202 N.W.2d 552 | Mich. Ct. App. | 1972
PEOPLE
v.
GILLESPIE.
Michigan Court of Appeals.
*680 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul M. Ladas, Prosecuting Attorney, and Richard J. Farabaugh, Assistant Prosecuting Attorney, for the people.
Marcus, McCroskey, Libner, Reamon & Williams (by Darryl R. Cochrane), for defendant on appeal.
Before: FITZGERALD, P.J., and HOLBROOK and T.M. BURNS, JJ.
T.M. BURNS, J.
On May 5, 1970, defendant was convicted by a jury for the felony of grand larceny, MCLA 750.356; MSA 28.588. Defendant appeals as of right.
The sole question for determination on appeal is whether or not the defendant was indigent and entitled to appointed counsel notwithstanding the fact he had posted bail bond.
On February 10, 1970, an information charging the defendant with grand larceny was filed. Two days later defendant posted bail bond[1] and petitioned the trial court for appointed counsel.
A hearing was held on the question of defendant's indigency the day before trial. Defendant's father testified that it was he, and not the defendant, who was paying the bondsman and that the only reason he was able to post the bond was *681 because the bondsman was allowing him to pay on an installment-type plan. Furthermore, both the defendant and his father stated that they could not retain an attorney because all of the ones contacted required lump-sum payments in excess of what they could afford. The trial court ruled that since the defendant was able to post bond, he was not indigent and not entitled to appointed counsel. As a result, defendant represented himself at trial. This was error.
The Federal constitutional right of an indigent to court-appointed counsel to assist him in his defense is so well-recognized that no authority need be cited. So essential is the right to the assistance of counsel, that no one in this state will be forced to stand trial in propria persona on a felony charge if that person desires the assistance of counsel, regardless of the complexities in determining whether the person is indigent or not. We simply do not answer the question of whether a man is indigent in a close case by forcing him to go to trial on his own. People v Chism, 17 Mich. App. 196, 199 (1969).[2]
The standard for review when a criminal defendant asserts indigency and requests appointed counsel was set forth by this Court in People v Rocha, 13 Mich. App. 596, 597 (1968), as follows:
"Defendant represented himself at trial because the trial judge denied a request for appointed counsel. On appeal, defendant questions the propriety of this denial. It is only proper if the record discloses that defendant was financially able to provide counsel. GCR 1963, 785.3(1)." (Emphasis supplied.)
The only evidence in the present case that defendant *682 was able to retain counsel was the fact that bail bonds were posted for him. The inference of financial ability which might arise from this fact was rebutted by the testimony of the defendant's father, which explained the financial conditions under which the bonds were procured.
Even assuming arguendo that such testimony did not rebut the evidence of financial ability inferred from the posting of the bonds, we conclude that the fact defendant did post the bonds is not sufficient proof that defendant was financially able to employ counsel. This Court in People v Chism, supra, clearly indicated that even a deliberate transfer of funds which renders a defendant indigent will not terminate the right to appointed counsel.
Therefore, the mere fact that defendant was rendered indigent by the purchase of a bail bond would in no way mitigate his right to court-appointed counsel. To rule otherwise would force criminal defendants in strained financial circumstances to choose between their freedom and having the assistance of counsel at trial.
In view of the foregoing, we hold that the trial court's denial of defendant's motion for court-appointed counsel was erroneous and a manifest abuse of judicial discretion.
Reversed and remanded for a new trial.
All concurred.
NOTES
[1] Bond was originally set at $1000, but was subsequently raised to $2500.
[2] Although the court spoke in terms of felony-murder, the thrust of the holding is equally applicable to any other felony.
