                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1929
                            Filed September 13, 2017

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD LLOYD TATE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Kevin A. Parker,

District Associate Judge.



      A defendant appeals from the district court’s denial of his application for

an investigator and an expert witness. REVERSED AND REMANDED.



      Teresa M. Pope of Branstad Law, P.L.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, Presiding Judge.

          Richard Tate appeals following the district court’s denial of his application

for a court-appointed investigator and an expert witness. Tate claims the district

court erred by denying his application without an ex parte hearing as provided

under State v. Dahl, 874 N.W.2d 348, 353 (Iowa 2016).

          I.     Background Facts and Proceedings

          On July 28, 2016, the State charged Tate with operating while intoxicated.

See Iowa Code § 321J.2 (2016). On September 9, Tate filed an application for a

court-appointed investigator, stating, “Defendant requests appointment of a

court-appointed investigator in this matter, and requests private investigator Scott

Gratias be appointed with a fee limit of $800.00. An investigator is needed for

the purpose of obtaining witness statements and obtaining other exculpatory

information.” The State did not file a resistance, but the court held an unreported

hearing on the application on September 20. That same day, the court filed an

order summarily denying Tate’s application with no explanation given for the

denial.

          Eight days later, Tate filed a second application for a court-appointed

investigator and an expert witness “in order to locate additional evidence, and to

review the evidence the State possesses.”           In addition, Tate asked for the

application to be filed “ex parte and under seal” and cited the supreme court’s

recent decision in Dahl. An hour after the second application was filed, the court

summarily denied Tate’s second application. Again, the State filed no resistance

to the application.
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      On October 13, Tate filed a motion to enlarge, amend, and reconsider the

previous denials along with a motion to submit an offer of proof ex parte and

under seal.   Again citing Dahl, Tate asserted an investigator was needed to

speak with witnesses and an expert was needed to testify regarding the field

sobriety tests administered and the metabolization of alcohol.       In a separate

motion, Tate indicated his need to file an offer of proof to support his application

ex parte and under seal to provide the court facts to support his need for

investigative services. The court summarily denied both motions the following

day without a resistance from the State.

      On November 11, Tate filed an application for discretionary review of the

decisions of the district court. Specifically, Tate alleges the court erred when it

denied him an ex parte hearing according to Dahl protocol. The application was

granted, and the matter was transferred to this court.

      II.     Scope and Standard of Review

      We review the trial court’s decision whether to grant a defendant’s

application for state-funded investigators or experts for an abuse of discretion.

See Johnson v. State, 860 N.W.2d 913, 921 (Iowa Ct. App. 2014); State v.

Barker, 564 N.W.2d 447, 450 (Iowa Ct. App. 1997).

      III.    Ex Parte Hearing

      Tate asserts the district court erred in denying his motion to amend and

enlarge and his second application to have a court-appointed investigator and an

expert witness. Tate asserts the Dahl protocol requires an ex parte hearing to

provide additional information before ruling on the merits of the application. See

874 N.W.2d at 353. The State contends Tate did not meet Dahl’s “some merit”
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standard and was therefore not entitled to an ex parte hearing to further examine

the need for a private investigator or an expert witness at state expense.

       In Dahl, our supreme court articulated

       a protocol to balance the statutory right of an indigent defendant to
       the appointment of a private investigator under section 815.7
       against his or her burden to present sufficient information to the trial
       court to support the granting of an application for appointment of a
       private investigator at state expense.

Id. The court determined that indigent defendants must file a timely application,

stating the name of the investigator, an estimate as to the cost of services, and, if

possible, a general description of what services the investigator will provide. Id.

Additionally, the court should give the State an opportunity to resist the

application, and if the State resists the application, the prosecutor should have

the right to appear and participate in a hearing regarding the application. Id.

       Regarding an ex parte hearing, the Court determined:

       When a trial court deems an indigent defendant’s application for
       appointment of a private investigator may have some merit but
       does not contain adequate information for the court to determine
       whether it should grant the application, the court should hold an ex
       parte hearing before ruling on the merits of the application. At that
       hearing, the court should require the defendant to provide
       additional information that will allow it to rule on the merits.

Id.

       Tate’s first application for an investigator and an expert witness was set

for hearing on September 20.       We have no record of what occurred at that

hearing, including whether the State resisted Tate’s application.           After the

hearing, the district court summarily denied Tate’s application. It is thus unclear

whether the Dahl protocol was followed. However, Tate does not challenge this
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ruling on appeal.     Instead he focuses on the court’s denial of his second

application.

       Tate’s second application for an investigator and expert witness was filed

on September 28. Tate’s second application specifically cites the Dahl protocol

and asserts Tate is “unable to afford an investigator and expert witness,” and that

“[t]o deny the motion for an ex parte expert will put Tate in the position of having

to routinely disclose information through the application process solely because

he is indigent, and would violate his constitutional right to counsel.” See id. The

district court summarily denied the application the same day, one hour after it

was filed, without a resistance from the State or a hearing on the application. As

to this motion, it is clear the Dahl protocol was not followed.

       Tate’s motion to amend, enlarge, and reconsider also specifically cites the

Dahl protocol and asserts the “State did not resist [the] Application.” See id. The

district court summarily denied Tate’s motion one day later.

       Based on the record, we can determine the Dahl protocol was not

followed. The record contains no explanation for each denial filed by the court,

and no resistance from the State has ever been made part of the record. In

addition, with the exception of the unreported hearing on September 20, no

hearing, ex parte or otherwise, has been provided for Tate to demonstrate his

application has “some merit.”      Id.   We therefore conclude the district court

abused its discretion by denying Tate the opportunity to provide the necessary

factual support for his application for a court-appointed investigator and an expert

witness.
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       IV.    Conclusion

       Because we conclude the district court abused its discretion in denying

Tate’s second application for investigator and an expert witness, we reverse the

district court’s decision, and we remand this matter to the district court to follow

the protocol outlined in Dahl for consideration of such applications.

       REVERSED AND REMANDED.
