author: Mackenzie, J.

text:
    PEOPLE v STUBBS
    Docket No. 46436.
    Submitted June 6, 1980, at Grand Rapids.
    Decided August 27, 1980.
    Walter D. Stubbs was convicted of felonious assault in Berrien Circuit Court, James E. Hoff, J. The defendant appeals alleging that the trial court erred in refusing to give instructions requested by the defense and by considering the defendant’s lack of remorse at the time of sentencing. Held:

    1. A trial judge is required to give instructions on the theories of the parties if they are requested and supported by some evidence. Here the requested instructions were either not appropriate defenses to the charged oifense, or had no supporting evidence in the record.
    2. It is improper for a trial judge to enhance a defendant’s sentence because the defendant refuses to admit guilt. Here, however, the judge merely considered behavior of the defendant which demonstrates a disregard for legal processes and a lack of respect for the law, which are proper considerations in sentencing.
    Affirmed.
    1. Criminal Law — Jury Instructions — Theories of Parties.
    A trial judge is not required to give instructions on the theories of the parties where, even though requested the, instructions are either not appropriate defenses to the charged offense or have no supporting evidence in the record.
    2. Criminal Law — Enhancement of Sentences — Admitting Guilt.
    It is improper for a trial judge to enhance a defendant’s sentence because the defendant refuses to admit guilt, but behavior of a defendant which demonstrates a disregard for legal processes and a lack of respect for the law is a proper consideration in sentencing.
    References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 653, 654.
    [2] 21 Am Jur 2d, Criminal Law § 525 et seq.

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

      Stancati & Marovich, P.C., for defendant on appeal.
    Before: R. B. Burns, P.J., and Mackenzie and J. T. Kallman, JJ.

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

   Mackenzie, J.

The defendant was charged with two counts of felonious assault, MCL 750.82; MSA 28.277. On May 4, 1979, a Berrien County Circuit Court jury found the defendant guilty as to one count and not guilty as to the second. Defendant was sentenced to nine months imprisonment and appeals his conviction as of right.

The defendant’s contention that the trial court erroneously refused to give instructions requested by the defense is without merit. A trial judge is required to give instructions on the theories of the parties if they are requested and supported by some evidence. GCR 1963, 516.7, People v Lester, 406 Mich 252; 277 NW2d 633 (1979), People v Stephens, 84 Mich App 250; 269 NW2d 552 (1978). In this case, we find that the requested instructions were either not appropriate defenses to the charged offense or had no supporting evidence in the record.

We find the defendant’s contention that the trial court committed error at sentencing by considering the defendant’s lack of remorse also lacking in merit. At sentencing, after a plea for leniency by defendant’s attorney, the following comments were made by the court:_

"THE COURT: Mr. Stubbs, is there anything you would like to say to me, personally, on your own behalf, in addition to what Mr. Zausner said?
"THE DEFENDANT: Nothing, your Honor.
"THE COURT: Mr. Stubbs, on September 27th of 1977, you broke into the residence home of your cousin, Ralph Steven Smith. Your intent, as your attorney says, your purpose, was to take your wife, Kalane’s child, Micah, from the Smith home and return her to your own home in Michigan City, Indiana. That came through loud and clear in the trial; it comes through in the report. I believe that to be the fact.
"You were successful in what you set out to do, but in the process of doing it, you assaulted Micah’s father, Ralph Steven Smith, with a dangerous weapon, a piece of broken window glass which had a sharp cutting edge.
"In listening to the trial and reviewing the Presentence Report, I find that you knew there was a Court order that had permitted temporarily for Micah to be with her father, in his home.
"I find as a fact that you had been in this very courthouse, perhaps this courtroom, I don’t know, but certainly this courthouse, that very day, and you had been informed of that Court order.
"I also find that you knew, you knew that very day, on September 27th, that a formal court hearing had already been scheduled three days in the future, namely on Friday, September 30th, to hear the question and determine the question as to whether there should be a change in custody for Micah.
"In spite of this, and you chose not to wait for that court hearing, you decided upon self-help, and here are some of the things that have happened as a result of that fateful decision on your part.
"First of all, obviously, as I pointed out, you were successful, you got Micah, and returned her to your wife. That is one thing that happened, you returned her to your wife.
"Another thing that happened, the court hearing that was scheduled for September 30th, was not held, because your wife, Kalane, did not appear, nor did Micah.
"You, of course, knew there would be repercussions from the violent acts that had taken place, and so when you and your wife and Micah got back to your home in Michigan City, you disrupted your whole life, your life, Micah’s life, your wife’s life, and you packed a few things and you left hurriedly for Florida, that very same night.
"Of course, you gave up your employment. After about six months, and to your eternal credit, you did return voluntarily to Michigan, to face the music; be arrested, and be tried on the charges that had been instituted against you.
"But another event that has transpired is that your wife, Kalane, has never returned, nor has Micah, and so it is a said fact that a father and a daughter have not seen each other since that fateful late afternoon, early evening, of September 27th, 1977.
"Another sad fact, sir, involves your own family. You have caused a rift in it. Relatives that are common to you and to your cousin, Ralph Smith, are no longer on speaking terms.
"You know, Mr. Stubbs, you appear to me to be a very capable and very talented man. You have a clean record, with the law, except for this particular episode. You have a good employment record, yet in this one particular matter you chose to place yourself above the law, disregarding the law, violating the law.
"I have given the matter of your sentence very careful thought. Probation to me seems inappropriate in your case, partly because of your attitude towards the law, which is that I, Stubbs, am superior, that I, Stubbs, am superior to any Court of justice, and I will take matters in my own hands to settle matters to my own satisfaction, in my own way.
"And it also seems inappropriate because I still get the feeling, sir, that you still don’t think you have ever done anything wrong.
"All right. It is the judgment and the sentence of this Court that you be confined in the Berrien County Jail for nine months. Against that sentence, you shall receive credit for one day of jail time already served.” (Emphasis added.)

Defendant claimd the italicized language was error under People v Yennior, 399 Mich 892 (1977), and People v Grable, 57 Mich App 184; 225 NW2d 724 (1974). We disagree. In People v Grable, the trial court argued with the defendant that he must be lying about being innocent because three or four witnesses had testified otherwise. The court ruled out probation and gave the maximum sentence, stating:

"THE COURT: Very well, the first problem in rehabilitation is to find a man that will at least be honest with himself and society. If I can’t establish that, then, I don’t have much hope on rehabilitation or probation”. 57 Mich App 188.

The holding of this Court in Grable was that it is improper to enhance sentence because of refusal of the defendant to admit guilt.

Similarly, in People v Yennior, supra, the Supreme Court stated that a court cannot base its sentence even in part on a defendant’s refusal to admit guilt. The facts here do not parallel Yennior or Grable. There was no denial by this defendant of guilt following conviction. Defendant declined to exercise his right to speak when the court inquired whether, he had anything to say personally on his own behalf. Defendant had not testified at trial.

The trial court, at the hearing on motion to vacate sentence, responded directly to defendant’s claim that the court had weighed defendant’s lack of remorse and failure to admit guilt:

"He [defendant] was in court, he knew 3 days later there would be a full-fledged hearing to determine in a court of law who would have custody of Micah, whether there should be a change, and instead of that he used the self-help principle, so taking it into that context, it’s not a question of talking about criticizing him for not admitting guilt or predicating any sentence upon the man because he wouldn’t acknowledge guilt, but it’s in the context of imposing self-help as against having the patience to wait 3 days and avail himself of due process of law.”

This illustrates that defendant’s self-help behavior was weighed in determining the sentence. The sentencing court was rightfully considering that, at the time of the commission of the assault, defendant was engaged in a deliberate course of action to obtain the physical custody of a child contrary to an order of the Berrien County Circuit Court.

The court was not indicating an intent to sentence based upon defendant’s failure to show remorse or defendant’s refusal to admit guilt; rather, the court was considering behavior of the defendant which demonstrated a disregard for legal processes and a lack of respect for the law. This is a proper consideration in sentencing.

A Maryland case, Mahoney v State, 13 Md App 105; 281 A2d 421; 64 ALR3d 1219 (1971), cert den 409 US 978; 93 S Ct 306; 34 L Ed 2d 241 (1972), involved the trial judge at the sentencing proceedings conducting a wide-range inquiry into the defendant’s life, then the judge asking whether defendant intended to file an appeal.

The Maryland court disapproved of the inquiry as to whether defendant would appeal but did not find reversible error, stating at 112:

"We have held that the matter of sentencing within the limits of the law is peculiar to the trial judge and will not be reviewed by this Court unless dictated by passion, prejudice, ill-will, or other unworthy motive. See Johnson v State, 9 Md App 37, 39 [262 A2d 325] (1970). Minor v State, 6 Md App 82 [250 A2d 113] (1969), Gee v State, [2 Md App 61; 233 A2d 336 (1967)].”

The statutory maximum for the felonious assault conviction in this case is four years, so the sentence of this defendant to nine months in the county jail was well within limits. In People v McLott, 70 Mich App 524; 245 NW2d 814 (1976), this Court recognized the wide discretion of the trial court in matters of sentencing when the sentence is within statutory limits. See also People v Alsteens, 49 Mich App 467; 212 NW2d 243 (1973). We will not disturb the sentence.

Affirmed.


source: Caselaw Access Project

author: Bashara, J. D. C. Riley, J.

license: Public Domain

text:
    PEOPLE v AARON
    Docket No. 46789.
    Submitted June 10, 1980, at Detroit.
    Decided August 27, 1980.
    Defendant, Walter Aaron, appeals from convictions of armed robbery and possession of a firearm during the commission of a felony, and also from his conviction of habitual offender, fourth offense, in Recorder’s Court of Detroit, Dalton A. Roberson, J. Defendant contends: (1) that the trial court abused its discretion in denying defendant’s motion to suppress evidence of his prior convictions; (2) that there was insufficient evidence to sustain the armed robbery and felony-firearm convictions; and (3) that defendant’s habitual offender conviction must be reversed as being contrary to the requirements enunciated in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), in that the prosecutor did not proceed on the habitual offender charge until after defendant’s convictions of armed robbery and felony-firearm had already occurred, even though defendant’s past record was readily available to the prosecutor. Held:

    1. The trial court heard arguments on the motion to suppress evidence of defendant’s prior convictions and recognized, on the record, its discretion to deny the motion. There was no error in holding that the evidence was admissible for impeachment purposes.
    2. Defendant’s contention that there was insufficient evidence to sustain his armed robbery and felony-firearm convictions is without merit because the eyewitness testimony of the victim, coupled with the recovered stolen check made payable to the defendant, would enable a finder of fact to establish his guilt beyond a reasonable doubt.
    3. Because of defendant’s allegation of error with respect to the habitual offender conviction, defendant was sentenced to a lesser term in prison. Defendant has not been prejudiced by that alleged error.
    Affirmed.
    References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 320 et seq.

    [2] 29 Am Jur 2d, Evidence § 327.

      D. C. Riley, J., concurred but would hold that, in future cases involving the admissibility of evidence of prior convictions, trial courts must note the following three factors on the trial record before the prior convictions may be used against the defendant: (1) that the use of evidence of the defendant’s prior convictions relate to credibility; (2) that the probative value of admission of évidence of the prior convictions outweighs any prejudicial effect; and (3) that there are no alternative, less burdensome means of impeaching the defendant while protecting his right to choose whether or not to testify.
    Opinion of the Court
    1. Criminal Law — Evidence — Prior Convictions — Motion to Suppress — Discretion.
    A trial court has the discretion to deny a motion to suppress evidence of prior convictions, and where the court hears arguments on the motion and recognizes its discretion on the record no abuse of discretion is shown.
    Concurrence by D. C. Riley, J.
    2. Criminal Law — Evidence — Prior Convictions — Admissibility — Discretion.

      A trial court has the discretion to grant or deny a motion to suppress evidence of prior convictions, but the court must note, on the record, its consideration of the following three factors before evidence of prior convictions may be admissible for purposes of impeachment: (1) that defendant’s prior convictions relate to credibility; (2) that the probative value of admission outweighs any prejudicial effect; and (3) that there are no alternative, less burdensome means of impeaching the defendant while protecting his right to choose whether or not to testify.

      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.

      Gerald S. Surowiec, for defendant on appeal.

      Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Bashara, J.

Defendant appeals his jury conviction of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant also appeals his guilty-plea conviction of habitual offender, fourth offense, MCL 769.13; MSA 28.1085.

Initially, defendant contends that the trial court abused its discretion in denying the motion to suppress evidence of his prior convictions. The court heard arguments on the motion and recognized its discretion on the record. People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979). We find that the court did not err in holding that the evidence was admissible for impeachment purposes, based upon the factors enunciated in People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), and MRE 609.

Defendant’s contention that there was insufficient evidence to sustain the armed robbery and felony-firearm convictions is also without merit. The eyewitness testimony of the victim, coupled with the recovered stolen check made payable to the defendant, would enable a finder of fact to establish his guilt beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

Finally, defendant alleges that the habitual offender conviction must be reversed as being obtained contrary to People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). In view of the fact that defendant was sentenced to a lesser prison term as a result of the alleged error, we find no possible prejudice.

Affirmed.

E. A. Quinnell, J., concurred.

D. C. Riley, J.

(concurring). I concur with the majority opinion but believe that the admissibility of prior convictions issue merits further comment.

The trial judge correctly noted his discretion on the record. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). He did not, however, note his consideration of the Crawford (People v Crawford, 83 Mich App 35; 268 NW2d 275 [1978]) factors in this matter, specifically, that defendant’s convictions relate to credibility, that the probative value of admission outweighs any prejudicial effect and that there are no alternative, less burdensome means of impeaching the defendant while protecting his right to choose whether or not to testify. The trial court must note all three factors on the record in future cases. MRE 609, People v Joyner, 93 Mich App 554; 287 NW2d 286 (1979).


author: Bashara, P.J.

text:
    PEOPLE v ROCHA (AFTER REMAND)
    Docket No. 47132.
    Submitted June 11, 1980, at Detroit.
    Decided August 27, 1980.
    Leave to appeal applied for.
    Domingo Rocha was convicted, on his plea of guilty, of possession of heroin and was placed on probation. He was subsequently found to have violated probation and his probation was revoked. He appealed and the Court of Appeals reversed and remanded, 86 Mich App 497 (1978). The matter was reheard and Rocha was again found guilty of the probation violation, Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals, alleging that the trial court erroneously interrogated the witnesses at the revocation hearing, that the probation violation was not shown by a preponderance of the evidence, and that he was denied effective assistance of counsel. Held:

    1. The due process criteria for probation violation hearings were met. There was no prosecutor present to question the witnesses and, absent any evidence of partiality or prejudice, the trial court’s questioning of the witnesses was not erroneous.
    2. The finding of a probation violation was based on verified facts.
    3. Defendant’s counsel chose not to participate in the hearing, apparently because he mistakenly believed that the hearing was a nullity since the other cases against the defendant were still on appeal. This mistake was not so great, however, that it can be said that but for the mistake there is a great likelihood that the defendant would not have been convicted, because the evidence of the probation .violation was clear and convincing.
    Affirmed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    Procedural requirements, under Federal Constitution, applicable to revocation of probation or parole. 36 L Ed 2d 1077.
    [2] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    [3] 21 Am Jur 2d, Criminal Law § 568.
    [4] 21 Am Jur 2d, Criminal Law § 315.
    Modern status of rule as to test in federal court of effective representation by counsel. 26 ALR Fed 218 (supplementing 74 ALR2d 1390).

      1. Criminal Law — Probation Revocation Hearing — Due Process.
    A probation revocation hearing is not a stage in the proceedings of a criminal prosecution; however, certain due process criteria must be met at a probation revocation hearing.
    2. Criminal Law — Probation Revocation Hearing.
    There is no requirement that a prosecutor be present at every probation revocation hearing; it is not improper for the court to conduct such a hearing as long as there is no evidence of partiality or prejudice.
    3. Criminal Law — Probation Violation — Appeal.
    A trial judge’s finding that a probation order has been violated will not be overturned where the finding is based on verified facts and where the judge’s exercise of discretion was based on accurate knowledge of the probationer’s behavior.
    4. Criminal Law — Effective Assistance of Counsel — Mistake of Law.
    A defendant is denied effective assistance of counsel because of his attorney’s mistake of law where it can be determined that but for the mistake there is a great likelihood that the defendant would not have been convicted.

      Carl Ziemba, for defendant on appeal.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   After Remand

Bashara, P.J.

In 1976, defendant pled guilty and was convicted of possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He was placed on probation. Four months later, his probation was revoked at a probation violation hearing. This Court reversed and remanded because the revocation hearing took place before the trial on the charge leading to the probation revocation. People v Rocha, 86 Mich App 497; 272 NW2d 699 (1978).

Subsequent hearings were held in the trial court, resulting in a finding of defendant’s guilt on the probation violation charge.

On appeal, defendant first contends that the trial judge erroneously interrogated the witnesses at the revocation hearings.

Probation revocation hearings are not a stage in the proceedings of a criminal prosecution. Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973).

In Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), minimum due process requirements for parole violation hearings were set forth. Gagnon, supra, indicated that the same standards apply to both parole and probation violation hearings. All of those criteria have been met in the instant case. Nowhere is there a requirement that a prosecutor must be present at every probation violation hearing.

The only possible question is whether the proceeding was held before a "neutral and detached hearing body”. Our review of the record reveals that the defendant suffered no prejudice as a result of the court’s interrogation of the witnesses. The trial judge merely asked police witnesses what had transpired, and they narrated the events precipitating the defendant’s arrest. There was no evidence of partiality toward the prosecution. So long as there is no evidence of partiality or prejudice, it is not improper for the court to conduct a probation revocation proceeding. However, we must observe that where probation proceedings are contested, it is preferable that the interrogation of the defendant be conducted by the prosecutor, so as to avoid the potential or the appearance of bias.

Defendant also claims that the charge of probation violation was not proven by a preponderance of the evidence. Again, our review of the record shows the claim to be devoid of merit. A trial judge’s finding that a probation order has been violated will not be overturned where it is based on verified facts and where the trial judge’s exercise of discretion was based on accurate knowledge of the probationer’s behavior. People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975).

Finally, defendant argues that he was denied effective assistance of counsel where his attorney refused to participate in the hearings. Counsel apparently chose this "strategy” because the other cases involving the defendant were on appeal. It was his position that to conduct a revocation hearing while cases involving the defendant were on appeal rendered the instant hearing a nullity.

To say that counsel was under a serious misapprehension of the law would be an understatement. However, under the test of People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), a determination must be made that but for this mistake there is a great likelihood that defendant would not have been convicted. The evidence in this case is so clear and convincing that there is no likelihood of defendant escaping conviction, with or without the "strategy” of defense counsel.

Affirmed.


author: D. F. Walsh, J.

text:
    PEOPLE v MARKLEY
    Docket No. 47206.
    Submitted June 12, 1980, at Grand Rapids.
    Decided August 27, 1980.
    David Markley was convicted on three counts of armed robbery and was sentenced to prison, Kalamazoo Circuit Court, Marjorie L. Luna, J. He appeals, alleging that he was denied due process and that his right against self-incrimination was violated by the trial court’s permitting a demonstration by the prosecution requiring him to wear in the presence of the jury certain clothing found near the scene of the robbery, and that he was denied a fair trial by the prosecutor’s repeated references to extraneous matters which impugned his character in the eyes of the jury. Held:

    1. The demonstration was not improper. It could not be characterized as testimonial, and no constitutional rights were violated. The procedure was controlled by the trial court, and the jury was free to find it irrelevant for identification purposes. Defendant was given full opportunity during the demonstration and in closing argument to point out any inconsistencies and to refute any claim that the clothing was worn by him on the day of the robbery.
    2. No reversible error occurred. Defendant did not suffer manifest injustice as a result of testimony regarding his financial condition, and no objection was made concerning its relevancy. The other testimony complained of was either proper or was stricken from the record upon timely objection.
    Affirmed.
    1. Criminal Law — Demonstration Evidence — Due Process — Self-Incrimination.
    A demonstration by the prosecution requiring a defendant, with the permission of the trial court, to wear articles of clothing found near the scene of the crime charged in the presence of the jury does not result in a denial of due process for the defendant; nor is it a violation of his right against self-incrimination.

      References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law §§ 360, 361, 362.
    [2] Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification. 24 ALR3d 1261.
    Propriety of requiring accused to give handwriting exemplar. 43 ALR3d 653.
    Fingerprint, palm print, or bare footprint as evidence. 28 ALR2d 1115.

      2. Constitutional Law — Fifth Amendment — Compulsion to Submit.
    The Fifth Amendment offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture (US Const, Am V).
    3. Criminal Law — Demonstration Evidence — Constitutional Law.
    A demonstration by the prosecution, requiring a defendant to wear articles of clothing found near the scene of the crime charged in the presence of the jury, which is controlled by the trial court and leaves the jury free to find the demonstration irrelevant for identification purposes, cannot be characterized as testimonial and, thus, does not violate any constitutional rights; and where the defendant is given full opportunity during the demonstration and in closing argument to point out any inconsistencies and refute any claim that he wore the clothing on the day of the crime, such demonstration is not improper.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Paul Burakoff, Assistant Prosecuting Attorney, for the people.

      Daudert, Tucker & Basch, for defendant on appeal.
    Before: Allen, P.J., and D. F. Walsh and G. R. McDonald, JJ.

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

   D. F. Walsh, J.

Defendant was convicted on three counts of armed robbery. MCL 750.529; MSA 28.797. He was sentenced to a term of 20 to 40 years imprisonment.

The events out of which defendant’s conviction arose occurred on the evening of December 5, 1975, at Mr. Robert’s Hairstyling Studio in Kalamazoo. Two men, carrying guns and wearing nylon stocking masks and ski caps, entered the shop. They announced a holdup and demanded money from the employees. One of the men, positively identified as Gordon Kiewiet, walked to the back of the building and collected the money. The other robber ordered Carol Foster, a hairstylist, to the front of the shop to empty the contents of a cash register. He insisted that Foster hurry and then, suddenly, shot her in the chest. The two men ran out of the building with the money. At the trial, Foster could not identify her assailant.

Kiewiet testified that his companion in the robbery was the defendant. Kiewiet’s testimony related to the robbery, as well as the plans and the events before, during, and after the perpetration of the robbery. The defendant did not testify during the trial.

Defendant raises several issues on appeal, the first of which deals with the propriety of the trial court’s order that defendant don a red and black checked jacket and a pair of boots which were found near the scene of the robbery. After the defendant had tried on the clothing in the jury’s absence, the trial court permitted the prosecution to conduct the same demonstration in front of the jury. Defendant argues that the requirement that he wear this clothing in the presence of the jury resulted in a denial of due process and a violation of his right against self-incrimination. We are not persuaded that this procedure is constitutionally impermissible.

In United States v King, 433 F2d 937 (CA 9, 1970), the defendant was required to try on certain distinctive items of clothing used in the robbery. In holding that there was no violation of due process of the Fifth Amendment, the court stated that the demonstration was nontestimonial in nature. The court likened the demonstration to fingerprinting or the production of voice exemplars and relied on Schmerber v California, 384 US 757, 764; 86 S Ct 1826; 16 L Ed 2d 908 (1966), where the Supreme Court expressed the following:

"On the other hand, both federal and state courts have usually held that [the Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.”

The procedure of requiring the accused to wear certain articles of clothing in front of the jury has been upheld in other jurisdictions which have addressed this particular issue. State v Bridges, 123 Ariz App 452; 600 P2d 756 (1979), Kessler v Cupp, 11 Or App 392; 502 P2d 281 (1972).

Defendant relies on the one case in Michigan which, up to the present time, has spoken on this point. In People v Mead, 50 Mich 228, 231; 15 NW 95 (1883), the Supreme Court stated, in passing:

"The prosecution gave evidence also of certain tracks discovered the morning after the fire, and which were supposed to be those of the guilty party. A rubber shoe was produced, and when the respondent took the stand in his own behalf he was asked to try it on, which he did without objection. After he took it off he was asked to measure it. This his counsel objected to, but the objection was overruled, and he made the measurement and stated the result. Had there been any objection to the respondent’s trying on the shoe, the court would have had no authority to require it, and even the simple matter of the measurement the respondent might have declined had he seen fit.”

Defendant claims that Mead prohibits the procedure used in this case. We disagree. Mead was decided in 1883. The comments with respect to the defendants trying on clothing before the jury were dicta. We decline to find reversible error in the instant case on the authority of the gratuitous comments of the Court in that ancient decision.

Rather, we find the reasoning in King, supra, to be persuasive. Since the demonstration cannot be characterized as testimonial, no constitutional rights were violated. The procedure was controlled by the trial court, and the jury was free to find it irrelevant for identification purposes. Defendant was given full opportunity, both during the demonstration and in closing argument, to point out any inconsistencies and to refute any claim that that clothing was worn by the defendant on the day of the robbery. We conclude that the demonstration was not improper.

Defendant contends that he was denied a fair trial by the prosecutor’s repeated references to extraneous matters which impugned defendant’s character in the eyes of the jury. Our review of the record does not convince us that any reversible error occurred.

First, the testimony concerning defendant’s cohabitation with a female companion was stricken from the record upon timely objection, and the prosecutor made no further reference to it. Second, the testimony concerning the consumption of drugs was not improper since it related to the circumstances surrounding the armed robbery and may have reflected upon defendant’s state of mind, motive, and intent. People v Delgado, 404 Mich 76; 273 NW2d 395 (1978). Third, no objection was made concerning the relevancy of the testimony relating to defendant’s financial condition, and we are not persuaded that defendant suffered manifest injustice as a result of this testimony. People v Jackson, 77 Mich App 392; 258 NW2d 89 (1977).

We have carefully considered defendant’s remaining assignments of error and find them to be without merit. Defendant’s conviction is affirmed.


text:
    DEGRANDCHAMP v MICHIGAN MUTUAL INSURANCE COMPANY
    Docket No. 47711.
    Submitted June 9, 1980, at Detroit.
    Decided August 27, 1980.
    The motorcycle of Gerald Degrandchamp, plaintiff, was damaged when it collided with an automobile insured by Michigan Mutual Insurance Company, defendant. The plaintiff commenced an action in Wayne Circuit Court seeking property protection insurance benefits from the defendant under the Michigan no-fault insurance law. The plaintiff moved for summary judgment, which motion was granted by Susan D. Borman, J. The defendant appeals, alleging that the trial court erred in holding that a motorcycle is not excluded from property protection benefits under the no-fault insurance act. Held:

    1. It is within the legislative power to define the sense in which words are employed in a statute, and such a statutory definition supersedes other definitions, whether judicial, dictionary, or other.
    2. The Michigan no-fault insurance statute contains no specific exception of two-wheeled vehicles from the definition of "vehicle” in the property protection insurance benefits exclusion provision, therefore the definition of "vehicle” in the statute includes motorcycles.
    Reversed and remanded for entry of judgment in favor of defendant.
    1. Statutes — Definitions — Legislative Power.
    It is within the legislative power to define the sense in which words are employed in a statute and such a statutory definition supersedes other definitions, whether judicial, dictionary, or other.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 165, 223, 224.
    [2] 7 Am Jur 2d (Rev), Automobile Insurance § 353.
    What constitutes a "motor vehicle” covered under no-fault insurance. 60 ALR3d 651.

      2. Insurance — No-Fault Insurance — Vehicles — Motorcycles.
    The Michigan no-fault insurance statute contains no specific exception of two-wheeled vehicles from the definition of "vehicle” in the property protection insurance benefits exclusion provision, therefore, the definition of "vehicle” in the statute includes motorcycles (MCL 500.3101 et seq., 500.3123[l][a]; MSA 24.13101 et seq., 24.13123[l][a]).

      Law Offices of Howard Schwartz (by Martin C. Van Houzen, Jr.), for plaintiff.

      Law Offices of George A. Hilborn (by Michael J. Mason), for defendant.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Bashara, P.J.

Plaintiff’s motorcycle was damaged when it collided with an automobile. He commenced this action seeking property protection insurance benefits from defendant, the no-fault insurer of the automobile. Pursuant to GCR 1963, 117.2(3), the trial court granted plaintiff’s motion for summary judgment.

Defendant appeals, alleging that the trial court erred in holding that a motorcycle is not excluded from property protection benefits under the no-fault insurance act, MCL 500.3101 et seq.; MSA 24.13101 et seq. Specifically, the defendant relies on MCL 500.3123(l)(a); MSA 24.13123(l)(a), which states, in pertinent part:

"(1) Damage to the following kinds of property is excluded from property protection insurance benefits:
"(a) Vehicles and their contents, including trailers, operated or designed for operation upon a public highway by power other than muscular power, unless the vehicle is parked in a manner as not to cause unreasonable risk of the damage which occurred.”

Whether a motorcycle is a "vehicle” within the meaning of § 3123 has not been previously considered by our Court. In Davidson v Johnson (On Rehearing), 79 Mich App 661; 262 NW2d 887 (1977), this Court addressed a similar question. We held that property damages to a motorcycle are recoverable from the insurer of the automobile under the residual liability insurance coverage provision, MCL 500.3131; MSA 24.13131, where the driver of the automobile is at fault. The holding in Davidson was based upon the reasoning of Shavers v Attorney General, 65 Mich App 355, 369-370; 237 NW2d 325 (1975), which held that the property damage classifications of the no-fault act were unconstitutional as being violative of due process and equal protection. However, that ruling was reversed in Shavers v Attorney General, 402 Mich 554, 630-632; 267 NW2d 72 (1978), cert den 442 US 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979). Consequently, we conclude that the precedential value of Davidson has been extinguished.

Both parties cite Shavers, supra, as authority for their positions. Shavers did not address the issue presented in this case. The Michigan Supreme Court held that the exclusion of motorcycles from the mandatory no-fault coverage provision was constitutional. Id., 634.

Plaintiff admits that had he been driving an automobile at the time of the accident, such recovery would have been prohibited by § 3123. However, he argues that the Court’s approval of the act’s differing treatment of motorcycles and automobiles supports his position that he should be able to recover property protection benefits from the insurer of the car.

The holding in Shavers interpreted § 3101(2), which defines "motor vehicle,” as not including two-wheeled vehicles. The definition of "motor vehicle” in § 3101(2) is not the same as the definition of "vehicle” in § 3123. The fact that the Legislature detailed a different definition for "vehicle” from that already stated for "motor vehicle” is evidence of the fact that it intended different meanings for the two terms. Furthermore, review of the act as a whole reveals that the term "motor vehicle” is not used interchangeably with "vehicle”. Therefore, Shavers is of no assistance in resolving the issue before us.

It is within the legislative power to define the sense in which words are employed in a statute. Erlandson v Genesee County Employees’ Retirement Comm, 337 Mich 195, 204; 59 NW2d 389 (1953), quoting 50 Am Jur, Statutes, § 261, p 253. Such a statutory definition supersedes other definitions, whether judicial, dictionary, or other. Id. "We need not, indeed we must not, search afield for meanings where the act supplies its own.” W S Butterfield Theatres, Inc v Dep’t of Revenue, 353 Mich 345, 350; 91 NW2d 269 (1958).

Review of the statute reveals that there is no specific exception of two-wheeled vehicles from the definition of "vehicle” in the property protection insurance benefits exclusion statute. Consequently, we conclude that the definition of "vehicle” in the statute clearly includes motorcycles. The trial court erred in holding that the plaintiff was entitled to no-fault property damage benefits.

Reversed and remanded for entry of judgment in favor of defendant. Costs to defendant.

       Effective July 1, 1980, the Legislature amended the no-fault act to allow recovery of up to $400 for damages to motor vehicles in a tort action against the party at fault. 1979 PA 145, 147; § 3135(2)(d).

       " 'Motor vehicle’ as used in this chapter, except for section 3103, means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels, but does not include a moped as defined in section 32b of Act No. 300 of the Public Acts of 1949, being section 257.32b of the Michigan Compiled Laws.” MCL 500.3101(2); MSA 24.13101(2).


author: A. C. Miller, J.

text:
    A E GIROUX, INC v CONTRACT SERVICES ASSOCIATES, DIVISION OF PREMIUM CORPORATION OF AMERICA, INC
    Docket No. 48562.
    Submitted June 24, 1980, at Detroit.
    Decided August 27, 1980.
    Plaintiff A. E. Giroux, Inc., brought suit to recover on a construction contract. Defendant, Contract Services Associates, moved for summary judgment on the basis that an accord and satisfaction between the parties dissolved its liability under the original contract. Oakland Circuit Court, Robert B. Webster, J., granted defendant’s motion. Plaintiff appeals, alleging that time was of the essence and that the accord and satisfaction was not adequately performed by the defendant. Held:

    Defendant should have moved for accelerated judgment but since neither party would appear to have been prejudiced by the mislabeling the issues are addressed as though the motion was proper. Plaintiff conceded reaching an accord and that no material damage was done by defendant’s one-day delay in payment. Such delay was de minimus, and plaintiff’s argument that time was of the essence does not change this result.
    Affirmed.
    1. Accord and Satisfaction — Contracts.
    An accord and satisfaction is, in essence, a contract.
    2. Accord and Satisfaction — Contracts — Substantial Performance.
    A delay of only one day, where the delay admittedly causes no detriment, amounts to substantial performance of an accord and satisfaction contract, and such performance is not altered by a party’s claim that time was of the essence.
    3. Accord and Satisfaction — Contracts — De Minimus Delay.
    A one-day delay in the performance of an accord and satisfaction contract, where no material damage is done by the delay, is de

      minimus, even where a plaintiff contends that time was of the essence.

      References for Points in Headnotes
    [1] 1 Am Jur 2d, Accord and Satisfaction § 1.
    [2] 1 Am Jur 2d, Accord and Satisfaction §§ 47, 49.
    [3] 1 Am Jur 2d, Accord and Satisfaction §§ 47, 49.

      Alan G. Greenberg, P.C., for plaintiff.

      Clark, Klein & Beaumont (by Richard C. Marsh and Charles D. Bavol), for defendant.
    Before: J. H. Gillis, P.J., and V. J. Brennan and A. C. Miller, JJ.

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

   A. C. Miller, J.

Plaintiff sued to recover on a construction contract. Defendant moved for summary judgment on the basis that an accord and satisfaction between the parties had dissolved defendant’s liability under the original contract. The lower court granted defendant’s motion.

It should first be noted that defendant’s motion should have been for accelerated judgment pursuant to GCR 1963, 116.1(5). Since neither party would appear to have been prejudiced by the mislabeling of defendant’s motion, we shall address the issues raised as though the proper motion had been filed. Unger v Forest Home Twp, 65 Mich App 614; 237 NW2d 582 (1975).

Plaintiff agreed to settle the disputed amount owed by defendant for $42,549. According to an exhibit submitted by plaintiff, this amount was to be sent to plaintiff by July 5, 1978. Another of the plaintiff’s exhibits indicated that plaintiff received defendant’s payment on July 6,1978.

On appeal, plaintiff contends that time was of the essence and that the accord and satisfaction was, therefore, not adequately performed by defendant. We disagree. Plaintiff conceded reaching an accord and that no material damage was done by a one-day delay. In this circumstance, we find the one-day delay de minimus and affirm the lower court.

An accord and satisfaction is, in essence, a contract. Puett v Walker, 332 Mich 117; 50 NW2d 740 (1952), Fritz v Marantette, 404 Mich 329; 273 NW2d 425 (1978), reh den 406 Mich 1103 (1979). A delay of only one day, where the delay admittedly causes no detriment, amounts to substantial performance of an accord and satisfaction contract. Cf. Antonoff v Basso, 347 Mich 18; 78 NW2d 604 (1956), Gordon v Great Lakes Bowling Corp, 18 Mich App 358; 171 NW2d 225 (1969). On the facts of this case, plaintiffs argument that time was of the essence does not change this result. Bilandzija v Shilts, 334 Mich 421; 54 NW2d 705 (1952).

Affirmed.


text:
    PEOPLE v GRIGSBY (ON REMAND)
    Docket No. 51295.
    Submitted June 23, 1980, at Detroit.
    Decided August 27, 1980.
    Defendant, Rudy Grigsby, was convicted of armed robbery in Recorder’s Court of Detroit, Justin C. Ravitz, J. Defendant appealed and the Court of Appeals granted the prosecutor’s motion to affirm. The Supreme Court vacated that order and remanded for plenary consideration, 408 Mich 904 (1980). Defendant’s defense at trial was alibi. He stated that he was having a family dinner with two of his aunts and his grandmother at the time the robbery occurred. This statement was corroborated by the two aunts and the grandmother. On cross-examination, the prosecutor asked defendant about a statement the defendant had earlier given to a police officer which contradicted defendant’s alibi testimony by placing him in the company of a man named "Butch” at the time of the robbery. The robbery victim had told police that a man he knew as "Butch” was one of the men involved in the robbery. Defense counsel objected to this questioning on the basis of relevancy. The objection was overruled. Defendant then denied the truth of the statement and alleged that he had been harassed and thought the police officer was talking about a different evening when he made that statement. The police officer who took the statement testified in rebuttal as to the voluntariness and accuracy of defendant’s statement. On remand, defendant contends that the cross-examination and subsequent rebuttal should have been included within the prosecution’s case-in-chief. The prosecutor argues that the defendant was properly impeached with a prior inconsistent statement and that the rebuttal testimony was proper. Held:

    Rebuttal testimony is limited to the refutation of relevant and material evidence, i.e., evidence bearing on an issue properly raised in the case. A prosecutor may not elicit a denial of _some statement not properly in the case and subsequently inject the issue into the case through rebuttal. The fact that defendant did not deny making the statement in question and that the statement itself was not inculpatory on its face, but could be so only through an inference that defendant was with "Butch” on the night of the robbery and that "Butch” was the same "Butch” that took part in the robbery, makes defendant’s statement that he was with "Butch” of more probative value in disproving the defendant’s alibi than as substantive evidence of his guilt. Defense counsel did not object to the cross-examination or rebuttal testimony on this ground. The objection was not specific and the rebuttal testimony complained of was only inferential evidence of the defendant’s guilt. There was no abuse of discretion and no reversible error.

      References for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence § 250.
    [3] 81 Am Jur 2d, Witnesses § 480.

      Affirmed.
    1. Criminal Law — Evidence — Cross-Examination — Rebuttal.
    Rebuttal testimony is limited to the refutation of relevant and material evidence, i.e., evidence bearing on an issue properly raised in a case.
    2. Criminal Law — Evidence — Cross-Examination — Rebuttal.
    A prosecutor may not elicit a denial of some statement not properly in the case and subsequently inject the issue into the case through rebuttal.
    3. Criminal Law — Evidence — Cross-Examination — Prior Inconsistent Statements — Inference — Rebuttal.
    A prosecutor may question a defendant for the first time on cross-examination about a prior inconsistent statement made by the defendant where an alibi is asserted only if the defendant does not deny making the statement, the statement is not inculpatory on its face, although it may be inculpatory through an inference, and the statement has more probative value in disproving the defendant’s alibi than substantive evidence of the defendant’s guilt.

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

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.

      Before: J. H. Gillis, P.J., and V. J. Brennan and A. C. Miller, JJ.

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

   On Remand

A. C. Miller, J.

Defendant Grigsby was jury tried and convicted of armed robbery, MCL 750.529; MSA 28.797, sentenced to five to ten years imprisonment and appealed as of right. This Court granted plaintiff’s motion to affirm and the Supreme Court vacated this Court’s order and remanded for plenary consideration. 408 Mich 904 (1980).

Complainant was robbed in his home by four or five armed men on January 4, 1976, between 7 p.m. and 8 p.m. Complainant testified that entrance was gained to his home after he admitted a man known to him as "Butch”. Defendant was identified as one of the other perpetrators of the robbery. Defendant presented the alibi testimony of two of his aunts and his grandmother that defendant was at a family dinner between 7 and 8 in the evening of January 4, 1976. During defendant’s cross-examination, the prosecuting attorney asked defendant if he had earlier told a police officer that he was with "Butch” until 8 p.m. on January 4, 1976. Defense counsel objected on the basis of relevancy. The trial court overruled defense counsel’s objection. Defendant denied the truth of the statement, alleged that he had been harassed and explained that he thought the police officer had been talking about January 5, 1976. The police officer to whom defendant made the statement testified in rebuttal as to the voluntariness and accuracy of defendant’s statement._

Defendant, on remand, contends that the cross-examination and subsequent rebuttal should have been included within the prosecution’s case-in-chief. The prosecutor argues that the defendant was properly impeached with a prior inconsistent statement and that the rebuttal testimony was proper. We agree with the prosecutor and affirm defendant’s conviction.

It is clear that rebuttal testimony is limited to the refutation of relevant and material evidence—hence evidence bearing on an issue properly raised in a case. It is also clear that a prosecutor may not elicit a denial of some statement not properly in the case and subsequently inject the issue into the case through rebuttal. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), People v Roeder, 79 Mich App 595; 262 NW2d 872 (1977), People v Karmey, 86 Mich App 626; 273 NW2d 503 (1978).

The case at bar is distinguishable from the above authorities because defendant did not deny making the statement and the statement itself was not inculpatory on its face. Only through an inference was the fact that defendant was with "Butch” on the night in question inculpatory, i.e., one must infer that the "Butch” who was involved in the robbery was the same "Butch” defendant claimed he was with on the night in question. Since the identification of "Butch” was tentative, the defendant’s statement that he was with "Butch” had more probative value in disproving the defendant’s alibi than as substantive evidence of defendant’s guilt.

We also note that defense counsel did not object to the cross-examination or rebuttal testimony on the grounds now asserted. See People v Winfield, 39 Mich App 281; 197 NW2d 541 (1972), lv den 389 Mich 766 (1973). Because the objection is not specific and the rebuttal testimony complained of is only inferential evidence of the defendant’s guilt, we do not view the trial court’s decision in the case at bar to be an abuse of discretion and, hence, reversible error. People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976). There is nothing in this case comparable to the courtroom dramatics injected in rebuttal in People v Kraai, 92 Mich App 398; 285 NW2d 309 (1979), requiring court intervention even without objection.

Defendant’s other allegations of error are without merit.

Affirmed.


author: Per Curiam.

text:
    PEOPLE v NEIL
    Docket No. 77-4595.
    Submitted February 7, 1980, at Grand Rapids.
    Decided August 28, 1980.
    Ernest R. Neil pled guilty to attempted welfare fraud involving an amount of money over $500. Kent Circuit Court, George V. Boucher, J., sentenced him to jail and ordered him to make restitution or serve an additional term. Defendant paid the amount of money ordered. He appeals, alleging that the portion of his sentence requiring him to pay restitution as a necessary condition to avoid additional jail time is unauthorized under Michigan law. Held:

    The court’s sentence of restitution was imposed as an alternative to imprisonment but is not authorized by statute. In Michigan, the sentencing court’s authority to impose a particular sentence is derived from the relevant statutes, and absent express statutory authority providing restitution as a part of the sentence per se, it is a proper incident to probation only.
    Original sentence of imprisonment affirmed, sentence imposing restitution as an alternative to imprisonment vacated, and cause remanded.
    1. Criminal Law — Welfare Fraud — Probation — Restitution — Statutes.
    A straight sentence of restitution or a sentence of restitution as an alternative to imprisonment is not authorized by the Social Welfare Act or the sentencing statutes, although restitution may be imposed as a condition of probation in welfare fraud cases (MCL 400.1 et seq., 750.92, 750.503; MSA 16.401 et seq., 28.287, 28.771).
    2. Criminal Law — Restitution — Probation — Statutes.
    A sentence of restitution cannot be equated with the imposition of a fine under the sentencing statutes in that it is designed to compensate an injured victim, and, as a condition of probation, the amount and manner of payment is a matter for the judgment of the sentencing judge (MCL 750.92, 750.503; MSA 28.287, 28.771).

      References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law § 565.3.
    79 Am Jur 2d, Welfare Laws § 112.
    Criminal Liability in connection with application for, or receipt of, public relief or welfare payments. 92 ALR2d 421.
    [2, 4] 73 Am Jur 2d, Statutes § 295.

      3. Criminal Law — Probation — Restitution — Sentences. Restitution is a proper incident to probation only, absent express statutory authority providing restitution as part of the sentence per se.
    4. Courts — Sentencing Authority — Statutes. A sentencing court’s authority to impose a particular sentence is derived from the relevant statutes.

      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.

      Buth, Wood & Weidaw (by George S. Buth and Stephen M. Tuuk), for defendant on appeal.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Per Curiam.

Defendant, Ernest R. Neil, pled guilty to attempted welfare fraud involving an amount of money over $500, contrary to MCL 400.60(2), 750.92; MSA -16.460(2), 28.287. At the plea proceeding on May 5, 1977, defendant appeared in propria persona and stated that he neglected to inform the county department of social services of a worker’s compensation settlement he received in the amount of $31,295.86. As a result, defendant received $2,360 in excess relief benefits. On July 11, 1977, the court sentenced defendant to three months in the county jail, with credit for nine days already served, and ordered defendant to make restitution in the amount of $2,360 or to serve an additional six months in jail. The sum of money was paid by defendant.

Defendant brings this appeal as of right, alleging that the portion of his sentence requiring him to pay restitution as a necessary condition to avoid additional jail time is unauthorized under Michigan law.

By statute, welfare fraud involving an amount in excess of $500 is a felony. MCL 400.60(2); MSA 16.460(2). A person convicted under the preceding statute is subject to punishment by imprisonment in the state prison for not more than four years, or by a fine of not more than $2,000, or by both such fine and imprisonment. MCL 750.503; MSA 28.771. Defendant pled guilty to attempted welfare fraud, a misdemeanor "* * * punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars * * MCL 750.92; MSA 28.287.

Restitution has been upheld as a condition of probation in welfare fraud cases, People v Verlinda Williams, 39 Mich App 402; 198 NW2d 27 (1972); however, neither the Social Welfare Act, MCL 400.1 et seq.; MSA 16.401 et seq., nor the sentencing statutes, supra, authorize a straight sentence of restitution or a sentence of restitution as an alternative to imprisonment.

Plaintiff argues that the imposition of restitution as an alternative sentence to incarceration is permissible within the scope of Michigan’s conditional sentence statute, MCL 769.3; MSA 28.1075. The statute provides that:

"When any persons shall be convicted of an offense punishable at the discretion of the court, either by fine or imprisonment in the county jail or by a fine or imprisonment in the state prison, the court may award against such offender a conditional sentence and order him to pay a fine, with or without the costs of prosecution, within a limited time to be expressed in the sentence, and, in default thereof, to suffer such imprisonment as is provided by law and awarded by the court. The court may also place such offender on probation with the condition that he pay a fine or costs or damages or any or all of them, as the case may be, in installments with any limited time and may, in case of the default in any of such payments, impose such sentence as is provided by law.”

Plaintiff submits that the latter portion of defendant’s sentence herein, although not expressly called "probation”, was, in effect, a probationary sentence. We disagree. Had defendant failed to pay restitution under his sentence herein, he would not have been entitled to a probation violation hearing and incidental procedural safeguards before being incarcerated.

A sentence of restitution cannot be equated with the imposition of a fine under the sentencing statutes. Restitution is designed to compensate the injured victim, and, as a condition of probation, the amount and manner of payment is a matter for the judgment of the sentencing judge. People v Gallagher, 55 Mich App 613, 619-620; 223 NW2d 92 (1974). There the Court expresses the policy considerations favoring the imposition of restitution as a condition of probation as well as the factors pertinent to determining proper consequences when the ordered restitution is not paid. In the absence of express statutory authority providing restitution as a part of the sentence per se, we find that restitution is proper incident to probation only.

In Michigan, the sentencing court’s authority to impose a particular sentence is derived from the relevant statutes:

"The measure of control exercised in connection with the prevention and detection of crime and prosecution and punishment of criminals is set forth in the statutes of the State pertaining thereto, particularly the penal code and the code of criminal procedure. The powers of the courts with reference to such matters are derived from the statutes.” (Footnotes omitted.) People v Piasecki, 333 Mich 122, 143; 52 NW2d 626 (1952).

Finally, because this case arose on a direct appeal and the sentencing court had no authority to impose restitution, we hold that defendant’s payment of restitution herein did not render his appeal moot. The portion of defendant’s sentence imposing restitution as an alternative to six months imprisonment is vacated and the cause is remanded to the trial court so that defendant may recover the $2,360. The remainder of defendant’s sentence — three months imprisonment in the county jail — is affirmed.

Remanded for proceedings in accordance with this opinion.


text:
    CLEVELAND v RIZZO
    Docket No. 44075.
    Submitted May 7, 1980, at Detroit.
    Decided August 28, 1980.
    Leave to appeal applied for.
    Earris Cleveland, administratrix of the estate of Waymon T. Cleveland, deceased, brought a medical malpractice action against Paul Rizzo, M.D. alleging negligence resulting in the death of the decedent. Wayne Circuit Court, Michael L. Stacey, J., entered a judgment of no cause of action against the defendant following a jury verdict. Plaintiff appeals, alleging the instructions of the trial court to the jury injected a novel theory into the case not supported by the pleadings or the evidence presented at trial and, thus, constituted reversible error. Held:

    The instructions correctly stated the applicable law, but were phrased in such a way as to appear to be such an uncompromising assertion which, under different circumstances, conceivably could have an unwarranted and adverse effect upon another case and, thus, should not have been given without greater amplification of their application to the facts of the case. Nevertheless, they must be read as a whole and in light of closing arguments and rebuttal of counsel. When so read, they do not rise to the level of reversible error.
    Affirmed.
    1. Trial — Jury Instructions — Novel Theory — Error.
    An instruction to a jury which injects into a case a novel theory not supported by the pleadings or the evidence presented at trial would constitute reversible error.
    2. Trial — Jury Instructions — Application to Facts.
    An instruction to a jury phrased in such a way that it appears to be such an uncompromising assertion which, under different circumstances, conceivably could have an unwarranted and adverse effect upon another case should not be given without greater amplification of its application to the facts of a case.

      References for Points in Headnotes
    [1, 2] 75 Am Jur 2d, Trial §§ 646, 647, 661.
    [3] 75 Am Jur 2d, Trial § 925.
    [4] 61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 110.

      3. Trial — Jury Instructions — Error.
    Jury instructions must be read as a whole and in light of closing arguments and rebuttal of counsel in determining whether or not they constitute reversible error.
    4. Physicians and Surgeons — Professional Skill — Statutes.
    A medical practitioner is not a guarantor of results, but warrants that he possesses the professional skill ordinarily possessed by medical practitioners as reasonably implied in light of reasonably available facilities (MCL 600.2192a[b]; MSA 27A.2912[l][b]).

      Jasmer, Lobb & Weiss, P.C., for plaintiff.

      Kerr, Russell & Weber (by Robert R. Nix, II), for defendant.
    Before: Beasley, P.J., and M. F. Cavanagh and W. A. Porter, JJ.

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

   Per Curiam.

Plaintiff brought a medical malpractice action against the defendant, alleging that his negligence resulted in the death of her husband. Defendant was said to have breached the standard of care required of medical practitioners in two respects: (1) by failing to conduct adequate preoperative tests, thus, resulting in misdiagnosis and unnecessary surgery, and (2) by failing to provide adequate postoperative care. No allegations concerning the adequacy of the doctor’s performance of the operation itself were made.

Defendant diagnosed plaintiff’s decedent’s problem as diverticulitis and recommended surgery. The deceased agreed, and defendant performed a surgical procedure known as a left colectomy, which involves the removal of a segment of the colon from the left side of the abdomen. The segment of the colon which was removed did not reveal diverticulitis.

Complications ensued during the postoperative period. Leakage of fecal material in the area where the colon had been resutured and attached occurred in the deceased. Drainage is a normal expectation of such surgery. Antibiotics were given to the deceased. However, they proved unable to combat infection caused by the leakage. The decedent went into shock and died.

The trial was sharply contested. Both parties presented medical experts who vigorously disagreed on whether there was evidence that defendant had breached the standard of care in his handling of the deceased patient. The jury returned a verdict of no cause of action against defendant.

The only issue raised on appeal is whether the trial court’s charge that "[n]o medical practitioner can be required to guarantee results” requires reversal. Plaintiff contends that this instruction injected a new issue of a contractual guarantee into the case not supported by the proofs and that the statement was legally inaccurate.

The entire context of the jury instruction concerning this matter reads as follows:

"I shall give you the definition of some important legal terms which I shall use later in describing the claims of the parties and in telling us what they must prove. Please listen carefully to the definitions so you will understand the terms when they are used later.
"When I use the words 'proximate cause,’ I mean first that there must have been a connection between that conduct of the Defendant which the Plaintiff claims was negligent and the injury complained of by the Plaintiff; and second, that the occurrence which is claimed to have produced that injury was a natural and probable result of such conduct of the defendant.
"No medical practitioner can be required to guarantee results.
"Negligence as applied to a professional, in this case a general surgeon, is called malpractice and is defined as a breach of the professional’s legal duty.
"In an action involving malpractice the Plaintiff has the burden of proving that in light of the state of art existing at the time of the alleged malpractice that the Defendant, if a specialist, failed to provide that recognized standard of care within that specialty as reasonable [sic] applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the Defendant’s failing to provide that standard, the Plaintiff suffered an injury.”

Read by itself, the objected-to sentence does give the impression that a separate issue of a contractual guarantee was present in the case. Plaintiff correctly points out that neither the pleadings nor the evidence presented at trial supports the presence of such a theory. If the instruction actually did inject such a novel theory into the case, reversible error would result. Lober v Sklar, 357 Mich 166; 97 NW2d 617 (1959), Mulcahy v Argo Steel Construction Co, 4 Mich App 116; 144 NW2d 614 (1966), lv den 378 Mich 741 (1966). Furthermore, the sentence appears to be such an uncompromising assertion that, under different circumstances it conceivably could have an unwarranted and adverse effect upon another case. Accordingly, we disapprove the giving of such an instruction without greater amplification of its application to the facts of a case.

Nevertheless, we do not find that this charge rises to the level of reversible error. In closing argument defense counsel acknowledged the tragic result of the death of plaintiffs husband, but argued that "* * * medicine is not a guarantor of anything”. Such statements supported the defense theory, which could be fairly inferred from the evidence, that the proximate cause of the husband’s death was not defendant’s negligence and breach of the medically accepted standard of care, but, rather, was due to the individual inability of the husband’s body to resist infection after all that could be done medically had been done. Also, plaintiffs counsel argued in rebuttal concerning the reference to a doctor as a guarantor. When the above-reprinted instructions are read in this light, and read together as they must be, Froling v Bischoff, 73 Mich App 496, 503; 252 NW2d 832 (1977), they do not constitute reversible error.

Plaintiff also argues that the instruction incorrectly stated the law. That a doctor is not a guarantor of results is a proposition firmly entrenched in Michigan law. Zoterell v Repp, 187 Mich 319, 330; 153 NW 692 (1915), Roberts v Young, 369 Mich 133, 138; 119 NW2d 627 (1963), Viland v Winslow, 34 Mich App 486, 488; 191 NW2d 735 (1971). As plaintiff notes, a medical practitioner warrants that he possesses the professional skill ordinarily possessed by medical practitioners as reasonably implied in light of reasonably available facilities. MCL 600.2912a(b); MSA 27A.2912(l)(b). However, contrary to plaintiffs assertions, the allegedly objectionable instruction does not negate this concept. Indeed, this concept was properly brought before the jury in the charge. The instructions in this case correctly stated the applicable law.

Affirmed.


text:
    PEOPLE v DAVENPORT
    Docket No. 44906.
    Submitted June 13, 1980, at Detroit.
    Decided August 28, 1980.
    Leave to appeal applied for.
    Donald J. Davenport was convicted of attempted breaking and entering of an occupied dwelling with intent to commit larceny, in Wayne Circuit Court, William J. Giovan, J.
    At the preliminary examination, a neighbor of the complainant testified that she observed a thin man wearing a blue-hooded coat, light pants and dark shoes walking on the complainant’s property. The neighbor, thereupon, called the police and gave them a description.
    The arresting police officer testified that he heard the broadcast of the description and was driving in the vicinity a few minutes later when he observed the defendant walking down the street. The defendant was wearing a dark-blue snorkel jacket, light-blue pants and white tennis shoes. The officer approached the defendant and told him to put his hands on the hood of the car. The officer told the defendant he was under arrest for "investigation of B & E”. The officer stated that he did not fear for his life, yet he searched the defendant. He reached into defendant’s pockets and pulled out a screwdriver and several garbage bags.
    The defendant moved to suppress evidence of the screwdriver and garbage bags. The trial court held that the officer had probable cause to arrest the defendant for breaking and entering and that the search was valid as being subsequent to a lawful arrest. Alternatively, the judge held that the search of defendant was valid as being a pat-down for weapons based upon the officer’s reasonable belief that criminal activity was afoot.
    The defendant appeals alleging that the trial court erred in denying his motion to suppress evidence of a screwdriver and garbage bags seized from him immediately after his arrest. Held:

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Search and Seizure §§ 33, 58,103.
    Law enforcement officer’s authority, under Federal Constitution, to "stop and frisk” person — Supreme Court Cases. 32 L Ed 2d 942.
    [2] 68 Am Jur 2d, Search and Seizure § 41 et seq.

    [3] 5 Am Jur 2d, Arrest § 24.
    75 Am Jur 2d, Trial § 360.
    [4] 5 Am Jur 2d, Arrest § 45.

      1. A police officer who reasonably believes that a suspicious person is armed and dangerous may "pat down” the suspect for weapons where a reasonable suspicion exists that crime is afoot. Here, the officer "searched” the defendant, thereby impermissibly expanding the scope of the investigation beyond a "pat down” and, therefore, the search cannot be justified.
    2. A police officer may conduct a warrantless search when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the arrested person committed it. The officer’s belief may be based on information received over a police radio, but the facts must be sufficient to create an honest belief in the mind of a reasonable and prudent man that the person arrested has committed a felony and they must create an actual belief, not mere suspicion, in the mind of the arresting officer. Here the trial court abused its discretion in ruling the arrest was legal.
    3. It is illegal to arrest a suspect for "investigation of a crime”. The arrest being unlawful, here, the subsequent search and seizure was also illegal.
    Reversed and remanded.
    1. Criminal Law — Police Officers — Pat-Down.
    A police officer who reasonably believes that a suspicious person is armed and dangerous may "pat down” the suspect for weapons where a reasonable suspicion exists that crime is afoot.
    2. Searches and Seizures — Police Officers — Warrantless Searches — Statutes.
    A police officer may conduct a warrantless search when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the arrested person committed it; the officer’s belief may be based on information received over a police radio, but the facts must be sufficient to create an honest belief in the mind of a reasonable and prudent man that the person arrested has committed a felony and they must create an actual belief, not mere suspicion, in the mind of the arresting officer (MCL 764.15 et seq.; MSA 28.874 et seq.).

    3. Arrest — Prosecuting Attorneys — Warrantless Arrests — Probable Cause — Appeal.
    The prosecuting attorney has the burden of establishing that an arrest without a warrant is supported by probable cause, and once a trial judge has found that the prosecutor has met that burden, his decision will be reversed only if it constitutes an abuse of discretion.
    4. Arrest — Investigation of Crimes.
    It is illegal to arrest a suspect for "investigation of a crime”.

      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.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Per Curiam.

Defendant appeals his jury conviction of attempted breaking and entering of an occupied dwelling with intent to commit larceny, MCL 750.110, 750.92; MSA 28.305, 28.287.

Defendant alleges that the trial court erred in denying his motion to suppress evidence of a screwdriver and garbage bags seized from him immediately after his arrest. The trial court relied upon the preliminary examination transcript in holding that the search and seizure of the evidence was lawful.

At the examination, a neighbor of the complainant stated that she saw a thin man wearing a blue-hooded coat, light pants and dark shoes walking on the complainant’s property. She did not think that he belonged there, so she called the police and gave them his description. A little while later, she observed the man walking away from the house. She could not see the man’s face because the coat hood was up.

The arresting officer testified that he heard the broadcast of the description and was driving in the vicinity a few minutes later when he observed the defendant walking down the street. This was about two blocks from the scene of the crime. The defendant was wearing a dark-blue snorkel jacket, light-blue pants and white tennis shoes. He was not doing anything suspicious. The officer approached the defendant and told him to put his hands on the hood of the car. He told him that he was under arrest for "investigation of B & E”. The officer stated that he did not fear for his life, yet he searched the defendant. He reached into defendant’s pockets and pulled out a screwdriver and several garbage bags.

The trial court held, at the hearing on the motion to suppress evidence of the screwdriver and garbage bags, that the officer had probable cause to arrest the defendant for breaking and entering and that the search was valid as being subsequent to a lawful arrest. Alternatively, the judge ruled that the search was valid as being a pat-down for weapons based upon the officer’s reasonable belief that criminal activity was afoot.

We disagree with both conclusions and reverse the conviction.

Where a reasonable suspicion exists that crime is afoot and the officer reasonably believes that a suspicious person is armed and dangerous, he may "pat down” the suspect for weapons. Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Terry is not applicable to the case at bar since the officer stated that he was not fearful for his safety. Terry, supra, 23-25. Furthermore, he stated that he searched the defendant, thereby impermissibly expanding the scope of the investigation beyond a "Terry pat down”. People v Rosales, 406 Mich 624; 281 NW2d 126 (1979). Therefore, the search cannot be justified on the basis of Terry, supra.

Alternatively, the trial court held that the search was valid as being conducted subsequent to a lawful arrest.

A police officer may conduct a warrantless search when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the arrested person committed it, MCL 764.15(d); MSA 28.874(d). The officer’s'’ belief may be based on information received over a police radio, MCL 764.15(f); MSA 28.874(f).

The facts must be sufficient to create an honest belief in the mind of a reasonable and prudent man; that is, they must evince good reason to believe that the person arrested has committed a felony. People v Napolitano, 2 Mich App 601; 141 NW2d 356 (1966). Not only must the facts be sufficient, but they must create an actual belief in the mind of the arresting officer. Mere suspicion is insufficient. People v Panknin, 4 Mich App 19; 143 NW2d 806 (1966), People v Griffin, 33 Mich App 474; 190 NW2d 266 (1971), lv den 385 Mich 775 (1971).

The prosecution has the burden of establishing that an arrest without a warrant is supported by probable cause. People v Langston, 57 Mich App 666, 672; 226 NW2d 686 (1975). Once a trial judge has found that the prosecutor has met that burden, his decision will be reversed only if it constitutes an abuse of discretion. Id., 673, 674. People v Thatcher, 83 Mich App 527, 529; 269 NW2d 210 (1978).

Based upon these general principles, we hold that the trial court abused its discretion in ruling that the arrest was legal. First, we do not think that the prosecution met its burden of proving that the officer had probable cause to arrest the defendant. The description given by the neighbor did not exactly match the defendant’s appearance. Also, the defendant was not doing anything suspicious when he was stopped. Furthermore, the officer did not know that a felony had occurred when he stopped the defendant, since only a suspicious trespasser had been reported. Finally, the officer did not have an "actual belief’ that the defendant committed a crime, as evidenced by the fact that he arrested the defendant for "investigation of B & E”.

The trial court’s ruling must fail on other grounds. While we recognize that it is not improper to stop an individual for questioning under the Terry doctrine, it is illegal to arrest a suspect for "investigation of a crime”. People v Martin, 94 Mich App 649; 290 NW2d 48 (1980), Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975). The arrest being unlawful, the subsequent search and seizure was also illegal.

In view of the foregoing, we need not address the other issues raised.

Reversed and remanded.


text:
    DURKEE v COOPER OF CANADA, LTD
    Docket No. 45372.
    Submitted April 8, 1980, at Detroit.
    Decided August 28, 1980.
    Leave to appeal applied for.
    Thomas Durkee and Patricia Durkee brought suit against Cooper of Canada, Ltd. for negligence in the design of a product and failure to warn potential users of the product of latent risks. Cooper moved for summary judgment, which motion was granted, Oakland Circuit Court, William J. Beer, J. Plaintiffs appeal, alleging that the trial court erred by misapplying the open and obvious doctrine to bar recovery and in granting summary judgment before discovery was complete. Held:

    1. A danger of injury to Thomas Durkee was open and obvious, and the manufacturer, having no duty to warn of such danger as a matter of law, was entitled to summary judgment on this issue, however, a fact question exists as to whether Cooper acted reasonably in manufacturing the product in question which permitted Thomas Durkee to be severely injured, and the trial court erred in granting summary judgment on the ground that such a defect was open and obvious.
    2. The trial court was premature in granting summary judgment before discovery was complete and plaintiffs asserted that they intended to depose Cooper’s design engineers, since, pursuant to court rule, the discovery process is halted where the pretrial process is completed or waived.

      References for Points in Headnotes
    [1] 63 Am Jur 2d, Products Liability §§ 51, 57.
    Manufacturer’s or seller’s duty to give warning regarding product as affecting his liability for product-caused injury. 76 ALR2d 9.
    Failure to warn as basis of liability under doctrine of strict liability in tort. 53 ALR3d 239.
    [2, 3] 63 Am Jur 2d, Products Liability § 51.
    [4] 63 Am Jur 2d, Products Liability §§ 63, 66.
    Admissibility in evidence, on issue of negligence, of codes or standards of safety issued or sponsored by governmental body or by voluntary association. 75 ALR2d 778.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.
    [5] 63 Am Jur 2d, Products Liability §§ 63, 67.
    [6] 23 Am Jur 2d, Depositions and Discovery § 143.
    [7] 23 Am Jur 2d, Depositions and Discovery § 145.
    73 Am Jur 2d, Summary Judgment § 12 et seq.

      Reversed and remanded for trial on the design defect theory of liability.
    1. Products Liability — Latent and Patent Risks — Duty to Warn.
    A manufacturer has a duty to warn potential users of its products where a product carries a latent risk of injury; however, where the danger is apparent, any failure to warn may be regarded as inconsequential in the circumstances of a case.
    2. Products Liability — Failure to Warn — Experience of User.
    A failure by a manufacturer to warn a potential user of its product of any latent risks of injury is immaterial where, in the circumstances of the case, a plaintiffs past experience makes him fully aware of the dangers involved.
    3. Products Liability — Duty to Warn — Open and Obvious Danger.
    A manufacturer has no duty as a matter of law to warn potential users of its product of any danger to the user where such danger is open and obvious.
    4. Products Liability — Burden of Proof — Breach of Manufacturer’s Duty.
    A plaintiff in design defect products liability litigation must present evidence that the particular product design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation, or that the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product to establish a question of fact regarding a breach of a manufacturer’s duty.
    5. Products Liability — Manufacturer’s Liability — Test.
    The test for a manufacturer’s liability is whether the manufacturer has failed to protect against a risk that is unreasonable and foreseeable by the manufacturer.
    6. Pretrial Procedure — Discovery — Court Rules.
    The process of discovery is halted where the pretrial process is completed or waived pursuant to court rule (GCR 1963, 301.7).

      7. Pretrial Procedure — Summary Judgment — Premature Grant.
    A grant of a summary judgment motion by a trial court prior to the scheduling of a pretrial conference where a party is free to seek further deposition is premature.

      Philo, Atkinson, Darling, Steinberg, Harper & Edwards, for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by William D. Booth, Christine D. Oldani and Patrick M. Barrett), for defendant.
    Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Per Curiam.

Plaintiffs appeal as of right from an order granting defendant Cooper of Canada, Ltd.’s motion for summary judgment. Plaintiff Thomas Durkee was injured on September 5, 1974, while skating at a warm-up in a practice session in an "over 30” hockey league. As Mr. Durkee was skating, another hockey player launched a slap shot that struck plaintiff in the head, on the plastic chin strap of his helmet. Mr. Durkee’s helmet was designed, manufactured and sold by defendant Cooper of Canada, Ltd.

Plaintiffs claim that defendant was negligent in designing a helmet which failed to offer sufficient coverage of the head and in failing to warn that the helmet would not protect against reasonably foreseeable blows.

The parties engaged in discovery through interrogatories and depositions. Before plaintiffs filed their answers to Cooper’s second set of supplementary interrogatories, Cooper filed a motion for summary judgment. That motion was argued March 14, 1979, and an order granting summary judgment in favor of defendant Cooper was entered May 9, 1979.

Plaintiffs alleged two errors in the grant of that motion. First, plaintiffs claimed the trial court misapplied the "open and obvious” doctrine to bar recovery. In granting summary judgment, the court noted, "People buy the helmet, they see what it is. They have to take the consequences.” The court found that the danger of the blow was open and obvious to the plaintiff and concluded that defendant was entitled to judgment as a matter of law because no duty to warn of an open and obvious danger exists.

Plaintiff’s claim was not predicated solely on defendant’s failure to warn — a separate allegation of defective design was also included. The court’s opinion did not, however, address this count.

This Court has recognized a duty to warn where a product carries a latent risk of injury. Fabbrini Family Foods, Inc v United Canning Corp, 90 Mich App 80, 92-93; 280 NW2d 877 (1979), lv den 407 Mich 956 (1980). Where, however, the danger is apparent, any failure to warn may be regarded as inconsequential in the circumstances of the case. In Crews v General Motors Corp, 400 Mich 208, 219; 253 NW2d 617 (1977), Justice Coleman wrote, for a divided Court, that plaintiff’s experience as a truck mechanic made him fully aware of the dangers of a fire if proper precautions were not taken. She concluded that any failure to warn was harmless error in that case. Similarly, this Court concluded that failure to warn was immaterial when an experienced crane operator tried to lift a 159,-000-pound machine with a crane designed to hoist only 140,000 pounds. Holbrook v Koehring Co, 75 Mich App 592, 595; 255 NW2d 698 (1977). In the case at bar, plaintiff was an adult with 28 years of experience playing hockey. He was aware of the dangers of head injuries and selected the helmet he considered to be the best. In making this purchase, he was aware that not all parts of his head would be covered by the helmet. His answers to interrogatories clearly show that he was aware of the dangers. We agree fully with the trial court that the danger was open and obvious, and that, as a matter of law, no duty to warn existed. Giving a warning in the instant case would not have served the prophylactic purpose underlying such duty, as it would not have served to dissuade plaintiff from engaging in a sport fraught with risk of injury. Analyzed in terms of proximate cause, it cannot be said that the failure to warn was the proximate cause of the injury.

Plaintiffs also asserted that defendant Cooper was negligent in designing a hockey helmet that insufficiently protected the head. The trial court did not discuss this allegation when it granted defendant’s motion for summary judgment. On appeal, defendant Cooper argues that the open and obvious doctrine applies to design defects and urges this Court to follow Campo v Scofield, 301 NY 468; 95 NE2d 802 (1950), which held that the manufacturer of an onion-topping machine had no duty to protect a user against obvious dangers by equipping the machine with safety guards. The New York court overruled Campo in Micallef v Miehle Co, 39 NY2d 376; 384 NYS2d 115; 348 NE2d 571 (1976).

The Michigan Supreme Court embraced the open and obvious doctrine in Fisher v Johnson Milk Co, Inc, 383 Mich 158, 160; 174 NW2d 752 (1970). Relying in part on Campo, the Court concluded that the manufacturer of a carrier for glass milk bottles was not negligent in designing a carrier that could not protect against breakage. The Court reasoned:

"There was no inherent, hidden or concealed defect in the wire carrier. Its manner of construction, how the bottles would rest in it, and what might happen if it were dropped, upright, on a hard surface below, with the possibility that the contained bottles might break, was plain enough to be seen by anyone including a patent attorney as well as a milk dealer. There is no duty to warn or protect against dangers obvious to all.” (Emphasis added.)

Fisher remains good law, although it has been distinguished in many cases. Byrnes v Economic Machinery Co, 41 Mich App 192; 200 NW2d 104 (1972), lv den 388 Mich 765 (1972), Coger v Mackinaw Products Co, 48 Mich App 113; 210 NW2d 124 (1973), Casey v Gifford Wood Co, 61 Mich App 208; 232 NW2d 360 (1975), lv den 395 Mich 810 (1975), Shears v Pardonnet, 80 Mich App 358; 263 NW2d 373 (1977), lv den 402 Mich 906 (1978).

This Court rejected the Fisher doctrine in Owens v Allis-Chalmers, 83 Mich App 74, 81; 268 NW2d 291 (1978). Where plaintiffs decedent was killed when a forklift overturned, plaintiff alleged a design defect in the manufacturer’s failure to include driver restraints. The Court noted the many considerations in a manufacturer’s choice of product design, including the intended use and utility, costs, and industry or government safety regulations. The Court concluded that a plaintiff must present evidence of the following to establish a fact question regarding breach of a manufacturer’s duty in design defect product liability cases:

"Consequently, we conclude that for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect products liability litigation, evidence of the following must be presented:
"(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or
"(2) That the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.” (Footnote omitted.)

The Supreme Court granted leave in that case, 405 Mich 827 (1979), limited to two questions: whether compliance with industry and government standards preclude a jury from finding a manufacturer’s conduct unreasonable and whether the test in product liability cases is whether the risk is unreasonable and foreseeable by the manufacturer or the risk is patent and obvious. No decision has been reached in that case.

Until this Court is instructed otherwise, it will continue to follow the reasonableness test as outlined in Shears, supra, 363, in which we held that the test for a manufacturer’s liability is whether the manufacturer has failed to protect against a risk that is unreasonable and foreseeable by the manufacturer. Such a test permits a fact finder to focus on the reasonableness of the manufacturer’s conduct. This is consistent with the recognized, duty of the manufacturer to exercise due care. Tulkku v Mackworth Rees Division of Avis Industries, Inc, 406 Mich 615, 622; 281 NW2d 291 (1979).

In the case at bar, a fact question exists as to whether Cooper of Canada, Ltd. acted reasonably in manufacturing a helmet that permitted a hockey player to be severely injured by a blow to the head one inch in front of the ear. The trial court erred in granting summary judgment on the ground that such a defect was "open and obvious”.

The trial court also erred in granting summary judgment before discovery was complete. Although more than two years had elapsed since plaintiffs had filed their complaint, plaintiffs asserted that they intended to depose defendant’s design engineers to determine the reasonableness of the product’s design. GCR 1963, 301.7 halts the discovery process where the pretrial process is completed or waived. No pretrial conference had been scheduled in this case, so plaintiffs were free to seek further deposition. Goldman v Loubella Extendables, 91 Mich App 212; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979). Grant of the summary judgment motion was therefore premature. Goldman, supra, 218, Johnston v American Oil Co, 51 Mich App 646, 650; 215 NW2d 719 (1974).

Summary judgment was prematurely granted except on the issue of duty to warn.

Reversed and remanded for trial on the design, defect theory of liability.

Danhof, C.J., concurs in the result only.

       We do not mean to intimate that we adopt the latent/patent distinction espoused in Owens v Allis-Chalmers, infra. We merely conclude, as did the Court in Fabbrini, supra, that it is well-settled that the duty to warn obtains where the product carries a latent risk of injury. See also Graham v Ryerson, 96 Mich App 480; 292 NW2d 704 (1980).