People v. Nard, Docket Nos. 26766 and 28474
Decision Date | 20 September 1977 |
Docket Number | Docket Nos. 26766 and 28474 |
Citation | 78 Mich.App. 365,260 N.W.2d 98 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth Earl NARD, Defendant-Appellant. 78 Mich.App. 365, 260 N.W.2d 98 |
Court | Court of Appeal of Michigan — District of US |
[78 MICHAPP 367] Richard P. Banas, Flint, for defendant-appellant, Martin F. Palus, Flint, of counsel.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward B. Meth, Pros. Atty. by Keith D. Roberts, Director, Pros. Attys. App. Serv., Mark I. Leach, Asst. Attys. Gen., for plaintiff-appellee.
Before DANHOF, C. J., and T. M. BURNS and KEYES, * JJ.
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. M.C.L.A. § 750.316; M.S.A. § 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[78 MICHAPP 368] 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. M.C.L.A. § 775.16; M.S.A. § 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. [78 MICHAPP 369] 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 U.S.C.A. Section 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 (W.D.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:
It is submitted that the same view can be taken of M.C.L.A. § 775.16; M.S.A. § 28.1253, providing for appointment of counsel to represent indigent defendants, under the circumstances of the case at hand. In [78 MICHAPP 370] Atilus v. United States, 406 F.2d 694, 696 (C.A. 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:
The following is instructive:
7 C.J.S. Attorney and Client § 110, pgs. 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, 181 Colo. 90, 507 P.2d 464, [78 MICHAPP 371] 465 (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:
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 alternative sought recompense from the county.
It is the further opinion of this Court that attorney Banas, by waiting until after the case had been set for trial to move for withdrawal, did not timely file the motion because it removed from the court's consideration the appointment of a different attorney, who, under the complexities of this case, would not have been able adequately to prepare a defense in 26 days. Such appointment would necessarily interfere with the smooth course [78 MICHAPP 372] of the administration of the court, which had set aside time on its schedule for the trial.
Accordingly, this Court finds no error in the ruling of the trial judge, and his order is affirmed.
Turning now to the assignments of error claimed by defendant as filed subsequent to trial, defendant asserts entitlement to a reversal of his convictions for the reason that while the trial court ruled that a change of venue was necessary from Lapeer County, the situs of the crimes, it abused its discretion when, in fact, it did not change the venue pursuant to a second motion, from Tuscola County.
The trial judge conducted an evidentiary hearing on the motion to change venue and at the conclusion thereof ordered that a change of venue was necessary in view of pretrial publicity and other factors which would preclude the probability of obtaining an impartial jury in Lapeer County where the crime had occurred. He ordered that the trial be held in Tuscola County which borders Lapeer County to the north. Defendant's motion to change venue from Tuscola County was denied. Jury selection commenced on January 6, 1976, and continued for five days. Trial counsel for both sides had ample opportunity to question each and every juror in great detail concerning his or her qualifications to sit on the jury. In more than 900 pages of...
To continue reading
Request your trial-
People v. Germain
...not fall within the purview of Miranda, supra. People v. Terry, 86 Mich.App. 64, 67-68, 272 N.W.2d 198 (1978), People v. Nard, 78 Mich.App. 365, 377-378, 260 N.W.2d 98 (1977), People v. Leffew, 58 Mich.App. 533, 535-536, 228 N.W.2d 449 (1975), People v. Moore, 51 Mich.App. 48, 51, 214 N.W.2......
-
People v. Bryant
...the trial court will not as likely abuse its discretion if the photographs are not that particularly gruesome. People v. Nard, 78 Mich.App. 365, 260 N.W.2d 98 (1977), lv. den. 408 Mich. 916 (1980); People v. Ernest Green, 74 Mich.App. 351, 253 N.W.2d 763 (1977), aff'd 405 Mich. 273, 274 N.W......
-
People v. O'Brien
...all. On this record we hold that the trial court did not abuse its discretion in denying the motion to change venue. People v. Nard, 78 Mich.App. 365, 260 N.W.2d 98 (1977); People v. Hughes, 85 Mich.App. 8, 270 N.W.2d 692 Relying principally on People v. Hoffmeister, 394 Mich. 155, 229 N.W.......
-
People v. Lewis, Docket Nos. 78-2959
... ... People v. Kelly, 30 Mich.App. 154, 186 N.W.2d 72 (1971), People v. Nard, 78 Mich.App. 365, 260 N.W.2d 98 (1977), People v. Robinson, 79 Mich.App. 145, 261 N.W.2d 544 ... ...