Scott Schuck v. State of Indiana , 2016 Ind. App. LEXIS 138 ( 2016 )

FILED
May 04 2016, 6:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott Schuck, May 4, 2016
Appellant-Defendant, Court of Appeals Case No.
73A01-1507-CR-981
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable Richard D. Culver,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
73D01-1407-MR-1
Baker, Judge.
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[1] Scott Schuck appeals the trial court’s denial of his motion to correct error in
which he argued that his attorney was entitled to reimbursement from public
funds for investigatory costs accrued prior to trial. Finding that these
investigatory costs were necessary for an adequate defense, but that the
calculation of reasonable costs is a decision better made by the trial court, we
reverse and remand.
Facts
[2] On July 31, 2014, the State charged Schuck with the murder of his former
girlfriend, Rebecca Cassidy. Schuck had a previous relationship with the law
firm of Baldwin, Adams & Kamish (the Firm), and he told the trial court that
since he had retained the Firm, he would not need a public defender.
[3] On October 14, 2014, Schuck and the Firm petitioned for attorney fees and
reasonable expenses. The Firm stated its belief that it would be entitled to
withdraw from the case under Indiana Rule of Professional Conduct 1.16(b)(6)
because Schuck was indigent, would likely be unable to pay, and would
therefore impose “an unreasonable financial burden on the lawyer(s).” But the
Firm told the trial court that it would be willing to represent Schuck on a pro
bono basis, so long as the costs associated with investigating the case would be
covered. In particular, the Firm anticipated that the State would rely upon
expert scientific evidence regarding human remains allegedly found on
Schuck’s property; the Firm thought it would need to hire scientific experts to
meaningfully question the State’s witnesses.
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[4] On November 13, 2014, the trial court denied the petition for attorney fees and
reasonable expenses, but it indicated that it would approve “paying necessary
expenses incurred in the representation of [Schuck] . . . as long as expenses are
approved in advance and are reasonable . . . .” Appellant’s App. p. 448-49. On
December 16, 2014, the trial court further explained that it “recognize[d] the
Defendant’s indigency and his need to employ an investigator and perhaps
expert witnesses to assure him an adequate defense and a fair trial.” Id. at 148.
The trial court also recognized that Schuck would be prejudiced if the State
were able to track what investigations he was pursuing, and set up a procedure
by which Schuck could confidentially make a “request for public funds to
employ an expert witness.” Id. Those requests would then be reviewed by the
trial court.
[5] The judge who set up this process, however, retired shortly thereafter, and
recused himself from the case on December 30, 2014. On January 2, 2015, a
Special Judge was appointed to preside over the case.
[6] On February 10, 2015, a little more than a month before trial was scheduled to
begin, the Firm made a request for public funding to the new judge. It
estimated that the preparation of Schuck’s defense would require between
$5,000 and $15,000, and asked for public funding to meet these expenses. The
Firm said that it did not have the requisite expertise in criminal investigation
work to conduct an adequate investigation, that it did not have enough time to
interview key witnesses, and that the attorneys did not “want to find themselves
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in a situation where they have become fact witnesses in this case.” 1 Id. at 451.
The Firm requested an ex parte hearing regarding its basis for the request.
[7] On March 11, 2015, just five days before trial was scheduled to begin and
without holding a hearing, the trial court denied the Firm’s request, finding
“that it is not necessary to retain the services of a private investigator in this
cause and that the attorneys currently representing the defendant have had
adequate time to interview all necessary witnesses prior to trial.” Id. at 541. In
the meantime, since the Firm had not yet heard back from the trial court, it had
paid an investigator to conduct interviews and to locate several witnesses.
[8] Schuck’s trial began on March 16, 2015. The next day, after a jury was sworn
and opening statements were presented, the parties reached a plea agreement.
Schuck agreed to plead guilty to aiding voluntary manslaughter as a class B
felony. At the plea hearing, Schuck admitted that he knew that his mother,
Wilma Schuck (Wilma), had struck Cassidy with a deadly weapon, but that he
then left an unconscious Cassidy alone with Wilma, who subsequently
strangled her. After an April 15, 2015, sentencing hearing, Schuck was
sentenced to twenty years of imprisonment for aiding voluntary manslaughter,
with an additional ten years for being an habitual offender.
[9] On April 22, 2015, the trial court granted the Firm’s request for reimbursement
for three depositions, but denied its request for reimbursement for any of the
1
We will explain below what the Firm meant by this last statement.
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costs of the investigator. The Firm exchanged a series of emails with the trial
court, attempting to explain why the use of an investigator was necessary and
why they requested an ex parte hearing as part of their motion for public funds.
One email explained, “In our 4-5 meetings with Wilma, she continually came
closer and closer to admitting she was the one who killed Rebecca . . . . [S]o, we
felt it very important to stop talking to her altogether and use, instead, a private
investigator to continue investigating what had actually happened to Ms.
Cassidy.” Id. at 20. Indiana Rule of Professional Conduct 3.7 generally
prohibits lawyers from being advocates and witnesses in the same trial; the Firm
was concerned that if they were the only people who heard Wilma make these
statements, they might be forced to testify at Schuck’s trial. Therefore, they
hired an investigator to interview Wilma so that there would be a witness to
Wilma’s statements. This investigator also tracked down a potential defense
witness who had seen an altercation between Wilma and Cassidy.
[10] On May 22, 2015, the Firm filed a Motion to Correct Error regarding the denial
of public reimbursement for the investigator. The trial court allowed affidavits
in support of or opposition to the Firm’s position. Five criminal defense
attorneys wrote affidavits in support of the Firm; they all argued that the fees
were reasonable and necessary, and that attorneys would be discouraged from
accepting pro bono clients if the attorneys were made to pay for investigations
out of pocket. One affidavit stated that “while one might quibble with the rate
and billing practices” used by the Firm, “the charges are not unreasonable and
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certainly at least 72% of the amount billed would be considered reasonable by
the majority of practicing attorneys.” Appellant’s App. 390.
[11] The Chief Public Defender of Shelby County provided an affidavit in
opposition to the Firm’s position. He argued that the Public Defender Office
has access to low-cost investigators, and might need to obtain additional
appropriations for public funds requests; therefore, he did not believe that any
request for public funds should be approved unless it was preapproved by his
office.
[12] After considering this evidence, the trial court denied the Motion to Correct
Error. The court noted that the Firm’s invoices “appear[ed] to bill $125.00 per
hour for almost 28 hours of interviews with [Schuck’s] Mother.” Appellant’s
App. p. 422. The trial court found that these expenses “were not necessary to
provide [Schuck] with adequate representation.” Id. Schuck now appeals.
Discussion and Decision
[13] Principles of fundamental fairness entitle an indigent defendant to an adequate
opportunity to present his claims fairly within the adversary system. Scott v.
State, 593 N.E.2d 198, 199 (Ind. 1992). The decision as to whether public funds
should be used to reimburse expert or investigatory services provided to
indigent defendants rests within the sound discretion of the trial court. Id. at
200. A court is not required to fund any and all experts the defense believes
might be helpful. Tidwell v. State, 644 N.E.2d 557, 560 (Ind. 1994). Instead,
“the central inquiries are whether the services are necessary to provide an
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adequate defense and whether the defendant specifies precisely how he would
benefit from the requested expert services.” Id.
[14] We have previously enunciated some of the factors that should guide trial
courts in this determination:
(1) whether the services would bear on an issue generally
regarded to be within the common experience of the average
person, or on one for which an expert opinion would be
necessary; (2) whether the requested expert services could
nonetheless be performed by counsel; (3) whether the proposed
expert could demonstrate that which the defendant desires from
the expert; (4) whether the purpose for the expert appears to be
only exploratory; (5) whether the expert services will go toward
answering a substantial question in the case or simply an
ancillary one; (6) the seriousness of the charge; (7) whether the
State is relying upon an expert and expending substantial
resources on the case; (8) whether a defendant with monetary
resources would choose to hire such an expert; (9) the costs of the
expert services; (10) the timeliness of the request for the expert
and whether it was made in good faith; and (11) whether there is
cumulative evidence of the defendant’s guilt.
Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind. Ct. App. 2010), reh’g granted on
other grounds, 943 N.E.2d 1282 (Ind. Ct. App. 2011).
[15] Although some of these factors do not translate perfectly to the present case—
Schuck was not asking for a scientific expert; rather, his attorneys needed an
investigator to prevent them from running afoul of the Rules of Professional
Conduct—we find that nearly every factor listed in Kocielko counsels in favor of
public reimbursement of the Firm’s investigation expenses.
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1) Although questioning Wilma does fall “within the common experience
of the average person,” the Firm was following the Rules of Professional
Conduct in its attempt to avoid becoming a witness and advocate in the
same trial;
2) Therefore, the service could not have been performed by counsel;
3) The investigator only needed to interview Wilma to demonstrate what
the Firm wanted to demonstrate;
4) The interview was not merely exploratory—the Firm knew exactly what
information it was seeking;
5) Whether someone other than Schuck committed the murder with which
he was charged is clearly a substantial question;
6) Murder is an extremely serious charge;
7) The State was relying upon expert forensic testimony in this case;
8) A defendant with monetary resources would have hired the investigator
to conduct the interview;
9) The cost of the investigation—roughly $6,000—is not large;
10) The request was timely and made in good faith;
11) The cumulative evidence of Schuck’s guilt had not been established
before trial.
Our Supreme Court has previously recommended “‘[d]efense counsel [to]
conduct a prompt investigation of the circumstances of the case and to explore
all avenues leading to facts relevant to the merits of the case and the penalty in
the event of a conviction.’” Scott, 593 N.E.2d at 199-200 (quoting ABA
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Standards for Criminal Justice (Third Edition), Standard 4-4.1(a) (approved
1991) 49 Crim. L. Rep. (BNA) No. 2, at 2017 (April 10, 1991)). After
becoming aware that Wilma had some involvement in Cassidy’s death, the
Firm had a duty to its client to investigate what Wilma had done. It reasonably
concluded that hiring an investigator to interview Wilma was necessary to
avoid violating the Rules of Professional Conduct.
[16] The State argues that by pleading guilty, Schuck rendered any investigation
“not necessary,” as “there was no need to counter the State’s case because
Schuck’s conviction was based entirely upon his own admissions in pleading
guilty.” Appellee’s Br. p. 17. This argument is unavailing for several reasons.
[17] First, our Supreme Court has made clear that defense services to indigent
defendants “‘should provide for investigatory, expert, and other services
necessary to quality representation. These should include not only those
services and facilities needed for an effective defense at trial but also those that
are required for effective defense participation in every phase of the process.’”
Scott, 593 N.E.2d at 200 (quoting ABA Standards for Criminal Justice (Third
Edition), Standard 5-1.4 (approved 1990) 49 Crim. L. Rep. (BNA) No. 2, at
2022 (April 10, 1991)). The need to factually investigate the claims made
against a defendant does not begin at trial. It begins before trial, and the
information revealed during the course of the investigation will often be of vital
consequence to the defendant and his attorney when deciding whether to accept
a plea deal. That is precisely what happened in the present case.
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[18] Moreover, the State’s argument has terrible public policy implications. Public
defenders or pro bono defenders would face a dilemma: if they believed that
their client might plead guilty, they would be discouraged from spending any
money on any factual investigation of the case. On the other hand, if they
decided to spend some money on an investigation, they would be discouraged
from counselling their client to accept any plea deal because it would render
public reimbursement unavailable. Ironically, in the name of conserving scarce
public money, the State would require pro bono defenders seeking public funds
to go through a full trial, which would be vastly more expensive, even where
the defendant is willing to plead guilty.
[19] The State also repeats the argument made by the Shelby County Public
Defender that the Firm was required to get preapproval from the local public
defender’s office before requesting public funds. Indiana Public Defender
Commission’s Standard for Indigent Defense Services in Non-Capital Cases,
Standard N, deals with the situation of “a person who has retained private
counsel for trial . . . [but] is unable to pay for” the investigations “necessary to
prepare and present an adequate defense.” Available at http://www.in.gov/
judiciary/pdc/files/indigent-defense-non-cap.pdf. It states that “[s]uch services
are eligible for reimbursement from the public defense fund if authorized by the
court.” Id. It further provides that such requests “should be made by motion to
the court . . . .” Id. The State has cited no legal authority behind its contrary
position, and so its argument fails.
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[20] The trial court also expressed a concern that the fees requested were
unreasonably high. This is certainly a determination that is within the trial
court’s discretion to make. But we do not believe that the process should work
like a gameshow, where a request for too much money results in no money
being awarded. Rather, if the trial court believes that the funding requested is
unreasonably high, the trial court should hold a factfinding hearing to
determine the appropriate amount of funding, and then award that amount
instead.
[21] That is what should occur in this case. Having found that hiring the
investigator was necessary in this case, we believe the trial court should now
determine what would be the reasonable cost of such an investigation.
[22] The judgment of the trial court is reversed and remanded with instructions to
hold a hearing to determine the amount of public funding that should be
awarded.
May, J., and Brown, J., concur.
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