U'dreka Andrews v. State of Florida , 243 So. 3d 899 ( 2018 )

Supreme Court of Florida
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No. SC17-1034
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U’DREKA ANDREWS,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[May 17, 2018]
POLSTON, J.
In this review of the First District Court of Appeal’s decision in Andrews v.
State, 218 So. 3d 466 (Fla. 1st DCA 2017), we consider whether indigent
defendants represented by pro bono counsel should be treated the same as
defendants represented by private counsel or public defenders, both of whom do
not have to reveal details about their hiring of experts to the prosecution.
Specifically, the First District certified the following question:
WHETHER AN INDIGENT DEFENDANT WHO IS
REPRESENTED BY PRIVATE COUNSEL PRO BONO IS
ENTITLED TO FILE MOTIONS PERTAINING TO THE
APPOINTMENT AND COSTS OF EXPERTS, MITIGATION
SPECIALISTS, AND INVESTIGATORS EX PARTE AND UNDER
SEAL, WITH SERVICE TO THE JUSTICE ADMINISTRATIVE
COMMISSION AND NOTICE TO THE STATE ATTORNEY’S
OFFICE, AND TO HAVE ANY HEARING ON SUCH MOTIONS
EX PARTE, WITH ONLY THE DEFENDANT AND THE
COMMISSION PRESENT.
218 So. 3d at 470.1 We answer the certified question in the affirmative and,
therefore, quash the First District’s decision and remand Andrews’ case for
resentencing.
BACKGROUND
U’dreka Kynshere Andrews was convicted of first-degree murder, burglary,
and robbery and was sentenced to life without the possibility of parole for the first-
degree murder conviction. Andrews was 17 years old at the time she committed
the offenses. Subsequently, the United States Supreme Court held in Miller v.
Alabama, 567 U.S. 460, 479 (2012), “that the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole for
juvenile offenders.” After Miller, this Court remanded Andrews’ case for
resentencing. Andrews v. State, 177 So. 3d 1262 (Fla. 2015).
Prior to the resentencing hearing, Andrews’ pro bono counsel filed a motion
for an ex parte hearing regarding the appointment of experts for the Miller juvenile
resentencing hearing. Defense counsel argued that he was requesting public funds
for experts and that he sought an ex parte determination because he did not “think
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
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the State should be involved in the process of the defense having experts.” The
trial court denied the motion for an ex parte hearing without explanation.
Andrews’ counsel filed a petition for writ of certiorari in the First District,
asserting that the hearing regarding experts should be ex parte because the
discussion of experts might reveal the defense’s trial strategy to the State. The
First District denied the petition but also certified the above question. Andrews,
218 So. 3d at 470.
ANALYSIS
Andrews argues that “comparable defendants represented by private counsel
would not be required to divulge details to the prosecution regarding the hiring of
experts, nor would similarly-situated defendants who are represented by the Office
of the Public Defender or the Office of Criminal Conflict and Civil Regional
Counsel.” We agree with Andrews.2
To be entitled to public funds for the appointment of an expert, the Eleventh
Circuit in Moore v. Kemp, 809 F.2d 702, 712 (11th Cir. 1987) (footnote omitted),
ruled that an indigent “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.” And
2. Because the certified question is solely a legal issue, our review is de
novo. See Haygood v. State, 109 So. 3d 735, 739 (Fla. 2013).
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in San Martin v. State, 705 So. 2d 1337, 1347 (Fla. 1997), this Court explained
that, when evaluating whether a trial court abuses its discretion in refusing public
funds, “courts have applied a two-part test: (1) whether the defendant made a
particularized showing of need; and (2) whether the defendant was prejudiced by
the court’s denial of the motion requesting the expert assistance.”
In making a showing of particularized need, a defendant may be required to
expose privileged information or attorney work product, depending on the type of
expert assistance requested. Requiring a defendant to reveal to the prosecutor the
name of an expert witness whom the defendant may wish to consider calling, along
with the reasons why this witness may be of value to the defense, is “contrary to
the work-product doctrine because it would serve to highlight the thought
processes and legal analysis of the attorneys involved.” State v. Williams, 678 So.
2d 1356, 1358 (Fla. 3d DCA 1996); see also State v. Rabin, 495 So. 2d 257, 262
(Fla. 3d DCA 1986) (explaining that opinion work product, which includes the
attorney’s theories concerning the case, “is absolutely, or nearly absolutely,
privileged”). Even if the defendant is only required to disclose the expert’s name
and area of expertise, that is information that the State would otherwise not be
entitled to know at that stage. In fact, the State’s presence at the hearing puts the
defendant in the difficult situation of having to choose between fully supporting
the motion for the appointment of an expert and not revealing information to the
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State that it would not otherwise be privy to. And as Judge Wolf explained,
“[n]on-indigent and, more importantly, other indigent defendants represented by
public defenders can obtain expert witnesses and investigative support without
revealing their thought processes in front of the prosecuting authority.” Andrews,
218 So. 3d at 472 (Wolf, J., concurring in part and dissenting in part).
Additionally, depending on the reason for the expert requested, it is possible
that a defendant may be forced to disclose self-incriminating information, in
violation of the defendant’s Fifth Amendment rights. See Ex parte Moody, 684 So.
2d 114, 120 (Ala. 1996) (“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 all stages of a criminal proceeding.”). This
privilege against self-incrimination is not limited to “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 (1975).
Accordingly, ex parte hearings are necessary in this context to protect
indigent defendants’ rights. Federal law and other states also require ex parte
hearings in this context. See, e.g., 18 U.S.C. § 3006A(e)(1); United States v.
Abreu, 202 F.3d 386, 391 (1st Cir. 2000); Ex parte Moody, 684 So. 2d at 120;
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Brooks v. State, 385 S.E.2d 81, 84 (Ga. 1989); McGregor v. State, 733 P.2d 416,
416 (Okla. Crim. App. 1987); Williams v. State, 958 S.W.2d 186, 192-94 (Tex.
Crim. App. 1997).
CONCLUSION
For the foregoing reasons, we hold that indigent defendants represented by
private counsel pro bono are entitled to file motions pertaining to the appointment
and costs of experts, mitigation specialists, and investigators ex parte and under
seal, with service to the Justice Administrative Commission and notice to the State
Attorney’s Office, and to have any hearing on such motion ex parte, with only the
defendant and the Commission present. Accordingly, we answer the certified
question in the affirmative, quash the First District’s decision below, and remand
Andrews’ case for resentencing in accordance with this decision.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and LAWSON,
JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Certified
Great Public Importance
First District - Case Nos. 1D16-733
(Leon County)
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Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida; and
Crystal McBee Frusciante of Frusciante Law Firm, P.A., Sunrise, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Respondent
Sonya Rudenstine, Gainesville, Florida, and Whitney Untiedt of Akerman, LLP,
Miami, Florida; and Roseanne Eckert of FIU College of Law, Miami, Florida,
Amici Curiae Florida Association of Criminal Defense Lawyers and the
Florida Juvenile Resentencing and Review Project
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