text:
    PEOPLE v FRAZIER
    Docket No. 78-833.
    Submitted January 2, 1980, at Detroit.
    Decided February 21, 1980.
    Phillip Frazier and a codefendant, Larry Thomason, were convicted of the delivery of phencyclidine, Wayne Circuit Court, John R. Kirwan, J. Frazier appeals. On appeal, defendant contends that he was denied a fair trial because, on three separate occasions, highly prejudicial evidentiary matters were heard by the jury, that a defendant witness was improperly impeached through extrinsic testimony and that the prosecutor failed to produce an indorsed witness for trial. Held:

    1. Defendant claims that repeated references to phencyclidine as a narcotic by several prosecution witnesses despite numerous objections and continuing instructions to avoid the word narcotic when referring to phencyclidine were highly prejudicial. The use of the word narcotic during the course of a controlled substance trial is not overly prejudicial even though it is not perfectly accurate. Any error arising from its use would be harmless beyond a reasonable doubt.
    2. Discussion of the physical characteristics of phencyclidine before the jury by two prosecution witnesses did not prejudice defendant’s right to a fair trial because there was a sufficient reason to admit this type of testimony. Whether phencyclidine was a narcotic was a controversial trial issue and any evidence to clarify this point and minimize jury confusion would be admissible to explain the properties and effects of the use of phencyclidine.
    3. An undercover deputy who purchased phencyclidine from defendant testified that defendant was sitting at the kitchen table explaining that this was the same stuff that he had purchased before, that defendant was just telling him that the weights were good and it would be thirty-seven hundred dollars. Defendant contends that this testimony wrongfully placed before the court a prior sale by the defendant to this deputy. The testimony was quite ambiguous. Furthermore, defense counsel failed to object and it is likely that a cautionary instruction by the court would have cured any error.

      . References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and-Error §§ 808, 809.
    [2] 31 Am Jur 2d, Expert and Opinion Evidence § 18.
    [3] 75 Am Jur 2d, Trial §§ 166, 682.
    5 Am Jur 2d, Appeal and Error § 601.
    [4] 81 Am Jur 2d, Witnesses §§ 612, 613.
    [5] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    81 Am Jur 2d, Witnesses § 2.

      4. The trial court did not violate the rule that a witness cannot be impeached on a collateral matter with extrinsic evidence. The witness volunteered the assertion that no phencyclidine was found in a search of his house. Therefore, the prosecutor did not first elicit a response to a question and then seek to rebut it by the use of extrinsic evidence. Furthermore, this impeachment was not on a collateral matter; the existence of phencyclidine in the witness’s residence shortly after defendant’s arrest was probative of the issue of defendant’s guilt of delivery of phencyclidine.
    5. The record shows, and the trial court found, that the prosecutor used due diligence in attempting to locate and produce the indorsed witness for trial. Failure to produce the witness was properly excused. There was no showing of a clear abuse of discretion. Therefore, the court’s finding of due diligence will not be overturned on appeal.
    Affirmed.
    1. Drugs and Narcotics — Trial — Witnesses — Evidence — Phencyclidine — Prejudice — Harmless Error.
    Repeated trial references to phencyclidine as a narcotic by prosecution witnesses despite numerous objections and continuing instructions by the court to avoid the word narcotic when referring to phencyclidine does not prejudice a defendant’s right to a fair trial; the use of the word narcotic during the course of a controlled substance trial is not overly prejudicial even though it is not perfectly accurate, and any error arising from its use would be harmless beyond a reasonable doubt.
    2. Drugs and Narcotics — Trial — Witnesses — Evidence — Phencyclidine — Definitions — Jury — Prejudice.
    A defendant’s right to a fair trial on a charge of delivery of phencyclidine was not prejudiced by a discussion of the physical characteristics of phencyclidine before a jury by prosecution witnesses where there was a good reason to admit this type of testimony; a controversial issue existed whether phencyclidine was a narcotic and the testimony was admitted to clarify this point and minimize jury confusion by explaining that phencyclidine is an animal tranquilizer which produces hallucinations in humans, that the drug was not approved for human use and that physical contact with the drug may produce a "contact high”.
    3. Appeal and Error — Evidence — Failure to Object — Cure op Error — Cautionary Instructions.
    Failure to object to the admission of evidence precludes appellate review where it is likely that a cautionary instruction from the trial judge could have cured any error.
    4. Criminal Law — Witnesses — Impeachment — Evidence — Rebuttal Testimony — Extrinsic Evidence — Probative Value — Volunteered Answers.
    A prosecutor cannot first elicit a response to a question and then seek to rebut it by the use of extrinsic evidence; extrinsic evidence cannot be used to impeach a witness on collateral matters; however, the rule does not apply where a witness volunteers an answer on a material matter which is probative of the issue of a defendant’s guilt.
    5. Witnesses — Criminal Law — Indorsed Witnesses — Prosecutor’s Duty to Produce — Due Diligence — Court’s Discretion — Appeal and Error.
    A prosecutor’s failure to produce an indorsed witness for trial may be excused where the prosecutor makes a showing of due diligence in searching for the witness, and a trial judge’s finding of due diligence will not be overturned on appeal unless a clear abuse of discretion is shown; due diligence in law means doing everything reasonable, not everything possible.

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

      Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   Per Curiam.

Defendant was jury convicted of the delivery of a controlled substance, to-wit: phencyclidine, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b), in a joint trial held before the Wayne County Circuit Court. Defendant Frazier was sentenced to one year and three months to seven years in prison. His codefendant, Larry Thomason, was also convicted and given the same sentence. Defendant Frazier appeals as of right under GCR 1963, 806.1. Codefendant Thomason does not join in this appeal.

On April 20, 1977, two undercover Wayne County deputies bought a large quantity of phencyclidine from the defendant. The prosecutor’s case in chief consisted mainly of the testimony of these and other officers who observed defendant’s activities on the night in question. Defendant raises three challenges to his conviction, which we shall address seriatim.

Defendant contends that he was denied a fair trial since, on three separate occasions, highly prejudicial evidentiary matters were heard by the jury. The first such incident occurred when several prosecution witnesses repeatedly referred to phencyclidine as a "narcotic” despite numerous objections by defense counsel and continuing instructions by the trial court to avoid the word "narcotic” when referring to phencyclidine. This Court has independently reviewed the lower court transcript and does not believe that the defendant’s right to a fair trial was prejudiced. We do not believe that the use of the word "narcotic” during the course of a controlled substance trial is overly prejudicial, even if not perfectly accurate. Any error arising therefrom would be harmless at best. People v Swan, 56 Mich App 22; 223 NW2d 346 (1974).

The second instance occurred when two prosecution witnesses discussed the physical characteristics of phencyclidine before the jury thereby allegedly prejudicing defendant’s right to a fair trial. This Court finds that there existed sufficient reason to admit this type of testimony. As the previous discussion makes clear, a controversial issue in defendant’s trial was whether phencyclidine was a narcotic. The jury may well have been confused. The testimony that defendant complains of served to clarify this point by explaining that phencyclidine was an animal tranquilizer which produces hallucinations in humans, that the drug was not approved for human use by the FDA, and that physical contact with the drug may produce a "contact high”.

The last instance occurred with the testimony of one of the undercover deputies who purchased the phencyclidine from the defendant. When asked upon direct examination what the defendant was doing while the deputy was weighing the phencyclidine, the deputy responded, "He was sitting at the kitchen table explaining that this was the same stuff that I had purchased before, just telling me that the weights were good and it would be thirty-seven hundred dollars”. The defendant contends that this testimony wrongfully placed before the court a prior sale by the defendant of phencyclidine to this deputy. We disagree. The testimony elicited from the deputy is quite ambiguous. Moreover, this Court notes that the defense counsel failed to make an objection when the testimony was given and it is likely that a cautionary instruction could have cured any error.

Defendant’s second principal challenge concerns the impeachment of a defense witness through extrinsic testimony. Tonnie Chavis was called as a defense witness. His direct testimony was that codefendant Thomason did not leave the Chavis residence with a quantity of phencyclidine on the date in question. During cross-examination, the prosecuting attorney asked witness Chavis if he was a seller of phencyclidine. Defense counsel objected, the witness volunteered to answer, and the trial court decided to take the answer. Witness Chavis did not directly respond to the question but stated that, in the search of his home made shortly after the arrest of both defendants on the day of the purchase, no phencyclidine was found. The trial court then allowed the prosecution, over defense counsel’s objections, to call several rebuttal witnesses who testified that phencyclidine was indeed found in the subsequent search of the Chavis residence.

Defendant contends that this was impeachment on a collateral matter with extrinsic evidence and/ or improper rebuttal. We disagree.

It bears note that the prosecutor did not first elicit a response to a question, then seek to rebut it by the use of extrinsic evidence. Contrast, People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), People v Roeder, 79 Mich App 595; 262 NW2d 872 (1977). Rather, the witness volunteered the assertion that no phencyclidine was found in the subsequent search.

Moreover, this impeachment was on a material matter. The existence of phencyclidine in the Chavis residence shortly after defendant’s arrest was probative of the issue of defendant’s guilt of delivery of phencyclidine. Thus, the trial court did not violate the rule that a witness cannot be impeached on a collateral matter with extrinsic evidence. See People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974).

Defendant’s last challenge concerns the prosecutor’s failure to produce an endorsed witness, one Patricia Cowie. Ms. Cowie admitted the undercover deputies into defendant’s residence on the date of the phencyclidine purchase. When Patricia Cowie could not be produced for trial, the trial court heard testimony of several witnesses as to the efforts that had been made to locate her, then excused her absence by finding due diligence had been exercised thereby.

This Court reverses a trial court’s finding of due diligence only when a clear abuse of discretion is found. People v Castaneda, 81 Mich App 453; 265 NW2d 367 (1978), People v Fournier, 86 Mich App 768; 273 NW2d 555 (1978), People v Carter, 87 Mich App 778; 276 NW2d 493 (1979). The defendant has failed to establish such an abuse. The efforts to secure witness Cowie both before and during trial included: (1) issuance of a warrant, (2) several attempts to serve the warrant at the witness’s known and previous address, (3) questioning of neighbors at the witness’s known address as to the witness’s whereabouts, (4) attempting to talk to the witness’s mother, (5) a driver’s license LEIN check, (6) a post office change of address check, (7) a check with Social Services, (8) a check of listed phone numbers with the same last name, and (9) a general inquiry made to the neighborhood hospitals, clinics and nursing homes. This Court has defined due diligence as "doing everything reasonable, not everything possible”. People v Fournier, supra, at 778.

Under these circumstances, this Court is not inclined to find that the trial court abused its discretion.

For the foregoing reasons, the judgment of the lower court is affirmed.


source: Caselaw Access Project

author: Per Curiam. T. M. Burns, P.J.

license: Public Domain

text:
    PEOPLE v McGILMER
    Docket Nos. 78-1616, 78-3436.
    Submitted November 16, 1979, at Lansing.
    Decided February 21, 1980.
    Norman McGilmer was convicted of breaking and entering an occupied building with intent to commit larceny and of being a habitual offender, Washtenaw Circuit Court, Edward D. Deake, J. Defendant appealed both convictions and the appeals were consolidated. Held:

    1. There was no affirmative showing that the defendant was prejudiced by consolidation of his trial with that of his brother, a codefendant.
    2. The magistrate’s determination at the preliminary examination that there was probable cause to believe that the defendant committed the crime was not an abuse of discretion.
    3. The defendant was found to be a fourth felony offender. One of the prior convictions was obtained when the defendant was a juvenile. He had waived jurisdiction in juvenile court and at that proceeding was not represented by counsel. At the time there was no requirement that juveniles be represented by counsel at such hearings. The case precedent establishing the requirement does not have retroactive application; therefore, the conviction was valid and it was properly used to support the habitual offender conviction.
    Affirmed.
    T. M. Burns, P.J., dissented. He would hold that the prior conviction should not be used to enhance the defendant’s sentence in the present case. He would reverse the habitual offender conviction.
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law § 309 et seq.

    39 Am Jur 2d, Habitual criminals and subsequent offenders § 9.
    47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children §§ 38, 39.
    Right to appointment of counsel. 69 ALR2d 691.

      Opinion of the Court
    1. Criminal Law — Juveniles — Representation by Counsel — Habitual Offenders.
    The case law establishing the requirement that a juvenile be represented by counsel at a juvenile court proceeding in which jurisdiction is transferred to circuit court does not have retroactive application to a proceeding held before the requirement existed; a felony conviction obtained prior to that case precedent is not invalid because of lack of counsel at the transfer hearing and may be used as the basis for a habitual offender conviction.
    Dissent by T. M. Burns, P. J.
    2. Criminal Law — Juveniles — Representation by Counsel — Habitual Offenders.

      A habitual offender conviction should not be based upon a prior conviction which was obtained while the defendant was at the time a juvenile who waived jurisdiction from juvenile court to circuit court without the assistance of counsel, even though at the time there was no requirement that a juvenile be represented by counsel at a transfer hearing.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Albert B. Blixt, Jr., Assistant Prosecuting Attorney, for the people.

      George W. Parker, for defendant on appeal.
    Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

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

   Per Curiam.

Defendant was jury convicted of breaking and entering an occupied dwelling with the intent to commit larceny therein, MCL 750.110; MSA 28.305, and of being an habitual offender, MCL 769.12; MSA 28.1084. He was sentenced to 10 to 15 years imprisonment and now appeals as of right.

We first reject defendant’s contention that the trial court committed reversible error in granting the people’s motion to consolidate his trial with that of his brother. There was no affirmative showing of prejudice to the substantial rights of the defendant. People v Carroll, 396 Mich 408, 414; 240 NW2d 722 (1976).

We further find no abuse of discretion in the magistrate’s determination that probable cause to believe defendant committed the crime was established at the preliminary examination. People v Juniel, 62 Mich App 529, 535; 233 NW2d 635 (1975). That the corpus delicti of the offense was established is not in dispute.

Finally, we address the main issue raised by defendant on appeal. The question is whether the trial judge committed reversible error in finding defendant guilty as a fourth offender under the habitual offender statute, when one of the prior convictions relied upon had originated in juvenile court where defendant had waived jurisdiction to Recorder’s Court without benefit of counsel and then pled guilty to a reduced charge while assisted by counsel.

Defendant claims that the trial court was prohibited from using the aforementioned conviction to support guilt or enhance sentence for another offense. We disagree with defendant.

Defendant was previously convicted of attempted unarmed robbery on April 29, 1965. This is the conviction at issue here. At that time MCL 712A. 17; MSA 27.3178(598.17) did not require appointment of counsel at juvenile transfer hearings, but instead left such appointment to the discretion of the court. Subsequently, the United States Supreme Court held that juveniles have a Sixth Amendment right to counsel in all adjudicatory proceedings. Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966).

The question of the retroactive application vel non of Kent and its progeny has resulted in a split amongst the United States Circuit Courts of Appeal. The issue has not been squarely faced in Michigan. However, in a factual situation on all fours with the case sub judice, Judge Feikens of the Federal District Court for the Eastern District of Michigan concluded that Kent, et al., need not be applied retroactively, adopting the reasoning and result of Harris v Procunier, 498 F2d 576 (CA 9, 1974), cert den 419 US 970; 95 S Ct 235; 42 L Ed 2d 186 (1974). See Trombley v Anderson, 439 F Supp 1250, 1251-1252 (ED Mich, 1977), aff’d 584 F2d 807 (CA 6, 1978).

We find the analysis in Harris as adopted in Trombley persuasive, and therefore hold that as a matter of both United States and Michigan constitutional law, the right to counsel at a juvenile proceeding does not apply retroactively to defendant’s transfer proceeding. Accordingly, we discern no basis for upholding defendant’s belated collateral attack on that conviction, or for disapproving the trial court’s reliance thereon in sentencing defendant under the habitual offender statute.

We find no error requiring reversal and therefore affirm.

Affirmed.

T. M. Burns, P.J.

(dissenting). In Kent v United States, 383 US 541; 86 S Ct 1045; 16 L Ed 2d 84 (1966), the United States Supreme Court held that juveniles have a Sixth Amendment right to representation of counsel at adjudicatory proceedings. See also, In re Gault, 387 US 1; 87 S Ct 1428; 18 L Ed 2d 527 (1967). There is no question but that defendant would have the right to counsel at a transfer hearing today if he were a juvenile. MCL 712A.4; MSA 27.3178(598.4).

The majority correctly cites Trombley v Anderson, 439 F Supp 1250 (ED Mich, 1977), aff'd 584 F2d 807 (CA 6, 1978), as authority for the proposition that Kent does not apply retroactively to permit a collateral attack on a juvenile proceeding in which counsel was denied. However, I believe that the rtiajority extends Trombley beyond the limits of its holding when it uses it to affirm defendant’s habitual offender conviction.

In United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), the United States Supreme Court upheld a post-conviction challenge to a defendant’s sentence premised on the ground that the sentencing judge erred when imposing sentence by considering a prior conviction of the defendant that was invalid under Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963). The simple rule stated in Tucker was that where the record indicated that the sentencing judge considered a conviction invalid under Gideon an appellate court must remand for resentencing. Subsequently, the Michigan Supreme Court had opportunity to adopt Tucker and did so without equivocation. People v Moore, 391 Mich 426; 216 NW2d 770 (1974).

If it is forbidden for a sentencing judge to consider a defendant’s prior conviction that was invalid because the defendant was denied the right to counsel, does it make sense to let similar constitutionally infirm convictions in the juvenile context be the basis for sentencing enhancement pursuant to an habitual offender information? Tucker has been applied retroactively and now bars the use of constitutionally infirm convictions without regard to whether they occurred prior to or subsequent to its decisional date. I see no reason why Kent should not similarly be applied in the context of this case, which is not a collateral attack on defendant’s 1965 conviction. That conviction is not affected by our decision here. Defendant’s argument is simply that he was denied counsel at a critical stage in the 1965 proceeding and, as a consequence, his conviction in that proceeding should not be used today to enhance his sentence on the present charge. I agree with defendant.

I would reverse the habitual offender conviction.


author: Per Curiam.

text:
    PEOPLE v MUSTAFA
    Docket No. 78-3363.
    Submitted November 13, 1979, at Detroit.
    Decided February 21, 1980.
    Defendant, Mergim Mustafa, was convicted of third-degree criminal sexual conduct in the Wayne Circuit Court, Joseph B. Sullivan, J. Defendant appeals, alleging error in refusing to suppress the use of evidence of the defendant’s prior conviction of criminal sexual conduct for impeachment purposes, in allowing the admission of evidence of a similar act by defendant and in excluding evidence of a reputation for unchastity on the part of a witness who supplied evidence of a similar act. Held:

    1. Error is indicated where a record on appeal fails to show that the trial judge was aware that he had discretion in determining whether to allow the admission of the defendant’s prior conviction and fails to indicate that he considered the appropriate factors. However, that error is not reversible where the evidence of guilt is overwhelming, as here.
    2. Evidence of a similar act is admissible if it: 1) is sufficiently similar to the alleged crime so as to show a plan or scheme; 2) the scheme, plan or system in doing the act is material to a matter in issue; and 3) the probative value of the evidence is not substantially outweighed by its prejudicial effect. The court did not err in allowing it.
    3. Under a statute and court rule, the trial judge .properly excluded evidence relating to the reputation for unchastity of the similar-act witness.
    Affirmed.
    1. Criminal Law — Prior Convictions — Appeal and Error — Harmless Error.
    Error is indicated where a record on appeal fails to show that the trial judge was aware that he had discretion in determining whether to allow the admission of evidence of a defendant’s prior conviction and fails to indicate that he considered the appropriate factors; however, that error is not reversible where the evidence of guilt is overwhelming.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error §§ 515-518.
    29 Am Jur 2d, Evidence §§ 320, 321, 333.
    [2] 29 Am Jur 2d, Evidence § 298.
    [3] 65 Am Jur 2d, Rape §§ 82, 86.

      2. Criminal Law — Evidence — Similar Acts.
    Evidence of a similar act is admissible if it: 1) is sufficiently similar to the alleged crime so as to show a plan or scheme; 2) the scheme, plan or system in doing the act is material to a matter in issue; and 3) the probative value of the evidence is not substantially outweighed by its prejudicial effect.
    3. Criminal Law — Evidence — Reputation Evidence — Unchastity.
    A trial court correctly excluded evidence of a reputation for unchastity on the part of a witness who supplied evidence of a .similar act of a defendant on trial for criminal sexual conduct.

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

      Martin S. Baum, for defendant on appeal.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of criminal sexual conduct in the third degree, MCL 750.520d; MSA 28.788(4), and sentenced to 10 to 15 years imprisonment. Defendant appeals as of right.

The defendant first argues that the trial court erred in refusing to suppress the use of evidence of defendant’s prior conviction for criminal sexual conduct for impeachment purposes. The trial court apparently made its original ruling on this matter off the record; the present record contains only the statement that the court had previously ruled that it would deny defendant’s motion to suppress evidence of the prior conviction. Thus, the present record does not clearly indicate that the judge was aware that he had discretion in determining whether to allow the admission of evidence of defendant’s prior conviction. This was error. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). Further, the record is devoid of any indication that the trial court considered the factors enunciated in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). This was also error. It is not necessary to a decision in this case to determine whether the record must reflect the trial court’s balancing of the Crawford factors, but at a minimum the record must affirmatively show that the trial court was aware of those factors and did consider them, People v Joyner, 93 Mich App 554; 287 NW2d 286 (1979), People v Roberson, 90 Mich App 196, 204; 282 NW2d 280 (1979) (D. C. Riley, J., dissenting).

The improper admission of evidence of a prior conviction does not constitute reversible error, however, when there is overwhelming evidence of defendant’s guilt. People v Williams, 84 Mich App 226; 269 NW2d 535 (1978), People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978), modified 406 Mich 953 (1979). The evidence of defendant’s guilt in this case was overwhelming. In addition to the testimony of the complainant, Abraham Kazbour and Gamal Kazbour both testified that they lived on Wyoming near Dix Street in Dearborn and that they called the police at about 2 to 3 a.m. on the date of this incident because they heard someone screaming for help. Police officers Ronald Bunse and Peter Craven testified that they answered that "radio run” and upon arriving at the scene they found the defendant in a field on top of the complainant with his trousers and underclothing down around his knees. The complainant was screaming that she was being raped; she had a small abrasion underneath her lip, her hair was in disarray and her clothing was partially off; the keys to complainant’s car were found in defendant’s pocket. The blue jeans worn by the complainant on that evening were torn at the zipper and were introduced as an exhibit at trial. The defendant’s statement to police that he had paid the complainant to perform an act of fellatio, that she had become angry when he took the money back, and that he was not taking her to the field to force her to have intercourse with him when the police came, was patently incredible. Since the evidence against defendant in this case was overwhelming, the silent record regarding the denial of defendant’s motion to suppress the use of evidence of his prior conviction was not reversible error.

Defendant next contends that the trial court erred in allowing the admission of evidence of a similar act by the defendant. The trial court correctly admitted evidence of a similar act by the defendant after testing the evidence against the following three-part analysis developed in People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976):

1. Were there sufficient similarities in the cases such that they tended to show a plan or scheme or orchestrate the events surrounding the rape so that the complainant could not show nonconsent and the defendant could escape punishment?

2. Was the defendant’s scheme, plan or system in doing the act material to a matter in issue, in this case, lack of consent?

3. Was the probative value of the evidence substantially outweighed by unfairly prejudicial effects?

The first requirement in Oliphant was met in this case because the defendant — by selecting victims from bars late in the evening under circumstances where the victims would be voluntarily driving to a secluded spot in the victim’s car under his direction and by attacking the victim’s moral standards and chastity upon a charge of rape— demonstrated á similar scheme to orchestrate the events surrounding the rape to prevent a showing of nonconsent.

The second requirement was met because the question of nonconsent was material and at issue, as ruled by the trial judge. Defendant’s claim that the alleged act of penetration never occurred while complainant was in the field, but that a voluntary act occurred a few moments earlier in the car, did not serve to remove the question of nonconsent. The question of consent was at issue because both defendant and complainant agreed that the sex act took place at some point during the transaction and defendant claimed it was consensual. The presence of that issue distinguishes this case from People v Rustin, 406 Mich 527; 280 NW2d 448 (1979); and from People v Major, 407 Mich 394; 285 NW2d 660 (1979). Defendant’s argument that the consent issue cannot be raised by the prosecution’s introduction of a statement by the defendant is without merit because the defendant adopted that statement as his defense and argued it fully during closing argument.

The third Oliphant requirement was met because the trial court indicated that it balanced the prejudicial effects against the probative value of the evidence in arriving at its decision. Based on the foregoing analysis, it is the opinion of this Court that the trial court correctly admitted the similar acts evidence under the rule set forth in People v Oliphant, supra.

Defendant also claims that the trial court erred in refusing to admit evidence of reputation for unchastity on the part of the similar-act witness. The trial court correctly denied admission of this evidence on the basis of MCL 750.520(j); MSA 28.788(10), and MRE 608.

The statute refers to a "victim”, not to a "complainant”; the similar-act witness was as much a victim as to the similar act as was the complainant in the instant case, such that the statute applies as much to her as it does to the complainant.

Defendant’s due process and equal protection arguments do not merit discussion.

Affirmed.


text:
    PEOPLE v PETERS
    Docket No. 78-4236.
    Submitted January 3, 1980, at Lansing.
    Decided February 21, 1980.
    Michael R. Peters was convicted, on his plea of guilty, of armed robbery, Macomb Circuit Court, Kenneth N. Sanborn, J. The defendant appeals, alleging that 1) statements taken from him by the police were involuntary since, as a 16-year-old minor, he was incapable of waiving his rights to remain silent and to the presence of an attorney, 2) his plea bargain was illusory because he could not have been properly convicted of a felony-murder charge, a charge dropped by the prosecution pursuant to a plea bargain, since he neither committed nor aided and abetted in the murder of the robbery victim, and 3) the testimony offered at the probate court hearing for waiver of jurisdiction and at the preliminary examination was insufficient to show probable cause to charge him with felony murder. Held:

    1. The defendant’s counselled guilty plea, nearly eight months after the incriminating statements were made, constitutes a waiver of the purported infirmity in the obtaining of the statements.
    2. The defendant, as a matter of law, could have been properly charged with felony murder in count I in the information. As such, a valid promise to forego prosecution of this charge in exchange for the defendant’s plea to the second count was of significant benefit to the defendant.
    3. The defendant, by pleading guilty without seeking review in the circuit court of the juvenile waiver decision, waived any infirmity in the waiver proceedings.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 495.
    Court’s duty to advise or adminish accused as to consequences of plea of guilty or to determine that he is advised thereof. 97 ALR2d 549.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 485, 491.5, 505.
    Right to withdraw guilty plea in state criminal proceedings where court refuses to grant concession contemplated by plea bargain. 66 ALR3d 902.
    [4] 21 Am Jur 2d, Criminal Law § 495.
    [5, 6] 21 Am Jur 2d, Criminal Law § 446.

      4. Errors and irregularities relating to a preliminary examination may not be raised on appeal to the Court of Appeals unless those issues were timely raised prior to or at trial or before the defendant pleads guilty. The issue of any impropriety in the preliminary examination has not been preserved for appeal.
    Affirmed.
    1. Constitutional Law — Miranda Rights — Plea of Guilty — Waiver.
    A guilty plea made by a defendant with counsel present nearly eight months after the defendant made statements to the police, which he alleges on appeal were taken in violation of his Miranda rights because as a minor he was incapable of waiving those rights, constituted a waiver of the purported infirmity in obtaining the statements.
    2. Criminal Law — Plea of Guilty — Illusory Plea Bargains.
    Guilty pleas entered in response to illusory plea bargains should not be allowed to stand.
    3. Criminal Law — Plea of Guilty.
    A plea of guilty entered pursuant to a plea agreement should be upheld notwithstanding that there was a failure of consideration between the parties regarding the plea agreement if the facts of the case indicate that the plea was nevertheless voluntary.
    4. Criminal Law — Juveniles — Jurisdiction — Waiver of Jurisdiction — Plea of Guilty — Courts.
    A juvenile, over whom a probate court has waived jurisdiction, who enters a plea of guilty in circuit court without seeking circuit court review of the juvenile waiver decision has waived any infirmity in the waiver proceeding.
    5. Appeal and Error — Criminal Law — Preliminary Examinations.
    Errors and irregularities relating to a preliminary examination may not be raised on appeal unless they were timely raised prior to or at trial.
    6. Criminal Law — Evidence — Plea of Guilty — Sufficiency of Evidence.
    A defendant cannot, subsequent to his plea of guilty, raise questions about the sufficiency of the evidence presented at the preliminary examination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Alice F. Sage, Assistant Prosecuting Attorney, for the people.

      Max D. McCullough, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Per Curiam.

On August 4, 1978, defendant pled guilty to the offense of armed robbery, contrary to MCL 750.529; MSA 28.797. He was sentenced to 10 to 15 years imprisonment and appeals as of right, raising three issues. We consider each in turn.

First, defendant claims that statements taken from him by police officers while in their custody were involuntary since he, as a 16-year-old minor, was incapable of waiving his Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), rights to remain silent and to the presence of an attorney. On December 13, 1977, defendant was arrested with his brother in connection with the December 12, 1977, robbery and shooting death of Janet DeCoster at her home in Macomb County. While in custody the following day, and after he was read his Miranda rights, defendant was questioned by the police. This questioning resulted in two or three incriminating statements. Defendant now challenges the admissibility of these confessions.

We need not reach the merits of defendant’s claim that the confessions were illegally obtained because defendant’s counselled guilty plea, nearly eight months after the statements were made, constitutes a waiver of the purported infirmity. People v Peters, 397 Mich 360, 369-371; 244 NW2d 898 (1976). See People v Figlus, 86 Mich App 552; 272 NW2d 722 (1978).

Second, defendant contends that his plea bargain was illusory because, while he accepted the prosecutor’s oifer to plead guilty to armed robbery in exchange for the prosecutor’s dismissal of a felony-murder charge, defendant states that he could not have been properly convicted of this charge since he neither committed nor aided and abetted in the murder of Janet DeCoster.

Following the lead of the United States Court of Appeals in Hammond v United States, 528 F2d 15 (CA 4, 1975), this Court has not hesitated to take appropriate action on an appeal from a guilty plea which is involuntary as a matter of law because the bargain on which the plea was based was illusory. People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), People v Roderick Johnson, 86 Mich App 77; 272 NW2d 200 (1978), People v Sanders, 91 Mich App 737; 283 NW2d 841 (1979). Conversely, if the facts in the case indicate that "the plea was nevertheless voluntary”, the plea will be upheld notwithstanding that there was a failure of consideration between the parties regarding part of the plea agreement. People v Phillip Smith, 407 Mich 906 (1979), People v James, 90 Mich App 424; 282 NW2d 344 (1979), People v Rowe, 85 Mich App 106; 270 NW2d 472 (1978).

Nonetheless, in the instant case, it is unnecessary to consider the merits of the plea-bargaining arrangement since, as a matter of law, defendant could have been properly charged with felony murder in count I of the information. As such, a valid promise by the prosecutor to forego prosecution of this charge in exchange for defendant’s plea to the second count was of significant benefit to the defendant. The value of the bargain to defendant was genuine, valid, and known to defendant. Therefore, since defendant surrendered his right to trial in full apprehension of the value of the commitments made to him, his plea of guilty cannot be challenged as being the result of an illusory plea bargin.

Finally, defendant claims that the testimony offered at the waiver hearing and the preliminary examination was insufficient to show probable cause to charge him with felony murder. Whatever may be said about the merits of this contention, by pleading guilty without seeking review in the circuit court of the juvenile waiver decision, defendant waived any infirmity in that proceeding. People v Figlus, supra, People v Mahone, 75 Mich App 407; 254 NW2d 907 (1977). Likewise, "[e]rrors and irregularities relating to the preliminary examination may not be raised on appeal [to this Court] unless those issues were timely raised prior to or at trial” or before defendant pleads guilty. People v Miller, 62 Mich App 495, 497; 233 NW2d 629 (1975). In addition, the defendant cannot, subsequent to his guilty plea, raise questions about the sufficiency of the evidence before the examining magistrate. Id., at 498, People v Cullens, 55 Mich App 272; 222 NW2d 315 (1974). Accordingly, we conclude that the issue has not been preserved for appellate review.

Affirmed.

       See e.g., People v Poplar, 20 Mich App 132; 173 NW2d 732 (1969), People v Wirth, 87 Mich App 41; 273 NW2d 104 (1978).


author: Per Curiam:.

text:
    PEOPLE v SIEGEL
    Docket No. 43582.
    Submitted December 5, 1979, at Grand Rapids.
    Decided February 21, 1980.
    Leave to appeal applied for.
    Kurt C. Siegel was convicted of possession of cocaine, Kent Circuit Court, Stuart Hoffius, J. The defendant appeals, alleging that the trial court erred in refusing to suppress as evidence the marijuana and a billy club which were discovered during the inventory search of the defendant’s automobile because that search without a warrant was not valid and the marijuana and billy club were not in plain view and that the cocaine which was found in the back of the police car used to transport the defendant to the police station should have been suppressed because the defendant had not been informed of his right to post interim bail on the outstanding traffic warrant for which he was arrested. Held:

    1. The plain view exception to the requirement for a search warrant was not applicable to the seizure of the marijuana and billy club found in the defendant’s car. The officer who seized the items while looking for the registration for the car testified that he did not see either item while looking for the registration and did not say that this evidence was observable from the car windows.
    2. The "inventory search” of the car was a pretext for an investigation rather than a normal police procedure. There was no valid reason to impound the defendant’s automobile which was locked and parked in a private driveway and was not a threat to public safety. The police officer testified that he was not concerned with his personal safety, nor was he seeking the fruits of a possible breaking and entering, the possible occurrence of which the police were investigating. Also, the defendant’s companion, who had not been arrested at the time of the inventory search, could have arranged to take care of the vehicle if the defendant did not wish to leave it in the driveway. The trial court erred in denying the defendant’s motion to suppress evidence of the billy club and the marijuana which were fruits of an improper search without a warrant.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 415.
    75 Am Jur 2d, Trial § 416.
    [2] 5 Am Jur 2d, Appeal and Error § 880.
    [3] 68 Am Jur 2d, Searches and Seizures § 88.
    Search and seizure: observation of objects in "plain view” — Supreme Court cases. 29 L Ed 2d 1067.
    [4, 5] 68 Am Jur 2d, Searches and Seizures §§ 57, 106.
    Validity, under Federal Constitution, of warrantless search of automobile — Supreme Court cases. 26 L Ed 2d 893.
    Lawfulness of "inventory search” of motor vehicle impounded by police. 48 ALR3d 537.
    [6] 8 Am Jur 2d, Bail and Recognizance §§ 21-23.

      ■ 3. The defendant was initially arrested only because of an outstanding warrant on a traffic offense. The arresting officer was under an affirmative duty to inform the defendant that one who is arrested for a minor offense has a right to post bail under the interim bail statute. The discovery of the cocaine, which the defendant apparently dropped in the back seat of the police car, was a result of the failure of the police officer to inform the defendant of his rights under the interim bail statute. If the defendant had been informed of the right to bail, it is logical to assume that he would not have felt the need to discard the cocaine in the police car in an effort to avoid its discovery in a stationhouse search. The cocaine should have been suppressed.
    Reversed and the defendant is discharged.
    1. Searches and Seizures — Reasonableness — Burden of Proof — Admissibility of Evidence.
    The prosecution has the burden of proving the reasonableness of any search and seizure; if the prosecution fails to meet this burden, the courts should suppress the admission of any fruits of the search into evidence.
    2. Criminal Law — Evidence — Suppression of Evidence — Appeal and Error.
    A trial court’s determination of whether evidence is admissible in a suppression hearing will be reversed only where it is clearly erroneous.
    3. Searches and Seizures — Plain View Doctrine — Search Without Warrant — Justification — Inadvertent Discovery.
    A police officer, in order to apply the plain view doctrine to justify a seizure of evidence without a warrant, must be rightfully in a position from which the evidence is plainly visible, must have prior justification for the intrusion, and must discover the evidence inadvertently.

      4. Searches and Seizures — Inventory Search — Automobiles — Reasonableness.
    The relevant inquiry in determining if an inventory search and impoundment of a car by the police is valid is the reasonableness of the seizure under all the facts and circumstances of each case.
    5. Searches and Seizures — Inventory Search — Justification.
    Justifications for an inventory search are as follows: 1) the protection of property while held in police custody, 2) protection of the police against claims over lost or stolen property, and 3) protection of the police from potential danger.
    6. Bail — Arrest — Minor Offenses — Right to Post Bail.
    An arresting officer is under an affirmative duty to inform one who is arrested for a minor offense of his right to post bail.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      Lustig & Friedman, P.C., for defendant on appeal.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Per Curiam:.

The defendant appeals as of right from his jury conviction for possession of cocaine, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). The defendant was sentenced to a term of 2-1/2 to 4 years of imprisonment.

At the preliminary examination, the arresting officer, Robert Wildman, testified that he and his partner were called to 1745 Willis in the City of Grand Rapids to investigate a possible breaking and entering of a vacant house. After speaking briefly with neighbors, the officers walked up to the house, noting a white and maroon car parked in the driveway with Florida license plates. They could see someone with a flashlight walking around the kitchen, so they went to the back of the house. The back door was closed but not locked, and appeared to have been kicked in. The defendant and a man named Eiko were found to be inside. Mr. Siegel stated that he was the owner of the house, yet he had no key or any identification in his possession, although Mr. Eiko did have identification. The officers then ran a LEIN check and determined that there was an outstanding bench warrant on Mr. Siegel for a traffic offense in Niles, Michigan. Officer Wildman then went to the glove compartment of the car and found a leather wallet containing a picture identification for the defendant under the name Daniel McDonald. Mr. Siegel was then placed in a transfer cruiser and taken downtown by Officer Buekema. After Mr. Siegel’s departure, the officers conducted an inventory search of the parked automobile, which a LEIN check disclosed was registered in Florida under the name of Scott Siegel, whose name was on the registration. The officers found a billy club which was lying on the carpeting on the passenger side, to the left of the front seat. They also found a bag of marijuana lying on the console, and a leather case in the tirewell of the trunk which contained a loaded .25-caliber automatic pistol. Officer Sweetman, Wildman’s partner, did not testify at the preliminary examination.

Richard Buekema, the officer who transported the defendant to jail subsequent to his arrest, stated that he always checks the back seat of his cruiser when he takes his car out, in order to make sure that nothing was left by a previous occupant. On the day in question, he had followed his custom of making sure the back seat was "clean”. After transporting the defendant, he checked the back seat again, and found a folded white packet on the floor underneath the seat, over the hump. The packet contained a white powdery substance, later determined to be cocaine. Officer Buekema said that he had to lift the back seat up in order to see the packet.

Pursuant to the testimony previously summarized, the defendant was bound over on the charges of possession of a billy club and possession of cocaine. Defendant then made a motion to suppress the evidence obtained during the inventory search and to quash the information, and a suppression hearing was held.

Officer Wildman testified again at the suppression hearing. At this time, he said that when they entered the house, Mr. Siegel identified himself, said he was the owner, and was showing the house to Mr. Eiko. However, he had no key with which to gain entry into the house. Officer Wildman left the two men in the kitchen area with his partner, and went back to the scout car to run a computer check, which took about 5 or 10 minutes. When he learned of an outstanding warrant based on a speeding ticket, he returned to the house and placed the defendant under arrest. He said that the basis for the arrest was the warrant and also breaking and entering an unoccupied dwelling. After the defendant was taken downtown, Eiko was at first told that he could leave, but then Officer Wildman decided to arrest him for breaking and entering also. Previously, the defendant said that the car in the driveway belonged to his brother, Scott Siegel, and this was confirmed by a LEIN check. The defendant gave the officer the keys to the car. Officer Wildman explained his post-arrest inventory search of the car as a matter of department policy. The car would be towed to the station for safekeeping, even though it was parked on private property, since it was a vacant house belonging to an unknown person. The officer did not ask the defendant if he could make any other arrangements for the car and said he was not concerned with his personal safety at the time he made the inventory search. He said that when he checked the glove box for identification, he only saw the brown wallet, not the items found in the subsequent inventory search. The officer said he was not looking for any fruits of the breaking and entering during the inventory search. At the time of the inventory search, Mr. Eiko was standing outside near one of the police cruisers and had not yet been placed under arrest.

Robert Eiko also testified at the suppression hearing. He stated that he had known the defendant for some time. Mr. Eiko was in the remodeling business. The defendant offered to sell him the house on Willis Street, or have him remodel it, so he went there in order to inspect the premises. The house had previously been damaged by a fire, at which time the doors were all kicked in and all of the doorjambs were broken. The defendant was going to leave the next morning, so they went to see the house at night. Eiko drove the defendant’s car because Siegel did not have a driver’s license. As they were coming up from the basement to the kitchen, some police officers came in and questioned them. After they explained their presence, Siegel and Eiko were allowed to go on about their business of inspecting the house, although one policeman followed them. The defendant then took Eiko outside to show him the garage and lot lines. When they returned to the house, the officers told Siegel he was under arrest for a traffic ticket. Eiko asked if he was under arrest, and he was told, "not yet”. Eiko did not hear the officers tell Siegel that he was under arrest for breaking and entering. After Siegel was arrested, the officers offered to call a cab for Eiko, so he waited around for a while. He finally started to walk away when one officer called him back and said that he had better go with them. He was booked on the charge of breaking and entering at the station.

The trial court denied the motion to suppress and the motion to quash the information. A jury trial commenced on October 11, 1978.

During the trial, Officer Wildman took the stand for the third time. His version of the events was significantly different this time. He stated that after first questioning Mr. Siegel, he went to the car to try and find a registration, identification, or proof of ownership, and saw the billy club lying next to the driver’s seat, and then he saw the bag of marijuana on the console between the bucket seats. Officer Wildman then opened the glove compartment and removed a brown leather wallet which had a picture of the defendant under the name of Daniel McDonald. He also found a registration under the name of Scott Siegel. Wildman removed these items from the car, returned to the house, advised defendant of a traffic warrant, and placed him under arrest. He then escorted defendant outside and turned him over to Officer Buekema to transport him to the jail. At that time, he questioned Mr. Eiko, and arrested him for breaking and entering. According to police policy, defendant’s car was taken into police custody for safekeeping.

Ronald Sweetman, Wildman’s partner, testified for the first time at the trial. He stated that he and Wildman responded to a reported breaking and entering, and when they saw someone in the house, they radioed for assistance and the house was surrounded. At that point, they went inside. Siegel and Eiko came upstairs to the kitchen from the basement. They identified themselves, and Eiko produced identification. Wildman left to do a LEIN check, and Sweetman stayed with Siegel and Eiko. Since he had "no real grounds to arrest them and the whole thing was kind of a mix-up”, Sweetman accompanied them while they roamed about the house, going from room to room, and later outside to the garage. At some point, someone tried to ascertain the owner of the house from the city directory, but Sweetman did not see the result of the inquiry. Wildman returned and said that there was an outstanding bench warrant on Siegel for an unpaid traffic ticket, and defendant was arrested at this time. Wildman conducted a pat-down search, and Sweetman took the defendant to the back seat of Officer Buekema’s cruiser. Defendant was very cooperative and so they did not handcuff him. He was alone in the cruiser. Eiko was still standing near the house at this time. He was later taken downtown, but was never formally charged with anything as the result of the events of that night. At this time, Sweetman went over to assist Wildman in listing the articles found during the inventory search of the car.

The defendant contends on appeal that the trial court erred in refusing to suppress the marijuana that was discovered during the inventory search of the automobile because that search was not valid and the bag was not in plain view.

The people have the burden of proving the reasonableness of any search and seizure. People v White, 392 Mich 404; 221 NW2d 357 (1974). If the people fail to meet this burden, the courts will suppress the admission into evidence of any fruits of the unwarranted search. Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961).

The trial court’s determination of whether evidence is admissible in a suppression hearing will be reversed only where it is clearly erroneous. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978). We will therefore consider the testimony available to the trial court at the suppression hearing, which consists of both the preliminary examination testimony and the testimony at the suppression hearing, in order to determine whether the people’s burden to show the reasonableness of the search was met.

In People v Murphy, 87 Mich App 461, 465; 274 NW2d 819 (1978), the Court stated that in order for the plain view doctrine to apply, the officer must have been rightfully in the position from which the evidence was in plain view, the officer must have had prior justification for his intrusion, and the discovery must have been inadvertent. According to Officer Wildman, he did not see either the billy club or the marijuana when he was looking in the car for the registration. He did not say that this evidence was observable from the car windows. Therefore, the plain view exception to the warrant requirement was not applicable.

We must therefore decide if the inventory search of the car was valid. In South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), the Supreme Court upheld an inventory search and impoundment pursuant to state police procedures as being reasonable under the Fourth Amendment, where the car was impounded because of multiple parking violations and the owner was not present to make other arrangements. The Court stated that the relevant inquiry is the reasonableness of the seizure under all the facts and circumstances of each case. The Court mentioned the following circumstances where such a search would be justified:

"In the interests of public safety and as part of what the Court has called 'community caretaking functions,’ Cady v Dombrowsky, supra, at 441, automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will * * * frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” 428 US at 368-369.

The Court noted that the impoundment in question was a standard police procedure and was not a pretext concealing a police investigatory motive.

The Opperman case was cited with approval by this Court in People v Boutell, 80 Mich App 216; 263 NW2d 36 (1977), where the defendant was arrested for driving under the influence of liquor and snow along the side of the road hampered parking the vehicle. Police impounded the vehicle, then conducted an inventory search.

In People v Merchant, 86 Mich App 355, 361; 272 NW2d 656 (1978), summarized the justifications for an inventory search as follows: (1) the protection of property while held in police custody; (2) protection of the police against claims over lost or stolen property; and (3) protection of the police from potential danger. In the' Merchant case, police removed defendant’s briefcase from a rented car at the airport. The Court first decided that defendant had returned the leased car and so had no privacy interest or standing to contest the search. The Court then found that, under Opperman, the police were justified in opening the defendant’s briefcase to inventory the contents, since defendant had been placed under arrest on an outstanding warrant and his personal effects were to be taken into police custody.

In People v Erskin, 92 Mich App 630, 643; 285 NW2d 396 (1979), this Court upheld an inventory search of an automobile as reasonable under Opperman because its driver had abandoned it at the side of the road after being stopped by police, who believed it to be stolen. The Court concluded that, under these circumstances, the car was legitimately taken into police custody.

In the cases which follow Opperman, supra, we note that the automobile was. either parked illegally on a public street, or at the side of the road, or had indeed been abandoned by its driver. The instant factual setting involves a vehicle which was legally parked on private property, which the defendant alleged that he owned-

In United States v Newbourne, 600 F2d 452, 457-458 (CA 4, 1979), the court stated that under Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), and United States v Bradshaw, 490 F2d 1097 (CA 4, 1974), there is a significant difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose. The court noted that a search warrant would not be required if the car parked on private property got there only after close pursuit. Scher v United States, 305 US 251, 254-255; 59 S Ct 174; 83 L Ed 151 (1938). See also, Cardwell v Lewis, 417 US 583; 94 S Ct 2464; 41 L Ed 2d 325 (1974).

We find that there was no valid reason to impound the locked automobile which was legally parked on a private driveway. The officer testified that he was not concerned with personal safety, nor was he seeking the fruits of a possible breaking and entering. The automobile was locked and property parked in a driveway so there was no public safety reason to impound it. The defendant’s friend, Eiko, had not been arrested at that time and could presumably arrange to take care of the vehicle if the defendant did not wish to leave it in the driveway. In fact, the police never asked the defendant whether he wanted to make any arrangements for the automobile. We conclude that this "inventory search” was a mere pretext for an investigation rather than a. normal police procedure, so we cannot uphold it under Opperman, supra.

Based on the foregoing analysis, the trial court erred in denying the defendant’s motion to suppress the billy club and marijuana which were the fruits of the warrantless search.

The defendant’s next allegation is that the cocaine which was found in the back of Sgt. Buekema’s police car should have been suppressed because defendant had not been informed of his statutory right under MCL 780.581; MSA 28.872(1) to post interim bail. We agree.

It is clear from the testimony that the defendant was initially arrested only because of the warrant on the traffic offense and not because of the alleged breaking and entering. Siegel and Eiko were both in the house together, yet Eiko was not arrested until after the defendant had been taken down to the station. In fact, according to his testimony, the police had told him that he was free to go and that they were going to call a cab for him. Officer Wildman returned from his car with the result of a LEIN check showing an outstanding warrant for Siegel and arrested Siegel.

Under People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), the Supreme Court held that the arresting officer is under an affirmative duty to inform one who is arrested for a minor offense of his right to post bail. The Court further held that heroin which was discovered on the defendant’s person at a jailhouse inventory search must be suppressed, where defendant had not been informed of this right.

In People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978), the defendant was stopped for a minor traffic violation and was later convicted of possession of cocaine as a result of a search on the scene. This Court held that the search violated Dixon, supra, and said that where defendant had not been informed of his rights under the interim bail statute, the evidence must be suppressed, reasoning as follows:

"If Dixon were only to apply at the station house, as the prosecutor maintains, then astute police officers would quickly learn that, absent an advice of rights under the bail statute, evidence produced in an exhaustively intrusive on-the-scene search could be admitted but evidence derived from an equally comprehensive search at the jail could not. We doubt that the Supreme Court intended to create such an anomaly. Thus, to shore up what would otherwise be a gaping loophole in the law, we hold that Officer Ibanez, after having frisked defendant for weapons and having found none, had no authority to retrieve or examine the seemingly innocuous tinfoil packets. Instead, he had a duty to inform this defendant 'of the statutory protection [under the interim bail act] of which he otherwise would probably be ignorant’. Dixon, supra, at 703.

"Contrary to the prosecutor’s suggestion, we do not rule that police are now required 'to accept bail on the street’, but that arresting officers, following an external (but fruitless) pat-down for weapons, are obliged to inform a minor traffic offender of his statutory rights and upon arrival at the station house to accept bail (proffered by such a defendant or one acting on his behalf, Zehrung v State, supra, 569 P2d [189] at 195 [Alaska, 1977]) if no magistrate is readily available for an arraignment.” 81 Mich App 272-273. (Footnotes omitted.)

The fact that cocaine was discovered because defendant dropped it on the floor of the cruiser, rather than as the result of a search of his person, does not alter the result. See, People v Recorder’s Court Judge #2, 73 Mich App 156, 159; 250 NW2d 812 (1977). If defendant had been informed of his right to bail, it is logical to assume that he would not have felt the need to discard the cocaine in the cruiser in an effort to avoid its discovery in a stationhouse search.

We therefore hold that the cocaine recovered from the police cruiser must be suppressed because defendant was not informed of his right to post bail.

The other allegations of error raised by the defendant are without merit and require no discussion.

Reversed and defendant is discharged.


text:
    PEOPLE v ROBIN FORD
    Docket No. 43631.
    Submitted December 19, 1979, at Detroit.
    Decided February 21, 1980.
    Robin C. Ford was convicted, on his plea of guilty, of unarmed robbery and was placed on probation. He subsequently was found to have violated the terms of probation and was sentenced to prison, Wayne Circuit Court, Peter B. Spivak, J. Defendant appeals. Held:

    1. The defendant may not now challenge the proceeding in which he was found guilty of unarmed robbery, not having appealed that conviction in a timely manner.
    2. The conditions of defendant’s probation were not unlawful. Among those conditions was the requirement that defendant pay costs and child support for his children. Defendant was found to have failed to make these payments, and revocation of probation based on that failure was not error.
    3. The defendant had made no effort to inform the court of changed circumstances which prevented his making the required payments. Henceforth, trial courts are to inform defendants being placed on probation that if they are unable to comply with the terms of probation the defendants have the burden and the opportunity to petition the court for modification of the probation orders.
    Affirmed.
    D. E. Holbrook, Jr., J., concurred in the result only.
    1. Appeal and Error — Criminal Law — Failure to Appeal — Probation Revocation.
    A defendant who failed to appeal from a conviction for which he received a sentence of probation may not later challenge that conviction during a probation revocation proceeding.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 274.
    When criminal case becomes moot so as to preclude review of or attack on conviction or sentence. 9 ALR3d 462.
    [2] 21 Am Jur 2d, Criminal Law §§ 565, 566.
    [3] 5 Am Jur 2d, Appeal and Error § 1028.
    [4] 21 Am Jur 2d, Criminal Law §§ 565.3, 567.
    Ability to pay as necessary consideration in conditioning probation or suspended sentence upon reparation or restitution. 73 ALR3d 1240.
    [5, 6] 21 Am Jur 2d, Criminal Law § 562 et seq.

      2. Criminal Law — Probation — Conditions of Probation.
    Trial courts have wide discretion in fashioning conditions of probation, limited only by the requirement that the conditions be lawful and logically related to rehabilitation.
    3. Appeal and Error — Abandonment of Issues.
    Issues not raised or briefed on appeal are deemed to be abandoned.
    4. Criminal Law — Probation Revocation — Indigency — Equal Protection.
    Revocation of probation based solely upon the failure of an indigent defendant to pay, where payment of specified items is a condition of probation, is a denial of equal protection.
    5. Criminal Law — Probation — Modification of Probation Order.
    A sentencing judge has broad authority to alter and amend a probation order upon the petition of the probationer.
    6. Criminal Law — Probation — Advice to Defendant — Modification of Probation Order.
    A trial judge, when imposing probation upon a defendant, must inform the defendant that if he is unable to comply with the terms of probation, the defendant has the burden and the opportunity to petition the court for modification of the probation order.

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

      Carson, Fisher & Potts, for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
   Per Curiam.

In 1975, defendant was plea convicted of unarmed robbery, contrary to MCL 750.530; MSA 28.798, and sentenced to a term of 6 to 15 years which was suspended, conditioned on his successful completion of a 3-year-long probation. At a hearing held on October 10, 1978, defendant was found to have violated his probation, whereupon the suspended sentence of incarceration was imposed. Defendant now appeals as of right.

Defendant’s first two issues attack the underlying conviction proceeding. Defendant failed to appeal from that conviction in a timely manner and cannot now question its validity. See People v Pickett, 391 Mich 305, 308; 215 NW2d 695 (1974), People v Johnson, 87 Mich App 544, 545; 274 NW2d 68 (1978).

Defendant further contends that he was wrongfully found to have violated his probation. Much of his argument is devoted to disputing the validity of the probation conditions originally imposed. As previously noted, this issue cannot be addressed, Pickett, supra, Johnson, supra, except as it is relevant to whether defendant’s probation was lawfully terminated.

Trial judges have great discretion in designing probation standards, limited only by thé requirement that the conditions be lawful and logically related to rehabilitation. People v Johnson, 92 Mich App 766; 285 NW2d 453 (1979), People v Pettit, 88 Mich App 203, 205; 276 NW2d 878 (1979). After reviewing the conditions which defendant violated, (1) failure to pay child support, (2) failure to pay court costs, (3) failure to do charitable work, (4) failure to report to the probation officer, and (5) leaving State of Michigan without permission, we are convinced that none of the conditions are unlawful per se. The inquiry then becomes whether the conditions were unlawful as applied to defendant, so that his incarceration was improperly imposed.

Three of the conditions were not challenged on appeal. It is well settled that issues not raised or briefed on appeal will be deemed abandoned. Meshriy v Sun Oil Co, 67 Mich App 709, 711; 242 NW2d 497 (1976), Taylor v Klahm, 40 Mich App 255, 269; 198 NW2d 715 (1972). However, we will review these uncontested conditions to ensure that no manifest injustice results.

Defendant’s leaving the State of Michigan was a violated condition that was probably not relied upon by the trial judge as it had been dealt with at earlier hearings.

Failure to report to the probation officer was an alleged violated condition added sua sponte at the hearing by the judge. Many defendants have been successful in getting their probation revocations reversed on appeal when it is proven that a trial judge relied on probation violations mentioned for the first time at the revocation hearing. See People v Givens, 82 Mich App 336, 340; 266 NW2d 815 (1978), People v Acosta, 65 Mich App 640, 641; 237 NW2d 601 (1975). The present defendant has not made this lack of notice assertion on appeal. We believe that no injustice results to defendant by our not reviewing such a claim, as defendant fully explained his failure to report to the probation officer within the context of his "failure to pay costs and child support” arguments, conditions of which he did have notice.

Defendant asserts on appeal that the trial court erred in not finding him indigent and in imposing sentence for failure to pay child support. Although not raised on appeal, the indigency defense would apply equally as well to the paying of court costs condition.

There is nothing inherently wrong with imposing child support or costs as probation conditions. See MCL 771.3; MSA 28.1133, Fuller v Oregon, 417 US 40; 94 S Ct 2116; 40 L Ed 2d 642 (1974), People v Emery, 71 Mich App 556; 248 NW2d 619 (1976), People v Hill, 69 Mich App 41; 244 NW2d 357 (1976). These conditions were lawfully imposed following the original conviction considering defendant’s salary at the time.

Revocation of probation based solely on indigency is a violation of equal protection. People v Lemon, 80 Mich App 737, 745; 265 NW2d 31 (1978), People v Terminelli, 68 Mich App 635, 637; 243 NW2d 703 (1976). In the instant case, the trial court failed to make necessary inquiries into defendant’s present financial condition. This determination of capacity to pay should have been made on the record, Lemon, supra at 744. However, there is sufficient information on the record for us to determine that it was not error for the instant trial judge to revoke probation based on the failure to pay costs and support.

A sentencing judge has broad authority to alter and amend probation orders upn the petition of the probationer. People v Sattler, 20 Mich App 665, 669-670; 174 NW2d 605 (1969). In this case, despite his claims of being unable to find a new job after being fired and of being unable to pay, defendant did not inform his probation officer, attorney or the trial judge of his circumstances, or petition for modification, unlike the defendant in Lemon, supra. Neither did he attempt to make any minimal token payments as the defendant did in Terminelli, supra, beyond the initial child support payment made in the first month of probation. Thus, we consider it fair for the defendant to have been found to violate his probation based on nonpayment.

In many probation cases, the emphasis is on merely impressing defendants with the severe consequences of violating probation. While we believe that it is important to stress that the conditions will be enforced exactly as written, we believe that it is equally important to indicate to defendants that the conditions can be altered. We hold that, in future cases, trial judges must inform defendants that if they are unable to comply with probation standards, they have the burden and opportunity to petition the court for modification.

Finally, the instant defendant contends that sentence was improperly imposed based on his failure to do charitable work. We believe that this lawful condition (requiring 4 hours a month) was rationally tailored to the defendant’s rehabilitation, Johnson, supra, and, therefore, will not reverse on this basis.

Affirmed.

D. E. Holbrook, Jr., J., concurs in result only.

       In the instant case, the trial judge somewhat conveyed the spirit of this future requirement to defendant when he stated at defendant’s original sentencing:
      "If you violate the probation — that means if you — look, if you get laid off or something — get some problem like that — you talk to Mr. Panaretos. You talk to your probation officer. You do something.”
      However, the judge did not fully explain the possibility of legal modification to defendant, nor did he ask him if he understood. Both a full explanation of modification options, plus an acknowledgement that a defendant understands, will be necessary at future proceedings involving the suspension of sentence.


text:
    HALL v HALL
    Docket No. 44744.
    Submitted October 17, 1979, at Detroit.
    Decided February 21, 1980.
    The Macomb Circuit Court, Raymond R. Cashen, J., granted plaintiff, Sharon Y. Hall, a divorce from defendant, David E. Hall, and granted custody of their two minor children to defendant. Plaintiff appeals, alleging that the trial court erred in presuming she was an unfit mother because she had chosen to enter into a lesbian relationship. Held:

    The record indicates that the trial court considered a number of factors in determining the moral fitness of plaintiff. Her homosexuality was one of the factors and the court properly considered it.
    Affirmed.
    Parent and Child — Divorce — Custody — Factors Affecting Moral Fitness — Homosexuality.
    A trial court in a divorce action correctly considered the homosexuality of a party as one factor in its determination of moral fitness to have custody of the minor children.
    References for Points in Headnote
    [1] 24 Am Jur 2d, Divorce and Separation § 788.
    42 Am Jur 2d, Infants §§ 42, 51.
    59 Am Jur 2d, Parent and Child § 26.

      Nowinski & Wagner, P.C., for plaintiff.
    David E. Hall, in propria persona.

    Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

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

   Per Curiam.

This appeal of right is claimed by the plaintiff from a judgment of divorce which granted defendant the custody of the parties’ two minor children.

Plaintiff first argues the trial court abused its discretion in making findings of fact pursuant to MCL 722.23; MSA 25.312(3), premised on the allegation that the trial court presumed plaintiff was an unfit mother because she had chosen to enter into a lesbian relationship. The record refutes that allegation. The detailed findings of the trial court fully and fairly considered all of the evidence that was presented by the parties. With regard to the plaintiffs admitted preference for a homosexual relationship, the evidence was found to demonstrate that, given a conflict, the plaintiff would unquestionably choose the relationship over the children. Such potential conflict may be considered as bearing on the issue of which parent is the more qualified to furnish guidance in the best interests of the children. We are also persuaded that the trial court correctly regarded plaintiffs homosexuality as only one factor in its determination of moral fitness. Consideration was clearly given to defendant’s lifestyle as well in this regard. Finally, under the "catch-all” factor (j), the lower court found the evidence indicated that the interests of the children could well be subverted by plaintiffs relationship, which was clearly the chief priority in her life. It is evident from the record that the trial court fairly considered all of the evidence presented and based its custody decision on sensitive and sophisticated findings of fact. Stevens v Stevens, 86 Mich App 258, 263; 273 NW2d 490 (1978).

As to the other issue raised by plaintiff on appeal, we find no abuse of discretion in the trial court’s ruling. People v Castillo, 82 Mich App 476, 480-481; 266 NW2d 460 (1978).

Affirmed.