IN THE COURT OF APPEALS OF IOWA
No. 16-1929
Filed September 13, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICHARD LLOYD TATE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Warren County, Kevin A. Parker,
District Associate Judge.
A defendant appeals from the district court’s denial of his application for
an investigator and an expert witness. REVERSED AND REMANDED.
Teresa M. Pope of Branstad Law, P.L.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.
Richard Tate appeals following the district court’s denial of his application
for a court-appointed investigator and an expert witness. Tate claims the district
court erred by denying his application without an ex parte hearing as provided
under State v. Dahl, 874 N.W.2d 348, 353 (Iowa 2016).
I. Background Facts and Proceedings
On July 28, 2016, the State charged Tate with operating while intoxicated.
See Iowa Code § 321J.2 (2016). On September 9, Tate filed an application for a
court-appointed investigator, stating, “Defendant requests appointment of a
court-appointed investigator in this matter, and requests private investigator Scott
Gratias be appointed with a fee limit of $800.00. An investigator is needed for
the purpose of obtaining witness statements and obtaining other exculpatory
information.” The State did not file a resistance, but the court held an unreported
hearing on the application on September 20. That same day, the court filed an
order summarily denying Tate’s application with no explanation given for the
denial.
Eight days later, Tate filed a second application for a court-appointed
investigator and an expert witness “in order to locate additional evidence, and to
review the evidence the State possesses.” In addition, Tate asked for the
application to be filed “ex parte and under seal” and cited the supreme court’s
recent decision in Dahl. An hour after the second application was filed, the court
summarily denied Tate’s second application. Again, the State filed no resistance
to the application.
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On October 13, Tate filed a motion to enlarge, amend, and reconsider the
previous denials along with a motion to submit an offer of proof ex parte and
under seal. Again citing Dahl, Tate asserted an investigator was needed to
speak with witnesses and an expert was needed to testify regarding the field
sobriety tests administered and the metabolization of alcohol. In a separate
motion, Tate indicated his need to file an offer of proof to support his application
ex parte and under seal to provide the court facts to support his need for
investigative services. The court summarily denied both motions the following
day without a resistance from the State.
On November 11, Tate filed an application for discretionary review of the
decisions of the district court. Specifically, Tate alleges the court erred when it
denied him an ex parte hearing according to Dahl protocol. The application was
granted, and the matter was transferred to this court.
II. Scope and Standard of Review
We review the trial court’s decision whether to grant a defendant’s
application for state-funded investigators or experts for an abuse of discretion.
See Johnson v. State, 860 N.W.2d 913, 921 (Iowa Ct. App. 2014); State v.
Barker, 564 N.W.2d 447, 450 (Iowa Ct. App. 1997).
III. Ex Parte Hearing
Tate asserts the district court erred in denying his motion to amend and
enlarge and his second application to have a court-appointed investigator and an
expert witness. Tate asserts the Dahl protocol requires an ex parte hearing to
provide additional information before ruling on the merits of the application. See
874 N.W.2d at 353. The State contends Tate did not meet Dahl’s “some merit”
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standard and was therefore not entitled to an ex parte hearing to further examine
the need for a private investigator or an expert witness at state expense.
In Dahl, our supreme court articulated
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.
Id. The court determined that indigent defendants must file a timely application,
stating the name of the investigator, an estimate as to the cost of services, and, if
possible, a general description of what services the investigator will provide. Id.
Additionally, the court should give the State an opportunity to resist the
application, and if the State resists the application, the prosecutor should have
the right to appear and participate in a hearing regarding the application. Id.
Regarding an ex parte hearing, the Court determined:
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.
Id.
Tate’s first application for an investigator and an expert witness was set
for hearing on September 20. We have no record of what occurred at that
hearing, including whether the State resisted Tate’s application. After the
hearing, the district court summarily denied Tate’s application. It is thus unclear
whether the Dahl protocol was followed. However, Tate does not challenge this
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ruling on appeal. Instead he focuses on the court’s denial of his second
application.
Tate’s second application for an investigator and expert witness was filed
on September 28. Tate’s second application specifically cites the Dahl protocol
and asserts Tate is “unable to afford an investigator and expert witness,” and that
“[t]o deny the motion for an ex parte expert will put Tate in the position of having
to routinely disclose information through the application process solely because
he is indigent, and would violate his constitutional right to counsel.” See id. The
district court summarily denied the application the same day, one hour after it
was filed, without a resistance from the State or a hearing on the application. As
to this motion, it is clear the Dahl protocol was not followed.
Tate’s motion to amend, enlarge, and reconsider also specifically cites the
Dahl protocol and asserts the “State did not resist [the] Application.” See id. The
district court summarily denied Tate’s motion one day later.
Based on the record, we can determine the Dahl protocol was not
followed. The record contains no explanation for each denial filed by the court,
and no resistance from the State has ever been made part of the record. In
addition, with the exception of the unreported hearing on September 20, no
hearing, ex parte or otherwise, has been provided for Tate to demonstrate his
application has “some merit.” Id. We therefore conclude the district court
abused its discretion by denying Tate the opportunity to provide the necessary
factual support for his application for a court-appointed investigator and an expert
witness.
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IV. Conclusion
Because we conclude the district court abused its discretion in denying
Tate’s second application for investigator and an expert witness, we reverse the
district court’s decision, and we remand this matter to the district court to follow
the protocol outlined in Dahl for consideration of such applications.
REVERSED AND REMANDED.