English v. Missildine

311 N.W.2d 292, 1981 Iowa Sup. LEXIS 1055

• Court: Supreme Court of Iowa
• Decided: October 21, 1981
• Docket: 65087
• Status: Published

Opinions

McCORMICK, Justice.

The question here is whether an indigent has the right to employ an expert and take depositions at public expense when he is represented by private counsel. Plaintiff Mark Felix English is an 18-year-old indigent who is charged with theft in the third degree under section 714.1(3), The Code. His mother retained private counsel for him through payments totalling $900. Because she could not afford to pay for the services of a handwriting expert or deposition expenses, plaintiff applied for those services at county expense. When the trial court denied the application, he brought this cer-tiorari action. We sustain the writ.

No issue is presented concerning the reasonable necessity of the desired services under the standard delineated in State v. McGhee, 220 N.W.2d 908, 913 (Iowa 1974). Handwriting identification is disputed in the case, and the State plans to offer expert testimony. Moreover, plaintiff has a legitimate interest in pursuing discovery. The State has already deposed his alibi witnesses.

The only question is whether plaintiff is entitled to investigative services at public expense. Three possible sources of authority were urged in the trial court and are reiterated here. They are section 815.7, The Code, Iowa R.Crim.P. 19(4), and U.S. Const, amend. VI, as applicable to the states through the fourteenth amendment.

Section 815.7 authorizes fees and sums for investigative services to court-appointed attorneys. See Hulse v. Wifvat, 306 N.W.2d 707 (Iowa 1981). If plaintiff were represented by a court-appointed attorney, the State concedes the statute authorizes public payment of the services he desires. See State v. Hancock, 164 N.W.2d 330, 332 (Iowa 1969). However, the statute does not address the issue of furnishing those services to indigents represented by private counsel.

Iowa R.Crim.P. 19(4) does not reach the present issue either. It provides:

Counsel for a defendant who is financially unable to obtain expert or other witnesses necessary to an adequate defense of the case may request compensation in a written application. Upon finding, after appropriate inquiry, that the services are necessary and that the defendant is financially unable to provide compensation, the court shall authorize counsel to obtain such witnesses on behalf of the defendant. The court shall determine reasonable compensation for the services and direct payment to the person who rendered them pursuant to chapter 815, The Code.

The rule is authority for public payment of witnesses for indigents at trial. It does not distinguish between indigents who are represented by court-appointed and private counsel. Therefore it is authority for permitting an indigent defendant represented by private counsel to obtain the testimony of expert witnesses at trial at public expense. It is comparable to Fed.R.Crim.P. 17(b) and is similar in purpose to section 781.2, The Code 1977. It is not authority for paying investigative expenses. See Hancock, 164 N.W.2d at 333 (“Defendant’s pre-trial request for allowance of witness fees for a handwriting expert whom she would wish to call at trial was premature and properly denied.”). The rule implements an indigent defendant’s right to compulsory process and to present a defense. Cf. United States v. Hegwood, 562 F.2d 946, 952 (5th Cir. 1977) (giving a similar interpretation to Fed.R.Crim.P. 17(b)); People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645 (1966) (recognizing the right on constitutional grounds).

We believe authority for the services requested by plaintiff exists under his sixth amendment right to effective representation of counsel. For indigents the right to effective counsel includes the right to public payment for reasonably necessary investigative services. State v. Williams, 207 N.W.2d 98, 104-05 (Iowa 1973); see also Hancock, 164 N.W.2d at 333 (“the denial of defendant’s request for a handwriting analysis has overtones sounding in due process and equal protection of the laws”). The Constitution does not limit this right to defendants represented by appointed or assigned counsel. The determinative question is the defendant’s indigency. When his indigent status is established the “defendant is constitutionally entitled to those defense services for which he demonstrates a need.” People v. Worthy, 109 Cal.App.3d 514, 520, 167 Cal.Rptr. 402, 406 (1980); see 3 C. Wright, Federal Practice and Procedure: Criminal § 740 at 235 (1969); Margolin and Wagner, The Indigent Criminal Defendant and Defense Services: A Search for Constitutional Standards, 24 Hastings L.J. 647 (1973); Note, Right to Aid in Addition to Counsel for Indigent Criminal Defendants, 47 Minn.L.Rev. 1054 (1963).

Section 815.7 and rule 19(4) partially implement this constitutional right. Although those provisions do not apply in the present situation, the Constitution independently mandates judicial recognition of an indigent’s right to necessary investigative services. See Williams, 207 N.W.2d at 104; Worthy, 109 Cal.App.3d at 520-21, 167 Cal.Rptr. at 406. The fact that a third person retained private counsel for plaintiff does not by itself affect his status as an indigent. See Schmidt v. Uhlenhopp, 258 Iowa 771, 140 N.W.2d 118 (1966). Plaintiff’s indigen-cy is undisputed.

Moreover, this is not a case where an accused has rendered himself impecunious by an unreasonable expenditure of funds to retain private counsel. Nor is it a case where counsel’s fee should reasonably be expected to cover investigative services.

In defending the court’s order in the present case, the State nevertheless contends that plaintiff’s remedy is to accept court-appointed or assigned counsel, in which event section 815.7 would authorize payment for ' the requested investigative services at public expense. The State argues that no constitutional violation exists so long as this alternative is available. It also argues that to hold otherwise would permit an indigent to retain counsel of his own choosing, a right which he does not have.

The State’s constitutional argument begs the question. If, as we have held, the sixth amendment provides authority for furnishing investigative services to indigents at public expense without regard to whether the indigent is represented by counsel at public expense, the fact that indigents represented by counsel at public expense have the same right is not material. It would be strange if the Constitution required the government to furnish both counsel and investigative services in cases where the indigent needs and requests public payment for only investigative services. The State’s theory would impose an unreasonable and unnecessary additional burden on the public treasury.

Moreover, we do not share the State’s concern about an indigent’s right to be represented by counsel of his choice when the attorney is not paid at public expense. We have recognized that an indigent does not have this right of choice when counsel is paid from public funds. State v. Williams, 285 N.W.2d 248, 254 (Iowa 1979). However, no reason exists for depriving an indigent of the same right of choice as a person of means when the indigent is able to obtain private counsel without public expense.

Under the record in the present case, we hold that the court erred in denying plaintiff’s application for investigative services at public expense. We sustain the writ and remand for further proceedings.

WRIT SUSTAINED.

All Justices concur except UHLEN-HOPP, J., who concurs specially.