State v. Schoonmaker
| Decision Date | 23 January 2008 |
| Docket Number | No. 28,954.,28,954. |
| Parties | STATE of New Mexico, Plaintiff-Respondent, v. Jake SCHOONMAKER, Defendant-Petitioner. |
| Court | New Mexico Supreme Court |
John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.
Gary K. King, Attorney General, Steven S. Suttle, Assistant Attorney General, Santa Fe, NM, for Respondent.
{1} Defendant Jake Schoonmaker was charged with child abuse resulting in great bodily harm. Though he was declared indigent, and thus qualified for representation by the public defender's office, Defendant's family raised enough funds to retain private counsel to represent him. However, neither Defendant nor his family could afford to pay for expert witnesses that were essential to his defense. Given no alternative, defense counsel tried unsuccessfully to withdraw in favor of the public defender so that, with public financing, his client could put on an adequate defense. By refusing to allow counsel to withdraw under these circumstances, or otherwise to order that the necessary services be provided, the district court essentially put Defendant in the position of receiving ineffective assistance of counsel. Accordingly, we reverse Defendant's convictions and remand for a new trial.
{2} Defendant was indicted on August 9, 2000, for intentional child abuse resulting in great bodily harm, or in the alternative, negligent child abuse resulting in great bodily harm. State v. Schoonmaker, 2005-NMCA-012, ¶ 2, 136 N.M. 749, 105 P.3d 302. These charges arose out of an incident that allegedly occurred on July 24, 2000, when Defendant was babysitting the child ("Child") of a woman he was dating ("Mother"). Id. ¶ 4. Child, who had been born five weeks premature and had spent a week in the hospital, was just over one month old. Id. ¶ 3. Defendant was eighteen at the time and had no criminal record.
{3} About two hours after Mother left Child in Defendant's care, Defendant brought Child to Child's great-grandmother's ("Grandmother") house. Defendant told Grandmother that Child had rolled off the couch while Defendant was upstairs preparing some medication to give Child for a mild case of bronchitis. Id. ¶ 5 Grandmother noticed that Child had vomited and was pale, limp, and "just staring." Id.
{4} Child was eventually taken to UNM Hospital where medical tests revealed that he had suffered a severe subdural hematoma, retinal hemorrhages, and brain injury resulting in total blindness. Id. ¶ 6. Defendant repeatedly told family members and police that Child had fallen from the couch. Id. ¶ 7.
{5} Defendant qualified for public defender representation, but his parents were able to afford private counsel. On December 10, 2001, the day set for Defendant's trial, defense counsel informed the district court that he had not been able to interview the State's doctors and other witnesses, that he needed a continuance, and that his client was trying to raise the money necessary to interview the State's expert witnesses. The trial was then continued until March 11, 2002.
{6} On February 19, 2002, a pre-trial hearing was conducted because defense counsel was still unable to secure the necessary funds to interview the State's doctors. Regrettably, we have no direct record of this hearing because much of it occurred in chambers without a record and because no transcript or other recording has been found for that portion of the hearing held in open court. No explanation has been offered for the absence of such transcript. Much later, after Defendant's conviction and during the course of this appeal, Defendant filed a motion to reconstruct the record, and the district court conducted a hearing, received evidence, and heard testimony in an effort to reconstruct what had transpired at the February 19, 2002, hearing. The record and transcripts on the motion to reconstruct the record are before us on certiorari, and are the closest thing we have to a record of the February 19, 2002, hearing.
{7} At the reconstruction hearing, defense counsel Andrew Ortiz ("Ortiz") testified that the State had demanded payment for the State's physician experts if the defense wanted to interview them. Ortiz testified that, as a result of this demand, he made an oral motion in open court at the February 19, 2002, pretrial hearing, that Defendant be declared indigent and the Public Defender Department ("PDD") be ordered to pay for a medical expert to assist in the preparation of a defense. According to Ortiz, the district court referred to the case of Subin v. Ulmer, 2001-NMCA-105, 131 N.M. 350, 36 P.3d 441,1 and denied the motion. The parties and the judge then went into chambers where the same expert witness issues were discussed further.
{8} Ortiz testified that he "vividly" remembered asking the court for permission to withdraw as counsel of record after the court denied his motion for state-funded experts. Ortiz recalled that the court denied this motion as well. Ortiz did not file any written motions about this matter after his oral motions were denied.
{9} As part of the efforts to reconstruct the February 19, 2002, pretrial hearing, Assistant District Attorney Lisa Trabaudo presented the court with her notes from that hearing. These notes indicated that Ortiz was having difficulty coming up with funds to pay the State's experts for interviews and that the parties discussed the Subin case.
{10} Defendant's father, Alton Schoonmaker ("Father"), had also been present at the February 19, 2002, hearing, and testified at the reconstruction hearing. Father stated that attorney Ortiz asked the district court to have the State pay for a medical expert because the family did not have the funds. He recalled that Ortiz informed the district court that Defendant qualified for State funding for a lawyer and that Ortiz would step down and let the PDD take over. Father testified further that the court then called counsel into chambers and when they came out, Ortiz informed him that the court had denied defense counsel's request for State funded experts and had also refused to allow Ortiz to withdraw from the case.
{11} Also forming part of the reconstruction was the affidavit of Alicia Harper, who was the court's bailiff when the February 19, 2002, hearing took place. In her affidavit, Ms. Harper stated that she vaguely recalled that prior to the first trial, Ortiz had asked to withdraw from the case. She also recalled that Ortiz was disappointed that he had no expert witnesses and the State had so many.
{12} After hearing the testimony of attorney Ortiz and Father, and reviewing the notes of Assistant District Attorney Trabaudo and the affidavit of Ms. Harper, the district court recalled that a discussion had occurred in chambers regarding state-funded defense experts. However, the judge was not able to confirm or deny that he gave a ruling on defense counsel's request for payment for defense experts or that counsel had requested to withdraw.
{13} In its subsequent order, the district court found as follows:
[D]uring a pre-trial conference in chambers on February 19, 2002, counsel for the defense brought up the issue of having the State Public Defender office pay for expert witnesses. The Court noted its belief that there was a recent case that would apply under these circumstances, and the Court believed it could not order the Public Defender office to pay for expert witnesses. The Court further directed defense counsel to file a motion if defense counsel wished to, after reviewing the case. Upon the filing of a motion, the Court would reread the case and consider the issue.
The Order also stated that "[n]o written motion to withdraw or to have the State pay for expert witnesses was filed or ruled on by the [c]ourt," and the court had "no specific recollection whether counsel asked to withdraw . . . or whether counsel made the request to withdraw in open court."
{14} After the February 19, 2002, pre-trial hearing, defense counsel filed a motion to suppress witness statements because counsel still had not been able to interview the State's doctors, as well as the State's forty-one other witnesses. The motion stated that counsel would be rendering ineffective assistance of counsel because he could not adequately cross-examine the State's experts or prepare his defense if he was unable to interview the State's expert witnesses. On March 5, 2002, the judge and the parties discussed the difficulties with setting up interviews with the State's witnesses. The prosecutor stated that although the written motion to suppress alleged that defense counsel could not hire his own expert because he had not been able to interview the State's doctors she thought the real reason defense counsel could not hire an expert was the defense was having problems coming up with funds. The prosecutor again brought up the Subin case at this point.
{15} The judge stated that defense counsel could "probably afford" a half-hour interview with each of the State's doctors, and asked counsel if he had a case that suggested he would be ineffective as a matter of law if he did not conduct a pretrial interview. Counsel did not have any cases, and the judge told defense counsel to interview the State's witnesses and the suppression issue would be revisited on March 6, 2002. Defense counsel then objected to conducting any more interviews and indicated his desire to prepare his case with the six interviews that he had already conducted. The court refused to suppress the witness statements of those witnesses defense counsel had not interviewed and defense counsel stated his continuing objection.
{16} Critical to our analysis of the ineffective assistance issue is the question of...
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