Beltrami County District Court

File No. J99550915

Hubert H. Humphrey, III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent State of Minnesota)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant J.A.G.)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.

J.A.G. is a minor charged with first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1. J.A.G. made an application for expert services under Minn. Stat. § 611.21, which was denied by the trial court. J.A.G. appeals, arguing that the trial court committed an abuse of discretion in denying him funding for an expert evaluation of a videotaped interview of the alleged victim. We affirm.

D E C I S I O N

1. Expert Services for Indigent Defendants

The determination of expert witness fees is a matter within the district court's discretion. State v. Volker, 477 N.W.2d 909, 910 (Minn. App. 1991). In reviewing a court order under Minn. Stat. § 611.21, the district court's determination of reasonable compensation should be reviewed under an abuse of discretion standard. In re Jobe, 477 N.W.2d 723, 725 (Minn. App.1991).

Indigent defendants have a due process right to gain access to expert witness assistance. Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 1092 (1985). This does not mean that defendants are to be given carte blanche to retain any expert, but only those experts necessary to afford defendants "an adequate opportunity to present their claims fairly within the adversary system." Id. at 77, 105 S. Ct at 1093.

Consistent with that policy, Minnesota allows an indigent defendant to request funding from the trial court for necessary expert services. Under Minn. Stat. § 611.21(a) (1994), counsel for an indigent defendant may request funds for investigative, expert, or other services necessary to an adequate defense in the case. Under this statute, a defendant seeking appointment of an expert must demonstrate that the services are necessary and that the defendant is financially unable to obtain them. Id. If the defendant makes the requisite showing, the court shall authorize counsel to obtain the services on behalf of the defendant. The court may establish a limit on the amount which may be expended or promised for such services. Id. When a request for expenses is denied, a defendant may take an immediate expedited appeal. Minn. Stat. § 611.21(c) (1994).

In Volker, we held that in order to find the financing of expert fees warranted, the trial court must have some specific evidence that the expert's testimony was necessary to appellant's defense. 477 N.W.2d at 909. We pointed out that appellant's affidavits failed to answer these questions: (1) Why is the expert necessary? and (2) How would the expert's testimony aid in appellant's defense?

J.A.G.'s attorney submitted two affidavits in support of the ex parte motion for expert services. The trial court denied J.A.G.'s motion, stating that "based upon the application the proposed expert would not aid this court as the finder of fact in evaluating the testimony of the victim child." The trial court noted that the statements in J.A.G.'s affidavits were basically different ways of articulating the same idea and ultimately went toward the credibility of the victim witness. Thus, it concluded that it would not aid the court as the trier of fact for an expert to testify at trial that preschool children are suggestible or that their testimony should be evaluated in light of their age.

Minn. R. Evid. 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The admissibility of expert testimony concerning the behavior characteristics typically displayed by adolescent sexual assault victims is a matter resting in the discretion of the trial court. State v. Sandberg, 406 N.W.2d 506, 511 (Minn.1987) (citing State v. Hall, 406 N.W.2d 503 (Minn. 1987)). A reviewing court will not reverse such a determination unless there is a clear abuse of discretion by the trial court. Sandberg, 406 N.W.2d at 511.

In State v. Myers, expert testimony was allowed for the court determined that "the common experience of the jury may represent a less than adequate foundation for assessing the credibility of a young child who complains of sexual abuse." 359 N.W.2d 604, 610 (Minn. 1984). We find the present facts distinguishable from Myers, for an experienced district court judge and not a lay jury is serving as fact finder. Here, the trial court determined that expert testimony concerning the suggestibility of preschool child would not aid the court as trier of fact. This ruling is within the wide discretion of the trial court under Minn. R. Evid. 702.

Upon examination of the affidavits submitted with J.A.G's motion, we find no evidence that the trial court abused its discretion in ruling that J.A.G. failed to adequately demonstrate that the requested expert services were necessary. J.A.G. has also failed to produce any specific evidence why an experienced trial judge is not qualified to determine the credibility of S.H.'s statements. Therefore, the trial court's denial of expert witness fees was not an abuse of discretion, for the court ruled that expert testimony in this matter was unnecessary and would not aid the court as the trier of fact.

2. Public Defender Budget Inquiry

J.A.G. also claims the trial court erred by making an inquiry whether any funds remained in the public defender budget. J.A.G. argues that details of the public defender budget are not an appropriate area of inquiry for the court in making a decision about providing funds for an expert witness.

States have a constitutional obligation to provide indigent clients with the "raw materials" needed for an effective defense, but the Supreme Court has left states to decide how to implement this right. See Ake at 83, 105 S. Ct. at 1096. In Application of Wilson, this court held:

[T]he state can satisfy the requirements of Ake either by funding investigative services through the public defender budgets or by funding them through petitions to the court. If the district public defender's budget actually includes funds reserved for investigative services, the district court, in considering a request under section 611.21, may look to whether any of those funds remain available to the defendant.

Wilson, 509 N.W.2d 568, 571 (Minn. App. 1993).

Wilson expressly rejects J.A.G.'s argument that details of the public defender budget are not an appropriate area of inquiry for the court in making a decision about providing funds for an expert witness. Wilson directs that only when the district public defender's expert budget is totally depleted, and there is no evidence to the contrary, may an indigent defendant be appointed expert services. Id. at 571. Wilson also states that a trial court may not require a detailed accounting of how the public defender funds were spent, but it does allow courts to require proof that there is no money available Id.

In the present case, J.A.G.'s attorney merely stated in her affidavit that "they do not have any available funds." The trial court held that this was not an adequate showing of whether or not public defender funds remained available for expert services. It appears that the trial court did not abuse its discretion, for Wilson states a court may require proof that there is no money available in the public defender's expert budget. Only when this fact is demonstrated may an indigent defendant be appointed expert services. Id.

Affirmed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.