author: P. J. Marutiak, J. M. J. Kelly, J.

text:
    PEOPLE v POMEROY PEOPLE v FULCHER
    Docket Nos. 77-681, 77-702.
    Submitted June 14, 1978, at Lansing.
    Decided February 5, 1979.
    Leave to appeal applied for.
    James M. Pomeroy was convicted in district court of operating a motor vehicle while his ability to do so was impaired due to the consumption of intoxicating liquor, in violation of the Michigan Vehicle Code. His conviction was upheld on appeal to the Tuscola Circuit Court, Martin E. Clements, J.
    Jessie B. Fulcher was convicted in district court of operating a motor vehicle while his ability to do so was visibly impaired, in violation of the Uniform Traffic Code for Cities, Townships, and Villages. His conviction was also upheld on appeal to the Tuscola Circuit Court, Norman A. Baguley, J.
    Both defendants appealed by leave granted and the appeals were consolidated for hearing and decision. The principal issue in each appeal is whether actual physical motion of a motor vehicle is required for conviction under the laws they were found guilty of violating. Held:

    An intoxicated person who exercises actual bodily restraining or directing influence over the machinery of an automobile which would put it in motion is in actual physical control of the automobile and may be prosecuted under the drunk driving provisions of the Vehicle Code and the Uniform Traffic Code. The term "operate” is not limited to situations where a motor vehicle is being propelled.
    Affirmed,
    M. J. Kelly, J., would construe the term "operate” more narrowly, from the substantive provisions of the impaired driving offense rather than from a statutory definition of "driver” as does the majority. Under Judge Kelly’s definition, defendant Pomeroy, who the evidence indicates was merely "sleeping it ofF’ in a friend’s automobile with no intention of actually driving the vehicle, did not engage in conduct proscribed by the statute and his conviction should be vacated. The circumstances under which defendant Fulcher was found by p.olice, however, were sufficient to justify an inference that he had violated the law, even under the more narrow construction suggested by Judge Kelly.

      References for Points in Headnotes

       7 Am Jur 2d, Automobiles and Highway Traffic § 256.
    What constitutes driving, being in control of, or operating a motor vehicle within statute making such act, while intoxicated, an offense. 47 ALR2d 570.

       73 Am Jur 2d, Statutes §§ 293, 294.

       7 Am Jur 2d, Automobiles and Highway Traffic § 330.

      Opinion of the Court
    1. Automobiles — Statutes — Vehicle Code — Drivers — Operators.
    The language of the Michigan Vehicle Code definitions of "driver” and "operator” indicates that the Legislature did not wish to distinguish between those terms in all cases; a person who exercises actual physical control over a motor vehicle can be found to be driving or operating that vehicle (MCL 257.13, 257.36; MSA 9.1813, 9.1836).
    2- Automobiles — Criminal Law — Intoxicants — Drunk or Impaired Drivers — Automobile in Motion.
    An intoxicated or impaired person is in "actual physical control” of an automobile and may be prosecuted under the drunk or impaired driving provisions of the Vehicle Code even though the vehicle is not in motion where the person exercises actual bodily restraining or directing influence over the machinery of an automobile which would put it in motion.
    Dissent in Part, Concurrence in Part by M. J. Kelly, J.
    3. Automobiles — Criminal Law — Drunk or Impaired Drivers — Vehicle Code — Narrow Construction.

      The drunk or impaired driving provisions of the Michigan Vehicle Code, as criminal legislation, should be narrowly construed, because a person should not be punished for doing an act unless it clearly appears that his conduct comes within both the spirit and the letter of the law prohibiting that conduct.

    4. Automobiles — Criminal Law — Impaired Drivers — Evidence.

      A person who was found by police asleep in an automobile which was legally parked, with the engine running and the lights out, should not be convicted of operating a motor vehicle while visibly impaired where all of the evidence presented is consistent with the defendant’s allegations that he entered the auto

      mobile only to sleep and turned the engine on only to operate the heater, and where every inference derived from the defendant’s testimony suggests that he had no intention of driving the automobile.

    5. Automobiles — Criminal Law — Impaired Drivers — Evidence.

      Cumulative circumstantial evidence was sufficient to permit the inference that a defendant had driven his automobile while impaired where he was found asleep at the wheel with the car partially in a ditch, with its engine running, with the presence of a strong odor of intoxicants, and no evidence presented of the presence of any other person who could have driven the car to the place where it was found.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick R. Joslyn, Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), in Pomeroy, and David N. Andreychuk, City Attorney, City of Vassar, in Fulcher.

      Henry L. Greenwood, for defendants.
    Before: D. E. Holbrook, P.J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   P. J. Marutiak, J.

On May 8, 1975, defendant Pomeroy was tried before a jury and convicted of unlawfully operating a motor vehicle while his ability to do so was impaired due to the consumption of intoxicating liquor. MCL 257.625b; MSA 9.2325(2). He was fined $100 and placed on probation. On December 9, 1976, his conviction was affirmed on appeal to the Tuscola County Circuit Court.

Defendant Fulcher appeals his conviction under § 5.15b of the Uniform Traffic Code for Cities, Townships, and Villages of operating a motor vehicle while his ability to do so was visibly impaired. Defendant Fulcher was convicted in a district court bench trial and was sentenced to 2 years probation, given a $100 fine and ordered to pay $100 court costs. He was also sentenced to 30 days in jail, to be served at the beginning of his probation, and ordered to serve an additional 30 days at the end of his probation, with the proviso that the final 30 days would be suspended if the terms of his probation were satisfactorily performed. Upon appeal to the Tuscola County Circuit Court, his conviction was affirmed.

Defendant Pomeroy’s conviction arose out of the following facts. On January 27, 1975, deputies of the Tuscola County Sheriffs Department came upon Pomeroy asleep and slumped over the steering wheel of an automobile that was legally parked in front of a bar in the Village of Union-ville. His head was resting against the vehicle’s horn, which was blowing.

The vehicle’s engine was running and its heater was on but its standard transmission was in neutral. No interior or external lights were on.

One of the officers attempted to awaken Pomeroy by tapping on the window of the automobile. Unable to arouse Pomeroy, the officer opened the door of the automobile and turned off its engine. He then removed a beer can from between the legs of Pomeroy.

Pomeroy awoke at this point, pressed the vehicle’s clutch to the floor, moved the gearshift lever from neutral through the gears and back to neutral, and reached for the key to restart the vehicle’s motor. The deputy stopped him from doing the latter. The officers who arrested Pomeroy testified at his trial that at no time did they see him actually move the motor vehicle.

Defendant Pomeroy testified in his own behalf at trial. He stated that on the evening of the incident he had gone with a friend to the bar where he had too much to drink and fell asleep at one of the tables. He asked his friend for the keys to the latter’s automobile and stated that he would go sleep in it. Because it was cold and he had only a light coat he started the car and turned on its heater before falling asleep. He was awakened by the deputies who found him.

Defendant Fulcher was found asleep in his car by an officer of the City of Vassar Police Department on the morning of November 15, 1975, at approximately 5 a.m. Defendant Fulcher’s automobile was motionless, however, it was in gear and its engine was idling. The rear portion of the car was in a ditch but its front end was on a public roadway. After turning off the engine and taking the vehicle out of gear, the officer noticed a strong odor of intoxicants. He then awakened Fulcher and placed him under arrest for driving under the influence of intoxicating liquor. The officer admitted at trial that he did not see Fulcher actually drive the car.

Both defendants in these cases, which have been consolidated on appeal, ask the Court to consider whether actual physical motion of a motor vehicle is required for conviction under the laws they were found guilty of violating.

Both the statute, under which defendant Pomeroy was convicted, and the ordinance, under which defendant Fulcher was convicted, make it unlawful for a person to "operate” a motor vehicle when the ability to do so is visibly impaired due to the consumption of intoxicating liquor. We hold that the term "operate” as it is used in these laws does not require physical motion of a motor vehicle.

Michigan appellate courts have not been called upon previously to decide what constitutes driving or operating of a motor vehicle for purposes of the drunk driving provisions of the Michigan Vehicle Code. The Vehicle Code does not define the terms "operate” or "operating”, however, it does define "operator” as "every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway”. Similarly, the code does not define the terms "drive” or "driving”, but it does define "driver” as "every person who drives or is in actual physical control of a vehicle”.

The parallel language in the definitions of these terms, which states that one need only be in actual physical control of a motor vehicle to be a driver or an operator, indicates that the Legislature did not wish to distinguish between these terms in all situations. Consistent with the similar construction of the terms "driver” and "operator”, a person who exercises actual physical control over the mechanisms of a motor vehicle can be found to be driving or operating that vehicle.

In fact, Michigan appellate courts often use the terms "drive” and "operate” interchangeably when disposing of appeals brought upon conviction under MCL 257.625; MSA 9.2325, which proscribes the driving of a motor vehicle while under the influence of intoxicating liquor, and under MCL 257.625(b); MSA 9.2325(2), the statute involved in this case, which prohibits the operation of a motor vehicle while the ability to do so is impaired due to the consumption of intoxicating liquor. See People v Reeder, 370 Mich 378; 121 NW2d 840 (1963), People v Tracy, 18 Mich App 529; 171 NW2d 562 (1969), People v Thornton, 9 Mich App 536; 157 NW2d 490 (1968), People v Collett, 8 Mich App 419; 154 NW2d 531 (1967). More telling on this point is the decision of our Supreme Court in People v Lambert, 395 Mich 296; 235 NW2d 338 (1975), which characterized the offense covered by the latter statute as "impaired driving” and which approved of the following jury instruction distinguishing between the offenses covered by these statutes on the basis of the amount of alcohol consumed only:

" 'The distinction between the crime of driving under the influence of intoxicating liquor and the lesser included offense of driving while ability is visibly impaired is the degree of intoxication which the people must prove.
"’To prove driving under the influence of intoxicating liquor, the people must prove that defendant’s ability to drive was substantially and materially affected by consumption of intoxicating liquor.
" 'To prove driving while ability is visibly impaired, the people must prove that defendant’s ability to drive was so weakened or reduced by consumption of intoxicating liquor that defendant drove with less ability than would an ordinary, careful and prudent driver. Such weakening or reduction of ability to drive must be visible to an ordinary, observant person.’” 395 Mich at 305.

Thus, we conclude that the terms "drive” and "operate” comprehend the same type of actions for purposes of these two statutes. The question remains, however, whether motion of a motor vehicle is required for conviction under these two statutes.

Although the word "operating” has not been defined for purposes of the drunk driving provisions of the Vehicle Code, it has been given attention in other contexts. In Flynn v Kramer, 271 Mich 500; 261 NW 77 (1935), it was held that under a statute providing for service of process in civil actions upon nonresident operators of motor vehicles in this state, the term "operate” signified a personal action in working the mechanism of an automobile. In Orlowski v Jackson State Prison, 36 Mich App 113, 116; 193 NW2d 206 (1971), it was held that negligent operation of a motor vehicle, as that concept is used in the governmental immunity statute, "may occur even though the vehicle is standing still as long as it is being used or employed in some specific function or to produce some desired work or effect”. In Flager v Associated Trunk Lines, Inc, 52 Mich App 280; 216 NW2d 922 (1974) Iv den 392 Mich 810 (1974), the Court held that where two persons agree to exercise some measure of physical control over the operation of a motorscooter, that both become an "operator” as that term is defined in the Vehicle Code. MCL 257.36; MSA 9.1836.

Thus, when called upon in other contexts to determine the scope of the term "operate”, Michigan appellate courts have not limited that term to situations where a motor vehicle was being propelled. In recognition of the important public policy underlying the legislative prohibition against driving while under the influence or while impaired by intoxicants, we find that a similar construction of the term "operate” is required here. Therefore, where an intoxicated person exercises actual bodily restraining or directing influence over the machinery of an automobile which would put it in motion, that person is in "actual physical control” of that vehicle and may be prosecuted under the drunk driving provisions of the Vehicle Code.

Affirmed.

D. E. Holbrook, P.J., concurred.

M. J. Kelly, J.

(dissenting in part, concurring in part). I respectfully dissent.

The issue presented in the Pomeroy case arose from the lower court’s jury instruction. After the close of proofs, the court instructed that "a person operates a motor vehicle when he is in actual physical control of a motor vehicle”. The jury, after deliberation, returned a verdict of guilty as to Count I, a charge of operating a motor vehicle at a time while visibly impaired due to the consumption of intoxicating liquor, and guilty as to Count II, possessing alcoholic liquor in an open container in the passenger compartment of a motor vehicle. I would affirm defendant Pomeroy’s conviction on Count II, for there was uncontroverted testimony that two open cans of beer were seized from the car. I write to express my disagreement with the majority’s definition of the statutory term "operate”, as that term is used in MCL 257.625b; MSA 9.2325(2) and in § 5.15b of the UTC for municipalities. The majority defines "operate” as being "actual physical control” of a motor vehicle. I disagree because the breadth of this definition serves to extend MCL 257.625b; MSA 9.2325(2) to conduct which is outside the scope and purpose of the statute.

The general purpose of driving under the influence statutes, such as the one before us, is to protect the general public from drunk and/or drugged drivers. People v Tracy, 18 Mich App 529, 532; 171 NW2d 562 (1969). The majority’s definition of "operating” is derived from the statutory definition of "driver” as "every person who drives or is in actual physical control of a vehicle” contained in MCL 257.13; MSA 9.1813. My objection is that "actual physical control” is derived from a definitional provision rather than the substantive provision outlining the offense of impaired driving. As criminal legislation, the Michigan Vehicle Code should be narrowly construed, for a person cannot be punished for doing an act unless it clearly appears that his conduct comes within both the spirit and the letter of the law prohibiting it. As stated in People v Samuel Lee, 66 Mich App 5, 10; 238 NW2d 397 (1975):

" 'It is a well-settled rule of law that no one can be punished for doing an act unless it clearly appears the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it.
"Defendant ought not to be convicted unless he is clearly and unequivocally within the language of a statute which by its terms covers his case.”’

I do not think that defendant Pomeroy’s action in "sleeping it off’ in his friend’s car is conduct which is "clearly and unequivocally” proscribed by the spirit and letter of the drunk driving statutes. There is no evidence that the defendant ever drove or intended to drive the car; rather, he was found asleep, slumped over the steering wheel with his head against the rim. At trial, the defendant testified that he had been drinking that day at a local tavern and that, when he started to fall asleep, he asked a friend to give him the keys to his (the friend’s) car so that he could sleep in the car. The defendant further testified that he turned the car on in order to operate the heater. There was evidence that the weather was cold that night and that defendant was wearing only a light coat and no gloves. At the time, the car was legally parked and neither exterior nor interior lights were on. Defendant did not move the car.

Every inference derived from this testimony suggests that defendant had no intention to drive the car. Similarly, the people’s evidence, that defendant pressed the clutch, moved the gearshift to neutral and reached for the key to start the car after the arresting officer had turned the car off, is as consistent with turning on the heater as it is with driving the car. Under the "actual physical control” definition adopted by the majority, defendant’s conduct in simply turning on the car’s ignition in order to operate its heater constituted operation of a motor vehicle, and thus, subjected him to the penalties of drunk driving statutes. This conduct, in my opinion, was not intended to be proscribed by the drunk driving statutes. I would reverse.

As to the companion case, Fulcher, I concur in the majority’s result although for a different reason. The majority affirms Fulcher’s conviction for driving while visibly impaired on the basis of its definition of the statutory term "operate”. I would affirm his conviction, not for the reason that his conduct constituted "actual physical control”, but because I believe that the circumstantial evidence presented below was sufficient to permit the trial court, sitting as trier of fact, to reasonably infer that defendant had driven while visibly impaired, even though the arresting officer had not observed defendant driving the car.

Defendant Fulcher, like defendant Pomeroy, was also found asleep in a car, slumped over the steering wheel with his feet on the floor board. The arresting officer’s testimony indicates that the car’s engine was running and the car was idling in gear. The arresting officer testified as to the presence of a strong odor of intoxicants. However, unlike Pomeroy who was legally parked, the rear portion of Fulcher’s car was in a ditch and his front wheels were on the public roadway. In addition, furrows in the snow indicated the point where the car had left the paved portion of the road. No evidence was presented indicating the possible presence of any other person who might have driven the defendant’s car to that point on the highway. Although there was no eyewitness testimony that it was defendant Fulcher who had driven his car into the ditch, I would hold that the cumulative impact of this circumstantial evidence was sufficient, even under a definition of "operate” narrower than that adopted by the majority, to permit the inference that defendant had violated MCL 257.625b; MSA 9.2325(2).

In passing, I note that the proposition that circumstantial evidence is sufficient to sustain a conviction for driving while visibly impaired has recently been embodied and sanctioned in statute. An amendment to MCL 257.625; MSA 9.2325 allows a police officer to arrest a defendant for that offense on the basis of reasonable cause which could, I believe, be supplied by circumstantial evidence. That amendment states:

"A peace officer may, without a warrant, arrest a person when the peace office [sic] has reasonable cause to believe that the person was, at the time of an accident, the driver of a motor vehicle involved in the accident and was driving the vehicle upon a public highway of this state while under the influence of intoxicating liquor.” 1978 PA 391.

For the reasons outlined above, I would affirm defendant Fulcher’s conviction while vacating that of defendant Pomeroy.

       "A person shall not operate a vehicle upon a highway or any other place open to the general public, including an area designated for the parking of motor vehicles, within this state when, due to consumption of intoxicating liquor * * * the person has visibly impaired his ability to operate the vehicle.”

       See MCL 257.951 et seq.; MSA 9.2651 et seq. Section 5.15b of the Uniform Traffic Code for Cities, Townships, and Villages states:
      "A person shall not operate a vehicle on a highway, or street, or any other place open to the general public, including an area designated for the parking of motor vehicles, when, due to the consumption of intoxicating liquor * * * he has visibly impaired his ability to operate the vehicle.” 1976 AACS R 28.1415b.

       MCL 257.36; MSA 9.1836. In 1978 PA 139, the Legislature redefined the term "operator” in the following manner:
      " 'Operator’ or 'operating’ means a person who drives or is in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or a chauffeur.”
      MCL 257.35a; MSA 9.1835(1). In doing so, the Legislature did not repeal its former definition of "operator”. The Uniform Traffic Code, under which defendant Fulcher was prosecuted, defines neither the term "operate” nor "operator”. See 1976 AACS R 28.1001 et seq.

       MCL 257.13; MSA 9.1813. The Uniform Traffic Code provides a similar definition of this term. 1976 AACS R 1.010.

       See MCL 257.403; MSA 9.2103 for the present version of this statute.

       MCL 691.1405; MSA 3.996(105).

       See also Wells v Dep’t of Corrections, 79 Mich App 166; 261 NW2d 245 (1977), McNess v Scholley, 46 Mich App 702; 208 NW2d 643 (1973).

       This public policy was expressed in People v Tracy, 18 Mich App 529, 532; 171 NW2d 562 (1969), where the Court stated:
      "Since we may reason that it is the intention of the legislature to protect the general public from operators of motor vehicles who are under the influence of alcohol, it is logical to apply the statute to drinking drivers who are attempting to drive their vehicles in areas open to the general public which are not normally used by sober drivers for normal travel.”

        Tracy involved a drunk driving prosecution of a person who was attempting to extricate his motor vehicle from a snowbank on a lawn in front of a dormitory on the campus of Wayne State University. The question involved in that case was whether the campus site was a "place open to the general public”, as that phrase is used in MCL 257.625; MSA 9.2325. Although the scope of the term "operate” was not before the Court in Tracy, we note that the Court remanded that case for trial even though the defendant there was not actually moving his automobile.

       This result finds support in cases from other jurisdictions. See Jacobson v State, 551 P2d 935 (Alaska, 1976), State v Webb, 78 Ariz 8; 274 P2d 338 (1954), State v Parker, 81 Idaho 51; 336 P2d 318 (1959), Prudhomme v Hults, 27 App Div 2d 234; 278 NYS2d 67 (1967), Commonwealth v Kloch, 230 Pa Super 563; 327 A2d 375 (1974), Commonwealth v Kriner, 234 Pa Super 230; 338 A2d 683 (1975), Hester v State, 196 Tenn 680; 270 SW2d 321; 47 ALR2d 568 (1954), and Williams v Petersburg, 216 Va 297; 217 SE2d 893 (1975).


source: Caselaw Access Project

author: Bronson, J. Danhof, C.J.

license: Public Domain

text:
    PEOPLE v HALL
    Docket No. 77-834.
    Submitted August 31, 1978, at Lansing.
    Decided February 5, 1979.
    Leave to appeal denied, 406 Mich 941.
    Bobby W. Hall was convicted of delivery of heroin in Washtenaw Circuit Court, William F. Ager, Jr., J. The trial court had admitted into evidence, over defendant’s objection, a tape recording of a conversation between defendant and a police informant. No search warrant had been obtained authorizing the police to tape the conversation. Defendant appeals, alleging that the trial court erred in admitting the tape recording into evidence on the ground that the recording of the conversation was an unreasonable search and seizure. The people contend that no search warrant was required to record defendant’s conversation. Held:

    The police must first obtain a search warrant authorizing the recording of a conversation before they can tape a conversation between an individual and a police informant.
    Reversed.
    Danhof, C.J., dissented and would hold that preservation of information by simultaneously recording it on tape does not violate the constitutional prohibition against unreasonable searches and seizures where the police obtain the information from a tape recording of a defendant engaged in a conversation with a police informant without first having obtained a search warrant.
    References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 24, 36.
    74 Am Jur 2d, Telecommunications § 209, 216, 217.

       68 Am Jur 2d, Searches and Seizures §§ 2, 4, 24, 31.
    74 Am Jur 2d, Telecommunications §§ 209, 216, 217.

       68 Am Jur 2d, Searches and Seizures § 35 et seq.

       74 Telecommunications § 217.

       62 Am Jur 2d, Privacy §§ 1, 4, 6.
    68 Am Jur 2d, Searches and Seizures §§ 2, 4.
    Right of privacy. 14 ALR2d 750.

       68 Am Jur 2d, Searches and Seizures § 31.
    74 Am Jur 2d, Telecommunications § 217.

      Opinion of the Court
    1. Searches and Seizures — Conversations — Participant Monitoring — Third-Party Transmissions — Participant Recordings — Search Warrants.
    Participant monitoring through the use of an electronic device by a participant in a conversation which transmits the exchange to a third party, and the recording of a conversation by a participant in the conversation on tape instead of transmitting it are both searches and seizures which must comply with search warrant requirements.
    2. Searches and Seizures — Conversations — Participant Monitoring — Third-Party Transmissions — Participant Recordings — Right of Privacy — Intrusions on Privacy.
    The simultaneous disclosure of a conversation to third parties in participant monitoring and the recording of a conversation by a participant informer are equally intrusive of personal privacy; the fact that a recording of a conversation could be stored permanently and then produced long after the participants or their monitors forgot about the conversation makes participant recording just as intrusive of privacy as participant monitoring with its simultaneous transmission of a conversation and subject to the same restrictions on its use.
    3. Searches and Seizures — Constitutional Law — Conversations ’ — Participant Recordings — Right of Privacy — Search Warrants.
    Government officials may not record the conversations of citizens with whom they or their informants come into contact at their unbridled discretion; such action impermissibly invades an individual’s right to privacy and constitutes a violation of the state constitution’s prohibition against unreasonable searches and seizures; therefore, before the police may. lawfully tape a conversation between an individual and a police informant, they must first obtain a search warrant authorizing the recording of the conversation.
    4. Searches and Seizures — Conversations — Right of Privacy — Government Officials — Magistrates — Probable Cause — Search Warrants.
    The privacy of citizens should be protected from fishing expeditions and the whims of misguided or overzealous government officials by requiring the submission of reliable information to a neutral magistrate for a determination where there is probable cause to believe criminal activity is under way before attempting to record conversations.
    Dissent by Danhof, C.J.
    5. Constitutional Law — Searches and Seizures — Conversations — Participant Recording — Participant Monitoring — Amendments.

      Search warrants are not required for participant recording or participant monitoring of conversations as a matter of Federal constitutional law (US Const, Ams IV, XIV).

    6. Constitutional Law — Searches and Seizures — Conversations — Participant Monitoring — Electronic Device Transmissions — Search Warrants.

      Participant monitoring of a conversation through the use of an electronic device to transmit the exchange of words to a third party requires a search warrant to satisfy the constitutional provision governing searches and seizures in Michigan (Const 1963, art 1, §11).

    7. Searches and Seizures — Conversations — Right of Privacy — Participant Monitoring — Participant Recordings — Definitions.

      Participant recording is distinguishable from participant monitoring; participant monitoring involves simultaneous transmissions to third parties wherein the participant in a conversation has no control other than to turn off the monitor, everything and anything is automatically and simultaneously disclosed to the uninvited third ear and this is the feature of participant monitoring which makes it particularly offensive; participant recording, on the other hand, does not involve these same concerns, there is no simultaneous disclosure to third parties, the recording merely preserves the conversation in a more reliable form and any disclosures made will be because the participant decided to make them after hearing the conversation.

    8. Privacy, Right of — People and Places — Residence.

      The right of privacy protects people, not places; however, the right of privacy takes on special signiñcance when one is in his own home where a person’s justiñable expectations of privacy is the greatest.

      9. Searches and Seizures — Constitutional Law — Conversations — Tape Recordings.

      Preservation of information in a conversation between an informant and a suspect by simultaneously recording it on a tape does not violate the constitutional prohibition against unreasonable searches and seizures where the informant received the information by engaging the suspect in a conversation without violating any of his constitutional rights.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.

      Fred K. Persons, for defendant on appeal.
    Before: Danhof, C.J., and Bronson and M. F. Cavanagh, JJ.
   Bronson, J.

Defendant was convicted by a jury of delivery of heroin contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). He now appeals as of right. Although defendant raises numerous issues, our disposition of one of them makes consideration of the remaining questions unnecessary.

At trial, the court admitted, over defendant’s objection, a tape recording of a conversation between defendant and a police informant. No search warrant had been obtained authorizing the police to tape the conversation.

In 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), the Michigan Supreme Court ruled that participant monitoring by police is a search and seizure which must comply with the warrant requirement. In People v Livingston, 64 Mich App 247; 236 NW2d 63 (1975), this Court extended the search warrant requirement to instances where the informer/participant recorded the conversation instead of transmitting it.

The dissent disagrees with this latest extension and seeks to differentiate participant monitoring from participant recording by declaring that the former is more intrusive of privacy because the disclosure of the conversation is simultaneous with the conversation itself. It is true that there is no simultaneous disclosure in participant recording; however, there is a countervailing consideration which makes participant monitoring equally intrusive, and that is the fact that with participant recording a permanent record of the conversation is made. See Greenawalt, The Consent Problem in Wiretapping and Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in a Conversation, 68 Col L Rev 189, 225, fn 180 (1968). One does not need to go back too far in the history of this country to find instances where an innocent or innocuous statement when made, takes on grave and sinister overtones 10 or 20 years later when the social climate has changed. The fact that a recording of a conversation could be permanently stored and then produced long after the participants or their monitors forgot about the conversation makes participant recording just as intrusive of privacy as participant monitoring, and subject to the same restrictions on its use.

The rationale for requiring a search warrant in these situations was stated most eloquently by Justice Harlan in United States v White, 401 US 745, 787-789; 91 S Ct 1122; 28 L Ed 2d 453 (1971). Although these statements were directed at participant monitoring, we conclude that their logic applies equally as well to the analogous problem of participant recording.

"The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. * * *
"Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse —that liberates daily life. Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.”

How different life in this state would be if everyone had to expect that their every conversation, their every careless phrase or ill-advised statement could be captured and preserved for all time. Such a life-style is not what is expected nor desired by the members in a free society. A rule which would allow government officials to record, at their unbridled discretion, the conversations of all citizens with whom they or their informants come into contact would impermissibly invade the individual’s right to privacy and constitute a violation of the Michigan Constitution’s prohibition against unreasonable searches and seizures.

Therefore, before the police may lawfully tape a conversation between an individual and a police informant, they must first obtain a search warrant authorizing the recording of the conversation.

The dissent seems to intimate that by requiring a search warrant we will be totally precluding the use of participant recording thus depriving the police of a valuable investigative tool. This assessment is not accurate. Under the rule announced here, the use of participant recording will not be precluded but merely limited to situations where the potential benefits to society in fighting crime outweigh the potential detriments to society from stifling free expression. The dissent would allow recording on the mere whim of any government official. It appears to sanction fishing expeditions based on no more than the hope that criminal activity can be found. This is unacceptable. Our constitution protects our citizens from the excesses caused by misguided or overzealous government officials. The inconvenience caused by requiring government officials to submit reliable information to a neutral magistrate for a determination that there is probable cause to believe criminal activity is under way will be more than made up by the increased sense of security and freedom such a rule will provide for citizens of this state. As our Supreme Court stated in Beavers:

"By interposing the search warrant requirement prior to engaging in participant monitoring, the risk that one’s conversation is being intercepted is rightfully limited to circumstances involving a party whose conduct has provided probable cause to an independent magistrate to suspect such party’s involvement in illegal activity. The warrant requirement is not a burdensome formality designed to protect those who would engage in illegal activity, but, rather, a procedure which guarantees a measure of privacy and personal security to all citizens. The interests of both society and the individual should not rest upon the exercise of the unerring judgment and self-restraint of law enforcement officials. Our laws must ensure that the ordinary, law-abiding citizen may continue to engage in private discourse, free to speak with the uninhibited spontaneity that is characteristic of our democratic society.” Beavers, at 566.

Since the police in this case did not obtain a search warrant authorizing the recording of the conversation, the recording was the result of an illegal search and seizure and the trial court erred in admitting it into evidence. The defendant’s conviction must be reversed.

Reversed.

M. F. Cavanagh, J., concurred.

Danhof, C.J.

(dissenting). On November 24, 1976, after a jury trial, defendant was convicted of delivery of a controlled substance, heroin, in contravention of MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Defendant was sentenced to a term of one year in prison and appeals as of right. This case arose out of an incident occurring on July 31, 1975, in which defendant allegedly sold heroin to a police informer at a pool hall. The transaction was recorded by a tape recorder which was hidden on the informer’s person. At trial, the informer testified that defendant delivered heroin to him. The tape recording of the transaction was also introduced into evidence.

On appeal, defendant claims that the trial court erred in admitting this tape recording into evidence. He contends that the participant’s recording of the conversation was an unreasonable search and seizure prohibited by Const 1963, art 1, § 11, since there was no search warrant authorizing the recording or any exigent circumstances, see People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). The prosecutor argues that no search warrant is required for a participant’s recording of a conversation, see United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971), People v Drielick, 400 Mich 559; 255 NW2d 619 (1977).

As a matter of Federal constitutional law, US Const, Ams IV, XIV, no search warrant is required for participant recording, Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963), or participant monitoring, United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971). In Beavers, supra, the Michigan Supreme Court interpreted the Michigan constitutional provision governing searches and seizures, Const 1963, art 1, § 11, to apply the search warrant requirement to participant monitoring. Participant monitoring was defined to mean the use of an electronic device by a participant to transmit the exchange to a third party. The opinion did not address the constitutionality of participant recordings, Beavers, supra, at 562, fn 2. The issue to be resolved in this case is whether to extend the constitutional rule announced in Beavers to participant recordings. In Beavers, supra, the Court held that the Michigan constitution provided additional protections not offered by the Federal constitution. The Court was

"persuaded by the logic of Justice Harlan which recognizes a significant distinction between assuming the risk that communications directed to one party may subsequently be repeated to others and the simultaneous monitoring of a conversation by the uninvited ear of a third party functioning in cooperation with one of the participants yet unknown to the other.” Beavers, supra at 565.

Applying this reasoning to the facts in this case, I conclude that participant recording is distinguishable from participant monitoring. Participant monitoring involves simultaneous transmissions of the conversation to third parties. The participant has no control, other than to turn off the monitor, over whether any disclosures should be made or over what should be disclosed. Everything and anything is automatically, simultaneously disclosed to the uninvited third ear. This is the feature of participant monitoring which makes it particularly offensive. Even if the participant can disengage the monitor, this does not give him effective control over the extent of simultaneous disclosures. Most participants will not know what is going to be said until it is said. However, because participant monitoring involves simultaneous transmissions, any decision to disengage a monitor to limit disclosures must be made before the statement, which the participant does not want disclosed, is made. Since the participant will not know what is going to be said before the other person says it, he does not have effective control over the disclosures.

Participant recording does not involve these same concerns. There is no simultaneous disclosure to third parties. Participant recording merely preserves the conversation in a more reliable form. If any disclosures are made, they will be because the participant decided, after hearing the conversation, to make them. The participant is in a position, after hearing the conversation, to decide if any disclosures are made and the extent of any disclosures. For these reasons, participant recording is more analogous to the concept of misplaced confidence than participant monitoring.

The misplaced confidence doctrine applied in Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966), means that no matter how strongly one trusts an apparent colleague, his expectations in this respect are not constitutionally protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the government. It is undisputed that the undercover officer who was a participant to these conversations due to defendant’s confidence in him could later disclose this transaction to the police or at trial. Neither the agent’s method of securing this information nor his later disclosures of it violated the constitutional prohibition against unreasonable searches and seizures, Hoffa, supra. The only difference between Hoffa, supra, and the instant case is that evidence of this conversation was preserved by employing a tape recorder. Therefore, defendant must be claiming that this investigative procedure constituted an unreasonable search and seizure solely because this evidence, legitimately received, was preserved by means of a tape recorder. However, this same argument was rejected in Lopez, supra. Writing for the majority in Lopez, supra, Justice Harlan stated:

"Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” Lopez, supra at 439.

In terms of risk analysis, participant monitoring subjects people to greater risks than participant recording and the concept of misplaced confidence. Both participant monitoring and participant recording are variants of assuming the risk of misplaced confidence, but the risks of participant monitoring are greater. Allowing participant monitoring subjects one to the risk that his confidence may be betrayed even before the conversation occurs. It subjects him to the risk that the participant may have decided, a priori, to simultaneously disclose the conversation to third parties without effective means to control the extent of disclosure. For this reason, participant monitoring is distinguishable from the concept of misplaced confidence.

Participant recording does not subject one to these risks of simultaneous disclosure without effective means to control the extent of disclosure. The only difference between participant recording and the traditional concept of misplaced confidence is that evidence of the conversation is preserved. For this reason, the risks involved in participant recording are more analogous to the risks of misplaced confidence than the risks involved in participant monitoring. Although allowing participant recording, as contrasted with the traditional concept of misplaced confidence, exposes the speaker to the additional risk that his conversation may be accurately reproduced, this risk is not so substantial as to warrant constitutional significance.

This analysis which leads to the conclusion that participant recording is distinguishable from participant monitoring is consistent with Justice Harlan’s analysis. He also distinguishes participant recording from participant monitoring. He authored the majority opinion in Lopez, supra, which upheld participant recording. He dissented in White, supra, which approved of participant monitoring. In distinguishing these two cases, Justice Harlan noted that in Lopez, supra, the tape was only used to corroborate the agent’s testimony and that participant recording did not subject the speaker to any risks he had not fairly assumed, see White, supra, at 776. Justice Harlan also noted that there was no uninvited third ear in participant recording, White, supra, at 784.

Another factor which distinguishes this case from Beavers, supra, is that the monitoring in Beavers, supra was of a conversation which took place in the defendant’s home. This fact was emphasized twice in Beavers, supra, at 563, 565-6. Although the right to privacy protects people, not places, see Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), the right to privacy takes on special significance when one is in his own home. This is where a person’s justifiable expectation of privacy is the greatest. This significanee is recognized in our state constitution. The conversation in the instant case occurred in a pool hall open to the public. Defendant’s justifiable expectation of privacy was not as great in this situation as compared to conversations which are conducted in the privacy of one’s own home.

Recognizing that the participant recording in this case is distinguishable from the participant monitoring in Beavers, supra, in a number of respects, the issue remains as to whether this investigative technique violated the constitutional prohibition against unreasonable searches and seizures because there was no search warrant authorizing this recording. In Justice Harlan’s words:

"The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.
"This question must, in my view, be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual’s sense of security balanced against the utility of the conduct as a technique of law enforcement.” White, supra, at 786.

The fact that participant recording has great utility as a technique of law enforcement is well recognized, see, Beavers, supra, at 566, 571. The recording of conversations which the police participate in can assist the police in many ways. This is especially true in investigations into the trafficking of narcotics, see Beavers, supra, at 571. The recording and preservation of constitutionally acquired information not only helps the government prepare for trial but it can also ensure that ongoing investigations are not hindered by inaccurate perceptions or faulty memories. The recordings cannot only corroborate an officer’s testimony when a defendant denies the truth of that testimony but they can also be useful in rebutting charges of recent fabrication, entrapment or improper influence. The recordings might also protect officers from unjustifiable claims of harassment, brutality, taking bribes or other improper conduct.

The recognized utility of this investigative technique must be balanced against its impact on the security and privacy of the individuals in our society. I realize that allowing participant recording without a warrant subjects not only criminals and people contemplating criminal activities but all citizens to the possibility that a participant might be recording their conversation without imposing the protections offered by the search warrant requirement. However, it must be emphasized that the issue in this case involves only a participant’s recording of a conversation directed towards him. In regard to its impact on society, participant recording is distinguishable from the concept of misplaced confidence only by the fact that the conversation being disclosed is preserved on tape. Although the majority proceeds on the assumption that the preservation of conversations will chill spontaneous discussions, see, White, supra, at 762-763, and Lopez, supra, at 449, I conclude that any possible chilling of free expression is not unjustifiable. Since the officer received this information by engaging defendant in a conversation without violating any of his constitutional rights, I would hold that the officer’s preservation of this information by simultaneously recording it on a tape recorder did not violate the constitutional prohibition against unreasonable searches and seizures, US Const, Ams IV, XVI; Const 1963, art 1, § 11. Accordingly, I respectfully dissent.

The other issues raised by defendant do not warrant reversal or discussion. Defendant’s conviction should be affirmed.

       Participant monitoring refers "to the use of an electronic device by a participant of a conversation which transmits the exchange to a third party”. Beavers, supra, at 562, fn 2.

       We are aware that eight years prior to White Justice Harlan upheld warrantless participant recording in Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963). Justice Harlan himself acknowledged, however; that due to his opinion in White, the continued validity of Lopez might be open to question. White at 788, fn 24. We also note that there is a significant distinction between the participant recording in Lopez and the one that happened in the present case. In Lopez the recording was done by a person who the defendant knew was a government agent. Although we do not now need to decide whether this distinction would cause us to reach a different result, it must be recognized that there is a considerable difference in a person’s expectations concerning whether the contents of his conversation will go beyond the participants in instances where an individual knows he is talking to a government agent, and in situations where he thinks he is talking to a private citizen. Justice Harlan also recognized this distinction, and stated that it "may provide a focus for future distinctions [from Lopez]”. White at 788, fn 24. Therefore, given his strong stand in White and his recognition of the unique relationship of the parties in Lopez, Justice Harlan’s position in Lopez cannot be used as unequivocal support for all warrantless participant recordings.

       The dissent seemingly believes that our opinion will prohibit police from recording calls that come into the police station or to emergency numbers. Again, however, one must look to the expectations of the nonrecording party. A person who initiates a call to a police department in order to obtain help or information expects that his call will be transcribed or otherwise recorded by the person called and then transmitted to whomever is necessary so that assistance may be forthcoming. An individual who engages in a private conversation with another does not expect that his conversation will be recorded and then broadcast to others. Therefore, nothing in this opinion will preclude police from recording phone calls to police stations and emergency numbers.

       Since it is the recording, not the participant’s testimony which is inadmissible, the participant may still testify concerning the contents of the conversation. See Beavers, supra, at 567.

       When the phrase "participant recording” appears, I am specifically referring to the use of an electronic device by a participant of a conversation which records the conversation. Although I recognize that the technological advances in electronic surveillance equipment raise many complex issues, this opinion addresses only the specific issues raised by the facts in this case.

       In Justice Harlan’s words, "it is one thing to subject the average citizen to the risk that participants in a conversation with him will subsequently divulge its contents to another, but quite a different matter to foist upon him the risk that unknown third parties may be simultaneously listening in.” United States v White, 401 US 745, 777; 91 S Ct 1122; 28 L Ed 2d 453 (1971).

       Although Justice Brennan perceived the tape recorder as the equivalent of the uninvited ear of a third party, see, Lopez v United States, 373 US 427, 448; 83 S Ct 1381; 10 L Ed 2d 462 (1963), there are significant differences between recording a conversation and simultaneously transmitting it to a third party.

       In People v White, supra, 788, fn 24, Justice Harlan acknowledged that this reasoning might be open to question. He stated that the focus of the risk analysis should not be on whether the information is accurately reproduced but rather on the impact of the particular investigatory practice on the individual’s sense of security which is the major concern of the Fourth Amendment’s protection. I agree with Justice Harlan’s analysis of the issues and risks involved. To focus on the risk of accurate reproduction would validate even the warrantless monitoring condemned in Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), because the conversation seized in that case was accurately reproduced. The search and seizure clause is not directly concerned with whether the information is accurately reproduced at trial but rather it is concerned with the procedures employed in acquiring the information.

       "Distinctions do, however, exist between Lopez where a known Government agent uses a recording device, and in this case which involves third-party overhearing. However unlikely that the participant recorder will not play his tapes, the fact of the matter is that in a third-party situation the intrusion is instantaneous.” White, supra at 788, fn 24.

       Although not directly applicable to the facts in this case, Const 1963, art 1, § 11, recognizes the importance of privacy in one’s own home. It states, "[t]he provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.”

       One of the primary uses of participant recording by the police involves the recording of phone calls to the police. Numerous phone calls are made to the police each day reporting crimes and emergencies, relaying tips concerning ongoing investigations and other useful information. Many of these calls are made by people who are excited or under stress and, accordingly, speak quickly but not clearly. Some of these calls are recorded to guard against the possibility that vital information might be lost simply because the person answering the phone cannot transcribe the information as fast as the speaker talks. To require a warrant before the police could record this information would unjustifiably hamper a legitimate police practice.


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

text:
    PEOPLE v HARBIN (IN THE MATTER OF INTERNATIONAL FIDELITY INSURANCE COMPANY)
    Docket No. 77-2072.
    Submitted October 4, 1978, at Lansing.
    Decided February 5, 1979.
    International Fidelity Insurance Company filed a bail bond recognizance assuring the appearance of Walter T. Harbin, a criminal defendant. The bonding contract provided that the bond was to continue for one year. Harbin’s trial was ultimately set more than two years later, and Harbin failed to appear. Upon petition of the people, the Washtenaw Circuit Court, Edward D. Deake, J., ordered forfeiture of the bond. International appeals, alleging that its liability on the bond was discharged at the end of one year by the terms of the contract. Held:

    A surety is not released on a bail bond contract until the principal is delivered to the authorities. Therefore, the provision of the contract which called for the surety’s discharge absent the delivery of the principal was null and void.
    Aflirmed.
    1. Bail — Bonds — Surety’s Liability — Contracts.
    Applicable law must be considered in determining a surety’s liability on a bail bond contract, although such a contract is to be narrowly construed.
    2. Bail — Bonds — Surety’s Liability — Discharge — Delivery of Principal — Contracts.
    A surety is not released from liability on a bail bond contract until the principal is delivered to the authorities; therefore, any bail bond provision which calls for the surety’s discharge absent delivery of the principal is null and void.
    References for Points in Headnotes

       8 Am Jur 2d, Bail and Recognizance § 96.

       8 Am Jur 2d, Bail and Recognizance §§ 126-128.

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

      Norman L. Zemke and Peter J. Lyons, for International Fidelity Insurance Company.
    Before: V. J. Brennan, P.J., and Allen and P. F. O’Connell, JJ.

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

   V. J. Brennan, P.J.

The case at bar presents one pertinent inquiry not heretofore addressed in this state. We must decide the force and effect of a bail bond provision which allows the surety’s discharge without delivery of the principal.

The facts giving rise to this appeal are relatively straightforward. On December 14, 1974, International Fidelity Insurance Co., Inc., (hereafter International) filed a bail bond recognizance assuring the appearance of Walter T. Harbin at any and all arraignments, hearings, motions, preliminary examinations and trials (including any adjournments and continuances) in both district and circuit court. The bonding contract further provided that the bond was to remain in full force and effect for "a period of one year”.

The trial date which was originally set for October 14, 1975, was changed to March 28, 1977. When Harbin failed to appear for trial a bench warrant was issued for his arrest and the people filed a petition requesting that the bond be declared forfeited.

A hearing was held on the petition and the trial court ordered the forfeiture of the bond. International appeals by right the order of forfeiture.

International argues that its liability, being strictly limited to the terms of the bond, was thus discharged when the one-year term expired. We disagree. Although a bail bond contract is to be narrowly construed, applicable state law must also be considered in determining the surety’s liability.

In People v Havey, 382 Mich 58, 63; 167 NW2d 308 (1969), the Michigan Supreme Court set forth the nature of a bail bond agreement as follows:

" 'A man’s bail are his jailors, and they are bound to have him as much in the power of the court as if he were within its prison walls. Without appearance, or an order of court to that effect, they are never discharged. ’ ” (Emphasis added.) See, also, Dimmers v Hillsdale Circuit Judge, 289 Mich 482; 286 NW 798 (1939), People v Brow, 253 Mich 140; 234 NW 117 (1931).

Further, MCL 765.26; MSA 28.913 provides for the surety’s release from liability as follows:

"In all criminal cases where any person or persons have entered into any recognizance for the personal appearance of another and such bail and surety shall afterwards desire to be relieved from his responsibility, he may with or without assistance, arrest the accused and deliver him at the jail or to the sheriff of said county.”

Accordingly, we find the essence of a bail bond contract to be an assurance of the principal’s appearance and the surety is not released on the contract until the principal is delivered to the county authorities. Therefore we hold any bail bond provision which calls for the surety’s discharge absent delivery of the principal to be null and void. In the present case, since Harbin was not delivered by the surety at the end of the one-year term, the bond was not discharged.

The lower court’s order forfeiting International’s bond is affirmed.

       The appellant has not cited nor have we found any jurisdiction which allows discharge by the terms of the contract without delivery of the principal. We note that a surety may be excused when the principal fails to appear due to "an act of God”, "an act of the law” or "an act of the public enemy”. People v Glumb, 42 Mich App 166, 168; 201 NW2d 282 (1972).


author: D. F. Walsh, J.

text:
    PEOPLE v BELL
    Docket No. 77-2295.
    Submitted January 4, 1979, at Lansing.
    Decided February 5, 1979.
    Bennie B. Bell was convicted of armed robbery in the Genesee Circuit Court, Ollie B. Bivins, Jr., J. Defendant appeals claiming error in the trial court’s refusal to allow cross-examination of an accomplice testifying as a prosecution witness regarding the witness’s possible motive for testifying against the defendant. Held:

    1. The trial court abused its discretion in refusing to permit the defendant to question an accomplice testifying as a prosecution witness whether the accomplice had been told that the offense with which he was originally charged was nonprobationable and that the offense to which he entered a plea of guilty as part of a plea bargain was probationable since such a distinction is a fact which could have motivated the witness in testifying against the defendant.
    2. A prosecutor and trial judge must disclose to the jury, upon defense request, the fact that an accomplice has been granted immunity or other leniency to secure his testimony.
    3. The focus of required disclosure is on facts which may motivate the witness in giving certain testimony, not on factors which may motivate a prosecutor in dealing subsequently with a witness.
    4. The scope of cross-examination is left to the sound discretion of the trial judge, however, a limitation on cross-examination which prevents a person charged with a crime from placing before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred constitutes a denial of the Sixth Amendment right of confrontation.
    Reversed.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 146-153.
    81 Am Jur 2d, Witnesses §§ 560, 666.
    Preventing or limiting cross-examination of prosecution’s witness as to motive for testifying. 62 ALR 2d 610.

       29 Am Jur 2d, Evidence §§ 249, 251-257, 262, 263, 267.

      1. Witnesses — Criminal Law — Accomplices — Credibility — Favorable Treatment — Disclosure.
    A prosecutor and trial judge have a duty to disclose to the jury, upon defense request, the fact that an accomplice has been granted immunity or other leniency to secure his testimony; the focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness but rather on facts which may motivate the witness in giving certain testimony.
    2. Witnesses — Criminal Law — Cross-Examination — Right of Confrontation — Constitutional Law.
    The scope of cross-examination i is a matter left to the sound discretion of a trial judge, however, a limitation on cross-examination which prevents a person charged with a crime from placing before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred constitutes a denial of the right of confrontation guaranteed by the Sixth Amendment (US Const, Am VI).
    3. Witnesses — Criminal Law — False Testimony — Cross-Examination — Accomplices.
    The importance of a defendant’s right to cross-examine a witness on the witness’s possible motive for testifying falsely is magnified when the witness is the star witness or an accomplice.
    4. Witnesses — Cross-Examination — Testimony.
    A party having the right to cross-examine a witness has the right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify or explain the testimony of the witness on direct examination or which tends or may tend to elucidate the testimony or affect the testimony of the witness.
    5. Witnesses — Criminal Law — Appeal and Error — Accomplices — Probationable Offenses — Testimony.
    A trial court abused its discretion in a trial for armed robbery in refusing to permit defense counsel to ask an accomplice of the defendant, who was testifying as a prosecution witness, if he had been told the distinction between a nonprobationable offense, armed robbery with which he had been charged, and a probationable offense, assault with intent to rob while armed to which he entered his plea of guilty as part of a plea bargain, where such a distinction is a fact which could have motivated the witness in testifying against the defendant.

      6. Criminal Law — Evidence — Admissibility.
    Evidence inadmissible for one purpose is sometimes properly admitted for another purpose.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

      Green, Moon, Haldy, Gibbs & McCabe, for defendant.
    Before: Beasley, P.J., and D. F. Walsh and J. E. McDonald, JJ.

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

   D. F. Walsh, J.

Defendant Bennie Bernard Bell appeals his jury conviction of armed robbery, MCL 750.529; MSA 28.797. He has been sentenced to a prison term of 10 to 15 years.

The only direct testimony implicating defendant in the crime was that of Dennis Goodman. Mr. Goodman testified that he (i.e., Goodman) entered the drugstore and committed the robbery. According to Goodman, defendant had given him the gun used in the robbery and had driven the getaway car.

During direct examination of Goodman the prosecutor established the fact that Goodman’s testimony was given in exchange for a reduction of the charge against him from armed robbery to assault with intent to rob while armed, MCL 750.89; MSA 28.284. On cross-examination of Goodman, defense counsel unsuccessfully attempted to ask the witness if he had been told that armed robbery was a nonprobationable offense. MCL 771.1; MSA 28.1131. Out of the presence of the jury, the trial court ruled that "anything pertaining to punishment is not the jury’s business”. The judge noted that Goodman had not yet been sentenced on the assault charge and had not been promised probation.

The sole issue raised on appeal concerns the trial court’s curtailment of defense counsel’s cross-examination of Goodman.

In People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), the Supreme Court discussed the duty of the prosecutor and the trial judge to disclose to the jury, upon defense request, the fact that an accomplice has been granted immunity or other leniency to secure his testimony: (<The focus of required disclosure is not on factors which may motivate a prosecutor in dealing subsequently with a witness, but rather on facts which may motivate the witness in giving certain testimony. ” Id. at 174. (Emphasis added.)

While the scope of cross-examination is a matter left to the sound discretion of the trial judge, that discretion must be exercised with due regard for a defendant’s constitutional rights. This limitation on trial court control of cross-examination was described in United States v Garrett, 542 F2d 23, 25 (CA 6, 1976):

"It is well settled that the extent to which a witness may be cross-examined is a matter to be determined by the trial court in exercise of its sound discretion. Alford v. United States, 282 U.S. 687, 694, 51 S. Ct. 218, 75 L.Ed. 624 (1931); United States v. Baker, 494 F.2d 1262, 1266 (6th Cir. 1974). However, a limitation on cross-examination which prevents a person charged with a crime from placing before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred constitutes denial of the right of confrontation guaranteed by the Sixth Amendment. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Alford v. United States, supra. ”

Also see United States v Brown, 546 F2d 166, 169 (CA 5, 1977), where the Fifth Circuit noted the defendant’s right to cross-examine a witness on the witness’s possible motive for testifying falsely. The importance of cross-examination is necessarily magnified when the witness being subjected to cross-examination is the "star witness” or an accomplice. Id. at 170.

In People v Dellabonda, 265 Mich 486, 499-500; 251 NW 594 (1933), the Michigan Supreme Court described the right of cross-examination.

"One of the elementary principles of cross-examination is that the party having the right to cross-examine has a right to draw out from the witness and lay before the jury anything tending or which may tend to contradict, weaken, modify or explain the testimony of the witness on direct examination or which tends or may tend to elucidate the testimony or affect the credibility of the witness.”

This Court has recognized the importance of broad cross-examination in establishing a witness’s interest in testifying and the narrow scope of the trial judge’s discretion with respect to such cross-examination. People v Sesson, 45 Mich App 288, 301-302; 206 NW2d 495 (1973), lv den 389 Mich 801 (1973): "The interest of a witness is never irrelevant.” 45 Mich App at 302.

We find that the trial court abused its discretion in refusing to permit defense counsel to ask Mr. Goodman if he had been told that armed robbery is a nonprobationable offense. The offense to which he entered a plea of guilty, although subject to the same maximum punishment of life imprisonment as armed robbery, is probationable. In order for the jurors to appreciate the significance of the plea bargain and to thereby be able to judge Goodman’s credibility in an informed fashion, they were entitled to know all facts about the bargain which could have influenced his decision to testify against the defendant. The importance of the distinction between a probationable and a nonprobationable offense cannot be denied. That distinction was certainly a fact which could have motivated Goodman in testifying against defendant. People v Atkins, supra, at 174.

The trial judge correctly ruled that the jury was not entitled to know the possible disposition of the defendant should the jury return a verdict of guilty of armed robbery. Evidence inadmissible for one purpose, however, is sometimes properly admitted for another purpose. People v Spillman, 399 Mich 313, 319; 249 NW2d 73 (1976), reh den 400 Mich 952 (1977). The jurors could have been instructed that the fact that armed robbery was a nónprobationable offense was not to be considered in their deliberations as to the defendant’s guilt except as it affected their assessment of Goodman’s credibility. They could have been carefully instructed that Goodman had not been promised probation but that probation would be an alternative available to the sentencing judge. Only with these facts in mind could the jury have properly determined Goodman’s interest in testifying for the prosecution and attached to his testimony an informed degree of reliance. See People v Crawl, 401 Mich 1, 34-35; 257 NW2d 86 (1977) (opinion of Levin, J.).

Reversed.


author: M. F. Cavanagh, J.

text:
    PEOPLE v SORNA
    Docket No. 77-2549.
    Submitted April 4, 1978, at Lansing.
    Decided February 5, 1979.
    Jules V. Sorna was found guilty of armed robbery but mentally ill, Oakland Circuit Court, Frederick C. Ziem, J. Pursuant to the defense-of-insanity statute both defendant and the people were granted the appointment of independent psychiatrists to evaluate defendant’s sanity. The prosecutor was to file a copy of his psychiatric evaluation with defendant and defendant was ordered to furnish the prosecutor with any written psychiatric reports if defendant decided to proceed with an insanity defense. The respective reports were exchanged but defendant’s psychiatrist did not testify nor did the prosecutor use defendant’s psychiatric report at trial. Defendant appeals, raising four claims of error: (1) the statutory requirement of submission of independent psychiatric reports to a prosecutor violates the attorney-client privilege, (2) an order to submit psychiatric evaluation reports to the prosecution upon the defense decision to proceed with an insanity defense offends equal protection and due process, (3) a statute which permits a jury to find a defendant, who has pled insanity, guilty but mentally ill, is unconstitutional because it creates an irrational classification violative of equal protection where the Department of Corrections lacks the capacity and is not providing appropriate psychiatric treatment for mentally ill patients such as defendant, and (4) the court’s jury instruction concerning the availability of treatment at the Department of Corrections created the risk of a compromise verdict on the issue of defendant’s insanity and consequent criminal responsibility. Held:

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 48, 49, 62-74, 357, 365.
    Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition. 32 ALR2d 434.

       16 Am Jur 2d, Constitutional law §§ 500, 501.

       21 Am Jur 2d, Criminal Law § 31 et seq.

       4 Am Jur 2d, Appeal and Error §§ 491, 492, 509, 527.

       52 Am Jur 2d, Mandamus §§ 128, 166.

       21 Am Jur 2d, Criminal Law § 368.

      1. The statutory requirement of submission of independent psychiatric reports to a prosecutor by a defendant who pleads insanity does not violate the attorney-client privilege because the Legislature may, without constitutional violation, provide for specific exemptions in a statute where a defendant’s insanity is in issue and it may limit the use of psychiatric reports so as to avoid the issue of attorney-client privilege; the attorney-client privilege is not immune from development by case law or modification by statute.
    2. The filing of an insanity notice and request for an independent psychiatric examination automatically triggers an exchange of reports and psychiatric information between the defendant and prosecutor without need for judicial intervention; therefore, the defendant was not deprived of equal protection of the law and due process because he was not required to do anything more than what he and all similarly situated defendants are already obligated to do.
    3. Determination of statutory classifications is the business of the Legislature and where the Legislature discovers a need to make experimental classification in a practical and troublesome area, a reviewing court need only inquire whether a challenged distinction rationally furthers some legitimate articulated state purpose. The Legislature, in formulating the defense-of-insanity statute, has established an intermediate category to deal with situations where a defendant’s mental illness does not deprive him of substantial capacity to satisfy the insanity test but does warrant treatment in addition to incarceration and this statutory classification allows a finding of "guilty but mentally ill” which is a reasonable statutory classification.
    The issue of the ability of the Department of Corrections to provide psychological treatment to persons convicted by a verdict of “guilty but mentally ill” was raised on appeal by affidavit not a part of the record. The Court of Appeals will not consider allegations contained in affidavits outside the record to supply any deficiencies therein.
    4. The court’s jury instruction that a "guilty but mentally ill” defendant would receive psychiatric treatment at the Department of Corrections did not mislead the jury concerning the treatment available. The instruction did not deprive defendant of due process or equal protection nor create the risk of a compromise verdict on the issue of defendant’s sanity and consequential criminal responsibility where trial testimony would support a finding of "mentally ill” and that defendant had received psychiatric treatment during a previous stay at Jackson Prison. In light of the evidence presented, it would have been premature and speculative to instruct the jury that the Department of Corrections would not be able to fulfill its treatment obligations in the future.
    Affirmed.
    1. Criminal Law — Defense of Insanity — Psychiatric Reports — Mental Health — Public Justice — Attorney-Client Privilege — Statutes.
    The limitations on the use of psychiatric reports and the testimony contained in those reports under the statute covering the defense of insanity reflect the Legislature’s intent to facilitate a complete exploration of the mental state of a defendant in the interest of public justice and yet avoid a violation of the attorney-client privilege (MCL 768.20a; MSA 28.1043[1]).
    2. Criminal Law — Insanity — Psychiatric Reports — Common Law — Constitutional Law — Attorney-Client Privilege.
    The common-law attorney-client privilege is not immune from development by case law or modification by statute; the Legislature may provide for specific exemptions where a defendant’s insanity is in issue or limit the use of psychiatric reports so as to avoid the issue of attorney-client privilege.
    3. Criminal Law — Defense of Insanity — Statutes — Fact Finding — Prejudice.
    A statute which limits the use of psychiatric reports as evidence at a trial where a defendant pleads insanity as a defense strikes a balance between any possible prejudice to the defendant and the strong interest of the state in accurate fact-finding by its courts (MCL 768.20a; MSA 28.1043[1]).
    4. Criminal Law — Defense of Insanity — Psychiatric Reports — Prosecutorial Review — Equal Protection — Due Process — Statutes.
    The defense-of-insanity statute creates a procedure for the submission of psychiatric reports to the defense or prosecution which is automatically triggered by the filing of an insanity notice and request for an independent psychiatric examination, theoretically without the need for judicial intervention (MCL 768.20a[6][a]; MSA 28.1043[l][6][a]).
    5. Criminal Law — Defense of Insanity — Psychiatric Reports — Exchange of Reports — Evaluation of Reports.
    A court order to supply the prosecution with copies of psychiatric reports does not threaten the loss of a defendant’s insanity defense, it merely provides defense counsel with an opportunity to evaluate the contents of the report and its probable effect on the insanity defense before submission to the prosecutor.
    6. Criminal Law — Statutes •— Statutory Classifications — Legislature — State Purpose — Review.
    A reviewing court need only inquire whether a challenged distinction rationally furthers some legitimate, articulated state purpose where a state Legislature discovers a need to make experimental classifications in a practical and troublesome area.
    7. Criminal Law — Claim of Insanity — Elements of Insanity — Legislature — Statutes — Statutory Classifications.
    Successful assertion of an insanity claim requires proof of two elements before a defendant is absolved of criminal responsibility: (1) mental illness; and (2) lack of substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the law; the Legislature, in formulating the defense-of-insanity statute, has established an intermediate category to deal with situations where a defendant’s mental illness does not deprive him of substantial capacity sufficient to satisfy the insanity test but does warrant treatment in addition to incarceration (MCL 768.36; MSA 28.1059).
    8. Appeal and Error — Record on Appeal — Affidavits.
    The Court of Appeals will not consider allegations contained in affidavits outside the record to supply any deficiencies therein.
    9. Criminal Law — Department of Corrections — Guilty But Mentally III — Psychiatric Treatment — Duty to Provide Treatment — Breach of Duty — Mandamus — Statutes.
    The appropriate remedy where the Department of Corrections fails to meet its statutory obligation to provide the psychiatrically-indicated treatment for a defendant and other inmates sentenced under the statute providing for a verdict of guilty but mentally ill would be a complaint for a writ of mandamus to the Department of Corrections to enforce its duty under the statute (MCL 768.36; MSA 28.1059).
    10. Witnesses — Criminal Law — Identification of Defendant — Line-Ups — Constitutional Law — Line-Up Procedures — Constitutional Objections — Independent Basis — Hearings.
    A hearing to determine if line-up procedures were constitutional is not required in all cases of line-up identification, including those cases where the defendant has not raised any specific constitutional objections to the line-up procedures; where the risk of a tainted in-court identification is not alleged to exist, a hearing to determine the independent basis for that identification is unnecessary.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Lawrence J. Bunting, Assistant Prosecuting Attorney, for the people.

      Glazer & Cotton, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

Defendant was charged with armed robbery, MCL 750.529; MSA 28.797. Upon the filing of the required notice, defendant interposed a defense of insanity. Defendant petitioned for and was granted the appointment of an independent psychiatrist to evaluate his insanity, pursuant to MCL 768.20a; MSA 28.1043(1). The prosecutor also requested appointment of a psychiatrist to evaluate the defendant on behalf of the people, also on the authority of this statute. A copy of this evaluation was to be filed with the defense. Subsequently, the trial court, upon motion and argument by the people, likewise ordered the defendant to furnish to the prosecution any written psychiatric report prepared by the defense psychiatrist. The trial court conditioned its order on the defendant’s decision to proceed with the insanity defense. The respective reports were exchanged, although defendant’s psychiatrist did not testify nor did the prosecutor use the defense psychiatric report at trial. Defendant was found "guilty but mentally ill” of the charged offense after a jury trial, and appeals by right.

Defendant raises four claims of error on appeal. The first three errors assigned by defendant concern issues pertaining to defendant’s insanity defense and the jury’s verdict of guilty but mentally ill.

He argues first, that the statutory provision (MCL 768.20a; MSA 28.1043[1]) requiring submission to the prosecutor of any independent psychiatric report prepared for the defense violates the attorney-client privilege. He contends further that the trial court improperly conditioned its order to submit the report upon the defense decision to proceed with an insanity defense, thereby offending equal protection and due process. Defendant next attacks the constitutionality of MCL 768.36; MSA 28.1059, which permits the jury to find a defendant who has pled insanity "guilty but mentally ill”. He argues that the statute itself creates an irrational classification violative of equal protection, and that it is unconstitutional as applied because the Department of Corrections lacks the capacity and is not providing the appropriate psychiatric treatment for mentally ill inmates such as defendant. In this regard, he also argues that the required instruction concerning the disposition of a defendant convicted under MCL 768.36; MSA 28.1059, misled the jury concerning the availability of treatment and created the risk of a compromise verdict on the issue of the defendant’s insanity and consequent criminal responsibility.

Defendant relies on the holding of People v Hilliker, 29 Mich App 543; 185 NW2d 831 (1971), to support his first contention that the trial court’s order permitting prosecution access to the defense psychiatric report violated the attorney-client privilege. Hilliker found a violation of this privilege in the trial court’s failure to exclude testimony of a defense psychiatrist called by the prosecution, as well as the evidence of his written psychiatric report.

However, the defendant’s reliance on Hilliker ignores the statutory development in the use of psychiatric reports since that decision. The Legislature, in enacting MCL 768.20a; MSA 28.1043(1) carefully circumscribed the use of independent psychiatric reports in cases where insanity is in issue:

"Statements made by the defendant to personnel of the center for forensic psychiatry or to any independent examiner during an examination shall not be admissible or have probative value in court at the trial of the case on any issues other than his mental illness or insanity at the time of the alleged offense.”

The finding of a violation of the attorney-client privilege in Hilliker depended heavily on the particular use to which the psychiatric evidence was put. The prosecutor introduced those portions of the defense psychiatrist’s written conclusions which concerned his very damaging opinion of the defendant’s truthfulness and recall of the offense, apart from any opinion on the defendant’s mental health. The use of these reports condemned in Hilliker is likewise impermissible under the statute. We therefore do not find Hilliker to be controlling on this question.

First, MCL 768.20a; MSA 28.1043(1) specifically authorized the exchange of psychiatric reports which occurred in the case at bar. The limitations on their use contained in the statute reflect the Legislature’s intent to facilitate a complete exploration of the mental state of the defendant in the interest of public justice and yet avoid the violation of attorney-client privilege criticized in Hil liker. See United States v Carr, 141 US App DC 229; 437 F2d 662, 663 (1970).

Secondly, the common-law attorney-client privilege is not immune from development by case law or modification by statute. Nor do any constitutional impediments appear to exist to prevent the Legislature from either providing for a specific exemption in cases where the defendant’s insanity is in issue or to so limit the use of psychiatric reports so as to avoid the issue of privilege. Under either view of the statute, it is obvious that the Legislature, in permitting the limited use of psychiatric reports, struck a balance between any possible prejudice to the defendant and the strong "interest of the State in accurate fact-finding by its courts”. United States v Smith, 425 F Supp 1038, 1054 (ED NY, 1976), aff'd without opinion, 556 F2d 556 (CA 2, 1977). United States v Albright, 388 F2d 719 (CA 4, 1968), Pope v United States, 372 F2d 710, 720-721 (CA 8, 1967).

Defendant stresses a variety of tactical disadvantages which may result if he is required to furnish the report of "any independent examiner” to the prosecution, including chilling of defendant-psychiatrist communication and discouragement of defense counsel exploration of the insanity issue by gathering a variety of medical opinions. This position ignores the fundamental purpose of a criminal trial: the fair ascertainment of the truth. People v Johnson, 356 Mich 619, 621; 97 NW2d 739 (1959), People v Aldridge, 47 Mich App 639, 646; 209 NW2d 796 (1973). A necessary concomitant of this goal is a reasonable balancing of advantages and a lessening of a vehemently adversary climate at trial. We view MCL 768.20a; MSA 28.1043(1) as a legislative encouragement of this purpose.

Defendant also argues that because the trial court’s order conditioned the defendant’s obligation to submit the psychiatric report to the prosecution upon a decision to proceed with an insanity defense, he was deprived of equal protection of the law and due process.

The argument is without merit. MCL 768.20a(6)(a); MSA 28.1043(l)(6)(a) creates a procedure for the submission of psychiatric reports to the defense or prosecution which is automatically triggered by the filing of the insanity notice and request for an independent psychiatric examination, theoretically without the need for judicial intervention. Thus, the court did not order the defendant and his psychiatric expert to do anything more than what they and all similarly situated defendants were already obligated to do. Defendant’s reliance on the rule in People v Sargeant, 65 Mich App 691; 238 NW2d 175 (1975), to support his contention, is misplaced. Sargeant merely clarifies the required order of proof at trial on the issue of insanity in order to restrain prosecution attempts to raise the issue prematurely and should not be used to inhibit the reasonable exchange of psychiatric information prior to trial.

Nor does the order explicitly threaten the loss of defendant’s insanity defense, as defendant asserts. It appears merely to provide defense counsel with an opportunity the statute itself does not offer—to evaluate the contents of the report and its probable effect on the insanity defense before submission to the prosecutor.

Defendant also attacks the constitutionality of MCL 768.36; MSA 28.1059, which permits a jury to return a verdict of "guilty but mentally ill” in cases where a defendant has interposed the defense of insanity. Basically, he argues the statutory definitions of mental illness (MCL 330.1400a; MSA 14.800[400a]) and legal insanity (MCL 768.21a; MSA 28.1044[1]) are based upon substantially similar behavioral characteristics. Therefore, it is argued, it is irrational to consider a defendant found "mentally ill” criminally responsible for his acts while excusing one adjudged "legally insane” from a similar responsibility. Consequently, defendant asserts, this irrational classification violates equal protection.

This identical issue was raised before another panel of this Court in People v Desi Jackson, 80 Mich App 244; 263 NW2d 44 (1977), a case which found no equal protection violation. We are persuaded that this view is essentially correct. Where a state discovers a need to make experimental classifications "in a practical and troublesome area”, the reviewing court need only "inquire whether the challenged distinction rationally furthers some legitimate, articulated state purpose”. McGinnis v Royster, 410 US 263, 270; 93 S Ct 1055, 1059; 35 L Ed 2d 282, 289 (1973).

Successful assertion of an insanity claim requires proof of two elements before a defendant is absolved of criminal responsibility: (1) mental illness; and (2) lack of substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the law. The Legislature, in formulating MCL 768.36; MSA 28.1059, has established an intermediate category to deal with situations where a defendant’s mental illness does not deprive him of substantial capacity sufficient to satisfy the insanity test but does warrant treatment in addition to incarceration. The fact that these distinctions may not appear clear-cut does not warrant a finding of no rational basis to make them. As the United States Supreme Court has observed:

"[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations—illogical, it may be, and unscientific.” McGinnis v Royster, supra, at 270.

Consequently, we find no violation of equal protection.

Finally, we address defendant’s contention that the court’s instruction concerning the Department of Corrections’ obligation to provide psychiatric treatment misled the jury on the availability of treatment. This misinformation, it is contended, may have resulted in a compromise verdict, and deprived the defendant of his due process and equal protection rights to a jury correctly instructed on the facts relative to the actual psychiatric treatment available. In support of his contentions, he asserts by way of affidavit that he is not currently receiving any psychiatric treatment beyond medication.

On appeal, this Court will not consider allegations contained in affidavits outside the record to supply any deficiencies therein. People v Robinson, 390 Mich 629, 631 fn 1; 213 NW2d 106 (1973), People v Penn, 70 Mich App 638, 648; 247 NW2d 575 (1976). Based on the record before us, therefore, we cannot say that the trial court’s instruction misled the jury into returning a compromise verdict or deprived the defendant of a jury properly instructed on the facts and the law. In regard to the former contention, there was sufficient psychiatric testimony adduced at trial to support the finding of mentally ill. Secondly, it is apparent from testimony that the defendant had received a not insubstantial amount of psychiatric treatment during a previous stay at Jackson. In light of this evidence, it would have been premature and speculative for the court to have instructed the jury that the Department of Corrections would not be able to fulfill its treatment obligations in the future.

If the Department of Corrections is failing to meet its statutory obligation to provide the psychiatrically-indicated treatment for the defendant and other inmates sentenced under MCL 768.36; MSA 28.1059, then the appropriate remedy would be a complaint for a writ of mandamus to the Department of Corrections to enforce its duty under the statute, rather than reversal of defendant’s conviction.

Defendant’s final claim of error asserts that the trial court erred in permitting the prosecutor to question the complaining witness about her line-up identification of the defendant without first holding a hearing, pursuant to United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), to determine if the line-up procedures were constitutional.

We disagree. We do not read Wade as requiring a hearing in all cases of line-up identifications, including those cases where the defendant has not raised any specific constitutional objections to the line-up procedures. Where the risk of a tainted in-court identification is not alleged to exist, a hearing to determine the independent basis for that identification appears unnecessary.

Accordingly, defendant’s conviction is affirmed.

       The court’s instruction to the jury concerning the disposition of the defendant if found "guilty but mentally ill” reads:
      "A verdict of guilty but mentally ill is a determination that the Defendant is guilty of the crime charged and is a finding of criminal responsibility.
      "In most respects, a verdict of guilty of Robbery Armed but mentally ill, is the same as a verdict of guilty. The Defendant may be imprisoned for the same period of time for which he could be sentenced if a verdict of guilty were rendered.
      "The distinction in result between a verdict of guilty but mentally ill and a verdict of guilty is that a verdict of guilty but mentally ill imposes upon the Department of Corrections an obligation of providing such treatment as may be psychiatrically indicated if the Defendant is imprisoned.”
      This instruction is derived from MCL 768.36; MSA 28.1059:
      "(3) If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense. If the defendant is committed to the custody of the department of corrections, he shall undergo further evaluation and be given such treatment as is psychiatrically indicated for his mental illness or retardation.”

         Testimony of Dr. Ames Robey.

       It is also questionable whether such an instruction may focus on post-sentence matters outside the court’s authority. In People v Sharif, 87 Mich App 196; 274 NW2d 17 (1978), the trial court’s position that he could only recommend, not require, treatment by the Department of Corrections was not disturbed by this Court. This result may indicate that the court’s authority and responsibility is limited under the statute to matters of incarceration only.