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BUSH v. STATE12/1/1995
nature
and cause of the charge against him. See Ex parte Tomlin, 443 So.2d 59 (Ala. 1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984) (by entering a plea at arraignment, a defendant waives any irregularities in the indictment unless the indictment is so defective that it leaves the accused unaware of the nature and cause of the charge against him).
For the above reasons, we find no merit in this contention.
X.
The appellant contends that the denial of his request for the state to provide him reasonable funds to employ certain experts deprived him of his constitutional rights to effective assistance of counsel, due process of law, and "reliability in the capital guilt determination and sentencing process." U.S.C.A. Const. Amends. 5, 6, 8, and 14.
The appellant is indigent and was represented at trial by appointed counsel. Before this trial, he filed a motion seeking approval of funds to employ a criminal investigator, a psychologist/social worker, a ballistics expert, a forensic psychologist, and a jury selection expert. He alleged that he wanted a criminal investigator "to investigate the facts and witnesses surrounding the alleged crime"; a psychologist/social worker to develop a social history of the appellant to be used at the sentencing phase of the trial for mitigation purposes, should he be found guilty; a ballistics expert to "help his attorneys attack the findings of the state's expert"; and a jury selection expert to aid counsel in "intelligently" exercising jury challenges. He moved the trial court to hear his motion ex parte, i.e., before the trial court only and without the presence of the prosecution. He subsequently filed a sealed supplement to his motion for funds to secure experts, giving the names of the experts he expected to employ and the estimates of their fees and expenses. He stated in this supplementary motion that he had not located a ballistics expert. A hearing was held on the motion, as supplemented, on August 18, 1988, and the trial court entered an order on September 10, 1988, denying the request for funds to employ a criminal investigator, a psychologist/social worker, and a jury selection expert. The trial court approved funds of $4,000 for employing a forensic psychologist and, although denying funds for a ballistics expert, stated that it would reconsider the request if and when a ballistics expert could be found. The appellant was given an opportunity to file with the court additional information ex parte in written form in support of his motion, but failed to do so.
Section 15-12-21(d) provides that the state will reimburse reasonable expenses incurred in defending an indigent defendant on approval in advance by the trial court. In Dubose v. State, 662 So.2d 1189 (Ala. 1995), the Alabama Supreme Court stated the rule as follows:
"Ake [v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)] and Caldwell [v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)], taken together, hold that a defendant to be entitled to funds to pay for an expert, must show more than a mere possibility of assistance from an expert. Rather, the defendant must show a reasonable probability that an expert would aid in his defense and that the denial of an expert to assist at trial would result in a fundamentally unfair trial.
". . . .
". . . e conclude that the principles enunciated in Ake, and grounded in the due process guarantee of fundamental fairness, apply in a case of nonpsychiatric expert assistance when an indigent defendant makes a proper showing that the requested assistance is needed for him to have 'a fair opportunity to present his d
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