State v. Brown, 28,471.

• Decision Date: 24 April 2006
• Docket Number: No. 28,471.,28,471.
• Citation: 2006 NMSC 023,134 P.3d 753
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. William P. BROWN, Defendant-Petitioner.
• Court: New Mexico Supreme Court

134 P.3d 753

2006 NMSC 023

STATE of New Mexico, Plaintiff-Respondent, v. William P. BROWN, Defendant-Petitioner.

No. 28,471.

Supreme Court of New Mexico.

April 24, 2006.

The Kortemeier Law Firm, Stephen Karl Kortemeier, Elephant Butte, NM, for Petitioner.

Patricia A. Madrid, Attorney General, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Respondent.

MCCML, P.A., Randi McGinn, Albuquerque, New Mexico, for Amicus Curiae, New Mexico Trial Lawyers Association.

Jones, Snead, Wertheim & Wentworth, P.A., Jerry Todd Wertheim, Santa Fe, NM, for Amicus Curiae, New Mexico Criminal Defense Lawyers Association.

Melissa Hill, Corrales, NM, for Amicus Curiae, New Mexico Criminal Defense Lawyers and New Mexico Trial Lawyers Association.

John Bigelow, Chief Public Defender, Sue Herrmann, Appellate Defender, for Amicus Curiae, New Mexico Public Defender Department.

OPINION

MAES, Justice.

{1} Defendant-Petitioner William P. Brown (Brown), an indigent defendant represented by pro bono counsel, sought funding for expert witness fees from the New Mexico Public Defender Department (Department) in the district court. The district court denied Brown's request for funding, concluding that such funding was available only to indigent defendants represented by the Department. The Court of Appeals affirmed. We reverse. We hold that funding for expert witnesses should extend to those indigent defendants represented by pro bono counsel, in addition to those represented by the Department. This rule applies to the case at bar, similar pending actions, and to cases arising in the future.

Background

{2} Brown was charged with three felony offenses and a misdemeanor offense in magistrate court. Stephen Kortemeier, a private defense attorney, entered his appearance on behalf of Brown. Brown completed an Eligibility Determination for Indigent Defense Services form. The magistrate court found Brown to be indigent and unable to obtain counsel, and ordered the appointment of Gregory Gaudette, a contract attorney for the Department, to represent Brown on the criminal charges. Mr. Gaudette filed an Entry of Appearance on behalf of Brown, along with a Notice of Intent to Interview State's Witnesses. Those were the only documents submitted by Mr. Gaudette in connection with Brown's case. Further, the record indicates that Mr. Kortemeier, not Mr. Gaudette, was listed as Brown's attorney of record on several documents. Therefore, it appears that Mr. Kortemeier served continuously as Brown's attorney since his initial entry of appearance, despite the appointment of Department counsel by the magistrate court.

{3} Brown was bound over to the district court for trial. Mr. Kortemeier filed a Declaration of Counsel stating that he had refunded to Brown his original retainer fee and had agreed to represent Brown without charge. Attached to that statement was an Agreed Order of Indigency, in which the State and Brown stipulated that Brown was indigent and had obtained pro bono representation. The Order provided that Brown was "entitled to all services, including waivers of fees and costs, normally provided by the State of New Mexico to an indigent defendant."

{4} Upon determining that Brown's case would require the use of experts, Mr. Kortemeier contacted the Department to request funds for expert witness fees. The Department denied the request on the grounds that it was only required to pay expert witness fees for indigent defendants represented by the Department or attorneys on contract with the Department. Mr. Kortemeier was informed that he was not eligible to become a contract attorney for the Department until the next contract period.

{5} Brown then filed a Request for Authorization to Incur Expenses & Fees in the district court. In that request, Brown asked the court for an order authorizing Brown to incur fees to be paid by the State. At the hearing on the request, the district court judge indicated that he could not order the Department to act without giving it notice and an opportunity to respond and issued an Order to Show Cause against the Department.

{6} The State filed a response to Brown's request to incur fees, arguing that the court could not order the Department to pay expert witness fees for a criminal defendant not represented by the Department. The district court set a presentment hearing on Brown's request to incur expenses and fees and the proposed Order to Show Cause against the Department. At the conclusion of the hearing, the district court judge stated that he would not enter an order that interfered with the Department's management of its budget and its attorneys; if Defendant were to accept Department representation, he would receive attorney representation and an array of services standard to the Department, including expert witness fees; and if Brown wished to continue with private defense counsel, he would have to provide for his own expert witness fees. The judge then issued an order stating the above. The court certified the order for interlocutory appeal, noting that the case involved "a controlling question of law as to which there is substantial ground for difference of opinion and further, that an immediate appeal from this order may materially advance the ultimate termination of this case."

{7} The Court of Appeals granted interlocutory appeal from the order of the district court, and upheld the district court's decision. State v. Brown, 2004-NMCA-037, 135 N.M. 291, 87 P.3d 1073. Relying heavily on Subin v. Ulmer, 2001-NMCA-105, 131 N.M. 350, 36 P.3d 441, the Court of Appeals held that the district court had no authority to order the payment of expert witness fees for an indigent defendant who is represented by pro bono defense counsel. Brown appealed.

Discussion

{8} Because this case implicates two important constitutional rights, the constitutional right to counsel and the constitutional right to be provided with the basic tools of an adequate defense, our review is de novo. See State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994) (applying de novo standard of review to constitutional claims).

{9} Brown claims that under the Court of Appeals Opinion, he is being forced to choose between pro bono representation without expert witness funding and Department representation with expert witness funding which, Brown contends, is essentially a choice between the constitutional right to counsel and the constitutional right to be provided with the basic tools of an adequate defense. Brown asserts that such a choice is constitutionally impermissible. Judge Vigil, dissenting below, agreed, stating: "The holding of the majority requires Brown to choose between these constitutional rights. However, it is well settled that forcing a criminal defendant to `surrender' one constitutional right `in order to assert another' is `intolerable.'" Brown, 2004-NMCA-037, ¶ 47, 135 N.M. 291, 87 P.3d 1073 (Vigil, J., dissenting) (quoting Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)).

{10} The State, in contrast, argues that Brown's constitutional rights have not been impaired by the denial of funding for expert witnesses by the Department. The State argues that since the Department stood ready to represent Brown, "no one was proposing to deny [Brown] anything to which he was constitutionally entitled," and asserts that "the test is not whether [Brown] was offended by the choice offered to him, which in his mind, amounts to the denial of the right to counsel of choice, but rather, whether the system meets the State's constitutional obligations." The State argues that the administrative system enacted by the Legislature (the Indigent Defense Act and the Public Defender Act, discussed in depth below) establishes the constitutional requirements to be satisfied by the Department, and that the Department has fully complied with those standards. In order to refute Brown's claims to the contrary, the State goes to great lengths to demonstrate that American jurisprudence has clearly established that the Sixth Amendment merely guarantees the right to counsel, not the right to counsel of choice. The State maintains that Brown was offered the right to counsel through the Department, and thus cannot claim that he has been denied a constitutionally protected right.

{11} Our discussion will analyze these constitutional arguments as addressed by the United States Constitution, the New Mexico Constitution, New Mexico's legislation, and relevant case law.

{12} The right to counsel has long been recognized as a fundamental right at both the federal and state levels. The Sixth Amendment of the U.S. Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. CONST. amend. VI. That Sixth Amendment guarantee requires that an indigent criminal defendant be provided with counsel at public expense in order to ensure fairness in his or her trial. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ("[A]ny person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."). The New Mexico counterpart to the federal rule is embodied in the New Mexico Constitution, which states: "In 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.

{13} The New Mexico Legislature has responded to these constitutional rights by enacting the Indigent Defense Act, NMSA 1978, §§ 31-16-1 to 31-16-10 (1968), and the Public Defender Act, NMSA 1978, §§ 31-15-1 to 31-15-12 (1973, as amended through 2001). These acts compromise the statutory framework for providing counsel to indigent criminal defendants and must be read in pari materia. Herrera v. Sedillo, 106 N.M. 206, 207, 740 P.2d 1190, 1191 (N.M.Ct.App.1987). The Indigent Defense Act state...