BROWN (WILLIS) VS. DIST. CT. (STATE)
Citation2017 NV 113
Date Filed2017-12-28
Docket72950
Cited0 times
StatusPublished
Full Opinion (plain_text)
133 Nev., Advance Opinion 113
IN THE SUPREME COURT OF THE STATE OF NEVADA
WILLIS T. BROWN, No. 72950
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
DEC 2 8
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
WILLIAM D. KEPHART, DISTRICT
JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus challenging the
district court's denial of a motion for expert services at public expense.
Petition granted in part.
Law Office of Gary A. Modafferi and Gary A. Modafferi, Las Vegas,
for Petitioner.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Charles Thoman, Deputy District Attorney, Clark
County,
for Real Party in Interest.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
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OPINION
By the Court, STIGLICH, J.:
In Widdis v. Second Judicial District Court, 114 Nev. 1224, 968
P.2d 1165 (1998), this court held that, notwithstanding the ability to retain
counsel, a defendant is entitled to reasonable and necessary defense
services at public expense if the defendant demonstrates both indigency and
a need for the requested services. We take this opportunity to clarify the
definition of an indigent person as well as the demonstration of need
sufficient for a request for defense services. Additionally, we make clear
that Widdis does not require an indigent defendant to request a sum certain
before a motion for defense services at public expense can be considered or
granted. Based on the district court's application of Widdis, we grant the
petition in part.'
FACTS AND PROCEDURAL HISTORY
Petitioner Willis Brown faces multiple counts of lewdness with
a child. Before the preliminary hearing, Brown moved for expert services
at public expense pursuant to Widdis v. Second Judicial District Court, 114
Nev. 1224, 968 P.2d 1165 (1998), submitting an application containing
financial information along with his motion. The justice court found Brown
indigent and granted the motion, but limited the funds for the services to a
stated amount.
After Brown was bound over to the district court, he again
moved for expert services at public expense, submitting an updated
'We previously granted the petition in part in an unpublished order.
Cause appearing, we grant the motion to reissue that decision as an opinion,
NRAP 36(f), and issue this opinion in place of our prior unpublished order.
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application that showed he had gained employment and reduced his
monthly liabilities since his previous motion. The motion acknowledged
that Brown's extended family had paid for his legal fees but asked the
district court to declare him indigent and permit him to retain an
investigator and expert (Dr. Mark Chambers) at State expense to assist his
defense. Brown claimed he needed to retain Dr. Chambers "to fully
understand and convey to both the court and/or the jury the influences upon
a child's accusation in a sexual prosecution" and averred that Dr. Chambers
would "testify to psychological issues involving child testimony, parental
influence on that testimony, and children's motivation regarding false
allegations." Additionally, Brown claimed an investigator was necessary to
serve subpoenas on and obtain statements from witnesses and to generally
investigate the circumstances of the allegations.
At the hearing on the motion, the district court stated its belief
that Brown was not indigent:
I don't reach that based onāI mean he's employed.
Heāit appears that he has to probably adjust his
expenses. But for the State to be paying for his
investigator fees under these circumstances, I don't
think Widdis truly couldāis saying that that's a
mandatory requirement. And so I'm just making a
finding based on his affidavit that he's not indigent
in order to fit that.
The district court opined that the previous indigency determination might
have been appropriate based on the initial application but concluded that
Brown no longer qualified as an indigent based on the updated information.
After this court ordered an answer to Brown's petition, the
district court held another hearing in which it expounded upon its reasons
for denying Brown's motion. The district court referenced the two
requirements in Widdis, indigency and necessity of the services, and
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gleaned a third requirement from the Widdis dissent, a request for a sum
certain. The district court referenced Brown's exhaustion of family
resources to retain counsel and deduced from that fact that Brown had
resources. Additionally, the district court noted that Brown's debt-to-
income ratio had appreciably decreased between his submissions of the two
applications. The district court went on to say that Brown "failed to show
how an investigator needed for assisting his counsel . . . wouldn't have been
included within his legal fees, or if it was even discussed when securing
counsel." Thefl district court concluded that its findings were that Brown
was not indigent and had not met a showing of need, specifically stating it
"was a cursory attempt to show need." Counsel argued that, while Brown
was currently employed, there was a significant decrease in income between
Brown's previous job and current job, which was a minimum-wage-plus-tips
position. The district court replied:
But it's not a question of indigency then. Just
because he's paying less. And the thing is too I
made the statement in the previous argument is
that he may need to adjust his expenses. At the
time that I received an application his debts were
way lower than the initial debt. Andābut he
hadn't changed his so to speak lifestyle. He was
still living in a pretty expensive place where he
could change that. You know, it doesn'tābecause
he's living at, you know, X amount a month doesn't
mean he needs to continue living that way because
obviously his incomes went down.
The district court denied Brown's motion for expert services at public
expense. Brown now seeks a writ of mandamus directing the district court
to grant his motion.
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DISCUSSION
The decision to consider a writ of mandamus 2 is within this
court's complete discretion, and generally such a writ will not issue if the
petitioner has a plain, speedy, and adequate remedy at law. NRS 34.170;
Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908
(2008). Despite the availability of a remedy at law by way of an appeal
should Brown be convicted, see NRS 177.045, we elect to exercise our
discretion and consider the petition for a writ of mandamus in the interest
of judicial economy and in order to control a manifest abuse or capricious
exercise of discretion. See State v. Eighth Judicial Dist. Court (Armstrong),
127 Nev. 927, 931-32, 267 P.3d 777, 779-80 (2011). "A manifest abuse of
discretion is [a] clearly erroneous interpretation of the law or a clearly
erroneous application of a law or rule." Id. at 932, 267 P.3d at 780 (quoting
Steward v. McDonald, 958 S.W.2d 297, 300 (Ark. 1997)). A "capricious
exercise of discretion" involves a decision that is "contrary to the evidence
or established rules of law.'" Id. at 932-33, 267 P.3d at 780 (quoting
Capricious, Black's Law Dictionary (9th ed. 2009)).
2 While the petition is titled a petition for a writ of certiorari,
mandamus, and/or, in the alternative, writ of prohibition, it discusses only
mandamus. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987)
("It is appellant's responsibility to present relevant authority and cogent
argument; issues not so presented need not be addressed by this court.").
Prohibition is unavailable because Brown does not argue that the district
court was without jurisdiction to hear and determine his motion, see NRS
34.320; Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607
P.2d 1140, 1141 (1980) (holding that a writ of prohibition "will not issue if
the court sought to be restrained had jurisdiction to hear and determine the
matter under consideration"), and certiorari is unavailable because Brown
does not argue that the district court exceeded its jurisdiction or ruled on
the constitutionality or validity of a statute, see NRS 34.020(2), (3).
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Widdis holds "that the State has a duty to provide reasonable
and necessary defense services at public expense to indigent criminal
defendants who have nonetheless retained private counsel," and the case
requires that a defendant make a "showing of indigency and need for the
services." 114 Nev. at 1228-29, 968 P.2d at 1167-68. In so holding, the
Widdis court adopted the analytical framework of an out-of-state case that
held "Mrrespective of the absence of any express statutory
authorization. . . the Sixth Amendment right to effective assistance of
counsel provided authority for the payment requested by the defendant."
Id. at 1228, 968 P.2d at 1168. Therefore, this court held that the right to
receive funds for defense services at public expense was entwined with the
right to effective assistance of counsel. Id. Numerous other courts have
come to a similar conclusion that an indigent criminal defendant may
receive defense services at public expense even if the defendant does not
have appointed counsel. E.g., Dubos v. State, 662 So. 2d 1189, 1192 (Ala.
1995) ("The simple fact that the defendant's family, with no legal duty to do
so, retained counsel for the defendant, does not bar the defendant from
obtaining funds for expert assistance when the defendant shows that the
expert assistance is necessary."); Jacobson v. Anderson, 57 P.3d 733, 734-35
(Ariz. Ct. App. 2002) (concluding a defendant whose parents had retained
counsel on her behalf was entitled to the opportunity to demonstrate need
for requested defense services at the government's expense based on her
status as an indigent); Tran v. Superior Court, 112 Cal. Rptr. 2d 506, 509-
10, 512 (Ct. App. 2001) (considering a defendant whose counsel was retained
via family funding and ordering the defendant's application for ancillary
services funds be granted based on his indigency); Arnold u. Higa, 600 P.2d
1383, 1385 (Haw. 1979) (interpreting statutory language as not limiting
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"the court's authority to approve funds for investigatory services for a
defendant with private counsel"); English v. Missildine, 311 N.W.2d 292,
293-94 (Iowa 1981) ("For indigents the right to effective counsel includes
the right to public payment for reasonably necessary investigative services.
The Constitution does not limit this right to defendants represented by
appointed or assigned counsel." (internal citations omitted)); State v. Jones,
707 So. 2d 975, 977-78 (La. 1998) ("[T]he defendant here, having private
counsel provided from a collateral source, may still be entitled to State
funding for auxiliary services."); State v. Huchting, 927 S.W.2d 411, 419
(Mo. Ct. App. 1996) (deciding that a defendant's retention of private counsel
did not preclude the defendant from seeking state assistance for hiring an
expert witness); State v. Boyd, 418 S.E.2d 471, 475-76 (N.C. 1992) ("That
defendant had sufficient resources to hire counsel does not in itself foreclose
defendant's access to state funds for other necessary expenses of
representationāincluding expert witnessesāif, in fact, defendant does not
have sufficient funds to defray these expenses when the need for them
arises."); State v. Wool, 648 A.2d 655, 660 (Vt. 1994) (holding that a
defendant who qualifies as a needy person has a right to necessary services
at public expense that cannot be conditioned on the defendant being
represented by an appointed attorney); State ex rel. Rojas v. Wilkes, 455
S.E.2d 575, 578 (W. Va. 1995) ("We conclude that financial assistance
provided by a third party which enables an indigent criminal defendant to
have the benefit of private counsel is not relevant to the defendant's right
to have expert assistance provided at public expense.").
Widdis provides that a defendant must make a showing of
indigency, but it does not define or set forth a test for determining indigency.
However, this court has stated that the standard for determining indigency
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for the appointment of counsel is whether a person "is unable, without
substantial hardship to himself or his dependents, to obtain competent,
qualified legal counsel on his or her own." In the Matter of the Review of
Issues Concerning Representation of Indigent Defendants in Criminal and
Juvenile Delinquency Cases, ADKT No. 411 (Order, January 4, 2008). That
standard further provides that those defendants who do not fall within a
presumptive threshold of substantial hardship "will be subjected to a more
rigorous screening process to determine if their particular circumstances,
including seriousness of charges being faced, monthly expenses, and local
private counsel rates, would result in a substantial hardship." Id. Based
on Widdis's logic that the right to defense services at public expense is
connected to the right to effective assistance of counsel, we conclude the
standard for determining indigency for the appointment of counsel in ADKT
No. 411 should also be used when determining indigency for purposes of
Widths.
With regard to the first prong of Widdis, a demonstration of
indigency, the district court concluded that Brown was not indigent because
his financial situation had improved since being found indigent in the
justice courtāhe had reduced his monthly debts, he had procured a job, and
he was able to retain the services of counsel through financial assistance
from family. The district court's logic, however, works to disincentivize a
defendant's efforts to better his or her financial situation by reducing
liability and obtaining income, and it contradicts the logic we employed in
Widdis. 114 Nev. at 1229, 968 P.2d at 1168 ("Although the use of public
funds in this manner may appear to be a misuse of such funds, we feel that
a contrary rule would have a greater negative impact on scarce public
resources by creating disincentives for defendants to seek private
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representation at their own expense."). Additionally, we have held that a
determination of indigency does not require a demonstration that the
person "is entirely destitute and without funds." Rodriguez v. Eighth
Judicial Dist. Court, 120 Nev. 798, 805-06, 102 P.3d 41, 46 (2004); see also
Lander Cty. v. Bd. of Trs. of Elko Gen. Hosp., 81 Nev. 354, 360-61, 403 P.2d
659, 662 (1965) (recognizing that "a person does not have to be completely
destitute and helpless to be considered a destitute or indigent person, but
can have some income or own some property"). Further, despite Brown's
financial improvement, he represented he had minimal assets that were
insufficient to satisfy his basic necessities and a negatively disproportionate
debt-to-income ratio, all while facing serious charges with possible
sentences of life imprisonment. Given Brown's circumstances, we conclude
the district court capriciously exercised its discretion by finding that Brown
was not indigent, or put another way, was able to afford an investigator
and/or an expert without substantial hardship.
As for the second prong of Widdis, a demonstration of need, the
district court concluded that Brown made a cursory showing at best. Given
Brown's proffer regarding the necessity of Dr. Chambersāto testify
regarding psychological issues involving child testimony, parental influence
on that testimony, children's motivations regarding false allegations, and
the influences upon a child's accusations in a sexual prosecutionāin a trial
involving allegations of lewdness with a child, we conclude Brown
demonstrated such an expert was reasonably necessary. In the same vein,
Brown alleged he required the services of an investigator to serve subpoenas
on and obtain statements from witnesses and to investigate the
circumstances of the allegations. While less specific than Brown's proffer
regarding the need for Dr. Chambers, we conclude that Brown
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demonstrated both an investigator and Dr. Chambers were reasonably
necessary to his defense and that the district courtS manifestly abused its
discretion by concluding otherwise.
Lastly, the district court implied a third prong could be gleaned
from the dissent in Widdis, requiring a sum certain be requested before a
motion for expert services is granted. To the extent a dissent may be read
to impose an additional requirement on a test adopted by the majority, we
disagree with the notion that the failure to request a sum certain is fatal to
a motion for expert services. Thus, the district court's reliance on Brown's
failure to request a sum certain was an inappropriate reason to deny the
motion. Rather, if the district court was concerned with the cost of the
services, it could have inquired into the expected cost for the services,
limited the amount granted to a sum certain with leave to ask for additional
funds if necessary, and/or taken any other measures it deemed prudent in
reasonably limiting the expenditure.
As we have concluded that the district court capriciously
exercised and manifestly abused its discretion when it denied Brown's
motion for expert services at public expense, we therefore grant the petition
in part. 3 We direct the clerk of this court to issue a writ of mandamus
3 Brown also challenges the denial of his pretrial petition for a writ of
habeas corpus in which he challenged the probable cause determination at
the preliminary hearing. This court generally does not exercise its
discretion to entertain a pretrial challenge to a probable cause
determination, see Kussman v_Eighth Judicial Dist. Court, 96 Nev. 544, 546,
612 P.2d 679, 680 (1980), and Brown does not demonstrate his challenge
fits within the exception this court has made for a purely legal issue, see
Ostman v. Eighth Judicial Dist. Court, 107 Nev. 563, 565, 816 P.2d 458,
459-60 (1991); State v. Babayan, 106 Nev. 155, 174-76, 787 P.2d 805, 819-
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instructing the district court to vacate its order denying Brown's motion for
expert services at public expense and to reconsider the motion consistent
with this opinion. 4
yattc-12,ā(2
Stiglich
We concur:
Adti J.
trir J
gi"fil
Parraguirre
20 (1990). To the extent Brown's claim may be construed as one that his
charges should have been severed, he did not make this argument before
the justice court, and the authority he relies upon does not address
proceedings at a preliminary examination. Accordingly, we deny the
petition in part as it relates to this claim.
4The clerk of this court issued the writ on October 24, 2017, pursuant
to our earlier unpublished order.
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