IN THE SUPREME COURT OF IOWA
No. 14–2114
Filed January 22, 2016
STATE OF IOWA,
Appellee,
vs.
ADAM CHRISTOPHER DAHL,
Appellant.
Appeal from the Iowa District Court for Emmet County, Donald E.
Courtney, Judge.
A defendant appeals a district court decision denying his request
for an ex parte hearing to determine whether he is entitled to
appointment of a private investigator at state expense. REVERSED AND
REMANDED WITH DIRECTIONS.
Matthew G. Sease of Kemp & Sease, Des Moines, and John M.
Sandy of Sandy Law Firm, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, and Douglas R. Hansen, County Attorney, for appellee.
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WIGGINS, Justice.
A criminal defendant appeals a district court ruling denying his
request for an ex parte hearing on the merits of his application for
appointment of a private investigator at state expense. We conclude the
defendant was entitled to an ex parte hearing on the merits of his
application. Accordingly, we reverse the order of the district court
denying the request for an ex parte hearing and remand the case with
instructions.
I. Background Facts and Proceedings.
Adam Dahl’s ex-girlfriend accused him of entering her home and
assaulting her. She further complained that he entered her vehicle and
took several items from the vehicle. The State charged Dahl with first-
degree burglary, third-degree burglary, and domestic abuse. See Iowa
Code § 708.2A(1), .2A(3)(b) (2013); id. §§ 713.1, .3(1)(c), .6A(2). The
district court appointed private counsel to represent Dahl after finding
him to be indigent. Dahl entered a written plea of not guilty on all
counts.
The facts that led to these underlying criminal charges are largely
irrelevant to this appeal. This appeal concerns the district court’s
rulings on Dahl’s application for depositions at state expense and his
application for appointment of a private investigator at state expense.
Each application asserted the requested relief was necessary for Dahl’s
counsel to provide him with a proper and effective defense. In the
application for appointment of a private investigator at state expense,
Dahl named a proposed investigator and indicated he sought the
investigator to review the case, conduct an investigation, and prepare a
written report. He approximated the cost for these investigative services
would be approximately $3000.
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The district court granted the application for depositions at state
expense. However, the court did not rule on the application for
appointment of a private investigator at state expense until the State had
a chance to resist the application. The State resisted the application,
arguing it did not indicate the specific defense for which investigation
was necessary to ensure an adequate defense and asserting our caselaw
requires such specification.
The district court ordered a hearing on the merits of the
application for appointment of a private investigator at state expense.
Dahl filed a motion requesting that the prosecutor not attend any portion
of the hearing relating to the necessity of hiring a private investigator to
ensure his adequate defense. He argued disclosing the basis of his need
for an investigator in the prosecutor’s presence would permit the State a
window into his trial strategy to which it was not entitled and violate his
due process rights under the Sixth Amendment of the Federal
Constitution and article I, section 10 of the Iowa Constitution.
At the hearing, the district court permitted defense counsel first to
address the motion requesting the portion of the hearing concerning the
merits of his application to be conducted ex parte. Defense counsel
indicated Dahl required an investigator to interview witnesses and
submitted documents regarding the qualifications of the desired
investigator and an estimate of the anticipated cost of hiring him.
However, defense counsel refused to indicate the names of the witnesses
Dahl sought to interview or why interviewing those witnesses was
relevant to providing Dahl with an adequate defense. Dahl’s counsel
argued that to disclose such information in the presence of the
prosecutor would disclose his trial strategy to the State and violate his
ethical duty to zealously represent Dahl and maintain confidentiality
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concerning attorney–client communications. Counsel also argued such
disclosure would violate Dahl’s right to effective assistance of counsel
under the Federal and State Constitutions.
The district court orally denied the motion for an ex parte hearing
concerning the merits of the application for appointment of a private
investigator, ruling the State had a right to participate in the hearing on
the merits of the application. Immediately thereafter, the court granted a
request to suspend the hearing to permit Dahl to file this interlocutory
appeal. The court also filed a written order denying the motion. In its
written order, the court acknowledged Dahl was required to disclose
specific information concerning what the private investigator would do
during the course of his investigation and how the information obtained
might be exculpatory for the court to grant his application. However, the
court found that permitting defense counsel to disclose such information
in an ex parte hearing outside the presence of the prosecutor to be
inappropriate.
Dahl applied to this court for permission to appeal the district
court order in advance of a final judgment. See Iowa R. App. P. 6.104(1).
We granted the application for interlocutory appeal and stayed the
district court proceedings pending resolution of this appeal.
II. Issue.
This appeal raises the issue of whether a criminal defendant is
entitled to an ex parte hearing in connection with an application for a
private investigator under Iowa Code sections 815.7(1) and (5). Dahl
points out that courts in other jurisdictions have interpreted similar
statutes and procedural rules to mandate ex parte hearings. He argues if
we do not interpret section 815.7 to require ex parte hearings for indigent
criminal defendants who request investigative services, we should find
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criminal defendants have a right to an ex parte hearing under the United
States and Iowa Constitutions.
The doctrine of constitutional avoidance counsels us to construe
statutes to avoid constitutional issues when possible. State v. Iowa Dist.
Ct., 843 N.W.2d 76, 85 (Iowa 2014); Mall Real Estate, L.L.C. v. City of
Hamburg, 818 N.W.2d 190, 200 (Iowa 2012); see Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 345–48, 56 S. Ct. 466, 482–84, 80 L. Ed.
688, 710–12 (1936) (Brandeis, J., concurring). Accordingly, the issue we
will decide is whether we can construe the procedure required under
section 815.7 to allow for an ex parte hearing and avoid any
constitutional issues that may arise under the statute if construed in a
contrary fashion.
III. Scope of Review.
We review questions of statutory interpretation for correction of
errors at law. State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006).
Moreover, the Iowa Constitution provides this court with “supervisory
and administrative control over all inferior judicial tribunals throughout
the state.” Iowa Const. art. V, § 4. In this capacity, this court may
implement protocols to protect the rights of criminal defendants. See
State v. Cashen, 789 N.W.2d 400, 408–10 (Iowa 2010) (implementing a
protocol to allow criminal defendants access to certain mental health
records), superseded by statute, 2011 Iowa Acts ch. 8, § 2 (codified at
Iowa Code § 622.10), as recognized in State v. Thompson, 836 N.W.2d
470, 490 (Iowa 2013); see also In re Judges of the Mun. Ct., 130 N.W.2d
553, 554 (Iowa 1964) (per curiam) (discussing this court’s duty to
exercise its supervisory and administrative powers).
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IV. Discussion and Analysis.
The Iowa Code establishes a procedure whereby indigent
defendants may retain an investigator necessary for the defendant to
present an adequate defense. The relevant statute states:
1. An attorney who has not entered into a contract
authorized under section 13B.4 and who is appointed by the
court to represent any person pursuant to section 814.11 or
815.10 shall be entitled to reasonable compensation and
expenses.
....
5. The expenses shall include any sums as are
necessary for investigations in the interest of justice . . . .
Iowa Code § 815.7(1), (5).
In construing section 815.7, we start with the proposition that the
Sixth Amendment to the United States Constitution requires the State to
pay for reasonably necessary defense services for which indigent
defendants demonstrate a need in order to ensure such defendants
receive effective assistance of counsel. English v. Missildine, 311 N.W.2d
292, 293–94 (Iowa 1981). However, this right is not limitless.
Unless the trial court makes a finding that defense services,
including expert or investigative services, are necessary in the interest of
justice, an indigent defendant is not entitled to receive those services at
state expense. State v. Leutfaimany, 585 N.W.2d 200, 208 (Iowa 1998).
An indigent defendant bears the burden to demonstrate a reasonable
need for such services. State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987).
We discourage courts from allowing the State to pay for defense services
when an indigent defendant merely seeks to embark on a random fishing
expedition in search of a defense. Leutfaimany, 585 N.W.2d at 208.
In order to prevent indigent defendants from using state funds for
this sort of evidentiary exploration, we require the trial court to
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independently review facts asserted by counsel and grant the application
if those facts “reasonably suggest further exploration may prove
beneficial to defendant in the development of his or her defense.” Coker,
412 N.W.2d at 592. Thus, for the court to grant an indigent defendant’s
application for appointment of a private investigator at state expense, the
indigent defendant must inform the court of facts that demonstrate a
reasonable need for investigative services.
When an indigent defendant requests the appointment of a private
investigator, the defendant needs to inform the trial court what the
investigator will do in order to demonstrate a reasonable need for the
services the investigator will provide. This may require the defendant to
disclose facts that will reveal defense counsel’s trial strategy or thought
processes. Without this information, the court may be unable to
determine if the facts asserted by counsel “reasonably suggest further
exploration may prove beneficial to defendant in the development of his
or her defense.” See id. (emphasis omitted).
If the trial court requires defense counsel to make a record of the
facts supporting a defendant’s reasonable need for investigative services
in the presence of the prosecutor, the State could deduce defense
counsel’s trial strategy from those disclosures. Disclosure of the defense
counsel’s trial strategy to the State impairs an indigent defendant’s right
to effective assistance of counsel. Ex parte Moody, 684 So. 2d 114, 120
(Ala. 1996).
Congress foresaw this problem when it enacted 18 U.S.C.
§ 3006A(e)(1), the federal statute that addresses applications for defense
services by indigent defendants accused of federal crimes. Section
3006A(e)(1) expressly permits indigent defendants to apply ex parte for
investigative, expert, or other services necessary for their counsel to
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provide adequate representation. 18 U.S.C. § 3006A(e)(1) (2012).
Legislative history indicates Congress intended the ex parte proceeding
requirement to “prevent the possibility that an open hearing may cause a
defendant to reveal his defense.” H.R. Rep. No. 88–864 (1963), as
reprinted in 1964 U.S.C.C.A.N. 2990, 2990.
“The right to counsel is the right to the effective assistance of
counsel.” State v. Williams, 207 N.W.2d 98, 104 (Iowa 1973). However,
we need not decide whether the trial court’s failure to provide an ex parte
hearing on Dahl’s application for appointment of a private investigator
violated any of Dahl’s constitutional rights because we agree with
Congress that an open hearing may possibly cause a defendant to reveal
his defense.
Accordingly, we exercise our supervisory powers under article V,
section 4 to articulate a protocol to balance the statutory right of an
indigent defendant to the appointment of a private investigator under
section 815.7 against his or her burden to present sufficient information
to the trial court to support the granting of an application for
appointment of a private investigator at state expense. Trial courts
should use this protocol in those rare circumstances when the State
objects to the appointment of a private investigator for an indigent
defendant.
As is presently done, an indigent defendant who seeks
appointment of a private investigator at state expense must file a timely
application. The application should state the name of the investigator
the defendant seeks to retain, an estimate as to what the requested
services will cost and, if possible, a general description of what services
the investigator will provide. The court should then give the State an
opportunity to resist the application. Generally, the State should resist
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an application on the ground that granting the application will prejudice
the administration of justice. Examples of applications that may be
prejudicial to the administration of justice include those that are
untimely or filed to delay the proceeding. The State should not impede
the right of an indigent defendant to fully investigate the case or develop
a valid defense. If the State resists the application, the prosecutor
should have the right to appear and participate in a hearing regarding
the application and the State’s resistance.
When a trial court deems an indigent defendant’s application for
appointment of a private investigator may have some merit but does not
contain adequate information for the court to determine whether it
should grant the application, the court should hold an ex parte hearing
before ruling on the merits of the application. At that hearing, the court
should require the defendant to provide additional information that will
allow it to rule on the merits. If the court holds an ex parte hearing, the
court must report the ex parte hearing. The court must also seal any
transcript or order that would disclose defense strategy or work product
and file a separate order announcing its decision to grant or deny the
application.
This protocol balances the statutory right of an indigent defendant
to obtain a private investigator against his or her burden to present
information to the trial court sufficient to support the granting of an
application for appointment of a private investigator at state expense.
This protocol also allows us to avoid deciding whether the failure of a
court to hold an ex parte hearing implicates any of the defendant’s
constitutional rights.
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V. Disposition.
We reverse the order of the district court denying Dahl’s request for
an ex parte hearing and remand the case to the district court to follow
the protocol contained in this opinion.
REVERSED AND REMANDED WITH DIRECTIONS.