State v. VolkerState v. Volker
- Reporters:
- , ,
- Before:
- Huspeni
OPINION
HUSPENI, Judge.Appellant alleges the trial court denied her due process right to a fair trial when it granted $400 in expert witness fees and denied а second motion for the full $1,000 in fees. We affirm.
Appellant Bobbie Jo Yolker lost control of her vehicle and landed in a ditch. Thе officer investigating the scene observed that appellant smelled of alcohol and had blood-shot eyes and slurred speech. Appellant consented to, and failed, the initial breath test. The officer then took appellant into custоdy and transported her to the law enforcement center where she took field sobriety tests. In a series of Intoxi-lyzer tests, the readings were .130, .132, .119, and .123. The reported result of appellant’s blood alcohol content was .11, and she was charged with three counts of driving while under the influence of alcohol.
In preparing for trial, appellant sought an award of $1,000 in fees from the trial court to retain a specific Intoxilyzer expert. In affidavits in support of the fees, appellant stated that the fees wеre “necessary” to her defense. The trial court found these affidavits inadequate to show a specific need for the expert. The court granted appellant $400 in consultation fees and instructed her to submit a more detailed affidavit describing the necessity for the expert’s services to her defense.
Appellant took no further action on the issue until the day of trial when shе brought a second motion for the full $1,000 in fees. Appellant submitted the expert’s affidavit which stated he “could possibly be helpful to the defense.” Finding no evidence of “necessity,” the trial court denied appellant’s motion as untimely, and the trial proceeded.
The jury found appellant guilty of driving while under the influence of alcohol in violation of
ISSUE
Did the trial court deny appellant her right to a fair trial when it authorized only $400 in expert witness fees under
ANALYSIS
The determination of expert witness fees is a matter within the discretion of the trial court. In re Jobe, 477 N.W.2d 723, 726 (Minn.App.1991).
The constitutions of the United States and the State of Minnesota guarantee a criminal defendant the rights to duе process and a fair trial.
The basis for the state’s assistance to an indigent defendant is rootеd in the belief 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. * * * [Fundamental fairness entitles indigent defendants to “an adequate opportunity to present their claims fairly within the adversary system.”
Ake,
470 U.S. at 77, 105 S.Ct. at 1093 (quoting
Ross v. Moffitt,
417 U.S. 600, 612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974)). Consistent with that policy, Minnesota allows an indigent dеfendant to request funding from the trial court for necessary expert witness services.
Appellant alleges the trial court denied her a fair trial when it allocated $400 in expert fees and denied her motion for the full $1,000 authоrized by
The trial court gave appellant the opportunity to consult with thе expert and evaluate her defense early in the case when it granted her $400 in fees. At the same time, the court instructed aрpellant to submit a subsequent affidavit to the court which explained how the expert would be necessary to her defense. Aрpellant failed to follow those guidelines and, indeed, never delineated with any specificity how the Intoxilyzer expert would hаve aided in her defense. This record on appeal demonstrates that the court offered appellant the raw materials, the tools, and the opportunity to construct a sound defense. However, appellant failed to use them. The trial court’s denial of additional fees was thus a proper exercise of its discretion.
Appellant argues that, under Ake, she did not need to elaborate on the need for or nature of the expert’s testimony. Again, we disagree. In Ake, 470 U.S. at 82-83, 105 S.Ct. at 1096, the Supreme Court held that when the defendant is
able to make an ex parte threshold showing to the triаl 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.
Thus, Ake requires a threshold showing of “need” for expert assistance. The defendant in Ake was mentally ill, had exhibited perverse behаvior to the court, had undergone psychiatric evaluation and treatment, and intended to raise insanity as a defense. Id. at 71, 105 S.Ct. at 1090. The сourt found that those facts warranted appointment of a psychiatrist to assist in Ake’s defense. Id. at 82-83, 105 S.Ct. at 1096. In contrast, appellant has not yet demonstrated her need for expert witness testimony as required by the trial court. Even assuming the trial court determined that aрpellant had met some minimal threshold showing of need when it initially granted her $400 for expert consultation, the record clearly shоws that the court instructed appellant to demonstrate with specificity how the expert would be necessary to her defense. Throughout the proceedings, appellant has failed to follow that instruction. She has not alleged any weaknesses or faults in testing which would have called into question the validity of the Intoxilyzer results.
DECISION
When appellant merely stated that expert witness testimony was “necessary” to her defense but gave no specific reasons, the trial court did not abuse its discretion or deny appellant her right to a fair trial by granting her $400 in expert witness fees and denying her motion for the full amount authorized by law.
Affirmed.