STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF DURHAM 00 CRS

Similar documents
NO CR-0000 STATE OF TEXAS ) IN THE DISTRICT COURT VS. ) 226TH JUDICIAL DISTRICT JOE SMITH ) BEXAR COUNTY, TEXAS

CAUSE NO STATE OF TEXAS IN THE 184 th C. WESLEY FIELDS HARRIS COUNTY, TEXAS MEMORANDUM OF AUTHORITIES IN SUPPORT OF MOTION FOR FUNDS

Capacity to Proceed: How to Get Your Client Evaluated

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 November On writ of certiorari to review order entered 29 May 2012

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

NO CR-0000 STATE OF TEXAS ) IN THE DISTRICT COURT VS. ) 290TH JUDICIAL DISTRICT EDWARD SMITH ) BEXAR COUNTY, TEXAS

Court of Appeals of Ohio

NORTH CAROLINA COURT OF APPEALS *************************************** STATE OF NORTH CAROLINA ) ) v. ) From Wilkes ) AMANDA LEA ROSE )

No IN THE SUPREME COURT OF THE UNITED STATES. October Term JONATHAN BOYER, Petitioner, -vs- STATE OF LOUISIANA, Respondent

12 CVS. Scenic NC, Inc., ) Plaintiff ) ) ) North Carolina Department of MOTION FOR TEMPORARY RESTRAINING ORDER. ) Transportation, ) Defendant )

SECURING ATTENDANCE OF WITNESSES

UNITED STATES COURT OF APPEALS TENTH CIRCUIT. Appellee, No v. N.D. Okla. JIMMY LEE SHARBUTT, ORDER AND JUDGMENT *

NO. TENTH DISTRICT SUPREME COURT OF NORTH CAROLINA *************************************** STATE OF NORTH CAROLINA

SUPERIOR COURT DIVISION. to N.C.G.S. 15A-954 and 15A-972 et. al. (2010) to dismiss all charges in the abovereferenced

Expert Witnesses in Capital Cases. by W. Erwin Spainhour Senior Resident Superior Court Judge Judicial District 19-A May 10, 2012

NO CR IN THE COURT OF APPEALS 5TH JUDICIAL DISTRICT DALLAS, TEXAS. JOSEPH MICHAEL DEMERS, Appellant. THE STATE OF TEXAS, Appellee

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 June v. Caldwell County Nos. 07 CRS CRS TERRY ALLEN HALL, Defendant.

NO. FIELD(MAT_Cause No) STATE OF TEXAS IN THE DISTRICT COURT. VS. FIELD(MAT_Court) JUDICIAL. TOUPPER(FIELD(MAT_Client Name)) BEXAR COUNTY, TEXAS

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 16 December 2014

Follow this and additional works at:

Strickland v. Washington 466 U.S. 668 (1984), still control claims of

15B CIVIL RULES TABLE OF CONTENTS

BENJAMIN LEE LILLY OPINION BY v. Record Nos , JUSTICE LAWRENCE L. KOONTZ, JR. November 5, 1999 COMMONWEALTH OF VIRGINIA

- 1 - DISTRICT 29A NORTH CAROLINA COURT OF APPEALS ***************************************** ) ) ) ) ) ) ) ) ) ) )

SUPERIOR COURT OF CALIFORNIA, COUNTY OF

Give a brief description of case, particularly the. confession at issue and the pertinent circumstances surrounding

PETITION FOR WRIT OF HABEAS CORPUS FOR PERSON IN NEED OF HOSPITALIZATION BUT LEFT IN JAIL

IN THE SUPREME COURT OF GEORGIA

Case: 1:18-cv Document #: 1 Filed: 02/26/18 Page 1 of 6 PageID #:1

Jan Hoth, for appellant. Meredith Boylan, for respondent. Innocence Project, Inc.; Legal Aid Society et al., amici curiae.

Excerpts from NC Defender Manual on Third-Party Discovery

INDEPENDENT STUDY: ACCESS TO CIVIL JUSTICE IN NORTH CAROLINA KELLEY L. GONDRING CENTER ON POVERTY, WORK, AND OPPORTUNITY

Eyewitness identification is evidence received from a witness who has actually seen an event and can so testify in court.

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 2 December Appeal by defendant from judgment entered 17 August 2007 by Court of Appeals

IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA : : : : : : : : : : PETITION FOR WRIT OF HABEAS CORPUS

IN THE SUPREME COURT OF FLORIDA CASE NO. SC FRANK HERNANDEZ. Petitioner, -vs- THE STATE OF FLORIDA, Respondent.

Commonwealth of Kentucky Court of Appeals

Supreme Court of the United States

AFFIRM CONVICTION; AMEND SENTENCE AND REMAND FOR POST CONVICTION NOTICE

NO STATE OF TEXAS IN THE COUNTY COURT LAUREN ELIZABETH DAVIS HOOD COUNTY, TEXAS MOTION TO SUPPRESS PHYSICAL EVIDENCE AND ARREST

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR JOSEPHINE COUNTY. CASE No. 07-CR-0043

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 4 January Appeal by defendant from judgment entered 4 December 2009 by

NO. FIELD(MAT_Cause No) STATE OF TEXAS IN THE DISTRICT COURT. VS. FIELD(MAT_Court) JUDICIAL. TOUPPER(FIELD(MAT_Client Name)) BEXAR COUNTY, TEXAS

SUPREME COURT OF ALABAMA

Supreme Court significantly revised the framework for determining the. 221, 590 P2d 1198 (1979), in light of current scientific research and adopt[ed]

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

ATTORNEY S FEES AND COSTS THE TIMING OF AN ORDER AWARDING FEES: JURISDICTIONAL ISSUES

Case 6:18-cr RBD-DCI Document 59 Filed 08/16/18 Page 1 of 9 PageID 393 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

This matter came on to be heard before Administrative Law Judge Selina M. Brooks on December 6, 2013 in Morganton, North Carolina.

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA BONGANI CHARLES CALHOUN PETITIONER UNITED STATES OF AMERICA RESPONDENT

IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS AND IN THE FIRST JUDICIAL DISTRICT COURT OF JASPER COUNTY, TEXAS

PETITION FOR WRIT OF CERTIORARI

Case 1:05-cr SLR Document 25 Filed 12/20/2005 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

TERMINATING SEX OFFENDER REGISTRATION

Qualifications, Presentation and Challenges to Expert Testimony - Daubert (i.e. is a DFPS caseworker an expert)

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 31 December 2002

REGULATIONS FOR THE APPOINTMENT OF COUNSEL IN THE FOURTEENTH JUDICIAL DISTRICT IN CASES UNDER THE INDIGENT DEFENSE SERVICES ACT

Desmond Jerrod Smith v. State of Maryland No. 64, September Term 2007

THE STATE OF TEXAS, ) IN CRIMINAL DISTRICT COURT ) NUMBER 7 Plaintiff, ) ) DALLAS COUNTY, TEXAS v ) ) YYYY ANH XXXX, ) ) Defendant.

MOTION FOR RELEASE PENDING HABEAS CORPUS PROCEEDING AND BRIEF IN SUPPORT

IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI AT KANSAS CITY

NORTH CAROLINA SUPERIOR COURT JUDGES BENCHBOOK VOIR DIRE ON PRETRIAL AND IN-COURT IDENTIFICATION

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 1 May Appeal by plaintiff from order entered 19 April 2006 by Judge

[J ] [MO: Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT : : : : : : : : : : : DISSENTING OPINION

USA v. Brian Campbell

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY LEWIS WASHINGTON NO CP COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

JEROME K. RAWLS OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. v. Record Nos and September 18, 2009

STATE OF MICHIGAN IN THE SUPREME COURT. People of the State of Michigan, Plaintiff-Appellee, Case No

Part 1 Rules for the Continued Delivery of Services in Non- Capital Criminal and Non-Criminal Cases at the Trial Level

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Contested Cases Under the North Carolina

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

COMMITMENT ISSUES FOR LAW ENFORCEMENT

IN THE SUPREME COURT OF FLORIDA. v. FSC CASE NO. SC TH DCA CASE NO. 5D

IN THE INDIANA COURT OF APPEALS. No. 15A PC-2889 STATE S BRIEF OF APPELLEE

TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA: Pursuant to N.C.R. App. P. 21 and N.C. Gen. Stat.

STATE OF MICHIGAN COURT OF APPEALS

) ) ) ) ) ) ) ) ) ) 2. Petitioner filed a Victim Compensation Application seeking reimbursement for medical expenses.

Supreme Court of the United States

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 4 August v. Onslow County No. 06 CRS CLINT RYAN VLAHAKIS

Case 3:17-cv DJH Document 3 Filed 02/06/17 Page 1 of 10 PageID #: 13

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 2 July 2013

Supreme Court of Florida

The Simple Yet Confusing Matter of Sentencing (1 hour) Gary M. Gavenus Materials

Supreme Court of Louisiana

NO In The Supreme Court of the United States ARTEMUS RICK WALKER, STATE OF GEORGIA

NO. TO THE COURT OF CRIMINAL APPEALS OF TEXAS. DEMARCUS ANTONIO TAYLOR, Appellant v. The State of Texas, Appellee ***************

SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA ) ) ) ) ) ) ) ) ) ) ) ) ) ) (Hon. Sherry Stephens)

Supreme Court of Ohio Clerk of Court - Filed January 18, Case No IN THE SUPREME COURT OF OHIO

SUPREME COURT OF NORTH CAROLINA ****************************************************

No. 94-CV Appeal from the Superior Court of the District of Columbia. (Hon. Mary Ellen Abrecht, Trial Judge)

IN THE FLORIDA SUPREME COURT CASE NO. SC CHARLES KENNETH FOSTER, Petitioner. MICHAEL W. MOORE, Respondent.

ELECTRONIC PROGRAM MATERIALS*

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 17 September v. New Hanover County Nos. 11 CVM 1575 JOHN MUNN, 11 CVM 1576 Defendant.

LILLIE FREEMAN KEMP, Plaintiff, v. KRISTY GAYLE SPIVEY and TABOR CITY RESCUE SQUAD, Defendants NO. COA Filed: 5 October 2004

ADMINISTRATIVE HEARINGS COUNTY OF MECKLENBURG 12 DHR 00926

PETITION FOR REHEARING

Joint Legislative Oversight Committee on Justice and Public Safety. Office of Indigent Defense Services. William Childs Fiscal Research Division

Transcription:

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF DURHAM 00 CRS 000000 STATE OF NORTH CAROLINA ) ) EX PARTE v. ) MOTION FOR ) FUNDS FOR AN EXPERT JOHN DOE, ) WITNESS Defendant ) ) NOW COMES Defendant, John Doe, by and through his undersigned counsel, Susan E. Brooks, and moves this Honorable Court, pursuant to the Sixth and Fourteenth Amendments to the Constitution of the United States, Articles I, Sections 19 and 23 of the Constitution of the State of North Carolina, North Carolina General Statutes 7A-450(b) and 7A-454, and Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed. 2d. 53 (1985), to enter an Order providing the Defendant with reasonable funds to employ an independent expert witness in the field of psychology, specifically in the area of eyewitness perception and identification. As grounds, Defendant states: 1. Defendant has been found indigent and entitled to appointed counsel by the Court and is charged with the offense of Armed Robbery. 2. Defendant s liberty interest is significant in that he faces the possibility of lengthy active imprisonment. 3. The undersigned counsel has been appointed to represent Defendant on the abovenamed charge. 4. Based on counsel s review of discovery, the State s evidence in the above-styled case appears to consist entirely of photospread identification of Defendant by the alleged victim. 5. Moreover, this photospread identification may have been improperly conducted, in that it did not employ procedures to reduce suggestiveness that are recommended by the U.S. Department of Justice, adopted by the NC Criminal Justice Education and Training Standards Commission and taught to officers, or recognized by psychologists who specialize in the area of eyewitness perception and identification. See Gary L. Wells and Elizabeth A. Olson, Eyewitness Testimony, 54 Annual Review of Psychology 277-95, 285-290 (2003) (Appendix A) (discussing impact of lineup identification variables on eyewitness idenfication).

6. Additionally, the victim s memory and identification may have been compromised by factors such as the brief length of time the victim had to view the perpetrator, the presence of a firearm during the commission of the crime, the stressful nature of the crime, and the length of time between the crime and the photospread identification procedure. See Appendix A at 280-82 (discussing impact of witness and event characteristics on eyewitness identification). 7. Given the above-stated issues with the victim s identification of Defendant, Defendant has a particularized need for the assistance of an independent expert in the field of eyewitness perception and identification to review and analyze the procedures and methodology utilized by law enforcement in conducting the photospread identification and the factors potentially affecting the victim s memory and identification. 8. Such issues with the victim s identification of Defendant are not within the scope of the jury s general capability and understanding as laypersons, as required by NC Rule of Evidence 704 as interpreted in State v. Jackson, 320 N.C. 452, 460, 358 S.E.2d 679, 683 (1987). See Appendix A at 284-85 (discussing problems with lay observers judgments of accuracy). 9. The assistance of such an expert witness is an acknowledged benefit available to a defendant of monetary means. If Defendant were an individual of such means, counsel would strongly advise that Defendant employ such an expert to assist him in his defense. 10. N.C.G.S. 7A-450(b) anticipates the need that an indigent defendant may have for the assistance of expert witnesses: Whenever a person, under the standards and procedures set out in this Subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation.... 11. The Supreme Court of North Carolina has held that the request for an expert witness such as the type requested herein may be granted if the expert would assist materially in the preparation of the defense or if the denial of expert assistance would deprive the defendant of a fair trial. State v. Abraham, 338 N.C. 315, 348, 451 S.E.2d 131, 148 (1994). 12. Counsel for the Defendant lacks the necessary expertise to determine whether the procedures and methodology employed in the photospread identification procedure were inappropriate or whether the victim s memory and identification were compromised. Counsel is in need of the assistance of an expert witness in the field of eyewitness perception and identification to assist her in evaluating these matters.

13. Counsel for Defendant has contacted an expert witness in this field. This expert witness s fee is $250 per hour, and he estimates that his assistance would require 10 hours of work, for a total cost of $2,500. 14. Denial of funds to Defendant under circumstances such as those existing in the present case would amount to a violation of Defendant s rights to effective assistance of counsel, due process, and compulsory due process under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. Ake v. Oklahoma, 470 U.S. 68, 84 L.Ed. 2d. 53 (1985); Jacobs v. United States, 350 F.2d 571 (4 th Cir. 1965); State v. Bates, 333 N.C. 523, 428 S.E.2d 693 (1993); State v. Ballard, 333 N.C. 515, 428 S.E.2d 178 (1993). 15. The prosecution has no legitimate interest in the subject matter of this Motion, which the defense seeks to have heard ex parte. The State would also be unfairly advantaged in anticipating defense strategies were it permitted access to the hearing of this Motion. State v. Ballard; State v. Bates; see also State v. King, 75 N.C. App. 618, 331 S.E.2d, writ allowed, 334 S.E.2d 229, cert. den., 324 N.C. 545, 335 S.E.2d 24, appeal dismissed, 335 S.E.2d 900 (1985) (court erred in requiring that defense ballistics report be provided to prosecution where defense did not indicate that expert would be called or report introduced). Therefore, this Court should hear and grant this Motion ex parte and should have this Motion and any related orders sealed in the court file of this action. WHEREFORE, the Defendant respectfully requests this Honorable Court to enter an Order granting the defense the sum of $2,500 to employ an expert witness in the field of psychology in the area of eyewitness perception and identification. Defendant further requests that this Motion, along with any order granting or denying the relief sought herein, be sealed in the court file and only opened upon order of the Court. This the 18 th day of May, 2006. Susan E. Brooks Attorney at Law By: Susan E. Brooks Attorney for Defendant NC Bar # 28405 123 W. Main St., Suite 400 Durham, NC 27701 (919) 560-3380 (919) 560-3332 (fax)

APPENDIX A [Eyewitness Testimony Article]

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION COUNTY OF DURHAM 00 CRS 000000 STATE OF NORTH CAROLINA ) ) EX PARTE v. ) ORDER FOR ) FUNDS FOR AN EXPERT JOHN DOE, ) WITNESS Defendant ) ) This cause being heard by the undersigned Judge on Motion of Defendant John Doe for an Order for the reasonable funds necessary to employ an expert witness in the field of psychology in the area of eyewitness perception and identification; and it appearing to the Court that an expert in this field would assist materially in the preparation of the defense and/or the denial of such expert assistance would deprive the defendant of a fair trial. IT IS THEREFORE ORDERED that Defendant John Doe receive $ from the State of North Carolina to employ an expert witness in the field of psychology in the area of eyewitness perception and identification. IT IS FURTHER ORDERED that Defendant s Motion and this Order be sealed in the court file and only opened upon order of the Court. This the day of, 2006. The Honorable I.M. DeJudge