State v. Brown

Decision Date15 January 2004
Docket NumberNo. 23610.,23610.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. William P. BROWN, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Santa Fe, for Appellee.

Stephen Karl Kortemeier, The Kortemeier Law Firm, Elephant Butte, for Appellant.

John Bigelow, Chief Public Defender, Sue A. Herrmann, Appellate Defender, Santa Fe, for Amicus Curiae.

Certiorari Granted, No. 28,471, March 16, 2004.



{1} This case is a sequel to Subin v. Ulmer, 2001-NMCA-105, 131 N.M. 350, 36 P.3d 441. We decided in that case that a district court has no authority to order the Public Defender Department (Department) to pay expert witness fees for an indigent defendant who is represented by counsel paid for by family members. The question we must answer in this case is whether that rule applies equally to expert witness fees paid from unspecified state funds where counsel represents the indigent defendant pro bono for no fee. Based on our decision in Subin, the district court concluded that it lacked such authority and certified the issue for interlocutory appeal. We granted the application for appeal, and we now affirm.


{2} William Brown (Brown) was charged with committing three felony offenses and one misdemeanor offense. The magistrate court and district court each made an explicit finding that Brown was indigent. An attorney on contract with the Department was appointed to represent him. However, Stephen Kortemeier had previously entered his appearance as Brown's private attorney. Mr. Kortemeier then filed a declaration under oath that he had refunded Brown's retainer fee and agreed to represent Brown without charge. The State and Brown thereupon stipulated, and the district court ordered, that Brown was indigent and was "entitled to all services, including waivers of fees and costs, normally provided by the State of New Mexico to an indigent defendant."

{3} Counsel determined that expert witnesses were necessary to defend Brown. The Department, however, refused to provide funds for expert assistance in defending Brown on the ground that expert fees are not paid by the Department on behalf of an indigent defendant unless the defendant is represented by the Department or an attorney on contract with the Department. Additionally, the Department told Mr. Kortemeier he was not eligible to become a contract attorney. {4} Brown then filed a motion with the district court seeking an order for funds from any appropriate source to hire necessary experts. Brown primarily argued that he had a constitutional right to the funds. He argued that Subin was wrongly decided, and he also argued that Subin was distinguishable (1) because his counsel's representation was pro bono whereas in Subin someone hired counsel on the defendant's behalf and (2) because Brown was "not determining which arm of the State is fiscally responsible to furnish the requested funds."

{5} A hearing was held at which Brown reiterated his position that Subin was incorrectly decided as a matter of constitutional law. The trial court indicated that it might help Brown if it had the power to make the order, but it did not want to order the Department to do anything without notice and an opportunity for the Department to be heard. Brown did not suggest that the Department was not necessary because he was seeking funds from other sources.

{6} Following the hearing, the State filed a response, arguing that Subin prohibited the district court from granting the requested relief. Brown filed a reply, pointing out that the motion did not ask that the funds be paid by the Department, but from any appropriate source. The bulk of the reply, however, was devoted to Brown's argument that Subin was incorrectly decided.

{7} Another hearing was held, at which the State reiterated its position that Subin was dispositive. The State questioned from what source Brown thought the requested funding should come. The State pointed out that the Department was the only entity with an appropriation for expert witnesses for indigent defendants; the State alleged that the district court did not have such funding, and neither did the district attorney. Brown then reiterated his arguments that Subin was incorrectly decided and that the court could order the requested funding to insure that his constitutional rights would not be violated. He did not suggest any alternative source of funding and never argued for a statutory right to expert witness fees.

{8} The district court denied Brown's motion, concluding that Subin was dispositive because an indigent defendant has no right to counsel of his own choosing; that if Brown continued with his present counsel, he had to pay for the expert witness himself; and that if he wanted the State to pay for expert witness services, he had to avail himself of the services of the Department.


{9} The Sixth Amendment provides, "In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defen[s]e." U.S. Const. amend. VI. This right to assistance of counsel requires states to provide indigent criminal defendants with legal representation at public expense to ensure the fairness of their trials. See Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

. The New Mexico Constitution has a parallel provision embracing the ideal that "[i]n all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel." N.M. Const. art. II, § 14; see State ex rel. Quintana v. Schnedar, 115 N.M. 573, 575, 855 P.2d 562, 564 (1993) (noting state constitutional provision embraces and parallels ideal of federal provision). Further developments in Sixth Amendment jurisprudence have clarified that criminal defendants are entitled to effective assistance of counsel, see Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (observing that the guarantee of effective assistance means indigents must be afforded adequate legal assistance), and established that the states are required to "provide indigent prisoners with the basic tools of an adequate defense." Britt v. N.C., 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). In Ake v. Oklahoma, 470 U.S. 68, 74, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court specifically held that states must provide expert witness services as part of their constitutional obligation to provide indigent criminal defendants with meaningful access to justice when the assistance of an expert witness constitutes a basic tool of an adequate defense. See Subin, 2001-NMCA-105, ¶ 4,

131 N.M. 350,

36 P.3d 441 (recognizing holding of Ake ).

{10} Based on these principles, Brown asserts that he is entitled to the assistance of expert witnesses at public expense, and that conditioning such assistance upon acceptance of representation by the Department violates his constitutional rights. Brown specifically argues that (1) Subin did not overrule Quintana and cannot be read consistently with Quintana; (2) all defendants have a constitutional right to counsel of their choosing, subject only to denial for abuse of that right, such as when the change of counsel will cause delay; and (3) conditioning a defendant's right to counsel on accepting Department services will inevitably result in a constitutionally prohibited conflict of interest. Brown does not argue on appeal the denial of any statutory right. We address each issue in turn and then discuss some miscellaneous arguments that Brown either does or does not raise.

1. Subin and Quintana

{11} Defendant contends that Quintana states the governing principles in this area, which include that courts retain the inherent authority to act "to guarantee the enforcement of constitutional civil liberty protections in criminal [cases]." 115 N.M. at 575, 855 P.2d at 564. He maintains that Subin is inconsistent with this principle to the extent that Subin held that district courts in general do not have authority to order the Department to pay expert witness fees on behalf of indigent defendants who are not its clients. See id. ¶¶ 5-12. Defendant concludes that "[t]he practical effect of Subin is to deny, to trial courts," the authority Quintana said they had, and as a result, "Quintana has been reduced to platitude[.]" We do not agree.

{12} In fact, in Subin, this Court ordered the Department to pay the expert witness fees of the defendant because we ruled that, under the particular circumstances of that case, the defendant's constitutional rights were in jeopardy. Id. ¶ 15. Thus, we recognized, and we continue to recognize, the important principle that courts have the inherent authority to insure that defendants are afforded their constitutional rights in criminal proceedings.

{13} In addition, the issue facing the Court in Quintana was very different from the issue facing this Court in Subin and in this case. Quintana involved the question of whether the courts or the Department had the ultimate authority to determine indigency for the purpose of requiring representation by the Department. 115 N.M. at 574, 855 P.2d at 563. In determining that the pertinent statutes permitted the courts to determine indigency, the Supreme Court reconciled the Indigent Defense Act enacted in 1968, NMSA 1978, §§ 31-16-1 to -10 (1968, as amended through 1973), with the Public Defender Act enacted in 1973, NMSA 1978, §§ 31-15-1 to -12 (1973, as amended through 2001), against a backdrop that recognized courts have inherent power to appoint counsel for indigent defendants to safeguard their constitutional rights. Quintana, 115 N.M. at 575-78, 855 P.2d at 564-67.

{14} The holding of Subin is not to the contrary. Because the Department "stood ready, willing, and able to provide expert witness assistance to [the defend...

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2 cases
  • Moore v. State, 28, September Term, 2004.
    • United States
    • Court of Special Appeals of Maryland
    • December 14, 2005
    ... ... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." ... 11. In State v. Brown, 135 N.M. 291, 87 P.3d 1073, 1086 (Ct.App.2004) (Vigil, J., dissenting), addressing an issue much like that which this Court is confronting, Judge Vigil advanced, as one ground for his dissent, the strong policy of New Mexico to encourage pro bono services. That policy is reflected in the ... ...
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    • United States
    • New Mexico Supreme Court
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