text:
    PEOPLE v HUGHIE LEWIS PEOPLE v HOWARD
    Docket Nos. 78-2959, 43838.
    Submitted February 6, 1980, at Detroit.
    Decided May 6, 1980.
    Leave to appeal applied for.
    Hughie V. Lewis and Charles E. Howard (hereinafter defendants) were convicted of first-degree murder in Detroit Recorder’s Court, Joseph A. Gillis, J. Defendants were sentenced to life imprisonment and solitary confinement at hard labor. During the trial, the jury viewed the scene of the alleged crime. Since the defendants were in custody, the trial court refused their request to accompany the jury to the scene because of "security problems”. Furthermore, relatives of the victim testified that he was suffering from terminal brain cancer at the time of the assault and had lost the use of his right side. In addition, testimony of a police officer indicated that after telling the defendant, Howard, that the other co-defendants had been positively identified, defendant Howard responded that he must have been identified also, since he was with the other defendants all night. Defendants appeal alleging error as to these matters. Held:

    1. An accused defendant, in custody, has the right to be present at every stage of the trial where his substantial rights may be affected, including a jury view of the scene of the crime. However, where there is no reasonable possibility of prejudice because of the denial of the defendant’s right to be present at the jury view of the scene of the crime, the Court of Appeals will not reverse on this basis.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 288, 295.
    75 Am Jur 2d, Trial § 79.
    [2] 21 Am Jur 2d, Criminal Law § 240.
    Propriety and effect of gagging, shackling, or otherwise physically restraining accused during course of state criminal trial. 90 ALR3d 17.
    [3] 29 Am Jur 2d, Evidence § 439.
    [4] 5 Am Jur 2d, Appeal and Error §§ 797, 798.
    [5] 29 Am Jur 2d, Evidence §§ 555-557.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.

      2. A defendant’s freedom from shackling with handcuffs during his trial is the general rule to insure a fair trial; however, shackling may be permitted to prevent the escape of a prisoner at a jury view of the scene of the crime.
    3. The admission or exclusion of evidence, including evidence concerning an infirmity of a crime victim, is within the trial court’s discretion, and such a determination should not be reversed unless there was a clear abuse of discretion.
    4. Error in the admission or exclusion of evidence is not grounds for setting aside a verdict unless refusal to take such action would be inconsistent with substantial justice.
    5. Law enforcement officials are required to warn defendants of their constitutional rights to remain silent and have an attorney present prior to interrogation in a custodial setting; however, where voluntary statements or admissions of a defendant are made in a noncoercive setting there is no requirement to warn.
    Affirmed.
    1. Criminal Law — Trial — Right of Defendant to be Present.
    An accused defendant, in custody, has the right to be present at every stage of the trial where his substantial rights may be affected, including a jury view of the scene of the crime; however, where there is no reasonable possibility of prejudice because of the denial of the defendant’s right to be present at the jury view of the scene of the crime, the Court of Appeals will not reverse on this basis.
    2. Criminal Law — Shackling Defendant — Fair Trial — Prevention of Escape.
    A defendant’s freedom from shackling with handcuffs during his trial is the general rule to insure a fair trial; however, shackling may be permitted to prevent the escape of a prisoner at a jury view of the scene of the crime.
    3. Criminal Law — Evidence — Infirmity of Victim.
    The admission or exclusion of evidence, including evidence concerning an infirmity of a crime victim, is within the trial court’s discretion, and such a determination should not be reversed unless there was a clear abuse of discretion.
    4. Criminal Law — Evidence — Appeal — Setting Aside Verdict — Court Rules.
    Error in the admission or exclusion of evidence is not grounds for setting aside a verdict unless refusal to take such action would be inconsistent with substantial justice (GCR 1963, 529.1).
    5. Criminal Law — Constitutional Law — Voluntary Admissions.
    Law enforcement officials are required to warn defendants of their constitutional rights to remain silent and have an attorney present prior to an interrogation in a custodial setting; however, where voluntary statements or admissions of a defendant are made in a noncoercive setting there is no requirement to warn.

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

      Ronald Weitzman, for defendant Lewis on appeal.

      Arthur H. Landau, for defendant Howard on appeal.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and R. M. Maher, JJ.
   Per Curiam.

The defendants together with a third codefendant named Bobby Mallory were tried jointly before a Detroit Recorder’s Court jury and were convicted of first-degree murder, MCL 750.316; MSA 28.548. Both Lewis and Howard were sentenced to life imprisonment and solitary confinement at hard labor. They now appeal as of right. Codefendant Mallory was convicted and appealed separately.

At the trial, Minnie Cheatham, the mother of the decedent, testified that her son left her home on the evening of January 12, 1978, to go to his girlfriend’s house. He had $15.40 in his pocket. Robert Parker testified that he looked out of his apartment window and saw the defendant Lewis and another codefendant named Mallory throw the decedent on the hood of a car and beat him. Parker went to telephone the police. When he returned to the window, the decedent was lying on the ground and the two men were jumping up and down on his head. When the police arrived, Parker supplied them with a description of the two men, and described their car as a green Buick with damage to the rear. Mr. Parker could only describe the third man who was the driver of the car as dark-complected. Officer Savinsky testified that he found decedent on the scene. One of his pockets had been ripped out, and he had no money.

Another police officer testified that he observed all three defendants about an hour after the alleged offense at a location approximately two blocks from the scene of the assault. They were standing near a green Buick which was parked at the curb and emitting smoke from the engine or radiator. There was old damage to the rear of the car and fresh damage to the front. The defendant Howard said it was his car, and claimed he had been involved in a hit and run accident. The three men were arrested as suspects in the reported assault. At the time the defendants were booked at the police station, Howard had $4, Lewis had $6 and Mallory had $5, for a total of $15, the same amount the decedent had on his person when he left his mother’s house.

The prosecution introduced Mallory’s shoes, which had blood of the same type as the decedent’s, into evidence. The defendants did not take the stand at trial. Although the notice of alibi listed six witnesses, none of them were called to testify.

On appeal, defendants raise numerous allegations of error. We find that three of them merit discussion. The first issue raised involves a jury view of the scene of the crime. The alleged crime took place at 10:20 p.m. on a snowy night, and there was objection by defense counsel to a jury view during daylight on a spring day. However, the trial court allowed the jury view in order to establish how visible the crime was from the window of Mr. Parker’s apartment. When defense counsel inquired if the defendants could go, the trial court said they could not because of "security problems”. Later on in the trial, the following exchange occurred:

"We will see everybody here at 2:00 o’clock and the defendants can’t go, but the lawyers can go out [to] the scene if they wish.
"MR. SLAMEKA: For the record, I would like to indicate that my client, Mr. Howard, would like to visit the scene.
"MR. POSNER: On behalf of Mr. Mallory I would like to indicate that also.
"MR. TOWNSEND: I join in that also.
"THE COURT: Well, we have a problem as to whether they are prejudiced if they go to the scene in handcuffs.
"MR. SLAMEKA: I was indicating my point of view. In fact, the Court has indicated on the record in front of the jury that they would take them back to the cell, so they know they are confined.
"THE COURT: We can’t take them out, security wise.”

Whether to allow the jury to view the scene of the crime is within the trial court’s discretion. MCL 768.28; MSA 28.1051, People v Dykes, 37 Mich App 555; 195 NW2d 14 (1972).

An accused has the right to be present at every stage of the trial where his substantial rights may be affected. People v Medcoff, 344 Mich 108, 116; 73 NW2d 537 (1955), People v Ewing, 48 Mich App 657, 659; 211 NW2d 56 (1973). The right of a defendant to be present at his trial is a fundamental right which is guaranteed by MCL 768.3; MSA 28.1026 as part of the Fourteenth Amendment right to due process. People v Montgomery, 64 Mich App 101; 235 NW2d 75 (1975).

In People v Auerbach, 176 Mich 23, 47-48; 141 NW 869 (1913), the Supreme Court said:

" 'The court was not in error in permitting or directing a view of the premises by the jury; but we think it was the duty of the court, in the absence of the respondent, to have kept the jury while on their way to, and on their return from, and in their view of, the premises, under the supervision of an officer, so that no person might communicate with them or express any opinion, or give any directions in their hearing; for anything which took place which was in the nature of testimony certainly could not be given to the jury in the absence of the respondent.’
"We think that the weight of authority is to the effect that a respondent who is at liberty may expressly waive his right to accompany the jury, but that the jury in no case should take anything in the nature of evidence, in his absence. We also think that the respondent had the right to accompany the jury, had he desired to do so in this case. More than this, it is not necessary for us to decide, as the question is not likely to occur upon a new trial in view of what we have said.”

In Auerbach, the respondent had been free on bail, and had not been prohibited from accompanying the jury. Therefore, the Court held that he had waived the right to lie present at the jury view.

We find no Michigan cases where a conviction was reversed because of the trial court’s refusal to allow defendant to accompany the jury to a view of the scene. In People v Kasem, 230 Mich 278, 282-283; 203 NW 135 (1925), and People v Connor, 295 Mich 1, 5-6; 294 NW 74 (1940), the defendant was free on bail and could have accompanied the jury had he chosen to do so, as was the case in Auerbach, supra. In People v Raider, 256 Mich 131, 137-138; 239 NW 387 (1931), there was an unresolved factual dispute about whether defendant was present, and defense counsel did not object before the verdict was given. In People v Gauthier, 28 Mich App 318, 324; 184 NW2d 488 (1970), and in People v Dykes, supra, the defendant was in custody, but made no request to accompany the jury to the scene.

We conclude that the trial court erred in denying the defendants’ request to accompany the jury to the scene, based on People v Auerbach, supra. Although the trial court expressed concern over the possible prejudicial effect of the jury seeing the defendants in handcuffs at the view, the use of handcuffs has been approved during a jury view in People v Anderson, 29 Mich App 578, 582-583; 185 NW2d 624 (1971), aff’d 389 Mich 155; 205 NW2d 461 (1973).

We now reach the issue of whether the trial court’s erroneous ruling concerning the defendants’ presence at the view constitutes reversible error. In People v Morgan, 400 Mich 527, 535-536; 255 NW2d 603 (1977), the Court relied on the following language from Wade v United States, 142 US App DC 356, 360; 441 F2d 1046, 1050 (1971), in rejecting the automatic reversal rule involving defendant’s absence from trial:

"It is possible that defendant’s absence made no difference in the result reached. The standard by which to determine whether reversible error occurred [is] * * * whether there is 'any reasonable possibility of prejudice’.”

Defense counsel were well aware of the differences in weather and lighting conditions between the jury view and the time of the actual crime, and pointed them out to the jury in closing argument. We, therefore, fail to perceive how defendants’ presence at the jury view would have affected the result. On the authority of Morgan, supra, we find no "reasonable possibility” of prejudice, and decline to reverse on this basis.

The second issue raised by defendants involves testimony by relatives of the deceased that he was suffering from terminal brain cancer at the time of the assault and had lost the use of his right side. Prior to trial, defense counsel had attempted to suppress this evidence on the basis that it was more prejudicial than probative. The prosecutor argued that it was probative to show malice, since decedent was incapable of defending himself, and it showed why decedent’s mother had placed $15 in his left pocket. The trial court ruled that this testimony was admissible. The prosecutor referred to the fact that Cheatham was "dying of a brain tumor” and that he did not have the use of his right arm, during the closing argument.

The admission or exclusion of evidence is within the trial court’s discretion. People v Cancino, 70 Mich App 90, 96; 245 NW2d 414 (1976), People v Triplett, 68 Mich App 531, 536; 243 NW2d 665 (1976). That decision should not be reversed unless there was a clear abuse of discretion. People v Howard, 391 Mich 597, 603; 218 NW2d 20 (1974).

According to MRE 402, all relevant evidence is admissible. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”. (MRE 401). Pursuant to MRE 403, even though relevant, evidence may be excluded if its probative value is outweighed by its prejudicial effect.

There is a dearth of case law on introduction of evidence concerning the victim’s infirmity. In People v Neal, 83 Mich App 102, 106-107; 268 NW2d 303 (1978), the Court said there was no error in admitting evidence that the murder victim was pregnant because it was probative of defendant’s motive, where defendant knew that the victim claimed that he was the father of her child.

In the case before us, the victim’s physical condition was completely irrelevant to any issue in the case. There was no contention of self-defense or that the decedent was the aggressor. There was eyewitness testimony concerning the brutality of the beating that resulted in Cheatham’s death. There was no need to bolster the mother’s testimony that decedent’s money was in his left pocket by bringing up his illness. We find that the testimony was erroneously admitted, as its only purpose was to appeal to the sympathy of the jury.

The Michigan Court Rules provide that an error in the admission or exclusion of evidence is not grounds for setting aside a verdict unless refusal to take such action would be inconsistent with substantial justice (GCR 1963, 529.1). See also, MCL 769.26; MSA 28.1096. In view of the overwhelming eyewitness evidence against the defendants, we do not find that the erroneous admission of evidence concerning the victim’s illness constitutes grounds for reversal.

The final allegation of error involves a statement made by the defendant Howard to a police officer the day after he was arrested. At a Walker hearing, the police officer testified to the following events:

"Sergeant, what happened when you allegedly — Mr. Howard allegedly said something to you? What was happening? Explain the circumstances.
"His sister Gloria had come down to Homicide. She stated she wanted to visit with him. I told her we were conducting show-ups in a short while. So she waited around.
"So at approximately 6:30 p.m., I brought him down after the show-ups. And on the way down in the elevator we were having conversation, and I told—
"Were you questioning him?
"No.
"What were you talking about?
"I don’t really recall. We were just in the elevator coming down from the 9th floor. I don’t recall what was being said.
"You weren’t questioning or interrogating?
"No.
"You weren’t even writing anything down, were you?
"No.
"What did he say to you?
"We were talking back and forth. And I told him, well, I says, you know, your two friends Lewis and Mallory have both been positively identified. And he stated to me, well, if they have been identified, I was identified because I’ve been with them all night.
"Did you advise him at one time or another that he had a constitutional right to remain silent?
"At that time I did not.
"When did you or when—
"MR. SLAMEKA: If ever.
"Was he ever advised of his rights?_
"I never advised him of his rights. He was advised by Sgt. McMahon at the 7th Precinct the day before.”

Defense counsel objected to the admission of Howard’s statement based inter alia on the failure to advise the defendant of his Miranda rights. The trial court found that the defendant had signed a waiver form on the previous day stating that he had been advised of his Miranda rights, and that he had also been advised of his constitutional rights by the arresting officer. Therefore, the trial court ruled that Howard’s statement was admissible, and it was introduced at the trial.

This Court reviews the entire record to determine whether the trial court’s ruling at the Walker hearing was correct. People v Kyllonen, 66 Mich App 467; 239 NW2d 410 (1976). However, its ruling will not be overturned unless it is "clearly erroneous”. People v Kelly, 30 Mich App 154; 186 NW2d 72 (1971), People v Nard, 78 Mich App 365; 260 NW2d 98 (1977), People v Robinson, 79 Mich App 145; 261 NW2d 544 (1977).

The Supreme Court decision in Miranda v Arizona, supra, required law enforcement officials to warn defendants of their constitutional rights to remain silent and have an attorney present prior to an interrogation in a custodial setting. Implicit to this decision was the recognition of the psychological pressures brought to bear on a suspect when questioned in a hostile environment. Specifically excepted from the scope of Miranda were voluntary statements or admissions, as follows, 384 US at 478:

"[48, 49] In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (Emphasis added.)

The Supreme Court defined a "custodial interrogation” as follows, 384 US at 444:

"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Emphasis added.)

We conclude that the comment made by Sgt. Dereere did not constitute the type of "custodial interrogation” which was contemplated by Miranda, but was a true statement about a recent development in the case which was not designed to elicit a confession or admission from the defendant. Certainly, the brief ride downstairs in the elevator prior to a visit with his relative was not the sort of isolated, coercive setting where an intimidated defendant would feel pressured to divulge information. See People v Leffew, 58 Mich App 533; 228 NW2d 449 (1975), People v Nard, supra. Thus, we find no error in the admission of Howard’s statement into evidence.

We have reviewed the other allegations of error raised by the defendants and find no reversible error.

Affirmed.

        People v Mallory (Docket No. 78-2377, decided November 26, 1979 [unreported]).

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v VASHER
    Docket No. 78-3880.
    Submitted January 15, 1980, at Detroit.
    Decided May 6, 1980.
    Thomas W. Vasher was convicted of unlawful delivery of marijuana, Wayne Circuit Court, William Leo Cahalan, J. Defendant appeals, alleging that the trial court erred by refusing to instruct the jury on the lesser included offense of possession of marijuana. Held:

    The trial court did not err. A trial court may not instruct a jury on a lesser included offense with a maximum penalty of incarceration for one year or less where the charged offense is punishable by more than two years incarceration. The Court of Appeals suggests that this rule should be modified by the Supreme Court in a case such as this so that a jury is allowed to consider at least one alternative supported by the facts other than finding a defendant guilty or not guilty of the charged offense.
    Affirmed.
    Criminal Law — Instructions to Jury — Lesser Included Offenses.
    A trial court, in any case wherein the charged offense is punishable by incarceration for more than two years, may not instruct the jury on lesser included offenses for which the maximum allowable incarceration period is one year or less.
    Reference for Points in Headnote
    [1] 75 Am Jur 2d, Trial §§ 876, 880-882.

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

      Emmet Tracey, Jr., for defendant on appeal.

      Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Per Curiam.

Following a jury trial, defendant was convicted of unlawful delivery of marijuana, contrary to MCL 335.341(l)(c); MSA 18.1070(41)(l)(c). He was subsequently sentenced to 13 months to 4 years in prison. Defendant now appeals as of right, claiming that the trial court reversibly erred by refusing to instruct on the lesser included offense of possession of marijuana, MCL 335.341(4)(d); MSA 18.1070(41)(4)(d).

The delivery of marijuana charge carries a maximum penalty of 4 years, while possession is only a 1-year misdemeanor. As the trial judge correctly observed, this penalty disparity precludes instruction on the lesser included offense of possession. People v Kamin, 405 Mich 482, 501; 275 NW2d 777 (1979), People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), People v Choate, 88 Mich App 40, 48; 276 NW2d 862 (1979), People v Herbert Ross, 73 Mich App 588, 592; 252 NW2d 526 (1977).

"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.” Chamblis, supra, at 429.

This standard was enunciated to prevent juries from reaching compromise verdicts on offenses far removed from, and less serious than, the original charged crimes. It was also meant to protect defendants from a never-ending series of accusations and charges. Chamblis, supra, at 428, People v Brown, 87 Mich App 612, 616; 274 NW2d 854 (1978). When these underlying concerns are absent, the Supreme Court has modified the Chamblis rule. See People v Miller, 406 Mich 244; 277 NW2d 630 (1979).

We believe that the instant case affords an excellent opportunity for the Supreme Court to again modify Chamblis. Possession is the only alternative offense that could be legitimately supported by the record, thus, there is both the realistic close relationship between the offenses and the lack of numerous possible accusations. Further, the offenses are so overlapping in purpose and composition that a defendant prepared to reply to one charge would have adequate notice to enable him to defend against the other. Brown, supra, at 615-616.

In Keeble v United States, 412 US 205; 93 S Ct 1993; 36 L Ed 2d 844 (1973), the Supreme Court suggested that grave constitutional questions arise when no lesser included offenses are given and the jury is thus denied any opportunity to convict defendant except on the charged crime.

"Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble, supra, at 212-213.

Although we are presently bound by the rule enunciated in Chamblis, supra, we believe that it should be modified to allow a jury to consider at least one alternative supported by the facts other than finding a defendant guilty or not guilty of the charged offense. However, even under this construction, it is unlikely that the instant defendant who was caught with over a hundred pounds of marijuana would have been convicted of any crime other than unlawful delivery of marijuana. We merely suggest that the jury should be able to consider and weigh an alternative, here possession, and invite the Supreme Court to consider the constitutional advisability of modification. See Kamin, supra.

Affirmed.

M. J. Kelly, P.J., concurs in the result only.


text:
    HELZER v LOCAL 98, UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA
    Docket No. 78-4874.
    Submitted January 9, 1980, at Detroit.
    Decided May 6, 1980.
    Robert Helzer and several others brought an action against Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, the joint apprenticeship committee of the local, and others, seeking damages because of the termination of the plaintiffs from an apprenticeship program. The union local and its apprenticeship committee appeal from the judgment entered against them in favor of plaintiffs Helzer, Ronald Lomasney, Marcus Middleton, and Richard Schavillie in the St. Clair Circuit Court, Ernest F. Oppliger, J. Plaintiff Stanley Slavin cross-appeals from the judgment entered against him and in favor of the defendants. Held:

    1. The trial court properly held that the defendants had breached their duty owed to the plaintiff under apprenticeship agreements entered into between the plaintiffs and the predecessor to the defendant local, which assumed the duties of the predecessor upon a merger of the two locals.
    2. The award of damages to Helzer, Middleton and Schavillie was based upon a reasonably certain basis and was not clearly erroneous.
    3. The award of damages to Lomasney is reduced because the trial court did not properly compute the damages.
    4. The trial court’s finding that plaintiff Slavin should take nothing is not clearly erroneous.
    Affirmed in part, reversed in part.
    Damages — Amount of Damages — Reasonably Certain Basis.
    A trial court need not compute damages with mathematical exactness, but an award of damages must have a reasonably certain basis.
    Reference for Points in Headnote
    [1] 22 Am Jur 2d, Damages § 25.

      Dee Edwards, for plaintiffs.

      Boaz Siegel and Frederick B. Gold, for defendants.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

On November 6, 1978, plaintiffs Helzer, Middleton, Lomasney and Schavillie had judgment entered in their favor against the defendants. The defendants had judgment entered in their favor against plaintiff Slavin. Defendants-appellants appeal from the judgment entered against them. Plaintiff Slavin cross-appeals from the judgment entered against him and in favor of the defendants.

The trial court was correct in ruling that the defendants had assumed all rights and obligations of Local 777 by virtue of the merger agreement entered into between Local 777 and locals 98 and 936 on November 22, 1972. The trial court was correct in finding that the defendants-appellants had breached their duty owed the plaintiffs under the apprenticeship agreements entered into between the plaintiffs and Local 777.

Defendants’ contentions of a valid annulment of the apprenticeship agreements and of a failure to exhaust administrative remedies on behalf of the plaintiffs are without merit. Additionally, the trial court’s award of damages to plaintiffs Helzer, Middleton and Schavillie, based upon the formula outlined in its written opinion of August 24, 1978, is not clearly erroneous, GCR 1963, 517.1, and has a reasonably certain basis. The trial court need not compute damages with mathematical exactness. Wolverine Upholstery Co v Ammerman, 1 Mich App 235; 135 NW2d 572 (1965).

However, the trial court’s award of damages to plaintiff Lomasney does not have a reasonably certain basis. The trial court was incorrect in reducing plaintiff Lomasney’s actual earnings by the percentage of time that plaintiff Lomasney was voluntarily out of the job market. The 36.6% figure, representing the time which plaintiff Lomasney was unable to accept employment, should have been applied to all other elements of the formula for damages. Doing so, the trial court should have arrived at a total damage figure for plaintiff Lomasney of $15,395.29. The trial court’s award of damages for plaintiff Lomasney is reduced and the trial court instructed to award damages not inconsistent with this opinion.

Plaintiff Slavin has cross-appealed against the defendants. The trial court ruled that Slavin would receive no damages because his testimony demonstrated that he had voluntarily left the construction industry to help a relative, in which case defendants should not be liable for damages. The record discloses that Slavin found employment in Port Huron with a welding firm after his apprentice-related job was terminated, but before he decided to move to Detroit to aid his relative. However, the record and exhibits do not indicate precisely when this move occurred. To the extent that the lower court overlooked the interim welding job in finding that Slavin had voluntarily left the industry, it erred. Such error does not, however, affect the validity of the trial court’s conclusion, inasmuch as it is clear that Slavin failed to take the measures that his co-plaintiffs had in an effort to become accepted into the apprentice program. Thus, the lower court’s ruling as it pertains to plaintiff Slavin is not clearly erroneous.

Affirmed in part; reversed in part.


text:
    KIRCOS v LOLA CARS LIMITED
    Docket No. 78-5218.
    Submitted June 19, 1979, at Detroit.
    Decided May 6, 1980.
    Louis Kircos and Donald J. Brodowicz brought an action for damages for injuries allegedly incurred when the tire which they were inflating exploded. Lola Cars Limited, the British manufacturer of the wheel of the car on which the tire was being mounted, and Carl A. Haas Automobile imports, importer of Lola race cars and products, were named as defendants along with others. The injuries to plaintiffs, Michigan residents, occurred in Wisconsin. Defendant Haas had previously been determined to have carried on a continuous and systematic part of its business in the State of Michigan and was thus subject to the jurisdiction of the courts of this state, even though Haas was not licensed to do business in this state and the car in question was sold by Haas in California and was never within the State of Michigan. See Kircos v Goodyear Tire & Rubber Co, 70 Mich App 612; 247 NW2d 316 (1976). Defendant Haas was the exclusive importer and distributor of Lola cars and products in North America under a contract which provided that Haas "may appoint sub-agents in the designated territory”. The three-year contract provided that it might be renewed for a further three years. Defendant Lola moved to quash the complaint or for accelerated judgment on the basis of lack of jurisdiction over Lola. The trial court denied the motion on the basis that there was a question of fact as to whether an agency relationship existed between Haas and Lola and that question would have to be resolved by a jury. Lola sought leave to appeal to the Court of Appeals, which was denied. Lola then sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded to the trial court with instructions that the trial court determine the jurisdictional question as a preliminary matter of law after an evidentiary hearing. See Kircos v Goodyear Tire & Rubber Co, 403 Mich 802 (1978). Following an evidentiary hearing, the Wayne Circuit Court, Thomas J. Foley, J., denied Lola’s motion on the basis that general jurisdiction was acquired by Michigan courts by reason of an agency relationship between Lola and Haas. Judge Foley also determined that Michigan courts could not assert limited personal jurisdiction. Lola appeals by leave granted. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 875.
    [2, 3] 36 Am Jur 2d, Foreign Corporations § 316 et seq.

      1. Findings of fact by a trial court relative to whether there is a basis upon which the courts of this state can assert jurisdiction over a defendant will not be set aside unless the findings of fact are clearly erroneous and the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed.
    2. The right of the courts of this state to assert jurisdiction over a nonresident corporation is dependent upon establishing that the foreign corporation had sufficient contacts in this state. The foreign corporation must actually be present within this state on a regular basis, either personally or through an independent agent.
    3. The trial court erred in finding that an agency relationship existed between defendant Lola and defendant Haas such that Lola could be said to have sufficient contacts in this state to establish in the courts of this state general jurisdiction over defendant Lola. Neither the renewable nature of the contract between Haas and Lola nor the use of the term "sub-agent” in that contract is sufficient to create the necessary agency relationship in view of the remaining evidence which supports a finding that no agency relationship existed.
    4. The trial court properly determined that jurisdiction over defendant Lola was not acquired pursuant to the limited personal jurisdiction statute.
    Reversed in part, affirmed in part.
    1. Appeal — Findings of Fact — Jurisdiction — Clearly Erroneous — Court Rules.
    Findings of fact made by a trial court relative to whether there is a basis upon which the State of Michigan can assert jurisdiction over a defendant will not be set aside unless those findings of fact are clearly erroneous and the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed (GCR 1963, 517.1).
    2. Courts — Jurisdiction — Nonresident Parties — Corporations — Minimum Contacts.
    The right of the courts of this state to assert jurisdiction over a nonresident corporation is dependent upon establishing that the foreign corporation had sufficient contacts in this state; the foreign corporation must actually be present within this state on a regular basis, either personally or through an independent agent.
    3. Courts — Jurisdiction — Nonresident Parties — Corporations — Agency — Right of Control.
    A British race car manufacturer which consummates in England the sale of its race cars to its American importer does not have sufficient contacts with the State of Michigan to confer jurisdiction on the courts of this state over that manufacturer, even though the American importer has sufficient contacts in this state, where there is no significant control over the importer by the manufacturer; neither the use of the term "sub-agents” in the contract between a manufacturer and an importer nor the fact that the contract is renewable create an agency relationship sufficient to confer jurisdiction on the court of this state where, in fact, the right to control is missing.

      Clark, Klein, Winter, Parsons & Prewitt (by David M. Hayes and David H. Paruch), for plaintiffs.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Robert R. Rekiel and Mary Ann Zito), for defendant Lola Cars Limited.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   Per Curiam.

Defendant Lola Cars Limited appeals by leave granted from the trial court’s decision that it is subject to the jurisdiction of Michigan courts under MCL 600.711; MSA 27A.711.

Lola manufactures race cars and related products in England. All Lola products imported into the United States were purchased in England by Carl A. Haas Automobile Imports, Inc. Haas was the exclusive North American importer and distributor of Lola products under a written contract executed between them. The contract provided that Haas "may appoint sub-agents in the designated territory”, and it also provided for renewal at the end of three years at the option of either party. Lola was given renewal option rights of control over operations of Haas.

In a prior, related case, Kircos v Goodyear Tire & Rubber Co, 70 Mich App 612; 247 NW2d 316 (1976), this Court found that the defendant, Haas, carried on a continuous and systematic part of its general business within the State of Michigan; and, thus, Michigan courts could properly assert general personal jurisdiction over Haas.

In the instant case, the trial court found that Haas was the agent of Lola, and thus general personal jurisdiction was conferred on Michigan courts over Lola by reason of the agency relationship, since Lola, through its agent, Haas, was carrying on a continuous and systematic part of its general business within the state. MCL 600.711(3); MSA 27A.711(3). However, the trial court found Michigan courts could not assert limited personal jurisdiction over Lola under MCL 600.715; MSA 27A.715.

On appeal, defendant Lola argues that no agency relationship exists between it and the distributor, Haas, and, absent such an agency relationship, Michigan courts have no basis to assert jurisdiction over Lola pursuant to MCL 600.711; MSA 27A.711. We agree and find the trial court clearly erred in finding such a relationship.

The scope of review of a trial court’s decision is specified by GCR 1963, 517.1, as follows:_

"Findings of fact shall not be set aside unless clearly erroneous.”

The standard is amplified by the classical statement as found in Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976):

" '[A] finding of fact [by a court sitting in a bench trial] is "clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ”

Reversal follows where the reviewing court finds such error, National Car Rental v S & D Leasing, Inc, 89 Mich App 364; 280 NW2d 529 (1979).

In People v Bruce Ramsey, 89 Mich App 468, 474; 280 NW2d 565 (1979), it is stated: "[T]he evidence in a nonjury case is subject to a more rigorous review than that in a jury case”, citing Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405-408 (1957).

There have been suggestions that Michigan, by its statutory provisions relative to which corporations are subject to its jurisdiction, intends to extend its power to the full constitutional limit. In considering the "Underlying Theory of RJA Chapter 7”, Honigman and Hawkins state:

"This underlying theory, which contemplates the optimum use of the state’s judicial power to protect its citizens and others having basic ties with the state, is sanctioned by contemporary decisions of the United States Supreme Court.” 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 123.

Unless clearly erroneous, it may well be that a trial court’s finding of facts is determinative as to what were the acts and activities of a defendant within the jurisdiction, but a trial court’s determination that such activities are sufficient to bring a corporation within the jurisdiction of the court is a legal question subject to direct review.

"The minimum amount of activity which a foreign corporation may have within a state so as to be amenable to suit there, should the state choose to subject it to process, is a matter of constitutional law governed, in the last resort, by the supreme court.” 16A CJS, Constitutional Law, § 616, p 781.

Since Pennoyer v Neff, 95 US 714; 24 L Ed 565 (1877), it has been recognized that failure to properly acquire jurisdiction over a defendant renders any judgment null and void as being a denial of due process. It is not only a question of service of process or notice, but also a question of whether or not the exercise of jurisdiction by the court is proper under the circumstances.

Whether a state can assert jurisdiction over a nonresident must be evaluated according to certain minimum-contact standards, International Shoe Co v Washington, 326 US 310; 66 S Ct 154; 90 L Ed 95 (1945), Shaffer v Heitner, 433 US 186; 97 S Ct 2569; 53 L Ed 2d 683 (1977).

Where a corporation is involved, testing whether it is present within a state will require, in almost all instances, a determination that it was present because of the presence of a person who was its agent.

As stated in International Shoe Co v Washington, supra, at 316-317:

"Since the corporate personality is a fiction, although a fiction intended to be acted upon as though it were a fact, it is clear that unlike an individual its 'presence’ without, as well as within, the state of its origin can be manifested only by activities carried on in its behalf by those who are authorized to act for it. To say that the corporation is so far 'present’ there as to satisfy due process requirements, for purposes of taxation or the maintenance of suits against it in the courts of the state, is to beg the question to be decided. For the terms 'present’ or 'presence’ are used merely to symbolize those activities of the corporation’s agent within the state which the courts will deem to be sufficient to satisfy the demands of due process.” (Citations omitted.)

and at 319:

"It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.
"But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” (Citations omitted.)

1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1979 Supp, p 39 states:

"[0]ne of the most unsettled but rapidly expanding problems is the application of expanded state jurisdictional statutes to obtain personal jurisdiction over nonresidents in product liability cases.”

Where the relationship to the state is too attenuated, jurisdiction is not present. A foreign corporation must actually be present within the forum state on a regular basis, either personally or through an independent agent, in order to be subjected to general personal jurisdiction, Storie v Beech Aircraft Corp, 417 F Supp 141, 145 (ED Mich, 1976).

This is not a case where the product involved was brought into the state. While the car in question was manufactured by Lola, it was never brought into this state. Haas, which sold the car, has been established as being present within the state on a regular basis. Is the relationship of Haas to Lola such that we may also say that Lola has been exercising the privilege of conducting activities within the state and enjoying the benefits and protection of the laws of this state such that there were sufficient contacts or ties within the state so as to make it reasonable and just to enforce obligations elsewhere incurred? We conclude that that relationship is too attenuated and remote to justify finding that the exercise of jurisdiction by the courts of this state is within the ambit of due process and is not violative of traditional notions of fair play and substantial justice, Shaffer v Heitner, 433 US 186; 97 S Ct 2569; 53 L Ed 2d 683 (1977).

A corporation is not "present” merely because goods that it has manufactured and sold are within a jurisdiction, absent an incident creating a limited jurisdiction, under RJA § 715. The fact that the corporation knows that purchasers of its products will be continuously selling its products within a jurisdiction does not mean that it is carrying on a continuous and systematic part of its general business within the state, as required by RJA § 711. The fact that this is done through an exclusive importer and distributor of its products does not mean that the importer and distributor is, per se, the corporation’s alter ego: the establishment of such a relationship does not carry the legal significance of the vow "whither thou goest, I will go”. We look rather to see if there were activities carried on in the corporation’s behalf by those who are authorized to act for it.

The facts of the instant case indicate that Haas was not an agent of Lola. Haas contracted with Lola to be the sole importer and distributor of Lola racing cars and spare parts into the North American continent. However, Haas’ methods were not subject to the control of Lola, nor was the result of Haas’ work.

The contract between Haas and Lola included a discretionary renewal clause, which stated:

"This contract may be renewed for a further 3 years subject to one year’s written notice to this effect by either party.”

Although the trial court found this renewal clause to represent a significant amount of control on the part of Lola, we disagree and rule that the trial court’s finding was clearly erroneous. First, the renewal clause gave no control to Lola over Haas during the contract period. Secondly, since the renewal option was subject to written notice by either party, it did not give any control to Lola.

The trial court also assumed that since the term "sub-agents” was present in the contract between Lola and Haas, it therefore implied that Haas was the agent of Lola. The terms parties use to designate their relationships are not controlling. See Lincoln v Fairfield-Nobel Co, 76 Mich App 514, 520; 257 NW2d 148 (1977). Since there were no other facts presented indicating that Lola had the right to control over Haas, it is clear that Haas was not acting as an agent of any kind on behalf of Lola. See Birou v Thompson-Brown Co, 67 Mich App 502, 507; 241 NW2d 265 (1976). Accordingly, Michigan courts have no basis upon which to assert jurisdiction over Lola by means of MCL 600.711; MSA 27A.711.

Plaintiffs argue on appeal that the trial court erred in finding a lack of limited personal jurisdiction over Lola by means of MCL 600.715; MSA 27A.715. We disagree. We are convinced that Clavenna v Holsey, 81 Mich App 472; 265 NW2d 378 (1978), is also applicable to corporate defendants and, thus, is dispositive of this issue.

Reversed in part, affirmed in part.

No costs, neither party having prevailed in full.

       The car in question was purchased by Haas in England, was sold in California, and was never within the State of Michigan, and the accident which injured the plaintiffs, Michigan residents, occurred in Wisconsin.

        Ruth 1:16 (King James).


text:
    HAHN v SARAH COVENTRY, INCORPORATED
    Docket No. 43925.
    Submitted March 5, 1980, at Detroit.
    Decided May 6, 1980.
    Leave to appeal applied for.
    Ann E. Hahn developed cardiac arrythmia and claimed worker’s compensation benefits from her employer, Sarah Coventry, Incorporated, and its insurer, Employers Mutual of Wausau. The hearing referee and the Worker’s Compensation Appeal Board approved the payment of benefits for total disability. Defendants appeal by leave granted, alleging that a deposition of a psychiatrist was erroneously admitted into evidence because the deposition had been taken without the plaintiffs having first furnished the defendants with a copy of the psychiatrist’s medical report as required by statute, that there was no evidence to support the finding that the plaintiffs employment had caused or aggravated the medical condition, and that the appeal board should have apportioned the benefits payable to the plaintiff. Held:

    1. Admission of the deposition was error because the failure of the plaintiff to supply the defendants with a copy of the medical report affected the defendants’ ability to cross-examine the psychiatrist at the taking of the deposition. The error was harmless, however, because the defendants had an opportunity again to depose the psychiatrist or to subpoena him to appear as a witness at the hearing. Having done neither, the defendants have waived their right to cross-examine this witness.
    2. There was testimony to support a finding that the plaintiffs condition was caused by the stresses of her job.
    3. The apportionment issue is not properly before the Court of Appeals, as it was not raised at the proceedings below.
    Affirmed.
    References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation § 633.
    [2] 2 Am Jur 2d, Administrative Law § 645 et seq.

    82 Am Jur 2d, Workmen’s Compensation § 630 et seq.

    [3] 82 Am Jur 2d, Workmen’s Compensation § 290 et seq.

    [4] 82 Am Jur 2d, Workmen’s Compensation § 534.
    [5] 2 Am Jur 2d, Administrative Law § 625.

      1. Workers’ Compensation — Evidence — Physician’s Reports — Statutes.
    Admission into evidence of a psychiatrist’s deposition in a worker’s compensation hearing was error where the defendant was not furnished with a copy of the psychiatrist’s medical report prior to the taking of the deposition; however, the error was harmless where the defendant had an opportunity to schedule another deposition before the hearing or to subpoena the psychiatrist to appear as a witness and failed to do so, thereby waiving the right to cross-examine the psychiatrist (MCL 418.385; MSA 17.237[385]).
    2. Workers’ Compensation — Appeal Board — Statutes.
    Determinations of the Worker’s Compensation Appeal Board are conclusive, in the absence of fraud, if there is substantial competent evidence to support them (MCL 418.861; MSA 17.237[861]).
    3. Workers’ Compensation — Illness or Disease — Work-Related Injury.
    Worker’s compensation benefits are not payable for an illness or disease unless the claimant’s work has accelerated or aggravated the illness or disease or the work coupled with the illness or disease causes an injury.
    4. Workers’ Compensation — Causality — Evidence.
    A worker’s compensation claimant need establish causality only by a preponderance of the evidence.
    5. Workers’ Compensation — Appeal — Waiver op Issues.
    Issues not raised before the hearing referee or before the Worker’s Compensation Appeal Board are waived and may not be raised on appeal.

      Kelman, Loria, Downing, Schneider & Simpson, for plaintiff.

      George E. Ganos, for defendants.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   Per Curiam.

The defendants appeal by leave granted from a January 25, 1979, decision of the Worker’s Compensation Appeal Board (WCAB) affirming the April 26, 1976, decision of the hearing referee which granted the plaintiff worker’s disability compensation benefits. The hearing referee found that plaintiff’s occupationally-related stress precipitated the cardiac arrythmia which disabled her.

The plaintiff testified that she began working for Sarah Coventry in October of 1958 at the age of 25. At that time, she was in excellent health. Her original duties as a fashion sales director were to organize jewelry parties at which Sarah Coventry jewelry was sold. The plaintiff was paid on a strict commission basis. Four months later, the plaintiff was promoted to unit director, and in addition to her former duties had to bring new people into the system and train them to work as fashion sales directors. As a unit director, plaintiff was responsible for 15 people. In September of 1959 the plaintiff was advanced to branch manager and oversaw 120 people. In addition to her earlier duties, she also developed people to act as unit directors. She often worked 12-hour days. In 1961, she collapsed and was hospitalized for 8 to 10 days.

After an absence of a year and a half, the plaintiff returned to work for Sarah Coventry as a branch manager. In 1964, she was promoted to division manager, and was responsible for 250 to 300 people. The plaintiff was required to travel in the city and out of state. She began to have adverse heart reactions due to the fatigue and pressure of her job. In 1965, the plaintiff became a region manager, which meant increased sales volume requirements. She became an area manager in 1967, at which time she had charge of 500 people, and worked 16- to 18-hour days.

In 1972, the plaintiff moved up to the top area manager of the company, and in 1973 was promoted to zone vice-president. In this job, the plaintiff was responsible for area managers and regions, branches, units, and the like. She was responsible for several states and 4,000-5,000 people, and continued to experience pressure and strain. Plaintiff stated that her home life was destroyed, and her marriage ended in divorce.

In 1967, the plaintiff experienced heart disorders and entered a hospital for treatment where heart monitoring was performed. The plaintiff said she experienced rapid, irregular heartbeats along with weight loss, loss of appetite, chest pains, weakness, and trouble in breathing. In October of 1973, the plaintiff testified that she collapsed at home while dictating a letter and was taken to a hospital. The plaintiff said that her heart was racing, that she could not walk and could barely talk. The plaintiff did not work after this time, and her condition has somewhat improved since then.

The deposition of Dr. Seymour Wilhelm was admitted into evidence. He had examined the plaintiff on April 12, 1968, and again on May 12, 1975. Dr. Wilhelm testified that plaintiff had episodes of rapid and irregular heartbeats, which can be brought on by stress. Dr. Wilhelm could find no physiological cause for these episodes and had no explanation for them aside from emotional stress. Dr. Wilhelm concluded that plaintiff’s highly competitive work could aggravate and precipitate her arrythmia problem, and that she should not return to this type of work environment. Dr. Wilhelm said that recurrent episodes of arrythmia could lead to a "cardiac neurosis”.

Dr. Robert Schneck, a board certified internist, examined the plaintiff on August 15, 1975. He concluded that Mrs. Hahn’s attacks of rapid heart actions were unrelated to her occupation, and were not associated with any heart disease.

Over defense objections, the deposition of Dr. Bruce Danto, a board certified psychiatrist, was admitted into evidence. Dr. Danto examined Mrs. Hahn on August 18, 1975. Dr. Danto believed that there was a causal relationship between the plaintiff’s work and her medical condition. It was his opinion that the plaintiff was totally disabled from working.

After the hearing referee had ruled in plaintiff’s favor, the defendants sought to take additional testimony prior to review by the WCAB. The WCAB granted this request, and the deposition of Joel Dreyer, M.D., a psychiatrist, was taken. Dr. Dreyer examined Mrs. Hahn on March 25, 1975. It was his opinion that if the plaintiff took employment in a position involving stresses similar to her previous work she would experience further episodes of rapid and irregular heartbeat. Dr. Dreyer thought that plaintiff was capable of working in a situation which involved less pressure and speed than her previous position.

The first issue we consider in this appeal involves the admission into evidence of Dr. Bruce Danto’s deposition despite the plaintiff’s failure to comply with defendants’ request for a copy of Dr. Danto’s report, as required by MCL 418.385; MSA 17.237(385).

Dr. Danto examined the plaintiff on August 18, 1975. On August 28, 1975, the defendants sent a letter requesting a copy of Dr. Danto’s report. The plaintiff’s attorney replied by a letter dated September 5, 1975, stating that, "You will advise me what psychiatric [sic], if any, you intend to present, and I will be happy to exchange reports with you”. The defendants’ attorney acknowledged receipt of this letter.

Dr. Danto’s deposition was scheduled for September 18, 1975. The defendants’ attorney did not appear at the scheduled time. After waiting 10 minutes, plaintiffs attorney proceeded to take Dr. Danto’s testimony. The defendants’ attorney arrived approximately 20 minutes late. At that time, he objected to the taking of any testimony in view of plaintiff’s failure to furnish a copy of Dr. Dan-to’s medical report, and indicated he would be willing to reschedule the deposition if he was furnished with a copy of the report and given the opportunity to prepare for cross-examination. The defendants’ attorney then left, and the plaintiffs attorney proceeded with the deposition. The plaintiff’s attorney did send defendants a copy of Dr. Danto’s medical report six days later, on September 24, 1975.

The hearing before the administrative law judge began on October 22, 1975. The hearing referee admitted the deposition into evidence despite defendants’ objections, although he stated no reason for his ruling. The same issue was later raised before the WCAB. All five members concluded that plaintiffs failure to furnish a copy of the report did not exclude the introduction of depositional testimony where the notice, subpoena, and proper procedural due process requirements were met, and there was an opportunity for cross-examination at the taking of the deposition.

MCL 418.385; MSA 17.237(385) provides as follows:

"Sec. 385. After the employee has given notice of injury and from time to time thereafter during the continuance of his disability, if so requested by the employer or the carrier, he shall submit himself to an examination by a physician or surgeon authorized to practice medicine under the laws of the state, furnished and paid for by the employer or the carrier. If an examination relative to the injury is made, the employee or his attorney shall be furnished, within 15 days of a request, a complete and correct copy of the report of every such physical examination relative to the injury performed by the physician making the examination on behalf of the employer or the carrier. The employee shall have the right to have a physician provided and paid for by himself present at the examination. If he refuses to submit himself for the examination, or in any way obstructs the same, his right to compensation shall be suspended and his compensation during the period of suspension may be forfeited. Any physician who makes or is present at any such examination may be required to testify under oath as to the results thereof. If the employee has had other physical examinations relative to the injury but not at the request of the employer or the carrier, he shall furnish to the employer or the carrier a complete and correct copy of the report of each such physical examination, if so requested, within 15 days of the request. If such a request is made, the employee may not subsequently introduce into evidence á report of any physical examination not furnished to the employer or the carrier.” (Emphasis added.)

There are no decisions construing the requirements of § 385, making this an issue of first impression.

First of all, we conclude that a psychiatric examination comes within the scope of the statute, especially where the alleged disability involves mental stress rather than a physical injury.

We are of the opinion that the hearing referee and the WCAB erred in admitting Dr. Danto’s depositional testimony. Clearly, the purpose of § 385 is to allow the opponent an opportunity to review the medical report prior to the taking of any depositions, in order to enable him to cross-examine the expert witness in an effective manner. If we penalize the plaintiff by excluding only the unfurnished report, but allow the use of a deposition which is based largely on this report and where the defendant is at a clear disadvantage in his ability to cross-examine, we would undercut the purpose of the statute.

However, we are constrained to find that the error in the instant case was of the harmless variety. In Greer v John E Green Plumbing & Heating Co, 75 Mich App 451; 255 NW2d 17 (1977), the plaintiff sought compensation for a heart disability. The defendants deposed plaintiff’s physician in January of 1973, but plaintiff’s attorney failed to appear at the deposition. At the referee’s hearing, which took place in January of 1974, plaintiff’s attorney sought to quash this deposition, but the motion was denied. The Court upheld this ruling, finding that plaintiff had waived his right to cross-examine. The Court noted that the plaintiff had an adequate opportunity to seek another deposition before the trial or to subpoena the doctor as a witness.

In the case at bar, the record indicates that Dr. Danto’s report was furnished to the defendants’ attorney on September 24, 1975. The hearing began on October 22, 1975. The defendants had an opportunity to schedule a deposition prior to the hearing, or to subpoena Dr. Danto to appear as a witness at the hearing. Their failure to do so constitutes a waiver of their right to cross-examine the witness, and we must therefore reluctantly uphold the decision of the WCAB.

The defendants also allege that the WCAB erred in ordering the payment of continuing benefits to the plaintiff where there was no evidence to support the finding that the stressful nature of her employment had caused or aggravated the plaintiff’s underlying medical condition.

The scope of review in worker’s compensation cases is extremely limited under MCL 418.861; MSA 17.237(861). In the absence of fraud, determinations of the WCAB are conclusive, if there is substantial competent evidence to support them. Eckman v Ex-Cell-O Corp, 58 Mich App 94, 96; 226 NW2d 855 (1975).

The defendants contend that the recent Supreme Court decision in Kostamo v Marquette Iron Mining Co, 405 Mich 105; 274 NW2d 411 (1979), mandates reversal. In Kostamo, the Supreme Court considered the eligibility of five different claimants with heart disease who sought to recover under the Worker’s Disability Compensation Act. The Supreme Court made the following statement concerning eligibility for benefits, 405 Mich at 116:

"The workers’ compensation law does not provide compensation for a person afflicted by an illness or disease not caused or aggravated by his work or working conditions. Nor is a different result required because debility has progressed to the point where the worker cannot work without pain or injury. Accordingly, compensation cannot be awarded because the worker may suffer heart damage which would be work-related if he continued to work. Unless the work has accelerated or aggravated the illness, disease or deterioration and, thus, contributed to it, or the work, coupled with the illness, disease or deterioration, in fact causes an injury, compensation is not payable.”

The Kostamo Court indicated that, in deciding whether the asserted stress caused the heart problems, the trier of fact need not rely solely on medical testimony, but is permitted to draw natural inferences from all the testimony, both lay and medical. The Court went on to say, 405 Mich at 135-136:

"A claimant need establish causality only by a preponderance of the evidence. The WCAB may conclude that the party who has the burden of proof has produced evidence which preponderates when it is persuaded, viewing all the evidence, circumstances and reasonable inferences, that the evidence and inferences which support the claim outweigh those which oppose it. Whether the evidence so persuades and therefore preponderates is a judgment confided to the WCAB with which a court may interfere only when convinced that there is no evidence to support that judgment.”

In the case at bar, Dr. Wilhelm testified that plaintiff’s condition was caused and aggravated by the stresses of her job. The hearing referee and the WCAB were free to disregard Dr. Schneck’s depositional testimony to the effect that plaintiff’s "paroxysmal tachycardia” was totally unrelated to the stresses of her job. We therefore find no basis for reversal of the WCAB’s determination.

Defendants’ final contention on appeal is that the WCAB was required to apportion benefits under MCL 418.431; MSA 17.237(431) where the plaintiff’s employment was not the sole reason for her disability, but was only a contributing factor. Since that issue was not raised before the hearing referee or the WCAB, it is waived. Hutchinson v Tambasco, 309 Mich 597, 607; 16 NW2d 87 (1944), Kolbas v American Boston Mining Co, 275 Mich 616, 619; 267 NW 751 (1936), Kushay v Sexton Dairy Co, 394 Mich 69, 77; 228 NW2d 205 (1975).

Affirmed.


author: Per Curiam. D. E. Holbrook, Jr., P.J.,

text:
    PEOPLE v GIOMBETTI PEOPLE v ADKINS
    Docket Nos. 45651, 45870.
    Submitted March 4, 1980, at Detroit.
    Decided May 6, 1980.
    Leave to appeal applied for.
    Sergio Giombetti was convicted of second-degree murder and the possession of a firearm in the commission of a felony. His codefendant, Ward Adkins, was convicted of aiding and abetting a second-degree murder and aiding and abetting in the possession of a firearm during the commission of a felony. Both defendants appeal. Held:

    1. The conviction of a principal to a crime is not necessary to convict an accessory. However, the prosecution must prove that the crime was committed by someone and that the defendant either committed or aided and abetted the commission of that crime. It was error for the court to instruct the jury that, in order to find Adkins guilty of aiding and abetting a homicide, they must first find Giombetti guilty as a principal where the evidence showed four armed participants in the incident resulting in the killing.
    2. The absence of objection at trial precludes appellate review of allegedly prejudicial remarks by a prosecutor in closing argument unless the court’s failure to review would result in a miscarriage of justice. The prosecutor’s remarks, even if improper, did not constitute reversible error since they were in response to issues raised by defense counsel.
    Affirmed with respect to Adkins and reversed and remanded for a new trial with respect to Giombetti.
    D. E. Holbrook, Jr., J., dissented in part. He would hold that an aider and abettor in a homicide, who is not himself armed, may not be convicted of violation of the felony-firearm statute. He would reverse Adkin’s felony-firearm conviction because Adkins was not himself armed.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 128.
    40Am Jur 2d, Homicide § 33.
    [2] 40 Am Jur 2d, Homicide § 507.
    [3] 5 Am Jur 2d, Appeal and Error §§ 624-627.
    [4] 75 Am Jur 2d, Trial §§ 218, 233.
    [5] 21 Am Jur 2d, Criminal Law §§ 115-123, 127, 128.
    40 Am Jur 2d, Homicide §§ 27-40.

      Opinion of the Court
    1. Criminal Law — Aiding and Abetting — Proofs.
    The conviction of a principal to a crime is not necessary to convict an accessory; however, the prosecution must prove that the crime was committed by someone and that the defendant either committed or aided and abetted the commission of that crime.
    2. Homicide — Aiding and Abetting — Instructions to Jury.
    It was error, in a homicide trial, for the court to instruct the jury that, in order to find one defendant guilty of aiding and abetting a homicide, they must first find the other defendant guilty as a principal where the evidence showed four armed participants in the incident resulting in the killing.
    3. Appeal — Criminal Law — Closing Argument — Failure to Object.
    The absence of objection at trial precludes appellate review of allegedly prejudicial remarks by a prosecutor in closing argument unless the court’s failure to review would result in a miscarriage of justice.
    4. Criminal Law — Prosecutor’s Remarks — Improper Remarks — Response to Defense Counsel.
    A prosecutor’s remarks, even if improper, do not constitute reversible error where made in response to issues raised by defense counsel.
    Partial Concurrence and Partial Dissent by D. E. Holbrook, Jr., P.J.
    5. Criminal Law — Statutes — Felony-Firearm — Personal Liability — Aiders and Abettors.

      An aider and abettor in a homicide, who is not himself armed, may not be convicted of violation of the felony-ñrearm statute (MCL 750.227b; MSA 28.424[2]).

      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 A. George Best, II, Assistants Attorney General, for the people.

      Steven Fishman, for defendant Giombetti on appeal.

      Kenneth Lerner, for defendant Adkins on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   Per Curiam.

Pursuant to a jury trial in Wayne County Circuit Court, Sergio Giombetti was convicted of second-degree murder, MCL 750.317; MSA 28.549, and the possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Giombetti was sentenced to a term of 9 to 20 years on the conviction for second-degree murder, and to a consecutive two-year term for felony firearm. His codefendant, Ward Adkins, was convicted of aiding and abetting a second-degree murder, MCL 767.39, 750.317; MSA 28.979, 28.549. Adkins was also convicted of aiding and abetting in the possession of a firearm during the commission of a felony, MCL 767.39, 750.227b; MSA 28.979, 28.424(2). Adkins was sentenced to a term of 4 to 20 years for aiding and abetting a second-degree murder and to a consecutive two-year term for felony firearm. Both defendants appeal as of right.

The alleged murder of Kenneth Szydick occurred in the early morning hours of July 2, 1977. The decedent, Kenneth Szydick, had earlier in the day been socializing with a group of six or eight friends at Hemlock Park, which is located in the City of Dearborn. Mr. Szydick had brought his Dodge van to the park. Mr. Adkins, who was visibly intoxicated, approached the group and complained that he had been "ripped off” for $1,000. The group did not know Adkins and asked him to leave. Two friends of Adkins named Antonio Curcuru and Sergio Giombetti walked up, apologized for their friend, shook hands, and they all left. Curcuru and Giombetti took Adkins to a bar. Adkins asked for their assistance in recovering his money. The group went to Sam Isabella’s house in order to get guns.

Neither of the defendants testified at the trial. Salvatore (Sam) Isabella testified that he was originally charged with murder but pleaded guilty to manslaughter just before the trial with the understanding that he would testify against the others. Isabella said that at approximately 1 a.m. on the day in question, Giombetti came to his home and asked him to go with them to the park because his friend had been "hit”. Isabella had met Adkins for the first time earlier that day. They took Isabella’s car, and Isabella did the driving. On the way, Giombetti said he would take a gun and refused to be dissuaded. At this point, Curcuru grabbed a gun from beneath the seat where he (Curcuru) had placed it earlier. Upon their arrival at Hemlock Park, Adkins took a chain from the back seat of the car, said "come on” and went up the hill toward the parking lot where decedent’s van was parked, followed by Curcuru and Giombetti. Isabella did not go into the park. His vision was obscured so that he could not see Adkins or Curcuru. He did see Giombetti fire a shot into the air and say "I’ll teach you not to mess with Dearborn people”. Isabella then heard some people from the van say "Let’s go get him”. Giombetti then assumed a "police-like” stance and fired several more shots at the van. The three men ran back to the car, and they drove off.

Curcuru also testified at the trial. He was arrested the day after the alleged shooting but was not formally charged. He testified that Isabella agreed to come along with the group, went into his house to get the guns and put them in the trunk of the car. When they arrived at the park, Isabella pulled out the guns, handing one to Giombetti and one to Adkins. Curcuru immediately took the gun from Adkins because Adkins was "too high”. Isabella then gave Adkins a chain. Adkins, Curcuru and Giombetti headed for the adjacent parking lot, where decedent’s van was located. Several people came toward them from the van, and a black man started pulling something out of a car trunk which looked like a jack. Shots were fired, but Curcuru did not see who did the shooting. They heard a girl screaming and left. Upon returning to the car, Curcuru asked Giombetti why he shot. Giombetti replied "I don’t know”.

Defense counsel moved for a directed verdict of acquittal at the close of the people’s proofs. The motion was denied. The defendants produced no testimony on their own behalf.

On appeal, defendant Giombetti alleges that he was denied a fair trial because of the trial court’s erroneous jury instructions on aiding and abetting. Specifically, the trial court instructed the jury several times that Adkins could not be convicted as an aider and abettor of murder unless Giombetti was found guilty as the principal. This precluded the jury from considering the possibility that either Isabella or Curcuru was the principal, to the detriment of Giombetti. The defendant preserved the issue for appellate review by objecting at trial, but the trial court refused to reinstruct the jury on this point.

It is well-settled that, in order to convict a defendant as an aider and abettor, the principal need not be convicted. However, the existence of a guilty principal is required. People v Mann, 395 Mich 472, 478; 236 NW2d 509 (1975), People v Miniear, 8 Mich App 591, 596-597; 155 NW2d 222 (1967). It must only be shown that the crime was committed by someone and that defendant either committed or aided and abetted the commission of that crime. People v Mann, supra, People v Merriweather, 93 Mich App 529; 287 NW2d 284 (1979).

The standard criminal jury instruction on aiding and abetting, CJI 8:1:03(4), provides only:

"(4) First, the crime charged must have been committed either by the defendant or some other person. [However, it is no defense that there has not been a conviction.]”

However, the trial court herein emphasized that the jury must find Giombetti guilty as the principal and suggested to the jury that, in its order of deliberations, it should consider the guilt of Giombetti prior to its consideration of Adkins. We find that these jury instructions were erroneous, especially since Curcuru admittedly had a gun in his possession and no one was able to identify who did the actual shooting. We cannot say that the instruction was harmless error with respect to Giombetti, since there was no conflict in the testimony regarding the actions of Adkins and the trial court conditioned his conviction on the fact that Giombetti must be convicted. Therefore, we hold that Giombetti is entitled to reversal of his conviction and a new trial.

Both Adkins and Giombetti raise the allegation that the prosecutor’s closing argument warrants reversal because he vouched for the credibility of his witnesses Isabella and Curcuru. In particular, the prosecutor stated several times that Mr. Curcuru had no reason to lie because he had nothing to gain and there was insufficient evidence to charge him in connection with his participation in the crime.

We first note that no objection was made to these remarks during the trial. It is well-settled that the absence of objection at trial precludes appellate review of allegedly prejudicial remarks by a prosecutor in closing argument unless the Court’s failure to review would result in a miscarriage of justice. People v Pacely, 51 Mich App 67; 214 NW2d 561 (1974), People v Baldwin, 74 Mich App 700; 254 NW2d 619 (1977), rev’d on other grounds, 405 Mich 550; 275 NW2d 253 (1979).

In her closing argument on behalf of the defendant Giombetti, defense counsel conjectured that both Isabella and Curcuru had "made a deal” when they agreed to testify against their friends. She referred to Curcuru as "a lucky man” because he had never been charged in the crime and said that Isabella had only agreed to testify during the week between Christmas and New Year "on the advice of his attorneys”. This was a thinly-veiled allegation that the prosecution witnesses were lying.

Where the improper remarks of a prosecutor are made in response to issues previously raised by defense counsel, they do not constitute reversible error. People v Green, 34 Mich App 149, 151; 190 NW2d 686 (1971), People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977). The prosecutor herein was not improperly vouching for his witnesses but responding to the innuendos of defense counsel that his witnesses were fabricating their testimony in exchange for a "deal”. In any event, we do not deem that the remarks of the prosecutor in closing argument constituted a miscarriage of justice, especially because a cautionary instruction would have been sufficient to cure any prejudice.

We have closely examined the other issues raised by the defendants on appeal and find them to be without merit. We would thus affirm the conviction with respect to the defendant Adkins.

Affirmed with respect to Adkins. Reversed and remanded for a new trial with respect to Giombetti.

D. E. Holbrook, Jr., P.J.,

(concurring in part, dissenting in part). I would reverse Adkin’s felony-firearm conviction for the reasons set forth in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978). With the balance of the opinion I agree.


text:
    REPPUHN v ABELL
    Docket Nos. 45647, 45648.
    Submitted March 12, 1980, at Lansing.
    Decided May 6, 1980.
    David Reppuhn (hereinafter plaintiff) initiated a libel action against Roy Abell, Committee to Elect Roy Abell, and Schmitt Publishing Company, Inc. (hereinafter defendants). The parties subsequently filed a stipulation to dismiss "with costs to be taxed against the plaintiff’. Defendants, thereafter, filed a motion to tax costs and actual attorney fees, based on GCR 1963, 111.6, in that plaintiffs suit purportedly contained unwarranted allegations. Saginaw Circuit Court, Joseph R. McDonald, J., ruled that defendants would be entitled to reasonable, as opposed to actual, attorney fees. Plaintiff appeals. Held: Recovery of attorney fees is not permitted where a case has been dismissed prior to trial.
    Reversed.
    Courts — Attorney Fees — Recovery of Fees — Court Rules.
    Recovery of attorney fees is not permitted where a case has been dismissed prior to trial (GCR 1963, 111.6).
    References for Points in Headnotes
    [1] 20 Am Jur 2d, Costs §§ 18, 19.
    24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit §§ 28-30.

      Brisbois & Sturtz (by Philip R. Sturtz), for plaintiff.

      Robert E. Bright, for defendants Abell and Committee to Elect Roy Abell.

      Keith L. Leak, for defendant Schmitt Publishing Company.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ._
   Per Curiam.

The principal issue raised by this appeal is whether GCR 1963, 111.6 allows for the recovery of reasonable attorney fees where an action has been dismissed prior to trial.

This matter resulted from a libel action initiated by plaintiff against defendants. Prior to trial, the parties filed a stipulation to dismiss "with costs to be taxed against the Plaintiff”. In accordance with the stipulation, the court issued an order of dismissal which incorporated the above-quoted language.

Defendants subsequently filed a motion to tax costs and actual attorney fees. Defendants based their request for actual attorney fees on GCR 111.6, in that plaintiff’s suit purportedly contained unwarranted allegations. The lower court ruled that defendants would be entitled to reasonable, as opposed to actual, attorney fees.

Plaintiff contends that the trial judge improperly awarded attorney fees under GCR 111.6.

GCR 111.6 provides as follows:

"Unwarranted Allegations and Denials. If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees.” (Emphasis added.)

We find that the lower court’s reliance on the court rule was misplaced. GCR 111.6 does not apply to a case dismissed prior to trial. This conclusion is clear from the emphasized language above, particularly when read in conjunction with proposed Michigan Court Rule, MCR 2.111(G).

Proposed MCR 2.111(G) replaces the words "at the trial” with "at any time”. The reason for this change is explained by the Committee Comment to MCR 2.111(G), 402A Mich 117, as follows:

"COMMENT: This section expands the use of sanctions previously authorized in this rule and makes them applicable 'at any time’ in an action that the judge finds the spurious allegations or denials were pleaded. The old rule only permitted these sanctions to be assessed if trial of the action was had. If the case was settled or otherwise disposed of before trial, no sanctions were permitted. The committee felt the previous limitation was unwarranted, encouraged false or misleading pleadings, and perpetuated 'fraud’ on the court and the opposing party. See rule 2.114.” (Emphasis added.)

We conclude that present GCR 111.6 does not countenance an award of attorney fees where a case has been dismissed prior to trial.

Notwithstanding our interpretation of the court rule, defendants argue that Russell v Glantz, 57 Mich App 44; 225 NW2d 191 (1974), lv den 394 Mich 781 (1975), provides support for the pretrial awarding of attorney fees pursuant to GCR 111.6.

Glantz involved a dispute between an attorney and a court reporter regarding an alleged exorbitant stenographic fee. The attorney failed to appear at a hearing on his motion for reimbursement and the reporter was awarded attorney fees pursuant to GCR 111.6.

We believe that Glantz is distinguishable. The hearing, on the motion, in the instant case was the only type of "trial” which could have conceivably been held. In any event, to the extent that Glantz can be read to sanction the pretrial award of attorney fees under GCR 111.6, we decline to follow it.

Defendants next argue that the stipulation executed by the parties which contained the phrase "with costs to be taxed against Plaintiff’ allows for the recovery of actual attorney fees. We disagree.

The above language does not constitute a clearly discernible intention by plaintiff to pay defendants’ actual attorney fees.

The word "costs” as used in this state seldom includes actual attorney fees. See MLP, Costs, § 54. Since the use of the word in the stipulation and order of dismissal should be construed in its most normal and accepted meaning, it would be stretching the word to engraft into it the concept of actual attorney fees. If the parties had intended that meaning, then the language in the stipulation and order of dismissal would presumably have been phrased as "costs and reasonable attorney fees”, rather than simply "costs”.

We conclude that defendants’ argument lacks merit. Defendant is entitled only to those costs which are expressly authorized by statute or court rule.

Reversed. Costs to

       In this respect, it is interesting to note that the motion by-defendant Abell and the Committee filed on August 18, 1978 was denominated "MOTION TO TAX COSTS AND ACTUAL ATTORNEY FEES”. Similarly, the bill filed by defendant Schmitt on August 18 was denominated "TAXED BILL OF COSTS OF DEFENDANT SCHMITT PUBLISHING CO., INC. ATTORNEY FEES”.


text:
    PEOPLE v WRIGHT
    Docket No. 46738.
    Submitted March 10, 1980, at Lansing.
    Decided May 6, 1980.
    John N. Wright (hereinafter defendant) was originally charged with carrying a concealed weapon. Pursuant to a plea bargain, defendant, on his plea of guilty, was convicted of attempted carrying of a concealed weapon, Ingham Circuit Court, Jack W. Warren, J. Defendant appeals. Held:

    1. A defendant charged with violating the Michigan concealed weapons statute, who claims an exception or exemption under the statute, must prove that his behavior falls within an exemption or exception to the statute.
    2. Detention, itself, is not so inherently coercive that it will render a guilty plea invalid.
    3. A trial court’s finding on the voluntariness of a guilty plea will not be overturned unless it is clearly erroneous.
    Affirmed.
    1. Criminal Law — Statutes — Concealed Weapons — Exception or Exemption.
    A defendant charged with violating the Michigan concealed weapons statute, who claims an exception or exemption under the statute, must prove that his behavior falls within an exemption or exception to the statute (MCL 776.20; MSA 28.1274[1]).
    2. Criminal Law — Detention — Guilty Plea — Invalidity.
    Detention, itself, is not so inherently coercive that it will render a guilty plea invalid.
    3. Criminal Law — Guilty Plea — Voluntariness — Appellate Review.
    A trial court’s finding on the voluntariness of a guilty plea will not be overturned unless it is clearly erroneous.
    References for Points in Headnotes
    [1] 79 Am Jur 2d, Weapons and Firearms § 14.
    [2] 21 Am Jur 2d, Criminal Law § 485 et seq.

    [3] 5 Am Jur 2d, Appeal and Error §§ 818, 819.

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

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Mackenzie, P.J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Defendant was originally charged with carrying a concealed weapon, contrary to MCL 750.227; MSA 28.424. On April 25, 1979, he pled guilty to attempted carrying of a concealed weapon, contrary to MCL 750.92; MSA 28.287; MCL 750.227; MSA 28.424. He was sentenced to 60 days in jail according to a sentence agreement, with credit for 66 days already served. Defendant now appeals as of right.

Defendant first claims that he was improperly charged and convicted under the concealed weapon statute because he was carrying a hunting knife excepted under that statute. We will review this claim since it pertains to the prosecution’s entitlement to bring the instant litigation. See People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729 (1976).

The pertinent statute, MCL 750.227; MSA 28.424 provides:

"A person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and a person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to carry the pistol as provided by law, or if licensed, carrying in a place or manner inconsistent with any restrictions upon such license, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than $2,500.00.” (Emphasis added.)

The statute’s purpose is to prevent quarrelling or criminal persons from suddenly drawing hidden weapons without notice to other persons. People v Kincade, 61 Mich App 498, 502; 233 NW2d 54 (1975).

An exception was carved out from this law for hunting knives "adapted and carried as such” where the purpose of carrying a weapon is to go hunting, not to surprise unwary victims. The defendant claims that his carrying of a hunting knife fell within this exception.

Michigan law requires that the defendant prove any exemption or exception to the statute, MCL 776.20; MSA 28.1274(1), i.e., that he had a license to carry the weapon, People v Henderson, 45 Mich App 511; 206 NW2d 771 (1973), People v Hooper, 36 Mich App 123; 193 NW2d 203 (1971), People v Gilleylen, 31 Mich App 416; 188 NW2d 131 (1971), or that he possessed it in his home or business, People v Gatt, 77 Mich App 310; 258 NW2d 212 (1977), People v Jiminez, 27 Mich App 633; 183 NW2d 853 (1970), People v Clark, 21 Mich App 712; 176 NW2d 427 (1970). We believe that the burden similarly rests on the defendant to prove that his hunting knife was "adapted and carried as such”. After reviewing all the evidence adduced below, we must conclude that defendant has not met this burden.

At the time of the offense, the instant defendant was carrying a sheathed knife on his belt under his coat. He was not wearing hunting clothes, nor was it the hunting season. Unlike the defendant who was arrested in People v Iverson, 34 Mich App 519; 191 NW2d 745 (1971), defendant was not in hunting country, (there, the Ontonagon .area of Michigan’s upper peninsula) but was in Lansing City Hall. The facts do not firmly establish that defendant’s hunting knife was "adapted and carried as such” despite defendant’s assertion that he was carrying it merely to have it repaired.

It is the possibility of drawing weapons, not the actual occurrence, that the concealed weapons statute seeks to prevent. In light of defendant’s heated arguments with city workers prior to arrest, it was not irrational for the trial judge to conclude that defendant’s possession fell within the intent of the statute.

Defendant also contends that his guilty plea was involuntary because he was incarcerated at the time of pleading, and only pled guilty to get out of jail.

Detention, itself, has never been recognized as so inherently coercive that it will render a guilty plea invalid. See People v Sumlin, 32 Mich App 1, 3; 188 NW2d 144 (1971), People v Steele, 4 Mich App 352, 358; 144 NW2d 834 (1966). Pleading merely to avoid an extended incarceration does not make a plea involuntary. See People v Grades, 35 Mich App 383, 384; 192 NW2d 655 (1971).

"All plea bargains involve some consideration passing from the prosecution to the defendant in order to induce the defendant to waive a full trial. Almost all defendants who enter guilty pleas do so because they expect to be treated more leniently if they plead guilty. If they had nothing to gain by pleading guilty and nothing to lose by going to trial, most of those defendants would choose the trial in the hope that they might somehow be acquitted. The fact that they would not plead guilty were it not for a promise or expectation of leniency does not render their pleas involuntary. People v Kindell, 17 Mich App 22; 168 NW2d 909 (1969), People v Guest, 47 Mich App 500; 209 NW2d 601 (1973).” People v Baines, 83 Mich App 570, 573; 269 NW2d 228 (1978).

A lower court’s finding on the voluntariness of a plea will not be overturned unless it is clearly erroneous. People v Belanger, 73 Mich App 438, 451; 252 NW2d 472 (1977). In the instant case, defendant’s plea agreement provided not only for an early release, but for dismissal of the substantive concealed weapon charge and an unrelated simple larceny charge. The defendant stated on the record that he was voluntarily entering into this plea agreement. After reviewing the entire record, we are in accord with the lower court’s conclusion that defendant’s plea was freely, voluntarily, and understandingly made as required by GCR 1963, 785.7.

Affirmed.