text:
    KRUGER v MARTIN
    Docket No. 46988.
    Submitted January 7, 1980, at Detroit.
    Decided April 3, 1980.
    Plaintiff, David Kruger, and defendant, Carolyn Kruger Martin, were divorced in 1975. Plaintiff was awarded custody of one child, and defendant was awarded custody of the other two. Plaintiff subsequently moved for a change of custody concerning the two children in the defendant’s custody, and defendant then moved for specific rights of visitation. An evidentiary hearing was scheduled but averted at the last moment when the parties agreed to a schedule of visitation, dismissal of the motion to change custody and payment by plaintiff of $1,000 in legal fees. When the parties returned to court to enter an order expressing these terms, plaintiff withdrew his consent to the proposed visitation on the basis of his expressed belief that the agreement was not in the best interests of the children. He stated that this decision arose from numerous conversations with the children but did not specify what was discussed. Despite plaintiffs withdrawal, the trial court entered a consent judgment in line with the prior agreement and granted defendant $200 for the cost of her motion in addition to the above-mentioned $1,000. Plaintiff appeals. Held:

    Compromises of pending controversies are favored by courts and will be voided only on satisfactory evidence of mistake, fraud or unconscionable advantage, none of which have been alleged here. Plaintiff did not agree to the payment of the additional $200. A court may award attorney fees in a custody dispute upon a showing that the party needed the sum in order to carry on with the litigation. Since no showing of necessity was made, the award of $200 must be set aside, but defendant may make a motion to have the award reinstated if she can show the proper factors.

      References for Points in Headnotes
    [1] 15A Am Jur 2d, Compromise and Settlement § 23 et seq.

    [2] 15A Am Jur 2d, Compromise and Settlement § 27 et seq.

    [3] 24 Am Jur 2d, Custody and Support of Children § 588.
    Right of wife to allowance for expense money and attorneys’ fees upon application, after absolute divorce, to modify order as to custody and support of children. 15 ALR2d 1270.

      Affirmed in part and reversed in part.
    1. Compromise and Settlement — Agreement in Court — Binding Effect.
    Agreements and consents between litigants are binding when made in open court.
    2. Compromise and Settlement — Evidence to Void.
    Compromises of pending controversies are favored by courts and will be voided only on satisfactory evidence of mistake, fraud or unconscionable advantage.
    3. Parent and Child — Courts — Custody Dispute — Attorney Fees — Statutes — Court Rules.
    A court may award attorney fees in a custody dispute upon a showing that the party needed the sum in order to carry on with the litigation (MCL 552.13[1]; MSA 25.93[1], GCR 1963, 726.1).

      Carl G. Becker & Associates, P.C., for plaintiff.

      Linda G. Selbst, for defendant.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

The parties to this appeal received a judgment of divorce in 1975 by which the plaintiff-father took custody of one child and the defendant-mother was given custody of the remaining two children. Plaintiff subsequently moved for a change of custody concerning the two children in the defendant’s custody and, sometime later, defendant moved for specific rights of visitation. An evidentiary hearing was scheduled but averted at the last moment when the parties agreed upon a schedule of visitation, payment by plaintiff of $1,000 in legal fees and dismissal of the motion to change custody. When the parties returned to court to enter an order expressing these terms, plaintiff withdrew his consent to the proposed visitation on the basis of his expressed belief that the agreement was not in the best interests of the children. He stated that this decision arose from numerous conversations with the children but did not specify what was discussed. Despite plaintiff’s withdrawal, the trial court entered a consent judgment in line with the prior agreement and granted defendant $200 for the cost of her motion in addition to the above-mentioned $1,000. From that judgment plaintiff claims this appeal.

Plaintiff argues that the trial court committed a clear legal error by entering the previously-consented-to agreement without making findings and conclusions as to the best interests of the children in the matter. MCL 722.27(c); MSA 25.312(7)(c), GCR 1963, 517.1. We disagree. The parties had the opportunity, they were in fact poised to litigate this issue, when in open court and on the record they expressed agreement over a very detailed and specific schedule of visitation. Given plaintiff’s acceptance of that agreement, we may assume that he believed it to be in the best interests of his children. Like the trial court, we are not now informed of any facts that would support plaintiff’s change of mind as to what constitutes the children’s best interests in this regard. Plaintiff has not argued that his prior agreement should be vitiated on grounds of mistake, fraud of unconscionable advantage; we therefore decline to overturn it. Chapin v Perrin, 46 Mich 130, 131; 8 NW 721 (1881). We recognize that a party has been allowed to withdraw its consent to an agreement prior to entry of judgment. City of Norton Shores v Carr, 59 Mich App 561, 564; 229 NW2d 848 (1975). However, it is noted that there was some question as to the "true mutuality of the original agreement” in that case, Norton Shores, supra, 564, and, in any event, we agree with the subsequent criticism of that holding. Meyer v Rosenbaum, 71 Mich App 388, 392-393; 248 NW2d 558 (1976). Implementation of the new schedule of visitation does not, in our opinion, substantially change the visiting privileges previously existing inasmuch as plaintiff will retain visitation rights on all Friday afternoons and Saturdays excepting defendant’s extended vacation periods. The plaintiff is granted similar vacation time with the children and the parties will share visitation over the religious holidays to the extent noted in the agreement. We therefore view the revised schedule as an extension of visitation privileges between the parties which does not amount to a change in the children’s custodial environment and, hence, distinguish Stevens v Stevens, 86 Mich App 258, 270; 273 NW2d 490 (1978). This resolution in no manner precludes the plaintiff from invoking the continuing jurisdiction of the divorce court under the proper circumstances- MCL 722.27(c); MSA 25.312(7)(c).

For the reasons given above, plaintiff’s claim concerning the payment of $1,000 in legal fees to defendant is without merit. On the other hand, plaintiff never consented to pay defendant $200 in conjunction with the entry of the consent order. Apparently, there was no compliance in this regard with the applicable statute and court rule, Le., a showing that defendant required this sum to be paid on her behalf to be able to carry on with the litigation. MCL 552.13(1); MSA 25.93(1), GCR 1963, 726.1. Therefore, this award of $200 is set aside. Defendant may make a motion to have this award reinstated if she can show the proper factors. See White v White, 86 Mich App 98, 102-103; 272 NW2d 202 (1978).

Affirmed in part, reversed in part. No costs.


source: Caselaw Access Project

author: J. X. Theiler, J.

license: Public Domain

text:
    BRUNI v CITY OF FARMINGTON HILLS
    Docket No. 78-2066.
    Submitted June 18, 1979, at Detroit.
    Decided February 7, 1980.
    Plaintiffs, Floyd and Anna Bruni and Sheldon Rott, are the owners of property in the city of Farmington Hills which is zoned for low-density residential use. They sought a change in classification to allow construction of multiple-family dwellings. The city planning commission passed a resolution that the plaintiffs’ land qualified for construction of so-called "cluster” housing and that the plaintiffs were entitled to submit a site plan for such a development. The plaintiffs did not submit a site plan, but brought an action against the city seeking the change in zoning classification. The Oakland Circuit Court, Stephen N. Andrews, J., found that the present zoning was not unreasonable or confiscatory and dismissed the complaint. Plaintiffs appeal. Held:

    1. The trial court applied the proper test for determining whether the zoning ordinance was unreasonable or confiscatory as applied to plaintiffs’ property.
    2. The trial court’s finding that the zoning classification of plaintiffs’ property was not unreasonable or confiscatory was not clearly erroneous.
    3. The zoning ordinance, allowing the option of building cluster housing where certain guidelines are met, is constitutional.
    4. The availability of the cluster housing option is a legitimate form of a variance.
    Affirmed, and remanded with the trial court to retain jurisdiction to give plaintiffs a reasonable time to submit a site plan if they desire to proceed with a cluster development, subject to review by the trial court.
    References for Points in Headnotes
    [1, 3] 82 Am Jur 2d, Zoning and Planning § 11 et seq.

    [2] 82 Am Jur 2d, Zoning and Planning §§ 337, 358.
    [3] 82 Am Jur 2d, Zoning and Planning §§ 106, 112.
    Planned-unit, cluster, or greenbelt zoning. 43 ALR3d 888.
    [4] 82 Am Jur 2d, Zoning and Planning §§ 87, 88, 96, 111.

      1. Zoning — Constitutional Law — Standards.
    A plaintiff challenging the constitutional validity of a municipal zoning ordinance, in order to succeed, must show that there is no reasonable governmental interest being advanced by the present zoning classification, or that the ordinance is unreasonable because of the purely arbitrary, capricious and unfounded exclusion from the area in question of other types of legitimate land use.
    2. Zoning — Constitutional Law — Development of Property.
    A trial court’s finding that a zoning ordinance was neither unreasonable nor confiscatory as applied to a plaintiffs property was not clearly erroneous where expert testimony for the parties disagreed to whether the plaintiff could profitably develop the property as it was presently zoned.
    3. Zoning — Constitutional Law — Approval of Development — Standards.
    A zoning ordinance which requires approval of the municipal planning commission before implementation of so-called "cluster housing” where such housing is an option under a particular zoning classification is not unconstitutional where definite standards are in existence and where approval will follow if a proposed site plan meets those standards.
    4. Zoning — Density of Population — Statutes.
    Regulation of the density of population is a specific authorized zoning objective for home rule cities (MCL 117.4Í; MSA 5.2082).

      George Kratchman, for plaintiffs.

      Brennan & Bibeau, P.C. (by John M. Donohue), for defendant.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   J. X. Theiler, J.

Plaintiffs appeal as of right from the trial court’s order dismissing their complaint, which order in effect upheld the zoning classification pertaining to plaintiffs’ property.

Plaintiffs’ property is zoned RA-1, or low density residential. Under the Farmington Hills zoning ordinance, a district zoned RA-1 may be developed for one-family cluster residences. Cluster dwellings enable land owners to build a number of residences close together on that portion of their land that is suited for construction, and thus to avoid the prohibitive costs of developing that portion of their land unsuited for construction. On May 9, 1974, the Farmington Hills Planning Commission passed a resolution finding that plaintiffs’ property qualified for the cluster option and that plaintiffs were entitled to submit a site plan for approval from the commission after a public hearing on the matter was held. Plaintiffs never submitted a site plan to the commission.

At trial, plaintiffs argued that RA-1 zoning of their property was unreasonable and confiscatory, because they were unable to profitably develop their land for any use other than high density residential. Plaintiffs sought to have their zoning classification changed to RC-3 which would permit the land to be used for multiple family residences. In its opinion, the trial court found the RA-1 zoning of plaintiffs’ property not to be unreasonable or confiscatory, because plaintiffs were unable to prove that the RA-1 zoning classification precluded development of their land in a profitable manner. The opinion noted that the experts who testified had disagreed concerning the profitability of developing plaintiffs’ land under the RA-1 zoning requirement.

On appeal, plaintiffs argue that the trial court erred in not using the proper test for determining whether defendant’s zoning ordinance was unreasonable or confiscatory as applied to plaintiffs’ property. We find this argument to be without merit.

The appropriate standard for determining the constitutional validity of municipal zoning ordinances has recently been restated in Ed Zaagman, Inc v Kentwood, 406 Mich 137, 153-154; 277 NW2d 475 (1979). The trial court in the present case expressly stated that same standard in its opinion, and properly followed it by finding that plaintiffs had not proved the zoning classification of their property to be unreasonable or confiscatory.

Plaintiffs secondly contend that the trial court’s finding that defendant’s zoning ordinance was not unreasonable or confiscatory as applied to plaintiffs’ property was clearly erroneous. We disagree.

The record indicates that the experts presented on behalf of each party agreed that plaintiffs’ property could not be developed economically for individual single family homes without the cluster option being implemented. However, the parties’ experts disagreed as to whether plaintiffs could profitably develop cluster housing on their property. Under these circumstances, we find the trial court’s finding that plaintiffs failed to prove the RÁ-1 zoning classification of their property to be unreasonable or confiscatory not to be clearly erroneous. See Moore v Carney, 84 Mich App 399, 403; 269 NW2d 614 (1978).

Plaintiffs further argue that even if it were economically feasible for them to build cluster housing on their property, they can do so only at the whim and caprice of the Farmington Hills Planning Commission. Therefore, they argue the zoning ordinance is unconstitutional and void, because it is without definite standards.

We find the applicable zoning ordinance to be constitutional. In order for a cluster option to be approved, it must first be determined whether or not the land in question qualifies. In the instant case, plaintiffs’ land has already been determined as qualifying for the cluster option. Secondly, a site plan for the proposed cluster housing must be presented. A public hearing regarding the plan is to be held, after which the Planning Commission decides whether or not to approve the site plan.

The zoning ordinance in question provides specific and definite guidelines that must be met in order for land to qualify for the cluster option. Since definite standards do exist, the ordinance is not unconstitutional. See Osius v St Clair Shores, 344 Mich 693; 75 NW2d 25 (1956). The fact that the Planning Commission must approve a site plan before cluster housing can be implemented does not make the ordinance unconstitutional because approval will follow if the site plan conforms with already established guidelines. The purpose of submitting a site plan before final approval is given is to insure that the specific plan offered does, in fact, conform to the already established guidelines. To require separate guidelines for the approval proceedings would be impossible, because each site plan is different. The proper standards therefore exist prior to the submission of a site plan; in determining whether to approve or disapprove a site plan, the Planning Commission merely applies the particular plan submitted to the established guidelines to ascertain if the plan is in conformity therewith.

Plaintiffs further argue that the provision in the ordinance for cluster dwellings constitutes "spot zoning”. Merely calling a result "spot zoning” does not establish the invalidity of an ordinance provision. Defendant admits that the property in question, because of its unique characteristics, qualifies it for the use of the cluster option.

Admittedly, the specific requirements of the ordinance as to RA-1 zones are too stringent for development of this problem parcel to comply for use as single family dwellings because of problems of topography, relationship to abutting property, road conditions, easements, drainage, soil conditions and other conditions unique to the specific property. Accordingly, the defendant Planning Commission conceded, as does the defendant on appeal, that the property cannot be reasonably developed in accordance with those requirements. Had the trial court ruled otherwise, we would be constrained to differ. However, we do not construe his opinion to be such.

In Zaagman, supra, a "problem piece” of property was involved. The Court affirmed the finding of unconstitutionality of the ordinance as it applied to the specific property, but remanded to provide an opportunity for the city to amend its ordinance to make specific provision for a reasonable use of the property.

In effect, the defendant here has already given such specific consideration in providing that this parcel may be used for cluster zoning. This method of use would permit the development of the property in such a manner as to overcome the specific problems present because of the unique character of the land involved. To the extent that this be construed "spot zoning”, it is legal and proper, the same as granting variances as provided for in zoning ordinances.

The defendant has determined in its planning and ordinance adopting procedures that the area should be preserved for residential purposes of a low-density type. This is a legitimate consideration and objective. The record reveals that this decision is neither arbitrary nor capricious and we are not convinced, on this record, that we would have reached a different decision than the trial judge who determined that the property could be reasonably used in accordance therewith.

The provision for cluster housing in an ordinance may be a form of providing a variance, because of unique and distinctive characteristics of the property, yet preserving that which is construed to be the most important aspect of that zone — a low density of occupation. That criterion, more than any other, has the most impact upon the character of the surrounding area. To the extent that other aspects, such as distance of structures from neighboring property, are important, developmental plans can be adjusted to protect those interests.

Even without special hardship demonstrated, cluster housing is becoming recognized in other jurisdictions as a proper zoning technique, under the concept of subdivision control. See 4 Rothkopf, Law of Zoning and Planning (4th ed), pp 71-43 to 71-50. We are cited no reason under Michigan law why such zoning concept cannot be utilized by a local municipality and we do not feel constrained to develop such. One of the specific authorized zoning objectives for home rule cities is to regulate by ordinance "the density of population”, MCL 117.4Í; MSA 5.2082. For a less truncated expression of state policy see the basis for the plan and purpose of county zoning, MCL 125.203; MSA 5.2961(3).

As applied in this case, the availability of cluster development is a form of variance which eliminates hardship in application of the zoning requirements while preserving the overall objects of the plan. The hardship involved need not be restricted to an area only of lot size, Beatrice Block Club Ass’n v Facen, 40 Mich App 372; 198 NW2d 828 (1972).

Such variances, of course, are dependent upon the showing of unique circumstances and may be present as to one lot and not another, even in a very limited area. O’Keefe v East Grand Rapids Zoning Board of Appeals, 35 Mich App 583; 192 NW2d 509 (1971).

In the instant case, since plaintiffs have not submitted a site plan, they cannot complain that they have been deprived of the opportunity to build cluster housing on their property. They must exhaust their administrative remedies before taking a position that the cluster option is not available to them.

Plaintiffs contend that they may be subjected to unreasonable and capricious restrictions if they do develop and submit a cluster plan for this problem area. In Zaagman, on remand the trial court was required to retain jurisdiction with an appropriate time schedule provided. To forestall any such situation as alleged by plaintiffs from evolving, on remand the trial court is to retain jurisdiction to give plaintiffs a reasonable time to decide if they desire to develop a cluster plan for the property and submit it to the proper agency of the defendant for review, subject to further review by the court, as was provided in Zaagman and in George v Harrison Twp, 44 Mich App 357; 205 NW2d 254 (1973).

What constitutes such a reasonable period is left to the sound discretion of the trial court.

Affirmed, but remanded with instructions.


author: M. F. Cavanagh, P.J.

text:
    PEOPLE v ATKINS PEOPLE v WIGGINS
    Docket No. 45188.
    Submitted October 18, 1979, at Detroit.
    Decided April 16, 1980.
    Leave to appeal denied, 409 Mich 876.
    Aaron C. Atkins and Travis M. Wiggins were arraigned on charges of first-degree murder stemming from the murder of one Girard Tolbert. Ronald Moore, the informant in this case, testified at the preliminary examination that defendant Atkins with the assistance of Moore and defendant Wiggins killed Tolbert by injecting him with heroin and then holding his head under water. The prosecution contended that both defendants were involved in two separate shooting incidents which were related to the charged offense and which occurred shortly before Tolbert’s death. In the first, Wiggins was convicted of attempted murder and the charge against Atkins was dismissed. In the other incident, where two men were shot, both defendants received directed verdicts of acquittal. In an effort to link Wiggins to Tolbert’s death the police obtained a search warrant based on an affidavit of the informant, Ronald Moore, who agreed to telephone Wiggins in prison for the purpose of having a recorded conversation. At an evidentiary hearing, Wiggins orally moved to suppress the recordings on the basis of entrapment and that the supporting affidavit was insufficient. Over objections counsel for Atkins was permitted to cross-examine Moore regarding entrapment and the affidavit. Recorder’s Court of Detroit, Evelyn K. Cooper, J., ruled that evidence of the shootings was inadmissible due to their lack of materiality to the charged offense and because the prejudice of their admission would outweigh their probative value. The recordings were also held to be inadmissible because the search warrant was too general and the reliability of the informant was not established. The prosecution appeals by leave granted. Held:

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 431.
    [2] 68 Am Jur 2d, Searches and Seizures §§ 63, 67.
    [3] 68 Am Jur 2d, Searches and Seizures § 64.
    [4] 81 Am Jur 2d, Witnesses § 54.
    [5] 68 Am Jur 2d, Searches and Seizures §§ 64, 65, 67, 68.
    [6] 68 Am Jur 2d, Searches and Seizures §§ 81, 82.
    [7] 68 Am Jur 2d, Searches and Seizures § 60.
    [8, 11] 29 Am Jur 2d, Evidence §§ 320-328.
    [9] 29 Am Jur 2d, Evidence § 333.
    [10] 29 Am Jur 2d, Evidence § 325.

      1. Fourth Amendment rights are personal rights which may not be vicariously asserted. Atkins was not a party to the recorded conversations; therefore, he lacked standing to object to the admission of the recorded conversations. The recordings are admissible against Atkins and Wiggins may invoke the discretion of the court by moving for a separate trial.
    2. A supporting affidavit for a search warrant must afford a magistrate sufficient probable cause to issue the warrant. The affiant never attested that police informant Moore was reliable; he simply stated that he knew Moore and he had supplied information to the police. It was never purported that such information had been helpful or even that it was accurate. Therefore, the trial court’s ruling that the search warrant was too general and the reliability of the informant was not established is affirmed.
    3. Prior judicial authorization is required before a recorded conversation is admissible where the recording is to be effected by a third party and one of the participants is aware of the recording and the other is not. Wiggins was not informed that his conversation with Moore was to be recorded. The trial court properly suppressed the recorded conversations.
    4. The trial judge was justified in determining that any claimed interrelation between the crime charged and defendants’ other crimes was speculative because the claimed relationship was based on circumstantial evidence.
    5. To admit evidence of other crimes under the similar acts statute there must be a showing that defendants committed the other crimes. Wiggins was convicted of attempted murder and this satisfies the statutory requirement, but the charges against Atkins resulted in dismissal and acquittal and evidence of other crimes could not be used against him. There are no special circumstances in defendants’ other alleged crimes that would prove intent or motive and, in addition, the element of motive was never placed in issue.
    6. The trial court properly ruled that the probative value of admitting evidence of the defendants’ other alleged crimes was outweighed by the prejudicial effect.
    Affirmed.

      1. Telecommunications — Constitutional Law — Evidence — Right to Privacy — Recorded Conversations — Suppression of Evidence — Coconspirators and Codefendants — Personal Involvement — Standing.
    Fourth Amendment rights to privacy are personal rights which may not be vicariously asserted; the right to suppression of recorded conversations from trial evidence is personal to the one whose right to privacy was violated, and persons, including coconspirators and codefendants, who were not personally involved in the recording of the conversations have no standing to object to their admission.
    2. Searches and Seizures — Search Warrants — Probable Cause — Discretion — Appeal and Error.
    The Court of Appeals will not substitute its judgment for that of a magistrate in determining probable cause to issue a search warrant.
    3. Searches and Seizures — Search Warrants — Supporting Affidavits.
    An affidavit in support of a search warrant should be read in a common sense manner in conjunction with the warrant.
    4. Witnesses — Admissions — Penal Interest ■— Immunity — Admissibility.
    Admissions of a witness should not be suppressed on the ground that they were against his penal interest where the witness was given immunity.
    5. Searches and Seizures — Warrants — Supporting Affidavit — Magistrates — Probable Cause — Reliable Information.
    An affidavit supporting the issuance of a search warrant fails to afford a magistrate sufficient probable cause where the affiant never attested that a police informant was reliable or that his information had been helpful or accurate.
    6. Searches and Seizures — Search Warrants — Supporting Affidavits — Evidence — Reasonable Description of Evidence.
    A search warrant and its supporting affidavit must describe the evidence sought to be obtained with reasonable precision.
    7. Searches and Seizures — Recorded Conversations — Warrant Requirements.
    Prior judicial authorization is required before a recorded conversation is admissible where the recording is to be effected by a third party and one of the participants is aware of the recording and the other is not.
    8. Criminal Law —- Evidence — Other Crimes — Interrelation of Crimes — Admissibility.
    Evidence of a defendant’s other crimes should not be admitted where any claimed relationship between the crime charged and the other crimes is based on circumstantial evidence as opposed to a defendant’s admission of interrelation.
    9. Criminal Law — Evidence — Other Bad Acts — Admissibility — Requirements — Statutes.
    Admission of evidence of a defendant’s other crimes under the similar acts statute requires a showing of substantial evidence that defendant committed the other crimes, and that there were some special circumstances of the prior bad acts which tend to prove one of the statutory items and the materiality of the enumerated item to the determination of defendant’s guilt of the charged offense (MCL 768.27; MSA 28.1050).
    10. Criminal Law — Evidence — Other Bad Acts — Motive and Intent — Admissibility.
    One justification for the admission of evidence of other bad acts is to show motive, which first requires a showing that the defendant’s motive or intent in doing an act is material; therefore, even though motive may be germane to the admission of similar acts it must first be placed in issue to be considered.
    11. Criminal Law — Evidence — Other Crimes — Probative Value — Prejudicial Effect — Less Prejudicial Sources.
    Generally, evidence of other crimes is not admissible at trial because its probative value is outweighed by the prejudicial effect and, where prejudice predominates, a determination to exclude this evidence is proper; in making its decision the trial court should consider the availability of less prejudicial sources of proof to prove an element of the prosecution’s case.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for plaintiff.

      Bell & Hudson, P.C., for defendant Atkins.

      Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

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

   M. F. Cavanagh, P.J.

The prosecution was granted leave to appeal from the two-pronged ruling of the trial court that suppressed a tape-recorded telephone conversation between an informant and defendant Wiggins and denied admission of evidence of other crimes allegedly involving the defendants.

Defendants Atkins and Wiggins were arraigned on charges of first-degree murder stemming from the July 13, 1974, murder of one Girard Tolbert. Ronald Moore, the informant in this case, testified at the preliminary examination that defendant Atkins effected the release of Tolbert on bond, and, with the assistance of Moore and defendant Wiggins, killed Tolbert by injecting him with heroin and then holding his head under water.

The prosecution contended that both defendants were involved with two separate shooting incidents which were related to the charged offense and which occurred shortly before and after Tolbert’s death. Defendant Wiggins was convicted for the attempted murder of one "Pimp” Hines and has remained incarcerated in Jackson Prison therefor since 1975. Charges against defendant Atkins arising from that incident were dismissed by Justice, then Circuit Court Judge, Blair Moody, Jr., on the basis that there was no evidence to connect him with the crime. In the other incident, a shooting on Snow Road where two men were shot, one of whom died, directed verdicts of acquittal were entered in favor of both defendants.

In an effort to link defendant Wiggins to Tolbert’s death, the Detroit Police obtained a Beavers search warrant in December of 1978 based on an affidavit of Moore who agreed to telephone defendant Wiggins in prison and have the conversation recorded.

At an evidentiary hearing counsel for defendant Wiggins orally moved to suppress the recordings on the basis of entrapment, also later arguing that the supporting affidavit was insufficient. Counsel for defendant Atkins was also permitted to cross-examine a police witness in this regard, over objections that he had no standing to question the admission of the recordings and that he had never brought a motion to suppress. The trial court ruled that no evidence could be admitted concerning the two allegedly related shootings due to their lack of materiality to the charged offense and because the prejudice of their admission would outweigh their probative value. The recordings were also held to be nonadmissible since the search warrant was too general and the reliability of the informant was not established.

The prosecution is correct in maintaining that defendant Atkins lacks standing to object to the admission of the recorded conversations. "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted”. Alderman v United States, 394 US 165, 174; 89 S Ct 961; 22 L Ed 2d 176 (1969). If there was a search and seizure that was violative of the Fourth Amendment, as we shall ascertain below, it did not involve defendant Atkins as a party to the conversations nor as one from whose premises the conversations were "taken”. Alderman, supra, 176. Application of the exclusionary rule with regard to defendant Atkins in this instance would serve neither to protect his right to privacy, the same never having been invaded, nor would it deter police misconduct, given that the police obtained a warrant before recording the conversations. People v Warner, 401 Mich 186, 209; 258 NW2d 385 (1977). As a consequence, the recordings may be admitted against defendant Atkins, because "[cjoconspirators and codefendants have been accorded no special standing”. Alderman, supra, p 172. Defendant Wiggins may, accordingly, invoke the discretion of the trial court by moving for a separate trial. People v Slate, 73 Mich App 126, 131-132; 250 NW2d 572 (1977). MCL 768.5; MSA 28.1028. See 54 ALR2d 830.

Our consideration of the adequacy of the search warrant in this case is premised upon the accepted rule that absent a clear abuse of discretion, this Court will not substitute its judgment for that of the magistrate in determining probable cause. People v Thomas, 86 Mich App 752, 759; 273 NW2d 548 (1978), lv den 406 Mich 971 (1979), Justice Levin dissenting.

The language in the warrant describing what was to be seized read as follows: "All conversations dealing primarily with the subject of illegal drug trafficking and or murders where those conversations are between Ronald Moore AKA Ronnie Moore, a police agent, and Travis Melvin Wiggins”. The accompanying affidavit, which must concededly be read in a common sense manner in conjunction with the warrant, People v Iaconis, 29 Mich App 443, 454; 185 NW2d 609 (1971), aff'd in People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972), recites that, "[ajffiant is a Detroit Police Officer who is personally acquainted with Ronald Moore. Ronald Moore has been supplying information to Federal and local agencies concerning criminal activity of Aaron Atkins since the summer of 1977”. It then relates Moore’s version of the Tolbert killing, that Moore and Wiggins worked for Atkins at that time, and that Moore and Wiggins were both currently in prison. Finally, the stated purpose of the search warrant, "* * * is to cover a telephone call(s) initiated by SOI (Moore) wherein it is hoped that Wiggins will discuss his criminal activities”.

The prosecution attacks the suppression of the recordings on two fronts, viz., that Ronald Moore was identified in the warrant and that he made admissions against his penal interest. The latter factor is of no avail since Moore was given immunity in this case, and, therefore, reliance upon United States v Harris, 403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971), is misplaced. While knowledge of the identity of an informer lends some credibility to his or her information, standing alone in this case, it is not enough. See People v Tooks, 403 Mich 568; 271 NW2d 503 (1978). The affiant here never attested that Moore was reliable; he simply stated that he knew him and that Moore had previously supplied information to the police. It was never purported that such information had been helpful or even that it was accurate. Thus, we are faced with an affidavit based only on informant information with the recitation of details of the alleged murder as the only indicium of reliability. As such, the affidavit would fail the tests proposed in People v Rodriguez, 65 Mich App 723, 726-728; 238 NW2d 385 (1975), lv den 396 Mich 852 (1976). Moreover, the affidavit and warrant do not satisfy the "particularity” requirement by describing with reasonable precision the evidence sought to be obtained. Even a common sense reading of the two cannot avoid the impermissibly broad references to "illegal drug trafficking and or murders” and Wiggins’s "criminal activities”. Marron v United States; 275 US 192, 196; 48 S Ct 74; 72 L Ed 231 (1927). See also People v Taylor, 93 Mich App 292; 287 NW2d 210 (1979).

The prosecution also argues that since one of the parties to the conversations consented to their being recorded, no prior judicial authorization is required under United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971). While our Supreme Court chose to exceed the United States Supreme Court in White, supra, through its decision in People v Beavers, 393 Mich 554, 562-566; 227 NW2d 511 (1975), cert den, 423 US 878; 96 S Ct 152; 46 L Ed 2d 111 (1975), the situation present in this case differs slightly from that in Beavers. Here, we address the recording of a conversation between two persons, one of whom is aware of the recording and one who is not, the recording being effected by a third party. See Beavers, 562, fn 2, for the definition of participant monitoring. However, this Court has already applied the Beavers requirement for a search warrant to participant recording in People v Hall, 88 Mich App 324; 276 NW2d 897 (1979), lv den 406 Mich 941 (1979). We reiterate our belief that prior judicial authorization is required for the type of search and seizure involved in this case to the same extent that Beavers, supra, requires a valid search warrant to engage in "participant monitoring”. Hall, supra, 330. Therefore, with regard to defendant Wiggins, the ruling of the trial court that the recorded conversations be suppressed is affirmed. At the same time, however, this ruling does not affect the admissibility of Moore’s testimony as to statements spoken to him directly by Wiggins. Beavers, supra, 567.

The prosecution advances two arguments in support of its efforts to introduce evidence of other crimes relating to the defendants. First, it is argued that People v Delgado, 404 Mich 76; 273 NW2d 395 (1978), reh den 405 Mich 1001 (1979), allows such testimony to be admitted to show an entire criminal transaction. We are convinced that the circumstances of Delgado are not sufficiently analogous to those of the present case since any claimed relationship in this case was based on circumstantial evidence as opposed to defendant’s admission of interrelation in Delgado, supra, 79-80; and further, due to the inconsistent objections by defendant in Delgado, the jury was apprised that there had been a sale prior to the one in issue, Delgado, supra, 84. We will not upset the determination of the trial court that the claimed interconnection between the events was speculative under these circumstances.

The second theory is that evidence of the other crimes was admissible under the similar acts statute, MCL 768.27; MSA 28.1050. This requires a showing of substantial evidence that defendants committed the other crimes; some special circumstances of the prior bad acts which tend to prove one of the statutory items; and the materiality of the enumerated item to the determination of defendants’ guilt of the charged offense. People v Wilkins, 82 Mich App 260, 267-268; 266 NW2d 781 (1978). Due to the dismissal of charges and directed verdict of acquittal as to defendant Atkins in both of the alleged similar acts, the first requirement cannot be established against him. Defendant Wiggins, however, was convicted in the charges arising from the shooting of "Pimp” Hines, and the evidence does satisfy the first requirement to that extent. For the second factor, the prosecution urges that the acts would prove motive or intent. Both defendants assert that they did not commit the killing, and in the absence of claims of accident or self-defense, there are no special circumstances in this case that would allow the bad acts to be employed to prove intent. Wilkins, supra, 267. The acts could, nevertheless, be used in conjunction with a showing of motive to eliminate potential witnesses given the circumstances of the case. But, even though motive may be germane to the admission of the similar acts, it must first be placed in issue. See People v Major, 407 Mich 394; 285 NW2d 660 (1979).

Beyond this analysis, Wilkins, supra, 270-271, further mandates a balance of probative value versus prejudicial effect. The trial court clearly ruled that the latter predominated and consequently held against admission of the evidence. We find no abuse of discretion in this ruling; it is in accord with the general rule that evidence of other crimes is inadmissible. People v Golochowicz, 89 Mich App 57, 64; 279 NW2d 576 (1979). Wilkins’s directive that the trial court should consider less prejudicial sources of proof may be satisfied in the availability of Moore’s testimony as to the defendants’ motives. Wilkins, supra, 270.

Affirmed.

         People v Beavers, 393 Mich 554; 227 NW2d 511 (1975).


author: R. B. Burns, J. D. F. Walsh, P.J.,

text:
    VANDERBERG v GENERAL MOTORS CORPORATION
    Docket Nos. 77-2616, 77-2617.
    Submitted January 2, 1980, at Grand Rapids.
    Decided April 21, 1980.
    Leave to appeal applied for.
    John L. Vanderberg was injured and his wife, Yvonne V. Vanderberg, was killed when the automobile which Mr. Vanderberg was driving left the roadway and struck a concrete abutment. The automobile was manufactured by General Motors Corporation and was leased to Vanderberg by Boylan Buick, Inc., doing business as Boylan Leasing Co., under a full maintenance lease. Vanderberg alleges that carbon monoxide from the automobile’s exhaust leaked into the passenger compartment, causing him to lose consciousness, and thus lose control of the vehicle. He brought actions, on his own behalf and as executor of his wife’s estate, against General Motors alleging breach of an implied warranty in the manufacture of the automobile and against Boylan alleging breach of implied warranty in leasing a defective vehicle and negligence in failing to discover the defect during periodic maintenance of the vehicle. At the close of the plaintiffs proofs the Kalamazoo Circuit Court, Patrick H. Mc-Cauley, J., directed verdicts in favor of both defendants. Plaintiff appeals, alleging error in the exclusion of certain evidence and in the granting of the directed verdicts. Held:

    1. The exclusion of testimony of the plaintiffs physician regarding the quantity of carbon monoxide in the plaintiffs blood was error. The evidence is of a factual nature and is not an inadmissible diagnosis. This error is not grounds for reversal, however, because other competent evidence supported the plaintiff’s claim of carbon monoxide poisoning.
    2. The results of a test made on the automobile’s exhaust system after the accident were properly excluded from evidence because the test was not made under conditions similar to those in existence at the time of the accident.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 818 et seq., 825 et seq.

    61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 198.
    [2] 29 Am Jur 2d, Evidence § 818.
    [3] 29 Am Jur 2d, Evidence § 824.
    [4, 7] 75 Am Jur 2d, Trial § 463.
    [5] 63 Am Jur 2d, Products Liability §§ 5, 9, 22.
    [6] 57 Am Jur 2d, Negligence §§ 32 et seq., 64, 127, 128.
    63 Am Jur 2d, Products Liability §§ 22, 25 et seq.

      3. Because the evidence indicates two or more plausible explanations of how carbon monoxide might have leaked into the passenger compartment, the selection by the jury of one explanation over another would be based' not on a reasonable inference but on conjecture. The plaintiff did not meet his burden of proof, and the trial court properly directed verdicts for the defendants.
    Affirmed.
    D. F. Walsh, P.J., dissented. He would hold that there was sufficient circumstantial evidence for the case to have been submitted to the jury, both on the question of whether the exhaust system contained a manufacturing defect and the question of negligent maintenance. He would reverse and remand.
    Opinion op the Court
    1. Evidence — Witnesses — Physicians — Analytical Data.
    A treating physician should be permitted to testify with regard to the analytical data underlying his diagnosis; testimony regarding the quantity of carbon monoxide in an accident victim’s blood is a factual statement of an observed condition, not an inadmissible diagnosis, and exclusion of such testimony is error.
    2. Evidence — Test Results — Judge’s Discretion — Appeal.
    The admission or exclusion of test results is within the trial court’s discretion, and the trial court’s ruling in this regard will not be interfered with unless an abuse of discretion is clearly evident.
    3. Evidence — Testing Procedures.
    It is generally required that testing procedures be conducted under conditions similar to the conditions which existed at the time of the occurrence in question.
    4. Trial —• Directed Verdict — Appeal.
    A trial court may not direct a verdict when a fact question exists upon which reasonable persons may differ; in reviewing a trial court’s decision to direct a verdict in favor of a defendant the Court of Appeals will view the testimony in the light most favorable to the plaintiff and draw the reasonable inferences therefrom which are in the plaintiff’s favor.

      5. Products Liability — Directed Verdict — Evidence — Defect — Cause of Defect.
    A plaintiff in a products liability case, in order to withstand a motion for a directed verdict for the defendant, must produce evidence which shows (1) a defect, (2) a causal connection between the defect and the plaintiffs injuries, and (3) that the defect is attributable to the defendant; the specific cause of the defect need not be isolated, but sufficient evidence, either direct or circumstantial, must be presented from which the jury could reasonably infer that some defect in manufacture caused the accident.
    6. Negligence — Negligent Maintenance — Evidence.
    A plaintiff claiming negligent maintenance of a product against a defendant who undertook to maintain the product must, in order to avoid a directed verdict for the defendant, produce evidence of a duty owed to plaintiff by defendant, a breach of that duty, and a causal relationship between the breach of duty and the injuries suffered by the plaintiff.
    Dissent by D. F. Walsh, P.J.
    7. Products Liability — Existence of Defect — Directed Verdict — Evidence.

      The existence of a defect, attributable to the manufacturer, in an automobile’s exhaust system as well as negligent maintenance of that exhaust system are provable by circumstantial evidence; the test for determining whether or not a directed verdict is proper is whether the evidence takes the case out of the realm of conjecture and supports legitimate inferences from established facts.

      Reamon, Williams, Klukowski, Wood & Drew, P.C., for plaintiff.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Donald E. Shely and Kathleen McCree Lewis) and Seymour, Seymour, Conybeare & Straub (Otis M. Smith and John P. Raleigh, of counsel), for General Motors Corporation.

      Lilly, Piatt & Doyle, for Boylan Buick, Inc.

      Before: D. F. Walsh, P.J., and R. B. Burns and J. H. Gillis, JJ.
   R. B. Burns, J.

On March 19, 1970, plaintiff, John L. Vanderberg, was driving at a speed of approximately 70 miles per hour along 1-94 in Berrien County. While traveling in the right lane of the roadway, plaintiff came upon a slower moving tractor-trailer truck. Plaintiff signaled and pulled out to pass the truck. When the truck driver flashed his lights to indicate that plaintiff was safely passed, plaintiff again signaled and reentered the right lane. Plaintiff’s vehicle failed to straighten out in the right lane. The car straddled the guardrail and rode it into an underpass. Plaintiffs wife, a passenger in the vehicle, was killed instantly and plaintiff was seriously injured.

Plaintiff alleges that the accident occurred because carbon monoxide leaked from the exhaust system of the vehicle, a Buick Electra, into the passenger compartment, causing plaintiff to lose consciousness. Plaintiff brought suit against defendant General Motors Corporation on claims that the defendant had breached an implied warranty by producing a defective vehicle and that the defendant had been negligent in failing to design, engineer and manufacture an exhaust system that would safely carry exhaust fumes away from the vehicle’s passenger compartment.

The Vanderberg automobile was leased from defendant Boylan Buick under a full maintenance lease. Against defendant Boylan plaintiff asserted claims that the defendant had breached an implied warranty in leasing a defective vehicle and that the defendant was negligent in failing to discover areas of leakage when defendant made periodic repairs and maintenance of the vehicle.

The matter was tried before a jury. At the close of plaintiffs proofs, the trial court directed verdicts in favor of both of the defendants. Plaintiff appeals.

Plaintiff maintains that the trial court erred in excluding evidence which plaintiff sought to introduce in support of his claim that he suffered carbon monoxide poisoning. The court admitted into evidence a hospital report which indicated that carbon monoxide was found in plaintiffs blood. This ruling was based on a finding that the evidence was "qualitative” and therefore admissible as a description of a physical condition. The court, however, excluded the deposition testimony of plaintiffs physician to the extent that the doctor relied on the records of any quantitative carbon monoxide tests. The court held that this "quantitative” evidence was a diagnosis and thus inadmissible.

We do not agree that the "quantitative” test results were a diagnosis. The evidence appears to be a factual statement of an observed condition and not an inadmissible diagnosis. Moreover, the treating physician should have been permitted to testify with regard to the analytical data underlying his diagnosis. Alexander v Covel Manufacturing Co, 336 Mich 140; 57 NW2d 324 (1953). Nevertheless, the error does not constitute grounds for reversal as there was other competent evidence which supported plaintiffs claim that he was afflicted with carbon monoxide poisoning.

Plaintiff also maintains that error occurred when the trial court struck testimony regarding a test that was performed on the Vanderberg vehicle’s exhaust system. Shortly after the alleged incident, Dr. Charles Nagler, a forensic science expert, conducted a test to determine whether there were leaks in the vehicle’s exhaust system. The test procedure was similar to that used to identify leaks in automobile tires, and Dr. Nagler testified that when using this test he observed leaks in the exhaust system.

Though the only relevancy the leak test could have had would be as an indicator that the areas that leaked could emit carbon monoxide in the normal operation of the vehicle, the test was made under conditions which did not attempt to simulate the operation of the system during actual driving conditions. Based on the test’s failure to simulate actual vehicle operation conditions, the trial court granted defendants’ motion to strike the testimony regarding the test.

The admission or exclusion of test results is within the trial court’s discretion. We do not interfere with the court’s ruling in this regard unless an abuse of that discretion is clearly evident. Smith v Grange Mutual Fire Ins Co of Michigan, 234 Mich 119, 127; 208 NW 145 (1926). As it is commonly required that testing procedures be conducted under conditions similar to those in the occurrence in question, the trial court did not abuse its discretion in striking Dr. Nagler’s testimony regarding the test. Elliott v A J Smith Contracting Co, Inc, 358 Mich 398, 417; 100 NW2d 257 (1960), Smith, supra, 127.

Plaintiffs final and principal claim on appeal is that the trial court erred in granting directed verdicts in favor of both defendants.

In reviewing the decision of the trial court to grant the motions for directed verdict, we bear in mind that:

"The jury, not the trial judge, is the trier of fact. Whenever a fact question exists, upon which reasonable persons may differ, the trial judge may not direct a verdict. Conversely, when no fact question exists, the trial judge is justified in directing a verdict.” Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975).

In order to determine whether a fact question exists, this Court will "view the testimony in the light most favorable to the plaintiff and draw the reasonable inferences therefrom which are in his favor”. Caldwell, supra, 407. We do so because, as the Supreme Court long ago stated, plaintiff:

"* * * had a right to ask the jury to believe the case as he presented it; and, however improbable some portions of his testimony may appear to us, we can not say that the jury might not have given it full credence. It is for them, and not for the court to compare and weigh the evidence.” Detroit & M R Co v Van Steinburg, 17 Mich 99, 117 (1868), cited at Caldwell, supra, 407.

To withstand the motions for directed verdict in this case, plaintiff must have produced evidence of a defect in the vehicle’s exhaust system, evidence which shows a causal connection between the defect and injuries suffered by plaintiff, and evidence which establishes that the defect is attributable to either or both of the defendants. Caldwell, supra, 410. Plaintiff need not isolate the specific cause of the defect to avoid a motion for directed verdict, but he must present sufficient evidence, either circumstantial or direct, "from which the jury could reasonably infer that some defect in manufacture caused the accident”. Holloway v General Motors Corp (On Rehearing), 403 Mich 614, 618; 271 NW2d 777 (1978).

With respect to the claim of negligent maintenance against defendant Boylan, plaintiff must produce evidence of a duty owed by Boylan to plaintiff, evidence of a breach of that duty by Boylan, and evidence showing a causal relationship between the breach of duty and injuries suffered by plaintiff.

Defendants assert that the proofs offered by plaintiff support neither a reasonable inference that a defect existed nor a reasonable inference that a defect attributable to the manufacturer or lessor caused the accident. Defendant Boylan further maintains that the proofs do not support a reasonable inference that negligent maintenance by it caused the accident. We agree.

Based on the evidence presented, the jury could have reasonably determined that plaintiff was overcome by carbon monoxide poisoning and that this condition caused plaintiff to black out, in turn causing plaintiff’s vehicle to leave the roadway and collide with the underpass. But at this point, plaintiff’s proofs meet an unbridgeable gap. There is no evidence from which the jury could reasonably infer that emissions traveled from the vehicle’s exhaust system into the passenger compartment because of a defect inherent in the exhaust system. Unlike the ball joint assembly discussed in Holloway, supra, the exhaust system is expected to wear out and be replaced. Because of its exposed position it is also subject to sudden damage from impact with objects on the road. A failure of the system to function properly does not in itself necessarily establish a latent structural defect. The accident may have occurred because of damage to the exposed exhaust system after the vehicle left the hands of the manufacturer, defendant General Motors, and after the last maintenance or repair conducted by defendant Boylan.

Since, after all the evidence is considered, there exist two or more equally plausible explanations as to how carbon monoxide might have leaked into the passenger compartment, the selection by the jury of one explanation over the other would be based not on a reasonable inference but on conjecture. See Meli v General Motors Corp, 37 Mich App 514, 518; 195 NW2d 85 (1972).

The trial court was correct in ruling that plaintiff had not met his burden of proof in this action.

Affirmed. Costs to defendants.

J. H. Gillis, J., concurred.

D. F. Walsh, P.J.,

(dissenting). I must dissent. The existence of a defect, attributable to the manufacturer, in an automobile’s exhaust system as well as negligent maintenance of that exhaust system are provable by circumstantial evidence. Holloway v General Motors Corp (On Rehearing), 403 Mich 614; 271 NW2d 777 (1978), Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). The test is whether the evidence takes the case out of the realm of conjecture and supports legitimate inferences from established facts. Weisenberg v Village of Beulah, 352 Mich 172; 89 NW2d 490 (1958).

In this case it seems to me that there is convincing evidence that a defective exhaust system in the leased 1969 Buick Electra driven by plaintiff, John L. Vanderberg, caused the introduction of carbon monoxide gas into the passenger compartment of the vehicle, and that the presence of the carbon monoxide caused Vanderberg to pass out and lose control of the vehicle with the result that the vehicle left the paved portion of the highway and struck a concrete overpass abutment.

The automobile was only 13 months old, had been driven less than 19,000 miles and had been regularly serviced by Boylan Buick, Inc., under the terms of the leasing agreement. It may be, as the majority points out, that an automobile’s factory installed exhaust system cannot be expected to last for the life of the automobile. A jury could reasonably conclude, however, that an exhaust system which wears out to the point of serious and dangerous malfunction after just 13 months of normal use and in less than 19,000 miles was defective when it was installed at the factory.

Certainly, as the majority also points out, the defective condition of the exhaust system could have been caused by something other than normal use. Someone may have tampered with the system or the car may have been in a previous accident. In this case, however, there is no evidence whatsoever that the exhaust system was subjected to any potentially damaging condition other than normal use. Moreover, the plaintiff did not have the burden of eliminating every other plausible explanation for the defect. As the Supreme Court stated in Holloway v General Motors Corp (On Rehearing), supra, 621-622:

"A plaintiff has the burden of establishing that when the product left the manufacturer it was defective. He is not, however, obliged to eliminate all possible causes of the accident consistent with the view that there was no manufacturing defect. He sustains his burden when he establishes with direct or circumstantial evidence a reasonable probability that the defect is attributable to the manufacturer.

"On a motion for directed verdict, the question is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer. Questions of comparative probability are to be resolved by the trier of fact. As stated in Schoepper v Hancock Chemical Co, 113 Mich 582, 586, 589; 71 NW 1081 (1897), and since reaffirmed in Schedlbauer v ChrisCraft Corp, 381 Mich 217, 230-231; 160 NW2d 889 (1968):

" 'It is true that where an injury occurs that cannot be accounted for and where the occasion of it rests wholly in conjecture, the case may fail for want of proof. * * * But such cases are rare, and that rule should never be so extended as to result in a failure of justice, or in denying an injured person a right of action where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than upon the other. * * * [T]he question of whether the inference suggested by the plaintiff’s theory is the correct one, or whether it was sufficiently rebutted, was for the jury. ’ (Emphasis supplied.)”

Plaintiff Vanderberg testified that during the winter of 1969-1970 he became fatigued during long trips in the leased Buick. From this testimony the jury could find that the defective condition in the exhaust system existed prior to the end of December 1969. Defendant Boylan had the car for inspection and servicing on December 30, 1969, and January 23, 1970. There was sufficient circumstantial evidence, therefore, for the jury to conclude that defendant Boylan was negligent in failing to repair the defective exhaust system.

I would reverse the trial court and remand for a new trial.

       These elements apply not only to plaintiff’s product liability claims based on breach of warranty but also to his product liability claim against General Motors which sounds in negligence.

       The testimony of plaintiff Vanderberg together with that of the medical experts established that the carbon monoxide level in Vanderberg’s blood immediately after the accident was in excess of 30% and possibly as high as 40% to 50% and that Vanderberg’s only exposure to an established source of significant levels of carbon monoxide was the exhaust system of the Buick Electra manufactured by defendant General Motors and leased from and maintained by defendant Boylan Buick, Inc.


author: D. F. Wálsh, J. Mackenzie, J.

text:
    PEOPLE v CARTER
    Docket No. 77-5039.
    Submitted September 4, 1979, at Detroit.
    Decided April 21, 1980.
    Leave to appeal applied forv
    Defendant, Chauncey Carter, was convicted of possession of heroin, carrying a concealed weapon and felony-firearm in the Recorder’s Court of Detroit, Patricia J. Boyle, J. At defendant’s preliminary examination, officer Ronald Smith of the Detroit Police Department testified that on the night in question he was on routine patrol in the area of Gladstone and Woodrow Wilson in Detroit. Three other police officers were with Officer Smith in his semimarked police car. As the car approached 1620 Gladstone, Officer Smith saw defendant walking away from the apartment building at that address. When defendant reached the sidewalk, he looked in the direction of the police car, turned around and ran toward the apartment building. Officer Smith followed. When defendant reached the building he opened the door and entered a foyer area. As the door was closing behind defendant, Officer Smith saw him throw down a plastic bag. The officer picked up the bag and saw that it contained a brown substance which he suspected was heroin. Defendant was placed under arrest. Officer James Irons conducted a patdown search of defendant and took a .25-caliber loaded automatic pistol from defendant’s waistband. Officer Smith also testified that there had been numerous rapes in the area and he had received reports of breakings and enterings in the building at 1620 Gladstone. The trial court refused to suppress the heroin. Defendant appeals. Held:

    1. The Court of Appeals will not overturn a ruling of a trial court at a hearing on a motion to suppress evidence unless that ruling is found to be clearly erroneous. A police officer’s investigatory pursuit of a defendant must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures, and a reviewing court must determine if the record reveals specific, articulable facts which, taken together with rational inferences therefrom, reasonably warranted the protested intrusion. Police officers who, at nighttime in an area where several rapes had occurred, encountered a person who, upon seeing the officers, ran toward a building which had been the object of breakings and enterings were justified in investigating further, and heroin discovered in the course of that further investigation was properly admitted at the trial of that person for possession of heroin.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 881.
    [2] 68 Am Jur 2d, Searches and Seizures §§ 41-44, 56, 102.
    [3] 68 Am Jur 2d, Searches and Seizures §§ 41-44.
    [4] 5 Am Jur 2d, Appeal and Error § 772.
    81 Am Jur 2d, Witnesses § 465.
    [5] 21 Am Jur 2d, Criminal Law §§ 188, 189.
    [6] 21 Am Jur 2d, Criminal Law §§ 182, 188, 189.

      2. The striking of testimony of persons who refuse to answer questions on cross-examination is a matter best left to the sound discretion of the trial court.
    3. Conviction of possession of heroin, carrying a concealed weapon and felony-firearm, all arising out of a single occurrence, violates the constitutional prohibition against double jeopardy because the Legislature did not clearly authorize separate convictions for both carrying a concealed weapon and felony-firearm. In such a case the carrying a concealed weapon conviction should be vacated.
    Affirmed in part and reversed in part.
    Mackenzie, J., dissented in part. She would hold that the fact that the Legislature expressly prohibited the crime of carrying a concealed weapon from being an underlying offense of felony-firearm does not mean that there cannot be convictions of both where another felony serves as the- underlying offense of the felony-firearm conviction and would affirm all three convictions.
    Opinion of the Court
    1. Appeal — Criminal Law — Suppression of Evidence — Clearly Erronéous Rulings.
    The Court of Appeals will not overturn a ruling of a trial court at a hearing on a motion to suppress evidence unless that ruling is found to be clearly erroneous.
    2. Searches and Seizures — Appeal.
    A police officer’s investigatory pursuit of a defendant must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures, and a reviewing court must determine if the record reveals specific, articulable facts which, taken together with rational inferences therefrom, reasonably warranted the protested' intrusion.

      3. Searches and Seizures — Controlled Substances •— Evidence.
    Police officers who, at nighttime in an area where several rapes had occurred, encountered a person who, upon seeing the officers, ran toward a building which had been the object of breakings and enterings were justified in investigating further, and heroin discovered in the course of that further investigation was properly admitted at the trial of that person for possession of heroin.
    4. Witnesses — Striking of Testimony — Refusal to Answer — Judicial Discretion.
    The striking of testimony of persons who refuse to answer questions on cross-examination is a matter best left to the sound discretion of the trial court.
    5. Criminal Law — Felony-Firearm — Carrying a Concealed Weapon — Double Jeopardy.
    Conviction of possession of heroin, carrying a concealed weapon and felony-firearm, all arising out of a single occurrence, violates the constitutional prohibition against double jeopardy because the Legislature did not clearly authorize separate convictions for both carrying a concealed weapon and felony-firearm; in such a case the carrying a concealed weapon conviction should be vacated.
    Dissent in Part by Mackenzie, J.
    6. Criminal Law — Constitutional Law — Double Jeopardy — Multiple Punishments.

      The constitutional guarantee against double jeopardy protects against multiple punishment for the same offense, and the test to determine whether there was multiple punishment for the same offense is either whether each crime requires proof of a fact that the other crime does not require or whether the Legislature expressed a clear intent to defíne and punish separate offenses based on one incident.

    7. Criminal Law — Felony-Firearm — Carrying a Concealed Weapon — Double Jeopardy.

      The fact that the Legislature expressly prohibited the crime of carrying a concealed weapon from being an underlying offense of felony-Srearm does not mean that there cannot be convictions of both where another felony serves as the underlying offense of the felony-firearm conviction; conviction of carrying a concealed weapon, felony-firearm and possession of heroin arising from a single occurrence does not violate the constitutional prohibition against double jeopardy.

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

      William A. Haley, Jr., for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and D. F. Walsh and Mackenzie, JJ.
   D. F. Wálsh, J.

Defendant, Chauncey Carter, was convicted by a jury of possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), possession of a firearm in the commission or attempted commission of a felony, MCL 750.227b; MSA 28.424(2), and carrying a concealed weapon, MCL 750.227; MSA 28.424. On December 16, 1977, he was sentenced to a prison term of two to four years on the heroin conviction and two to five years on the carrying a concealed weapon conviction. These sentences were to run concurrently. The mandatory two year prison sentence, to be served consecutively, was imposed for the felony-firearm conviction. He now appeals; we affirm in part and reverse in part.

At defendant’s September 26, 1977, preliminary examination, Officer Ronald Smith of the Detroit Police Department testified that at about 8:40 p.m. on September 15, 1977, he was on routine patrol in the area of Gladstone and Woodrow Wilson in Detroit. Three other police officers were with Officer Smith in his semimarked police car. As the car approached 1620 Gladstone, Officer Smith saw defendant walking away from the apartment building at that address. When defendant reached the sidewalk, he looked in the direction of the police car, turned around and ran toward the apartment building. Officer Smith followed. When defendant reached the building he opened the door and entered a foyer area. As the door was closing behind defendant, Officer Smith saw him throw down a plastic bag. The officer picked up the bag and saw that it contained a brown substance which he suspected was heroin. Defendant was placed under arrest. Officer James Irons conducted a patdown search of defendant and took a .25-caliber loaded automatic pistol from defendant’s waistband.

According to Officer Smith, there had been numerous rapes in the area and he had received reports of breakings and enterings in the building at 1620 Gladstone.

On October 21, 1977, defendant’s pretrial motion to suppress the heroin was denied. Citing People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977), defendant argues that the trial court erred in denying his motion to suppress evidence.

We will not disturb the trial court’s denial of defendant’s suppression motion unless we find that it was clearly erroneous. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), lv den 406 Mich 858 (1979). We do not so find.

We agree with the Terrell panel that the police officers’ investigatory pursuit of defendant must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. People v Terrell, supra, 679. Under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), we must determine if the record reveals specific, articulable facts which, taken together with rational inferences from those facts, reasonably warranted the protested intrusion. Id., 21. The appropriateness of the action taken must be judged by an objective standard: would the facts available to Officer Smith have justified the belief in a person of reasonable caution that the action taken was proper? Id., 21-22. This standard allows police officers to pursue their legitimate investigative function while at the same time preventing intrusion upon constitutionally guaranteed rights.

The instant facts are similar to those in People v Dixon, 85 Mich App 271; 271 NW2d 196 (1978), lv den 406 Mich 906 (1979). Although the Dixon panel did not agree on the constitutionality of the scope of the police officers’ detention of the defendant, there was unanimous agreement that the police had been justified in stopping the defendant for investigative purposes. They had seen the defendant running in the early morning hours in an area which had been the scene of many recent early morning break-ins.

Similarly, the officers in this case could point to articulable facts which warranted investigatory pursuit of defendant. They encountered defendant at nighttime in an area where several rapes had occurred. Upon seeing them, defendant suddenly turned and ran back toward a building which had been the object of breakings and enterings. Under the circumstances, further investigation was reasonable. In fact, in our judgment, failure to investigate would have been inconsistent with good police practice. The trial court’s denial of defendant’s motion to suppress is affirmed. To whatever extent People v Terrell, supra, may be inconsistent with our ruling in this case, we decline to follow it.

During trial a separate record was made to determine if Willard Jackson, a proposed defense witness, would be allowed to testify. Mr. Jackson had been with defendant at the time of the latter’s arrest. In response to questions posed to him by defense counsel, Mr. Jackson stated that he would answer questions regarding where he had met defendant on September 15, 1977, what time they had gone to 1620 Gladstone, and what had occurred at the time of defendant’s arrest. He stated, however, that he would not answer certain of the questions which would be posed by the prosecutor. Answering questions posed to him by the trial court, Mr. Jackson stated that he would testify as to "the absence of Mr. Carter’s involvement * * * ór knowledge” but that he would not answer questions "tending to go to [his] own involvement ór knowledge”.

The trial court ruled that Mr. Jackson’s testimony Would not be ádhiitted. The court found that the introduction of the witness’s testimony, in light of his anticipated assertion of his Fifth Amendment privilege not to incriminate himself, would thwart the prosecutor’s right to cross-examine him.

The general rule regarding the proper course to he taken when a witness refuses to answer certain questions on cross-examination Was set forth in Stephan v United States, 133 F2d 87, 97 (CA 6, 1943), cert den 318 US 781; 63 S Ct 858; 87 L Ed 1148 (1943), reh den 319 US 783; 63 S Ct 1172; 87 L Ed 1727 (1943):

"The general rule is that 'where the witness after his examination in chief on the stand has refused to submit to cross-examination, the opportunity of thus probing and testing his statements has substantially failed and his direct testimohy should be struck out.’ Wigmore on Ev., supra, Sec. 1391, p 112, and cases cited in the footnotes. But to this general rule there are many exceptions. One is that 'on the circumstances of the cdSe, the refusal or evasion of answers to one or more questions only need not lead to this result.’ Wigmore further states, 'Courts treat this situation with varying degrees of strictness. It should be left to the determination of the trial judges regard being had chiefly to the motive of the witness and materiality of the answer.’ See Gibson v Goldthwaite, 7 Ala 281, 42 Am Dec 592; Flannery v Commonwealth, Ky, 51 SW 572; Scott v McCann, 76 Md 47; 24 A 536; Succession of Townsend, 40 La Ann 66; 3 So 488.”

In two recent cases, the Wisconsin Supreme Court dealt with the precise issue which is presented to us in this case: whether the trial court acted properly in striking the entire testimony of a defense witness. See State v Monsoor, 56 Wisc 2d 689; 203 NW2d 20 (1973), Peters v State, 70 Wisc 2d 22; 233 NW2d 420 (1975). As noted in Peters, an accused’s constitutional right to present witnesses in his own behalf comes into play when an issue arises concerning the striking of a defense witness’s testimony. That right, however, is:

"* * * qualified by the necessity of compliance with 'established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence’”. 70 Wisc 2d 22, 37, citing Chambers v Mississippi, 410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973).

The striking of testimony of persons who refuse to answer questions on cross-examination is, therefore, a matter best left to the sound discretion of the trial court. We find no abuse of discretion in the exclusion of Mr. Jackson’s testimony in this case. The questions posed by the prosecutor (see footnote 2) were not unrelated to the events which gave rise to the drug charge against defendant. The questions were designed specifically to test the truthfulness of Mr. Jackson’s testimony about facts and circumstances surrounding the alleged offenses. We decline to disturb the trial court’s ruling in this regard.

Defendant was convicted of three crimes — felony-firearm, possession of heroin and carrying a concealed weapon. The Supreme Court’s holding in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), conclusively establishes the constitutionality and legality of concurrent convictions of possession of heroin and felony-firearm. The Supreme Court’s discussion in Wayne County Prosecutor, however, leads inevitably to the conclusion that defendant’s carrying a concealed weapon conviction cannot stand.

The felony-firearm statute expressly provides that one element of the crime of felony-firearm is the commission or attempted commission of any felony other than carrying a concealed weapon or unlawful possession of a weapon. MCL 750.227b(1); MSA 28.424(2)(1), Wayne County Prosecutor v Recorder’s Court Judge, supra, 397. In other words, carrying a concealed weapon is not a "proper” (id.) felony for purposes of supporting a felony-firearm conviction.

It is argued, however, that because defendant was also convicted of the heroin offense and because that crime can serve as the underlying felony supporting the felony-firearm conviction, the carrying a concealed weapon conviction can stand as a separate and distinct conviction. The statutory language does not clearly eliminate the possible validity of this argument. Nor did the Legislature clearly indicate its intent to authorize concurrent convictions of carrying a concealed weapon and felony-firearm in cases in which a third felony was charged in the information.

In analyzing and reaffirming its decisions in People v Cook, 236 Mich 333; 210 NW 296 (1926), People v Martin, 398 Mich 303; 247 NW2d 303 (1976), and People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), the Supreme Court, in Wayne County Prosecutor, supra, observed that none of those earlier cases had "involved statutes which evidenced a clear legislative intent to authorize separate convictions and cumulative punishments based on one occurrence”. 406 Mich 374, 399. The Court concluded:

"These cases [Cook/Martin/Stewart] stand for the proposition that where the Legislature has not clearly authorized multiple convictions and cumulative punishments, both of two convictions and their attendant punishments cannot stand.” 406 Mich 374, 402.

Applying this standard to the instant situation, we are satisfied that defendant’s carrying a concealed weapon conviction must be set aside. The carrying a concealed weapons and felony-firearm convictions are based on "one occurrence”, i.e., one possession of a firearm. Because the Legislature has not clearly authorized separate convictions for both carrying a concealed weapon and felony-firearm based on one possession of a firearm, one of the convictions and its attendant punishment cannot stand. We, therefore, set aside defendant’s carrying a concealed weapon conviction and vacate the punishment he received for that conviction.

We have examined the jury instructions and find that defendant’s assignment of error with respect thereto is without merit.

Affirmed in part; reversed in part.

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

Mackenzie, J.

(dissenting in part). I cannot join the part of the majority’s opinion which holds that there cannot be convictions for both carrying a concealed weapon and felony-firearm based upon one occurrence. Unlike the majority, I agree with the majority opinion in People v Shelton, 93 Mich App 782; 286 NW2d 922 (1979), which upheld convictions for both offenses based upon one occurrence.

As noted in Shelton, the right against double jeopardy is not violated if (1) each offense requires proof of a fact that the other does not, or (2) the Legislature expressed a clear intent to define and punish separate offenses based on one occurrence. The crimes of carrying a concealed weapon and felony-firearm each require proof of a fact that the other does not. The former requires that a dangerous weapon be concealed while the latter requires that a firearm be possessed during the commission or attempted commission of a felony.

I do not believe the fact that the Legislature has expressly prohibited the crime of carrying a concealed weapon from being an underlying offense of felony-firearm means that there cannot be convictions of both where another felony serves as the underlying offense of the felony-firearm conviction. The crimes of carrying a concealed weapon and felony-firearm serve two different purposes. According to this Court in People v Jonnie W Jones, 12 Mich App 293, 295-296; 162 NW2d 847 (1968):

" 'The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed.’ People v Raso (1958), 9 Misc 2d 739 (170 NYS2d 245, 251).”

On the other hand, the purpose of the felony-firearm statute is to deter the use of handguns during the course of a felony. People v Elowe, 85 Mich App 744; 272 NW2d 596 (1978). Consequently, I would affirm defendant’s conviction of carrying a concealed weapon.

       Several cases from other jurisdictions lend support to our holding. In each of the following cases, the courts found that, under facts similar or analogous to the instant facts, the Terry standard had beeii satisfied: Luker v State, 358 So 2d 504 (Ala Crim App, 1978), People v King, 62 Ill App 3d 239; 379 NE2d 69 (1978), State v Taylor, 363 So 2d 699 (La, 1978), People v Waits, 580 P2d 391 (Colo, 1978). Also see the discussion in United States v Coleman, 450 F Supp 433, 439-440 (ED Mich, 1978), concerning the significance of a defendant’s flight in determining whether the Terry standard has been satisfied.

       Mr. Jackson did not refuse to answer all of the prosecutor’s questions. The following is the entire cross-examination of the witness by the prosecutor:
      "CROSS EXAMINATION
      "BY MR. SCHRAM:
      "Q Yes sir, if I were to ask you what you were doing there, would that be a problem to you?
      "A Can I refuse to answer?
      "MR. SCHRAM: You can say yes or no to that. It would be a problem to you, that doesn’t incriminate you, that means I wouldn’t be able to ask you that.
      "A The answer to that, no, I wouldn’t answer that.
      "Q (By Mr. Schram) You wouldn’t answer that. If I asked you did you see 50 grams of heroin that afternoon, would that be a problem to you?
      "A I wouldn’t answer that.
      "Q If I asked you if you had touched yourself, 50 grams of heroin, would you answer that?
      "A No.
      "Q If I asked you if you handed it to Chauncey Carter, would you answer that?
      "A No.
      "Q If I asked you did Chauncey Carter have 50 grams of heroin on him when he walked back to that apartment building, would you answer that?
      "A I’d answer that, probably, yes.
      "Q If I asked you if you were with Chauncey Carter in the apartment prior to exiting it and what you were doing in the apartment, would answer that?
      "A No, oh no.

        "Q If I asked you if you knew whether Mr. Carter was aware of that, though, would you answer that?
      "A Yes, I’d answer that.
      "Q Would you answer that truthfully?
      "A I swore to tell the truth.
      "THE COURT: Well you say you would answer that, what would your answer be to that, sir?
      "A What — the question is whether it belonged to him?
      "Q (By Mr. Schram) No. Not whether it belonged to him. Whether he knew it was there, whether he knew there was dope in that hallway, in that foyer?
      "A Is that what you meant?
      "Q Maybe I didn’t ask that.
      "A You didn’t ask that, I don’t think.
      “Q Which one did you think I asked?
      "A The last question I thought you asked me would I answer if he had any knowledge of it.
      "Q Right.
      "A Or if he knew about it.
      "Q Right. Not whether he knew how it got there.
      "A Whether he had any knowledge of it?
      "Q Of the dope that day.
      "A Yes.
      "Q Would you answer that?
      "A Yes, I’d answer that.
      "Q But at the same time you would answer the question whether you — whether Mr. Carter was upstairs with you in that apartment and he knew about the dope, you wouldn’t answer that but you would answer once you were down on the street?
      "A Yes.
      "Q So you are saying whatever knowledge he had or may have had when he was in the apartment no longer existed when he was on the street?
      "A If he had any knowledge when he was in there. What are we assuming that he had knowledge of?
      "Q We are assuming that you are not answering that question. For the sake of argument we are assuming that he did know it was in the apartment.
      "A I wouldn’t assume that. If I wouldn’t answer the question, evidently he couldn’t have known about it. I would take it that way. I would look at it on that side. If he didn’t know anything downstairs, he wouldn’t know anything upstairs.
      "Q Is that how it goes, were you first upstairs and perhaps some dope exchanged upstairs or brought out upstairs?
      "A That is not the question.
      "Q That is the question as to whether he had any knowledge later on the street whether there was dope up there or whether you were involved in dope.
      "A I understand that question.

        "Q Thát one you couldn’t answer?
      "A No.”

       The trial court further ruled that exclusion of the witness’s testimony was mandated by the decision in People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977). Finding no error in the trial court’s reliánce on a separate basis for his ruling — i.e., impermissible curtailment of the prosecutor’s right to cross-examine the witness — we do not discuss the applicability of Giacalone.

         We are aware that the opposite result was reached by the majority in People v Shelton, 93 Mich App 782; 286 NW2d 922 (1979). In our judgment, however, the conclusion reached by Judge Kaufman in his dissent in that case is more consistent with the rationale underlying the Supreme Court’s decisions in Cook, Martin and Stewart cited in the text.


author: Cynar, P.J.

text:
    PEOPLE v GAVAL
    Docket No. 78-3077.
    Submitted June 21, 1979, at Lansing.
    Decided April 21, 1980.
    David W. Gaval was charged with carrying a concealed weapon and with possession of burglar’s tools. Because defendant was serving a prison sentence at the Federal correctional facility at Milan, Michigan as a result of his conviction for a Federal charge, the Oakland Circuit Court, Francis X. O’Brien, J., issued a "writ of habeas corpus to bring up the prisoner for preliminary examination”. Defendant was brought before a Michigan municipal court for a preliminary examination and, thereafter, was bound over to circuit court for trial. In circuit court defendant moved to dismiss the charges. The Oakland Circuit Court, Robert B. Webster, J., denied the motion to dismiss. Defendant was convicted of possession of burglar’s tools. Defendant appeals, claiming that the Michigan courts could not acquire jurisdiction over him by means of a writ of habeas corpus ad prosequendum directed to a Federal correctional facility located in the State of Michigan, but rather, jurisdiction over him could only be properly acquired pursuant to the Interstate Agreement on Detainers. Held:

    There is no question that a writ of habeas corpus ad prosequendum issued by a Michigan court has no binding extraterritorial effect. It is not necessary, however, to address the question of whether a Federal facility located in the State of Michigan is extraterritorial for the purpose of such a writ, since, as a matter of Federal policy, such writs are recognized as a matter of comity. The Interstate Agreement on Detainers is not the exclusive means by which to effect a transfer of a prisoner from a Federal facility into state custody. Under these circumstances, where the purposes of the Interstate Agreement on Detainers were not thwarted, jurisdiction over the defendant’s person was properly obtained by means of the writ of habeas corpus ad prosequendum and the Interstate Agreement on Detainers is not applicable.
    Affirmed.
    Reference for Points in Headnotes
    [1,2] 39 Am Jur 2d, Habeas Corpus § 2.

      1. Habeas Corpus — Habeas Corpus Ad Prosequendum — Courts — Geographical Limits of Writ.
    A writ of habeas corpus ad prosequendum issued by a Michigan court has no binding extraterritorial effect.
    2. Habeas Corpus — Habeas Corpus Ad Prosequendum — Federal Penal Facility — Jurisdiction — Comity — Statutes.
    Jurisdiction over the person of a defendant who is a prisoner in a Federal facility located in this state may be obtained by means of a writ of habeas corpus ad prosequendum where, in accordance with Federal policy, the Federal authorities recognize the writ as a matter of comity, since the Interstate Agreement on Detainers is not the exclusive means by which to effect a transfer of a prisoner from a Federal facility into state custody (MCL 780.601 et seq.; MSA 4.147[1] et seq.).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Larry J. Bunting, Assistant Prosecuting Attorney, for the people.

      Stuart L. Young, for defendant.
    Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

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

   Cynar, P.J.

On March 28, 1978, defendant was convicted of possession of burglar’s tools, MCL 750.116; MSA 28.311. He was subsequently sentenced to six years eight months to ten years imprisonment, and now appeals as of right.

I

Defendant was one of four occupants of a Cadillac limousine stopped by police on the evening of August 27, 1977. The vehicle had been under surveillance by a number of law enforcement agencies for several hours, during which time officers observed unorthodox and suspicious movements and activities by the occupants. Items of interest retrieved from the Cadillac immediately following the stop and after the arrest of the occupants included pairs of leather gloves, dark blue nylon windbreaker jackets, ski masks, a large hammer with á short handle, and a .38-caliber revolver with the serial numbers drilled out.

II

Defendant first contends that the trial court never acquired jurisdiction over his person. This argument stems from the fact that defendant was brought from Federal custody in the Milan, Michigan penitentiary into state custody by means of a "writ of habeas corpus to bring up the prisoner for preliminary examination”. Defendant argues that there is no specific constitutional or statutory authorization granting the circuit courts of this state the power to issue such a writ or the allied writ of habeas corpus ad prosequendum. We disagree.

Const 1963, art 6, § 13, provides as follows:

"The circuit court shall have original jurisdiction in all matters not prohibited by law; appellate jurisdiction from all inferior courts and tribunals except as otherwise provided by law; power to issue, hear and determine prerogative and remedial writs; supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the supreme court; and jurisdiction of other cases and matters as provided by rules of the supreme court.”

Prerogative writs have been defined to include writs of habeas corpus. Black’s Law Dictionary 1345, 1784 (4th ed, 1968). We therefore conclude that the circuit court was possessed with authority to issue the writ contested by defendant. Accord, People v McLemore, 95 Mich App 536; 209 NW2d 109 (1980).

Defendant further argues with respect to this issue that the writ of habeas corpus ad prosequendum must be treated as a detainer lodged against defendant pursuant to the Interstate Agreement on Detainers (IAD), MCL 780.601 et seq.; MSA 4.147(1) et seq. Defendant claims that the IAD is the exclusive means by which a state may obtain the transfer for prosecution of a prisoner from another state. Necessarily, if jurisdiction over defendant’s person was acquired, it was through the IAD. We reject this contention.

We concede that a writ of habeas corpus ad prosequendum issued by a Michigan court has no binding extraterritorial effect. People v McLemore, supra, 550-551. Cf., GCR 1963, 713.1(2)(a) relative to a writ of habeas corpus ad testificandum. We also note that the Court in McLemore concluded that a Federal penitentiary within this state is within the jurisdiction of the court issuing the writ. McLemore, supra, 549-551. We find it unnecessary to address the question of whether a Federal facility should be treated thusly under either the IAD or the writ in dispute. Even assuming that it should not be and that the Writ which issued here was only precatory and not compulsory in nature, Commonwealth v Florence, 387 NE2d 152, 153 (Mass App, 1979), it is nonetheless clear that Federal policy is to recognize such writs as a matter of comity. Ponzi v Fessenden, 258 US 254, 261-262, 266; 42 S Ct 309; 66 L Ed 607 (1922), 18 USC 4085(a), Com monwealth v Florence, supra, 153. Federal authorities have previously honored or refused such writs and may continue to honor or refuse such writs in the future. Id., 153. Therefore, we hold that a detainer lodged pursuant to the IAD is not the exclusive means by which to effect a transfer of a prisoner from a Federal facility into state custody. Commonwealth v Fasano, 375 NE2d 361, 364 (Mass App, 1978). Contra, People v McLemore, supra, 553, People v Beamon, 83 Mich App 121, 133-134; 268 NW2d 310 (1978), lv den 403 Mich 850 (1978).

We are of course mindful of the abuses the IAD was intended to overcome, most notably the avoidance of disruption in rehabilitation programs in which a prisoner is participating in a Federal facility. McLemore, supra, 544-545, 552. However, in the instant case defendant was not subjected to any unreasonable delay in being brought to trial, such that his program of rehabilitation was unduly interrupted. Thus, the purposes for which the IAD was enacted were not thwarted here.

We conclude that jurisdiction over defendant’s person was obtained by means of the writ of habeas corpus issued here. Accordingly, the IAD is not applicable to the case before us.

Ill

We find the initial stop of the vehicle in which defendant was a passenger to be permissible under People v Whalen, 390 Mich 672, 680-682; 213 NW2d 116 (1973).

IV

As to certain items found in the car in which defendant was riding and introduced into evidence at trial, we find that they were clearly within "plain view” when seized, and properly admissible under the rule in People v Whalen, supra, 682-683.

With regard to the gun found in the crease of the rear seat of the car, it was properly admitted into evidence under the rationale found in People v Robertson, 81 Mich App 446, 449-450; 265 NW2d 365 (1978), People v Damaska, 404 Mich 391, 393-394; 273 NW2d 58 (1978).

V

We conclude that none of the errors assigned by defendant requires reversal of his conviction and affirm the same.

Affirmed.

       Irrespective of the label affixed to the writ issued in this case, subsequent events rendered it the functional equivalent of a writ of habeas corpus ad prosequendum, and we choose to treat it as such for purposes of analysis.

       From the time defendant was brought into state custody until trial commenced, 136 days elapsed.

       Though we need not address defendant’s claim that his right to a speedy trial under Art IV(c) of IAD was violated because we find the IAD inapplicable, we take note of the fact that a defendant in the position of the defendant here, i.e., incarcerated in a state facility pending trial, still may raise a constitutional claim of a denial of a right to a speedy trial, as well as a claim under the 180-day rule, MOL 780.131 et seq.; MSA 28.969(1) et seq., should the facts of the case warrant such claims.