BUSH v. STATE12/1/1995
efense.' "
Dubose, supra, at 1192-94 (quoting Ake, 470 U.S. at 76, 105 S.Ct. at 1092).
Although the trial court stated that it would reconsider its order denying the funds for a ballistics expert if the appellant found such an expert, the appellant failed to pursue his request with specific information requested by the court. Moreover, we point out the following qualifications:
"The only time a defendant, whether indigent or not, has the right to have an
independent expert examine physical evidence is when such evidence is (1) 'critical' and (2) subject to varying expert opinions. Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975). To be 'critical,' the evidence must be the only evidence linking the accused with the crime or proving an element of the corpus delicti. Hoback v. Alabama, 607 F.2d 680 (5th Cir. 1979). Even if the evidence is indeed 'critical,' it is not subject to independent examination unless it is also subject to varying expert opinion. White v. Maggio, 556 F.2d 1352, 1358 (5th Cir. 1977). This is the law of this state. Gwin v. State, 425 So.2d 500, 508 (Ala.Crim.App. 1982), cert. quashed, 425 So.2d 510 (Ala. 1983)."
Grayson v. State, 479 So.2d 69, 75 (Ala. Cr. App. 1984), affirmed, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985). Here, the appellant confessed that he shot all three victims and led the officers to a pistol which, he told them, was the pistol that he used to shoot the three. The ballistics test showed that the bullets that killed Dominguez and Adams and wounded Holmes were fired from that pistol. Under these circumstances, the ballistics evidence was neither critical nor subject to varying expert opinion.
In regard to the trial court's denial of funds for an investigator to investigate the "facts and witnesses surrounding the alleged crime," there was certainly no reason to approve them. The case had been tried and appealed twice; the witnesses were well known to the defense; and the facts were not only known, but virtually undisputed.
After reviewing the record, we also conclude that the appellant failed to make a sufficient showing that there was a reasonable probability that a psychologist/social worker and a jury selection expert would aid in his defense and that the denial of such experts to assist him would result in a fundamentally unfair trial. His showing in regard to these experts, as with his showing in regard to a criminal investigator and a ballistic expert, was no more than "undeveloped assertions that the requested assistance would be beneficial." Caldwell v. Mississippi, 472 U.S. at 324 n. 1, 105 S.Ct. at 2637 n. 1.
We find that the trial court did not commit error in denying the appellant's motion in part for funds to employ experts.
The appellant further contends that the trial court erred in refusing his request for an ex parte hearing on his motion for funds to employ experts. He argues that had he proceeded in the prosecutor's presence to make a showing of necessity to employ experts, he would have been forced to reveal his theory of defense to the state, which would have deprived him of his privilege against self-incrimination, his right to counsel, and his right to present a defense, in violation of his Due Process and Equal Protection rights. He contends that because of the trial court's refusal to hold an ex parte hearing, he was "prevented from providing the trial court with additional evidence and information, available to him, in support of his requests." He relies principally on Ake v. Oklahoma, 470 U.S. 68, 82-83, 105 S.Ct. 1087, 1097, 84 L.Ed.2d 53 (1985), particularly the Court's reference that "when t
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