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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Hillsborough–northern judicial district
No. 2013-251


                        THE STATE OF NEW HAMPSHIRE

                                            v.

                              HEIDI BROUILLETTE

                            Argued: March 5, 2014
                         Opinion Issued: July 11, 2014

      Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant
attorney general, on the brief and orally), for the State.


      Sakellarios and Associates, LLC, of Manchester (Olivier Sakellarios on
the brief and orally), for the defendant.


      John C. Mooney, of Rocky Point, New York, by brief, as amicus curiae.


      Getman, Schulthess & Steere, PA, of Manchester (Andrew R. Schulman
on the brief), and Brennan, Caron, Lenehan & Iacopino, of Manchester
(Michael J. Iacopino on the brief), for the New Hampshire Association of
Criminal Defense Lawyers, as amicus curiae.
      New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette
on the brief), and Albert E. Scherr, of Concord, by brief, for the New Hampshire
Civil Liberties Union, as amicus curiae.


      LYNN, J. This is an interlocutory appeal from an order of the Superior
Court (Brown, J.) denying the motion for services other than counsel filed by
the defendant, Heidi Brouillette. See Sup. Ct. R. 8. We reverse and remand.

                                           I

       We accept the facts as presented in the interlocutory appeal statement
and rely upon the record for additional facts as necessary. See State v. Hess
Corp., 159 N.H. 256, 258 (2009). The defendant is charged with one count
each of: burglary, see RSA 635:1 (2007); second degree assault, see RSA 631:2
(Supp. 2013); and criminal mischief, see RSA 634:2 (Supp. 2013). At the time
of her arraignment, the defendant applied for appointed counsel. Based upon
her financial affidavit, the trial court determined that she was indigent and
qualified for appointed counsel. However, prior to February 2013 the
defendant retained private counsel and appointed counsel withdrew from the
case. In that month, the defendant stated her intent to plead not guilty by
reason of insanity, and filed a motion for services other than counsel
requesting funds for an expert psychological evaluation. She attached a
financial affidavit to her motion to support her claim of indigence.

       In denying the defendant’s motion, the trial court stated: “Attorney
Sakellarios is a retained counsel, not court-appointed and, thus, the court
cannot order the expenditure of funds.” The court went on to explain: “The
Court recognizes that initially the defendant qualified for and was appointed
[the] Public Defender. Upon the court’s receipt of [the] Public Defender’s
Withdrawal and the appearance of current counsel, an ability to pay is
presumed.” The trial court concluded by stating that it would reevaluate
whether services other than counsel were warranted if the public defender were
reassigned to the defendant’s case, but that, otherwise, she would have to
obtain services other than counsel at her own expense. The record does not
show that the trial court reviewed the defendant’s attached financial affidavit in
reaching its conclusion. The defendant filed a motion for reconsideration,
which the trial court denied. With the trial court’s approval, the defendant
then sought interlocutory review of the court’s ruling, and we granted her
request.




                                        2
                                         II

      The superior court transferred the following question for our
consideration:

          Does the right to assistance of counsel, due process of law and equal
      protection under the law require that an indigent defendant, who is not
      represented by appointed counsel, be provided with funding for
      necessary services other than counsel?

This question specifically asks whether RSA 604-A:6 (Supp. 2013), which deals
with funding for services other than counsel, violates the State and Federal
Constitutions. “Because we decide cases on constitutional grounds only when
necessary, when a claim of error is based upon both a statutory provision and
a constitutional provision, we first will address the statutory argument.” State
v. Addison, 165 N.H. 381, 418 (2013).

       “The interpretation of a statute is a question of law, which we review de
novo.” State Employees’ Assoc. of N.H. v. State of N.H., 161 N.H. 730, 738
(2011). “In matters of statutory interpretation, we are the final arbiter of the
intent of the legislature as expressed in the words of a statute considered as a
whole.” Addison, 165 N.H. at 418. “We first examine the language of the
statute and ascribe the plain and ordinary meanings to the words used.” Id.
“Absent an ambiguity we will not look beyond the language of the statute to
discern legislative intent.” Id. “We interpret legislative intent from the statute
as written and will not consider what the legislature might have said or add
language it did not see fit to include.” Id. “Our goal is to apply statutes in light
of the policy sought to be advanced by the entire statutory scheme.” Id.
“Accordingly, we interpret a statute in the context of the overall statutory
scheme and not in isolation.” Id.

      RSA 604-A:6 states, in pertinent part:

            In any criminal case in which counsel has been appointed to
      represent a defendant who is financially unable to obtain
      investigative, expert or other services necessary to an adequate
      defense in his case, counsel may apply therefor to the court, and,
      upon finding that such services are necessary and that the
      defendant is financially unable to obtain them, the court shall
      authorize counsel to obtain the necessary services on behalf of the
      defendant.

The trial court apparently interpreted this section as allowing a court to
approve funding for services other than counsel only if an indigent criminal
defendant is represented by appointed counsel. This reading fails to take into



                                         3
account the overall statutory scheme, which is outlined in the legislature’s
express declaration of purpose for RSA chapter 604-A:

      The purpose of this chapter is to provide adequate representation
      for indigent defendants in criminal cases, as a precondition of
      imprisonment . . . . Representation shall include counsel and
      investigative, expert and other services and expenses, including
      process to compel the attendance of witnesses, as may be
      necessary for an adequate defense before the courts of this state.

RSA 604-A:1 (Supp. 2013) (emphasis added); see Opinion of the Justices, 141
N.H. 562, 568 (1997) (“A legislative declaration of purpose is ordinarily
accepted as a part of the act.”). In guaranteeing an adequate defense for all
indigent criminal defendants, the declaration of purpose — in plain language —
focuses upon only two considerations: (1) the defendant’s indigency; and (2)
the necessity of the requested services to an adequate defense. See State v.
Burns, 4 P.3d 795, 801 (Utah 2000) (“[T]he only deciding factors of eligibility for
[expert] assistance are that the defendant in a criminal case be indigent and
that the investigatory and other facilities be necessary to a complete defense.”).
RSA 604-A:1 does not condition this guarantee upon, or limit it to, situations
in which the defendant has appointed counsel. To the contrary, the statutory
language shows that its goal of adequate representation applies broadly to
“indigent defendants in criminal cases,” and generally includes “counsel and
investigative, expert and other services and expenses . . . as may be necessary
for an adequate defense.” RSA 604-A:1.

       The New Hampshire Association of Criminal Defense Lawyers, appearing
as amicus, submits that the use of the word “shall” in the declaration of
purpose “suggests that no other provision of the Chapter should be casually
construed to deprive a class of indigent criminal defendants of this statutory
right.” See Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 586
(2000) (statutes will not be construed in a way that “nullifies, to an appreciable
extent,” their evident purpose). We agree. When read in the context of the
overall statutory scheme, RSA 604-A:6 is best understood simply as the
procedure the trial court must follow when indigent criminal defendants, who
are represented by appointed counsel, seek funding for services other than
counsel. On the other hand, the legislature’s general statement of purpose
found in RSA 604-A:1 guides the court when a criminal defendant without
appointed counsel petitions the court for funding for such services: If the
defendant is indigent — despite the lack of appointed counsel — and the
services are necessary, the defendant falls within the statute’s guarantee of an
adequate defense, and the court should act accordingly. See Arnold v. Higa,
600 P.2d 1383, 1385 (Haw. 1979) (“While the statute contains certain
provisions relating solely to a defendant represented by the public defender or
certain court-appointed counsel, the statutory language does not in any way



                                        4
limit the court’s authority to approve funds for investigatory services for a
defendant with private counsel.”).

       RSA 604-A:6 cannot be read as prohibiting a court from authorizing
necessary services to indigent criminal defendants who are self-represented, or
who have pro bono, reduced fee, or retained counsel. To condition fulfillment
of the statute’s goal of providing adequate representation to all indigent
criminal defendants upon the existence of appointed counsel grafts language
onto the statute that the legislature did not see fit to include. See Addison, 165
N.H. at 418. Moreover, by excluding an entire class of indigent defendants
from receiving such services, this interpretation frustrates the policy that the
legislature sought to advance by the overall statutory scheme. See id. We also
note that, although the State supports the interpretation of RSA 604-A:6
adopted by the trial court, it does not assert that construing the statute to
condition state-funded services other than counsel on representation by
appointed counsel furthers some fiscal or efficiency goals that the legislature
had in mind when it enacted the legislation.

       Other courts have likewise held that the absence of a prohibitory clause
in similar statutes supports an interpretation that permits payment for
necessary services for indigent defendants even when they do not have
appointed counsel. See, e.g., Arnold, 600 P.2d at 1385; Burns, 4 P.3d at 800.
In Burns, for example, the Utah Supreme Court considered whether a trial
court could require a defendant to accept appointed counsel to qualify for other
state-funded assistance. Burns, 4 P.3d at 798. In holding that appointed
counsel was not a prerequisite to a defendant receiving necessary services, the
court focused on the statutory minimum standards available to indigent
defendants — standards that mirror the stated purpose of RSA chapter 604-A
in this case. Id. at 800. “[I]t is clear from the plain language of [the standards]
that a county must provide the investigatory and other facilities necessary for a
complete defense to every indigent person, not just to those represented by
[appointed counsel].” Id. at 800-01 (quotations and brackets omitted). The
court further stated that “there is nothing in the [relevant statutory] section
that conditions availability of these basic tools of defense on acceptance” of
appointed counsel. Id. at 801. The court concluded, as we do here, that there
are only two statutory requirements to receiving public assistance for services:
the defendant’s indigency and the necessity of the requested services. Id.
These two considerations, rather than the particulars of the manner in which
the defendant secures counsel, are at the core of a statutory scheme that, like
the one here, is meant to ensure an adequate defense for indigent criminal
defendants.

     We recognize that the fact that a criminal defendant has retained
counsel, rather than appointed counsel, may bear upon the question of
whether he or she qualifies as indigent; and nothing in this opinion is intended



                                        5
to limit a trial court’s authority to make such inquiries, as it deems necessary,
to ensure both that a criminal defendant is indigent and that the services
requested are necessary before it approves such a request. See Arnold, 600
P.2d at 1385 (“An inquiry into the circumstances behind Petitioner’s change in
counsel and a determination whether he could afford additional litigation
expenses should have been made.”).

      Because we hold that RSA 604-A:6 does not prohibit receipt of funds for
services other than counsel by indigent criminal defendants who are not
represented by appointed counsel, we have no occasion to consider whether a
contrary construction of the statute would violate the defendant’s rights under
the State or Federal Constitutions. See State v. Berrocales, 141 N.H. 262, 264
(1996) (stating that it is “our long-standing policy not to decide questions of a
constitutional nature unless absolutely necessary” (quotation omitted)).
Accordingly, we reverse and remand for further proceedings consistent with
this opinion.

                                                  Reversed and remanded.

     CONBOY and BASSETT, JJ., concurred; DALIANIS, C.J., with whom
HICKS, J., joined, dissented.

       DALIANIS, C.J., dissenting. This is an interlocutory appeal from an
order of the Superior Court (Brown, J.), which denied the ex parte motion for
services other than counsel filed by the defendant, Heidi Brouillette. See Sup.
Ct. R. 8. The superior court transferred the following question for our review:

            Does the right to assistance of counsel, due process of law and
      equal protection under the law require that an indigent defendant, who is
      not represented by appointed counsel, be provided with funding for
      necessary services other than counsel?

The majority declines to answer the constitutional question transferred
because it resolves the instant appeal on statutory grounds. The court has
reversed the trial court’s decision and has interpreted RSA 604-A:6 (Supp.
2013) to require that necessary ancillary defense services be provided at state
expense to an indigent criminal defendant who is represented by retained
private counsel. In so concluding, I believe that the majority has erred and, for
that reason, I respectfully dissent.

      The following facts are derived from the interlocutory appeal statement
and exhibits thereto. The defendant is charged with burglary, see RSA 635:1
(2007), second degree assault, see RSA 631:2 (Supp. 2013), and misdemeanor
criminal mischief, see RSA 634:2 (Supp. 2013). At her arraignment, she
applied for appointed counsel. See RSA 604-A:2 (Supp. 2013). After she was



                                        6
determined to be indigent, the trial court appointed the New Hampshire Public
Defender to represent her. See id.; RSA 604-A:2-c (2001). The record on
appeal does not include the defendant’s original financial affidavit. Thereafter,
the public defender withdrew, and the defendant retained private counsel at
her own expense. The record on appeal also does not include the public
defender’s withdrawal, the trial court’s consent thereto, or the appearance filed
by private counsel.

       Through her private counsel, the defendant entered a plea of not guilty
by reason of insanity and filed an ex parte motion for services other than
counsel requesting funds for an expert psychological evaluation. See RSA 604-
A:6. To support her claim of indigence, she included a financial affidavit in
which she averred that although her monthly income was $1,245, she paid her
private counsel $250 per month. The trial court did not make a new
determination that the defendant was indigent. Instead, it presumed that she
had an “ability to pay” for services because the public defender had withdrawn
from the case and a private attorney had been retained. See RSA 604-A:3
(2001). Because the defendant’s attorney was retained and not appointed, the
court concluded that it had no authority under RSA 604-A:6 to “order the
expenditure of funds” for the ancillary defense services she sought. The
defendant moved to reconsider, arguing that the order violated her state and
federal constitutional rights to assistance of counsel, due process, and equal
protection. The trial court denied the defendant’s motion to reconsider in a
summary order, which stated: “Denied – Simple issue, see prior order.” This
interlocutory appeal followed.

       “Regardless of whether a defendant has invoked equal protection,
fundamental fairness necessary for due process, or the right to services to
enable [her] counsel to assist [her] effectively, an indigent defendant’s access to
experts has been said to lie within the sound discretion of the court.” State v.
Sweeney, 151 N.H. 666, 674 (2005) (quotation omitted). “To warrant a
favorable exercise of that discretion, the defendant must demonstrate to the
trial court that the assistance [she] seeks is necessary to ensure effective
preparation of [her] defense by [her] attorneys.” Id. We review the trial court’s
decision under our unsustainable exercise of discretion standard. Id. at 675.

      Here, the trial court did not review whether the defendant was indigent
or whether she had made the requisite showing of necessity. Instead, the trial
court denied the defendant’s motion on statutory grounds, concluding that it
lacked authority to grant the motion because she had retained private counsel
and was not represented by appointed counsel. See RSA 604-A:6. Therefore,
resolving the questions in this interlocutory appeal requires that the court
engage in statutory interpretation. For the purposes of this appeal, I assume,
without deciding, that the defendant is indigent and that the psychological
evaluation she sought was necessary for an adequate defense.



                                         7
       “The interpretation of a statute is a question of law, which we review de
novo.” State v. Marshall, 162 N.H. 657, 666 (2011). In matters of statutory
interpretation, we are the final arbiters of the legislature’s intent as expressed
in the words of the statute considered as a whole. Id. at 666-67. When
interpreting statutes, we look to the language of the statute itself, and, if
possible, construe that language according to its plain and ordinary meaning.
Id. at 667. We will neither consider what the legislature might have said nor
add words that it did not see fit to include. Id. Absent an ambiguity, we will
not look beyond the language of the statute to discern legislative intent. Id.
Our goal is to apply statutes in light of the policy sought to be advanced by the
entire statutory scheme. State v. Addison, 165 N.H. 381, 418 (2013).
Accordingly, we interpret a statute in the context of the overall statutory
scheme and not in isolation. Id.

      Both the State and Federal Constitutions entitle an indigent criminal
defendant to services, at state expense, that provide “the working tools
essential to the establishment of a tenable defense.” State v. Robinson, 123
N.H. 665, 669 (1983); see Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985). RSA
604-A:6 is part of the statutory scheme created by the legislature to fulfill that
constitutional mandate. See In re Allen R., 127 N.H. 718, 720 (1986).

       The New Hampshire Legislature has established a state-wide system of
providing legal representation and necessary ancillary defense services to
indigent criminal defendants who face imprisonment. See RSA 604-A:2, :6.
Such representation “include[s] counsel and investigative, expert and other
services and expenses, . . . as may be necessary for an adequate defense.” RSA
604-A:1 (Supp. 2013). The system is overseen by the New Hampshire Judicial
Council, which supervises the Office of the Public Defender and, with the
approval of the Governor and Executive Council, contracts with private
attorneys to represent indigent criminal defendants when the public defender
program is unavailable. See RSA 604-A:2, :2-b (2001); RSA ch. 604-B (2001).
Together with the commissioner of administrative services, the judicial council
acts as the “gatekeeper” who ensures that State resources for criminal defense
are neither wasted nor abused. See State v. Miller, 651 A.2d 845, 849-50 (Md.
1994) (under Maryland law, public defender is “‘gatekeeper’ who ensures that
[State] resources are not wasted or abused”); cf. In re Allen R., 127 N.H. at 723
(limitations upon public liability for ancillary defense services “express a
legislative judgment that the State’s obligation to provide [such] . . . services is
not a blank check on the public fisc, to be drawn in whatever amount the zeal
or caution of counsel may dictate”).

      Provision of services other than counsel is governed by RSA 604-A:6 and
:8 (Supp. 2013). RSA 604-A:6 provides, in pertinent part:




                                         8
            In any criminal case in which counsel has been appointed to
      represent a defendant who is financially unable to obtain
      investigative, expert or other services necessary to an adequate
      defense in his case, counsel may apply therefor to the court, and,
      upon finding that such services are necessary and that the
      defendant is financially unable to obtain them, the court shall
      authorize counsel to obtain the necessary services on behalf of the
      defendant. . . . In any case in which appointed counsel seeks
      funds for services other than counsel under this section, the
      application for such funds may be filed with the court on an ex
      parte basis and may, upon the request of appointed counsel, be
      sealed until the conclusion of the representation.

Pursuant to RSA 604-A:8, I, the trial court must forward to the judicial council
for payment all approved claims and written statements in support thereof.
RSA 604-A:8, II addresses the payment of counsel fees by the judicial council.

      According to the plain language of RSA 604-A:6, “investigative, expert or
other services” are available to a criminal defendant only under the following
circumstances: (1) “counsel has been appointed to represent [the] defendant”;
(2) appointed counsel has applied to the court for the services; and (3) the court
has found that the “services are necessary and that the defendant is financially
unable to obtain them.” The clear requirement of RSA 604-A:6 is that an
indigent criminal defendant be represented by appointed counsel in order to
obtain necessary ancillary defense services at state expense. There is no other
statutory mechanism to obtain state funding for such services.

      In my view, RSA 604-A:6 is simply “an extension of the procedural
framework” provided in RSA chapter 604-A. Miller, 651 A.2d at 849. The
system, as enacted by the legislature, entitles an indigent criminal defendant to
both counsel and necessary ancillary defense services at state expense, but
only as a “package deal.” In order to obtain necessary ancillary defense
services at state expense, an indigent criminal defendant must be represented
by appointed counsel.

        Courts in other jurisdictions have determined that “[h]aving to choose an
‘all or nothing’ approach for representation from [state-funded counsel] does
not violate an indigent defendant’s [constitutional] rights.” Moore v. Wolfe,
Civil No. WDQ-11-1014, 2014 WL 354456, at *9 (D. Md. Jan. 22, 2014); see
Miller v. Smith, 115 F.3d 1136, 1142-44 (4th Cir. 1997) (state’s refusal to pay
for trial transcript for indigent criminal defendant’s appeal when defendant was
represented by pro bono private counsel did not violate Sixth or Fourteenth
Amendments because the defendant could have availed himself of assistance
through the public defender’s office and received a free transcript, but chose
not to do so); People v. Cardenas, 62 P.3d 621, 623 (Colo. 2002) (“While an



                                        9
indigent defendant has the right to legal representation and supporting
services at state expense, he does not have the right to pick the attorney of his
choice”; thus, “[i]f Defendant wants the state to pay the costs of his attorney
and supporting services, his only choice is to be represented by the public
defender, or in the case of a conflict, a state-appointed alternate defense
counsel.”); Moore v. State, 889 A.2d 325, 346 (Md. 2005) (“[T]he Constitution
does not bar the State . . . from requiring [indigent criminal defendants] to
choose between counsel of their choice and ancillary services provided by the
[Office of Public Defender].”)

       Had the legislature viewed necessary ancillary defense services and legal
representation as severable, it could have either enacted a separate statutory
provision that allowed retained private counsel to obtain necessary ancillary
defense services on behalf of an indigent criminal defendant, or it could have
deleted the word “appointed” in RSA 604-A:6, which would have made that
provision apply to both retained and appointed counsel. I cannot ignore the
legislature’s use of the word “appointed” in RSA 604-A:6. See Winnacunnet
Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 525–26 (2002) (“When
construing a statute, we must give effect to all words in a statute and presume
that the legislature did not enact superfluous or redundant words.”). Nor can I
infer a statutory provision that the legislature did not see fit to enact.

      In the instant case, because the defendant is represented by retained
counsel and not by appointed counsel, she is not entitled to necessary ancillary
defense services at state expense. Accordingly, I would conclude that the trial
court sustainably exercised its discretion when it denied her private counsel’s
ex parte motion for services other than counsel.

       Although I believe that the language of RSA 604-A:6 is plain and
unambiguous, my colleagues disagree with my statutory interpretation. To the
extent that my dissent has accurately reflected the legislature’s intent, the
legislature may wish to consider amending the statute to state expressly that
an indigent criminal defendant must be represented by appointed counsel in
order to obtain necessary ancillary defense services at state expense.

      Although I would uphold the trial court’s statutory interpretation, I, like
the majority, decline to answer the transferred constitutional question. The
constitutional question was raised in an ex parte motion, and, therefore, was
never fully litigated in the trial court before it was transferred to this court.
Nor did the trial court analyze the constitutional question in its order
summarily denying the defendant’s ex parte motion. Under these
circumstances, I would remand the constitutional question for the trial court to
resolve in the first instance.

      HICKS, J., joins in the dissent.



                                         10
