text:
    PEOPLE v CLEMONS
    Docket No. 77-4694.
    Submitted April 10, 1979, at Detroit.
    Decided June 20, 1979.
    Leave to appeal applied for.
    Kenneth Clemons was convicted of receiving and concealing stolen property in connection with the theft of a 1965 Plymouth automobile, Recorder’s Court of Detroit, Samuel Brezner, J. The defendant appeals, alleging 1) that the lower court committed reversible error in questioning the defendant’s brother as to whether he would consider lying to save the •defendant, 2) that the prosecutor’s closing arguments unfairly denied the defendant a fair trial, 3) that the court improperly failed to include in its charge to the jury a relevant instruction pertaining to an alibi defense, 4) that a defendant has a right to be sentenced by the same judge who conducted defendant’s trial, and 5) that insufficient evidence was produced to establish the value of the car stolen and that the court erred in instructing the jury regarding the value of the car. Held:

    1. The line of questioning by the trial judge, rather than clarifying an ambiguity or eliciting relevant information, conveyed to the jury the court’s disbelief of the testimony of the alibi witness. However, the cautionary instructions, agreed to by defense counsel, were sufficient to eradicate the prejudicial impact of the court’s examination. In addition, in view of the overwhelming evidence of guilt, any error was harmless beyond a reasonable doubt.
    2. Defense counsel neither objected to the prosecutor’s closing argument nor requested a curative instruction. The prosecutor’s statements did not result in manifest injustice. The issue is not preserved for appeal.
    3. Defense counsel did not object at trial to the trial court’s failure to instruct the jury that in the case of an alibi defense "if you have a reasonable doubt whether the defendant was present at the time and place of the crime charged, then you must find him not guilty”. The failure to give this instruction did not result in manifest injustice. While there was error, it was harmless error.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 88, 122, 322, 666.

       5 Am Jur 2d, Appeal and Error § 896.

       5 Am Jur 2d, Appeal and Error §§ 623, 891.

       75 Am Jur 2d, Trial § 48.
    Substitution of judge in criminal case. 83 ALR2d 1032.

       29 Am Jur 2d, Evidence § 387.

       30 Am Jur 2d, Evidence § 1091.

       75 Am Jur 2d, Trial § 48.

      4. Michigan case law uniformly rejects the contention that a defendant has a right to be sentenced by the same judge who conducted the defendant’s trial. The defendant has no constitutional right, nor one provided by statute or court rule, to demand that the trial judge preside at his sentencing.
    5. The issue of the insufficiency of evidence of the value of the car was not preserved for appeal. The defendant neither objected to the circumstantial evidence presented nor requested a jury instruction.
    Affirmed.
    Beasley, P.J., concurred. He would require the trial judge who presided over the trial to impose sentence unless there is good and sufficient reason to substitute another judge. The record in the case at bar does not indicate that the trial judge was absent or had any disability from imposing sentence. He would affirm the defendant’s conviction, but would vacate the defendant’s sentence and remand for resentencing by the judge who presided over the trial, if he is available.
    Opinion op the Court
    1. Witnesses — Criminal Law — Questions by Trial Court — Prejudice.
    A trial court may permissibly question a witness when it seeks to resolve an ambiguity in testimony or bring forth additional relevant information; however, in so doing the trial court may not prejudice the rights of a defendant and, if the questions are such as to indicate that the judge favors one side or another, he has invaded the province of the jury and has committed reversible error; nevertheless, in certain circumstances a proper cautionary instruction may serve to alleviate any prejudice to the defendant.
    2. Appeal and Error — Criminal Law — Argument op Counsel — Preserving Question.
    Appellate review of alleged prejudice in a prosecutor’s closing argument is precluded in the absence of objection at trial unless failure to consider the issue would result in a miscarriage of justice.

      3. Appeal and Error — Preserving Error — Jury Instructions — Miscarriage of Justice — Court Rules.
    A defendant’s failure to object at trial to the jury instructions precludes appellate review of such instructions except where a miscarriage of justice would otherwise result (GCR 1963, 516.2).
    4. Criminal Law — Sentences — Trial Judge.
    A defendant has no constitutional right, nor one provided by statute or court rule, to demand that the judge who presided over the defendant’s trial also preside at the defendant’s sentencing.
    5. Evidence — Personal Property — Value.
    An owner of personal property is qualified to testify regarding such property, provided it does not relate to sentimental or personal value.
    6. Criminal Law — Evidence — Automobiles — Value — Possession of Stolen Property — Circumstantial Evidence.
    Testimony by a complainant regarding the value of his automobile which had been stolen and for which the defendant is on trial for possession of stolen property in excess of $100 is circumstantial evidence of the automobile’s value, and as such is sufficient to present a jury question as to whether the value was in excess of $100.
    Partial Concurrence, Partial Dissent by Beasley, P.J.
    7. Criminal Law — Sentencing — Substitute Judge — Failure to Object — Court Rules.

      It was unfair to a defendant to substitute at his sentencing, for reasons undisclosed, another judge who was a total stranger to the proceedings where the judge who had presided over the defendant’s trial had seen ñt to indicate that he was going to give some consideration to some of the factors involved in the trial with respect to the sentence and where there was no showing that the trial judge was "absent” as required by the court rules; in such circumstances requiring a defendant to object or to seek to have the sentencing judge disqualify himself before the matter may be considered on appeal places too great and too Unfair a burden upon a defendant.

    8. Criminal Law — Sentencing — Trial Judge — Substitution of Judges — Court Rules.

      The usual practice is for the judge who has presided over a criminal trial or who has taken a defendant’s plea to impose the sentence, unless there has been a showing that the trial

      judge was "absent” at the time bf sentencing, because the judge presiding over the trial has a closer acquaintance ahd a greater familiarity with the defendant and with the issues and because our system strives for sentences that will be tailor-made for the particular defendant and the particular offense for which he is being sentenced (GCR 1963, 531).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people.

      Richard R. Nelson, for defendant on appeal.
    Before: Beasley, P.J., and Allen and D. C. Riley, JJ.
   Per Curiam.

Defendant Kenneth Clemons was arrested for the theft of complainant’s 1965 Plymouth automobile and, in connection therewith, was jury convicted of receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803. Defendant was sentenced to 3 to 5 years imprisonment, appeals as of right, and raises five issues which we address in turn.

Defendant first maintains that the lower court reversibly erred in questioning defendant’s brother as to whether he would consider lying to save the defendant. The judge’s inquiries were met by defense counsel’s motion for mistrial, after which the court admitted error and subsequently gave two separate curative instructions to the jury.

A trial court may permissibly question a witness when it seeks to resolve an ambiguity in testimony or bring forth additional relevant information, People v Karmey, 86 Mich App 626, 636; 273 NW2d 503 (1978), People v John Moore, 78 Mich App 150, 155; 259 NW2d 403 (1977), lv den 402 Mich 950t (1978); however, in doing so it may not prejudice the rights of the defendant, People v Gray, 57 Mich App 289, 294; 225 NW2d 733 (1975), and if the questions are such as to indicate that the judge favors one side or another, he has invaded the province of the jury and committed reversible error. People v Gray, supra. Nevertheless, in certain circumstances, a proper cautionary instruction may serve to alleviate any prejudice to the defendant. People v Gray, supra, at 295, People v Withrow, 26 Mich App 679, 685-686; 182 NW2d 775 (1970), lv den 384 Mich 795 (1971).

Applying these principles to our review of the transcript, we conclude that the trial judge’s line of questioning, rather than clarifying an ambiguity or eliciting relevant information, conveyed to the jury the court’s disbelief of the testimony of the alibi witness. At the same time, however, we are convinced that the cautionary instructions, agreed to by defense counsel, as an appropriate remedy for curing the error, were sufficient to eradicáte the prejudicial impact of the court’s examination. The judge informed the jury that he was plainly mistaken in questioning the witness in such a manner. His remarks clearly delineated the roles of the court, trial counsel and jury, and warned the jury to disregard any questions posited by him, and the answers thereto. The jurors were further told that the court had no opinion as to defendant’s guilt, and that they should draw no such inference. As a final safeguard, the jury was polled by the trial judge and unanimously indicated that it could strike the question and answer from their minds. Under these circumstances we decline to reverse. In addition, any error, in view of the overwhelming evidence of guilt presented against defendant, would be harmless beyond a reasonable doubt. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972), People v Heard, 58 Mich App 312, 316; 227 NW2d 331 (1975), lv den 400 Mich 812 (1977).

Next, defendant argues that the prosecutor’s closing arguments unfairly denied him a fair trial. Defense counsel did not object to any of the remarks, nor request a curative instruction. Therefore, any error remains preserved for appeal only if it resulted in manifest injustice. MCL 769.26; MSA 28.1096, People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977), People v William Clark, 68 Mich App 48, 51-52; 241 NW2d 756 (1976). We do not find that standard met in the case at bar. The arguments of the prosecutor were related to the evidence of the case and did not amount to an expression of personal opinion as to guilt. See People v Page, 63 Mich App 177, 179; 234 NW2d 440 (1975). Further, the prosecutor’s comments on the failure of defendant to produce more alibi witnesses, in view of the factual circumstances surrounding that defense, were within the boundaries of permissible observation. People v Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979), People v Ford, 59 Mich App 35, 39; 228 NW2d 533 (1975), People v Hooper, 50 Mich App 186, 196-197; 212 NW2d 786 (1973), lv den 391 Mich 808 (1974).

Defendant also raised the possibility of instructional error by the court’s failure to include in its charge to the jury paragraph four of Criminal Jury Instruction 7:2:01, which states that, in the case of an alibi defense, "[i]f you have a reasonable doubt whether the defendant was present at the time and place of the crime charged, then you must find him not guilty”. Again, no exception was proffered as required to save the issue for appellate review, GCR 1963, 516.2, People v Haney, 86 Mich App 311, 318; 272 NW2d 640 (1978), People v Sherman Hall, 77 Mich App 456, 462; 258 NW2d 517 (1977), and the record fails to support a finding of manifest injustice. Although we find error, People v John Johnson, 58 Mich App 60; 227 NW2d 228 (1975), People v William Johnson, 54 Mich App 678; 221 NW2d 452 (1974), People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), see also People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978) (D. C. Riley, J., dissenting/concurring), we nevertheless conclude that it was harmless. As previously noted, the evidence against defendant was considerable.

The penultimate issue offered for review questions whether a defendant has a right to be sentenced by the same judge who conducted his trial. Michigan case law uniformly rejects this contention, holding that a defendant has no constitutional right, nor one provided by statute or court rule, to demand that the trial judge preside at his sentencing. People v McKinley, 5 Mich App 230, 235-237; 146 NW2d 142 (1966), lv den 378 Mich 750 (1967), People v Blair, 11 Mich App 649, 651; 162 NW2d 112 (1968). Cf., People v Collins, 25 Mich App 609, 613; 181 NW2d 601 (1970). In addition, both People v McKinley, supra, at 237 and People v Blair, supra, at 651, held that such a right, if existing at all, would be personal to defendant, and subject to waiver by failure to object at the time of sentencing. Here, defendant’s failure to object relinquished any predication of error.

Lastly, defendant alleges that insufficient evidence was produced to establish the value of the stolen automobile, and that the court erred in instructing the jury regarding said value. We disagree. At trial, complainant testified that he had bought the car for $950, had installed a new motor, and would not accept less than $250 for it, which figure also represented his estimate of the vehicle’s worth on the day it was stolen. Furthermore, he stated that the auto was in good running condition (also evidenced by defendant’s capture after a high speed chase) and that the body had not rusted out. The police testified that it was still running upon its return to the owner.

An owner of personal property is qualified to testify regarding the value of such property, Kavanagh v St Paul Fire & Marine Ins Co, 244 Mich 391, 394; 221 NW 119 (1928), Printz v People, 42 Mich 144; 3 NW 306 (1879), Duma v Janni, 26 Mich App 445, 452; 182 NW2d 596 (1970), provided it does not relate to sentimental or personal value. People v Tillman, 59 Mich App 768, 771-772; 229 NW2d 922 (1975). Complainant’s testimony in the present case was circumstantial evidence of the automobile’s value, and as such was sufficient to form a jury question. As there was no objection or request for instruction, defendant’s claim that the court erroneously charged the jury regarding the market value of the property was not properly preserved for review. GCR 1963, 516.2, People v Haney, supra.

Affirmed.

Beasley, P.J.

(concurring in part and dissenting in part). I concur in affirming, but differ from the majority in that I would require the trial judge who presided over the trial to impose sentence unless there is good and sufficient reason to substitute another judge.

The majority cite People v McKinley, 5 Mich App 230; 146 NW2d 142 (1966), but that case is distinguishable, the Court saying:

"It appears that Judge Van Domelen had the necessary disability called for by Rule 531 to allow Judge Stephens of the same court to impose sentence upon the defendant.” Id., 235-236.

In the within case, there is nothing in the record to indicate that Judge Brezner who presided over the trial was absent or had any disability from imposing sentence. As a matter of fact, the Court in McKinley went on to say:

"Although cases might be imagined in which it would be unfair to a defendant to allow a second judge to sentence him, such is not the case here.” McKinley, supra, 236.

The majority also cite People v Blair, 11 Mich App 649; 162 NW2d 112 (1968). In Blair, the trial judge disqualified himself because he was convinced before trial that defendant was guilty, and the trial was to be nonjury. In spite of this, and in spite of a lack of any showing of unavailability, defendant was sentenced by the same judge who had disqualified himself. I am aware that this Court chose to affirm under those facts. I believe that this was error and that, under no circumstances, should a trial judge who has chosen to disqualify himself ever impose sentence upon a defendant. I would not be inclined to believe that the Blair per curiam opinion constitutes good precedent. The majority also cite People v Collins, 25 Mich App 609; 181 NW2d 601 (1970), where a new judge heard the probation revocation proceeding and sentenced the defendant to 7-1/2 to 10 years in prison. This Court held that neither statute nor court rule require that the trial judge who placed defendant on probation preside over the revocation hearing. However, we note that in Collins, this Court held that the trial judge placing defendant on probation was a circuit judge sitting in Recorder’s Court, and that this Court concluded that under those circumstances, that circuit judge was "absent” for purposes of GCR 1963, 531.

Lastly, the majority say that defendant failed to object at the time of sentence. Realistically, I would not require a defendant about to be sentenced by a substitute judge to seek to disqualify him. Such a procedure places too great and too unfair a burden upon a defendant. I would not hold that failure to object constituted waiver.

In this case, there was no showing under GCR 1963, 531 that the trial judge was "absent”. However, in addition and, perhaps, more important, we have a trial judge who had seen fit to indicate that he was going to give consideration to some of the factors involved in the trial with respect to the sentence. Under these circumstances, I would believe that it was unfair to defendant for reasons undisclosed to substitute another judge who was a total stranger to the proceedings.

I am aware that this type of question often arises in Detroit Recorder’s Court and in Wayne County Circuit Court, both of which courts have been the subject of so-called "crash” programs off and on during the past decade wherein visiting judges in great numbers are brought in to assist in trying to bring dockets up to date. While I understand the authority for and also the need for bringing in visiting judges and, consequently, moving judges around more than is ordinarily the case, I would not permit the substitution of a judge for purposes of sentence except where compliance with GCR 1963, 531 is shown on the record.

The usual practice is for. the judge who has presided over the criminal trial or who has taken the plea to impose the sentence. The reasons would appear obvious. The judge presiding over the trial has a closer acquaintance and a greater familiarity with the defendant and with the issues.

Certainly there is merit in the proposition that the more the judge knows about the defendant and about the case, the better opportunity he has to fashion a sentence which may reach the objectives of indeterminate sentencing, probation departments and possible future parole. In Michigan, our system strives for sentences that will be tailor-made for the particular defendant and the particular offense for which he is being sentenced.

Sentencing is not, and is not intended to be, automatic. The possibility of probation and the possibility of early parole are but two of various situations where familiarity with the defendant and his case are significant to wise application of criminal sanctions.

I would vote to set aside the sentence and to remand for resentence by the judge who presided over the trial, if he is available.

       The dissent in People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978), is distinguishable where, in view of the testimony presented, the unobjected-to error could not be considered harmless beyond a reasonable doubt.

       We also note that the strength of defendant’s alibi was questionable. Witnesses testified to his presence at a barbecue held at his mother’s house until about 6 p.m. on the day in question, at which time he left the premises. Defendant was observed driving the stolen vehicle shortly before 7 p.m.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v PERRY
    Docket Nos. 78-620, 78-621.
    Submitted May 7, 1979, at Lansing.
    Decided June 20, 1979.
    Leave to appeal applied for.
    Ervin Perry was convicted in two separate trials of the delivery of heroin. Both trials were in Washtenaw Circuit Court, Patrick J. Conlin, J., presiding. Police officers placed a transmitter and tape recorder on the person of a police informant who purchased a small quantity of heroin from defendant. The informant returned at a later date and made a second purchase from defendant. No search warrant had been obtained authorizing the police to tape these, conversations. The tapes were played at defendant’s trials over his objections. Defendant appeals. Held:

    It was reversible error to play the tape recordings into evidence. A search warrant is required where an informant records a conversation with a defendant. The intrusion of privacy incurred is equally present where a participant transmits a conversation to a third party and the defendant is entitled to the same protection from unreasonable searches and seizures.
    Reversed.
    Searches and Seizures — Conversations — Informant Recordings — Third-Party Transmissions — Search Warrants.
    A search warrant is required where an informant records a conversation with a defendant; the intrusion of privacy incurred where a participant transmits a conversation to a third party is equally present as where a participant records the conversation and the defendant is entitled to the same protection from unreasonable searches and seizures (Const 1963, art 1, § ID.
    Reference for Points in Headnote
    68 Am Jur 2d, Searches and Seizures § 31.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey,
      Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

      Charles Drukis, for defendant on appeal.
    Before: D. C. Riley, P.J., and V. J. Brennan and G. W. Crockett, Jr., JJ.

       Former Recorder’s Court judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant was convicted in two separate trials of delivery of a controlled substance, heroin, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He appeals as of right.

On September 29, 1975, Washtenaw County police officers placed a transmitter and tape recorder on the person of police informant William Bruce O’Neal. O’Neal then went to the 100 block of Ann Street in Ann Arbor where he purchased a small quantity of heroin from defendant. He returned on September 30, 1975, and made another purchase from defendant.. These tapes were played at defendant’s trials, over his objections.

In People v Hall, 88 Mich App 324; 276 NW2d 897 (1979), this Court relied on People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), cert den 423 US 878; 96 S Ct 152; 46 L Ed 2d 111 (1975), and People v Livingston, 64 Mich App 247; 236 NW2d 63 (1975), to hold that a search warrant is required where an informant records a conversation with a defendant. The intrusion of privacy incurred where a participant transmits a conversation to a third party is equally present as where a participant records the conversation. Thus, defendant is entitled to the same protection from unreasonable searches and seizures. Const 1963, art 1, § 11.

Since no search warrant was procured in this case, it was reversible error to play the tape recordings into evidence. The defendant’s convictions must be reversed.


author: V. J. Brennan, J. N. J. Kaufman, P.J.

text:
    PEOPLE v TRIPLETT
    Docket No. 77-931.
    Submitted November 16, 1978, at Detroit.
    Decided July 9, 1979.
    Leave to appeal applied for.
    Joseph L. Triplett was convicted, on his plea of guilty, of second-degree murder and was sentenced to prison. His plea was vacated and he was tried by jury and again convicted of second-degree murder. He appealed and the Court of Appeals affirmed but remanded the case for resentencing. 68 Mich App 531 (1976). At the resentencing, in Recorder’s Court of Detroit, Dalton A. Roberson, J., the defendant objected to the use of the original presentence report which had not been updated to include his prison conduct, to the consideration of Youth Bureau contacts listed in the presentence report, and to the consideration of certain prior convictions which allegedly were obtained under circumstances in which the defendant was denied his right to counsel. The defendant was resentenced to a prison term, and appeals. Held:

    1. An updated presentence report which includes the defendant’s prison conduct should be furnished to a court upon resentencing. In this case, however, a remand is not necessary because the sentencing court was apprised of the defendant’s prison conduct and indicated the weight it would give to that information.
    2. The sentencing court properly ruled that it could consider the defendant’s juvenile record.
    3. The defendant failed to present evidence to show that the prior convictions were obtained without benefit of defense counsel.
    Affirmed.
    N. J. Kaufman, P.J., dissented. He would remand the case for resentencing, and would hold that the sentencing court should be provided with an updated presentence report, which the defendant and defense counsel would have an opportunity to review, discuss and speak to.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 585.

       21 Am Jur 2d, Criminal Law § 527.

      Opinion of the Court
    1. Criminal Law — Sentencing — Individualized Sentences.
    It is incumbent upon a sentencing court to fully acquaint itself with the background and character of the case and of the defendant, and the court should make every effort to individualize sentences in order to further the goal of rehabilitation.
    2. Criminal Law — Sentencing — Presentence Report — Prison Record.
    A trial court should refer to an updated presentence report, ■including a record of the defendant’s conduct in prison, when resentencing a defendant who has been reconvicted after obtaining a new trial; the failure to include a defendant’s prison record was not prejudicial, however, where the sentencing court was apprised of the defendant’s prison conduct.
    3. Criminal Law — Sentencing — Juvenile Record.
    A trial court may properly consider a defendant’s juvenile record when sentencing the defendant.
    4. Criminal Law — Sentencing — Prior Convictions — Right to ' Counsel.
    Prior convictions obtained in violation of a defendant’s right to counsel may not be considered at sentencing; however, to remove such a conviction from the court’s consideration, the defendant must present (1) prima facie proof that the previous conviction was constitutionally defective, such as a docket entry or transcript showing the absence of counsel or (2) evidence that he has requested such records and has not received them.
    Dissent by N. J. Kaufman, P.J.
    5. Criminal Law — Sentencing — Presentence Report — Resentencing — Court Rules.

      A defendant who was convicted and sentenced to prison, and upon obtaining a new trial was reconvicted and resentenced, is entitled to have the trial court at resentencing consider an updated presentence report which includes the defendant’s prison conduct, and the resentencing judge should give the defendant and defense counsel the opportunity to review and discuss the report and to speak regarding it (GCR 1963, 785.12).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and V. J. Brennan and Bashara, JJ.
   V. J. Brennan, J.

Defendant was originally charged with first-degree murder, MCL 750.316; MSA 28.548. On December 15, 1971, Recorder’s Court Judge Henry Heading accepted the defendant’s plea to second-degree murder, MCL 750.317; MSA 28.549, and defendant was sentenced to 45 to 60 years in prison.

On May 22, 1972, Judge Heading vacated the plea and granted defendant’s motion for a new trial. Defendant was then convicted of second-degree murder by a Recorder’s Court jury and was sentenced to life imprisonment by the late Judge John R. Murphy. On appeal to this Court defendant’s conviction was affirmed but the case was remanded for resentencing. People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976).

At resentencing before Judge Dalton A. Roberson, defendant objected to the use of the original presentence report which had been prepared in 1972 and had not been updated to include his prison conduct. Defendant also objected to the consideration of 11 Youth Bureau contacts (which were not convictions) listed in the presentence report and to consideration of certain prior convictions asserted to have arisen from a denial of defendant’s constitutional right to counsel. Defendant was resentenced to 40 to 60 years in prison and appeals by right.

Defendant first contends that error requiring resentencing occurred when the lower court relied on a stale presentence report which did not delineate defendant’s prison conduct and progress toward rehabilitation.

The defense counsel’s initial objection concerned the claim that there was no "fresh presentence report”. The lower court responded that the proper procedure on resentencing where the defendant has been incarcerated is to "update” the report. (The update in the present case concerned an explanation of the above-mentioned Court of Appeals disposition.) Defense counsel furnished the lower court with two letters delineating the defendant’s conduct while in prison and stated "[t]he presentence report, does not indicate that anyone at the institution (Jackson) has been contacted as far as Mr. Triplett’s progress or about his record while in an institution”. The lower court responded: "Well, I’ve got these two letters and they indicate something”. Defense counsel then contested the propriety of the presentence report because it gave no additional information on the defendant since 1971 (the date of the original conviction). The lower court replied that normally a presentence report delineates conduct in the "community environment” and reflects upon the possibility of a sentence of probation. The lower court did not consider Jackson Prison as part of the community.

The prosecution relies on People v Allen, 79 Mich App 100; 261 NW2d 225 (1977), which held that a trial court upon resentencing may not properly consider the defendant’s prison behavior subsequent to his initial sentencing because such consideration would amount to a usurpation of the executive power to commute sentences. In Allen the Court intimated that a defendant’s progress made in prison is under the purview of the Department of Corrections and is not a proper consideration for the resentencing court. We decline to follow Allen.

The goal of our penal system is the rehabilitation of the criminal. As a first step toward achieving this objective, the sentencing courts are required to fit the punishment to the needs of the particular case. See People v Earegood, 383 Mich 82; 173 NW2d 205 (1970). It is incumbent upon the sentencing court to fully acquaint itself with the background and character of the case and of the defendant. People v Brown, 393 Mich 174; 224 NW2d 38 (1974), citing with approval People v Amos, 42 Mich App 629; 202 NW2d 486 (1972).

The sentencing court should make every effort to individualize sentences in order to further the goal of rehabilitation. In this regard a defendant’s conduct while in prison may shed considerable light on the prospect of rehabilitation. An updated presentence report which includes prison conduct would describe the defendant’s most recent behavior and would be a valuable tool in resentencing. Such a procedure would not be a burden on the probation department since records are kept at prison which could easily be made available.

Although we decline to follow Allen a review of the record in this case does not warrant a remand for resentencing. The lower court was apprised of the defendant’s prison conduct and he indicated the weight to be given thereto. The failure to include the conduct in the presentence report wqs thus not prejudicial.

Next defendant claims that the presentence report as furnished contained inaccurate information, and in addition thereto the report contained references to juvenile contacts as well as adult convictions obtained when defendant did not have counsel and was not informed of his constitutional rights.

As to defendant’s claim of inaccurate information in the presentence report, we point out that such an objection was not specifically raised below. The defendant merely pointed out that the juvenile contacts listed in the report did not result in conviction, thus precluding their consideration at sentencing. The trial court properly ruled that the defendant’s juvenile record could be taken into account at sentencing. People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973).

We next address defendant’s assertion that the trial court erred in considering constitutionally invalid juvenile dispositions and adult convictions. Convictions obtained in violation of defendant’s right to counsel may not be considered at sentencing. People v Moore, 391 Mich 426; 216 NW2d 770 (1974). To remove such a conviction from the lower court’s consideration, the defendant must present (1) prima facie proof that the previous conviction was constitutionally defective, such as a docket entry showing the absence of counsel or a transcript evidencing the same or (2) evidence that he has requested such records and has not received them. People v Moore, supra, 440-441. The record in the present case is barren of either of the above factual situations. The failure of the defendant to present such evidence below precludes appellate review.

The defendant frames the next issue as follows:

"Where the sentencing judge had indicated long before sentencing and before he had a presentence report or any other background information on defendant that he was going to impose a 45 to 60 year sentence upon defendant and that he was not going to change his mind, it was error for him to deny defendant’s motion to disqualify.”

The statement is factually inapplicable to the case at bar. The record clearly establishes that the lower court based its decision upon a reading of the presentence report, the transcript and the court file.

There was no showing that the sentencing judge based his decision on personal bias or prejudice against the defendant.

Affirmed.

Bashara, J., concurred.

N. J. Kaufman, P.J.

(dissenting). I would remand for resentencing and direct the trial judge to secure an updated presentence report prior to resentencing. The majority accurately state my reasoning when they say:

"The sentencing court should make every effort to individualize sentences in order to further the goal of rehabilitation. In this regard a defendant’s conduct while in prison may shed considerable light on the prospect of rehabilitation. An updated presentence report which includes prison conduct would describe the defendant’s most recent behavior and would be a valuable tool in resentencing. Such a procedure would not be a burden on the probation department since records are kept at prison which could easily be made available.”

Our Supreme court made a similar statement in People v McFarlin, 389 Mich 557, 574; 208 NW2d 504 (1973):

"The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society’s need for protection and its interest in maximizing the offender’s rehabilitative potential. While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state. A judge needs complete information to set a proper individualized sentence.”

I would also direct the resentencing judge to give defense counsel an opportunity to review the updated report and discuss it with defendant. After discussing the report, both defense counsel and the defendant should be given an opportunity for allocution. GCR 1963, 785.12; see also Judge Bashara’s dissent in People v Horace Williams, 77 Mich App 402, 406; 258 NW2d 737 (1977), rem’d 402 Mich 950j (1978).


author: Cynar, P.J.

text:
    WILSON v W A FOOTE MEMORIAL HOSPITAL
    Docket No. 77-1199.
    Submitted March 14, 1979, at Lansing.
    Decided July 9, 1979.
    Leave to appeal applied for.
    Plaintiff, Emily Wilson, by her guardian, Carolyn Wilson, brought a medical malpractice action against Dr. Richard Ries, Dr. Richard Deming and W. A. Foote Memorial Hospital. The complaint alleged separate acts of negligence on the part of each defendant in connection with the breech delivery of the plaintiff, which resulted in her being permanently paralyzed. An amended complaint and a second amended complaint were filed by the plaintiff.
    The plaintiff reached a settlement with each of the two defendant doctors and the two doctors were dismissed from the action. The doctors were brought back into the action pursuant to a third-party complaint, as third-party defendants in the defendant hospital’s claim for contribution. The Jackson Circuit Court, Charles J. Falahee, J., following a jury verdict, entered judgments of no cause of action for the defendant hospital and the respective third-party defendants. The plaintiff appeals raising several issues. Held:

    1. The trial court’s denial of the plaintiffs motion for discovery of internal hospital documents relating to the handling of emergency situations was proper since the plaintiff failed to establish "good cause” for the production of the documents as required by the court rule pertaining to the discovery of documents.
    2. The trial court did not abuse its discretion in allowing the defendant hospital to introduce evidence of the plaintiffs prior settlement with the two third-party defendants.

      References for Points in Headnotes

       61 Am Jur 2d, Physicians and Surgeons § 110.

       23 Am Jur 2d, Depositions and Discovery § 157.

       23 Am Jur 2d, Depositions and Discovery §§ 293, 296.

       5 Am Jur 2d, Appeal and Error § 881.

       15A Am Jur 2d, Compromise and Settlement § 48.

       57 Am Jur 2d, Negligence § 186.

       47 Am Jur 2d, Jury § 260.

       81 Am Jur 2d, Witnesses § 430.

       31 Am Jur 2d, Expert and Opinion Evidence § 31.

      3. The defendant hospital did not admit liability by attaching copies of the plaintiffs complaints to the third-party complaint.
    4. It was not error for the trial court to allow the defendant hospital nine peremptory challenges while allowing the plaintiff only three. The additional six peremptory challenges allowed the hospital were because of the hospital’s third-party action against the two doctors, each of whom were allowed three peremptory challenges. Since the doctors were no longer parties adverse to the plaintiff, she was only entitled to the three peremptory challenges granted to her.
    5. The trial court correctly ruled that for purposes of cross-examination the third-party defendants were not parties adverse to the plaintiff, since, under the terms of the settlement, they could not be held liable to the plaintiff for any further damages.
    6. The trial court’s refusal to declare the two doctors as hostile witnesses was not an abuse of discretion.
    7. Dr. Deming, an orthopedic surgeon, did not need to be further qualified as an expert in obstetrics in order to give an opinion on the emergency nature of the plaintiff’s breech presentation at birth. This question was left to the judge’s discretion. There was no abuse of discretion.
    Affirmed.
    1. Negligence — Medical Malpractice — Standard of Care — Hospitals.
    The internal regulations of a hospital do not establish the applicable standard of care which should be met by a hospital and its staff for purposes of determining liability in a malpractice action.
    2. Discovery — Documents — Evidence — Admissibility — Court Rules.
    The court rule providing for discovery and production of documents and things for inspection, copying or photographing does not require that the objects sought to be discovered be admissible in evidence (GCR 1963, 310).
    3. Discovery — Discovery of Documents — Good Cause — Evidence — Trial Preparation — Court Rules.
    The standard, that "good cause” must be shown, under a court rule providing for discovery and production of documents and things for inspection, copying or photographing is satisfied when the moving party demonstrates that the information sought is or might lead to admissible evidence, is material to the moving party’s trial preparation, or is for some other reason necessary to promote the ends of justice (GCR 1963, 310).
    4. Evidence — Relevancy — Discretion — Appeal and Error.
    A trial judge has broad discretion in ruling upon the relevancy of evidence submitted at trial; a trial judge’s discretion in this regard will not be reversed absent an abuse of discretion.
    5. Evidence — Negligence — Admission — Third-Party Tortfeasor — Settlement.
    A trial court may, in its discretion, allow the admission of evidence of a settlement reached between a plaintiff in a negligence action and a tortfeasor who has been brought into the action as a third-party defendant in order to avoid granting the plaintiff more than a full recovery against another tortfeasor who is the defendant in the action.
    6. Pleadings — Negligence — Complaints — Third-Party Complaints — Admission of Liability.
    A defendant in a negligence action who filed a third-party complaint against other defendants and attached a copy of the plaintiffs complaints to the third-party complaint did not admit liability by attaching the pleadings to the third-party complaint where the pleadings were attached for convenience so as to explain the nature of the allegations originally made by the plaintiff against the third-party defendants, who originally were defendants to the negligence action but who had reached a settlement with the plaintiff, and where the defendant, in the third-party complaint, expressly stated that the allegations in the plaintiffs complaints had already been denied and were not incorporated in the third-party complaint.
    7. Jury — Challenges — Peremptory Challenges — Negligence —■ Third-Party Action — Court Rules.
    It was not improper for a trial judge to allow a plaintiff in a negligence action only three peremptory challenges while awarding the defendant in the action nine peremptory challenges where the defendant had filed a third-party complaint against two other defendants, each of whom were given three peremptory challenges and where, in light of the settlement between the plaintiff and the third-party defendants, the third-party defendants were not adverse to the plaintiff (GCR 1963, 551.5).

      8. Parties — Third-Party Action — Negligence — Adverse Parties — Witnesses — Cross-Examination — Settlement.
    A trial court’s ruling in a negligence action that third-party defendants were not parties adverse to the plaintiff in the action for purposes of cross-examination was proper where under the terms of a settlement reached between the plaintiff and the third-party defendants the third-party defendants could not be held liable to the plaintiff for any further damages.
    9. Witnesses — Hostile Witnesses — Discretion of Trial Judge.
    A decision whether a witness should be declared a hostile witness is left to the sound discretion of the trial judge.
    10. Witnesses — Expert Witnesses — Discretion of Trial Judge.
    The determination of the qualifications on an expert witness is a question left to the discretion of the trial judge.

      Gray & Taylor, P.C., for plaintiff.

      Kitch & Suhrheinrich, PC. (by Gregory Drutchas), for defendant.
    Before: Cynar, P.J., and J. H. Gillis and N. A. Baguley, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Cynar, P.J.

Plaintiff appeals as of right from a verdict of no cause of action in her malpractice action against Foote Hospital.

On August 6, 1973, plaintiff commenced this action by filing a complaint against the hospital, Dr. Richard Ries, and Dr. Richard Deming. The complaint alleged separate acts of negligence on the part of each defendant in connection with plaintiffs birth, which resulted in her being permanently paralyzed. Plaintiff asserted that Dr. Ries, Carolyn Wilson’s obstetrician, had negligently failed to diagnose the possibility of a breech birth and negligently failed to be present at the birth of the child. Plaintiff asserted that Dr. Deming, an orthopedic surgeon, had negligently conducted plaintiffs delivery. Plaintiff further asserted, in rather general terms, that defendant hospital was negligent in its management of hospital functions and in its supervision of hospital personnel.

After subsequently filing an amended complaint, plaintiff filed a motion on November 28, 1975, for the production of certain hospital documents relating to emergency procedures at the hospital. This motion was denied in an opinion dated January 5, 1976, and in an order filed on March 5, 1976. On February 25, 1976, plaintiff filed her second amended complaint, alleging that defendant hospital was negligent in inappropriately issuing an emergency call in conjunction with plaintiffs birth and in failing to establish proper procedures to regulate emergency situations.

On January 14, 1977, Dr. Ries and Dr. Deming filed a motion to dismiss plaintiffs claims against them on the ground that they had settled with plaintiff for a sum of $75,000 each. This settlement was approved on February 3, 1977, as being in the best interest of the minor plaintiff and the two doctors were dismissed as defendants. However, pursuant to a third-party complaint filed by defendant hospital, the doctors were brought back into the case as third-party defendants in defendant’s claim for contribution.

On March 4, 1977, plaintiff filed a motion in limine to bar introduction at trial of any evidence regarding plaintiffs settlements with the two doctors. This motion was denied.

Trial commenced on March 7, 1977. Prior to jury selection, the trial judge was asked by plaintiff to rule on the number of peremptory challenges allowed each party. The trial judge ruled that defendant hospital would receive nine such challenges, while the other parties would each receive three.

Prior to trial plaintiff moved for summary judgment in her behalf on the ground that defendant hospital’s act of attaching plaintiff’s pleadings to its third-party complaint and incorporating them by reference in the complaint acted as a judicial admission of liability. This motion was held in abeyance and eventually denied.

At trial the proofs focused upon whether the hospital had issued an emergency call in response to plaintiff’s unexpected breech presentation, whether such a call was justified under the circumstances, and whether such a call was relied upon by Dr. Deming in delivering plaintiff. A verdict of no cause of action was returned and an order to that effect entered on March 23, 1977.

Plaintiff initially contends that the trial judge erred in denying her motion for the production of documents under GCR 1963, 310. Specifically, plaintiff sought internal hospital documents outlining the definition of an "emergency” and a "code 100” and the duties of the hospital personnel under such circumstances. This motion was denied below on the ground that the rules of a hopsital do not fix the applicable standard of care.

The trial judge properly concluded that the internal regulations of the hospital do not establish the applicable standard of care. See Dixon v Grand Trunk Western R Co, 155 Mich 169, 173; 118 NW 946 (1908). However, discovery under GCR 1963, 310 does not require that the evidence be admissible at trial. Daniels v Allen Industries, Inc, 391 Mich 398, 405; 216 NW2d 762 (1974). Rather, to be entitled to discovery under this rule, one must only show "good cause” for such discovery. Daniels, supra, 405. "Good cause” is established when the moving party establishes that " 'the information sought is or might lead to admissible evidence, is material to the moving party’s trial preparation, or is for some other reason necessary to promote the ends of justice”’. Daniels, supra, 406. (Emphasis in 391 Mich.) Thus, to the extent that the trial judge’s analysis focused upon the admissibility of the evidence sought, it fails to support his conclusion to deny discovery.

However, we conclude nonetheless that the trial court properly denied plaintiffs motion. Plaintiffs motion merely stated, in conclusory terms, that the documents were relevant to her trial preparation. Such a conclusion does not establish the requisite "good cause” for production. Nor was the importance of the documents apparent from the pleadings, as plaintiffs second amended complaint, adding the allegations regarding the issuance of a code-100 call, had not been filed at the time the motion to produce was denied in the January 5, 1976, opinion. Therefore, we conclude that the trial judge did not abuse his discretion in denying plaintiffs motion.

Plaintiff next contends that the trial court committed reversible error in denying her motion to exclude reference to the prior settlement with Drs. Deming and Ries. She contends that the trial court could have adjusted the damages awarded so as to reflect the prior settlement, without putting the fact of the settlement before the jury. She further argues that the prejudicial impact of the evidence outweighed any probative value it may have had.

As a general rule the trial judge has broad discretion in ruling upon the relevancy of evidence submitted at trial. Orquist v Montgomery Ward, 37 Mich App 36, 41; 194 NW2d 392 (1971). A trial judge’s decision in this regard will not be reversed absent an abuse of discretion. Kulhanjian v The Detroit Edison Co, 73 Mich App 347, 351; 251 NW2d 580 (1977).

We recognize that admitting evidence of settlements such as this can potentially lead to an unjust result. A variety of misleading inferences may be drawn from such evidence. Furthermore, the possibility of a compromise jury verdict is increased thereby. Such problems could be alleviated by foreclosing jury consideration of prior settlements.

However, we note that prior decisions of this Court support the trial judge’s ruling on this issue. In Cooper v Christensen, 29 Mich App 181; 185 NW2d 97 (1970), evidence of a settlement with one tortfeasor was admitted over objection in an action against the second tortfeasor. This Court concluded that it was proper for the trial judge to instruct the jury that they should reduce the amount of damages by the amount of the settlement. In approving this instruction, the Court sub silentio approved the admission of the evidence as well. See also Reno v Heineman, 56 Mich App 509, 512; 224 NW2d 687 (1974), where evidence of a settlement with one party was ruled admissible "to establish the defendants’ right to have any amounts found to be due mitigated by the amount of the prior settlement”. In these cases the evidence was admitted for jury consideration, so as to avoid granting plaintiff more than a full recovery.

In light of the prior case law, we conclude that the trial court did not abuse its discretion in admitting this evidence. Although plaintiff’s proposed approach is a permissible alternative, the trial court was not compelled to follow it.

Plaintiff next contends that the trial judge erred in ruling that defendant hospital did not admit liability by attaching copies of plaintiff’s complaints to its third-party complaint.

This contention is totally without merit. Although defendant hospital attached plaintiff’s entire complaint to its third-party complaint, the third-party complaint expressly states that "the allegations of plaintiff against the present defendant and third-party plaintiff, being specifically denied before and now, are not considered or in any manner incorporated herein”. Thus, it is clear that defendant hospital was in no way admitting liability by attaching plaintiff’s pleadings to its complaint. Rather, this was done for convenience, so as to explain the nature of various allegations originally made by plaintiff against Drs. Deming and Ries, which constituted the basis for defendant’s third-party action.

Plaintiff next contends that the trial judge erred in granting defendant nine peremptory challenges, while granting her only three. She further contends that the trial court abused its discretion in refusing to permit plaintiff to call Drs. Deming and Ries as adverse parties under MCL 600.2161; MSA 27A.2161 and by refusing to declare them hostile witnesses.

We find no error in the trial judge’s ruling on the number of peremptory challenges granted each party. GCR 1963, 511.5 states in pertinent part:

"Each party in a civil case may peremptorily challenge 3 jurors. In civil cases 2 or more parties on the same side are considered a single party for purposes of peremptory challenge. However, where multiple parties having adverse interests are aligned on the same side, 3 peremptory challenges shall be allowed to each party represented by a different attorney and, in such cases, the opposite side may, in the discretion of the trial judge, be allowed a total number of peremptory challenges not exceeding the total number of peremptory challenges allowed to said multiple parties.”

In allocating the peremptory challenges in this case the trial judge approached the action as if it were two cases. In the first action, he granted both plaintiff and defendant hospital three peremptory challenges each. In the third-party action he determined that each of the third-party defendants was entitled to three peremptory challenges and accordingly, pursuant to the discretion granted in GCR 1963, 511.5, granted defendant hospital an additional six peremptory challenges. In light of plaintiffs prior settlement with the third-party defendants, we concur in the trial judge’s ruling that these parties were not adverse to plaintiff. Thus, plaintiff was entitled to only the three peremptory challenges granted to her.

We further conclude that the trial judge properly ruled that for purposes of cross-examination Drs. Deming and Ries were not adverse parties to plaintiff. Under the terms of the settlement these parties could not be held liable to the plaintiff for any further damages. A finding that they had committed malpractice could only have served to reduce the amount of defendant’s liability. Thus, these parties are properly regarded as adverse to defendant, not plaintiff. Although MCL 600.2161; MSA 27A.2161 provides for the cross-examination of employees or agents of an adverse party, plaintiff is unable to avail herself of this right, as she introduced no evidence to support the existence of an agency or employer-employee relationship between the two doctors and defendant hospital. See Thompson v Essex Wire Co, 27 Mich App 516, 528-530; 183 NW2d 818 (1970).

Nor do we conclude that the trial judge committed reversible error in failing to declare the two doctors as "hostile witnesses”. Such a decision is left to the sound discretion of the trial judge. Cohen v McGregor, 13 Mich App 519, 522; 164 NW2d 682 (1968). In the present case the witnesses exhibited no unwillingness, evasiveness or hostility in testimony. Although their testimony at trial was somewhat different in emphasis as compared to their deposition testimony, these statements cannot reasonably be regarded as inconsistent. Under these circumstances, the trial court did not abuse its discretion in refusing to declare them hostile witnesses, Thompson v Essex Wire Co, supra, 534.

Plaintiffs final contention is that the trial court erred in permitting Dr. Deming to state his opinion as to whether defendant hospital breached its standard of care in issuing an emergency call after plaintiffs breech presentation.

We find no error. Although the questions being challenged were phrased in terms of the hospital’s standard of care, the questions related to whether Dr. Deming considered the breech presentation an emergency. He had previously testified that plaintiff’s foot was blue, that such coloration was indicative of loss of blood circulation, and that such a situation constituted an emergency. Thus, his response that the hospital did not breach its standard of care merely confirmed his prior evaluation of the situation.

We disagree with plaintiffs contention that Dr. Deming needed to be further qualified as an expert in obstetrics in order to give an opinion on the emergency nature of this breech presentation. The determination of the qualifications of an expert is a question left to the discretion of the trial judge* Coles v Galloway, 7 Mich App 93, 102; 151 NW2d 229 (1967). The situation involved herein is not one totally limited to the field of obstetrics. Loss of cirbulation in a limb can occur in a multitude of contexts in various fields of medicine. Dr. Deming’s testimony exhibited familiarity with such situations and the proper measures to be taken in response thereto. In light of this background we conclude that the trial judge did not abuse his discretion in permitting Dr. Deming to answer defendant’s questions regarding the gravity of the breech presentation involved herein. See Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976).

Affirmed. Costs to defendant.

       Plaintiff notes that defense counsel made several references to the settlement at trial, including one implying that defendant could have taken the easy way out by settling, but instead refused. Although we agree that this use of the evidence was improper, as unsupported by any evidence at trial, we further note that no objection was voiced in response thereto. Since any prejudice resulting from this comment could have been alleviated by a curative instruction, had plaintiff objected, this remark does not require reversal. Treece v The Greyhound Bus Co, 63 Mich App 63, 65; 234 NW2d 404 (1975).

        Stitt v Mahaney, 403 Mich 711; 272 NW2d 526 (1978), cited by plaintiff for a contrary result, is not on point. There plaintiff was suing one of two independent successive tortfeasors for only those damages caused by the defendant’s conduct. The majority concluded that evidence of a settlement with the other tortfeasor was admissible, as a question of fact existed as to whether the settlement was intended to be a full release of both tortfeasors. Although Stitt involved a situation of two successive, divisible injuries, as opposed to the single injury involved herein, we do not interpret Stitt as mandating exclusion of the settlement evidence here. Even the dissent in Stitt recognized that evidence of a settlement with one tortfeasor is admissible, where the defendant-tortfeasor contended that the settlement partially or totally compensated plaintiff for injuries allegedly caused by defendant. Stitt, supra, 733-734 (Williams, J., dissenting).

       We note that defendant hospital exercised only one of its peremptory challenges while the third-party defendants exercised a total of two more. Thus, if there was an error in granting the third-party defendants three peremptory challenges each, plaintiff was in no way prejudiced thereby.

         Dr. Ries testified at this deposition that if a breech baby’s protruding foot had a deep blue color that was of no concern. At trial he testified that all breech babies have discoloration of the feet, but added that the possibility of fetal distress would depend upon the intensity of the color. Dr. Deming’s testimony consistently indicated that he was relying both upon the hospital’s emergency call and his own observations in concluding that he was faced with an emergency situation when delivering plaintiff.

       The questions challenged were as follows:
      "Q [by Mr. Kitch, Attorney for Defendant]. Considering the life-threatening situation that * * * strike that.
      "Considering the life-threatening situation that you determined to exist when you entered the delivery room in the evening of October 7th, 1964, would it have been a violation of that standard of care for hospital personnel to have called Code 100?
      "Q. Mr. Gray’s final question to you yesterday was, if you * * * strike that * * * his final question to you yesterday was, 'In your opinion, would it have been a deviation from the standard of care for hospital personnel to provide inaccurate information about a patient to a doctor?’
      "My question to you, doctor, is did you consider that the hospital personnel had provided you with inaccurate information regarding a patient, particularly Carolyn Wilson, by summoning you to the delivery room by using a Code 100?”

       We also note that Dr. Deming had studied obstetrics in medical school, had delivered a baby, and had assisted in other deliveries.


author: J. E. Townsend, J.

text:
    PEOPLE v CLEMENTS PEOPLE v TONY DUPREE PEOPLE v MARLOWE DUPREE PEOPLE v JOHNSTON
    Docket Nos. 77-2312, 77-2313, 77-3164, 77-3175.
    Submitted November 7, 1978, at Detroit.
    Decided July 9, 1979.
    Leave to appeal denied, 407 Mich —.
    James L. Clements, Tony Dupree, Marlowe Dupree and Janice Johnston were convicted of armed robbery, Recorder’s Court of Detroit, Michael J. Connor, J. Each defendant appealsi The appeals of the four defendants were consolidated for appellate review. The issue considered on appeal is whether the trial court erred in permitting cross-examination of defendant James L. Clements as to a prison sentence for a previous crime. Held:

    The cross-examination of defendant Clements regarding the prison sentence which had already been partially served was relevant to test that defendant’s credibility. The cross-examination was to test defendant Clements’ credibility regarding a "confession” whereby he admitted committing the lesser offense of larceny from a person and attempted to exonerate the other three defendants. The fact that defendant Clements still had time to serve on the earlier sentence was relevant and probative evidence relating to his possible motivation, interest, bias or prejudice in testifying as he did.
    Affirmed.
    ' 1. Witnesses — Evidence — Cross-Examination — Statement Against Penal Interest — Credibility.
    Cross-examination of a witness to test the reliability of a statement by the witness made against his penal interest is permitted.
    2. Criminal Law — Evidence — Prior Sentences — Relevance.
    Testimony as to a defendant’s prior sentences generally is not relevant to the issue of the defendant’s credibility.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 617, 620.

       81 Am Jur 2d, Witnesses § 580.

      3. Criminal Law — Evidence — Relevance — Prior Sentences — Credibility — Confessions — Motivation — Prejudice.
    A trial judge properly determined that evidence of a defendant’s prior sentence was relevant to the issue of the defendant’s credibility where, since the defendant still had time to serve on the sentence, a motivation was provided for the defendant to be willing to "take the rap” for a crime by confessing to a lesser included offense to the charged crime and thereby exonerating his codefendants, and where the trial judge determined that the probative value of such evidence outweighed any possible prejudice to the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Brian Marzec, Anne B. Wetherholt and H. Gail McKnight, Assistant Prosecuting Attorneys, for the people.

      Gillis, Nelson, Louisell & Berg, for defendants James Clements, Marlow Dupree and Janice Johnston.

      Robert E. Slameka, for defendant Tony Dupree.
    Before: Allen, P.J., and R. M. Maher and J. E. Townsend, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   J. E. Townsend, J.

Defendants, James Clements, Tony Dupree, Marlowe Dupree and Janice Johnston, were found guilty by a jury on April 26, 1977, of armed robbery, MCL 750.529; MSA 28.797. They were sentenced to prison terms on May 5, 1977. Clements received a term of 35 to 60 years; T. Dupree, 7-1/2 to 20 years; M. Dupree, 6 to 20 years; and Johnston, 6 to 25 years. Defendants appeal by right.

The appeals of all the defendants have been consolidated here for review. Of the various issues argued, only one is of any merit.

Defendants claim that the trial court erred in permitting cross examination as to defendant Clements’ prison sentence for a previous crime, which sentence had been partially served at the time of trial.

Defendants cite People v Rappuhn, 390 Mich 266, 272-273; 212 NW2d 205 (1973), and People v Nelson White, 26 Mich App 35, 39-40; 181 NW2d 803 (1970), in support of their claim of error.

In the Rappuhn decision, Justice Williams, speaking for the Michigan Supreme Court stated the Court’s agreement with Judge O’Hara’s analysis and reasoning and included the following quotation from the Nelson White decision:

"It is the prior conduct undertaken by the accused, and not the ensuing punishment, which is relevant.” Nelson White, supra, 39.

Justice Williams went on to say:

"The length of sentence, the conditions under which served and so on, as Judge O’Hara observes, are not defendant’s conduct but an uncertain sequel. It is defendant’s conduct that is relevant and by which his credibility may be tested.” Rappuhn, supra, 273.

Both courts decided that the sentence imposed in those cases had no relevance to the issue of credibility.

In this case, defendant Clements testified, admitting that he took a wallet from the pocket of complainant Cross, but denied having a gun and also exonerated his co-defendants from the charges. Complainant Cross identified Clements as the person who pointed the gun at him.

Defendant Clements’ testimony was in the nature of an admission against penal interest. Such admissions are often accorded reliance on the basis that one does not voluntarily admit a crime and face punishment for it, unless the admission is true.

Cross examination to test the reliability of such admission is proper. MCL 600.2159; MSA 27A.2159 would permit proof as to "interest or conviction” for the purpose of affecting credibility.

The fact that defendant at time of trial, on April 26, 1977, was in the process of serving a 5 to 15 year prison sentence imposed in 1974, and had time yet to serve in prison is relevant and probative evidence relating to defendant’s possible motivation, interest, bias or prejudice in testifying as he did.

Defendant admitted that he committed the lesser crime of larceny from a person, denied that he had a gun, and absolved his co-defendants from involvement in a crime.

The trial judge, in ruling on the admissiblity of evidence concerning defendant’s sentence, determined that the sentence status of defendant gave him a "motive for not being truthful”. Judge Connor compared the unserved prison sentence inquiry to exposing any deals or promises made by the prosecution with an accomplice as an aid to testing the credibility of an accomplice witness.

Immediately after cross examination as to defendant’s sentence, the trial judge gave a limiting, cautionary instruction as to such evidence, stating as follows:

"Likewise, you have heard some testimony relating to a sentence the defendant is presently serving. That has been allowed only so that you may take it into consideration when weighing how much weight and credibility again you will attach to his testimony, whether or not there is a bias or hindrance or motive that actuate the witness in testifying in the manner in which he has, just as you may consider anything which has a tendence [sic] to your minds to fairly prove or disprove testimony of the witnesses.”

In his closing argument, the prosecuting attorney argued that defendant Clements had little to lose by admitting a larceny and by "taking the rap” for his friends.

He argued the motive and bias of defendant Clements as follows:

"Furthermore, he is trying to help his friends. The reason I asked him about his jail term is to indicate why he would be the one who would be willing to take the rap. That’s the only relevance of the fact that he might be serving time in prison right now. He’s already on the hook. He’s already in jail, so he’s the one willing to take the rap, minimally as it is. So he is willing to admit at least to a larceny from the person, but he is willing to help his friends. 'They had nothing to do with it. I decided it on the spur of the moment. I was walking down the street, trying to see some sex action, perhaps, and then I saw Janice Johnston leaving and I decided to get the wallet.’ ”

The cross examination in this case relating to defendant’s unserved sentence is not admissible as a "conviction”. Rather, it should be tested by the standards of MRE 401, 402 and 403.

By such standards we must ask whether it is relevant as to the issue of the truth of falsity of defendant’s admission of a crime, and if it is relevant, whether its probative value is outweighed by the danger of "unfair prejudice” to defendant.

We read the Rappuhn and Nelson White decisions as concluding that testimony as to prior sentences generally is not relevant on the issue of credibility.

The trial judge clearly weighed possible prejudice against probative value in permitting the inquiry in this case. He determined in effect that the probative value outweighed any possible prejudice, and in his discretion admitted such evidence. We believe such procedure was correct under MRE 401, 402 and 403 and People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and Gordon v United States, 127 US App DC 343, 348; 383 F2d 936 (1967). The sentence time yet to be served has just as direct an impact on witness motivation and credibility as does a promise of leniency to an accomplice.

We agree that in this case defendant’s present and future sentence status was relevant in deciding the truth or falsity of his admission of a crime. In our adversary system, which relies so much on pointed cross examination to arrive at the truth, we should not prevent reasonable efforts to prove all facts which assist a jury in deciding what is true and what is false. The remaining issues argued by defendants are without merit.

Affirmed.


author: T. M. Burns, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v SENTRY INSURANCE
    Docket No. 77-3151.
    Submitted January 4, 1979, at Detroit.
    Decided July 9, 1979.
    Leave to appeal denied, 407 Mich —.
    Geneva Yopp was injured in an automobile accident. The car which she was driving had been furnished by her employers Mr. and Mrs. Robert Owens. The registered title holder was Bob Owens Sales, Inc., where Mr. Owens was general manager. The car had been used for some time as a second family car by Mrs. Owens personally and not as part of the business operations. Sentry Insurance Company had issued a no-fault policy covering the vehicle in the name of Bob Owens Sales, Inc. State Farm Mutual Automobile Insurance Company had issued a policy covering a car, not involved in the accident, owned by Mrs. Yopp. State Farm paid no-fault benefits to Mrs. Yopp. Sentry denied coverage. State Farm brought an action against Sentry to recover the amounts paid. Plaintiff, State Farm, alleged that at the time of the accident Mrs. Yopp was an occupant of a motor vehicle owned or registered by her employer and that she was entitled to benefits from the insurer of the furnished vehicle. Sentry moved for summary judgment claiming that Mrs. Yopp was personally employed by Mr. and Mrs. Owens and that the car was owned and registered by Bob Owens Sales, Inc., a separate entity. Wayne Circuit Court, John D. O’Hair, J., accepted Sentry’s argument that it need not provide coverage because the car was not owned or registered by Mrs. Yopp’s employer and granted summary judgment. Plaintiff appeals. Held:

    An owner of a motor vehicle, as defined in the Michigan Vehicle Code, is any person renting a motor vehicle or having exclusive use thereof, under a lease or otherwise, for a period greater than 30 days. This provision may be read into the no-fault act to determine priorities between insurance companies. Therefore, if State Farm can show that Mrs. Yopp’s employers, Mr. and Mrs. Owens, had exclusive use of the auto in which Mrs. Yopp was injured for a period greater than 30 days, the employer-furnished vehicle exception to the no-fault act could apply and State Farm would be entitled to recover from Sentry Insurance the money paid to Mrs. Yopp under her policy with State Farm.

      References for Points in Headnotes

       73 Am Jur 2d, Statute § 189.

       7 Am Jur 2d, Automobile Insurance §§ 1, 6.

       Am Jur New Topic Service, No-Fault Insurance § 1.

       Am Jur New Topic Service, No-Fault Insurance § 14.

       Am Jur New Topic Service, No-Fault Insurance § 8.

       Am Jur New Topic Service, No-Fault Insurance § 4.

      Reversed and remanded.
    1. Statutes — Construction — In Pari Materia.
    Statutes may be construed as in pari materia if they relate to the same person or thing, or the same class of persons or things, or if the statutes have a common purpose.
    2. Automobiles — No-Fault Insurance — Michigan Vehicle Code — Definition of Owner — Priorities Between Companies — Statutes.
    The Michigan Vehicle Code definition of owner; "any person * * * renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period of greater than 30 days”, may be read into the no-fault act to determine priorities between insurance companies (MCL 257.37; MSA 9.1837).
    3. Insurance — Automobiles — No-Fault Insurance — Purpose of the Act — Statutes.
    The basic requirement of the automobile no-fault insurance act is that all vehicles be covered by a policy providing no-fault benefits when a vehicle is operated within this state (MCL 500.3101; MSA 24.13101).
    4. Insurance —• Automobiles No-Fault Insurance — Recovery for Injuries — Statutes.
    Generally, where an individual is injured in an accident involving a motor vehicle, he will recover under his own insurance policy, whether his vehicle was involved in the accident or not (MOL 500.3114(1]; MSA 24.13114(1]).
    5. Insurance —- Automobiles — No-Fault Insurance — Ownership Exceptions —. Commercial Vehicles —- Statutes.
    The statutory scheme of creating exceptions to the "owner” provisions of the no-fault act in commercial situations shows a legislative intent tp place the burden of providing no-faulf benefits on the insurers pf commercial vehicles, rather than on the insurers of an injured individual (MCL 500.3114[1], [2], [3]; MSA 24.13114[1], [2], [3]).
    6. Insurance — Automobiles — No-Fault Insurance *— Owners or Registrants — Required Security — Statutes.
    •Each "owner or registrant” is not required to have a separate policy covering his vehicle to avoid being guilty of a misdemeanor; the required security is satisfied where there is a policy which, in fact, covers the vehicle (MCL 500.3102[2]; MSA 24.13102[2]).
    7. Insurance — Automobiles — No-Fault Insurance — Required Security — Statutes.
    A vehicle is, in fact, insured and is not uninsured within the meaning of the no-fault act where there is a policy in effect which covers it (MCL 500.3101, 500.3177; MSA 24.13101, 24.13177).

      Eggenberger, Eggenberger, McKinney & Weber, for plaintiff.

      Moore, Sills, Poling, Wooster, Sinn & Taylor, P.C. (by James M. Prahler), for defendant.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   T. M. Burns, J.

This case concerns the interpretation of the phrase "motor vehicle owned or registered by the employer” as used in § 3114(3) of the no-fault automobile insurance chapter. MCL 500,3114(3); MSA 24,13114(3). The parties are insurance companies and cannot agree on which of them should provide first-party benefits on the facts of this case.

On January 8, 1974, Mrs. Geneva Yopp was injured in an automobile accident. The car she was driving had been furnished by Mr. or Mrs, Robert Owens. Mrs. Yopp was working in the Owens home as a nurse at the time of the accident and was using the Owens car. The registered. title holder of the car was Bob Owens Sales, Inc. Mr. Owens was the general manager of this concern. The car involved in the accident had been used for some time as a second family car by Mrs. Owens personally, and not as part of the business operation. Sentry Insurance had issued a no-fault policy covering this vehicle in the name of Bob Owens Sales, Inc.

State Farm had issued a policy covering a car owned by Mrs. Yopp. That car was not involved in the accident. State Farm paid no-fault benefits to Mrs. Yopp under that policy, MCL 500.3114(1); MSA 24.13114(1), when Sentry denied coverage. State Farm then sued Sentry to recover the amount paid. State Farm alleged that at the time of the accident, Mrs. Yopp was an "occupant of a motor vehicle owned or registered by the employer” and that she was entitled to benefits "from the insurer of the furnished vehicle” under § 3114(3). That subsection provides:

"An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.”

Sentry moved for summary judgment claiming that Mrs. Yopp was employed by Mr. and Mrs. Owens personally and that the car was owned and registered by Bob Owens Sales, Inc., a separate entity. The trial court accepted Sentry’s argument that it need not provide coverage because the car was not owned or registered by Mrs. Yopp’s employer and granted the summary judgment. State Farm appeals and we reverse.

Although the phrases "owned or registered” and "owner or registrant” are used throughout the no-fault chapter, they are not defined in the Insurance Code. State Farm argues that the definition of owner found in the Michigan Vehicle Code should be used. As relevant here, that statute provides:

" 'Owner’ means: (a) Any person * * * renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period of greater than 30 days.” MCL 257.37; MSA 9.1837.

State Farm argues that the definitiohal statute, which is part of the Michigan Vehicle Code, should be construed in pari materia with the relevant section of the no-fault act which is part of the Insurance Code. It alleges that Mrs. Owens was an owner of the car under this definition and therefore Sentry should have provided no-fault benefits to Mrs. Yopp under the policy covering that car.

Statutes may be construed as in pari materia if they relate to the same person or thing, or the same class of persons or things, or if the statutes have a common purpose. Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558; 132 NW2d 660 (1965), app dis and cert den, 382 US 107; 86 S Ct 256; 15 L Ed 2d 191 (1965). In this case the statutes relate to the same thing, who is the owner of a particular motor vehicle.

We agree that the definition of owner in the Michigan Vehicle Code may be read into the no-fault chapter to determine priorities between insurance companies. If State Farm can show that Mrs. Yopp’s employers, Mr. or Mrs. Owens, had exclusive use of the auto in which she was injured for a period greater than 30 days it will be entitled to recoup the money it paid Mrs. Yopp under her own policy from the insurer of that vehicle. Section 3114 of the no-fault chapter expressly provides for this priority.

This interpretation follows the scheme of the no-fault chapter. The basic requirement of the act is that all vehicles be covered by a policy providing no-fault benefits when the vehicle is operated within this state. MCL 500.3101; MSA 24.13101. When an individual is injured in an accident involving a motor vehicle he will generally recover under his own policy, whether his vehicle was involved in the accident or not. MCL 500.3114(1); MSA 24.13114(1). The exceptions to the general rule are set out in subsections (2) and (3) of § 3114. The employer-furnished vehicle exception could apply to this case if the facts are as alleged by State Farm.

The exceptions in § 3114(2) and (3) relate to "commercial” situations. It was apparently the intent of the Legislature to place the burden of providing no-fault benefits on the insurers of these motor vehicles, rather than on the insurers of the injured individual. This scheme allows for predictability; coverage in the "commercial” setting will not depend on whether the injured individual is covered under another policy. A company issuing insurance covering a motor vehicle to be used in a (2) or (3) situation will know in advance the scope of the risk it is insuring. The benefits will be speedily paid without requiring a suit to determine which of the two companies will pay what is admittedly due by one of them. Giving "owner” the expansive interpretation accorded it in the Michigan Vehicle Code fulfills the purposes just discussed by eliminating disputes based on technical questions of title.

We cannot find Sentry’s arguments against this interpretation persuasive. It contends that if we give "owner” an expansive reading in this context we will increase the number of individuals subject to criminal liability under § 3102(2) and the class of uninsured motorists under § 3177.

MCL 500.3102(2); MSA 24.13102(2), insofar as it is relevant to this argument provides:

"An owner or registrant of a motor vehicle with respect to which security is required who operates the motor vehicle or permits it to be operated upon a public highway in this state without having in full force and effect security complying with this section or sections 3101 or 3103 is guilty of a misdemeanor.”

This subsection does not mean that each "owner” or "registrant” must have a separate policy covering the vehicle, but only that there must be a policy covering the vehicle. In this case that policy was obtained by the registered title holder, Bob Owens Sales, Inc. Neither Mr. nor Mrs. Owens is criminally liable under this section because the vehicle was, in fact, covered by the required security.

The same analysis applies to the argument based on §3177. MCL 500.3177; MSA 24.13177 provides in relevant part:

"An uninsured motor vehicle for the purpose of this section is a motor vehicle with respect to which security as required by sections 3101 and 3102 is not in effect at the time of the accident.”

There was a policy in effect at the time of this accident and therefore, the motor vehicle was not uninsured within the meaning of the act. Even though the policy was not obtained by Mrs. Yopp’s employers, it still covered this accident because that is what is required by § 3101.

The circuit court erred in construing the term owner as relating only to technical concepts of title. The summary judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. No costs, construction of a statute being involved.

       This subsection was amended by 1977 PA 53 but the amendment does not effect the issue in this case.

       MCL 257.1 et seq.; MSA 9.1801 et seq.

       MCL 500.100 et seq.; MSA 24.1100 et seq.

       The same scheme of priorities and exceptions is employed in the Uniform Motor Vehicle Accident Reparations Act, although the language is much clearer. See, UMVARA § 4 and commissioner’s comments, 13 ULA (Master ed), pp 368-371.