              IN THE SUPREME COURT OF IOWA
                              No. 14–2114

                        Filed January 22, 2016

                        Amended April 19, 2016


STATE OF IOWA,

      Appellee,

vs.

ADAM CHRISTOPHER DAHL,

      Appellant.


      Appeal from the Iowa District Court for Emmet County, Donald E.

Courtney, Judge.



      A defendant appeals a district court decision denying his request

for an ex parte hearing to determine whether he is entitled to

appointment of a private investigator at state expense. REVERSED AND

REMANDED WITH DIRECTIONS.


      Matthew G. Sease of Kemp & Sease, Des Moines, and John M.

Sandy of Sandy Law Firm, Spirit Lake, for appellant.



      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant

Attorney General, and Douglas R. Hansen, County Attorney, for appellee.
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WIGGINS, Justice.

      A criminal defendant appeals a district court ruling denying his

request for an ex parte hearing on the merits of his application for

appointment of a private investigator at state expense. We conclude the

defendant was entitled to an ex parte hearing on the merits of his

application.    Accordingly, we reverse the order of the district court

denying the request for an ex parte hearing and remand the case with

instructions.

      I. Background Facts and Proceedings.

      Adam Dahl’s ex-girlfriend accused him of entering her home and

assaulting her. She further complained that he entered her vehicle and

took several items from the vehicle. The State charged Dahl with first-

degree burglary, third-degree burglary, and domestic abuse.     See Iowa

Code § 708.2A(1), .2A(3)(b) (2013); id. §§ 713.1, .3(1)(c), .6A(2).   The

district court appointed private counsel to represent Dahl after finding

him to be indigent.    Dahl entered a written plea of not guilty on all

counts.

      The facts that led to these underlying criminal charges are largely

irrelevant to this appeal.   This appeal concerns the district court’s

rulings on Dahl’s application for depositions at state expense and his

application for appointment of a private investigator at state expense.

Each application asserted the requested relief was necessary for Dahl’s

counsel to provide him with a proper and effective defense.       In the

application for appointment of a private investigator at state expense,

Dahl named a proposed investigator and indicated he sought the

investigator to review the case, conduct an investigation, and prepare a

written report. He approximated the cost for these investigative services

would be approximately $3000.
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      The district court granted the application for depositions at state

expense.    However, the court did not rule on the application for

appointment of a private investigator at state expense until the State had

a chance to resist the application.       The State resisted the application,

arguing it did not indicate the specific defense for which investigation

was necessary to ensure an adequate defense and asserting our caselaw

requires such specification.

      The district court ordered a hearing on the merits of the

application for appointment of a private investigator at state expense.

Dahl filed a motion requesting that the prosecutor not attend any portion

of the hearing relating to the necessity of hiring a private investigator to

ensure his adequate defense. He argued disclosing the basis of his need

for an investigator in the prosecutor’s presence would permit the State a

window into his trial strategy to which it was not entitled and violate his

due process rights under the Sixth Amendment of the Federal

Constitution and article I, section 10 of the Iowa Constitution.

      At the hearing, the district court permitted defense counsel first to

address the motion requesting the portion of the hearing concerning the

merits of his application to be conducted ex parte.         Defense counsel

indicated Dahl required an investigator to interview witnesses and

submitted documents regarding the qualifications of the desired

investigator and an estimate of the anticipated cost of hiring him.

However, defense counsel refused to indicate the names of the witnesses

Dahl sought to interview or why interviewing those witnesses was

relevant to providing Dahl with an adequate defense.          Dahl’s counsel

argued that to disclose such information in the presence of the

prosecutor would disclose his trial strategy to the State and violate his

ethical duty to zealously represent Dahl and maintain confidentiality
                                    4

concerning attorney–client communications. Counsel also argued such

disclosure would violate Dahl’s right to effective assistance of counsel

under the Federal and State Constitutions.

      The district court orally denied the motion for an ex parte hearing

concerning the merits of the application for appointment of a private

investigator, ruling the State had a right to participate in the hearing on

the merits of the application. Immediately thereafter, the court granted a

request to suspend the hearing to permit Dahl to file this interlocutory

appeal. The court also filed a written order denying the motion. In its

written order, the court acknowledged Dahl was required to disclose

specific information concerning what the private investigator would do

during the course of his investigation and how the information obtained

might be exculpatory for the court to grant his application. However, the

court found that permitting defense counsel to disclose such information

in an ex parte hearing outside the presence of the prosecutor to be

inappropriate.

      Dahl applied to this court for permission to appeal the district

court order in advance of a final judgment. See Iowa R. App. P. 6.104(1).

We granted the application for interlocutory appeal and stayed the

district court proceedings pending resolution of this appeal.

      II. Issue.

      This appeal raises the issue of whether a criminal defendant is

entitled to an ex parte hearing in connection with an application for a

private investigator under Iowa Code sections 815.7(1) and (5).       Dahl

points out that courts in other jurisdictions have interpreted similar

statutes and procedural rules to mandate ex parte hearings. He argues if

we do not interpret section 815.7 to require ex parte hearings for indigent

criminal defendants who request investigative services, we should find
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criminal defendants have a right to an ex parte hearing under the United

States and Iowa Constitutions.

      The doctrine of constitutional avoidance counsels us to construe

statutes to avoid constitutional issues when possible. State v. Iowa Dist.

Ct., 843 N.W.2d 76, 85 (Iowa 2014); Mall Real Estate, L.L.C. v. City of

Hamburg, 818 N.W.2d 190, 200 (Iowa 2012); see Ashwander v. Tenn.

Valley Auth., 297 U.S. 288, 345–48, 56 S. Ct. 466, 482–84, 80 L. Ed.

688, 710–12 (1936) (Brandeis, J., concurring). Accordingly, the issue we

will decide is whether we can construe the procedure required under

section 815.7 to allow for an ex parte hearing and avoid any

constitutional issues that may arise under the statute if construed in a

contrary fashion.

      III. Scope of Review.

      We review questions of statutory interpretation for correction of

errors at law.   State v. Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006).

Moreover, the Iowa Constitution provides this court with “supervisory

and administrative control over all inferior judicial tribunals throughout

the state.”   Iowa Const. art. V, § 4.   In this capacity, this court may

implement protocols to protect the rights of criminal defendants.      See

State v. Cashen, 789 N.W.2d 400, 408–10 (Iowa 2010) (implementing a

protocol to allow criminal defendants access to certain mental health

records), superseded by statute, 2011 Iowa Acts ch. 8, § 2 (codified at

Iowa Code § 622.10 (2011)), as recognized in State v. Thompson, 836

N.W.2d 470, 490 (Iowa 2013); see also In re Judges of the Mun. Ct., 256

Iowa 1135, 1136, 130 N.W.2d 553, 554 (1964) (per curiam) (discussing

this court’s duty to exercise its supervisory and administrative powers).
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      IV. Discussion and Analysis.

      The   Iowa   Code   establishes    a   procedure   whereby   indigent

defendants may retain an investigator necessary for the defendant to

present an adequate defense. The relevant statute states:

            1. An attorney who has not entered into a contract
      authorized under section 13B.4 and who is appointed by the
      court to represent any person pursuant to section 814.11 or
      815.10 shall be entitled to reasonable compensation and
      expenses.

            ....

           5. The expenses shall include any sums as are
      necessary for investigations in the interest of justice . . . .

Iowa Code § 815.7(1), (5) (2013).

      In construing section 815.7, we start with the proposition that the

Sixth Amendment to the United States Constitution requires the State to

pay for reasonably necessary defense services for which indigent

defendants demonstrate a need in order to ensure such defendants

receive effective assistance of counsel. English v. Missildine, 311 N.W.2d

292, 293–94 (Iowa 1981). However, this right is not limitless.

      Unless the trial court makes a finding that defense services,

including expert or investigative services, are necessary in the interest of

justice, an indigent defendant is not entitled to receive those services at

state expense. State v. Leutfaimany, 585 N.W.2d 200, 208 (Iowa 1998).

An indigent defendant bears the burden to demonstrate a reasonable

need for such services. State v. Coker, 412 N.W.2d 589, 593 (Iowa 1987).

We discourage courts from allowing the State to pay for defense services

when an indigent defendant merely seeks to embark on a random fishing

expedition in search of a defense. Leutfaimany, 585 N.W.2d at 208.

      In order to prevent indigent defendants from using state funds for

this sort of evidentiary exploration, we require the trial court to
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independently review facts asserted by counsel and grant the application

if those facts “reasonably suggest further exploration may prove

beneficial to defendant in the development of his or her defense.” Coker,

412 N.W.2d at 592. Thus, for the court to grant an indigent defendant’s

application for appointment of a private investigator at state expense, the

indigent defendant must inform the court of facts that demonstrate a

reasonable need for investigative services.

      When an indigent defendant requests the appointment of a private

investigator, the defendant needs to inform the trial court what the

investigator will do in order to demonstrate a reasonable need for the

services the investigator will provide. This may require the defendant to

disclose facts that will reveal defense counsel’s trial strategy or thought

processes.     Without this information, the court may be unable to

determine if the facts asserted by counsel “reasonably suggest further

exploration may prove beneficial to defendant in the development of his

or her defense.” See id. (emphasis omitted).

      If the trial court requires defense counsel to make a record of the

facts supporting a defendant’s reasonable need for investigative services

in the presence of the prosecutor, the State could deduce defense

counsel’s trial strategy from those disclosures. Disclosure of the defense

counsel’s trial strategy to the State impairs an indigent defendant’s right

to effective assistance of counsel. Ex parte Moody, 684 So. 2d 114, 120

(Ala. 1996).

      Congress foresaw this problem when it enacted 18 U.S.C.

§ 3006A(e)(1), the federal statute that addresses applications for defense

services by indigent defendants accused of federal crimes.         Section

3006A(e)(1) expressly permits indigent defendants to apply ex parte for

investigative, expert, or other services necessary for their counsel to
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provide adequate representation.           18 U.S.C. § 3006A(e)(1) (2012).

Legislative history indicates Congress intended the ex parte proceeding

requirement to “prevent the possibility that an open hearing may cause a

defendant to reveal his defense.”          H.R. Rep. No. 88–864 (1963), as

reprinted in 1964 U.S.C.C.A.N. 2990, 2990.

      “The right to counsel is the right to the effective assistance of

counsel.” State v. Williams, 207 N.W.2d 98, 104 (Iowa 1973). However,

we need not decide whether the trial court’s failure to provide an ex parte

hearing on Dahl’s application for appointment of a private investigator

violated any of Dahl’s constitutional rights because we agree with

Congress that an open hearing may possibly cause a defendant to reveal

his defense.

      Accordingly, we exercise our supervisory powers under article V,

section 4 to articulate 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.           Trial courts

should use this protocol in those rare circumstances when the State

objects to the appointment of a private investigator for an indigent

defendant.

      As     is   presently   done,   an   indigent   defendant   who   seeks

appointment of a private investigator at state expense must file a timely

application. The application should state the name of the investigator

the defendant seeks to retain, an estimate as to what the requested

services will cost and, if possible, a general description of what services

the investigator will provide.    The court should then give the State an

opportunity to resist the application. Generally, the State should resist
                                     9

an application on the ground that granting the application will prejudice

the administration of justice.   Examples of applications that may be

prejudicial to the administration of justice include those that are

untimely or filed to delay the proceeding. The State should not impede

the right of an indigent defendant to fully investigate the case or develop

a valid defense.    If the State resists the application, the prosecutor

should have the right to appear and participate in a hearing regarding

the application and the State’s resistance.

      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. If the court holds an ex parte hearing, the

court must report the ex parte hearing. The court must also seal any

transcript or order that would disclose defense strategy or work product

and file a separate order announcing its decision to grant or deny the

application.

      This protocol balances the statutory right of an indigent defendant

to obtain a private investigator against his or her burden to present

information to the trial court sufficient to support the granting of an

application for appointment of a private investigator at state expense.

This protocol also allows us to avoid deciding whether the failure of a

court to hold an ex parte hearing implicates any of the defendant’s

constitutional rights.
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      V. Disposition.

      We reverse the order of the district court denying Dahl’s request for

an ex parte hearing and remand the case to the district court to follow

the protocol contained in this opinion.

      REVERSED AND REMANDED WITH DIRECTIONS.
