text:
    PEOPLE v EWING
    Docket No. 78-4836.
    Submitted May 7, 1980, at Lansing.
    Decided July 24, 1980.
    Charlesmason Ewing was convicted of armed robbery in the Genesee Circuit Court, Robert M. Ransom, J. At trial, the judge permitted the prosecutor, over a defense objection, to introduce in his case in chief testimony of the defendant given in a previous trial for first-degree murder. Defendant appeals, alleging that, when his testimony about the robbery had been given, he had not first been advised by the trial court of his right to remain silent and that, after he had taken the stand, he was asked incriminating questions which the judge instructed him to answer. Held:

    A defendant who was represented by counsel in a trial situation is presumed to have been informed of his constitutional rights. The privilege against self-incrimination must be claimed before the issue of waiver thereof can arise. Defendant never claimed his privilege in the murder trial. His testimony was properly admitted as substantive evidence.
    Affirmed.
    1. Criminal Law — Representation by Counsel.
    A defendant who was represented by counsel in a trial situation is presumed to have been informed of his constitutional rights.
    2. Criminal Law — Self-Incrimination — Waiver.
    The privilege against self-incrimination must be claimed before the issue of a knowing and intelligent waiver thereof can arise.
    3. Criminal Law — Evidence — Prior Testimony.
    Prior testimony of a defendant is admissible as substantive evidence in a later prosecution of the defendant for an unrelated offense, absent an indication that the prior testimony was given under compulsion.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 312.
    [2] 21 Am Jur 2d, Criminal Law § 357.
    [3] 21 Am Jur 2d, Criminal Law §§ 357, 358, 367.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John T. McGraw, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      Ronald L. Haldy, for defendant.
    Before: Cynar, P.J., and M. J. Kelly and T. Gillespie, JJ.

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

   Per Curiam.

Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797, and was subsequently sentenced to life imprisonment, with credit for 532 days served. Defendant appeals as of right.

The charge in the instant case arose out of the 1975 robbery of one Mitchell Plant, an employee of the Home Juice Company in Flint, Michigan. Defendant planned the robbery, supplied the weapon, and drove an active coparticipant to and from the scene of the offense.

Prior to trial, defendant filed a motion to suppress a transcript of testimony given by him at his previous first-degree murder trial held in Jackson, Michigan. At that trial, defendant made incriminating statements regarding his participation in the Home Juice robbery. Defense counsel argued that the testimony had been offered without defendant first having been advised by the trial court of his right to remain silent. At a hearing on the motion, defendant testified that defense counsel in the prior proceeding had advised him that he would not be forced to incriminate himself in any crimes for which he had not been convicted, if he took the stand to testify. Defendant claimed that when he was asked incriminating questions, the trial judge instructed him to answer. Defendant contended that he was unaware that he could "plead the Fifth”. Defendant testified that, if he had known that he would be asked to testify relative to the Home Juice robbery at the murder trial, he would not have taken the stand.

That murder trial ended in a hung jury. Upon retrial, defendant refused to take the stand, against his attorney’s advice. Defendant’s counsel in the retrial testified at the motion hearing that he would not have asked defendant to testify had he known of the Home Juice robbery. He further stated that he made it clear to defendant that he did not have to testify if he chose not to.

The trial court in the case at bar denied defendant’s motion to suppress the prior testimony, reasoning that defendant had waived his right not to testify when he took the stand in the first murder trial on advice of counsel, and that, therefore, the testimony had been properly admitted at that earlier trial. During trial, defense counsel renewed the motion to suppress, which was again denied.

At trial, two employees of the Home Juice Company testified regarding the robbery, as did one of the employees’ fiancee, who was also present at the time. All indicated that the robber, a black male, had taken the company’s receipts for the day in question, as well as some personal money, was brandishing a gun during the incident, and had told the witnesses he was capable of shooting them.

Also testifying at trial was the coparticipant in the robbery, C. J. Green. He stated that the robbery was defendant’s idea, that defendant supplied the gun used therein, and that it had been planned two weeks in advance. He said $1900 had been taken.

The prosecution also introduced as substantive evidence defendant’s testimony from the Jackson County trial. In the course of that testimony, defendant described the Home Juice robbery and his participation in it.

In his defense, defendant presented two witnesses who attacked Green’s credibility. Defendant did not take the stand in this case, contrary to advice of counsel.

Defendant raises but one issue on appeal, arguing that the trial court reversibly erred in allowing the prosecution to introduce as substantive evidence, in its case in chief, defendant’s testimony offered in his own defense at an earlier trial arising out of a separate incident when the court at the earlier trial did not sua sponte advise defendant of the right against self-incrimination. Defendant argues that the trial court had an affirmative duty in the previous trial to advise defendant of his Fifth Amendment right to be free from self-incrimination, and, absent evidence of this, which itself is a highly persuasive indicium of an effective waiver of this constitutional right, the testimonial evidence should not have been admitted here. Defendant argues by analogy to GCR 1963, 785, which requires an affirmative waiver of rights in a guilty plea context, contending that there is no logical reason to distinguish the waiver of identical rights in a trial setting.

Defendant claims that a knowing and intelligent waiver of this constitutional right for any and all purposes cannot be presumed from the fact that he took the stand. Defendant, however, concedes that this Court has held that when a defendant is represented by counsel in a trial situation, it is presumed counsel will inform him of his constitutional rights. People v Givens, 59 Mich App 436; 229 NW2d 490 (1975).

More importantly, this Court has held that the privilege against self-incrimination must be claimed before the issue of a knowing and intelligent waiver thereof arises. People v Hunley, 63 Mich App 97, 99; 234 NW2d 169 (1975), People v Nesbitt, 86 Mich App 128, 135; 272 NW2d 210 (1978). In Hunley, the defendant had testified as a defense witness in the separate trial of a coparticipant and gave testimony which exculpated that coparticipant while inculpating himself. The Court concluded that, since the defendant had not claimed the privilege in the earlier trial, the issue of whether defendant had knowingly and intelligently waived the privilege was not before it. Accordingly, defendant’s prior testimony was properly admitted as substantive evidence against him at his trial.

Finally, the majority rule is that, absent an indication that the prior testimony was given under compulsion, it is freely admissible as substantive evidence in a later prosecution for an unrelated offense. Anno: Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 ALR2d 1404, 1412-1413. Where a defendant fails to claim the privilege, no question of compulsion arises, nor does the waiver issue arise.

Thus, it can be seen from these decisions that a defendant, represented by counsel, has the burden of bringing the privilege claim to the court’s attention before any duty on the part of the court to address the issue obtains. In a like view, we therefore conclude that the trial court in the Jackson County trial was not required sua sponte to advise defendant of his privilege (right) against self-incrimination, as presumptively that duty devolved upon defense counsel in the first instance. As such, we refuse to find reversible error in this case on account of failure of the court in the earlier trial sua sponte to advise defendant of the privilege and the circumstances which create a waiver thereof.

We therefore affirm defendant’s conviction and sentence.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v STILES
    Docket No. 44304.
    Submitted May 7, 1980, at Lansing.
    Decided July 24, 1980.
    Leave to appeal applied for.
    Eugene Stiles was convicted of obstructing or assaulting a police officer in the discharge of his duty in Jackson Circuit Court, Russell E. Noble, J. He was sentenced to three years probation with the conditions that he pay court costs and spend six months in jail. The defendant appeals contending that his actions were justified because the police had unlawfully restrained his freedom and that the trial court erred in finding him guilty.
    Testimony at the trial indicated that the police officers responded to a call to investigate a family disturbance at the home of defendant’s wife from whom he was separated. Mrs. Stiles permitted the officers to enter the apartment. The officers noted that Mrs. Stiles was crying and shaking and that the living room was a shambles. Mrs. Stiles informed the officers that her husband had caused the damage but that it was possible that he had left, simultaneously pointing upstairs. The officers proceeded upstairs and found the defendant in a bedroom. One officer blocked the door when the defendant attempted to leave. When the officer subsequently asked the defendant a second time for identification, the defendant pushed the officer away, causing the officer’s arm to go through a glass window, a scuffle ensued and the defendant began choking the officer until he was pulled off by the other officer. Held:

    1. The reasonableness of a restraint on a person’s freedom is not measured by the probable cause standard when the restraint is of limited scope and the reasonableness must be established by specific and articulate facts and rational inferenees therefrom. Here, the detention of the defendant was reasonable at its inception.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Arrest § 1.
    [2] 6 Am Jur 2d, Assault and Battery §§ 79, 87.
    [2] What constitutes obstructing or resisting an officer, in the absence of actual force. 44 ALR3d 1018.
    [3] 6 Am Jur 2d, Assault and Battery §§ 48, 49.

      2. The Michigan statute proscribing the obstructing or assaulting of police officers in their lawful acts, attempts and efforts to maintain, preserve and keep the peace applies to acts committed against police officers in the legal execution of any of their duties. Here, the trial court did not commit clear error in finding that the officers lawfully proceeded upstairs since they reasonably interpreted Mrs. Stiles’ pointing upstairs as permission to investigate the upstairs.
    3. The crime of obstructing or assaulting a police officer is treated as a misdemeanor only for purposes of the penal code; application of the Code of Criminal Procedure results in characterization of that offense as a felony and since the probation statute is part of the Code of Criminal Procedure, the five year maximum probation sentence for a felony is applicable rather than the two year probation maximum sentence for nonfelony convictions. The defendant’s sentence was permissible.
    Affirmed.
    1. Criminal Law — Restraint — Reasonableness.
    The reasonableness of a restraint on a person’s freedom is not measured by the probable cause standard when the restraint is of limited scope and the reasonableness must be established by specific and articulate facts and rational inferences therefrom.
    2. Criminal Law — Obstructing or Assaulting Police Officers — Statutes.
    The Michigan statute proscribing the obstructing or assaulting of police officers "in their lawful acts, attempts and efforts to maintain, preserve and keep the peace” applies to acts committed against police officers in the legal execution of any of their duties (MCL 750.479; MSA 28.747).
    3. Criminal Law — Obstructing or Assaulting Police Officers — Statutes — Probation.
    The crime of obstructing or assaulting a police officer is treated as a misdemeanor only for purposes of the penal code; application of the Code of Criminal Procedure results in characterization of that offense as a felony and since the probation statute is part of the Code of Criminal Procedure, the five year maximum probation sentence for a felony is applicable rather than the two year maximum probation sentence for nonfelony convictions (MCL 750.479, 761.1[g], 771.2; MSA 28.747, 28,843[g], 28.1132).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

      Janet M. Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Cynar, P.J., and M. J. Kelly and T. Gillespie, JJ.

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

   Per Curiam.

Defendant, Eugene Stiles, was convicted at a September 5, 1978, bench trial of obstructing or assaulting a police officer in the discharge of his duty, MCL 750.479; MSA 28.747. On October 13, 1978, he was sentenced to three years probation with the conditions that he pay court costs of $600 and spend six months in jail.

Defendant contends that his actions were justified because the police had unlawfully restrained his freedom and that the trial court erred in finding him guilty. We disagree for the reasons set forth below.

At 10 p.m. on December 9, 1977, two police officers responded to a call to investigate a family disturbance at the apartment of Nancy Stiles, who was separated from defendant at the time. The officers were informed that Mrs. Stiles had phoned in the complaint. When the officers approached the apartment, Mrs. Stiles answered the door and permitted them to come into the vestibule. The officers noted that Mrs. Stiles was crying and shaking and that the living room of the apartment was a shambles. In response to questioning, Mrs. Stiles stated that her husband had caused the damage but that it was possible he had left the apartment. Simultaneously, she pointed upstairs.

The police officers proceeded upstairs and found defendant in a bedroom holding one of his fingers which was bleeding. One officer went to an adjacent room with Mrs. Stiles to obtain her version of what had happened. The other officer entered the bedroom to talk to defendant, to obtain identification, and to keep the parties separate. When defendant attempted to leave the bedroom, the officer blocked the doorway and motioned to defendant to go back and sit down. Defendant charged at the officer a second time and was repelled. When the officer again asked defendant to produce some identification, defendant pushed the officer away, causing the officer’s arm to go through a glass window. A scuffle ensued and defendant began choking the officer until he was pulled off by the other officer.

The proscription in MCL 750.479; MSA 28.747 against obstructing , or assaulting police officers "in their lawful acts, attempts and efforts to maintain, preserve and keep the peace” applies to acts committed against police officers in the legal execution of any of their duties. People v John Weatherspoon, 6 Mich App 229, 232; 148 NW2d 889 (1967). The essential question in the present case is whether the trial court erred in finding that the police officer was legally executing his duty when he proceeded to investigate the upstairs of the apartment and detained defendant in the bedroom by blocking the doorway.

It is clear that the officer was legally performing his duty when he approached the apartment in response to the call that a family disturbance was occurring therein. It further appears that the officer was accomplishing a lawful and proper police function of preserving law and order by attempting to ascertain whether defendant was still present in the apartment and by attempting to keep the parties separate. People v Morris, 41 Mich App 582; 200 NW2d 456 (1972). The officers believed that Mrs. Stiles had phoned in the complaint, the apartment was a shambles, Mrs. Stiles was crying and shaking, she permitted the officers to enter the apartment, and she told the officers that her husband had caused the damage. Although she told the officers that her husband had possibly left, she silently pointed upstairs. In light of Mrs. Stiles’ condition and that of the apartment, the officers reasonably interpreted her pointing upstairs as permission to investigate the upstairs of the apartment. See People v Chism, 390 Mich 104, 128-139; 211 NW2d 193 (1973). This Court concludes that the trial court after reviewing the reasonableness of the circumstances did not commit clear error in finding that the officers lawfully proceeded upstairs. GCR 1963, 517.1; People v Long, 94 Mich App 338; 288 NW2d 629 (1979).

By analogy to Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), which addressed the issue of the exclusion of evidence illegally seized rather than the present issue of obstructing lawful police activity, it further appears that the police officer’s limited detention of defendant in the bedroom was lawful. In Terry, the United States Supreme Court held that the reasonableness of a restraint on a person’s freedom is not measured by the probable cause standard when the restraint is of limited scope. Reasonableness must be established by specific and articulable facts and rational inferences therefrom. See also Delaware v Prouse, 440 US 648; 99 S Ct 1391; 59 L Ed 2d 660 (1979), People v Grimmett, 97 Mich App 212; 293 NW2d 768 (1980), and People v Dixon, 85 Mich App 271; 271 NW2d 196 (1978).

Specific facts adduced at trial clearly indicate that the detention of defendant was reasonable at its inception. Mrs. Stiles was shaken up, and she told the officers that defendant had caused the damage to the apartment. The police thus acted reasonably in attempting to keep the parties separate from each other. By standing in the doorway and blocking defendant’s path, the officer limited the scope of the detention in a manner clearly related to the officer’s reasonable belief that his safety or that of others was in danger. This Court finds no error in the trial court’s determination that defendant obstructed or assaulted the police officer in his lawful efforts to preserve and keep the peace.

Defendant also contends that his sentence of three years probation violated MCL 771.2; MSA 28.1132 because that statute, although permitting probation of up to five years for conviction of a felony, limits probation to two years for conviction of a nonfelony offense. Defendant’s argument is unpersuasive. For purposes of the penal code alone, the crime of obstructing or assaulting a police officer is treated as a misdemeanor. MCL 750.479; MSA 28.747. However, application of the Code of Criminal Procedure results in the characterization of defendant’s offense as a felony. MCL 761.1(g); MSA 28.843(g). Because the probation statute, MCL 771.2; MSA 28.1132, is part of the Code of Criminal Procedure, defendant’s sentence of three years probation was permissible. People v Rosecrants, 88 Mich App 667; 278 NW2d 713 (1979). See also People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979).

Affirmed.


author: Per Curiam. Allen, P.J.

text:
    PEOPLE v PROSSER
    Docket No. 44580.
    Submitted March 4, 1980, at Grand Rapids.
    Decided July 24, 1980.
    Leave to appeal denied, 410 Mich 862.
    Lamar Prosser was convicted of possession of heroin and as an habitual offender, Berrien Circuit Court, William S. White, J. He appeals, alleging the refusal of the trial court to suppress certain evidence uncovered during a pat-down search constitutes error. Held:

    The officer who conducted the search was not able to point to particular facts from which he could have reasonably inferred that the defendant was armed and dangerous at the time of the detention, nor could the officer have properly detained the defendant had he chosen to leave. The search was unreasonable, and admission into evidence of the heroin taken from the defendant during the search was improper.
    Reversed.
    Allen, P.J., dissented. He would hold that the pat-down search of the defendant was justified since the evidence showed that the officers’ suspicion of ongoing criminal activity was reasonable and that they were fearful for their own safety while pursuing the investigation, and, therefore, the evidence uncovered during the search should not be suppressed. He would affirm.
    Opinion of the Court
    1. Searches and Seizures — Reasonableness — Evidence — Trial — Error — Criminal Law.
    A pat-down search of an individual by a police officer is unreasonable where the officer is not able to point to particular facts from which he could reasonably infer that the individual was armed and dangerous, and, at the time of the detention, the officer could not have properly detained the individual had he chosen to leave; admission of evidence uncovered during such a search during a subsequent criminal trial constitutes error.

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizures § 58.
    Violation of federal constitutional rule (Mapp v Ohio) excluding evidence obtained through unreasonable search or seizure, as constituting reversible or harmless error. 30 ALR3d 128.
    [2] 68 Am Jur 2d, Searches and Seizures § 58.

      Dissent by Allen, J.
    2. Searches and Seizures — Reasonableness — Criteria — Suppression of Evidence — Criminal Law.

      A pat-down search of an individual by a police officer is justiñed where the ofñcer has a reasonable suspicion, based on objective facts, of ongoing criminal activity and is fearful for his own safety while pursuing his investigation, and evidence so uncovered should not be suppressed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Angela Baryames, Assistant Prosecuting Attorney, for the people.

      Frederick E. Salim (Philip J. Olson, II, of counsel), for defendant.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ.

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

   Per Curiam.

Following a bench trial on January 12, 1979, defendant was convicted of possession of heroin, contrary to MCL 335.341(4)(a) MSA 18.1070(41)(4)(a) [repealed by 1978 PA 368, effective September 30, 1978, now MCL 333.7403; MSA 14.15(7403)]. Defendant was, at that time, further convicted as an habitual offender, MCL 769.12; MSA 28.1084, and sentenced to prison for a term of four to eight years. Defendant appeals by right.

The only issue in this appeal is the refusal of the trial court to suppress the heroin taken from defendant’s person. We find that this evidence should not have been admitted and, therefore, reverse.

Defendant was one of three persons traveling eastbound on 1-94 sometime around 1 a.m. in an automobile. Two state police officers noticed the car in which defendant was riding when it suddenly moved across lanes in front of another car, causing the other car to brake. The officers stopped the car and approached the driver, requesting driver’s license and registration. It was uncontroverted that the driver produced the registration and denied having a driver’s license, but one of the officers contended that the driver handed him an Illinois citation in lieu of a license. The officer compared the physical description on the citation to the driver’s appearance and concluded that the citation’s description properly applied to the front seat passenger. At this point, the officer testified, he suspected that at least one, and maybe two of the occupants of the car were lying as to their identities and, therefore, he requested all of them to exit from the vehicle.

Defendant, who had been sitting alone in the back seat, handed the other police officer his driver’s license as he stepped out of the car. When the officer who had initially questioned the driver asked defendant who he was, defendant indicated that the other officer had his license. Apparently, the officer did not refer to this license but determined to make a pat down search of all three individuals for reasons of safety. Upon beginning to search the defendant, he felt a heavy, hard, bulky object in the inside left coat pocket. Reaching into the pocket, the officer felt something soft, like something plastic. He retrieved a plastic baggie from defendant’s pocket and repeated the process five times, resulting in a net find of seven plastic bags containing heroin and marijuana, plus a bundle of cash. Both officers testified that they witnessed no activity on the part of the three individuals that made them suspect that they were armed during the detention.

The trial court upheld the validity of this search on the basis of Terry v. Ohio, 392 US 1, 30; 88 S Ct 1868; 20 L Ed 2d 889 (1968), which states in part that:

"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

The officer who conducted the search of defendant in this case knew that defendant had presented his driver’s license to the other officer before the search was begun. From the testimony presented here, that officer was not "* * * able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous”. Sibron v New York, 392 US 40, 64; 88 S Ct 1889; 20 L Ed 2d 917 (1968). We cannot conceive of a reason for which the officers could have properly detained defendant at the time of this detention had defendant chosen to leave. Therefore, we find that defendant’s conviction must be reversed.

Allen, P.J.

(dissenting). I dissent from the majority’s conclusion that the search of defendant was illegal under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

In this case, unlike Terry, there is no question about the propriety of the initial restrictions on the defendant, since he was riding in a vehicle which was being driven recklessly and, thus, became a proper subject for an investigatory stop. Pennsylvania v Mimms, 434 US 106, 109; 98 S Ct 330; 54 L Ed 2d 331 (1977). Upon receiving the inconsistent information relating to the identification of the driver and front seat passenger, one of the state police troopers reasoned that further investigation was necessary "of at least two of the individuals in that car, possibly a third, for a criminal matter of disguising or possibly that of being a fugitive”.

Admittedly, the police officers did not have probable cause to arrest any of the occupants of the car on either of these grounds. However, the police officers in this case had reasonable suspicion, based upon objective facts, that two, and possibly the third occupant were involved in criminal activity justifying further investigation. Terry, supra, United States v Pelley, 572 F2d 264 (CA 10, 1978), United States v Wilkerson, 194 US App DC 393; 598 F2d 621, 624 (1978). As such, they acted reasonably in ordering all of the occupants out of the car. Mimms, supra, Pelley, supra, Wilkerson, supra, United States v Williams, 604 F2d 1102, 1124 (CA 8, 1979). Contrast Ybarra v Illinois, 444 US 85, 90-96; 100 S Ct 338; 62 L Ed 2d 238 (1979). At this point, the police officers were justified in conducting a limited protective search of the occupants for concealed weapons only if they had reason to believe that the occupants were armed and dangerous. Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), Terry, supra, 27, Mimms, supra, 111-112, United States v Williams, supra, 1124. Absent record evidence to show that such a limited search was prompted by the officers’ fear of violence while pursuing their investigation, a warrantless pat-down search would be unauthorized. People v Rosales, 406 Mich 624, 629; 281 NW2d 126 (1979), cert den 444 US 1025; 100 S Ct 689; 62 L Ed 2d 659 (1980), People v Summers, 407 Mich 432, 448; 286 NW2d 226 (1979). Under the circumstances presented to the officers in the instant situation, Pelley, supra, 266, I cannot doubt that "* * * a reasonably prudent man in the circumstances would be warranted in the belief that his safety * * * was in danger”. Terry, supra, 27. Since the frisking officer clearly testified that, under the circumstances and in light of his experience, he was fearful for his own safety while pursuing his investigation, I would conclude that the pat-down search of the car’s occupants — leading to the discovery of the illicit drugs in defendant’s possession — was justified under Terry and its progeny. Therefore, I would affirm the trial court’s denial of defendant’s motion to suppress.


text:
    GRAND RAPIDS GROWERS, INC v OLD KENT BANK & TRUST COMPANY
    Docket No. 44844.
    Submitted March 6, 1980, at Grand Rapids.
    Decided July 24, 1980.
    Leave to appeal applied for.
    Grand Rapids Growers, Inc., and Midwest Farm Supply, Inc., brought an action against the Old Kent Bank and Trust Company in the Kent Circuit Court. Subsequently, officers of the corporations appeared in open court and agreed to a settlement and the court entered judgment in conformity with the settlement. Plaintiffs, through new counsel, brought a motion to set aside the judgment under GCR 1963, 528.3, alleging that they were coerced by their attorney to settle the lawsuit. The court, Roman J. Snow, J., denied the motion. Plaintiffs appealed. The appeal was dismissed. The Supreme Court vacated the order of dismissal and remanded the case to the Court of Appeals for plenary considerations. 406 Mich 907 (1979). Held:

      A settlement obtained in open court through coercion of a party by his attorney will not be set aside absent a showing that the other party participated in the coercion. Relief from judgments upon grounds of fraud is limited to those instances where some material fact is concealed from the court or where some material misrepresentation is made to the court. Since neither situation is the case and since there is no allegation that defendant participated- in or even knew of any alleged coercion, the trial court properly denied the motion.
    Affirmed.
    1. Compromise and Settlement — Judgments — Setting Aside Judgments — Coercion by Attorney.
    A settlement obtained in open court through coercion of a party by his attorney will not be set aside absent a showing that the other party participated in the coercion.
    References for Points in Headnotes
    [1] 15A Am Jur 2d, Compromise and Settlement § 31.
    46 Am Jur 2d, Judgments § 825.
    [2] 46 Am Jur 2d, Judgments § 825.

      2. Judgments — Relief from Judgments — Fraud — Court Rules.
    Relief from judgments upon grounds of fraud is limited to those instances where some material fact is concealed from the court or where some material misrepresentation is made to the court.

      Cicinelli, Mossner, Majoros & Alexander, P.C., for plaintiffs on appeal.

      Smith Bovill, P.C. (by Albert A. Smith), for plaintiffs on appeal.

      Warner, Norcross & Judd (by Thomas J. McNamara and Peter J. Gustafson), for defendant.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ.

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

   Per Curiam.

Over two years after plaintiffs had instituted this action, the parties reached a settlement in open court. On the day of the settlement a stipulation and order of dismissal were signed by the parties and the trial judge. Three weeks later, plaintiffs, represented by new counsel, petitioned the trial court to set aside the stipulation and order of dismissal for the alleged reason that their attorney .had compelled them to settle through coercion and duress. After two hearings on the matter in the trial court, plaintiffs’ motion was denied. Plaintiffs then claimed an appeal in this Court, which was dismissed, but the Supreme Court vacated the order of dismissal of this Court and remanded the matter to us for plenary consideration.

The question presented for our determination is whether or not the trial court abused its discretion by denying plaintiffs’ motion for relief under GCR 1963, 528.3. We find that it did not. The trial court specifically found that when one of the plaintiffs testified in open court concerning the settlement, he was acting voluntarily and not because of coercion or duress. Nevertheless, even if a contrary finding had been made that plaintiff was expressing assent to an agreement due to coercion or duress, there would be no cause to overturn the settlement where there was no showing that the defendant participated in, or even knew of the alleged coercion. In this case there has been no contention that defendant was in any way related to the allegedly improper behavior of plaintiffs’ attorney. See Musial v Yatzik, 329 Mich 379, 383; 45 NW2d 329 (1951).

Plaintiffs’ arguments place major reliance upon the case of Briggs v Withey, 24 Mich 136 (1871). That case, plaintiffs declare, establishes the rule that if a party agrees to a settlement under duress practiced on him by his attorney, such settlement will be set aside by the Court as unconscionable. A reading of the case does not furnish such a rule. Without restating the extensive and unusual details therein, suffice it to say that there was a concert of action found between opposing attorneys in Briggs to extort a settlement from a party facing civil and criminal charges arising out of adultery. The Supreme Court in Briggs did not set aside the agreement in toto; rather, it reduced the figure of the settlement by the amount which the Court determined the opposing attorney had gained from the transaction. The present case, thus, cannot be compared very well to Briggs.

Nor are we convinced that a fraud was perpetrated upon the trial court by plaintiffs’ attorney. Relief from judgments upon grounds of fraud has been limited to those instances when "* * * some material fact is concealed from that court or when some material misrepresentation is made to that court”. Banner v Banner, 45 Mich App 148, 154; 206 NW2d 234 (1973). We do not find the present case to be such an instance. Parker v Severn, 37 Mich App 231, 232-233; 194 NW2d 432 (1971), lv den 388 Mich 778 (1972). Rather, we find that plaintiffs should be held to the settlement agreed to in open court and on the record, Kruger v Martin, 96 Mich App 660; 293 NW2d 667 (1980), and that the ruling of the lower court be affirmed. Kirn v Ioor, 266 Mich 335, 338; 253 NW 318 (1934). Costs to appellee.


text:
    PATRICK v PATRICK
    Docket No. 44930.
    Submitted May 13, 1980, at Lansing.
    Decided July 24, 1980.
    Carolyn Patrick was granted a divorce from Manfred Patrick and was granted custody of the parties’ minor children, Clinton Circuit Court, Timothy M. Green, J. The defendant appeals, alleging that the trial court abused its discretion in making the division of the marital property and erred in not asking the children their preferences as to custody. Held:

    1. The trial court did not abuse its discretion in dividing the property in the manner in which it did.
    2. The trial court did consider the reasonable preferences of the children without putting them in a compromising position by forcing them to choose sides. There was no error.
    Affirmed.
    1. Divorce — Division of Property — Equitable Distribution.
    The division of property in a divorce action is not governed by any rigid rules or mathematical formula; the end sought is a fair and equitable distribution under all the circumstances.
    2. Appeal — Divorce — Division of Property — Factors Considered.
    Factors to be considered by the Court of Appeals in reviewing the division of property in a divorce action include the source of the property, the length of the marriage, the needs of the parties, the parties’ earning abilities, and the cause of the divorce.
    3. Appeal — Child Custody — De Novo Review.
    A reviewing court is obliged to consider a child custody case de

      novo and to appraise the evidence apart from the trial judge’s findings of fact.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation § 925.
    [2] 24 Am Jur 2d, Divorce and Separation § 925.
    [3] 4 Am Jur 2d, Appeal and Error § 136.
    [4] 24 Am Jur 2d, Divorce and Separation §§ 783, 784.
    Wishes of child as factor in awarding custody. 4 ALR3d 1396.

      4. Parent and Child — Custody — Preference of Child.
    A trial court, in a child custody case, is obliged to consider the reasonable preference of the child; however, in weighing this factor the court should be particularly sensitive to the trauma that a custody proceeding has for a child and, where circumstances so dictate, the court may make a determination based on circumstantial evidence, without forcing the child to make a choice.

      Lance A. Fertig, for defendant.
    Before: D. F. Walsh, P.J., and Bashara and K. B. Glaser, JJ.

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

   Per Curiam.

Defendant appeals as of right from a judgment of divorce entered. on May 2, 1979, which granted plaintiff custody of the parties’ four minor children and divided the marital assets.

On appeal, defendant argues that the trial court abused its discretion by awarding plaintiff property he acquired prior to their 15-year marriage.

The division of property in a divorce action is not governed by any rigid rules or mathematical formula. Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956). The end sought is a fair and equitable distribution under all of the circumstances. Crane v Crane, 17 Mich App 588, 591; 170 NW2d 194 (1969). Although we review divorce cases de novo, we will not substitute our judgment for that of the trial court absent an abuse of discretion. Kurtz v Kurtz, 34 Mich App 34, 35; 190 NW2d 689 (1971). The factors. to be considered include the source of the property, the length of marriage, the needs of the parties, their earning abilities, and the cause of the divorce. Sabourin v Sabourin, 67 Mich App 100, 104; 240 NW2d 284 (1976).

In the instant case, defendant owned a 40-acre farm with a barn and attached aircraft hanger and two acres of other land before the marriage. During their marriage, a house was built on the two acres. Plaintiff did not work regularly during the 15-year marriage, but cared for the children and performed the household chores. During the pendency of the divorce, plaintiff was on public assistance. The trial court awarded plaintiff the new home, a pickup truck, a boat, motor and trailer and certain sums of money. It awarded defendant the farm, farm machinery, car, an airplane, and airplane parts.

Having reviewed the record, we conclude that the trial court did not abuse its discretion by dividing the property in this fashion. The fact that the property on which the new house stands belonged to defendant before the marriage is outweighed by the other factors.

Defendant also argues that the trial court erred in not asking the children their parental preference, and in not following their preference.

During the trial, the court requested an interview with the children and held a 15-minute interview in chambers, making the following comments on the record:

"THE COURT: Let the record reflect that the Court conferred in chambers with Ronald, Suzanne, Timothy and Deborah Patrick and the Court did so considering the best interest of the children and pursuant to the Child Custody Act. The Court is not going to place in the record anything that the. children told the Court but the Court will use that along — use the information it gathered in talking to the children along with other evidence it may find in this case in determining which parent to award custody of the children and the Court does that under (I) of the Custody Act, being MSA 25.312G).”

Later, in its March 13, 1979, opinion on the issues, the court wrote:

"The Court met in chambers with all four children and while it did not request the children to express a preference as to a parent, the Court noted and observed the unexpressed desires of the children with respect to custody. Two of the children are of tender years, 6-1/2 and 3-1/2 years of age respectively, and the Court did not place undue emphasis on their wishes nor will the Court now place the children in a compromising position by indicating their desires as to custody.”

Our review of this issue is limited by MCL .722.28; MSA 25.312(8):

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

However, a reviewing court is obliged to consider a child custody case de novo and appraise the evidence apart from the trial judge’s findings of fact. Bahr v Bahr; 60 Mich App 354, 360; 230 NW2d 430 (1975), Outcalt v Outcalt, 40 Mich App 392; 198 NW2d 779 (1972).

Under MCL 722.23; MSA 25.312(3), a court is obliged to consider "[t]he reasonable preference of the child, if the court deems the child to be of sufficient age to express preference”.

The trial judge did consider the reasonable preferences of the children without putting them in a compromising position by bluntly asking them whether they preferred their mother or their father. This Court has held that the circuit judge should be particularly sensitive to the trauma that a custody proceeding has for a child, because a child is often caught in the middle in a struggle between two parents and forced to choose sides when he doesn’t want to do so. Burghdoff v Burghdoff, 66 Mich App 608, 612-613; 239 NW2d 679 (1976). This factor must be weighed by the trial judge in determining what approach to take. We see no reason, where all the circumstances so dictate, why the judge should not make his determination based on circumstantial evidence as he did here.

We conclude that the trial court did not find facts against the great weight of the evidence, commit a palpable abuse of discretion or a clear legal error on a major issue.

Affirmed. Costs to appellee.


text:
    PEOPLE v ARMSTRONG
    Docket No. 46102.
    Submitted June 18, 1980, at Detroit.
    Decided July 24, 1980.
    John A. Armstrong was charged with burning a dwelling house in the Monroe Circuit Court. After negotiations, the prosecutor agreed to reduce the charge to attempted burning of a dwelling house and to recommend probation in exchange for defendant’s nolo contendere plea. At the plea-taking, the court informed defendant that the prosecutor’s recommendation was not binding on the court and the defendant acknowledged his understanding. The court, James J. Kelley, J., accepted the plea and found defendant guilty. At sentencing, the court advised defendant that he had the right to request to withdraw his plea. Defendant requested the court to proceed with sentencing, and he was sentenced to 3-1/3 to 5 years. Defendant appeals. Held: '
    1. A sentence agreement between the prosecutor and defendant amounts to nothing more than a- sentence recommendation and is not binding on the court, and the judge, in accepting a negotiated plea, should so advise the defendant. The judge did this.
    2. The Court of Appeals will not substitute its judgment for that of a trial court in reviewing a defendant’s sentence. The sentence was within the limits of the statute and proper.
    Affirmed.
    1. Criminal Law — Plea of Guilty — Plea Bargains — Sentencing.
    A sentence agreement between the prosecutor and defendant amounts to nothing more than a sentence recommendation and is not binding on the court; a judge, in accepting a negotiated plea, should advise the defendant that this is the case.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 487.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [2] 5 Am Jur 2d, Appeal and Error § 818.

      2. Appeal — Criminal Law — Sentence.
    The Court of Appeals will not substitute its judgment for that of a trial court in reviewing a defendant’s sentence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Mitchell H. Nelson, Assistant Prosecuting Attorney, for the people.

      James Krogsrud, Assistant State Appellate Defender, and John Nussbaumer, Research Attorney, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and Cynar and J. E. Townsend, JJ.

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

   Per Curiam.

Defendant pled guilty to attempted burning of a dwelling house in violation of MCL 750.92 and 750.72; MSA 28.287 and 28.267. He was sentenced to imprisonment for 3-1/3 to 5 years and claims this appeal as a matter of right under GCR 1963, 806.1.

Defendant was originally charged with burning a dwelling house, MCL 750.72; MSA 28.267. After plea negotiations, the prosecutor agreed to reduce the charge to attempted burning and to recommend probation in exchange for defendant’s nolo contendere plea to the reduced charge. At the proceeding upon the plea, the plea-taking court informed the defendant that the prosecutor’s recommendation of probation was not binding and that the sentence could be as much as five years in prison. At the same hearing, the court further stated that it had not agreed with anyone as to what the sentence would be and asked defendant if he was aware of that. Defendant indicated that he understood, whereupon the court accepted the tendered plea.

At sentencing, defendant was advised thát he had the right to ask the judge to allow him to withdraw his plea. Defendant indicated that he understood his rights, that he did not wish to withdraw his plea, but wished to go forward with sentencing. The court sentenced defendant to 3-1/3 to 5 years in prison.

Defendant challenges his conviction on three fronts. First, he argues that the prosecution did not fulfill its promise to recommend probation. Defendant’s plea was certainly influenced by the prosecution’s promises to dismiss the principal charge, allow the guilty plea to a lesser offense, and recommend probation thereon. We have reviewed the guilty plea transcript to find that the prosecutor fulfilled all of his promises to defendant. The defendant knew the direct consequences of his guilty plea, including the actual value of any commitments made to him. In fact, the trial court acknowledged its awareness of the prosecutor’s recommendation when it advised the defendant that such recommendation would not necessarily be binding upon the court. In light of such, we find defendant’s contention that the prosecutor did not fulfill his promise to recommend probation unsupported. Cf. People v Huizar, 89 Mich App 224; 280 NW2d 494 (1979).

Secondly, defendant contends that when the judge decided to reject the prosecutor’s recommendation of probation, he should have specifically informed the defendant that he was rejecting the recommendation and that he intended to sentence the defendant to prison, and should have then offered the defendant the opportunity to withdraw his plea. It should be noted that the judge, on two separate occasions, advised the defendant that he was not bound by the prosecutor’s sentencing recommendations. Defendant indicated he understood, then entered his plea. After the second apprisal, the court gave defendant an opportunity to request to withdraw his plea. He declined, indicating his desire to proceed to sentencing.

According to Judge Cynar’s concurrence in People v Hagewood, 88 Mich App 35; 276 NW2d 585 (1979), because a defendant may have been misled into believing the prosecution’s recommendation was binding, the judge should inform defendant that this is not the case. Id., 39. We agree that fairness demands this standard and find that this standard was adhered to in the case before us. Here, the judge clearly informed defendant that the recommendation was not binding, and the defendant still made no motion to withdraw. We, therefore, hold that defendant’s second contention of error is without merit.

As to defendant’s third allegation, that review of sentencing should be the duty of this Court, the law is that the Court of Appeals will not substitute its judgment for that of the circuit court. People v Hall, 399 Mich 288; 249 NW2d 62 (1976), reh den 400 Mich 952 (1977). While we might not have pronounced so harsh a sentence on defendant, the sentence given defendant was within the minimum and maximum bounds for the crime to which he pled guilty. As such there was no error in the sentence of the circuit court. If it be the duty of the Court of Appeals to review sentencing of the circuit court, as has often been suggested, see ABA Standards, § 1.1(a), p 7, (approved draft, 1968), we feel this should be the determination of the Legislature and not of the judiciary.

Because we find no error in either the plea bargaining or the sentencing procedures, the judgment of the circuit court is affirmed.

       According to the presentence report, the prosecutor lived up to his bargain in recommending probation.

       At present appellate courts are not sentence review boards. "A sentence within the legislatively set limits is not open to appellate addition or diminution.” People v Webb, 75 Mich App 494, 502; 255 NW2d 661 (1977).


text:
    PEOPLE v GORDON
    Docket No. 46168.
    Submitted May 14, 1980, at Marquette.
    Decided July 24, 1980.
    Tommy Gordon was convicted of armed robbery and felony-firearm in Recorder’s Court of Detroit, George W. Crockett, III, J. Defendant appeals, alleging that the trial court erred in instructing the jury concerning an indorsed but unproduced res gestae witness. The trial court ruled that the prosecutor failed to exercise due diligence in producing the res gestae witness but proceeded to instruct the jury pursuant to the criminal jury-instructions that they should determine whether the prosecutor exercised due diligence in producing the witness. Held:

    1. The Michigan standard criminal jury instruction concerning whether the prosecuting attorney used due diligence in producing an indorsed res gestae witness is disapproved since it authorizes the trial court to submit the question of due diligence of the prosecutor to the jury. Such a determination must be made by the court on the record.
    2. A jury should be instructed that it may infer that a missing witness’s testimony would have been unfavorable to the prosecutor’s case where the trial court has determined that the prosecuting attorney failed to use due diligence to produce an indorsed res gestae witness.
    3. The key in determining whether error regarding res gestae procedures requires reversal of a defendant’s conviction is whether the error resulted in prejudice to the defendant.
    Remanded with instructions.
    1. Witnesses — Criminal Law — Res Gestae — Nonproduction — Jury Instructions.
    The Michigan standard criminal jury instruction concerning whether the prosecuting attorney used due diligence in producing an indorsed res gestae witness is disapproved since it _authorizes the trial court to submit the question of due diligence of the prosecutor to the jury; such a determination must be made by the court on the record (CJI 5:2:14).

      References for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence § 180.
    75 Am Jur 2d, Trial § 771.
    [3] 5 Am Jur 2d, Appeal and Error § 776 et seq.

      2. Jury — Jury Instructions — Witnesses — Res Gestae.
    A jury should be instructed that it may infer that a missing witness’s testimony would have been unfavorable to the prosecutor’s case where the trial court has determined that the prosecuting attorney failed to use due diligence to produce an indorsed res gestae witness.
    3. Witnesses — Res Gestae — Error — Prejudice.
    The key in determining whether error regarding res gestae procedures requires reversal of a defendant’s conviction is whether the error resulted in prejudice to the defendant.

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

      Monsey G. Wilson, for defendant on appeal.
    Before: Mackenzie, P.J., and Bronson and Allen, JJ.
   Per Curiam.

Defendant was bound over for trial on two counts of armed robbery, MCL 750.529; MSA 28.797, one count of assault with intent to rob being armed, MCL 750.89; MSA 28.284, and one count under the felony-firearm statute, MCL 750.227b; MSA 28.424(2). After a jury trial he was convicted on one of the armed robbery counts and on the felony-firearm count and was acquitted of the remaining charges. He was sentenced to a prison term of from 5-1/2 to 15 years on the armed robbery conviction, and to the mandatory two-year consecutive sentence on the felony-firearm conviction. Defendant now appeals by right.

On appeal, defendant’s sole assignment of error concerns the trial court’s instruction on an indorsed but unproduced res gestae witness. During the course of trial, the prosecution and defense counsel stipulated to the nonproduction of several res gestae witnesses. Defense counsel refused, however, to waive the production of Livia Suffredni. It appears that Ms. Suffredni was present during the armed robbery but was unable to identify the defendant as having been there at the time. It further appears that she was present at a live show-up at which defendant was present, but was unable to identify the defendant.

The prosecution then attempted to explain its efforts in producing the witness, and the trial court held a hearing on the issue of the prosecution’s exercise of due diligence at which Sergeant Wilbur Christopher, the officer in charge of the case, was the only witness. The testimony indicated that a subpoena had been prepared but there was no return of service or testimony to indicate it was ever served on Suffredni. Sergeant Christopher testified that he had spoken with both Suffredni and her mother on the telephone about a week or a week and a half prior to the hearing at which time Suffredni was informed of the date of trial. Suffredni reportedly informed the officer that she could not attend the trial because she would be on a class trip to Florida. Sergeant Christopher did not know whether a subpoena had been issued at the time he spoke with Suffredni and her mother. The assistant prosecuting attorney present at the hearing indicated that on the Friday prior to trial he attempted to secure an arrest warrant for Suffredni in order to secure her presence at trial, but that the warrant was denied. The trial court speculated that the warrant was denied because there was nothing to show she had been served with a subpoena. Based on this testimony, the trial court ruled that due diligence had not been demonstrated, and that it would instruct the jury concerning the nonproduction of a res gestae witness.

Despite the fact that the trial court had specifically found a lack of due diligence, it instructed the jury as follows:

"Livia Suffredni is a witness who may have some personal knowledge of the crimes charged, and who might have been able to assist you in determining the outcome of this case. The law requires that the Prosecution make reasonable efforts to produce such witnesses for their testimony.
"This duty is placed on the Prosecutor to insure that all facts and information relative to the alleged crimes are available in court for you, the jury, to hear and judge.
"If you find that the Prosecutor has failed to use due diligence and good faith to produce this witness, Livia Suffredni, then you may infer that this witness’ testimony would have been unfavorable to the Prosecutor’s case.
"However, if you find that the Prosecutor did exercise due diligence and good faith, and that this satisfies your standards of reasonableness under the circumstances, then you are to determine the case from the testimony which has been offered.”

Defense counsel specifically objected to this instruction on the basis that it asked the jury to make a finding on the issue of due diligence even though the trial court had already found a lack of due diligence. The trial court reaffirmed its finding regarding due diligence, but indicated that the instruction given was from the Criminal Jury Instructions.

It is true that the trial court’s instruction is identical to CJI 5:2:14. The prosecution argues on appeal that this instruction was, accordingly, proper and that submission of the question of due diligence to the jury is an appropriate alternative to a determination by the court. The prosecution cites several cases in this regard, although they do not address the issue of whether submission of this issue to the jury is appropriate when it has already been decided by the trial court. They also do not address the question of whether such an approach is proper where, as here, the jury has heard no testimony on the issue.

The key to our decision, however, is much more simply found in the Supreme Court’s decision in People v Willie Pearson, 404 Mich 698; 273 NW2d 856 (1979), decided just over four months before the trial of the instant case. In Pearson, the Supreme Court specifically disapproved CJI 5:2:14 to the extent that it authorized the trial court to submit the question of due diligence to the jury:

"Standard Criminal Jury Instruction 5:2:14 allows the judge to submit the issue of due diligence to the jury. We believe that this procedure should not be utilized. Such a determination is essential to resolve cases where the missing witness is a res gestae witness and there is a guilty verdict. Because the jury would not ordinarily disclose its decision on the issue, we believe that the court must hold the hearing, make a record and state its determination of the issue so that the parties and the court may know whether due diligence was exercised and the reasons for this finding.” People v Pearson, supra, 722, fn 6.

See People v Austin, 95 Mich App 662; 291 NW2d 160 (1980). Under Pearson, in a case such as the one presently before us where the trial court finds a lack of due diligence, the jury should be instructed pursuant to the second half of CJI 5:2:14(3) that it may infer that the missing "witness’s testimony would have been unfavorable to the prosecutor’s case”. Then, if the jury returns a guilty verdict, the defendant may seek a new trial on the grounds that he or she was prejudiced by the nonproduction of the witness. People v Pearson, supra, 722. It is for this reason that it is important that the court, rather than the jury, decide the issue of due diligence, if the issue were submitted to the jury and a guilty verdict returned, the defendant could not automatically seek a new trial based on prejudicial nonproduction, as the question of prejudice is not reached unless a lack of due diligence is found and as the jury’s verdict would not reveal its finding on that point.

In the instant case, the trial court should not have instructed the jury to determine whether due diligence had been shown. This procedure had been specifically disapproved well before the trial in the instant case. Furthermore, the instruction would have been erroneous under the pr e-Pearson standard as well. While the old rule allowed the trial court to submit this question to the jury as an alternative to its own determination of the issue, it did not authorize the use of both procedures. Although the error is clear, the question of remedy is more troublesome as the facts of this case do not clearly fit within the various scenarios addressed in Pearson. Pearson does emphasize, however, that the key to determining whether error regarding res gestae procedures requires reversal is whether the error resulted in prejudice to the defendant. Accordingly, we believe that the most appropriate remedy is to remand for a hearing pursuant to Pearson on the issue of whether defendant suffered prejudice from Suffredni’s non-production:

"[T]he prosecutor shall have 30 days to seek a hearing to determine the existence of prejudice. The Court of Appeals shall be deemed to have retained jurisdiction to review the hearing record upon application of either party within 30 days of the entry of the judge’s order. Should the prosecutor fail to seek a post-remand hearing, within 30 days, the conviction shall be deemed vacated and the prosecutor may proceed with a new trial.” Pearson, supra, 723-724.

The existence of prejudice should be determined in accordance with the standard set out in People v Pearson, supra, 724-726.

Remanded.

       The prosecution indicated that the subpoena had been left at Suffredni’s house with her brother, although there was no documentation or sworn testimony to substantiate this fact.

       The discussion between the trial court and defense counsel was as follows:
      "MR. BRAND [defense counsel]: Your Honor, on the Court’s instruction as to the missing witness, Livia Suffredni, the Court instructed that the jury, in essence, must determine whether or not there is due diligence, and I believe that is a standard that has to be determined by the Court and not by the jury.
      "THE COURT: The Court did determine there was no due diligence; that’s why I gave the instruction to the jury.
      "MR. BRAND: I believe the instruction that the Court gave to the jury was, in essence, that the jury must determine if there is due diligence, and if the jury determines there was not due diligence that they may find that the testimony of that witness would be unfavorable to the Prosecution.
      "THE COURT: That’s correct.
      "MR. BRAND: I believe, as I said before, that duty is on the Court and not on the jury.
      "THE COURT: All right. At the risk of repeating myself, I found that there was no due diligence established by the Prosecution in obtaining Livia Suffredni, and for that reason I gave that res gestae instruction to the jury. I told you as well as the Prosecutor that that instruction would be given from the criminal jury instructions and I asked you on at least two occasions if there were any special requests to charge or anything further that you wished given to the jury. You made no response then, and you are making one in an untimely fashion now as far as this Court is concerned, and your objection is noted.”
      We believe the objection was sufficient to preserve this issue for review. Any error could have been cured by a subsequent instruction before the jury began their deliberations.

        People v Eugene Harris, 43 Mich App 531; 204 NW2d 549 (1972), People v Stephen, 31 Mich App 604; 188 NW2d 105 (1971), lv den 384 Mich 843 (1971), People v Howard, 24 Mich App 328; 180 NW2d 203 (1970). See also, People v Dixon, 46 Mich App 754; 208 NW2d 535 (1973), People v Kern, 6 Mich App 406; 149 NW2d 216 (1969).


text:
    PEOPLE v McDONALD
    Docket No. 46231.
    Submitted May 14, 1980, at Marquette.
    Decided July 24, 1980.
    Meco McDonald was convicted of assault with intent to rob while armed and was placed on probation. The Recorder’s Court of Detroit, Donald L. Hobson, J., subsequently revoked his probation on his failure to report to his probation officer. He appeals by leave granted, alleging that the trial court’s failure to consider a presentence report before imposing sentence requires resentencing. Held:

    Use of presentence reports is mandatory in felony cases, and resentencing is required where the record does not disclose that such a report was prepared and consulted by the trial court.
    Remanded for sentencing.
    1. Criminal Law — Presentence Reports — Mandatory Nature — Statutes — Criminal Procedure.
    Presentence reports regarding a defendant accused of committing a felony must be considered by a trial court prior to sentencing (MCL 771.14; MSA 28.1144).
    2. Criminal Law — Presentence Reports — Waiver — Resentence — Criminal Procedure.
    Production of presentence reports in felony cases may not be waived even if all parties agree, and resentencing is required where the record does not disclose that a presentence report was prepared and consulted.
    3. Criminal Law — Presentence Reports — Subsequent Proceedings — Necessity to Update — Criminal Procedure.
    Consultation by a trial court of a presentence report regarding a particular defendant during a previous hearing on a separate matter does not satisfy the requirement of consulting a reasonably updated presentence report during subsequent proceedings involving the same defendant.
    Reference for Points in Headnotes
    [1, 2, 3] 21 Am Jur 2d, Criminal Law § 527.

      Frank J. Kelley, Attorney General, Robert A, Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

      James W. McGinnis, for defendant on appeal.
    Before: Mackenzie, P.J., and Bronson and Allen, JJ.
   Per Curiam.

Defendant was convicted on his plea of guilty on April 21, 1975, to a charge of assault with intent to rob while armed, MCL 750.89; MSA 28.284. On April 25, 1975, he was sentenced to a five-year period of probation, the first six months to be spent in the Detroit House of Correction. On May 4, 1978, defendant pled guilty to violating the terms of his probation by admitting he had not paid certain court costs and that he had not obtained a high school diploma. He was then sentenced to a prison term of from 5 to 15 years. Defendant then brought a motion to set aside the violation of probation and vacate the sentence imposed, which was granted by the trial court on August 28, 1978, and defendant was restored to his probation. On December 14, 1978, a second notice of probation violation was filed, alleging a failure to report since September 27,1978. Defendant pled not guilty, but after a hearing held on April 30, 1979, defendant was found in violation of his probation. On May 3, 1979, he was again sentenced to a prison term of from 5 to 15 years. Defendant’s claim of appeal to this Court was not timely but was treated as an application for delayed appeal and granted.

Defendant attacks only his sentence on appeal. He argues that he must be resentenced because the trial court failed to consider a presentence report. We agree. The record of defendant’s sentencing on May 3, 1979, reveals no mention of a presentence report. Such reports are mandatory in this state in felony cases. MCL 771.14; MSA 28.1144. Use of the report serves the announced policy of individualizing criminal punishment in an informed manner. People v Lee, 391 Mich 618; 218 NW2d 655 (1974), People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973). They are considered so important a tool in the exercise of the trial court’s sentencing discretion that production may not be waived even if all parties agree. People v Brown, 393 Mich 174, 181; 224 NW2d 38 (1974). Given the preeminent position of the presentence report in Michigan criminal procedure, resentencing is required where the record does not disclose that, a presentence report was prepared and consulted.

The prosecution argues that no error occurred because the record of defendant’s May 4, 1978, sentencing discloses that a presentence report was considered at that time. The prosecution ignores the fact, however, that the probation violation and sentence arising out of the May 4, 1978, proceedings were later set aside. Defendant is clearly challenging his May 3, 1979, sentence which arose out of a second probation violation based on different grounds than the first. The fact that the trial court had consulted a presentence report during a hearing on a separate matter held a year before does not excuse the failure to consult such a report during the proceedings presently before this Court.

The prosecution’s reference to the May 4, 1978, sentencing proceedings brings to light another rule regarding presentence reports that is applicable to the instant case. In People v Triplett, 407 Mich 510; 287 NW2d 165 (1980), the Supreme Court held that a "reasonably updated” presentence report is required. Twice during the proceedings on May 4, 1978, the trial court characterized the presentence report before it as "old”. Although not clearly stated, it is reasonable to infer that the report used in 1978 had been prepared for defendant’s original sentencing in 1975. At resentencing, the trial court shall consider a "reasonably updated” presentence report.

Remanded for resentencing. We do not retain jurisdiction.


text:
    PEOPLE v HASSENFRATZ
    Docket No. 47690.
    Submitted June 17, 1980, at Lansing.
    Decided July 24, 1980.
    Herbert Hassenfratz was charged with possession of a "billy”. The Washtenaw Circuit Court, Roy J. Daniel, J., granted the defendant’s motion to quash the information and dismissed the charge. The people appeal. The issue on appeal is whether or not the instrument found in the defendant’s vehicle, fashioned of wood, approximately 24 inches long and resembling a policeman’s nightstick, is a "billy” within the meaning of the statute which prohibits possession of a billy. Held:

    ‘ The term “billy” refers to a smaller type of bludgeon than the instrument in question here. The instrument found in defendant’s possession is not a "billy” within the meaning of the statute.
    Affirmed.
    1. Statutes — Construction op Statutes — Express Mention — Exclusion.
    Generally, where the Legislature lists items in a statute, the express mention of one thing implies the exclusion of other similar things.
    2. Criminal Law — Statutes — Words and Phrases — Billy.
    An instrument similar to a policeman’s nightstick and approximately 24 inches in length is not a "billy” within the meaning of the statute which prohibits the possession of a "billy” (MCL 750.224; MSA 28.421).
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 314, 316.
    [2] 79 Am Jur 2d, Weapons § 1.

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

      Josephson, Fink, Sedo & Darnton, for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and J. H. Piercey, JJ.

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

   Per Curiam.

Defendant was charged with possession of a "Billy, to-wit: a billy club”. MCL 750.224; MSA 28.421. The circuit court granted defendant’s motion to quash and plaintiff appeals as of right.

The facts indicate that defendant was stopped for a routine traffic violation when a police officer standing beside defendant’s vehicle observed an instrument located behind the passenger seat. The officer concluded that the instrument was a "nightstick” or "billy club” and arrested defendant for possession thereof.

At the conclusion of the preliminary examination, the district court concluded that the instrument taken from defendant’s vehicle had all the characteristics of the "classic billy”, which was a common instrument possessed by police officers many years ago. Probable cause was therefore found to bind defendant over for trial. We are now asked to determine whether the instrument seized is a "billy” within the meaning of the statute.

MCL 750.224; MSA 28.421 states in pertinent part:

"A person who shall manufacture, sell, offer for sale, or possess a machine gun or firearm which shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger, a muffler, silencer, or device for deadening or muffling the sound of a discharged firearm, a bomb or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, bludgeon or gas ejecting device, weapon, cartridge, container, or contrivance designed or equipped for or capable of ejecting gas which will either temporarily or permanently disable, incapacitate, injure or harm a person with whom it comes in contact, shall be guilty of a felony, and shall be imprisoned for not more than 5 years, or be fined not more than $2,500.00, or both.”

While the term "billy” is not defined under Michigan law we wish to emphasize that the statute is very specific and lists the items which are illegal to possess. Also, where the Legislature lists items in a statute, it is the general rule that express mention of one thing implies the exclusion of other similar things. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971).

In the instant case, the arresting officer used the words "nightstick”, "military dress stick”, "billy club” and "billy” interchangeably. Additionally, he admitted that the instrument possessed by defendant was similar to nightsticks he had seen at police equipment stores that were more for dress or parade purposes. Defendant’s expert defined "billy club” as possessing certain distinguishing characteristics and being not longer than 15 inches. He also testified that "nightstick”, "police baton” and "billy club” referred to different instruments depending upon their characteristics, especially length. We find support for the distinguishing characteristic in length in Black’s Law Dictionary (4th ed), p 213, which defines "billy” as a small bludgeon that may be carried in the pocket.

While we do not say that 15 inches is the magic length in determining whether or not an instrument is a "billy” we do conclude that the instrument seized from defendant’s vehicle, which was approximately 24 inches long, was not a "billy” within the meaning of the statute and, therefore, the circuit court did not err in granting defendant’s motion to quash.

Affirmed.


text:
    MADAJSKI v BAY COUNTY DEPARTMENT OF PUBLIC WORKS
    Docket No. 48446.
    Submitted May 14, 1980, at Marquette.
    Decided July 24, 1980.
    Arthur Madajski brought suit against Bay County Department of Public Works, Lanzo Construction Co., Edmands Engineering, Inc., Bay County Drain Commissioner, Michigan State Highway Commission and the Board of County Road Commissioners of the County of Bay alleging that the closing of the state trunk-line on which his business is situated 1) constituted a nuisance, 2) amounted to a trespass, and 3) constituted inverse condemnation resulting in damage to his business. Defendant County Board moved for accelerated judgment claiming immunity from liability pursuant to statute. Bay Circuit Court, Ira W. Butter-field, J., entered accelerated judgment in favor of defendant County Board. Plaintiff appeals. Held:

    Plaintiffs allegations of injury and losses which stemmed from the negligent acts of defendant County Board are insufficient to withstand dismissal by accelerated judgment. However, his complaint also sets forth affirmative acts which, when liberally construed, present a question of fact as to whether an intentional nuisance was committed, which must be decided at trial.
    Reversed and remanded.
    1. Highways — Negligence — Counties — State — Liability — Immunity.
    Counties contracting with the state to maintain trunk line highways are not liable for negligent acts committed in the construction, maintenance or improvement of said trunk lines; liability, if any, falls upon the State Highway Department.
    2. Nuisance — Intentional Nuisance — Governmental Immunity — Counties — Statutes.
    Intentionally created nuisances override the statutory defense of immunity for governmental agencies and bar the immunity given counties by statute (MCL 250.61; MSA 9.901).
    Reference for Points in Headnotes
    [1-3] 39 Am Jur 2d, Highways and Streets §§ 104, 341-346.

      3. Nuisance — Question of Fact — Complaint — Liberal Construction.
    A complaint should be liberally construed, and whether or not an intentional nuisance was committed by a county road commission in the construction of a highway is a question of fact and does not turn on the terms employed in the complaint.

      Dwan & Schmidt, P.C., for plaintiff.

      Learman, Peters & Sarow (by John J. Mc-Quillan), for defendant Board of County Road Commissioners of County of Bay.
    Before: Mackenzie, P.J., and Bronson and Allen, JJ.
   Per Curiam.

Does the immunity from liability given a county road commission by MCL 250.61; MSA 9.901, for deficiencies in the maintenance of that portion of a state trunk line highway which the county road commission has contracted with the Michigan State Highway Commission to maintain, extend to deficiencies which constitute a nuisance, trespass, or condemnation of property? On November 5, 1979, this question of first impression was answered in the affirmative by the trial court which, on that date, entered a final order granting judgment in favor of defendant Board of County Road Commissioners of Bay County on its motion for accelerated judgment. From that order, plaintiff appeals of right.

Plaintiff is the owner and operator of a place of business located on North Euclid Road between Beaver Road and Lauria Avenue in Bay County. That portion of North Euclid Road is part of the state trunkline system, commonly known as M-247. It is maintained by the defendant Board of County Road Commissioners (County Board) under a maintenance contract between it and the Michigan State Highway Commission pursuant to statutory authority in MCL 250.62; MSA 9.902. On or about February 20, 1979, North Euclid Road between Beaver Road and Lauria Avenue was closed for the installation of a sewer line. According to plaintiffs bill of complaint, the closing was to be for eight weeks for through traffic only, during which period plaintiff could carry on his business. Signs advising the public of this fact and how to proceed to plaintiffs place of business were to be installed by defendant County Board.

The bill of complaint proceeds to allege: that signs indicating access to plaintiffs business were not erected, were improperly removed, or were so situated as to advise inadequately the public that the roadway was open to business traffic; that access to plaintiffs business was blocked by vehicles of the defendant contractor and was also blocked by deposits of dirt upon the driveway and parking lot of plaintiffs business; that use of North Euclid Avenue was seriously impaired by destruction of the roadway; that plaintiff had complained to defendants but defendants "have failed to remedy plaintiffs access problems”; that a drain which runs along the southern boundary of plaintiffs business was blocked by defendant Lanzo Construction Company, causing flooding of plaintiffs premises; that defendants Edmands Engineering, Inc., the State Highway Commission, and the County Board failed to inspect and maintain the roadway and maintain access through the roadway to plaintiffs business.

Plaintiffs bill of complaint alleged that the several acts recited above (1) constituted a nuisance, (2) amounted to a trespass, and (3) constituted inverse condemnation, causing damage to plaintiffs business for which plaintiff should be compensated in the amount of $10,000. In response to these claims, the County Board moved for accelerated judgment on grounds that, although it had accepted control of M-247, it was relieved of all liability by reason of MCL 250.61; MSA 9.901. That statute reads:

"On and after January 1, 1960, the cost of constructing, improving and maintaining trunk line highways shall be met entirely by the state, and the counties, townships and incorporated cities and villages shall thereafter be relieved of all expenses and legal liabilities in connection therewith as imposed by section 21 of chapter 4 and chapter 22 of Act No. 283 of the Public Acts of 1909, as amended, being section 224.21 and sections 242.1 to 242.8 of the Compiled Laws of 1948.” (As amended PA 1959, No. 185, § 1, effective January 1, I960.)

In response to this motion, plaintiff argued that, while the statute granted immunity for the negligent acts of a county road commission, it did not go so far as to extend immunity for nuisances, trespass, or inverse condemnation. The motion was argued before the trial court in September, 1979, and granted. A motion for reconsideration was heard by the trial court on November 5, 1979, which, on the same day, reaffirmed the September decision and entered accelerated judgment in favor of defendant County Board.

Our courts have uniformly held that counties, contracting with the state to maintain trunk line highways, are not liable for negligent acts committed in the construction, maintenance, or improvement of said trunk lines.

"A county is apparently free to contract with the state in order to perform the state’s obligations and at the same time to be free of liability for its negligent acts. This removes the county from any requirement of accounting to those injured by its negligent acts while undergoing a contracted-for operation. However, our Court has held the county is, by statute, excused from any liability.” Robinson v Emmet County Road Comm, 72 Mich App 623, 631; 251 NW2d 90 (1976).

Liability, if any, falls upon the State Highway Department.

"This, of course, does not leave plaintiffs without a remedy, since they can continue their action against the proper defendant, the State Highway Department. While at first blush it seems odd that the state must answer for the omission of a local unit of government, it must be remembered that if local units of government were not absolved of liability with respect to maintenance of state trunkline highways, local units of government would be less willing to undertake the responsibility of said maintenance on behalf of the state.” Bennett v City of Lansing, 52 Mich App 289, 295-296; 217 NW2d 54 (1974).

Thus, to the extent that plaintiffs injury and losses stemmed from the negligent acts of defendant County Board, the County Board is immune from liability.

But does this immunity vanish when, as in the instant case, plaintiff alleges the acts complained of constitute a nuisance, intentional trespass, or condemnation? No Michigan case has addressed the question, and, at the time of the trial court’s ruling, such authority as did exist by analogy was unsettled. In Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), the Supreme Court was asked to determine whether a statute granting state agencies immunity from tort liability, where the agency is engaged in a governmental function, includes immunity if the acts complained of constituted a nuisance. Three justices indicated, on the basis of prior case law, that a government agency is liable for the creation of a nuisance, even if negligence, and not intentional action, is the cause of the nuisance. Two other justices, concurring with the result of the Court, stated that a government agency is liable for the creation of a nuisance only where the creation of the nuisance was intentional. The justices defined "intentional nuisances” broadly to include situations where the government agency intended only to bring about the conditions which are in fact found to be a nuisance. Though a majority of the Supreme Court have still not agreed that negligently created nuisances override the statutory defense of immunity, recent decisions clearly hold that intentionally created nuisances do so. Affiliated FM Ins Co v Dep’t of State Highways & Transportation, 86 Mich App 203, 210; 272 NW2d 239 (1978), Taggie v Dep’t of Natural Resources, 87 Mich App 752, 754; 276 NW2d 485 (1979), Daugherty v State of Michigan, 91 Mich App 658, 664; 283 NW2d 825 (1979). True, Rosario and the cases cited subsequent thereto have all been directed to the immunity conferred by MCL 691.1407; MSA 3.996(107) and do not address the specific immunity granted counties under MCL 250.61; MSA 9.901. But it would appear illogical and confusing if this Court were to hold that intentionally created nuisances would be a bar to immunity granted as to state agencies but would not be a bar as to county road commissions, which are also state agencies. Further, except for the unit of government upon which immunity is conferred, we find no basic difference in the two statutes. Accordingly, we opine that an intentionally created nuisance is a bar to the immunity given counties under MCL 250.61; MSA 9.901.

We now turn to the question of whether plaintiff’s bill of complaint sufficiently alleges an intentionally created nuisance, trespass, or condemnation. If plaintiff’s complaint does so, the trial court’s grant of summary judgment for the County Board must be reversed. Justice Moody, in Rosario, supra, 143, spoke to the sufficiency of a bill of complaint’s allegations of nuisance as follows:

"The terms 'neglected’ and 'failed’ allege negligent activity. However, liberally construed, the underscored language pleads more than negligence on the part of the City of Lansing. The word 'refused’ denotes more than a 'want of care in maintenance’ or neglect. In this context, 'refused’ describes an alleged deliberate act by the governmental agency to create the complained-of condition.” _

Though the bulk of plaintiff’s allegations sound in negligence, viz.: the failure to adequately sign, the failure to remove dirt or vehicles blocking entryway to plaintiff’s business, the complaint also sets forth affirmative acts,' viz.: destruction of the roadway, blocking passage by parked vehicles, dumping of dirt and debris. Additionally, paragraphs 15 and 19 of the complaint allege that plaintiff complained to the several defendants of the acts complained of but nothing was done. Cases subsequent to Rosario hold that a bill of complaint should be liberally construed, Taggie, supra, 755, and that whether an intentional nuisance was committed or not is a question of fact, Ford v City of Detroit, 91 Mich App 333, 336; 283 NW2d 739 (1979).

Application of the current case law to the instant case compels us to conclude that the bill of complaint is sufficient to withstand dismissal by accelerated judgment. Whether the complaint can be factually supported is a question of fact to be decided at trial. While it now appears that the defense of immunity can be overridden for purposes of pleading, plaintiff must still carry the burden of proof at trial that the conditions complained of were a nuisance in fact and that said nuisance was intentionally created. Finally, we are the first to acknowledge that when the trial court ruled in this case, the court was without benefit of the decisions clarifying Rosario.

Reversed and remanded for trial in accordance with this opinion. No costs, a public question being involved.

       Sections 242.1 through 242.8 of the Compiled Laws of 1948 have been repealed, effective July 1, 1965, and replaced by MCL 691.1401 et seq.; MSA 3.996(101) et seq.

       Though the Board of County Road Commissioners was dismissed from the suit, dismissal was not granted to the remaining five named defendants. Remaining defendants are not parties to this appeal.

        Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), were decided in July 1978, but no opinion in either case was signed by a majority of justices.

       "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” MCL 691.1407; MSA 3.996(107) (Emphasis supplied.)

       We reject any claim that the statutes substantially differ because one specifically states "shall be immune from tort liability” and the other does not. MCL 250.61; MSA 9.901 relieves the counties from liability "as imposed by sections 242.1 to 242.8”. Since those sections impose liability for neglect in failing to keep highways in a reasonable repair, the liability imposed is only for negligent actions. Thus, the counties are only relieved from liability arising from their negligent actions and not from their intentional actions.