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09/20/77 PEOPLE v. NARD

September 20, 1977

PEOPLE
v.
NARD



Appeal from Lapeer, Norman A. Baguley, J.

Danhof, C. J., and T. M. Burns and A. E. Keyes,* JJ.

SYLLABUS BY THE COURT

1. Constitutional Law -- -- Right to Counsel -- Indigency -- Course of Proceedings -- Attorney and Client -- Right to Withdraw -- Prejudice -- Notice.

A defendant who becomes indigent during the course of the criminal proceedings against him is entitled to appointed counsel when he becomes financially unable to pay the counsel he has retained, but the retained attorney has no unqualified right to withdraw of record, and the court in its discretion may refuse such withdrawal, where it is so close to the time the case is set for trial that the withdrawal must necessarily result in a continuance to the prejudice of the other party; a court cannot properly grant an attorney leave to withdraw in the absence of his client and without the client being given notice and an opportunity to be heard.

2. -- Indigent Defendants -- Attorney and Client -- Public Compensation -- Adequate Arrangements.

Public funds to assure representation of indigent defendants may properly be refused to an attorney who takes the case with open eyes, knowing at the time that his client was indigent; such funds were not intended to be used to "bail out" an attorney who fails to make adequate arrangements before accepting the representation of a criminal defendant.

3. Attorney and Client -- -- Withdrawal of Counsel -- Indigency -- Timely Motions.

An attorney who waited until after his client's case was set for trial to move for withdrawal because of the client's indigency did not timely file the motion where his motion effectively removed from the court's consideration the appointment of a different attorney because, under the complexities of the case, the substitute would not have been able adequately to prepare a defense in the time provided.

4. -- Venue -- Burden of Proof -- Appeal and Error.

A defendant who claims that a trial court improperly refused his motion for change of venue failed to meet his burden of showing undue influence on the jurors or preconceived opinion where the record shows that both sides had ample opportunity to question each and every juror in great detail concerning his or her qualifications, to explore every avenue of prejudice unfettered by the trial court, and where the defense had not exhausted its peremptory challenges.

5. -- Jury -- Opening Statements -- Prosecutors -- Physical Facts -- Reasonable Inferences.

A prosecutor in his opening statement to the jury may make a full and fair statement of his case and the facts he intends to prove; he is not limited to merely reciting physical facts, but may properly relate and draw reasonable inferences from that information.

6. -- Evidence -- Photographs -- Admissibility -- Discretion of Court.

A trial court considering the admission of photographs in a criminal trial must determine whether the pictures are substantially necessary or instructive to show material facts or conditions, or whether they are merely calculated to excite passion and prejudice; the admission of such evidence is in the sound discretion of the trial Judge.

7. Constitutional Law -- -- Miranda Rights -- General Inquiry -- Unresponsive Statements -- Admissibility.

A general inquiry about a suspect's health and well being which did not substantively concern the offense involved, but which elicited an unresponsive inculpatory reply from the suspect was not within the parameters of the Miranda decision, and the response was admissible even though no Miranda warnings had preceded it.

8. Constitutional Law -- -- Miranda Rights -- Waiver -- Intellectually Impaired Defendant -- Overbearance.

Waiver of Miranda rights by an intellectually impaired defendant was valid where the impairment was not severe, there was no overbearance on the part of the police, the subsequent interrogation was neither long nor intense, there was no evidence of physical deprivation, and there was no assertion by the defendant that the police in any way elicited the confession through promises or threats.

The opinion of the court was delivered by: Keyes

Kenneth E. Nard was convicted of two counts of second-degree murder. Defendant appeals.

Defendant was charged with the murders of two boys, ages 11 and 12. The jury returned guilty verdicts on two counts of second-degree murder. MCLA 750.316; MSA 28.548. Defendant was sentenced to life imprisonment.

His appeal encompasses not only seven assignments of error, but also an interlocutory appeal filed prior to trial, but deferred by order of this Court for Disposition subsequent to trial.

The issue raised by interlocutory appeal is addressed to the duty of a trial Judge to appoint assigned counsel upon the motion of retained counsel to withdraw upon a showing that the defendant's family had notified such counsel that they were unable to comply with the financial terms of the retained fee agreement.

Based upon defendant's indigency status, the defendant was afforded assigned counsel initially, but attorney Richard P. Banas, subsequent to execution of a written fee agreement with defendant's family which provided for a total fee of from $5,000 to $7,000 in addition to costs, filed his appearance in behalf of defendant and assigned counsel was dismissed. Some 26 days prior to the firmly scheduled trial date, Banas filed a petition alleging breach of the fee contract, indigency on the part of defendant, and moved that either he or other counsel be assigned to represent defendant. Significantly, defendant did not expressly consent to his retained counsel's dismissal. Further, Banas represented to the trial Judge that, in the event his fee contract was fully performed by defendant's family, he would not seek recompense from the county. Defendant's motion was denied in part. The request for attorney fees was denied, however, the court ordered that all necessary advances for lay and expert witness fees, costs of transcripts, and investigative costs be paid by the county. The sum of $788.30 was paid pursuant to the trial Judge's direction. At the time of the motion, attorney Banas had received $3,455.19 toward the fees and costs of defendant's defense.

An indigent criminal defendant is clearly entitled to an attorney appointed at public expense. MCLA 775.16; MSA 28.1253, Gideon v Wainwright, 372 U.S. 335; 83 S Ct 792; 9 L Ed 2d 799 (1963).

The crucial question is whether the defendant, at the time of the motion, was in fact indigent. Defendant was the third party beneficiary of the fee agreement. If fully paid, his counsel apparently would have been satisfied, in view of his representation to the court ...


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