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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 that he would not seek county funds if the agreement was fully honored.

The Criminal Justice Act, 18 USCA 3006A(c), provides for appointment of counsel upon a finding that a person is financially unable to pay counsel whom he has retained. In United States v James, 301 F Supp 107, 141 (WD Tex, 1969), defendants became unable to pay their retained counsel during the course of the proceedings and their retained counsel moved for appointment under the provisions of the above statute. The court denied the motion, however:

"The court finds that while the Criminal Justice Act of 1964 was meant to assure representation of indigent defendants on a basis which would alleviate the burden of individual lawyers, it was not intended to eliminate the burden by paying fees which the defendant might have paid had he not become indigent before or during the proceeding. It cannot be used to pay an attorney who took the case with open eyes, knowing at the time that his client was indigent. Allowing compensation under this act in such circumstances would open the door to indigent defendants choosing the lawyer whom they wanted, from any division or district they chose, and having the attorney appointed after he made his appearance in the case. Nor can the act be used to 'bail out' an attorney who failed to make adequate arrangements before accepting the representation of a criminal defendant. Again, the prime purpose of the act is to protect indigent defendants and not to compensate members of the bar representing indigent defendants."

It is submitted that the same view can be taken of MCLA 775.16; MSA 28.1253, providing for appointment of counsel to represent indigent defendants, under the circumstances of the case at hand. In Atilus v United States, 406 F2d 694, 696 (CA 5, 1969), defense counsel declined to prosecute defendant's appeal until defendant paid his fee, and the time for appeal passed. Although the Court reversed the lower court's refusal to permit defendant to file an appeal after the period had lapsed, the Court stated:

"It is of course perfectly plain that an accused has the right to engage private counsel on such terms as are agreed upon between them. No duty devolves upon the court to appoint counsel when private counsel is thus engaged. Counsel, of course, is entitled to charge for his services, but if, for whatever reason, he permits his services to be used without compensation or security for compensation from his client until a critical stage of the proceedings arrives, he can't be permitted simply to bow out without notice either to court or client and frustrate forever the right of the client to protect his vital interests. That seems to be precisely what happened here."

The following is instructive:

"Even where sufficient cause exists, the attorney has no unqualified right to withdraw of record and the court in its discretion may refuse the withdrawal, particularly where it is sought so close to the time the case is set for trial that it must necessarily result in a continuance to the prejudice of the other party. Moreover, the court cannot properly grant an attorney leave to withdraw in the absence of the client and without his being given notice and an opportunity to be heard * * *" 7 CJS, Attorney and Client, § 110, 944-945.

Since a motion to withdraw is addressed to the court's discretion, and since, like all motions, it may or may not be meritorious, the burden is upon the moving party to prove the legitimacy of the request. Riley v District Court, 507 P2d 464, 465 (Colo, 1973). In People v Murphy, 35 Cal App 3d 905, 922; 111 Cal Rptr 295, 304 (1973), defendants had retained counsel, but during the course of the trial became unable to pay the agreed fee and moved the court to appoint counsel to represent them. Affirming the trial court's refusal to appoint counsel to defend defendants, the Court said:

"Even assuming that the parties have standing to raise the issue, this motion was simply not timely made. Therefore, the trial court cannot be accused of abuse of discretion. This is far different from a situation where a motion to withdraw counsel is timely made before the case is set for trial and where there is no showing that withdrawal would prejudice the defendant, the prosecution or the smooth course of the administration of Justice. (People v Prince, 268 Cal App 2d 398, 406, 74 Cal Rptr 197.) Having undertaken the defense of a criminal case, an attorney must continue with his services until he is released by the client or by the court; he may apply to the court for release from further service and for good cause shown may be released, but he may not abandon his representation at will, nor for considerations personal to himself."

It is the opinion of this Court that the defendant was not in fact indigent in view of the fee agreement at the time his attorney sought removal from the case or in the ...


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