In State of Arizona v. Manuel, Not Reported in P.3d, 2011 WL 3210664 (Ariz.App. Div. 2), the defendant appealed his conviction for Aggravated DUI Based upon the failure to be provided with indigent funds to hire an expert of his choosing, namely Chester Flaxmeyer. The Pima County Office of Court Appointed Counsel (OCAC) refused to provide public funds sufficient for him to retain a particular expert. Instead, he was provided with expert Chuck LaRoue. On appeal, after receiving an 8 year sentence, he complained that he should have been given the expert of his own choosing.
Describing the state (and the underlying federal law) law in this area, the Arizona court wrote:
“The denial of expert witness assistance to a criminal defendant can violate the Due Process Clause of the Fourteenth Amendment.” Jones v. Sterling, 210 Ariz. 308, ¶ 27, 110 P.3d 1271, 1277 (2005). But “the appointment of an expert witness [is required] only when ‘such assistance is reasonably necessary to present a defense adequately at trial or sentencing.’ “ Id. ¶ 29, quoting Ariz. R.Crim. P. 15.9(a); see also A.R.S. § 13–4013(B). “The unique facts of each case will determine what is ‘reasonably necessary’ for an indigent to adequately present a defense.” State v. Bocharski, 200 Ariz. 50, ¶ 61, 22 P.3d 43, 55 (2001). And, because the mere denial of a request for appointment of an expert witness, much less an expert of the defendant's choosing, does not necessarily render a criminal trial an unreliable vehicle for determining guilt or innocence, the structural error standard of review does not apply. Cf. State v. O'Dell, 202 Ariz. 453, ¶ 13, 46 P.3d 1074, 1079 (App.2002) (showing of prejudice required to establish due process violation).
However, the court found that the defendant had failed to bring OCAC's refusal to provide funding to the trial court, and so the error was waived, except to the extent that it could constitute "a fundamental error." The court stated:
"Manuel initially sought funding through OCAC to retain Chester Flaxmeyer as an expert to testify regarding the accuracy of the Intoxilyzer 8000, the device used to measure Manuel's blood alcohol levels. OCAC denied Manuel's request because Flaxmeyer's fee exceeded the amount OCAC could authorize, and Flaxmeyer would not agree to reduce his fee. Thus, it was OCAC that made the funding decision Manuel argues was error, not the trial court. And, as we noted above, Manuel never challenged that decision before the court. Instead, he retained another expert, Charles Laroue, through funding approved by OCAC."
Concluding that no fundamental error occurred, the court wrote:
"Although the state filed a motion arguing Laroue lacked the qualifications to testify as an expert and should be precluded from testifying at trial, the trial court denied the motion, finding it was untimely filed. On appeal, Manuel points out that, despite its ruling, the court stated that if the state objected on foundation grounds to Laroue's testimony at trial, the court might sustain the objection. Manuel acknowledges, however, that Laroue testified at trial and the state did not object. To the extent Manuel challenges the qualifications of his own expert, we reject that argument.
"A witness may be qualified as an expert by “knowledge, skill, experience, training, or education.” Ariz. R. Evid. 702. At trial, Laroue stated he had testified as an expert witness in more than two hundred cases in Arizona. Laroue was a second-year law student with a bachelor of science degree in paralegal studies. Additionally, he stated he has logged hundreds of hours of training and experience with the Intoxilyzer 8000, has become an instructor for that device through a program approved by the United States Department of Transportation, and teaches classes on “a national basis for both the Intoxilyzer 5000 and the Intoxilyzer 8000.” “Whether a witness possesses sufficient qualifications to testify as an expert is a matter within the trial court's discretion and that determination will not be upset on appeal in the absence of clear abuse.” State v. Saez, 173 Ariz. 624, 630, 845 P.2d 1119, 1125 (App.1992). On the record before us, we find no error, let alone fundamental error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607."
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