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BUSH v. STATE12/1/1995
he defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent." He argues that this language mandates an ex parte hearing.
We do not agree with the appellant that the trial court refused to permit an ex parte hearing. The record shows that the trial court permitted the appellant to file with the court a supplementary motion under seal and afforded him the opportunity to file any additional information he desired in writing ex parte in support of his motion. The record shows, in pertinent part, the following:
"MR. BALSKE [defense counsel]: Has the Court denied the defendant's right to make an ex parte showing, to make this showing?
"THE COURT: No. I said that I will read this [supplementary motion]; and I'll read anything else you want me to look at.
"MR. BALSKE: I think what the defendant is requesting is to put on testimony to the Court.
"THE COURT: I had heard what you said; and I said I would look at anything
you give me. If it's ex parte I might as well read it rather than listen to you saying it. I've read it [supplementary motion] rather than listen to you saying it. Do you understand what I'm saying.
"MR. BALSKE: I understand, Judge.
"THE COURT: I've read your [supplementary motion]; and if you want to give me something else I'll read it. If you are going to have ex parte there won't be anybody to cross-examine. If you haven't got any more to say than what you have on Number 3 [supplementary motion re: a ballistics expert], I overrule you; and I will look at whatever else you have got and reconsider if and when you file something."
We find that this procedure in effect constituted an ex parte hearing. When the trial court afforded him the opportunity to file additional information in writing, he raised no objection to this procedure. Moreover, he had ample opportunity, in fact two years, to file additional information before trial, but did not do so.
Because we find that the trial court did, in essence, afford the appellant an ex parte hearing, we find it unnecessary to address the question whether an indigent criminal defendant's application for funds for expert assistance should be heard outside the presence of counsel for the state. Our appellate courts have not previously addressed this question by published opinion. However, we have granted a writ of mandamus ordering a trial court to provide an ex parte hearing under circumstances similar to those in this case. Ex parte Grimsley, 602 So.2d 1226 (Ala. Cr. App. 1992) (table). We note that other jurisdictions that have addressed this question have required ex parte hearings. See, e.g., Brooks v. State, 259 Ga. 562, 385 S.E.2d 81 (1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1323, 108 L.Ed.2d 498 (1990); People v. Loyer, 169 Mich. App. 105, 425 N.W.2d 714 (1988); Banks v. State, 810 P.2d 1286 (Okla. Cr. App. 1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 883, 116 L.Ed.2d 787 (1992).
The appellant further contends that Alabama's system for compensating attorneys appointed to represent indigent defendants set out in § 15-12-21 is unconstitutional in that it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Sixth Amendment right to counsel, the Fifth Amendment prohibition against unlawful taking of property, the Eighth Amendment prohibition against cruel and unusual punishment, and the parallel provisions of the Alabama Constitution. We find no merit in this contention. The Alabama Supreme Court in Ex parte Grayson, 479 So.2d 76 (A
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