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State v. Higginbotham

State v. Higginbotham (2002-308); 174 Vt. 640; 816 A.2d 547

[Filed 24-Dec-2002]




State of Vermont } APPEALED FROM:
v. } District Court of Vermont,
} Unit No. 2, Chittenden Circuit
Laura Higginbotham }
} DOCKET NO. 2792-5-01 Cncr

Trial Judge: Michael S.

In the above-entitled cause, the Clerk will enter:

¶ 1. Defendant appeals from the denial of her private counsel's
sealed ex parte motion requesting public funding for expert witnesses and
investigative services necessary to her defense of a charge of involuntary
manslaughter. The court denied the motion on the ground that defendant is
not a needy person under 13 V.S.A. § 5231(2). We affirm.

¶ 2. Defendant is charged with the death of her adopted minor
daughter, which occurred in November, 1998. The case for the State will
purportedly be built on the testimony of several expert witnesses in
various medical and forensic specialties. Defendant's private counsel
filed an "Ex Parte Motion for State Payment of Necessary Services and
Facilities of Representation," alleging that defendant is unable to pay the
fees and travel expenses of expert witnesses required to counter the
State's evidence. The trial court held an ex parte hearing. Defendant
submitted an affidavit of income and expenses. The affidavit showed that
defendant had a gross monthly income of $5,264 for the month preceding the
application, and an annual income of $72,984 for the year preceding the
application. Total household income was higher, $7,829 per month, because
defendant's husband contributed to the expenses of the household.
Defendant's total expenses were $6,725 per month, which she was able to
afford because of her husband's contribution to household income. The
trial court found that retention of the experts identified by defendant
will be necessary to making her defense to the charges, but denied the
motion for state payment because defendant's income is too high for her to
qualify for state assistance with her legal representation. The trial
court also noted that defendant could meet the expenses of her defense by
subordinating the claims of her attorneys, who had already received
substantial payment of their expected fee, to those of the experts she
wanted to hire, or paying the expert witnesses over time.

<Page 2>

¶ 3. In reviewing a trial court's decision on whether a defendant
is eligible for a requested service to be provided at the state's expense,
we defer to the trial court unless there is a showing that the court abused
or failed to exercise its discretion. State v. Handson, 166 Vt. 85, 92,
689 A.2d 1081, 1085 (1996). This case requires us, however, to determine
how Vermont's law mandating state provision of legal services to needy
individuals applies to a high-income person whose legal expenses exceed her
current income. The case therefore presents a question of law, and
accordingly is subject to de novo review. John A. Russell Corp. v. Bohlig,
170 Vt. 12, 16, 739 A.2d 1212, 1216 (1999) (questions of law reviewed de

¶ 4. On appeal, defendant argues that the trial court improperly
assumed that defendant could make some arrangement to pay both counsel and
experts on a deferred schedule. Defendant's argument overlooks the primary
ground of the trial court's opinion, which is that defendant's income and
standard of living is too high for her to qualify as a needy person
entitled to state supported services for her defense. We concur with the
trial court's conclusions of law, and therefore affirm.

¶ 5. Section 5231 of Title 13 (FN1) entitles needy persons charged with
serious crimes to be provided with counsel and the services required to
defend the charges, such as experts and investigative services. See State
v. Wool, 162 Vt. 342, 349-50, 648 A.2d 655, 660 (1994) (holding that needy
persons have a distinct right to payment of necessary services for defense,
whether or not services of an attorney are required). Administrative Order
4 § 5 of the Supreme Court defines who is considered a needy person within
the meaning of the law. Subsection (b) provides:

A needy person is a person who at the time of need assessment is
financially unable, without undue hardship, to provide for full
payment of an attorney and all other necessary expenses of
representation. . . . Factors to consider in the determination of
whether a person is a needy person shall include current income,
assets, current expenses and the number of dependents.

<Page 3>

¶ 6. Subsection (c) sets forth certain presumptions of need,
including "any person whose gross income is at or below poverty income
guidelines for nonfarm families . . . ." A.O. 4 § 5(c)(2). The poverty
income guidelines are incorporated in Appendix B to A.O. 4. For a family
of two, the poverty guideline is currently $11,940 in gross yearly income.
Families earning this amount or less qualify for state payment of expenses
associated with their defense. Families with gross yearly incomes somewhat
higher than the poverty guidelines are also eligible for at least partial
state assistance in paying for their defense. Subsection (d) provides that
needy persons with incomes 125% above the poverty guidelines will be
required to reimburse the State for a part of their defense. Thus,
although the poverty guidelines establish the threshold income for
qualifying for state assistance, persons with incomes that exceed the
poverty guidelines may receive a state contribution toward their defense,
although they must share in the cost. See State v. Morgan, __ Vt. __, __,
789 A.2d 928, 929 (2001) (mem.) (reviewing the statutory framework for
determining an applicant's ability to pay for a defense).

¶ 7. Applying the guidelines and looking at defendant's income and
expenses, the trial court did not err in its conclusion that defendant is
not a needy person within the meaning of the statute. Assuming for
argument that defendant's husband would not be responsible for
contributing to defendant's legal expenses, and therefore considering
defendant's income alone, and allowing for one dependent child, defendant's
income is more than five times the poverty guideline for a two-person
family unit. Her expenses, as found by the trial court, reflect a solid,
middle class lifestyle, a lifestyle that is not luxurious, but one that is
substantially above the level at which state support should be compelled.
We recognize that defendant's expenses to defend the charges have been and
will be substantial, even in light of her income; however, defendant has
the opportunity, if she chooses, to alter her mode of living to meet her
legal needs. Unless there is a substantial change in her finances,
defendant is not eligible for state payment of defense expenses.

¶ 8. We have reached the issue here on the merits, despite the
State's suggestion that the appeal should be dismissed as improvidently
granted because it was not filed within seven days of the trial court's
order under A.O. 4 § 5(k). The State concedes, however, that defendant
could have reapplied to the court and then filed a timely appeal. In the
interests of judicial economy, we take jurisdiction under V.R.A.P. 2.

¶ 9. Finally, defendant requests that the ex parte motion filed
below remain sealed and that Counsel for the State be barred from sharing
information learned from that proceeding in the preparation of this appeal
with any other member of the State's Attorney's office. The State agreed
at oral argument, and it is so ordered.

<Page 4>

Affirmed. The ex parte motion filed below shall remain sealed, and
the Counsel for the State shall be barred from sharing information learned
from this proceeding with any other member of the State's Attorney's


Jeffrey L. Amestoy, Chief Justice

John A. Dooley, Associate Justice

James L. Morse, Associate Justice

Denise R. Johnson, Associate Justice

Marilyn S. Skoglund, Associate Justice


FN1. Section 5231 of 13 V.S.A. provides:

A needy person...who is charged with having committed . . . a
serious crime, is entitled . . . [t]o be provided with the
necessary services and facilities of representation. . . . The
attorney, services and facilities, and court costs shall be
provided at public expense to the extent that the person, at the
time the court determines need, is unable to provide for their
payment without undue hardship.
2002 Dec 24