# State of Tennessee v. Georgia Lucinda Hagerty

> Court of Criminal Appeals of Tennessee · April 23, 2002

URL: https://www.frixlaw.com/law-library/cases/1074503

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** April 23, 2002
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge J. Curwood Witt, Jr.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 22, 2002 Session

STATE OF TENNESSEE v. GEORGIA LUCINDA HAGERTY

Extraordinary Appeal from the Criminal Court for Washington County
No. 26416 Lynn W. Brown, Judge

No. E2001-01254-CCA-R10-CD Filed April 23, 2002

We granted an extraordinary appeal, pursuant to Tennessee Rules of Appellate Procedure 10(a), to
consider the Washington County Criminal Court’s denial of the defendant’s ex parte motion seeking
funds for expert services, as outlined in Tennessee Supreme Court Rule 13 and the holding in State
v. Barnett, 909 S.W.2d 423 (Tenn. 1995). We stayed the trial court’s proceedings pending our
consideration of this issue. Upon a thorough review of the record in this case, the briefs of the
parties, and the applicable law, we reverse the ruling of the trial court, remand for further
proceedings consistent with our opinion, and lift the previously ordered stay so that trial court
proceedings may resume.

Tenn. R. App. P. 10; Ruling of the Criminal Court is Reversed, Vacated and Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
NORMA MCGEE OGLE , JJ., joined.

Merrilyn Feirman, Nashville Tennessee (on appeal); David F. Bautista, District Public Defender; and
Ivan M. Lilly, Assistant Public Defender (at trial), for the Appellant, Georgia Lucinda Hagerty.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Joe C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District
Attorney General, for the Appellee, State of Tennessee.

OPINION

This case is before us prior to a final adjudication on the merits by way of Rule 10
of the Tennessee Rules of Appellate Procedure, which authorizes review of interlocutory orders of
a lower court if it appears that the lower court may have “so far departed from the accepted and usual
course of judicial proceedings as to require immediate review,” or if it appears “necessary for
complete determination of the action on appeal.” Tenn. R. App. P. 10(a). Rule 10 further authorizes
this court to “issue whatever order is necessary to implement review under this rule,” id., and
pursuant thereto we ordered further proceedings in the trial court to be stayed so as not to frustrate
our consideration of the issue before us.

The defendant, Georgia Lucinda Hagerty, stands accused by the Washington County
Grand Jury of first-degree premeditated murder in connection with the October 11, 2000 shooting
death of Leslie John Sullivan. See Tenn. Code Ann. § 39-13-202 (Supp. 2001). The indictment for
first-degree murder was returned on January 8, 2001. Eight days later, the trial court appointed
counsel to represent the defendant and scheduled a trial date of April 4, 2001.

The defendant and the victim apparently had been intimately acquainted and were
living together at the time of Sullivan’s death. Defense counsel filed numerous pretrial motions,
including a March 9, 2001 motion requesting a continuance of the trial date. That motion alerted
the trial court that defense counsel were investigating allegations of prior violence by the victim
against the defendant with a view toward presenting such evidence at trial. The motion further
recited that as of the filing date of the motion, the defendant had not received the autopsy report and
that on March 7 the state submitted a witness list, enumerating many more witnesses than were
reflected on the indictment.

On March 9, 2001, the defendant also filed under seal with the trial court an ex parte
motion for expert services, a memorandum of law in support of the motion, and several affidavits
in support of the request. Rule 13, section 5 of the Rules of the Supreme Court of Tennessee
provides that upon review of the sealed materials and if the defendant has satisfied the threshold
pleading requirements, the trial court “must conduct an ex parte hearing on the motion and determine
if the requested services are necessary to ensure the protection of the defendant’s constitutional
rights.” Tenn. R. Sup. Ct. 13, § 5(b).

Evidently the trial court was satisfied with the preliminary showing that the defendant
made in her motion seeking expert services, and it scheduled the motion to be heard ex parte on
March 16, when the trial court planned to dispose of the other outstanding pretrial motions. At the
conclusion of the ex parte hearing, the trial court denied in toto the requested expert services and
ordered that the trial proceed as originally scheduled.

At this juncture, the defendant essentially had three options. She could resume trial
preparations and, if convicted, pursue the denial of expert services in her new trial motion and on
direct appeal. Second, she could petition the supreme court for review, pursuant to Tennessee
Supreme Court Rule 13, section 6(b), which provides in pertinent part that a party “aggrieved by the
final action taken with regard to . . . the authorization for expenses, or the authorization for services
may petition the Supreme Court for review.” Tenn. R. Sup. Ct. 13, § 6(b). In the event the petition
for review is granted, the relevant record excerpts are transmitted to the Clerk of the Supreme Court,
and review proceeds “de novo upon the record unless the court requests additional information.”
This rule, however, has no obvious mechanism to stay or suspend trial court proceedings while
review is being sought. Inasmuch as the defendant in this case was facing an April 4 trial date, less
than three weeks away, it is highly improbable that she could have secured a ruling before her trial

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commenced and concluded. The last option, which is the one that the defendant pursued, is to ask
for discretionary review by this court of the trial court’s interlocutory ruling and to seek a stay of the
lower court proceedings in the meantime. See Tenn R. App. P. 10.

Before turning to the merits of this appeal, we believe it appropriate to offer a few
comments about the record before us. In other pretrial motions filed in the lower court, the
defendant alluded to investigating evidence of previous violent incidents between the defendant and
the victim, and she argued the importance of this type of evidence as it may relate to her state of
mind at the time of the shooting. The state, consequently, was on notice of this likely theory of
defense.

Then when the trial court clerk, pursuant to this court’s order granting Rule 10
review, prepared the record for appeal, the original motion for expert services and other related
documents were transmitted to the appellate clerk in envelopes that had been marked sealed by the
trial court. The transcript of the ex parte hearing regarding expert services, however, was not
transmitted under seal, and in its brief on the merits, the state cites to specific pages of that transcript,
without subsequent objection from the defendant. Moreover, in her brief, the defendant quotes at
length from the affidavits of her proposed expert and of an attorney with trial expertise regarding the
“battered woman syndrome.” For these reasons, we shall refer to or quote from relevant and specific
portions of the supporting affidavits and passages of the transcript of the ex parte hearing, as needed.

The defendant’s motion to the trial court for expert services sought funding, in a
specific amount, to retain Keith Caruso, a medical and psychiatric physician who is in private
practice in Franklin, Tennessee. According to an affidavit that Dr. Caruso provided and that the
defense submitted to the trial court, Dr. Caruso has specialized expertise involving victims who have
been repeatedly traumatized, both physically and emotionally, which can lead to posttraumatic stress
disorder (PTSD) and can impair the victim’s ability to assess threatening situations. In the context
of domestic violence, PTSD is sometimes referred to as “battered spouse syndrome” or “battered
woman syndrome.”1

From our review of the record, we glean that the trial court’s denial of the request for
Dr. Caruso’s services was influenced by several considerations. The trial court relied heavily on the
absence of evidence that the defendant had a history of mental problems, on her competency to stand
trial, and on her “sanity” at the time of the commission of the offense. The trial court characterized

1
The fourth ed ition of the A merican Psychiatric Asso ciation’s Diagnostic and Statistical Manual of Mental
Disord ers (DSM-IV), classifies p osttrau ma tic stress as a mental disorder. The DSM -IV describes, in pertinent part, the
essential feature of this disorder as “the development of characteristic symptoms following exposure to an extreme
traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious
injury, or other threat to one’s physical integrity.” DSM -IV, at 309.81, p. 424. Qualifying traumatic events include
“violent personal assault.” Id. “[D]omestic battering” is included as an “interpersonal stressor.” Id., p. 425 The DSM-
IV does not use the phrase “b attered spou se syn drome ” or “battered w om an sy ndrom e” to se parately describe domestic-
type battering that can lead to posttraum atic stress disorder. For that reason, we shall speak of “p osttraum atic stress
disorder” in this opinion.

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the proof of prior instances of violence by the victim directed at the defendant as establishing only
that the defendant had voluntarily stayed in a “bad relationship” instead of leaving or prosecuting
the victim for assault. The trial court was critical that the defendant wanted funds to hire an
expensive, out-of-town psychiatric expert when the defendant had not first sought an order for the
defendant to undergo a local mental health evaluation. For all of those reasons, the court ruled that
the defendant had failed to demonstrate a “particularized need” for the services being sought.

We begin our analysis by pointing out that expert assistance for indigent defendants
charged with non-capital crimes is of recent legal vintage and can be traced to the 1995 decision of
the supreme court in State v. Barnett, 909 S.W.2d 423 (Tenn. 1995). Defendant Barnett was
convicted of non-capital first-degree murder based on the shooting death of his uncle inside the
defendant’s grandmother’s home. The defendant had a history of mental and emotional disturbances,
involving psychiatric hospitalizations. Shortly before trial, Barnett’s counsel asked the trial court
for an order appointing a state-funded psychiatric expert to assist the defense. The trial court denied
the motion, and that denial was affirmed on direct appeal on the basis that no statutory mechanism
existed that required or allowed for appointment of an expert in non-capital cases. The supreme
court affirmed the denial of services on different grounds and in the process created the present
framework for appointment of experts in non-capital cases.

At the time of Barnett, funding for experts at state expense was authorized only in
capital cases. See Tenn. Code Ann. § 40-14-207(b) (Supp. 1994); Tenn. R. Sup. Ct. 13 (1994)
(amended 1997). The impetus for funding in capital cases was constitutionally based, in recognition
of the United States Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087
(1985), which ruled that when a state musters its prosecutorial forces to bear against an indigent
defendant in a capital case, it must take steps to ensure that the accused has a fair opportunity to
present a defense. See id. at 76, 105 S. Ct. at 1092. A fair opportunity may require a state to provide
an indigent defendant with the “basic tools of an adequate defense or appeal.” Id. at 77, 105 S. Ct.
at 1092.

The question in Ake was whether the participation of a psychiatrist was sufficiently
important to the preparation of the defense as to be considered one of the “basic tools.” Taking into
account the private and governmental interests affected and the probable value, as weighed against
the risk of error in the proceeding if the assistance is withheld, the Court determined that “when the
defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to
be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.”
Id. at 82-83, 105 S. Ct. at 1096.

The Barnett court thoroughly examined the due process underpinnings of Ake and
concluded that Ake applied outside the capital context. “The due process principle of fundamental
fairness applies to all criminal prosecutions, and does not rest upon the severity of the sanction
sought or imposed.” Barnett, 909 S.W.2d at 428. The Barnett court’s work, however, was only half
completed. Next, the court proceeded to create the procedural framework to decide when state

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funded assistance should be ordered. The ex parte hearing became the load-bearing feature of the
framework.

The purpose of the ex parte hearing is to determine if the defendant can establish a
“threshold showing of particularized need” for the assistance. Id. at 431. Barnett articulated the
showing in the following fashion:

To establish particularized need, the defendant must show that a
psychiatric expert is necessary to protect his right to a fair trial.
Unsupported assertions that a psychiatric expert is necessary to
counter the State’s proof are not sufficient. The defendant must
demonstrate by reference to the facts and circumstances of his
particular case that appointment of a psychiatric expert is necessary
to [ensure] a fair trial. Whether or not a defendant has made the
threshold showing is to be determined on a case-by-case basis, and in
determining whether a particularized need has been established, a trial
court should consider all facts and circumstances known to it at the
time the motion for expert assistance is made. Finally, we emphasize
that Ake, in our view, does not require the appointment of a
psychiatrist who will reach conclusions that the defendant wishes.
What is important is that the defendant have access to, and the
assistance of, a competent, independent psychiatric expert when he
has made the threshold showing of particularized necessity.

Id.

In the wake of Barnett, Supreme Court Rule 13 was amended in 1997 to govern the
provision of "investigative or expert services or other similar services . . . necessary to ensure that
the constitutional rights of the defendant are properly protected." Tenn. R. Sup. Ct. 13, § 5. In its
present form, section 5 of Rule 13 provides in pertinent part,

(b) Counsel for the defendant must seek authorization for the services
considered necessary by motion delivered to the judge of the court
setting forth the nature of the services, the name and location of the
person proposed to provide the services, an explanation for not
obtaining the services in Tennessee if the person proposed to furnish
the services is not located in Tennessee, the means, the date, and time
and the location at which the services are to be provided, a statement
of the itemized costs of the services and the amount of any expected
additional or incidental costs, such as court appearances by experts.
If the trial court finds that the defendant has satisfied these threshold
requirements, the trial court must conduct an ex parte hearing on the

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motion and determine if the requested services are necessary to
ensure the protection of the defendant’s constitutional rights.

(c) If the total expected costs exceed five thousand dollars ($5,000)
per expert or the charge per hour of any person or entity furnishing
these services exceeds one hundred and fifty dollars ($150) per hour,
the proposed expenditures, if authorized by the court in which the
case is pending, must also be submitted to the director of the
Administrative Office of the Courts for approval by the chief justice
before the expenses can be incurred.

Id.

In denying the requested expert assistance of Dr. Caruso in this case, the trial court
referred multiple times to the decision in State v. Barnett as requiring the defendant to make a
particularized showing that her “sanity” was likely to be a significant factor in her defense. Neither
Barnett nor Supreme Court Rule 13, however, limits expert services to a psychiatrist who can
support a traditional insanity defense, as defined in Code section 39-11-501. Tenn. Code Ann. § 39-
11-501(a) (1997) (“It is an affirmative defense to prosecution that, at the time of the commission of
the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was
unable to appreciate the nature or wrongfulness of such defendant’s acts.”). Any doubt on this point
was removed by the supreme court in State v. Scott, 33 S.W.3d 746 (Tenn. 2000), holding that the
defendant was entitled to receive expert assistance in the field of DNA analysis and rejecting the
notion that Rule 13 expert assistance is limited to a particular field of expertise. Consequently, Dr.
Caruso’s services are not per se disqualified from Rule 13 consideration as potentially necessary to
ensure that the constitutional rights of the defendant are properly protected.

Next, the view that the defendant stayed in a “bad relationship” when she could have
left or prosecuted the victim illustrates the important nature of the professional assistance requested.
Posttraumatic stress disorder has arisen in criminal cases in Tennessee and has been used effectively
to explain and educate about the dynamics of an abusive, interpersonal relationship, about the failure
of a battered woman to abandon or jettison the relationship, and about the abused woman’s
perception of imminent danger at the time she commits the acts for which she is later prosecuted.
See State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991) (defendant stabbed husband and
convicted of second-degree murder; conviction reversed based on ineffective assistance of counsel
in abandoning at trial the theory that the defendant was a battered wife, who stabbed husband in self-
defense), on appeal following remand State v. Laurie Zimmerman, No. 01-C-01-9302-CC-00044
(Tenn. Crim. App., Nashville, Aug. 12, 1993) (defendant convicted of lesser-included offense of
criminally negligent homicide). We hasten to add that a jury, obviously, is free to discount any
expert testimony about posttraumatic stress disorder, but that decision should rest with a jury after
hearing all of the evidence.

The defendant in this case understood the daunting challenge of demonstrating, by
reference to specific facts and circumstances, that expert assistance is necessary to ensure – not a

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perfect – but a fundamentally fair trial. In our estimation, the defendant made the required showing
of “particularized need,” and, as we shall explain, the trial court thereby abused its discretion in
denying expert assistance. See Barnett, 909 S.W.2d at 431 (trial court’s denial of expert services
reviewed for abuse of discretion).

The first hurdle that the defendant had to clear on the way to showing particularized
need was the existence of a pattern of mental and/or physical abuse inflicted by the victim on the
defendant. At the motion hearing, the defendant introduced a certified copy of an arrest warrant
charging the victim with domestic violence against the defendant. The offense occurred
approximately one month prior to the victim’s death, and the affidavit of complaint recited that “for
all the parties involved safety [sic], and due to the high probability for future violence [Leslie
Sullivan] was taken into custody and transported to Washington County Detention Center.”

At the motion hearing, the defendant also presented affidavits and live testimony from
witnesses with personal knowledge of the victim’s repetitively abusive behavior toward the
defendant. Two long-time female friends of the defendant provided affidavits relating how the
victim had verbally cursed and physically abused the defendant and had threatened to “set her out
on the street.” One of the more violent episodes involved the victim pushing the defendant out of
a moving car and breaking her leg in several places.

A deputy with the Washington County Sheriff’s Department testified at the hearing
that he was personally acquainted with the couple, that the victim drank constantly, and that he
intervened and spoke by telephone to the victim on several occasions in an attempt to “quiet him
down.”

The deputy’s daughter also testified about the victim’s verbal abuse of the defendant
and about marks and bruises on the defendant, including a black eye. The defendant, who was four
feet nine inches tall, would offer excuses, such as falling down or bumping into door frames, but
because the deputy’s daughter was a certified nursing assistant she did not believe that the injuries
were consistent with the defendant’s explanations. This witness further testified that before meeting
the victim, the defendant was “friendly” and “outgoing.” After the defendant became involved with
the victim, the defendant became “[w]ithdrawn” and “[s]tuck to herself.” According to this witness,
the victim “[w]ouldn’t let [the defendant] associate with people. Just wouldn’t let her have any
contact with any of her friends. Just, basically, would always tell her who she could talk to, who she
couldn’t talk to.”

The trial court quizzed another defense witness regarding whether the defendant
explained to the witness why she shot the victim.

THE COURT: What did she say?

A. She feared for her life. She was afraid that he would eventually
kill her. Something about he was on medication for some kind of
depression or something evolving from, I guess, his time in service,

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or whatever. And there were times he would go off his medication,
and when he went off his medication he was a very violent person.

THE COURT: Did she explain why she didn’t leave, and chose to
shoot him instead?

A. She was afraid if she tried to leave he would kill her.

In our opinion, this evidence went beyond mere general assertions of domestic
violence by the victim and provided a factual foundation with which a requested expert could work.

The second hurdle to be cleared toward establishing particularized need was
demonstrating that domestic-type battering can result in post-traumatic stress disorder, which can
impair a woman’s ability to assess threatening situations. That impairment, in turn, could refute the
appearance that a homicide was premeditated. See State v. Hall, 958 S.W.2d 679 (Tenn. 1997). In
this regard, the defendant provided to the trial court the affidavits of Dr. Caruso and of attorney
David L. Raybin.

Dr. Caruso is board certified in psychiatry and forensic psychiatry. He has had
extensive training and practical experience in the inpatient and outpatient psychiatric environments,
including military service at Camp Lejeune, North Carolina as Division Psychiatrist of the Second
Marine Division. Dr. Caruso received specialized training in forensic psychiatry and completed a
fellowship at Walter Reed Army Medical Center, which was sponsored by the Army, Navy,
University of Maryland, Georgetown University, the U.S. Disciplinary Barracks at Fort Leavenworh,
Kansas, and the Federal Bureau of Investigation. He has performed competency and sanity
evaluations for the State of Maryland and has served as a psychiatric consultant to the FBI Academy
Profiling and Behavioral Analysis Unit. Before leaving the Navy, Dr. Caruso also served as chief
of inpatient psychiatry at Walter Reed Army Medical Center in Washington, D.C., and chief of
forensic psychiatry at the National Naval Medical Center in Bethesda, Maryland.

Dr. Caruso has been qualified as an expert in numerous criminal and civil cases. He
has served as a courtroom consultant in seven military courts martial proceedings, has been
employed both by the prosecution and the defense as an expert, and has been appointed as amicus
curiae in civil and criminal proceedings. After leaving the military, Dr. Caruso moved to Tennessee
and since then has been in private practice in Nashville and Franklin.

In his affidavit, Dr. Caruso explained that individuals who are repeatedly traumatized,
both physically and emotionally, may develop posttraumatic stress disorder (PTSD). An individual
with PTSD, who is “stressed by repeated exposure to the threat of continuing violence[,] may
misperceive the degree of threat on the basis of [a] severe mental disease and would thus be
incapable of forming the requisite mens rea for first degree murder.”

Mr. Raybin details in his affidavit his involvement, both as a Davidson County
Assistant District Attorney and as private defense counsel, with posttraumatic stress disorder in the

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context of domestic abuse and battering. Through his own litigation experience and by consulting
with other attorneys, he has developed an understanding of the disorder. As a result of his expertise,
Mr. Raybin has lectured on this topic to professional organizations and lay groups, and he has taught
classes to mental health professionals. According to Mr. Raybin,

[E]xpert testimony regarding the battered woman syndrome helps the
jury not only to understand the battered woman syndrome but also to
determine whether the defendant had reasonable grounds for an
honest belief that she was in imminent danger when considering the
issue of self-defense. Expert testimony on the battered woman
syndrome helps dispel the ordinary lay person’s perception that a
woman in a battering relationship is free to leave at any time. The
expert evidence would counter the “common sense” conclusions by
the jury that if the beatings were really that bad then the woman
would have left her husband much earlier. Popular misconceptions
about battered women would be put to rest, including the beliefs that
women are masochistic and enjoy the beatings and that they
intentionally provoke their husbands.

The information conveyed in Dr. Caruso’s and Mr. Raybin’s affidavits suffices, in
our view, to establish legitimate psychiatric recognition of posttraumatic stress disorder in the
domestic abuse or battering context and to explain the value of expert testimony in this area in
homicide prosecutions.

The remaining hurdle in this case on the way to establishing “particularized need”
was a connection between the facts and circumstances of the homicide at issue and posttraumatic
stress disorder. Determining whether this facet of particularized need has been satisfied is a delicate
undertaking.

In his affidavit, Dr. Caruso states that he has been made aware that “apparently a
substantial amount of information [exists] that suggests that the victim had repeatedly traumatized
the defendant, both physically and emotionally, prior to her alleged murder of the victim, who was
himself a convicted felon.” Dr. Caruso identifies one such incident when the victim shoved the
defendant out of a moving car and failed to obtain adequate medical care for the defendant’s
resulting injuries. According to Dr. Caruso, episodes of this type of abuse may produce
posttraumatic stress disorder. Dr. Caruso explained that he needed to conduct a forensic evaluation
involving interviews, review of records, and perhaps a physical examination of the defendant.

In his affidavit, Mr. Raybin states that he has reviewed investigative materials sent
to him by the defendant’s counsel. According to Mr. Raybin, events that are described in those
materials, such as drinking by the deceased, prior acts of abuse against the defendant, and forced
submissive behavior, are classic attributes of “battered woman syndrome.” Mr. Raybin writes,
“After reviewing all of this material I am of the opinion that this case definitely presents a significant
issue regarding battered woman syndrome.” (Emphasis in original).

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Denying expert services in this case because Dr. Caruso could not say, to a reasonable
degree of medical certainty, that the defendant suffers from posttraumatic stress disorder would set
an unreasonably high standard of “particularized need.” Experts typically require advance payment
or a reliable guarantee of payment in the future before they undertake the work necessary to arrive
at an expert opinion. For that reason, a threshold showing of particularized need does not, in our
opinion, require absolute certainty of results. On the other hand, a defendant must satisfy the trial
court that he or she is not embarking on a “fishing expedition” in the hope that favorable evidence
might be uncovered. See Barnett, 909 S.W.2d at 430 (“no abuse of discretion in denying state-paid
expert services when the request ‘was accompanied by little more than undeveloped assertions that
the services were needed to attempt to counter the State’s proof’”).

Our review of the materials in this case convinces us that the defendant has
demonstrated a particularized need for expert assistance in the field of posttraumatic stress disorder
that covers domestic-type abuse or battering. Dr. Caruso’s and Mr. Raybin’s preliminary assessment
of the situation and belief in the need for further investigation is persuasive in light of all the facts
and circumstances that have been shown to exist. Therefore, we conclude that the trial court erred
in rejecting the defendant’s bid for expert assistance in her case. Furthermore, the defense request
for an expert who resides in Franklin is not unreasonable on its face. Rule 13 states that an
explanation of the choice of a particular expert is required only in the event “the person proposed
to furnish the services is not located in Tennessee.” Tenn. R. Sup. Ct. 13, § 5(b). Absent compelling
circumstances, the selection of an in-state expert is entrusted to the sound judgment of defense
counsel who are endeavoring to provide effective assistance of counsel, who are obligated to
zealously represent their clients within the bounds of the law, and who are officers of the court.

Having concluded that the defendant in this case demonstrated a particularized need
for expert services, we are, nevertheless, reluctant to simply accede to the defendant’s request. The
trial court has a duty to ensure that the requested assistance is tailored to the particular case and
necessary. The cost of the requested services is also a legitimate, dutiful concern of the trial court.
See Tenn. R. Sup. Ct. 13, § 5(a) (trial court may grant authorization for . . . necessary services in a
reasonable amount to be determined by the court”) (emphasis added). Thus, if cost is a particular
concern, funding for Dr. Caruso’s services could be approved incrementally. In other words, funds
could be approved for Dr. Caruso to begin a preliminary investigation. Depending upon the results
of that investigation, additional funding thereafter could be authorized. Such an approach may well
prove to be a wise investment of judicial resources and an effective cost-control measure.

Finally, upon remand, scheduling matters should also be considered to allow adequate
time for an expert evaluation. In the context of the Rule 13 ex parte hearing, the defendant and the
trial court are not adversaries. See Barnett, 909 S.W.2d at 429 (“Only in the relative freedom of a
non-adversarial atmosphere can the defense drop inhibitions regarding its strategies and put before
the trial court all available evidence.”).

Accordingly, we reverse and vacate the ruling of the trial court denying expert
services, remand for further ex parte proceedings consistent with our opinion, and lift the previously
ordered stay so that trial court proceedings may resume.

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__________________________________________
JAMES CURWOOD WITT, JR., JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1074503. Public record. Not legal advice.