STATE V. FRAZIER, 1973-NMCA-127, 85 N.M.
545, 514 P.2d 302 (Ct. App. 1973)
STATE OF NEW MEXICO, Plaintiff-Appellee
vs.
GEORGE MELVIN FRAZIER, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1973-NMCA-127, 85 N.M. 545, 514 P.2d 302
Appeal from the District Court of Otero
County, Snead, Judge
DAVID L. NORVELL, Attorney General, F.
SCOTT MacGILLIVRAY, Assistant, Attorney General, Santa Fe, New Mexico,
Attorneys for Plaintiff-Appellee.
JOHN S. SPENCE, PAUL B. RASOR,
Alamogordo, New Mexico, Attorneys for Defendant-Appellant.
LOPEZ, Judge, wrote the opinion.
Joe W. Wood, C.J., William R. Hendley, J.
{1} The defendant was
convicted on three counts of unlawful sale of a narcotic drug, contrary to §
54-7-14, N.M.S.A. 1953 (Vol. 8, pt. 2), and one count of unlawful sale of a
stimulant, depressant or hallucinogenic drug, contrary to § 54-6-38, N.M.S.A.
1953 (Vol. 8, pt. 2, Supp. 1971).
{2} Defendant appeals
alleging two points for reversal: (1) the court erred in denying his motion for
advancement of expenses for investigation; and, (2) the court erred in giving
its Instruction No. 13.
(1) The court did not err in denying defendant's motion
for advancement of expenses.
{4} Counsel was appointed for
defendant pursuant to the Indigent Defense Act, §§ 41-22-1 through 41-22-10,
N.M.S.A. 1953 (2d Repl. Vol. 6). Defendant based his motion upon § 41-22-3,
supra, of that act, which states:
"A needy person who is being detained by a law
enforcement officer, or who is under formal charge of having committed, or is
being detained under a conviction of, a serious crime, is entitled to be
represented by an attorney to the same extent as a person having his own
counsel and to be provided with the necessary services and facilities of
representation, including investigation and other preparation. The
attorney, services and facilities and expenses and court costs shall be
provided at public expense for needy persons." [Emphasis added.]
{5} Defendant's motion was
properly denied. The Indigent Defense Act does not contemplate the payment of
advances. Section 41-22-8(B), supra, states:
"The court assigning counsel under the Indigent Defense
Act... shall reimburse counsel for direct expenses the court determines
to have been properly incurred by him...." [Emphasis added]
Defendant argues that an attorney would be hesitant to incur
these expenses, not knowing whether they are "properly incurred."
However, the Twelfth Judicial District, where this case was tried, allows prior
authorization of such expenses.
{6} Even if defendant's
motion could be construed as a request for prior authorization and not a motion
for advancement, we would still be compelled to affirm. The act contemplates
reimbursement only for "necessary" expenses. To the trial court,
defendant argued for an advancement of fees to hire an investigator solely on
the basis that without the advancement he was "hindered" in the
preparation of the defense. This is not a showing of the
{*547}
necessity for an investigator. See State v. Dillon, 93 Idaho 698, 471 P.2d
553 (1970), cert. denied, 401 U.S. 942, 91 S. Ct. 947, 28 L. Ed. 2d 223 (1971);
Washington County v. Day, 22 Utah 2d 6, 447 P.2d 189 (1968); also see State v.
Tackett,
78 N.M. 450,
432 P.2d 415 (1967), cert. denied, 390 U.S. 1026, 88 S.
Ct. 1414, 20 L. Ed. 2d 283 (1968); State v. Toussaint,
84 N.M. 677,
506 P.2d
1224 (Ct. App. 1973). Defendant contends that the statutory requirement has been
met because there is a need for investigation in every case. However, his
motion specifically requested funds for a professional investigator. Such an
expenditure is clearly not required in every case and need not be provided
unless the necessity is shown. Since there has been no showing of need, we
cannot say the trial court abused its discretion in regard to the expenses.
Therefore, we hold that the motion was properly denied.
(2) Defendant cannot raise the propriety of the
instruction for the first time on appeal.
{7} The court's Instruction
No. 13 pointed out that the defendant was a competent witness in his own behalf
but that his interest in the trial could be taken into account. There was no
objection to this instruction before the trial court. Defendant argues that the
instruction was an adverse comment by the court, singling out the defendant and
denying him due process of law. The alleged error is neither jurisdictional nor
fundamental. See State v. Lopez,
84 N.M. 402,
503 P.2d 1180 (Ct. App. 1972);
State v. Reynolds,
79 N.M. 195,
441 P.2d 235 (Ct. App. 1968); also see Louie v.
United States, 426 F.2d 1398 (9th Cir. 1970), cert. denied, 400 U.S. 918, 91 S.
Ct. 180, 27 L. Ed. 2d 158 (1970). Therefore, it cannot be raised for the first
time on appeal. See § 21-2-1(20), N.M.S.A. 1953 (Repl. Vol. 4).
Joe W. Wood, C.J., William R. Hendley, J.