author: Cynar, J.

text:
    PEOPLE v LYNN
    Docket No. 77-3309.
    Submitted February 13, 1979, at Detroit.
    Decided July 9, 1979.
    Leave to appeal granted, 407 Mich 902.
    James A. Lynn was convicted of kidnapping and first-degree criminal sexual conduct, Wayne Circuit Court, Michael L. Stacey, J. Defendant appeals, alleging several errors. Held:

    1. The facts known to the police at the time of defendant’s arrest were sufficient to provide probable cause for the arrest, and because the arrest was valid a search of the defendant’s person, made incidentally to the arrest, was also valid and the results of that search were properly admitted into evidence.
    2. On the basis of information given them by the complainant just minutes after the offense the police believed the defendant was still in his apartment where the offense took place and were justified in entering the apartment without a warrant under the "hot pursuit” exception to the warrant requirement. The subsequent seizure of evidence which was in plain view in the apartment was, therefore, proper.
    3. The trial court erred in instructing the jury that asportation of the victim which was incidental to the commission of the sexual offense was sufficient to satisfy the asportation element of the kidnapping charge.
    4. The defendant’s motion to quash the kidnapping charge was properly denied. There was sufficient evidence of asportation not incidental to the commission of the sexual offense to submit the question to the jury.
    5. A statement made by the defendant was properly admitted to impeach the defendant’s testimony despite defendant’s argument that the statement had not been made available to him pursuant to a discovery order. The discovery order did not require disclosure to the defendant of the defendant’s own statements.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 37, 92.
    Constitutionality of searching premises without search warrant as incidental to valid arrest. 23 L Ed 2d 966.

       68 Am Jur 2d, Searches and Seizures §§ 56, 102.

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

       4 Am Jur 2d, Appeal and Error § 164.

       75 Am Jur 2d, Trial §§ 413, 415.

       23 Am Jur 2d, Depositions and Discovery § 315.
    Right of accused in state courts to inspection or disclosure of evidence in possession of prosecution. 7 ALR3d 8.

      The conviction of first-degree criminal sexual conduct is affirmed. The kidnapping conviction is reversed and the case remanded for a new trial on that charge alone.
    D. E. Holbrook, Jr., J., concurred in the result only.
    1. Arrest — Searches and Seizures — Probable Cause.
    Probable cause existed for a defendant’s arrest, and a search made incident to the arrest was therefore proper, where at the time of the arrest the police knew: (1) an alleged kidnapping had occurred; (2) the location of the apartment where the victim was held captive; (3) a person had recently left that apartment, driving a distinctive green car; (4) the police had seen this car leave shortly after the victim had been released; and (5) the defendant was driving this car at the time of his arrest approximately 20 minutes after the victim’s release.
    2. Searches and Seizures — Evidence — Plain View — Hot Pursuit.
    The seizure of evidence found in plain view in a defendant’s apartment was proper where the police, on the basis of information given them by the victim of a kidnapping and sexual assault who had been released only a few minutes earlier, believed that the defendant was still in the apartment and entered the apartment properly under the "hot pursuit” exception to the requirement for a search warrant.
    3. Kidnapping — Instructions to Jury — Asportation — Other Offenses.
    An instruction to the jury in a kidnapping prosecution which instructed that the asportation necessary to establish-the kidnapping charge could be incidental to the commission of the other charged offense, first-degree criminal sexual conduct, was erroneous; such an instruction allows the conversion of a single offense into two offenses.
    4. Appeal and Error — Criminal Law — Quashing of Information.
    The Court of Appeals will not reverse a trial court’s decision not to quash an information, absent an abuse of discretion.

      5. Kidnapping — Asportation — Other Offenses — Jury Question.
    The question of whether the asportation in an alleged kidnapping was incidental to another offense is for the jury.
    6. Criminal Law — Evidence — Impeachment — Discovery — Statement of Defendant — Harmless Error.
    A statement made by a defendant some weeks after his arrest was properly admitted to impeach the defendant after he testified to a lack of knowledge of the subject matter of that statement even though the statement had not been made available to the defendant pursuant to a discovery order; the prosecutor’s failure to furnish the statement to the defendant was harmless error in the circumstances of the case even if the discovery order did arguably apply to statements made by the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Peter J. Mitoff, for defendant on appeal.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, J.

On June 22, 1977, defendant was found guilty of one count of kidnapping, MCL 750.349; MSA 28.581, and one count of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). On July 7, 1977, he was sentenced to concurrent terms of life imprisonment. Defendant now appeals as of right.

At trial, Tammy Trombley, the 10-1/2-year-old complainant, testified that on the night of February 24, 1977, she was home with her 13-year-old brother. At approximately 8:30 p.m., a man, later identified as defendant, came to their apartment and asked to use the phone. After obtaining admittance to the premises he brandished a knife and took some money from the complainant’s brother. The complainant’s preliminary examination testimony, which was read at trial, also established that the defendant had also taken a ring from the apartment.

The complainant testified that after the robbery defendant carried her to a nearby apartment. At this time he forced her to engage in fellatio and unsuccessfully attempted to engage in sexual intercourse with her. She testified that during this latter attempt defendant used some Vaseline.

The complainant’s brother testified that after the assailant left with his sister, he notified a neighbor who called the police. Upon their arrival, he described the assailant and this description was radioed to other units.

James Osborn of the Woodhaven Police Force testified that at about 10:09 that night he saw the complainant returning home after having been released by her assailant. She pointed out defendant’s apartment as the place to which she had been taken and told the officer that, to her knowledge, the assailant was still in the apartment.

Shortly thereafter, several police officers converged at defendant’s apartment. No response was received when they knocked on the door. They broke down the door but found the apartment empty. The police were then told by a neighbor that a man had just left the apartment and was driving a light green car with a dark green top. A jar of Vaseline was found in defendant’s bedroom and was introduced at trial.

Prior to the entry into defendant’s apartment, Detective Frank Smith of the Taylor Police Department observed a car leaving the apartment complex where defendant’s apartment was located. He took down the car’s license number and began following the car, but abandoned the surveillance upon learning that the abductor’s apartment had been located. After the entry into defendant’s apartment, Detective Smith realized that the car he had previously observed was the same car as was described by defendant’s neighbor. Accordingly, he radioed in the license plate number of the vehicle.

At 10:21 that evening David Lambley, a Rock-wood patrolman, observed a car at the Rockwood Inn which matched the description and license plate number that had been broadcast over the radio. The officer placed its occupant, defendant, under arrest. A search of defendant’s person revealed a knife. A subsequent search of defendant’s person produced several rings.

Defendant took the stand in his own defense. He claimed he had been drinking heavily on the day in question and that he remembered very little of the events of that day. He testified that he had never seen the complainant before or on the day of the offense.

Defendant first contends that his arrest was made without probable cause and that the search made incident thereto was improper. This issue was raised in a pretrial motion below and was decided adversely to defendant’s position.

We find no merit to defendant’s argument. At the time of his arrest, the police officers were aware of the following facts: (1) that an alleged kidnapping had occurred; (2) the location of the apartment where the victim was held captive; (3) that a person had recently left that apartment and had driven away in a distinctive green car; (4) that the police had seen this green car leaving the apartment complex where the offense had taken place, shortly after the victim had been released by her abductor; and (5) that defendant was driving the car at the time of his arrest, approximately 20 minutes after the release of the victim. These facts were sufficient to connect a specific person, the defendant, to a specific felony and were sufficient to provide probable cause for defendant’s arrest. See People v Earle, 51 Mich App 232; 214 NW2d 892 (1974). Since defendant’s arrest was valid, the search made incident thereto was also proper, People v Stergowski, 391 Mich 714, 724; 219 NW2d 68 (1974), and no error occurred in denying his motion to suppress.

Defendant next contends that the entry into his apartment violated his fourth amendment rights and that the jar of Vaseline seized by the police should have been suppressed from evidence.

We disagree. On the basis of the information provided to the police by the complainant, they believed that defendant was still in the apartment. Their entry into the apartment therefore falls within the "hot pursuit” exception to the warrant requirement. Warden v Hayden, 387 US 294, 298-299; 87 S Ct 1642; 18 L Ed 2d 782 (1967), People v Stergowski, supra, at 720-721. Since the entry into the apartment was valid, the officers were in a place where they had a • right to be. Thus, their seizure of the jar of Vaseline, which was inadvertently discovered on top of defendant’s dresser, was proper under the "plain view doctrine”. People v Rembo, 73 Mich App 339, 343; 251 NW2d 577 (1977).

Defendant next contends that the trial judge erred in instructing the jury on the asportation element of the kidnapping charge. Specifically, he contends that the trial judge erred in stating that the jury could find asportation if the movement "was either for the purpose of abduction of the victim or to commit the crime of criminal sexual conduct in the first degree”. This instruction was objected to by defense counsel on the ground that it fails to require movement "significantly independent from the underlying offense”.

In People v Adams, 389 Mich 222; 205 NW2d 415 (1973), the Michigan Supreme Court thoroughly analyzed the asportation requirement of the offense of kidnapping and set forth several rules for trial courts to follow in kidnapping cases. Relevant to the present case are the following:

"2. The movement element is not sufficient if it is 'merely incidental’ to the commission of another underlying lesser crime.
"4. If the movement adds either a greater danger or threat thereof, that is a factor in considering whether the movement adequately constitutes the necessary legal asportation, but there could be asportation without this element of additional danger so long as the movement was incidental to a kidnapping and not a lesser crime.
"6. Whether or not a particular movement constitutes statutory asportation or whether there is an appropriate alternative element must be determined from all the circumstances under the standards set out above and is a question of fact for the jury.” Adams, supra, 238.

In the present case, the jury was, in essence, instructed that the asportation needed to establish the kidnapping charge could be incidental to the commission of first-degree criminal sexual conduct. We believe this instruction was in direct conflict with the Adams rule declaring that the asportation cannot be " 'merely incidental’ to the commission of another underlying lesser crime”. Adams, supra, 238.

In so holding, we are well aware that this Court is split on the question of whether the asportation required for kidnapping may be incidental to another offense, when the punishment for that offense is co-equal to that of kidnapping. In People v Hardesty, 67 Mich App 376, 378; 241 NW2d 214 (1976), a panel of this Court concluded that Adams Was inapplicable when the movement was incidental to a rape, since both offenses were punishable by life imprisonment. In so concluding, the Court focused upon the language in Adams, supra, at 238, that the movement cannot be incidental to the commission of an underlying lesser crime.

However, other panels of this Court have declined to interpret Adams in this manner. In People v Worden, 71 Mich App 507, 513-514; 248 NW2d 597 (1976), a panel of this Court rejected the Hardesty analysis, stating:

"While it is true that the Adams Court was concerned with the conversion of a simple crime into a capital offense, the logic of the opinion goes further and is directed to prohibiting the conversion of a single offense into two offenses. Thus it matters not whether the single offense is a minor misdemeanor such as simple assault or a capital felony such as armed robbery.”

See also People v Barker, 90 Mich App 151; 282 NW2d 266 (1979).

We believe the latter analysis is - more in line with the thrust of Adams and subscribe to it herein. Since the trial judge’s instruction on the essential element of asportation permitted the jury to consider asportation that was incidental, to the offense of first-degree criminal sexual conduct, defendant’s conviction for kidnapping must be reversed and the case remanded for a new trial on this count. People v Adams, supra, at 245.

We recognize that the present difference of opinion within this Court on this question presents a difficult dilemma for trial judges when called upon to instruct a jury on the elements of kidnapping. Hopefully, our Supreme Court will resolve this problem. In the meantime, where asportation is alleged, trial judges would be well advised to instruct in accordance with CJI 19:1:01. The use of this instruction may avoid future reversals under either the Hardesty or the Worden analysis.

Defendant further contends that the trial judge erred in denying his motion to quash the kidnapping charge. He claims that the evidence of asportation adduced at the preliminary examination showed only movement incidental to the other charged offense. Therefore, he argues that his kidnapping charge should be reversed outright.

This Court will not reverse a trial judge’s decision not to quash an information unless an abuse of discretion has occurred. People v Anderson, 83 Mich App 744, 748-749; 269 NW2d 288 (1978). In this case, the judge’s refusal to quash the information was clearly supported by the evidence. The complainant’s testimony at the preliminary examination established that she had been forcibly taken from her apartment to that of defendant, where she was subsequently sexually assaulted.

In evaluating this evidence we initially note that the movement of the 10-year-old complainant to a strange apartment added a danger of harm greater than that presented solely by the sexual assault. Adams, supra, at 238. We further note that the question of whether the asportation was incidental to another offense is one for the jury to decide. Adams, supra, at 238. Although there may well be some situations where the asportation alleged is so intertwined with another offense so as to render it incidental, as a matter of law, with that offense, the present case does not even approach such a situation. The evidence in support of asportation in this case was sufficient for jury consideration and defendant’s motion to quash was properly denied.

Defendant next contends that the trial court erred in using a prior statement of defendant to impeach him when the statement had 'not been made available to him pursuant to a discovery order.

We find no error. The statement, which was made over six weeks after defendant’s arrest, indicated that defendant knew it was the police trying to pull him over on the day of his arrest. This statement was used to impeach defendant after he testified on direct examination that he was unable to remember anything that had occurred prior to his arrest on the day of the incident. After defendant denied making this statement the prosecution called officer Frank Smith to the stand to testify as to the statement. Under these circumstances the testimony was properly admitted to contradict defendant’s assertion of memory loss.

Nor do we read the trial judge’s discovery order as requiring disclosure of defendant’s statement. The only conceivable basis for discovery of this statement would be that part of the order providing that defendant be furnished with copies of statements by "any and all witnesses in this matter”. Although the language used in this order is broad, other specific references to defendant in the discovery order lead us to believe that the order refers to statements by witnesses other than defendant. After all, it may be presumed that defendant knew what statements he had made. However, if the trial judge intended that a statement of defendant also be furnished, the prosecutor’s failure to furnish it to defendant was harmless error in the circumstances of this case. People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).

We have examined defendant’s other issues on appeal and find them to be without merit. See People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Vargas, 50 Mich App 738, 741-742; 213 NW2d 848 (1973), and People v McIntosh, 62 Mich App 422, 448; 234 NW2d 157 (1975), rev’d in part on other grounds 400 Mich 1; 252 NW2d 779 (1977).

Defendant’s conviction for first-degree criminal sexual conduct is affirmed. The kidnapping conviction is reversed and the case remanded for a new trial on that charge alone.

D. E. Holbrook, Jr., J., concurs in the result only.


source: Caselaw Access Project

author: M. J. Kelly, P.J.

license: Public Domain

text:
    PEOPLE v STURDIVANT
    Docket No. 77-4093.
    Submitted May 7, 1979, at Detroit.
    Decided July 9, 1979.
    Leave to appeal applied for.
    Terry Sturdivant was convicted in Detroit Recorder’s Court, James Justin, J., of criminal sexual conduct in the first degree, criminal sexual conduct in the third degree and larceny from a person. During trial, the prosecutor called serologists from the police crime lab who testified concerning the results of blood type testing of a seminal stain found on the underpants worn by complainant at the time of the offenses. One serologist was permitted to testify that while 80% of the general population secrete their blood type in bodily fluids 20% do not, that the semen on the underpants came from a nonsecreter, and that, based on a blood typing of defendant, it was determined that he was a nonsecreter. Defendant appeals. Held:

    1. The admission of the blood type evidence resulting from serological testing of seminal stains is error where the results of such testing are used solely to include the defendant in a class of possible perpetrators of the crime, since such evidence is of no probative value.
    2. The admission of the blood type evidence, while error, was harmless error, since the complainant made a positive identification of the defendant and there was evidence of the complainant’s opportunity to observe defendant.
    Affirmed.
    1. Evidence — Rape — Blood Typing — Seminal Stains — Probative Value.
    The admission in a criminal sexual conduct trial of blood type evidence resulting from serological testing of seminal stains is error where the results of such testing are used solely to include the defendant in a class of possible perpetrators of the crime, since such evidence is of no probative value.
    References for Points in Headnotes

       65 Am Jur 2d, Rape § 88.
    Blood grouping tests. 46 ALR2d 1000.

      2. Evidence — Rape — Blood Types — Identification — Harmless Error.
    The admission in a criminal sexual conduct trial of blood type evidence that serves only to include defendant in a class of possible perpetrators of the crime, while error, is harmless error where there is a positive identification of the defendant by the complainant, coupled with evidence of the complainant’s opportunity to observe the defendant.

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

      James N. Garber (John C. Mouradian, of counsel), for defendant on appeal.
    Before: M. J. Kelly, P.J., and Bashara and R. B. Burns, JJ.
   M. J. Kelly, P.J.

On February 16, 1977, at 10 p.m., the complainant, Bonita Jones, was accosted near her home in Detroit by defendant, Terry Sturdivant, who told her that he had a gun. As they were standing near a streetlight, the complainant was able to clearly see the defendant’s face. The defendant then took her to the attic of a vacant house where he raped her and took $66 from her pants pocket. In the course of the assault, defendant used a cigarette lighter to illuminate the room and the complainant was again given the opportunity to observe him. After a second penetration, defendant fled the house.

On March 3, 1977, in the course of the police investigation, the complainant viewed a photographic show-up containing defendant’s picture. Although unable to positively identify defendant at this time, she did observe similarities between defendant’s picture and her assailant. Subsequently, on March 14, 1977, the complainant positively identified defendant as her assailant at a police line-up. She again identified defendant at a preliminary examination held on March 21, 1977, and twice identified him at trial. At a pretrial evidentiary hearing, the trial court ruled that neither the photographic show-up nor the line-up were unnecessarily suggestive.

On August 4, 1977, following a jury trial, defendant was convicted of criminal sexual conduct in the first degree, MCL 750.520b(l); MSA 28.788(2)(1), criminal sexual conduct in the third degree, MCL 750.520d(l); MSA 28.788(4)0), and larceny from a person, MCL 750.357; MSA 28.589. The trial court sentenced defendant to 19-1/2 to 55 years on the first offense, 10 to 15 years on the second and 6 years and 8 months to 10 years on the third.

Defendant raises a host of issues in this appeal; however, we find that only one merits extended discussion. Did the trial court commit reversible error in admitting expert scientific testimony regarding the analysis of seminal fluids found on complainant’s clothing?

During the trial, two serologists from the police crime lab testified as to the results of tests they had conducted on the underpants worn by complainant at the time of the offense. The first to testify, Officer Ronald Badaczewski, testified that he found seminal fluid, but no blood, on the garment. The second serologist to testify, RaNell Davis, stated that she tested a swatch of cloth from the same sample, performing a secretory test typing on it. This test is used to determine blood types from other secreted body fluids, (semen, tears, saliva, etc.). She testified that 80% of the general population secreté their blood type in their body fluids and 20% do not. Ms. Davis then testified that the complainant’s panties contained no blood type secretion; this meant, in all likelihood, that the male whose sperm was on the panties, and the female who wore them, were both nonsecreters. She then testified that she did a blood typing on both the complainant and the defendant and that the results indicated that both were nonsecreters. Finally, she noted that it was relatively rare for both individuals in a rape case to be nonsecreters.

In sum, the testimony of Ms. Davis established only that the complainant’s attacker was a member of that segment of the population who were nonsecreters, as was the defendant. Because this testimony served to include the defendant in the class of possible assailants, it thereby increased the probability of defendant’s guilt without connecting him, in any way, to the charged offense. We hold that the admission of blood type evidence solely for the purposes of inclusion was error.

There is no Michigan criminal case on point with the instant case. However, the case law of other jurisdictions and our own case law developed in the context of the quasi-criminal paternity suit, where blood type testimony is often used as evidence, is instructive in resolving the posited issue.

New York represents the view that inclusion evidence has no probative value. In People v Robinson, 27 NY2d 864; 317 NYS2d 19; 265 NE2d 543 (1970), it was held that proof that the defendant in a murder prosecution had Type "A” blood and that semen found in and on the body of the decedent was secreted by a man with Type "A” blood was of no probative value in view of the large proportion of the general population having blood of this type, and therefore, should not have been admitted; however, it was further held that, in view of the careful limitation on its consideration by the jury in the court’s instruction and of the fully adequate case made out by the other proofs, the admission of such evidence was held not to be prejudicial. See also, People v Macedonio, 42 NY2d 944; 397 NYS2d 1002; 366 NE2d 1355 (1977).

However, the case of People v Gillespie, 24 Ill App 3d 567; 321 NE2d 398 (1974), represents the opposing view. In Gillespie, it was held that blood type evidence was admissible as one link in a chain of circumstantial evidence tending to prove the defendant’s participation in a burglary where an expert witness testified that only 2.7% of the Negro population had Type "A” with a positive rheumatoid arthritis factor, as did defendant. See also State v Gray, 292 NC 270; 233 SE2d 905 (1977).

In our opinion, the latter cases are not persuasive authority for the proposition that blood type evidence, when used for purposes of inclusion, is admissible. In Gillespie, there was extensive testimony as to the frequency of Type "A” blood with a positive rheumatoid arthritis factor which ultimately limited the inclusive group to 2.7% of the black population. We have no such specificity here. The people’s expert witness was able to limit the inclusive group of nonsecreters to only 20% of the general population. Similarly, in Gray, the court acknowledged the "somewhat tenuous” positive probative value of blood grouping testimony in a rape prosecution. In view of these distinguishing factors, we adhere to the view expressed in the New York cases which accords inclusion testimony no probative value.

In the context of paternity proceedings, moreover, Michigan statute, and case law also provide for the exclusion of blood type testimony when used for purposes of inclusion. Thus, MCL 722.716; MSA 25.496, which concerns the admission of blood tests as evidence of paternity, states in relevant part:

"(d) The result of the [blood] tests shall be receivable in evidence in the trial of the case but only in cases where definite exclusion is established. If more than 1 expert is appointed by the court, and if they disagree in their findings or conclusions, neither the findings, conclusions or the results of these tests shall be admissible as evidence of the paternity or non-paternity of the alleged father.” (Emphasis added.)

Michigan case law adheres to this legislative mandate. In People v Nichols, 341 Mich 311; 67 NW2d 230 (1954), the Court held that the admission of testimony concerning the results of blood tests for the purpose of establishing paternity in bastardy proceedings constituted prejudicial and reversible error because such tests, although accurate and reliable to establish non-paternity, have no probative value whatsoever in establishing paternity. In reaching that conclusion, the Court quoted with approval the language of State, ex rel Freeman v Morris, 156 Ohio St 333; 102 NE2d 450 (1951), where it was stated:

_ " 'Therefore, it may be here repeated that it is established that there is complete accord of experts in biology upon the proposition that results from such blood tests, disclosing a mere possibility of paternity, must be discarded and excluded from evidence as being valueless; and that their admission in evidence is prejudicial.’ ” 341 Mich at 329-330.

Similarly, in Shepherd v Shepherd, 81 Mich App 465, 471; 265 NW2d 374 (1978), this Court stated:

"Finally, we should note that under the holdings in Michigan and a majority of jurisdictions the results of blood tests, disclosing only that the alleged father might have sired the child, are irrelevant and inadmissible. But properly conducted tests which preclude paternity are conclusive and sufficient to rebut the presumption of legitimacy. People v Nichols, 341 Mich 311; 67 NW2d 230 (1954), Kusior v Silver, 54 Cal 2d 603; 7 Cal Rptr 129; 354 P2d 657 (1960), Commonwealth v Stappen, 336 Mass 174; 143 NE2d 221 (1975), Anno: 46 ALR3d 158.”

We find that the foregoing case law and statute amply support the conclusion that blood type evidence, when used solely for the purpose of including a defendant in a class of possible defendants, has no probative value. Therefore, we hold that the trial court erred in admitting such evidence.

This holding, however, does not require reversal in the instant case. Here, the complainant had several opportunities to observe the defendant at the time of the attack and positively identified him on several occasions. The complainant’s eyewitness testimony, if believed by the trier of fact, is sufficient evidence to convict. People v Knapp, 34 Mich App 325, 332; 191 NW2d 155 (1971). We hold that any error interjected into defendant’s trial by the admission of the blood type evidence was harmless beyond a reasonable doubt under the standards set forth in People v Christensen, 64 Mich App 23, 32; 235 NW2d 50 (1975).

Affirmed.

       Parenthetically, it should be noted that the Michigan statute, which bars the use of blood tests for inclusion purposes, is a modification of the Uniform Act on Blood Tests to Determine Paternity, which would permit their use for inclusion within the discretion of the trial court. This modification suggests a legislative mandate barring the use of blood tests for purposes of inclusion.


author: D. E. Holbrook, Jr., J.

text:
    MICHIGAN STATE EMPLOYEES ASSOCIATION v CIVIL SERVICE COMMISSION
    Docket No. 77-5016.
    Submitted March 6, 1979, at Lansing.
    Decided July 9, 1979.
    Leave to appeal applied for.
    The Department of Natural Resources (DNR), as an agent of the Michigan Civil Service Commission (MCSC), requires that certain of its employees must reside at state parks in state-owned housing as a condition of their employment. Prior to 1972 the DNR, with approval of MCSC, established dollar amounts for maintenance deductions on state housing based upon a formula that considered the size of the house, its condition, its location and other matters. On June 16, 1972, MCSC enacted new rules which required state park employees to reside at their work stations and to pay a rental charge for occupying the mandatory state housing in the amount of 65% of the appraised open market monthly rental value of the unit occupied. Michigan State Employees Association and certain individual plaintiffs brought a class action against MCSC challenging the validity of the new rental policy. Ingham Circuit Court, James T. Kailman, J., ruled that MCSC could constitutionally require members of the plaintiffs’ class to reside in state-owned housing as a condition of their employment, that MCSC’s attempt to impose the new rental fee system upon members of plaintiffs’ class hired prior to June 16, 1972, violated their contractual rights and was impermissible, and further ruled that MCSC may charge employees hired after June 16, 1972, rental for the mandatory housing under the MCSC’s fair market rental value system adopted by MCSC on June 16, 1972. MCSC appeals. Plaintiffs cross-appeal contending that MCSC may not require employees to live in state-owned houses, nor may it unilaterally set the amount to be charged as rental. Held:

    1. The DNR has the authority to establish a requirement that individuals employed in certain positions must occupy state-owned housing as a condition of their employment.

      References for Points in Headnotes

       1 Am Jur 2d, Administrative Law §§ 80-82.

       1 Am Jur 2d, Administrative Law §§ 80-82.
    48A Am Jur 2d, Labor and Labor Relations §§ 1764-1775.

      2. A person has a constitutional right to live where he chooses, therefore, where a continuing and mandatory residency requirement is imposed as a condition of employment, the restriction on personal liberty must be reasonable.
    3. A residency requirement, though in and of itself reasonable, may become unreasonable as applied. The DNR’s residency requirement, when coupled with the imposition of rental charges, constitutes unreasonable governmental action. The payments of any sums for occupancy Of state-owned housing which is occupied pursuant to a mandatory residency requirement of the DNR would be unjustified. The benefit goes almost entirely in the direction of the DNR, and any incidental value from the state housing to the employees is far outweighed by restrictions upon their personal liberty and the imposition of family hardships.
    Reversed.
    1. Administrative Law — Labor Relations — State Park Employees — Duties — Statutes.
    The Department of Natural Resources has the authority to appoint all state park employees and to determine their duties (MCL 299.1, 299.2; MSA 13.1, 13.2).
    2. Administrative Law — Labor Relations — State Park Employees — Conditions of Employment — Civil Service Commission.
    The authority to appoint state park personnel and to regulate working conditions is delegated to and rests with the Department of Natural Resources; its determination affecting conditions of employment are presumed to be valid in the absence of a contrary controlling regulation issued by the Civil Service Commission.
    3. Administrative Law — Labor Relations — State Park Employees — State-Owned Housing — Residence in Parks.
    The Department of Natural Resources has the authority to require that certain individuals, employed in state parks, must reside in state-owned housing as a condition of their employment.
    4. Constitutional Law — Administrative Law — State Park
    Employees — Residence in Parks — State-Owned Housing — Regulations.
    An individual’s right to live where he chooses is an integral part of the right to liberty protected by the 14th Amendment; a classification of state park employees by the Department of Natural Resources and the Civil Service Commission with the requirement that certain employees reside at the parks in state-owned housing must be examined by the traditional due-process rational basis test to determine the reasonableness of the governmental action.
    5. Administrative Law — Civil Service — Labor Relations — Expenditures and Savings — Rights of Employees.
    Holding down costs is a legitimate goal to be pursued by governmental entities; however, while government may create policies that seek to avoid unnecessary expenditures, it may not run roughshod over the rights of its employees in attempts to maximize savings.
    6. Administrative Law — Labor Relations — State Park Employees — Residence in Parks — State-Owned Housing.
    A Department of Natural Resources and Civil Service Commission requirement that certain state park employees reside at a park in state-owned housing, although in and of itself reasonable, may become unreasonable in application.

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

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael C. Levine, Assistant Attorney General, for defendant.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   D. E. Holbrook, Jr., J.

This controversy concerns a requirement of the Department of Natural Resources that certain of its employees must reside in state-owned housing as a condition of their employment, and the interrelationship of this DNR requirement with Michigan Civil Service Rules 17.5 and 17.5a. These rules treat the provision of lodging as part of the employee’s compensation and provide for the automatic deduction of its value as an allowance for maintenance. Prior to 1972 the DNR, utilizing a method approved by the Civil Service Commission, established the dollar amounts of the maintenance deductions based upon a formula that took into account such items as the size of the house, its condition, its location and other similar matters. In addition, the employees were required to pay their own utilities. On June 16, 1972, the Civil Service Commission adopted a policy supplement to Rule 17.5a which established a uniform system for determining the amount of maintenance fees charged for the utilization of all state-owned housing based upon the appraised fair market value. This policy was initially to be effective July 1, 1973, but final implementation of the new policy was delayed until September 1, 1974.

Plaintiffs are classified employees of the DNR who are required to live in state-owned housing. They commenced this suit in Ingham County Circuit Court challenging the validity of the new rental policy. On August 30, 1974, the circuit court issued a preliminary injunction to preserve the status quo until a final decision could be rendered on the merits. Both parties filed motions for summary judgment under GCR 1963, 117.2(3), and filed affidavits and exhibits in addition to legal arguments on the issues. On December 1, 1977, the trial court issued its final order and judgment. By this order the trial court held that the Civil Service Commission could constitutionally require members of the plaintiffs’ class to reside in state-owned housing as a condition of their employment. However, it determined that any attempts to impose the new rental fee system upon members of the plaintiffs’ class who were hired prior to June 16, 1972, violated their contractual rights and was impermissible. It further found the Civil Service Commission, or the DNR acting as the commission’s agent, could from time to time change the formulation for the computation of amounts charged for utilities in the mandatory houses, as long as the amounts charged did not exceed the actual costs of the utilities. In addition, the affected employees must be permitted to perform or have performed repairs which affect the costs of utilities and subtract the costs of such repairs from amounts which otherwise would be paid for the utilities. The Civil Service Commission appeals contending that the differentiation concernng the imposition of the new rental policy based upon contractual rights was not briefed or argued below and thus not proper on a motion for summary judgment. Plaintiffs filed a cross-appeal contending that the Civil Service Commission may not require employees to live in state-owned houses, nor may it unilaterally set the amount to. be charged as rent.

The DNR is the appointing authority for all state park employees. MCL 299.1; MSA 13.1. For approximately the last 30 years the DNR has determined the duties of some of its park employees to include a requirement that they occupy state-owned housing as a mandatory condition of their employment. This requirement has been imposed under the DNR’s general authority to determine the duties of its employees. This authority is granted to the DNR by MCL 299.2; MSA 13.2 which incorporates by reference MCL 318.3; MSA 13.1011. Where such authority resides in an appointing authority, its determinations affecting conditions of employment are presumed to be valid in the absence of a contrary controlling regulation issued by the Civil Service Commission. See Mac Lellan v Dep’t of Corrections, 373 Mich 448; 129 NW2d 861 (1964). See also, OAG 1969-1970, No 4709, p 169 (September 4, 1970).

The requirement that an individual must reside in state-owned housing in order to perform his job clearly concerns a condition of employment, and the Civil Service Commission is empowered to regulate such a condition of employment. Const 1963, art 11, § 5. However, the Civil Service Commission has enacted no rules concerning the mandatory occupancy of state-owned housing. Prior to June 16, 1972, the Civil Service Commission had no unified policy concerning when the mandatory occupancy of state-owned housing as an employment requirement was to be permitted but allowed each appointing authority to formulate its own policy concerning the propriety of imposing such a mandatory housing requirement. On June 16, 1972, the Civil Service Commission promulgated a policy framework for the exercise of this delegated authority. They stated:

"Mandatory occupancy of state-owned housing as an employment requirement is permissible when it is essential for an employee to be generally available during non-working hours to: 1) protect state property and alternate means are not feasible, or 2) provide information and assistance to the public on sight. Departmental requests for exceptions may be granted by joint approval by the directors of Civil Service and the Bureau of Programs and Budget of the Executive Office.” Policy Supplement to Civil Service Commission Rule 17.5a.

On its face this policy statement continues to delegate to the appointing authority the power to require mandatory occupancy of state-owned housing. Accordingly we find that the DNR has the authority to establish a requirement that individuals employed in certain positions must occupy state-owned housing as a condition of their employment.

Having determined that the DNR has the authority to establish the condition of employment requiring the mandatory occupancy of state-owned houses, we must now determine whether the requirement established is constitutionally permitted. An individual’s right to live where he chooses is an integral part of the right to liberty protected by the 14th Amendment, Allgeyer v Louisiana, 165 US 578, 589; 17 S Ct 427; 41 L Ed 832 (1897). Plaintiffs contend that the classification created by the joint action of the DNR and the Civil Service Commission limits this right in a fashion that is impermissible. The traditional rational basis test is the test properly applied • in cases such as this where a continuing residency requirement is involved. Detroit Police Officers Ass’n v Detroit, 385 Mich 519; 190 NW2d 97 (1971), appeal dismissed for lack of a substantial Federal question, 405 US 950; 92 S Ct 1173; 31 L Ed 2d 227 (1972). See Wardwell v Cincinnati Board of Education, 529 F2d 625, 628, fn 2 (CA 6, 1976). This traditional rational basis test is best stated:

"The governing rule is one of reason: The Equal Protection Clause, like the Due Process Clause, is a guarantee that controls the reasonableness of governmental action. The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation. What is reasonable is in each instance a matter of judgment. In the final analysis, it is a value judgment and should be recognized as such.” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 671; 232 NW2d 636 (1975).

Thus, we must examine the classification established by the DNR and the Civil Service Commission to determine its reasonableness.

The classification system challenged by plaintiffs consists of two elements. The DNR established the first element by requiring that certain of its employees occupy state-owned housing located in the park where the individual is employed. The Civil Service Commission established the second element by interpreting their Rule 17.5a as requiring a rental charge to be imposed upon persons occupying mandatory housing in the amount of 65% of the appraised open market monthly rental value of the unit occupied. These two elements interlock to such an extent that the reasonableness of the DNR’s mandatory housing policy must be examined by taking into account the impact of the Civil Service Commission’s rules.

The DNR’s mandatory housing policy requires that park managers reside on their work station, the park to which they are assigned. This requirement falls within the general category of the continued residence within a specified political boundary type of residency requirement that has been approved in other litigation. McCarthy v Philadelphia Civil Service Comm, 424 US 645; 96 S Ct 1154; 47 L Ed 2d 366 (1976), Williams v Civil Service Comm of Detroit, 383 Mich 507; 176 NW2d 593 (1970), Park v Lansing Board of Education, 62 Mich App 397; 233 NW2d 592 (1975). See Detroit Police Officers Ass’n v Detroit, supra. See also, Dunn v Blumstein, 405 US 330, 342, fn 13; 92 S Ct 995; 31 L Ed 2d 274 (1972). The requirement in this instance is however much more restrictive than any other requirements upheld in previous litigation. The individuals concerned are restricted to residing in a particular house, rather than within a particular city limit. This greater restriction does not in and of itself make the requirement unreasonable, but does require forceful reasons to justify its imposition.

Mr. M. E. Southworth, Chief of the Personnel Division of the DNR, stated in an affidavit submitted in this case that:

"The purpose of requiring the park managers and certain other employees to reside in housing in DNR parks is to provide protection of public property in the parks where the facilities and equipment are valued at hundreds of millions of dollars and, just as importantly, to serve the public during non-working hours. If the employees were not required to live in the parks, it would be necessary to hire additional park rangers to man the parks around the clock, which we conservatively estimate would cost approximately three million dollars per year.”

Mr. Southworth indicates that the sole justification for the mandatory residency requirement is an economic savings to the state. The holding down of costs is a legitimate goal to be pursued by governmental entities. Moore v East Cleveland, 431 US 494, 500; 97 S Ct 1932; 52 L Ed 2d 531 (1977), Williams v Civil Service Comm of Detroit, supra, at 514-515. While government may create policies that seek to avoid unnecessary expenditures, it may not run roughshod over the rights of its employees in attempts to maximize savings. In this instance, by requiring the park managers to reside on their parks, the necessity of hiring additional security and public personnel is avoided. The record reflects that as a result of this policy the individuals concerned, as well as their families, are subjected at times to a degree of unpleasantness and living conditions that they would not voluntarily choose for themselves. However, we do not consider that the record contains sufficient evidence to have permitted the trial court or to permit this Court to determine whether the mandatory housing requirement of the DNR, standing alone, is unreasonable. We therefore decline to determine that issue, but rather assume its reasonableness for the purpose of further discussion.

A residency requirement, though in and of itself reasonable, may become unreasonable as applied. State, County and Municipal Employees Local 339 v Highland Park, 363 Mich 79; 108 NW2d 898 (1961). In this instance Civil Service Commission Rules 17.5, 17.5a, and 17.5b are applicable to individuals who reside in government-owned quarters. These rules state:

"17.5 Maintenance Allowance. — When allowances are made for maintenance or other purposes, they shall be considered as part compensation, unless specifically excepted by the commission.
"17.5a Allowance for maintenance such as meals, quarters, domestic or other personal services, medical care or treatment, laundry or other services or provisions, shall be deducted from the salary to the extent of its value as recommended by the appointing authority and the budget director with the approval of the State Personnel Director. The total amount paid to an employee, plus the value for any maintenance shall not be less than the minimum rate nor greater than the maximum rate for the class as provided in the compensation plan.
"17.5b When the maintenance is furnished it shall be optional with the employee to receive such maintenance except where it is necessary for the proper performance of the duties of the position. No employee shall be charged for maintenance not received.”

The net result of these rules is to require that the value of the housing provided an individual is to be considered as part of his total compensation, and that this amount must be subtracted from his stated salary to determine the amount of monetary compensation he is entitled to receive.

This system of deducting the value of housing received from the gross salary of park managers has always been enforced. Prior to 1972 the DNR determined this value based upon a point system. This point system is modified under the new Civil Service Commission policy and is the center of this controversy. It states:

"Rental Rate Determination:
"There shall be two structures utilized for payment, to the state, for tenancy in state-owned housing (rooms, apartments, houses). 1. The rental charge for housing that is occupied as a mandatory requirement of employment shall be 65% of the appraised open market value of the housing unit. Further reductions of up to 25% of the appraised value may be made for harassment of the individual or his family during non-working hours and up to 10% of the appraised value for an individual who is required to live in housing which is unsuitable for his family’s space needs. Reduction for harassment and family space needs must be recommended by the departments affected and approved by the Department of Civil Service. No mandatory employee housing unit will increase more than $30 per month in rental charges each year above the current authorized rental rate until the maximum chargeable rate is achieved.
"2. The rental charge for all other housing shall be 100% of appraised open market value.
"Appraisals of state-owned housing shall be the responsibility of the Department of Administration. Appraisal review shall occur no less than biennially, taking into consideration any changes in open market housing values and the condition of individual state-owned housing units. Where it is not feasible for tenants to pay directly for water, sewage, electricity and fuel, the estimated costs of such shall be reflected in the rent appraisal. A master list of all housing units, including appraised rental values and locations shall be provided to the Department of Civil Service, Bureau of Programs and Budget of the Executive Office, and Office of the Auditor General.” Policy Supplement to Civil Service Commission Rule 17.5a.

We note that both the old DNR system and the new Civil Service Commission system are merely different methods of calculating the amount of rental charge to be imposed upon the residents of state-owned housing.

In this instance it is difficult to justify the imposition of any rental amount upon these plaintiffs. The benefit of the residency requirement goes almost entirely in the direction of the DNR. This requirement enables the DNR to receive approximately three million dollars in services for which no compensation need be paid. It is true that the individual concerned does receive some incidental value from the receipt of housing, but this value is far outweighed by the restriction upon his personal liberty and the hardship placed upon his family. Accordingly, we find that the mandatory residency requirement of the DNR, when coupled with the imposition of rental charges, constitutes unreasonable governmental action and is impermissible. The DNR is not prohibited from maintaining a mandatory residency requirement for these employees, but the Civil Service Commission in its position as ultimate regulator of all conditions of employment for the classified civil service may not require the payments of any sums for occupancy of state-owned housing which is occupied pursuant to a mandatory requirement of the DNR.

Reversed. No costs, a public question being involved.


author: J. H. Gillis, J.

text:
    KONFAL v CHARTER TOWNSHIP OF DELHI
    Docket No. 77-5047.
    Submitted March 12, 1979, at Lansing.
    Decided July 9, 1979.
    Respondent Charter Township of Delhi adopted a resolution approving a special tax assessment roll for the purpose of constructing a sanitary sewer. Petitioner Maria Konfal owned a single family dwelling and ten acres of land located within the special assessment district, and, accordingly, a special tax assessment of $10,725 was levied upon her property. Petitioner brought an action in the Michigan Tax Tribunal alleging that the assessment was invalid, and sought to restrain respondent from proceeding with the project. The tax tribunal issued an ex parte restraining order and scheduled a show cause hearing. On the day of the scheduled show cause hearing, a tribunal member indicated that the matter would be heard on the merits pursuant to the understanding reached in chambers. Following testimony on behalf of both parties, a decision affirming the special assessment was rendered by the three tribunal members who heard the evidence. Petitioner appeals. Held:

    1. No error resulted from the fact that the Tax Tribunal reached the merits of the case at the hearing held on the date scheduled for the preliminary hearing, since the parties manifested consent that the hearing be on the merits and made no objection to proceeding on the merits.
    2. A decision in a proceeding before the Michigan Tax Tribunal can be rendered when only three of the seven members of the tribunal participate in the decision, since, while a decision shall not be without the participation of the "entire tribunal”, the term "entire tribunal” is statutorily defined as meaning three or more members of the Tax Tribunal.
    3. A taxpayer challenging a special assessment has the burden of showing that no special benefit has been conferred upon the subject property, since there is a presumption that the tax levy is valid.

      References for Points in Headnotes

       72 Am Jur 2d, State and Local Taxation § 787.

       70 Am Jur 2d, Special or Local Assessments § 9.

       4 Am Jur 2d, Appeal and Error § 76.

       70 Am Jur 2d, Special or Local Assessments § 21.

      4. Findings of fact made by the Tax Tribunal are binding upon the Court of Appeals in its review of appeals of the tribunal’s decisions.
    5. A taxing authority is not limited to the present use of the subject property in its determination of the amount of benefit conferred by a particular improvement upon the subject property, but rather, the taxing authority may look to any use to which the property may be put for the purpose of its inquiry as to whether the benefit conferred exceeds the amount of the special assessment.
    Affirmed.
    1. Taxation — Tax Tribunal — Proceedings — Scope of the Proceedings.
    The Michigan Tax Tribunal may reach the merits of a case coming before it where, although the hearing was scheduled only to determine whether a preliminary injunction should issue, the parties manifested consent that the hearing be on the merits and no objection to proceeding on the merits was raised.
    2. Taxation — Tax Tribunal — Decisions — "Entire Tribunal” — Words and Phrases — Statutes.
    A decision in a proceeding before the Michigan Tax Tribunal can be rendered when only three of the seven members of the tribunal participate in the decision, since, while a decision shall not be made without the participation of the "entire tribunal”, the term "entire tribunal” has been statutorily defined as meaning three or more members of the Tax Tribunal (MCL 205.703[b], 205.734; MSA 7.650[3][b], 7.650[34]).
    3. Taxation — Real Property — Special Assessment — Challenges to Assessments — Burden of Proof.
    A taxpayer challenging a special tax assessment has the burden of showing that no special benefit has been conferred upon the subject property, since there is a presumption that the tax levy is valid.
    4. Appeal and Error — Taxation — Tax Tribunal — Findings of Fact.
    Findings of facts made by the Michigan Tax Tribunal are binding upon the Court of Appeals.
    5. Taxation — Real Property — Special Assessment — Present Use of Land — Potential Use of Land — Benefit.
    A taxing authority is not limited to present use of the property in its determination of the amount of benefit conferred by the particular improvement upon the subject property subject to a special tax assessment, but rather, the taxing authority may look to any use to which the property may be put for the purpose of its inquiry as to whether the benefit conferred exceeds the amount of the special assessment.

      Sinas, Dramis, Brake, Turner, Boughton, McIntyre & Reisig, P.C. (by Tim J. Donovan), for plaintiff.

      Church, Wyble, Kritselis, Anderson & Robinson, P.C., for defendant.
    Before: Cynar, P.J., and J. H. Gillis and N. A. Baguley, JJ.

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

   J. H. Gillis, J.

Petitioner appeals an order of the Michigan Tax Tribunal affirming a special tax assessment of $10,725 upon her property.

On October 3, 1977, Delhi Township adopted a resolution approving a special tax assessment roll for the purpose of constructing a sanitary sewer. Petitioner owns a single family dwelling and ten acres of land located within the special assessment district.

After receiving her assessment, petitioner filed the instant action in the Tax Tribunal seeking to restrain respondent from proceeding with the project. Petitioner alleged the special assessment on her property was invalid for a number of reasons. The Tax Tribunal issued an ex parte restraining order of November 16, 1977, and ordered a show cause hearing to be held on December 1, 1977. In the interim, respondent filed a motion to dissolve or modify the ex parte restraining order.

On December 1, 1977, the parties appeared for the scheduled hearing. At the outset of the proceedings, tribunal member Cramer indicated that the parties had met in chambers and it was understood that the matter would be heard on the merits. Following testimony on behalf of both parties, a decision was rendered affirming the special assessment.

On appeal plaintiff claims the tribunal erred in reaching the merits of the case when the hearing was scheduled only to determine whether a preliminary injunction should issue.

In Almira Twp v Benzie County Tax Allocation Board, 80 Mich App 755; 265 NW2d 39 (1978), the tribunal scheduled a preliminary hearing to determine the need for further proceedings. Following the presentation of testimony, a decision on the merits was rendered. This Court reversed, holding that the petitioner’s right to review had been prejudiced by this procedure.

The instant case is distinguishable on the facts. In Almira, the petitioner’s presentation was predicated on the assumption that the hearing was not on the merits. In the case at bar, prior to commencing the hearing, the parties manifested consent that the hearing be on the merits. We see no reason why the parties may not stipulate to expand the original scope of the hearing. Moreover, had petitioner felt inadequately prepared to proceed to a final adjudication, an objection could have been raised at the time.

Petitioner also contends that the decision of the tribunal was made without the participation of the entire tribunal. Only three of the seven members of the tribunal participated in the decision.

MCL 205.734; MSA 7.650(34) provides, in part:

"One or more members of the tribunal shall hear proceedings, but a decision shall not be made without participation of the entire tribunal.”

While at first glance it would appear from the above that all seven members of the tribunal must participate in a decision, § 3 of the Tax Tribunal Act defines "entire tribunal” to mean three or more members of the tribunal:

" 'Entire tribunal’ means 3 or more of the members appointed and serving pursuant to this act.” MCL 205.703(b); MSA 7.650(3)(b). (Emphasis added.)

There is dicta in Almira, supra, which would indicate participation by all seven members is necessary. However, Almira failed to take into account the above definition of "entire tribunal”. This writer confesses error for having joined in that portion of the opinion.

Petitioner finally contends that the special assessment was invalid because the amount of the assessment exceeded any benefit conferred upon petitioner’s land.

The theory behind special assessments is that a special benefit has been conferred, over and above that conferred upon the community in general. Fluckey v Plymouth, 358 Mich 447; 100 NW2d 486 (1960). A special benefit may be found from an increase in value, relief from burden, or creation of a special adaptability in the land. Soncoff v Inkster, 22 Mich App 358; 177 NW2d 243 (1970).

One who challenges a special assessment carries a heavy burden of proof, since there is a presumption that the levy is valid. Tack v Roseville, 67 Mich App 34; 239 NW2d 752 (1976).

Petitioner’s expert witness, William Porter, initially testified that the installation of the sewer would result in a net increase in value of $6,500. However, as the tribunal noted, this figure was arrived at by assuming the property could be subdivided and sold for $50 per foot of frontage. Mr. Porter’s own testimony indicates that $62 per foot was the average for the properties in the area he had used for comparison purposes. Using this figure, the tribunal concluded that the increase in value due to the sewer would exceed the amount of the assessment. Findings of fact made by the tribunal are binding upon this Court. Ironwood v Gobebic County Board of Comm’rs, 84 Mich App 464; 269 NW2d 642 (1978).

Petitioner argues, nonetheless, that any such benefit could be realized only if petitioner changed the existing use of her property from farming to residential development. Petitioner contends that it was error to look at future potential rather than the present, actual use of the land.

In determining whether property is benefited by a particular improvement, the inquiry is not limited to the present use of the property but, rather, to uses to which it may be put. Crampton v Royal Oak, 362 Mich 503, 517; 108 NW2d 16 (1961), Stybel Plumbing, Inc v Oak Park, 40 Mich App 108; 198 NW2d 782 (1972).

Petitioner cites Leonard Capaldi Contracting Co, Inc v Fraser, 70 Mich App 227; 245 NW2d 575 (1976), in support of her position. In that case the assessed property was used as an airport. While the installation of sewer and water lines would have been beneficial to the property if used for residential purposes, such use would decrease the value of the property from $10,000 to less than $3,500 per acre.

The Court reaffirmed the rule that the assessing authorities are not restricted to examining present use, but may look to potential use. The Court then went on to say:

"But we refuse to extend that ruling to. what would amount to a logical absurdity. We are urged to hold that although residential use by plaintiffs here might devaluate their investment to as low as one-third of the acreage value of the land in its present use as an airport, that if the assessment increases the value of the premises for residential use in relation to the amount of the assessment, that it must be upheld. We decline to do so.” Leonard Capaldi Contracting Co, Inc, supra, at 232.

In the instant case it is undisputed that the use of petitioner’s property for residential purposes would increase the market value of the land. Hence, the rationale of Capaldi has no application here.

Affirmed. No costs, a public question being involved.

       “Initially, we must note that the legislation creating the tribunal mandates that its decisions be rendered only upon 'participation of the entire tribunal’. MCL 205.734; MSA 7.650(34). Here, a decision was rendered with participation by only three members of the seven-member tribunal.” Almira Twp v Benzie County Tax Allocation Board, 80 Mich App 755, 760; 265 NW2d 39 (1978).


author: D. C. Riley, P.J. M. J. Kelly, J.

text:
    PEOPLE v GERMAIN
    Docket No. 78-172.
    Submitted March 19, 1979, at Detroit.
    Decided July 9, 1979.
    Leave to appeal applied for.
    Defendant, Edward J. Germain, was convicted of first-degree murder in the Chippewa Circuit Court, Nicholas J. Lambros, J., in the shooting death of his girlfriend. On the night of the shooting the police received a call from a male who identified himself as defendant and informed them that he had just shot someone in his trailer home, that he was going to shoot himself and that they should send someone over. Officers were dispatched and, when they arrived, found defendant’s girlfriend lying dead of a gunshot wound and defendant, also suffering a gunshot wound, lying on top of her. When questioned, defendant replied that he had shot his girlfriend and then himself. Later, during his convalescence at a hospital, he was guarded by a police officer to whom he volunteered certain inculpatory statements without first being given Miranda warnings. Defendant appeals alleging that the trial court erred in failing to instruct the jury on the elements of voluntary and involuntary manslaughter and in failing to suppress his statements to the guard because no Miranda warnings were given and because he was rendered incapacitated by the effects of heavy medication. He also contends that the prosecution failed to produce sufficient evidence, independent of his extrajudicial confession, to establish premeditation and deliberation. Held:

    1. Even though defendant requested an instruction on voluntary manslaughter, he raised no objection when the jury was charged and, thus, waived the issue on appeal.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 891.
    75 Am Jur 2d, Trial § 906.

       40 Am Jur 2d, Homicide §§ 525, 561.

       29 Am Jur 2d, Evidence § 555.

       40 Am Jur 2d, Homicide §§ 454, 455.

       40 Am Jur 2d, Homicide §§ 263-267.
    Homicide: presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.
    Homicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

      2. Because the jury was twice instructed on the elements of first- and second-degree murder and convicted the defendant of first-degree murder, contrary to the logical result had there been doubt as to the seriousness of defendant’s mental state, failure to instruct the jury on involuntary manslaughter was harmless error, even though the proofs adduced would have supported a conviction.
    3. Voluntary statements made by a defendant to a police officer who was guarding him subsequent to arrest do not come within the purview of the Miranda rule.
    4. The prosecutor must, to establish the corpus delicti of first-degree murder, introduce evidence of each element, including premeditation and deliberation, independent of the defendant’s extrajudicial confession. There was insufficient independent evidence of premeditation and deliberation to convict defendant of first-degree murder.
    Conviction of first-degree murder vacated and case remanded for entry of judgment of second-degree murder and for resentencing.
    M. J. Kelly, J., dissented. He would hold that the requested manslaughter instructions should have been given because there was sufficient evidence to support such instructions. He would reverse.
    Opinion of the Court
    1. Appeal and Error — Instructions to Jury — Failure to Object.
    Failure to object to the omission of a requested jury instruction following the judge’s instructions to the jury waives the issue for review.
    2. Homicide — Instructions to Jury — Involuntary Manslaughter — Appeal and Error ■ — • Harmless Error.
    A trial court’s failure to give a jury instruction on involuntary manslaughter when the proofs would have supported a conviction was harmless error where the jury was twice instructed on the elements of first- and second-degree murder and convicted the defendant of first-degree murder, contrary to the logical result had there been doubt as to the seriousness of defendant’s mental state.

      3. Criminal Law — Evidence — Voluntary Statements — Miranda Rule.
    Voluntary statements made by a defendant to a police officer who was guarding him subsequent to arrest do not come within the purview of the Miranda rule.
    4. Homicide — First-Degree Murder — Evidence — Extrajudicial Confessions — Premeditation and Deliberation.
    The prosecutor must, to establish the corpus delicti of first-degree murder, introduce evidence of each element, including premeditation and deliberation, independent of the defendant’s extrajudicial confession.
    5. Homicide — Evidence — Premeditation and Deliberation — Inferences.
    Premeditation and deliberation may be inferred by the surrounding circumstances including prior relationships tending to show motive, a murder weapon acquired and positioned in preparation for homicide, evidence in the record supporting the inference that the killer transported the victim to a secluded location for an illicit or criminal purpose, circumstances surrounding the killing suggesting premeditation and deliberation, and organized conduct subsequent to the killing suggesting the existence of a plan.
    Dissent by M. J. Kelly, J.
    6. Homicide — Instructions to Jury — Involuntary Manslaughter — Appeal and Error.

      Failure of a trial court in a murder trial to give a requested jury instruction on involuntary manslaughter is reversible error where the evidence adduced at trial was sufficient to support a conviction of involuntary manslaughter despite the fact that the jury convicted the defendant of ffrst-degree murder.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Farrell E. Elliott, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Thomas C. Nelson, of counsel), for the people.

      Ronald J. Bretz, Assistant State Appellate Defender, for defendant on appeal.

      Before: D. C. Riley, P.J., and M. J. Kelly and Beasley, JJ.
   D. C. Riley, P.J.

On October 6, 1977, defendant was convicted by a jury of first-degree murder, contrary to MCL 750.316; MSA 28.548, in the shooting death of his girlfriend. He was sentenced to life imprisonment, appeals by right, and poses four allegations of error, two of which contain merit.

The background facts as pertinent to the issues on appeal reveal that on the evening of March 25, 1977, Lt. Robert Clary of the Sault Ste. Marie police department received a call at headquarters around 11:43 p.m. from a male identifying himself as Ed Germain. The caller asserted that he had just shot someone in his trailer home, that he was going to shoot himself, and that Clary had better send someone. The lieutenant promptly dispatched two cars to the given address. Following their arrival, the officers entered the trailer and found defendant’s girlfriend lying dead of a gunshot wound on the bed. Defendant, himself shot in the chest, was lying on top of her. When questioned by one of the officers as to what happened, defendant replied that he had shot his girlfriend, Lillian TenEyck, and then shot himself. Defendant was taken to a hospital, where, following surgery, he convalesced for approximately a three-week period. During that time he was guarded in part by Deputy Sheriff Michael Baker. At both the preliminary examination and trial, Baker ascribed to defendant certain allegedly volunteered statements, given without benefit of Miranda warnings, which included defendant’s own inculpatory account of the event in issue. Defendant’s motion to suppress these statements was answered by a Walker hearing at which the lower court ruled them admissible as voluntary statements "made without being questioned”.

Other facts are provided insofar as they are necessary to a resolution of the issues raised on appeal.

Defendant first alleges that the trial court erred in failing to instruct the jury on the elements of both voluntary and involuntary manslaughter. With respect to the former, although defendant submitted to the court a proposed instruction, no objection was proffered to its omission when the court inquired as to whether counsel was satisfied with the intended charge. The failure to so object waives appellate consideration. People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978), People v Harless, 78 Mich App 745; 261 NW2d 41 (1977), People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977), lv den 402 Mich 909 (1978). However, proper exception was taken to the trial judge’s failure to instruct on involuntary manslaughter. MCL 750.329; MSA 28.561 defines that offense as follows:

"Any person who shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter.”

The court denied defendant’s request because there was no testimony adduced from which an affirmative showing could be made of defendant’s state of mind. In People v Doss, 406 Mich 90, 98, n 3; 276 NW2d 9 (1979), the Court recognized the elements of involuntary manslaughter as defined in the applicable standard Criminal Jury Instruction:

"(1) That the deceased died on or about a date;
"(2) That the death was caused by an act of the defendant;
"(3) That the defendant caused the death without lawful justification or excuse;
"(4) That the death resulted from the discharge of a firearm;
"(5) That at the time of such discharge, the defendant was pointing or aiming the firearm at the deceased; and
"(6) That at the time of such discharge, the defendant intended to point or aim the firearm at the deceased.” CJI 16:4:06.

Thus, the only proof necessary to support the charge, which the prosecution concedes was in evidence in the present case, was that defendant intentionally pointed the gun at TenEyck and that she died as a result of the subsequent discharge of the firearm. Defendant was therefore entitled to the instruction. People v Van Wyck, 402 Mich 266, 269-270; 262 NW2d 638 (1978).

Nevertheless, despite the court’s failure to give the requested charge, reversal of defendant’s conviction is not compulsory on this ground. The jury was twice instructed as to the elements of both first- and second-degree murder and convicted defendant of the higher charge, contrary to the logical result had there been doubt as to the seriousness of defendant’s mental state. The trial judge’s omission, therefore, was harmless. People v Gerald Hughes, 85 Mich App 8, 13; 270 NW2d 692 (1978), People v Richardson, 77 Mich App 411, 421-422; 258 NW2d 741 (1977).

Defendant next maintains that the trial court abused its discretion in refusing to suppress defendant’s statements given Deputy Baker concerning the events of the night in question.

At the Walker hearing, Deputy Baker’s preliminary examination testimony was admitted by both parties to establish the circumstances surrounding the making of defendant’s purportedly involuntary declarations:

"A. [Deputy Baker.] Approximately 9:15, if I remember correctly, Mr. Germain had asked me if I would crank his bed up. This I did. And afterwards I returned to my chair and was reading the paper when he started talking. He asked me, you know, if I would mind him talking. I said, 'No’ and continued to read the paper.
"At this point, he started talking about, apparently, what had happened the night of the shooting. He made reference to that he had some problems. He and Miss TenEyck were not getting along, she had been nagging for the last six months. He had come home that evening, and he made reference that he had four cans of beer in his refrigerator and she had drank three, prior to his arriving home, and he had drank the other one.
"At which I just nodded and, I believe, once I acknowledged that I was listening to him. He continued to state that they had gone out that night and she had been giving him a hard time nagging. I believe he said the last six months, and upon returning home she continued to keep this nagging up, apparently at which he, if I remember correctly, the quote was he told her, '[s]hut your mouth bitch’. He stated he had slapped her on the side of the head, at which time he held his fist up. I presume showing what he used to do it with.
"At this point, Mr. Germain stated she continued to keep nagging at. him, at which time he slapped her along the other side of the head and he said that he could tell that he had hit her pretty hard, I believe was his words, because her eyes were swelling up on both sides of her head.
"At this point, as I recall, Mr. Germain stated he said, '[o]kay, I’ll show you’, and he said he went and got the shotgun. Prior to this he said he threw her on the bed. He didn’t state which room this was, which bedroom this was, but he stated he had thrown her on the bed and then stated, 'I’ll show you’ and he said he went and got the shotgun and shot her.
"Q. [Prosecuting Attorney.] Had you asked him any questions at all?
"A. No, sir. We had talked earlier in the day but nothing in regards to what had happened that night.
"Q. Was this your only participation in this case, that of guard duty?
"A. Yes, sir.
"Q. You were not an investigating officer or anything of that nature. Is that correct?
"A. No, sir.

The trial court ruled that defendant’s statements were freely given and not the result of coercion. On appeal, we reexamine the entire record in order to reach an independent determination. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972), People v Dixon, supra, 681, People v Smith, 80 Mich App 106, 111; 263 NW2d 306 (1977). In so doing we are led to the same conclusion as that of the lower court.

Defendant acknowledges that Deputy Baker never expressly questioned him, but argues that Baker’s consent to defendant’s desire to continue talking constituted an invitation to speak amounting to an implicit interrogation. Defendant’s attempt to come within the confines of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), is without merit. Miranda proscribes the use of compelled statements derivative of "custodial interrogation” which the Court defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”. (Emphasis supplied.) 384 US 436, 444.

Michigan courts have consistently held that spontaneous declarations by in-custody defendants do not fall within the purview of Miranda, supra. People v Terry, 86 Mich App 64, 67-68; 272 NW2d 198 (1978), People v Nard, 78 Mich App 365, 377-378; 260 NW2d 98 (1977), People v Leffew, 58 Mich App 533, 535-536; 228 NW2d 449 (1975), People v Moore, 51 Mich App 48, 51; 214 NW2d 548 (1974). In the instant case, Deputy Baker’s sole duty was to guard the defendant. He was not otherwise involved in the investigation of defendant’s alleged crime. At no time during the rendition did the officer ever question defendant as to the events which the latter had recounted. Baker’s testimony was that defendant asked his permission to talk before defendant broached the subject of the shooting. Only after Baker casually assented did defendant launch into his account. Defendant cannot argue in this situation that Baker had a duty to stop defendant, and inform him of his Miranda rights before defendant could continue a spontaneously uttered statement which Baker had not anticipated, requested or encouraged.

Defendant additionally claims that he was rendered incapacitated by the effects of heavy medication, and that it was error not to hold defendant’s narrative involuntary on that basis. At the Walker hearing, defendant maintained that he had no memory of the disputed conversation with Deputy Baker, although he did remember the officer’s presence. The transcript reveals that defendant was not heavily bandaged, but was attached to various life support devices in the hospital’s intensive care unit. Otherwise, as the prosecution carefully notes, the record is devoid of any other testimony relating to defendant’s physical or mental condition, or whatever medications he may have been ingesting, and their effect. Conversely, Deputy Baker declared that he participated in other, more mundane conversations with defendant, and that defendant was responsive and sounded coherent. Baker further remarked that defendant seemed quite physically active, and that he persisted in wanting to get up. Thus, in the absence of any proffered evidence which would characterize defendant’s condition or reasoning processes as incapacitated, we are not constrained to overturn the lower court’s ruling.

Finally, defendant contends that the prosecution failed to produce sufficient evidence at trial to establish premeditation and deliberation distinct from defendant’s extrajudicial confession, thereby requiring reversal of his conviction for first-degree murder. In People v Allen, 390 Mich 383; 212 NW2d 21 (1973), the Michigan Supreme Court adopted the dissenting Opinion in this Court of Judge (now Justice) Levin, which held that, in order to establish the corpus delicti of first-degree murder, the prosecutor must introduce evidence of each element of the crime, including premeditation and deliberation, independent of a defendant’s extrajudicial confession. People v Allen, 39 Mich App 483, 494-506; 197 NW2d 874 (1972) (Levin, J., dissenting).

At this juncture we note that the Court of Appeals has split as to the breadth of the Allen holding, which itself was promulgated in the context of felony murder. Allen has been held to apply only to the element of an underlying felony, requiring proof independent of a defendant’s confession in felony-murder situations, and not to the elements of premeditation and deliberation required for other first-degree murder. E.g., People v Norwood, 68 Mich App 730, 735-736; 243 NW2d 719 (1976), lv den 397 Mich 884 (1976), People v Sparks, 53 Mich App 452, 458-459; 220 NW2d 153 (1974), lv den 393 Mich 135 (1974). However, this result ignores the following language in Allen:

"Just as the people must establish with evidence the essential element distinguishing second-degree murder from first-degree murder in order to convict an accused person of the aggravated offense, so, too, in order to prove the corpus delicti, that distinguishing element must be established by evidence independent of the accused person’s confession. Otherwise the policy underlying the rule requiring that all the elements of the offense be established independently of a confession— consistently enforced in many Michigan cases — would be eroded in the category of cases where the stakes are the highest, where the accused person has the most to lose and where one would think that the law would be the most solicitous of his rights.” (Emphasis in original. Footnote omitted.) 39 Mich App 483, 503-504.

Other opinions have, we believe correctly, refuted the reasoning in Norwood and Sparks and applied the Allen corpus delicti rule to all first-degree murder. People v Wells, 87 Mich App 402; 274 NW2d 797 (1978), People v Hawkins, 80 Mich App 481; 264 NW2d 33 (1978). See also People v Oster, 67 Mich App 490; 241 NW2d 260 (1976), lv den 397 Mich 848 (1976), People v Juniel, 62 Mich App 529, 536, n 3; 233 NW2d 635 (1975), lv den 396 Mich 811 (1976). We choose to follow those decisions in the case at bar.

Defendant argues that the only evidence of premeditation and deliberation introduced by the prosecution derived from defendant’s purported statements to Deputy Baker. Defendant accurately notes that no other direct evidence was introduced as to the character of defendant’s intent at issue.

However, the components of premeditation and deliberation need not be established by direct evidence, but may be inferred from the surrounding circumstances provided such inference originates from an adequate basis in record evidence. People v Hoffmeister, 394 Mich 155, 158-159; 229 NW2d 305 (1975), People v Berthiaume, 59 Mich App 451; 229 NW2d 497 (1975), lv den 394 Mich 788 (1975). Such factors from which those elements may be inferred include prior relationship tending to show motive, a murder weapon acquired and positioned in preparation for homicide, evidence in the record supporting the inference that the killer transported the victim to a secluded location for an illicit or criminal purpose, circumstances surrounding the killing suggesting premeditation and deliberation, and organized conduct subsequent to the killing suggesting the existence of a plan. People v Meier, 47 Mich App 179, 184-185; 209 NW2d 311 (1973), People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971). Such factors, of course, are not exclusive.

In the instant case, there was evidence suggesting that TenEyck and defendant had a quarrelsome, troubled relationship, and that their relationship had in fact deteriorated so much as to cause TenEyck to renege on their wedding plans. There was no evidence indicating that defendant had ever previously displayed physical violence toward TenEyck. Although evidence of prior animosity between defendant and TenEyck may raise a slight inference of motivation, the prosecution did not introduce any particular reason for the shooting itself, absent defendant’s confession. Thus, the existence of prior ill will does not establish that defendant premeditated homicide pursuant to that motive on the night in question.

The prosecution further introduced no evidence as to how much time had elapsed between defendant’s decision to pick up the gun and the act of shooting, or between the decision to shoot and the act, or how far defendant had to move to reach the gun. The mere fact that he used a lethal weapon is not sufficient to establish premeditation and deliberation. People v Hoffmeister, supra, 160.

The crux of the prosecutor’s argument focuses upon the assertion that there was evidence from which one could reasonably infer that defendant called the police prior to shooting TenEyck and not afterwards, thus indicating that he premeditated the homicide. As previously noted, Sergeant Clary testified that he had received a call from a man identifying himself as defendant at approximately 11:43 p.m. The man indicated that he had already shot someone and was going to shoot himself. Allen Archer, an employee of the U.S. Coast Guard, testified that he pulled into the parking lot of the trailer court at "just about 11:50 [p.m.]”. Archer shut the car off, and heard a sound resembling a gunshot. He turned to his girlfriend, who agreed that it sounded like a gun. After both exited from the car, Archer walked to the other side to lock the door and heard the second shot. The prosecutor places great emphasis on the ostensibly short interval between the first and second shots, and maintains that if one were to accept Archer’s account, defendant would have had insufficient time to call the police in between the shots.

Viewing the evidence in the light most favorable to the prosecution, People v Berthiaume, supra, 456, we remain unconvinced that Archer’s testimony was sufficiently precise to allow a reasonable inference that defendant premeditated the homicide. The time of the initial discharge was an approximation, and the record is lacking in any definite manifestation as to the separation of time interjacent the first and second gunshots. There is no evidence from which to infer the length of time expended in asking his girlfriend’s opinion of the noise, or how soon afterwards Archer decided to leave the automobile.

Since, however, the jury found defendant guilty of first-degree murder, it necessarily concluded that defendant acted with malice. As it was undisputed that defendant killed TenEyck, the jury was permitted to infer that element, People v Morrin, supra, 323.

Defendant’s conviction for first-degree murder is therefore vacated and the case remanded for entry of judgment of second-degree murder and resentencing. People v Hoffmeister, supra, 162-163, People v Bargy, 71 Mich App 609, 614; 248 NW2d 636 (1976).

Beasley, J., concurred.

M. J. Kelly, J.

(dissenting). It would appear that the formidable theses in People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971), and People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975), are still good law, and therefore I agree with the majority opinion that a case of first-degree premeditated murder is not made out on this record. While the court has retreated slightly from some of Justice Levin’s views as expressed in Morrin and Hoffmeister in People v Tilley, 405 Mich 38; 273 NW2d 471 (1979), the majority opinion there appears grounded on the second look — second thought rationale of People v Vail, 393 Mich 460; 227 NW2d 535 (1975), and cited a Hoffmeister passage with approval:

"We recognize that '[s]ome time span between initial homicidal intent and ultimate action is necessary to establish premeditation and deliberation’, People v Hoffmeister, 394 Mich 155, 161; 229 NW2d 305 (1975). The jury had evidence to support the conclusion that the defendant had ample opportunity to premeditate and deliberate.” 405 Mich 38, 45-46.

We do not have such evidence here. Consequently I believe the majority is correct that there was no sufficient evidence to go to the jury on the count of first-degree premeditated murder.

But in threading my way through the legal thicket of manslaughter cases, most of which are cited by the majority, I arrive at the opinion that the requested manslaughter instruction should have been given because there was sufficient evidence to support such an instruction, both on voluntary manslaughter and on involuntary manslaughter, and for that reason I would reverse. In People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), the Supreme Court held that although manslaughter is not a necessarily lesser included offense of murder, a requested manslaughter instruction should be given if there is sufficient evidence to support a conviction of manslaughter. On remand our Court held that while the Van Wyck record did not conclusively establish mitigating circumstances, neither did it clearly establish a lack of passion and that even slight evidence of mitigation was sufficient to frame a jury question. People v Van Wyck (On Remand), 83 Mich App 581; 269 NW2d 233 (1978).

Here we have, it seems to me, sufficient evidence of intoxication to support a charge of involuntary manslaughter and enough, though slight, evidence of mitigating circumstances to warrant a charge on voluntary manslaughter. Since, in my view, both charges were supported and failure to give either one requires reversal, I do not address the question of waiver by the defense attorney’s failure to object to the court’s refusal to give his requested instruction on voluntary manslaughter.

I would reverse.

       Hospital records appended to defendant’s appellate brief were not made part of the record below, and therefore may not properly be considered by this Court. Dora v Lesinski, 351 Mich 579, 581; 88 NW2d 592 (1958).

       The law being what the Supreme Court says it is.

       He drank every day and sometimes lost his memory as a result. He had been drinking all the night of the killing and did not remember leaving the party according to his testimony.

       Again in favorable light, she’d nagged him for months and had been "chasing other guys”.