text:
    PEOPLE v TRUPIANO
    Docket No. 47346.
    Submitted April 10, 1980, at Lansing.
    Decided May 6, 1980.
    Leave to appeal denied, 409 Mich 895.
    Michael A. Trupiano was convicted, on his plea of guilty, of delivery of cocaine, Oakland Circuit Court, Robert L. Templin, J. Defendant appeals, alleging that the section of the Public Health Code under which he was convicted violates the title-object clause of the Michigan Constitution, that the circuit court improperly relied upon a constitutionally infirm prior conviction when sentencing him, and that he was denied effective assistance of counsel because his attorney did not object to those alleged errors as they occurred. Held:

    1. The Public Health Code embraces only one object, the protection and promotion of public health, which is expressed in the title. That purpose includes the proscription of controlled substances and penalties for violation of that proscription. The code does not violate the title-object clause of the Constitution.
    2. There is no support in the record for defendant’s contention that the circuit judge relied on an invalid prior conviction when sentencing the defendant.
    3. Defendant was not denied effective assistance of counsel.
    Affirmed.
    1. Constitutional Law — Title-Object Clause — Construction.
    The purpose of the title-object clause of the Michigan Constitution, which provides that no law shall embrace more than one object which shall be expressed in its title, is to assure fair notice to legislators and the public of a statute’s content and to prevent deceit and subterfuge; in effectuating these purposes, courts must construe an act’s title reasonably, not in a narrow and technical sense (Const 1963, art 4, § 24).
    2. Health — Public Health Code — Criminal Law — Controlled
    Substances — Constitutional Law — Statutes.
    Reference in the title of the Public Health Code to the protection and promotion of public health as the purpose of the code necessarily includes proscriptions and penalties on the use of controlled substances; therefore, a section of the code which provides such proscriptions and penalties does not violate the title-object clause of the Michigan Constitution (Const 1963, art 4, § 24, MCL 333.7401; MSA 14.15[7401]).

      References for Points in Headnotes
    [1, 2] 73 Am Jur 2d, Statutes § 119 et seq.

    [2] 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 17.
    [3] 21 Am Jur 2d, Criminal Law §§ 533, 572, 585.

      3. Criminal Law — Sentencing — Invalid Convictions — Remand.
    An appellate court should remand a criminal case for resentencing if the record shows that the sentencing judge considered a defendant’s prior conviction which had been obtained without the defendant’s having been afforded his right to counsel.

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

      Paul G. Valentino, J.D., PC. (by Larry A. Smith), for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Defendant pled guilty to delivery of between 50 and 225 grams of cocaine in violation of MCL 333.7401; MSA 14.15(7401). He was sentenced to 10 to 20 years imprisonment, with a two day credit for time previously served. From this conviction and sentence, defendant appeals as of right under GCR 1963, 806.1.

Defendant raises three claims of error which we shall address seriatim. First, defendant contends that the statute under which he was convicted violates the title-object clause of Const 1963, art 4, §24.

The title-object clause provides in pertinent part:

"No law shall embrace more than one object, which shall be expressed in its title.”

In Bragg v Kalamazoo, 86 Mich App 700, 702; 273 NW2d 530 (1978), this Court analyzed the title-object clause thusly:

"The purpose of the title-object clause is to assure fair notice to legislators and the public of a statute’s content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). In effectuating these purposes, courts must construe an act’s title reasonably, not in a narrow and technical sense.”

In accord: People v Sharif, 87 Mich App 196, 199; 274 NW2d 17 (1978), wherein it is stated that a statute is "presumptively constitutional”.

The title-object clause embodies two separate concepts, each of which is a prerequisite to statutory validity. As stated in Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 123, 128; 240 NW2d 193 (1976), these concepts are: .

"1. That the law shall not embrace more than one object and
"2. That the object which the law embraced shall be expressed in its title.”

With this as background, then, we shall examine the Public Health Code and the statutory section under which defendant was convicted.

The Public Health Code indicates that it is:

"AN ACT to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to provide for penalties and remedies; and to repeal certain acts and parts of acts.”

The statutory portion of the Public Health Code under which defendant was convicted, MCL 333.7401; MSA 14.15(7401), provides in pertinent part:

"(1) Except as authorized by this article, a person shall not manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. A practitioner licensed by the administrator under this article shall not dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes or outside the scope of practice of the practitioner, licensee, or applicant.
"(2) A person who violates this section as to:
"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) and:
"(iii) Which is in an amount of 50 grams or more, but less than 225 grams, of any mixture containing that substance is guilty of a felony and shall be either imprisoned for not less than 10 years nor more than 20 years or placed on probation for life.”

The first concept to be addressed is whether or not the Public Health Code embraces more than one object. The Supreme Court has recognized a wide degree of discretion in reviewing legislative enactments which constitute a "code”. In Advisory Opinion re Constitutionality of 1972 PA 294, supra, the Court noted at 463:

"Emphasis is given to the fact that the subject matter constitutes a code and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the 'one-object’ limitation is present in the constitution.”

In view of the foregoing, we conclude that the body of the Public Health Code does not violate the one-object doctrine. The act’s reference to the protection and promotion of the public health as its purpose necessarily includes proscriptions and penalties on the use of controlled substances. Conversely, we find that the object embraced by the statute under which defendant was convicted is expressed in the title clause of the Public Health Code.

In his second allegation of error, defendant contends that the trial court improperly relied upon a prior constitutionally infirm juvenile drug conviction to enhance his sentence. The constitutional infirmity of this prior conviction, according to defendant, is that it was obtained without affording defendant his right to counsel under Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963). Defendant cites United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), and People v Moore, 391 Mich 426; 216 NW2d 770 (1974), for the proposition that such a conviction cannot be used either to support guilt or to enhance punishment for a subsequent offense.

In People v Moore, supra, at 440, the Supreme Court stated:

"The rule which we glean from what the United States Supreme Court did in Tucker is that where the record shows that the sentencing judge considered a conviction invalid under Gideon an appellate court will remand for resentencing.”

In accord: People v Watroba, 89 Mich App 718, 723; 282 NW2d 196 (1979).

We have reviewed the sentencing transcript and found no mention of defendant’s juvenile drug conviction. Moreover, additional review of the transcript of defendant’s motion to withdraw his plea or set aside his conviction suggests no specific consideration of defendant’s juvenile conviction by the trial court. Therefore, we find defendant’s allegation to be without support.

Defendant’s third and final claim of error is that he was denied effective assistance of counsel in that defense counsel did not lodge objections to the aforementioned errors as they occurred. In view of the fact that we have already concluded that defendant’s first two allegations of error were unfounded, we find that defense counsel’s inaction did not constitute ineffective assistance.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v GEE
    Docket No. 48071.
    Submitted April 10, 1980, at Lansing.
    Decided May 6, 1980.
    Leño G. Gee (hereinafter defendant) was convicted, on his plea of guilty, of armed robbery and possession of a firearm in the commission of a felony, Oakland Circuit Court, John N. O’Brien, J. Defendant was sentenced to 3 to 20 years imprisonment on the armed robbery conviction and to the mandatory two years on the felony-firearm conviction. At the proceeding on the plea, defendant stated that he used a pellet gun in the armed robbery. Defendant now appeals, alleging that a pellet gun is not and cannot be considered a firearm under the felony-firearm statute. Held:

    Possession of a pellet gun which propels projectiles not exceeding .177 calibre does not constitute possession of a "firearm” in the commission of a felony under the Michigan felony-firearm statute. The case is to be remanded for a determination whether defendant’s pellet gun did, indeed, fire a projectile exceeding .177 calibre.
    Remanded.
    Criminal Law — Felony-Firearm Statute — Firearms — Pellet Guns — Statutes.
    Possession of a pellet gun which propels projectiles not exceeding .177 calibre does not constitute possession of a "firearm” in the commission of a felony under the Michigan felony-firearm statute (MCL 750.227b; MSA 28.424[2]).
    Reference for Points in Headnote
    [1] 79 Am Jur 2d, Weapons and Firearms § 2.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Robert F. Davisson, Assistant Prosecuting Attorney, for plaintiff.

      Carlton R. Roeser, for defendant on appeal._

      Before: D. C. Riley, P.J., and R. B. Burns and Kaufman, JJ.
   Per Curiam.

Defendant pled guilty to robbery armed, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), before the Oakland Circuit Court. He was sentenced to 3 to 20 years imprisonment on the armed robbery conviction and to the mandatory two years on the felony-firearm conviction. From these convictions and sentences, defendant appeals as of right under GCR 1963, 806.1.

Defendant argues that the plea-taking court did not ascertain an adequate factual basis in support of his felony-firearm plea. At the proceeding on the plea, defendant stated that he used a pellet gun in the armed robbery.

"THE COURT: Around April. What happened? You walked into the place?
"MR. GEE: Yes. And, I pulled a weapon from under my coat.
"THE COURT: What kind of a weapon was that?
"MR. GEE: A pellet rifle.
"THE COURT: A pellet rifle.”

The court then accepted defendant’s felony-firearm plea on this basis. Now, defendant contends that a pellet gun is not and cannot be considered a firearm under the statute.

The felony-firearm statute, MCL 750.227(b); MSA 28.424(2), provides in pertinent part:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years.”

The definition of a firearm is contained in MCL 8.3t; MSA 2.212(20):

"The word 'firearm’, except as otherwise specifically defined in the statutes shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of .propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB’s not exceeding .177 calibre by means of spring, gas or air.”

Whether a pellet gun is a firearm, under this definition, then, depends on the size of the projectile it propels. The record provides no assistance in this determination. The plea-taking court merely equated pellet gun with firearm and accepted defendant’s plea. We choose not to follow this line of reasoning. Instead, we remand this cause for further fact finding upon this question. If defendant’s pellet gun did, indeed, fire a projectile exceeding .177 calibre, his felony-firearm conviction shall be affirmed. If not, the conviction shall be vacated. We leave further development of this question to the trial court and do not retain jurisdiction.

Remanded for proceedings in conformity with this opinion.


text:
    PEOPLE v McDONALD
    Docket No. 44888.
    Submitted December 11, 1979, at Detroit.
    Decided May 6, 1980.
    Leave to appeal applied for.
    Patrick McDonald was convicted, on his plea of guilty, of criminal sexual conduct in the second degree and was placed on probation. He was subsequently charged with second-degree murder, a charge which has since been dismissed. Upon being charged with murder, McDonald’s probation was revoked and he was sentenced to prison, Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals, alleging that he was denied due process because the probation revocation was based on conduct not charged in the notice of probation violation, that the judge erred in not expressly finding that the revocation was in the public interest, and that the defendant was entitled to a hearing before another judge on a motion for disqualification of the assigned judge. Held:

    1. The notice of probation violation charged defendant with assaultive behavior. The evidence clearly established that conduct, which so far outweighed the other grounds for probation revocation stated by the judge that the statement of those other grounds is not considered to be error amounting to a denial of due process.
    2. It is not necessary for a judge to expressly state that revocation of probation is in the public interest. Such a finding is implicit in the decision to revoke probation.
    3. The trial judge denied the defendant’s motion for disqualification and determined that he was the only judge who could hold the revocation hearing. This determination was error. However, because the motion for disqualification was not made until after preliminary examination and scheduling of the revocation hearing, and because the defendant did not request that the motion be referred to another judge until after the revocation hearing was in progress, the trial judge had the option of continuing the hearing. Because a party challenging a judge’s qualifications has a right to a rehearing before another judge, the case is remanded for a hearing on the motion for disqualification, and if the trial judge is found to have been disqualified, the defendant shall have a new revocation hearing. If it is determined that the judge was not disqualified, the revocation and sentence will stand.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 565, 567.
    [3] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    [4-6] 46 Am Jur 2d, Judges § 204 et seq.

      Remanded.
    1. Criminal Law — Probation — Violation of Law.
    A mandatory statutory condition of every probation order is that the probationer shall not violate any criminal law of the state.
    2. Criminal Law — Probation Revocation — Public Interest.
    It is not necessary for a trial judge to expressly find that revocation of a defendant’s probation is in the public interest; such a finding is implicit in the judge’s decision to revoke probation.
    3. Criminal Law — Probation Revocation — Judges.
    Generally, a probation revocation hearing should be conducted by the same judge who sentenced the defendant to probation; however, there is no requirement that the same judge conduct the hearing, especially if the judge may be disqualified from doing so.
    4. Judges — Disqualification of Judge — Hearing Before Other Judge — Court Rules.
    An attorney who has made a motion for disqualification of a judge has the responsibility to seek a referral to another judge for a hearing on the motion from the court administrator or chief judge if the challenged judge does not refer the motion to another judge (GCR 1963, 912.3, 925.6, 926.3).
    5. Judges — Disqualification of Judge — Trial — Hearing Before Other Judge.
    A judge who has denied a motion for his disqualification has the option of proceeding with the trial or hearing if a request for a hearing on the disqualification motion before another judge comes after the trial or hearing has begun, unless the chief judge or a higher court orders the trial or hearing interrupted for consideration of the disqualification motion by another judge.
    6. Judges — Disqualification of Judge — Rehearing — Court Rules.
    A party challenging the qualifications of a judge who has heard the case has a right to a rehearing by another judge (GCR 1963, 912).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Dianne M. Odrobina, Assistant Prosecuting Attorney, for the people.

      Sheldon Halpern, for defendant.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   Per Curiam.

On June 14, 1977, defendant pled guilty to criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3), and was sentenced to four years probation. In February, 1979, defendant was charged with second-degree murder contrary to MCL 750.317; MSA 28.549. That charge has since been dismissed. Pursuant to the policy of the original sentencing judge, a warrant was issued for probation violation following defendant’s arrest on the new felony charge. Defendant’s probation was revoked and he received a sentence of 10 to 15 years imprisonment. Defendant appeals from the revocation of probation and sentence.

I

Defendant claims he was denied due process by the trial court’s revocation of probation based upon conduct not charged in the written notice of probation violation. On February 28, 1979, a notice of probation violation was issued charging as follows:

"On 2-24-79 at 2:45 AM at the Nugget Restaurant, 14670 E. Eight Mile Rd, Detroit, the defendant engaged in assaultive behavior by striking James Honaker when the latter and his companions failed to vacate a booth as quickly as defendant demanded. During the altercation with defendant and codefendant Michael Whalen, the complainant sustained a stab wound to the chest resulting in his death. (Docket #79-01295, Examination 3-13-79).”

The brief of the defendant-appellant summarizes the widow’s testimony at the termination hearing:

"She testified that she observed the defendant walk up to the waitress who was waiting on their table, say a few words, and point in their direction. Then the defendant came up to their booth and asked how long they would be. Her husband replied a few minutes. The defendant then left and minutes later approached the table again. He asked Mr. Honaker if he was having a good time to which Honaker replied 'yes> please leave us alone to finish our coffee’. Words were then exchanged, and according to the witness, defendant then struck Mr. Honaker in the face and knocked his glasses off. Honaker jumped up and a fight began. The two fought for a few minutes and the fight was broken up. Honaker, who had been brought back to the table, picked up his glasses, and threw them, and looking at the defendant said you broke my glasses. The two started fighting and wrestling again and went down on the floor. The next thing she observed was blood all over the floor.
"On cross-examination she further stated that she didn’t see any weapon in the hands of her husband or the defendant, that other persons were within arms reach of the two as they were fighting, and that during the course of the second fight she saw another man behind her husband, holding him.”

Other witnesses established that the fight resulting in Mr. Honaker’s death occurred at approximately 2:30 a.m. and that the defendant was accompanied by other members of a motorcycle club of which the defendant had been president prior to being placed on probation. After the hearing the court stated that he found the defendant guilty of assaultive behavior and that he was out at an unreasonable hour in the company of "questionable associates”.

The judge was wrong to the extent that he indicated that the late hour and the nature of defendant’s companions were grounds for termination of defendant’s probation. Although the conditions of probation did include a curfew and restriction upon his associations, the notice of probation violation did not adequately inform defendant that he would be called upon to defend against claims that he was out too late and in bad company.

However, there is no doubt that defendant’s probation could properly be revoked for the conduct described in the notice and established by the testimony of the widow and others. A mandatory statutory condition of every probation is that the probationer shall not violate any criminal law of the state. Defendant’s conduct was at least an assault and battery.

Because the defendant’s assaultive behavior, as set forth in the notice of probation violation, was so clearly established and so outweighed the other grounds stated by the judge it is unnecessary to remand this case for clarification by that judge or to consider his comment regarding additional grounds as reversible error. The clear notice and proof of the outstanding ground for revocation satisfies the requirements of due process.

II

The answer to defendant’s next contention is succinctly made in the appellee’s heading to this section of its brief: "It is not necessary for the trial judge to expressly find that revocation of probation was warranted by the public interest when this was obvious where the defendant was involved in assaultive behavior during probation which resulted in the death of the victim by a stab wound”. And it is obvious, we might add, that the judge considered revocation in the public interest from the sentence he imposed.

Although, as stated in People v Rocha, 86 Mich App 497, 502; 272 NW2d 699 (1978), probation revocation involves two steps: 1) a factual determination of whether the probationer committed the claimed violation or misconduct and "2) a discretionary determination of whether the violation warrants revocation”, neither that case nor any other Michigan case known to us requires an express finding on the record by the court that revocation is in the public interest. Such a finding is implicit in the court’s decision to revoke probation.

Ill

The final issue on appeal asks whether defendant was entitled to a hearing before another judge on the motion for disqualification of the assigned judge.

Judge Gillis had placed defendant on probation in 1977. On February 24, 1979, defendant was arrested on the second-degree murder charge. He was served with the notice, quoted above, and arraigned on the probation violation charge four days later. Preliminary examination on the murder charge was scheduled for Tuesday, March 13, and defendant was notified that the revocation hearing would be immediately after the examination. Apparently, the examination was adjourned to the 19th. Defense counsel moved for an adjournment of the revocation hearing, but that motion was denied. On March 15, a motion to disqualify Judge Gillis was filed and brought on for hearing before him. Basically, the motion contends that it was the judge’s practice to obtain pleas of guilty by long-term probation sentence-bargains and, if the probationer is later charged with a new crime while on probation, to hold the probationer without bail and conduct a speedy revocation hearing "by appointment of favored counsel minutes before such hearing, by denying probationers the opportunity to prepare a defense, by limiting the proofs presented and by otherwise denying probationers a meaningful day-in-court”. Judge Gillis denied the motion "because the statute says I’m the only judge in the State of Michigan that can hold the hearing”. Later, after the probation violation hearing had commenced and several witnesses had testified, defense counsel said: "912 indicates if this court denies a motion to disqualify itself, that the matter should then be referred to the Court Administrator who will appoint a judge for the purpose of a hearing”. Judge Gillis considered having another judge hear the motion; but, after re-examining the statute, MCL 771.4; MSA 28.1134, Judge Gillis decided that such a hearing was unnecessary.

Support for the trial court’s construction of the statute is found in People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), in which a panel of this Court held that a revocation hearing must be held before the original sentencing judge or his successor. There appears to be good reason for such a policy. A trial judge who has placed a man on probation has shown a confidence in the probationer’s ability to obey the law. He will receive periodic reports from the probation agent and may have a personal concern for the success of the probation. It is appropriate, if revocation must be considered, that the consideration be by the judge who is most acquainted with the matter.

However, a different conclusion was reached in an earlier opinion, People v Collins, 25 Mich App 609, 612; 181 NW2d 601 (1970):

"Accordingly, we find nothing in the statute requiring revocation proceedings to be conducted before the same judge who originally ordered probation. All the statute demands is that the forum be the same.”

Assuming the correctness of the trial court’s interpretation of the statute under ordinary circumstance, it is inapplicable in the face of a motion for disqualification. For example, a person charged with violation of probation might hire a close relative of the judge as his attorney so that the judge is disqualified under GCR 912.2(5). It is possible, although unlikely, that a judge who placed a person on probation has become personally biased against him.

We, therefore, hold that Judge Gillis was in error in determining that by law he must conduct the probation violation hearing even if he is disqualified from doing so. This holding does not end our consideration, however.

Defense counsel made his motion very late, after the preliminary examination and the termination hearing had been scheduled. He did not request that the motion be referred to another judge until after the hearing was well in progress. If a challenged judge does not refer a disqualification motion to another judge, the attorney challenging the judge has the responsibility to seek such a referral from the court administrator or the chief judge, if there is one; see GCR 1963, 912.3(c), 925.6, 926.2 and 926.3.

GCR 1963, 912.3(a) provides, in part:

"If a motion is not timely filed, untimeliness * * * is a factor in deciding whether the motion should be granted.”

It is obvious that motions for disqualification and, if denied, for referral to another judge made after a trial or a probation violation hearing has begun are capable of misuse if the proceedings then being conducted must be halted until the disqualification motion is heard by another judge. For example, in this case defense counsel indicated: "I am prepared to show through statistics that I am correct, not only in this court’s record, but this court’s record compared to other judges”. Such a proceeding could take a considerable time and would cause the adjournment that had been unsuccessfully sought if the probation violation hearing could not continue. We conclude that it was not reversible error for Judge Gillis to continue with the probation violation hearing and the sentence proceedings.

Whenever a challenged judge has denied a disqualification motion and a request for a hearing before another judge comes after a trial or hearing has started the challenged judge should have the option of proceeding with the trial or hearing unless a chief judge or a higher court orders that the trial or hearing be interrupted or delayed so that the disqualification motion may be considered by another judge before the trial or hearing is concluded. If the trial or hearing is continued the disqualification proceedings before another judge would be either rendered moot as untimely or conducted afterwards if so ordered. If conducted afterwards and the challenged judge is found to be disqualified, a new trial or a new hearing could be held.

The foregoing procedure, although not ideal, seems required to maintain the efficiency of our courts operating with a court rule that imposes no time limit on requests that disqualification motions, denied by a challenged judge, be heard by another judge.

Because we believe a party challenging the qualifications of a judge has a right, under present GCR 1963, 912, to a rehearing by another judge, this case is remanded to the chief judge of the Recorder’s Court for a hearing by another judge to be assigned by the court administrator on the motion to disqualify Judge Gillis. If it is determined that Judge Gillis was disqualified to conduct the probation revocation hearing, a new hearing is required; but if it is determined that he was not disqualified, the revocation and sentence will stand.


text:
    WILSON v MICHIGAN STATE POLICE
    Docket No. 78-3938.
    Submitted June 21, 1979, at Lansing.
    Decided October 18, 1979.
    Larry T. Wilson, hereinafter plaintiff, brought a tort action against the Michigan State Police and the State of Michigan, jointly and severally, hereinafter defendants. The Court of Claims, Wade Van Valkenburg, J., dismissed plaintiff’s complaint on the basis of governmental immunity. Plaintiff appeals, alleging that since the act giving rise to the tort claim concerned the conduct of a state police officer in arresting plaintiff, a ministerial act, governmental immunity would not apply. Held:

    Governmental agencies, including the Michigan State Police, are immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function.
    Affirmed.
    Torts — Governmental Agencies — Governmental Immunity — Statutes.
    Governmental agencies are immune from tort liability in all cases wherein the governmental agency is engaged in the exercise or discharge of a governmental function (MCL 691.1407; MSA 3.996[107]).
    References for Points in Headnote
    [1] 57 Am Jur 2d, Municipal,- School, and State Tort Liability § 27.
    Nature and status of rule as to municipal immunity from liability for torts. 60 ALR2d 1198.

      Skinner & Gustafson, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas A. Kulick and Thomas L. Casey, Assistants Attorney General, for defendant._

      Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

Plaintiff appeals of right from the Court of Claims dismissal of his complaint on the ground that governmental immunity precluded his claim against the defendants.

Plaintiff claims, on appeal, that governmental immunity would not preclude his tort claim because the act giving rise to the claim concerned the conduct of a state police officer in arresting plaintiff, which, in plaintiffs view, was a ministerial act to which governmental immunity would not apply.

Whether the act of a police officer in making an arrest is ministerial, or discretionary, is not the issue in this case, as the defendants are not governmental officials, but are a governmental agency and the state itself. The applicable Michigan statute, MCL 691.1407; MSA 3.996(107), operates to preclude defendants in the instant case from being liable in tort to plaintiff as long as the conduct that plaintiff alleges defendants were engaged in was "in the exercise or discharge of a governmental function”. See Berger v City of Berkley, 87 Mich App 361, 368-369; 275 NW2d 2 (1978), Lee v City of Utica, 83 Mich App 679, 680-681; 269 NW2d 267 (1978), Walkowski v Macomb County Sheriff, 64 Mich App 460, 463; 236 NW2d 516 (1975).

We find that all claimed, actionable conduct of defendants, as alleged in plaintiffs complaint, was conduct involving the exercise or discharge of a governmental function. Therefore, governmental immunity would operate to preclude plaintiff s claim against defendants.. The trial court’s dismissal of the complaint was correct.

Affirmed.


author: P. C. Elliott, J.

text:
    PEOPLE v CORBETT
    Docket No. 77-1833.
    Submitted December 11, 1979, at Detroit.
    Decided May 19, 1980.
    Leave to appeal applied for.
    Defendant, James Corbett, was convicted of second-degree murder in the Wayne Circuit Court, Richard D. Dunn, J. Defendant appeals. Held:

    1. The trial judge did not commit reversible error when, in admitting a prior statement of the defendant into evidence, he informed the jury that he had determined the statement to have been made voluntarily because the fact that the defendant made the statement was not disputed.
    2. An additional instruction to the jury dealing with the use of circumstantial evidence is not required where a case does not depend entirely on circumstantial evidence.
    Affirmed.
    1. Criminal Law — Evidence — Statements of Defendant — Voluntariness — Instructions to Jury.
    A trial judge did not commit reversible error when, in admitting a prior statement of the defendant into evidence, he informed the jury that he had determined the statement to have been made voluntarily, where the fact that the defendant made the statement was not disputed.
    2. Criminal Law — Evidence — Circumstantial Evidence — Instructions to Jury.
    An additional instruction to the jury dealing with the use of circumstantial evidence is not required where a case does not depend entirely on circumstantial evidence.
    References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 813.
    [2] 75 Am Jur 2d, Trial § 846 et seq.

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

      Alan C. Helmkamp, for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

Defendant was convicted of second-degree murder and sentenced to life imprisonment. We affirm and discuss two issues raised in his appeal:

I. The court’s disclosure to the jury that he had found the defendant’s statement to be voluntary; and

II. The court’s failure to include instruction comparable to paragraphs (6) and (7) of the proposed Michigan Criminal Jury Instruction (CJI) 3:1:10 when instructing on circumstantial evidence.

Other issues raised by defendant have been considered. Defendant was not denied effective assistance of counsel; nor is reversal required because of trial misconduct by the prosecutor.

I.

After a Walker hearing, People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), the trial court ruled that defendant’s statement, marked Exhibit 25, was voluntary and admissible evidence. No error is claimed in that by defendant on appeal.

The exhibit consists of the usual statement of rights from Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966). Each separate right was initialed by defendant to signify that he understood it, and, below the rights and on the back of the page, the defendant wrote:

"Bob and I were in my living room alone. I had given him his shot gun back and he took it out of the case and was looking at it. We were talking about him and my sister and I told him to leave her alone and he put some shells in the shotgun and laid it on the other couch. We continued to talk about him and my sister and the next thing I knew he was dead. I put him in the trunk of his car and drove it to the bar where I left it. Then, I took the gun down to the River and threw it off of the Belle Isle Bridge. His personal belongings I put in the trash bag and dropped them off in Dearborn Heights. I had a friend help me move my couch to Dearborn Heights for storage on Saturday. On the night of the shooting the gun was in the lefthand side of the coffee table on top of some records.”

Defendant claimed self-defense at the trial. He testified that the handgun was not on the coffee table but, rather, that the deceased had it on his person, drew it, fired twice during a struggle in which defendant managed to take the gun away and then shot the deceased three times with it, after the deceased picked up the loaded shotgun. The fatal handgun was recovered for the police from a creek by defendant’s girlfriend who had dumped it there with a briefcase, belonging to the deceased, that defendant had brought to her home. Defendant further testified, at both the hearing and the trial, that he was led to believe that unless he waived his rights and made a statement his girlfriend would be charged as an accessory and that he tried to protect her.

When the exhibit was offered at the trial the following occurred:

"THE COURT: Any objection other than those noted before?
DEFENSE COUNSEL: None
THE COURT: Admitted. The Court will admit Exhibit #25 into evidence.
I might point out to the Jury that statements such as are contained on the reverse side of the rights statement are what we call Miranda warnings. Normally have to be passed on by the court for the purpose of determining the voluntariness or involuntariness. The Court is [sic] already ruled that it did comply with the Miranda, with the requirements and that it was a voluntary statement. That is why I have admitted it into evidence.”

Later, out of the presence of the jury, defense counsel moved for a mistrial, as follows:

"This afternoon when the statement of Defendant was being made the Court advised the Jury that it had already heard testimony and found the statement was admissible and it is Defense contention that this could very well be interpreted or at least could sway the influence of the Jury in thinking this is something they pretty much have to accept inasmuch as you already ruled on it. For that reason, I ask for a new trial.
THE COURT: Motion denied.”

The judge included proposed CJI 4:1:01, verbatim, in his final instructions without defense objection or further request; it says, in part:

"(3) * * * (I)f you determine that the statement was made by the defendant, you must further consider whether the statement or any part of it is true. You should consider the facts and circumstances surrounding the making of the statement, along with all the other evidence in the case, in judging its truthfulness and deciding how much weight, if any, the statement deserves.
"(4) Should you accept the statement or any part thereof as truth, you may then give it whatever weight you believe it deserves.”

Although the instruction given also submits to the jury the question of whether the statement was made by the defendant, that was never an issue in this case. The defendant admitted that he made the statement and that it contained untruths.

People v Walker (On Rehearing), supra, 337-338, famous for the "Walker” hearing, said in part:

"If we arrogate to the trial judge the right to adjudicate voluntariness, even though that question involves issues of fact, we find no basis in logic in submitting the same question over again to the jury to second-guess him. We believe their determination should be limited to truthfulness, i.e., weight and credibility.”

The jury did have to accept that the statement was admissible, but in no way did the judge infringe upon the function of the jury to determine the weight and credibility of the statement.

Several other panels of this Court have held that because the jury also has the issue of determining whether a purported confession was ever made, it is reversible error to inform the jury that the judge has concluded that the defendant made it voluntarily, People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974), People v Skowronski, 61 Mich App 71; 232 NW2d 306 (1975), People v Mosley (On Remand), 72 Mich App 289; 249 NW2d 393 (1976), aff'd on other grounds 400 Mich 181; 254 NW2d 29 (1977), and People v Mathis (On Remand), 75 Mich App 320, 324; 255 NW2d 214 (1977), which said:

"It is senseless to ask the jury whether a statement has been made after informing them that the statement was voluntary. The jury is left to wonder whether it is being asked, on the one hand, to side with the judge’s conclusion and proceed to determine the truth of the statement, or on the other, to overrule the judge and conclude on their own that the statement (no matter how voluntary) was never made.”

When, as in this case, the fact that the defendant made the statement is not disputed, the rationale of the cases cited above largely disappears, and, although the trial judge should not have informed the jury of his earlier ruling, his comment was not reversible error.

II.

Defendant next claims error because the instruction on circumstantial evidence did not contain something similar to paragraphs (6) and (7) of proposed CJI 3:1:10, "Mixed Direct and Circumstantial Evidence”:

"(6) Circumstantial evidence must be considered by the following rules:
(A) The circumstances themselves must be believed.
(B) The circumstances must be consistent with guilt and inconsistent with innocence.
(C) The circumstances must be of such a conclusive nature and tendency that they convince you beyond a reasonable doubt of the defendant’s guilt.
"(7) If the evidence is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.”

Defense counsel made an unspecific objection to the court’s instruction on circumstantial evidence, and on several other subjects, after the instructions were given. It was unnecessary to give the further instruction now requested.

Defendant admitted that he shot the deceased three times. That was direct evidence. Where the case does not depend entirely on circumstantial evidence, no instruction on the use of circumstantial evidence is required. People v Dellabonda, 265 Mich 486; 251 NW 594 (1933), and People v Chandler, 75 Mich App 585; 255 NW2d 694 (1977).

Strangely, considering the voluminous commentary generally, CJI does not provide commentary on CJI 3:1:10 and the source of the so-called rules in paragraph (6) is unknown. Regarding those rules, (6)(A) seems to be a truism that need not be stated in instructions; (6)(B) appears to be a repetition of paragraph (7), discussed below and, like (6)(C), disregards the direct evidence. Paragraphs (6) and (7) seem to say that, to convict, the jury must be satisfied of guilt beyond a reasonable doubt from the circumstantial evidence alone. That is entirely incorrect. When there is both direct and circumstantial evidence, all of it should be considered. Moreover, paragraph (7) is unbalanced because it omits the obvious converse:

"If on the other hand one construction of all of the evidence, direct and circumstantial, appears to you to be reasonable and the other construction to be unreasonable, it is your duty to accept the reasonable construction and reject the unreasonable.”

Finally, the basis for paragraphs (7) and (6)(B) comes from cases that discuss the standard to be applied by a court to a motion for a directed verdict in a case resting entirely on circumstantial evidence. See People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), and People v Fuller, 395 Mich 451; 236 NW2d 58 (1975). Neither of those cases is concerned with the content of jury instructions. Neither of those cases is concerned with a trial in which there is direct evidence as well as circumstantial evidence of guilt.

It seems sufficient to instruct that each element of the offense must be proven beyond a reasonable doubt. That burden of proof is the only burden of proof in any criminal case regardless of the kind or kinds of evidence presented. Paragraphs (6) and (7) of CJI 3:1:10 incorrectly suggest that some other burden of proof is involved whenever there is circumstantial evidence.

Affirmed.

       An instruction, before the summations, on the professional limitations on lawyers might be a helpful reminder to counsel and a deterrent to improper final argument. Such an instruction could be fashioned by consolidating and paraphrasing ABA Standards Relating to the Administration of Criminal Justice, The Prosecution Function, §§ 5.5, 5.9, The Defense Function, §§ 7.8, 7.9, and The Function Of The Trial Judge, § 5.10.

       The proposed CJI fails to mention the significance of a statement that is false or that does not include events crucial to the theory of the defense at the trial. The importance of the statement in this case is in what it does not say. The jury could compare defendant’s testimony with his earlier inconsistent statement.


author: Beasley, J.

text:
    CLOUD v VANCE
    Docket No. 78-2619.
    Submitted February 14, 1980, at Detroit.
    Decided May 19, 1980.
    Johnny Cloud, hereinafter plaintiff, sued Felton Vance, hereinafter defendant, for damages arising out of an automobile collision. Travelers Insurance Company, hereinafter garnishee-defendant, obtained a declaratory judgment relieving it of any liability under an insurance policy it issued previously to defendant. Plaintiff was not a party to the declaratory judgment action and was not given notice of the action. Subsequently, plaintiff obtained a default judgment against defendant and later sought collection from garnishee-defendant by way of a writ of garnishment. Garnishee-defendant filed a disclosure denying any liability to defendant and moved for summary judgment on the garnishment. Wayne Circuit Court, Charles Kaufman, J., granted garnishee-defendant’s request for summary judgment, based on garnishee-defendant’s declaratory judgment against defendant. Plaintiff appeals. Held:

    1. A plaintiff who has not been given notice of a declaratory judgment action between a defendant and a garnishee-defendant insurance company, in which the garnishee-defendant was granted a judgment relieving the garnishee-defendant of any liability under an insurance policy it issued to the defendant, is entitled to a hearing on the merits regarding any obligations owed by the garnishee-defendant to the plaintiff under the policy of insurance issued by the garnishee-defendant to the defendant.
    2. A summary judgment granted to the garnishee-defendant was improper where the plaintiff was not given notice of an earlier declaratory judgment action between the garnishee-defendant insurance company and the defendant in which the garnishee-defendant was granted a declaratory judgment relieving the garnishee-defendant of any liability under an insurance policy it earlier issued to the defendant.

      References for Points in Headnotes
    [1, 2] 6 Am Jur 2d, Attachment and Garnishment § 357 et seq.

    [3] 44 Am Jur 2d, Insurance § 1575 et seq.

    [4] 46 Am Jur 2d, Judgments § 394.

      3. An injured plaintiff has a substantial interest in the insurance policy of an insured defendant and thus the plaintiff has a legitimate interest in litigating the coverage of that policy.
    4. The declaratory judgment was not res judicata as between the parties to this action because the declaratory judgment action and this action were not between the same parties or their privies.
    Reversed and remanded.
    1. Motions and Orders — Notice — Garnishment — Declaratory Judgments — Insurance.
    A plaintiff who was not given notice of a declaratory judgment action between a garnishee-defendant insurance company and the principal defendant in which the garnishee-defendant was granted a judgment against the principal defendant relieving the garnishee-defendant of any liability under an insurance policy it issued to the principal defendant, is entitled to a hearing on the merits regarding any obligations owed by the garnishee-defendant to the plaintiff under the policy of insurance issued by the garnishee-defendant to the principal defendant.
    2. Motions and Orders — Garnishment — Insurance — Declaratory Judgments — Notice.
    Summary judgment granted to a garnishee-defendant is improper where the plaintiff was not given notice of an earlier declaratory judgment action between the garnishee-defendant insurance company and the principal defendant in which the garnishee-defendant was granted a judgment relieving the garnishee-defendant of any liability under an insurance policy it earlier issued to the principal defendant.
    3. Insurance — Trial.
    An injured plaintiff has a substantial interest in the insurance policy of an insured defendant and thus the plaintiff has a legitimate interest in litigating the coverage of that policy.
    4. Judgments — Res Judicata.
    There are three prerequisites to the application of the res judicata doctrine: (1) the former action must have been decided on the merits; (2) the same matter raised in the second action must have been decided in the first; and (3) the two actions must be between the same parties or their privies.

      Rifkin, Kingsley & Rhodes, for plaintiff.
    Felton Vance, in propria persona.

      Law Offices of David J. Capriccioso (by Mark S. Goldberg), for garnishee defendant Travelers Insurance Company.
    Before: Bronson, P.J., and Beasley and D. C. Riley, JJ.
   Beasley, J.

Plaintiff-appellant sued defendant Vance for damages arising out of an automobile collision on January 18, 1974. Plaintiff obtained personal service on defendant and an attorney, retained by garnishee-defendant Travelers Insurance Company (Travelers), filed an appearance and answer on defendant’s behalf. Plaintiff submitted interrogatories to defendant and, receiving no answers, filed a motion to compel answers. Counsel for defendant then filed a motion to withdraw, on the basis that defendant was not cooperating, which motion was granted on September 18, 1975.

Then, plaintiff, Cloud, and garnishee-defendant, Travelers Insurance Company, went their separate ways for a time. Travelers filed a declaratory judgment action against defendant Vance, seeking a ruling that it had no further obligation under the insurance policy it had issued to Vance. On March 15, 1977, Travelers obtained a declaratory judgment relieving it of any liability under the insurance policy heretofore issued to defendant Vance. Plaintiff was not a party to the declaratory judgment action and claims no notice was given to him until after the declaratory judgment had been entered.

On April 26, 1977, plaintiff obtained a default judgment against defendant Vance in the sum of $25,000. Plaintiff sought collection from Travelers, by way of a writ of garnishment, on the liability insurance policy. Travelers filed disclosure denying liability to defendant Vance and moved for summary judgment on the garnishment.

Although unclear from the record, it appears that this motion was founded on GCR 1963, 117.2(1) and (3), that plaintiff failed to state a claim upon which relief could be granted, and that there was no material question of fact, therefore, defendant was entitled to judgment as a matter of law. On June 13, 1978, the trial court granted defendant’s motion, noting that, based on defendant Travelers’ declaratory judgment against Vance, Vance was uninsured at the time of the accident in question. Plaintiff now appeals as of right.

The question is whether plaintiff is precluded from a hearing on the merits regarding any obligations owed by garnishee-defendant, Travelers Insurance Company, to plaintiff under the insurance policy issued to defendant Vance. We do not believe that plaintiff is precluded from such a hearing. We hold that summary judgment was improvidently granted, and must be set aside.

Defendant Travelers argues that the declaratory judgment which it obtained against defendant Vance relieved it from any and all obligations on the insurance policy issued to Vance, and that plaintiff cannot now raise this issue. We do not agree.

Initially, we note that the plaintiff in this case had a substantial interest in the proceeds of the insurance policy between defendant Travelers and defendant Vance. When plaintiff obtained judgment against defendant Vance, plaintiff succeeded to Vance’s right against defendant insurance company, and was entitled to proceed by way of writ of garnishment.

In Flanagan v Harder, the Supreme Court indicated the scope of an injured plaintiffs interest in a defendant’s insurance policy, by stating that the plaintiff had a "substantial interest in the policy” and by allowing plaintiff to have the policy reformed rather than simply determining liability on the policy as it stood:

"The injured person, after judgment and the return of an unsatisfied execution, has a substantial interest in the insolvent’s policy, and should be able to have the policy reformed if necessary, especially where the insurer attempts to deprive the injured party of legal rights by means of a fraudulent release.”

In the recent case of Security Ins Co of Hartford v Daniels, this Court held:

"We believe that Daniels also has an interest in the coverage issue. Although Daniels was barred from joining the insurance companies in the original action, if he were to succeed in that action, he would be entitled to litigate the coverage issue in a subsequent action against the insurance companies. See Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965). Thus, he has an interest in resolution of that issue.”

Also instructive in this case is Allen v Cheatum, which is another unforgettable Justice Voelker opinion involving a coverage issue where noncooperation by the insured was claimed._

We hold that these cases show that plaintiff had a legitimate interest in litigating the coverage issue with the insurer. Such interest is not limited to situations where the insured is bankrupt or insolvent, as indicated in MCL 500.3006; MSA 24.13006.

Of course, garnishee-defendant argues that if plaintiff is placed in the shoes of the insured, then, under strict logic, his claim is subject to all valid defenses which could be asserted against the insured at the time of the garnishment action. Garnishee-defendant would reason that plaintiff is bound by the default judgment on the coverage issue and that it is res judicata, and further, that plaintiff is collaterally estopped from attacking that judgment.

Defendant Travelers would argue that the prerequisites for res judicata, as indicated in Bousson v Mitchell, are met:

"There are three prerequisites to the application of this doctrine. First, the former action must have been decided on the merits. Second, the same matter raised in the second action must have been decided in the first. Third, the two actions must be between the same parties or their privies.”

We do not so hold. While we would doubt that Travelers’ default judgment against its own insured on the coverage issue can fairly be described as a decision on the merits, we need not decide that issue here because we find that the third requirement for res judicata has not been met.

In this case, plaintiff had an independent interest in the insurance policy from the time of the accident, contingent upon his recovery against the defendant. As we have indicated, we also find that under the circumstances of this case, plaintiff was entitled to notice of the declaratory judgment action brought by defendant insurance company. Similarly, we reject application of the doctrine of collateral estoppel as set forth in City of Mason v Mason State Bank.

Thus, while the declaratory judgment would be a valid defense against defendant Vance, it is not a valid defense against plaintiff. To hold otherwise would give an insurance company an easy out to escape liability to plaintiffs who successfully assert claims against the insured. All such an insurance company would have to do would be to obtain a default declaratory judgment against its own insured in order to escape such responsibility.

We note that defendant insurance company had every right to litigate the coverage issue between it and its insured in the declaratory judgment action. However, under the circumstances of this case, we do not permit defendant insurance company to defeat a possible, known claim against it by plaintiff in a declaratory judgment action processed without either notice to plaintiff or an opportunity to plaintiff to intervene and be heard.

In setting aside the grant of summary judgment in this case, we are merely affording plaintiff a trial on the merits regarding whether or not defendant insurance company is obligated under the terms of the insurance policy with respect to the judgment of this plaintiff against the insured.

Reversed and remanded for proceedings not inconsistent with this opinion.

        Meirthew v Last, 376 Mich 33; 135 NW2d 353 (1965).

       270 Mich 288; 258 NW 633 (1935).

         Id. at 292.

       70 Mich App 100, 105; 245 NW2d 418 (1976).

       351 Mich 585; 88 NW2d 306 (1958).

       84 Mich App 98, 101; 269 NW2d 317 (1978).

       63 Mich App 288; 234 NW2d 489 (1975).


author: Mackenzie, J.

text:
    PEOPLE v STANTON
    Docket No. 78-2788.
    Submitted January 2, 1980, at Lansing.
    Decided May 19, 1980.
    Defendant, Richard W. Stanton, was convicted of armed robbery and being a habitual criminal in the Ingham Circuit Court, James T. Kallman, J. Defendant appeals, raising numerous issues. Held:

    1. Voluntary intoxication is a valid defense to any crime requiring specific intent, such as armed robbery.
    2. An in-court identification of a defendant by an eyewitness who has participated in an improper pretrial identification procedure must be excluded as evidence unless there is a showing by clear and convincing evidence that the identification was made on some basis other than the improper pretrial procedure. The factors supporting an independent basis for an in-court identification must be totally unrelated to any pretrial confrontation, and may include factors such as consideration of the witness’s opportunity for observation during the crime, prior knowledge of the defendant’s identity, accuracy of description, any discrepancy between a pre-lineup description and actual appearance of the defendant, identification of any other person prior to the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the crime and the lineup identification, and any idiosyncratic or special features of the defendant.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 82, 107.
    67 Am Jur 2d, Robbery §§ 4, 15, 46.
    Modern status of the rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.
    Effect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.
    [2] 5 Am Jur 2d, Appeal and Error §§ 829, 831, 851, 887.
    75 Am Jur 2d, Trial §§ 345, 416.
    [3, 4] 29 Am Jur 2d, Evidence § 367 et seq.

    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449.
    Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedures. 39 ALR3d 487.
    Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures. 39 ALR3d 791.
    [5] 5 Am Jur 2d, Appeal and Error § 624.
    29 Am Jur 2d, Evidence § 363.
    Counsel’s references in criminal case to wealth, poverty, or financial status of defendant or victim as grounds for mistrial, new trial, or reversal. 26 ALR3d 839.
    [6] 5 Am Jur 2d, Appeal and Error §§ 624-627.
    [7] 81 Am Jur 2d, Witnesses § 581 et seq.

    Propriety, on impeaching credibility of witness in criminal case by showing former conviction, of questions relating to nature and extent of punishment. 67 ALR3d 775.

      3. Evidence of poverty and unemployment to show motive is generally not admissible because its probative value is out-, weighed by unfair prejudice and discrimination toward a large segment of the population. The risk is that the jurors will view defendant as a "bad man”.
    4. Reversal of a defendant’s conviction because of improper questioning of a witness by the prosecutor is not warranted absent a showing of manifest injustice where the defendant failed to object. The trial court did not abuse its discretion in allowing the prosecutor to cross-examine a witness concerning the defendant’s prior convictions to counter the issue raised by the defendant whether the commission of the crime was "out of character” for him where evidence of his convictions had already been admitted to impeach his credibility.
    Affirmed.
    1. Criminal Law — Defenses — Voluntary Intoxication — Specific Intent Crimes — Robbery.
    Voluntary intoxication is a valid defense to any crime requiring specific intent, such as armed robbery.
    2. Evidence — Relevancy — Trial Judge — Discretion — Appeal.
    A trial judge has the discretion of ruling on the relevancy of evidence and a decision made in the exercise of that discretion should not be reversed unless it is clearly erroneous and indicates an abuse of discretion.
    3. Criminal Law — Witnesses — Identification — Improper Procedure — Independent Basis.
    An in-court identification following a questionable or illegal confrontation will not be deemed prejudicial if there is an independent basis for the in-court identification.
    4. Criminal Law — Witnesses — Identification — Improper Procedure — Independent Basis.
    The factors supporting an independent basis for an in-court identification of a defendant by a witness when a pretrial identification has been rendered invalid must be totally unrelated to any pretrial confrontation, and may include factors such as consideration of the witness’s opportunity for observation during the crime, prior knowledge of the defendant’s identity, accuracy of description, any discrepancy between a pre-lineup description and actual appearance of the defendant, identification of any other person prior to the lineup, failure to identify the defendant on a prior occasion, the lapse of time between the crime and the lineup identification, and any idiosyncratic or special features of the defendant.
    5. Criminal Law — Evidence — Motive — Poverty — Unemployment.
    Evidence of poverty and unemployment to show motive is generally not admissible because its probative value is outweighed by unfair prejudice and discrimination toward a large segment of the population, and the risk is that the jurors will view defendant as a "bad man”.
    6. Appeal — Criminal Law — Improper Questioning — Preserving Question.
    Reversal of a defendant’s conviction because of improper questioning of a witness by the prosecutor is not warranted absent a showing of manifest injustice where the defendant had failed to object.
    7. Criminal Law — Evidence — Impeachment — Prior Convictions.
    A trial court did not abuse its discretion in allowing the prosecutor to cross-examine a witness concerning a defendant’s prior convictions to counter the issue raised by the defendant whether the commission of the crime was "out of character” for defendant where evidence of his convictions had already been admitted to impeach his credibility.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, Michael G. Woodworth, Chief Appellate Attorney, and Charles M. Sibert, Assistant Prosecuting Attorney, for the people.

      Charles A. Palmer, for defendant on appeal.

      Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Mackenzie, J.

Defendant appeals as of right his jury conviction on March 28, 1978, of armed robbery, contrary to MCL 750.529; MSA 28.797, and guilty plea on April 12, 1978, to a supplemental information charging him as a habitual offender. He was sentenced to a term of 7 to 30 years imprisonment with credit for 278 days served.

The charge stemmed from the armed robbery of a Quality Dairy Store in Haslett, Michigan, on August 11, 1977, at approximately 4:30 p.m. Complainant, Doris Robinson, the store manager, testified that a man, whom she identified as defendant, forced her at knife-point to open a cash register from which he removed $59 in small bills.

Complainant’s husband, Russell Robinson, observed defendant run from the store. The police, having received defendant’s description from the Robinsons and a phone call from a resident with a police radio, proceeded to the home of defendant’s brother, who directed them to a room in which they found defendant in the process of shaving his beard. Since defendant matched the description given by the Robinsons — bearded, glazed eyes and wearing blue jeans and a blue T-shirt — police brought defendant to the scene where he was identified by the Robinsons.

The first issue is whether the trial court erred in limiting evidence of defendant’s intoxication to the 24-hour period immediately preceding the robbery where the defense asserted was voluntary intoxication vitiating the specific intent necessary to commit an armed robbery. The defense of insanity will not be considered since defendant did not comply with the notice provisions in MCL 768.20a; MSA 28.1043(1) and MCL 768.21; MSA 28.1044.

In People v Crittle, 390 Mich 367, 371; 212 NW2d 196 (1973), the Michigan Supreme Court adopted the standard expressed by Justice Cooley in People v Walker, 38 Mich 156, 158 (1878), to determine whether the defense of intoxication vitiating specific intent has been proved:

"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant for any reason whatever, indulged no such intent, the crime cannot have been committed.”

Therefore, any evidence relevant to the precise issue of whether defendant actually had the specific intent to rob the store should have been admitted.

In the case at bar, defendant sought to establish that he could not have intended to rob the store because his sustained drinking for the ten-day period preceding the robbery resulted in his inability to tolerate a quantity of alcohol consumed on the day of the offense. On a separate record, several acquaintances of defendant testified that they were with him at various times during that period. Their testimony regarding the amount of alcohol consumed by defendant was evaluated by an expert witness on alcoholism, Dr. Richard C. Bates.

The trial court has the discretion to determine the admissibility of evidence on the basis of relevancy. Its decision will not be reversed unless it is clearly erroneous, constituting an abuse of discretion. People v Flores, 92 Mich App 130, 134-135; 284 NW2d 510 (1979). We believe that the trial judge acted properly within his discretion in excluding evidence of defendant’s intoxication prior to the 24-hour period preceding the robbery.

Although we do not believe that Crittle in all cases precludes a showing of lack of intent due to sustained alcohol consumption over a short period of time, the proffered evidence herein was deficient in that the testimony of defense witnesses, considered together, did not approach establishing the quantity of alcohol consumed by defendant or that he was drinking constantly. Therefore, there was insufficient data for Dr. Bates, who had never examined defendant, to form an opinion as to defendant’s ability to form the requisite specific intent. Indeed, Dr. Bates admitted he would have to speculate on the amount of alcohol consumed by defendant and its effect on his ability to form the specific intent to rob. In these circumstances, the probative value of the evidence is outweighed by the likelihood it will confuse the issues and mislead the jury. MRE 403. Further, defendant was allowed to present his defense, including the testimony by Dr. Bates, within the 24-hour time frame set by the trial court.

Defendant next contends that his in-court identification by the Robinsons was impermissibly tainted by their on-the-scene identification which was unnecessarily suggestive. Mrs. Robinson had originally described defendant to police as having light brown hair, a full beard and moustache and appearing scared and glassy-eyed. She said he was approximately 5 feet 7 inches tall, of medium build, and was wearing blue jeans and a blue T-shirt; further, that he did not stumble, fall or weave, and she detected no odor of alcohol on his breath. Mr. Robinson did not observe defendant at close range but observed defendant’s beard and clothing.

We need not reach the issue of whether the on-the-scene identification of defendant was unduly suggestive. An in-court identification following a questionable or illegal confrontation will not be deemed prejudicial if there is an independent basis for the in-court identification. See People v Kachar, 400 Mich 78; 252 NW2d 807 (1977).

Under the standards set forth in Kachar, supra, we find that an independent basis existed for the in-court identifications by the Robinsons. See 400 Mich 78, 95-96. Mrs. Robinson had previously seen defendant in the store a few weeks prior to the incident. She stood near defendant during the armed robbery for three to five minutes. She identified defendant only 15 minutes after the incident. No discrepancies appear between the initial description given by the Robinsons and defendant’s actual description. Mrs. Robinson had not previously identified defendant, but she had never failed to identify him. Nor did the Robinsons identify someone else as the culprit prior to the on-the-scene identification. Mrs. Robinson was not fatigued or under the influence of alcohol or drugs at the time of the identification but was nervous, considering the violence of the episode. Finally, defendant was identified as having "glazed eyes”, a distinguishing feature noticed by at least one arresting officer.

Defendant’s third contention of error is that the prosecutor’s questioning of defendant eliciting that he was unemployed and had no income to show motive for the robbery, coupled with the court’s instruction that the jury could consider what motive defendant may have had, mandates reversal. We disagree.

Evidence of poverty and unemployment to show motive is generally not admissible because its probative value is outweighed by unfair prejudice and discrimination toward a large segment of the population, and the risk is that the jurors will view defendant as a "bad man”. People v Henderson, 408 Mich 56; 289 NW2d 376 (1980), People v Johnson, 393 Mich 488, 496-497; 227 NW2d 523 (1975).

However, where, as here, defendant fails to object promptly to the prosecutor’s questioning, reversal is not warranted absent a showing of manifest injustice. Cf., People v John Moore, 78 Mich App 150, 156; 259 NW2d 403 (1977), and People v Thomas Jones, 73 Mich App 107, 110; 251 NW2d 264 (1976). The questioning herein did not constitute manifest injustice. The references were few and arguably relevant to show the source of the cash found on defendant’s person. Defendant first raised the issue of his unemployed status by testifying on direct examination that he had just been released from jail for nonsupport. See People v Thomas Jones, supra. The court’s instruction on motive was entirely proper and in accord with CJI 4:8:01. The correct course of procedure here was for defense counsel to object to the questioning itself and move for a mistrial or request a curative instruction.

The prosecutor injected defendant’s three prior larceny convictions into a hypothetical question directed to defendant’s expert regarding the effect on his opinion on whether defendant had the specific intent to commit the crime. We do not believe this requires reversal. Evidence of prior convictions is only admissible to attack a witness’s credibility. MRE 609. Nor is character evidence ordinarily admissible to prove conduct. MRE 404. Thus, while we do not condone such a practice, it is critical here that defense counsel raised on direct examination the issue of whether commission of a crime was "out of character” for defendant. On cross-examination, the prosecutor was entitled to elicit from the witness anything tending to weaken, modify or explain the witness’s testimony on direct examination. Malicke v Milan, 320 Mich 65, 70; 30 NW2d 440 (1948), Schwartz v Triff, 2 Mich App 379, 383; 139 NW2d 907 (1966). Evidence of defendant’s three prior larceny convictions had already been admitted to impeach defendant’s credibility. Under these circumstances, we cannot say the trial judge abused his discretion in allowing the cross-examination. See People v Taylor, 386 Mich 204, 208; 191 NW2d 310 (1971).

Finally, defendant argues that his guilty plea to the habitual offender information should be vacated because the trial court failed to comply with the dictates of GCR 1963, 785.7 as required by People v Stevens, 88 Mich App 421; 276 NW2d 910 (1979). Although Stevens, 428, requires strict adherence to GCR 1963, 785.7 in proceedings in which a defendant pleads guilty to a recidivist charge, it was given prospective effect only due to reliance on People v Parker, 50 Mich App 537; 213 NW2d 576 (1973).

Here we find no error as the trial judge complied with the requirements in the habitual offender act, MCL 769.13; MSA 28.1085. The trial judge ascertained that defendant understood the nature of the habitual offender proceedings. The information had previously been read in open court. The trial court discussed the armed robbery and false pretenses convictions with defendant and informed him that the jury was impaneled and available to try the matter. Defendant stated that he was the same person charged in the information.

Affirmed.

       Defendant does not argue that he was wrongfully denied his right to counsel by the on-the-scene identification. In any event, an exception to the rule requiring counsel exists when an on-the-scene identification takes place close in time to the occurrence of the offense. People v Tucker, 86 Mich App 608; 273 NW2d 498 (1978).

       Defense trial counsel asked Dr. Bates the following hypothetical questions:

        "Q. Now, doctor, if you were to assume that an individual engaged in a period of heavy drinking, various types of alcohol for six or seven hours on one evening followed by some sleep, followed by heavy drinking for a period of time the next day without consuming any food the following day and to assume that that individual engaged in activities that were described as being uncharacteristic for that person, that is, to engage in alleged criminal activities in broad daylight without an attempt to mask their identity, to take some money but not others that was there available at a place where it was likely that the individual would be known, and, that the individual thereafter claimed no memory, do you have an opinion as to whether or not that person suffered from any of these maladies, which you have described here?
      "A. The history would match hundreds of similar histories that I have heard in interviewing alcoholic people.
      "Q. That would be all those things would be consistent.
      "A. Yes.”
      On cross-examination, the prosecutor was allowed to ask the following question of Dr. Bates:
      "Q. (By Mr. Edwards) Doctor, talking about out of character, three prior, say the individual that we are talking about in this hypothetical had been convicted of three prior felonies all involving a larceny type situation or dishonesty, if you will. Would that enter into your opinion as to whether or not this or whether that act was out of character for the individual? We are going back over 10 years now.
      "A. If you were similarly intoxicated on those three other occasions, —let me rephrase that. If those acts were committed, when he was sober, it would cause me to disregard the part of the questions that had to do with whether or not it was out of character. It would not alter my opinion as to whether the crime done in broad daylight in front of people, who would recognize one was senseless or not.”


author: J. H. Piercey, J.

text:
    CHURCHWELL v REGENTS OF THE UNIVERSITY OF MICHIGAN
    Docket No. 78-4059.
    Submitted November 8, 1979, at Lansing.
    Decided May 19, 1980.
    Leave to appeal applied for.
    Katherine Churchwell, hereinafter plaintiff, brought suit against the Board of Regents of the University of Michigan, hereinafter defendant, for alleged negligent treatment at the University of Michigan Hospital. The Court of Claims, Ronald M. Ryan, J., granted defendant summary judgment based on the governmental immunity doctrine. Plaintiff appeals. Held:

    1. The governing test for determining whether governmental immunity will shield a state agency from tort liability is whether the purpose, planning, and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government.
    2. The purpose, planning, and carrying out of the day-to-day operation of a hospital such as the University of Michigan Hospital can be accomplished by other sources than the government.
    3. The Court of Appeals will look to the precise governmental operation sought to be immune rather than the overall or principal departmental operation in determining whether governmental immunity will shield a state agency from tort liability.
    Reversed and remanded.
    1. Governmental Immunity — State Agencies — Standards.
    The governing test for determining whether governmental immunity will shield a state agency from tort liability is whether the purpose, planning, and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government.
    References for Points in Headnotes
    [1, 3] 72 Am Jur 2d, States, Territories, and Dependencies § 99 et seq.

    State’s immunity from tort liability as dependent on governmental or proprietary nature of function. 40 ALR2d 927.
    [2] 40 Am Jur 2d, Hospitals and Asylums § 2.

      2. Governmental Immunity — Hospitals — State Hospitals.
    The purpose, planning, and carrying out of the day-to-day operation of a hospital such as the University of Michigan Hospital can be accomplished by sources other than the government.
    3. Governmental Immunity — Torts — Hospital Operations.
    The Court of Appeals will look to the precise governmental operation sought to be immune rather than the overall, or principal departmental operation of a state agency in determining whether governmental immunity will shield the state agency from tort liability.

      White, Spaniola, Knudsen, Stariha & Potuznik, P.C. (by Randall D. Fielstra), for plaintiff.

      Dice, Sweeney, Sullivan & Feikens, P.C. (by David R. Getto), for defendant.
    Before: R. M. Maher, P.J., and Allen and J. H. Piercey, JJ.

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

   J. H. Piercey, J.

This cause represents an appeal from a summary judgment entered in the defendant’s behalf in the Court of Claims. Said judgment was entered on the ground that the plaintiff had failed to state a claim in avoidance of the governmental immunity statute. MCL 691.1407; MSA 3.996(107). GCR 1963, 117.2(1).

Plaintiff’s initial complaint alleged that she sustained injuries through the negligent treatment she received from the agents and employees of the defendant at the University of Michigan Hospital. Defendant responded with a motion for summary judgment on governmental immunity grounds. Plaintiff was granted leave to amend her complaint to allege that the University of Michigan Hospital was engaged in a proprietary function. This served to no avail, however, as the trial court filed written findings concluding that the plaintiff had failed to state a claim in avoidance of governmental immunity, either by pleading that the operation of University Hospital was a proprietary function, or by pleading that the hospital was not a governmental function.

After an evidentiary hearing was held and testimony was taken on the organizational purposes of the hospital, its financial support, and its various functions, including health care, research, and education of medical students and residents, the trial court granted defendant’s summary judgment motion incorporating the written findings it had previously filed. From this ádverse determination, plaintiff appeals as of right.

The sole question raised in this appeal is whether the Board of Regents of the University of Michigan are engaging in the exercise or discharge of a governmental function in their operation of the University of Michigan Hospital, thus entitling them to immunity from tort liability under MCL 691.1407; MSA 3.996(107).

MCL 691.1407; MSA 3.996(107) provides:

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

The statutory term "governmental function” has been subjected to varied interpretations by members of the Supreme Court as of late. Justices Ryan, Coleman, and Williams are of the opinion that the Legislature, by employing such a common law term of art in creating statutory immunity, has directed the courts to look to the common law for guidance in determining whether, in any given case, a governmental agency may invoke the protection of the statute. Also, case law before the adoption of this statute held that the operation of a public hospital to promote the public health is a governmental function. See Perry v Kalamazoo State Hospital, 404 Mich 205, 211; 273 NW2d 421 (1978).

Justices Kavanagh, Leven and Fitzgerald reject this strict reliance on prior case precedent, opinion that the evolution of case precedent is exclusively committed to the judicial branch of government. As an alternative to following common law precedent, then, these Justices suggest that the term "governmental function” be limited to those activities sui generis governmental — of essence to governing. See Parker v Highland Park, 404 Mich 183, 193-194; 273 NW2d 413 (1978). In applying this test in Parker, these Justices concluded that the daily operations of a hospital do not constitute a governmental function. Parker, supra, 194.

From this discussion, it can be seen that the Court was split on this issue in both Parker and Perry. As a result, the critical analysis in each case was supplied by Justice Moody. Justice Moody agreed with Justices Kavanagh, Levin, and Fitzgerald in their conclusion that the Court is not statutorily bound to its common law precedent, due to the statutory use of the term "governmental function”. Justice Moody, however, declined to follow the planning/operations distinction that Justices Fitzgerald, Kavanagh, and Levin proposed as a means of applying the "essence of governing test” in Thomas v Department of State Highways, 398 Mich 1, 21; 247 NW2d 530 (1976).

Instead, Justice Moody stated the crux of the governmental essence test to be upon:

"* * * whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” Parker, supra, 200.

Justice Moody’s recommended analysis, has emerged as the decisive one at this particular stage in the development of the immunity doctrine in that, as can be seen, he has the "swing vote” on questions of the application of governmental immunity. In Parker, Justice Moody applied his swing vote to the Kavanagh-Fitzgerald-Levin bloc in holding that the day to day operations of a municipal general hospital were not unique to government, nor pursuant to a governmental mandate, and, as a result, not shielded from liability. Parker, supra, 201-202.

In Perry, on the other hand, Justice Moody sided with the Ryan-Colem an-Williams bloc, upholding the immunity of a state mental hospital. The different result for public mental hospitals and public general hospitals was based on the state’s substantial appropriations for mental health, the legislatively declared policy that services for the seriously mentally handicapped be fostered and provided, and the necessity of public mental facilities for the civil and criminal disposition of the mentally diseased by the courts. Justice Moody noted that private mental health facilities existed, but since their numbers were inadequate to deal with the substantial institutional needs of the public, public mental facilities were held to perform an essentially unique activity mandated by legislative action. Perry, supra, 213-215.

As the foregoing indicates, our task in the instant situation is to apply Justice Moody’s recommended analysis to the facts at hand. This follows, in that it is clear that the Ryan-Coleman-Williams bloc would uphold the trial court under their common law approach. See Robinson v Washtenaw Circuit Judge, 228 Mich 225; 199 NW 618 (1924). Conversely, the Kavanagh-Fitzgerald-Levin approach would require reversal consistent with their conclusions in Parker and Thomas, supra. Thus, Justice Moody’s "swing vote” would again represent the deciding factor.

The issue can be restated then. Applying Justice Moody’s test, it becomes whether the purpose, planning, and carrying out of the activity, i.e., the operation of the University of Michigan Hospital, due to its unique character or governmental mandate, can be effectively accomplished only by the government. At first blush, it appears that this issue was asked and answered in Parker, supra, with the defendant therein held subject to tort liability.

The instant defendant challenges the application of Parker to the case at bar on two fronts, however. First, he asserts that the trial court dismissed this case on the basis of governmental immunity prior to the date the Parker decision became effective, and that Parker should only be applied prospectively. We find this argument unpersuasive in light of this Court’s decision in Berkowski v Hall, 91 Mich App 1, 6; 282 NW2d 813 (1979). Second, defendant seeks to distinguish Parker by emphasizing that the University of Michigan Hospital is a teaching hospital in that it acts in conjunction with a legislatively mandated medical school. Therefore, defendant argues, since the training of physicians in Michigan is effectively accomplished only by government, with no analogue in the private sector, and since the operation of University Hospital is inextricably intertwined with the operation of this medical school, University Hospital operations do constitute a governmental function.

We disagree. We do not find that the purpose, planning, and carrying out of the day to day operation of the University Hospital can be effectively accomplished only by the government. We recognize that, from an economic standpoint, perhaps, the operation of a medical school can only be so effectuated. This, in itself, is controvertible, however, when one considers that private institutions for the training of other health care professionals, such as dentists and nurses, do exist in the state. In any event, in applying the definition of governmental function, we must focus on the precise operation sought to be held immune rather than overall or principal departmental operations. See Berkowski v Hall, supra, 7. In so doing, we find this case to be ruled by the Parker decision. The operation of a university hospital is more like the operation of a general hospital than a mental hospital. According to Parker, and consistent with Perry, therefore, the operation is not protected by the cloak of governmental immunity.

Reversed and remanded for a trial on the merits.