text:
    KASSIN v ARC-MATION, INC
    Docket No. 78-3031.
    Submitted October 11, 1979, at Detroit.
    Decided December 10, 1979.
    Leave to appeal applied for.
    On October 8, 1975, Oxford Precise Casting, Inc. (OPC) purchased a majority interest in Arc-Mation, Inc. Paragraph 4 of the contract to purchase read as follows: "Purchaser agrees that it is the intention of the parties that all the creditors of ArcMation, Inc., will be satisfied by payment or agreed upon compromise between purchaser and respective creditors. In any event, purchaser shall not permit the filing of any voluntary petition in bankruptcy or receiverships to make any assignment for the benefit of creditors.” Subsequently, Robert Kassin, a creditor of Arc-Mation, filed a complaint in district court against Arc-Mation and OPC, requesting payment by OPC of Arc-Mation’s debt to plaintiff. The district court entered summary judgment for plaintiff against OPC. OPC appealed to Oakland Circuit Court. Alice L. Gilbert, J., dismissed the appeal on her own motion for noncompliance with the court rules and lack of diligence, determining that OPC had abandoned the appeal. Defendant OPC appeals by leave granted alleging 1) that the circuit court abused its discretion by dismissing the appeal and 2) that an affidavit filed by OPC created an issue of fact as to the meaning of the above-quoted paragraph in the purchase contract. Held:

    1. OPC was required to file a brief in circuit court within 20 days after the district court gave notice that the records had been transmitted to circuit court. However, due to an administrative error, the district court failed to transmit the record. Thus, OPC’s brief must be considered timely filed. The circuit court is reversed and the appeal is reinstated.
    2. The Court of Appeals will decide the substantive issue rather than remand the cause because the parties have requested a decision and the only issue is a question of law which is addressed by the record and briefs.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 963.

       17 Am Jur 2d, Contracts § 244.

       17 Am Jur 2d, Contracts § 77.
    30 Am Jur 2d, Evidence § 1018.
    Comment note on the parol evidence rule and admissibility of extrinsic evidence to establish or clarify ambiguity in written contract. 40 ALR 3d 1384.

      3. Paragraph 4 of the purchase contract clearly indicates that OPC was assuming responsibility for the debts of Arc-Mation. The affidavit submitted by OPC is inconsistent with the written language of that provision and is not admissible and as such cannot create a material question of fact. The district judge did not err in granting summary judgment for plaintiff.
    The judgment of the district court is affirmed.
    1. Appeal and Error — Questions of Law — No Remand — Decision by Appeals Court.
    Remand to the trial court for a hearing on the merits is unnecessary where the parties have requested the Court of Appeals to decide the matter and the only issue is a question of law which is addressed in the briefs and record on appeal.
    2. Contracts — Construction — Intent of Parties.
    The primary rule of construction in construing contracts is to ascertain the intent of the parties.
    3. Contracts — Evidence — Parol Evidence — Extrinsic Evidence — Admissibility.
    Extrinsic evidence of antecedent or contemporaneous understandings and negotiations is not admissible for the purpose of varying or contradicting a written contract wherein two parties have entered into a contract and have expressed it in a writing which they both assented to as being the complete and accurate integration of that contract.

      Sommers, Schwartz, Silver & Schwartz, P.C. (by A. Albert Sugar and Richard D. Toth), for plaintiff.

      Beier, Howlett, McConnell, Googasian & Mc-Cann (by Stephen J. Hopkins), for defendant.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   Per Curiam.

Defendant Oxford Precise Casting, Inc. (OPC) appeals by leave from the dismissal of its appeal to Oakland County Circuit Court from an order granting summary judgment on a $5,000 loan entered in Oakland County District Court.

On October 8, 1975, defendant OPC purchased a majority interest in Arc-Mation, Inc. Paragraph 4 of the contract to purchase reads as follows:

"Purchaser agrees that it is the intention of the parties that all the creditors of Arc-Mation, Inc., will be satisfied by payment or agreed upon compromise between purchaser and respective creditors. In any event, purchaser shall not permit the filing of any voluntary petition in bankruptcy or receiverships to make any assignment for the benefit of creditors.”

Plaintiff Robert Kassin, a creditor of Arc-Mation, filed a complaint in the 52nd-3rd Division District Court against Arc-Mation and OPC, requesting payment by OPC of Arc-Mation’s debt to plaintiff. On January 7, 1977, the Honorable Mildred Vlaich entered an order granting summary judgment for plaintiff against OPC.

On January 26, 1977, a claim of appeal, reasons and grounds of appeal, and appeal bond were filed in district court. Copies were filed in Oakland Circuit Court on January 31, 1977. The record on appeal was settled by stipulation and order, and transcript was ordered. Transcript was filed on March 22, 1977. Plaintiff’s counsel filed his appearance in circuit court on February 7, 1977. Defendant OPC filed its brief on appeal on December 13, 1977. Trial was set for January 6, 1978, but was adjourned by stipulation. It was later scheduled for May 1, 1978.

On May 1, 1978, after argument by both counsel, the circuit court judge, on her own motion, dismissed the appeal after first noting that the file contained only two unsigned papers filed by OPC, the claim of appeal and reasons and grounds of appeal, a signed appearance on behalf of plaintiff and an order for adjournment. She determined that the appeal had been abandoned and that appropriate court rules had not been followed by defendant OPC.

The record contains an affidavit of the district court’s civil clerk to the effect that she was responsible for transmitting file contents to the Oakland Circuit Court as required by the Michigan General Court Rules. In the affidavit she swore that the file in the present case should have been transmitted to the Oakland County Circuit Court in February of 1977 but, through an oversight, was not so transmitted, and as of May 5, 1978, was still not transmitted. The record was subsequently received by the Oakland Circuit Court on May 11, 1978, after the appeal had been dismissed.

Defendant OPC alleges that the circuit court abused its discretion when it dismissed the appeal for noncompliance with court rules and lack of diligence.

The procedural propriety of defendant OPC’s appeal is to be tested under the provisions of GCR 1963, 705 (repealed July, 1977). GCR 1963, 701 replaced the earlier provision but only had prospective effect. Moore v Spangler, 401 Mich 360, 368; 258 NW2d 34 (1977). Therefore, as in Samuel Reiter Painting Co v Bill Miedler Homes, Inc, 87 Mich App 75, 77; 273 NW2d 592 (1978), we consider defendant OPC’s claim under the court rules in effect at the time defendant filed its claim of appeal.

We hold that defendant OPC complied with the provisions of GCR 1963, 705. Defendant OPC was required to file a brief in the circuit court within 20 days after the district court gave notice that the record had been transmitted to the circuit court. As the district court failed to transmit the record due to an administrative error on its part, we hold that defendant OPC’s brief was timely under the provisions of GCR 1963, 705. The decision of the circuit court is hereby reversed and the appeal is reinstated.

However, rather than remand for a hearing on the merits, the parties have requested that this Court decide the matter at this time as the only issue is a question of law that the present record and briefs address.

Initially, it should be noted that the validity of the debt owed to plaintiff by Arc-Mation is not an issue. Rather it is the meaning of the agreement between OPC and Arc-Mation which is in contention.

Plaintiff takes the position that the above-quoted paragraph 4 of the contract to purchase constituted an agreement by defendant OPC, as ArcMation’s purchaser, to pay the creditors of ArcMation. The district court in the original suit on the debt also construed that provision to constitute a promise by OPC to pay Arc-Mation’s creditors.

Defendant OPC takes the position that the agreement in question was intended to express nothing more than the willingness and intention of defendant OPC to use its best efforts to pay the creditors of Arc-Mation. To support this contention defendant OPC submitted an affidavit executed by the president of OPC, denying that it was the intent of the parties that OPC assume all of ArcMation’s debts. Defendant OPC claims that this affidavit created a material issue of fact which made the grant of summary judgment by the district court erroneous.

In construing a contract the primary rule of construction is to ascertain the intent of the parties. Amoco Oil Co v Kraft, 89 Mich App 270, 273; 280 NW2d 505 (1979). The language of the disputed provision in the present case clearly indicates that defendant OPC was assuming responsibility for the debts of Arc-Mation. The language used was clear and unambiguous and not susceptible to a contrary interpretation.

When two parties have made a contract and have expressed it in a writing which they have both assented to as being the complete and accurate integration of that contract, then extrinsic evidence of antecedent or contemporaneous understandings and negotiations is not admissible for the purpose of varying or contradicting the writing. NAG Enterprises, Inc v All State Industries Inc, 85 Mich App 194, 198; 270 NW2d 738 (1978).

In the present case, because the contract provision is unambiguous and unconditional on its face and the affidavit that OPC has submitted is inconsistent with the written language of that provision, the affidavit is not admissible and as such cannot create a material question of fact. Therefore, the district court judge did not err in granting summary judgment in favor of plaintiff.

The judgment of the district court is affirmed. Costs to plaintiff.


source: Caselaw Access Project

author: T. M. Burns, P.J.

license: Public Domain

text:
    PEOPLE v KNIGHT
    Docket No. 78-567.
    Submitted October 2, 1979, at Detroit.
    Decided January 3, 1980.
    Reginald Knight pled nolo contendere to charges of manslaughter and possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, John Patrick O’Brien, J. Defendant appeals, alleging that he was denied effective assistance of counsel, that his plea was not voluntarily, intelligently or knowingly made and that the lower court failed to state adequately on the record its reason for acceptance of the plea. Held:

    1. Defendant was not denied effective assistance of counsel.
    2. At the time of sentencing the defendant requested permission to withdraw his plea. The request was denied. Such permission should be granted where the defendant has a sufficiently non-frivolous reason for wishing to withdraw his plea. The case should be remanded for an evidentiary hearing to establish whether or not the defendant’s reasons for seeking withdrawal of his plea are frivolous.
    3. The lower court’s reason for acceptance of the nolo contendere plea, that the defendant’s recollection of the facts was unclear because he was "groggy”, was sufficient to satisfy the court rule regarding the acceptance of nolo contendere pleas.
    Remanded for further proceedings.
    1. Criminal Law — Pleas — Withdrawal op Plea.
    A defendant has no absolute right to withdraw a plea; however, requests to withdraw pleas should be granted with great liberality where made prior to sentencing.
    2. Criminal Law — Plea of Nolo Contendere — Withdrawal op Plea.
    A trial court must make an inquiry into a defendant’s reasons for wishing to withdraw a previously entered plea of nolo contendere where the request to withdraw is made prior to sentencing, and if the defendant’s reasons are sufficiently non-frivolous the request to withdraw the plea should be granted.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 503.

       21 Am Jur 2d, Criminal Law § 507.

       Plea of nolo contendere. 89 ALR 2d 540.

       21 Am Jur 2d, Criminal Law § 499.

       21 Am Jur 2d, Criminal Law §§ 497, 499,

      3. Criminal Law — Plea of Nolo Contendere — Factual Basis for Plea — Preliminary Examination.
    A preliminary examination transcript may properly be relied upon by a trial court for the purpose of establishing the factual basis for a defendant’s plea of nolo contendere.
    4. Criminal Law — Plea of Nolo Contendere — Acceptance of Plea.
    A trial court may properly accept a nolo contendere plea where the defendant’s recollection of the facts of the criminal offense with which he is charged is unclear.

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

      Robert B. Tatham, for defendant on appeal.
    Before: T. M. Burns, P.J., and Bronson and R. M. Maher, JJ.
   T. M. Burns, P.J.

Defendant-appellant, Reginald Knight, appeals of right his October 31, 1977, pleas of nolo contendere to the crimes of manslaughter, MCL 750.321; MSA 28.553, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On November 8, 1977, defendant was sentenced to consecutive terms of 2-1/2 to 15 years for the former offense and two years for the latter. Defendant has raised three issues for our consideration and we find that one of them requires remand to the lower court.

Initially, we note that we find no merit in defendant’s argument that he was denied effective assistance of counsel. Our review of the lower court record persuades us that defense counsel conscientiously protected defendant’s interest and performed as well as a lawyer with ordinary training and skill in the criminal law. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976). Moreover, we find that none of defense counsel’s actions have resulted in a serious error but for which defendant would have had a reasonable likelihood of acquittal. People v Degraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969).

Defendant also contends that his plea was not voluntarily, intelligently or knowingly made and that the lower court erred in refusing to permit him to withdraw his plea at sentencing. The transcript of the plea proceeding indicates that defendant expressed an initial reluctance to make an inculpatory plea:

"Court: Do you understand this plea is the result of bargaining between your attorney, Mr. Roth, and the Prosecutor?
"Defendant: Yes.
"Court: And that’s all right with you?
"Defendant: No, sir.
"Court: I don’t know what you’re saying.
"Defendant: No, I don’t want to take the plea bargaining.”

Following this exchange a conversation was held off the record. Thereafter, the plea proceeding continued and defendant made his nolo contendere plea which was accepted. The plea transcript does not disclose a factual basis supporting defendant’s plea. Apparently, defendant’s recollection of the criminal incident was so sketchy as to make it virtually impossible for him to recount his criminal activity. Nonetheless, on the date of sentencing, defendant, convinced that he was not guilty of any offense, requested permission to withdraw his plea.

Although there is no absolute right to withdrawal of a plea, requests to do so should be granted with "great liberality” if made prior to sentencing. People v Price, 85 Mich App 57; 270 NW2d 707 (1978), lv den 405 Mich 819 (1979), People v Winegar, 78 Mich App 764; 261 NW2d 45 (1977). In People v Moore, 74 Mich App 195, 198; 253 NW2d 708 (1977), a panel of this Court held that where a defendant moves to withdraw a guilty plea, the trial court must "inquire in some detail why the defendant wishes to do so”. We recognize that in the instant case we are not concerned with a "guilty plea” but rather with a plea of nolo contendere. However, because we are concerned with the maintenance of judicial integrity, we see no valid reason to distinguish on this point between guilty pleas and pleas of nolo contendere. If a defendant who has previously pled nolo contendere to a criminal charge seeks to have that plea withdrawn prior to sentencing on it, the trial court must make an inquiry into the defendant’s reasons for wishing to withdraw the plea. If the defendant has a sufficiently non-frivolous reason for wishing to withdraw the plea then he should be permitted to do so.

Therefore, we adopt the remedy approved of in Moore and remand this cause to the lower court with an instruction to conduct an evidentiary hearing on whether defendant’s reasons for attempting to withdraw his plea were non-frivolous.

In establishing the factual basis for defendant’s plea, the trial court relied upon the preliminary examination transcript. There is nothing improper, per se, in the use of a preliminary examination transcript for this purpose. People v Belanger, 73 Mich App 438, 455; 252 NW2d 472 (1977), People v Gonzales, 70 Mich App 319; 245 NW2d 734 (1976).

Defendant alludes to the fact that the lower court did not adequately comply with GCR 1963, 785.7(3)(b), and justify on the record its reason for accepting the nolo contendere plea. However, both the prosecutor and defense counsel conceded at the plea proceeding that defendant’s recollection of the facts of the criminal offense were unclear because he was "groggy”. The trial court concluded that this was a sufficient reason for accepting a nolo contendere plea. The trial court’s conclusion is correct. Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975), People v Seaman, 75 Mich App 546, 550; 255 NW2d 680 (1977).

Remanded for further proceedings consistent with this opinion.


author: Allen, P.J.

text:
    PEOPLE v COULTER PEOPLE v LaVICTOR
    Docket Nos. 78-1112, 78-1113.
    Submitted October 4, 1979, at Grand Rapids.
    Decided January 3, 1980.
    Leave to appeal denied, 408 Mich 925.
    Defendants, John Coulter and Ruben LaVictor, were charged with sodomy and convicted of attempted sodomy in the Marquette Circuit Court. At the time of the offense, defendants were inmates at the Marquette Prison. At trial the court, Edward A. Quinnell, J., at the request of the prosecution and over the objection of defense counsel, instructed the jury on both sodomy and attempted sodomy. The court also ruled that certain witnesses, listed by the defendants in their notice of alibi but not called, could be called by the prosecution for rebuttal even though not listed in the prosecutor’s notice of rebuttal of alibi. Defendants appeal alleging the foregoing as error and attacking the constitutionality of the sodomy statute. Held:

    1. A defendant may be convicted of a necessarily lesser included offense of the offense charged even where the evidence shows a completed offense. Attempted sodomy is a necessarily lesser included offense of sodomy.
    2. It was not error for a trial judge to allow a prosecutor to call as rebuttal witnesses persons who were listed on the defendant’s notice of alibi but were not called where the prosecutor had informed defense counsel of his intention to call the witnesses several days earlier.
    3. The criminal statute prohibiting sodomy is not unconstitutionally vague. Consensual sodomy between prison inmates may be constitutionally prohibited by statute.
    Affirmed.
    References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 226.

       81 Am Jur 2d, Witnesses § 4.

       70 Am Jur 2d, Sodomy §§ 1, 2.

       70 Am Jur 2d, Sodomy § 18.
    Consent as defense in prosecution for sodomy. 58 ALR 3d 636.

      1. Criminal Law — Necessarily Lesser Included Offenses.
    A defendant may be convicted of a necessarily lesser included offense of the offense charged even where the evidence shows a completed offense.
    2. Criminal Law — Witnesses — Rebuttal Witnesses — Notice.
    It was not error for a trial judge to allow a prosecutor to call as rebuttal witnesses persons who were listed on the defendant’s notice of alibi but were not called where the prosecutor had informed defense counsel of his intention to call the witnesses several days earlier.
    3. Sodomy — Statutes — Constitutional Law.
    The criminal statute prohibiting sodomy is not unconstitutionally vague (MCL 750.158; MSA 28.355).
    4. Sodomy — Statutes — Constitutional Law.
    Consensual sodomy between prison inmates may be constitutionally prohibited by statute (MCL 750.158; MSA 28.355).

      P. E. Bennett, Assistant State Appellate Defender, for defendants on appeal.
    Before: Allen, P.J., and Bashara and Beasley, JJ.
   Allen, P.J.

Defendants were charged with committing "the abominable and detestable crime against nature”, i.e., sodomy, MCL 750.158; MSA 28.355, with each other while they were inmates at Marquette Prison. Following a three-day trial by jury, defendants were found guilty of the lesser included offense of attempted sodomy. On January 20, 1978, each defendant was sentenced to a term of 90 days to be served after the expiration of the terms defendants were already serving in prison. Each defendant appeals of right. No brief was submitted by the prosecution.

I. Instructions on Attempt

At the request of the prosecution, the trial judge instructed the jury on both sodomy and attempted sodomy. The attempt instruction was objected to by defense counsel. Defendants argue that since the evidence, if believed, showed either a completed act of sodomy or some other act, the trial court could only instruct on sodomy or some other act. The argument that where the evidence establishes consummation of a felony there can be no conviction of an attempt to commit a felony was rejected in People v Baxter, 245 Mich 229, 232; 222 NW 149 (1928), where the Court said:

"Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v Lardner, 300 Ill 264 (133 NE 375). But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v Miller, 96 Mich 119; People v Blanchard, 136 Mich 146. Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; at least he cannot be heard to say that he has suffered injury.”

That ruling has been repeated in People v Bradovich, 305 Mich 329, 332; 9 NW2d 560 (1943), and People v Lovett, 396 Mich 101, 102; 238 NW2d 44 (1976), and is in accord with the general rule in this country. See United States v York, 578 F2d 1036, 1039 (CA 5, 1978).

II. Notice of Rebuttal of Alibi

Prior to trial, defendants filed notices of alibi, each stating that when the alleged offense occurred, defendants were at a different place within the prison. Both notices listed six witnesses, two of whom were prison- officers Marshall and Lehtomaki. At voir dire, the prosecutor moved to add the names of Marshall and Lehtomaki to the list of witnesses on the information. The motion was denied but the court ruled the witnesses could be called to rebut the alibi defense since there would be no surprise to defendants because the witnesses were listed in defendants’ notice of alibi. After defendants rested, the court denied their motion to prohibit rebuttal testimony by Marshall and Lehtomaki. Defendants contend the trial court’s ruling violates both the language and the purpose of the statute which provides that the prosecutor must file a notice of rebuttal of alibi containing the names of the witnesses to be called, not later than five days before trial. We disagree and, in so doing, distinguish thé instant case from People v Terry Alexander, 82 Mich App 621; 267 NW2d 466 (1978), and the majority opinion in People v Wilson, 90 Mich App 317; 282 NW2d 2 (1979).

In both Alexander and Wilson, this Court held that although defendant could not be surprised as to what the witnesses would testify if called, they could be surprised that unlisted witnesses would in fact be called, Wilson, supra, 320. In the instant case, the prosecutor had told each defense counsel of his intentions several days earlier, and neither defense attorney sought an adjournment. Thus, we cannot say that defendants were "surprised” by the fact that officers Marshall and Lahtomaki were called.

The pertinent statutory language provides:

"Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.” (Emphasis added.) MCL 768.20(2); MSA 28.1043(2).

In a sense, and as was stated in the dissenting opinion in Wilson, supra, 322, what took place here was that the notice of rebuttal was served on defendants "at such other time as the court may direct”, that time being when the trial court ruled that the two witnesses could be called to rebut the alibi defense. Under these circumstances, we hold that the exercise of discretion by the trial judge in permitting the prosecution to call the witnesses in rebuttal was not clearly erroneous under the statute.

III. Constitutionality op Statute

Defendants challenge the constitutionality of the sodomy statute on three grounds: (1) vagueness in that the average person does not understand that is meant by "the abominable and detestable crime against nature”; (2) denial of equal protection because the statute treats male homosexual intercourse more harshly than female' homosexual intercourse; and (3) overbreadth in that it prohibits conduct protected by the constitutional guarantee of privacy. We will briefly discuss the issues raised.

The claim of the statute’s vagueness was raised and rejected by this Court in People v Green, 14 Mich App 250, 251; 165 NW2d 270 (1968), and People v Stevenson, 28 Mich App 538, 540; 184 NW2d 541 (1970). Defendants would have us reconsider those cases in light of Franklin v State, 257 So 2d 21, 23 (Fla, 1971), where a Florida statute containing the same language as the Michigan statute was struck down for vagueness. We decline the invitation. Two years later, in Wainwrighi v Stone, 414 US 21; 94 S Ct 190; 38 L Ed 2d 179 (1973), the United States Supreme Court, in a case involving the same Florida statute, declined to apply the statute retroactively. The Court held that in view of prior well-established Florida case law, defendants were on clear notice that their conduct was criminal. A similar result was reached in regard to a Tennessee statute proscribing "crime against nature”. Rose v Locke, 423 US 48; 96 S Ct 243; 46 L Ed 2d 185 (1975).

Defendants’ reliance on Loving v Virginia, 388 US 1; 87 S Ct 1817; 18 L Ed 2d 1010 (1967), for the proposition that the statute creates a gender-based unequal treatment is misplaced. Defendants argue that had both defendants been women, an act of sexual penetration between them would not have come within the statute. Loving involved a Virginia miscegenation statute providing punishment "[i]f any white person intermarry with a colored person, or any colored person intermarry with a white person”. The statute on its face created the classification. In the instant case the separate classification is only inferred and only arises from the natural physical differences between men and women. Accordingly, we find no gender-based discrimination.

Finally, we find it unnecessary to determine whether the sodomy statute infringes on the right to privacy of all adults. We need only decide whether its application to adult prison inmates violates the constitutional guarantee of privacy. Cf. People v Conville, 55 Mich App 251; 222 NW2d 312 (1974). On that issue we adopt the holding in United States v Brewer, 363 F Supp 606, 608 (MD Pa, 1973), where, in sustaining the constitutionality of a Pennsylvania statute on sodomy, the Court said:

"Considering the fact that inmates are in need of protection from sexual and other assaults encountered in prison, prohibition of consensual sodomy in prison cannot be viewed as unconstitutional legislation. It is not necessary to reach the result in this case on the basis of finding an absence or near absence of a prisoner’s right to privacy. The interest in preventing disorder in prison and injury to prisoners is sufficient to justify the existence of a prison regulation, or a state or federal statute, prohibiting consensual acts of sodomy between prison inmates. Two additional factors to be considered in balancing the state’s interest in proscribing a prisoner’s conduct against asserted constitutional rights or privileges are: (1) the threats of violence which may cause a victim to 'consent’ to sodomy, and as a corollary, the difficulty in proof, and (2) the very tense and potentially dangerous situation existing within the prison confines as opposed to society at large. These additional factors convince the court that 'consensual’ sodomy between prison inmates may be validly prohibited.”

Defendants’ convictions are affirmed.

       Defendant suggests that the some other act could be "slick-legging” which could be lewd and lascivious behavior, MCL 750.335; MSA 28.567, or indecent exposure, MCL 750.335a; MSA 28.567(1), both of which are misdemeanors.

       "Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of thd witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.” MCL 768.20(2); MSA 28,1043(2),

       In addition, we note that the challenged statute is equally applicable to acts of sodomy between a man and a woman, People v Askar, 8 Mich App 95, 98-99; 153 NW2d 888 (1967), or between a man or a woman and an animal. People v Carrier, 74 Mich App 161, 165-166; 254 NW2d 35 (1977). Thus, in at least one sense, i.e., bestiality, MCL 750.158; MSA 28.355, prohibits and punishes, without regard to the sex of the accused, acts constituting "crimes against nature” and "sodomy”. Id.


author: Riley, J. N. J. Kaufman, J. Danhof, C.J.

text:
    PEOPLE v ALLEN
    Docket No. 78-1434.
    Submitted October 19, 1979, at Detroit.
    Decided January 3, 1980.
    Leave to appeal applied for.
    Samuel Allen, armed with a pistol, came into a bedroom where a two-year-old child was sleeping, ordered the occupants and guests who were present in the room to lie on the floor, and demanded money from one of the guests. When the guest refused, Allen fired a shot. At that point, the child’s father gave defendant all his money. After Allen left, the child was found shot and later died. Allen was charged with felony murder, armed robbery and possession of a firearm in the commission of a felony. He was convicted of second-degree murder, armed robbery and possession of a firearm in the commission of a felony, Recorder’s Court of Detroit, John P. O’Brien, J. Defendant appeals alleging that the trial court erred in refusing to instruct the jury on manslaughter as a lesser included offense of felony murder, that there was reversible error based on the inadvertent submission to the jury of an exhibit not introduced into evidence, that reversal is required because the trial judge failed to respond to the jury’s questioning as to why defendant failed to take the stand, that the felony-firearm statute is unconstitutional and that the findings of the jury were reversibly inconsistent.

      References for Points in Headnotes

       40 Am Jur 2d, Homicide §§ 7, 499, 511, 525.

       40 Am Jur 2d, Homicide §§ 270, 409 et seq.

    Prejudicial effect of prosecuting attorney’s misconduct in physically exhibiting to jury objects or items not introduced as evidence. 46 ALR 2d 1423.

       40 Am Jur 2d, Homicide § 482 et seq.

    Propriety under Griffin v California and prejudicial effect of unrequested instruction that no inferences against accused should be drawn from his failure to testify. 18 ALR 3d 1335.
    Violation of federal constitutional rule (Griffin v California) prohibiting adverse comment by prosecutor or court upon accused’s failure to testify, as constituting reversible or harmless error. 24 ALR 3d 1093.

       40 Am Jur 2d, Homicide § 545.
    76 Am Jur 2d, Trial § 1155 et seq.

    Inconsistency of criminal verdict as between different counts of indictment or information. 18 ALR 3d 259.

       40 Am Jur 2d, Homicide §§ 72, 474, 476.
    What felonies are inherently or forseeably dangerous to human life for purpose of felony-murder doctrine. 50 ALR 3d 397.

       21 Am Jur 2d, Criminal Law § 165 et seq.

    40 Am Jur 2d, Homicide § 183 et seq.

       5 Am Jur 2d, Appeal and Error §§ 838, 883.
    40 Am Jur 2d, Homicide § 559.

      D. C. Riley, J., would hold:
    1. There was no credible evidence to support a manslaughter verdict; therefore, failure to instruct on that alternative was not reversible error.
    2. Improper admission of an exhibit mandates reversal if the error might have operated to substantially injure the defendant’s case. However, the substance of the objectionable police report was presented to the jury on various occasions at trial and there was no impairment of defendant’s rights.
    3. The judge’s instructions, viewed as a whole, do not lead to a conclusion that the jury was improperly instructed or that the court abused its discretion in choosing not to reinstruct the jury as to why defendant had failed to take the stand.
    4. The felony-firearm statute is constitutional.
    5. Defendant’s armed robbery conviction should be reversed because verdicts of second-degree murder and armed robbery arising out of a single action by a defendant are inconsistent.
    She would affirm in part and reverse in part.
    N. J. Kaufman, J., concurs with Judge Riley’s treatment of all issues save one. He does not agree that second-degree murder and armed robbery convictions are reversibly inconsistent. He would affirm defendant’s second-degree murder conviction and vacate defendant’s robbery armed conviction by holding that simultaneous convictions of these crimes constitute a violation of defendant’s double-jeopardy rights.
    Danhof, C.J., concurs with Judge Riley except for the holding that the second-degree murder and armed robbery verdicts are reversibly inconsistent. He concludes that a jury, as sole judges of the facts, can find a defendant guilty of second-degree murder and armed robbery in the same trial. He would affirm defendant’s second-degree murder and armed robbery convictions.
    Opinion of D. C. Riley, J.
    1. Homicide — Included Offenses — Manslaughter — Evidence — Instructions to Jury — Appeal and Error.
    Manslaughter is not a necessarily included offense within the crime of murder; however, failure to instruct a jury on that alternative may be reversible error where evidence presented at trial could support a guilty verdict on that charge.
    2. Criminal Law — Evidence — Exhibits — Submission to Jury — . Prejudice — Error.
    The submission to a jury of exhibits not introduced into evidence • constitutes reversible error if the error might have operated to substantially injure the defendant’s case.
    3. Criminal Law — Instructions to Jury — Failure to Take Stand — Review — Instructions as a Whole — Judge’s Discretion.
    A trial judge’s failure to respond to a jury’s questioning as to why a defendant had failed to take the stand does not require reversal of his conviction where it cannot be said, viewing the jury instructions as a whole, that the jury was improperly instructed or that the court abused its discretion in choosing not to reinstruct the jury.
    4. Criminal Law — Inconsistent Verdicts — Rational Basis — Second-Degree Murder — Armed Robbery — Evidence.

      Inconsistent jury verdicts may not stand, unless they can be explained on a rational basis; verdicts of second-degree murder and armed robbery arising out of a single action by a defendant are reversibly inconsistent where there is no rational basis for explaining the verdicts under the evidence.

    5. Homicide — First-Degree Murder — Second-Degree Murder — Felony Murder — Elements — Enumerated Felonies.
    Felony murder is a second-degree murder plus the additional element of committing, or attempting to commit, an enumerated felony; therefore, if a first-degree felony-murder verdict is to be returned, the homicide must be found to have occurred during the perpetration or attempt to perpetrate an enumerated felony.
    6. Constitutional Law — Criminal Law — Double Jeopardy —■ Felony Murder — Armed Robbery.

      The double-jeopardy clause ensures that defendants will not be tried twice for the same offense; trying a defendant for both felony murder and the underlying felony of armed robbery violates the double-jeopardy clause because defendant is twice subjected to jeopardy for the same act.

      Opinion of N. J. Kaufman, J.
    7. Criminal Law — Constitutional Law — Inconsistent Verdicts — Second-Degree Murder — Robbery Armed — Simultaneous Convictions — Double Jeopardy.

      Second-degree murder and robbery armed convictions arising out of a single action are not reversibly inconsistent; however, simultaneous convictions of these crimes could, depending upon the facts of the case, constitute a violation of a defendant’s double-jeopardy rights.

    8. Criminal Law — Constitutional Law — Double Jeopardy Second-Degree Murder — Robbery Armed — Overlapping Elements — Criminal Intent.

      A defendant may not be convicted of two crimes where, on the facts of a particular case, the trier of fact must necessarily find him guilty of one in order to ñnd him guilty of the other; conviction of felony murder and the underlying felony of robbery armed clearly violates a defendant’s double-jeopardy rights under the rule because the elements of the crimes overlap; the same rule should apply where a defendant’s intent to kill can only be inferred from the commission of a robbery because it becomes necessary for the jury to ñnd the defendant guilty of the robbery in order to ñnd him guilty of second-degree murder and this situation gives rise to a type of double jeopardy where a factual overlap in elements suggests that the jury might have compromised with respect to a defendant’s second-degree murder conviction since an imputation of the intent or malice element of robbery would have called for a felony-murder conviction which is a violation of double-jeopardy rights.

    Opinion of Danhof, C.J.
    9. Criminal Law — Lesser Included Offenses — Function of Jury — Second-Degree Murder — Armed Robbery — Felony Murder — Appeal and Error.

      A jury, as sole judges of the facts, can ñnd a defendant guilty of second-degree murder and armed robbery in the same trial; a jury is allowed to reject a felony-murder charge and convict a defendant of a lesser crime even though it would appear to be in the teeth Of undisputed facts because it is not for an appellate court to look to the facts and decide that the jury had to ñnd felony murder or it could not ñnd an armed robbery.

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

      Sallen, Sallen, Seymour & Sallen, for defendant on appeal.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   Riley, J.

On June 2, 1977, defendant was charged with felony murder, contrary to MCL 750.316; MSA 28.548, armed robbery, contrary to MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). Defendant was jury convicted on January 30, 1978, of second-degree murder, contrary to MCL 750.317; MSA 28.549, and the above latter two offenses. He was sentenced to concurrent terms of 40 to 60 years on the murder and armed robbery charges and a consecutive two year term for the felony-firearm charge. Defendant appeals as of right.

Defendant first contends that the lower court erred in refusing to instruct the jury on manslaughter as a lesser included offense of felony murder. Although manslaughter is not necessarily a lesser included offense of murder, failure to instruct on that alternative may be reversible error where the evidence presented at trial could support a guilty verdict on that charge. People v Van Wyck, 402 Mich 266, 268; 262 NW2d 638 (1978). In the instant case, there was no credible evidence to support a manslaughter verdict; hence, defendant’s contention is without merit.

Defendant further suggests that there was reversible error based on the inadvertent submission to the jury of an exhibit not introduced into evidence. An improper admission mandates reversal if the error might have operated to substantially injure the defendant’s case. People v Talley, 56 Mich App 598, 601; 224 NW2d 660 (1974), People v Page, 41 Mich App 99, 103; 199 NW2d 669 (1972). Since the substance of the objectionable police report was presented to the jury on various occasions at trial, we find no impairment of defendant’s rights.

It is asserted also that reversal is required because the trial judge failed to respond to the jury’s questioning as to why defendant had failed to take the stand. Viewing the judge’s instructions as a whole, People v Miller, 35 Mich App 627, 630; 192 NW2d 517 (1971), we cannot say that the jury was improperly instructed or that the court abused its discretion in choosing not to reinstruct them. See People v Howe, 392 Mich 670, 676; 221 NW2d 350 (1974), People v Bloom, 76 Mich App 405, 407-409; 257 NW2d 105 (1977).

We find that there is no reversible error based on defendant’s felony-firearm contentions. See Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), People v MacPherson, 323 Mich 438, 449; 35 NW2d 376 (1949), People v Cannon, 252 Mich 182, 184; 233 NW 210 (1930), People v Hodo, 51 Mich App 628, 636-637; 215 NW2d 733 (1974).

While my brother judges and I concur in the result reached on the previous issues, we part company on the final issue argued by defendant that the findings of the jury were reversibly inconsistent. In Michigan, inconsistent verdicts may not stand unless they can be explained on some rational basis. People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976), People v Fields, 66 Mich App 347; 239 NW2d 372 (1976), People v Ames, 60 Mich App 168; 230 NW2d 360 (1975), People v Willie Johnson, 58 Mich App 165; 227 NW2d 272 (1975), People v Phillips, 43 Mich App 581; 204 NW2d 250 (1972). As I find no reasonable way to harmonize defendant’s second-degree murder and armed robbery convictions, the robbery conviction must be reversed.

Felony murder, with which defendant was originally charged, is second-degree murder plus the additional element of committing, or attempting to commit, an enumerated felony. People v Crown, 75 Mich App 206, 215; 254 NW2d 843 (1977). Thus, if a first-degree murder verdict is to be returned, the homicide must be found to have occurred during the course of the felony. People v Widgren, 53 Mich App 375, 385; 220 NW2d 130 (1974).

It is clear from the instant record that the murder took place during the time that defendant asked for and received money, there being conflicting testimony as to whether it was his money, and thus, not robbery. See People v Holcomb, 395 Mich 326; 235 NW2d 343 (1975), People v Hobbs, 68 Mich App 239; 242 NW2d 535 (1976). It is inescapable then, that in finding defendant not guilty of felony murder, while convicting him of second-degree murder, the jury must have also concluded that no robbery occurred at the time of the homicide. See People v McCurtis, 84 Mich App 460; 269 NW2d 641 (1978). Therefore, I conclude that defendant’s conviction for armed robbery must be vacated.

Although the issue is not raised by defendant, on the facts of this case, he has a valid double-jeopardy claim. The double-jeopardy clause ensures that defendants will not be tried twice for the same offense. North Carolina v Pearce, 395 US 711-717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). Yet, trying defendant for both felony murder and the lesser included offense of armed robbery twice subjected him to jeopardy on the armed robbery charge.

I believe that this double-jeopardy claim would entitle defendant to reversal were it not for the inconsistent verdicts, and not the double-jeopardy claim advocated by Judge Kaufman. If, as my brother judge contends, the jury would have had to find defendant guilty of armed robbery in order to find him guilty of murder, then the jury would have convicted defendant of first-degree murder and not second-degree murder. With all due respect, I believe Judge Kaufman’s position is a circuitous route to the unavoidable conclusion that the jury’s verdicts were inconsistent.

I would affirm in part and reverse in part.

N. J. Kaufman, J.

(concurring). I concur with the result. I also agree with Judge Riley’s treatment of all of the issues save one. With respect to this exception, then, I concur only in the result. I do not agree with the reasons espoused in support of this result. Specifically, second-degree murder and robbery armed convictions are not reversibly inconsistent. Instead, on the facts of this case, I find that simultaneous convictions thereon constitute a violation of defendant’s double jeopardy rights.

Had the defendant been convicted of felony murder and the underlying felony of robbery armed, it is clear that his double-jeopardy rights would have been violated. See People v Wilder, 82 Mich App 358; 266 NW2d 847 (1978). The fact that the jury convicted him of second-degree murder and robbery armed should not affect this determination. The testimony and evidence indicate that the victim’s death occurred as a result of the robbery perpetrated by the defendant. The defendant’s intent to kill, then, can only have been inferred from the commission of the robbery. Therefore, the jury necessarily had to find the defendant guilty of the robbery in order to find him guilty of second-degree murder. This situation gives rise to a type of factual double jeopardy. Defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other, People v Martin, 398 Mich 303, 307; 247 NW2d 303 (1976), People v Stewart, 400 Mich 540, 548-549; 256 NW2d 31 (1977), People v Terry Alexander, 82 Mich App 621, 624; 267 NW2d 466 (1978).

This rationale is not undermined by the decision in People v Hicks, 88 Mich App 675; 279 NW2d 45 (1979). In that case, the defendant was charged with felony murder and armed robbery, but convicted of manslaughter and armed robbery. This was deemed acceptable against a double-jeopardy challenge because the crimes upon which the defendant was convicted had different elements, different statutory purposes, and neither was a lesser included offense of the other, Hicks, supra, 678. Whereas, in the instant case, the elements of the crimes overlap factually according to the test enunciated in Stewart and Martin, supra. This factual overlap in elements suggests that the jury might have compromised with respect to the defendant’s second-degree murder conviction since an imputation of the intent or malice element of robbery would have called for a felony-murder conviction.

This Stewart and Martin factual double-jeopardy test, supra, was discussed recently in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979). In that case, the Supreme Court upheld the felony-firearm statute against a factual double-jeopardy challenge on the grounds that the Legislature clearly expressed in the felony-firearm statute an intent to authorize multiple convictions and cumulative punishments based on one occurrence. No such legislative intent theory would apply in the case at bar to support the defendant’s dual convictions, however.

Therefore, I would find that the defendant’s convictions for second-degree murder and robbery armed violated the double-jeopardy test enunciated in Stewart and Martin, supra. Accordingly, although I concur in the affirmance of defendant’s second-degree murder conviction and the vacation of this robbery armed conviction, I do so for the reasons stated hereinbefore.

Danhof, C.J.

(concurring in part, dissenting in part). I concur, except for the holding that the second-degree murder and armed robbery verdicts are reversibly inconsistent. I believe the jury, as the sole judge of the facts, can consistently find second-degree murder and armed robbery. The testimony showed that defendant, armed with a pistol, came into a bedroom where a two-year-old child was sleeping, ordered the occupants and guests, who were present in the room, to lie on the floor, and demanded money from one of the guests. When the guest refused, defendant fired a shot. At that point, the child’s father gave defendant all his money. After defendant left, the child was found shot. He later died.

Judge Riley’s opinion states, "It is clear from the instant record that the murder took place during the time that defendant asked for and received money, * * From this factual determination, Judge Riley’s opinion concludes that the verdicts are inconsistent. The lesser included offense analysis of the Michigan Supreme Court in People v Chamblis, 395 Mich 408, 420-421; 236 NW2d 473 (1975), demonstrates that this jury has the right to find the facts differently:

"The jury is the sole judge of all of the facts presented. It may choose to believe or disbelieve any or all of the evidence. That is the essence of the right to a jury trial. To speak of a requirement that the jury 'justify’ its conclusion that the defendant is not guilty of the higher charge before 'allowing’ it to convict of the lesser is antithetical to the nature of a jury trial.
"Because the jury is the sole judge of all the facts, it can choose, without any apparent logical basis, what to believe and what to disbelieve. What may appeal to the judge as 'undisputed’ need not be believed by a jury.
"Certainly no one would deny the jury’s absolute right to disbelieve all the 'undisputed evidence’ and acquit the defendant altogether. A 'jury has the power to bring in a verdict in the teeth of both law and facts’. Horning v District of Columbia, 254 US 135, 138; 41 S Ct 53; 65 L Ed 185 (1920).
" 'It is the policy of the law to allow juries a latitude which is not hemmed in by absolute logic. Many considerations enter into a jury’s verdict which cannot be itemized and weighted in a chart of legal instructions. A jury is expected to stay within the bounds of reason, yet they may indulge tender mercies even to the point of acquitting the plainly guilty. Similarly they may, on almost any excuse, convict of a lower degree of crime although conviction of a higher degree is clearly warranted.’ People v Clemente, 285 App Div 258, 264; 136 NYS2d 202, 207 (1954).”

I would hold that these principles allow the jury to reject felony murder and find the lesser included offense of second-degree murder and the separate offense of armed robbery. It is not for an appellate court to look to the facts and decide that the jury had to find felony murder or could not find an armed robbery. As the Supreme Court said in People v Phillips, 385 Mich 30, 37; 187 NW2d 211 (1971), "Even though the evidence for the people, if believed, shows the defendant to be guilty of the offense charged, this does not preclude a conviction of a lesser offense”.

In summary» I believe the verdicts are not inconsistent because they can be explained in a rational manner: The jury found that defendant committed second-degree murder and armed robbery, but found that the murder was not "committed in the perpetration” of a robbery. Thus, it was not felony murder. See MCL 750.316; MSA 28.548.

I feel that the jury has a right to convict defendant of a lesser crime even though it would appear, to a reviewing court to be in the teeth of undisputed facts. This jury exercised that right. I would affirm defendant’s conviction for armed robbery.


author: E. F. Oppliger, J.

text:
    PEOPLE v THOMAS JOHNSON
    Docket No. 78-1459.
    Submitted June 14, 1979, at Grand Rapids.—
    Decided January 3, 1980.
    Thomas Johnson was convicted of felonious assault, as a lessel included offense to an original charge of assault with intent to rob while armed, and he was convicted, on a supplemental information, of being an habitual offender, Kalamazoo Circuit Court, Patrick H. McCauley, J. The defendant appeals, alleging that 1) the trial court, in response to the defendant’s request, should have instructed the jury on several misdemeanor offenses as lesser included offenses of the original felony Charge, 2) the trial court’s refusal to either dismiss the supplemental habitual offender information or impanel a hew jury to hear the habitual offender charge violated the defendant’s constitutional privilege against self-incrimination, and 3) the trial court abused its discretion by allowing the defendant to be impeached with evidence of a cohviction obtained 16 years previously in a proceeding in which the defendant was not represented by counsel. Held:

    1. It is an established rule that, in any case wherein a charged offense is punishable by incarceration for more than two years, the trial court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less. The trial court did not err in refusing to instruct on the misdemeanor offenses.
    2. Once the jury was sworn in for the trial on the principal offense, the defendant was in jeopardy as to the principal offense and as to the supplemental habitual offender charge. Thus, the trial court could not, without the defendant’s consent, discharge the jury after the completion of the trial on the principal charge and impanel a new jury to hear the habitual offender charge without violating the defendant’s constitutional protection against double jeopardy. Since the defendant refused to consent to the jury’s dismissal, the trial court did not err in refusing to impanel a new jury.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 575, 604, 710, 876 et seq.

       21 Am Jur 2d, Criminal Law §§ 179, 194, 195.

       29 Am Jur 2d, Evidence §§ 320, 321, 327.

      3. Evidence of a defendant’s conviction obtained at a trial at which defendant was not represented by counsel is inadmissible for impeachment purposes. The admission of such evidence mandates reversal where it may have influenced the outcome of the case. In the case at bar, the complaining witness and the defendant had met in jail and the incident which led to the assault charge arose out of a heroin transaction. Thus, the credibility of both the defendant and the complaining witness were in question and the use of evidence of the conviction obtained without the aid of counsel might well have influenced the outcome. This was reversible error.
    Reversed and remanded for a new trial.
    1. Criminal Law — Lesser Included Offenses — Misdemeanors — Policy — Instructions to Jury.
    The cause of justice is not well served by charging a serious crime and convicting of a much lower offense; therefore, as a matter of policy, in any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct the jury on lesser included offenses for which the maximum allowable period of incarceration is one year or less.
    2. Criminal Law — Jury — Habitual Offenders —■ Dismissal of Jury — Double Jeopardy.
    A trial court has the discretion to impanel a new jury to hear an habitual offender charge brought in a supplemental information; however, enhancement of punishment for habitual offenders is not a separate proceeding from the trial on the principal charge and jeopardy attaches as to the supplemental charge when the jury is initially impaneled and sworn for trial on the principal charge; therefore, for a trial court to dismiss the jury on its own motion without the defendant’s consent prior to the trial on the supplemental charge and impanel a new one would be a violation of the defendant’s constitutional guarantee against double jeopardy and it is not error for a trial court to refuse to impanel a new jury for the supplemental charge where the defendant refuses to consent to dismissal of the first jury.
    3. Criminal Law — Trial — Evidence — Prior Conviction Record — Invalid Convictions — Admissibility — Impeachment — Reversible Error.
    Evidence contained in a criminal defendant’s prior conviction record regarding prior invalid convictions obtained without the benefit of counsel is inadmissible for impeachment purposes at the defendant’s trial; the erroneous admission of such evidence mandates reversal if the admission of evidence of the conviction might well have influenced the outcome of the case.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Principal Appellate Attorney, for the people.

      DeVries & Lamb, P.C., for defendant on appeal.
    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.

Defendant was charged with the offense of assault with intent to rob while armed. He appeals his convictions by a jury of the lesser included offense of felonious assault, MCL 750.82; MSA 28.277, and as an habitual offender, second offense, MCL 769.10; MSA 28.1082. He was sentenced on January 17, 1978, to a prison term of 5-1/2 to 6 years. Defendant’s motion for a new trial was denied on February 14, 1978.

Defendant raises a number of claims of error. We find that the impeachment of defendant with evidence of a conviction obtained without counsel 16 years earlier denied him a fair trial and warrants reversal. In addition to the impeachment issue, several of defendant’s claims of error merit consideration.

Defendant first challenges the rule of People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), that "[i]n any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less”. The trial court, on the basis of the Chamblis rule, denied defendant’s request that the jury be instructed on several misdemeanor offenses. Defendant argues that this rule impermissibly invades the province of the jury to find the facts, denies the defendant effective assistance of counsel, and is without rational basis.

We find this claim to be without merit. The Supreme Court in Chamblis stated that the purpose of the rule was to prevent unexplainable compromise verdicts. That is a permissible objective, and it is reasonable to assume that crimes punishable by more than two years imprisonment are more serious and present a greater possibility of compromise than those which are punishable by less than two years imprisonment. Effective assistance of counsel is not denied, as defense counsel may argue to the jury that the prosecutor levied the wrong charge against the defendant. Further, the jury must find each element beyond a reasonable doubt before it may convict.

Because we uphold the application of the rule in Chamblis, supra, to defendant’s conviction for felonious assault, we find no merit in defendant’s argument that it was improper to base the habitual offender charge on a felony conviction in which the jury was not allowed to consider a lesser included misdemeanor offense. People v Kamin, 405 Mich 482; 275 NW2d 777 (1979), People v Choate, 88 Mich App 40, 49; 276 NW2d 862 (1979).

Defendant next argues that the trial court’s refusal to either dismiss the supplemental habitual offender information or impanel a new jury to hear the habitual offender charge violated his constitutional privilege against self-incrimination. Defendant had testified with regard to the charge on the principal information and been impeached by a prior conviction which formed the basis of the supplemental information.

At trial when defendant considered testifying with regard to the principal charge, the question arose as to what effect impeachment of defendant by his prior convictions would have if the same jury was allowed to hear the habitual offender charge. The trial court recognized that it had discretion to impanel a new jury to hear the habitual offender charge. People v Stratton, 13 Mich App 350; 164 NW2d 555 (1968). The trial court ruled to allow cross-examination regarding prior convictions, but stated that a new jury would be impaneled if defendant so moved.

Upon defendant’s conviction for the lesser included felony, felonious assault, trial commenced on the supplemental information charging defendant as an habitual offender, second offense. The trial court expressed on the record a desire to impanel a new jury, but believed that jeopardy had already attached. Because the defendant did not move to dismiss the jury and the trial court felt that it could not, trial commenced on the habitual offender charge with the same jury. A cautionary instruction was given that the jury should disregard anything heard in the previous trial.

Enhancement of punishment under MCL 769.10; MSA 28.1082, for habitual offenders is not a separate proceeding from the trial on the principal charge. People v Stratton, supra. Jeopardy attached when the jury was initially impaneled and sworn. People v Gardner, 62 Mich 307; 29 NW 19 (1886), People v Williams, 85 Mich App 258; 271 NW2d 191 (1978). For the trial court to dismiss the jury on its own motion and impanel a new one without defendant’s consent would have violated defendant’s constitutional protection against double jeopardy. People v Williams, supra.

Defendant moved to dismiss the supplemental information but did not move to dismiss the jury. Since the trial court had already indicated its willingness to impanel a new jury, defendant was in primary control over the course to be followed. See People v Benton, 402 Mich 47; 260 NW2d 77 (1977). By refusing to consent to the jury’s dismissal, the defendant placed the trial court in the untenable position of denying defendant either his privilege against self-incrimination or his right to be free from double jeopardy. However, since enhancement of punishment under the habitual offender statute is but part of a unitary proceeding, it is defendant who has placed himself in this dilemma. By choosing to testify, he waived his constitutional privilege against answering self-incriminating questions material to the case, People v Tubbs, 22 Mich App 549; 177 NW2d 622 (1970), and then attempted to recapture it without losing the protection against double jeopardy. This the defendant may not do. The trial court committed no error in this regard.

Defendant’s last contention which merits consideration is that the trial court abused its discretion by allowing defendant to be impeached with evidence of a conviction obtained without counsel 16 years previously. We agree that error was committed which denied defendant a fair trial.

Michigan’s new rules of evidence were not in effect at the time of trial. Under those rules, evidence of defendant’s 1961 conviction for breaking and entering would not be admissible regardless of its probative value. MRE 609(b).

Under Loper v Beto, 405 US 473; 92 S Ct 1014; 31 L Ed 2d 374 (1972), evidence of convictions obtained without counsel, in violation of Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963), is inadmissible . for impeachment purposes. If it may well have influenced the outcome of the case, their admission into evidence will mandate reversal. People v Tucker, 86 Mich App 608; 273 NW2d 498 (1978).

In this case, defendant was impeached by evidence of his 1961 breaking and entering conviction and evidence of a 1972 narcotics conviction. Defendant’s defense to the principal charge was that the complaining witness owed him money from heroin investments, and there was already testimony that the two had met in jail. While defendant’s credibility was suspect, that of the complaining witness was no better. He had a criminal record which dated back over 25 years. Thus, the case boiled down to a credibility contest which defendant lost. The Court believes that impeachment with evidence of defendant’s prior invalid 1961 conviction might well have influenced the outcome of the case. Therefore, the trial court committed reversible error in allowing impeachment with evidence of the 1961 conviction.

Reversed and remanded for a new trial.


author: B. D. Burdick, J.

text:
    COATS v BUSSARD
    Docket No. 78-2016.
    Submitted June 7, 1979, at Grand Rapids.—
    Decided January 3, 1980.
    Leave to appeal applied for.
    Plaintiffs, Eli S. Coats and Sarah S. Coats, purchased a property from Mr. and Mrs. Uhlmann. They submitted an offer for the property through a real estate agent. The Uhlmanns counteroffered to sell all but a small portion of the land for the same price. Plaintiffs were never informed of the counteroffer excluding the portion of land, At closing the exception in the deed was explained by the real estate agents to be a reservation of a right of access to watch the sun set over Lake Michigan, and plaintiffs believed they were buying the complete parcel. Plaintiffs retained defendant, James W. Pussard, to represent them when they discovered that they did not own the excluded portion. Defendant commence?! an action against the Uhlmanns for reformation of the deed on the basis of mutual mistake. No action was brought against the real estate agents despite plaintiff’s requests to bring such an action. Plaintiffs substituted attorneys and amended their complaint to allege a cause of action against the real estate agents. The court held that their claim against the agents was barred by tpe statute of limitations. Plaintiffs also failed to recover against the Uhlmanns because it was held that the Uhlmanns had not intended to sell the excluded portion. Plaintiffs sued defendant on the ground that defendant was negligent in failing to pursue discovery, in failing to proceed alternatively against the realtors, in failing to move to strike the Uhlmanns’ answer and in failing to inform plaintiffs of a counterclaim against them. The Ottawa Circuit Court, James E. Townsend, J., granted defendant a judgment notwithstanding the verdict based on its conclusion that defendant’s actions were questions of attorney judgment, the soundness of which was supported by the great weight of the expert testimony. The court also ordered a new trial in the event the judgment notwithstanding the verdict he reversed for the reasons that a) by signing the original complaint against the Uhlmanns plaintiffs consented to defendant’s decision not to sue the realtors and b) the verdict was excessive. Plaintiffs appeal. Held:

      References for Points in Headnotes

       46 Am Jur 2d, Judgments § 113 et seq.

       7 Am Jur 2d, Attorneys §§ 167, 17Q, 189,
    J3J 31 Am Jur 2d, Expert and Opinion Evidence § 16.

       31 Am Jur 2d, Expert and Opinion Evidence §§ 133, 140.

       7 Am Jur 2d, Attorneys § 190.

       58 Am Jur 2d, New Trial §§ 3, 212 et seq.

      1. The grant of a defendant’s motion for a judgment notwithstanding the verdict is appropriate only if the evidence is insufficient as a matter of law to support a, judgment for the plaintiff, giving the plaintiff the benefit of every reasonable inference that can be drawn from the evidence. If reasonable men could honestly disagree as to whether the plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment notwithstanding the verdict is improper. Evidence of an error in judgment of a defendant attorney sued for malpractice is insufficient, as a matter of law, to support a judgment against him, but the fact that defendant obtained a competent expert to testify as to the reasonableness of his conduct does not render the conduct an error in judgment, as opposed to an act of negligence, as a matter of law. It is up to the jury to judge the weight which it will give to expert testimony. The grant of a judgment notwithstanding the verdict was error.
    2. A new trial may only be granted if the reasons assigned by the trial judge for his action are legally recognized and are supported by any reasonable interpretation of the record. The plaintiffs cannot be deemed, as a matter of law, to have analyzed and assessed the attorney's professional conduct and acquiesced in any negligence simply by signing the pleading or by being aware of the conduct.
    3. The prevailing plaintiffs in a legal malpractice action are entitled not only to the value of their lost claim, but also to the expenses and costs incurred by them as the result of defendant’s alleged negligence, such as the cost of the preparation of an appeal in the original case, where appropriate. There was sufficient evidence on the record to support the jury’s verdict.
    ■ Judgment vacated and case remanded with instructions to reinstate the original jury verdict.
    1, Judgment — Judgment Notwithstanding the Verdict — Evidence — Question of Fact.
    The grant of a defendant’s motion for a judgment notwithstanding the verdict is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff, giving the plaintiff the benefit of every reasonable inference that can be drawn from the evidence; if reasonable men could honestly disagree as to whether the plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment notwithstanding the verdict is improper.
    2. Evidence — Expert Testimony — Conflicting Testimony — Malpractice — Matters of Judgment.
    Evidence of an error in judgment of a defendant attorney sued for malpractice is insufficient, as a matter of law, to support a judgment against him, but the fact that the defendant obtained a competent expert to testify as to the reasonableness of his conduct does not render the conduct an error in judgment, as opposed to an act of negligence, as a matter of law; the presence of conflicting expert testimony, in a malpractice case, as to whether a defendant attorney was negligent does not render the defendant’s conduct a question of judgment as a matter of law.
    3. Evidence — Expert Testimony — Weight.
    It is up to the jury to judge the weight which it will give to expert testimony.
    4. Attorney and Client — Malpractice — Estoppel.
    A plaintiff in a legal malpractice action cannot be deemed, as a matter of law, to have analyzed and assessed the attorney’s professional conduct and acquiesced m any negligence simply by signing a pleading or by being aware of the conduct; thus, a party is not estopped to assert negligence against an attorney who acted on his behalf in suing only some of all the possible defendants even where he knew of the attorney’s action and signed the pleading.
    5. Witnesses — Expert Witnesses — Lay Witness — Special Knowledge — Real Property.
    A lay witness may testify regarding land value if he has seen the land and has some knowledge of the value of other lands in the immediate vicinity.
    6. » Attorney and Client — Malpractice — Damages — Expenses and Costs of Litigation.
    The prevailing plaintiffs in a legal malpractice action are entitled not only to the value of their lost claim but also to the expenses and costs incurred by them as the result of defendant’s alleged negligence.

      7. New Trial — Discretion — Grounds for New Trial — Evidence.
    A new trial may only be granted if the reasons assigned by the trial judge for his action are legally recognized and are supported by any reasonable interpretation of the record.

      Willingham, Coté, Hanslovsky, Griffith & Fores-man, P.C. (by John L. Coté and John A. Yeager), for plaintiff.

      Smith, Haughéy, Rice & Roegge (by Lance E. Mather), for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr., and B. D. Burdick, JJ.

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

   B. D. Burdick, J.

Plaintiffs brought an attorney malpractice action against the defendant which resulted in a jury award of $20,000 in their favor. Plaintiffs appeal the trial court’s order granting defendant’s motion for a judgment notwithstanding the verdict and ordering a conditional new trial in the event that the judgment notwithstanding the verdict be vacated or reversed.

Plaintiffs’ claims against defendant arose out of the defendant’s handling, on their behalf, of a cause of action involving the transactions that occurred when plaintiffs purchased their home. As part of these transactions, plaintiffs offered to purchase the home from a Mr. and Mrs. Uhlmann. The Uhlmanns made a counteroffer excluding a small portion of the land. The plaintiffs were not informed of the counteroffer, but nevertheless purchased the property; the exception in the deed was explained to plaintiffs, by the real estate agents, as an insertion to allow the Uhlmanns to return to Michigan occasionally to watch the sunset over Lake Michigan. Plaintiffs allegedly believed that they were buying the entire parcel of land. Defendant attorney was retained after plaintiffs learned that they did not own the excluded parcel of land.

Defendant commenced an action against the Uhlmanns for reformation of the deed on the basis of mutual mistake; no action was brought against the real estate agents involved, despite plaintiffs’ alleged requests to bring such an action. A subsequent attempt, by an attorney substituted for the defendant, to amend the complaint by adding a claim against the. real estate agents, was originally barred by the statute of limitations. Plaintiffs did not recover against the Uhlmanns on the theory of mutual mistake because it was held that the Uhlmanns had not intended to sell the excluded parcel.

Plaintiffs brought the instant action against the defendant on the ground that defendant was negligent in failing to pursue discovery, in failing to proceed in the alternative against the realtors, in failing to move to strike the defendant’s answer and in failing to inform the plaintiffs of a $70,000 counterclaim against them.

The trial court’s granting of defendant’s motion for a judgment notwithstanding the verdict was grounded, in large part, on its analysis that deferidant’s actions in these matters were questions of attorney judgment, the soundness of which was supported by the great weight of the expert testimony. This Court disagrees.

The standard of review for a judgment notwithstanding the verdict was recently summarized by this Court in Sabraw v Michigan Millers Mutual Ins Co, 87 Mich App 568, 571; 274 NW2d 838 (1978):

"A judgment notwithstanding the verdict on defendant’s motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff. Jackson v Fox, 69 Mich App 283; 244 NW2d 448 (1976). In making that determination, the court must give the plaintiff the benefit of every reasonable inference that could be drawn from the evidence. Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965). If reasonable men could honestly disagree as to whether the plaintiff has satisfied his burden of proof on the necessary elements of his cause of action, a judgment notwithstanding the verdict is improper. Kroll v Katz, supra; Jackson v Fox, supra.

The trial court was correct in its determination that evidence of an error in defendant’s judgment would have been insufficient, as a matter of law, to support a judgment for the plaintiff in this case. See Babbitt v Bumpus, 73 Mich 331, 337-338; 41 NW 417 (1889), 7 Am Jur 2d, Attorneys at Law, § 170, p 148. However, the fact that defendant obtained a competent expert to testify as to the reasonableness of defendant’s conduct does not render defendant’s conduct an error in judgment; as opposed to an act of negligence, as a matter of law. Plaintiffs also had expert testimony in support of their claims which, for purposes of this review, must be considered in the light most favorable to the plaintiffs. Thus, there was evidence supporting plaintiffs’ claims in this case. The presence of conflicting expert testimony, in a malpractice case, as to whether a defendant attorney was negligent does not render the defendant’s conduct a question of judgment as a matter of law. It is for the jury, after having been informed of the expert’s qualifications, to determine the credence to be given each expert’s testimony. Sampson v Veen boer, 252 Mich 660, 667; 234 NW 170 (1931). Agee v Williams, 17 Mich App 417, 423; 169 NW2d 676 (1969). It is the opinion of this Court, therefore, that the presence of conflicting expert testimony on this matter created a question for the jury and that the judgment notwithstanding the verdict was improperly granted.

This Court does not accept the defendant’s argument that he is absolved of liability because of this Court’s subsequent decision, regarding the statute of limitations, which allowed plaintiffs to file suit against the real estate agents. The decision of Coats v Uhlmann, 87 Mich App 385; 274 NW2d 792 (1978), was released after the trial and the order in this case and, therefore, is not proper grounds for defendant’s assertion that the verdict was against the great weight of the evidence. The defendant stipulated at trial that his failure to bring suit against the realtors resulted in any claims against them being lost. Defendant may not enhance his appellate argument concerning the evidence at trial with subsequent factual developments which were unknown at the time of trial.

In addition to the judgment notwithstanding the verdict, the trial court ordered a new trial in the event that the judgment notwithstanding the verdict be reversed. The trial court’s order was based on two rationales. The first rationale was that the verdict was contrary to law because the plaintiffs, by signing the pleadings, consented to the attorney’s decision not to sue the realtors and were thereby estopped from claiming that such conduct constituted malpractice. This Court rejects the contention that a plaintiff is estopped from asserting a claim of legal malpractice, as a matter of law, solely because the plaintiff signed the pleadings in the matter or was otherwise aware of the course of action taken by the attorney. In Bessman v Weiss, 11 Mich App 528; 161 NW2d 599 (1968), lv den, 382 Mich 760 (1969), cert den, 396 US 1008 (1970), relied on by the trial court, the plaintiffs were estopped from suing on the course of conduct pursued by their attorneys when their claim was based, in large part, on the falsity of certain factual averments contained in an answer drafted by the defendant’s attorney on their behalf. In Bessman, the plaintiffs listened to the pleading as it was dictated, and read and approved it afterward. Unlike Bessman, this is not a case in which the plaintiffs acquiesced the assertion of factually untrue statements on their behalf. While a plaintiff in a malpractice action may be deemed to have acquiesced in the attorney’s conduct when that plaintiff has knowledge of factually false assertions being made on its behalf, a plaintiff cannot be deemed, as a matter of law, to have analyzed and assessed the attorney’s professional conduct and acquiesced in any negligence simply by signing the pleading or by being aware of the conduct. Thus, the decision of the trial court, granting the defendant a conditional new trial on the ground that the jury verdict was contrary to law, was erroneous.

The trial court also based its order granting a conditional new trial on the ground that the jury verdict of $20,000 was grossly excessive and shocked the conscience of the court, because the plaintiff presented no evidence that the fair market value of the land in question exceeded $700.

While the defendant’s appraiser did testify that the value of the land was $700, a review of the transcript indicates that the plaintiff, Mr. Coats, testified that the market value of the land in question was $8,000. The plaintiff was competent to testify in this regard because he had seen the land and had knowledge of the value of other lands in the immediate vicinity. Equitable Building Co v City of Royal Oak, 67 Mich App 223, 226-227; 240 NW2d 489 (1976). Thus, there was competent evidence adduced by the plaintiff that the value of the original claim was $8,000. Additionally, the jury verdict in this case could properly have been based on the evidence of plaintiff’s legal expenses in pursuing the appeal on the original action. The prevailing plaintiffs in an attorney malpractice action are entitled not only to the value of their lost claim, but also to. the expenses and costs incurred by them as the result of defendant’s alleged negligence, such as the cost of the preparation of an appeal in the original case, where appropriate. See 45 ALR2d 62, §§ 2, 4, pp 63-67, 68-69; see also, Cornelissen v Ort, 132 Mich 294; 93 NW 617 (1903). The plaintiffs in this case incurred substantial legal expenses in pursuing an appeal on the original action, in an attempt to obtain a ruling that would apply a longer statute of limitations than the one used by the trial court, thereby allowing the action which was allegedly lost due to the defendant attorney’s failure to bring the action. Plaintiffs introduced evidence that the legal expenses so incurred amounted to approximately $16,000. This amount could properly have been awarded by the jury as expenses incurred as a direct result of the defendant’s alleged malpractice.

It is not inconsistent to consider both the amount of the original claim, and the costs incurred in appealing that claim, as bases for the jury award, because at the time of trial there was no indication that the plaintiffs would be able to revive their underlying claim against the realtors. The cost incurred by the appeal, which was plaintiffs’ only avenue by which to pursue the original action, was a direct result of defendant’s alleged negligence in failing to join the real estate agents in the original action prior to the tolling of the shorter statute of limitations.

Thus, there was evidence to support the jury’s verdict in favor of the plaintiffs in the amount of $20,000. While the granting of a new trial is within the discretion of the trial court, the trial court may not substitute its judgment for that of the finders of fact, and a grant of a new trial should be based upon demonstrable errors in the trial. A new trial should only be granted if the reasons assigned by the trial judge are logically recognized and supported by a reasonable interpretation of the record. Vanden Bosch v Consumers Power Co, 56 Mich App 543, 551-553; 224 NW2d 900 (1974), rev’d on other grounds, 394 Mich 428; 230 NW2d 271 (1975). In the instant case the jury verdict was supported by the evidence and was not grossly excessive. It is the opinion of this Court, therefore, that the trial court’s order granting a conditional new trial on this ground was erroneous.

In accordance with the foregoing analysis, we vacate the trial court’s order granting a judgment notwithstanding the verdict and a conditional new trial. We direct that the original jury verdict be reinstated.

Remanded for proceedings consistent with this opinion.

       See Heins v Synkonis, 58 Mich App 119; 227 NW2d 247 (1975), in which a directed verdict was properly denied in spite of the fact that expert testimony was given on behalf of the defendant.