STATE OF NORTH CAROLINA

COUNTY OF STANLY      

IN THE GENERAL COURT OF JUSTICE

      SUPERIOR COURT DIVISION

FILE NO.:

00 CRS 50426

 

                          


                                                      )

STATE OF NORTH CAROLINA              )

                                                      )        MOTION TO BAR IMPROPER     

vs.                                                   )        DEFENSE EX-PARTE ORDERS

                                                      )

Bobby Richard Taylor, Jr                      )

         AKA Jay Kenney,                      )

Defendant     )

                                                      )

 

         NOW COMES THE STATE OF NORTH CAROLINA, by and through the undersigned Assistant District Attorney and Moves the Court to enter an order barring the above named defendant and his counsel from applying for any ex parte orders that are not allowed by law in the above captioned case.  In support of this Motion, the State shows the Court the following:

 

  1. While a defendant does have a constitutional right to an ex parte hearing on the appointment of a mental health expert upon a threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed.2d 53 (1985), such right does not exist for non-mental health experts.  State v. Ballard, 333 NC 515, 428 SE2d 178, cert. denied, 510 US 564 (1993).  Including, the State contends, so called “mitigation experts.”

 

  1. While an indigent defendant’s access to basic tools of an adequate defense is a core requirement of a fundamentally fair trial, the need for an ex parte hearing for expert assistance is not and is only appropriate in limited circumstances.  State v. Phipps, 331 NC 427, 418 SE2d 178 (1992).  In fact, it has been held that an indigent defendant was not entitled, as a matter of right, to an ex parte hearing on a motion for funds to hire a private investigator.  State v. White, 340 NC 264, 277, 457 SE2d 841, 849, cert. denied 516 US 994 (1995).  The Court in White analogized this case to an ex parte hearing for a fingerprint expert and distinguished it from an ex parte hearing for a psychologist or psychiatrist.  Likewise, it has been held that a defendant is not entitled, as a matter of right, to an ex parte hearing on a motion for funds to hire an eyewitness identification expert.  State v. Garner, 136 NC App. 1 (1999). 

 

  1. While the defense may be entitled to an independent expert to examine the evidence, the defendant must make a showing of specific necessity or particularized need for expert assistance.  State v. Tucker, 329 NC 709, 719-20 (1991), State v. Moore, 321 NC 327, 335 (1988).  A generalized assertion of need, or a claim that expert assistance would be beneficial or even essential to preparing the defense, is insufficient to meet the threshold requirements of specific necessity.  State v. Moseley, 338 NC 1 at 20-21 (1994).  To establish a particularized need for expert assistance, a defendant must show that (1) he will be deprived of a fair trial without expert assistance; or (2) that there is a reasonable likelihood that an expert will materially assist him in preparation of his case.  State v. Page, 346 NC 689, 488 SE2d 225 (1997), cert. denied, 522 US 1056 (1998); and,  

 

  1. While indigent defendants in North Carolina have the right to have experts appointed at the State’s expense in criminal cases, the State of North Carolina is not a bottomless pit of money.  Similarly, the District Attorney’s Office, as the State’s representative, has an obligation to conserve the State’s resources as much as possible without denying a defendant’s right to a fair trial.  When the defendant is allowed to make an ex parte motion for experts other than mental health experts, the State is not afforded an opportunity to contest the appointment of unnecessary experts.

 

  1. The District Attorney’s Office does not intend to ask for any ex parte orders, with the exception of orders for additional jurors prior to trial, in the above captioned case.  All we ask is for the same standards of ethics and fairness from the defense. 

 

  1. Should the Defendant seek funds for experts, or other assistance, the State will schedule a hearing on the motions as soon as practical so that the matters can be given prompt and adequate hearing. 

 

WHEREFORE THE STATE RESPECTFULLY PRAYS the Court to Order the defendant in the above captioned case not to seek any ex parte orders not allowed by law without the State being notified and having the opportunity to be heard.

 

         This the _____ day of ______________________, 20_____.

 

 

 

 

                                                      ____________________________________

                                                      Michael D. Parker

                                                      Chief Assistant District Attorney

                                                      20th Prosecutorial District

                                                      Post Office Box 1065

                                                      Monroe, North Carolina 28111-1065

                                                      (704) 289-3340