Knapp v. Hardy

• Decision Date: 24 June 1974
• Docket Number: No. 11553,11553
• Citation: Knapp v. Hardy, 111 Ariz. 107, 523 P.2d 1308 (Ariz. 1974)
• Parties: John Henry KNAPP, Petitioner, v. The Honorable Charles L. HARDY, Judge of the Superior Court, Maricopa County, Arizona; Moise E. BERGER, County Attorney for the County of Maricopa, State of Arizona, Real Parties in Interest, Respondents.
• Court: Arizona Supreme Court

Page 1308

523 P.2d 1308

111 Ariz. 107

John Henry KNAPP, Petitioner, v.The Honorable Charles L. HARDY, Judge of the Superior Court, Maricopa County, Arizona; Moise E. BERGER, CountyAttorney for the County of Maricopa, State of Arizona, Real Parties in Interest, Respondents.

No. 11553.

Supreme Court of Arizona, In Banc.

June 24, 1974.

Ross P. Lee, Maricopa County Public Defender by David W. Basham, Deputy Public Defender, Phoenix, for petitioner.

Moise Berger, Maricopa County Atty. by Charles F. Hyder, Deputy Public Defender, Phoenix, for respondents.

CAMERON, Vice Chief Justice.

We granted this petition for special action to review the orders of the Superior Court of Maricopa County which denied defendant association of private counsel with the public defender, and which denied his request for appointment of an expert at State expense.We consider the following questions:

1.Was the defendant an indigent?

2.May privately retained counsel be associated with the public defender as an additional attorney for an indigent defendant?

3.If so, does the county attorney have standing to object to such association?

4.May the county attorney refuse to negotiate with an attorney 'not of record' in a particular criminal case?

5.Must the court appoint an expert witness at State expense?

The facts necessary for a determination of the issues before us are as follows.The defendant Knapp was charged by information with two counts of arson-murder of his two daughters which allegedly occurred on 16 November 1973.At his arraignment Knapp was determined to be indigent, and the public defender's office was appointed to represent him.Mr. David Basham, deputy public defender, was assigned to the case.Subsequently, on 28 December 1973, the defendant's mother, Mrs. Mary Elizabeth Knapp, retained Mr. Charles Diettrich, an attorney in private practice, to assist the public defender.Mr. Diettrich asked for permission to inspect the burned house and was refused permission by the county attorney as he was not counsel of record.On 6 February 1974 the county attorney filed a motion for determination of counsel, urging that the defendant was entitled to representation by either the public defender or private counsel, but not both.At the hearing on the motion Mr. Diettrich testified that the retainer was limited to assisting the public defender, and that for the amount of the retainer he would be unable to handle the entire defense case.He testified as follows:

'THE COURT: We are arguing the question of whether or not Mr. Knapp is an indigent.Apparently there's some question on the nature of your representation of him.

Will you tell us what you have been retained to do?

'MR. DIETTRICH: Basically, I was retained after quite a lengthy discussion with the public defender on the case.Dave Basham, the defendant's--John Knapp's mother, Mrs. Mary Knapp to the effect that she didn't feel that she could afford to hire me to take over the case at that point for full representation of it.So I was hired, in effect, to assist in the trial of the case when it comes to trial.And I took the case and the retainer on that basis.'

At the close of the hearing the court ruled that the defendant was still indigent, but that should Mr. Diettrich become attorney of record, the public defender would be relieved from further participation in the case.Thereafter, on 15 April 1974, a motion for association of Mr. Diettrich was filed and the motion was denied.

On 12 April 1974the defendant also filed a motion for appointment of an arson expert at State expense.In support thereof the defendant argued that a determination of the cause of the fire which led to the deaths of the two victims was essential to his defense, and that the budget of the office of the public defender could not withstand the total cost of an investigator to determine the cause of the fire.The court denied the motion.From said foregoing orders of the courtthe defendant filed this petition for special action.

WAS THE DEFENDANT INDIGENT?

The county attorney first contends that because defendant has been provided with the assistance of private counsel through funds advanced by his mother, he is no longer indigent within the meaning of the statute and the rules.

The Rules of Criminal Procedure 1973 state as follows:

Rule 6.4 Determination of indigency

'a.Standard.The term 'indigent' as used in these rules means a person who is unable to obtain services of counsel without incurring substantial hardship to himself or to his family.'

In a previous opinion of this courtwe held that it was error for the court to consider financial resources of a convicted defendant's friends or family for the purpose of deciding whether or not the defendant was entitled to free transcripts for his appeal.State v. Vallejos, 87 Ariz. 119, 348 P.2d 554(1960);State v. Owen, 97 Ariz. 250, 399 P.2d 660(1965).Similarly, the Comment to Rule 6.4,Rules of Criminal Procedure 1973, reads in part as follows:

'In making a determination whether or not a defendant is indigent, the court should consider such factors as income, source of income, property owned, outstanding obligations, the number and ages of any dependents, and other sources of family income; but it should not consider the fact that a person has been released on bail or the ability of friends or relatives, not legally responsible for him, to obtain services of counsel. * * *'

This Comment not only conforms to our prior case law, Vallejos and Owen, supra, but also to The American Bar Association's Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services:

'6.1 Eligibility

'Counsel should be provided to any person who is financially unable to obtain adequate representation without substantial hardship to himself or his family.Counsel should not be denied to any person merely because his friends or relatives have resources adequate to retain counsel or because he has posted or is capable of posting bond.'The 'Commentary' reads:

'b.Resources of Relatives and Friends

'The American Bar Foundation's survey of the practice in American courts found that in determining eligibility

resources of the defendant's parents are usually considered only when he is a minor, and even then some courts recognize that the parents have no legal obligation to provide a lawyer for him.For the most part, resources of the spouse are considered a disqualification only in community-property states and only if the resources are community property.'

The mother in the instant case had no legal obligation to provide legal counsel for the defendant, and the determination of indigency must be based on his financial condition and not that of relatives and friends.Of course, this does not mean that once a defendant has been determined to be indigent his status cannot be changed.

Rule 6.4(c) Rules of Criminal Procedure 1973, 'Reconsideration,' states as follows:

'If a determination of indigency or nonindigency has been made by a person other than a Superior Court judge, in a case triable in the Superior Court, or, if such determination was made by a Superior Court judge but there has been a material change in circumstances, either the person requesting appointment of counsel, the attorney appointed, or the prosecutor may move for reconsideration of the determination by the Superior Court.'

The county attorney clearly may move for reconsideration of defendant's status as an indigent.Likewise, there is an obligation on the part of the public defender to bring to the court's attention, by way of a motion for reconsideration, those cases wherein there is a change which would indicate that the defendant is no longer indigent.The taxpayers should not be burdened by the defense of a person capable of providing his own counsel.

In the instant casewe believe the record adequately reflects that the defendant was, and continued to be, an indigent and the trial court did not abuse its discretion in so determining.

MAY PRIVATE COUNSEL BE ASSOCIATED WITH THE PUBLEC DEFENDER?

It is the contention of the county attorney that private counsel may not, under any circumstances, be associated with the public defender in the defense of a case.With this conclusion the trial court evidently agreed.

A defendant may have more than one attorney, and the public defender's office may assign one or more attorneys to represent a particular defendant depending upon the seriousness of the case and the competency and experience of the attorneys assigned.We have been unable to find anything which prevents the association of private counsel with the public defender's office in the defense of an indigent.It is, of course, not improper for a relative of the defendant to hire people to help and assist, and the fact that the indigent defendant already has the aid of the public defender's office does not limit the help a defendant may receive.We feel that it is preferable to have counsel thus assisting to be associated and made a counsel of record with reciprocal rights and duties under our Rules of Criminal Procedure and subject to the direction of the court as to the particular case in which he is involved.

In a previous case this court indicated that the trial judge should not be too hasty in discharging the public defender when an indigent is asserting a right to obtain the services of private counsel.We stated:

'* * * Finally the court had the defendant take an oath as to his indigency and appointed the Public Defender to represent him.The defendant at this time indicated that he had a wife and three children to support, that he hadn't worked for nine days, and that he owned no property.

'The day before the trial day, an attorney filed a motion for continuance indicating he had just been retained by the defendant.The motion was granted.

'On January 19, 1967, a hearing was had for determination of counsel.The private attorney was permitted to...