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Putnal v. State

Supreme Court of Georgia

May 7, 2018

PUTNAL
v.
THE STATE.

          BOGGS, Justice.

         Dustin Drew Putnal has been indicted in Polk County for one count each of malice murder, aggravated battery, and aggravated sexual battery and two counts each of felony murder and cruelty to children in the first degree in connection with the death of Ella Grayce Gail Pointer, a minor, on or about October 28 or 29, 2016. The State is seeking the death penalty. As set forth in more detail below, after the trial court issued an order denying Putnal's motion to proceed ex parte and under seal with regard to his requests for defense-retained mental health experts to gain access to him in the detention center where he is incarcerated, Putnal obtained a certificate of immediate review from the trial court and filed an application for interlocutory appeal in this Court. See OCGA § 5-6-34 (b). This Court granted Putnal's application in an order directing the parties to address: "Whether the trial court erred in denying Putnal's motion to proceed ex parte and under seal with regard to matters pertaining to his expert mental health investigation." We also directed that, in addressing this question, the parties discuss Zant v. Brantley, 261 Ga. 817, 817, 818-819 (2) (411 S.E.2d 869) (1992), in which this Court held that the State was not entitled to be present at a hearing concerning the defendant's request for an access order similar to the access orders involved in Putnal's case. For the reasons set forth below, we conclude that the issue presented in this case is controlled by Brantley. We therefore reverse the trial court order from which Putnal appeals, and we remand this case for further proceedings consistent with this opinion.

         1. Because Putnal is indigent, the capital defender division of the Georgia Public Defender Council ("Council") represents him, as provided under the Indigent Defense Act. See OCGA §§ 17-12-1; 17-12-12 (a). That act also requires the State to fund the costs of obtaining expert assistance for indigent capital defendants. See OCGA § 17-12-12.1 (c) (providing that the Council, "with the assistance of the Georgia capital defender division, shall establish guidelines for all expense requests for cases in which the death penalty is sought, " including, but not limited to, expert and investigative fees); Phan v. State, 290 Ga. 588, 590 n.6 (723 S.E.2d 876) (2012) (noting that the Indigent Defense Act requires the State, not the county, to fund death penalty defense for indigents). Therefore, Putnal has no need to apply to the trial court for county funds for expert assistance. However, Putnal asserts, and the State agrees, that the Polk County sheriff requires a court order for outside parties to be allowed to examine inmates in the Polk County Detention Center, where Putnal is currently incarcerated. Thus, Putnal must obtain an order from the trial court before any mental health experts who have been retained in preparation for his defense are able to have access to him for any purpose, including interviews, evaluations, testing, and examinations. The relevant facts as agreed to by the parties in their briefs and/or demonstrated by the record show that, as a result of Putnal's need to obtain such orders, the following events led to the order from which Putnal appeals.[1]

         On two separate occasions, June 23 and 27, 2017, defense counsel filed with the trial court in chambers an ex parte motion requesting that a defense-retained mental health expert be allowed to access Putnal at the detention center in order to examine him.[2] On each occasion, defense counsel also presented the trial court with a proposed ex parte order granting the motion. On June 27, 2017, the trial court signed both orders, each of which provided that the order "shall be considered confidential and shall not be disclosed until such direction from the [c]ourt."

         Nevertheless, acting sua sponte and without prior notice to the defense, on Friday, June 30, 2017, at 4:41 p.m., the trial court filed with the superior court clerk a document that it had created entitled "Filing of Motions, " which listed the two ex parte motions that Putnal had submitted to the trial court in chambers on June 23 and 27, 2017, respectively. The designations by which these ex parte motions were listed on the trial court's "Filing of Motions" included the names of the defense-retained mental health experts and the fact that those experts were to examine Putnal, yet the trial court did not file this document under seal.[3] At the same time, the trial court also filed with the superior court clerk the actual motions that Putnal had originally filed ex parte with the trial court in chambers and the signed orders granting those motions for access to Putnal in the detention center by his two named mental health experts. However, the trial court did not seal those motions or orders. Then the trial court immediately served the State and defense counsel via e-mail with its "Filing of Motions" and attached copies of the motions that Putnal had filed ex parte in chambers on June 23 and 27, which were now also stamped as filed by the clerk on June 30, 2017.

         By reply e-mail shortly thereafter, defense counsel objected to the trial court's disclosures. Then, on July 3, 2017, which was the next business day, defense counsel served the State and provided the trial court with its combined motion and brief regarding ex parte communications by the defense, in which defense counsel asked the trial court to seal its document entitled "Filing of Motions, " the two defense motions requesting that named mental health experts be granted access to Putnal, and the two orders granting those motions. On July 7, 2017, after receiving a brief from the State disputing that ex parte communications were authorized under the circumstances, the trial court denied Putnal's motion.[4]

         2. Putnal contends that the trial court erred by finding that no persuasive legal authority exists to support his contention that ex parte communications were not only authorized but required under the circumstances in his case, citing Ake v. Oklahoma, 470 U.S. 68 (105 S.Ct. 1087, 84 L.Ed.2d 53) (1985), and Brooks v. State, 259 Ga. 562 (385 S.E.2d 81) (1989). In Ake, the United States Supreme Court held that the Fourteenth Amendment's due process guarantee of fundamental fairness requires that an indigent defendant be given access to a competent mental health expert upon a showing that his sanity at the time of the offense will be a significant factor at trial. As this Court has recognized, this right to expert mental health assistance also "applies, when appropriate, to the sentencing phase of capital proceedings." Bright v. State, 265 Ga. 265, 270 (2) (c) (455 S.E.2d 37) (1995) (citing Ake, supra, 470 U.S. at 83-84 (III) (B)). Although the Supreme Court did not incorporate mandatory ex parte procedures into its holding, it did recognize the appropriateness of such procedures in dicta. See Ake, supra, 470 U.S. at 82 (III) (A). In Brooks, decided four years after Ake, this Court confronted the issue of whether an indigent criminal defendant is entitled to an ex parte hearing to determine whether he should receive public funds for investigative or expert assistance. Brooks, supra, 259 Ga. at 563 (2). Finding no clear authority on the issue, we conducted our own analysis and found that such a hearing must be conducted ex parte. See id. at 563-566 (2).

         Putnal argues that Brooks supports his position that, as an indigent criminal defendant, he has a right to ex parte communications with the trial court on matters that could reveal issues relating to the confidential preparation of his defense, including efforts to obtain orders granting his mental health experts access to him for purposes of examination and evaluation. The State responds, based on various arguments, that Brooks does not apply to the circumstances in Putnal's case. For the reasons that follow, we reject each of the State's arguments in turn.

         3. Citing language in Brooks, supra, referring to the specific situation addressed there, i.e., "an indigent criminal defendant's application for funds for expert assistance, " 259 Ga. at 563 (2) (emphasis supplied), the State first argues that Brooks is inapplicable to Putnal's situation because Putnal does not have to apply to the trial court for funds, given that funds for his expert assistance are being provided by the State through the capital defender division of the Council. However, the State's argument fails to recognize the reasoning behind this Court's decision in Brooks. There we explained:

Identification of the right which is at stake here is more complicated than acknowledging the right of the indigent defendant to obtain the expert assistance necessary to assist in preparing his defense. While exercising that right, the defendant also has the right to obtain that assistance without losing the opportunity to prepare the defense in secret. Otherwise, the defendant's "fair opportunity to present his defense, " acknowledged in Ake, [supra, 470 U.S. at 76 (III), ] will be impaired.

(Emphasis supplied.) Id. at 565 (2). Just as "[a] defendant could be placed in a position of revealing his theory of the case" in order to make the showing required to support his request for funds for expert assistance, [5] a defendant also could be placed in that position in making other requests to the trial court related to utilizing that assistance, such as obtaining an order allowing a defense-retained expert to access the defendant for purposes of testing and examination. Id. at 566 (2). In either case, Brooks holds that a defendant "has the right to obtain [expert] assistance without losing the opportunity to prepare the defense in secret." Id. at 565 (2).

         This reading of Brooks is supported by another of this Court's decisions that closely followed it. Approximately three years after Brooks, this Court considered an appeal in which a death-sentenced defendant awaiting the hearing on his motion for new trial was, like Putnal, required to obtain an order from the trial court before his mental health experts could have access to him in the facility where he was incarcerated. See Brantley, supra, 261 Ga. at 817. There, the trial court "issued an ex parte order instructing the warden to allow a named physician to conduct an evaluation of [the defendant] while a member of [the defendant]'s counsel team observed, and instructed the warden, the [warden]'s staff, and [the warden]'s attorney . . . to refrain from discussing or disclosing the contents of the order to anyone other than the court or [the defendant]'s counsel." Id. at 817. After the warden challenged the trial court's jurisdiction to issue the order, the trial court held a hearing on the matter and excluded the district attorney who was opposing the defendant's motion for new trial. See id. at 818 (2). On appeal, this Court rejected the argument that the exclusion of the district attorney contravened Brooks and held that, on the contrary, "the exclusion was proper" under Brooks, explaining the following:

In Brooks, we determined that an indigent defendant had a legitimate interest in making an application for funds for investigative or expert assistance ex parte so that an indigent defendant would not be put in a position of revealing his theory of the case to the prosecution. Where, as here, a defendant files a motion for new trial alleging ineffective assistance of trial counsel on the ground that trial counsel failed to obtain the assistance of necessary experts and failed to obtain competent assistance from those experts who were retained, it is similarly important that the defendant's theory of his case not be revealed to the prosecution. Therefore, the prosecution, embodied in the District Attorney, was not entitled to be present at the hearing where the trial court's grant of the defendant's ex parte request [to allow a named physician to conduct an evaluation of him at the facility where he was incarcerated] was at issue.

(Emphasis supplied.) Brantley, supra, 261 Ga. at 818-819 (2). Therefore, this Court in Brantley reaffirmed that the relevant question in determining whether a defendant is entitled to proceed ex parte and under seal is not whether the matter involves an application for funds for expert assistance but whether not proceeding ex parte and under seal could improperly place a defendant in "a position of revealing his theory of the case to the prosecution." Id. at 818 (2). Moreover, particularly significant to Putnal's case is our recognition in Brantley that a defendant's motion seeking access for an expert to evaluate him could ...


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