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Lowe v. State

Supreme Court of Mississippi, En Banc

December 12, 2013

John Bartholomew LOWE a/k/a John B. Lowe
v.
STATE of Mississippi.

Page 179

Office of State Public Defender by Hunter N. Aikins, Leslie S. Lee, John Bartholomew Lowe (pro se), attorneys for appellant.

Office of the Attorney General by Lisa L. Blount, attorney for appellee.

ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice.

We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense. [1]

¶ 1. The State indicted John Bartholomew Lowe on five counts of exploitation of a child, alleging that he had downloaded sexually explicit images and videos of children via the internet to his laptop computer. Because the State had no direct evidence that Lowe had downloaded the images, its case depended on the opinions of its expert witness.

¶ 2. Lowe contended that several others had access to his computer, and that someone else had downloaded the material. He requested funds to hire an expert to assist him in refuting the opinions of the State's expert. Because the trial court denied Lowe's request, thereby depriving him of the opportunity to prepare an adequate defense, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. After law enforcement authorities discovered sexually explicit images of children on Lowe's computer, the grand jury indicted him on five counts of exploitation of a child. Each count alleged that on June 6, 2009, Lowe downloaded sexually explicit images or videos of children under the age of eighteen via the internet to his laptop computer. Thereafter, the trial court entered an arraignment order, determining that Lowe was indigent and appointing him counsel.

¶ 4. During the law-enforcement investigation concerning the allegations against Lowe, Tom Thomas, an expert in computer forensics, performed a forensic examination of Lowe's laptop for the State. Prior to trial, Lowe filed several motions requesting funding for an expert of his own to perform a forensic computer examination and prepare a defense to Thomas's findings.

¶ 5. Lowe first raised his need for an expert in a motion for continuance filed March 18, 2010. Therein, Lowe argued that he needed additional time to prepare his defense so that he could obtain an expert to examine the computer's hard drive. That same day, Lowe filed a motion for funds to hire a computer expert. In that motion, Lowe argued that, because the State's expert had examined his hard drive and allegedly had found illegal material, he needed an expert to refute those allegations. He informed the court that he

Page 180

was an indigent defendant and would be unable to afford to pay his own expert.

¶ 6. Lowe informed the court that an expert would be necessary to " examine the hard drive which is alleged to have come from his computer to determine who could have downloaded the pictures and video clips onto his computer" and " to determine when the material was downloaded and under whose user name and password the alleged child pornography was accessed." Lowe averred that his expert was necessary " to properly meet the charges against him," and that granting a continuance and providing funds to obtain an expert would cause no harm to the State. Finally, Lowe presented an estimate of $1,500 as the cost to obtain the necessary expert. Thereafter, at a motion hearing before the trial court, the State agreed to a continuance so Lowe could attempt to obtain funds for an expert and review discovery, but the trial court failed to rule on the motion for funds.

¶ 7. Then, on May 27, 2010, Lowe filed a second motion for continuance. In this motion, Lowe asserted that, following his previous motion for funds, the trial court had instructed Lowe's counsel to speak with the State's expert. Lowe informed the court that the State's expert had refused to discuss the specifics of his forensic examination and had agreed to meet with Lowe's counsel less than two weeks before trial. Lowe averred that, without an expert of his own, counsel would lack the requisite knowledge to question the State's expert properly. Lowe also reasserted his prior argument that he required an expert " to determine the presence or absence of other user names and passwords" and " the time the alleged pornography was added to the computer." Finally, Lowe argued that a continuance was " absolutely necessary" so that he could obtain an expert and give that expert the requisite time to analyze the hard drive.

¶ 8. On June 3, 2010, the trial court denied Lowe's motion for expert funds. On June 8, 2010, the trial granted Lowe's continuance following a hearing on that motion. During that hearing, the trial judge instructed Lowe's counsel that he needed to consult with the State's expert before the court would burden the State with funding a defense expert. Lowe's counsel responded that he could not adequately prepare to question the State's expert without the knowledge of a defense expert. On November 9, 2010, the trial court entered a second order denying expert funds.

¶ 9. On April 11, 2011, the case proceeded to trial. Marie Taylor testified that she and her two daughters had resided with Lowe for some time. She testified that they each used Lowe's computer under various user names and passwords. Further, she explained that Lowe never refused anyone access to his computer and that, on at least one occasion during a party, numerous visitors had access ...


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