasoning abilities of the mentally retarded defendant and recognized he would be unable to assist his counsel in the preparation of his defense. Moore, at 344-45, 364 S.E.2d at 657. Again, that is not the case here. Although Seaberry may be a cocaine addict, he presented no detailed evidence contradicting the psychiatrist’s conclusion he was capable of assisting in his defense. Thus, the denial of appellant’s motions requesting a ballistics expert is upheld.
Appellant next assigns error to the fact that he was not present at the pretrial hearing on 19 September 1988 when the motions discussed above were denied. The hearings judge proceeded after he inquired concerning appellant’s whereabouts and was informed Seaberry was in custody in Wake County for other charges pending against him. Appellant claims this deprived him of his right to be present at the hearing and to confront the witnesses who testified, and that he is entitled to a new trial.
A criminal defendant has the constitutional right to be present at any stage of a criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure. Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed. 674, 54 S.Ct. 330 (1934); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). The Confrontation Clause of the Sixth Amendment made applicable to the states by the Fourteenth Amendment grants defendants the right to be present at any stage of the proceedings at which
A defendant’s right to be present at every stage of trial also has a due process component. 3 W. LaFave & J. Israel, Criminal Procedure § 23.2(c) (Supp. 1989). Accordingly, this right is not restricted to situations where defendant is actually confronting witnesses or evidence against him, but encompasses all trial-related proceedings at which defendant’s presence “has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Id.
More importantly, whether a particular proceeding is critical to the outcome of the trial is not the proper inquiry in determining if a criminal defendant’s rights under the Sixth Amendment has been violated. Kentucky v. Stincer, 482 U.S. 730, 96 L.Ed. 2d 631 (1987). “The appropriate question is whether there has been any interference with defendant’s opportunity for effective cross-examination.” Id. at 745, n.17, 96 L.E.2d at 647, n.17. Similarly, under the due process analysis, “the question is not simply whether, ‘but for’ the outcome of the proceeding, the defendant would have avoided conviction, but whether the defendant’s presence at the proceeding would have contributed to the defendant’s opportunity to defend himself against the charges.” Id. This privilege of presence is not guaranteed “when presence would be useless, or the benefit but a shadow.” Snyder, at 106-107, 78 L.Ed. at 678. Defendant has made no showing that the motions hearing would have been more reliable due to his physical presence or his contributions to the process of cross-examination.
Assuming for a moment that a hearing for a state appointed expert is deemed a critical stage requiring the defendant’s presence, we believe appellant in this case waived his right to attend his motions hearing. See Braswell, at 559, 324 S.E.2d at 246. Neither the record nor the transcript of the hearing reveal any indication appellant wanted to be present at the hearing. Defense counsel never objected to appellant’s absence, requested appellant be transported to Johnston County for the hearing, nor asked that
Finally, in State v. Braswell, the Supreme Court recognized a defendant’s right to confront witnesses against him, like his right to be present at all critical stages of a trial, is subject to harmless error analysis. Id. at 553, 324 S.E.2d at 241; State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 98 L.Ed. 2d 384 (1987). “Every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of a particular case, not requiring the automatic reversal of a conviction, where the appellate court can declare a belief that it was harmless beyond a reasonable doubt.” State v. Taylor, 280 N.C. 273, 280, 185 S.E.2d 677, 682 (1972); see N.C.G.S. § 15A-1443(b). Assuming it was improper for the trial judge to conduct the motions hearing without appellant present, we believe that decision had no effect on the outcome of the trial.
Defendant’s remaining assignments of error relating to admission of his confession and physical evidence are feckless.
No error.
Concurrence in Part
concurring in part and dissenting in part.
Like the majority, I find no error in defendant’s assignments of error relating to the admission of his confession and physical evidence. I agree with the majority that defendant “had one state appointed psychiatrist [in his Wake County cases] . . . and did not need a second one,” ante, at 209-10. Believing however that defendant was entitled to funds to pay the psychiatrist any additional necessary expenses incurred in the preparation of his Johnston County case, that defendant made a threshold showing of specific necessity for funds to obtain the assistance of a ballistics expert,
Although defendant had no right to the appointment of multiple experts or the expert of his choice, he was entitled to a psychiatrist who could assist him in evaluating, preparing, and presenting his defense against the charges for which he was on trial. See State v. Moore, 321 N.C. 327, 364 S.E.2d 648 (1988). I believe the trial judge erred in denying defendant’s motion for funds for a psychiatrist.
Further, since there were no eyewitnesses who could positively identify defendant as the culprit and the State’s case hinged significantly upon the ballistics evidence, I believe defendant made a threshold showing of specific necessity for a ballistics expert. In my view, Moore controls. In that case, our Supreme Court considered defendant’s right to an independent fingerprint expert when the single piece of physical evidence placing defendant at the crime scene was a palm print which, according to the State’s expert, matched defendant’s. Noting 1) that a palm print found at the crime scene had been identified by the State’s expert as defendant’s, 2) that the State’s witness could not identify the perpetrator of the crimes charged, 3) that the State’s palm print evidence was thus critical to the State’s case, 4) that defense counsel lacked the expertise to assess the accuracy of the State’s expert’s identification of the palm print, and 5) that defendant Moore was mentally retarded and able to provide his counsel with little assistance in making his defense, the Court concluded that defendant had made the requisite threshold showing of specific necessity for a fingerprint expert and that he would have been materially assisted in the preparation of his defense had his motion been granted. In the case before us, defendant made a similar showing. Although he was not mentally retarded, there was evidence that he was a cocaine addict and was under the influence of drugs when the crime occurred.
Further, in denying defendant’s motion for funds to hire a ballistics expert, the trial judge operated under a misapprehension of fact and law. First, the trial judge erroneously believed that there was no confession in the Moore case. He said that “[i]n the Moore case they didn’t have a confession. That’s a material point. I can’t see how I could find that the assistance of a ballistics expert could assist [in] the preparation of this defense.” Second,
The showing suggested by the State is not required. To require as a condition precedent to acquiring an appointed fingerprint expert that the defendant discredit the State’s expert testimony stands at odds with the general “threshold” showing of need required under our cases. The State’s proposed test would demand that the defendant possess already the expertise of the witness sought.
321 N.C. at 345, 364 S.E.2d at 657.
Finally, defendant was denied his constitutional rights to be present at all critical stages of the trial and to confront witnesses against him. See Rushen v. Spain, 464 U.S. 114, 78 L.Ed.2d 267 (1983), reh’g denied, 465 U.S. 1055, 79 L.Ed.2d 730 (1984); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). Defense counsel’s failure to request defendant’s presence or to expressly consent to defendant’s absence is not fatal, in my view, since defense counsel did not have the power to waive defendant’s right to be present at a hearing involving felony offenses. Significantly, had defendant been present he may have been in a better position to assist his attorney in some way. Moreover, an opportunity to observe the conduct and demeanor of the defendant reasonably may have affected the trial judge’s assessment of defendant’s need for the assistance of a psychiatrist. In my view this error cannot be said to be harmless beyond a reasonable doubt. Braswell, 312 N.C. at 560, 324 S.E.2d at 247.
For the foregoing reasons, I believe defendant should be awarded a new trial.
