Moore v. State

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In the Circu it Court for H oward C ounty Case No. 13 -K-01-03999 6 IN IN THE COURT OF APPEALS OF MARYLAND No. 28 September Term, 2004 FREDERICK JAMES MOORE v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Bell, C.J., dissents. Filed: December 14, 2005 Petitioner, Frederick James Moore , was con victed by a jury in the Circuit Court for Howard Coun ty of first d egree m urder o f Ash ley Nico le Ma son. Pri or to trial, the State conducted DNA analysis on evidence found at the scene of the crime, and petitioner, who was represented by private counsel but for purposes of the motion was conceded to be indigent, requested s tate-funde d expert ass istance in the f ield of DN A analysis to prepare his defense. The trial court denied petitioner s motion on the grounds that the Office of the Public Defender was not required to pay for an expert when a defendant is represented by private counsel, an d that the trial court had no funds to pay for an expert. The Court of Special Appe als affir med. Moore v. State, 154 Md. App. 578, 841 A.2d 31 (2004). We granted M oore s petition for a writ o f certiorari, to co nsider the fo llowing q uestions: I. Is a criminal defendant who is unable to afford the assistance of a DNA expert, but who has retained private counsel using his limited personal funds, entitled to public funding for ex pert assistance under Article 27A of the Maryland Code where the most extensive te stimony offe red against th e defend ant at trial was that o f the State s D NA ex pert? II. Is a criminal d efendan t who is unable to afford the assistance of a DNA expert, but who ha s retained priv ate counsel u sing his limited personal funds, entitled to pub lic funding for expe rt assistance under the United States and Maryland Constitutions where the most extensive testimony offered against the defenda nt at trial was th at of the Sta te s DNA expert? III. Did the ruling below improper ly limit this Court s decision in Sessom s v. State, 357 Md. 274, 74 A .2d 9 (2000), by denying [petitioner] the opportunity to introduce evidence relating to the past violent acts of a separately tried co-defendan t, where [petitioner s] trial centered on the relative roles of [petitioner] and that co-defendant and [petitioner] s theory of the case was that the co-defendant committed the murder alone? Moore v. State, 381 Md. 674, 851 A.2d 593 (2004). We granted the State s conditional cross-petition, containing the following questions: I. Assuming arguendo that a defendant who has paid for a private attorney using his own funds could, under some circumstances, be considered indigent for constitutional or statutory purposes , did Moo re fail to establish : (1) his indigence in this case, or (2) that a substantial question existed requiring the testimony of a defense DNA expert or that his defe nse could not b e dev elop ed w ithout su ch te stimony? II. Even assuming arguendo that the trial court erred in declining to order either the Office of the Public Defender or the Circuit Court for How ard Cou nty to provide funds to obtain the testimony of Moore s DNA expert, was such error harmless beyond a reasonable doubt where the DNA evidence was essentially cumulative to evidenc e from other sources and where there was overwhelming non-DNA evidence establishing Moore s guilt? III. Is Moore s complaint regarding the exclusion of evidence unpreserved for appellate review where there was no proffer regarding the contents of the evidence and where one of the witnesses Moore wished to cross-examine about alleged prior assaults by his co-defendant answered no when asked if the co-defendant ha d assaulted her? I. Facts On the mornin g of November 3, 2000, a delivery driver discovered a pool of blood in the parking lot of a H oward Coun ty restaura nt. Following a bloody trail into the woods, he discovered the lifeless body of fourteen-year-old Ashley Nicole Mason. The medical -2- examiner later determined the cause of Mason s death to have been multiple stab wounds and strangulation. Petitioner and Sco tt Jory Brill were indicted by the Grand Jury for Howard County for the murder. 1 Pursuant to Md. Code (1974, 1998 Repl. Vol., 2000 Cum. Supp.), § 10-915(c) of the Courts and Judicial Proceedings Article,2 the State served Moore with a timely Notice 1 Brill and Moore were tried separately and each was convicted of the murder of Ashley Mason. 2 Section 10-915(c) of the Courts and Jud icial Proceedings Article pro vides as follows: In any criminal proceeding, the evidence of a DNA pro file is admissible to prove or disprove the identity of any person, if the party seeking to introduce th e evidenc e of a DN A profile: (1) Notifies in writing the other party or parties by mail at least 45 days before any criminal proceeding; and (2) Provides, if applicab le and requ ested in writing, the other party or parties at lea st 30 days before an y criminal proc eeding w ith: (i) First genera tion film copy or suitable reproductions of autoradiographs, dot blots, slot blots, silver stained gels, test strips, control strips, and an y other results generated in the course of the analysis; (ii) Copies of laboratory notes generated in connection with the analysis, including chain of custody documents, sizing a nd h y b r i d iz a t i o n i n f o r m a t i o n, s t a t i s tic a l calcula tions, a n d worksh eets; (iii) Laboratory protocols and procedures utilized in the analysis; (contin ued...) -3- of Intention to Introduce DNA Evidenc e. The State provided Moore with docu ments produced by Cellmark Diagno stics, Inc. ( Cellmark ), detailing results obtained b y Cellmark in its labo ratory ana lysis of ev idence recove red fro m the c rime sc ene. Moore filed a motion captioned Defendant s Motion To Have the Circuit Court for Howard County or the Office of the Public Defender Provide Financial Aid to the Defendant for the Purpose of Providing a DNA Expert to Testify for the De fendant (Fund ing Motion). In addition to a sserting Moore s inab ility to pay for the services of a DNA expert 3 , the Funding Motion contained the following statements: 1. That the defendant is charged with a very serious offense of murder in the first degree. 2. That at no time did the defendant, Frederick Moore, give a statement implicating himself in the offense. *** 5. That . . . defendant s mother, Anita Moore, was able to scrape together $1000.00, said funds which were paid to J. Thomas 2 (...continued) (iv) The identification of each genetic locus analyzed; and (v) A statement setting forth the genotype data and the profile frequencies for the databases utilized. 3 The record indicates that Moore retained counsel using funds he received in a personal injury settlement contemporaneous to his arrest for the instant offense. He asserted that he was c urrently witho ut a job or fu nds to pay for the services of a DNA expert due to his incarce ration pend ing trial. -4- McClintock, Ph.D., a microbiologist and molecular biologist as well as an expert in the field of DNA testing. 6. That counsel for defenda nt sent to D r. McClin tock all of the materials sent to counsel by the Office of the State s Attorney for Dr. McClintock to review. 7. That after his review of the materials, Dr. McClintock provided defendant s counsel with a preliminary opinion regarding the DNA testing used in the case agains t Frederick Moore. *** 10. That the defendant believes he would b e seriously prejudiced if the Cou rt were to de ny his request. 11. That the defendant believes that, BUT FOR THE FACT THAT HE IS POOR AND COMES FROM A POOR FAMILY, he would b e able to hire th e DNA expert which the defendant and his counsel believe would be extrem ely important to h elp explain to the jury that there are two sides to every DNA test result. 12. That the defendant believes that it is prejudicial to him if he is denied the right to have an expert witness testif y on his beha lf while the State is allowed to have an expert witness even though counsel for the State is not required to pay for the services of the DNA expert. 13. That cou nsel for defendant filed with the H onorable Cou rt a Motion to Suppre ss DNA evidence and as pa rt of the memorandum in support of his motion, counsel for defendant listed a number of areas in which mistakes can be made by the State s expert. That unless counsel for the defendant is allowed to have an expert to support the defendant s contention, the defen dant w ill be unj ustly preju diced. -5- In the Suppression Motion to which Moore refers in paragraph 13 of the Funding Motion , Moore stated, in pertine nt part: 9. According to the FBI standards, which have not been established as proof beyond a reasonable doubt to show g uilt, nine of thirteen lo ci are neces sary to establish proof, although again NOT BEYOND A REASONA BLE DOUBT, to show that the DNA recovered at a scene of a crime is associated to a particular GROUP of individuals rather than a specific individual. In fact, when providing results, so called experts of DNA testing will state, among other things, that a person CAN NOT BE EXCLU DED as the person providing the DNA. At no time can the DNA expert state conclusively that DNA evidence can be lin ked conclusively t o any particular person or that a particular person was present at the scene of the crime. 10. That according to the results of the DNA testing, either S cott Brill or Frederick Moore could be included as the provider of the DNA foun d at the scene of the crime but the results do not state conclusively that Frederick M oore was present at the scene of the crime or that the DNA was conclusively the DNA of Freder ick M oore. The C ircuit Co urt den ied the S uppres sion M otion. At a hearing on the Funding Motion , Moore s counsel a gain repres ented to the Circuit Court that M oore co uld not afford a DN A exp ert. With respect to Dr. McClintock, counsel stated: Dr. McClintock has, in fact, worked with me on this case to a degree. We w ere able to come up with so me fund s, initially, to get the doctor to help me with som e preparatio n. His fee is $225.00 per hour, with a minimum of four hours and a maximum of ten hours. I don t anticipate there being ten hours of work here, so I w ould imagine som ewhere between the four and the ten at a c ost of $ 225.00 per hou r. -6- Regarding the usefulness or nece ssity of a DNA ex pert s services in Moo re s case, Moore represented as follow s: [W]e got into all of the DNA testimony and evidence, rather, and it became quite obvious that Mr. Moore would be prejudiced if he were not allowe d to have an expert a s the State was allow ed to have an expert. *** I do feel it s a prejudice to anyone who comes before the Court on a serious matter where experts are necessary. . . . It s just impossible for anyone to prope rly defend a case unless they have th ousan ds and thousa nds of dollars ju st to pay ex perts. The District Pub lic Defen der for C arroll and H oward C ounties app eared at the hearing by the consent of both p arties. She informed the co urt that it was the Public De fender s policy not to prov ide funds for experts in private counsel cases, that she had spoken to her superiors, the Public Defender and Deputy Public Defender, about Moore s case, and that these officials had been unwilling to make an exception to the policy. The State indicated, both in its written response to the Funding Motion and orally at the hearing, that it took no position as to M oore s r equest . Following a brief recess, the court made the following oral ruling: I just confirmed with Judge Leasure, the administrative Judge, that w ith reference to the availab ility of Court funds and she confirms or advises me that there are no Court funds dedicated or available to provide in general for experts in cases where an individual will have private counsel and, specific ally, there are not funds av ailable Court fu nds availa ble to provide for the expert in this ca se. I am mindful of the Appellate Courts of the Fourth Circuit opinion in the Miller case [Miller v. Sm ith,115 -7- F.3d 1136 ( 4th Cir . 1997) , cert. denied sub nom Miller v. Corcoran, 522 U.S. 884, 118 S. Ct. 213, 139 L. Ed. 2d 148 (1997)] that, as I understa nd it, sugges ts that there is a v ehicle afforded in the State of Maryland to provide counsel and the costs incurred an d appeals a nd, as [the D istrict Public Defender] said, the issue in the Miller case was the cost of a tran script but, I think, by analog y, it would apply to a case where a Defendant who has private c ounsel, seeks funds to utilize for an expert in this case. I ll not, since, as I understand it, [defense c ounsel] is privately retained You haven t been referred as this case by the Public Defender and this is not a Panel case if I can use that term and that may not be the correct term you re privately engaged in this case. . . . And I would not direct the Office of the Public Defender to prov ide fees in this case since they are not couns el of rec ord in th e case. So, I ll specifically deny your reques t. Moore did not testify at the trial. His defense, conveyed to the jury by way of argument of co unsel, was that although Moore was present at the scene o f the crime, S cott Brill had acte d alo ne in killin g M ason , while M oore stoo d by, fearing fo r his own lif e. In his opening s tatement to th e jury, defense counsel sta ted as follow s: Was Frederick Moore at the scene when Ashley Mason was killed? Yes. He was. And Frederick Mo ore saw w hat Scott Brill did. . . . Frederick Moore was scared to death. Frederick Moore thought he might be next be cause there was no lo gic to what S cott Bril l did. The State presented testimony that evidence had been collected at or near the crime scene. These items included blood recovered f rom the restaurant parking lot, Ma son s underwear, two d o-rags (head c overin gs) reco vered f rom bu shes ne ar Ma son s b ody, a bloody knife discovered by a garbage collector near the restaurant, clippings from Mas on s fingern ails, and swab s taken from M ason s ankles , vagina , and an us. -8- The State called D r. Robin Cotton, fo rensic lab director for Cellmark. Dr. Cotton first explained the basis and methodology for conducting forensic DNA analysis using the polymerase chain reaction (PCR) method of amplification and short tandem repeats (STR) as genetic markers.4 Dr. Cotton next testified to the results of C ellmark s analysis of the evidence in the instant case. DNA on each of the do-rags was consistent with Frederick Moore s at each of the nine loci tested. Within Moore s racial category, only one individual in 79 billion could be expec ted to exhib it that particular DNA profile. DNA obtained from the inside of the knife was consistent with that of Ashley Mason; DNA obtained from the outside of the knife came fro m multiple s ources. M oore wa s identified a s a possible contributor at six of the nine loci; the outside of the knife was inconclusive as to Brill. The fingernail clippings from Ashley Mason s right and left hands both re vealed a mixture of DNA, with Ashley Mason identified as the primary sou rce. There w ere also indic ations of a m ale as a poss ible source, but no further conclusion could be made. Swabs from Mason s left ankle showed a mixture of DNA, w ith no primary source. Brill was included as a possible source, w hile Moore was excluded as a source. Swabs from Mason s right ankle also revealed a mixture of DNA, with Mason herself as the primary source. The secondary DNA was inconclusive as to Moore and as to Brill, with both men included at four of the nine loci. The vaginal swabs yielded both sperm fractions and non-sperm fractions. The sperm fractions indicated 4 We reviewed this methodology at some length in Young v. State, 388 Md. 99, 106112, 879 A.2d 44, 48-52 (2005 ) . -9- the presence of male DNA, but no further conclusions could be drawn. Sperm fractions recovered from the a nal swab s revealed th at Moo re could be included as a possible source at five of the nine loci; no conclus ion could b e reached on the rem aining fou r loci. 5 A comparison with Sco tt Brill s DN A was in conclusive. Sperm fractions recovered from Mason s underwear revealed a mixture of at least two sources. Although no primary source was determined, Frederick Moore was included as a possible contributor at all nine loci. Within Moore s racial category, approximately one individual in 40,000 could have contributed these sperm fractions. In addition to the DNA evidence, the State presented testimony from an acquaintance of Moore and Brill, Martise Stewart, from Scott Brill s sister, Crystal Brill, and from Moore s cousin and the mother of Brill s child, Danielle Ritter. According to Stewart, Ashley Mason arrived at Stewart s home in the company of Moore and Brill. An altercation broke out, first between Mason a nd Brill, then between M ason and both m en. Stewart observed Brill punch Mason in the face, and then M oore rema rked [j]us t go ahead and hit the bitch, man. Hit her. Stewart went upstairs after this exchange, but heard a lot of loud commotion continue in the basement. Stewart later saw Mason leave with Moore and Brill. At this tim e, Mo ore wa s wear ing a do -rag. Some hours later, Moore and Brill returned to Stewart s house. Moore s butter Timberland boots were like smudged with blood, and blood was smeared on the front of 5 Moore was not charged with any sexual offense. -10- Moore s pants legs. His do-rag was missing. Stewart did not see any blood on Brill, but Brill had lacera tions on bo th arms, like he was in some kin d of like tuss le or som ething. Brill indicated they killed her, and said that Mason had caused his lacerations by scratching him as he choked her. Moore said they both had killed her and they put her behind the Pizza Hut on 108 , or som ewhe re. 6 Moore also said that they had used a buck knife and that he threw the knife and he couldn t find it. Moo re told Stewart that it was almost like daylight outside, but he said he would ve definitely recovered the weapon, but he couldn t, like, find where he threw it at. Crystal Brill identified photogra phs of the knife fou nd by the garb age collector as those of a knife she had bought for Moore at a flea market, and that she knew M oore to carry it in his pocket. Crystal Brill also identified the two do-rags found near Ashley s body as belonging to Moore, explaining that Moore wore two do-rags simultaneously because one had a little rip . She recognized the same rip when the do-rags were shown to her in court. Crystal Brill testified that Moore wore butter-colored Timberland boots prior to the murder, but that she nev er saw him wear thes e boots afte r Ashley wa s killed. In add ition, Crystal Brill testified that after the killing, she saw Moore wiping down the inside of the passenger door on Scott Brill s Ford Esc ort with a rag. Using a photo, Crystal pointed out the area that 6 On cross-examination, Stewart acknowledged that in his grand jury testimony he had probably recounted only Brill confessing to the murder. But Stewart nonetheless mainta ined tha t both m en had in fact c onfes sed. -11- Moore had wiped down, which included the window handle. She had never before seen Moo re wipe down the car in that fas hion. Danielle Ritter testified that some weeks after the m urder, Moore had told her what had happened. On direct examination, Ritter at first testified that Moore had told her Ashley got killed in a pa rking lot, but didn t really say who had killed her. After some prodding by the State, Ritter testified that Moore had said we killed her. On cross-examination, however, defense counsel asked Ritter Freddy Moore never told you he stabbed A shley, did he, and Ritter answered, He don t say who stabbed her. Petitioner was convicted of first degree murder and was sentenced to incarceration for his natural life. He noted a timely appeal to the Court of Special Appeals, which affirmed his conviction. Moore v. State, 154 Md. App. 578, 841 A.2d 31 (2004). Before that court, he argued , inter alia, that the trial court erred in denying his motion requesting funding for a DNA defense expert on the grounds of indigency when he had retained and financed private couns el. He argued that the trial court (and the Public Defender) violated his federal Constitutional rights to due process, equal protection of law, and effective assistance of couns el, as we ll as Ma ryland s s tatutory fra mew ork pro viding legal aid to indig ents. The State argued that any statutory or Constitutional right to State funding for expert testimony was dependent u pon indigency and that becaus e Moo re had retain ed private counsel, he could not be deemed indigent for any purpose. In addition, the State argued that Moore had failed to make th e necessar y showing in the trial court tha t he was in digent. The -12- intermediate appellate court held that Moore was not in digent and was not e ntitled to State funding for the expert. The court stated as follows: [Petitioner] paid to be repres ented by priva te counsel a nd did not seek representation through the public defender. Therefore, [petitioner] is not indigent and is foreclosed from requesting public fundin g for a D NA e xpert, e ither throug h the Pub lic Defender s Office or the lo wer cou rt. That is not to s ay that a defendant who proceeds with private counsel cannot later become indigent, apply for representatio n with the P ublic Defender, and avail himself or herself of the benefits of other necessary services such as an expert witness. We hold only that a defendant who pays for and retains private counsel throughout the adjudicatory process cannot be deemed indigent for purposes of obta ining a p ublically f unded expert w itness. Id. at 592, 8 41 A.2 d at 39. The Court of Special A ppeals also rejected M oore s con stitutional arguments and concluded that the State had complied fully with the requirements of Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). The court reasoned that the evaluation of the samples giving rise to the DNA testimony in this case were impartial, scientific and objectiv e. Moore, 154 Md. App. at 598, 841 A.2d at 42. The court concluded that the State provided expert analysis and any constitutional duty had ended after that point. Id. II. Moore argues before this Court that the federal Constitutional guarantees of effective assistance of counsel, due process of law, and equal protection of law include the right to a defense expert under the circumstances presented herein, without regard to whether an -13- indigent defendant has private counsel. Relying on Ake, he argues that he is entitled to the basic tools of an adequate defense and that where, as here, DNA evidence is likely to be a significant f actor, he sho uld have been afforded expe rt assistance. He argues that the C ourt of Special A ppeals was wrong in concluding that Dr. Cotton, the Cellmark expert, satisfied the State s Co nstitutional ob ligations. He asserts the Dr. Cotton did not assist with M oore s trial preparation of cross-examination and that Moore was at a distinct disadvantage and without an oppo rtunity to prepare a defense in a case in w hich DN A was c entral to the prosecution s case. Moore also a rgues that the trial court and intermed iate appellate court erred in holding th at Moo re was no t entitled to exp ert assistance because he had pr ivate counsel. He maintains that he m ade the requisite show ing under Ake that the issue of DNA would be a significant factor at trial and that he was prejudiced by the denial of these funds to secu re an expert. F inall y, Moore argues th at he is entitled to expert fun ding at State expense pursuant to Md . Code (1957, 20 03 Repl. Vol., 2004 Cum. Supp .), Art. 27A (governing the duties of the Public D efender). 7 He maintains that pu blic funding of exp ert costs is available to indigent defend ants in Maryland witho ut regard to a defend ant s relation ship w ith coun sel or up on acc epting le gal repr esentati on by the Public Defe nder. The State conte nds initially that Moore bore the burden of establishing indigency but failed to do so. Assuming arguendo that Moo re was ind igent, the State argues that Ake is distinguisha ble from the instant case and does not compel the reme dy sought by Moore. It 7 Unless otherwise noted, all subsequent statutory references herein shall be to Md. Code (1957, 2003 Repl. Vol., 2004 Cum. Supp.) Art. 27A. -14- further contends that any Constitutional right to the assistance of a DNA expert was satisfied by the S tate s disclosure to M oore of th e Ce llma rk do cum ents and repo rts du ring discovery. Even assuming that Ake could require the appointment of a S tate-funded DN A expert to an indigent defendant, the State argues that a defendant must establish that a substantial question exists requiring the testimony of a DNA expert or that the defense cannot be developed without expert assistance. It argues that Moore made only general allegations that a defense expert cou ld potentially poin t out mistake s made b y a governm ent expert. With respect to Moore s argument that he is entitled to funding under Art. 27A, the State contends that the statutory framework does not require th e Public Defender to provide expert witness fu nding to a d efendan t represente d by p rivate coun sel. Rather, the State argues, indigent defendants are obliged to seek legal representation by the Public Defender before they are entitled to ancillary services provided through the budget of the Office of the Public Defender (O.P.D.). Finally, the State contends that if there were any error in denying Moo re s fun ding re quest, it w as harm less. III. A. Ake v. Oklahoma In Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), the Supreme Court rev ersed the co nviction an d death sentence of an indigent defendant after the trial court denied his request for a state-funded psychiatric examination. The issue in Ake -15- was whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the off ense is seriou sly in question. Id. at 70, 105 S. Ct. at 1089. Ake was an in digent def endant, ch arged w ith first degree murder an d shooting with the intent to kill. Before trial, his counsel represented to the court that A ke intende d to present an insanity defense. He ask ed the court to arrange fo r a psychiatrist to examine the defendant with respect to his mental condition at the time of the offen se, or to prov ide him with funds to enable the defense to arrange for such a n examin ation. The c ourt denied this request. Conseq uently, Ake h ad no acc ess to a psychiatrist. Based on Ake s bizarre behavior in the courtroom pre-trial, Ake was examined by State psychiatrists to assess his competency to stand trial. The court found Ake to be a mentally ill person in need of care and treatment, incompetent to stand trial, and ordered him committed to the State mental hospital. Six week s later he was fo und to b e com petent a nd ord ered to s tand tria l. Although Ake had und ergone ex tensive cou rt-ordered p sychiatric exam ination with regard to his competency to stand trial, he had neve r been exa mined by a p sychiatrist with res pect to his mental condition at the time of the killings. Ake had entered a plea of not guilty by reason of insanity; his sole defense was lack of criminal responsibility, a defense which, because of indigency, he was obliged to present witho ut the aid of a psychiatric expert. At trial, there was no exp ert testim ony for e ither side as to A ke s san ity at the tim e of the offen se. Id. at -16- 72, 105 S. Ct. at 1 091. Althoug h Ake s c ounsel calle d to the stand and ques tioned the S tate psychiatrists who had examined Ake prior to trial, none co uld testify as to A ke s men tal state at the time of the offense, because none had examined him on that poin t. Id. The jury rejected Ake s ins anity defense and foun d him guilty on a ll counts . Id. at 73, 105 S. Ct. at 1091. The Supreme Court explained as follows: This Court has long recognized that when a State bring s its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This eleme ntary principle, grounde d in significa nt part on the Fo urteenth Amendm ent s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a resu lt of his p overty, a defendant is denied the opportun ity to participate m eaningfu lly in a judicial proceeding in whic h his libe rty is at stake . Id. at 76, 105 S. Ct. at 1092. In recognition of this right, the Court stated, it had reached a series of decisions entitling indigents to v arious services at s tate exp ense. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 8 0 L. Ed. 2d 674 (198 4) (effectiv e assistance o f counse l); Little v. Streater, 452 U.S . 1, 101 S. C t. 2202, 68 L . Ed. 2d 62 7 (1981) (b lood grou ping tests in quasi-crim inal paternity proce edings); Douglas v. California , 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) (assistance of counsel on first direct appeal as of right); Gideon v. Wainwright, 372 U .S. 335 , 83 S. C t. 792, 9 L . Ed. 2d 779 (1963) (assistance of counsel at trial); Burns v. Ohio , 360 U.S. 252, 79 S . Ct. 1164, 3 L. Ed. 2d 1 209 (1959) (w aiver of -17- Notice of Appeal filing fe e); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) (trial transcripts on appeal). The Court further stated: Meaningful access to justice has been the consistent theme of these cases. We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversa ry process, and that a crimina l trial is fundam entally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. Thus, while the Court has not held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might buy, it has often reaffirmed that fundamental fairness entitles indigen t defenda nts to an adequ ate opportun ity to present their claims fairly within the adversary system. To implement this principle, we have focused on identifying the basic tools of an adequa te defense or appea l, and we have required that such tools be provided to those defendants who canno t afford to pay fo r them. Ake, 470 U.S. at 77, 105 S . Ct. at 1093 (citations omitted). In determining whether due process demands a state-furnished psychiatrist under Ake s circumstances, the Court found several fac tors relevant: th e private intere st that will be affected by the action of the State, the governmental interest of the State that will be affected if the safeguard is to be provided, the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguard s are no t provid ed. Id. at 77, 105 S. Ct. at 1093. Finding the defendant s interest in the accuracy of a criminal trial to be a lmost u niquely c ompe lling, the state s interest to be only economic, and the need for psychiatric assistance critical, the -18- Court determined that due process had required provision of a psychiatrist to Ake. The C ourt reasoned as follows: [W]ithout the assistance of a psychiatr ist to conduc t a professional examination on issues relev ant to the de fense, to help determine whether the insanity defense is viable, to present testim ony, and to assist in preparing the cross-examination of a State s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extre mely high. W ith such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determ ination. Id. at 82, 105 S. Ct. at 1096. The Court held as follows: We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum , assure the defendant access to a compe tent psychiatrist w ho will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Id. at 83, 105 S. Ct. at 1096. B. The Scope of Ake In the wake of Ake, severa l questio ns arise. See gene rally Paul C. G iannelli, Ake v. Oklahoma: The Right to E xpert Assista nce in a P ost-Daub ert, Post-DN A World , 89 Corn ell L. Rev. 1305 (2004). These questions include wheth er Ake extends beyond the capital context, whether the right to expert assistance extends beyond the insanity context and to non-psychia tric experts, the nature of the assistance to which a defenda nt is entitled, and the threshold sh owing a defenda nt must m ake to trigge r the right. -19- 1. Application of Ake Beyond the Capital Context Based on language in the concurring opinion of Chief Justice Burger in Ake, some courts have limited the application of Ake to capital cases. See, e.g., Isom v. Sta te, 488 So. 2d 12, 13 (A la. Crim. A pp. 1986 ); Bannister v. State, 726 S.W.2d 821, 828-30 (Mo. App. 1987). Chief Justice Burger stated as follows: The facts of the case and th e question presented confine the actual holding o f the Cou rt. In capital cases the finality of the sentence imposed warrants p rotections th at may or may not be required in other cases. Nothing in the Court s opinion reaches non-ca pital cas es. Ake at 87, 10 5 S. Ct. a t 1098 ( Burge r, C.J., co ncurrin g). The majority of courts tha t have con sidered this q uestion hav e conclud ed that Ake applies to non-ca pital cas es. See Cowley v. Stricklin, 929 F.2d 640, 64 0 (11th Cir. 1991); Little v. Armontrout, 835 F.2d 1240, 12 43 (8th Cir. 1987); Palmer v. State, 486 N.E.2d 477, 481-82 (Ind. 1985); State v. Coker, 412 N.W .2d 589, 59 2-93 (Iow a 1987); State v. Dunn, 758 P.2d 718, 724-25 (Kan. 19 88); Pertgen v. State, 774 P.2d 429, 430 -31 (Nev . 1989); State v. Camp bell, 498 A.2d 330, 332-33 (N.H. 1985 ); People v. Stone, 491 N.W.2d 628, 631-32 (Mich. Ct. App. 1 992); State v. Barnett, 909 S.W .2d 423, 42 7 (Tenn. 1 995); Taylor v. S tate, 939 S.W.2d 1 48, 152 (Tex. C rim. App. 1996). The Tennessee Supreme C ourt reasoned as follows: We agree with the jurisdictions that have applied the Ake principle in the non-capital context because the due process principle of fundamental fairness requires that a State which prosecutes an indigent defendant assure that defendant of a fair -20- opportun ity to present his defense. It is axiomatic that fairness cannot exist where an indigent defenda nt is deprived by poverty of a meaningful opportunity to defend when his liberty is at stake. The due process principle of fundamental fairness applies to all criminal prosecutions, and does not rest upon th e severity of the s anction sough t or impo sed. Barnett, 909 S .W.2d at 428. We agree, and conclude that Ake extends b eyond the ca pital context and applies to non-ca pital cas es. 2. Application of Ake Beyond the Insanity / Psychiatric Context The next question that arises is whe ther Ake is restricted to cases in which the defendant s sanity is at issue. Th e majority of co urts have co ncluded th at Ake extends beyond psychiatr ic expe rts. See, e.g., Terry v. Rees, 985 F.2d 283, 284 (6th Cir. 1993) (pathologist); Dunn v . Roberts, 963 F.2d 308, 313 (10th Cir. 1992) (battered-spouse syndrome expert); Scott v. Louisiana, 934 F.2d 631, 633 (5th Cir. 1991) (ballistics expert); Little v. Armontrout, 835 F.2d 1240, 12 43 (8th C ir. 1987) (hypn otism expe rt); Ex parte Moody, 684 So. 2d 11 4, 118-19 (Ala. 1996) (applicable to no n-psychiatric experts generally); Ex parte Dubose, 662 So. 2 d 1189, 1 194 (Ala . 1995) (D NA ex pert); Ex parte Sanders, 612 So. 2d 1199, 1201-02 (Ala. 1993 ) (ballistics expe rt); Prater v. Sta te, 820 S.W.2d 429, 439 (Ark. 1991) (D NA ex pert); Doe v. Superior Court, 45 Cal. R ptr. 2d 888 , 892-93 (C al. Ct. App. 1995) (experts on battered spouse and post-traumatic stress syndromes) ; Cade v. S tate, 658 So. 2d 550, 555 (Fla. Dist. Ct. Ap p. 1995) (D NA ex pert); Bright v. Sta te, 455 S.E.2d 37, 50 (Ga. 1995) (toxicolog ist); Crawfo rd v. State, 362 S.E.2 d 201, 20 6 (Ga. 19 87) (serolog ist, -21- psychologist, survey expert); Thornton v. State, 339 S.E.2 d 240, 24 0-41 (Ga . 1986) (fo rensic dentist); People v. Lawson, 644 N.E.2d 1172, 1192 (Ill. 1994) (fingerprint and shoe print experts); James v . State, 613 N.E.2d 15, 21 (Ind. 19 93) (blood spatter expe rt); State v. Coker, 412 N.W.2d 589, 593 (Iowa 19 87) (expe rt to assist with intoxication defense); State v. Carmouche, 527 So. 2d 307, 307 (La. 1988) (fingerprint e xpert, serolog ist); Polk v. State , 612 So. 2d 38 1, 393 (M iss. 1992) (D NA ex pert); State v. Huchting, 927 S.W.2d 411, 419 (Mo. Ct. App. 1996) (D NA ex pert); People v. Tyson, 618 N.Y.S.2d 796-97 (N.Y. App. Div. 1994) (voiceprint e xpert); State v. Bridges, 385 S.E.2d 337, 339 (N.C. 1989) (fingerprint expert); State v. Moore, 364 S.E.2d 648, 656-58 (N.C. 1988) (pathologist, non-psychiatrist physician, fingerprint expert); State v. Mason, 694 N.E.2d 932, 944-45 (Ohio 1998) (nonpsychiatric experts generally); Rogers v . State, 890 P.2d 959, 966 (Okla. Crim. App. 1995) (any expert necessary for adequ ate defense); State v. Rogers, 836 P.2d 1308, 1315 (Or. 1992) (opinion polling expert); State v. Edwards, 868 S.W.2d 682, 697 (Tenn. Crim. App. 1993) (DNA expert); Taylor v. S tate, 939 S.W.2d 148, 153 (Tex. C rim. App. 1996) (D NA expe rt); Rey v. State , 897 S.W.2d 33 3, 338-39 (Tex. C rim. App. 1995) (fo rensic pathologist). The United States Supreme Court has not addressed this issue; in Caldwell v. Mississippi, 472 U.S . 320, 86 L . Ed. 2d 23 1, 105 S. C t. 2633 (19 85), the Co urt did not ru le explicitly on whether the state had an obligation to appoint other than a psychiatric expert for an indigent defendant. The Court denied the defendant s request for the appointment of a criminal investigator on the grounds that the defendant made no showing as to the -22- reasonableness of his request and had o nly genera lly asserted a need . Id. at 323 n.1, 105 S. Ct. at 26 37 n.1. The United States Court of Appeals for the Eighth Circuit addressed the question and concluded that there is no principled way to distinguish between psychiatric and nonpsychiatric experts. Little v. Armontrout, 835 F.2d 1240, 1243 ( 8th Cir . 1987) , cert. denied, 487 U.S. 1210, 101 L . Ed. 2d 894, 108 S . Ct. 2857 (1988). Th e court focused the issue as follows: The question in each case must be not what field of science or expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given. *** Letrice Little demonstrated that an expert in hypnosis would have substantially aided his defense, and that the denial of such expert w ould an d did ha ve a m aterial im pact on his trial. Id. at 1243 -44. In balancing the interests of the parties, the Supreme Court reasoned that the defendant s interest is in the accuracy of [the] cr iminal p roceed ing, and that the host of safeguards fashioned . . . over the years to diminish the risk of erroneous conviction stands as a testament to that concern. Ake at 78, 105 S. Ct. at 1093. Wrongful convictions are not limited to cases involving psychiatric issues. Where the defendant s mental state excuses an otherwise criminal act, a psychiatrist often will be the relevant expert. But where the defendant s guilt turns on the interpretation of physical evidence within the competence of -23- some other profession or learned field, an expert in that area may be no less indispensable. Acc ordingly, we join the vast majority of those jurisdictions having considered this issue and hold that the right announced in Ake is not limited to providing psychiatric experts. The principles enunciated in Ake apply in cases of non-psychiatric expert assistance when an indigent defendant makes the requisite showing that the requested assistance is needed for him or her to have a fair opportunity to present his defense. Ake, 470 U.S. at 76, 105 S. Ct. at 1092. C. Establishment of the Right to Expert Assistance 1. The Necessary Showing We turn now to another issue left substantially unresolved in Ake the level and specificity of the threshold showing a defendant must make to estab lish entitlement to expert assistance. Most courts that have considered the question of whether an indigent is entitled to public funded appointment of a non-psych iatric expert ha ve applied the rationale expressed by the Supreme C ourt in Ake. Reading Ake and Caldwe ll together require that the State provide indigent defendants with the basic tools of an adequate defense, Ake, 470 U.S. at 77, 105 S. Ct. at 1093, and, when the required showing is made, require the appointment of non-p sychiatric expe rts. Due pro cess and e qual protec tion require th e State to provide non-psychiatric experts to indigent defendants when the defendant makes a particularized showing of the need for assistance of such experts. See, e.g., Little v. Armontrout, 835 F.2d 1240, 12 45 (8th C ir. 1987); Moore v. Kemp, 809 F.2d 702, 712 (11th -24- Cir. 1987); Kenned y v. State, 578 N.E.2d 6 33, 640 (Ind. 1991 ); State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987 ); Harrison v. State, 635 So. 2 d 894, 90 2 (Miss. 19 94); Polk v. State , 612 So. 2d 381, 393 (Miss. 199 2); State v. Mills, 420 S.E.2 d 114, 11 7 (N.C. 19 92); State v. Edwards, 868 S.W.2d 682, 697 (Tenn. Crim. App. 1993); Rey v. State , 897 S.W.2d 333, 343 (Tex. Crim. Ap p. 1995). It is clear that Ake does not mandate handing over the State s checkbook to indigent defenda nts and their a ttorneys. The S upreme C ourt reiterated th at it has neve r held that a State must purchase for the indigent defendant all the assistance that his wealthier counterpart might b uy, see Ross v . Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974) but had rather focused on identifying the basic tools of an adequate defense or appeal. Ake at 77, 105 S. Ct. at 1093 (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431 , 433 , 30 L . Ed. 2d 400 (1 971)). Si gnif ican tly, the Court s holding in Ake was predicated on the defendant having demonstrat[ed] to the trial judge that his sanity at the time of the offense is to be a significant factor at trial. Ake at 83, 105 S. Ct. at 1096. Thus, in Caldwe ll, the Court terminated its inquiry when it found that petitioner offered little more than undeveloped assertions that the requested assistance would be beneficial. Caldwe ll, 472 U.S. at 323 n.1, 105 S. Ct. at 2637 n.1. The test that seems to have been adopted by the majority of courts considering the issue is the one enunciated by the United States Co urt of Ap peals for the Eleventh Circuit in Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987) . The cou rt conclude d that Ake and Caldwe ll -25- require that a defendant must show the trial court that the re exists a reas onable probability both that an expert would be of assistance to the defense and that denial of expert assistance would result in a funda menta lly unfair tr ial. Id. at 712. The court explained as follows: [A] defendant must show the trial court that there exists a reasonab le probability both that an expert w ould be of assistance to the defense and that denial of expert assistance would re sult in a fundam entally unfair trial. T hus, if a def endant wants an expert to assist his attorney in confronting the prosecution s proof by preparing counsel to cross-examine the prosecution s experts or by providing rebuttal testimony he must inform the court of the nature of the prosecution s case and how the requested expert would be useful. At the very least, he must inform the trial court about the nature of the crime and the evidence linking him to the crime. By the same token, if the defendant desires the appointment of an expert so that he can present an affirmative defense, such as insanity, he must demons trate a substantial basis for the defense, as the defendant did in Ake. In each instance, the defendant s showing must also include a specific description of the expert or experts desired; without this basic info rmation, the c ourt wou ld be unab le to grant the defendant s motion, because the court would not know what type of expert was needed. In addition, the defendant should inform the court why the particular expert is nece ssary. We recognize that defense counsel may be unfamiliar with the specific scientific theories implicated in a case an d therefore cannot be expec ted to provid e the court w ith a detailed ana lysis of the assistance an appointed expert might provide. We do believe, however, that defense counsel is obligated to inform himself about the sp ecific scientif ic area in question and to provide the court with as much inf ormation a s possible concerning the usefulness of the requested expert to the defen se s cas e. Id. at 712. -26- We agree with this formulation, and join those c ourts tha t have a dopted it. See, e.g., Page v. Lee, 337 F.3d 411, 416 (4th Cir. 200 3); Williams v. Collins, 989 F.2d 841, 845-46 (5th Cir. 1993) ; Kordenbrock v. Scroggy, 919 F.2d 109 1, 1104 (6 th Cir. 1990 ); Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir. 1987); Tyson v. Keane, 991 F. Supp. 314, 324-25 (S.D.N.Y. 1998); U.S. v. Ndanyi, 45 M.J. 315, 319 (C.A.A .F. 1996); State v. Apelt, 861 P.2d 634, 651 (Ariz. 1993); Crawfo rd v. State, 362 S.E.2d 201, 206 (Ga. 198 7); Cade v. S tate, 658 So. 2d 550, 5 53 (Fla. D ist. Ct. App. 1 995); State v. Touchet, 642 So. 2d 1213, 1216 (La. 1994); Taylor v. S tate, 939 S.W.2d 14 8, 152 n.3 (Tex. C rim. App. 1996). The manner in which the defendant may make this required showing will depend necessarily upon the purpose for which the defendant seeks the expert assistance. For example, if the defendant seeks an expert in order to confront the prosecution s proof, the defendant must info rm the cou rt how the expert w ould be us eful in light of the prosecution s case. Moore v. Kemp, 809 F.2d at 71 2. Th is is n ot to say that a defend ant must pr edict to a certainty every detail of the prosecution s theory, or display a highly sophisticated understanding of the con tribution the re quested ex pert wou ld make to the def ense. Defense counsel does have, however, an obligation to become informed of the specific scientific area in question in o rder to expla in the neces sity of any requeste d expert to the court. Id. at 712. The analysis of whether a defendant has fulfilled this obligation will be a d ynamic one, dependent on the amount of d iscovery received, the extent to which a likely prosecution -27- theory is obvious, the complex ity of the scientific o r technical issu es, and othe r case-spec ific factors. For example, the Moore v. Kemp court opined: In a jurisdiction . . . which accords the defendant substantial discovery rights, the defendant should have no difficulty in demonstrating the theory of the government s case and outlining the evidence the prosecutor will probably present at trial. The difficulty of the defendant s task will vary depending on the scope of the jurisd iction s d iscove ry rules. In a jurisdiction still employing trial by ambush, the defendant might have to ask the court to make the prosecutor disclose the theory of his case and the results of any tests that may have been performed by govern ment e xperts o r at the go vernm ent s req uest. Moore v. Kemp, 809 F.2d at 712 n.10 (citations omitted). 2. Availab ility of Ex Parte Proceedings The Supreme Court, in Ake, referred to an ex parte hearing, stating that [w]hen the defendant is able to make an ex parte threshold showing to the trial co urt that his san ity is likely to be a significant factor in his defense, the need for th e assistance o f a psychiatrist is readily apparent. Ake, 470 U.S. at 82-83, 10 5 S. Ct. at 1096. Defendants may be required to reveal to the court the defen se theory in order to demon strate entitlement to expert assistance. A defendant may request that these disclosures be made ex parte. Paul C. Gianelli, Ake v. Oklahoma: The Righ t to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Corn ell L. Rev. 1 305, 133 8, 1402-1 404 (200 4); see generally Kimberly J. Winbush, Right of Indigent Defendant in State Criminal Prosecution to Ex Parte In Camera Hearing on Request for State-Funded Expert Witness, 83 A.L.R.5th 541 (2000). -28- Courts have split as to the necessity of ex parte hearing s. Several states have statutes requiring an ex parte hearing when an indigent defendant requests appointment of an expert. See, e.g., Minn. Stat. § 611.21 (2003); S.C. Stat. § 16-3-26(c) (2003); Tenn. Code Ann. § 40-14-207(b) (2003); Nev. Re v. Stat. Ann. § 7.135 (M ichie 1998); N.Y. C ounty Law § 72 2-c (Consol. 1977). The courts in Alabama, Arkansas, Florida, Georgia, Hawaii, Indiana, Michigan, Oklahoma, Tennessee, Texas, and Washington have held that an ex parte hearing is required. See Ex parte Moody, 684 So. 2d 114 , 120 (Ala. 1996); Wall v. State , 715 S.W.2d 208, 209 (Ark. 1986); Brooks v . State, 385 S.E.2d 81, 83- 84 (G a. 1989 ), cert. denied, 494 U.S. 1018, 110 S. Ct. 1323, 108 L. Ed. 2d 498 (1990); Arnold v. Higa, 600 P.2d 1383, 1385 (Haw. 1979); Stanger v . State, 545 N.E .2d 1105 , 1115 (Ind . App. 198 9); People v. Loyer, 425 N.W.2d 714, 722 (Mich. C t. App. 198 8); McG regor v. Sta te, 733 P.2d 416, 416-17 (Okla. Crim. App. 1987); Barnett, 909 S.W.2d at 428; Williams v . State, 958 S.W.2d 186, 192-94 (Tex. Crim. Ap p. 1997); State v. Newcomer, 737 P.2d 1285 , 1291 (Wash. C t. App. 1987). The courts in Arizona , South Dakota, and Virginia have held that whether to hold an ex parte hearing is w ithin the trial cou rt s discre tion. See State v. Ape lt, 861 P.2d 634, 650 (Ariz. 1993); State v. Floody, 481 N .W.2d 242, 254-56 (S.D. 1992 ); Ramdass v. Comm onwea lth, 437 S .E.2d 5 66, 571 (Va. 19 93), vacated on other grounds, 512 U.S. 1217, 114 S. Ct. 2701, 129 L. Ed. 2d 8 30 (1994 ). Louisiana requires a an indigent de fendant to show that he or she would be prejudiced if the hearing was not held ex parte. State v. -29- Touchet, 642 So. 2d 1213, 1220 (La. 1994). The North Carolina Supreme Court has held that an ex parte hearing is required when the request is for a psychia trist, State v. Ballard, 428 S.E.2d 178, 180 (N.C. 1993), but not required when the request is f or a non-p sychiatric expert. State v. Phipps, 418 S.E.2d 178, 19 0-91 (N.C. 199 2). We believe the b etter view is that an ex parte hearing, w hen timely requ ested, is required. See gene rally Justin B . Shane , Money Talks: An Indigent Defendant s Right to an Ex Parte Hearing for Expert Funding, 17 Cap. Def. J. 347 (2005 ); Gian nelli, supra, at 140304. Indigent de fendants seeking state funde d experts sh ould not b e required to disclose to the State the theo ry of the defe nse whe n non-ind igent defe ndants are not required to do so. See, e.g., Barnett , 909 S.W.2d at 428 (holding that [i]ndigent defendants who must seek state-funding to hire a[n] . . . expert should not be required to reveal their theory of defense when their more affluent counterparts, with funds to hire experts, are not required to reveal their theory of defense. ) In Moody, the Alabama Supreme Court discussed this issue as follows: Requiring an indigent defendant to prematurely disclose evidence in a hearing where the state is present encroaches on the privilege again st self-incrimin ation, whic h applies at a ll stages of a criminal proceeding. The privilege against self-incrimination does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lea d to prosecution, as well as evidenc e which a n individua l reasonably believes could be used against him in a crimina l prosec ution. Maness v. Meyers, 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L. Ed. 2d 574 (19 75). -30- There should be equality between indigents and those who possess the means to protect their rights. United States v. Tate, 419 F.2d 131 (6th Cir.1969). An indigent defendant should not have to disc lose to the state informatio n that a financ ially secure defen dant w ould no t have to disclose . Moody, 684 So.2d at 120. We agree. IV. Article 2 7A and State Fun ding of E xperts Before considering whether the State had a constitutional duty to fund Moore s request, we must address Moore s contention that it had a statutory duty to do so through the O.P.D. Moore contends that Art. 27A, which governs the powers and responsibilities of the Office of the Pu blic Defe nder, man dated that the Public Defender fund his request even though he was not a client of the O.P.D. We must resolve whether Article 27A requires the O.P.D. to provide the services petitioner requests without concomitant representation by the Office. The State contends that Art. 27A should be read to provide that the duty of the Public Defender to provide related necessary serv ices conn ected with representatio n of indige nts need be furnished to an indigent de fendant o nly if the O.P.D . is representing that defen dant. The General Assembly of Maryland, in setting up the O.P.D., declared that it was establishing that agency with the policy and legislative intent to provide for representation of indigents in criminal and juvenile proceedings, including related necessary services and facilities. Art. 27A § 1. Indigent is defined as follows: Indigent means any person taken into custody or charged with a serious crime . . . who under oath or affirmation subscribes and -31- states in writing that he is financially unable, without undue hardship, to provide fo r the full payment of an attorney an d all other n ecessa ry expen ses of le gal repr esentati on. Art. 27A § 2. A rt. 27A § 4(a), sets out the duty of the O.P.D. to provide legal representation as follows: It shall be the p rimary duty of the Public Defender to provide legal representa tion for any indigent defendant eligible for services under this article. Legal representation may be provided by the Public Defender, or, subject to the supervision of the Public D efender, b y his deputy, by district public defenders, by ass istan t pub lic de fend ers, o r by pa nel a ttorn eys as here inafter p rovide d for. Eligibility for the services of the O.P.D. is determined on the basis of the need of the defenda nt. Art. 27A § 7(a). The reasonable value of any services rendered to a defendant pursuant to Art. 27A constitutes a lien on real and personal property in which the defendant has or a cquires an intere st in, exc luding his or he r residen ce. Art. 2 7A § 7 (d). The statute is silent as to whether representation by the O.P.D. and ancillary services are severable. The Court of Special Appeals addressed this issue and held that the dual services provided by the public defender are not severable. Moore, 154 Md. App. at 592, 841 A.2d at 39. The intermediate appellate court explained as follows: We agree with those states w hich hold th at the dual services provided by the pub lic defe nder ar e not se verable . The language of Art. 27A § 2, defining indigent as a person unable to provide for the full payme nt of a attorney and all other necessary expenses of legal representation, is a unified enactment and does not contemplate that a defendant could be indigent for purposes of all other necessary expenses and yet able to retain private counsel. We adopt Kentucky s position that, [u]nder -32- this definition and the general ten or of the en tire Act, inability to obtain cou nsel and ina bility to obtain necessary services go hand in hand. Thus, any funding for the necessary services associated with representation are conditioned upon represe ntation b y the Pub lic Def ender. Moore, 154 M d. App . at 592, 8 41 A.2 d at 39 ( citations omitted ). We agree with the Court of Special Appeals and hold that the O.P.D. is not required to pay for expert assistance or other ancillary services if the defendant is not represented by the O.P.D. (or a panel attorne y assigned by the O.P.D.). The operative part of the statutory definition of indigent contained in Art. 27A is that the defendant is financially unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of legal representation. The services provided by the O.P.D. are not severable. In order for the def endant to qualify for the benefits provided under the Act and thereby require the O.P.D. to pay for services, the defendant must be without ind ependen t means to o btain counsel. V. Satisfaction of Moore s Ake Rights in the Instant Case A. Provision of Expert Services Through the O.P.D. The bottom line question in th is case is whether the State has satisfied its constitutional obligations b y establishing the O.P.D., m aking exp ert services av ailable to clients of that Office, and requiring that, in order for an indigent to receive State-funded expert services, the d efendan t must seek representation by O.P.D. We conclude that the State -33- has not deprive d petitioner o f any of his constitutional rights by requiring that he apply to the O.P.D. for representation before he is entitled as an indigent to State funded expert witness services. The Supreme Court contemplated in Ake that States could place restrictions on indigent defendants access to state-funded expert services. The Court stated as follows: This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose w e have disc ussed, and as in the case of the provision of counsel we leave to the State the decision on how to imple ment th is right. Ake, 470 U.S. at 83, 105 S. Ct. at 1096. Thus, while a State might provide funds enabling indigent defendants with retained counsel to hire experts of their own choosing, Ake does not require this approach. Moore is correct that, if he is indigent, he has a right unde r Ake to state-paid supporting services necessary to an adequate defense. 8 As w e have indicate d, supra, Maryland has established a State-wide public defender system which provides legal representation, investigative services, and expert assistance to persons deemed indigent under Art. 27A § 2. In 1971, the Legislature created the Offic e of the Public Defe nder. See 1971 Md. Laws, Ch. 209 at 486-94. The purpose of the statutes creating that agency w as set forth as follows: 8 We do not reach the question of whether Moore made the required showing, as discussed supra, that the service s he reque sted were in fact nece ssary to an adequate defense. -34- It is hereby dec lared to be the policy of the State of Maryland to provide for the realization of the constitutional guarantees of counsel in the rep resenta tion of in digents , including related necessary services and facilities, in criminal an d juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, and to authorize the Office of Public Defender to administer and assure enforcement of the p rovision s of this a rticle in ac cordan ce with its terms. Art. 27A § 1 (em phasis added). State v. Miller, 337 Md. 71, 651 A.2d 845 (1994), is instructive on the question of whether the State may condition the receipt of constitutionally mandated services on representation by the O.P.D. The indigent petitioner in that case, Bernard Miller, had been convicted at trial of kidnapping, robbery, murder, and other related offenses. On appeal, as at trial, he was represented by private counsel on a pro bono basis. Miller had refused the representation of the O.P .D., and fu rther refuse d to permit his attorney to seek appointment as an assigned public defender and thereby submit to the supervision of the O.P.D. Had Miller s counsel taken this step, the O.P.D. would have borne the costs of obtaining a stenographic transcript of the trial proceedings. Id. at 74-75, 651 A.2d at 846. Miller filed in the Circuit Court a motion requesting that the court furnish a transcript without charge. The Circuit Court denied the motion on the grounds that Md. Rule 1-325(b) required the c ourt to pa y for a transcrip t only where a party was eligible for O.P.D. representation, had applied t o the O.P .D., a nd had been d eclin ed re pres enta tion by that agenc y. Id. at 75, 651 A.2d at 846. -35- On appeal, Miller argued that the requirement that he be represented by, or denied representation by, the O.P.D. before receiving a free transcript violated his rights to equal protection and assistan ce of cou nsel. We affirmed the Circuit Court. After ruling that the court had correc tly interpreted M d. Rule 1-325(b), we no ted that under Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (195 6), the Equal Protection Clause of the Fourteen th Amendment to the Unite d States C onstitution pro hibits a state fro m foreclo sing all opportun ity for appella te review b y refusing, bas ed solely on a d efendan t s indigence , to provide a trial transcript. But we also noted that Justice Black, in his plurality opinion, stated, We do not hold, however, that Illinois must purchase a stenographer s transcript in every case where a defendant cannot buy it. The [Illinois] Supreme Court may find other means of affording adequate and effective appellate review to indigent defendants. Id. at 20, 76 S. Ct. at 591. We then noted that [a]llowing the states to create reasonable alternative systems by which the constitutional rights of indigents would be protected is a concept that has been applied to o ther rights of indigent defendants as well. Miller, 337 Md. at 83, 651 A.2d at 850. With respect to equal protection, we concluded as follows: Miller is entitled to a fre e transcript, but he cannot receive it on his own terms; he must go through the Office of the Public Defender. The State is free to place reasonable restrictions on the exercise of Miller s rights, and Rule 1-325(b) is neither arbitrary nor unreasonable in its language or application. There can be no equal protection violation when an individual is denied a right simply because of his own failure to com ply with reason able stat e proce dures a nd regu lations. -36- Miller, 337 Md. at 85-86, 651 A.2d at 852. Turning to Miller s Sixth Amendment claim, we noted that the Supreme Court has held that although an indigent criminal defendant enjoys the right to assistance o f counse l, this entitlement does not translate into an abso lute right to counsel of the def endant s choosing. Id. at 86-87, 65 1 A.2d a t 852; see Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1 697, 100 L. Ed. 2d 1 40 (1988 ) ( the essen tial aim of the Amen dment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers ); accord Fowlkes v. State, 311 Md. 586, 605, 536 A.2d 1149, 1159 (1988) ( for indigent defendants . . . the right to counse l is but a right to e ffective leg al representa tion; it is not a righ t to representation by any particular attorney ). We concluded as follows: Failure to provide a free transcript to the indigent appellant cannot interfere with the right to choice of counsel where no such absolute right exists. In the absence of such a righ t to choice of couns el, there is no constitutional violation when the State requires that an indigent defendant avail himself of the services of the Office of the Public Defender in order to obtain a free transc ript. The State has set up a system by which all indigent appellants are provided effective assistance of counsel, whether represented by the Public D efender s Office o r by a private attorney under the supervision of that office. Miller cannot pick and choose w hich of the State-prov ided services he w ishes to receive; he must accept the available resources as provided under Art. 27A and the Maryland Rules. Miller has not been denied his right to assistance of counsel, be cause he m ay apply to the Office of the Public Defender and receive effective representation. The Public D efender system is Ma ryland s -37- alternative solution as described in Griffin and Bounds [v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 84 (1977)], supra. Public Defender representation, like a transcript, is part of the package provided by the State, and requiring M iller to comply with reasonable State procedures in no way infringes upon h is right to assistan ce of c ounse l. Miller, 337 Md. at 87-88, 651 A.2d at 853. The United States Court of Appeals for the Fourth Circuit, sitting en banc, agreed with our holding on federal habeas corpus review. Miller v. Smith, 115 F.3d 1136 (4th Cir. 1997) (en banc), cert. denied sub nom. Miller v. Corcoran, 522 U.S. 884, 118 S. Ct. 213, 139 L. Ed. 2d 148 (1997). Our holding in Miller governs the outcome of the case sub judice. Although the Maryland Rules contain no analogue to Md. Rule 1-325(b) with respect to the appointment of experts, the practical effect of nonseverable O.P.D. services under Art. 27A is the same. Indigent defendants may utilize the O.P.D. s complete package of services, or forgo them entir ely. While such defendants may face difficult choices, the Constitution does not bar the State of Ma ryland from re quiring them to choose between counsel o f their choice and ancillary services provided by the O.P.D. Assuming arguendo that the assistance of a DNA expert was nece ssary to an adeq uate defense in the instant case, the State did not deny M oore that assistance. Rather, exp ert assistance was available to him so long as he complied with the procedural requirement that he apply for legal representation through the O.P.D . Imposing this requiremen t on Moore did not vio late his c onstitutio nal righ ts. See Wheat, 486 U.S. at 159, 108 S. Ct. at 1697; -38- Bounds v. Smith, 430 U.S. 817, 830 , 97 S. Ct. 14 91, 1499 , 52 L. Ed. 2 d 84 (197 7); Fowlkes, 311 Md. at 605, 536 A.2d at 1159. B. Insufficiency of Discovery and Cross-Examination Alone Although we affirm the judgment of the Court of Special Appeals, we disag ree with one significant aspect of its op inion. The intermediate app ellate court agreed with the S tate s contention that Moore s con stitutional rights were satisfied by the State s disclosure of the Cellmark docume nts and rep orts during d iscovery. The court stated a s follows: [T]here is nothing to indicate that Cellmark s evaluation of the samples was not impartial, scientific, and objective. Add ition ally, appellant s counsel was provided with all the DNA docume nts and rep orts generated by Cellmark prior to trial in order to prepare a defense. Thus, the S tate provided expert analysis and any constitutional duty had en ded af ter that p oint. Moore v. State, 154 M d. App . 578, 59 8, 841 A .2d 31, 4 2 (200 4). The intermediate appellate court based its holding in part on Johnson v. State, 292 Md. 405, 439 A.2d 54 2 (1982), in which we held that a defendant found by the trial court to be competent to stand trial fo llowing a c ourt-ordere d evaluatio n by psychiatrists at a S tate hospital was not entitled to a private psychiatrist of his own choosing to assist in his defense at State e xpens e. Id. at 415, 439 A.2d at 549. We stated as follows: Here, Johnson was evaluated by a team of independent psychiatric experts, he was furnished with copies of the resulting reports prepared b y the examin ers, and he h ad the opp ortunity to subpoen a and que stion at trial members of the examining team. Whatever the amount of required State assistance for the appointment of defense experts to enable the indigent to place this issue of insanity before the trial court, we need not -39- determine here, for it is cer tain that once an accused is evaluated by state funded, impartial and competent psychiatrists, that constitutional duty, if an y, ends. [T]he State has no constitutional obligation to promote a battle betw een psychiatric experts by supplying defense counsel with funds w herewith to hunt around for other experts who may be willing, as witnesses for the defense, to offer the opinion tha t the accuse d is criminally insane. Id. (Citations omitted). In light of Ake, decided three years after Johnson, it appears to u s that our ho lding in Johnson has been overruled implicitly to the extent it suggests that the report of a Stateemployed expert who does not assist in evaluation, preparation, and presentation of the defense would b e constitution ally sufficient. We find numerous passages from Ake supportive of the proposition that due process requires the provision of a def ense expert. We fin d the following lang uage particularly revealing: We therefore h old that when a defendant demonstrates to the trial judge that h is sanity at the time o f the offe nse is to be a significant factor at trial, the S tate must, at a m inimum, assure the defenda nt access to a compete nt psychiatrist wh o will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ake, 470 U.S. at 83, 10 5 S.Ct. a t 1096 ( emph asis add ed). [T]he assistance o f a psychiatrist may w ell be crucial to the defendant s ability to marshal his defense. In this role, psychiatrists . . . know the probative questions to ask of the opposing party s psychiatrists and how to interpret their answ ers. -40- Id. at 80, 105 S. Ct. at 109 5 (emph asis added ); [T]he psychiatrists for each p arty enable the ju ry to make its most accurate determination of the truth on the issue before them. Id. at 81, 10 5 S. Ct. a t 1095. [W]ithout the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defen se, to help determine whether the insanity defense is viable, to present testim ony, and to assist in preparing the cross-examination of a State s psychiatric witnesses, the risk of an ina ccurate resolutio n of sa nity issues is extrem ely high. Id. at 82, 105 S. Ct. at 1096 (emphasis added ); [E]xpe rts are often necessary both for prosecution and for defense . . . . [A] defendant may be at an unfa ir disadvan tage, if he is unable because of poverty to parry by his own witnesses the thru sts of tho se again st him. Id. at 82 n.8, 105 S. Ct. at 1095 n.8 (quoting Reilly v. Barry, 166 N.E. 165, 167 (N.Y. 1929) (Cardozo, C.J.)). The weight of authority among courts that have considered the issue suggests that the services of a defense expert are required. See, e.g., Powell v. Collins, 332 F.3d 376, 392 (6th Cir. 2003) ; Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir. 1994) ; Cowley v. Stricklin, 929 F.2d 640, 644 (11th Cir. 19 91); Smith v. McCormick, 914 F .2d 115 3, 1156-59 (9th Cir. 1990); United States v. Sloan, 776 F.2d 926, 929 (10th Cir. 19 85); Buttrum v. Black, 721 F. Supp. 1268, 1312-13 (N.D. Ga. 198 9); Lindsey v. State, 330 S.E.2d 563, 56 6-67 (Ga. 1985 ); People v. Lawson, 644 N.E.2d 1172, 1192 (Ill. 1994); Binion v. C ommo nwealth , 891 S.W.2d -41- 383, 386 (Ky. 19 95); Polk v. State , 612 So. 2 d 381, 39 4 (Miss. 19 92); State v. Gamb rell, 347 S.E.2d 390, 395 (N.C . 1986); De Fre ece v. State, 848 S .W.2d 150, 15 9 (Tex . Crim. App. 1993). Contra, Granviel v. Lynaugh, 881 F.2d 185, 191 (5th Cir. 1989) (holding that a courtappointed psychiatrist, whose opinion and testimony is available to both sides, satisfies the defendant s rights ); Comm onwea lth v. Reid, 642 A.2d 453, 457 (Pa. 1994) (finding Ake satisfied when trial court offered indigent def endant th e op portunity to be exam ined by a neutral court-appointed psychiatrist ); see also People v. Leonard, 569 N.W.2d 663, 671 (Mich. Ct. App. 1997) (trial court s refusal to appoint DNA expert did not deny defendant effective assistance of counsel where defense attorney who ha d underg raduate de gree in chemistry effective ly and comprehensively cross-examined the prosecution s experts after rec eiving d iscove ry of all do cume nts relatin g to DN A ana lysis in the c ase). In his comprehensive and thoroughly researched law review article, Professor Paul Giannelli addresses this issue as follows: Appe llate courts often cite the fact that the cross-examination of the prosecution expert wa s eff ectiv e as a reas on w hy a defense expert was not needed. *** First, the same reasoning applies when prosecutors seek a psychiatric evaluation of an accused who has raised an insanity defense . . . and yet virtually every jurisdiction has procedures recognizing the prosecution s right to have the accused examined by a state psychiatrist a prosecution expert. The rationale for this procedure is obvious: the adversary system would be under mined if the prosecution was deprived of its own expert. -42- Second, effective cross-examination of a prosecution expert f requen tly requires the adv ice of a defen se expe rt. . . . Third, there is a significant difference between attacking the opinion of an opponent s expert through cross-examination and attacking tha t opinion thro ugh the testi mon y of your own expert. In Daube rt [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 2798, 125 L. Ed. 2d 4 69 (1993)] the Suprem e Court no ted that [v]ig orous cros s-examin ation, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. In 1983, the Cou rt upheld the admissibility of expert testimony concern ing future dangerousness in capital cases. In so ruling, the Court noted that jurors should not be barred from hearing the views of the State s psychiatrists along with opposing views of the defendant s doctors. Similarly, the 1992 report of the National Academy of Sciences observed that [m]ere cross examination by a defense attorney inexperienced in the science of DNA testing w ill not be suffici ent. . . . Fina lly, if this factor is relevant at all, it would only be so on appellate review u nder a harm less error ana lysis. After all, a trial court cannot wait to review the defense counsel s cross-e xamin ation be fore ap pointin g a def ense ex pert. Paul C . Giann elli, Ake v. Oklahoma: The Righ t to Expert A ssistance in a Post-Da ubert, Post-DN A World , 89 Cornell L. Rev . 1305, 1376-78 (2 004) (citations omitted). When a defendant has made the threshold showing described supra, the State mu st, at a minimum, assure the defendant access to a defense expert who will assist in evaluation, preparation, and pre sentatio n of the defen se. We reject the holding of the Court of Special Appeals relied upon by the State before this Court that Moore s Ake rights were satisfied by discovery and the opportunity to cross-examine Dr. Cotton. The State satisfied the Due -43- Process Clause, as interpreted in Ake, by making expert assistance available to Moore through the O .P.D ., con ditio ned on re pres enta tion by tha t age ncy. VI. Exclusion of Evidence Regarding Scott Brill s Alleged Prior Acts of Violence Moore also contends that the Circu it Court erred in precluding him from introducing evidence of Scott B rill s history of violence by cross-examining State s witnesses Crystal Brill and Danielle Ritter about Scott Brill s alleged assaults aga inst them. The trial court excluded this evidence on the grounds that such evidence constituted other crimes evidence and was therefore inadmissible under Md. Rule 5-404(b). Moore contends that evidence of Brill s history of violence towards women made it more likely that Brill rather than Moore, who h ad no s uch his tory h ad killed Maso n. We d isagree . Crystal Brill testif ied on b ehalf o f the Sta te. On cross -examina tion, to show Brill s pattern of violence, Moore s counsel asked if her brother, Scott Brill, had assaulted her. The State objected on the ground that the evidence was inadmissible as evidence of other crimes. The trial court sustained the objection. Dan ielle Ritter also testified as a State s witness. On cross-examination, Moore s counsel a sked D o you know if Scott Brill does Sco tt Brill ever get angry with you and hit you? The State again objected on the grounds that the evidence was inad missible as evidence of other crimes. The trial court again sustained the objectio n. -44- Moore argues the evidence was admissible because it was relevant, and not excluded by Md. Rule 5-404(b). Moore is correct that the State s other crimes objection was misplaced. The ban contained in Md. Rule 5-404(b) on [e]vidence of other crimes, wrongs, or acts . . . to prove the character of a perso n in order to show ac tion in conf ormity therewith applies only to the acts of the defendant, not those of other person s. See Sesso ms v. State , 357 Md. 274, 285, 744 A.2d 9, 15 (2000). Md. Rule 5-404(b) was not a proper basis to exclude th e evidenc e, assuming it was releva nt. We do not agr ee with petitioner, however, that the evidence was admissible. E ven if Brill had a propensity of violence towards women, it would not make it more likely, or less likel y, that Brill committed the murder alone. It was always the State s theory of the case that Brill and M oore had acted togeth er in killing M ason. The evidence was not re levant; thus, the trial co urt did n ot abus e its discr etion in e xcludin g it. Evidence that is not relevant is not ad missible . See Md. Rule 5-402. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. C O S T S T O B E P A ID B Y PETITIONER. -45- In the Circu it Court for H oward C ounty Case No. 13 -K-01-03999 6 IN IN THE COURT OF APPEALS OF MARYLAND No. 28 September Term, 2004 FREDERICK JAMES MOORE v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Bell, C. J . Filed: December 14, 2005 The issue in this ca se is the app licability of the ho lding in Ake v. Oklahoma, 470 U.S. 68 (1985), regarding State funding of experts and expert-related services, to no n-psychiatric experts and in the n on-capital c ontext, a nd, if it does apply to those situations, how the threshold determination is made and of what does it consist? After extensive review and discussion of the Supreme Court s opinion in Ake, the majority con cludes that th e right to State-funded defen se expe rts is a co nstitution al right, Moore v. State, __ M d. __, __ , _ _ A.2d __, ___(2005) [slip op. at 42-44], gro unded in d ue proces s. __ Md . at __, __ A.2d at __ [slip op. at 40-41]. The majority concludes that the principles enumerated in Ake apply in the non-capital context, __ Md . at __, __ A 2.d at __ [slip op. at 20-21 ], and in cases involving nonpsychiatric experts, __ Md. at __ , __ A.2d a t __ [slip op . at 21-24]. A s to the thresh old showing required, it is, the m ajority holds, that th ere exists a rea sonable p robability [1] both that an expert would be of assistance to the defense and that denial of expert assistance 1 I do not agree that the threshold burden is so high; rather, I believe it to be reasonab le possibility. I believe that, by analogy, the stan dard articula ted by this Court in Dorsey v. State to determine whether improperly admitted evidence contributed to a conviction applies. 276 Md . 638, 350 A.2d 6 65 (1976) (holding that the reviewing court must thus be satisfied that there is no reasonable possib ility that evidence complained of, whether erroneou sly admitted or excluded , may have co ntributed to re ndition of g uilty verdict). See also Yorke v . State, 315 Md. 578 , 556 A.2d 230 (1989) (in regards to n ewly discovered evidence, favoring a standard that falls between "probable," which is less demanding than "beyond a reasonable doubt," and "might" which is less stringent than probable, and establishing that the inquiry is whether there is a possibility that the verdict of the trier of fact would ha ve been affected ) (emphasis added); Gross v. S tate, 371 Md. 334, 347, 809 A.2d 62 7, 635 (20 02) (hold ing regarding Sixth A mendmen t prejudice, [i]f there is no reasonable possibility that the appellate court would have ruled in his favor, there can be no Strickland prejudice ). would result in a fundamentally unfair trial. __ Md. at __, __ A.2d at __ [slip op. at 26]. Except for the level of the required showing, I am in general agreement on these points. Although concluding that there is a right to State-fun ded expe rt services, the m ajority accepts the Court of Special Appeals holding that Moore s Ake rights - his entitlem ent to State-funded expert services - were satisfied. This is so, the majority says, because the Office of the Public Defender ( OPD ) will provide these services, so lo ng as he is represented by an OPD attorney. __ Md at __, __ A.2d at __ [slip op. at 33]. This conclusion is dicta ted, it sub mits, by Miller v. Sta te, 337 Md. 71, 651 A.2d 845 (1994) an d the Pub lic Defender statute, Md. Code (1957, 2003 Repl. Vol., 2004 Cum. Supp.), Art. 27A. I disagree with this conclusion. A. In Miller, the defendant Be rnard Miller ( M iller ) was convicted of m urder. His pro bono, private counsel filed an ap peal and, to prepare for tha t appeal, requested that a transcript of the trial proceedings be furnished to him free of charge. He relied on Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S. C t. 585, 590-591, 100 L . Ed. 2d 891, 898-8 99 (1956), which held that a state could not refuse to provide a transcript solely on the basis of the defendant s indigency. Not wanting the OPD involved in any way, Miller did not seek and, indeed, refused to request, representation by the OPD. His attorney also did not seek appointment as an assigned public defender to represent Miller on appeal with the supervision of the OPD and would have refused such an appointment. 337 Md. at 74, 651 -2- A.2d at 846. Relying on Maryland Rule 1-325 (b), 2 the Circuit Court f or How ard Cou nty denied the request. The Court o f Spec ial App eals rev ersed. Miller v. State, 98 Md. App. 634, 635 A.2d 1 (1994). That court construed Rule 1-325 (b) as applicable to the exact situation that Miller faced; it held: where an indigent appellant who otherwise would qualify for representation by the P ublic De fend er ch oose s to b e rep rese nted by a qualified private attorney and that attorney elects to represent the appellant without fee of any kind or from a ny person, strictly on a pro bono basis, the Public Defender is obliged to provide the necessary transcript and 2 Maryland Rule 1-325(b) provides: (a) Generally. A person unable by reason of poverty to pay any filing fee or other court costs ordinarily required to be prepaid may file a request for an order waiving the prepayment of those costs. The person shall file with the request an affidavit verifying the facts set forth in that person's pleading, notice of appeal, application for leave to appeal or request for process, and stating the grounds for entitlement to the waiver. If the person is represented by an attor ney, the request and affid avit s hall b e acc omp anie d by th e atto rney's signed certification that the claim, appeal, application, or request for process is meritorious . The cou rt shall review the papers presented and may require the person to supplement or explain any of the matters set forth in the papers. If the court is satisfied that th e person is u nable by reason of poverty to pay the filing fee or other court costs o rdinarily required to be prepaid and the claim, appeal, application, or request for process is not frivolous, it shall waive by order the prepayment of such costs. (b) Appeals Where Public Defender Representation Denied Payment by State. The cou rt shall order the State to pay the court costs related to an appeal or an application for leave to appeal and the costs of preparing any transcript of testimony, brief, appendices, and record extract necessary in connection with the appeal, in any case in w hich (1) the P ublic Def ender's Of fice is authorized by these rules or other law to represent a party, (2) the Pub lic Defender has declined representation of the party, and (3 ) the party is unab le by reason of pov erty to pay th ose cos ts. -3- ¦ pay the cost of the brief an d other nec essary docum ents as well. Id. at 645, 635 A.2d at 6. We granted the state s petition for certiora ri. In this Cou rt, the State argu ed that, while Miller was entitled to a free transcript, he must comply with R ule 1-325 (b), Maryland s method of supplying indigent defenda nts with trial tran scripts, believin g it to be a reasonab le exercise o f an indige nt s right to appea l. Miller, on the other hand, contended that Griffin mandated that he receive a free transcript and that Rule 1-325 (b) denied him his Sixth Amendment right to assistance of counsel. This Court reversed the judgment of the Court of Special Appeals. Siding with the State, it held that an indigent defendant who had not sought, nor been refused, representation by the OPD was not entitled to a free State-funded trial transcript. Analyzing the applicab ility of Rule 1-32 5 (b), the Co urt traced the Rule from its historical root, Ch. 1068 of the Acts of 1945, codified as Maryland Code (1939, 1947 Cum. Supp.), Art. 5, § 88A, w hich require d the State to prepare a tra nscript for in digent app ellants in capital criminal cases, to its amendment to comply with the Griffin mandate, Ch. 68 of the Acts of 195 8, codif ied as M d. Cod e (1957 , 1963 C um. Su pp.) A rt. 5, § 15A , to the promulgation of its pre decess or, Maryland Rule 88 3 b (1958). State v. Miller, 337 Md. 71, 77, 651 A.2 d 845, 84 7 (1994). W e also focu sed on the legislative histo ry of the Public Defender statute and of Rule 1-325 (b). The latter focus was primarily on language in the minutes of the Rules Committee, which added the requirement that the OPD refuse representation before providing a free transc ript to indigent defendants so as to avoid abuse -4- of the Rule by defenda nts attemp ting to d o an en d run ar ound th e Publi c Def ender s Offi ce. Rules Committee M arch 14-15, 1986, Minutes at 50. Those minutes reflected that the Committee questioned whether a rule requiring OPD refusal of representation as a condition for obtaining a free transcrip t would b e constitutional, wondering particularly how such a rule would work when an indigent defendant had pro bono counsel or wanted to proceed pro se. The Chief Attorney of the Public Defender s Office responded: The proposed rule would not be an obstacle to the indigent appellant who wants to proceed with pro bono couns el. It has been th e practice of the Public Defender s Office to cooperate with individual attorneys, law schools and other organizations willing to provide pro bono representation to indigent appellants. This cooperative arrangement has not presented problems in the past. Memorandum from Dennis M. Henderson, Chief Attorney, Appellate Division, Office of the Public Defend er, to Julia M. Freit, Reporter, Rules C ommittee, p. 6 (June 10 , 1986). Unlike the Court of Special Appeals, which had construed the cooperation described in the memorandum to mean that the OPD not object to providing a free transcript to indigent defenda nts who wished to proceed with pro bono counsel, 98 Md. App. at 645, 635 A.2d at 6, this Co urt interp reted the word s, coop erative a rrange ment, to mean that the OPD would work together with pro bono counsel and make arrangements for the provision of the free transcript. 337 Md. 71, 80-81, 651 A.2d 845, 849. We viewed Rule 1-325 (b) as extending the framework of Art. 27A by identifying the OPD as the gatekeeper against abuse of State resources, 337 M d. 71, 81, 65 1 A.2d 8 45, 849-8 50, and as f urthering the legislative go als of -5- effective indigent representation by setting up the OPD as an evaluator of attorney com pete ncy: The instant case demonstrates vividly how the legislative will can be frustrated by an indigent who for unspecified reasons has adamantly refused to coopera te in a ny way w ith the Public Defender. Md. Rule 1-325(b) expressly prevents such non-cooperation, which could lead to an appeal ineffective ly conducted and a further expenditure of funds for a second appea l. 337 Md. at 81-82, 651 A.2d at 850. Thus, this Court concluded, Rule 1-325 (b) required, as a condition f or receiving a free trial transc ript, that an indigent defendant apply for representation from the OP D. Id. at 82, 651 A .2d at 850. T hat conditio n did not co nstitute a differenc e based o n his economic status, noting that it depends on [Miller s] willingness to cooperate and follow the reasonable procedures set forth in Art. 27A and the Maryland Rules. But for h is intransigen ce, this system would work, and Miller would receive a free transcrip t. Id. at 85, 65 1 A.2d at 851. Therefore, Miller was not receiving an unequal type of appeal. There was no Griffin violatio n. The Court rejected Miller s Sixth Amendment argument. It reasoned that indigent defendan ts did not have an absolute right to counsel of choice; the Sixth Amendment provided for the right to effective representation, and not the right to representation by a particular attorney. Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1697, 100 L. Ed.2d 140, 148 (1988). This Court stated: Failure to provide a free transcript to the indigent appellant cannot interfere with the right to choice of counsel where no such absolute right exists. In the absence of such a right to choice of counsel, there is no constitutional violation when the S tate requires that an indigent defen dant avail -6- himself of the serv ices of the O ffice of the Public D efender in order to ob tain a free transcript. The State has set up a system by which all indigen t appellants are provided effective a ssistance of counsel, w hether repre sented by the P ublic Defender s Office or by a private attorney under the supervision of that office. Miller cannot pick and choose which of the State-provided services he wishes to receive; he must accept the available resources as provided under Art. 27A and the Maryland Rules. Miller has not been den ied his right to assistance of counsel, because he may apply to the Office of the Public Defender and receive effective representation. Th e Public Defen der system is Maryland s alternative solution as d escribed in Griffin and Bounds [v. Smith, 430 U. S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 84 (1977).] Public Defender representation, like a transcript, is part of the package provided by the State, and requiring Miller to comply with reasonable State procedures in no way infringes upon his right to assista nce of couns el. Miller, 337 Md. at 87-88, 651 A.2d at 853. In the case sub judice, the majority extends Miller to the broad spectrum of ancillary services, not heretof ore addres sed, on the b asis of attorney status and the non-severability of OPD representation and other services, and nothing more. __ Md. at __, __ A.2d at __ [slip op. at 38]. It does so by applying, notwithstanding the absence o f a Rule c omparab le to Rule 1-325 (b), the same analysis to how A rt. 27A m eshes Ak e s holding with respe ct to State provision of ancillary services as it applied in Miller with regard to trial transcripts. To achieve the result it does, the majority relies heavily on the fact that the Public Defender statute provides that it is the duty of the OPD to supply legal representation and other related services to the indigent defendants. Having declared it to be the policy of the State of Maryland to provide for the realization of the constitutional guarantees of counsel in the representation of indigents, including related necessary services and facilities, in criminal and -7- juvenile proceedings within the State, and to assure effective assistance and continuity of counsel to indigent accused taken into custody and indigent defendants in criminal and juvenile proceedings before the courts of the State of Maryland, Art. 27A, § 1 authorize[s] the Office of Public D efender to administer a nd assure e nforcem ent of the p rovisions of this article in accordance with its terms. Section 2 (f), 3 in defining indigent, delineates the perimeters of the services to be provided by the OPD: the full payment of an attorney and all other necessary expenses of legal rep resenta tion, to i nclude [e]xp enses , i.e., all costs incident to investigation, other pretrial preparation, trial and appeal of a person accused of a serious crime. Section 2 (g). Section 4 (a) provides: (a) It shall be the primary duty of the Public Defender to provide legal representation for any indige nt defend ant eligible fo r services un der this article. Legal representation may be provided by the Public Defe nder, or, subject to the supervision of the Public Defender, by his deputy, by district public defenders, by assistant public defenders, or by panel attorneys as hereina fter pro vided f or. Whether a defendant is eligible for OPD supplied representation and services depends on the defendant s need, § 7 (a), to be determined by the OPD after investigation, § 7 (b), 4 and the 3 Art. 27A, § 2 provides: (f) Indigent m eans any pers on taken in to custody or charged with a serious crime as herein defined under the laws of the State of Maryland or the laws and ordinances of any county, municipality, or Balt imore City, who un der oath or affirmation subscribes and states in writing that he is financially unable, without undue h ardship, to pr ovide for th e full payment of an attorney and all other n ecessa ry expen ses of le gal repr esentati on. 4 Art. 27A, § 7 (b) provides: (b) The Of fice of the P ublic Def ender sha ll make such investigation of the financial (continued...) -8- value of any representation or services pro vided bec omes a lien on real or pe rsonal prop erty of the defendan t or to which the defe ndant acquires an interest or title. Section 7 (d ). Despite the absence of a rule pertaining to the procedure for obtaining ancillary services compara ble to Rule 1-325 (b), a fact that the majority readily concedes, but believes to be answ ered by th e sever ability que stion, see __ Md. at __, __ A.2d at __ [slip op. at 39], secure in the belief th at Miller is instructive on the question of whether the State may condition the receipt of constitutionally mandated services on repr esentati on by the O.P.D , the issue it perceives to be presented, __ Md. at __, __ A.2d at __ [slip op. at 36], the majority concludes that the ancillary services required to be provided by the OPD are nonseverable from the re presentation it is required to provide. __ Md. at __, __ A.2d at __ [slip op. at 33-34 ]. In so doing , it adopts the rationale of the Court of Special Appeals, which it quoted, with approval, as follows: We agree with those states which hold that the dual services provided by the public defender are not severable. The language of Art 27A, § 2, defining indigent as a person unable to provide for the full payment of an attorney and all necessary expenses of legal representatio n, is a unified enactment and does not contemplate that a defendant be indigent for purposes of all necessary expenses and yet be ab le to retain priv ate coun sel. See Morton [v. Comm onwea lth,] 817 S.W.2d [218,] 220 [(Ky. 1991)], We adopt Kentucky s (...continued) status of each defendant at such time or times as the circumstances shall warrant, and in connection therewith the office shall have the authority to req uire a defe ndant to execute and deliver such written requests or authorizations as may be necessary under applicable law to pro vide the of fice with a ccess to reco rds of pub lic or private sources, otherwise confidential, as may be needed to evaluate eligibility. The office is authorized to obtain information from any public record office of the State or of any subdivision or agency thereof upon request and without payment of any fees ordinarily required by law. -9- position, that under th is definition a nd the gen eral tenor of the entire A ct, inability to obtain counsel and inability to obtain necessary services go hand in hand. Thus any funding for the nec essary services a ssociated w ith represe ntation a re cond itioned u pon rep resenta tion by the Public Defe nder. Id. [slip op. at 33-34], quoting Moore, 154 Md. App. at 592, 851 A.2d at 39. And, like the intermediate appellate cou rt, the majo rity holds that the O.P.D. is not required to pay for expert assistance or other ancillary services if the defendant is not represented by the O.P.D. (or a pan el att orne y assigned by the O.P.D.). Id. at __, __ A.2d at __ [slip o p. at 34]. 5 Thus, while acknowledging Ake s requirement of a threshold showing of indigence and a demonstration of the defense s significant need for the expert, assu ming the la tter, it opines that state-funde d expert a ssistance w as available to [Moo re] so long a s he com plied with the procedural requirement that he apply for legal representation through the O.P.D. Imposing this requirem ent on M oore did not violate his constitutional rights. __ Md. at __, __ A.2d at __ [s lip op. at 39]. The majority is wrong. First, it is importan t that, in Miller, there was a Rule that set out precisely and explici tly the process for obtaining a trial transcript for appeal purposes. 5 The majority does not expressly address the situation in wh ich the defendant s counsel is acting pro bono. On that subject, the Court of Special Appeals observed: Ad ditio nally, because appellant's counsel was not providing pro bono services, we do not express an opinion on whether a defendant with pro bono private counsel is e ntitled to fund ing for othe r services ass ociated w ith represe ntation. Moore v. State, 154 Md. A pp. at 592, 841 A .2d at 39 (2004). -10- That it had its genesis in a statute, predating Griffin and the Pu blic Defender statute, pertaining to, and only to, the State s obligation to indigent defendants with respect to trial transcripts, first in capital cases and later, after Griffin, in all criminal appeals, and that the requireme nts were retained after the P ublic Defender statute w as enacted further und erscore its signific ance. Indeed, because Rule 1-325 (b) directly addressed the State s and the OPD s role when a defendant is indigent and, therefore, unable to afford a trial transcript, specifying expressly when th e costs will be sub sidized, in any case in which (1) the P ublic Defender s Office is authorized by these rules or othe r law to repres ent a party, (2) the Public Defender has declined representation of the party, and (3) the party is un able by reason of poverty to pay those costs, the Miller result fits easily into a statutory construction analysis. Without a compara ble statute regulating the State s obligation to provide expert services to indigent defendants, interpreting Art. 27A consistently with Miller is, at best, a stretch. B. Second, the majority s non-severability holding does not withsta nd scru tiny. Critical to its soundness is Morton v. Comm onwea lth, 817 S.W.2d 218, 220 (Ky. 1991), whose interpretation of Kentucky s public defender statute, and the rationale therefor, we adopted. Similar to this case, the defendant in Morton, who also was charged with murder and otherwise was indigen t, retained private c ounse l, paying h im a no minal f ee of $ 100. Similar to Maryland s Public Defender statute, Kentucky s, KY . REV. S TAT . § 31.10 0, et. seq., declares the State policy with respect to indigent representation: -11- (1) A needy person who is being detained by a law enforcement officer, on suspicion of having committed, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, or who is accused of having committed a public or status offense or who has been committe d to the Department of Juvenile Justice or Cabinet for Health and Family Services for having committed a public or status offense as those are defined by KRS 610.010 (1) (a), (b), (c), or (d) or 630.020(2) is entitled: (a) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and (b) To be provided with the necessary services and facilities of representation including investigation and other preparation. The courts in which the def endan t is tried sh all waiv e all cost s. KY. REV. STAT. § 31.110 (1) (a) and (b). Also, as in, and similar to, Maryland s statute, it prescrib ed wh o was deem ed to be indigen t. See KY. REV. STAT. § 31.100 (3) (a), defining [n]eedy person or indigent person as (a) A person eighteen (18) years of age or older or emancipated minor under the age of eig hteen (18) w ho, at the time his need is determined, is unable to provide for the payment of an attorney and all other necessary expenses of representation. To be sure, the Supreme Court of Kentucky construed this statute to set up a unified scheme, in which the services to be provided by the public defender were non-severable: A more difficult question is whether the trial court erred in its determination that a defendant who seeks and obtains the benefits of KRS 31.110 (1) (b) may not be represented by retained counsel who declares his intention to continue on a pro bono basis. Appellant correctly observes that the statute contains no express prohibition against having the Com monwealth p rovide the necessary services and facilities of representatio n when the defen dant has o btained his own counsel. Be this as it may, in our view, KRS 31.100 , et. seq., is a unified enactment which contemplates the necessity of a comprehensive determination whether a defendant qualifies for the benef its provided . For it to be determined that he does, he must be without the independent means to obtain counsel. The statute surely does not contemplate that a defendant would be indigent for -12- purposes of KRS 31.110 (1) (b), but still able to hire an attor ney. If such were the case , rare ly wo uld a ny defend ant step f orw ard to pay investigative costs and other services necessary for his representation. Indeed, in KRS 31.100 (3) needy person or indigent person is defined as a person who at the time his need is determined is unable to provide for the paym ent of an a ttorney and all other necessary expenses of representation. Under this definition and the general tenor of the entire Act, inability to obtain counsel and inability to obtain n ecessa ry service s must g o hand -in-han d. Morton, 817 S .W.2d at 220. I t did no t conclu de, howev er, that the non-severability was absolu te or app lied in all c ircums tances. Immedia tely following the quoted passage, the court considered another scenario that could arise under the statute and concede d that, in an ap propriate ca se, a differen t result would obtain: In an unusual case, however, it may be that an indigent defendant can obtain counsel which is tru ly pro bono; counsel who has neither sought nor obtained any fee or the promise thereof for legal service s rende red or p romise d. In such a circumstance, the dual benefits provided by the Act would indeed be severed. The defendant would be indigent for purposes of necessary services and facilities, but otherwise be able to provide his own counsel without cost to himself. When such a circu mstance p roduces th e severanc e betwee n ability to obtain counsel and need for other necessary expenses, the statute may be interpreted to permit the trial court to grant indigency status for purposes of KRS 31.110 (1) (b) only. 817 S.W.2d at 220-221 (emphasis added). Thus, although Morton does support the majority s holding, it also contradicts it. Because it recognizes that there may be circumstances, such as representation by a pro bono attorney, under which a defendant could obtain State-funded expert services without the involvement of the public defender, it does not support the notion, advanced by the majority, that the OPD is, and always must be, the -13- gatekeeper of State funds an d defens e attorney com petence. In f act, Morton undermines the viability of that concept under this statutory scheme. The gatekeeper function attributed to the OPD is not suppo rted by the statute establishing it. The m ajority is co rrect, see __ Md. at __, __ A .2d at __ [slip op. at 35], indeed, it is undisputed, that Maryland h as established a State-wid e public defender system to discharge its responsibility to provide constitutionally guaranteed legal representation, investigative services, and expert assistance to indigent defendants. Art. 27A, § 1 does place the duty on the OPD to administer and assure e nforcement of th e provision[s] of [Article 27A], in accordance with its terms. Nothing in Art. 27A, however, explicitly, or infe rentially, requires that services funded by the State may only be obtained when the OPD either represents the defendant needing them or supervises the attorney representing that defenda nt. I do not read the words, administer and assure enforcement of the provision of [Article 27A], in ac cordance with its terms, as broadly as the majority apparently does. Nor do I believe that t he re sult r each ed by the m ajority can be ju stified by the statement of the goal, directed to the State itself, to provide for the realization of the constitutional guaran tees of c ounse l. [6] 6 Under the majority s the ory, the OPD either must re present the in digent defendant or supervise the appointed attorney in some manner so as to prevent abuse of State resources. While I recognize that the OPD has a very limited budget, it strikes me as unusual that the decisions made as to how pro perly to allocate Sta te resources should be the same decisions made by the representing attorney. In the strange case where two defendants are on trial with opposing theories and one defen dant is assign ed to an ou tside conflic ts attorney, I find it paradoxical that that conflicts attorney would be somewhat under the control of the OPD (contin ued...) -14- Moreover, I disagree that legal representation and the ancillary services required for an adequate defense are non-severable. In this belief, I am far from alon e. Courts from other jurisdictions have held that a defendant is entitled to State-funded expert services in circumstances comparable to the petitioner s, as well as when a defendant is being represented pro bono. See, e.g., Ex parte Sande rs, 612 So.2d 1199, 1201 (Ala. 1993) (holding indigent de fendant h as right to pu blic funds to hire expert although represented by counsel retained by fam ily); Dubose v. State, 662 So.2d 1189, 1191 (Ala. 1995) (following Sanders); People v. Worthy, 167 Cal. Rptr. 402, 406 (Ca l. Ct. App. 1 980) (con cluding tha t, upon a proper showing of necessity, trial court must provide an indig ent defendant exp ert services, without regard to whether his counsel is appointed or pro bono); People v. Evans, 648 N.E.2d 9 64, 969 (Ill. A pp. Ct. 199 5) (conclud ing that indig ent defen dant entitled to expert witness funding although represented by private law firm where services provided on pro bono basis); English v. Missildine, 311 N.W.2d 292, 293- 94 (Iowa 19 81) (holdin g Sixth Amendment authority for furnishing investigative services at public expe nse without regard to whether indigent rep resented by pr ivate counsel); State v. Jones, 707 So.2d 975, 977-78 (La. 1998) (holding, although indigent defendant was represented by counsel retained by defe ndant's father, he was eligible for state-funded necessary serv ices); State v. Seif ert, 423 N.W.2d 368, 371 (M inn.1988) (holding tha t an indigen t pro se criminal app ellant must b e 6 (...continued) should he need certain expert services. Perhaps the gatekeeping function of the OPD should be more in the nature of determining indigency and allocating the funds for the experts and other service s, not direct sup ervision or c ontrol. -15- given access to a trial transcript on a limited basis for the purpose o f perfecting his appeal, even though the public defen der is not actin g as his app ellate couns el); State v. Huchting, 927 S.W.2d 4 11, 419 (M o. Ct. App. 1996) (noting retention of private counsel does not cause a defenda nt to forfeit h is eligibility for state assis tance in payin g for expert witness or investigative expense s); State v. Manning, 560 A.2d 693, 698-99 (N.J. Super. Ct. App. Div. 1989) (holding indigent defendant could not be denied state-funded expert services because he was represented by private counsel, whether counsel was pro bono or paid by third party); Widdis v. Second Jud. Dist. C t., 968 P .2d 116 5, 1168 (Nev. 1 998) (holding criminal defendant with private counsel constitutionally entitled to reasonable defense services at public expense based on defendant's showing of indigency an d need fo r the services ); State v. Burns, 4 P.3d 795, 800-02 (Utah 2000) (holding sta tutory right to pub licly funded expe rt assistance under statu te could not be conditio ned upo n accepting court-appo inted coun sel in lieu of private c ounsel retain ed at father's e xpense); State ex rel. Rojas v. Wilkes, 455 S.E.2d 575, 577 (W. Va. 199 5) (holding that funds w ith which d efendan t's family retained p rivate counsel irrelevant to defendant's right as indigent to have necessary expert assistance provided at state's expense). Because it involv ed priv ate cou nsel, albeit prov ided by a third person and not by the defenda nt, English v. Missildine is on point and instructive. There, the question presented was whether an indigent defendant, charged with theft, had the right to employ an expert and take depositions, the necessit y for which was not at issue, at public expense when he was represented by counsel supplied by his mother . An Iow a statute authorizing fees for co urt-16- appointed attorneys covered such ex penses . Iowa Cod e Ann. § 815 .7 (2004). 7 Conceding the defendant s entitlement were he represented by a court-appointed attorney, the State opposed the defendant s petition bec ause he was re presented by private counsel. 311 N.W.2d at 293. In support, it made arguments reminiscent of the arguments made, and adopted, in this case: the defendan t s only remedy was to accept court appointed or assigned counsel; refusing State-funding of the services did not constitute a constitutional violation since they could be obtained through an alternative State-sanctioned procedure, 311 N.W.2d at 294, and to allow fun ding in cases other than those in which co unsel wa s appointed would be to giv e an ind igent de fenda nt a righ t he doe s not ha ve, to reta in coun sel of ch oice. Id. 7 IOWA C ODE AN N. § 8.517 provides: An attorney who has not en tered into a contract authorized under section 13B.4 and who is appointed by the court to re present any pe rson charg ed with a crime in this state, seeking postconviction relief, against whom a contempt action is pending, appealing a criminal conviction, appealing a denial of postconviction relief, or subject to a proceeding under section 811.1A or chapter 229A or 812, or to serve as counsel for any person or guardian ad litem for any child in juvenile court, shall be entitled to reasonable compensation and expenses. For appointments made on or after July 1, 1999, the re asonable compensation shall be calculated on the basis of sixty dollars per hour for class A felonies, fifty-five dollars per hour for class B felonies, and fifty dollars per hour for all other cases. The expenses shall include a ny sums as are necessary for investiga tions in the interest of justice, and the cost of obtaining the transcript of the trial record and briefs if an appeal is filed. The attorney need not follow the case into another county or into the appellate court unless so directed by the court. If the attorney follows the case into another county or into the appellate court, the attorney shall be entitled to compensation as provided in this section. Only one attorney fee shall be so awarded in any one case ex cept tha t in class A felo ny cases, tw o may be author ized. -17- The Supreme Court of Iowa sided with the indigent defendant. Concluding that authority for the services requested by [the indigent defendant] exists under his s ixth amendment right to effective representation of counsel, id. at 293, and acknowledging that third party funded representation does not by itself undermine a defendant s ind igen cy, citing Schmidt v. Uhlennhopp, 258 Iowa 771, 140 N.W.2d 118 (1966), it held: For indigents the right to effective counsel includes the right to public payment for reasonably necessary investigative services ¦[t]he Constitution does not limit this right to defendants represented by appointed or assigned counsel. The determinative question is the defendant s indigency. When his indigent status is established the defendant is constitutionally entitled to those defense services for w hich he demon strates a need. 311 N.W.2d at 293-294, citing People v. Worthy, 109 Cal. App. 3d 514, 520, 167 Cal. R ptr. 402, 406 (1 980). The court responded to, and rejected, the State s constitutional argumen t, reasoning: The State's constitutional argument begs the question. If, as we have held, the sixth amendment provides authority for furnishing investigative services to indigents at public expense without regard to whether the indigent is represented by counsel at public expense, the fact that indigents represented by counsel at public expense have the same right is not material. It would be strange if the Constitution required the government to furnish both counsel and investigative services in cases where the indigent needs and requests public payment for on ly investig ative ser vices. T he State's theory would impose an unre ason able and unneces sary additiona l burden on th e public t reas ury. Moreove r, we do not share the State's concern about an indigent's right to be represe nted by coun sel of his choice when the attorney is not paid at public expense. We have recognized that an indigent does not have this right of choice when counsel is paid from public funds . ¦ However, no reason exists for depriv ing an indig ent of the same right of choice as a person of means when th e indigent is a ble to obtain private cou nsel without public expen se. -18- 311 N.W .2d at 294 (citation omitted). State v. Burns, supra, is similarly instructive. In that case, the indigent defe ndants were represented by private cou nsel, paid for by a family member. 4 P.3d at 800-802. Being unable to afford th e cost of a c onceded ly necessary med ical expert w itness, they soug ht to have that expense paid by the State. Id. at 796-97. Denying the request, the trial court opined: the [defendants] would have to make a decision a s to wheth er to retain their counsel, paid for by [a defend ant s] father, or if they were ultimately found to be indigent so as to qu alify for funds for expert w itnesses, the court would ap point L[egal] D[ efender] A[ssociation] counsel and then the funds for exp ert assista nce w ould be availab le. 4 P.3d at 797. The defenda nts appeale d, arguing th at it was error for the trial court to force that choice. 4 P.3d at 799. To resolve the issue, the Supreme Court of Utah interpreted, and harmonized, two provisions of Utah Code Ann. §§ 77-32-101 to -704 (1999), the Indigent Defense Act ( Act ): § 77-32-301,8 outlining the minimum standards required for indigent 8 UTAH CO DE ANN. § 77-32-301 (Supp. 1999) provided: The following are minimum standards to be provided by each county, city and town for the defense of indigent persons in criminal cases in the courts and various administrative bodies of the state: (1) Provide counsel for every indigent person who faces the subs tanti al probability o f the deprivation of his liberty; (2) Aff ord timely repre sentation by co mpetent leg al counsel; (3) Provide the investigatory and other facilities necessary for a complete defense; (4) Assure undivided loyalty of defense counsel to the client; and (5) Include the taking of a first appeal of right and the prosecuting of other remedies before or after a conviction, considered by the defending counsel to be in the interest of justice except for other and subsequent (contin ued...) -19- defense, and § 77-32-6 (1 990), 9 designating the options for meeting those standards. It conclude d: [T]his section cannot be read to mandate the packaging of indigent assistance with LDA representation. To suggest, as the State does, that only those indigents represented by LDA are eligible for the minimum services would be a direct contradiction of the plain meaning of section 77-32-1 as well as the legislative purpose of providing indigents with the basic tools of defense. In fact, contrary to its argument, the State indicated at oral argument that an indigent defendant proceeding pro se who has declined standby counsel from the LDA would be able to acquire funding for expert assistance. Furthermore, rule 15 of the Utah Rules of Criminal Procedure provides that [u]pon showing that a defendant is financially unable to pay the fees of an expert whose services are necessary for adequate defense, the witness fee shall be paid as if he were called on behalf of the prosecution. There is no indication in this rule that a defendant must be represented by LDA to qualify for this assistance. Instead, the only prerequisites for eligibility are financial inability to pay and necessity for an adequate defense. It follows, therefore, that the only requirements for rece iving pub lic assistance for expert w itnesses are p roof of n ecessity and establishment of indigence. It is up to the court, not the LDA, to determine indigency and therefore eligibility. While w ho is paying for a defendant's attorney may be a factor in the determination of indigency, it is not the determinative factor, and in this case, the court did not allow Burns to have her hearing on indigence 8 9 (...continued) discretionary appeals or discretionary writ proceedings. UTAH CODE AN N. § 77-32-6 (1990), presently codified, without substantive change, a t § 77-32-3 06 (Supp . 1999), pro vided: [G]overning b odies of the counties, cities and tow ns shall either: (1) Authorize the court to provide the services prescribed by this chapter by appointing a qualified attorney in each case and awarding him reaso nable com pensation a nd expen ses to be pa id by the appropriate governing body; or (2) Arrange to provide those services through non-profit legal aid or other associations. -20- without condition o f LDA representatio n. Theref ore, the trial cou rt erred in failing to determine whether Burns was indigent and in holding instead that LDA representatio n was a p rerequisite to p roviding the statutorily required minimum standards for an indigent defense. As a res ult, even thou gh B urns 's father was paying for her defense attorney, Burns was entitled to a hearing for a determination of whether she was indigent without the condition that she accep t LDA couns el. 4 P.3d at 801- 802. To like effect , see In re: Cannady, supra, 600 A.2d 459 , 462. In that case, the court rejected the argument that the New Jersey Public Defender Act precluded the funding of ancillary services for indigent defendants represented by private counsel, holding instead: New Jersey's policy is to provide counsel for all indigent defendants, not just for indigents represented by the OPD . The Ac t's language s tates that eligibility for OPD services includes not just a defendant's inability to hire private counsel but also a defendant's ability to pay for all other necessary expenses of representation. Nowhere in the Act is there a requirement that a defendant obtain legal services from the OPD before he or she may obtain ancillary services from it. The Legislature intended th at a defend ant's right to obta in necessary ancillary services for his or her defense depends on the d efen dant's indigence and not on whether the defen dant is re presen ted by ou tside co unsel. Id. The court, nevertheless, recognizing the need for and [i]n orde r to m ainta in a u nitar y, centralized Public Defend er System, developed a framework to insure that the OPD maintains the requisite c ontrol over services pro vided to defendants represented by outside counsel, the same as it does over services it provides to its own clients. Id. at 462-464. In particular, it made clea r that [i]f, [ap plying the facto rs it identified], the OPD decides to provide services for a defendant, it is the OPD who shall determ ine how much m oney it should expend on such services. Id. at 464, citing the Public Defender Statute and noting -21- that it does not require that it write a blank check for privately-represented defendants. See also Ex Parte Sanders, 612 So.2d at 1201 (holding, in a case where private counsel was secured for a n ind igen t man by a family member, that [t]he simple fact that the defendant s fam ily, with no leg al duty to do so, retained counsel for the defendant, does not bar the defendant from obtaining the funds for expert assistance when the defendant shows that the expert a ssistanc e is nece ssary ). C. When explaining its application of the Miller holding to the case sub judice, the majority states that defendants prope rly may be put to the choice of cou nsel and the ancillary services required to b e supplied a t State expe nse to ensure an effective defense, because the constitution does not bar the State of Maryland from doing so. __ Md. at __, __ A.2d at ___ [slip op. at 39]. I do not agree. The Sixth Amendment of the United States Constitution 10 guarantees that, [ i]n all criminal prosecutio ns, the accu sed shall en joy the right ... to have the Assistance of Counsel for his defence, Wheat v. United States, 486 U.S. 153, 158, 108 S. Ct. 1692, 1694, 100 L. 10 U.S. CO NST. am end. VI p rovides in p art: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been com mitted ... and to be informed o f the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process fo r obtaining w itnesses in his favor, and to have the Assistance of Counsel for his defence. -22- Ed. 2d 140, 148 (1988), the purpose of which is to ensure fairness in the criminal justice process. United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667, 66 L. Ed. 2d 564, 567 (198 1). Pursuan t to that Amendment, the right to counsel is secured by the appointment of co unse l, as n eces sary. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S . Ct. 792, 796, 9 L. Ed . 2d 799, 805 (196 3). Inherent in the constitutional right to counsel is the right to be represented by counsel of choice . Wheat, 486 U.S. at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 148-149. That right of choice is not limited to persons with m eans. While, to be sure, an ind igent defendant s right of choice is significantly restricted , Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S. Ct. 2646, 2652, 105 L. Ed. 2d 528, 541 (1989) ( The Amendment guarantees defenda nts in crimina l cases the righ t to adequate representation, but those who do not have the mea ns to hire their own lawyers have no cognizable complaint so long as they are adequ ately represented by attorneys appointed by the courts. ); Wheat, 486 U.S. at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 149 ("[A] defendant may not insist on representation by an attorney he cannot affo rd."); Fowlkes v. State, 311 Md. 586, 605, 536 A.2d 1149, 1159 (1988) ( for indige nt defend ants unab le to retain priva te counsel, th e right to counsel is but a right to effective legal representation; it is not a right to representation by any particular attorney ); State v. DeLuna, 110 Ariz. 4 97, 520 P .2d 1121 , 1124 (19 74); State v. Harper, 381 So.2d 46 8, 470 (La . 1980), the f act of indigency is not dispositive; [t]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant -23- even though he is without funds. Caplin & Drysdale, Chartered v. United States, 491 U.S. at 624- 625, 10 9 S. Ct. a t 2652, 1 05 L. E d. 2d at 5 41. The Supreme Court has recognized that the Sixth Amendment right to counsel of choice, in certain situatio ns, is qualified , that the essen tial aim of the Amendment is to guarantee an effective advocate for each criminal defen dant rather th an to ensu re that a defendant will inexora bly be represented by the lawyer whom he prefers. Wheat , 486 U.S. at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 148. See also Morris v. Slappy, 461 U.S. 1, 1314, 103 S. Ct. 16 10, 161 7-161 8, 75 L . Ed.2d 610, 62 0-621 (1983 ). Thus , The Six th Amendment right to choose one's own counsel is circumscribed in several important respects. Reg ardless of h is persuasive powers, a n advoca te who is not a member of the bar may not represent clients (other than himself) in court. Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represen t the defen dant. Nor may a defendant insist on the counsel of an attorney who has a previous or ongoing relationship w ith an opposing party, even when the oppos ing party is the Go vernm ent. Wheat, 486 U.S. at 159, 10 8 S. Ct. at 1697, 100 L . Ed. 2d at 148-149 . Moreover, notwithstanding that the right to coun sel ordinarily enc ompasse s a right to retain counsel of one's choice, the latter right does not trump, and will not be p ermitted to fru strate, the orde rly administration of criminal justic e. See Maynard v. Meachum, 545 F.2d 273, 27 8 (1st Cir. 1976); Kates v. Nelson, 435 F.2d 1085, 10 88-1089 (9th Cir. 1970) ; United States ex rel. Davis v. McMann, 386 F .2d 611 , 618-6 19 (2d Cir. 196 7), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1 153 (196 8); United States v. Bentvena, 319 F.2d 916, 936 (2 d Cir. 19 63), cert. -24- denied, 375 U .S. 940, 84 S. C t. 345, 11 L . Ed.2d 27 1 (1963); State v. Harper, 381 So.2d at 470-471 ; Rahhal v . State, 187 N .W.2d 800, 80 3 (Wis c. 1971 ). Wheat is exemplary of the latter restriction. There, two court days before his trial was to commence, Mark Wheat ( Wheat ), one of the many co-defendants on trial for charges arising out of an alleged broad-based drug ring, moved to substitute the counsel for two of his co-defen dants as his counsel as well. In suppor t of his mo tion, he asserte d his Sixth Amendment right to the counsel of his choice, and his willingness, as well as that of the affected co-defendants, to waive the right to conflict-free counsel. The trial court denied the substitution motion, finding irreconcilab le and unw aiveable conflicts of interest for co unsel, created by the likelihood that Whe at would be called to testify at any subsequent trial of one of his co-defendants and that the other would testify at Wheat's trial. In affirming the trial court, the Supreme Court noted the timing of the motion, just two days before trial, and emphasized the complexity of the drug distribution scheme alleged and the potential seriousness of the attorney s conflict, involving, as it did, three alleged co -conspirators of varying stature in the distribution scheme. The Court concluded: The District Cou rt must recog nize a presu mption in f avor of p etitioner's counsel of choice, bu t that pres ump tion may b e overco me n ot on ly by a demonstration of actual conflict but by a showing of a serious potential for conflic t. Wheat, 486 U.S. at 164, 108 S. Ct. at 1700, 100 L. Ed. 2d at 152. Certainl y, the petitioner s insistence on counsel of choice, which, b y the w ay, does not burden the State s resources, does not implicate any of the recognized qualifications on the -25- right to choic e. Clear ly, it does not come close to frustrating the orderly administration of the criminal justice system. D. The majority holds, as we have seen, that the O. P. D. is not required to pay for expert assistance or other ancillary services if the defendant is not repre sented by the O.P.D. (or a panel attorney assigned by the O.P.D.) __ M d. at __, _ _ A.2d at __ [s lip op. at 34]. Amplifying that holding , it explains: The operative p art of the statu tory definition o f indigent c ontained in Art. 27A is that the defendant is financially unable, w ithout undu e hardship , to provide for the full payment of an attorney and all other necessary expenses of legal representation. The services p rovided by the O.P.D. are n ot severable. In order for the defendant to qualify for the benefits provided under the [Pub lic Defender statute] and thereby require the [Office of the Public Defender] to pay for services, t he defen dant mus t be withou t independ ent mean s to obtain counsel. Id. As I interpret this holding, to qualify for State-funded services, a defendant must be represented by the OPD or one of its panel attorneys, but to qualify for OPD representation, he or she must b e witho ut indep enden t mean s to obta in coun sel. Th us, a defendant, though now ind igent, who retained co unsel wh en able to d o so, wou ld not qualify because, already having counsel, he or she would not b e witho ut indep enden t mean s to obta in coun sel. Similarly, a defendant who was always indige nt, but had f amily who reta ined coun sel for him -26- or her 11 or wh o was ab le to obtain pro bono counsel, 11 would In State v. Brown, 87 P.3d 107 3, 1086 (N .M. Ct. A pp. 2004 ) (Vigil, J., dissenting), addressing an issue much like that which this Court is confronting, Judge Vigil advanced, as one ground for his dissent, the strong policy of New Mexico to encourage pro bono services. That policy is reflected in the Pream ble to the N.M. R ules of Pro fessional C onduct an d in its Rule 16-601, re quiring N ew M exico attorneys to aspire to render at least 50 hours of pro bono public legal services per year. Therefore, Judge Vigil admonished the majority, we should advance that public policy by encouraging and supporting, not discouraging pro bono services. Moreover, Judge Virgil pointed out a necessary consequence of such discourag ement: [T]he majority opinion results in the unnecessary expenditure of public funds. While the majority recognizes that the Department has a limited budget and an obligation to administer its resources so that all of its clients realized [sic] their constitutional rights to counsel and ancillary services , [] its reasoning will result in higher, unneces sary expend itures by the State . First, it results in a greater client base for the Department since it discourages pro bono representation. Second , instead of a llowing the State to pay on ly limited expenses of Brown 's defense, the majority require s the State to p ay for all of them, including the most expensive component, counsel. The majority holding guarantees a need to spend more public funds, instead of encouraging pro bono representation with the potential to conserve state funds. It therefore re sults in an unreasonable a nd unnecessary burde n on the public treasury[,] id., concluding : Requiring indigent de fendants to abandon donated legal services and requiring them to accept representation by public defenders as a condition of receiving other basic tools of an adequate defense will only further increase these b urdens . Brown, 87 P.3d at 1086-10 87 (Vigil, J., dissenting). Like New Mexico, Maryland has a strong policy of encouraging attorneys to provide pro bono representation to indigent persons, as a public service and as a professional resp onsi bility. Like New M exico, the P reamble to ou r Rules of Pro fess iona l Res ponsibility, see Maryland Rule 16-812, recognizes a lawyer s responsibilities in that regard. It provides, as pertinent: A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and som etimes persons wh o are not poor, canno t afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all tho se who b ecause of econom ic or social barriers cannot afford (contin ued...) -27- not qualify because he or she was not represented by the OPD or a panel attorney. The majority rejoins that the defendant is not without recourse, he or she could accept OPD representation, with which comes the ancillary services, and that only requires either that the defendant forego the counsel of choice, whether retained w hen able, su pplied by a third party or provided pro bono, who is w illing and ab le to continue the representation and with whose services the defen dant is satisfied , or that coun sel becom e a panel atto rney subject to the supervision of the OPD.12 11 (...continued) or secure a dequate leg al counsel. A lawyer shou ld aid the legal profession in pursuing these objectiv es and sho uld help the bar regulate itself in the pu blic interest. So, too, is that policy reflected in our pro bono Rule, Rule 6.1, and because of the requireme nt, contained in Rule 16-903, that all attorneys annu ally report their pro bono serv ice, it perhaps is strong er than th e Ne w M exic o public p olicy. Also relevant on this issue is what was said in People v. Cardenas, 62 P.3d 621, 625 (Colo. 2002) (H obbs, J., dissenting). Allowing the state to pay costs, in conjunction with pro bono attorney time, as a matter of economic reality would encourage attorney participation in pro bono service. Pro bono representation envisions providing legal services without compensation, but n ot ne cess arily a t high ind ividual e xpense to the attor ney. When an attorney provides pro bono service, she demonstrates a commitment to the public in terest. When private counsel agrees to represent an indigent defenda nt, the burden a nd financ ial cost is take n off the state public de fend er's office. Allowing indigent defenda nts to rece ive support se rvices, at the state's expense, even when they are represented by private counsel, encourages couns el to pro vide the service and sav es the sta te the co st of atto rney's fees . 12 I recognize and acknowledge that the budget of the Office of the Public Defender is overburdened and, so, there can be no dispute that the OPD has a role to play in the decision to pay for ancillary services . As Ma ryland s is a unitar y, centralized Pu blic (contin ued...) -28- This scheme in fringes on the indigen t defenda nt s Sixth A mendm ent rights to counsel of choice, for the reasons discussed. In addition, it uses the wrong test of eligibility for 12 (...continued) Defender System, I do not doubt the value of the OPD maintaining appropriate control over services provided to defendants represented by outside counsel, preferably to the same extent as it exercises control over the expenditure of funds for services it provides to its own clients. Perhaps, as was done in In re Cannady, 600 A.2d 459, 462 (N.J. 1991), a framework needs to be developed to insure that the OPD occupies that position and discharges that resp onsi bility. Such a framework would recognize that the indigent defendant does not have the right, at th e State s expen se, to sele ct the m ost exp ensive expert. See Ross v. Moff itt, 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). It would also provide a process for the defendant to estab lish eligib ility, i.e. indigency, and also the need for the services sought. Courts that have been presented with the issue have held that permitting d efendan ts represented by outside attorneys to request State funds for ancillary services would not unduly burden the system. In Chao v . State, 780 A.2d 1060, 1072 (Del. 2001), rejecting the argument that such a regime would create a judicial hodgepodge in which the claims for services would o verburde n the system and the Office of the Public Defender would lose control over its b udget, the Delaware Supreme Court held that (1) the determination of indigency was a rou tine practice, (2) trial courts w ere routinely ask ed whe ther certain investigative services were necessary to a defen se, and (3) public funding would only be available in limited circumstances under trial court discretion, wh ere the cou rt deemed it unnec essary fo r the priv ate cou nsel to w ithdraw in favo r of the p ublic de fende r. The Vermont Supreme Court, in response to the State s concern that allowing necessary services to be State-funded would lead to an unfettered reimbursement of expenses incurred by defendants, responded: That is simply not the case ¦. To receive reimbursement, a defendant must show that a reque sted service is necessary to mount an adequate defense ¦. Anyone who has ever been re sponsi ble for a budge t, wheth er for a f amily, a business, or a large state agency, can understand the frustration of bearing financial responsibility for expenses that som eone e lse con trols. Nonetheless, we cannot see that this system poses an unmanageable problem for the Defender General. Indeed, the primary expense of that office--the number of needy defendants requiring representation--is entirely out of the control of the Defender General. A nd even in case s wh ere th e def endant is repr esen ted b y a public defender, the court may order the Defender G eneral to pay for a necess ary servic e. State v. Handson, 689 A .2d 108 1, 1084 (Vt. 19 96). -29- ancillary services; rathe r than indige ncy and nec essity, the factors identified and addressed in Ake, the majority predicates entitlement to ancillary services on the status of the attorney representing the indigent defendant. At least as important, the majority s interpretation of Article 27A produces anomalous and absurd results. Delaware, in Bailey v. State, 438 A.2d 877, 878 (Del. 1981), held that a defendant who is indigent but who manages (through the assistance of others) to retain counsel is not entitled to the services of a Public Defender appointee nor to funding from the P ublic De fend er's appropriation to employ an investigator as part of his defense effort. Nevertheless, it recognized an illogical aspect to its holding: an indigent defendant who relieves the public of the burden of representing him cannot secure investigative assistance w hich he ca n get (und er the Pub lic Defen der Act) if he places the entire burden on the public. Id. In State v. Wool, 648 A.2d 655, 660 (Vt. 1994), the Supreme Court of Vermont held that, under its Public Defender statute, an individual may qualify as needy despite the fact that the person can afford to pay for the services of or can otherwise retain an attorn ey, but canno t afford other necess ary repres entation expen ses ... [and] that [that statute] must be construed to entitle needy persons who are represented, either by an attorney or themselves, to public funding for other necessary expenses. That interpretation, it concluded, fosters sound fiscal and public policy, because a defendant would not be required to forego pro bono counsel or self-representation simply to obtain associated services at the public expense. Id., citing State v. Manning, 560 A.2d 693, 699 (N.J. Super . 1989) . See State v. Handson, 689 A.2d 108 1, 1083 (Vt. 1996 ), in which the court, in assessing the cost of necessary expenses in connection with the defendant s pro se -30- defense against the State s pu blic defen der, observ ed: [b]y wa iving the righ t to a public defender, defendant relieved the Defender General of a substantial financial obligation. See also Coyazo v. S tate, 897 P.2d 234, 240 (N.M. Ct. App. 1995) (commenting on the advantageous impact maintenance of a cadre of p rivate attorneys has on the public defender office - lessens the state s requirement for full time employees in the Public Defender Department ). The high courts of Iowa and Minnesota agree. We have already seen that the Iowa Supreme Court has held, in English v. Missildine, 311 N.W .2d at 294, th at the sixth amendment provides authority for furnishin g investigativ e services to in digents at pu blic expense without regard to whether the indigent is repres ented b y counse l at publi c expe nse. The court has also observed: It would be strange if the Constitution required the government to furnish both counsel and investigative services in cases where th e indigent needs and requests public payment for only investigative services. The Stat e's theory would impose an unreasonable and unneces sary additional b urden on the public treasury. Id. The Supreme Court of Minnesota made essentially the same point in State v. Pederson, 600 N.W .2d 451 , 454 (M inn. 1999), a case in which the court held an indigent defendant entitled to a trial transcript, despite the fact tha t he was re presented b y private appe llate counsel. Rejecting the state s argument that legal represen tation and ancillary services were a package deal, the court stated: -31- We acknowledge the concerns of the public defender and the dissent, but conclude that, like any other ind igent crimin al appellant w hom the p ublic defender offers to represent, Pederson is entitled to both the se rvices of a p ublic defender and a trial transcript at public expense .... We see no reason to force the state to pay for a service the indige nt criminal ap pellant doe s not wish to use. Accordingly, Pederson has the right to refuse the services of the public defen der, yet rec eive a tria l transcrip t at publi c expe nse. Pederson, 600 N.W.2d at 454. For the pre ceding rea sons, I dissen t. -32-

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