author: T. M. Burns, J. D. F. Walsh, P.J.

text:
    PEOPLE v BURDEN PEOPLE v JONES
    Docket Nos. 78-4440, 78-4441.
    Submitted May 9, 1979, at Marquette.—
    Decided December 6, 1979.
    Leave to appeal applied for.
    Patrick C. Burden and Joyce Jones were each charged with two counts of delivery of a controlled substance. Prior to trial, the defendants moved to exclude the testimony of the prosecution’s main witness, Airman Michael Hall, a member of the United States Air Force. The Marquette Circuit Court, John E. McDonald, J., determined that the use of Airman Hall in investigating and obtaining evidence against the defendants was a direct violation of the Federal Posse Comitatus Act, which prohibits the use of military personnel as agents for the enforcement of civil law, and ordered that Airman Hall’s testimony be excluded. The prosecution appeals by leave granted. Held:

    The state police used Airman Hall, a member of the military, to assist them in the execution of the law of the state, which was a violation of the act. Since the act is a Federal act, the Court of Appeals is bound by Federal policy when interpreting it. The only real sanction for violation of the act is to exclude evidence discovered by its violation. The trial court did not err in holding that Airman Hall could not testify at the defendant’s trial.
    Affirmed.
    D. F. Walsh, P.J., dissented. He would hold that since Airman Hall was acting in an unofficial and individual capacity and not as a member of the Air Force when he assisted the Michigan State Police in their investigation of drug trafficking in Marquette County there was no violation of the Posse Comitatus Act and that there was no basis for the exclusion of Airman Hall’s testimony.

      References for Points in Headnotes

       70 Am Jur 2d, Sheriffs, Police, and Constables § 30.

       29 Am Jur 2d, Evidence § 415.
    Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.
    "Fruit of the poisonous tree” doctrine excluding evidence derived from information gained in illegal search. 43 ALR3d 385.

      He would reverse the order excluding Airman Hall’s testimony from the defendants’ trial.
    Opinion of the Court
    1. Sheriffs and Constables — Posse Comitatus Act — Criminal Law — Military Personnel — Statutes.
    The Posse Comitatus Act prohibits the use of military personnel for enforcing local laws; the subjugation of civilians to military power would violate the act and so would the use of military personnel as undercover agents for civilian authorities; as long as the victim is subjected to civilian power or authority by the use of military personnel, the act is violated, and it matters not whether the victim even knows that the undercover agent is in the military (18 USC 1385).
    2. Evidence — Posse Comitatus Act — Criminal Law — Exclusion — Statutes.
    Michigan courts have declined to adopt suppression of evidence as a remedy for unlawful police conduct involving situations involving violations of Michigan statutes; however, the Posse Comitatus Act is a Federal statute and Michigan courts are bound by Federal policy when interpreting it and since there are no cases involving the act in which violators of it were prosecuted, the only real sanction remaining to dissuade persons who would violate its provisions is the sanction of an exclusionary rule and the exclusion of any evidence obtained by a member of the military while acting as an agent for the civilian police (18 USC 1385).
    Dissent by D. F. Walsh, P.J.
    3. Sheriffs and Constables — Posse Comitatus Act — Criminal Law — Military Personnel — Statutes.

      The Posse Comitatus Act’s prohibition on the execution of laws by use of "any part of the Army or the Air Force” does not apply to military personnel performing in purely unofficial and individual capacities (18 USC 1385).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Thomas L. Solka, Assistant Prosecuting Attorney, for the people.

      Rush M. Shortley, for defendants.
    Before: D. F. Walsh, P.J., and Bronson and T. M. Burns, JJ.
   T. M. Burns, J.

The facts of this case have been set forth adequately in the dissent of Judge Walsh. There is no question but that Airman Michael Hall, a member of the United States Air Force, agreed to assist the Michigan State Police in their investigation of drug trafficking in Marquette County. He agreed to do this after meeting with two members of the State Police in an office of an Air Force special agent. His participation in the drug investigation was approved by the Air Force base commander and, in return for his services, Airman Hall not only had criminal charges pending against him by the civilian authorities dropped, but was also told that his assistance would have a bearing on a decision of the Air Force whether to treat him as a "high risk” with regard to separate Federal drug charges. It was also understood that after completion of the investigation Airman Hall would be transferred to a new base where he would continue to assist the Air Force Office of Special Investigation.

The Posse Comitatus Act, 18 USC 1385, provides:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

We agree with the conclusion of the lower court that the use of Airman Hall in the investigation of this crime was a direct violation of the act and that his trial testimony therefore should be excluded.

The intent of Congress in promulgating this act was explained by a United States District Court of New York in Wrynn v United States, 200 F Supp 457, 464-465 (ED NY, 1961):

"The legislative history leaves little doubt that the statute is indeed meant 'to preclude the Army [or Air Force] from assisting local law enforcement officers in carrying out their duties’ (Gillars v United States, 1950, 87 U.S. App. D.C. 16, 182 F. 2d 962, 972. Compare Chandler v United States, 1st Cir., 1949, 171 F.2d 921, 936). The view had been taken by Attorney General Caleb Cushing in 1854 that under Section 27 of the Judiciary Act of 1789, United States Marshals, like Sheriffs, could raise a posse comitatus comprising every person in the district above fifteen years of age 'whatever may be their occupation, whether civilian or not * * * including the military of all denominations, militia, soldiers, marines, all of whom are alike bound to obey the commands of a Sheriff or Marshall.’ 1854, 6 Op.A.G. 466, 471, 473. As Cushing saw it, 'The fact that they are organized as military bodies, under the immediate command of their own officers, does not in any wise affect their legal character. They are still the posse comitatus.’ 6 Op.A.G. 466, 473. Attorney General Charles Devens in 1878 took the same view of the law as it had been before the passage earlier in the same year, of Section 15 of the 1878 Act [the original version of the Posse Comitatus Act], and he stated that the practice had been to permit the military to be used in subordination to the marshals when such aid was needed to enforce process and he considered the practice to be sanctioned both by custom and by opinions of earlier Attorneys General (1878, 16 Op.A.G. 162, 163).
"When Section 15 was debated in the Senate the validity of Cushing’s opinion was questioned by Senator Sargent & 7 Cong. Rec. 4247). Mr. Knott, who introduced the Section as an amendment to the Appropriation Bill, assumed only the existence and not the legitimacy of the practice (7 Cong. Rec. 3849) and argued the importance of stopping such uses of the military, under adequate punitive sanctions except where the Congress had expressly authorized the use (7 Cong. Rec. 3846-3847). He envisaged the penalty he proposed as applying to everyone, from the Commander in Chief to the lowest officer, who presumed to take upon himself to decide when he would use the military force in violation of the law of the land (7 Cong. Rec. 3847, 3851) and visualized the statute as forbidding every employment of the Army or any part of it in aid of civil law enforcement unless under explicit statutory authorization (7 Cong. Rec. 3849). See, e.g., 10 U.S.C.A. § 331-334 (Presidential powers). The Senate amended the bill by adding the reference to express Constitutional authorization and by deleting so much of the House Bill’s language as referred to use of the military 'under the pretext’ of executing the laws (7 Cong. Rec. 4240). The senate debate indicated a sense that the section was not limited by the expression 'as a posse comitatus or otherwise’ but was to operate as if the prohibition ran— simpliciter — against the use of the Army to execute the laws, without reference to whether employed as a posse comitatus or as a portion of the Army (7 Cong. Rec. 4241, 4245).”

As is evident, the Posse Comitatus Act was designed to prohibit the use of military personnel as agents for the enforcement of civil law.

The plaintiff in Wrynn was injured when an Air Force helicopter attempting to land struck a small tree and sent splinters of wood into the plaintiff’s left leg. At the time of the accident, the helicopter was assisting local law enforcement officials in their effort to apprehend two prisoners who had escaped from the county penal farm. Plaintiff brought an action in negligence but a judgment of no cause of action was entered for several reasons, one of which was that plaintiff was precluded from recovering against the United States by the provisions of the Posse Comitatus Act which made use of the helicopter unauthorized at the time of the accident:

"Given the statute and its continuing vitality, the use of the helicopter and its personnel here to aid in executing the laws of New York was a forbidden use. It could not have been authorized on behalf of the United States by any action short of a Congressional enactment. There could be no Air Force undertaking or enterprise in the premises to which its personnel or equipment could be lawfully assigned and, in consequence, the absence of any defect in formal orders, the absence of any element of self interest on the part of the officers and the presence of an obvious public safety objective are irrelevant. They cannot bring the case within the narrow area in which agents of the government can be found to be acting within the scope of their employment although beyond their actual authority * * * because there was here no activity that could be authorized, no legally cognizable 'scope of employment’ to which the questioned conduct could be related.” Id, at 465.

We believe that Wrynn controls our disposition of this case. Here, as in Wrynn, Air Force commanding officers authorized the use of Air Force personnel for local civilian law enforcement purposes. The fact that Wrynn also involved the use of a helicopter is irrelevant because the Posse Comitatus Act does not forbid the use of military material by civilian police authorities. United States v Red Feather, 392 F Supp 916 (SD, 1975). In the instant case, as in Wrynn, the Air Force personnel involved received some form of military compensation for their activity. Although the compensation received by Airman Hall in this case was not monetary, it was sufficient to make the Air Force a willing participant in Airman Hall’s undercover assistance to the State Police.

Although we recognize that if we were to use the standard stated in United States v McArthur, 419 F Supp 186, 194 (ND, 1976), aff'd 541 F2d 1275 (CA 8, 1976), cert den sub nom Casper v United States, 430 US 970; 97 S Ct 1654; 52 L Ed 2d 362 (1977), we would not be required to find a violation of the Posse Comitatus Act in this case, we decline to follow that test. The McArthur, court stated the question before it as whether military personnel were used by civilian law enforcement authorities "in such manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively”.

There is nothing in the language of the Posse Comitatus Act that authorizes such an interpretation of it or requires that citizens be subjected "to the exercise of military power which was regulatory, proscriptive, or compulsory .in nature” in order for it to be violated. The act merely states that military personnel may not be used to enforce local laws. Although it is clear that the subjugation of civilians to military power would violate the act, so does the use of military personnel as undercover agents for civilian authorities. It matters not whether the victim even knows that the undercover agent is in the military. As long as the victim is subjected to civilian power or authority by the use of military personnel, the act is violated. State v Danko, 219 Kan 490; 548 P2d 819 (1976). To the extent that some cases would require a showing that military personnel assumed a greater authority than that permitted civilians in order for the act to have been violated, those cases were wrongly decided.

Appellant argues that, even if the Posse Comitatus Act were violated, Airman Hall’s testimony should not be excluded at trial because the exclusionary rule does not apply to violation of statutes but is limited to violations of the constitution.

Although Michigan courts, cognizant of the policy expressed in Const 1963, art 1, § 11, have declined to adopt suppression of the evidence as a remedy for unlawful police conduct in situations involving violations of Michigan statutes, see, People v Livingston, 64 Mich App 247; 236 NW2d 63 (1975), the Posse Comitatus Act is a Federal statute and we are bound by the Federal policy when interpreting it. In Lee v Florida, 392 US 378, 385-387; 88 S Ct 2096; 20 L Ed 2d 1166 (1968), the United States Supreme Court held that a violation of the Federal Communications Act required mandatory exclusion of the illegal evidence obtained where this remedy was the only effective way of removing the incentive to disregard the act. Our investigation of the Posse Comitatus Act has failed to uncover any case in which violators of it were prosecuted. Thus, the only real sanction remaining to dissuade persons who would violate its provisions is the sanction of an exclusionary rule. Therefore, we hold that the lower court did not err when it held that Airman Hall could not testify at the defendants’ trials.

Affirmed.

Bronson, J., concurred.

D. F. Walsh, P.J.

(dissenting). Defendants were each charged with two counts of delivery of a controlled substance, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). Prior to trial they moved to exclude the testimony of the prosecution’s main witness, Michael Hall. The trial court granted the motion and plaintiff appeals.

In the summer of 1977, Michael Hall, a member of the United States Air Force stationed at K. I. Sawyer Air Force Base in Marquette County, Michigan, was summoned to the office of a special agent of the Office of Special Investigation (ÓSI) of the Air Force. There he was confronted by Special Agent Kenneth Parker and two members of the Michigan State Police, Detective Sergeant August Moratti and Trooper David Cope. The state police officers showed Hall a warrant for his arrest, by civilian authorities, on charges of delivery of marijuana. (The record also suggests that Hall was accused by the Air Force of the sale of a controlled substance.) The police officers offered Hall an opportunity to work with them in attempting to find the source of contraband drugs in the Marquette County area. He was also to work with the OSI in this endeavor. Hall was led to believe that, in exchange for his cooperation, he would receive more favorable treatment in connection with the drug charges lodged against him.

On July 26, 1977, Hall reported to the Michigan State Police Post at Negaunee, Michigan. He and his vehicle were searched. He was given three marked $20 bills. Dressed in civilian clothes, he proceeded to an off-base location, the site of a trailer occupied by defendant Patrick C. Burden and Burden’s friend, defendant Joyce Jones. He testified at defendants’ preliminary examinations that he entered, the trailer and purchased various drugs from defendants. According to Hall, he and defendant Burden had been partners in a drug sales operation earlier in 1977. Defendant Burden was at the time of the alleged sale of drugs a member of the Air Force stationed at Sawyer Air Force Base. Defendant Jones is a civilian.

Defendants’ motions to exclude Hall’s testimony were predicated on the alleged violation of the Posse Comitatus Act, 18 USC 1385, which provides:

"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

In a careful and scholarly opinion the trial judge examined the cases which have dealt with the interpretation and application of the Posse Comitatus Act. He concluded that the use of Airman Hall, in investigating and obtaining evidence against defendants, was a direct violation of the act. The court also ruled that violation of the statute necessitated exclusion of Hall’s testimony from defendants’ trials.

The enactment of the Posse Comitatus Act in 1878 was primarily the result of southern outrage at the use of Federal troops in the South following the civil war. With the end of armed hostility between the North and South came a period of political domination by Northerners of their fellow citizens in the South. Large numbers of Federal troops were extensively used in the South to enforce the law and to support the new carpetbag governments. The Reconstruction Act of 1867 implemented Congressional belief that military rule was necessary in the southern states. It was the "outrageous meddling” of Federal troops in the 1876 presidential elections in the South which precipitated the proposal and passage of the act. The following remark made during Senate discussion of the proposed posse comitatus legislation is illustrative of the concern which underlay its introduction and ultimate passage:

"It would be an entire overthrow, it seems to me, of a fundamental principle of the laws of this country, of all our traditions, to say that the Army at the instance of the law officer, through a marshal or a deputy, special or general, of election, may call a body of the Army as a posse comitatus and order it about the polls of an election. We all know that that might be used for an entire overthrow of the rights of citizens at the polls.” 7 Congr Rec 4240 (1878) (remarks of Senator Kernan).

The principle reflected in the Posse Comitatus Act is one which is firmly and deeply rooted in the American constitutional system. The seeds of "the inherited antipathy of the American people to the use of troops for civil purposes”, Sparks, National Development 1877-1885, p 127, Vol. 23, The American Nation, A History, cited in Wrynn v United States, 200 F Supp 457, 465 (ED NY, 1961), were identified in 1776:

"The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object, the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.
"He has kept among us, in times of peace, standing armies without the consent of our legislatures.
"He has affected to render the military independent of, and superior to, the civil power.
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation.
"For quartering large bodies of armed troops among us;
"For protecting them, by a mock trial, from punishment for any murders which they should commit on the inhabitants of these states.” Declaration of Independence.

Delegates to the original constitutional convention debated the need for a standing army. Concern was expressed over insuring civilian control over the military. Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of the Posse Comitatus Act, 70 Mil LR 83, 86-87 (1975). See US Const, art 1, § 8, clauses 12-14; US Const, Am III; Laird v Tatum, 408 US 1, 15-16; 92 S Ct 2318; 33 L Ed 2d 154 (1972).

I share with the trial judge the firm conviction that this fundamental tenet of our system of law— noninterference by the military in civilian affairs —is to be jealously guarded. The Posse Comitatus Act arose in a particular historical and political context but it is "not an anachronistic relic of an historical period the experience of which is irrelevant to the present”. Wrynn v United States, supra, at 465. It embodies the very important, pervasive, and continuing American preoccupation with assurance of the separation of civilian and military spheres of authority and the aversion to intrusion of the military into civilian matters.

Nevertheless, although I must commend the trial judge for his thoughtful and comprehensive discussion of the applicability of the Posse Comitatus Act, I find myself in disagreement with his resolution of the issue under the facts in this case.

The act prohibits execution of laws by use of "any part of the Army or the Air Force”. The remarks of certain senator who participated in the debate which preceded passage of the act give some indication of the intent of Congress in using this phrase.

"If a soldier sees a man assaulting me with a view to take my life, he is not going to stand by and see him do it, he comes to my relief not as a soldier, but as a human being, a man with a soul in his body, and as a citizen * * *. The soldier standing by would have inters posed if he had been a man, but not as a soldier. He could not have gone down in pursuance of the order of his colonel or captain, but he would have done it as a man.” 7 Congr Rec 4245 (1878) (remarks of Senator Merrimon).
"Of course there are occasions in all countries where under the laws it is the duty of every man to save life, to save property, to suppress crime. I care not whether he is a soldier or whether he is a citizen, whether a man or a woman * * *. But that is not the question involved here. * * * the point is in their character as an army.” 7 Congr Rec 4247 (1878). (Remarks of Senator Hill.) (Emphasis added.)

The few commentators who have discussed the Posse Comitatus Act agree that it does not apply to military personnel performing in purely unofficial and individual capacities. Meeks, supra, at 126. The act "reaches the single soldier acting under color of authority”. Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Amer Crim LR 703, 721, fn 102 (1976). (Emphasis added.) Soldiers, however, do not lose their status as citizens, together with all privileges and duties involved in citizenship, by virtue of assuming military status. Id.

In three cases involving the use of soldiers from Fort Sill as undercover agents in the purchase of drugs, the Oklahoma Court of Criminal Appeals found no violation of the act. Hubert v State, 504 P2d 1245 (Okla Crim, 1972), Hildebrandt v State, 507 P2d 1323 (Okla Crim, 1973), Lee v State, 513 P2d 125 (Okla Crim, 1973), cert den 415 US 932; 94 S Ct 1445; 39 L Ed 2d 490 (1973). In each case, the court concluded that the undercover agents had assumed no greater authority than that of private citizens in purchasing the drugs. See, for example, Lee v State, supra, at 126, where the court observed that the agent had not attempted to assert any military authority over the defendant.

Without expressing an opinion as to the result reached in the Oklahoma cases, I nonetheless agree with the underlying premise that, when military personnel involve themselves in an activity which is unconnected to their military status but which involves only their status as private citizens, the Posse Comitatus Act does not apply.

Several cases involving the Posse Comitatus Act arose out of the so-called native American uprising in Wounded Knee, South Dakota, a village on the Pine Ridge Indian Reservation. Among those was United States v McArthur, 419 F Supp 186, 194 (ND, 1976), aff'd 541 F2d 1275 (CA 8, 1976), cert den sub nom Casper v United States, 430 US 970; 97 S Ct 1654; 52 L Ed 2d 362 (1977), where the Federal district court stated the issue to be: Whether "Army or Air Force personnel [were] used by the civilian law enforcement officers at Wounded Knee in such manner that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, or compulsory in nature, either presently or prospectively”. (Emphasis added.)

While McArthur and the other Wounded Knee cases are distinguishable from the case at bar on their facts it is significant to note here the emphasis which the South Dakota Federal District Court placed on the necessity of demonstrating an exercise of military authority by those members of the military used to execute civilian laws if a violation of the Posse Comitatus Act was to be proven.

I find no violation of the act in this case. In cooperating with and assisting the civilian police agency, Hall was not acting as a member of the military. He was acting only as a civilian. His military status was merely incidental to and not essential to his involvement with the civilian authorities. He was not in military uniform. He was not acting under military orders. He did not exercise either explicitly or implicitly any military authority. Moreover, Hall was not a regular law enforcement agent of the military (see footnote 6, supra), nor does the record suggest that Hall’s usefulness to civilian authorities was in any way enhanced by virtue of his being a military man. As we read the record, the assistance rendered by Hall was in no way different from the cooperation which would have been given by a private citizen offered the same opportunity to avoid criminal prosecution. To paraphrase Senator Hill, Hall’s character as "part of the Army or the Air Force” was irrelevant to the assistance he rendered to the civilian authorities.

I would reverse the order excluding Hall’s testimony from defendants’ trials.

        Lee v State, 513 P2d 125 (Okla Crim, 1973), cert den 415 US 932; 94 S Ct 1445; 39 L Ed 2d 490 (1974), Hildebrandt v State, 507 P2d 1323 (Okla Crim, 1973), Hubert v State, 504 P2d 1245 (Okla Crim, 1972).

       The record is not entirely clear as to how Hall’s cooperation would affect handling by the authorities of the drug charges against him. There is an indication that he was to be given immunity from prosecution by the local authorities and that he would not be considered a "High Risk” at that time for Air Force purposes.

       Posse comitatus is defined as follows:
      "The power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting felons, etc. 1 Bl. Comm. 343; Com. v Martin, 7 Pa. Dist. R. 224.” Black’s Law Dictionary (4th ed).
      Michigan recognizes this common-law power inherent in the office of sheriff and has extended it to deputy sheriffs, coroners and constables. MCL 600.584-600.585; MSA 27A.584-27A.585, MCL 764.16(c); MSA 28.875(c).

       Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act, 7 Mil L Rev 85, 94-95 (1960). More detailed discussions of the events surrounding proposal and'passage of the Posse Comitatus Act can be found in Meeks, Illegal Law Enforcement: Aiding Civil Authorities in Violation of The Posse Comitatus Act, 70 Mil L Rev 83, 86-92 (1975), and Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Amer Crim L Rev 703, 704-707 (1976).

      I emphasize that our present discussion of the issue is strictly limited to the facts before me. In addition, I treat only one element of the offense described in the Posse Comitatus Act and express no opinion as to the possibility of defenses based on the remaining elements. Under appropriate circumstances, for example, the "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress” language may be successfully invoked.

       The original version of the act, which was part of an Army-appropriation bill, referred only to the Army. Reference to the Air Force as a separate entity was added in 1956. See United States v Walden, 490 F2d 372, 375, fn 5 (CA 4, 1974).

       These three Oklahoma cases have been criticized, one commentator noting that the undercover agents were Criminal Investigation Division agents who were merely engaging in their primary military occupation as criminal investigators and routinely and systematically aiding civilian law enforcement officials. Meeks, supra, at 112-113. For futher criticism, see 13 Amer Crim L R, supra, at 720-723.

       The other Wounded Knee cases are United States v Jaramillo, 380 F Supp 1375 Neb, 1974), app dis’d 510 F2d 808 (CA 8, 1975), United States v Banks, 383 F Supp 368 (SD, 1974) app dis’d 513 F2d 1329 (CA 8, 1975), United States v Red Feather, 392 F Supp 916 (SD, 1975).


source: Caselaw Access Project

author: E. F. Oppliger, J.

license: Public Domain

text:
    VINK v BEARDSLEY
    Docket No. 78-5401.
    Submitted June 14, 1979, at Grand Rapids.—
    Decided December 6, 1979.
    Plaintiff, Kirt Vink, was injured when he stuck his hand into the moving fan blades of a Toro leaf blower. The blower was owned by the estate of Raymond Beardsley, for whom plaintiff was working. Plaintiff sued Virginia Beardsley, Paul Beardsley, executor of the estate of Raymond Beardsley and Toro Manufacturing Company for damages in the Ottawa Circuit Court. Prior to trial the court, Calvin L. Bosman, J., granted summary judgments of dismissal in favor of the Beardsleys. At trial, plaintiff’s theories of recovery against the manufacturer were negligent design and failure to warn, and plaintiff testified that there were no warning labels on the machine at the time of the accident. Kenneth Hasenback, Manager of Technical Services for the Outdoor Power Equipment Division of Toro, testified on cross-examination that warning labels are affixed to the leaf blower at two locations during manufacture and that he had reason to believe that there were warning labels on the machine when it left the manufacturer. He testified on direct examination that, based upon his earlier examination of photographs of the leaf blower involved and his in-court examination of the leaf-blower itself, it was his opinion that the warning labels had been forcibly removed by intentional tampering, scouring and paint removal. The jury returned a verdict of no cause of of action. Plaintiff appeals. Held:

    The plaintiff argued that the trial court erred in allowing expert opinion testimony on a question of fact which required no explanation by an expert. Evidence is generally admissible if it is relevant, i.e., if it has the tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. The evidence was relevant because it tended to make more probable the defense contention that the defendant did attempt to warn users of foreseeable hazards and that the warning labels were tampered with. The testimony was not expert testimony because the witness was not an expert in label removal. The testimony was merely the opinion of a lay witness, which, to be admissible, must be rationally based on the perception of the witness and must be helpful to a clear understanding of his testimony or the determination of a fact in issue. The witness’s testimony was proper even though it expressed an opinion on an ultimate issue of fact.

      References for Points in Headnotes

       31 Am Jur 2d, Expert and Opinion Evidence § 26.

       31 Am Jur 2d, Expert and Opinion Evidence § 24.

      Affirmed.
    1. Witnesses — Evidence — Expert Testimony — Rules of Evidence.
    A witness qualified as an expert by virtue of knowledge, skill, experience, training or education may testify to scientific, technical or other specialized knowledge which will assist the trier of fact to understand the evidence or to determine a fact in issue (MRE 702).
    2. Witnesses — Evidence — Opinion Evidence — Rules of Evidence.
    A witness not testifying as an expert may testify in the form of opinions and inferences, even expressing opinions on ultimate facts in issue, where his testimony is rationally based on his perception and is helpful to a clear understanding of his testimony or the determination of a fact in issue (MRE 701, 704).

      James W. Bussard, for plaintiff.

      Frank A. Sweet, for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

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

   E. F. Oppliger, J.

Plaintiff brought suit to recover damages for personal injury against defendant Toro Manufacturing Co. (hereafter Toro) on the theory of negligent design of a gasoline motor driven leaf blower and failure to adequately warn of inherent dangers. In the trial of this matter the jury returned a verdict of no cause of action. A judgment of no cause was entered, followed by an opinion and order denying plaintiffs motion for a new trial. Plaintiff appeals the denial of a new trial, contending that defendant’s witness was improperly allowed by the trial court to render expert opinion testimony on a question of fact which required no explanation by an expert. We affirm.

The resolution of this appeal involves consideration of the New Michigan Rules of Evidence (effective March 1, 1978) governing expert and lay opinion testimony and opinion testimony which embraces an ultimate issue. For a clear understanding of the issues, the facts underlying this appeal are set forth below.

Plaintiff maintained the grounds of the Beardsley estate and was provided the use of the Beardsley’s "Toro Lawnsweeper” leaf blower in order to pick up fallen leaves. Defendant Toro manufactured the leaf blower, which was purchased by plaintiffs employer, the Beardsleys, and was used exclusively by the plaintiff for yard work on the owner’s premises for approximately two seasons before the accident. This machine has a vacuum attachment, which plaintiff had never used prior to the day of the accident.

On November 20, 1976, while in the process of blowing leaves, plaintiff decided to utilize the vacuum attachment. As plaintiff began the assembly of the vacuum hose and attachment brackets, he did not shut the machine off. Plaintiff removed the intake guard which protects the user from the main impeller or fan blades. While moving to attach the hose, plaintiff’s right hand was severely injured by the fan blades.

On October 12, 1977, plaintiff filed a complaint against defendants Beardsley and defendant Toro, seeking damages for injuries to his hand sustained as a result of his operation and/or mechanical adjustment of the leaf blower. Prior to trial, the trial court entered summary judgments of dismissal in favor of Mr. and Mrs. Beardsley.

At trial, plaintiff sought recovery from Toro on the theory of negligent design and failure to warn. Toro defended on the basis of the integrity and quality of its design, and the adequacy of the warning labels which are customarily attached during manufacture. Plaintiff testified that there were no warning labels present on the subject machine at any time.

Kenneth Hasenbank, Manager of Technical Services for the Outdoor Power Equipment Division of Toro, whose responsibilities included managing the design of the subject machine, was first called for cross-examination during plaintiffs case in chief. He testified that warning labels are affixed to this type machine at two locations during manufacture and that he had reason to believe that such labels were on the subject machine when it left the factory.

Originals of the warning labels ordinarily used by Toro were introduced into evidence among defendant’s trial exhibits. The warning normally affixed to the fan housing read:

"CAUTION stop engine before removing blower intake or blower discharge”.

Plaintiff did not stop the subject machine when he was removing the blower intake guard.

Mr. Hasenbank was called for Toro’s defense, and, over the repeated objection of plaintiffs counsel, gave testimony the admission of which plaintiff contends was reversible error. Hasenbank testified that, based upon his earlier examination of photographs of the subject machine and his in-court examination of the subject machine itself, it was his opinion that the warning labels had been forcibly removed by intentional tampering, scouring and paint removal. He also testified that remnants of the discharge chute warning label were visible in the photograph and on the subject machine. Plaintiff argues on appeal that the trial court erred in admitting expert opinion testimony on a question of fact which required no explanation by an expert.

The first test for the admission of evidence is relevance. Relevant evidence is defined by MRE 401 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 402 provides that relevant evidence is generally admissible.

. Plaintiff’s case in chief had introduced direct evidence, through Hasenbank, of Toro’s quality control inspection procedures including the attachment and content of warning labels. On direct examination in the defendant’s case Hasenbank testified, over objection, to the apparent removal of the labels. This testimony was the single source of authoritative evidence tending to make more probable the defense contention that defendant did attempt to warn the user of reasonably foreseeable hazards and that the warning labels on the subject machine were tampered with. Thus, the testimony objected to was clearly relevant.

The trial court was never asked to determine whether Hasenbank was testifying as an expert or lay witness. No objection was made to his qualifications to testify regarding Toro’s manufacturing process. The witness was an engineer with several years of design experience with defendant’s products; he knew what warnings were used, where and how they were affixed, their size and durability. He was familiar with the paint used on the subject machine, and its durability and ability to withstand normal use.

MRE 702 sets forth the standard to be applied in admitting expert opinion testimony:

"Rule 702 Testimony by Experts.
"If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Although it can be argued that Hasenbank possessed "specialized knowledge” that assisted the jury in ascertaining the likelihood that the warning labels were attached on the subject machine, he was not an expert in label removal, as was recognized by the trial judge in his opinion denying plaintiffs motion for a new trial. Therefore, the objected to testimony going to the removal of the warning labels on the subject machine was merely opinion testimony by a lay witness. MRE 701 provides for the admission of such testimony as follows:

"Rule 701 Opinion Testimony by Lay Witnesses.
"If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”

At trial, the physical condition of the subject machine was such that Hasenbank’s opinion was "rationally based on [his] perception”, and his opinion was certainly "helpful to * * * the determination of a fact in issue”. Therefore, the trial court’s rulings on the admissibility of Hasenbank’s opinion testimony were proper.

Plaintiff also argues that Hasenbank’s opinion testimony went to an ultimate issue that should have been the proper preserve of the jury’s determination as fact-finder. However, whether Hasenbank was an expert or a lay witness, MRE 704 permits his opinion testimony on an ultimate issue.

For all of the above reasons, witness Hasenbank’s testimony was properly admitted by the trial court, and plaintiff’s motion for a new trial was properly denied.

Affirmed; costs to appellee.


author: Cynar, P.J. L. W. Corkin, J.

text:
    PEOPLE v EARL JONES
    Docket No. 44306.
    Submitted June 18, 1979, at Lansing.
    Decided December 6, 1979.
    Leave to appeal applied for.
    Earl Jones pled guilty to a charge of second-degree murder in exchange for the prosecutor’s agreement to dismiss charges of first-degree murder, assault with intent to murder and felony firearm, Saginaw Circuit Court, Fred J. Borchard, J. In the plea proceeding the trial court advised defendant of the maximum sentence but failed to advise him of any mandatory minimum sentence for second-degree murder and that second-degree murder is a nonprobationable offense. Defendant appeals. On appeal defendant claims the court’s failure to properly advise him on the minimum sentence and his ineligibility for probation is reversible error. Held:

    1. Second-degree murder carries no mandatory minimum sentence; therefore, a court at a guilty plea proceeding is not required to advise a defendant of a mandatory minimum prison sentence.
    2. A court rule requires a court to tell a defendant that if he pleads guilty to murder, armed robbery or treason, he cannot be placed on probation. Noncompliance with this rule does not necessarily require reversal, especially where a defendant was informed that the maximum sentence was life and he stated that he understood the maximum penalty, he was a previous felony offender and was familiar with the criminal justice system, he was in violation of his parole and was aware of the consequences therefor, and the crime was a grievous one and he had no expectation of being placed on parole.
    Affirmed.
    L. W. Corkin, J., dissented. He would hold that, except where a defendant knew prior to his plea that he would be sentenced to prison or had stated on the record that he understood the possible punishment for the crime, failure to follow the court rule which requires the court to inform a defendant that he cannot be placed on probation if he pleads guilty to murder, armed robbery or treason, constitutes reversible error.

      References for Points in Headnotes
    [1-4] 21 Am Jur 2d, Criminal Law §§ 487, 489.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

      Opinion of the Court
    1. Homicide — Plea of Guilty — Minimum Sentence — Statutes — Court Rules.
    There is no mandatory minimum sentence for second-degree murder; therefore, a court at a guilty plea proceeding need not advise a defendant of a mandatory minimum prison sentence for second-degree murder (MCL 750.317; MSA 28.549; GCR 1963, 785.7[l][d]).
    2. Criminal Law — Plea of Guilty — Acceptance of Plea — Sentence — Probation — Appeal and Error — Court Rules.
    A court rule requires the court, speaking directly to the defendant at a plea proceeding, to tell him that if he pleads guilty to murder, armed robbery or treason, he cannot be placed on probation; however, noncompliance with this rule does not necessarily require reversal; the court rule does not mandate reversal where the defendant was informed that the rhaximum sentence was life and stated that he understood the maximum penalty, he was a previous felony offender and was familiar with the criminal justice system, he was in violation of his parole and was aware of the consequences therefor, and the crime was a grievous one and he had no expectation of being placed on probation (GCR 1963, 785.7[l][f]).
    Dissent by L. W. Corkin, J.
    3. Criminal Law — Plea of Guilty —• Acceptance of Plea — Sentence — Probation — Appeal and Error — Court Rules.

      A court rule requires the court to inform a defendant that he cannot be placed on probation if he pleads guilty to murder, armed robbery or treason; where a defendant knew prior to his plea that he would be sentenced to prison or where a defendant stated on the record that he understood the possible punishment for the crime there could be noncompliance, but other than these limited exceptions, failure to follow the court rule constitutes reversible error (GCR 1963, 785.7[l][f]).

    4. Criminal Law — Plea of Guilty —• Acceptance of Plea — Sentence — Minimum Sentence — Court Rules.

      The court rule which requires a court at a plea proceeding to inform a defendant of the mandatory minimum prison sentence, if any, for an offense, is satisñed where the court informs

      the defendant that his punishment is for life or for any term of years; it is not necessary for the court to name some period as a mandatory minimum sentence, but to advise a defendant that the maximum penalty is life, without more, is insufficient compliance with the rule (GCR 1963, 785.7[l][d]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

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

   Cynar, P.J.

On October 23, 1978, in Saginaw County Circuit Court, defendant pled guilty to a charge of second-degree murder, MCL 750.317; MSA 28.549. Defendant pled guilty in exchange for the prosecutor’s agreement to dismiss the original charges of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to murder, MCL 750.83; MSA 28.278, and felony firearm, MCL 750.227b; MSA 28.424(2). When the offense to which defendant pled was committed he was on parole from a sentence to prison for armed robbery.

In the plea proceeding the trial court advised defendant of the maximum sentence but failed to advise him of any mandatory minimum sentence for second-degree murder. Also the trial court failed to advise the defendant that second-degree murder is a nonprobationable offense.

Defendant was sentenced on January 19, 1979, to life imprisonment. He has filed a timely appeal as of right citing as reversible error the court’s failure to properly advise in the plea-taking process as set forth in the preceding paragraph. We disagree, as we conclude that neither error necessitates reversal.

With regard to defendant’s first assignment of error, other panels have found that a criminal statute which carries a punishment of imprisonment "for life or any term of years” has no mandatory minimum sentence vis-á-vis the dictates of GCR 1963, 785.7. People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), People v McKnight, 72 Mich App 282; 249 NW2d 392 (1976), People v Landis, 91 Mich App 345; 283 NW2d 647 (1979), cf., Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975). Those cases, although speaking to the armed robbery statute, are equally persuasive here, as the punishment provision in MCL 750.317 is identical. Thus, since the offense of second-degree murder carries no mandatory minimum sentence, it cannot be error to fail to advise a defendant of a negative.

Nor do we find the failure to inform defendant that second-degree murder is a nonprobationable offense reversible error. Under a prior version of GCR 1963, 785.7, a trial court was not required to tell a defendant that if his plea is to murder, he cannot be placed on probation. Under that rule, the failure to so inform a defendant was not reversible error. Guilty Plea Cases, supra, 118. However, the day that Guilty Plea Cases was decided, the Supreme Court promulgated an amendment to GCR 785.7, which in newly added subpart (l)(f) required a trial court to advise a defendant regarding nonprobationable offenses. This the trial court failed to do in the instant case.

However, noncompliance with GCR 785.7 does not necessarily require reversal. Guilty Plea Cases, supra, 113. In People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977), this Court declined to reverse a plea-based conviction for armed robbery, even where the defendant was not told that he could not be placed on probation. The Court noted that defendant was read the armed robbery statute, including the punishment provision, i.e., life or any term of years, and acknowledged that he understood the possible punishment for armed robbery. People v Lendzian, supra, 325.

Similarly, in this case defendant was informed that the maximum sentence was life, and stated that he understood the maximum penalty. As a previous felony offender, defendant was also familiar with the criminal justice system. Further, he was also in violation of the terms of his parole and was apprised of the possible consequences therefor. Finally, the crime with which defendant was charged was a grievous one. Defendant had no expectation of being placed on probation. We find that, on these facts, the noncompliance with GCR 1963, 785.7(l)(f) does not mandate reversal.

As no error requiring reversal has been established, we hereby affirm.

Affirmed.

Mackenzie, J., concurred.

L. W. Corkin, J.

(dissenting). I respectfully dissent.

At the time the plea in this case was taken GCR 1963, 785.7(l)(f) required that when the plea was to murder, armed robbery or treason, the trial court inform the defendant that he could not be placed on probation. In People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), it was recognized that a failure to so advise could amount to reversible error although there was no reversal in the case because as the result of a sentence agreement defendant knew, prior to his plea, that he would be sentenced to prison if he pleaded guilty. I am aware of People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977), where there was no reversal when defendant was not informed of his ineligibility for probation. However, in Lendzian the trial court did inform the defendant that armed robbery was "punishable by imprisonment in the state prison for life or for any term of years” and defendant stated on the record that he understood the possible punishment for armed robbery. The court was of the opinion that defendant's understanding of possible punishment was sufficient to satisfy the requirement of GCR 1963, 785.7(l)(f).

In this case the trial court only advised defendant that "the maximum penalty is life” and said nothing about "any term of years”.

This case is distinguishable from both Freeman and Lendzian and the plea-based conviction should be vacated. Although, considering the crime pled to, as well as defendant’s criminal record, he probably had no expectation of being placed on probation.

Defendant’s second claim of error is based on GCR 1963, 785.7(l)(d) which requires that the plea-taking court advise the defendant of the "mandatory minimum prison sentence, if any, for the offense”. When this language has been applied to a sentence for second-degree murder, armed robbery or treason, and where the term of confinement may be "imprisonment for life or any term of years”, confusion has resulted.

One might think that when the rule speaks of a mandatory minimum sentence it means a mandatory minimum sentence definitely stated as to length of time in the sentencing statute (i.e., 20 years for possession of 225 grams or more, but less than 650 grams) MCL 333.7403; MSA 14.15(7403). This was apparently the interpretation arrived at by a majority of the Court in People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), with one judge giving no opinion on the issue. The opinion simply stated that there was no mandatory minimum sentence for armed robbery, citing the armed robbery statute. MCL 750.529; MSA 28.797.

However, the Freeman Court made no mention of People v Burridge, 99 Mich 343, 345; 58 NW 319 (1894), where the Court stated that "any term of years” must be construed for a time not less than two years. It was apparently the fate of Burridge to be overlooked from time to time.

Apparently, it was overlooked by the Supreme Court in Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975), where the Court said in reference to GCR 1963, 785.7(l)(b):

"In Hord, the judge informed the defendant that by pleading guilty to robbery armed he subjected himself to a possible sentence of 'up to life’ but did not advise him that he could not be placed on probation. A person convicted of armed robbery is subject to a sentence of life or any term of years (MCLA 750.529; MSA 28.797), and may not be placed on probation (MCLA 771.1; MSA 28.1131).
"The rule does not require the judge to inform the defendant of all sentence consequences — only the maximum sentence, any mandatory minimum and, as appears below, if he is on probation or parole, the possible effect on his status as a probationer or parolee.
"The rule reflects the extent to which this Court is willing to impose on the judge the obligation of informing the defendant of such consequences. A failure to impart the information so required by this subsection (b) will continue to require reversal.” (Emphasis added.)

There was no reversal of Hord, supra, nor was there any mention of Burridge, supra, or that the words "any term of years” created a mandatory minimum sentence of any period.

In People v McKnight, 72 Mich App 282; 249 NW2d 392 (1976), in a per curiam opinion, this Court found no error in the trial court’s advising defendant that the minimum sentence for his plea to armed robbery would be one year in prison. The Court made reference to People v Burridge, supra, by stating in the opinion that the Supreme Court in its ruling in Hord, supra, rejected Burridge, supra. The Court also said, referring to the ruling in Hord in the Guilty Plea Cases, supra:

"In this case the Court expressly stated that failure to advise a defendant of any mandatory minimum sentence was reversible error. Hord was not advised that the offense of armed robbery carried any mandatory minimum sentence. Nevertheless, his plea-based conviction was affirmed. We must infer from this that there was no necessity to advise a defendant of any minimum sentence before accepting a plea of guilty to an offense punishable by imprisonment for life or 'any term of years.’ ” People v McKnight, supra, 283-284.

However, the question was not resolved.

In People v Harper, 83 Mich App 390; 269 NW2d 470 (1978), the Court seemingly returned to interpreting "any number of years” as establishing a mandatory minimum sentence of some duration. Recognizing that the Burridge case had been discredited by the Guilty Plea Cases, supra, and People v McKnight, supra, the Court concluded that the phrase did not mean a minimum of two years but asserted that it must mean some minimum period and then set about determining such period by the statutory construction.

In Harper, the trial court had informed the defendant that as far as armed robbery was concerned it was mandatory that the court sentence him to some term of years. The appellate court, at the conclusion of the statutory construction portion of its opinion concluded its ruling on the issue by saying:

"Our analysis does not require reversal here. First of all defense counsel had no objection and was satisfied with the court’s compliance with GCR 1963, 785.7 in this regard. Secondly, under prior case law advice to the defendant that he was required to be imprisoned for a minimum of a term of years was sufficient. Neither do we say that in the future since 'any term of years’ mandates a minimum sentence of a year and a day that fact must be communicated to the defendant in those words under pain of reversal. We suggest only that a more exact way of stating the rule appears to be: A defendant who must be sentenced to 'any term of years’ may not be sentenced to less than a minimum of a year and a day (366 days) to a (minimum) maximum of 18 months and 1-1/2 days (549 days).” (Emphasis added.) People v Harper, supra, 398-399.

I conclude that the holding in Harper, supra, is that as long as the trial court informs the accused that the punishment is imprisonment "for life or for any term of years” it is sufficient. However, the suggestion is made that further amplification could be made by spelling out a specific minimum sentence of some length, possibly one year and a day. I further conclude, as the law now stands, that as long as the trial court informs the accused that the possible sentence for second-degree murder, armed robbery or treason, is imprisonment for life or for any term of years, it is not necessary that the court name some period of time as a mandatory minimum sentence, particularly in view of the fact that there is no definitive statement as to what such mandatory minimum period should be.

In this case the trial court only advised the defendant that the maximum penalty was life. This is not sufficient compliance with GCR 1963, 785.7(l)(d) under any interpretation reversal is required.

A final observation may be in order. Had we held that the trial court should have advised defendant of a mandatory minimum sentence then, presumably, there would be no point in advising him that he would be eligible for probation and a failure to do so would be harmless error.

Defendant’s plea conviction should be vacated and the case should be remanded for trial.

       I make no comment concerning the Court’s reasoning in construing the statute which led to the conclusion that the phrase means that the minimum sentence would be a year and a day (366 days) to a minimum-maximum of 18 months and 1-1/2 days (549 days).


author: R. B. Burns, J.

text:
    COUNTY ROAD ASSOCIATION OF MICHIGAN v DEPARTMENT OF TRANSPORTATION
    Docket No. 46037.
    Submitted August 29, 1979, at Lansing.
    Decided December 6, 1979.
    The County Road Association of Michigan and others brought an original action in the Court of Appeals for mandamus to prevent the Department of Transportation from financing a vehicle emissions testing program with funds derived from fuel and weight tax revenues. The program was to be financed with money allocated from the State Trunkline Fund and the Comprehensive Transportation Fund, both of which are funded from the General Transportation Fund. The plaintiffs claim that the General Transportation Fund, which is comprised of fuel and weight tax revenues, is restricted in its use to purposes listed in the Michigan Constitution and that the proposed testing program does not qualify for funding from the General Transportation Fund. Held:

    The proposed testing program is not a "transportation” or "comprehensive transportation” use as listed in the constitutional provision controlling the use to which money in the General Transportation Fund is put or as defined by statute. The Department of Transportation may not, therefore, finance the program from the State Trunkline Fund or the Comprehensive Transportation Fund.
    Mandamus granted.
    1. Constitutional Law — Taxation — Fuel and Weight Taxes — Transportation Financing.
    Funds derived from fuel'and weight tax revenues may be used only for the specific transportation purposes listed in the constitutional provision which controls the use of such revenues; a proposed Department of Transportation study of motor vehicle emissions which has not been shown to have any substantial "transportation” or "comprehensive transportation” purposes, as those terms are defined by law, may not be financed by fuel and weight tax revenues (Const 1963, art 9, § 9; MCL 247.660c[8]; MSA 9.1097[10d][8]).

      References for Points in Headnotes

       71 Am Jur 2d, State and Local Taxation §§ 20, 59, 616 et seq.

       52 Am Jur 2d, Mandamus §§ 4, 32.

      2. Mandamus — Equity.
    Mandamus is not a matter of right; the issuance of a writ of mandamus is discretionary and is governed by principles of equity.

      Downs, Pirich & Downs, P.C., for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso, Francis J. Carrier and Patrick McElmurry, Assistants Attorney General, for defendant.
    Amicus Curiae: John C. Dernback, for the American Lung Association of Michigan.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Plaintiffs brought this original proceeding for mandamus, pursuant to MCL 600.4401; MSA 27A.4401, to prevent defendant Michigan Department of Transportation from financing a vehicle testing program with funds derived from fuel and weight tax revenues. The program is designed primarily to determine statistically the actual pollutants being emitted from Michigan’s light duty vehicle fleet. An appropriation of $1,000,000 for the fiscal year ending September 30, 1979, apparently was made for the study with the cost of the study being split between the State Trunkline Fund and the Comprehensive Transportation Fund, in the same percentages as these share in the General Transportation Fund. 1979 PA 46. The General Transportation Fund is comprised solely of funds restricted under Const 1963, art 9, §9. MCL 247.660; MSA 9.1097(10). Plaintiffs maintain that although the program’s prospective study of air pollution from privately owned vehicles may be socially desirable, the funding of such a study from gas and weight tax revenues is barred by Const 1963, art 9, § 9.

In support of their contention that an appropriation of the restricted funds for the program is unlawful, plaintiffs note the language and the history oí1 Const 1963, art 9, § 9.

As first established, Const 1963, art 9, § 9 was as follows:

"All specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles shall, after the payment of necessary collection expenses, be used exclusively for highway purposes as defined by law.” (Emphasis added.)

In 1977, the Michigan Supreme Court held that the term "highway purposes” had a broad legislative definition and that the Legislature was acting within its constitutional powers when it defined highway purposes to include public transportation services. Advisory Opinion of Constitutionality of 1976 PA 295, 1976 PA 297, 401 Mich 686; 259 NW2d 129 (1977). Soon thereafter, the right of the Legislature to define highway purposes was eliminated by constitutional amendment. As amended in 1978, Const 1963, art 9, § 9 now provides in part:

"All specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and to propel aircraft and on registered motor vehicles and aircraft shall, after the payment of necessary collection expenses, be used exclusively for transportation purposes as set forth in this section.
"Not less than 90 percent of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles shall, after the payment of necessary collection expenses, be used exclusively for the transportation purposes of planning, administering, constructing, reconstructing, financing, and maintaining state, county, city, and village roads, streets, and bridges designed primarily for the use of motor vehicles using tires, and reasonable appurtenances to those state, county, city, and village roads, streets, and bridges.
"The balance, if any, of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel motor vehicles upon highways and on registered motor vehicles, after the payment of necessary collection expenses; 100 percent of the specific taxes, except general sales and use taxes and regulatory fees, imposed directly or indirectly on fuels sold or used to propel aircraft and on registered aircraft, after the payment of necessary collection expenses; and not more than 25 percent of the general sales taxes, imposed directly or indirectly on fuels sold to propel motor vehicles upon highways, on the sale of motor vehicles, and on the sale of the parts and accessories of motor vehicles, after the payment of necessary collection expenses; shall be used exclusively for the transportation purposes of comprehensive transportation purposes as deñned by law. ” (Emphasis added.)

The definition of comprehensive transportation purposes is found in MCL 247.660c(8); MSA 9.1097(10d)(8):

"* * * 'comprehensive transportation purpose’ means the movement of people and goods by publicly or privately owned water vehicle, bus, railroad car, rapid transit vehicle, taxicab, aircraft, or other conveyance which provides general or special service to the public, but not including school buses or charter or sight-seeing service.”

Plaintiffs assert that because the proposed study deals primarily with vehicles it cannot be viewed as being a part of the planning or administering of roads, streets and bridges. Plaintiffs argue that to hold otherwise would be to negate entirely the 1978 amendment to Const 1963, art 9, § 9, as there would then be no difference between the scope of the amended language and that of the provision’s original language.

Plaintiffs also assert that since the study is designed primarily to study the private automobile fleet the vehicle testing program does not fall within the definition of comprehensive transportation purposes. Plaintiffs point to the omission of the term "privately owned automobile” from MCL 247.660c(8); MSA 9.1097(10d)(8), and the inclusion of specific vehicles such as taxicabs and rapid transit vehicles which are public transportation services.

Defendant, on the other hand, maintains that the Court should not stop the proposed expenditure because the vehicle testing program is necessary to insure that the state will not lose Federal funds, including funds for its highways, which are contingent upon the state’s meeting the requirements of the Federal Clean Air Act Amendments of 1977. 42 USC 7401 et seq. Defendant argues that the appropriation of restricted funds for the program is permissible because vehicle emissions, which will be studied by the program, are elements to be considered in the planning and design of roads, streets, bridges and comprehensive transportation modes. Defendant claims that because there may be financial sanctions imposed if the state fails to comply with the Clean Air Act, it is necessary for highway planners to know the level of vehicle emissions and to be able to reasonably anticipate future funding of highway projects.

Defendant further argues that the fact that the Legislature funded the program after being fully advised of its nature shows the legislative intent to include the study within the term "comprehensive transportation purpose”. Additionally, light duty vehicles, the subjects of the study, include taxicabs and vans, which are expressly included within the statutory definition of "comprehensive transportation purpose”. Defendant anticipates that high levels of vehicle emissions may lead to restrictions on private passenger vehicles which will necessarily affect the planning of public mass transit.

We are convinced that the language of the newly amended constitutional provision, Const 1963, art 9, § 9, limits the use of the restricted funds to the specific transportation purposes listed therein. The restricted funds may be spent only for planning, administering, constructing, reconstructing, financing, and maintaining state, county, city, and village roads, streets, and bridges and the reasonable appurtenances thereto or for comprehensive transportation purposes as defined by law.

The purpose of the vehicle testing program, as stated in the budget request submitted by defendant, is to produce for the state an "information base on the emissions control system maintenance level in its privately owned fleet. Such information is needed to design a reasonable I/M [inspection and maintenance] program keyed to the severity of Michigan’s air pollution problem”.

Any impact which the program may have on the planning of roads, streets and bridges or on comprehensive transportation will be indirect and a chance by-product of the study. The study will deal with the maintenance of emission control devices. While defendant has shown that high levels of emissions may lead to a mandatory inspection and maintenance program or to the loss of Federal funds, it has not shown that the study has any substantial "transportation” or "comprehensive transportation” purposes.

No challenge has been made to the Court’s power to issue a writ of mandamus in the present action. Mandamus is not a matter of right; the issuance of a writ of mandamus is discretionary and is governed by principles of equity. Board of Education of Oakland Schools v Superintendent of Public Instruction, 401 Mich 37, 43-44; 257 NW2d 73 (1977). After having weighed all the relevant considerations we find that plaintiffs’ petition for a writ of mandamus should be granted. Accordingly, a writ of mandamus shall issue prohibiting defendant from expending funds appropriated for the vehicle testing program from the State Trunkline Fund and the Comprehensive Transportation Fund.


author: Per Curiam.

text:
    PEOPLE v WAKEFORD
    Docket No. 78-1129.
    Submitted October 12, 1979, at Detroit.
    Decided December 6, 1979.
    Patrick E. Wakeford was convicted of two counts of robbery armed and one count of felony-firearm, Wayne Circuit Court, Joseph B. Sullivan, J. Defendant appeals. On appeal defendant contends that the trial court erred in denying his motion to suppress evidence of previous felony convictions if he testified. Held:

    The trial judge recognized his right to exercise discretion with respect to defendant’s motion, and appeared to exercise the same, by precluding reference to an attempted breaking and entering conviction and another armed robbery while he would have allowed impeachment testimony on a 1973 unarmed robbery and a 1974 assault with intent to rob. There is no affirmative indication of error by the judge in the application of relevant principles such as the nature of the prior offense and the effect such testimony would have on defen-, dant’s decision to testify. Furthermore, even if the trial judge’s ruling, which permitted cross-examination of defendant, was considered error, it would be harmless in view of the overwhelming evidence of defendant’s guilt.
    Affirmed.
    Criminal Law — Evidence — Impeachment — Prior Convictions — Admissibility of Evidence — Discretion — Exercise of Discretion.
    A trial judge has discretion to deny a defendant’s motion to suppress evidence of previous felony convictions should he choose to testify; among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions; no reversible error has been committed where the record shows that the judge exercised his discretion with respect to defendant’s motion and there is no affirmative indication of error in the application of relevant principles.

      Reference for Points in Headnote
    29 Am Jur 2d, Evidence § 320 et seq.

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

      Dennis W. Cleary, for defendant.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Per Curiam.

Defendant, Patrick E. Wakeford, was charged jointly with codefendant, Robert Ammons, of two counts of robbery armed and one count of felony-firearm. This appeal deals only with defendant Wakeford. Defendant was convicted by a jury as charged. After being sentenced to not less than 40 years nor more than 60 years in prison on the armed robbery counts, and two years on the felony-firearm count, he appeals as of right.

On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence of previous felony convictions if he testified. He bases this claim on the fact that two previous felonies, one for unarmed robbery in 1973, and the other for assault with intent to rob in 1974, which the prosecution would have been permitted to use to attack his credibility, were for assaultive crimes generally similar to that charged here. The transcript indicates defendant, although only 22 at the time of this offense, had been convicted of three previous felonies. The trial judge recognized his right to exercise discretion with respect to defendant’s motion, and appeared to exercise the same, precluding reference to an attempted breaking and entering conviction, or to another robbery armed. While the trial judge’s ruling, with regard to the motion, is in some respects confusing, we do not find the affirmative indication of error in application of the relevant principles which led to reversal in People v Baldwin. We do not find any indication that the trial court affirmatively misapplied the factors delineated in People v Crawford. Furthermore, even if the trial judge’s ruling permitting cross-examination of defendant (if he chose to testify) regarding these two previous felony convictions were deemed error, we would find that such error was harmless in this case in view of the overwhelming evidence of defendant’s guilt.

Defendant’s other claims of error on appeal are similarly without merit.

Affirmed.

       405 Mich 550; 275 NW2d 253 (1979). See, People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979).

       83 Mich App 35, 39; 268 NW2d 275 (1978).


text:
    PEOPLE v MONCURE
    Docket No. 78-1415.
    Submitted October 11, 1979, at Detroit.
    Decided December 6, 1979.
    Leave to appeal applied for.
    Paul Moncure was convicted of first-degree murder and posses-' sion of a firearm during the commission of a felony, Recorder’s Court of Detroit, Calvin C.. Rock, J. Defendant appeals. On appeal defendant contends that the evidence was insufficient to support a finding of murder and his motion for a directed verdict of acquittal should have been granted, that the court’s charge omitted the element of malice from the jury’s deliberations, that there was insufficient evidence to support a finding of premeditation and deliberation, that certain remarks by the prosecutor in his opening, closing and rebuttal statements were inflammatory and prejudicial, that his counsel’s performance was ineffective and that the felony-firearm statute is unconstitutional. Held:

    1. A combination of direct and circumstantial evidence was clearly sufficient to support a finding of defendant’s guilt beyond a reasonable doubt.
    2. The court’s charge on malice was almost a word-for-word rendition of the proposed criminal jury instruction on that subject. The charge was legally accurate.
    3. Premeditation and deliberation are established where a reasonable man has the time for a second look between his original thought and ultimate action. Trial testimony supplied ample evidence that defendant had the opportunity for a second look before the killing occurred.

      References for Points in Headnotes

       30 Am Jur 2d, Evidence §§ 1080, 1170-1172.

       52 Am Jur 2d, Malice § 7.
    75 Am Jur 2d, Trial § 719.

       40 Am Jur 2d, Homicide §§ 52, 439.

       29 Am Jur 2d, Evidence §§ 497, 600.

       75 Am Jur 2d, Trial § 209.
    Reference by counsel for prosecution in opening statement to matters which he does not later attempt to prove as ground for new trial, reversal, or modification. 28 ALR2d 972.

       75 Am Jur 2d, Trial § 260.

       75 Am Jur 2d, Trial §§ 315, 317.

       7 Am Jur 2d, Attorneys at Law §§ 168, 171.
    21 Am Jur 2d, Criminal Law § 315.

      4. In his opening statement the prosecutor stated that a certain witness would testify that defendant told her that "if the deceased ever left him he would kill her and then kill himself’. The court did not allow the witness to testify regarding the statement because it ruled that an insufficient foundation was laid for it. Defendant’s out-of-court statement is hearsay. Nevertheless testimony concerning it would have been admissible. At common law it would be allowable as an exception to the hearsay rule. Under the Michigan Rules of Evidence it is not considered a hearsay statement. Defendant’s claim that he was denied a fair trial because the prosecutor’s reference to the statement in his opening remarks to the jury was inflammatory and prejudicial does hot provide sufficient grounds for reversal of his convictions.
    5. Defendant objects to the prosecutor’s statement in clbsing argument that, "He wanted her, he wanted her so badly that if he couldn’t have her nobody else was going to”. A prosecutor is entitled to comment on the evidence and to draw reasonable inferences therefrom. This sentence was at the end of a long statement summarizing the testimony from which one could reasonably infer the conclusionary statement. The statement when read in context with the total final argument was not error. The remaining comments which defendant claims were erroneously allowed to be made were not objected to at trial. Appropriate cautionary instructions would have cured any prejudice, therefore, failure to object bars appellate review.
    6. Defendant’s claim that his trial counsel’s performance was ineffective is unpersuasive. Trial counsel performed unusually well in view of the strong evidence against the defendant. He conscientiously protected his client’s interests.
    7. The constitutionality of the felony-firearm statute has been upheld by the Supreme Court.
    Affirmed.
    1. Criminal Law — Sufficiency of Evidence — Directed Verdict — Submission to Jury — Guilty Beyond Reasonable Doubti
    The test for determining if evidence was sufficient in a Criminal case to warrant submission to a jury is whether the evidente is ample to sustain a finding of guilty beyond a reasonable doubt.

      2. Criminal Law — Malice — Instructions to Jury.
    A court’s charge on malice is legally accurate where it is a word-for-word rendition of the Michigan Criminal Jury Instructions.
    3. Homicide — First-Degree Murder — Premeditation and Deliberation — "Second Look” — Prior Relationships — Actions of Defendant — Immediate Circumstances — Post-Homicide Conduct.
    The premeditation and deliberation necessary in a first-degree murder prosecution are established by showing that a time span existed between the initial thought and ultimate action which could afford a reasonable man time to subject the nature of his response to a second look; the factors to be considered in determining whether an accused had an opportunity to subject his actions to a second look include: (1) the previous relationship of the parties, (2) the defendant’s actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.
    4. Evidence — Hearsay Rule — Out-Of-Court Statements — Admissibility — Common Law — Rules of Evidence.
    Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted; however, a defendant’s admission or any other relevant out-of-court statement that he makes is admissible either as an exception to the hearsay rule or as not hearsay: (1) at common law, out-of-court statements made by a party to a lawsuit were hearsay but were allowable as an exception to the hearsay rule, (2) under the Michigan Rules of Evidence, a statement is not hearsay if the statement is offered by a party-opponent against a party to the lawsuit and it is the party’s own statement in either his individual or representative capacity (MRE 801).
    5. Criminal Law — Prosecuting Attorneys — Opening Statements — Unsubstantiated Remarks — Good Faith Remarks — Appeal and Error.
    A reference by a prosecuting attorney in his opening statement that something will be proved, but which is not later proved, is not grounds for reversal if the statement is made in good faith.
    6. Criminal Law — Evidence — Prosecutor’s Remarks — Reasonable Inferences — Closing Argument.
    A prosecutor is entitled to comment on the evidence and draw reasonable inferences therefrom and he is free in final argument to relate the facts to his theory of the case.

      7. Appeal and Error — Criminal Law — Argument of Prosecutor — Improper Argument — Prejudice — Cautionary Instruction.
    Failure to object to a prosecutor’s comments in closing argument will bar appellate review where a cautionary instruction in all likelihood would have cured any prejudice caused by the remarks.
    8. Criminal Law — Attorney and Client — Effective Assistance of Counsel.
    A defendant is not denied effective assistance of counsel where his attorney performed at least as well as a lawyer with ordinary training and skill in criminal law and conscientiously protected his client’s interests.

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

      Morris H. Berris (Raymond L. Miller, of counsel), for defendant on appeal.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Per Curiam.

We are asked to decide, inter alia, whether a statement made by the defendant to a third party who is called by the prosecution to testify at trial is hearsay as defined by MRE 801. Charged with first-degree murder contrary to MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony in contravention of MCL 750.227b; MSA 28.424(2), defendant was convicted by a jury on February 3, 1978. He appeals of right, alleging five grounds for reversal.

1. Defendant contends the evidence is insufficient to support a finding of murder and that the trial court erred in denying his motion for a directed verdict of acquittal. The test for determining if evidence was sufficient in a criminal case to warrant submission to the jury is whether the evidence is ample to sustain a finding of guilty beyond a reasonable doubt. People v Williams, 368 Mich 494, 501; 118 NW2d 391 (1962), People v Johnson, 83 Mich App 1, 16; 268 NW2d 259 (1978).

We find the evidence ample. There was eyewitness testimony that the defendant fired the shots which killed the decedent. There was testimony that the defendant and decedent had been involved in a love affair, and that the decedent had broken it off. The murder weapon was found a few feet away from the place where the defendant was found. He had shot himself. It could be reasonably inferred that the killing and attempted suicide were the unhappy resolution of the love affair. Finally, there was testimony that the defendant left his residence on September 12, 1977, the morning of the murder, at 12 a.m. and returned ¿round 4 a.m. The murder occurred at approximately 3 a.m. This combination of direct and circumstantial evidence was clearly sufficient to support a finding of guilty beyond a reasonable doubt. People v Edgar, 75 Mich App 467; 255 NW2d 648 (1977).

2. The defendant next contends the court’s charge omitted the element of malice from the jury’s deliberations on the first-degree murder charge. This is simply inaccurate. The court’s charge on malice was almost a word-for-word rendition of proposed CJI 16:2:01(2). The charge was legally accurate.

3. We are not persuaded by defendant’s claim that there was insufficient evidence to support a finding of premeditation and deliberation. To establish premeditation and deliberation it is necessary to show that a time span existed between the initial thought and ultimate action which could afford a reasonable man time to subject the nature of his response to a "second look”. People v Tilley, 405 Mich 38, 45; 273 NW2d 471 (1979). In People v Meadows, 80 Mich App 680, 691; 263 NW2d 903 (1977), we said:

"Factors to be considered in determining whether the accused had an opportunity to subject his actions to a second look include: (1) the previous relationship of the parties, (2) the defendant’s actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.”

One witness, a fellow employee of the deceased, testified that on the night of the shooting he had driven the deceased home following work, that he was followed by defendant’s car, that while he and deceased were parked outside deceased’s home, the defendant drove very slowly past their parked car and then came back a third time as the witness and deceased were walking toward deceased’s doorway; that defendant then fired four shots, killing the deceased. This testimony supplies ample evidence that the accused had the opoortunity of a second look.

4. Certain remarks made by the prosecutor in his opening, closing and rebuttal statements are characterized as having been erroneously allowed. In his opening statement the prosecutor stated that a certain witness whom he would call, Ms. Shields, would testify that the defendant told her "if the deceased ever left him (defendant) he would kill her (deceased) and then kill himself’. No objection was made at the time but later, when Ms. Shields was called as a witnéss, objection was made. The jury was excused and the defense argued that the intended statement was hearsay. The prosecution argued the statement was admissible under the "party admission” rule set forth in MRE 801 d(2). The trial court sustained the objection on the grounds that, because Ms. Shields could not remember the dates when the statements were made, an insufficient foundation was laid for admission into evidence. Defendant contends on appeal that even though the testimony was disallowed, the prosecution’s very reference to it in his opening statement was inflammatory and prejudicial.

Resolution of the question raised requires our interpretation of MRE 801 defining hearsay. The relevant portion of that rule reads:

"The following definitions apply under this article:
"(a) Statement. A 'statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.
"(b) Declarant. A 'declarant’ is a person who makes a statement.
"(c) Hearsay. 'Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
"(d) Statements which are not hearsay. A statement is not hearsay if—
"(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, * * *.” (Emphasis supplied.)

Since the statement was not made by defendant while testifying at trial and since it was offered by the prosecution to prove the truth of the matter asserted, viz. — he would kill the deceased if she left him — it clearly falls within subsection (c) as hearsay. The next question is whether it becomes "not hearsay” by subsection (d)(2). Except for language not relevant to the question before us, MRE 801(d) is identical with the Federal rule. Considerable light is shed on the scope and meaning of (d)(2), commonly known as the party-opponent admission rule, in Saltzburg & Redden, Federal Rules of Evidence Manual, (2d ed), 454-470.

Based on the extensive comments found in that text, we find that subsection (d)(2) is a statement of the common-law exception to hearsay rule. At common law, out-of-court statements made by a party to a lawsuit were hearsay but were allowable hearsay. Id. 459-460. The only difference between the common-law rule and subsection (d)(2) is that the former was treated as an exception to the hearsay rule while the latter treats it as "not hearsay”.

We also glean from that text that the out-of-court statements of a defendant are not limited to "admissions” as that word is commonly understood to mean but refers to all statements made by defendant. This fact and the rationale therefor is succinctly stated in 4 Wigmore, Evidence (3d ed), § 1048, pp 4-5:

"The theory of the hearsay rule is that an extrajudicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross-examination by the party against whom it is offered; e.g., if Jones had said out of court 'The party-opponent Smith borrowed this fifty dollars,’ Smith is entitled to an opportunity to cross-examine Jones upon that assertion. But if it is Smith himself who said out of court, T borrowed this fifty dollars,’ certainly Smith cannot complain of lack of opportunity to cross-examine himself before his assertion is admitted against him. Such a request would be absurd. Hence the objection of the hearsay rule falls away, because the very basis of the rule is lacking, viz., the need and prudence of affording an opportunity of cross-examination.
"In other words, the hearsay rule is satisñed; Smith has already had an opportunity to cross-examine himself; or (to put it another way) he now as opponent has the full opportunity to put himself on the stand and explain his former assertion.
"The hearsay rule, therefore, is not a ground of objection when an opponent’s assertions are offered against him; in such case, his assertions are termed admissions.”

Though finding fault with the rationale of the rule, McCormick, Evidence (2d ed), § 145, p 311, agrees that out-of-court statements by a defendant may be admitted into evidence:

"Whether considered not to be hearsay, or hearsay but the subject of an exception, there seems to be general agreement that the prosecution may introduce in a criminal trial any relevant out-of-court statement of the defendant.” (Emphasis added.)

Based on the foregoing authority we are persuaded that defendant’s statement to Ms. Shields was at common law an exception to the hearsay rule and under MRE was not hearsay. This being so, it should have been admitted into evidence. The fact that Ms. Shields could not recite the precise date when the statement or statements were made goes to the weight and not the admissibility of thé evidence. Though not necessary for purposes of our decision we also note that a reference by the prosecutor in his opening statement that something will be proved, but which is not later proved, is. not grounds for reversal if the statement is made in good faith. People v Davis, 343 Mich 348, 357; 72 NW2d 269 (1955), People v Joshua, 32 Mich App 581, 586; 189 NW2d 105 (1971). Given the complexity of the hearsay rule and the numerous exceptions thereto, we cannot say that the prosecutor acted in bad faith when, on opening statement, he referred to what Ms. Shields would say.

Defendant objects to several statements made by the prosecutor on final argument. In particular, defendant refers to the statement, "He wanted her, he wanted her so badly that if he couldn’t have her nobody else was going to”. Of course, had Ms. Shields been allowed to testify about the defendant’s threat, the statement would have been clearly supported by the testimony. But quite apart from that, the statement, when read in context with the total final argument, was not error. It was the conclusionary sentence of a long statement summarizing the testimony from which one could reasonably infer the conclusionary statement. People v Robert Hall, 56 Mich App 10; 223 NW2d 340 (1974).

The remaining prosecution comments on closing argument which the defendant claims were erroneously allowed were not objected to at trial. Appropriate cautionary instructions would have cured any prejudice, assuming, arguendo, that the remarks were prejudicial. Under these circumstances, reversal is not appropriate. People v Tarp ley, 41 Mich App 227, 232; 199 NW2d 839 (1972), People v Hernandez, 84 Mich App 1, 19; 269 NW2d 322 (1978).

5. We disagree with the claim that trial counsel’s performance was ineffective. Given the strong evidence against defendant, we find trial counsel performed unusually well. At preliminary examination he eliminated most of the testimony concerning defendant’s threats toward the deceased. At trial, he succeeded in preventing the otherwise damaging testimony of Ms. Shields. That counsel performed at least as well as a lawyer with ordinary training and skill in criminal law and conscientiously protected his client’s interests — this being the standard laid down in People v Hanna, 85 Mich App 516, 523; 271 NW2d 299 (1978), for effective assistance of counsel — is evidenced by the following statement of the trial court upon sentencing:

"I want to say before sentence is imposed that I was particularly impressed by the skill with which your attorney conducted this trial, and I think it was reflected in the period of time that it took the jury to deliberate.
"He did a very thorough job, I feel, defending every avenue that he possibly could.
"The witnesses, however, — It was a situation, I feel, the most compelling evidence for the jury.”

6. Defendant’s final assertion of error is that the felony-firearm statute, MCL 750.227b; MSA 28.424(2), is constitutionally infirm on grounds of double jeopardy. That claim was rejected and the statute upheld in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979). No more need be said on this issue.

Affirmed.

       "Since both criminal defendants and parties to civil litigation are available for explanation, the argument goes, the rationale for the rule does not apply. There are several weaknesses in this explanation. First, historically these out-of-court statements were admissible before a party to a civil suit or an accused in a criminal proceeding became a competent witness. Thus the rule would have preceded its justification. Second, it is clear that the Fifth Amendment privilege against compulsory self-incrimination recognizes a right on the part of a criminal defendant to decline to submit to either direct or cross-examination at trial. Justification of an exception to the hearsay rule on the availability of the opportunity to waive this right may be inconsistent with the solicitude with which the privilege has recently been treated.”