author: Per Curiam:.

text:
    WOOD v DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 45634.
    Submitted June 9, 1980, at Detroit.
    Decided August 28, 1980.
    Leave to appeal applied for.
    Plaintiff, Theodore Wood, an uninsured motorcyclist, was injured in a collision with a car insured by defendant, Detroit Automobile Inter-Insurance Exchange. Defendant promptly began paying plaintiff’s medical expenses and wage loss benefits, but terminated payment of the wage loss benefits in 1976. Plaintiff commenced this action in Wayne Circuit Court, claiming defendant wrongfully, maliciously, and fraudulently withheld benefits. Defendant denied that its action-was wrongful, and argued that plaintiff had failed to submit all necessary proofs precedent to payment. Plaintiff served a set of interrogatories on defendant which defendant failed to answer. Plaintiff moved to compel an answer but defendant failed to respond to the motion and the court ordered an answer within 30 days. Defendant did not comply and plaintiff moved for a default judgment. The court ordered compliance within 15 days or default judgment would be entered. The time elapsed without response from defendant and plaintiff moved for entry of a default judgment. The defendant finally answered the interrogatories on the day before the hearing on the motion to enter default judgment. The court entered the default judgment and awarded plaintiff wage loss benefits for 14 months plus 12 percent interest from the day the payments had become due. In addition, the court awarded plaintiff $50,000 for mental anguish damages, $5,000 for attorney fees and six percent interest on the entire judgment, Robert J. Colombo, J. Defendant moved to set aside the default judgment. The motion was denied and defendant appeals, contending: (1) that the trial court abused its discretion by entering the default judgment and then refusing to set it aside; (2) that the trial court improperly denied a jury trial on damages; (3) that the trial court erred by awarding plaintiff mental suffering damages; (4) that the trial court erred by awarding plaintiff $5,000 for attorney fees; and (5) that the trial court erred in awarding six percent interest on the judgment. Held:

      Refekences for Points in Headnotes
    [1] 62 Am Jur 2d, Pretrial Conference and Procedure § 16.
    [2] 47 Am Jur 2d, Judgments § 1165 et seq.

    [3] 46 Am Jur 2d, Judgments § 775.
    [4] 47 Am Jur 2d, Judgments § 1189.
    [5, 6] 7 Am Jur 2d (Rev), Automobile Insurance § 345.
    [7] 7 Am Jur 2d (Rev), Automobile Insurance §§ 344, 357.

      1. Absent an abuse of discretion, a trial court’s decision will not be reversed on appeal, and, if a party willfully, i.e., intentionally, fails to comply with a court order, a default judgment may be appropriate. Defendant in this case ignored two court orders requiring a response. These willfull acts justified the court’s imposition of a default judgment.
    2. A defaulting party has no right to a jury determination of damages.
    3. The no-fault automobile insurance act provides for only two possible penalties for an insurer’s wrongful failure to pay personal protection benefits: an award of attorney fees and a 12 percent interest award for overdue payments. The trial court erred in awarding additional damages for mental anguish.
    4. Attorney fees may be charged to the insurer if the court finds that the insurer "unreasonably refused” or "unreasonably delayed” in making proper payment. There is no unreasonable delay if the insurer demonstrates a legitimate question of statutory construction, constitutional law, or bona fide factual uncertainty. Defendant in this case has not indicated that it had a meritorious or plausible defense. The trial court properly awarded attorney fees to plaintiff; however, as noted earlier, $50,000 of the judgment was improperly awarded and so, on remand, the trial court may choose to adjust the award for attorney fees.
    5. The purpose of the six percent interest statute is to compensate the prevailing party for the expenses incurred in bringing an action and for the delay in receiving money damages. The 12 percent interest provision is intended to penalize the recalcitrant insurer rather than compensate the claimant. The statutes are not mutually exclusive, therefore the trial court correctly ordered both the six percent and the 12 percent interest. The 12 percent "delay” interest was appropriately assessed. The six percent judgment interest was assessed on the total award and, since the emotional pain and suffering damages were improperly awarded, the total award must be adjusted on remand.
    Affirmed in part, reversed in part and remanded.

      1. Pretrial Procedure — Discovery — Enforcement.
    A trial court may utilize sanctions to enforce discovery rules but before determining whether any compulsion is necessary the court should consider: (1) any inconvenience to the other party; (2) the nature of the noncomplying party’s disobedience; and (3) the deterrent effect of the penalty.
    2. Judgments — Default Judgments — Court Orders — Refusal to Comply.
    A default judgment may be appropriate where a party willfully fails to comply with a court order; however, it is a drastic step and one to be employed only when other preliminary measures fail.
    3. Judgments — Default Judgments •— Motions to Set Aside — Court Rules.
    A motion to set aside a default judgment should be granted if good cause is shown and an affidavit of facts showing a meritorious defense is filed (GCR 1963, 520.4).
    4. Damages — Default Judgments — Determination of Damages by Jury.
    A defaulting party has no right to a jury determination of damages.
    5. Insurance — No-Fault Insurance — Damages — Penalties — Statutes.
    It is error for a trial court to award exemplary or mental anguish damages in an action brought under the no-fault automobile insurance act for an insurer’s wrongful failure to pay personal protection benefits; the act provides for only two possible penalties for such failure: an award of attorney fees and a 12 percent interest award for overdue payments (MCL 500.3142[3], 500.3148; MSA 24.13142[3], 24.13148).
    6. Insurance — No-Fault Insurance — Delay — Attorney Fees — Statutes.
    Attorney fees may be charged to an insurer, under the no-fault automobile insurance act, if the court finds that the insurer unreasonably refused to, or unreasonably delayed in, making proper payment, but there is no unreasonable delay if the insurer demonstrates a legitimate question of statutory construction, constitutional law, or bona fide factual uncertainty (MCL 500.3148[1]; MSA 24.13148[1]).

      7. Insurance — No-Fault Insurance — Penalty Interest — Judgment Interest — Statutes.
    A trial court may properly award 12 percent penalty interest and six percent judgment interest under the no-fault automobile insurance act because the purpose of the six percent interest statute is to compensate the prevailing party for the expenses incurred in bringing an action and for the delay in receiving money, while the purpose of the 12 percent interest provision is to penalize the recalcitrant insurer rather than compensate the claimant; these statutes are not mutually exclusive (MCL 500.3142, 600.6013; MSA 24.13142, 27A.6013).

      Sommers, Schwartz, Silver & Schwartz, P.C. (by Jeffrey N. Shillman), for plaintiff.

      Dickinson, Pike, Mourad, Brandt & Hanlon (by Edward P. Arbour), and Gromek, Bendure & Thomas (by Carl L. Gromek and James G. Gross), 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.

   Per Curiam:.

Plaintiff, an uninsured motorcyclist, was injured in a collision with a car driven by defendant’s insured, Carl Larm. Defendant promptly began paying plaintiff’s medical expenses and wage loss benefits pursuant to MCL 500.3115(l)(a); MSA 24.13115(l)(a). When defendant terminated wage loss benefits in 1976, plaintiff commenced this action, claiming that defendant had wrongfully, maliciously and fraudulently withheld benefits. Defendant denied that its action was wrongful, arguing that plaintiff had failed to submit all necessary proofs precedent to payment.

On July 11, 1978, plaintiff served a set of interrogatories on defendant. When defendant failed to answer, plaintiff moved to compel answers. Defendant did not respond to the motion and, oh November 15, the court ordered an answer to the interrogatories within 30 days. When defendant did not comply, plaintiff moved for a default judgment. Defendant continued to ignore the proceedings. On January 10, 1979, the court ordered defendant to answer within 15 days or suffer automatic default. After the time elapsed without a response from defendant, plaintiff moved, on February 3, 1979, for entry of a default judgment. On the day before the motion hearing held on March 23, 1979, defendant finally answered the interrogatories. The court proceeded to enter the default judgment and awarded plaintiff wage loss benefits for 14 months plus 12 percent interest from the day the payments had become due, for a total of $11,708.93. The court also awarded plaintiff an additional $50,000 for mental anguish damages, $5,000 for attorney fees and six percent interest on the entire judgment.

Defendant moved to set aside the default judgment on April 17, 1979. This motion was denied on May 11, 1979. Defendant now appeals as of right.

Defendant first contends that the trial court abused its discretion by entering the default and then refusing to set it aside.

GCR 1963, 313 empowers a judge to utilize sanctions to enforce the discovery rules. In determining whether any compulsion is necessary, the trial judge should consider: (1) any inconvenience to the plaintiff, (2) the nature of the defendant’s disobedience, and (3) the deterrent effect of the penalty. See Jack's Factory Outlet v Pontiac State Bank, 95 Mich App 174; 290 NW2d 114 (1980). The trial judge’s decision will not be reversed on appeal absent an abuse of discretion. See Ackron Contracting Co, Inc v Oakland County, 87 Mich App 294, 296; 274 NW2d 44 (1978).

One of the methods provided for by law and utilized in the instant case is a judgment by default.

"(2) Other Consequences. If any party or an officer or managing agent of a party refuses to obey an order made under subrule 313.1 requiring him to answer designated questions, or an order made under either Rule 310 or 311, the court may make such orders in regard to the refusal as are just, and among others the following:
"(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;” GCR 1963, 313.2(2)(c).
".4 Failure of a Party to Attend or Serve Answers. If a party or officer or managing agent of a party willfully fails to appear before the person who is to take his deposition, after being served with a proper notice or fails to serve answers to interrogatories submitted under Rule 309, after proper notice of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party.” GCR 1963, 313.4.

Admittedly, it is a "drastic” step, one to be employed only when other preliminary measures fail. See MacArthur Patton Christian Ass’n v Farm Bureau Ins Group, 403 Mich 474, 477; 270 NW2d 101 (1978). Thus, if a party willfully, i.e., intentionally, fails to comply with a court order, a default judgment may be appropriate. See Humphrey v Adams, 69 Mich App 577; 245 NW2d 167 (1976).

In the case sub judice, defendant was requested to answer a simple set of interrogatories. Instead of alerting the court to any impediment to its answering, the defendant merely ignored two court orders requiring a response. We believe that these were willful acts justifying the court’s imposing a default judgment.

A motion to set aside a default judgment is governed by GCR 1963, 520.4, which provides that such motion will be granted "if good cause is shown and an affidavit of facts showing a meritorious defense is filed”. A lower court’s grant or denial will be reversed on appeal only if it is a clear abuse of discretion. Borovoy v Bursar Realty Corp, 86 Mich App 732, 737; 273 NW2d 545 (1978).

Defendant’s purported excuse for failing to answer the interrogatories was that it had been unable to depose plaintiff. We do not find this incapacity tantamount to "good cause”. See Masters v Highland Park, 97 Mich App 56; 294 NW2d 246 (1980).

Further, the possible setoff of governmental benefits claimed by defendant is not a viable defense. Even if we were to recognize it, defendant’s motion to set aside the default was not supported by an affidavit of facts, a requirement of GCR 1963, 520.4. Kiefer v The Great Atlantic & Pacific Tea Co, Inc, 80 Mich App 590, 595; 264 NW2d 71 (1978).

Defendant alleges that it was improperly denied a jury trial on damages. This is incorrect as a defaulting party has no right to a jury determination of damages. Asmus v Barrett, 30 Mich App 570, 577; 186 NW2d 819 (1971).

Defendant further argues that the trial court erred by awarding plaintiff mental suffering damages. We agree.

Since plaintiff was an uninsured motorist, defendant’s obligations to him arose not from a contract but from the status which made it responsible for his personal protection insurance. MCL 500.3115(l)(a); MSA 24.13115(l)(a). Since the no-fault insurance act provides for only two possible penalties for an insurer’s wrongful failure to pay personal protection benefits, an award of attorney fees, MCL 500.3148; MSA 24,13148, and a 12 percent interest award for overdue payments, MCL 500.3142(3); MSA 24.13142(3), the trial court erred in awarding additional damages. This grant mandates reversal for a deletion of the $50,000 for exemplary or mental anguish damages.

Defendant also asserts that the trial court erred in awarding plaintiff $5,000 for attorney fees. Under MCL 500.3148(1); MSA 24.13148(1), attorney fees may be charged to the insurer if the court finds that that party "unreasonably refused” or "unreasonably delayed” in making proper payment. There is no unreasonable delay if the insurer demonstrates a legitimate question of statutory construction, constitutional law, or even a bona fide factual uncertainty. See Lewis v Detroit Automobile Inter-Ins Exchange, 90 Mich App 251, 257; 282 NW2d 794 (1979), Richards v American Fellowship Mutual Ins Co, 84 Mich App 629, 635; 270 NW2d 670 (1978), and Davidson v Johnson (On Rehearing), 79 Mich App 660, 667; 262 NW2d 887 (1977). In the instant case however, as discussed earlier, defendant has not indicated that it had a meritorious or even a plausible defense. We must conclude that the lower court properly awarded attorney fees to plaintiff.

Regarding the amount of the award, $5,000 was a reasonable fee in terms of hours devoted to this case and in terms of percentage of the total judgment of over $60,000. However, as noted earlier in the opinion, $50,000 of this amount attributable to mental suffering damages was improperly awarded. In light of this holding the lower court may choose to adjust the award for attorney fees on remand.

Finally, defendant claims that the trial court erred in awarding six percent judgment interest, MCL 600.6013; MSA 27A.6013, in addition to the 12 percent penalty interest under the no-fault act, MCL 500.3142; MSA 24.13142. The trial court awarded the 12 percent interest on the overdue wage loss payment from the time it became overdue. The six percent interest was ordered on the entire judgment from the date the complaint was filed. Defendant contends that the overlapping of the interest provisions was impermissible.

The purpose of the six percent interest statute is to compensate the prevailing party for the expenses incurred in bringing an action and for the delay in receiving money damages. Schwartz v Piper Aircraft Corp, 90 Mich App 324, 326; 282 NW2d 306 (1979), Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (1979). The 12 percent interest provision is intended to penalize the recalcitrant insurer rather than compensate the claimant. See O J Enterprises, Inc v Ins Co of North America, 96 Mich App 271; 292 NW2d 207 (1980) (similar purpose intended under the Insurance Code, MCL 500.2006; MSA 24.12006). We do not consider these statutes to be mutually exclusive. Therefore, the trial court correctly ordered both the six percent and the 12 percent interest.

Since we have concluded that the amount for overdue wage loss benefits was properly awarded, the 12 percent "delay” interest was appropriately assessed for a total of $11,708.93. However, we have also determined that the $50,000 emotional pain and suffering damages were improperly awarded. Since the present judgment includes six percent interest assessed on that amount, the total award must be adjusted on remand.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

No costs, neither party having prevailed in full.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v CRUMP
    Docket No. 47012.
    Submitted June 10, 1980, at Grand Rapids.
    Decided August 28, 1980.
    Thomas Crump, III, and a codefendant were charged with breaking and entering. Crump was convicted of entering without breaking and was sentenced to probation, Calhoun Circuit Court, Paul Nicholich, J. He appeals, alleging 1) that the trial court erred in refusing to grant his motion for a directed verdict, 2) that the prosecutor’s comment regarding defendant’s right to remain silent requires reversal, 3) that the prosecutor’s rebuttal argument concerning the character of codefendant’s counsel necessitates reversal, and 4) that the prosecutor’s denial of his request for a polygraph examination was an abuse of discretion. Held:

    1. The evidence presented at trial was sufficient to withstand defendant’s motion for a directed verdict since a rational trier of fact could have found from the evidence introduced that the essential elements of the crime were proven beyond a reasonable doubt.
    2. The prosecutor’s remarks regarding defendant’s right to remain silent, although improper, were made in direct response to arguments advanced by counsel for his codefendant and do not result in reversible error.
    3. The prosecutor’s remarks concerning the character of codefendant’s counsel were not directed at defendant, and he has not shown that he was prejudiced thereby. Moreover, he did not raise an objection at trial nor request a curative instruction, and reversal is not warranted.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 483.
    Power of court sitting as trier of fact to dismiss at close of plaintiffs evidence, notwithstanding plaintiff has made out prima facie case. 55 ALR3d 272.
    [2] 75 Am Jur 2d, Trial § 237.
    [3] 75 Am Jur 2d, Trial § 315.
    [4] 75 Am Jur 2d, Trial § 192.
    [5] 63 Am Jur 2d, Prosecuting Attorneys § 25.
    Physiological or psychological truth and deception tests. 23 ALR2d 1306.

      4. A reversal will not be based on some suffering of prejudice by a defendant through the attitude or trial strategy of his codefendant’s counsel absent a clear indication that the defendant has suffered a miscarriage of justice.
    5. The prosecutor’s denial of defendant’s request for a polygraph examination is not an abuse of discretion requiring reversal absent a showing that the denial was the result of bad faith, by way of caprice, or invidious discrimination.
    Affirmed.
    1. Criminal Law —• Evidence — Directed Verdict — Trier of Fact. .
    Evidence is sufficient to withstand a motion for a directed verdict where a rational trier of fact could have found from the evidence introduced that the essential elements of a crime were proven beyond a reasonable doubt.
    2. Criminal Law — Prosecutors — Improper Commentary.
    A prosecutor’s comments on a defendant’s right to remain silent, although improper, do not result in reversible error where they are made in direct response to arguments advanced by counsel for a codefendant.
    3. Criminal Law — Prosecutors — Comments Directed at Counsel.
    A prosecutor’s rebuttal argument concerning the character of a codefendant’s counsel does not necessitate reversal where it was directed at counsel and it is, not shown that defendant was prejudiced thereby or that he raised objection at trial or requested a curative instruction.
    4. Criminal Law — Acts of Counsel for Codefendant — Reversal.
    The Court of Appeals will not reverse a conviction because the attitude or trial strategy of counsel for a codefendant may have caused a defendant to suffer some prejudice where the defendant did not request that his trial be severed from that of his codefendant, absent a clear indication that the defendant has suffered a miscarriage of justice.
    5. Criminal Law — Prosecutor’s Discretion — Polygraph Tests.
    A prosecutor is afforded wide discretion in conducting a criminal investigation, and a denial by a prosecutor of a defendant’s request to arrange for a polygraph examination is not an abuse of discretion absent a showing by the defendant that the refusal was the result of bad faith, by way of caprice, or invidious discrimination.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and John H. MacFarlane, Assistant Prosecuting Attorney, for the people.

      Allen, Letzring & Denenfeld, 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.

   Per Curiam.

Defendant and codefendant, Lee Caldwell, were charged with breaking and entering, MCL 750.110; MSA 28.305. Defendant was convicted by a jury of entering without breaking, MCL 750.111; MSA 28.306, and was sentenced to two years probation.

Defendant argues that the trial court erred in refusing to grant his motion for a directed verdict. Specifically, defendant claims that there was no testimony to establish the necessary element of a breaking. We disagree.

The complainant testified that, when she left the apartment, she locked the doors and that she had not given defendant Crump nor codefendant Lee Caldwell permission to enter. When she returned, the back door had been torn off the hinges. Other witnesses testified that they observed Crump and Caldwell coming out of the back door of the apartment carrying items which matched the description of items reported missing by the complainant. Such evidence was sufficient to withstand defendant’s motion for a directed verdict. People v Garrett, 17 Mich App 69; 169 NW2d 143 (1969). A rational trier of fact could have found from the evidence introduced that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

Secondly, defendant contends that the prosecutor impermissibly commented on defendant’s right to remain silent and that reversal is required under People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). While the prosecutor’s remarks were improper, we note that they were made in direct response to arguments advanced by counsel for the codefendant. Therefore, the prosecutor’s comments were not reversibly erroneous. People v Jones, 75 Mich App 261; 254 NW2d 863 (1977), People v Malchi White, 81 Mich App 226; 265 NW2d 100 (1978).

Defendant also argues that the prosecutor’s rebuttal argument concerning the character of co-defendant’s counsel necessitates reversal. We disagree. The remarks were directed at counsel for the codefendant, and we are not persuaded that defendant was prejudiced thereby. Moreover, defendant did not raise any objection at trial and did not request a curative instruction. Reversal is not warranted under these circumstances. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977).

With respect to both of the last two issues, defendant argues that he should not be penalized for the acts of counsel for his codefendant. Defendant, however, did not request that his trial be severed from that of his codefendant. Whenever two or more defendants are tried in the same trial, there is always the possibility that one defendant may suffer some prejudice from the attitude or trial strategy of a codefendant or from the manner in which his counsel presents the case to the jury. We decline to reverse on that basis, however, absent clear indication that the defendant has suffered a miscarriage of justice. MCL 769.26; MSA 28.1096. We find no such miscarriage of justice in this case.

Finally, defendant claims as error the prosecutor’s denial of a request for a polygraph examination. We find no error in this regard. The prosecutor is afforded wide discretion in conducting a criminal investigation. People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968). Defendant failed to demonstrate that the prosecutor’s refusal to arrange for a polygraph examination was the result of bad faith, by way of caprice, or invidious discrimination. Absent such a showing, we cannot conclude that the prosecutor abused his discretion in the denial of defendant’s request.

Affirmed.


author: Cynar, J.

text:
    LUSTIG v LUSTIG
    Docket No. 48703.
    Submitted June 20, 1980, at Detroit.
    Decided August 28, 1980.
    Plaintiff, David Lustig, and defendant, Susan M. Lustig, were divorced on January 12, 1972, and custody of their two minor children, Joshua and Jeremy, was granted to defendant. A consent order in March of 1972 granted defendant permission to move the minor children to California. On September 22, 1978, by stipulation and order, the custody of 13-year-old Joshua, the elder son, was changed to plaintiff. In August of 1979, while 9-year-old Jeremy was in Michigan visiting, plaintiff filed a motion in the Oakland Circuit Court for temporary custody and a permanent change of custody. Defendant obtained counsel and moved for an order to show cause why the child should not be returned to California. A hearing was held on it and the motion for temporary custody, at which defendant also moved the court to transfer the matter to California. The court, John N. O’Brien, J., denied the motion to transfer, denied the motion for temporary custody and ordered Jeremy returned to California pending a full hearing relative to a change of permanent custody. After an extended hearing, the court ordered joint legal custody of Jeremy and Joshua, with physical custody of Jeremy to alternate between the parents annually through the summer of 1981, at which time the court would review the issue of custody upon motion of either party. Defendant appeals. Held:

    1. The court had jurisdiction because Jeremy and his father had significant connections with this state and there was available here substantial evidence concerning the child’s present or future care.
    2. A circuit court which has jurisdiction under the Uniform Child Custody Jurisdiction Act to make an initial or modification judgment as to child custody may decline to exercise jurisdiction if the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum. A decision whether or not to decline jurisdiction is discretionary with the circuit court. The court did not abuse its discretion in retaining jurisdiction.

      References for Points in Headnotes
    [1-3] 42 Am Jur 2d, Infants § 33.
    Validity, construction, and application of Uniform Child Custody Jurisdiction Act. 96 ALR3d 968.
    [2] 20 Am Jur 2d, Courts §§ 173-175.
    [3] 24 Am Jur 2d, Divorce and Separation §§ 783, 819.
    42 Am Jur 2d, Infants §§ 43, 57.
    [4] 24 Am Jur 2d, Divorce and Separation § 779.

      3. The child’s best interest is the guiding factor in deciding custody disputes; the court must consider all of the factors specified in the Child Custody Act and shall not change the established custody unless clear and convincing evidence is presented that the change is in the child’s best interest. A trial court’s determination of custody should be aifirmed on appeal unless the judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. The court’s findings were not against the great weight of the evidence and do not demonstrate a palpable abuse of discretion.
    Aifirmed.
    1. Parent and Child — Statutes — Uniform Child Custody Jurisdiction Act.
    The Uniform Child Custody Jurisdiction Act is intended, in part: to avoid jurisdictional competition and conflict with the courts of other states; to see that a custody decree or judgment is rendered in the state which can best decide the case in the interest of the child; to assure that child custody litigation ordinarily takes place in the state having the closest connection with the child and his family; and to deter abductions and other unilateral removals of children undertaken to obtain a custody award (MCL 600.651; MSA 27A.651).
    2. Parent and Child — Custody — Uniform Child Custody Jurisdiction Act — Discretion — Statutes.
    A circuit court which has jurisdiction under the Uniform Child Custody Jurisdiction Act to make an initial or modification judgment as to child custody may decline to exercise jurisdiction if the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum; a decision whether or not to decline jurisdiction is discretionary with the circuit court (MCL 600.657; MSA 27A.657).
    3. Parent and Child — Custody — Child Custody Act — Statutes — Change of Custody — Burden of Proof.
    The child’s best interest is the guiding factor in deciding custody disputes; the court must consider alb of the factors specified in the Child Custody Act and shall not change the established custody unless clear and convincing evidence is presented that the change is in the child’s best interest (MCL 722.23, 722.27[c]; MSA 25.312[3], 25.312[7][c]).
    4. Appeal — Parent and Child — Custody — Change of Custody — Child Custody Act — Statutes — Standard of Review.
    A trial court’s determination of custody shall be affirmed on appeal unless the judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCL 722.28; MSA 25.312[8]).

      Keller & Avadenka, P.C., for plaintiff.

      Hyman, Gurwin, Nachman, Friedman & Winkelman (by Haney M. Gurwin and Denise R. Alexander), for defendant.
    Before: N. J. Kaufman, P.J., and Cynar and J. E. Townsend, JJ.

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

   Cynar, J.

On November 28, 1979, after lengthy hearings, the trial court entered an order modifying a judgment of divorce with respect to custody and visitation rights concerning the parties’ two minor children. The defendant appeals as a matter of right.

A default judgment of divorce was entered in this matter on January 12, 1972, which provided that the defendant-mother have custody of the two minor children, Joshua and Jeremy. Shortly thereafter, in March of 1972, a consent order was entered granting the mother permission to move the minor children to the state of California. By stipulation and order dated September 22, 1978, the custody of the elder son, Joshua, who was 13 years old, was changed to the plaintiff-father.

In August of 1979, while 9-year-old Jeremy was in Michigan with the plaintiff for a two-week visit, plaintiff filed a motion in Oakland County Circuit Court for temporary custody and change of custody. The motion for temporary custody was noticed for hearing.

Jeremy was to have returned to California on August 15, 1979. Having been advised that the minor child was not being returned to California as scheduled and that a petition for change of custody was being filed, the mother retained counsel and filed a petition for an order to show cause why the child should not be returned to California.

Both defendant’s show cause petition and plaintiff’s petition for change of temporary custody were argued on August 17, 1979, before Circuit Court Judge John N. O’Brien. Defendant moved that the court transfer the matter to California under the Uniform Child Custody Jurisdiction Act (MCL 600.651 et seq.; MSA 27A.651 et seq.) for the reason that Michigan was an inconvenient forum.

After an interview with both Jeremy and Joshua, the court denied plaintiff’s motion for temporary custody and Jeremy was ordered to be returned to California to his mother pending a full hearing relative to change of permanent custody. The trial court also refused to transfer jurisdiction to California. Lengthy testimony was taken on October 22, 23, 25, 26, 29 and 30 and the court issued its decision on November 1, 1979. The court ordered that legal custody of the minor children, Jeremy and Joshua, be awarded jointly to the parents, plaintiff and defendant herein. Physical custody of said minor child, Jeremy, was to alternate between plaintiff and defendant. Defendant was to have physical custody of Jeremy, in the State of California, until August 1, 1980. From August 1, 1980, until the summer of 1981, the physical custody of Jeremy would be in the plaintiff in the State of Michigan. The order for visitation provided that plaintiff was entitled to visitation rights with Jeremy during the 1979 Christmas vacation, and defendant was entitled to visitation rights with Joshua during the 1980 Easter school vacation, to visitation rights with Joshua from July 1, 1980, until August 1, 1980, and to visitation rights with both Jeremy and Joshua during the 1980 Christmas vacation. The court stated that in the summer of 1981, absent an agreement of the parties as to the custodial arrangement, it would again review the matter on petition by either party.

In his motion for temporary custody, plaintiff alleged that defendant permitted Jeremy come into contact with sex-related objects in the custodial home and was often left alone when the defendant went on vacation. Defendant stated that there were two flasher dolls in her home (male and female), which had been given as gag gifts at an adult birthday party for her husband, Mr. Habif. Defendant stated that Jeremy would not have had an occasion to come into contact with these things since they were kept in a closet. Joshua, the older child, viewed these items when he was visiting California in the summer of 1979.

Defendant testified that she and her second husband, Mr. Habif, had vacationed in Tahiti in 1976. They took slides of one another; the defendant was naked from the waist up and Mr. Habif was nude. Defendant stated that these slides were accidentally shown two years later during a family viewing. When this occurred, defendant indicated that she quickly removed the slides from view. Defendant also admitted that she and her husband smoked marijuana in the privacy of their bedroom. Defendant testified that between 1976 and the date of the hearing she and her husband had taken five to six vacations without the children, the longest lasting two weeks. Defendant testified that she and her husband had taken three vacations with the children during this time, including a trip to Mammoth Mountain, San Diego, and Hawaii.

A question arose as to the effect the change of custody would have on Jeremy as it related to the psychological therapy he was receiving in California. Dr. Noel Lustig, a California psychiatrist not related to the parties, testified on direct examination that Jeremy would have to continue therapy for one more year. On cross-examination, Dr. Lustig stated that he agreed with Les Foreman, the California psychologist who was serving as Jeremy’s therapist, that Jeremy would probably be okay in four to six months; however, he believed in overtreating the boy for three to six months to make sure the treatment would hold together. Dr. Fischoff, a Michigan psychiatrist, opined in a deposition that the only treatment Jeremy needed was educational in nature, for his learning disability. Carol Abram, Jeremy’s third grade special education teacher, testified by deposition that Jeremy had a learning disability called dyslexia. She indicated that Jeremy had made progress with his problem and that he should be placed back into a normal classroom.

There was an allegation presented regarding some sexual incident having occurred between the brothers prior to their separation, which occurrence was denied by Jeremy. Numerous subissues relating to the respective parties’ ability to provide love, affection, guidance and stability for Jeremy were raised throughout the hearing. In addition to their own testimony, each of the parties offered witnesses to support his or her contentions.

Plaintiff’s contention that the defendant did not timely file her appeal in the case at bar is without merit. GCR 1963, 803.1 provides that an appeal to this Court in civil cases must be made not later than 20 days after the entry of a judgment or order from which the party is appealing. Although the trial court’s decision to retain jurisdiction was made on October 17, 1979, no order or judgment was entered on this issue. An order dated November 28, 1979, was issued after a full evidentiary hearing regarding a change of custody. Defendant filed her claim of appeal based on this order on December 5, 1979, within the 20-day period required by the court rule.

Defendant contends that the trial court abused its discretion by taking jurisdiction of the custody proceedings. Michigan has adopted the Uniform Child Custody Jurisdiction Act. The Uniform Child Custody Jurisdiction Act is intended in part to avoid jurisdictional competition and conflict with the courts of other states, to see that a custody decree or judgment is rendered in the state which can best decide the case in the interests of the child, to assure that the child custody litigation takes place in the state having the closest connection with the child and his family and to prevent abductions and the unilateral removal of children to obtain a custody award. McDonald v McDonald, 74 Mich App 119, 124; 253 NW2d 678 (1977). MCL 600.651; MSA 27 A.651.

MCL 600.653; MSA 27A.653 states:

"Sec. 653. (1) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree or judgment if any of the following exist:
"(a) This state is the home state of the child at the time of commencement of the proceeding or had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody for other reasons, and a parent or person acting as parent continues to live in this state.
"(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least 1 contestant, have a significant connection with this state and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships.
"(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.
"(d) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivisions (a), (b), or (c) or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child and it is in the best interest of the child that this court assume jurisdiction.
"(2) Except under subsection (l)(c) and (d), the physical presence in this state of the child or of the child and 1 of the contestants is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
"(3) Physical presence of the child, while desireable, is not a prerequisite for jurisdiction to determine his custody.”

In McDonald v McDonald, supra, this Court quoted the remarks of the commissioners in the notes following MCL 600.651(1)(b); MSA 27A.651(1)(b), as follows:

"But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s [emphasis theirs] interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and the family. There must be maximum rather than minimum contact with the state. (Emphasis supplied.)” McDonald, supra, 126-127.

After a trial court determines that it has jurisdiction to resolve the dispute, it may decline to exercise jurisdiction on the basis that Michigan is an inconvenient forum to resolve the issues presented. MCL 600.657; MSA 27A.657 states in pertinent part:

"Sec. 657. (1) A court which has jurisdiction under sections 651 to 673 to make an initial or modification decree or judgment may decline to exercise its jurisdiction before making a decree or judgment if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
"(2) A finding of inconvenient forum may be made upon the court’s motion or upon motion of a party or a guardian ad litem or other representative of the child.
"(3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
"(a) If another state is or recently was the child’s home state.
"(b) If another state has a closer connection with the child and his family or with the child and 1 or more of the contestants.
"(c) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships, is more readily available in another state.
"(d) If the parties have agreed on another forum which is no less appropriate..
"(e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in section 651.”

It must first be determined whether the court had jurisdiction to hear the case. In the case at bar, the following factors weigh in favor of the court taking jurisdiction of the case: (1) plaintiff resided in this state; (2) Jeremy was physically present in this state visiting his father at the time of the proceedings; (3) Jeremy had seen Dr. Fischoff, a Michigan psychiatrist, who had made a report about his observations of Jeremy; (4) Jeremy’s brother and paternal grandparents reside in Michigan; and (5) Jeremy had expressed a preference to stay in the State of Michigan.

Arguably the aforementioned ties of the parties and their child with the State of Michigan do not constitute maximum contacts with Michigan so as to confer jurisdiction on the Michigan court. California was Jeremy’s home state for seven years. Jeremy’s mother and maternal grandparents live in California. Medical and school records of the child are located in California. Jeremy’s involvement in special educational programs, due to his learning disability, occurred in California.

We conclude that the lower court was authorized to act under MCL 600.653(l)(b); MSA 27A.653(l)(b), because Jeremy and his father have a significant connection with the State of Michigan and there was available in Michigan substantial evidence concerning the child’s present or future care. Therefore, the assumption of jurisdiction by the lower court was not reversible error.

Having determined that the Michigan court had jurisdiction to change custody, it must be determined whether the court properly refused to transfer jurisdiction under MCL 600.657; MSA 27A.657. The question of whether to decline jurisdiction under MCL 600.657; MSA 27A.657, the forum non conveniens section of the statute, is discretionary with the trial court. Breneman v Breneman, 92 Mich App 336, 342; 284 NW2d 804 (1979). In Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959), the Court defined the term "abuse of discretion” as:

"Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Id., 384-385.

It should be noted that aside from the factors listed in subsection (3) of the statute, inquiries into what would be convenient to the parties and pose a hardship to the defendant are pertinent in determining the appropriate forum. In the case at bar, all the parties would be inconvenienced no matter what forum was selected to resolve the dispute between the parties. In a proceeding of the nature herein, the parties are inconvenienced greatly even if all the parties are located in the same forum. Past activities of the defendant-mother indicate that long distance travel has been a frequent, rather than a rare, occurrence. As far as cost of the proceeding is concerned, it is noted that the trial court ordered the plaintiff-father to pay substantial attorney fees and costs for the benefit of the defendant-mother. Numerous witnesses were called, either personally or by deposition, in a lengthy court proceeding with each side appearing to have a full opportunity to present its side of the case. The defendant was not prejudiced by litigating the case in this state. The court did not abuse its discretion in retaining jurisdiction of the case.

The Child Custody Act of 1970, specifically, MCL 722.23; MSA 25.312(3), and GCR 1963, 517.1 require that the court make findings of fact as to what custody determination will be in the child’s best interests. The trial court made specific findings of fact in support of the custody change.

A child’s best interest is the guiding factor in child custody disputes. In determining custody the court must consider all factors specified in MCL 722.23; MSA 25.312(3), which provides:

“Sec. 3. 'Best interests of the child’ means the sum total of the following factors to be considered, evaluated and determined by the court:
“(a) The love, affection and other emotional ties existing between the competing parties and the child.
"(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
"(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
"(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
"(e) The permanence, as a family unit, of the existing or proposed custodial home.
"(f) The moral fitness of the competing parties.
"(g) The mental and physical health of the competing parties.
"(h) The home, school and community record of the child.
"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
"(]) Any other factor considered by the court to be relevant to a particular child custody dispute.”

The act also provides that, after weighing these factors, the trial court shall not change the established custody of the child unless clear and convincing evidence is presented that the change is in the best interest of the child. MCL 722.27(c); MSA 25.312(7)(c). Parrott v Parrott, 53 Mich App 635; 220 NW2d 176 (1974).

In addition, the act provides:

"Sec. 8. To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; MSA 25.312(8).

See also Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975), lv den 395 Mich 769 (1975), Hilbert v Hilbert, 57 Mich App 247, 250; 225 NW2d 697 (1974), Baldwin v Baldwin, 56 Mich App 489, 494; 224 NW2d 116 (1974), Feldman v Feldman, 55 Mich App 147, 148-149; 222 NW2d 2 (1974), Parrott v Parrott, supra.

In the case at bar, the court ordered that the parties were to have joint legal custody of Jeremy. A review of the court’s findings and the evidence presented is necessary to see whether plaintiff met the burden of proving by clear and convincing evidence that a change of custody was in the best interest of Jeremy. No issue has been raised regarding the joint legal custody of Joshua.

The trial court ordered a change in legal custody of Jeremy from the defendant alone to joint legal custody by the parties. The trial court stated that Jeremy was to finish the 1979-1980 school year in California and then move to Detroit to stay with his father. Jeremy was to go to school in Detroit during the 1980-1981 school year. The court stated that in the summer of 1981 it would review the situation upon the petition of either party. It should be noted that, on December 5, 1979, defendant brought a motion to clarify the court’s findings of fact and include in the court’s order a statement that it used a clear and convincing evidence test. The trial court indicated that it had used such a test in making its decision.

The court, in its findings of fact, discussed the ten factors enumerated in § 3 of the Child Custody Act in making its custody modification. The court found that the parties could equally provide Jeremy with the factors to be considered in subsections (a) and (b) of the statute. In discussing subsection (c) of the statute, the court found that the parties could equally provide Jeremy with food, clothing and medical or other remedial care. In addition, while the court indicated that Jeremy was progressing and was treated well in a good program for the boy’s learning disability, provided through the efforts of the defendant-mother, the court questioned the need for, and type of, psychological therapy received by the boy.

In regard to subsection (d), the court found that the parties were equal. In discussing this factor, the court did not consider the fact that Jeremy’s home for seven years had been in California. The reason for this could be that in the past the parties had cooperated in arranging the child’s vacations and plaintiffs visits.

In discussing subsections (e), (f), and (g), the court found the parties equal. At least for the purpose of the goal to be achieved herein, to resolve the custody dispute in the best interests of the child, the matters concerned with moral conduct were properly handled by the court. It would serve no purpose to glorify so-called past transgressions in behavior which, hopefully, will not reoccur in the future. The court then went on to discuss subsection (i), regarding the preference of the child. The court stated that, generally, Jeremy’s preference was to live in Detroit so he could live with his brother, Joshua. The court also noted that Jeremy would like to live with both parents if he could.

The trial court then went on to discuss other factors relevant to the custody dispute, as per subsection (j) of the statute. Although defendant contends that some of the court’s observations were improper and not based upon direct evidence at trial, the court considered factors relevant to the particular dispute as well as recognizing and being sensitive to the attachment of Jeremy to his brother. This factor was certainly a relevant circumstance to be considered by the court. The court’s recommendation to the defendant that she seek a new therapist indicates that the court did not give the expert’s testimony the same weight as the defendant contended should be given thereto. Other factors discussed by the court, such as a quarrel between the parties and an incident with the orthodontist, were not totally outside of the record. Although perhaps not pertinent in determining custody, the court’s discussion of these facts indicates that the court was aware of the litigants’ relationship.

The court’s findings were in most respects proper and supported by the record. The record reveals that a change of circumstances had occurred since custody was originally granted to the defendant. Joshua, Jeremy’s brother, had moved to Detroit and was living with his father. Jeremy’s preference to be with his brother and the reasonableness of this preference was not only the main issue at trial, but was the main circumstance considered by the court. In light of these facts, the court’s determination to modify custody was based on clear and convincing evidence.

As previously indicated, the court ordered that absent a prior agreement by the parties, the court would review the issue of custody and visitation in the summer of 1981 upon the petition of either party. Notwithstanding, it should be noted that either party has a right to petition for a change under MCL 722.27(c); MSA 25.312(7)(c) upon proper cause shown or because of change of circumstances.

While the court must consider all the factors specified in MCL 722.23; MSA 25.312(3) in deciding what is in the best interests of the child, such determination is much more difficult than merely tallying runs, hits, and errors in box score fashion following a baseball game. Interpreting hits, runs and errors in the battle of life is much more complex. The trial court during this proceeding had an opportunity to see and hear the witnesses, to observe their demeanor, attitudes and reactions, as well as to weigh the evidence and determine credibility. The findings of fact fully support the court’s determination. Additionally, seasoned judicial judgment, while not always spelled out in precise, appropriate words or punctuation marks, often speaks clearly and loudly through the result reached.

The trial judge did not make findings against the great weight of the evidence and did not palpably abuse his discretion. There was clear and convincing evidence to support the determination of the lower court.

Affirmed with costs to the plaintiff.


author: J. H. Gillis, P.J.

text:
    PEOPLE v TURNER PEOPLE v MORGAN PEOPLE v RILEY
    Docket Nos. 78-5202, 43316, 45247.
    Submitted June 26, 1980 at Detroit.
    Decided September 2, 1980.
    Leave to appeal applied for.
    Defendants, Talmadge Turner, Willie J. Morgan and Rex D. Riley, were charged with first-degree murder, assault with intent to murder and felony-firearm in the Recorder’s Court of Detroit. The case arises out of a shooting incident that occurred in the early morning hours of May 28, 1978. There was testimony that defendants belonged to a group known as "The Enforcers” and that they had a confrontation with another group, the "Fenkell Avenues”, the day before. The shooting was alleged to have been in retaliation for the earlier incident. Accomplice testimony was provided by Elzy Jones, a former codefendant who had pled guilty to manslaughter and possession of a firearm in the commission of a felony. Jones testified that he and the defendants spotted persons they thought were Fenkell Avenues on a street corner in the Fenkell-Mendota area of Detroit. Defendant Turner dropped Jones, Morgan and Riley off in an alley behind Mendota. Morgan was armed with Jones’s shotgun, while Riley carried Turner’s .38-caliber revolver. The three walked around the sides of a house and viewed a gtoup of persons on and around the porch of the house across the street. Although there was apparently some confusion over whether the persons were actually members of the Fenkell Avenues, Morgan and Riley fired in the direction of
    References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 906 et seq.

    [2] 5 Am Jur 2d, Appeal and Error §§ 891-894.
    [3] 75 Am Jur 2d, Trial §§ 630, 704.
    [4] 75 Am Jur 2d, Trial § 193.
    [5] 75 Am Jur 2d, Trial §§ 876-882.
    [6] 75 Am Jur 2d, Trial § 317.
    [7] 29 Am Jur 2d, Evidence §§ 786, 787.
    [8] 4 Am Jur 2d, Appeal and Error § 544.
    [9] 21 Am Jur 2d, Criminal Law § 119.

      the porch. John Lathan, Jr., who was standing near the porch, was shot and died as a result of the wound received. A second person, Alex Young, was wounded. Neither the victims nor the other persons near the porch had any association with the Fenkell Avenues. Defendants were convicted of second-degree murder, assault with intent to commit murder and felony-firearm, Robert P. VanWiemeersch, J. Defendants appeal alleging numerous errors and the appeals were consolidated. Held:

    1. Defendants claimed the court erred in shifting the burden of proof by adding to the Standard Jury Instruction two additional sentences regarding reasonable doubt. The sentences were: "In other words, if you can assign a reason you have a reasonable doubt”, and "[i]f you cannot assign a reason you have no reasonable doubt”. Since no objection was made to the instruction, reversal is precluded absent a showing of manifest injustice. Jury instructions are to be considered as a whole. So viewed, the instruction did not alter the burden of proof.
    2. The inadvertent reading to the jury of the felony-murder portion of the first-degree murder statute by the court was harmless, since defendants were not convicted of first-degree murder.
    3. Reinstruction on second-degree murder in response to a jury request for reinstruction was proper.
    4. The prosecutor’s comment that one of the possible crimes the jury might find defendants’ guilty of was a misdemeanor was proper rebuttal in direct response to arguments of defense counsel.
    5. It was not improper for a trial court to instruct a jury that a lesser included offense was a misdemeanor since such an instruction involving disposition is similar to giving the jury such information by the approved practice of reading the statutes to the jury which state whether the crime is a felony or misdemeanor.
    6. Prosecutorial appeals for sympathy for the decedent and descriptions of the procedures by which the defendants were charged were proper rebuttal as direct responses to defense appeals for sympathy.
    7. The admission in a homicide trial of photographs depicting the body of a victim is a matter within the discretion of the trial court, provided they are not offered with the sole intention of inflaming the jury. The test is whether the photographs are substantially necessary or instructive to show material facts or conditions, or merely calculated to excite passion and prejudice. Photographs otherwise admissible for a proper purpose are not rendered inadmissible merely because they vividly depict the details of a gruesome or shocking crime. A photograph of the decedent’s body was properly admitted to establish the identity of the body examined by the coroner after identity was raised as an issue by defendants.
    8. One not in possession of a firearm may be punished as an aider and abettor to a felony-firearm offense.
    Affirmed.
    1. Appeal — Jury Instructions — Preserving Question.
    Failure to object to a jury instruction precludes reversal on the issue absent a showing of manifest injustice.
    2. Appeal — Courts — Jury Instructions.
    Instructions to a jury are reviewed as a whole rather than in small excerpts.
    3. Criminal Law — Instructions to Jury — Reinstruction.
    A trial court in a first-degree murder trial in which the defendant was convicted of second-degree murder does not commit error in reinstructing on second-degree murder in response to a request for reinstruction by the jury.
    4. Criminal Law — Prosecutor’s Remarks — Disposition op Dependant.
    Neither the prosecutor nor defense counsel may comment during trial upon the consequences of a jury finding the defendant guilty of any lesser offense; however, where a prosecutor’s remarks regarding such consequences are in response to defense counsel’s comments regarding the same subject and the remarks are brief and not prejudicial, no reversible error occurs.
    5. Criminal Law — Jury Instructions — Lesser Included Offense — Disposition.
    It was not improper for a trial court to instruct a jury that a lesser included offense was a misdemeanor since such an instruction involving disposition is similar to giving the jury such information by the approved practice of reading the statutes to the jury which state whether the crime is a felony or a misdemeanor.
    6. Criminal Law — Argument of Counsel — Curative Instructions.
    A prosecutor’s remarks to the jury were not sufficiently improper to require reversal of a conviction where the remarks were either proper argument based upon the evidence presented or responses to matters raised by the defendants in their proofs and closing arguments and where certain of the latter remarks, although they could be seen as improper if standing alone, do not constitute reversible error because of their responsive nature and because any unduly prejudicial effect could have been eliminated by a curative instruction to the jury if one had been requested upon a timely objection.
    7. Homicide — Photographic Evidence — Admissibility.
    The admission in a homicide trial of photographs depicting the body of a victim is a matter within the discretion of the trial court, provided they are not offered with the sole intention of inflaming the jury; the test is whether the photographs are substantially necessary or instructive to show material facts or conditions, or merely calculated to excite passion and prejudice; photographs otherwise admissible for a proper purpose are not rendered inadmissible merely because they vividly depict the details of a gruesome or shocking crime.
    8. Criminal Law — Appeal — Judicial Misconduct — Criticism of Counsel.
    A trial court’s criticism of defense counsel may be ground for reversal; the dispositive question is whether the court’s participation in the trial denied the defendants a fair and impartial trial by unduly influencing the jury.
    9. Criminal Law — Aiding and Abetting — Felony-Firearm — Possession of Firearm.
    One not in possession of a firearm may be punished as an aider and abettor.to a felony-firearm offense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy L. Cronin and Anne B. Wetherholt, Assistant Prosecuting Attorneys, for the people.

      Gromek, Bendure & Thomas, for defendant Turner.

      James Krogsrud, Assistant State Appellate Defender, for defendants Riley and Morgan.

      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.

   J. H. Gillis, P.J.

Defendants were charged with first-degree premeditated murder, MCL 750.316; MSA 28.548, assault with intent to murder, MCL 750.83; MSA 28.278, and possession of a firearm while in the commission of a felony, MCL 750.227b; MSA 28.424(2). They were convicted on October 23, 1978, by a Detroit Recorder’s Court jury of second-degree murder, MCL 750.317; MSA 28.549, assault with intent to murder and possession of a firearm while in the commission of a felony. Each defendant was sentenced to concurrent five- to ten-year sentences for second-degree murder and assault with intent to murder, and to two years for possession of a firearm in the commission of a felony. Defendants now appeal as of right.

The case arises out of a shooting incident that occurred in the early morning hours of May 28, 1978. There was testimony that defendants belonged to a group known as "The Enforcers” and that they had a confrontation with another group, the "Fenkell Avenues”, the day before. The shooting was alleged to have been in retaliation for the earlier incident. Accomplice testimony was provided by Elzy Jones, a former codefendant who had pled guilty to manslaughter and possession of a firearm in the commission of a felony. Jones testified that he and the defendants spotted persons they thought were Fenkell Avenues on a street corner in the Fenkell-Mendota area of Detroit. Defendant Turner dropped Jones, Morgan and Riley off in an alley behind Mendota. Morgan was armed with Jones’s shotgun, while Riley carried Turner’s .38-caliber revolver. The three walked around the sides of a house and viewed a group of persons on and around the porch of the house across the street. Although there was apparently some confusion over whether the persons were actually members of the Fenkell Avenues, Morgan and Riley fired in the direction of the porch. John Lathan, Jr., who was standing near the porch, was shot and died as a result of the wound received. A second person, Alex Young, was wounded. Neither the victims nor the other persons near the porch had any association with the Fenkell Avenues.

Defendants’ first argument on appeal is that the trial judge shifted the burden of proof by deviating from the standard jury instruction on reasonable doubt. Although CJI 3:1:05 was utilized, two additional sentences were read:

"Reasonable Doubt. A reasonable doubt is a fair doubt growing out of the testimony, the lack of testimony, or the unsatisfactory nature of the testimony in the case. It is not a mere imaginary or possible doubt, but a fair doubt based on reason and common sense. It is such a doubt as to leave your minds after a careful examination of all the evidence in the case in the condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge made against the Defendants. In other words, if you can assign a reason you have a reasonable doubt. If you cannot assign a reason you have no reasonable doubt. ” (Emphasis supplied.)

No objection was made to the instruction. Therefore, reversal is precluded absent a showing of manifest injustice. People v Johnson, 93 Mich App 667, 669; 287 NW2d 311 (1979).

The reasonable doubt standard is of constitutional dimension. It reduces convictions based on factual errors and effectuates at trial the all-important presumption of innocence. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Although we do not wish to encourage unnecessary variations from the standard jury instructions, it is apparent that the additions here were nonprejudicial and that the reasonable doubt standard remained intact.

The standard instruction warned that a reasonable doubt "is not a mere imaginary or possible doubt, but a fair doubt based on reason and common sense”. The additional comments merely reminded that a reasonable doubt must be the product of such a rational thought process. Jury instructions are to be considered as a whole and not in small excerpts. People v McFadden, 73 Mich App 232, 237; 251 NW2d 297 (1977). Viewed in context the two additional sentences did not alter the burden of proof. No manifest injustice is apparent.

Defendants’ second claim on appeal is that the murder verdict was coerced by the court’s instructions. Defendants initially argue that the instructions overemphasized murder over the lesser offenses. The trial court, in reading the first-degree murder statute to the jury, included that portion dealing with felony murder. At one point, the trial judge lost his place and began to reread the murder instruction but was promptly halted by the prosecution. Subsequently, when the jury requested reinstruction on second-degree murder and manslaughter by intentional aiming of a firearm without malice, MCL 750.329; MSA 28.561, the court reread that portion of CJI 16:2:01 concerning second-degree murder but had to be halted to prevent continuation into the elements of first-degree murder. In contrast, the instructions on the lesser included offenses consisted primarily of a reading of the applicable statutes. The jury was twice given the definitions of manslaughter by intentional aiming of a firearm without malice and careless, reckless or negligent use of a firearm. MCL 752.861; MSA 28.436(21). In addition, an instruction on involuntary manslaughter was read. CJI 16:4:04.

Defendants argue that the inadvertent reading of the felony-murder portion of the statute constituted an instruction on an offense neither charged nor supported by the evidence. People v Milton, 81 Mich App 515, 519; 265 NW2d 397 (1978). However, the jury was immediately informed that the law, as it applied to the case, made "wilful, deliberate and premeditated murder” murder in the first degree, and they received detailed instructions only on premeditated first-degree murder. Neither the prosecution nor defense mentioned felony murder in their arguments. In any event, the defendants were not convicted of first-degree murder, so no harm occurred. Further, there was no undue emphasis on the murder instructions as a whole. The court was prevented from initially repeating the instructions. The subsequent reinstruction on second-degree murder was proper since it was only in response to the jurors’ request. People v McGuire, 39 Mich App 308, 319-320; 197 NW2d 469 (1972). Finally, the statutory definitions of the lesser included offenses were adequate instruction on those crimes. Although the statutory definition of manslaughter by intentional aiming of a firearm without malice was not accompanied by the specific jury instruction, the general instruction in involuntary manslaughter was read. CJI 16:4:04. Since counsel did not object to the substitution and request a more detailed instruction, no reversible error exists. People v Manchester, 235 Mich 594; 209 NW 815 (1926).

Defendants also argue that the verdict was coerced by the instruction that malice could be inferred from the use of a dangerous weapon. This contention is without merit. Although it is error to instruct that the law implies malice from certain circumstances or that malice is presumed, malice may be inferred from other facts and circumstances. Cf. People v Richardson, 409 Mich 126; 293 NW2d 332 (1980). The instruction did not prevent consideration of defendants’ accident theory.

Defendants’ third claim on appeal is that reversible error took place when both the prosecutor and trial court noted that one of the lesser included offenses was a misdemeanor. Defendants argue that this improperly focused juror attention upon the possible disposition of the defendants.

During rebuttal, the prosecutor claimed that Morgan sought conviction "of the lowest possible charge that you could convict him of in this state”, and he reminded the jurors that "careless and reckless use of a firearm * * * isn’t even a felony”. The instructions later confirmed that the charge was a misdemeanor.

The general rule is that neither counsel nor the court should address the question of disposition upon conviction. People v Szczytko, 390 Mich 278, 285; 212 NW2d 211 (1973). However, the prosecutor’s remarks were in direct response to the arguments of defense counsel. The jury had previously been urged to consider the young age of the defendants and to make "the punishment * * * fit the crime”. The prosecutor’s comments were proper rebuttal. People v Hall, 83 Mich App 632; 269 NW2d 476 (1978), People v Ashford, 91 Mich App 693; 283 NW2d 830 (1979). The jury was ultimately instructed not to be concerned with what penalties might be imposed, eliminating any prejudicial impact. See People v Szczytko, supra, 290.

The trial court’s comments were made in the context of reading the applicable statutes. Such remarks are permissible where the classification appears in the statute itself. People v Nichols, 391 Mich 813 (1974), People v Ritchie, 52 Mich App 380; 217 NW2d 439 (1974). No error is apparent.

Defendants’ fourth claim on appeal involves a variety of alleged prosecutorial misconduct. Defendants contend the prosecutor insinuated that Morgan had been involved in other murders when the following exchange occurred on cross-examination:

”Q. [By Mr. Resnick]: What did you think happened?
"A [Defendant Morgan]: I didn’t think nothing happened you know, when the police, you know when they picked us up they just told us that they had us for suspicion of murder, which I didn’t know which murder they was talking about.
”Q. Were you involved in any other murders?
"A. No.”

The exchange took place while the prosecutor was questioning Morgan about an earlier statement to the police. Morgan attempted to extricate himself from the statement by claiming that he "didn’t know which murder they was talking about”. The answer implied that there were other murders and it was reasonable for the prosecutor to make further inquiry. When Morgan responded in a negative manner the prosecutor properly left the subject area. The questioning was therefore dissimilar to that in People v Di Paolo, 366 Mich 394; 115 NW2d 78 (1962), and those cases relying on Di Paolo. In Di Paolo, the defendant was repeatedly asked if he was guilty of a prior rape charge, when in fact he had been found not guilty. The manner of questioning was such to imply that the defendant was lying. Likewise, those cases following Di Paolo are characterized by repeated questioning in the face of initial denials in situations where it was apparent that innuendo was purposefully used to prejudice. See, e.g., People v Walker, 86 Mich App 155; 272 NW2d 222 (1978), People v Ball, 33 Mich App 288; 189 NW2d 816 (1971), People v Jones, 32 Mich App 309; 188 NW2d 190 (1971). Such misconduct was not present below.

Defendants also claim that the prosecutor referred to facts not in evidence during his closing argument. The allegation is based on the prosecutor’s review of Morgan’s custodial statement and the implications it contained of defendant Turner’s guilt. Defendants ignore the fact that the statement was offered into evidence by Morgan himself without objection. The content of the statement was appropriate subject matter for review.

Defendants also insist that misconduct was committed when the prosecutor appealed to juror sympathy for the decedent and when he described the procedures by which the charges were brought. The remarks were in direct response to appeals for sympathy by the defendants and to the defendants’ claim that the prosecutor had abused his discretion in charging first-degree murder. As such, they were proper rebuttal. People v Hall, supra, People v Dersa, 42 Mich App 522; 202 NW2d 334 (1972). Further, since any harm could have been eliminated by curative instructions had they been requested, reversal is precluded by defendants’ failure to object and by the absence of manifest injustice. People v Duncan, 402 Mich 1, 16-17; 260 NW2d 58 (1977).

Defendants’ fifth claim of error is that a fair trial was denied when a photograph of the decedent was admitted into evidence. The admission of photographs depicting the body of a victim is a matter within the discretion of the trial court, provided they are not offered with the sole intention of inflaming the jury. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). The test is whether the photographs are substantially necessary or instructive to show material facts or conditions, or merely calculated to excite passion and prejudice. People v Falkner, 389 Mich 682; 209 NW2d 193 (1973). Photographs otherwise admissible for a proper purpose are not rendered inadmissible merely because they bring vividly clear the details of a gruesome or shocking crime. People v Eddington, supra.

Here, admission was necessary to show that the body examined by the coroner was indeed that of the victim. It is apparent that the prosecution had no intention of offering the photograph until the identification of the body was challenged. The court did not abuse its discretion in admitting the evidence.

Defendant Turner argues on appeal that comments of the trial judge denied him a fair trial before an impartial jury. Since none of the comments were objected to, reversal is precluded absent a manifest injustice.

In his preliminary remarks to the jury the court pointed out that the defendants were not required to take the stand. Such remarks are impermissible where they create an unfavorable inference regarding the decision not to testify. Griffin v California, 380 US 609; 85 S Ct 1229; 14 L Ed 2d 106 (1965). However, the comments here merely warned the jury not to take the failure to take the stand as evidence of guilt. No reversible error occurred. People v Archie Smith (On Remand), 68 Mich App 527; 243 NW2d 677 (1976).

At the conclusion of the prosecutor’s rebuttal, the court commented that the arguments had been "quite impassioned”, but told the jury that his instructions would come from a neutral voice. Defendant Turner now argues that this disparaged his trial counsel, effectively telling the jurors to ignore the closing arguments. While a trial court’s criticism of counsel may be grounds for reversal, the appropriate test is whether the court’s participation denied the defendant a fair and impartial trial by unduly influencing the jury. People v Moss, 70 Mich App 18; 245 NW2d 389 (1976). Here, the court did not disparage counsel. The remarks were complimentary in nature and not such as to induce the jury to disregard the closing arguments. We perceive no manifest injustice to justify reversal.

Defendant Turner also singles out the court’s instruction on aiding and abetting as having reminded the jury of the evidence against him, bolstering what was otherwise a weak case. This argument is also without merit. The court only made brief reference to the evidence of Turner’s involvement and it is evident that it acted less to bolster the prosecution’s case than to help explain the concept of aiding and abetting. Cf. People v Skowronski, 61 Mich App 71; 232 NW2d 306 (1975).

Defendant Turner’s final claim on appeal merits little discussion. He argues that he should not have been convicted for possession of a firearm in the commission of a felony as an aider and abettor. However, a majority of the decisions from this Court have followed the lead of People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), in holding that actual personal possession of a firearm is unnecessary. Here, there was ample evidence to show that Turner acted to encourage, with an intent to aid his codefendants in obtaining the weapons utilized. Cf. People v Atkins, 93 Mich App 524; 286 NW2d 901 (1979).

Likewise, there is no merit to the contention of defendants Morgan and Riley that conviction for both possession of a firearm in the commission of a felony and the underlying felony violates their constitutional right against double jeopardy. Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Affirmed.

        Dunn v Perrin, 570 F2d 21, 23 (CA 1, 1978), is readily distinguishable. There, reasonable doubt was defined as "doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason”. The instruction lowered the burden of proof by implying that a doubt based on reason was not a reasonable doubt unless the reason was good and sufficient.

       MCL 750.316; MSA 28.548 reads:
      "All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.”

        People v Townes, 391 Mich 578; 218 NW2d 136 (1974), does not mandate reversal. There, the trial court’s confusion of voluntary manslaughter and involuntary manslaughter effectively deprived the defendant of instruction on the former. Here, adequate instruction was given.

       The prosecutor remarked during rebuttal:
      "Do you think it matters to Cora Lathan that her beloved husband John Lathan, age 39, was shot down in cold blood by an eighteen year old, or a twenty year old, or a thirty year old, or a sixty year old? An eighteen year old can commit first degree murder as well as a thirty year old or a sixty year old or a ninety year old person.
      "Mr. Lauck talks about not depriving this eighteen year old Defendant of the right to shape up and grow up. Well, how about Mr. Morgan depriving Mr. John Lathan of his right to life and liberty and the pursuit of happiness. How about that deprivation of a life that Mr. Morgan decided to terminate. You know we’re talking about— let’s talk about the Defendants’ lives and let’s talk about what it’s gonna do to them. Well, sympathy and prejudice should have no part in your considerations. And that argument was designed specifically to draw your sympathy and prejudices and try to get you biased for this young man. Well, let’s talk about the victim of these crimes for once. What it does to them. What it does to the family. What it does to his children that will never have a father again. Do we take that into consideration?
      "* * * No, Mr. Lauck, I remember what he said about that Mr. Lauck will be the last person that Mr. Morgan will see. Well, I bet you Mr. John Lathan would like to see anybody other than a grave and to be buried under that ground for these acts.”

       The argument included the following statement:
      "Mr. Lauck then tells you that I abused my power in charging these Defendants with murder one, or the prosecution abused his power. Well, let me tell you the safeguards, ladies and gentlemen, afforded Mr. Morgan’s client, or Mr. Lauck’s client in this case, as well as, the other Defendants. First, there has to be citizens that complain about activity. The police have got to get a report. They get tons of reports and tons of statements. They present all those to the prosecutor’s office. The prosecutor’s office, an assistant has to look through that and decide, what, if any, crime was committed. Then they have to go before an examining magistrate and swear under oath to the facts contained in the Complaint and Warrant. Then there has to be a preliminary examination. At the preliminary examination the prosecution has to show by a preponderance of the evidence that a crime was committed, what crime was committed, and probable cause to believe the Defendants did it. That was conducted in this case. Defendants were bound over for trial on murder in the first degree. Then there is a time period for defense counsels and other attorneys to file motions, either to reduce the charges because the prosecution abused his discretion in charging, or that the examining magistrate abused his discretion in charging the Defendants. All those steps were completed. This case went to trial — didn’t go to trial on the reduced charge of careless or reckless use of a firearm. This case went to the trial on the case of first degree murder, and now ladies and gentlemen it’s up to you to determine whether or not there was any kind of abuse of discretion. Does the facts in this case show murder in the first degree because you are the final judge.”

       The jury did receive a general warning that sympathy, passion or prejudice were not to influence their verdict.

       The court stated:
      "The Defendants have a right not to testify, and that may not be held against them. This is a little bit different than what we are normally used to in our everyday life. If someone accuses you of taking a piece out of the cake that was recently baked, your first impulse is to say, I didn’t do it. In the Courtrooms no answer is required.”

       The instruction read in part:
      "It is charged in this case that Mr. Morgan and Mr. Riley, either directly committed the crimes charged, which is the crime of murder in the first degree and assault with intent to commit murder, and felony firearm, or that they intentionally aided or assisted another in the commission of that crime. All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense, or as an aider and abettor.
      "If it charged in this case that, or it is claimed in this case that Mr. Turner, did not directly commit the crime, but that he intentionally aided or assisted another in the commission of that crime. By the testimony we’ve heard that he drove the car to the scene, other testimony which you will recall yourself.
      "All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense as an aider or abettor.”


author: T. C. Quinn, J.

text:
    WOLL v ATTORNEY GENERAL
    Docket No. 43779.
    Submitted June 3, 1980, at Detroit.
    Decided September 2, 1980.
    Leave to appeal applied for.
    Arthur S. Woll was indicted by the Wayne County Citizens Grand Jury on charges of solicitation of personal injury claims and obstruction of justice. The State Bar Grievance Board subsequently issued and served the Attorney General with a subpoena duces tecum requiring the production of all grand jury records concerning the charges and indictment of the petitioner. The Attorney General moved for instructions regarding compliance with the subpoena and was ordered to turn over all the materials sought by the Board. Petitioner moved to set aside this order, which motion was denied, Wayne Circuit Court, John D. O’Hair, J.
    Thereafter, the Board filed a formal complaint against the petitioner who, following negotiations with the Board, pled no contest to one count of soliciting. The Board entered an order of discipline against him without using the subpoenaed materials. Petitioner appeals the order of the circuit court. Held:

    The formal complaint against petitioner was based on the same charges for which he was indicted. The particularized need of the Board for the grand jury material was apparent and no further showing of need was required. The material is not subject to the statutory secrecy provisions pertaining to grand jury evidence since it comes within the exception applying to communications between prosecuting officers for the purpose of reviewing such evidence for prospective prosecution or for any other purpose involving the execution of a public duty.
    Affirmed.
    1. Attorney and Client — Attorney Grievance Commission — Responsibilities.
    The Attorney Grievance Commission is charged with the responsibility of supervising and policing the conduct of attorneys.
    References for Points in Headnotes'
    [1-6] 7 Am Jur 2d (Rev), Attorneys at Law § 30.
    [2, 5] 38 Am Jur 2d, Grand Jury § 41.
    81 Am Jur 2d, Witnesses §§ 14-16.

      2. Grand Jury — Attorney Grievance Commission — Secrecy Provisions — Exceptions — Statutes.
    Grand jury material which is the subject of a subpoena duces tecum issued by the Attorney Grievance Commission to a prosecuting officer is not subject to statutory secrecy provisions pertaining to such material since it comes within the. statutory exception applying to communications between prosecuting officers for the purpose of reviewing such evidence for prospective prosecution or for any other purpose involving the execution of a public duty (MCL 767.19Í; MSA 28.959[6]).
    3. Attorney and Client — Attorney Grievance Commission — Role — Court Rules.
    The Attorney Grievance Commission is the prosecution arm of the Supreme Court for the discharge of its constitutional responsibility to supervise and discipline the members of the State Bar of Michigan pursuant to court rule (GCR 1963, 957.1).
    4. Prosecuting Attorneys — Attorney Grievance Commission — Grievance Administrator — Assistance in Investigation — Court Rules.
    The Grievance Administrator may request, pursuant to court rule, any law enforcement office to assist in an investigation of an attorney by furnishing all available information about an attorney named in a request for investigation or complaint (GCR 1963, 963.2).
    5. Attorney and Client — Attorney Grievance Commission — Subpoena Power —• Court Rule.
    The Attorney Grievance Commission is granted subpoena power pursuant to court rule (GCR 1963, 963.3).
    6. Attorney and Client —■ State Bar — Law Enforcement Officers — Aid in Investigation — Statutes.
    It is the duty of all state, county, and city law enforcement officers to aid the State Bar of Michigan in any investigation of the conduct of members of the bar pursuant to statute (MCL 600.949; MSA 27A.949).

      Jules B. Olsman, for petitioner.

      Louis Rosenzweig, for respondent Grievance Administrator.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, and Thomas L. Casey, Assistant Attorney General, for respondent Attorney General.
    Before: R. M. Maher, P.J., and Bronson and T. C. Quinn, JJ.

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

   T. C. Quinn, J.

Petitioner appeals from a circuit court order denying his motion to set aside a previous order of that court permitting the transfer of grand jury transcripts and exhibits to the State Bar Grievance Board. The following facts are pertinent to an understanding of this litigation.

On April 29, 1976, petitioner was indicted by the Wayne County Citizens Grand Jury on charges of solicitation of personal injury claims and for obstruction of justice. On July 30, 1976, the Attorney General was served by the State Bar Grievance Board with a subpoena duces tecum, requiring the production of all records concerning the charges in the indictment against petitioner. On August 10, 1976, the Attorney General moved in Wayne Circuit Court for instructions regarding compliance with the subpoena. The hearing on this motion was attended by an assistant attorney general and counsel for the Board. Petitioner was not notified of this hearing. On November 23, 1976, the circuit judge entered an order requiring the Attorney General to turn over the materials sought by the subpoena to the Board.

Thereafter, a formal complaint was filed against petitioner by the State Bar Grievance Board. As a result of negotiations between the Grievance Administrator and petitioner, the latter pled no contest to one count of soliciting. On September 27, 1978, an order of discipline was entered against Mr. Woll, without the materials obtained by the subpoena.

The Grievance Administrator contends that this appeal is moot, and it may be. However, as the case involves an issue of importance to the ability of the State Bar to govern its members, a decision on broader grounds is required.

Attorneys are central to our system of justice. Their conduct is important to appropriate administration of justice and to the confidence that the public has in the courts. The State Bar Grievance Board is charged with the responsibility of supervising and policing the conduct of attorneys. The Supreme Court and the Legislature have recognized this responsibility in thé rules and statutes hereinafter noted.

The grand jury material obtained by the subpoena is not subject to the secrecy provisions of MCL 767.19f; MSA 28.959(6), as petitioner contends. It comes within the exception:

"* * * Thg provisions of this section respecting secrecy shall not apply to communications between prosecuting officers for the purpose of * * * reviewing evidence presented to the grand jury for prospective prosecution or for any other purpose involving the execution of a public duty. ”

Grievance Rule 16, now GCR 1963, 957.1, created the State Bar Grievance Board as "the prosecution arm of the Supreme Court for the discharge of its constitutional responsibility to supervise and discipline the members of the State Bar of Michigan.”

Grievance Rule 16.26, now GCR 1963, 963.2 provides:

"The Administrator may request a law enforcement office to assist in an investigation by furnishing all available information about the respondent.”

By Grievance Rule 16.24, now GCR 1963, 963.3, the State Bar Grievance Board (now Attorney Grievance Commission) is granted subpoena power. MCL 600.949; MSA 27A.949, makes it the duty of all state, county, and city law enforcement officers to aid the State Bar of Michigan in any investigation of the conduct of members of the bar.

The formal complaint against petitioner was based on the same charges for which he had been indicted. The particularized need of the State Bar Grievance Board for the grand jury material was apparent. Petitioner’s argument that some further showing of need was required before the circuit court is unconvincing.

Affirmed.