Court of Appeals of Indiana | Opinion 73A01-1507-CR-981 | May 4, 2016 Page 1 of 11

ATTORNEY FOR APPELLANT

Mark Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Scott Schuck,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 4, 2016

Court of Appeals Case No.

73A01-1507-CR-981

Appeal from the Shelby Superior 

Court

The Honorable Richard D. Culver, 

Special Judge

Trial Court Cause No.

73D01-1407-MR-1

Baker, Judge.
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[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.
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[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
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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.
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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 
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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 
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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. 
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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 
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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.
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[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.
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[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.