author:
Per Curiam.
      Bashara, J.

text:
    PEOPLE v DIXON
    Docket No. 77-4636.
    Submitted May 3, 1978, at Grand Rapids.
    Decided August 21, 1978.
    Leave to appeal applied for.
    Dennis J. Dixon was convicted of armed robbery in the Kalamazoo Circuit Court, Raymond W. Fox, J. Defendant appeals claiming errors in the admission of evidence obtained as a direct result of an alleged illegal stop and detention and in the use of an identification procedure whereby the defendant was taken to the complainant’s home fpr immediate identification after his arrest. Held: ]
    The original stop of defendant by the police officers was justified, although there was not probable cause for arrest, since the officers could point to articulable facts which warranted such an intrusion. The detention of defendant for 20 minutes was not justified and was completely unrelated to the initial interference by the officers. Therefore, the evidence obtained as a result of the illegal detention should have been suppressed. A suspect is entitled to have counsel present whenever he is physically confronted by a witness asked to identify him except when the police apprehend the suspect within minutes after the crime and return him to the scene of the crime for identification. However, as here, when there is more than a mere suspicion that the person in custody is wanted for the crime, he cannot be returned to the scene of the crime but must be taken to the police station for a line-up at which counsel is present.

      References for Points in Headnotes
    [1-4, 7, 8] 5 Am Jur 2d, Arrest §§ 1, 44, 45, 48.
    What constitutes probable cause for arrest — Supreme Court cases. 28 L Ed 2d 978.
    [2-4, 7, 8] 68 Am Jur 2d, Searches and Seizures §§ 33, 34, 58.
    [5] 29 Am Jur 2d, Evidence §§ 415, 416.
    [6, 9] 21 Am Jur 2d, Criminal Law §§ 313, 314.
    Accused’s right to counsel under the Federal Constitution. 18 L Ed 2d 1420.
    Validity, under Federal Constitution, of police lineup or showup procedures — Supreme Court cases. 34 L Ed 2d 839.
    Accused’s right to assistance of counsel at or prior to arraignment. 5 ALR3d 1269.
    [7] 68 Am Jur 2d, Searches and Seizures § 44.

      Reversed.
    Bashara, J., dissented, and would hold that the defendant was not illegally detained and, therefore, the evidence obtained as a result of the detention should not be excluded. A short detention of a criminal suspect can rightfully be considered an extension of a police officer’s investigation of the suspicious circumstances which bring the suspect to the officer’s attention. The procedure whereby the defendant was returned to the scene of the crime for immediate identification did not deny him his right to counsel. Such a procedure has been sanctioned by the Michigan Supreme Court in a case decided subsequent to their holding that such a procedure should not be used where there is more than a mere suspicion that the person in custody is wanted for the crime.
    Opinion of the Court
    1. Criminal Law — Police—Investigations—Arrest—Probable Cause.
    A police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.
    2. Criminal Law — Police—Investigative Stops — Criminal Activities — Facts—Inferences.
    A police officer may stop persons when he has observed unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot; in justifying such intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.
    3. Criminal Law — Police—Investigative Stops — Justifications— Scope — Power to Detain.
    An investigative stop must be justified at its inception and must be reasonably related in scope to the circumstances which justified the interference in the first place; the scope of the police power to detain must be related to the justification for the stop at its inception, not to an after-found justification.
    4. Criminal Law — Police—Arrest—Temporary Detentions — Probable Cause — Official Confrontations.
    An arrest may occur after the temporary detention of an individual only when the facts satisfy the police officer that he has probable cause to believe the individual has committed an offense; without such probable cause, even though the investigation has proved inconclusive, the officer must then disengage the individual from official confrontation.
    5. Criminal Law — Evidence—Police—Illegal Detentions — Suppression of Evidence.
    Evidence obtained by police officers as a result of the illegal detention of a criminal defendant should be suppressed at the defendant’s trial.
    6. Criminal Law — Right to Counsel — Identification by Witness— Exception to Rule — Mere Suspicions — Line-Ups.
    A suspect is entitled to have counsel present whenever he is physically confronted by a witness asked to identify him; an exception to this rule has been developed, in order to help the police ascertain whom to take into custody, whereby an attorney is not required if the police apprehend a suspect within minutes after a crime and return him to the scene of the crime for identification; however, such exception does not apply when the police officer has more than a mere suspicion that the person in custody is wanted for the crime, in which case the officer cannot return the suspect to the scene of the crime but must take the suspect to the police station and have a line-up at which counsel is present.
    Dissent by Bashara, J.
    7. Criminal Law — Police—-Probable Cause — Reasonableness— Constitutional Law — Fourth Amendment.

      Police are not required to allow a crime to occur or a criminal to escape because the level of probable cause does not meet the Fourth Amendment mandates; it may be the essence of good police work to adopt an intermediate response; the main inquiry necessary under the Fourth Amendment is the reasonableness of the governmental action in light of all the circumstances (US Const, Am IV).

    8. Criminal Law — Detention of Suspects — Police—Investigations —Fundamental Police Functions.

      A short detention of a criminal suspect to allow a police officer to investigate the suspicious circumstances which bring the suspect to the officer’s attention can rightfully be considered a legitimate extension of the officer’s investigation, which is a fundamental police function.

      9. Criminal Law — Appeal and Error — Right to Counsel — Identification by Witnesses — Presence op Counsel — Constitutional Law — Sixth Amendment.

      A criminal defendant was not denied his Sixth Amendment right to counsel when he was apprehended by the police minutes after a crime and returned to the scene of the crime for identification without the presence of counsel; such a procedure has been sanctioned by the Supreme Court in a decision subsequent to one providing the right to counsel where the officer has more than a mere suspicion that the person in custody is wanted for the crime (US Const, Am VI).

      Robert L. Hencken, for defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, Stephen M. Wheeler, Chief, Appellate Division, and Kenneth Kobayashi, Assistant Prosecuting Attorney, for the people.
    Before: D. E. Holbrook, Jr., P. J., and Bashara and R. M. Maher, JJ.
   Per Curiam.

Found guilty, on August 18, 1976, of armed robbery in a jury trial, defendant was sentenced to a term of 8 to 20 years imprisonment.

Two individuals, later identified as defendant and Curtis Weekly, were spotted at 5:08 a.m. by two police officers. They were seen running from a McDonald’s parking lot, across the street, and into a Sunoco gas station. One of the officers who spotted the individuals running testified that since there had been a past history of break-ins in the area during the early morning hours, police suspicions were aroused. The officers stopped the individuals to investigate. They conducted a pat-down search, which produced nothing, and placed them in the patrol car. The other officer then testified that they drove back into the McDonald’s parking lot and began to check the stores in the area to be sure no break-in had occurred.

About 15 minutes later, at 5:25 a.m., the officers received a message that one Curtis Weekly and another person were involved in an armed robbery. Only Weekly disclosed his identity to the officers. At this point defendant and Weekly were placed under arrest.

After the ■ arrest, defendant was searched and allegedly stolen money was seized from his person. One of the officers retraced the defendant’s footprints and found a knife buried in the snow. Defendant and Weekly were placed in separate cars and were taken back to the place where the victim was reporting the crime.

The victim, Arzell Givhan, reported that, after an early morning gambling party, at which he had modest winnings, he left the scene of the party and was approached by defendant and Weekly, who had also been at the party and who asked for a ride to the north side of town. Givhan stated he refused. As he began to walk to his car, the victim testified, Weekly and defendant caught up to him. Weekly pulled a knife and held it to Givhan’s throat, while defendant went through the victim’s pockets and wallet. When the men released him, they fled. Givhan eventually called police.

When Weekly and the defendant were returned to the scene, Givhan was led to the first vehicle containing Weekly and identified him. Givhan was then led to the second car containing defendant where he stated that the defendant was "the other one”. Defendant and Weekly were then taken to the police station.

Defendant alleges a number of errors at the trial court level. We address two of his claims. On appeal, defendant contends that the stop and detention were illegal and that the evidence which was found as a direct result of the illegal stop and detention should, therefore, be suppressed.

A police officer may "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest”. Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). It is not unlawful for a police officer to stop persons when he has observed "unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot”. People v Whalen, 390 Mich 672, 680; 213 NW2d 116 (1973). In justifying the intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. Terry v Ohio, supra, at 21.

In the instant case, both the initial stop by the police officers and the subsequent 20 minute detention of defendant must be tested by the standards of Terry and its progeny. The original stop of defendant by the police officers appears to have been justified under the Terry v Ohio rationale. Though there was no probable cause for arrest, the officers could point to articulable facts which warranted the intrusion. Defendant was found in the very early morning hours running in an area which had recently been the scene of many early morning break-ins. An investigative stop to ask defendant for identification and to inquire into the nature of his business was not uncalled-for.

However, the detention of defendant and Curtis Weekly in the squad car for 20 minutes cannot be justified under Terry v Ohio. An investigative stop must be justified at its inception and must be reasonably related in scope to the circumstances which justified the interference in the first place. Here the justification for the stop was defendant’s running in the early morning in an area where there had been a recent rash of break-ins. But defendant was further detained while one of the officers surveyed the surrounding area to make sure no criminal activity was afoot. This detention was wrongful; there was no justification for it as it was completely unrelated to the initial interference by the officers.

Terry v Ohio permits only a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo' momentarily while obtaining more information. Detention for something more cannot be justified under Terry v Ohio, supra. Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972). Under Terry, the officer making the stop must be suspicious at the time the stop is made that criminal activity is afoot. Although the police in this case were somewhat suspicious when defendant was first stopped, they had no further authority to detain defendant afterward while one of the officers went to check to see if criminal activity were afoot. The scope of the police power to detain must be related to the justification for the stop at its inception — not to an after-found justification.

Here the police merely saw two men running in the early morning, a not uncommon sight in our times. Nor did the police proffer any facts to justify the intrusion upon defendant’s freedom. Nothing elicited from defendant or his companion would give any cause to increase police suspicions. They, in fact, failed to ask for an explanation of defendant’s activities as suggested in People v Harold Williams, 63 Mich App 398; 234 NW2d 541 (1975). Therefore, the police, in detaining defendant, could not have been attempting to verify the explanation — a practice apparently approved in People v Harold Williams, supra, and People v Rivers, 42 Mich App 561; 202 NW2d 498 (1972).

Our Court has confronted before the "difficult situation confronting a police officer when his investigation has failed to resolve suspicions concerning an individual who has been temporarily detained”. In People v Harold Williams, supra, the Court said:

"Briefly stated, there comes a time after a temporary detention when the officer must either arrest the stopped individual or allow him to go free. See United States v Luckett, 484 F2d 89 (CA 9, 1973). An arrest can occur only when the facts satisfy the officer that he has probable cause to believe the individual has committed an offense. Without probable cause, even though the investigation has proved inconclusive, the officer must then disengage the individual from official confrontation. See Young v State, 339 A2d 723 (Del, 1975), and Coleman v United States, 337 A2d 767 (DC Ct App, 1975).” 63 Mich App at 404.

As Williams said, a line must be drawn. 63 Mich App at 403. In this case the officers crossed that line and because of their transgression, they discovered both the money and the knife. Had defendant been only stopped instead of illegally detained, the discovery would not have been made. Since the evidence was the product of the illegal detention, it should have been suppressed.

Defendant also complains that he was denied his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process when, after his arrest, he was returned to the complainant’s home for immediate identification.

A suspect is entitled to have counsel present whenever he is physically confronted by a witness asked to identify him. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). However, as our Supreme Court has noted, an exception to this rule has developed: an attorney is not required if the police apprehend a suspect within minutes after the crime and return him to the scene of the crime for identification. People v Anderson, 389 Mich 155, 187, n 23; 205 NW2d 461 (1973). Anderson cites Russell v United States, 133 US App DC 77; 408 F2d 1280 (1969), for the justification for the absence of counsel at an identification procedure— though the assumptions upon which Russell is premised have been assailed. See Grano, Kirby, Biggers, and Ash: Do Any Constitutional Safeguards Remain Against the Danger of Convicting the Innocent, 72 Mich L Rev 717, 733-738 (1974).

Defendant argues that the exception briefly delineated in Anderson should not apply in a case where the police clearly suspect that the defendant has committed the crime; that is, where they do not have to ascertain whom to take into custody. Our Supreme Court, while noting Russell in Anderson, appears to have in part rejected the reasoning espoused in Russell and to have adopted the reasoning urged upon us by defendant.

In People v Patskan, 387 Mich 701; 199 NW2d 458 (1972), three men attempted to rob a bar-restaurant. One of the men placed a gun in the ribs of the complainant who was an employee and helped search him. A silent alarm had alerted the police and when they arrived, the robbers fled. One person was fatally shot, another wounded and a third, the person who had held the employee at gunpoint, ran into a nearby field. An officer pursued and found the defendant hiding in the field and returned him to the bar where the other officers identified him.

In reversing defendant’s conviction, the Supreme Court held that defendant had been denied the right to counsel when he was returned to the scene of the crime and identified by the police officers.

"Finally, defendant contends that his right of due process of law and his right to assistance of counsel were violated when he was returned to the scene of the alleged holdup and identified by the other officers. The right of counsel at a confrontation between an accused and his accuser was recognized by the United States Supreme Court in United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). Wade was decided on June 12, 1967, but was silent on the question of retroactivity. Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967), succinctly held that Wade was not made retroactive. The instant holdup occurred on July 14, 1967, and, thus, defendant Patskan is entitled to the benefits provided by Wade.
"Thus, on retrial, the trial court should hold a hearing to determine whether the in-court identification of defendant by the police officers was arrived, at independent of the initial confrontation. If such in-court identification was not independent, evidence of the indentification of the defendant should be excluded on retrial.” (Footnote omitted.) 387 Mich at 715.

The police in Patskan arrived during the perpetration of a robbery. It was evident that the men who were fleeing were participants in the robbery. The clear implication in the Supreme Court decision is that when a police officer has more than a mere suspicion that the person in custody is wanted for the crime, the officer cannot return the suspect to the scene of the crime but must take him to the police station - and have' a line-up at which counsel is present.

If, as People v Russell asserts, one of the purposes of an at-the-scene identification is to expedite the release of innocent suspects, that purpose fails when the police have substantial evidence suggesting that the person in custody is not innocent: there are, in the circumstances, no innocent suspects to be released.

Here the police had a significant amount of information indicating defendant’s involvement in the robbery. Defendant and his companion were more than potential suspects whose innocence was in doubt. There was no need for the police to ascertain whom to take into custody. There was, therefore, no need for the at-the-scene identification without counsel. Defendant should have been taken to the station and provided a line-up and counsel.

Defendant is granted a new trial at which the evidence seized as the result of the illegal detention must be suppressed. Evidence of the at-the-scene identification must be excluded and any in-court identification must be shown to have an independent basis. In order to determine if an independent basis exists, the trial court should consider those factors set forth in People v Kachar, 400 Mich 78; 252 NW2d 807 (1977).

Bashara, J.

(dissenting). I respectfully dissent. This writer does not find two men running at 5 a.m. to be a common sight, especially in an area of many recent early morning break-ins. Even the majority agrees that the police were justified in stopping the two individuals.

In Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United States Supreme Court indicated their approval of restrained and legitimate investigative conduct. As pointed out in Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), the police are not required to allow a crime to occur or a criminal to escape because the level of probable cause does not meet the Fourth Amendment mandates. "On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response”. Adams at 145.

From the time defendants were first spotted running to the time of the message concerning the armed robbery only 17 minutes elapsed. Actual detention time was undoubtedly less.

In view of the suspicious circumstances, the short time of detention can rightfully be considered a legitimate extension of the officers’ investigation, which is a fundamental police function. People v Rivers, 42 Mich App 561, 564; 202 NW2d 498 (1972), United States v Lee, 271 A2d 566, 567-568 (DC, 1970).

The main inquiry necessary under the Fourth Amendment is the reasonableness of the governmental action in light of all the circumstances. Terry, supra, People v Harold Williams, 63 Mich App 398, 403; 234 NW2d 541 (1975).

Considering the particular facts of this case, I cannot find that the defendant was illegally detained so as to necessitate exclusion from evidence of the knife and stolen money.

I must also disagree with the finding that defendant was denied his Sixth Amendment right to counsel by being returned to the scene of the crime for immediate identification. This procedure has been sanctioned by our Supreme Court in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). The case of People v Patskan, 387 Mich 701; 199 NW2d 458 (1972), on which the majority relies, was decided prior to the Anderson case.

I would affirm.

       The victim Givhan stated that he saw the knife and that is was a pocketknife with a 6-inch blade. (On cross-examination, Givhan said the blade was 3 inches long.) The knife found by the police in the snow was not a fold-up pocketknife.

       We note that the exception to the rule of right to counsel at a pretrial identification is not affected by our decision when those on-the-scene encounters follow the alleged crime within minutes and are necessary in order for police to know whom they should arrest. See People v Foster, 51 Mich App 213; 214 NW2d 723 (1974), People v Curtis Williams, 57 Mich App 612; 226 NW2d 584 (1975).

       The following are the factors listed in Kachar which the court should use in determining whether an independent basis exists:
      1. Prior relationship with or knowledge of the defendant.
      2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.

        3. Length of time between the offense and the disputed identification.
      4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.
      5. Any previous proper identification or failure to identify the defendant.
      6. Any identification prior to lineup or showup of another person as defendant.
      7. The nature of the alleged offense and the physical and psychological state of the victim.
      8. Any idiosyncratic or special features of defendant.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    CITY OF DETROIT v RECORDER’S COURT JUDGE
    Docket No. 78-2362.
    Submitted August 9, 1978, at Detroit. —
    Decided August 21, 1978.
    Leave to appeal denied, 404 Mich —, 1978.
    Recorder’s Court Judge William C. Hague, of the Traffic and Ordinance Division, consistently dismissed nontraffic ordinance violation complaints presented in ticket form, refusing to issue arrest warrants or order a respondent retained in custody without the appearance of the arresting officer at the arraignment proceedings because he believes that the procedures used by the City of Detroit in processing such cases are illegal. The city filed a complaint for superintending control in Wayne Circuit Court seeking an order that would require Judge Hague to process ticket complaints. Orders were issued by Richard D. Dunn, J., directing the defendant-judge to accept the ticket complaints. The defendant appeals, challenging the power of the circuit court to issue the order of superintending control, and the propriety of Detroit Police Department practices in nontraffic ordinance violation cases. He contends that a suspect may not be arrested without a warrant before a sworn complaint is filed, that an arrest .warrant must be issued to continue the custody of a suspect who is. before the court for arraignment, that the arresting officer must be present at the arraignment and that he cannot accept pleas of guilty without compliance with the court rule governing plea acceptance. Held:

    1. Circuit courts have general superintending control over all inferior tribunals; superintending control is the proper vehicle to challenge a generalized practice of an inferior court.
    2. An arrest without a warrant is authorized where a police officer sees a violation of a nontraffic ordinance being committed in Ms presence.

      References for Points in Headnotes
    [1, 2] 20 Am Jur 2d, Courts §§ 111-114.
    [2, 3] 20 Am Jur 2d, Courts §§ 115-117.
    [4] 20 Am Jur 2d, Courts §§ 84, 85.
    [5] 5 Am Jur 2d, Appearance §§ 14-16.
    [6] 5 Am Jur 2d, Arrest § 38.
    [7] 5 Am Jur 2d, Arrest §§ 10, 11, 76, 77.
    [8, 9] 21 Am Jur 2d, Criminal Law §§ 441, 443, 446, 454.
    [10] 21 Am Jur 2d, Criminal Law § 484 et seq.

    Validity of guilty pleas — Supreme Court cases. 25 L Ed 2d 1025.

      3. The issuance of an arrest warrant is unnecessary after a suspect has been brought before the court for arraignment.
    4. The procedure of permitting an arraigning officer, not the arresting officer to present respondents at ticket-complaint-arraignment proceedings does not violate due process.
    5. The Recorder’s judge njisread the court rule which was not applicable to guilty plea proceedings for oifenses punishable by a prison teriri of less than six months.
    Affirmed.
    1. Courts — Superintending Control — Inferior Tribunals — Statutes.
    Circuit courts have general superintending control over all inferior tribunals (MCL 600.615; MSA 27A.615).
    2. Courts — Superintending Control — Inferior Tribunals — Generalized Court Practices.
    Superintending control is the proper vehicle by which to challenge a generalized practice of an inferior court.
    . 3. Courts — Superintending Control — Adequate Remedy — Availability — Court Rules.
    A complaint for superintending control may not be filed if another adequate remedy is available to the party seeking the order; however, superintending control could be the proper avenue of relief where another remedy would be too time-consuming and burdensome to be called adequate (GCR 1963, 711.2).
    4. Courts — Recorder’s Court — Court Procedures — Statutes.
    The statute governing procedures for ordinary violation cases in the Recorder’s Court of the City of Detroit requires a written complaint, sworn before a clerk, subscribed by the complainant and which sets forth the substance of the offense (MCL 726.22; MSA 27.3572).
    5. Courts — Appearance Tickets — Authorized Use — Statutes.
    Appearance tickets are authorized for use in municipal and district courts (MCL 764.9f; MSA 28.868[6]).
    6. Arrest — Without Warrant — Nontraffic Ordinances — Statutes.
    An arrest without a warrant is authorized where a police officer sees a violation of a nontraffic ordinance being committed in his presence (MCL 764.15; MSA 28.874).

      7. Arrest — Arrest Warrant — Arraignment.
    The issuance of an arrest warrant is unnecessary after a suspect has been brought or makes an appearance before the court for arraignment.
    8. Courts — Recorder’s Court — Arraignment—Probable Cause— Due Process.
    Generally, a properly completed ticket-complaint form will fulfill the probable cause requirements for arraignment in Recorder’s Court of the City of Detroit; the procedure of permitting an arraigning officer, not the arresting officer, to present respondents at arraignment proceedings satisfies the requirement of due process without jeopardizing the efficient enforcement of the law.
    9. Courts — Arraignment—Ticket-Complaint Form — Probable Cause.
    The necessity for additional facts to satisfy probable cause should be the exception not the rule, where a ticket-complaint form is used at an arraignment.
    10. Criminal Law — Pleas op Guilty — Guilty Plea Proceedings— Court Rules.
    Certain portions of the court rule on taking guilty pleas are not applicable to guilty plea proceedings for offenses punishable by a prison term of less than six months (GCR 1963, 785.7; 785.10).

      Roger E. Craig, Corporation Counsel, George G. Matish, Deputy Corporation Counsel, and Robert Norvath, Assistant Corporation Counsel, for plaintiff.
    Metry, Metry & Sanom (by Frederick E. Metry and Kenneth J. Kurncz), for defendant.
    N. J. Kaufman, P. J., and Bashara and R. M. Maher, JJ.
   Per Curiam.

Appellant appeals from a circuit court order of superintending control which requires him to follow certain procedures in the processing of nontraffic ordinance violation cases.

This controversy involves the use of preprinted ticket forms to serve as complaints, and as the bases for the issuance of arrest warrants, in non-traffic ordinance violation cases before Recorder’s Court Traffic and Ordinance Division. Typically, the arresting officer, having seen a violation of the ordinance being committed in his presence, arrests the respondent and completes a ticket-complaint form. The substance of the offense is written in on the ticket form as, for example, "accosting and soliciting to commit an act of prostitution”. The arresting officer takes the respondent to the police station, where the officer signs the ticket and swears to the facts therein before a deputy court clerk. The respondent is offered the opportunity to post bail, as required by MCL 780.581; MSA 28.872(1) and People v Dixon, 392 Mich 691; 222 NW2d 749 (1974). The respondent is then arraigned before a Traffic and Ordinance Division judge. An arraigning officer, not the arresting officer, presents the ticket-complaint to the judge.

Appellant has consistently dismissed nontraffic ordinance violation complaints presented in ticket form. He has refused to issue arrest warrants or to order the respondent retained in custody without the personal appearance of the arresting officer at the arraignment proceedings, because he believes that the procedures used by the city in processing nontraffic ordinance violation cases are illegal.

The City of Detroit filed a complaint for superintending control in Wayne County Circuit Court to seek an order requiring appellant to process ticket complaints. The circuit judge issued a series of orders directing appellant to accept the complaints. The last order of clarification, issued on May 30, 1978, provided in pertinent part:

"IT IS HEREBY ORDERED that, upon the arrest of any person for violation of a non-traffic ordinance in the City of Detroit, a complaint shall be filed, under oath, setting forth the nature of the offense, accompanied by a summons issued out of the clerk’s office commanding the respondent to appear on the date set forth to answer said complaint;
"IT IS FURTHER ORDERED, that if the respondent shall tender a plea of guilty the Judge shall thereupon accept the plea of guilty; if the respondent fails to appear the Judge shall then examine the matters set forth in the complaint, and, upon a finding of probable cause, shall forthwith issue a warrant for the arrest of said person; if the respondent pleads not guilty the Court shall thereupon examine the complaint and if there is a finding of probable cause, shall forthwith issue a warrant pursuant to the complaint;
"IT IS FURTHER ORDERED that the proceedings hereby ordered shall in no wise interfere with the Court’s authority to issue a recognizance for the respondent’s appearance with such sureties as the Court may in its discretion direct.
"Trial shall be had upon the complaint and warrant as hereinbefore mentioned.”

Appellant appeals from that order and raises several issues worthy of discussion.

First, appellant challenges the power of the circuit court to issue an order of superintending control. MCL 600.615; MSA 27A.615 provides that the circuit courts have general superintending control over all inferior tribunals. Superintending control is the proper vehicle by which to challenge a generalized practice of an inferior court, in this case the Recorder’s Court Traffic and Ordinance Division. Cahill v 15th District Judge, 393 Mich 137; 224 NW2d 24 (1974), Michigan Association for Retarded Citizens v Wayne County Probate Judge, 79 Mich App 487, 493; 261 NW2d 60 (1977). In the case at bar plaintiff had no other adequate remedy by appeal. GCR 1963, 711.2. Plaintiff would have had to challenge each dismissal separately, a remedy which would be too time-consuming and burdensome to be called "adequate”. Because appellant’s method of conducting his general court proceedings in all cases which present a common, legal and factual situation is at issue, superintending control is the proper avenue for relief.

Appellant next raises several issues regarding the Detroit Police Department practices in non-traffic ordinance violation cases. MCL 726.22; MSA 27.3572, the statute governing procedures for ordinary violation cases in Recorder’s Court, provides:

"Said recorder’s court shall have exclusive cognizance of all prosecutions for offenses arising under this act, or any ordinance or regulation of the common council. All such prosecutions shall be commenced by filing with the clerk of said court a complaint, in writing, in the form of an affidavit, duly sworn to before said clerk, and subscribed by the person making the complaint, and having endorsed thereon the proper jurat of said clerk; and it shall be deemed sufficient to set forth, in said complaint, the offense complained of, according to its substance. When a complaint shall be filed as herein provided, a summons shall be issued by the clerk of said court, commanding the respondent in said complaint to appear before said court on a day therein mentioned, to answer to said complaint, and if said respondent shall fail to appear in obedience to said summons, warrants may be issued by the clerk upon the order of said court, for the arrest of said respondent, who shall be committed to the jail of Wayne county to await trial upon said complaint, unless he enter into a recognizance for his appearance to answer to said complaint, in such sum, and with such sureties as said court may, by a general or special order direct. A warrant may be issued in the first instance, upon the order of said court. The trial shall be had and determined upon said complaint, and upon pleadings, which may be amended, in the same manner as indictments or informations and pleadings under the general laws of the state.”

This statute requires (1) a written complaint, which is (2) sworn before a clerk and (3) subscribed by the complainant, and which (4) sets forth the substance of the offense. This Court’s review of the particular ticket form used in Detroit to process nontraffic ordinance violation cases indicates that the ticket satisfiés the requirements of a complaint. The words, "accosting and soliciting to commit an act of prostitution” do set forth the substance of the offense. Appearance tickets are authorized for use in municipal and district courts. See MCL 764.9f; MSA 28.868(6). All that is required to make an appearance ticket a sufficient complaint is a signing and swearing by the complainant. Current Detroit Police Department procedures do comport with these requirements.

Appellant also argues (1) that the suspect may not be arrested without a warrant before a sworn complaint is filed, and (2) that an arrest warrant must be issued to continue the custody of a suspect who is before the court for arraignment. These contentions are lacking in merit. Where a police officer sees a violation of a nontraffic ordinance being committed in his presence, the Legislature clearly intended to authorize the warrantless arrest of the violator pursuant to MCL 764.15; MSA 28.874. MCL 764.9(b); MSA 28.868(2), for example, provides for the issuance of an appearance ticket to a defendant and for the defendant’s release from custody where he has been "arrested without a warrant for any misdemeanor, violation of a city, village or township ordinance cognizable by a justice of the peace or a municipal judge * * * If warrantless arrests for violations of a city ordinance were not proper, then MCL 764.9(b) would be meaningless.

After the suspect has been brought before the court for arraignment, issuance of an arrest warrant is unnecessary. The general rule is stated in 22 CJS, Criminal Law, § 316, p 815:

" * * * since the only function of the warrant in a criminal case is to enable the court to acquire jurisdiction of the person of accused by bringing him before the court to answer the charge made against him, where a person is arrested lawfully, without a warrant, and is immediately taken before the court, or when accused appears voluntarily and pleads to the complaint, or when his presence is secured in some other way, there is no necessity for a warrant. ” (Emphasis supplied.)

In People v Burrill, 391 Mich 124, 131; 214 NW2d 823 (1974), our Supreme Court implicitly recognized the above principle by speaking of "the limited use of arrest warrants to justify or effectuate the physical arrest of accused persons”. Appellant’s argument regarding the necessity of an arrest warrant therefore must be rejected.

Another reason for appellant’s refusal to process the ordinance violation complaints is the absence of the arresting officer at the arraignment proceedings. Appellant’s objection is without merit. In People v Burrill, supra, the Supreme Court noted:

"Bearing in mind the limited use of arrest warrants to justify or effectuate the physical arrest of accused persons, we have concluded that the added protection of an ex parte examination of witnesses upon the filing of every complaint does not justify our imposing, through a belated revisionary construction of the statutory language, this added expense on the state and the inconvenience of still another court appearance on victims and other witnesses.”

The procedure of permitting an arraigning officer, not the arresting officer, to present the respondents at arraignment proceedings satisfies the requirements of due process without jeopardizing the efficient enforcement of the law in Detroit. It is unrealistic to require arresting officers to present individually all their cases in court the following day. If an individual respondent contests the nature of the charge on the appearance ticket, that respondent has ample opportunity to do so either before the referee or a Traffic and Ordinance Division judge. In almost all cases, a properly completed ticket-complaint form will fulfill the probable cause requirements for arraignment. Under the circuit court order of superintending control, appellant still has the discretion to require the police department to produce the arresting officer if, for some reason, a particular ticket-complaint does not "set forth * * * the offense complained of, according to its substance”. MCL 726.22. The necessity for additional facts to satisfy probable cause should be the exception not the rule, where a ticket-complaint form is used.

Finally, appellant argues that the circuit court erred in ordering him to accept pleas of guilty in ordinance violation cases. without requiring that he comply with GCR 1963, 785.7. Appellant has apparently misread the court rule. GCR 1963, 785.7 is not applicable to guilty plea proceedings for offenses punishable by a prison term of less than six months. GCR 1963, 785.10. We do not read the words, "The Judge shall thereupon accept the plea of guilty” in the circuit court’s order as requiring appellant to automatically accept any pleas of guilty. Appellant must first comply with the court rules which are applicable to plea-taking for the particular offense charged.

This Court’s June 22, 1978 order, which stayed proceedings below and relieved appellant of non-traffic ordinance violation cases, is set aside.

The circuit court order of superintending control is affirmed.

        See People v Russell, 347 Mich 193; 79 NW2d 603 (1956).


text:
    OLD RELIABLE FIRE INSURANCE COMPANY v SCHAUB
    Docket No. 77-2861.
    Submitted June 14, 1978, at Lansing.
    Decided August 21, 1978.
    Prior to the Supreme Court’s holding that the Michigan guest passenger statute was unconstitutional (Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 [1975]), Martha J. Schaub was injured while riding a motorcycle which was owned and operated by her husband, Stephen W. Schaub, and insured by Old Reliable Fire Insurance Company. Subsequent to the Supreme Court’s ruling Martha J. Schaub filed suit against her husband for damages for her injuries, alleging negligence. Her husband forwarded the summons and complaint to Old Reliable, which instituted an action against Mr. and Mrs. Schaub for a declaratory judgment that it is not obligated to defend its insured or to pay any damages to Mrs. Schaub. The Oakland Circuit Court, John N. O’Brien, J., denied the requested relief. Old Reliable Fire Insurance Co. appeals. Held:

    The Supreme Court’s holding that the Michigan guest passenger statute was unconstitutional applies retroactively.
    Affirmed.
    Automobiles — Negligence—Constitutional Law — Statutes— Guest Passenger Statute — Retroactivity of Unconstitutionality.
    The Supreme Court’s ruling that the Michigan guest passenger statute is unconstitutional applies retroactively (MCL 257.401; MSA 9.2101).
    References for Points in Headnote
    8 Am Jur 2d, Automobiles and Highway Traffic § 472.
    73 Am Jur 2d, Statute §§ 350, 351.
    Constitutionality of automobile and aviation guest statutes. 66 ALR3d 532.

      Barbier, Goulet, Petersmarck & McFarland, P. C., for plaintiff.
    Before: D. E. Holbrook, P. J., and M. J. Kelly and P. R. Marutiak, JJ.

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

   Per Curiam.

On July 7, 1975, defendant Martha Jane Schaub was injured while riding as a passenger on a motorcycle that was owned and operated by her husband, codefendant Stephen William Schaub, and insured by plaintiff. On January 22, 1976, Martha Schaub filed suit against her husband for ordinary negligence.

Subsequent to the date of the accident but prior to the date that Martha Schaub filed her suit, the Supreme Court released its decision in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). In that case, the Supreme Court held unconstitutional the Michigan guest passenger statute. MCL 257.401; MSA 9.2101. That statute had limited tort recovery by passengers in a motor vehicle to cases where the driver was guilty of gross negligence or willful and wanton misconduct. On July 20, 1976, plaintiff instituted the present action for declaratory judgment, arguing that the Manistee Bank case was not to be given retrospective application, and therefore, it was not liable for the ordinary negligence of its insured, Stephen Schaub. In an opinion dated July 7, 1977, the lower court held that the Supreme Court’s decision in Manistee Bank was to be applied retroactively and that plaintiff was required to defend Stephen Schaub in the action brought against him by his wife. From this opinion, plaintiff now appeals.

As is noted by plaintiff, the opinion of the Supreme Court in the Manistee Bank case does not state whether it is to be given retroactive effect. However, that it was the Supreme Court’s intention to apply Manistee Bank retrospectively is made clear in its disposition of Dunham v Low inger, 395 Mich 793; 235 NW2d 153 (1975). There, on the basis of Manistee Bank, the Supreme Court reversed a 1973 decision of this Court. See also Stanfill v Powers, 68 Mich App 488; 243 NW2d 24 (1976) (applying Manistee Bank to a July 4, 1970, accident and a May, 1975, trial).

These opinions, applying Manistee Bank retrospectively, are in accord with the general rule that unconstitutional statutes are void ab initio. Stanton v Lloyd Hammond Produce Farms, 400 Mich 135; 253 NW2d 114 (1977), Horrigan v Klock, 27 Mich App 107; 183 NW2d 386 (1970). Thus, in conformity with this general rule pertaining to the application of unconstitutional statutes, and noting that the Supreme Court seems to have intended that the Manistee Bank case be applied retrospectively, we affirm the lower court’s denial of declaratory relief to plaintiff. Plaintiff is obliged to defend its insured, Stephen Schaub, in the action brought against him by his wife and to pay, within the limits set forth in the policy it issued to him, such judgment as may be rendered against him.

Affirmed.

       The Supreme Court’s opinion in the Manistee Bank case was released on September 8, 1975.


author: B. M. Hensick, J.

text:
    PEOPLE v TRAVIS
    Docket No. 31430.
    Submitted June 20, 1978, at Detroit.
    Decided August 22, 1978.
    Leave to appeal applied for.
    Namon Travis was convicted of first-degree criminal sexual conduct and armed robbery, Recorder’s Court of Detroit, Michael J. Connor, J. The defendant appeals alleging that the trial court erred in permitting the trial to continue when the defendant was not present because of his physical condition. He also alleges that the sentencing court improperly considered his refusal to plead guilty in determining the term of the sentence. Held:

    1. The defendant waived his right to be present at trial where he refused to appear after being informed of his right to be present at trial and after being examined by four doctors, all of whom testified that the defendant was capable of standing trial.
    2. It was improper for the sentencing judge to take into consideration the defendant’s refusal to plead guilty in determining the term of the sentence.
    Remanded for resentencing.
    1. Constitutional Law — Criminal Law — Right to be Present at One’s Trial — Statutes.
    The right to be present at one’s trial is a fundamental right guaranteed a criminal defendant both by statute and as part of Fourteenth Amendment due process and nothing in the nature of evidence should be taken when the defendant is not present (US Const, Am XIV, MCL 768.3; MSA 28.1026).
    2. Constitutional Law — Criminal Law — Right to be Present at One’s Trial — Waiver.
    A criminal defendant’s right to be present at trial may be waived like any other constitutional guarantee; the defendant may waive this right by his conduct in the courtroom or through failure to appear.

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 573.
    [2] 16 Am Jur 2d, Constitutional Law § 567.
    [3] 28 Am Jur 2d, Estoppel and Waiver §§ 157, 158.
    [4] 21 Am Jur 2d, Criminal Law §§ 527-530.

      3. Constitutional Law — Waiver—Words and Phrases — Known Privilege — Elements.
    Waiver is an intentional relinquishment or abandonment of a known right or privilege; the two separate parts of a waiver are: (1) a specific knowledge of the constitutional right, and (2) an intentional decision to abandon the protection of the constitutional right; both elements must be present and if either is missing there can be no waiver and no finding of consent.
    4. Criminal Law — Sentences—Refusal to Plead Guilty.
    A sentencing judge may not take into consideration a defendant’s refusal to plead guilty in determining the term of the sentence.

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

      Michael S. Surnow, for defendant on appeal.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   B. M. Hensick, J.

The defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1), and armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a prison term of 50 to 80 years on the criminal sexual conduct conviction and life imprisonment on the other conviction. He appeals as of right.

Defendant was present at the beginning of his trial, but was subsequently absent one entire day and approximately one hour of the following day during his trial. Defendant contends that the trial court erred in permitting the trial to continue in his absence. The following chronological sequence of events is necessary to an understanding of this Court’s opinion.

Several months prior to trial, defendant had received a gunshot wound which required removal of a large portion of his stomach and pancreas. He had since been experiencing pain, vomiting and loose bowels.

Defendant, who was present for the first two days of trial, initially complained of being in pain on the second day. As a result of defendant’s complaints, the court recessed early for the day. A doctor examined defendant and informed the court that he was able to continue with the trial.

The third day, Thursday, the trial was adjourned early, again due to defendant’s complaint of pain. The court arranged for defendant to be taken to Detroit General Hospital for a complete examination over the weekend. On Monday, court reconvened after receiving word from the hospital that there was no physical or mental reason why defendant could not continue the trial. Defendant remained at trial that entire day although he again complained of experiencing severe discomfort. After an extended conversation with defendant and his attorney, the court concluded that the trial would continue, and informed defendant that it would grant more recesses if defendant required them and take other steps if necessary.

On the fifth day of trial, defendant refused to come out of the lock-up, complaining of his continuing illness. At that point, the court summoned two doctors from the Detroit Recorder’s Court clinic to examine defendant. The court stated that if the doctors indicated that there was any reason at all to believe that defendant could not go forward with the trial, it would at least adjourn the case and possibly terminate it. However, both doctors concluded that defendant was able to stand trial and that the pain was not severe enough to prevent him from aiding and assisting his counsel.

The court decided, based on the four doctors’ reports, its own observation of defendant, and the fact that defendant had a history of feigning illness in previous cases, to continue the trial. In addition, the court noted that a key witness had been threatened the night before, and that her testimony was in jeopardy if the trial was postponed. Defendant, who was in the courthouse, was informed of the court’s decision and refused to come out. The court informed defendant that he would be allowed to rejoin the trial at any time, and it allowed defense counsel to confer with defendant during the day.

Defendant was subsequently absent for most of the cross-examination of a key complaining witness and for the entire testimony of three other witnesses. The defendant returned to the courtroom during the morning of the next day and was present for the remaining four days of trial.

The right to be present at one’s trial is a fundamental right guaranteed the defendant both by statute, MCL 768.3; MSA 28.1026, and as part of Fourteenth Amendment due process. Illinois v Allen, 397 US 337; 90 S Ct 1057; 25 L Ed 2d 353 (1970). Nothing in the nature of evidence should be taken when the defendant is not present, People v Medcoff, 344 Mich 108; 73 NW2d 537 (1955), overruled on other grounds, People v Morgan, 400 Mich 527; 255 NW2d 603 (1977), People v Montgomery, 64 Mich App 101; 235 NW2d 75 (1975).

Like any constitutional guarantee, the defendant’s right to be present at trial may be waived. Illinois v Allen, supra. The defendant may waive this right by his conduct in the courtroom, Illinois v Allen, supra. The right may also be waived through failure to appear, Diaz v United States, 223 US 442; 32 S Ct 250; 56 L Ed 500 (1912), People v Swan, 394 Mich 451; 231 NW2d 651 (1975).

Cases involving the defendant’s absence during testimonial proceedings are rare, presumably because absence then is so incompatible with a fair trial that the question simply does not arise except as to questions of waiver. People v Thomas, 46 Mich App 312; 208 NW2d 51 (1973). In determining whether defendant waived his right to be present at trial, we look to People v Grimmett, 388 Mich 590, 598; 202 NW2d 278, 282 (1972), wherein the Court defined waiver requirements:

"Waiver is defined in Johnson v Zerbst, 304 US 458, 464; 58 S Ct 1019, 1023; 82 L Ed 1461 (1938), as 'an intentional relinquishment or abandonment of a known right or privilege.’ The Court added, 'courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and * * * we 'do not presume acquiescence in the loss of fundamental rights.’ Thus, waiver consists of two separate parts: 1) a specific knowledge of the constitutional right; and 2) an intentional decision to abandon the protection of the constitutional right. Both of these elements must be present and if either is missing there can be no waiver and no finding of consent.”

In the instant case, the court informed defendant that he had a constitutional right to be present at all stages of the trial and that it was possible for him to waive that right. The court told defendant that one of the ways he could waive the right to be present was by his voluntary absence from the trial.

The trial was interrupted numerous times to accommodate defendant’s complaints of not feeling well. He was examined by four doctors, all of whom testified that defendant was capable of standing trial. There was testimony that the symptoms defendant was experiencing could continue for the rest of his life. In addition, there was the court’s own observation of defendant’s demeanor, whereby it concluded that the defendant did not seem visibly ill or incapable of sitting for long periods.

In Illinois v Allen, supra, the Court recognized that a defendant might conceivably, as a matter of calculated strategy, elect to postpone his trial in the hope that adverse witnesses might be unavailable after a lapse of time. We note in the instant case that the key prosecution witness had been threatened during the trial and that her testimony could have been jeopardized by postponing the trial any further. The trial judge must balance the rights of the defendant against the rights of the people to proceed with trial. "Thus there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward.” Illinois v Allen, supra, at 348-349 (Brennan, J., concurring).

Under the circumstances, we conclude that the trial court did not err in determining that defendant was well enough to stand trial, and that his refusal to appear in court, after being apprised of his constitutional right to be present, constituted a knowing and intentional waiver of that right. People v Grimmett, supra. While we jealously guard the defendant’s constitutional right to be present at every stage of the proceedings, the disposition of criminal cases cannot be made "subject to the whims of defendants who could frustrate the speedy satisfaction of justice by absenting themselves from their trials”. United States v Tortora, 464 F2d 1202, 1208 (CA 2, 1972).

Defendant next contends that the trial court impermissibly considered his insistence on a jury trial in imposing sentence. His codefendant, Claxton Cooper, pled guilty and received a substantially smaller sentence.

The trial judge indicated that he considered various background factors of each defendant in imposing the different sentences. However, he added:

"Now in addition to that, I might also point out that Claxton Cooper did plead guilty. Now that, I agree with you, I don’t think that any person should have their right to a jury trial chilled. But, on the other hand, occasionally, the Court will reward a person, giving something less than they deserve just because they have plead [sic] guilty, and, consequently, not put the People to the risk of a not guilty verdict.”

A sentencing judge may not take into consideration defendant’s refusal to plead guilty in determining the term of the sentence. People v Snow, 386 Mich 586; 194 NW2d 314 (1972), People v Bottany, 43 Mich App 375; 204 NW2d 230 (1972).

We remand to the trial court for resentencing. In determining the defendant’s sentence, no consideration is to be given to the fact that he was convicted by a jury, rather than upon a plea of guilty. The court shall impose sentence within its sound discretion in accordance with its evaluation of the defendant as an individual.

Remanded.

       The defendant underwent surgery more than 6 months after trial to remove a bowel obstruction. No medical evidence is presented suggesting that the bowel obstruction was the source of defendant’s pain during trial.


author: N.J. Kaufman, P.J.

text:
    PEOPLE v STAGGS
    Docket No. 77-1209.
    Submitted June 14, 1978, at Detroit.
    Decided August 22, 1978.
    Daniel Staggs, also known as William G. Nicholson, was found guilty of armed robbery but mentally ill, Wayne Circuit Court, Charles Kaufman, J. The defendant appeals, claiming that certain comments made by the prosecutor regarding the disposition of a defendant found not guilty by reason of insanity require reversal. Held:

    1. The comments, which were objected to by defense counsel, did not constitute reversible error. The remarks were not one-sided and calculated to prejudice the jury against the insanity defense, defense counsel responded to the comments in his own closing argument, and the court sustained defense counsel’s initial objection and gave a proper curative instruction.
    2. A comment in the prosecutor’s opening statement which related to the defendant’s mental state did not come within the prohibition against introduction of evidence relating to a defendant’s sanity before such evidence is introduced by the defense because the comment was not evidence, no testimony was offered by the prosecutor in support of defendant’s sanity until rebuttal, and the insanity issue was covered both in the voir dire questions and in defense counsel’s opening statement.
    Affirmed.
    1. Criminal Law — Instructions to Jury — Disposition of Defendant.
    A trial court must instruct a jury on the disposition of a defendant who is found not guilty by reason of insanity where such an instruction is requested by the jury or by the defense.
    2. Criminal Law — Prosecutor’s Comments — Disposition of Defendant.
    Comments by a prosecutor regarding the disposition of a defendant should the jury find him guilty but mentally ill did not constitute reversible error where the remarks were not all one-sided and calculated to prejudice the jury against the insanity defense, where defense counsel responded to the comments in his own closing argument in pleading for treatment for the defendant’s illness, and where the trial court sustained the defense’s initial objection, informed the jury that the prosecutor’s comments were merely his opinion of the law, and gave instructions to the jury on the disposition of the defendant when requested to do so by the jury.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 45.
    [2, 3] 76 Am Jur 2d, Trial § 228.

      3. Criminal Law — Prosecutor’s Comments — Insanity.
    A prosecutor’s comment in his opening statement that the jury was to "judge if these are the acts of a person who is in control of his faculties, not suffering from any type of illnesses” is not within the prohibition against the prosecutor’s introduction of evidence relating to a defendant’s sanity before such evidence is introduced by the defense; the remark was not evidence, no testimony was offered by the prosecutor in support of the defendant’s sanity until rebuttal, and the insanity issue was covered in both the voir dire questions and in defense counsel’s opening statement.

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

      Liss & Liss, P. C., for defendant on appeal.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   N.J. Kaufman, P.J.

Following a jury trial held January 19-24, 1977, defendant was found guilty but mentally ill of armed robbery. MCL 750.529; MSA 28.797. He was sentenced to a prison term of 25-40 years and appeals as of right. The basic issue involved in this appeal is one of prosecutorial comment upon the disposition of a defendant found not guilty by reason of insanity.

On June 16, 1976, police were summoned by an alarm at the Gay Pharmacy, a small drugstore in Redford Township. When police arrived at the scene, they discovered defendant in the process of taping the legs of a female employee. Testimony at trial revealed that defendant and two accomplices, armed with revolvers, had just completed a robbery of $508 from the drug store’s cash register.

The defense was insanity. Defendant and his mother, sister, and a friend gave testimony to the effect that ever since defendant had returned from military service in Viet Nam, he had been a violent and uncontrollable person, scarred by the physical and emotional injuries he had received in the war. Defendant’s mother also testified, in response to questions from defense counsel, that on several occasions she had tried to get psychiatric help for the defendant. In rebuttal the plaintiff presented the testimony of a clinical psychologist who stated that upon examination of defendant after the crime, he had found no evidence of mental illness.

Then in closing argument, the prosecutor argued the issue of disposition of the defendant following a verdict of "not guilty”:

"And what is he going to say to you? He is caught. The police officer has got him and he couldn’t have gotten out. What kind of thing is he going to tell you? He has got to tell you something. The best thing he could think of telling you is: T don’t remember and because I don’t remember I am not guilty.’ And he asks you to find him not guilty. And he said: Tell the Judge I am not guilty so he can release me, so I can go back and walk among you. ” (Emphasis added.)

At this point defense counsel objected and the following colloquy occurred:

"MR. JACKSON [Defense Counsel]: Your Honor, I am going to object to defense counsel’s [sic] statement. He is perfectly aware as to what the law provides in the case.
"THE COURT: I will sustain your objection.
"MR. TOUNSEL [Assistant Prosecutor]: The law provides if a person is found not guilty by reason of insanity, that the Judge will determine what happens to him. All right. He might go to a hospital—
"MR. JACKSON: Your Honor—
"MR. TOUNSEL: —or he might be released.
"MR. JACKSON: Your Honor, again I am going to object to what the law provides. That is for the instruction of the Court.
"THE COURT: Well, of course, counsel can give his understanding of the law. You are talking about People against Cole and the statute, right?
"MR. TOUNSEL: That is correct, your Honor.
"THE COURT: As your opinion of the law, go ahead.”

The prosecutor then continued with his closing argument:

"MR. TOUNSEL: That’s right. There will also be a chance that you will find him not guilty by reason of insanity and not guilty — just plain not guilty. And nothing will happen to him. That’s the law. And it’s possible that he will be found guilty and the law says that the Judge will determine what happens to him in that respect. I am not asking you to speculate what the Judge is going to do. I don’t even know. No one knows. It is a whole different process that has to be gone through. That’s possible. But if you ñnd him not guilty, he will be a free man, free as you and I. A free man, a man who readily admitted to having guns in that store * * * .” (Emphasis added.)

Defense counsel referred to the prosecutor’s statements at the end of his own closing argument. He stated:

"And unlike the Prosecutor, as I understand the law, first of all, Daniel Staggs has to go back to prison anyway because he is out on escape. Secondly, if you find he needs help, and the only way he can do that is to be certified as insane. Then he will be found not guilty for reasons of insanity and he has to be conñned to a hospital and he, in fact, will not walk among society. But this will be the first time in the history of his life that he has gotten any help whatsoever, if he is found guilty by reason of insanity, or not guilty for reasons of insanity. But if you indicate in your verdict insanity, Daniel Staggs will get some help. That is the only way that he can get help.” (Emphasis added.)

Then in rebuttal, the prosecutor returned to the theme of disposition:

"Now, with that having been said, if you the jury find that he has a character disorder and you think that it’s serious enough to be called mental illness but not serious enough to be called mentally insane, one of the verdicts which you will be given to give along with the other three is guilty but mentally insane — mentally ill. As a result of that verdict he will be tested and psychiatrists will determine what will happen to him. If he will go to the hospital or if anything else will happen to him. He will make a recommendation to the Judge and that recommendation will be considered by this Court or any other court in the State of Michigan.
"There is also, as he has indicated to you, not guilty by reason on [sic] insanity. You can bring back a verdict of not guilty, but the evidence does not show not guilty. The evidence does not indicate a substantial disorder that will prevent him from being able to recognize what he is doing and why he is doing it. * * *
"So, if you — if for some reason you think this man is just not a bad character in general, and if you think he has got some illness, ñnd him guilty and tell the Judge he was mentally ill so he can get some help and that he won’t walk among us a free man as you and I.” (Emphasis added.)

Following the closing arguments, the trial court instructed the jury as to the consequences of their verdicts:

"I might tell you this, what some of the consequences of your verdict may be. If your verdict is guilty, then don’t concern yourselves with what the penalty is because that’s up to the Court to make a determination on. If you find the defendant not guilty, then, of course, he is free from any consequences of this charge. If you find him not guilty by reason of insanity, or if you find him guilty but mentally ill, the Court will take such proceedings as it deems necessary under the circumstances to provide treatment and/or punishment should your verdict be guilty but mentally ill.”

Finally, in response to a jury request for further instructions on the verdict of guilty but mentally ill, the trial court included a paragraph on disposition:

"Now, what is important, I think, that the jury should understand is this: The law further says that if a defendant is found guilty but mentally ill, the Court then shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense. Then the statute goes on to say that in addition to any sentence the Court may give, that there shall be treatment given to the defendant either by the Department of Mental Health after a transfer to that department or while he is in the custody of the Michigan Corrections Commission, assuming that the Court should sentence the defendant after the jury renders a verdict.”

Defense counsel did not object to these instructions or submit a request for additional or different instructions.

In People v Cole, 382 Mich 695; 172 NW2d 354 (1969), the Court held that upon request from the jury or the defense, the trial court must instruct the jury on the disposition of a defendant found not guilty by reason of insanity. The reason for this rule was "to insure that a defendant will not be found guilty because the jury fears that he will be set free if an insanity verdict is returned”. People v Hampton, 384 Mich 669, 676; 187 NW2d 404 (1971).

In accordance with the Cole rationale, prosecutorial comment seeking to capitalize upon this fear has been labelled improper. People v Szczytko, 390 Mich 278, 293, 299; 212 NW2d 211 (1973), People v Secorski, 37 Mich App 486, 489; 195 NW2d 8 (1972), People v Lewis, 37 Mich App 548, 552; 195 NW2d 30 (1972). In Lewis and Secorski, the comments were held to warrant reversal; however, in Szczytko, the Court affirmed the defendant’s conviction where the trial court had ruled to restrict further argument on the subject and where a cautionary instruction (not requested by the defense) could have cured any possible prejudice. Similarly, in People v Blake, 58 Mich App 685, 689; 228 NW2d 519 (1975), the Court found reversal not required where the prosecutor’s comments were "brief, nonprejudicial, made in response to the remarks of defense counsel, and unobjected to at trial”.

In the case at bar we likewise do not find that the prosecutor’s comments constituted reversible error. This decision is based on several factors. First, the prosecutor never specifically made the comment that was disapproved of in prior cases, i.e., he never stated that if the jury found defendant not guilty by reason of insanity, defendant could immediately or within a short time secure his release. Defendant did not admit having committed the crime. In fact, defense counsel’s cross-examination of the eyewitnesses centered in part upon the possibility of misidentification. Had defendant admitted the crime, we could be sure that the prosecutor’s references to a verdict of "not guilty” meant, on each occasion, "not guilty by reason of insanity”. Even assuming that this is what the prosecutor meant, we are precluded from finding reversible error by the Supreme Court’s holding in Szczytko, supra. In the present case the remarks were not so inflammatory as, for example, those condemned in Lewis, supra, where the prosecutor stated that a verdict of not guilty by reason of insanity would allow defendant to "go out and shoot somebody else”, having received a "license to kill” from the jury. Here the prosecutor stated, in response to defense counsel’s objection, that defendant "might go to a hospital”; he also stated that "the judge will determine what happens to him”. Thus, the remarks were not all one-sided and calculated to prejudice the jury against the insanity defense.

Secondly, defense counsel responded to the prosecutor’s comments in his own closing argument. He skillfully used the testimony of defendant’s mother in conjunction with a plea for treatment for defendant’s illness, stating that a finding of insanity was "the only way that he can get help”. It is likely that these arguments lessened any possible prejudice caused by the prosecutor’s remarks.

Finally, the trial court’s actions also served to take much of the sting out of the prosecutor’s comments. The court sustained defense counsel’s initial objection, then informed the jury that the prosecutor’s remarks were merely his "opinion of the law”, and finally gave instructions on the disposition of the defendant pursuant to Cole, supra.

Thus, under the circumstances presented here we do not find the prosecutor’s comments to require reversal. We would, however, again caution the attorneys against arguing the issue of disposition before the jury. Such argument by either counsel is improper, Szczytko, supra, pp 293, 299, because it diverts the trier of fact from the issue to be decided by them, namely, whether or not the defendant was criminally responsible at the time of the crime. Lewis, supra, p 553.

The remaining issues raised by defendant also concern the prosecutor’s conduct, but require only brief discussion. Defendant argues that the prosecutor committed reversible error by informing the jury in opening statement that "[y]ou are to judge if these are the acts of a person who is in control of his faculties, not suffering from any type of illnesses”. Defense counsel did not object to this remark. We do not find it to come within the prohibition against the prosecution’s introduction of evidence relating to defendant’s sanity before such evidence is introduced by the defense. People v Plummer, 37 Mich App 657, 659; 195 NW2d 328 (1972). Here the prosecutor’s remark was not evidence, and no testimony was offered by the prosecutor in support of defendant’s sanity until rebuttal. Furthermore, the insanity issue was covered both in the voir dire questions and in defense counsel’s opening statement. We find no error.

Likewise, we find without merit defendant’s assignment of error relating to the prosecutor’s closing argument characterization of defendant as a violent, vicious, callous person. Defendant’s defense was precisely that he was such a person, as a result of his experiences in Viet Nam. The prosecutor’s remarks were thus a fair comment on the evidence.

Having found no reversible error, we affirm defendant’s conviction.

       MCL 768.36; MSA 28.1059.

       The trial court should have excused the jury following defense counsel’s objection.

       Instructions from CJI 7:8:07 or 7:8:08 and 7:8:10 would have been preferable, but the instructions given by the trial court adequately conveyed the crucial idea that a verdict of not guilty by reason of insanity would not necessarily mean freedom for the defendant. In addition, defense counsel did not object to the instructions as given or submit a request for additional or different instructions. GCR 1963, 516.2.


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

text:
    PEOPLE v COX
    Docket No. 77-1780.
    Submitted June 23, 1978, at Detroit.
    Decided on August 22, 1978.
    Defendant, Michael Cox, was convicted of careless discharge of a firearm resulting in death in Recorder’s Court of Detroit, Thomas G. Smith, J. The trial court refused to allow evidence of an interview of the defendant by a psychiatrist while the defendant was under the influence of a so-called "truth serum” drug and evidence of the psychiatrist’s opinion based on that interview. Defendant appeals. Held:

    There must be a showing of general scientific reliability of truth serum tests before their results can be properly admitted into evidence, and the evidence was properly excluded where the psychiatrist admitted that there wá's no medical evidence or studies on the reliability of the drug used as a "truth serum”.
    Affirmed.
    Evidence — Scientific Tests — Truth Serum Tests.
    There must be a showing of general scientific reliability of truth serum tests before their results can be properly admitted into evidence.
    References for Points in Headnote
    29 Am Jur 2d, Evidence § 831.
    Physiological or psychological truth and deception tests. 23 ALR2d 1306.

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

      Alvin C. Sallen, for defendant.
    Before: B. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   D. C. Riley, P. J.

This case involves a matter of first impression in Michigan, namely the admissibility of expert testimony concerning the results of and conclusions drawn from an interview with the defendant conducted while defendant was under the influence of brevital sodium, a so-called "truth serum” drug.

Defendant Michael Cox was tried on a charge of second-degree murder, MCL 750.317; MSA 28.549, and convicted of the lesser oifense of careless discharge of a firearm resulting in death. MCL 752.861; MSA 28.436(21). He was sentenced to one year of detention in the Detroit House of Correction and a $1,000 fine.

The incident in question began when both defendant and decedent, and several friends of both, stopped to aid a disabled motorist. An altercation ensued between defendant and decedent, with defendant eventually being pushed by decedent into the on-coming traffic lane, and culminating in the shooting which caused decedent’s fatal injury.

Defendant testified that after decedent pushed him into the road, he saw decedent approaching him armed with a baseball bat. Defendant asserted that he fired the fatal shots in self-defense. There was conflicting testimony from other witnesses as to whether decedent, or anyone present, was armed with a bat. However, at the scene of the shooting, the police found a bat in the car of decedent’s friend.

At trial the defense sought to introduce the testimony of a psychiatrist who had interviewed defendant after administering a dose of brevital sodium. On a special record the tape recording of that interview was played. The psychiatrist testified that in his opinion the defendant truthfully believed that he had seen decedent armed with a baseball bat. The psychiatrist testified also that his opinion was based solely upon this interview. The trial court ruled that the tape and the testimony concerning the results of the interview and the psychiatrist’s opinion were inadmissible. The psychiatrist was allowed to testify generally on certain psychiatric conditions and occurrences, but without reference to defendant or the particular case.

As stated previously, no Michigan case has as yet dealt specifically with the admissibility of the results of a truth serum test. Therefore, we must look for the standards for admissibility by analogy to similar forms of scientific testing evidence. The most appropriate analogy is to polygraph evidence.

The standard for admissibility of polygraph results is the so-called Davis/Frye test, which was recently reaffirmed by the Supreme Court in People v Barbara, 400 Mich 352, 357-358; 255 NW2d 171 (1977):

"The Michigan test presently applied to determine the admissibility of polygraph testimony is that which we enunciated in People v Becker, 300 Mich 562, 566; 2 NW2d 503 (1942), and repeated with approval in People v Davis, 343 Mich 348, 370; 72 NW2d 269 (1955), that there be:
" 'testimony offered which would indicate that there is at this time a general scientific recognition of such [polygraph] tests. Until it is established that reasonable certainty follows from such tests, it would be error to admit in evidence the result thereof.’
"In Becker and in Davis we concluded that 'the results of such tests have not, as yet, reached the stature of evidence admissible in a court of law’. 343 Mich 370.
"This follows the traditional test used in other jurisdictions, which, as originally set forth in Frye v United States, 54 US App DC 46, 47; 293 F 1013, 1014 (1923), requires:
" '[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” 400 Mich at 357-358.

Tests similar to the Davis/Frye standard, which require a showing of a general scientific reliability of truth serum tests prior to admission of the evidence, have been employed by other states which have ruled on evidence obtained by the use of such drugs. See Cain v State, 549 SW2d 707 (Tex Crim App, 1977), State v Linn, 93 Idaho 430; 462 P2d 729 (1969), State v White, 60 Wash 2d 551; 374 P2d 942 (1962), People v Ford, 304 NY 679; 107 NE2d 595 (1952). The large majority of states which have applied this type of standard to truth serum evidence has found it lacking in scientific recognition and accordingly excluded it from admission. See 3 Wharton’s Criminal Evidence (13th ed), § 630, pp 249-253; Anno: Admissibility' of physiological or psychological truth and deception test or its results to support physician’s testimony, 41 ALR3d 1369.

Applying this test to the case at bar, we find that the trial judge correctly ruled that the results of the brevital sodium test, and the witness’s opinions relating to those results, were inadmissible. The psychiatrist himself admitted upon inquiry from the court that there was no medical evidence or studies on the reliability of this drug as a truth serum. Absent such evidence, the court was obligated to rule that the testimony was too uncertain to be allowed before a jury, where it would have had a potentially significant impact.

Affirmed.

       This result is not altered by the recently adopted Michigan Rules of Evidence. MRE 702 reads:
      "If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
      The scientific recognition standard adopted in this opinion for the admissibility of truth serum evidence is expressly included within the rule.