Bright v. State , 265 Ga. 265 ( 1995 )

Hunstein, Justice,

dissenting.

The record in this case reveals that appellant filed both a notice of intent to assert insanity as a defense, see OCGA § 17-7-130.1; USCR 31.4, and a motion for funds for experts in neurology, toxicology, and psychiatry, pursuant to Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985), to assist the defense in both the guilt-innocence and penalty phases of the trial. The motion comported with Roseboro v. State, 258 Ga. 39 (365 SE2d 115) (1988). The trial court conducted the ex parte hearing required by Brooks v. State, 259 Ga. 562 (2) (385 SE2d 81) (1989) and denied the motion for funds, although the court stated that it would reconsider the motion upon the return of the results in the court-ordered psychiatric examination (referencing appellant’s notice of intent per OCGA § 17-7-130.1). Appellant subsequently refused to cooperate in that examination.

The Fourteenth Amendment’s due process guarantee of fundamental fairness requires that an indigent defendant be given “meaningful access to justice,” e.g., access to a competent expert necessary to an effective defense. Ake v. Oklahoma, 470 U. S., supra at 77; Mc-Neal v. State, 263 Ga. 397 (3) (435 SE2d 47) (1993). However, “due process does not require the government automatically to provide indigent defendants with expert assistance upon demand.” Moore v. Kemp, 809 F2d 702, 712 (11th Cir. 1987). Rather, the constitutional requirement that a state provide an indigent defendant access to an expert’s assistance applies only when a defendant has made a “preliminary showing” that the subject-matter of the expert’s specialization is likely to be a significant factor at trial. Id. Whether or not a defendant has made this showing lies within the sound discretion of the trial court. McNeal, supra. Furthermore, while this Court has recognized that Ake applies to expert assistance in presenting mitigating evidence at his sentencing proceeding, Christenson v. State, 261 Ga. 80 (2) (c) (402 SE2d 41) (1991), we did not find it necessary to apply a different standard for an Ake request based on which phase of the trial in which the expert was deemed necessary. Id. at 83 (2) (c).

Applying these principles, I can concur completely in the majority’s conclusion that appellant was not entitled to funds for any of the three experts for use in the guilt-innocence phase or for the neurologist as to the penalty phase. I must respectfully dissent to the majority’s holding that the denial of funds for the psychiatrist and toxicologist for use in the penalty phase was reversible error.

As to the psychiatric expert, I would affirm the trial court’s ruling because this case is indistinguishable from Christenson, supra. In both cases, the defendants presented evidence that they had undergone psychological evaluation in the year prior to the crimes which indicated they suffered from no serious mental disorders. Although there are variations between the cases,¹⁰ the salient fact remains that neither appellant nor Christenson adduced evidence showing a serious mental disorder. Because of the absence of any evidence of a serious mental disorder, we found no abuse of the trial court’s discretion in denying the request for court-funded independent psychiatric assistance in Christenson, supra at 83 (2) (c). Likewise, because appellant has not made a preliminary showing that his “mental condition [at the time of the offense was] seriously in question,” Ake, 470 U. S., supra at 82, I would find no abuse of the trial court’s discretion in denying appellant the funds he sought for psychiatric assistance.

As to the toxicological expert, there is no question that appellant’s usage of crack cocaine was a pivotal factor in his defense. In this Court’s review of the trial court’s denial of funds for a toxicologist, however, the question is not whether the defense could have made use of such an expert. Rather, it is whether access to a toxicological expert was “necessary to an effective defense” such that denial of funds to hire the expert violated the Fourteenth Amendment’s due process guarantee of fundamental fairness. Accord Messer v. Kemp, 831 F2d 946, 960 (11th Cir. 1987); Moore, supra. When viewed from that perspective, it is apparent that the trial court did not abuse its discretion denying appellant funds for a toxicologist.

Decided March 17, 1995 Reconsideration denied March 30, 1995. Worthington & Flournoy, Thomas M. Flournoy, Jr., Douglas L. Breault, Charlotta Norby, for appellant. Douglas C. Pullen, District Attorney, J. Gray Conger, Julia Anne Fessenden, Susan L. Golomb, Assistant District Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.

In support of his motion¹¹ appellant attached his medical record from the Columbus substance abuse program where he had received treatment eight months before the crimes in issue. This record contained the observations of health care professionals who had previously evaluated appellant and diagnosed his cocaine dependency, who were personally familiar with appellant, and who possessed information regarding appellant’s drug usage and considered such usage to pose a “[substantial risk of harm” to appellant and others.

Appellant made no showing why it was necessary that a toxicologist present evidence of the effect of cocaine on appellant’s mentation or how much help this type of defense expert could have given. See Little v. Armontrout, 835 F2d 1240, 1243 (8th Cir. 1987); see also Bowden v. Kemp, 767 F2d 761, 765 (11th Cir. 1985). While a toxicologist’s assistance in this regard would undoubtedly have been beneficial, in light of the presentation to the trial court of this pre-existing information and resources available to the defense, I do not agree that the denial of funds for a toxicologist deprived appellant of his ability to present an effective defense and rendered the trial fundamentally unfair. Hence, I find no abuse of the trial court’s discretion in denying the motion for funds for a toxicological expert.

I am authorized to state that Justice Thompson joins in this dissent.

10 Appellant was diagnosed as depressed with suicidal thoughts whereas Christenson was diagnosed as manipulative and narcissistic; appellant abused cocaine while Christenson abused alcohol; appellant presented only his pre-crime evaluation whereas the trial court in Christenson had both a pre-crime and a post-crime evaluation before it. As to the cocaine abuse, I would note that “the fact of [appellant’s] addiction alone is not enough to make his sanity a ‘significant factor’ at trial and thereby to satisfy the Ake threshold.” Volanty v. Lynaugh, 874 F2d 243, 247 (5th Cir. 1989). As to the post-crime evaluation in Christenson I would note that the only significant item shown therein was that Christenson had sustained a decrease in his IQ level, which was attributed to drug usage.

11 Although this dissent is premised solely on the evidence presented by appellant in support of his motion for funds, I find that even if the entire record is considered, see Volanty, supra at 247, n. 7, the outcome here is not changed.