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2013-0251, State of New Hampshire v. Heidi Brouillette
Criminal Defense Lawyers, as amicus curiae. (Michael J. Iacopino on the brief), for the New Hampshire Association of on the brief), and Brennan, Caron, Lenehan & Iacopino, of Manchester Getman, Schulthess & Steere, PA, of Manchester (Andrew R. Schulman
John C. Mooney, of Rocky Point, New York, by brief, as amicus curiae.
the brief and orally), for the defendant. Sakellarios and Associates, LLC, of Manchester (Olivier Sakellarios on
attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant
Opinion Issued: July 11, 2014 Argued: March 5, 2014
HEIDI BROUIL L ETTE
v.
THE STATE OF NEW HAMPSHIRE
No. 2013 - 251 Hillsborough – northern judicial district
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 2
request. then sought interlocutory review of the court’s ruling, and we granted her which the trial court denied. With the trial court’s approval, t he defendant reaching its conclusion. The defendant filed a motion for reconsideration, show that the trial court reviewed the defendant’s attached financial affida vit in obtain services other than counsel at her own expense. The record does not reassigned to the defendant’s case, but that, otherwise, she would have to whether services other than counsel were warranted if the public defender were presumed.” The trial court concluded by stating that it would reevaluate Withdrawal and the appearance of current counsel, an ability to pay is [the] Public De fender. Upon the court’s receipt of [the] Public Defender’s Court recognizes that initially the defendant qualified for and was appointed cannot order the expenditure of funds.” The court went on to explain: “The Sakellarios is a retained counsel, not court - appointed and, thus, the court In denying the defendant’s motion, the trial court stated: “Attorney
financial affidavit to her motion to support her claim of indigence. requesting funds for an expert psychological evaluat ion. She attached a reason of insanity, and filed a motion for services other than counsel case. In that month, t he defendant stated her intent to plead not guilty by defendant retained private counsel and appointed counsel withdrew from the qualified for appointed counsel. However, prior to February 2013 the her financial affidavit, t he trial court determined that she was indigent and of her arraignment, the defendant applied for appointed counsel. Based upon (Supp. 2013); and criminal mischief, see RSA 634:2 (Supp. 2013). At the time each of: burglary, see RSA 635:1 (2007); second degree assault, s ee RSA 631:2 Corp., 159 N.H. 256, 258 (2009). The defendant is charged with one count and rely upon the record for additional fa cts as necessary. See State v. Hess We accep t the facts as presented in the interlocutory appeal statement
I
the defendant, Heidi Brouillette. See Sup. Ct. R. 8. We reverse and remand. Court (Brown, J.) denying the motion for services other than counsel filed by LYNN, J. This is an interlocutory appeal from an order of the Superior
Civil Liberties Union, as amicus curiae. on the brief), and Albert E. Scherr, of Concord, by brief, for the New Hampshire New Hampshire Civil Liberties Union, o f Concord (Gilles R. Bissonnette 3
defendant is represented by appointed counsel. T his reading fails to take into app rove funding for services other than counsel only if a n indigent criminal T he trial court apparently interpret ed this section as allowing a court to
defendant. authorize counsel to obtain the necessary services on behalf of the defendant is financially unable to obtain them, the court shall upon finding that such se rvices are necessary and that the defense in his case, counsel may apply therefor to the court, and, investigative, expert or other services necessary to an adequate represent a defendant who is financially unable to obtain In any criminal cas e in which counsel has been appointed to
RSA 604 - A:6 states, in pertinent part:
scheme and not in isolation.” Id. “Accordingly, we interpret a statute in the context of the overall statutory of the policy sought to be advanced by the entire statutory scheme.” Id. language it did not see fit to include.” Id. “Our goal is to apply statutes in light as written and will not consider what the legislature might have said or add discern legislative intent.” Id. “We int erpret legislative intent from the statute “Absent an ambiguity we will not look beyond the language of t he statute to statute and ascribe the plain and ordinary meanings to the words used.” Id. whole.” Addison, 165 N.H. at 418. “We first examine the language of the intent of the legislature as expressed in the words of a statute considered as a (2011). “In matters of statutory interpretation, we are the final arbiter of the novo.” State Employees’ Assoc. of N.H. v. State of N.H., 161 N.H. 7 30, 738 “The interpreta tion of a statute is a question of law, which we review de
v. Addison, 165 N.H. 381, 418 (2013). a constitutional provision, we first will address the statutory argument.” State necessary, when a claim of error is based upon both a statutory provision and C onstitutions. “Because we decide cases on constitutional grounds only when with funding for services other than counsel, violates the State and Federal This question specifically asks whether RSA 604 - A:6 (Supp. 2013), which deals
necessary services other than counsel? represented by appointed counsel, be provided with funding for protection under the law require that an indigent defendant, who is not Does the right to assistance of counsel, due process of law and equal
consideration: The superior court transferred the following question for our
II 4
certain court - appointed counsel, the statutory language does not in any way provisions relating solely to a defendant represented by the public defender or 600 P.2d 1383, 1385 (Haw. 1979) (“While the statute contains certain adequate defense, and the court should act accordingly. See Arnold v. Higa, services are necessary, the defendant falls within the statute’s guarantee of an defendant is indigent — despite the lack of appointed counsel — and the appointed counsel petitions the court for funding for such services: I f the found in RS A 60 4 - A:1 guides the court w hen a criminal defendant without couns el. On the other hand, the legislature’s general statement of purpose are represented by appointed counsel, seek funding for services other than procedure the trial court must follow when indigent criminal defendants, who overall statutory scheme, RSA 604 - A:6 is best understood simply as the extent,” their evident purpose). We agree. When r ead in the context of the (2000) (statutes will not be construed in a way that “nullifies, to an appreciable right.” See Asmussen v. Comm’r, N.H. Dep’ t of Safety, 145 N.H. 578, 586 construed to deprive a class of indigent criminal defendants of this statutory purpose “suggests that no other provision of the Ch apter should be casually as amicus, submit s that the use of the word “shall” in the declaration of The New Hampshire Association of Criminal Defense Lawyers, appearing
for an adequate defense.” RSA 60 4 - A:1. investigative, expert and other services and expenses . . . as may be necessary “indige nt defendants in criminal cases,” and generally includes “counsel and language shows that its goal of adequate representation applies broadly to in which the defendant ha s appointed co unsel. To the contrary, the statutory RSA 604 - A:1 does not condition this guarantee up on, or limit it to, situations that the investigatory and other facilities be necessary to a complete defense.”). [expert] assistance are that the defendant in a criminal case be indigent and Burns, 4 P.3d 795, 801 (Utah 2000) (“[T] he only deciding factors of eligibility for the necessity of the requested services to an adequate defense. See State v. focuses up on only two considerations: (1) the defendant’s indigency; and (2) indigent criminal defendants, t he declaration of purpose — in plain language — accepted as a part of the act.”). I n guaranteeing an ad equate defense for all N.H. 562, 568 (1997) (“A legislative declaration of purpose is ordinarily RSA 604 - A:1 (Supp. 2013) (emphasis added); see Opinion of the Justices, 141
necessary for an adequate defense before the courts of this state. process to compel the attendance of witnesses, as may be investigative, expert and other services and expenses, including imprisonment. . . . Representation shall include counsel and for indigent defendants in criminal cases, as a precondition of The purpose of this chapter is to provide adequate representation
express declaration of purpose for RSA chapter 60 4 - A: account the overall statutory scheme, which is outlined in the l egislature’s 5
whether he or she qualifies as indigent; and nothing in this opinion is intended counsel, rather than appointed counsel, may bear up on the question of We recognize that the fact that a criminal defendant has ret ained
defendants. the one here, is meant to ensure an adequate defense for indigent criminal the defendant secures counsel, are at the core of a statutory scheme that, like These two considerations, rather than the particula rs of the manner in which the defendant’s indigency and the necessity of the requested services. Id. are only two statutory requirements to receiving public assistance for services: appointed counsel. Id. at 801. T he court concluded, as we do here, that there that conditions availability of these basic tools of defense on acceptance” of court further stated that “there is nothing in the [relevant statutory] section [appointed couns el].” Id. at 800 - 01 (quotations and brackets omitted). The complete defense to every indigent person, not just to those represented by that a county must provide the investigatory and other facilities necessary for a in t his case. Id. at 800. “[I]t is clear from th e plain language of [the standards] defendants — standards that mirror the stated purpose of RSA chapter 604 - A court focused on the statutory minimum standards available to indigent counsel was not a prerequisite to a defendant receiving necessary services, the state - funded assistance. Burns, 4 P.3d at 798. In holding that appointed court could require a defendant to accept appointed counsel to qualify for other In Burns, for example, the Utah Supreme Court considered whether a trial appointed counsel. See, e.g., Arnold, 600 P.2d at 138 5; Burns, 4 P.3d at 800. necessary services for indigent defendants even when they do not have in similar statutes supports a n interpretation that permit s payment for Other courts have likewise held that the absence o f a prohibitory clause
had in mind when it enacted the legi slation. appointed counsel furthers some fiscal or efficiency goals that the legislature condition state - funded services other than counsel on representation by adopted by the trial court, it does not assert that construing the statute to note that, although the State supports the interpretation of RSA 604 - A:6 l egislature sought to advance by the overall statutory scheme. See id. We also from receiving such services, this interpretation frustrates the policy that the N.H. at 418. Moreover, by excludi ng an entire class of indigent defendants onto the statute that the l egislature did not see fit to include. See Addison, 16 5 criminal defendants u pon the existence of appointed counsel graft s language of the statute’s goal of providing adequate representation to all indigent who have pro bono, reduced fee, or retained counsel. To condition fulfillment necessary services to indigent criminal defendants who are self - represented, or RSA 604 - A:6 cannot be read as prohibiting a court from authorizing
defendant with private counsel.”). limit the court’s authority to approve funds for investigatory services for a 6
applied for appointed counsel. See RSA 604 - A:2 (Supp. 2013). After she was criminal mischief, see RSA 634:2 (Supp. 2013). At her arraignment, she (2007), second degree assault, see RSA 631:2 (Supp. 2013), and misdemeanor and exhibits thereto. The defendant is charged with burglary, see RSA 635:1 The following facts are derived from the interlocutory appeal statement
that reason, I respectfully dissent. private counsel. In so concludin g, I believe that the majority has erred and, for expense to an indigent criminal defendant who is represented by retained 2013) to require that necessary ancillary defense services be provided at state rever sed the trial court’s decision and has interpreted RSA 604 - A:6 (Supp. because it resolves the instant appeal on statutory grounds. The court has The majority declines to answer the constitutional question transferred
necessary services other than counsel? not represented by appointed counsel, be provided with funding for equal protection under the law require that an indigent defendant, who is Does the right to assistance of counsel, due process of law and
Ct. R. 8. The superior court transferred the following question for our review: services other than counsel filed by the defendant, Heidi Brouillette. See Sup. order of the Superior Court (Brown, J.), which denied the ex parte motion for DALIANIS, C.J., dissenting. This is an interlocutory appeal from an
HICKS, J.
, joined, dissented. CONBOY and BASSETT, JJ., concurred; D ALIANIS, C.J., with whom
Reversed and remanded.
this opinion. Accordingly, we reverse and remand for further proceedings consistent with constitutional nature unless absolutely necessary” (quotation omitted)). (199 6) (stating that it is “our long - standing policy not to decide questions of a the S tate or Federal Constitutions. See State v. Berrocales, 141 N.H. 262, 264 contrary construction of the statute would violate the defendant’s rights under represented by appointed counsel, we hav e no occasion to consider whether a services other than coun sel by indigent criminal defendant s who are not Because w e hold that RSA 604 - A:6 does not prohibit receipt of funds for
expenses should have been made.”). counsel and a determination whether he could afford additional litigation P.2d at 1385 (“An inquiry into the circumstances behind Petitioner’s change in requested are necessary before it approves such a request. See Arnold, 600 to e nsure both th at a criminal defendant is indigent and that the services to limit a trial court’ s authority to make such inquiries, as it deems neces sary, 7
evaluation she sought was necessary for an adequate defense. without deciding, that the defendant is indigent and that the psychological engage in statutory interpretation. For the purposes of this appeal, I assume, resolving the questions in this interlocutory appeal requires that the court and was not represent ed by appointed counsel. See RSA 604 - A:6. Therefore, lacked authority to grant the motion because she had retained private counsel court denied the defendant’s motion on statutory grounds, concluding that it or whether she had made the requisite showing of necessity. Instead, the trial Here, the trial court did not review whether the defendant was indigent
decision under our unsustainable exercise of discretion standard. Id. at 6 75. preparation of [her] defense by [her] attorneys.” Id. We revi ew the trial court’s trial court that the assistance [she] seeks is necessary t o ensure effective favorable exercise of that discretion, the defendant must demonstrate to the Sweeney, 151 N.H. 666, 674 (2005) (quotation omitted). “To warrant a experts has been said to lie wi thin the sound discretion of the court.” State v. enable [her] counsel to assist [her] eff ectively, an indigent defendant’ s access to fundamental fairness necessary for due process, or the right to services to “Regardless of whether a defendant has invoked equal protection,
interlocutory appeal followed. summary order, which stated: “Denied – Simple issue, see prior order.” This protection. The trial court denied the defendant’s motion to reconsider in a federal constitutional rights to assistance of counsel, due process, and equal defendant moved to reconsider, arguing that the order violated her state and expenditure of funds” for the ancillary defense services she sought. The court concluded that it had no authority under RSA 604 - A:6 to “order the (2001). Because the defendant’s attorney was retained and not appointed, the from the case and a private attorney had been retained. See RSA 604 - A:3 had an “ability to pay” for serv ices because the public defender had withdrawn determination that the defendant was indigent. Instead, it presumed that she private counsel $250 per month. The trial court did not make a new which she averred that although her monthly income was $1,245, she paid her A:6. To support her claim of indigence, she included a financial affidavit i n counsel requesting funds for an expert psychological evaluation. See RSA 604 by reason of insanity and filed an ex parte motion for services other than Through her private counsel, the defendant ent ered a plea of not guilty
by private counsel. defender’s withdrawal, the trial court’s consent thereto, or the appearance filed her own expense. The record on appeal also does not include the public the public defender withdrew, and the defe ndant retained private counsel at appeal does not include the defendant’s original financial affidavit. Thereafter, Defender to represent her. See id.; RSA 604 - A:2 - c (2001). The record on determined to be indi gent, the trial court appointed the New Hampshire Public 8
: 8 (Supp. 2013). RSA 604 - A:6 provides, in pertinent part: Provision of services other than counsel is governed by RSA 604 - A:6 and
or caution of counsel may dictate”). not a blank check on the public fisc, to be drawn in whatever amount the zeal legislative judgment that the State’s obligation to provide [such] . . . services is (limitations upon public liability for ancillary defense services “express a [State] res ources are not wasted or abused”); cf. In re Allen R., 127 N.H. at 723 1994) (under Maryland law, public defender is “‘gatekeeper’ who ensures that are neither wasted nor abused. See State v. Miller, 651 A.2d 845, 849 - 50 (Md. acts as the “gatekeeper” who ensures that State resources for criminal defense Together with the commissioner of administrative services, the judicial council program is unavailable. See RSA 604 - A:2, :2 - b (200 1); RSA ch. 604 - B (2001). attorneys to represent indigent criminal defendants when the public defender approval of the Governor and Executive Council, contracts with private Council, which su pervises the O ffice of the Public D efender and, with the 604 - A:1 (Supp. 2013). The system is overseen by the New Hampshire Judicial services and expenses, . . . as may be necessary for an adequate defense.” RSA Such representation “include[s] counsel and investigative, expert and other indigent criminal defendants who face imprisonment. See RSA 604 - A:2, :6. providing legal representation and necessary ancillary defense services to The Ne w Hampshire Legislature has established a state - wide system of
constitutional mandate. See In re Allen R., 127 N.H. 71 8, 720 (1986). 604 - A:6 is part of the statutory scheme created by the legislature to fulfill that N.H. 665, 669 (1983); see Ake v. Oklahoma, 470 U.S. 68, 76 - 77 (1985). RSA essential to the establishment of a tenable defense.” State v. Robinson, 123 defendant to services, at state expense, that provide “the working tools Both the State and Federal Constitutions entitle an indigent criminal
scheme and not in isolation. Id. Accordingly, we interpret a statute in the context of the ove rall statutory entire statutory scheme. State v. Addison, 165 N.H. 3 81, 418 (2013). Our goal is to apply statutes in light of the policy sought to be advanced by the not look beyond the language of the sta tute to discern legislative intent. Id. add words that it did not see fit to include. Id. Absent an ambiguity, we will Id. at 667. We will neither consider what the legislature might have said nor possible, construe tha t language according to its plain and ordinary meaning. interpreting statutes, we look to the language of the statute itself, and, if in the words of the statute considered as a whole. Id. at 666 - 67. When interpretation, we are the fi nal arbiters of the legislature’ s intent as express ed novo.” State v. Marshall, 162 N.H. 657, 666 (2011). In matters of statutory “The interpretation of a statute is a question of law, which we review de 9
not to do so); People v. Cardenas, 62 P.3d 621, 623 (Colo. 2002) (“While an through the public defender’s office and received a free transcript, but chose Amendments because the defendant could have availed himself of assistance represented by pro bono private counsel did not violate Sixth or Fourteenth for trial transcript for indigent criminal defendant’s appeal when defendant was Miller v. Smi th, 115 F.3d 1136, 1142 - 4 4 (4th Cir. 1 997) (state’s refusal to pay Civil No. WDQ - 11 - 1014, 2014 WL 354456, at *9 (D. Md. Jan. 22, 2014); see not violate an indigent defendant’s [constitutional] rights.” Moore v. Wolfe, ‘all or nothing’ approach for representation from [state - funded counsel] does Courts in other jurisdictions have determined that “[h]aving to choose an
by appointed counsel. services at state expense, an indigent criminal defendant must be represented only as a “package deal.” In order to obtain necessary ancillary defense both counsel and necessary ancillary defense services at s tate expense, but system, as enacted by the legislature, entitles an indigent criminal defendant to framework” provided in RSA chapter 604 - A. Miller, 651 A.2d at 84 9. The In my view, RSA 604 - A:6 is simply “an extension of the procedural
statutory mechanism to obtain state funding for such services. obtain necessary ancillary defense services at state expense. There is no other indigent cri minal defendant be represented by appointed counsel in order to unable to obtain them.” The clear requirement of RSA 604 - A:6 is that an has found that the “services are necessary and that the defendant is financially (2) appointed counsel has applied to the court for the services; and (3) the court circumstances: (1) “counsel has been appointed to represent [the] defen dant”; other services” are available to a criminal defendant only under the following According to the plain language of RSA 604 - A:6, “investigative, expert or
RSA 604 - A:8, II addresses the payment of counsel fe es by the judicial council. for payment all approved claims and written statements in support thereof. Pursuant to RSA 604 - A:8, I, the trial court must forward to the judicial council
seal ed until the conclusion of the representation. parte basis and may, upon the request of appointed counsel, be application for such funds may be filed with the court on an ex funds for services other than counsel under this section, the def endant. . . . In any case in which appointed counsel seeks authorize counsel to obtain the necessary services on behalf of the defendant is financially unable to obtain them, the court shall upon finding that such services are necessary and that the de fense in his case, counsel may apply therefor to the court, and, investigative, expert or other services necessary to an adequate represent a defendant who is financially unable to obtain In any criminal case in which counsel has been appointed to 10
HICKS, J., joins in the dissent.
resolve in the first instance. circumstances, I would remand the constitutional question for the trial court to summarily denying the defendant’s ex parte motion. Under these Nor did the trial court analyze the constitutional ques tion in its order never fully litigated in the trial court before it was transferred to this court. constitutional question was raised in an ex parte motion, and, therefore, was the majority, decline to answer the tr ansferred constitutional question. The Although I would uphold the trial court’s statutory interpretation, I, like
order to obtain necessary ancillary defense services at state expense. an indig ent criminal defendant must be represented by appointed counsel in legislature may wish to consider amending the statute to state expressly that extent that my dissent has accurately reflected the legislature’s intent, the unambiguous, my colleagues disagree with my statutory interpretation. To the A lthough I believe that the language of RSA 604 - A:6 is plain and
ex parte motion for services other than counsel. court sustainably exerci sed its discretion when it denied her private counsel’s defense services at state expense. Accordingly, I would conclude that the trial counsel and not by appointed counsel, she is not entitled to necessary ancillary In the instant case, because the defendant is represented by retained
infer a statutory provision that the legisla ture did not see fit to enact. that the legislature did not enact superfluous or redundant words.”). Nor can I construing a statute, we must give effect to all words in a statute and presum e Co op. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525 – 26 (2002) (“When legislature’s use of the word “appointed” in RSA 604 - A:6. See Winnacunnet provision apply to both retained and appointed counsel. I cannot ignore the deleted the word “appointed” in RSA 604 - A:6, which would have made that defense services on behalf of an indigent criminal defendant, or it could have provision that allow ed retained private counsel to obtain necessary ancillary representation as severable, it could have either enacted a separate statutory Had the legislature viewed necessary ancillary defense services and legal
[Office of Public D efender].”) choose between counsel of the ir choice and ancillary se rvices provided by the does not bar the State . . . from requiring [indigent criminal defendants] to counsel.”); Moore v. State, 889 A.2d 325, 346 (Md. 2005) (“[T]he Constitution defen der, or in the case of a conflict, a state - appointed alternate defense and supporting services, his only choice is to be represented by the public choice”; thus, “[i]f Defendant wants the state to pay the costs of his attorney services at state expense, he does not have the right to pick the attorney of his indigent defendant has the right to legal representation an d supporting