                                                                             FILED
                                                                        May 04 2016, 6:34 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Scott Schuck,                                             May 4, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          73A01-1507-CR-981
        v.                                                Appeal from the Shelby Superior
                                                          Court
State of Indiana,                                         The Honorable Richard D. Culver,
Appellee-Plaintiff                                        Special Judge
                                                          Trial Court Cause No.
                                                          73D01-1407-MR-1



Baker, Judge.




Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016                            Page 1 of 11
[1]   Scott Schuck appeals the trial court’s denial of his motion to correct error in

      which he argued that his attorney was entitled to reimbursement from public

      funds for investigatory costs accrued prior to trial. Finding that these

      investigatory costs were necessary for an adequate defense, but that the

      calculation of reasonable costs is a decision better made by the trial court, we

      reverse and remand.


                                                      Facts
[2]   On July 31, 2014, the State charged Schuck with the murder of his former

      girlfriend, Rebecca Cassidy. Schuck had a previous relationship with the law

      firm of Baldwin, Adams & Kamish (the Firm), and he told the trial court that

      since he had retained the Firm, he would not need a public defender.


[3]   On October 14, 2014, Schuck and the Firm petitioned for attorney fees and

      reasonable expenses. The Firm stated its belief that it would be entitled to

      withdraw from the case under Indiana Rule of Professional Conduct 1.16(b)(6)

      because Schuck was indigent, would likely be unable to pay, and would

      therefore impose “an unreasonable financial burden on the lawyer(s).” But the

      Firm told the trial court that it would be willing to represent Schuck on a pro

      bono basis, so long as the costs associated with investigating the case would be

      covered. In particular, the Firm anticipated that the State would rely upon

      expert scientific evidence regarding human remains allegedly found on

      Schuck’s property; the Firm thought it would need to hire scientific experts to

      meaningfully question the State’s witnesses.


      Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016      Page 2 of 11
[4]   On November 13, 2014, the trial court denied the petition for attorney fees and

      reasonable expenses, but it indicated that it would approve “paying necessary

      expenses incurred in the representation of [Schuck] . . . as long as expenses are

      approved in advance and are reasonable . . . .” Appellant’s App. p. 448-49. On

      December 16, 2014, the trial court further explained that it “recognize[d] the

      Defendant’s indigency and his need to employ an investigator and perhaps

      expert witnesses to assure him an adequate defense and a fair trial.” Id. at 148.

      The trial court also recognized that Schuck would be prejudiced if the State

      were able to track what investigations he was pursuing, and set up a procedure

      by which Schuck could confidentially make a “request for public funds to

      employ an expert witness.” Id. Those requests would then be reviewed by the

      trial court.


[5]   The judge who set up this process, however, retired shortly thereafter, and

      recused himself from the case on December 30, 2014. On January 2, 2015, a

      Special Judge was appointed to preside over the case.


[6]   On February 10, 2015, a little more than a month before trial was scheduled to

      begin, the Firm made a request for public funding to the new judge. It

      estimated that the preparation of Schuck’s defense would require between

      $5,000 and $15,000, and asked for public funding to meet these expenses. The

      Firm said that it did not have the requisite expertise in criminal investigation

      work to conduct an adequate investigation, that it did not have enough time to

      interview key witnesses, and that the attorneys did not “want to find themselves



      Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016     Page 3 of 11
      in a situation where they have become fact witnesses in this case.” 1 Id. at 451.

      The Firm requested an ex parte hearing regarding its basis for the request.


[7]   On March 11, 2015, just five days before trial was scheduled to begin and

      without holding a hearing, the trial court denied the Firm’s request, finding

      “that it is not necessary to retain the services of a private investigator in this

      cause and that the attorneys currently representing the defendant have had

      adequate time to interview all necessary witnesses prior to trial.” Id. at 541. In

      the meantime, since the Firm had not yet heard back from the trial court, it had

      paid an investigator to conduct interviews and to locate several witnesses.


[8]   Schuck’s trial began on March 16, 2015. The next day, after a jury was sworn

      and opening statements were presented, the parties reached a plea agreement.

      Schuck agreed to plead guilty to aiding voluntary manslaughter as a class B

      felony. At the plea hearing, Schuck admitted that he knew that his mother,

      Wilma Schuck (Wilma), had struck Cassidy with a deadly weapon, but that he

      then left an unconscious Cassidy alone with Wilma, who subsequently

      strangled her. After an April 15, 2015, sentencing hearing, Schuck was

      sentenced to twenty years of imprisonment for aiding voluntary manslaughter,

      with an additional ten years for being an habitual offender.


[9]   On April 22, 2015, the trial court granted the Firm’s request for reimbursement

      for three depositions, but denied its request for reimbursement for any of the



      1
          We will explain below what the Firm meant by this last statement.


      Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016        Page 4 of 11
       costs of the investigator. The Firm exchanged a series of emails with the trial

       court, attempting to explain why the use of an investigator was necessary and

       why they requested an ex parte hearing as part of their motion for public funds.

       One email explained, “In our 4-5 meetings with Wilma, she continually came

       closer and closer to admitting she was the one who killed Rebecca . . . . [S]o, we

       felt it very important to stop talking to her altogether and use, instead, a private

       investigator to continue investigating what had actually happened to Ms.

       Cassidy.” Id. at 20. Indiana Rule of Professional Conduct 3.7 generally

       prohibits lawyers from being advocates and witnesses in the same trial; the Firm

       was concerned that if they were the only people who heard Wilma make these

       statements, they might be forced to testify at Schuck’s trial. Therefore, they

       hired an investigator to interview Wilma so that there would be a witness to

       Wilma’s statements. This investigator also tracked down a potential defense

       witness who had seen an altercation between Wilma and Cassidy.


[10]   On May 22, 2015, the Firm filed a Motion to Correct Error regarding the denial

       of public reimbursement for the investigator. The trial court allowed affidavits

       in support of or opposition to the Firm’s position. Five criminal defense

       attorneys wrote affidavits in support of the Firm; they all argued that the fees

       were reasonable and necessary, and that attorneys would be discouraged from

       accepting pro bono clients if the attorneys were made to pay for investigations

       out of pocket. One affidavit stated that “while one might quibble with the rate

       and billing practices” used by the Firm, “the charges are not unreasonable and




       Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016      Page 5 of 11
       certainly at least 72% of the amount billed would be considered reasonable by

       the majority of practicing attorneys.” Appellant’s App. 390.


[11]   The Chief Public Defender of Shelby County provided an affidavit in

       opposition to the Firm’s position. He argued that the Public Defender Office

       has access to low-cost investigators, and might need to obtain additional

       appropriations for public funds requests; therefore, he did not believe that any

       request for public funds should be approved unless it was preapproved by his

       office.


[12]   After considering this evidence, the trial court denied the Motion to Correct

       Error. The court noted that the Firm’s invoices “appear[ed] to bill $125.00 per

       hour for almost 28 hours of interviews with [Schuck’s] Mother.” Appellant’s

       App. p. 422. The trial court found that these expenses “were not necessary to

       provide [Schuck] with adequate representation.” Id. Schuck now appeals.


                                     Discussion and Decision
[13]   Principles of fundamental fairness entitle an indigent defendant to an adequate

       opportunity to present his claims fairly within the adversary system. Scott v.

       State, 593 N.E.2d 198, 199 (Ind. 1992). The decision as to whether public funds

       should be used to reimburse expert or investigatory services provided to

       indigent defendants rests within the sound discretion of the trial court. Id. at

       200. A court is not required to fund any and all experts the defense believes

       might be helpful. Tidwell v. State, 644 N.E.2d 557, 560 (Ind. 1994). Instead,

       “the central inquiries are whether the services are necessary to provide an

       Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016     Page 6 of 11
       adequate defense and whether the defendant specifies precisely how he would

       benefit from the requested expert services.” Id.


[14]   We have previously enunciated some of the factors that should guide trial

       courts in this determination:


                (1) whether the services would bear on an issue generally
               regarded to be within the common experience of the average
               person, or on one for which an expert opinion would be
               necessary; (2) whether the requested expert services could
               nonetheless be performed by counsel; (3) whether the proposed
               expert could demonstrate that which the defendant desires from
               the expert; (4) whether the purpose for the expert appears to be
               only exploratory; (5) whether the expert services will go toward
               answering a substantial question in the case or simply an
               ancillary one; (6) the seriousness of the charge; (7) whether the
               State is relying upon an expert and expending substantial
               resources on the case; (8) whether a defendant with monetary
               resources would choose to hire such an expert; (9) the costs of the
               expert services; (10) the timeliness of the request for the expert
               and whether it was made in good faith; and (11) whether there is
               cumulative evidence of the defendant’s guilt.


       Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind. Ct. App. 2010), reh’g granted on

       other grounds, 943 N.E.2d 1282 (Ind. Ct. App. 2011).


[15]   Although some of these factors do not translate perfectly to the present case—

       Schuck was not asking for a scientific expert; rather, his attorneys needed an

       investigator to prevent them from running afoul of the Rules of Professional

       Conduct—we find that nearly every factor listed in Kocielko counsels in favor of

       public reimbursement of the Firm’s investigation expenses.


       Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016     Page 7 of 11
    1) Although questioning Wilma does fall “within the common experience

        of the average person,” the Firm was following the Rules of Professional

        Conduct in its attempt to avoid becoming a witness and advocate in the

        same trial;

    2) Therefore, the service could not have been performed by counsel;

    3) The investigator only needed to interview Wilma to demonstrate what

        the Firm wanted to demonstrate;

    4) The interview was not merely exploratory—the Firm knew exactly what

        information it was seeking;

    5) Whether someone other than Schuck committed the murder with which

        he was charged is clearly a substantial question;

    6) Murder is an extremely serious charge;

    7) The State was relying upon expert forensic testimony in this case;

    8) A defendant with monetary resources would have hired the investigator

        to conduct the interview;

    9) The cost of the investigation—roughly $6,000—is not large;

    10) The request was timely and made in good faith;

    11) The cumulative evidence of Schuck’s guilt had not been established

        before trial.


Our Supreme Court has previously recommended “‘[d]efense counsel [to]

conduct a prompt investigation of the circumstances of the case and to explore

all avenues leading to facts relevant to the merits of the case and the penalty in

the event of a conviction.’” Scott, 593 N.E.2d at 199-200 (quoting ABA


Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016     Page 8 of 11
       Standards for Criminal Justice (Third Edition), Standard 4-4.1(a) (approved

       1991) 49 Crim. L. Rep. (BNA) No. 2, at 2017 (April 10, 1991)). After

       becoming aware that Wilma had some involvement in Cassidy’s death, the

       Firm had a duty to its client to investigate what Wilma had done. It reasonably

       concluded that hiring an investigator to interview Wilma was necessary to

       avoid violating the Rules of Professional Conduct.


[16]   The State argues that by pleading guilty, Schuck rendered any investigation

       “not necessary,” as “there was no need to counter the State’s case because

       Schuck’s conviction was based entirely upon his own admissions in pleading

       guilty.” Appellee’s Br. p. 17. This argument is unavailing for several reasons.


[17]   First, our Supreme Court has made clear that defense services to indigent

       defendants “‘should provide for investigatory, expert, and other services

       necessary to quality representation. These should include not only those

       services and facilities needed for an effective defense at trial but also those that

       are required for effective defense participation in every phase of the process.’”

       Scott, 593 N.E.2d at 200 (quoting ABA Standards for Criminal Justice (Third

       Edition), Standard 5-1.4 (approved 1990) 49 Crim. L. Rep. (BNA) No. 2, at

       2022 (April 10, 1991)). The need to factually investigate the claims made

       against a defendant does not begin at trial. It begins before trial, and the

       information revealed during the course of the investigation will often be of vital

       consequence to the defendant and his attorney when deciding whether to accept

       a plea deal. That is precisely what happened in the present case.



       Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016       Page 9 of 11
[18]   Moreover, the State’s argument has terrible public policy implications. Public

       defenders or pro bono defenders would face a dilemma: if they believed that

       their client might plead guilty, they would be discouraged from spending any

       money on any factual investigation of the case. On the other hand, if they

       decided to spend some money on an investigation, they would be discouraged

       from counselling their client to accept any plea deal because it would render

       public reimbursement unavailable. Ironically, in the name of conserving scarce

       public money, the State would require pro bono defenders seeking public funds

       to go through a full trial, which would be vastly more expensive, even where

       the defendant is willing to plead guilty.


[19]   The State also repeats the argument made by the Shelby County Public

       Defender that the Firm was required to get preapproval from the local public

       defender’s office before requesting public funds. Indiana Public Defender

       Commission’s Standard for Indigent Defense Services in Non-Capital Cases,

       Standard N, deals with the situation of “a person who has retained private

       counsel for trial . . . [but] is unable to pay for” the investigations “necessary to

       prepare and present an adequate defense.” Available at http://www.in.gov/

       judiciary/pdc/files/indigent-defense-non-cap.pdf. It states that “[s]uch services

       are eligible for reimbursement from the public defense fund if authorized by the

       court.” Id. It further provides that such requests “should be made by motion to

       the court . . . .” Id. The State has cited no legal authority behind its contrary

       position, and so its argument fails.




       Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016      Page 10 of 11
[20]   The trial court also expressed a concern that the fees requested were

       unreasonably high. This is certainly a determination that is within the trial

       court’s discretion to make. But we do not believe that the process should work

       like a gameshow, where a request for too much money results in no money

       being awarded. Rather, if the trial court believes that the funding requested is

       unreasonably high, the trial court should hold a factfinding hearing to

       determine the appropriate amount of funding, and then award that amount

       instead.


[21]   That is what should occur in this case. Having found that hiring the

       investigator was necessary in this case, we believe the trial court should now

       determine what would be the reasonable cost of such an investigation.


[22]   The judgment of the trial court is reversed and remanded with instructions to

       hold a hearing to determine the amount of public funding that should be

       awarded.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016     Page 11 of 11
