author: Per Curiam. Mackenzie, J.

text:
    PEOPLE v PARNEY
    Docket No. 78-3353.
    Submitted June 18, 1979, at Lansing.
    Decided December 10, 1979.
    Junior L. Parney was found guilty of second-degree murder but mentally ill in Hillsdale Circuit Court, Kenneth G. Prettie, J. He appeals, alleging the trial court erred in (1) admitting a tape recorded conversation with the alleged victim into evidence as a dying declaration, and (2) failing to instruct the jury on the lesser included offense of manslaughter. Held:

    1. The trial court erred in admitting the tape-recorded conversation into evidence as a dying declaration since there was no clear demonstration that the decedent had a consciousness of impending death when she made the statement. However, the statement shed little light on defendant’s state of mind at the time of the shooting and constituted only harmless error, not requiring a reversal of defendant’s conviction.
    2. The jury should have been instructed on the elements of both second-degree murder and manslaughter, since, in addition to sufficient evidence to support a conviction of second-degree murder, it is equally possible that the defendant, although not insane, was sufficiently unbalanced or deranged by his argument with the victim that he lacked the capacity for malice necessary for a jury to find him guilty of second-degree murder.

      References for Points in Headnotes
    [I] 29 Am Jur 2d, Evidence § 493.

       29 Am Jur 2d, Evidence § 677.

       40 Am Jur 2d, Homicide §§ 348, 351, 365-368.
    Statements of declarant as sufficiently showing of conciousness of impending death to justify admission of dying declarations. 53 ALR3d 785.

       40 Am Jur 2d, Homicide § 468.

       40 Am Jur 2d, Homicide § 560.

       40 Am Jur 2d, Homicide §§ 54, 227, 438.

       40 Am Jur 2d, Homicide §§ 54, 70.

       40 Am Jur 2d, Homicide § 216.

       40 Am Jur 2d, Homicide §§ 530, 531.
    [II] 40 Am Jur 2d, Homicide § 61.

       40 Am Jur 2d, Homicide §§ 64, 66.
    Spouse’s confession of adultry as affecting degree of homicide involved in killing spouse or his or her paramour. 93 ALR3d 925.

       40 Am Jur 2d, Homicide §§ 56 et seq., 114, 515.
    Mental or emotional condition as diminishing responsibility for crime. 22 ALR3d 1228.

      Reversed and remanded.
    Mackenzie, J., dissented. She would hold that the trial judge’s refusal to instruct the jury on the elements of manslaughter was proper, since the element of provocation necessary for a finding of manslaughter could not be satisfied by the fact that the defendant became unbalanced or deranged by his argument with the decedent. She would affirm.
    Opinion of the Court
    1. Evidence — Hearsay — Out-of-Court Statement — Unavailable Declarant.
    An out-of-court statement made by a declarant who is not available for cross-examination is inadmissible as being hearsay.
    2. Evidence — Hearsay — Dying Declarations — Statutes — Criminal Law.
    A statement made by a declarant while believing that his death is imminent concerning the cause or circumstances of what he believed to be his impending death is admissible as an exception to the hearsay rule (MRE 804[b][2]).
    3. Evidence — Dying Declarations — Prerequisites — Criminal Law.
    Pour requirements must be met before a statement can be admitted into evidence as a dying declaration: (1) the declarant must have been conscious of impending death, (2) death must actually have ensued, (3) the statements are sought to be admitted in a criminal prosecution against the individual who killed the decedent, and (4) the statements must relate to the circumstances of the killing.
    4. Evidence — Dying Declarations — Admissibility — Trial Court.
    It is a trial court’s duty to determine whether a statement is admissible into evidence as a dying declaration.
    5. Appeal — Trial Court — Standard of Review — Findings of Fact — Dying Declarations — Error.
    A reviewing court will not set aside a trial court’s findings of fact in determining a statement was a dying declaration unless the reviewing court is left with a definite and firm conviction that such findings of fact were clearly erroneous; this standard applies to bench and jury trials alike.
    6. Appeal — Evidence — Dying Declarations — Harmless Error — Reversal.
    The clearly erroneous admission by a trial court of a statement into evidence as a dying declaration does not require reversal on appeal where the error was harmless.
    7. Homicide — Voluntary Manslaughter — Elements — Absence of Malice — Provocation — Intentional Homicide.
    Voluntary manslaughter shares all the elements of murder except the element of malice, and proof of some sort of provocation or other mitigating circumstances is necessary to return a verdict of guilty of voluntary manslaughter where there has been an intentional homicide.
    8. Homicide — Involuntary Manslaughter — Elements — Absence of Malice — Negligence — Inadvertence.
    Involuntary manslaughter arises where a death occurs without malice and unintentionally but rather as a result of gross, criminal, and culpable negligence or inadvertence.
    9. Homicide — Charges — Lesser-Included Offenses — Murder — Manslaughter — Evidence — Trial.
    Manslaughter may be a lesser but included offense to a charge of murder if evidence adduced at trial would support a verdict of manslaughter.
    10. Homicide — Trial Courts — Reversible Error — Jury Instructions — Manslaughter — Supporting Evidence.
    It is reversible error for a trial court to fail to instruct a jury on the elements of manslaughter where there was evidence to support such a theory and a proper request for such an instruction was made.
    Dissent by Mackenzie, J.
    11. Homicide — Voluntary Manslaughter — Proof of Provocation.

      There must be proof of adequate or reasonable provocation before a verdict of guilty of voluntary manslaughter may be returned where there has been an intentional homicide.

    12. Homicide — Murder — Manslaughter — Provocation — Words Alone.

      Language alone, however aggravated, abusive, opprobrious, or indecent, is insufficient provocation to reduce a killing commit

      ted with a deadly weapon from murder to manslaughter unless the words convey information of a fact which would constitute reasonable provocation if the fact was observed, such as confession of adultery to a spouse.

    13. Homicide — Manslaughter — Provocation — Legal Sufficiency — Trial Courts — Jury Instructions — Error.

      The fact that a defendant in a murder trial may have been rendered unbalanced or deranged by an argument with his victim does not transform an otherwise legally insufficient provocation into a legally sufficient one, and a refusal by a trial judge to instruct the jury on the elements of manslaughter under such circumstances does not constitute error.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Ronald C. Zellar, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

      Rolf E. Berg, 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 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

This case arises from the defendant’s shooting of Ms. Roberta Kurtz, with whom he had been carrying on a somewhat stormy relationship for about a year and a half. Ms. Kurtz’s two daughters, Brenda and Cynthia, were present at the time of the shooting and give substantially similar testimony.

On the morning of August 11, 1975, Ms. Kurtz and defendant argued for some two hours over whether defendant could spend the next weekend with the Kurtz family. Ms. Kurtz remained firm with her refusal, and defendant left the house. In about half an hour he returned to the house and asked if he could stay there the next week. On being told no, he left the house again, but returned a few minutes later holding a shotgun. Ms. Kurtz and defendant struggled over possession of the gun. The struggle ended when defendant put the gun down. There followed a brief conversation. Ms. Kurtz then went out the front door and onto the front porch, followed by defendant, who had picked up the gun. According to Cynthia Kurtz, defendant said something to her mother and then shot her. According to Brenda Kurtz, defendant threatened to kill her mother and shortly thereafter shot her. Shortly afterwards, defendant shot himself in the neck. When police officers arrived, a short time after the shooting, they found him in his car in the driveway, together with the gun. He was immediately placed under arrest.

Ms. Kurtz, who was paralyzed in all extremities as the result of the shooting, was taken to a local hospital and then transferred to the University of Michigan Medical Center. On September 14, 1975, she was found dead in her hospital bed. Autopsy findings show that she had choked on some partially digested food which had caused a fatal reflex reaction.

On September 9, 1975, a police officer tape recorded a conversation with Ms. Kurtz. At the trial, the prosecution offered this recording in evidence as a dying declaration of the deceased, and the defense objected to its admission as being hearsay testimony. The trial court, after research and discussion with counsel, admitted the recording as a dying declaration, and it was played for the jury. This is the basis for one of two claimed errors on appeal.

Defendant requested the trial court to instruct the jury on the lesser included offense of manslaughter. This the court refused to do because it found no evidence to support such an instruction. This is the basis for defendant’s second claim of error on appeal.

Defendant had originally pled guilty to second-degree murder, but this Court vacated the conviction because of defects in determining his competency. People v Parney, 74 Mich App 173; 253 NW2d 698 (1977). In this trial defendant presented an insanity defense. After less than an hour’s deliberation, the jury returned a verdict of "guilty but mentally ill” of second-degree murder, MCL 750.317; MSA 28.549. Defendant appeals as of right from the verdict.

We first consider the claimed error in the trial court’s admission into evidence of the taped statement of Ms. Kurtz made to Michigan State Police Trooper Chapman as a dying declaration.

In defendant’s view, the people failed to clearly establish that Ms. Kurtz’s statement was made while she believed that her death was impending. People v Johnson, 334 Mich 169, 173-174; 54 NW2d 206 (1952). The statement itself would not indicate such a belief, and a review of the autopsy report indicates an opinion that she had been gradually improving up to the time of her death. Defendant claims that, because of the presentation of an insanity defense, his state of mind and the circumstances leading up to the shooting were crucial to his defense and the admission of the statement was prejudicial to this aspect of the defense.

The people assert that because the trial court gave full consideration to the question, determining that the statement was made in extremis, this Court should not overrule that finding. The people also claim that even if the admission of the statement was error there was ample support in the record for the jury’s verdict aside from the statement so that the error should be considered harmless.

The record indicates that the trial court found the following remarks in the statement significant:

"CHAPMAN: Well, there is nothing to be afraid of. There’s nothing more going to happen to you. All we want you to do is just rest and get better so you can go back home. Your kids are all doing fine. I have talked to them.
"ROBERTA: Yea. Well, I probably never will get back home.
"CHAPMAN: Well, I wouldn’t say that. You are doing terrific. You’ve made a miraculous recovery. I thought you were gone to tell you the truth.
"ROBERTA: Yes, I know it.
"CHAPMAN: Apparently you are stronger than what we think you were.
"ROBERTA: —
"CHAPMAN: Well * * *.”

The foregoing, when considered together with the testimony of an ambulance attendant who recalled that on the ride to the hospital Ms. Kurtz said, "I’m going to die, aren’t I?” evidently led the court to conclude that Ms. Kurtz had a continuing consciousness of impending death throughout her stay in the hospital and that this satisfied the factual basis for finding that the statement qualified as a dying declaration.

An out-of-court statement made by a declarant who is not available for cross-examination is normally inadmissible as being hearsay. However, dying declarations are an exception to the hearsay rule. MRE 801, 804(b)(2). MRE 804(b)(2) allows the admission of a statement made by an unavailable defendant when:

"In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.”

Thus, four requirements must be met before a statement can be admitted as a dying declaration. People v Schinzel, 86 Mich App 337, 342; 272 NW2d 648 (1978):

(1) The declarant must have been conscious of impending death;

(2) Death must actually have ensued;

(3) The statements are sought to be admitted in a criminal prosecution against the individual who killed the decedent; and

(4) The statements must relate to the circumstances of the killing.

It is the trial court’s duty to determine whether a statement is admissible as a dying declaration. People v Johnson, supra, People v Fritch, 210 Mich 343, 347; 178 NW 59 (1920). The Court is aware of the case of People v Denton, 312 Mich 32; 19 NW2d 476 (1945), wherein Justice Wiest, in the course of his opinion, appears to consider it a jury question. However, the trial court had in fact made a determination as to the admissibility of the declaration under review, and the question of who was to make the determination of admissibility was not an issue in the case. Thus, we do not consider the case as authority for delegating to the jury the duty of determining whether a statement is admissible as a dying declaration.

In this case only the requirement that the declarant be conscious of impending death when the statement was given is brought into question. The trial court found that it was.

The standard for review of a trial court’s determination of the question of whether or not a statement is admissible as a dying declaration is not clear. That it is subject to review, as would be any other evidentiary ruling, is clear.

Apparently, the last case addressing the question of the standard for reviewing a trial court’s determination as to the admissibility of a statement as a dying declaration was Johnson, supra, 174, where the Court said:

"Because of the dangerous nature of dying declarations, the public policy of according an accused every possible safeguard consistent with justice and the constitutional guaranties of a fair trial, those preliminary matters necessary to be determined before the admission of a dying declaration should be clearly established.”

The preliminary matters the Court refers to are the factors required to make a statement a dying declaration. In determining whether or not the factors exist, the trial court must reach factual conclusions. A reviewing court will not set aside the trial court’s findings of fact unless they leave the reviewing court with a definite and firm conviction that the trial court made a mistake. In other words, that such findings of fact were clearly erroneous. GCR 1963, 517.1; 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 596-597. No case has expressly applied the clearly erroneous standard to the trial court’s factual findings that a statement is a dying declaration. However, such a standard applies to bench trials as well as preliminary trial court factual conclusions in jury trials, and this Court would apply it as the standard for review of the trial court’s findings that the statement in this case was a dying declaration.

We find little support for the trial court’s finding that Ms. Kurtz clearly had a consciousness of impending death when she made the statement. Her injuries were serious, and her paralysis was probably permanent. Also, she did make the statement that she probably never would get back home, but moments before making that statement she said she was feeling good and that her doctors had taken her outside in a wheel chair. Soon after making the statement, she asked about suing defendant as she expected she would be unable to work. Also, the autopsy report described Ms. Kurtz as "recuperating” and stated that she appeared to be recovering fairly well over a period of approximately one month. (See pertinent portions of the autopsy report.)_

We find that the record does not clearly establish the fact that Ms. Kurtz was conscious of impending death when she made the taped statement. Her statement about never getting back home could have been based on her paralysis rather than possible death. We are not persuaded that the trial court’s theory of continuing consciousness of impending death extending over a period of 29 days is so clearly established that it overcomes the medical reports and Ms. Kurtz’s other tape recorded statement. Therefore, we find that the trial court erred when it found that the taped statement was a dying declaration.

However, the admission of the statement does not require reversal of defendant’s conviction. It was harmless error. MCL 769.26; MSA 28.1096. The statement shed little, if any, new light on defendant’s state of mind. Eyewitnesses to the shooting and defendant’s relatives gave ample testimony as to his nervous characteristics and possible state of mind. If anything, Ms. Kurtz’s testimony was corroboratory in that respect. Certainly the error does not offend the maintenance of a sound judicial system, nor is it likely that the exclusion of the statement would have changed any juror’s vote. People v Wilkins, 82 Mich App 260, 272; 266 NW2d 781 (1978), lv gtd 403 Mich 849 (1978), People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977).

The second claim of error concerned the trial court’s refusal to instruct the jury on manslaughter.

Manslaughter is not statutorily defined in Michigan, as the manslaughter statute, MCL 750.321; MSA 28.553, only discusses the penalty. Case law, however, has established two types of manslaughter, voluntary and involuntary. Voluntary manslaughter shares all the elements of murder except the element of malice. People v Townes, 391 Mich 578; 218 NW2d 136 (1974), People v Younger, 380 Mich 678, 681; 158 NW2d 493 (1968), People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978). Proof of some sort of provocation or other mitigating circumstance is necessary to return a verdict of guilty of voluntary manslaughter where there has been an intentional homicide. See People v Mor rin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), People v Townes, supra, 589.

Involuntary manslaughter arises when a death occurs without malice and unintentionally but rather as a result of gross, criminal, and culpable negligence or inadvertence. People v McKee, 15 Mich App 382; 166 NW2d 688 (1968), People v Berles, 30 Mich App 716; 186 NW2d 852 (1971), People v Townes, supra, 590-591.

Manslaughter, while not a necessarily included offense of murder, may well be an included offense if the evidence adduced at trial would support a verdict of manslaughter. People v Van Wycke, supra, 269-270. Further, it is reversible error for the trial court to fail to instruct on manslaughter where there is evidence to support such a theory and a proper request for such an instruction is made. People v Van Wycke, supra, 270, People v McIntosh, 400 Mich 1; 252 NW2d 779 (1977), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

In this case the evidence indicated that the defendant was distraught when he returned to decedent’s home. There was a struggle for control of the gun, a continued argument, defendant’s following Ms. Kurtz to the porch and, after a very short period, shooting her.

While there was sufficient evidence to support a conviction of second-degree murder, it is equally possible that defendant, although not insane, was sufficiently unbalanced or deranged by his arguments with Ms. Kurtz that he lacked the capacity for malice necessary for a jury to find him guilty of second-degree murder. The alternatives should have been presented to the jury for determination.

Defendant’s conviction is reversed and the case is remanded to the trial court for entry of a conviction for manslaughter and resentencing or, in the discretion of the prosecutor, a new trial on the original charge.

Reversed and remanded.

Mackenzie, J.

(dissenting). I dissent. I am unable to conclude that the trial judge erred in refusing to instruct the jury on manslaughter.

As noted by the majority, where there has been an intentional homicide, there must be proof of adequate or reasonable provocation before a verdict of guilty of voluntary manslaughter may be returned. I disagree with the majority that the provocation element could be satisfied by the fact that defendant became unbalanced or deranged by his argument with the decedent.

An examination of the record reveals that defendant and the decedent were arguing over whether defendant could spend the next weekend with the decedent and her family. After extensive arguing, defendant left the house and returned with a shotgun. Although defendant and the decedent struggled over the gun, the struggle ceased after the decedent was unsuccessful in her efforts to obtain it from defendant. The decedent then walked out onto the porch and defendant followed. Defendant apparently spoke some words and then shot the decedent.

If defendant was provoked by the argument, the specific provoking actions were spoken words. The physical struggle over the shotgun had clearly ceased prior to the exit from the house onto the porch by defendant and the decedent. It is a general rule at common law that language alone, "however aggravated, abusive, opprobrious, or indecent”, is not sufficient provocation to reduce a killing committed with a deadly weapon from murder to manslaughter. 40 Am Jur 2d, Homicide, § 64, p 357, 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1665, p 700. There have been a few exceptions to this rule. However, the deviations have occurred primarily in cases where the words convey information of a fact which would constitute reasonable provocation if the fact was observed, such as confession of adultery to a spouse. See LaFave & Scott, Criminal Law, § 76, p 576-577. Although the rule has been deviated from in a limited number of cases, I do not believe deviation is appropriate in the instant case, which involves two nonmarried parties prone to having quarrels.

The fact that defendant may have been rendered "unbalanced” or "deranged” by the argument does not transform a legally insufficient provocation into a legally sufficient one. It is important to emphasize that defendant’s mental stability was considered by the jury, as defendant presented an insanity defense. Although the jury was unable to find that defendant was legally insane, it did render a verdict of "guilty but mentally ill”.

Finally, I am unable to conclude that, the trial judge erred in refusing to instruct on involuntary manslaughter. I agree with the trial judge that the evidence did not indicate the occurrence of a negligent act. This viewpoint is buttressed by the fact that the defense to the killing proffered by defendant was insanity.

I would affirm.

       [Note: This quotation is reproduced as it appears in the transcript, without attempt to correct the numerous errors.—Reporter.]
      "O.K. this is September the 9th, Tuesday, at 10:08 in the morning. I’m with Roberta Kurtz in U of M Hospital. This is Trooper Chaprman (sic) in reference to complaint #45-Í221-75 1.5. Roberta now, her doctor has advised that she can talk to an officer. I’m going to ask her to give me a tape statement as to what happened leading up the time she was shot.
      "ROBERTA: Saturday, I think it was he came down.
      "CHAPMAN: This is who?
      "ROBERTA: Junior Parney came down from his mothers from Albion. He stayed with us Saturday. We went to Devil’s Lake. He stayed Saturday night in his own room there at the house. Then he stayed, he went with us to Devil’s Lake park to swim have a picnic out all day.
      "CHAPMAN: This is who now, you * * *
      "ROBERTA: Junior Parney, Cynthia, Brenda and Kenny, all the kids and I.
      "CHAPMAN: Your children.
      "ROBERTA: The children were with me all day — had a picnic and we swam on the beach and everything. So we left there Sunday night, came home, was setting in the living room and he says do you want me to go home to moms or not. And I said I don’t care, don’t make me any difference. Go home. Go home. I says I don’t care one way or another. And he set around there a little bit. Finally he says, well, I guess I’ll stay all night. I says, suit yourself.
      "CHAPMAN: Now, this is what day?
      "ROBERTA: That was on Sunday.
      "CHAPMAN: That was Sunday.
      "ROBERTA: Yup. Saturday night he stayed and Sunday we went to the beach all day and then Sunday night is when he said something about he really wanted to know if I wanted him to stay and I said I didn’t care. So he went to his room downstairs and I went upstairs to my room with the children. So I got up the next morning.
      "CHAPMAN: This would have been Monday morning?
      "ROBERTA: Monday morning.
      "CHAPMAN: August the 11th.
      "ROBERTA: Ya.
      "CHAPMAN: O.K.
      "ROBERTA: And he — the house, Junior did, and he says, do you love me and I said no I don’t love you no more and he says, why not? And I says I just don’t love you no more so he says, he says are you going to marry me and I says no I am not going to marry you either. I says, look, I have 9 children. I love my children. I’m happy and I don’t need you or any other man to get married to. Follow me? He said o.k. and he says like this, I’ll leave.
      "CHAPMAN: Do you remember about what time it was Roberta?
      "ROBERTA: No, it was early in the morning.
      "CHAPMAN: Early in the morning?
      "ROBERTA: Finally Cynthia Ann and Brenda and Kenny were in the dining room and I was sitting in the living room. Cindy says, oh my God, mom, Junion is back and I says oh, for chrissakes, no. I don’t know if I said chrissakes or not, but anyway, I says what are we going to do. So we panicked a little bit. So he came * * *.
      "CHAPMAN: Were you afraid of him?
      "ROBERTA: Yes, deathly afraid of him.
      "CHAPMAN: Why?
      "ROBERTA: Because I was always scared he was going to kill us.
      "CHAPMAN: What made you think that?
      "ROBERTA: Cause, he didn’t want me to go out and have any fun. He wanted me right at home and he was so afraid that I would go out with another guy and he says if I ever did then he was going to kill me and the other guy too. And he said maybe even the kids. He just gives me the willies. And why I messed around with him this long I don’t know. I guess I thought maybe he would straighten up. But with his mother like she is ever time we was about to get along good together she would stick her nose in it and he would run up to mother. So I thought, well, ain’t much use to mess around. Anway, anyway, he turned around and he come there to the front door. And so he come in and he had this gun, big gun and he said — I said Jr., what are you going to do with that gun? He says, nothin. I says, where did you get it? He says, it is mine, I just bought it. I said, you can’t have a gun. You ain’t allowed a gun. You can’t even buy a gun. He says, well, I did and he said nobody is goin’ to take it away from me. So I went into the front hallway and he said — I said, set the gun down. Let’s reason this out. And he set it down against the wall and I says, o.k., now come on. let’s talk this straight out before somebody gets hurt bad. And I looked at the kids. I thought maybe one of them would take the hint and go around the outside the front and get the gun. But I guess everybody was scared. Anyway, he wouldn’t listen to me whatsoever, so Cynthia and I, we started to scuffle with him. He grabbed the gun. I think he — that we were going to take the gun from him. So we turned around and I scuffled with him in the front hallway and we got it outside and he got the gun out there near the front porch and, you know, as we turned around the front porch, he turned, he held the gun up and boom.
      "CHAPMAN: With the shotgun. Did he say anything before that or like * * *
      "ROBERTA: I don’t remember. And I said, oh no. Before he shot, Cindy Ann said Jr., that gun is loaded. You are going to kill somebody, you are going to hurt somebody. I can remember that. And then all of a sudden boom and it hit me right here. (I can’t hear what follows here).
      "CHAPMAN: You were on the porch there when we came. Do you recall anything after that? What he did?
      "ROBERTA: I laid there just like forze, you know, and I heard another shot and I though, oh my God, he shot Cindy Ann, you know. And then finally Kenny come around to me. He picks my head up and said, momma, don’t be afraid, God won’t let you die. You’re gonna live. And then Kenny diaappeared. And then I remember your car dirving in. No, not yours, Branch Co., no, the Lt. I think it was Chapman. Right? He came in and he came up on the porch and he says, Roberta, what happened? I said Jr. shot me. He said, that’s all I wanted to know. And then it seemed like they put Jr. up on those steps to the East side and they snapped a picture of me.
      "CHAPMAN: We took several pictures.
      "ROBERTA: Then they put me in * * *
      "CHAPMAN: You only recall two shots, that’s all?
      "ROBERTA: It seems like that’s all.
      "CHAPMAN: The second shot you heard I believe was when Jr. shot himself.
      "ROBERTA: I don’t know.
      "CHAPMAN: You haven’t seen him since then have you?

        "ROBERTA: No, and I hope I never do.
      "CHAPMAN: O.K., well * * *
      "ROBERTA: The only thing, when they put me in the ambulance and we went to Hillsdale and they wanted to put us in the same ambulance, I said no way. And so we got to Hillsdale and I think he was there and I was frantic and so when we left there to come up here I turned around and I thought he was in here not far from me. And I got a panic and I thought, get him out of here cause he’ll have somebody kill me. I couldn’t take it. Still to the day, drives me up the wall. I’m scared.
      "CHAPMAN: O.k., how are you feeling now. O.k.?
      "ROBERTA: Pretty good. The doctors — I get up in the wheel chair. They take me outside in the wheelchair and everything.
      “CHAPMAN: How are you now, can you move your legs or not?
      "ROBERTA: No, my left leg is paralyzed. My left arm so far down is paralized and I don’t know. My right leg, its got some movement in it but very little.
      "CHAPMAN: Who is your doctor now?
      "ROBERTA: What is his name — doctor—. Something like that.
      "CHAPMAN: O.K.
      "ROBERTA: There is about 4 or 5 doctors.
      "CHAPMAN: O.K. Well * * *
      "ROBERTA: I think, I don’t know what’s gonna happen. I don’t know where he’s at.
      "CHAPMAN: He is in custody right now. He’s in jail.
      "ROBERTA: I’m scared.
      "CHAPMAN: Well, there is nothing to be afraid of. There’s nothing more going to happen to you. All we want you to do is just rest and get better so you can go back home. Your kids are all dong fine. I have talked to them.
      "ROBERTA: Yea. Well, I probably never will get back home.
      "CHAPMAN: Well, I would’t say that. You are doing terrific. You’ve made a miraculous recover. I thought you were gone to tell you the truth.
      "ROBERTA: Yes, I know it.
      "CHAPMAN: Apparently you are stronger than what we think you were.
      "ROBERTA: —.
      "CHAPMAN: Well * * *
      "ROBERTA: People never no do they. I didn’t know. Tell I came in though but I don’t know. Even his mother. You look at her. She’s got those black eyes. Just like God. You either step or else you know. And so I don’t know. But his mother knew that he was not allowed any gun and she would turn around and deliberately let guns and everything else lay around just so, you know. So I think it is just as much her fault as it is his. O, by the way, my mouth’s so dry. Are you gonna have a Court hearing?
      "CHAPMAN: now, we are going to have a hering on the 25th of September. It will be a couple weeks yet and I don’t think you are going to be able to make it. That’s why we need this statement. You don’t have to worry about anything. O.k., well, thank you for giving me the tape.
      "ROBERTA: What am I gonna do? Can you sue him for me?
      "CHAPMAN: No, I don’t think we can sue him, but * * *
      "ROBERTA: Disability? Cause I can’t work the rest of my life. I’m done for.
      "CHAPMAN: Well, I don’t know. You’ll have to talk to your attorney about that, o.k.?”

       "A-104-CB Kurtz, Roberta #1399732-9
      Clinical Summary
      "The patient was a 48 year old female who sustained a shotgun wound to the left anterior neck on August 11, 1975. She was taken to a hospital in Hillsdale and then transferred to the University of Michigan Medical Center. Upon admission, there was a large gaping wound in the left anterior neck and exit wounds in the posterior neck and posterior upper thorax. There was apparent damage to the left brachial plexus. Angiograms showed that there was no damage to major arterial vessels in the neck. She underwent laminectomy with debridement of the wound. She received several blood transfusions. There was contusion of the spinal cord and laceration of the dura over the cord. Esophagoscopy and bronchoscopy revealed no abnormality.
      "Her postoperative course was relatively good with the exception of psychotic behavior. She was treated with Mellaril. She also received Colistin for urinary track infection. An additional operation was done in which a skin graft was placed over the wound in the neck. Her head was placed in braces. Her neurological status was one of quadriparesis with complete paralysis and loss of sensation of the left arm. There was no improvement in this status, however she appeared to be recovering fairly well over a period of approximately one month. On September 14, 1975, she was found dead in bed at 1:40 p.m. approximately 35 minutes after having been seen the nurse for therapy to her wound.
      "The body was identified to me by Trooper Louis Frizzell of the Michigan State Police.
      "A-104-CB Kurtz, Roberta #1399732-9
      Clinicopathologic Correlation
      "This woman had severe damage to her cervical spinal cord as a result of a shotgun wound in the left neck. She had paralysis of all extremities because of it. Although she was recuperating, the damage in her cord still caused her to be in a very precarious condition.
      "Autopsy findings showed a large amount of partially digested food in her stomach. Part of this had been aspirated into her larynx, trachea, and bronchi. This aspiration caused a reflex reaction which caused her to stop breathing and/or the heart to stop beating. As a result, the lungs became congested and edematous.
      "The amount of aspiration was small. However, her general health was poor because of the shotgun wound, and this made her more likely to be affected by a slight insult.
      "W. J. Fidler, M.D.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v WEAVER (ON REMAND)
    Docket No. 51291.
    Submitted April 17, 1979, at Detroit.
    Decided June 11, 1979.
    Opinion on remand filed June 10, 1980.
    Leave to appeal applied for.
    Ronald G. Weaver was convicted of armed robbery and of two counts of first-degree criminal sexual conduct, Recorder’s Court of Detroit, James A. Hathaway, J. His convictions were affirmed by the Court of Appeals in an unpublished per curiam opinion (Docket No. 43863, June 11, 1979). Defendant sought leave to appeal to the Supreme Court which, in lieu of granting leave, vacated the opinion of the Court of Appeals and remanded the case for reconsideration. 408 Mich 906 (1980). On remand, held:

    1. The trial court’s instruction to the jury that it is presumed that a reasonable person intends the ordinary natural consequences of his voluntary act was error but the error was harmless because the defendant’s intent was not at issue and the prosecution’s case against the defendant was substantial.
    2. The two counts of first-degree criminal sexual conduct were based on (1) sexual penetration under circumstances involving another felony, the armed robbery, and (2) sexual penetration occurring while the defendant was armed with a dangeirous weapon. A single sexual penetration may give rise to only one charge of first-degree criminal sexual conduct, even though it is accompanied by more than one of the aggravating circumstances enumerated in the first-degree criminal sexual conduct statute. Therefore, one of the defendant’s convictions of first-degree criminal sexual conduct is reversed.
    Affirmed in part, reversed in part.
    1. Criminal Law — Instructions to Jury — Intent — Harmless Error.
    An instruction to a jury that it is presumed that a reasonable person intends the ordinary natural consequences of his voluntary act is constitutionally defective; however, such' error will not necessitate reversal of a defendant’s conviction if it can be said that the error is harmless beyond a reasonable doubt.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 778, 815.

       21 Am Jur 2d, Criminal Law § 8. 65 Am Jur 2d, Rape § 41.

      2. Rape — First-Degree Criminal Sexual Conduct — Statutes.
    A single sexual penetration which happens to be accompanied by more than one of the aggravating circumstances enumerated in the criminal sexual conduct statute may give rise to only one charge of first-degree criminal sexual conduct (MCL 750.520b[l]; MSA 28.788[2][1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
    Ronald G. Weaver, in propria persona.

    Before: Danhof, C.J., and J. H. Gillis and N. J. Kaufman, JJ.
   On Remand

Per Curiam.

The defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and two counts of first-degree criminal sexual conduct, sexual penetration under circumstances involving the commission of another felony, MCL 750.520b(l)(c); MSA 28.788(2)(l)(c), and sexual penetration occurring when the actor is armed with a dangerous weapon, MCL 750.520b(l)(e); MSA 28.788(2)(l)(e). He was sentenced to concurrent terms of 20 to 30 years imprisonment.

The defendant’s convictions were affirmed by this Court in an unpublished per curiam opinion, People v Weaver (Docket No. 43863, June 11, 1979). Defendant thereafter sought leave to appeal to the Supreme Court. That application was held in abeyance pending that Court’s decision in People v Wright, 408 Mich 1; 289 NW2d 1 (1980). That decision was issued on March 4, 1980. On April 25, 1980, that Court remanded the instant case to the Court of Appeals for reconsideration in light of People v Wright, 408 Mich 906 (1980).

In his charge to the jury the trial judge instructed, in part, as follows:

"It is presumed, members of the jury, that a reasonable person intends the ordinary natural consequences of his voluntary act.”

Such a jury instruction is constitutionally defective even in the context of an otherwise completely correct jury charge. Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979), People v Wright, supra, 20-22. Such error, however, does not automatically dictate reversal of the defendant’s convictions. The error will not necessitate reversal if it can be said that the erroneous instruction is "harmless beyond a reasonable doubt”. People v Wright, supra, 27, citing Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967).

We are convinced beyond a reasonable doubt that the constitutionally erroneous instruction was harmless. We note that intent was not a focal point of inquiry in the instant case and that the prosecution’s case against the defendant was substantial. The defense was one of alibi. If the jury believed the testimony of the complainant, the defendant’s convictions reasonably followed. Accordingly, this error does not require a reversal of the defendant’s convictions. People v Wright, supra, 28-29.

Though beyond the scope of the Supreme Court’s remand order, we choose to raise an additional issue sua sponte. The record in the instant case discloses that after taking the complainant’s wedding ring, the defendant forced her to perform fellatio while he held a gun and a screwdriver. The defendant was convicted of two counts of first-degree criminal sexual conduct. A single sexual penetration which happens to be accompanied by more than one of the aggravating circumstances enumerated in the statute may give rise to only one criminal charge of first-degree criminal sexual conduct for purposes of trial, conviction and sentencing. People v Willie Johnson, 406 Mich 320; 279 NW2d 534 (1979), People v Ashford, 91 Mich App 693; 283 NW2d 830 (1979). Therefore, we reverse defendant’s conviction under MCL 750.520b(l)(e); MSA 28.788(2)(l)(e) and vacate the sentence imposed for that conviction. The defendant’s other two convictions are affirmed.

Affirmed in part; reversed in part.

       Defendant’s conviction for criminal sexual conduct under MCL 750.520b(l)(e); MSA 28.788(2)(l)(e) is not a specific intent offense. Our analysis of the improper jury instruction is, thus, directed only to the defendant’s other two convictions.


author: D. C. Riley, J.

text:
    PEOPLE v ROHN
    Docket No. 78-3873.
    Submitted June 13, 1980, at Detroit.
    Decided July 18, 1980.
    Leave to appeal applied for.
    Clarice L. Rohn was convicted of aiding and abetting first-degree murder and conspiring to commit first-degree murder in St. Clair Circuit Court, Halford I. Streeter, J. She was sentenced to two concurrent life terms. The defendant appeals alleging numerous errors. Held:

    1. The prosecutor’s interjection into closing argument of the jury’s religious duties in calling for conviction was an attempt to inflame the passions and fears of the jury, requiring reversal. In light of its highly prejudicial nature, an objection and a motion for mistrial were sufficient to preserve the issue for appeal.
    2. A statute preserving the confidentiality of presentence reports that conflicts with the constitutionally protected rights of confrontation and impeachment through prior inconsistent statements must give way to those constitutional rights. Defendant had asked for and was denied access to presentence reports of three prosecution witnesses, accomplices to the murder, which contained material relating to their versions of the crime and were requested for impeachment purposes. The denial of access was reversible error.

      References for Points in Headnotes

       63 Am Jur 2d, Prosecuting Attorneys § 27.

       75 Am Jur 2d, Trial §§ 225, 280, 283.
    Counsel’s appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, or reversal. 45 ALR2d 303.

       5 Am Jur 2d, Appeal and Error §§ 624-627. 75 Am Jur 2d, Trial §§ 315, 317.

       21 Am Jur 2d, Criminal Law § 583.5.
    Defendant’s right to disclosure of presentence report. 40 ALR3d 681.

       81 Am Jur 2d, Witnesses § 522.

       21 Am Jur 2d, Criminal Law §§ 333-337.
    Federal constitutional right to confront witnesses — Supreme Court cases. 23 L Ed 2d 853.

       81 Am Jur 2d, Witnesses §§ 619, 620, 624.

       29 Am Jur 2d, Evidence §§ 252, 253, 298.

       75 Am Jur 2d, Trial §§ 651, 652.

      3. The trial court committed reversible error in allowing the prosecutor to impeach the testimony of an accomplice he had called as a prosecution witness even though he did not allege surprise at the testimony.
    4. The trial court reversibly erred in allowing the prosecutor to introduce evidence of similar acts by defendant. Evidence of similar acts of a defendant may be admitted only where it is established that (a) there is substantial evidence to show that the defendant committed the bad act, (b) the act must tend to prove one of the statutory purposes, (c) one of those purposes must be "in issue”, and (d) the probative value of admission must outweigh any prejudicial effect.
    5. The trial court reversibly erred in preventing the defendant from cross-examining a witness about an alleged deal with the prosecutor.
    6. A jury instruction requested by the defendant must be given by the trial judge where there was evidence adduced at the trial which could have supported the requested instruction. The court reversibly erred in refusing to instruct on the lesser offense of accessory after the fact.
    Reversed and remanded.
    1. Criminal Law — Prosecuting Attorneys — Closing Arguments — Fair Trial.
    Prosecuting attorneys are accorded great latitude regarding their arguments and conduct, however it is paramount that prosecutors pursue any lawsuit with as equal a concern for ensuring a defendant a fair trial as for convicting him.
    2. Criminal Law — Trial — Fair Trial — Prosecuting Attorneys — Closing Arguments — Extraneous Matters.
    A defendant’s opportunity for a fair trial may be jeopardized when the prosecution interjects issues broader than the guilt or innocence of the accused, such as appealing to a jury’s civic duty or when extraneous racial, religious or ethnic matters are introduced at trial.
    3. Criminal Law — Motions and Orders — Prosecuting Attorney — Closing Arguments — Appeal.
    An objection and a motion for mistrial are sufficient to preserve for appellate review the issue of improper argument by the prosecuting attorney, even though no curative instruction was requested by the defendant, where the argument may have inflamed the jury’s passions and fears.
    4. Witnesses — Criminal Law — Presentence Reports — Accomplices.
    The withholding of presentence reports of prosecution witnesses from the defendant where those witnesses were accomplices and the defendant requested the reports for impeachment purposes constitutes error.
    5. Criminal Law — Constitutional Law — Statutes — Presentence Reports — Confrontation — Impeachment.
    A statute preserving the confidentiality of presentence reports that conflicts with the constitutionally protected rights of confrontation and impeachment through prior inconsistent statements must give way to the constitutional rights.
    6. Criminal Law — Accomplices — Impeachment.
    A prosecuting attorney may not call an accomplice as his own witness and then impeach him, in the absence of surprise.
    7. Criminal Law — Evidence — Similar Acts — Defendants — Statutes.
    Evidence of similar acts of a defendant may be admitted only where it is established that (a) there is substantial evidence to show that the defendant committed the bad act, (b) the act must tend to prove one of the statutory purposes, (c) one of those purposes must be "in issue”, and (d) the probative value of admission must outweigh any prejudicial effect (MCL 768.27; MSA 28.1050).
    8. Criminal Law — Instructions to Jury.
    A jury instruction requested by the defendant must be given by the trial judge where there is evidence adduced at the trial which may support the requested instruction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Richard B. Ginsberg, Assistant State Appellate Defender, for defendant on appeal.

      Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   D. C. Riley, J.

Defendant was originally charged with aiding and abetting first-degree murder, MCL 767.39; MSA 28.979, MCL 750.157a; MSA 28.354(1), and conspiring to commit first-degree murder, MCL 750.157a; MSA 28.354(1), MCL 750.316; MSA 28.548. Following a 1975 jury trial wherein it was alleged that the defendant had arranged to have her husband killed, she was found guilty and sentenced to life imprisonment on both counts. This Court reversed and remanded, and defendant was retried on both counts, commencing February 27, 1978. She again was found guilty and sentenced to two concurrent life imprisonment terms. Defendant now appeals as of right.

Defendant asserts a plethora of errors, many of which necessitate reversal and remand for new trial. The first of these is with respect to the prosecutor’s dosing argument relating to the jurors’ religious duties.

Prosecutors are accorded great latitude regarding their arguments and conduct. See People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). However, it is paramount that prosecutors pursue any lawsuit with as equal a concern for ensuring a defendant a fair trial as for convicting him. People v Florinchi, 84 Mich App 128, 135; 269 NW2d 500 (1978). A defendant’s opportunity for a fair trial may be jeopardized when the prosecution interjects issues broader than the guilt or innocence of the accused. People v Bryan, 92 Mich App 208, 221; 284 NW2d 765 (1979). This is particularly true when the prosecutor appeals to a jury’s civic duty, People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), People v Meir, 67 Mich App 534; 241 NW2d 280 (1976), People v Gloria Williams, 65 Mich App 753; 238 NW2d 186 (1975), People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), or when extraneous racial, religious or ethnic matters are introduced at trial. See MCL 600.1436; MSA 27A.1436, People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977), People v Hill, 258 Mich 79; 241 NW 873 (1932), People v Theodore Jones, 82 Mich App 510; 267 NW2d 433 (1978). See also George v Travelers Indemnity Co, 81 Mich App 106, 114-115; 265 NW2d 59 (1978).

In the instant case, a hybrid reversible error occurred. In closing argument, the prosecutor appealed to the jury’s religious duties in calling for defendant’s conviction. This was not a case where the prosecutor merely used improper argument in response to that of the defense, Meir, supra, 537, but was a proscribed example of inflaming the jury’s passions and fears. Although no curative instruction was requested by the defendant, an objection and a motion for mistrial were made below. In light of the highly prejudicial nature of the prosecutor’s statement, we believe defendant’s actions adequately preserved this issue for our review.

Reversal is also mandated based on the court’s withholding of the presentence reports of three prosecution witnesses, all accomplices in defendant’s husband’s murder. Prior to trial defendant had sought access (for impeachment purposes) to those portions of the reports that related to the accomplices’s versions of the murder. The lower court refused.

MCL 791.229; MSA 28.2299 provides:

"All records and reports of investigations made by a probation officer, and all case histories of probationers shall be privileged or confidential communications not open to public inspection. Judges and probation officers shall have access to the records, reports, and case histories. The probation officer, the assistant director of probation, or the assistant director’s representative, shall permit the attorney general, the auditor general, and law enforcement agencies to have access to the records, reports, and case histories. The relation of confidence between the probation officer and probationer or defendant under investigation shall remain inviolate.”

This statute, preserving the confidentiality of presentence reports, may directly conflict with the equally protected rights of confrontation and impeachment through prior inconsistent statements. See US Const, Am VI, People v Hallaway, 389 Mich 265, 267; 205 NW2d 451 (1973). Where there is such a conflict, we believe that confidentiality must give way to other stronger interests. Compare In the Matter of Baby X, 97 Mich App 111; 293 NW2d 736 (1980).

In Davis v Alaska, 415 US 308; 94 S Ct 1105; 39 L Ed 2d 347 (1974), the Supreme Court held that the Sixth Amendment right of confrontation requires that a defendant be allowed to impeach a prosecution witness by cross-examination aimed at disclosing bias due to that witness’s probationary status as a juvenile delinquent. The Court further held that this should be permissible even though such impeachment conflicts with Alaska’s asserted interest in preserving the confidentiality of juvenile delinquency adjudications. As stated by the Court:

"The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State could have protected Green from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.” Id., 320.

We believe that this reasoning is applicable to the instant case as well. Although the defendants’ interests differ, the Davis defendant sought to impeach to show a witness’s bias while Rohn wants to impeach to attack the credibility of incriminating information, we agree that the latter impeachment is as equally necessary as the former. It is critically important that any finding of guilt or any sentence be predicated on accurate information. See People v Malkowski, 385 Mich 244, 249; 188 NW2d 559 (1971). Thus, we must conclude that the need for impeachment of criminal accusations outweighs any need for confidentiality of presentence reports. This does not mean that defendants should receive wholesale access to the confidential records of others. We hold only that when records of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspection procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness’s testimony.

The trial court also erred in allowing the prosecution to impeach its own witness, the alleged coconspirator, Frogge. It is well settled that, in the absence of surprise, accomplices may not be impeached by the prosecution. People v White, 401 Mich 482, 508-509; 257 NW2d 912 (1977). Since the prosecution has not alleged any surprise and since the impeachment cannot fairly be characterized as refreshment, reversal is mandated. See People v Brassell, 64 Mich App 445, 449; 236 NW2d 99 (1975).

Defendant further alleges that the trial court reversibly erred by allowing testimony regarding an alleged similar act by defendant, specifically, an earlier request to have her husband killed. We agree.

Evidence of similar acts may only be admitted under certain, limited circumstances.

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.” MCL 768.27; MSA 28.1050.

Prior to admission, it must be proved that (1) there is substantial evidence to show that defendant committed the bad act, (2) the act must tend to prove one of the statutory purposes, (3) one of those purposes must be "in issue” and (4) the probative value of admission must outweigh any prejudicial effect. People v Ernest Smith, 87 Mich App 18, 22; 273 NW2d 573 (1978). We believe that evidence of the alleged prior act was not relevant to any statutory purpose and was highly prejudicial; thus, admission was error. See People v Major, 407 Mich 394, 400-401; 285 NW2d 660 (1979), People v Minney, 155 Mich 534, 538-539; 119 NW 918 (1909).

The lower court also reversibly erred by preventing defendant from cross-examining a witness about an alleged deal with the prosecutor. See Davis, supra, 316-318, and People v Reed, 393 Mich 342, 351-354; 224 NW2d 867 (1975).

Finally, reversal is necessary because the trial court failed to give a requested instruction on the lesser offense of accessory after the fact. Since evidence was adduced which could have supported this crime, an instruction on accessory after the fact should have been given. People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975).

The above errors are of such magnitude that a reversal for a new trial is mandated. In the following discussion, we will note several nonreversible errors so that they should not reoccur in any subsequent retrial.

In closing arguments the prosecutor implied that there was a sexual relationship between defendant and a witness, Roy Washburn, which may have been related to the murder of defendant’s husband. This was improper as there was no factual support for the prosecutor’s intimation. See People v Marchese, 84 Mich App 775; 270 NW2d 687 (1978). However, defendant did not object or request a curative instruction. We believe that an instruction would have alleviated any error. People v Blassingame, 59 Mich App 327, 335-336; 229 NW2d 438 (1975).

The lower court erred in allowing two defense exhibits offered for the limited purpose of a Walker hearing, People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), to be presented to the jury. As stated in Walker:

"At this [Walker] hearing, we hold the defendant may take the stand and testify for the limited purpose of making of record his version of the facts and circumstances under which the confession was obtained. We hold further that by so doing defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered. Neither does he waive any of the other rights stemming from his choice not to testify. This we believe comports with the apparent intention of Jackson, supra [Jackson v Denno, 378 US 368; 84 S Ct 1774; 12 L Ed 2d 908 (1964)], to require the issue of the voluntariness of a confession to be determined completely apart from and independent of the consideration of that issue by the jury which is considered guilt or innocence under established procedures.”

We believe that a similar rationale should apply to all evidence offered by the defense at a Walker hearing. However, we do not believe that the defendant was prejudiced by the blanket admission here since the statement at issue supported defendant’s theory of the case.

We express our view that two procedures utilized by the instant judge were undesirable. Although defendant has demonstrated no prejudice that resulted to her because the judge failed to instruct the sequestered witnesses against communicating about the case, we believe that it is advisable for the judge to do so. People v Stanley, 71 Mich App 56, 61-62; 246 NW2d 418 (1976). We also are convinced that a judge should not interfere with the normal presentation of proof absent any explanation of the need for deviation.

Defendant’s other contentions need not be addressed.

Reversed and remanded for new trial.

       The contested statements were as follow:

        "/Assistant Prosecutor] There are some of you jurors during the voir dire, during the initial examination as to your qualifications as jurors, that indicated you like to leave a decision of this magnitude to a higher authority. So do I. So do all of us; but I call your attention to the fact that that higher authority is no longer personally present among us, and therefore He designates certain people as His agents to accomplish His purpose, to find justice.
      "When you swore under oath that you would sit as jurors and deliberate in this case, all of you including myself made a commitment to that higher authority that regardless of how difficult it may be, regardless of how our personal feelings may flow, that you would act as His agents and see that justice is done in accord with his laws; and I call your attention to the one law that applies in this case: Thou shalt not kill.
      "There is one very salient way to detect whether testimony given by a witness is truth or falsehood, and that is, what is their purpose? What is their motive? Do they have something to gain? I submit, ladies and gentlemen of the jury, these witnesses who participated in this heinous event have nothing to gain. What would it benefit them to falsely accuse Clarice Rohn? They know they participated in a killing. They are paying the penalty for their participation; and yet Clarice Rohn comes before you and says, I am not guilty. I wish to be let go.
      "Can you in good conscience in accord with your oath, in accord with your responsibility to a higher authority, say to yourselves Clarice Rohn is innocent and these others who have no purpose, no motive, no reason for participating in it, are suffering for it? Can you in good conscience say that; and that is what Clarice Rohn wants you to do.
      "This is a difficult case. It is difficult for everybody who participated in it; and I ask you again, recognize what your oath means, that the higher authority that some of you wish to leave these things to has delegated you twelve people to make a determination to uphold His law, thou shalt not kill. That’s why Clarice Rohn is on trial.
      "Now, can you in good conscience say to yourselves, we don’t believe Pat Mays, Ronald Frogge. We don’t believe Roy Washburn, and therefore we will say to Clarice Rohn, you are free to go. Is that responsibility to your oath? Is that the type of result that gives foundation to our system of jurisprudence?
      "Members of the jury, in deference to your oaths, in deference to your responsibility to the higher authority who has designated each and every one of you twelve as His agents, I ask only that you retire to the jury room and deliberate this matter. Deliberate it with an eye toward what actually took place, and arrive at a verdict. Arrive at such a verdict that you can, each and every one of you individually and collectively can return to this jury box and say to yourselves and to this Court, we have had a difficult time, but we are not shirking from that responsibility. We recognize our purpose. We recognize the task we have and we have carried it, and we have had the fortitude to bring back into this courtroom a verdict that we feel is correct.”


author: Danhof, C.J. Cynar, J.

text:
    TOBIN v CIVIL SERVICE COMMISSION
    Docket No. 78-4312.
    Submitted December 5, 1979, at Lansing.
    Decided July 18, 1980.
    Leave to appeal applied for.
    Defendant Michigan Department of Civil Service announced its intention to release to various labor organizations a list of the names and home addresses of the state’s employees in the classified civil service. John L. Tobin, Audrey Miller, Pearl Venable, Laurence W. Giller and Daniel Beebe brought a class action in the Ingham Circuit Court against the Civil Service Commission and the Department of Civil Service to enjoin the Department’s proposed action. The court, James T. Kallman, J., granted summary judgment for plaintiffs, holding that Freedom of Information Act compulsory disclosure of the list impermissibly invaded the commission’s authority in civil service matters and apparently holding that the Freedom of Information Act prohibited release of the list as an unwarranted invasion of the employee’s privacy and security. Defendants appeal. Held:

    The Freedom of Information Act does not compel a public body to conceal information at the instance of one who opposes its release. Governmental publication of the home addresses of its employees does not tread upon the right of privacy afforded the employees by constitutional principles.
    Reversed and remanded with instructions.
    Cynar, J., concurred in the result of the case. He believes that the Freedom of Information Act invests a public body with discretion in deciding whether or not to disclose information of a personal nature and that, in this case, after balancing the right and interest in disclosure against plaintiffs’ interest in nondisclosure, the balance favors disclosure and defendants did not abuse their discretion.
    Opinion of the Court
    1. Statutes — Freedom of Information Act.
    The Freedom of Information Act does not compel a public body to conceal information at the instance of one who opposes its release.

      References for Points in Headnotes

       66 Am Jur 2d, Records and Recording Laws §§ 12 et seq., 32 et seq.

       66 Am Jur 2d, Records and Recording Laws §§ 19, 23, 27.

      2. Constitutional Law — Right of Privacy — Home Addresses.
    Governmental publication of the home addresses of its employees does not tread upon the right of privacy afforded the employees by constitutional principles.
    Concurrence by Cynar, J.
    3. Statutes — Freedom of Information Act.

      The Freedom of Information Act invests a public body with discretion in deciding whether to disclose information of a personal nature where disclosure is challenged on the grounds enumerated therein (MCL 15.243[1][a]; MSA 4.1801[13][l][a]).

      Fraser, Trebilcock, Davis & Foster (by Michael E. Cavanaugh), for the plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene Krasicky and Carl K. Carlsen, Assistants Attorney General, for defendants.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Danhof, C.J.

In November 1977, responding to numerous requests under the Freedom of Information Act, MCL 15.231 et seq.; MSA 4.1801(1) et seq. (FOIA), the defendant Michigan Department of Civil Service announced its intention to release to various labor organizations a list of the names and home addresses of the state’s approximately 63,000 employees in the classified civil service. The instant action was brought by five classified employees, claiming to represent the interests of all their colleagues in the classified service, seeking injunctive and declaratory relief.

The complaint asserted that the FOIA granted the plaintiffs a right to prevent the disclosure of public records containing information about them, because the threatened release would constitute a "clearly unwarranted invasion of [their] privacy”, MCL 15.243(l)(a); MSA 4.1801(13)(l)(a). It was also asserted that if the act compelled disclosure of the list, it was unconstitutional because that disclosure would be in violation of the plaintiffs’ rights of privacy and because it would encroach upon the Civil Service Commission’s constitutional authority to manage all matters concerning the classified civil service, Const 1963, art 11, §5; art 4, §48. Equitable relief was sought to prevent home confrontations with members of the public aggrieved by the employees’ official actions.

The defendants claimed that disclosure of the list would entail no infringement of the employees’ privacy sufficient to justify exemption of that record from the FOIA requirements and that the right of privacy derived from constitutional doctrines did not encompass the interest the plaintiffs sought to protect. The plaintiffs’ asserted exposure to malevolent citizens was denied. The defendants also took the position that the plaintiffs were acting on behalf of the Michigan State Employees Association, which, it was alleged, was seeking to forestall efforts of other labor organizations to marshall support among employees in the classified service.

The defendants moved for summary judgment, asserting that the complaint did not state a cause of action. GCR 1963, 117.2(1). The trial court entered judgment for the plaintiffs, observing that FOIA compulsory disclosure of the list impermissibly invaded the Commission’s authority in civil service matters and apparently holding that the FOIA prohibited release of the list as an unwarranted invasion of the employees’ privacy and security. The defendants appeal from the trial court’s injunction against the release of the list.

In this Court, the parties have argued extensively the interpretation and constitutionality of the FOIA. The defendants find themselves in a position that is rather unusual for public bodies in that they maintain that they are required to disclose information in their possession. Most of the FOIA charges and countercharges skirmish about this defense.

The unusual array of the parties in this action has presented an issue not often arising in litigation under freedom of information legislation. That issue concerns the authority of a public body to release records containing information that a subject of the records would prefer be kept securely in the government’s grasp. The plaintiffs have persuaded the trial court that under some circumstances the FOIA requires concealment of records that are exempt from the act’s requirement of disclosure._

MCL 15.232(c); MSA 4.1801(2)(c), provides, in pertinent part:

" 'Public record’ means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. This act separates public records into 2 classes: (i) those which are exempt from disclosure under [MCL 15.243; MSA 4.1801(13)], and (ii) all others, which shall be subject to disclosure under this act.”

The treatment of exempt records is described by the act in these terms:

"A public body may exempt from disclosure as a public record under this act: [hereinafter are listed the exempted records].” MCL 15.243; MSA 4.1801(13).

Notably absent from the FOIA universe is a class of public records that must be preserved from disclosure. It is not possible to interpret public bodies’ privilege to refuse disclosure of exempted materials as an obligation to protect those records from public view. The act itself demonstrates the Legislature’s ability to distinguish between "may” and "shall”. See also Arnold v Ellis, 5 Mich App 101; 145 NW2d 822 (1966), and King v Director of the Midland County Dep’t of Social Services, 73 Mich App 253; 251 NW2d 270 (1977). We reach the inescapable conclusion that the FOIA does not compel a public body to conceal information at the instance of one who opposes its release. Cf., Chrysler Corp v Brown, 441 US 281; 99 S Ct 1705; 60 L Ed 2d 208 (1979).

The second basis of the plaintiffs’ action was a claim that disclosure of their addresses would violate their constitutional right of privacy. While the viability of this claim is called into question somewhat by the plaintiffs’ acceptance of the commission’s "10% rule”, fn 3, supra, the plaintiffs clearly believe that the Commission has decided that the FOIA compels disclosure of the list. If this is the basis of the Commission’s decision, it may be assumed that the Commission will further comply with the FOIA by making the list available to any member of the public who seeks it. Therefore, the plaintiffs’ constitutional claim is worthy of review.

The plaintiffs assert without elaboration that the decision of the Supreme Court of the United States in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), protects their home addresses from governmental disclosure to third parties. That opinion rests upon a number of other noteworthy decisions marking the outlines of a realm of conduct regarded as being so clearly a matter of personal concern as to attain the status of a "fundamental right” protected by the Fourteenth Amendment from governmental interference in all but the most unusual of circumstances. We note that Roe and its predecessors have dealt exclusively with the regulation of citizens’ conduct and that most of these decisions addressed intimate matters of family and procreation, while a few had First Amendment overtones as well. The plaintiffs have suggested no philosophical link between their asserted right and the truly fundamental concern addressed in the privacy cases. None has occurred to us in our investigation of the issue. Accordingly, we decline this opportunity to declare the secrecy of a home address to be within the fundamental constitutional right of privacy.

We have held that government publication of the home addresses of its employees does not tread upon the right of privacy afforded the employees by constitutional principles. In the absence of such a right in the employees, it is the responsibility and prerogative of the government to weigh its employees’ interests against the public purpose that is served by the release of such information and to decide the matter accordingly. We have also held that the Freedom of Information Act does not compel a government agency to keep secret any public record it is otherwise disposed to release. We must assume that the defendants have exercised their informed judgment in deciding to release the contested list to those organizations that have requested it. Our disposition of these issues, and the positions of the parties to this litigation, make a determination of the defendants’ FOIA obligation to release the list both unnecessary and premature.

The judgment of the circuit court is reversed. The cause is remanded for entry of judgment for the defendants.

No costs, a public question.

Beasley, J., concurred.

Cynar, J.

(concurring). While concurring in the result reached in my brother Danhof’s opinion, I believe there is a need to further briefly state my position. At this stage of interpreting the FOIA on the question before us, I am only willing to say that upon balancing the right and interest in disclosure under the FOIA against plaintiffs’ asserted privacy interest in nondisclosure of their home addresses, the balance favors disclosure under the facts and circumstances found in this case. While MCL 15.243(l)(a); MSA 4.1801(13)(l)(a), invests a public body with discretion in deciding whether to disclose information of a personal nature when disclosure is challenged on the ground enumerated therein, a decision to disclose (or not to disclose) may nonetheless constitute an abuse of discretion in an appropriate case. My conclusion that the balance of factors favors disclosure in this case is thus tantamount to saying that defendants’ decision to disclose was a proper exercise of discretion.

       Attached to the complaint were affidavits relating the plaintiffs’ experiences with verbal abuse and threats and physical attacks on their persons and property by arrestees, unhappy taxpayers and disappointed applicants for unemployment benefits. The affidavits expressed the plaintiffs’ fear that such confrontations would be carried to their homes, should their home addresses be released to the public.

       Two labor organizations unsuccessfully sought to intervene as defendants, in order to argue for FOIA-compelled disclosure. They do not appeal their exclusion from this action.

       The plaintiffs willingly agreed to a limitation in the trial court’s order preserving to the defendants the authority to release employee address lists under the terms of the department’s "Regulation on Unit Determination and Exclusive Recognition,” § 5(1), which provides:
      "The Director shall provide the [employee, group of employees, individual or employee organization that has presented a sufficient petition for a representation election in a 'most appropriate unit’ of classified employees], any intervenor with a 10 percent showing of interest and the Employer with a list of all eligible voters in the most appropriate unit together with their addresses of record within 15 calendar days of the Director’s decision to conduct the election.”

         But cf., Getman v National Labor Relations Board, 146 US App DC 209; 450 F2d 670 (1971), and Wine Hobby USA, Inc v United States Internal Revenue Service, 502 F2d 133 (CA 3, 1974).