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

text:
    MICHIGAN UNITED CONSERVATION CLUBS v ANTHONY
    Docket Nos. 77-1299, 78-503.
    Submitted May 2, 1978, at Grand Rapids.
    Decided May 9, 1979.
    Michigan United Conservation Clubs (MUCC) brought an action, under Michigan’s Environmental Protection Act (EPA), against Donald Anthony, Jacob Anthony, Bay Mills Indian Community and all other persons who claim by virtue of Indian treaty rights with the United States the right to fish in the waters of the State of Michigan without compliance with the fish and game laws and rules and regulations of the State of Michigan and claimed that the defendants’ commercial fishing activities have impaired and destroyed large portions of the fish population in the areas of the Great Lakes off the shores of Grand Haven and Whitefish Bay and that if such activities were allowed to continue it would likely impair and destroy the fish population of the Michigan waters of the Great Lakes. The plaintiff requested temporary and permanent injunctive relief. Ottawa Circuit Court, Raymond L. Smith, J., determined that the defendants were engaging in activities tending to impair or destroy the fish population in the Great Lakes and issued a permanent injunction prohibiting the defendants from engaging in commercial fishing in the Michigan waters of the Great Lakes without compliance with the rules and regulations of the Michigan Department of Natural Resources. Jacob Anthony and Bay Mills Indian Community appeal. Donald Anthony appeals separately, by leave granted. The two appeals were consolidated for consideration. On appeal, the defendants seek to have the injunction set aside, claiming 1) that MUCC did not meet its burden of proof and, therefore, was not entitled to injunctive relief and 2) that the commercial fishing law is inconsistent with the rights granted to the defendants under the Treaty of 1836 and that the commercial fishing laws must yield to the treaty. Held:

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 703, 967.

       29 Am Jur 2d, Evidence §§ 4,10.
    61 Am Jur 2d, Pollution Control § 176 et seq.

       35 Am Jur 2d, Fish and Game § 1.

       35 Am Jur 2d, Fish and Game §§ 38, 48.
    15A Am Jur 2d, Commerce § 93.

       41 Am Jur 2d, Indians § 24.

       41 Am Jur 2d, Indians §§ 13, 14, 19.
    16 Am Jur 2d, Constitutional Law §§ 470, 472.

       29 Am Jur 2d, Evidence § 142.

       41 Am Jur 2d, Indians § 19.
    35 Am Jur 2d, Fish and Game § 29 et seq.

       41 Am Jur 2d, Indians §§ 11, 19.

       41 Am Jur 2d, Indians § 19.
    35 Am Jur 2d, Fish and Game §§ 6, 29 et seq.

      1. Under the EPA a plaintiff is only required to make a prima facie case that a defendant’s conduct "has or is likely to pollute, impair or destroy the air, water or other natural resources”. The plaintiff adequately established that the conduct of the Anthonys would probably be injurious to the fish population, thus meeting the EPA standard of probable harm. The defendants Anthony failed to rebut the plaintiff’s prima facie case. An injunction may issue under the EPA to prevent conduct that will have a probable injurious effect upon a natural resource of the state. The injunctive relief was proper as to both Anthonys. However, the record fails to reveal that any other of the defendants engaged in unregulated fishing, thus the plaintiff failed to establish a prima facie case as to defendants Bay Mills and "All Other Indians”.
    2. The defendants possess fishing rights pursuant to the Treaty of 1836, but these rights do not extend to commercial fishing of planted fish, such as lake trout.
    3. Even if the existing treaty right extends to the commercial fishing of all varieties of fish, the fishing laws and regulations promulgated by the Department of Natural Resources are not precluded by the off-reservation fishing rights of the Indians under the Treaty of 1836, as long as all citizens, Indian and non-Indian, are treated equally. The prohibitions of the regulations of commercial fishing do not require the Indians to yield a protected interest in order to promote the welfare of the state’s other citizens.
    The injunction is affirmed as to defendants Donald Anthony and Jacob Anthony and dissolved as to defendants Bay Mills and "All Other Indians”.
    1. Appeal and Error — Equity — De Novo Review.
    Appellate review of an equity proceeding is de novo.

      2. Health and Environment — Environmental Protection Act — Actions — Probability of Harm to Environment — Statutes.
    A plaintiff, in an action brought under the Environmental Protection Act, is only required to make a prima facie case that a defendant’s conduct has or is likely to pollute, impair or destroy the air, water or other natural resources; such a showing is not restricted to actual environmental degradation but also encompasses probable damage to the environment as well (MCL 691.1201 et seq.; MSA 14.528[201] et seq.).

    3. Fish — Great Lakes — Michigan Waters — Property of State — Statutes.
    The fish in the Michigan waters of the Great Lakes are the property of the state; the fish are held in trust for all the people of the state in their collective capacity (MCL 308.1; MSA 13.1491).
    4. Fish — Great Lakes — Michigan Waters — Natural Resources — Environmental Protection Act — Injunctive Relief — Statutes.
    The fish population in the Michigan waters of the Great Lakes is a natural resource of the state and an injunction may issue under the Environmental Protection Act to prevent conduct that will have a probable injurious effect upon the fish (MCL 691.1201 et seq.; MSA 14.528[201] et seq.).

    5. Indians — Tribal Organizations — Sovereign Immunity — Individual Members.
    Indian tribal organizations possess sovereign immunity, but such immunity does not extend to its individual members.
    6. Indians — Citizenship — Fishing Laws — Department of Natural Resources — Regulations — Treaty Rights — Statutes.
    The members of the various Indian tribes are citizens of the United States and are citizens of the state in which they reside; therefore, individual members of an Indian tribe who live in Michigan are subject to the laws of the State of Michigan, including the provisions of the commercial fishing law together with regulations promulgated by the Director of the Department of Natural Resources, unless granted special treaty rights (MCL 308.1 et seq.; MSA 13.1491 et seq.).

      7. Indians — Fishing Rights — Treaty Rights — Commercial Fishing Laws — Regulations — Affirmative Defenses.
    Parties who are asserting, as an affirmative defense, that the state commercial fishing law is inconsistent with rights granted to them under a treaty between the United States and the Indian tribe of which they are members and that the provisions of the commercial fishing law must therefore yield to the treaty bear the burden of proof of this defense, the same as with any other affirmative defense.
    8. Indians — Treaties — Fish — Commercial Fishing — Department op Natural Resources.
    The fishing rights granted to Indians under the Treaty of 1836 do not extend to the commercial fishing of fish planted in the Great Lakes by the Department of Natural Resources, such as lake trout.
    9. Indians — Treaties — Fish — Commercial Fishing — Regulations.
    A validly existing treaty right of certain Indians to commercially catch all varieties of fish, assuming that such a right does exist, does not preclude the enforcement of state fishing regulations as long as the regulations affect all citizens, Indian and non-Indian equally, and the regulations concern a subject not covered by the treaty.
    10. Indians — Treaties — Fishing Rights — States — Regulations.
    The state has limited authority to regulate Indian fishing rights under a Federal treaty; but regulation is valid only if (1) it is necessary for the preservation of the fish protected by the regulation; (2) the application of the regulation to the Indians holding off-reservation fishing rights is necessary for the preservation of the fish protected; and (3) the regulation does not discriminate against the treaty Indians.
    11. Fish — Commercial Fishing — Department op Natural Resources — Regulations — Indians — Treaty Rights.
    Commercial fishing regulations promulgated by the Department of Natural Resources are applicable to all individuals fishing in the Michigan waters of the Great Lakes; the prohibitions of these regulations are shared equally by all fishermen and do not require Indians who have protected interests under a Federal treaty to yield their protected interests in order to promote the welfare of the state’s other citizens.

      Wheeler, Upham, Bryant & Uhl (by Robert H. Gillette), for plaintiff.

      James M. Jannetta, Upper Peninsula Legal Services, Inc., Kathryn L. Tierney, Bay Mills Indian Community, and Bruce R. Green, Native American Rights Fund, for defendants Jacob Anthony and Bay Mills Indian Community.

      Eleesha M. Pastor, Michigan Indian Legal Services, for defendant Donald Anthony.
    Before: D. E. Holbrook, Jr., P.J., and Bashara and R. M. Maher, JJ.
   D. E. Holbrook, Jr., P.J.

Defendants appeal a trial court determination that they are engaging in activities tending to impair or destroy the fish population in the Great Lakes and to set aside a perpetual injunction prohibiting them from engaging in commercial fishing in the Michigan waters of the Great Lakes without compliance with the rules and regulations of the Michigan Department of Natural Resources, hereinafter referred to as the DNR.

Plaintiff, hereinafter referred to as MUCC, had filed suit under Michigan’s Environmental Protection Act, hereinafter referred to as the EPA, MCL 691.1201 et seq.; MSA 14.528(201) et seq., claiming that defendants’ commercial fishing activities have impaired and destroyed large portions of the fish population in the areas off the shores of Grand Haven and Whitefish Bay and that if such activities were allowed to continue it would likely impair and destroy the fish population of the Michigan waters of the Great Lakes. Plaintiff requested temporary and permanent injunctive relief.

A temporary injunction was issued restraining the defendants from fishing in the waters of the State of Michigan without "adherence to the rules and regulations of the Department of Natural Resources and the statutes of the State of Michigan pertaining to commercial fishing and the use of illegal commercial fishing equipment”. The matter was brought on for hearing and the court rendered its opinion finding that:

"There is abundant proof that regulation of fishing on the Great Lakes is necessary for the conservation of the fish population and at least for some time to come more reason exists to protect the new plants and survivors so that this natural resource may be restored to the extent that modern means and purpose provides.
"In the opinion of the Court the defendants herein have no existing Treaty Rights to fish but if they have that it is subject to non-discriminating regulation in the interest of conservation.”

Subsequent thereto a perpetual injunction was issued as described in paragraph one of this opinion.

A motion for a new trial was then filed which was held in abeyance pending the Supreme Court’s opinion in People v LeBlanc, 399 Mich 31; 248 NW2d 199 (1976). Following such decision an amended opinion and order were issued, which stated:

"IT IS ORDERED that plaintiffs shall have judgment in the above entitled cause and the defendants, and all other persons similarly situated who claim under the treaty executed March 28, 1836, between the Ottawa Indians and the Chippewa Indians and the United States Government in Washington, D.C. or under the treaty entered into on July 31, 1855, between the same parties have the right to fish in the Great Lakes Waters of the State of Michigan; but in respect to commercial fishing only in compliance with the provisions of the rules and regulations of the Michigan Department of Natural Resources, and that defendants shall be and hereby are perpetually enjoined from commercial fishing in the Michigan Waters of the Great Lakes without compliance with the rules and regulations of the Michigan Department of Natural Resources.”

From this opinion and order defendants appeal.

In reviewing the decision of the trial court we are required to make three inquiries. First we must ascertain whether injunctive relief under the EPA was properly granted. An affirmative response to this question will then require the determination of the existence of an applicable Indian treaty fishing right; and if so found, a determination whether this right is absolute or susceptible to regulation.

I

Injunctions under the EPA.

Defendants claim MUCC did not meet its burden of proof and, therefore, was not entitled to injunctive relief. This proceeding being equitable in nature, our review is de novo. Papin v Demski, 383 Mich 561; 177 NW2d 166 (1970).

Under the EPA a plaintiff is only required to make a prima facie case that:

"the defendant’s conduct 'has or is likely to pollute, impair or destroy the air, water or other natural resources’. (Emphasis added.) Such a showing is not restricted to actual environmental degradation but also encompasses probable damage to the environment as well.” Ray v Mason County Drain Comm’r, 393 Mich 294, 309; 224 NW2d 883 (1975).

The word "impair” is defined as:

"To weaken, to make worse, to lessen in power, diminish, or relax, or otherwise affect in an injurious manner. ” Black’s Law Dictionary (Rev 4th Ed). (Emphasis supplied.)

The fish in the Michigan waters of the Great Lakes are the property of the state, MCL 308.1; MSA 13.1491. Aikens v Dep’t of Conservation, 28 Mich App 181, 183; 184 NW2d 222 (1970). In essence it holds that the fish are held in trust for all the people of the state in their collective capacity. The fish population in the Great Lakes is a natural resource of the state, and an injunction may issue under the EPA to prevent conduct that will have a probable injurious effect upon same.

The EPA requires that the trial court make certain findings of fact to substantiate its actions. Ray v Mason County Drain Comm’r, supra, at 308-309. We find the trial court’s findings to be sufficient to comply with Ray.

The trial court in its initial opinion found that:

"And now to the matter of conservation. Commercial fishing on the Great Lakes has been recorded since 1820. In former days it was a fluorishing industry. There can be no doubt but what Indians engaged in this commercial venture. Late in the 1800’s the State began to regulate this industry since it then appeared that it was not an inexhaustible resource as previously believed. In 1908 sport fishing regulations first appeared. By 1960 both commercial and sport fishing had fallen off to the extent that the authorities became alarmed at the loss of this natural resource. In 1964 it became apparent that the Great Lakes would have to be replenished to restore Lake Trout as a natural resource. The war on the lamprey began with successful results, salmon were introduced for the dual purpose of aiding in the eradication of the ale-wife and as a new food resource, and regulations limited the use of the gill net and zoning the waters for the protection of new plantings were promulgated.
"The DNR discovered that only 10% of a plant survived the first year, most of the mortality coming from natural causes, but indicating that the survivors needed protection in order to live to maturity. A four phase program was inaugurated by the DNR to the end that a viable fishing resource could again be established in the waters of the Great Lakes. This program required 1. Sea Lamprey control, 2. Planting of large numbers of fish, 3. Regulation of the catch by both commercial and sports fishermen, 4. Pollution Control.
"It is well established by convincing evidence that the nylon gill-net, a non-selective device, was a most lethal tool. That when a modern commercial fisherman was equipped with modern gear, including electronic locating devices, powered ñshing tugs and lifting winches that could haul in miles of nets, that there was no limit to the catch. When such a fisherman invaded the vulnerable zones and depths where fish were in large numbers at certain seasons the chance for survival was small.
"In the opinion of the Court the need for regulation of both commercial and sport fishing in the Great Lakes at this critical time was vividly demonstrated.
"There is abundant proof that regulation of fishing on the Great Lakes is necessary for the conservation of the fish population and at least for some time to come more reason exists to protect the new plants and survivors so that this natural resource may be restored to the extent that modern means and purpose provides.” (Emphasis supplied.)

The trial court reiterated these findings in its amended opinion saying:

"Unlike LeBlanc the proofs in this case before this Court are overwhelmingly convincing that unregulated ñshing could and would deplete the ñsh resources of the Great Lakes to the extent that they would become nonexistent.” (Emphasis supplied.)

These findings clearly indicate that modern commercial fisherman equipped with lethal gill nets, a powered fishing tug and lifting winches capable of hauling in miles of nets would deplete the fish resources of the Great Lakes. Evidence at trial supports such findings. Jacob Anthony, using such methods, was able to catch approximately 4.95 percent of the total number of lake trout in Whitefish Bay. Donald Anthony, also fishing with these same methods, in the Grand Haven-Muskegon area from April 20, 1971, to September 15, 1971, caught approximately 4.77 percent of the lake trout in that area.

Review of the record fails to reveal that either Bay Mills, as a community, or "All Other Indians” engaged in unregulated fishing, and therefore plaintiff has failed to establish a prima facie case as to defendants Bay Mills and "All Other Indians”. Accordingly the judgment as to them is reversed. The evidence does, however, substantiate the trial court’s findings that the Anthonys’ commercial fishing without compliance with the rules and regulations of the DNR, if allowed to continue, would result in a probable impairment of the population of the lake trout in the Great Lakes. Hence, the trial court’s finding that MUCC had established a prima facie case as to both Anthonys is affirmed.

Had the Anthonys been allowed to fish for the balance of the year, in the same manner as they had been doing, their total catch would have been correspondingly higher. The impact upon the fish population, while not precisely ascertainable, would, in both the trial court’s and our opinion, probably be injurious to that fish population. Since the standard of the EPA is probable rather than guaranteed harm, defendants have failed to rebut the plaintiff’s prima facie case.

II

The affirmative defense of treaty fishing rights.

Holding as we do that the injunctive relief granted was proper as to both Anthonys, we must now address the issue of treaty fishing rights.

The tribal organizations possess sovereign immunity, United States v United States Fidelity & Guaranty Co, 309 US 506; 60 S Ct 653; 84 L Ed 894 (1940), but such immunity does not extend to its individual members. Puyallup Tribe Inc v Dep’t of Game of Washington, 433 US 165; 97 S Ct 2616; 53 L Ed 2d 667 (1977). The members of the various Indian tribes are citizens of the United States and citizens of the state within which they reside. Defendants Donald and Jacob Anthony are thus subject to the laws of the State of Michigan, and in particular the provisions of the commercial fishing law together with the regulations promulgated by the Director of the Department of Natural Resources, unless granted special treaty rights.

As an affirmative defense the Anthonys’ claim that the commercial fishing law is inconsistent with the rights granted them under the Treaty of 1836, and its provisions must therefore yield to said treaty. As with other affirmative defenses, the party asserting same has the burden of proof. Redding v Snyder, 352 Mich 241; 89 NW2d 471 (1958), Parker v The Associates Discount Corp, 44 Mich App 302; 205 NW2d 300 (1973).

We are not convinced however that the fishing rights reserved by the Treaty of 1836 have any applicability in this instance. The fish involved in this case are lake trout, which were for all practical purposes eradicated from the Great Lakes by the early 1960’s. Their present existence in any significant quantities is due entirely to the DNR’s restocking program. The question arises whether the Treaty of 1836 has any applicability to commercial fishing of planted fish. In a series of cases involving the treaty fishing rights of the Puyallup Indians, who were engaged in commercial fishing, the United States Supreme Court stated that:

"It is only to this run [naturally propagated fish] that Indian treaty rights extend.” Dep’t of Game of Washington v Puyallup Tribe, 414 US 44, 49-50; 94 S Ct 330; 38 L Ed 2d 254 (1973) (White, J., concurring).

In subsequent litigation, the Supreme Court of Washington indicated that:

"[T]he rights secured to the tribe under the treaty did not encompass artificially propagated sources of fish.” The Dep’t of Game v Puyallup Tribe, 86 Wash 2d 664, 682; 548 P2d 1058 (1976).

We find the reasoning of those courts to be applicable to the instant case. Accordingly, we find that defendants possess fishing rights pursuant to the Treaty of 1836, but that these rights do not extend to commercial fishing of planted fish such as lake trout.

III

Regulations affecting Indian off-reservation ñshing rights.

Assuming arguendo that defendants have a validly existing treaty right to commercially catch all varieties of fish, does the existence of this right preclude the enforcement of state fishing regulations? We are convinced that it does not as long as the regulations affect "all citizens, Indian and non-Indian equally”, Dep’t of Game v Puyallup Tribe, supra, 86 Wash 2d, at 678, and the regulations concern a subject not covered by the applicable treaty. Where the treaty does not address the specific methods of fishing to be employed:

"[T]he manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.” Puyallup Tribe v Dep’t of Game of Washington, 391 US 392, 398; 88 S Ct 1725; 20 L Ed 2d 689 (1968), and LeBlanc, supra, at 60.

The Treaty of 1836 does not address any of these enumerated matters, thus the regulations issued by the DNR may be applied to treaty Indians if:

"(1) It is necessary for the preservation of the fish protected by the regulation;
"(2) the application of the regulation to the Indians holding the off-reservation right is necessary for the preservation of the fish protected;
"(3) and the regulation does not discriminate against the treaty Indians.” LeBlanc, supra, at 36.

The regulation of commercial fishing by the DNR must therefore be measured against this standard.

The requirement that the regulation be "necessary for the preservation of the fish protected by the regulation” does not mean that the fish would die out but for the regulations; but rather that it is a "reasonable and necessary conservation measure”. LeBlanc, supra, at 62. We find that it is. The term conservation was defined by LeBlanc as measures that serve "to perpetuate the fish to be protected”. LeBlanc, supra, at 63. Permitted measures to provide for the preservation of fish are not to be limited to the minimum efforts necessary to prevent extinction, but extend to all measures calculated to allow a species to maintain a present population level or to rise to a desired population level.

The record developed clearly demonstrates that the regulation of commercial fishing is a reasonable and necessary conservation measure that is calculated to maintain a stable lake trout population in the Michigan waters of the Great Lakes. Accordingly we find that the regulation of commercial fishing is necessary for the preservation of the fish protected by the regulation.

LeBlanc, supra, at 36, also requires the state to show that "the application of the regulation to the Indian holding the off-reservation fishing right is necessary for the preservation of the fish protected”. Thus the regulation of commercial fishing can only be applied to Indians possessing off-reservation fishing rights when failure to do so would frustrate a reasonable conservation measure. The record is again conclusive on this issue. The trial court, based upon the massive amounts of lake trout caught by the Anthonys through the use of gill nets, concluded that the continued existence of such unregulated commercial fishing "would deplete the fish resources of the Great Lakes to the extent that they would become non-existent”. We agree with this conclusion and find that the regulation of commercial fishing must be applied to Indians possessing off-reservation fishing rights in order to preserve the fish sought to be protected, and to avoid frustration of a reasonable conservation measure.

The final requirement is that the application of a regulation must not discriminate against the Indians. Indians cannot be required to "yield their own protected interests in order to promote the welfare of the state’s other citizens”. LeBlanc, supra, at 63. The reserved right to fish is a nonexclusive right that is held "in common with the citizens of the State of Michigan”. LeBlanc, supra, at 61. Rights held "in common” between the state’s citizens and nonexclusive off-reservation treaty fishermen have been determined to be the right to "share equally, with other citizens the opportunity to take fish”. Dep’t of Game v Puyallup Tribe supra, 86 Wash 2d at 675.

The commercial fishing regulations promulgated by the DNR are applicable to all individuals fishing in the Michigan waters of the Great Lakes. The prohibitions of these regulations are equally shared by all fishermen, and do not require the Indians to yield their protected interests in order to promote the welfare of the state’s other citizens. Accordingly, we find that the application of the instant regulations do not discriminate against the treaty Indians.

We therefore hold that the application of the commercial fishing law and its applicable regulations to Indians exercising fishing rights reserved by the Treaty of 1836, if such rights were in fact reserved, is permissible and that the provisions of the commercial fishing law may be enforced against them.

The decision and injunctive relief ordered as to defendants Donald Anthony and Jacob Anthony are affirmed. The injunction issued as to defendants Bay Mills and "All Other Indians” is dissolved. No costs, a public question involved.

       Our holding that the Anthonys’ methods of fishing must be enjoined while permitting other Indian net fishing to continue is based upon the degree of proven harm each was causing to the lake trout population. In the event that other Indian net fishing should increase above 1972 levels, EPA injunctive relief against them may be appropriate in the future.

       Act of June 2, 1924, 43 Stat 253, as superseded by § 201(b) of the Nationality Act of 1940, 54 Stat 1137,1138, 8 USC 1401(a)(2).

       US Const, Am XIV, §1.

       MCL 308.1 et seq.; MSA 13.1491 et seq.

       1954 Administrative Code R 299.721-R 299.891.

       This construction was approved sub silentio by the United States Supreme Court in Puyallup Tribe v Dep’t of Game of Washington, 433 US 165; 97 S Ct 2616; 53 L Ed 2d 667 (1977).


source: Caselaw Access Project

author: R. B. Burns, P.J. Allen, J.

license: Public Domain

text:
    PEOPLE v McGEE
    Docket No. 30165.
    Submitted March 7, 1979, at Grand Rapids.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Defendant, Harry W. McGee, was convicted of felony-murder in Kalamazoo Circuit Court, Raymond W. Fox, J. At trial a prosecution witness on direct examination testified to having first met defendant in jail. Defendant requested a mistrial, which was denied. Defendant appeals. Held:

    The trial court erred in denying defendant’s request for a mistrial and the fact that defendant later testified is immaterial.
    Reversed.
    Allen, J., dissented. He would hold that, under the circumstances, any error committed was not so prejudicial as to require reversal.
    Opinion of the Court
    1. Criminal Law — Evidence — Prior Criminal Conduct.
    It was reversible error for a trial judge in a felony-murder trial to deny a defense motion for a mistrial where the prosecutor elicited from his own witness the fact that the witness and the defendant had first met in jail, where the fact was not germane to the prosecution, where there was no claim of conspiracy and where the defendant had not yet testified; the fact that the defendant eventually did testify is immaterial.
    Dissent by Allen, J.
    2. Criminal Law — New Trial — Abuse of Discretion — Witnesses — Defendant’s Past Incarceration.

      It was not an abuse of a trial court’s discretion to deny a defendant’s motion for a mistrial based upon testimony, elicited during direct examination of a prosecution witness, alluding to

      the defendant’s past incarceration where the prosecutor neither hoped for nor anticipated the elicitation of prejudicial testimony from his line of questioning of the witness and where there is an absence of a persuasive showing of prejudice.

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 269.
    4 Am Jur 2d, Appeal and Error § 541.

       75 Am Jur 2d, Trial § 127.

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

      Thomas J. Hirsch, for defendant.
    Before: R. B. Burns, P.J., and Allen and Mackenzie, JJ.
   R. B. Burns, P.J.

Defendant appeals his jury-based conviction of felony-murder, murder during the perpetration or attempt to perpetrate a robbery, contrary to MCL 750.316; MSA 28.548.

Prior to defendant’s decision to testify, the prosecutor questioned a witness as follows:

"Q Now, did you know [defendant] prior to seeing him [in jail after his arrest]?
"A I have met him before in 1971 in the County Jail, also [sic], ”

The prosecutor should have anticipated the answer to his question and that a response would inform the jury of defendant’s prior conviction. It was his witness.

The fact of defendant and the witness having met once earlier in jail was in no way germane to the prosecution. There was no claim of conspiracy and, since defendant had not yet testified, his previous imprisonment was not admissible as bearing on credibility. That he did eventually take the witness stand is of no moment. He may have refrained from testifying but for the compulsion of this disclosure. Defendant’s request for a mistrial should have been granted. People v Greenway, 365 Mich 547; 114 NW2d 188 (1962).

Reversed.

Mackenzie, J., concurred.

Allen, J.

(dissenting). I must respectfully dissent. Revealing to the jury that defendant was in the county jail in 1971 was unfortunate but, in the context of this case, I do not believe it amounts to reversible error. The testimony in question was given by a witness who testified that defendant had admitted that he had previously stolen the murder weapon. To begin with, the reference was fleeting and never emphasized by the prosecution. Further, the record does not indicate that the prosecutor intended to elicit the testimony, and the questionable testimony was certainly gratuitous in regard to the question asked. This is not to say that the prosecutor did not know that the witness and defendant were acquainted while in jail in 1971. But that fact is hardly dispositive. The question asked by the prosecutor was reasonable. It was material as to the credibility of the witness, who testified that someone admitted a crime to him, to know that the witness and the someone had been previously acquainted.

In People v Greenway, 365 Mich 547; 114 NW2d 188 (1962), relied upon by the majority, alleged accomplices admitted committing the offense and incriminated defendant. One accomplice recanted while on the stand and the prosecutor, knowing the answer, asked, "Where did you meet William Greenway (defendant)?” This was a very direct question with only one response expected. The answer was, "In the Arkansas prison”. The Green-way Court found that the prosecution "clearly anticipated or hoped for” the response received and that the question was "calculated to prejudice the minds of the jurors against defendant”. 365 Mich 547, 549, 550, 551.

There was no such anticipation or calculation behind the question in this case. Moreover, in the instant case there were other points in the trial where defendant was linked to other crimes (the murder weapon was traced to a theft and the witess whose testimony is here in question spoke with defendant while they were both in prison in 1975), and hence the prejudicial impact in this case was less than that in Green way. To summarize: — I find Green way distinguishable on the basis of the question asked, the context in which it was asked, and the resulting prejudice to defendant.

A case more on point than Greenway is People v McQueen, 85 Mich App 348; 271 NW2d 231 (1978), where the prosecutor asked, "How long had you known him [defendant] up to that time?” and the witness replied, "I first met him, it was either late part of August, first part of September, when he gotten out of county jail”. 85 Mich App 348, 350. The McQueen Court found no error on this point.

A subsidiary reason for not finding reversible error in this case is defense counsel’s responsibility for the failure of the court to give a cautionary instruction. Defense counsel requested such an instruction shortly after the witness’s reference to defendant’s 1971 imprisonment. The court replied it wished to wait to see whether defendant took the stand as this could make an instruction on just this reference unnecessary. The court asked defense counsel to remind him and defense counsel asked to be relieved of the "responsibility”. Defense counsel never reminded the court and no instruction was ever given.

Under our system of jurisprudence it is the responsibility of counsel to request instructions. People v DerMartzex, 390 Mich 410, 416; 213 NW2d 97 (1973), People v Chism, 390 Mich 104, 120-121; 211 NW2d 193 (1973). Rather than force a trial judge to instruct on every potential error, no matter how harmless, trial counsel has the role of bringing damaging errors to the court’s attention in order to correct them. The minimal impact the present error (if error) had at trial is probably the reason defense counsel failed to remind the court about an instruction. Under these circumstances it was not error for the court not to give a cautionary instruction.

Since I find no error in any of the issues raised on appeal, I would affirm.

       "THE COURT: Well, remind me of that after the proofs are all in. Now, what I have in mind is if it develops that he takes the witness stand and testifies to a conviction of a felony, at that time then I don’t see as there is any harm in it. There may not be any harm in it anyway. All the witnesses — well, I suppose the prosecutor knew where he met him. When you asked him where he met him I thought he was going to say on the street or a tavern or something. It never entered my mind.”


author: Cynar, P.J.

text:
    PEOPLE v TORREZ
    Docket No. 31097.
    Submitted November 15, 1978, at Lansing.
    Decided May 21, 1979.
    Leave to appeal applied for.
    Henry A. Torrez was convicted of delivery of heroin, Saginaw Circuit Court, Eugene Snow Huff, J. The defendant appeals, alleging that 1) reversible error occurred as a result of the prosecutor’s failure to reveal to the defendant the existence of perjury charges pending against an informant who was a witness at the defendant’s trial, 2) the trial court erred in admitting into evidence testimony by the informant regarding another heroin buy from defendant which occurred after the sale for which the defendant was tried, 3) the 37-day delay between the time of the offense and time of arrest violated due process, and 4) the prosecutor committed reversible error by cross-examining the defendant in a way which intimated that the defendant had been convicted of some prior offense. Held:

    1. Evidence of a pending perjury charge against the informant could have been used to assist defense counsel in attacking the key witness’s credibility. This evidence was material as to the defendant’s guilt. The suppressing of this information by the prosecutor after the defendant had requested information concerning charges pending against the informant requires that a new trial be ordered.
    2. There was insufficient information in the record to enable the Court of Appeals to conclude that the evidence of the subsequent sale was admissible under the similar acts statute. Unless the prosecution comes forward with sufficient additional detail to justify admission under the statute, this evidence should be excluded upon retrial.
    3. The defendant demonstrated no prejudice from the delay between the time of the offense and the time of arrest. There was no violation of due process.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 225.

       81 Am Jur 2d, Witnesses §§ 663, 666.

       30 Am Jur 2d, Evidence §§ 1080-1087.

       29 Am Jur 2d, Evidence § 298.

       21 Am Jur 2d, Criminal Law §§ 243, 248, 251.

       75 Am Jur 2d, Trial § 269.

      4. There was no reversible error occasioned by the prosecution’s question of the defendant asking if he was sure he had a spotless record, which the defendant maintained he had, and the reminder to the defendant that he was under oath.
    Reversed and remanded for a new trial.
    1. Criminal Law — Evidence — Evidence Favorable to Accused — Suppression of Evidence.
    Suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material either to guilt or to punishment and a request for the information is made by the defendant; where no request is made, the prosecutor is under a more limited duty to disclose potentially exculpatory evidence.
    2. Witnesses —- Criminal Law — Pending Charges — Admissibility — Impeachment.
    A criminal defendant is permitted to use evidence of pending charges against a prosecution witness to bring out the witness’s bias or interest, if any, affecting the outcome of the case.
    3. Witnesses — Criminal Law — Evidence — Credibility of Witnesses — Fair Trial.
    Evidence concerning the credibility of a witness is relevant toward insuring that a defendant receives a fair trial.
    4. Criminal Law — Evidence — Heroin — Similar Acts — Statutes.
    Evidence of a heroin sale by a defendant to an informant subsequent to the sale of heroin to the same informant prior to his arrest for the sale for which the defendant is being tried is not admissible under the similar acts statute where no details of the subsequent sale have been brought out (MCL 768.27; MSA 28.1050).
    5. Criminal Law — Delay in Arrest — Prejudice — Due Process — Burden of Proof.
    A defendant who seeks a dismissal of charges against him arguing that the delay between the time of the offense and the time of his arrest violated due process must show some prejudice resulting from the delay.
    6. Criminal Law — Questioning by Prosecutor — Prior Convictions.
    Questioning of a defendant by a prosecutor whereby the prosecutor asked the defendant if he was sure that he had a spotless record and reminded the defendant that he was under oath did not result in reversible error where the questioning was brief and no prejudice could have resulted as the defendant denied having been previously convicted.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Michael C. Weiss, Assistant Prosecuting Attorney, for the people.

      Nicholas Smith, for defendant on appeal.
    Before: Cynar, P.J., and R. B. Burns, and M. B. Breighner, JJ.

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

   Cynar, P.J.

Defendant was charged with delivery of heroin, a violation of MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Following a lengthy jury trial in August of 1976, he was found guilty as charged. On November 22, 1976, defendant was sentenced to a term of 10 to 20 years imprisonment. He now appeals as of right.

The prosecution’s case was established primarily by the testimony of Alfredo Velasquez, a police informant. On August 26, 1975, Velasquez met with two members of the Michigan State Police to arrange a heroin purchase from defendant. Pursuant to this plan, Velasquez called the LaFamilia restaurant in Saginaw and arranged to meet defendant there later in the day.

Before departing for this meeting Velasquez was strip-searched and his car searched as well. The officers then followed the informant in separate cars to the restaurant. Upon arrival at the restaurant, the officers maintained surveillance over Velasquez, who entered the restaurant and ordered a meal. Once defendant arrived, he and Velasquez departed and drove to the DeLaCruz home in Saginaw. The officers followed the pair, maintaining their surveillance.

Upon arrival at the DeLaCruz home, Velasquez and defendant met with two other persons, identified as Manuel Lozano and Jose DeLaCruz. De-LaCruz entered the house with Velasquez and defendant. At this time, according to Velasquez, defendant sold him a "quarter” of heroin for $350 which had been provided by the police. Defendant denied having participated in such a sale.

After the alleged sale was consummated, Velasquez and defendant returned to the restaurant. Upon emerging from the DeLaCruz home, the informant was again under constant surveillance until a later meeting with the two officers. At this time he turned over the heroin and was strip-searched again. This search revealed no other drugs other than those contained in a tinfoil packet allegedly bought from defendant.

Defendant contends that reversible error occurred as a result of the prosecution’s failure to reveal the existence of perjury charges pending against the informant Velasquez at the time of defendant’s trial.

The suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is "material either to guilt or to punishment” and a request for the information is made by defendant. Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). Where no request is made for the information, the prosecutor is under a more limited duty to disclose potentially exculpatory evidence. United States v Agurs, 427 US 97, 112; 96 S Ct 2392; 49 L Ed 2d 342 (1976).

The record tends to support defendant’s contention that a request for information concerning charges pending against Velasquez was made by defense counsel. A teletype printout of Velasquez’s record was provided, but no reference to the perjury charges is contained therein.

The prosecution argues that it had no duty to disclose the pending perjury charges against Velasquez, because such evidence was inadmissible at trial. In support of their position, the prosecution cites People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973), where the Court states:

"We hold that in the examination or cross-examination of any witness, no inquiry may be made regarding prior arrests or charges against such witness which did not result in conviction; neither may such witness be examined with reference to higher original charges which have not resulted in conviction, whether by pleas or trial.”

Although the prohibition noted in Falkner is proclaimed in very broad terms, subsequent opinions construing Falkner have limited its scope to use of prior arrests for purposes of impeaching the witness’s credibility, the use for which they were offered in Falkner. See People v Rappuhn, 390 Mich 266, 270-271; 212 NW2d 205 (1973), and People v Sanders, 394 Mich 439, 440; 231 NW2d 639 (1975). As a result the prohibition in Falkner does not apply in the present situation. Although the record does not support the conclusion that any promises regarding these charges were made to Velasquez in return for his testimony against defendant, defense counsel is permitted to use evidence of pending charges to bring out the witness’s bias or interest, if any, affecting the outcome of the case. People v Harrington, 76 Mich App 118, 121; 256 NW2d 52 (1977), People v Sesson, 45 Mich App 288, 298-302; 206 NW2d 495 (1973), and People v Crutchfield, 62 Mich App 149; 233 NW2d 507 (1975).

Under these circumstances we conclude that a violation of the Brady rule has occurred. Since the withheld information could have been admitted to assist defense counsel in attacking the key witness’s credibility, we conclude that this evidence is material as to guilt. As noted in People v Reed, 393 Mich 342, 354; 224 NW2d 867 (1975):

"[E]vidence concerning the credibility of a witness is relevant toward insuring that defendant receives a fair trial.”

Since the evidence in question certainly related to the trustworthiness of Velasquez’s testimony, we conclude that its suppression by the prosecution requires that a new trial be ordered.

Although the resolution of the above issue requires a remand for a new trial, we find it necessary to confront three additional issues which may recur on retrial.

Defendant alleges that the trial judge erred in admitting into evidence testimony by Velasquez regarding another heroin buy from defendant, occurring after the sale for which defendant was being tried. No details of the subsequent sale were brought out at trial. Therefore, we are unable to conclude that the evidence was admissible under MCL 768.27; MSA 28.1050, the so-called "similar acts statute”. People v Wilkins, 82 Mich App 260, 267; 266 NW2d 781 (1978). Unless the prosecution comes forward with sufficient additional detail to justify admission under the statute, evidence of the subsequent heroin sale should be excluded upon retrial.

Defendant argues that the 37-day delay between the time of the offense and the time of arrest violated due process. We disagree. Defendant is unable to demonstrate any prejudice as a result of this delay. People v Fraker, 63 Mich App 29, 31; 233 NW2d 878 (1975).

Defendant’s final contention is that the prosecutor committed reversible error in his questioning of defendant. Specifically he contends that the prosecution intimated through his questions that defendant had been convicted of some prior offense. However, unlike the situation in People v Di Paolo, 366 Mich 394; 115 NW2d 78 (1962), the prosecution’s questions here did not refer to a specific crime defendant was alleged to have committed. Rather, he merely asked him if he was sure he had a spotless record and reminded him that he was under oath. The questioning was brief and no prejudice could have resulted as defendant denied having been previously convicted. Therefore, we conclude that under these circumstances, no reversible error occurred. See People v Moss, 70 Mich App 18, 34; 245 NW2d 389 (1976) (M. J. Kelly, J., concurring), aff'd sub nom People v Tilley, 405 Mich 38; 273 NW2d 471 (1979).

Reversed and remanded for a new trial.

       The questions went as follows:
      "Q [Mr. Bearinger, Assistant Prosecuting Attorney] Now, your lawyer — one of your lawyers in his opening statement said you have a clean record. What does clean mean to you?
      "A [defendant] A Clean record, I guess.
      "Q An absolutely spotless—
      “A I don’t know if it’s spotless or not. That I know of, I have never been convicted of anything.
      "Q You’re under oath?
      "A Yes.
      "MR. SMITH [defense counsel]: Your Honor, I’m going to object, perhaps anticipatorily, but I’d ask the Prosecutor properly phrase the question if he’s going to get into the subject matter.
      "THE COURT: All right, the Court will ask the Prosecutor to—
      "MR. BEARINGER: Your Honor, I think I’ll stop at this point. I left something downstairs and by the time I get back it will probably be 1:00 o’clock.”


author: P. F. O’Connell, J.

text:
    PEOPLE v ALLEN
    Docket No. 77-25.
    Submitted October 4, 1978, at Lansing.
    Decided May 21, 1979.
    Edward G. Allen was charged with and convicted of assault with intent to rob being armed and assault with intent to commit murder, Oakland Circuit Court, Robert L. Templin, J. Defendant was 15 years of age. The prosecutor had sought and had secured a waiver of jurisdiction from the probate court so that defendant might be tried as an adult in circuit court. Defendant challenged the waiver of jurisdiction by the probate court. Judge Templin held that the waiver was proper. The defendant appeals alleging 1) that the trial court erred in upholding the probate court’s waiver of jurisdiction, 2) the trial court improperly allowed the prosecution to introduce evidence of acts by the defendant which did not result in arrest, charge or conviction, 3) that the trial court improperly allowed the admission of lay testimony as to the defendant’s sanity, and 4) that the trial court erred in its instruction to the jury on the lesser included offenses and on the disposition of the defendant if he were found to be not guilty by reason of insanity. Held:

    1. A probate court’s hearing on waiver of jurisdiction Over a juvenile criminal defendant is not a determination of guilt or innocence, but is a determination of whether the juvenile or adult criminal justice system will better serve the needs of the public and the defendant; consequently, a standard of proof less stringent than proof beyond a reasonable doubt may be used at such a hearing.

      References for Points in Headnotes

       20 Am Jur 2d, Courts § 104.
    42 Am Jur 2d, Infants § 22 et seq.

    47 Am Jur 2d, Juvenile Courts and Delinquent and Dependent Children § 54.

       5 Am Jur 2d, Appeal and Error § 798.
    21 Am Jur 2d, Criminal Law § 81 et seq.

    47 Am Jur 2d, Juvenile Courts and Delinquent Children §§ 4, 49.

       31 Am Jur 2d, Expert and Opinion Evidence §§ 90, 92-94.

       5 Am Jur 2d, Appeal and Error § 798.
    30 Am Jur 2d, Evidence §§ 973, 978-985.
    [5, 6, 7] 75 Am Jur 2d, Trial §§ 876 et seq., 923.

       75 Am Jur 2d, Trial §§ 738-742, 923.

      2. Testimony regarding acts by the defendant which were unlawful in nature, but which did not result in an arrest, charge or conviction, were properly admitted for the purpose of establishing intent and premeditation.
    3. The testimony of the lay witnesses as to the manipulative nature of defendant was properly admitted for the purpose of rebutting the factual premise of an expert witness’s opinion, and because the lay witnesses expressed no conclusions as to defendant’s sanity.
    4. The trial court properly instructed the jury as to the elements of armed robbery, since those elements were necessary to the instruction on the lesser included offense of attempted armed robbery.
    5. The charge to the jury, when read as a whole, did not constitute an instruction to the jury that they could find defendant guilty of an attempted assault.
    6. The charge to the jury, when read as a whole, did not direct the nature of the jury’s consideration of lesser included offenses.
    7. No error resulted from the trial court’s sua sponte instruction as to the disposition of the defendant in case of a verdict of not guilty by reason of insanity because the instruction did not emphasize that the defendant could soon be released from custody and the instruction favored the defendant by implying that he would not be released.
    Affirmed.
    1. Infants — Probate Court — Jurisdiction — Waiver of Jurisdiction — Burden of Proof.
    A probate court’s hearing on waiver of jurisdiction over a juvenile criminal defendant is not a determination of guilt or innocence, but is a determination of whether the juvenile or adult criminal justice system will better serve the needs of the public and the defendant; consequently, a standard of proof less stringent than proof beyond a reasonable doubt may be used at such a hearing (JCR 1969, 11).
    2. Infants — Juvenile Proceedings — Adult Proceedings — Evidence — Intent — Statutes.
    The statutory prohibition against the use of evidence from juvenile proceedings in a subsequent adult criminal proceeding does not prohibit the prosecutor from inquiring as to acts of the juvenile which did not result in an arrest, charge or conviction for the purpose of establishing intent and premeditation (MCL 712A.23; MSA 27.3178[598.23]).
    3. Witnesses — Criminal Law — Lay Witnesses — Duration of Observation — Insanity'— Rebuttal — Conclusions.
    The briefness of the duration of the observations by lay witnesses of a defendant claiming insanity does not effect the admissibility of their testimony as to the manipulative nature of defendant where that testimony was for the purpose of rebutting the factual premise for an expert witness’s opinion and where the lay witnesses expressed no conclusions as to the defendant’s sanity.
    4. Criminal Law — Evidence — Juvenile Record — Harmless Error.
    A brief reference to facts suggesting that a defendant had a prior juvenile record, brought out by the prosecutor during examination of a rebuttal witness, is harmless error where a similar inference could be drawn from previous testimony brought out by defense counsel.
    5. Criminal Law — Instructions to Jury — Robbery Armed — Assault with Intent to Rob Being Armed.
    No error resulted from the trial court’s instructing the jury on the elements of armed robbery in a trial for assault with intent to rob while armed, because the elements of armed robbery were necessary to an instruction which was given on the lesser included offense of attempted armed robbery.
    6. Criminal Law — Instructions to Jury — Attempted Assault — Compromise Verdict.
    A charge to the jury, in a trial for assault with intent to commit murder and assault with intent to rob being armed, that they "may find him guilty of any other degree of the offense inferior to that charge or guilty of an attempt to commit such an offense” does not constitute reversible error on the basis that the jury was instructed to consider an attempted assault where: (1) one of the lesser included offenses is attempted armed robbery; (2) the elements of an attempted assault are not defined for the jury; (3) attempted assault is not included as one of the possible verdicts; and (4) defendant is found guilty of the charged offense, eliminating the possibility that there was a compromise verdict.
    7. Criminal Law — Instructions to Jury — Lesser Included Offenses.
    Charging the jury that they could find a defendant guilty of a lesser included offense if they found defendant not guilty of the charged offense was not reversible error where, when read in the context of the entire charge, the language was not directive in nature and the jury was specifically instructed to consider each possible verdict separately.
    8. Criminal Law — Instructions to Jury — Insanity Defense — Disposition of Defendant.
    An instruction to a jury regarding the disposition of a defendant in case of a verdict of not guilty by reason of insanity, given without a request by counsel or the jury, is not reversible error where the instruction did not emphasize that the defendant could soon be released from custody and the instruction favored the defendant by implying that he would not be released.

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

      Walter S. Schwartz, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Allen and P. F. O’Connell, JJ.

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

   P. F. O’Connell, J.

Defendant, age 15, was charged with and convicted of the crimes of assault with intent to rob being armed contrary to MCL 750.89; MSA 28.284, and assault with intent to commit murder contrary to MCL 750.83; MSA 28.278. At the time these offenses occurred, defendant had a history of mental treatment and was a ward of the state. The prosecutor sought to have the probate court waive juvenile jurisdiction over defendant so that he could be tried as an adult in Oakland County Circuit Court. Following hearings held on August 12, September 2, and September 8, 1975, the probate court judge waived jurisdiction and ordered defendant to be tried as an adult.

In circuit court, defendant challenged the waiver of jurisdiction of the probate court. He argued that there had been insufficient evidence produced at the waiver hearing to determine the best interest of defendant or of society, that no repetitive pattern of offenses was shown, and that defendant was denied due process of law. The court concluded, however, that because of the seriousness of the charge and the testimony given before the probate court, the probate judge did not abuse his discretion in waiving defendant to the jurisdiction of the circuit court.

Defendant’s primary trial defense was one of insanity; and he called an expert psychiatric witness. This doctor testified that defendant was suffering from "chronic paranoid schizophrenia” and stated that, although defendant knew the difference between right and wrong, he committed the crime as a result of an irresistible impulse. On cross-examination, however, the prosecutor brought out the fact that the doctor’s opinion was based primarily on his interview with defendant and a psychological test. The doctor denied that he was "conned” by defendant and opined that defendant was not manipulative or faking his condition.

Defendant also called his stepbrother, who had been with him on the day of the crime. During the cross-examination of this witness, the following exchange occurred:

"Q (By Mr. Bunting [the prosecutor]): Did you know where this gun came from?
"MR. CADIEUX [defense counsel]: Objection, your Honor, it is immaterial to the question of relevancy.
"THE COURT: Overruled. You may have an answer.
"THE WITNESS: Yes, I do.
"Q (By Mr. Bunting): Who got it?
"A We both did.
"Q Where?
"A From a house across the street from the house.
"Q How?
"A It was a breaking and entering.
"Q Who did it?
"A We both did.
"Q For the express purpose of getting a gun and cutting it down?
"A No.
"Q But you got it and cut it down?
"A I didn’t get the gun.
"Q Edward Allen did?
"A Yes, I told him not to.”

To rebut the defendant’s expert psychiatric testimony that defendant was not manipulative, the prosecutor called two witnesses, Mr. Kim, a program manager at the Boy’s Training School who supervised the staff, and Mr. McKie, a caseworker at the school, both of whom had substantial contact with defendant during his one and one-half year stay there. Defense counsel objected to their testimony on the basis that an inadequate foundation had been laid to allow lay witnesses to give an opinion as to defendant’s sanity. Defense counsel also objected to introducing the foundation of facts before the jury on the grounds that the fact of his juvenile incarceration would prejudice the defendant. A separate record of their testimony was made, and the court overruled defendant’s objection and permitted them to testify before the jury. Neither witness offered an opinion on defendant’s sanity, but both testified that defendant was a manipulative person. Mr. Kim testified: "I’m employed with the State of Michigan Department of Social Services as program manager at the Boy’s Training School”, and made a single reference to defendant’s "truancy”, but Mr. McKie, in response to defense counsel’s question, indicated only that defendant was "in a placement of some type”.

Following closing arguments and the denial of a defense motion for a directed verdict, the court gave the jury the final charge. During the instructions, the court said:

"If you find the defendant not guilty of the offense in the degree charged in the information, you may find him guilty of any other degree of the offense inferior to that charge or guilty of an attempt to commit such an offense.”

The court then went on to instruct on the charged offense of assault with intent to commit murder, and its two lesser offenses of assault with intent to do great bodily harm less than murder and felonious assault. The court then instructed the jury on the charged offense of assault with intent to rob and steal while armed, and the lesser offense of attempted armed robbery. In the course of defining those two offenses, the trial court also defined the crime of armed robbery.

Furthermore, the court instructed the jury on the disposition of defendant if he was found not guilty by reason of insanity:

"If you find the defendant committed the act but was not criminally responsible at the time, then he is not guilty by reason of such lack of criminal responsibility. If you make such a decision the Defendant will be immediately committed to the custody of the Center for Psychiatry for a period not to exceed 60 days.”

The court then reviewed the possible verdicts and gave the jury a written form listing those verdicts, saying:

"Actually you must consider each charge separately, each of the five charges separately, and there are three possible verdicts for each charge. One, guilty; two, not guilty; and three, not guilty by reason of insanity. Consider each of these charges separately and determine as to each how you will find the Defendant and there is a place there to help you find him guilty, not guilty or not guilty by reason of insanity.
"I think with this being written down, the possible verdicts, you can make determination and make it' a lot simpler for you.”

At the end of the instructions, defense counsel stated that defendant was generally satisfied with the instructions (with only one exception not relevant here). Following deliberations, the jury returned a verdict of guilty on both of the charged offenses, and defendant was sentenced to a term of life imprisonment on the assault with intent to rob count and to a term of 40 to 60 years imprisonment on the assault with intent to commit murder count. It is from that order of conviction and sentence that defendant brings this appeal.

I

Waiver to Circuit Court

Defendant’s first claim of error is that the trial court erred in upholding the probate court’s waiver of jurisdiction over the defendant.

MCL 712A.4(4); MSA 27.3178(598.4)(4) sets the guidelines for waiver.

Here, the probate court’s findings were as detailed, succinct and cogent as one could reasonably expect. The statutory criteria were rigidly adhered to, and there is no question that the probate court’s findings were more than adequate to support the waiver. People v Schumacher, 75 Mich App 505, 511-512; 256 NW2d 39 (1977).

II

Burden of Proof at a Waiver Hearing

The defendant asserts that the requirement of proof beyond a reasonable doubt as an element of due process has been held applicable to juvenile proceedings and cites the Federal case of United States v Costanzo, 395 F2d 441 (CA 4, 1968), cert den 393 US 883; 89 S Ct 189; 21 Ed 2d 157 (1968), as authority for the proposition that proof by a mere preponderance of the evidence was discarded for a determination of delinquency. He further asserts that the juvenile waiver standards created in the aftermath of People v Fields, 388 Mich 66; 199 NW2d 217 (1972), and approved in People v Jackson, 46 Mich App 764; 208 NW2d 526 (1973), reflect an intent on behalf of the Legislature and the Court that certain points be proven in any waiver of jurisdiction. We find the defendant’s contention without merit.

The "probable cause” determination of phase I of a waiver hearing is similar to a preliminary examination. Phase II is designed to determine the best interests of the minor and the public. Unlike the determination of delinquency hearings, guilt or innocence is not determined at a waiver hearing. JCR 1969, 11, meets the now-settled requirements of procedural due process. People v Rubin Williams, 50 Mich App 270, 273-274; 213 NW2d 307 (1973).

In addition, a waiver hearing does not subject the child to loss of liberty because it is not a determination, of guilt or innocence, but rather, it is a determination of whether the juvenile or adult criminal justice system will better serve the needs of the public and the defendant. Consequently, the Federal authority relied upon by the defendant does not control here, and the waiver to circuit court was proper.

Ill

Admissibility of Evidence of Crime Not Charged

The defendant next asserts that the prosecutor, while questioning defendant’s brother, deliberately attempted to elicit statements of defendant’s prior illegal acts. He contends that the testimony was of a separate and distinct crime which had not been charged against the defendant and that the testimony was also inadmissible because it concerned a juvenile offense.

Although it is clear that testimony concerning juvenile proceedings are inadmissible against the defendant in a subsequent adult proceeding, MCL 712A.23; MSA 27.3178(598.23), the law does not prohibit the admission of the evidence in question. In fact, as defendant himself points out, it does not appear that any arrest, charge or .conviction was obtained as a result of the alleged "breaking and entering” by which defendant obtained the gun used in the offense which occurred here.

Moreover, it is quite clear that the prosecutor’s reason for asking these questions of defendant’s brother was to establish the great length to which defendant went in preparing for his crime. Consequently, the evidence was admissible to establish intent and premeditation.

Moreover, as the people point out, the language "breaking and entering” was volunteered by the witness and does not appear to have been anticipated by the prosecutor. Furthermore, the "breaking and entering” language was used only once, although later reference was made to defendant’s obtaining the gun.

Finally, because defendant’s defense was one of insanity and defense counsel later used defendant’s brother’s testimony in attempting to establish defendant’s legal insanity, it would appear that any error which did occur in the admission of the testimony was harmless. Not only did defendant turn the testimony to his advantage, but also the testimony otherwise had no relevance to the question of insanity.

IV

Lay Testimony of Defendant’s Sanity

The defendant argues that the trial court erred in admitting lay testimony concerning defendant’s sanity because of the brief duration in which the defendant was observed. The defendant cites the case of People v Cole, 382 Mich 695; 172 NW2d 354 (1969), as authority for the proposition that lay testimony as to sanity can be admitted only if a witness is shown to have had ample opportunity to observe the defendant’s conduct and become acquainted with the person.

The lay testimony of Mr. Kim and Mr. McKie was introduced to rebut Dr. Short’s testimony that defendant was not manipulative and had not "conned” him. The people properly argue that Cole involved lay testimony as to an accused’s sanity and set down several foundational requirements before such evidence is admissible. Since no testimony as to sanity itself was given, but only testimony as to defendant’s manipulative character, Cole, supra, has no application here. Thus, the fact that Mr. McKie observed defendant for about a total of four hours is not crucial, although it should be pointed out that those four hours were divided into half hour monthly sessions with defendant, rather than a single three and one-half hour contact with the defendant subsequent to arrest which was involved in People v Thompson, 30 Mich App 142, 143; 186 NW2d 4 (1971).

Finally, the prosecutor did not attempt to introduce defendant’s prior juvenile record. Defendant’s claim here is based on Mr. Kim’s testimony that he was associated with the Boy’s Training School. That single reference did not bring out defendant’s juvenile record, although it may have suggested to the jury that defendant had some problems with the law. Such an inference, however, was explicitly stated, before Mr. Kim gave his testimony, when Dr. Short testified that defendant "since the beginning of adolescence has come into trouble with the law-enforcement agencies on numerous occasions”. Consequently, any error involved in Mr. Kim’s testimony concerning his occupation was harmless because of Dr. Short’s prior testimony.

V

Improper Instructions

The defendant’s next argument is that the Court erred in instructing the jury on armed robbery because defendant was charged with assault with intent to rob while armed and the waiver from probate court was based on that charge.

As the people point out, the trial court’s instructions on armed robbery were necessary to the instruction on attempted armed robbery. Moreover, the reference to attempt was also directed at the lesser included offense of attempted armed robbery, rather than attempts of the offenses charged, and therefore was proper in the instant case. Finally, the jury was never told that armed robbery was a possible verdict. Consequently, the court’s instruction on the elements of armed robbery was not error.

It is claimed by the defendant that the court erred in giving an instruction which amounted to a charge of "attempted assault”.

Defendant argues that there can be no such crime, People v Richard Banks, 51 Mich App 685; 216 NW2d 461 (1974). Upon review of the instruction as a whole, we find no error.

It is apparent from the context in which the statement was made that the trial judge was not instructing the jury to consider an attempted assault charge, but rather was trying to say that there are offenses lesser than the charged ones of which defendant could be convicted. In the instant case, one of those offenses was an attempt, attempted armed robbery. This is apparent not only from the fact that the complained-of instruction precedes the instruction on the elements of the various offenses, but also from the fact that the trial court never defined the elements of an attempted assault for the jury, and never included an attempted assault with intent to commit murder as one of the lesser offenses they could consider. It was never one of the five possible verdicts given to the jury.

Secondly, defendant suffered no manifest injustice, and thus his failure to object to the complained-of instruction precludes reversal. Defendant was convicted of the greater charged offense. Defendant argues that the trial court’s instruction caused the possibility of a compromise verdict and thus violated his right to due process. Clearly the jury compromised nothing in this case, since they found defendant guilty as charged.

VI

Jury’s Consideration of both the Charged and Lesser Offenses in Their Deliberations

The defendant argues eloquently that the lower court’s instructions as quoted above coerced and restricted the jury in its deliberations. This type of instruction has been, to say the least, troublesome for our trial and appellate courts. See People v Ronald L Johnson, 74 Mich App 250; 253 NW2d 722 (1977). Notwithstanding our admonitions to trial judges, starting with People v Ray, 43 Mich App 45; 204 NW2d 38 (1972), the problem persists.

We agree with the analysis as set forth in the people’s brief:

"In examining claimed instructional errors, the charge as a whole must be considered. People v Green, 34 Mich App 149 [190 NW2d 686] (1971). In the present case, the complained-of instruction was given approximately in the middle of the charge, immediately before the trial court’s instruction on the elements of the offenses charged in the information. Thereafter the trial court defined the elements of the charged and lesser offenses. Read in this context, and recognizing where it appears in the charge, it is clear that the instruction at issue was introductory and not directive in nature. The trial judge was not instructing the jury on the manner in which they were to proceed in their deliberations, but was indicating to them that the charged offenses they were about to be instructed on were not the only crimes that they had to consider, but that there were other, lesser included offenses that 'may’ be found.
"In this regard, Appellant’s reliance on People v Ray, 43 Mich App 45 [204 NW2d 38] (1972) and People v Harmon, 54 Mich App 393 [221 NW2d 176] (1974) is misplaced. In each of those cases the trial court specifically instructed the jurors on the manner in which they were to conduct their deliberations. The jury was told they had to unanimously acquit the defendant on the charged offense first before proceeding to the lesser offense.
"This instruction specifically informed the jurors not to start with the principal offense first and work their way down, but rather to consider each possible verdict separately. Under these circumstances, the complained-of instruction, when read in the context of the entire charge, was not coercive or restrictive of the jury’s consideration of the lesser offense.
" 'Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure.’ People v Brocato, 17 Mich App 277 [169 NW2d 483] (1969).
Had Appellant thought there was the slightest problem, he could have objected and requested the court to clarify the matter. His failure to do so should preclude his raising the issue on appeal.”

VII

Disposition of Defendant

The defendant next contends that the trial court committed reversible error in instructing the jury, without the request of counsel or the jury, as to the disposition of the defendant in case of a verdict of not guilty by reason by insanity.

The thrust of defendant’s argument is that the court’s charge emphasized the possibility that the defendant would be released and, therefore, it prejudiced the defendant. Defendant bases his argument on the case of People v Cole, 382 Mich 695; 172 NW2d 354 (1969), wherein the Supreme Court ruled that a trial judge should, upon request of defense counsel or the jury, instruct on the disposition of a defendant in the event of a verdict of not guilty by reason of insanity. The primary purpose of such an instruction is to insure that a defendant will not be found guilty because a jury might fear that the defendant will be set free if an insanity verdict is returned.

The disputed instruction in the case at bar did not emphasize to the jury that the defendant could soon be released from custody if a not guilty by reason of insanity verdict was returned. Rather, the instruction favored defendant by implying that he would not be released. Thus, the instruction is similar to one given by the trial court, and found not to be reversible error by this Court, in People v Samuelson, 75 Mich App 228; 254 NW2d 849 (1977).

Affirmed.


author: R. B. Burns, J.

text:
    PEOPLE v OLIVER
    Docket No. 77-1558.
    Submitted January 5, 1979, at Grand Rapids.
    Decided May 21, 1979.
    In lieu of leave to appeal, reversed and remanded for new trial, 407 Mich 857.
    Daniel Oliver was convicted of delivery of phencyclidine and delivery of marijuana, Calhoun Circuit Court, Stanley Everett, J. Defendant appeals, alleging several errors. Held:

    1. A three-month delay between the alleged drug transaction and the arrest of the defendant did not violate the defendant’s right to due process of law where no prejudice resulting from the delay has been demonstrated.
    2. The drugs were properly admitted into evidence. An alleged break in the chain of custody goes to the weight, not the admissibility, of the evidence.
    3. The trial court did not err in its instructions to the jury.
    4. The trial court used an incorrect analysis in determining that evidence of a prior similar offense could be admitted for impeachment purposes. As a result of this ruling the defendant did not testify in his own behalf. The case is remanded for a determination of whether the evidence of the prior conviction would have been suppressed had the court applied the correct analysis. If so, a new trial shall be ordered.
    5. The trial court’s conference with a probation officer prior to sentencing was a critical stage of the proceedings at which the defendant was entitled to have counsel present.
    Reversed and remanded with instructions.
    References for Points in Headnotes

       5 Am Jur 2d, Arrest § 33.

       30 Am Jur 2d, Evidence § 1080.
    29 Am Jur 2d, Evidence § 774.

       75 Am Jur 2d, Trial § 701.

       29 Am Jur 2d, Evidence §§ 321, 333.

       29 Am Jur 2d, Evidence §§ 321, 327, 333.

       21 Am Jur 2d, Criminal Law §§ 309, 313.
    Absence of counsel for accused at time of sentence as requiring vacation thereof or other relief. 20 ALR2d 1240.
    Accused’s right to counsel under the Federal Constitution — Supreme Court cases. 9 L Ed 2d 1260,18 L Ed 2d 1420.

      1. Criminal Law — Arrest — Delay — Prejudice — Due Process.
    Prejudice which results from a delay in arresting a defendant, not the delay itself, may result in a violation of due process.
    2. Criminal Law — Evidence — Chain of Custody — Weight of Evidence.
    Allegations of a break in the chain of custody of physical evidence offered at trial go to the weight of the evidence, not its admissibility.
    3. Drugs and Narcotics — Phencyclidine — Instructions to Jury.
    Failure of a trial court to instruct the jury, in a prosecution for delivery of phencyclidine, that phencyclidine is a substance "having a potential for abuse associated with a depressant effect on the central nervous system” was not error because the language is not a definition of phencyclidine, but a description of a class of substances, and had no relevance to any issue in the trial.
    4. Criminal Law — Evidence — Prior Convictions.
    The issue of whether reference to a defendant’s prior convictions should be suppressed is one addressed to the discretion of the trial court.
    5. Criminal Law — Evidence — Prior Convictions — Impeachment — Similar Convictions.
    Impeachment of a defendant by use of prior convictions of similar offenses is not prohibited per se; therefore, where a trial court, by application of an incorrect analysis, allowed such evidence to be used for impeachment the case should be remanded to the trial court for a determination of whether the evidence would have been suppressed if the court had used the correct analysis, and if it would have been suppressed, the defendant is entitled to a new trial.
    6. Criminal Law — Assistance of Counsel — Sentencing.
    A defendant is entitled to the assistance of counsel at those stages of criminal proceedings at which substantial rights of the defendant may be affected; sentencing is one such proceeding, and a defendant is entitled to have counsel present where the trial court confers with a probation officer concerning the defendant’s sentence, prior to passing sentence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander,
      Prosecuting Attorney, and Roger L. Caswell, Assistant Prosecuting Attorney, for the people.

      Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and M. J. Kelly, JJ.
   R. B. Burns, J.

Defendant was convicted by a jury of delivery of phencyclidine, MCL 335.341(l)(b); MSA 18.1070(41)(l)(b), and delivery of marijuana, MCL 335.341(l)(c); MSA 18.1070(41)(l)(c), and appeals.

Evidence presented at trial established that police officer Johnston went to a residence in Battle Creek in the company of an informant and purchased phencyclidine and marijuana from defendant. Defendant was not arrested until approximately three months later. Defendant argues that the delay deprived him of due process. However, it is prejudice resulting from delay, not the delay itself, which may result in a violation of due process. People v Hernandez, 15 Mich App 141, 146; 170 NW2d 851, 854 (1968). Although defendant speculates that prejudice may have occurred, defendant has demonstrated no actual prejudice. Thus, the argument is without merit.

Officer Johnston testified that he took the drugs purchased from defendant to the building from which his drug enforcement unit operated and placed them in a locker to which only he had keys. He transported the drugs to the crime lab 11 days later. Because the officer declined to testify as to the location of the building where the drugs were kept, defendant argues that there was a break in the chain of evidence. However, defendant’s argument goes to weight, not admissibility, of the evidence. See, e.g., People v Kremko, 52 Mich App 565, 573; 218 NW2d 112, 116 (1974). There was no error in admitting the exhibits.

Defendant raises three alleged instructional errors as issues for review. However, only one was preserved for review through objection. See, e.g., People v Murry, 59 Mich App 555, 559; 229 NW2d 845, 847 (1975). Defendant argues that the trial court erred by failing to instruct the jury that phencyclidine is a substance "having a potential for abuse associated with a depressant effect on the central nervous system”. See MCL 335.318(l)(b); MSA 18.1070(18)(l)(b). Defendant argued to the jury that he did not know what the substance was, and argues to this Court that a definition of the substance was necessary in order for the jury to assess his argument. However, the quotation is not a definition of phencyclidine, but a description of a class of substances, and thus had no relevance to any issue in defendant’s trial.

Defendant moved to suppress reference to his 1974 conviction of delivery of marijuana as impeachment evidence. See People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). One of the factors the trial court weighed in favor of admissibility was the similarity of the prior offense to the instant offenses. In so doing, it appears that the trial judge was conscientiously attempting to exercise his discretion in the manner indicated by People v Osteen, 46 Mich App 409; 208 NW2d 198 (1973), dismissed as moot 390 Mich 760 (1973), despite a personal belief that the rule indicated in Osteen did not make any sense. The trial court ruled the evidence admissible, and, as a result, defendant elected not to testify.

This Court has recognized that the opinion in Osteen contained a mistake which, if followed, results in an upside down exercise of discretion. People v Cash, 80 Mich App 623; 264 NW2d 78 (1978), see People v Green, 86 Mich App 142; 272 NW2d 216 (1978), People v Denny, 86 Mich App 40; 272 NW2d 332 (1978). The proper analysis is that set forth in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), cert den 390 US 1029; 88 S Ct 1421; 20 L Ed 2d 287 (1968).

The issue of whether reference to prior convictions should be suppressed is one addressed to the trial court’s discretion. Gordon v United States, supra, does not per se bar every impeachment by similar convictions. People v Cash, supra, at 627; 264 NW2d at 80, see People v Townsend, 60 Mich App 204, 206; 230 NW2d 378, 379 (1975). Consequently, we decline to second guess the trial court by concluding that the evidence should have been suppressed, and remanding for a new trial. Compare People v Green, supra, People v Denny, supra. Rather, we remand to the trial judge for determination of whether he would have suppressed reference to the prior conviction had he applied the correct analysis. If he would have, a new trial shall be ordered. If he would not have, the conviction shall be affirmed.

Because the conviction may be affirmed, there is one other issue which we must reach. At sentencing, defense counsel objected to the trial judge conferring with a probation officer concerning defendant’s sentence outside the presence of the defense counsel. It is apparently the practice of the trial judge to confer alone with' probation officers prior to sentencing, a practice followed in the instant case. Defendant argues on appeal, inter alia, that the procedure deprived him of his right to counsel. We agree. Defendants are entitled to the assistance of counsel at those stages of criminal proceedings at which substantial rights may be affected. Sentencing is one such proceeding. Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967). Counsel is needed to present to the court extenuating facts, explain conduct, correct errors in reports of defendants’ past conduct, and appeal to the equity of the court. People v Dye, 6 Mich App 217, 219; 148 NW2d 501, 502 (1967). Our Supreme Court has commented on the critical need for accurate facts as a basis for sentencing, and the consequent need for a procedure to allow defendants to rebut inaccurate information. People v Malkowski, 385 Mich 244, 249; 188 NW2d 559, 562 (1971). Where, as here, the trial court obtains information about a defendant, not equally available to the defendant’s counsel, there is no opportunity for effective rebuttal, and inaccurate information may creep into the proceedings. Whether the trial court’s conference with the probation officer is viewed as a part of the sentencing proceeding at which counsel was excluded, or a separate proceeding, it was a critical stage at which substantial rights of defendant may have been affected.

If the trial court does not grant a new trial in this case, defendant shall be resentenced.

The remaining issues concerning sentencing are moot.

Reversed and remanded with instructions.

       "THE COURT: Well, I think that there is obviously a risk of prejudice in disclosing any prior convictions. I’d agree with you up to that point. And it’s got to be weighed against the right of the jury to have knowledge of each witness, some knowledge of them in order to tell if they are telling the truth. It appears to me in view of the fact that these convictions are of recent origin and of a similar nature, somewhat similar, at least, to that with which he is now charged, that it is proper for the Prosecutor to inquire only, of course, whether he has been arrested and convicted of felonies and if so, what.”

       "THE COURT: Strangely enough, Mr. Calderone, the Appellate Courts started to change the rule. They refer to the fact that the relationship between the prior offense, the similarity between the prior offense and the current offense was a factor to be considered in allowing it in which I’ll admit doesn’t make any sense to me, but if you remember back, the first case that I know of which was reversed, the Prosecutor showed a lot of misdemeanors, and the Court said none of them — only one of them was drug related, was a drug case and, therefore, they shouldn’t have gone in which to me is the opposite of what we are supposed to be doing * *

       Defendant also argued that the procedure deprived him of his right to be present at trial. MCL 768.3; MSA 28.1026. We do not reach the issue because defendant did not object on this basis, and because our resolution of the right to counsel issue makes this issue moot.

       Distinguish the situation where a probation officer provides information to a judge through a presentence report. There, counsel generally receives the same information, even if at a different time. GCR 1963, 785.12.