author: T. M. Burns, J.

text:
    PEOPLE v O’BRIEN
    Docket No. 77-3389.
    Submitted November 7, 1978, at Lansing.
    Decided May 1, 1979.
    Defendant, Michael L. O’Brien, was convicted of first-degree murder in Oakland Circuit Court, Robert L. Templin, J. At trial, defendant objected to his then present attorney and requested a particular attorney be appointed to represent him. His request was denied. Defendant also requested a change of venue as a result of a pretrial labeling of him as a murderer in a brochure prepared by the prosecutor. The trial court took the request under advisement and, after seating a jury satisfactory to the defense before all of defendant’s peremptory challenges were used, denied a change of venue. The evidence adduced at trial was that the victim, on the day of her disappearance, had missed her school bus and that on such occasions had been known to hitchhike. Her body was discovered in a wooded area the next day under circumstances indicating that the killer went to considerable trouble to conceal the body. Examination revealed that the victim had been struck on the head at least twice with a blunt, heavy object and that her throat had been slashed afterwards. It also revealed that she had had sexual intercourse within 24 hours of her death. Evidence obtained from defendant’s car indicated that the victim had been in the car and that there had been a struggle. On the morning that the body was discovered, the police learned that the day before a witness had seen a car parked near the site where the body was found and that there was a woman’s purse with the contents strewn across the seats and a woman’s coat in the back area of the car. While the witness was looking at the car, an individual called from a nearby field that, upon inquiry, stated alternatively that he was hunting and then that his dog was lost. The witness noted the license number of the car and the facts that the individual was not dressed for hunting and that he left alone. After receiving this information and a description of the individual, the police set up surveillance at the address listed on the registration of the license number, defendant’s parents’ house. The police spotted the car in the driveway and arrested defendant, who, they knew, had been previously involved in an incident in which a young woman had been left tied up in a field. During this time defendant’s parents had to be kept away from the car on at least one occasion. The police had the car towed and impounded. Defendant appeals raising several issues. Held:

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 772-775.
    21 Am Jur 2d, Criminal Law §§ 318-323.
    7 Am Jur 2d, Attorneys at Law § 148.
    Constitutionality protected right of indigent accused to appointment of counsel in state court prosecution. 93 ALR2d 747.
    Accused’s right to counsel under the Federal Constitution Supreme Court cases. 18 L Ed 2d 1420.

       77 Am Jur 2d, Venue § 73.
    Construction and effect of statutory provision for change of venue for the promotion of the convenience of witnesses and the ends of justice. 74 ALR2d 16.

       40 Am Jur 2d, Homicide §§ 246, 263, 266, 425, 439, 454, 459, 468, 559, 560.
    Homicide: presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR2d 1435.

       68 Am Jur 2d, Searches and Seizures §§ 16, 34, 57.
    Validity under Federal Constitution of warrantless search of automobile — Supreme Court cases. 26 L Ed 2d 893.

      1. An indigent defendant is entitled to a substitution of appointed counsel only where discharge of the first attorney is for good cause and does not disrupt the judicial process; whether or not good cause exists depends on the facts and circumstances of each case and the Court of Appeals will reverse a trial court’s determination only for an abuse of discretion.
    2. The trial court committed no error in waiting until an attempt had been made to select a jury before ruling on the motion for a change of venue and, under the circumstances, in denying the motion after the jury was selected.
    3. Premeditation and deliberation, being states of mind, need not be established by direct evidence but may be inferred by a defendant’s conduct in light of the circumstances; however, such inferences must have ah adequate basis in record evidence and, where there is an adequate evidentiary basis for the jury’s finding of premeditation and deliberation in a homicide, the jury’s determinations will not be disturbed on appeal.
    4. The evidence presented was sufficient to support a charge to the jury on first-degree murder.
    5. The police had probable cause sufficient to justify the warrantless seizure and detention of defendant’s car, and the warrant for the search was properly issued.
    Affirmed.
    1. Criminal Law — Attorney and Client — Court-Appointed Counsel — Substitution of Counsel — Appellate Review.
    An indigent defendant is entitled to a substitution of appointed counsel only where discharge of the first attorney is for good cause and does not disrupt the judicial process; whether or not good cause exists depends on the facts and circumstances of each case and the Court of Appeals will reverse a trial court’s determination only for an abuse of discretion.
    2. Venue — Change of Venue.
    A trial court commits no error in waiting until an attempt has been made to select a jury before ruling on a motion for a change of venue.
    3. Homicide — Premeditation — Deliberation — Direct Evidence — Inferences — Defendant’s Conduct — Basis in Record — Appeal and Error.
    Premeditation and deliberation, being states of mind, need not be established by direct evidence but may be inferred by a defendant’s conduct in light of the circumstances; however, such inferences must have an adequate basis in record evidence and, where there is an adequate evidentiary basis for a jury’s findings of premediation and deliberation in a homicide, the jury’s determinations will not be disturbed on appeal.
    4. Searches and Seizures — Towing an Automobile.
    The police activity of towing and impounding a car is a seizure subject to the Fourth Amendment’s reasonableness requirement.

      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.

      Carlton R. Roeser, for defendant on appeal.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   T. M. Burns, J.

Defendant was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, on July 26, 1977, and given the mandatory sentence of life imprisonment. Appellate counsel was routinely appointed and a brief raising a number of issues was filed with this Court. Defendant filed a brief on his own behalf raising additional issues. We affirm the first-degree murder conviction.

I

Just before the process of picking a jury began, defendant announced that he wished to have a particular attorney appointed to replace the attorney then serving him. Defendant listed six objections to continuing with his then present attorney. The opportunity for defense counsel to act on several of the points raised by defendant, such as questioning witnesses or objecting to prospective jurors, had not yet occurred. Defendant made no factual record supporting the other allegations, either at that time or before this appeal. See, People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). After an extended discussion with defendant and his attorney, the trial court denied defendant’s request.

The rules governing this question are well settled. As stated in People v Bradley, 54 Mich App 89, 95; 220 NW2d 305 (1974):

"An indigent defendant is entitled to counsel. He is not entitled to counsel of his choice nor is he entitled to different counsel whenever and for whatever reason dissatisfaction arises with counsel provided for him. People v Henley, 26 Mich App 15, 26; 182 NW2d 19 (1970); People v Grenier, 34 Mich App 93; 190 NW2d 742 (1971); People v Williams, 2 Cal 3d 894; 88 Cal Rptr 208; 471 P2d 1008 (1970); People v Bentley, 47 Mich App 150; 209 NW2d 333 (1973). A defendant is only entitled to a substitution of appointed counsel when discharge of the first attorney is for 'good cause’ and does not disrupt the judicial process. People v Wilson, 43 Mich App 459; 204 NW2d 269 (1972); People v Holcomb, 47 Mich App 573; 209 NW2d 701 (1973).”

What circumstances will show "good cause” for substituting appointed counsel depends on the facts and circumstances of each case and we reverse a trial court’s determination only for an abuse of discretion. People v Hernandez, 84 Mich App 1; 269 NW2d 322 (1978). A complete breakdown of the attorney-client relationship or disagreement over whether a particular line of defense should be pursued may justify appointing new counsel. People v Hooper, 82 Mich App 713; 267 NW2d 162 (1978) (disagreement over alibi defense), People v Wilson, 43 Mich App 459; 204 NW2d 269 (1972), lv den 393 Mich 813 (1975) (communication between attorney and client had ceased). The problems in this case never reached that magnitude. The points raised by defendant, which are factually supported, can best be characterized as raising questions of professional judgment or trial strategy. These are matters entrusted to the attorney and do not justify substitution of counsel. People v Thompson, 41 Mich App 272; 199 NW2d 859 (1972), lv den 388 Mich 777 (1972), People v Bentley, 47 Mich App 150; 209 NW2d 333 (1973). The trial court did not abuse its discretion in refusing to appoint substituted counsel.

II

Defendant next contends that the trial court erred in refusing a defense request to change venue from Oakland County. Defendant had been labeled a murderer in a brochure prepared by the prosecutor of Oakland County criticizing the release of convicts prior to the expiration of their stated minimum term. Distribution of the brochure with defendant’s picture and a description of this offense was enjoined on defense counsel’s motion. There is no indication in this record of how widely the brochure was distributed before the trial court acted.

The trial court took the motion to change venue under advisement until an attempt was made to select an impartial jury. The trial court excused all prospective jurors who were familiar with the brochure. A jury acceptable to defense counsel was selected before all peremptory challenges were exercised. The record shows that defendant actively participated in selecting the jury. The selection process took less than one day with relatively few jurors having been excused because of familiarity with the case or the prosecutor’s brochure.

Under established precedent, a trial court commits no error in waiting until an attempt has been made to select a jury before ruling on a motion for a change of venue. People v Swift, 172 Mich 473; 138 NW 662 (1912). The reason for the rule is well illustrated by this case. A jury was selected rather quickly and, as selected, was free from apparent bias or prejudice. The widespread prejudice relied upon in seeking the motion to change venue seems not to have existed at all. On this record we hold that the trial court did not abuse its discretion in denying the motion to change venue. People v Nard, 78 Mich App 365; 260 NW2d 98 (1977), People v Gerald Hughes, 85 Mich App 8; 270 NW2d 692 (1978).

III

Relying principally on People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975), and People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971), defendant contends that the trial court erred in submitting the charge of first-degree murder to the jury. Under defendant’s view of the evidence there was no evidence of premeditation and deliberation. The prosecution counters that, although the evidence is entirely circumstantial, it was sufficient to allow the jury to infer premeditation and deliberation.

Premeditation and deliberation need not be established by direct evidence. That defendant had the appropriate state of mind may be inferred from all the facts and circumstances. The inferences must have support in the record, however, and not be arrived at by mere speculation. People v Hoffmeister, supra. If, upon consideration of the prosecution’s case, a jury could reasonably infer that the murder was done willfully and with premediation and deliberation, we must affirm their verdict. People v Moss, 70 Mich App 18, 41; 245 NW2d 389 (1976) (opinion of M. J. Kelly, J.), lv gtd 399 Mich 889 (1977). See, People v Palmer, 392 Mich 370; 220 NW2d 393 (1974).

The evidence in this case shows that the victim disappeared on the morning of November 5, 1976. She had been slow in preparing herself for school and had missed the bus. On such occasions she had been known to hitchhike to school. She was not in school that day, nor did she appear for work that afternoon. Her body was discovered the next morning by hunters, partially covered by trees and bark, in an undeveloped area of Oakland County. The killer had gone to considerable trouble to conceal the body.

Examination of the body showed that two weapons had been used to effectuate death. The victim had been struck in the head at least twice with a blunt, heavy object. The skull was shattered in many pieces and crushed. Medical testimony also established that the victim’s throat had been slashed after the blows to the head. The wound was sufficiently deep to sever the carotid artery, the jugular vein and the voice box. The second cut on the neck was superficial. The victim had had sexual intercourse within 24 hours of her death, but it was not shown that she had been raped.

It was not shown that the victim and defendant knew each other, although it was shown defendant’s girlfriend and she had worked in the same factory in the past. The prosecutor’s theory was that defendant had picked up the victim as she hitchhiked to school. The circumstantial evidence, discussed in the search and seizure issues below, tended to show that the victim had been in defendant’s car. It would also support the conclusion that there had been a struggle in the car, but that the victim was taken from the car, tied up and then killed in the field.

Unlike the conclusions in the cases relied upon by defendant, we conclude that the above-described evidence is sufficient to support the first-degree murder conviction. Although it does not compel the conclusion that the acts were done with premeditation and deliberation, the evidence is sufficient to avoid saying that the jury’s verdict was based on mere speculation. The area where the acts occurred and the evidence of sexual contact, compare People v Hoffmeister, supra, the fact that two weapons were used, the nature of the wounds, and that the victim had possibly been bound, People v Vertin, 56 Mich App 669; 224 NW2d 705 (1974), People v Treadwell, 63 Mich App 299; 234 NW2d 494 (1975), all tend to indicate a plan and reflection. There was no error in submitting the first-degree murder charge to the jury.

IV

The defense contends that the initial seizure and impounding of defendant’s car was improper, rendering the evidence discovered in the subsequent search, pursuant to a warrant, inadmissible. The people advance several theories in support of the validity of the police action. As in all Fourth Amendment questions, our resolution of the dispute depends on the facts.

On the morning the body was discovered, the Michigan State Police Sergeant who was apparently in charge of the investigation talked to a private investigator, Mr. Joseph Booth, near the site where the body was discovered. Booth told the sergeant that on the morning of the previous day he had been in this area and had seen a car parked by the side of the road with its parking lights on. During a closer inspection of the car, Booth had noticed a woman’s purse with its contents strewn across the seats and a woman’s coat in the back area of the car. It appeared to Booth that there had possibly been a struggle in the car.

While Booth was looking into the car an individual called from the field. Upon inquiry the individual had stated alternatively that he was hunting and then that his dog was lost. After noting the license plate number of the car, Booth left and was immediately followed by the individual in the field. Booth could then see that the individual was not dressed for hunting, did not have a dog with him and that he left alone. Booth concluded that the stories related by the individual were false.

After receiving the information from Booth, including a description of the individual in the field, the sergeant ordered a surveillance of the address listed on the registration of the license number supplied by Booth. This address was defendant’s parents’ house. Eventually the car was spotted in the driveway. Defendant was arrested outside the house while walking a dog. The car was towed to a garage on police orders approximately one hour after defendant’s arrest. No search was conducted until a warrant was obtained.

It is beyond question that the police activity involved in towing and impounding defendant’s car is a seizure which is subject to Fourth Amendment analysis. Since no warrant was obtained, the seizure is per se unreasonable and, therefore, illegal unless the people can demonstrate that the facts bring this case within one of the well defined exceptions to the warrant requirement. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971), People v White, 392 Mich 404; 221 NW2d 357 (1974).

Our view of the facts, in light of the previous cases, leads to the conclusion that the warrantless seizure of defendant’s car was justified under the so-called automobile exception to the warrant requirement. The police had probable cause to believe that evidence of the crime could be found in or on the automobile and exigent circumstances made it impractical to obtain a warrant before the seizure.

In addition to the information provided by Booth, the police also knew that defendant had previously been involved in an incident in which a young woman had been left tied up in a field. The totality of the circumstances known to the police was sufficient to warrant a man of reasonable caution in the belief that an offense had been committed and that evidence thereof would be found in or on the car. See, People v Rodriguez, 83 Mich App 606; 269 NW2d 199 (1978). Probable cause to seize the vehicle existed.

We are also convinced that exigent circumstances existed. Although defendant had been arrested, the automobile was still mobile. Chambers v Maroney, 399 US 42; 90 S Ct 1975; 26 L Ed 2d 419 (1970). Defendant’s parents were in the area and had to be kept away from the car on at least one occasion. It was unknown what other persons might have access to the car if it were to be left in the driveway. Even touching the car might have destroyed the fingerprint evidence which was later obtained. It was necessary to move the car to avoid this possible loss of evidence.

A defendant has significantly less expectation of privacy in an automobile, as opposed to a house or an office and, therefore, the warrant requirement will be more readily excused. South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), Cardwell v Lewis, 417 US 583; 94 S Ct 2464; 41 L Ed 2d 325 (1974). This is especially so when a defendant is in custody because of the minimal further inconvenience from the temporary immobilization of the vehicle. Commonwealth v Holzer, 480 Pa 93; 389 A2d 101 (1978).

The time sequence distinguishes this case from Coolidge v New Hampshire, supra, and calls for a different result. Here, the police took no action, other than surveillance, until they spotted defendant and determined that he matched the description supplied by Booth. It was only at that point that the officers could be reasonably sure they were dealing with the same individual Booth had seen in the field the day before. In Coolidge, the seizure of the car from defendant’s driveway was condemned because the police had advance knowledge of the existence and location of the evidence, the police knew before they went to the scene that they intended to seize the car, and they also had ample opportunity to obtain a warrant. Exigent circumstances were simply lacking on that record.

Here, if the evidence was to be preserved, even from the weather, quick police action was imperative. It was, therefore, reasonable under the Fourth Amendment since probable cause existed. Other courts have reached the same conclusion on similar facts. See, e.g., Commonwealth v Holzer, supra, People v Jones, 56 App Div 2d 142; 392 NYS2d 98 (1977), Montague v State, 266 Ind 51; 360 NE2d 181 (1977), State v Roy, 265 NW2d 663 (Minn, 1978).

V

Defendant also claims that the fingerprints and palmprint evidence, discovered in a search authorized by a warrant, should have been suppressed because the affidavit supporting the warrant did not recite facts which would tie the automobile to the area where the body was discovered at a relevant time. The main thrust of the argument is that seeing the car in the area on the day before the victim’s body was discovered is insufficient, i.e., it could have been entirely innocent. People v Rosborough, 387 Mich 183; 195 NW2d 255 (1972).

Assuming that a warrant was necessary, we find defendant’s contention to be without merit. The facts disclosed, although they could possibly be innocently interpreted, gave rise to a strong possibility of criminal involvement. A "common sense” reading of the affidavit supports the district judge’s decision to issue the warrant. See, People v Emmert, 76 Mich App 26; 255 NW2d 757 (1977). It was not necessary to prove that the evidence would be found, it was sufficient to show the probability of its existence. People v Coffey, 61 Mich App 110; 232 NW2d 320 (1975), lv den 395 Mich 772 (1975). The facts recited in the affidavit and the inferences which the district judge could reasonably draw from them satisfy this standard.

VI

Various other issues have been raised by defendant and his appointed appellate counsel. These issues have been considered. None require decisional discussion or reversal. Defendant received a fair trial and was properly convicted.

Affirmed.

       While it is never expressly stated in the record, defendant apparently committed this crime while on parole for another olfense. He was apparently released from custody before the expiration of his stated minimum term under the "good time” law. MCL 800.33; MSA 28.1403.

       Defendant’s fiance, with whom he was living at the time of this offense, testified that defendant habitually carried heavy bolts under the front seat of his car. These bolts were missing when the car was searched and were never accounted for at trial. The blows to the head, according to the medical testimony, could have been struck with such an object.

       When arrested defendant had a scalpel in his shirt pocket. The medical testimony showed that the victim’s neck wound could have been caused, or was consistent with, a scalpel cut. No blood or other matter was found on the scalpel seized from the defendant.

         The prosecution introduced evidence showing the victim’s activities from the morning of November 4. Under this evidence it was unlikely she had opportunity for sexual intercourse before she left for school on the morning of the crime. This indicates that she had sex with her attacker, but it does not indicate whether that relationship was forced.

      . "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’.” (Footnotes omitted.) People v Morrin, supra, pp 329-330.

       The victim’s fingerprint and a palmprint were found on the outside of the car. Dog hair taken from the inside of the car was compared with dog hair found on the victim’s clothing in an attempt to establish her presence in the car. The hair comparison evidence was not conclusive.

       Because of his suspicions based on the facts cited in the text, Booth had returned to this area the afternoon of the 5th but had not gone far enough into the field to discover the body. Why he returned the next morning and spoke to the police is not clear.

       Booth could not positively identify defendant at trial and had picked another person out of the lineup before trial. Defendant looked "similar” to the individual seen in the field, according to Booth’s trial testimony.

       For purposes of a constitutional analysis there is little or no difference in the intrusion involved in simply securing a car at the scene until a warrant is obtained as opposed to searching it or seizing it immediately. See, Chambers v Maroney, 399 US 42, 51-52.

       Discussion of the seizure of the car from defendant’s driveway is discussed in part 11 D of Justice Stewart’s opinion in Coolidge. 403 US 443, 473-484. Five justices joined in this part of the opinion, including the repeated stress on the ample opportunity to obtain a warrant on the facts presented.

       In this issue defendant is challenging only the admission of the prints found on the exterior of the car. See, Cardwell v Lewis, supra.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v WATROBA
    Docket No. 77-3776.
    Submitted January 18, 1979, at Detroit.
    Decided May 1, 1979.
    Leave to appeal applied for.
    James K. Watroba was convicted of breaking and entering an occupied dwelling, Wayne Circuit Court, Joseph G. Rashid, J. Defendant appealed and in the appellate proceedings filed a motion in the Court of Appeals for a remand for a Tucker hearing to determine whether the trial judge had impermissibly taken into consideration the defendant’s prior convictions which were allegedly unconstitutionally obtained and whether the impermissible consideration had enhanced the defendant’s sentence. This motion was granted and, at the hearing on remand, the trial court stated that it had relied on the allegedly infirm convictions but also stated that even if it had not relied upon those convictions, the same sentence would have been given to the defendant. The defendant’s motion to resentence was denied. After the remand, the defendant makes allegations that resentencing is the necessary remedy whenever allegedly defective prior convictions are, in any sense, considered by the sentencing court. Held:

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 487, 495, 572.
    Construction of Federal statute (28 USC § 2255) dealing with vacation, by direct attack, of sentence in criminal case on ground that it violated Constitution or laws, or exceeded jurisdiction, or is otherwise subject to collateral attack. 20 ALR2d 976.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

       21 Am Jur 2d, Criminal Law §§ 487, 495, 572, 585.
    Construction of Federal statute (28 USC § 2255) dealing with vacation, by direct attack, of sentence in criminal case on ground that it violated Constitution or laws, or exceeded jurisdiction, or is otherwise subject to collateral attack. 20 ALR2d 976.
    Court’s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.

       21 Am Jur 2d, Criminal Law § 583.

       21 Am Jur 2d, Criminal Law §§ 584, 585.
    Court’s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant. 96 ALR2d 768.

      1. The availability of Tucker relief should be extended to include consideration at sentencing of prior convictions which are constitutionally infirm by reason of a trial court’s failure, at a plea proceeding, to advise the defendant that his plea of guilty constitutes a waiver of his right to confront adverse witnesses.
    2. The sentencing judge’s consideration of the defendant’s prior convictions which were constitutionally infirm when sentencing the defendant does not necessarily mandate a different sentence. Since the trial judge emphatically stated that the same sentence would be given to the defendant, even without consideration of the prior infirm convictions, resentencing is unnecessary.
    Affirmed.
    Bashaha, J., concurred in part and dissented in part. He would agree that this defendant should not be resentenced. However, he would not extend the coverage of Tucker relief beyond cases where a sentencing judge considered prior convictions which were infirm because the defendant was not represented by counsel.
    Opinion op the Court
    1. Criminal Law — Sentences — Tucker Hearing — Right to Counsel — Constitutionally Infirm Convictions.
    The relief afforded a criminal defendant by a Tucker hearing should be extended beyond considerations by a sentencing judge of convictions obtained in violation of the defendant’s right to counsel to include considerations by a sentencing judge of convictions which are constitutionally defective by reason of a trial court’s failure to advise the defendant that a plea of guilty constitutes a waiver of the right to confront adverse witnesses.
    2. Criminal Law — Sentences — Prior Convictions — Right to Counsel — Right to Confront Witnesses.
    A prior conviction obtained in violation of a defendant’s right to counsel or in violation of the requirement that a pleading defendant be informed that a guilty plea constitutes a waiver of the right to confront witnesses should not be considered as a factor in sentencing for a later separate conviction.

      3. Criminal Law — Sentences — Prior Convictions — Constitutionally Infirm Convictions — Tucker Hearing.
    A different sentence for a convicted defendant is not mandated by a sentencing judge’s reliance upon a faulty prior conviction when sentencing the defendant; where there has been such reliance, the determination to be made is whether the sentence imposed for the subsequent conviction might have been different if the sentencing judge had known that the previous conviction had been unconstitutionally obtained; a Tucker hearing determines whether the punishment might have been different absent consideration of infirm convictions.
    4. Criminal Law — Sentences — Discretion.
    Trial judges are afforded expansive discretion in sentencing matters.
    5. Criminal Law — Sentences — Factors to Consider — Prior Convictions.
    A defendant’s prior conviction is merely one factor which a sentencing court, in its judgment, may consider in determining punishment.
    Partial Concurrence, Partial Dissent by Bashara, J.
    6. Criminal Law — Sentences — Prior Convictions — Tucker Hearing.

      A Tucker hearing should be granted only in those cases where a sentencing judge took into consideration a prior conviction which was constitutionally inñrm because the defendant was deprived of his right to be represented by counsel.

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

      Gromek & Bendure, for defendant on appeal.
    Before: D. C. Riley, P.J., and Bashara and MacKenize, JJ.
   D. C. Riley, P.J.

On June 6, 1977, defendant James Watroba was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. After reviewing defendant’s prior history and record, the trial judge imposed a sentence of 6 to 15 years imprisonment.

Thereafter, defendant filed a motion in this Court to remand for a hearing to determine whether the trial judge had impermissibly taken into consideration, in aggravation of sentence, prior convictions alleged to have been unconstitutionally obtained. In an order dated April 7, 1978, we granted defendant’s motion to remand for a Tucker hearing pursuant to United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), and People v Moore, 391 Mich 426; 216 NW2d 770 (1974). During the course of that hearing on the motion for resentencing, transcripts of defendant’s plea-based convictions of July 25, 1969, and July 20, 1970, were received into evidence. Defendant contended below that said convictions were constitutionally infirm in that he had not been advised that by pleading guilty he was giving up the right to confront witnesses against him. At the conclusion of the hearing the trial judge entered an order denying the motion to resentence, stating in part:

"[T]his Court relied upon the aforesaid convictions but even if this Court had not relied upon the aforesaid convictions the Court would have given the defendant the same sentence(Emphasis supplied.)

Defendant appeals as of right pursuant to GCR 1963, 806.1, and alleges that, despite the court’s emphatic declaration above, resentencing is the necessary remedy whenever allegedly defective prior convictions are, in any sense, considered by the sentencing court.

In disposing of defendant’s claim, we must briefly consider the breadth of the holdings in United States v Tucker, and People v Moore, supra.

In Tucker, the lower court’s original imposition of sentence incorporated an explicit notation of defendant’s three previous felony convictions, two of which were deficient due to lack of representation by counsel under Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963). The case was remanded back to the trial court for reconsideration of defendant’s punishment. Tucker was subsequently followed in Michigan by People v Moore, supra.

Tucker and Moore spoke only in terms of prior convictions invalid under Gideon. In the case at bar, however, defendant was represented by counsel at all times. Thus, the issue presented is whether the relief afforded by Tucker and Moore should be extended beyond convictions obtained in violation of Gideon, supra, to include those which are constitutionally defective by reason of the trial court’s failure, at a plea proceeding, to advise the defendant that his plea of guilty constitutes a waiver of his right to confront adverse witnesses. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). We answer in the affirmative. The rights protected by Boykin and Jaworski are of similar importance to the guilt-determination process as the right to counsel; consequently, we are of the opinion that a conviction obtained in violation of these decisions and the rights protected thereunder, by analogy, should not be considered as a factor in sentencing.

In so holding we must, nevertheless, reject defendant’s assertion that resentencing (modification of the original punishment) is the required remedy whenever allegedly invalid convictions are, in any sense, considered. In order to initiate a Tucker proceeding, a defendant must present prima facie proof that the prior conviction was constitutionally infirm, People v Moore, supra, at 440-441, and that it was considered by the trial judge in sentencing, United States v Tucker, supra. However, reliance upon a faulty conviction does not necessarily mandate a different sentence. A careful reading of Tucker reveals that the concern in that case was not whether the prior convictions had been considered (for the record had already indicated they were), but whether the sentence imposed might have been different if the sentencing judge had known that the previous convictions had been unconstitutionally obtained. The Tucker case was remanded for reconsideration of defendant’s sentence.

A Tucker hearing, then, determines whether the punishment might have been different absent consideration of infirm convictions. See People v Moore, supra, at 439. That determination was made in the case at bar.

We are not unmindful of the language in People v Moore, supra, at 439, that,

"[w]hile a harmless error rule might also be applied to a Tucker claim, from a practical point of view, * * * in most cases a judge can more readily resentence a convicted person than determine whether whatever consideration was given an invalid conviction at sentencing was harmless.”

and we agree that this remains the better procedure to follow in cases such as these. However, we read that excerpt as requiring, not necessarily an altered sentence, but rather a full re-evaluation of the record and circumstances in conjunction with defendant’s claim of improperly considered convictions, which proceeding could just as easily produce the same sentence as it could a different one.

In the present case, this procedure was not strictly followed; however, we believe the thrust and concern of the Tucker decision was satisfied. In so holding, we note the traditionally expansive discretion afforded trial judges in sentencing matters. See, e.g., People v Almond, 67 Mich App 713, 719; 242 NW2d 498 (1976), People v Shively, 45 Mich App 658, 665; 206 NW2d 808 (1973). A prior conviction is merely one factor which the court, in its judgment, may consider in determining punishment.

In the case at bar, the court, both at sentencing and the Tucker hearing, was aware of defendant’s apparent drug habit, former probation violations, and three previous convictions, two of which were claimed to be infirm. The totality of circumstances considered does not render the court’s statement that "it would have given the defendant the same sentence” an extraordinary one. As factfinder, it was his province to consider all the factors and elements which culminated in the original sentence imposed, determine what emphasis was to be given each, and to resolve whether that sentence should be altered.

In addition, a further remand, given that there is no likelihood that a different sentence might be imposed, would result in a useless procedure.

Affirmed.

MacKenzie, J., concurred.

Bashara, J.

(concurring in part, dissenting in part). I concur separately because I am unwilling to extend the scope of People v Moore, 391 Mich 426; 216 NW2d 770 (1974). Moore was based on United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). Tucker in turn relied on Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963). That case specifically considered only those cases where the defendant was not represented by counsel.

Until our Supreme Court or the United States Supreme Court mandates otherwise, we should not subject trial courts to further encumbrances.

       We reject the people’s assertion that the collateral attack doctrine precludes the defendant from raising at the trial court level the alleged constitutional infirmity of the prior convictions. See People v Moore, 391 Mich 426, 441-442; 216 NW2d 770 (1974):
      "We have considered the collateral attack doctrine set forth in People v Gavin, 50 Mich App 743; 213 NW2d 758 (1973), urged upon us by the prosecutor, but are unpersuaded. A defendant will not be required 'first [to] establish in separate post-conviction actions that the underlying convictions are invalid’. Clearly, a Michigan trial court is competent to resolve the factual issues regarding the constitutional validity of a defendant’s previous Michigan convictions.” (Footnotes omitted.)
      The Moore rationale is equally applicable in the case at bar. See also People v Jones, 83 Mich App 559, 568; 269 NW2d 224 (1978).


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

text:
    PEOPLE v WHITE
    Docket No. 77-3980.
    Submitted January 17, 1979, at Detroit.
    Decided May 1, 1979.
    Vandalyn R. White was convicted of armed robbery, kidnapping and first-degree criminal sexual conduct in Recorder’s Court of Detroit, Robert L. Evans, J. Defendant appeals, claiming that the trial court erred reversibly by failing to instruct the jury properly regarding the asportation element of kidnapping. Held:

    To establish asportation sufficient for kidnapping, movement of a victim must not be merely incidental to an underlying lesser crime. A jury must be instructed to the effect that to find a defendant guilty of kidnapping they must find, in addition to other elements, that the movement was not merely incidental. Failure to give a proper instruction on the element of asportation by the Recorder’s Court judge was error even in the absence of a request for instructions by counsel.
    Convictions of armed robbery and first-degree criminal sexual conduct affirmed. Conviction of kidnapping reversed.
    J. H. Gillis, J., dissented. He would hold that the court satisfied the requirement of an asportation instruction in this kidnapping prosecution by giving an instruction which conveyed the idea that the movement of the victim element must be incidental to the commission of the kidnapping.
    Opinion of the Court
    1. Kidnapping — Instructions to Jury — Asportation.
    The existence of asportation is a question of fact which must be submitted to the jury upon proper instruction in a trial for kidnapping, even in the absence of a request for such an instruction.

      References for Points in Headnotes

       1 Am Jur 2d, Abduction and Kidnapping §§ 1, 2,11-23.
    75 Am Jur 2d, Trial §§ 321, 336-339, 712, 713.

       1 Am Jur 2d, Abduction and Kidnapping § 9.
    21 Am Jur 2d, Criminal Law § 8.

       1 Am Jur 2d, Abduction and Kidnapping §§ 13, 14.

       75 Am Jur 2d, Trial § 628.

      2. Kidnapping — Instructions to Jury — Asportation — Incidental Movement — Underlying Lesser Crimes.
    The movement of a victim must not be merely incidental to an underlying lesser offense to establish asportation sufficient for kidnapping; therefore, a trial court should instruct a jury that to find a defendant guilty of kidnapping they must first find, in addition to other elements, that the movement was not merely incidental.
    3. Criminal Law — Underlying Crimes — Separation of Crimes.
    A single offense cannot be converted into two offenses by charging kidnapping based on incidental movement, and it matters not whether the single offense is a minor misdemeanor or a capital felony; the rule applies not only to those instances where a prosecutor attempts to escalate a minor crime into a felony but also where a defendant is charged with capital offenses.
    4. Kidnapping — Confinement — Asportation — Instructions to Jury.
    Forcible or secret confinement may supply a necessary alternative to asportation to complete a kidnapping but this does not relieve a trial court from giving an instruction on the element of asportation in a trial for kidnapping because whether the secret confinement supplies a necessary alternative to asportation is a question of fact for the jury; therefore, where court instructions set forth two theories under which a defendant could be found guilty of kidnapping, abduction or secret confinement, a failure to give a proper instruction regarding the element of asportation was error.
    5. Criminal Law — Instructions to Jury — Proper and Improper Instructions.
    The general rule in Michigan is that where both erroneous and proper instructions have been given to a jury, the jury is presumed to have followed the erroneous instructions.
    Dissent by J. H. Gillis, J.
    6. Kidnapping — Instructions to Jury — Elements of Offense — Movement — Asportation.

      Instructions on kidnapping which convey the idea that the movement of the victim element must be incidental to the commis

      sion of a kidnapping are sufficient to satisfy the requirement that an instruction on asportation be given to the jury in a trial for kidnapping.

      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.

      Townsend, Haley & Overton, for defendant.
    Before: D. C. Riley, P.J., and J. H. Gillis and MacKenzie, JJ.
   D. C. Riley, P.J.

Defendant was convicted of one count of armed robbery, MCL 750.529; MSA 28.797, and one count of kidnapping, MCL 750.349; MSA 28.581, and two counts of first-degree criminal sexual conduct, MCL 750.520(b); MSA 28.788(2). He was sentenced to serve 10 to 16 years in prison for each count, the sentences to run concurrently.

On appeal, defendant raises two issues, only one of which merits our consideration. He contends that the trial court erred reversibly by failing to instruct the jury properly regarding the asportation element of kidnapping.

In pertinent part, the court instructed the jury as follows:

"One kind of kidnapping requires the prosecutor to prove, beyond a reasonable doubt, that there was a seizure and a movement of a person to another place where the intent in that circumstance is to actually confine a person against his or her will. In that circumstance the prosecutor must prove it was a seizure and some actual movement, some actual asportation. The purpose of that asportation must be the confinement.”

In People v Adams, 389 Mich 222, 236, 238; 205 NW2d 415 (1973), the Court held that to establish asportation sufficient for kidnapping, the movement must not be merely incidental to an underlying lesser crime. Inasmuch as the Court pointed out that this was a fact question for the jury to decide, this holding mandates that the jury be instructed that to find a defendant guilty of kidnapping they must first find, in addition to other elements, that the movement was not "merely incidental”. People v Thomas Ross, 73 Mich App 287, 290; 251 NW2d 268 (1977). The court in the present case failed to comply with this requirement. Failure to give a proper instruction, even in, as here, the absence of a request by defense counsel, requires reversal. People v Curry, 58 Mich 212, 216; 227 NW2d 254 (1975).

The prosecution argues that Adams, supra, applies only to those instances where the prosecutor attempts to escalate a minor crime into a felony, and concludes that since this defendant is charged with four capital offenses, the basis, as they perceive it, for the Adams holding does not exist here. However, our reading of Adams persuades us that the interpretation found in People v Worden, 71 Mich App 507; 248 NW2d 597 (1976), is correct. The thrust of Adams is to prevent one crime from being transformed into two offenses (e.g., kidnapping and rape). "Thus it matters not whether the single offense is a minor misdemeanor, such as simple assault, or a capital felony such as armed robbery”. Worden, supra at 513-514.

. It is argued further that the Adams instruction does not apply to a kidnapping which involves forcible or secret confinement. Therefore, since under the information here the defendant was so charged, and since there was testimony to support the charge, it purportedly follows that the court was under no duty to instruct as to asportation. But here, again, while the Adams Court noted that secret confinement could supply a necessary alternative to asportation it cautioned that this was a fact determination to be made by the jury. Adams, supra at 238-239.

In instructing the jury here, the court set forth two theories under which the defendant could be found guilty: the complainant had been abducted by defendant against her will; or, defendant had secretly or forcibly confined complainant. We cannot glean which theory the jury relied upon to find the defendant guilty, but it is clear that the failure to give an instruction regarding asportation was error.

The general rule in Michigan is that where both erroneous and proper instructions have been given to the jury, the jury is presumed to have followed the erroneous instruction. People v Neumann, 35 Mich App 193, 195-196; 192 NW2d 345 (1971). Therefore, we reverse defendant’s conviction for kidnapping.

Mackenzie, J., concurred.

J. H. Gillis, J.

(dissenting). I disagree with the majority’s conclusion that the trial court failed to instruct the jury properly. Among other things, the trial court stated the following:

"One kind of kidnapping requires the prosecutor to prove, beyond a reasonable doubt, that there was a seizure and a movement of a person to another place where the intent in that circumstance is to actually confine a person against his or her will. In that circumstance the prosecutor must prove it was a seizure and some actual movement, some actual asportation. The purpose of that asportation must be the confinement.” (Emphasis supplied.)

While not a model of clarity, the charge conveys the idea that the movement element must be, incidental to the commission of the kidnapping. This satisfies the Adams asportation standard. People v Widgren, 53 Mich App 375, 384; 220 NW2d 130 (1974).

I would affirm.


author: Allen, J.

text:
    THE CLARKE-GRAVELY CORPORATION v DEPARTMENT OF TREASURY
    Docket No. 77-4477.
    Submitted October 5, 1978, at Lansing.
    Decided May 1, 1979.
    Plaintiffs, the Clarke-Gravely Corporation and others, were all subsidiary corporations of Studebaker-Worthington Corporation and originally filed individual income tax returns for the years 1971, 1972 and 1973. In 1975, more than three years after the 1971 returns were filed, plaintiffs filed claims for refunds for those years by filing amended combined returns. Defendant Department of Treasury processed the refund claims for 1972 and 1973 and paid the claims without interest but denied a refund for 1971 because the claim was not timely filed. Plaintiffs sued the Department of Treasury and the State Treasurer in the Ingham Circuit Court claiming that the statute of limitations was tolled by the fact that plaintiffs’ 1971 combined Federal return was in litigation and claiming interest on the refunds from the date of overpayment. The judge, Thomas L. Brown, granted summary judgment denying the 1971 refund claim and granting interest on the 1972 and 1973 refunds from the date of filing the combined returns. Plaintiffs appeal. Held:

    1. The statute suspending the running of the statute of limitations under the state income tax law pending final determination of litigation of or hearing on a taxpayer’s Federal or state income tax return applies to both the collection of deficiencies and the claiming of refunds but does not encompass the tolling of the time for filing for a refund using combined returns.
    2. A refund of state corporation income tax occasioned by the filing of an amended combined return bears interest from the date of filing of the amended return.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes § 254.

       73 Am Jur 2d, Statutes §§ 265, 306.

       71 Am Jur 2d, State and Local Taxation § 608.
    72 Am Jur 2d, State and Local Taxation §§ 877, 1069, 1074, 1141.
    51 Am Jur 2d, Limitation of Actions § 34.
    When right to refund of state or local taxes accrues, within statute limiting time for applying for refund. 46 ALR2d 1350.
    71 Am Jur 2d, State and Local Taxation § 611.
    72 Am Jur 2d, State and Local Taxation §§ 1068, 1069.

      Affirmed.
    1. Statutes — Construction — Construction of Entire Act.
    An act must be read- in its entirety and the meaning given to one section arrived at after due consideration of other sections so as to produce, if possible, a harmonious and consistent enactment as a whole.
    2. Statutes — Literal Construction — Unjust Result.
    A fundamental rule of statutory construction is that departure from the literal construction is justified where such a construction would produce an absurd and unjust reality and would be clearly inconsistent with the purposes and policies of the act in question.
    3. Taxation — Income Tax — Statute of Limitations.
    The statute suspending the running of the statute of limitations under the state income tax law pending final determination of litigation of or hearing on a taxpayer’s Federal or state income tax return applies to both the collection of deficiencies and the claiming of refunds but does not encompass the tolling of the time for filing for a refund using a combined return in amendment of a previously filed individual return.
    4. Taxation — Income Tax — Refunds — Interest on Refunds.
    Refunds of state corporate income tax occasioned by the filing of amended combined return bear interest from the date of filing of the amended return.

      Miller, Canfield, Paddock & Stone (by Samuel J. McKim, III, and Kenneth E. Konop), for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengosld, Solicitor General, and Richard R. Roesch and E. Boomie Mikrut, Assistants Attorney General, for defendants.
    Before: V. J. Brennan, P.J., and Allen and P. R. O’Connell, JJ.

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

   Allen, J.

Does § 411(2) of the Michigan Income Tax Act, MCL 206.411(2); MSA 7.557(1411)(2), which provides for the tolling of the three-year period of limitations for refunds as set forth in § 441(2) of said act, MCL 206.441(2); MSA 7.557(1441)(2), apply when the corporate claimant of the refund, who originally filed an individual income tax return, more than three years later filed a combined return as provided in § 335, MCL 206.335; MSA 7.557(1335), of said act? Where a combined return is filed within the three-year period of limitations set forth in § 441(2) thus entitling the taxpayer to a refund and interest, is the interest on the refund computed from the date that the individual return was filed or from the date that the combined return was filed? On September 12, 1977, the trial court answered the first question in the negative and, in response to the second question, held that interest is computed from the date of filing the amended return. Plaintiffs appeal of right. These two questions of first impression arise on the following facts.

Plaintiffs are subsidiary corporations of the parent Studebaker-Worthington Corporation. In 1971, 1972, and 1973, each plaintiff filed a separate Michigan corporation tax return. Commencing in 1968, the first year that the Michigan Income Tax Act of 1967 took effect, plaintiffs filed their own separate corporate tax returns. In 1975, plaintiffs learned that they would receive a substantial refund if amended combined tax; returns were filed under § 335 of the act for the years 1971, 1972 and 1973. Under the recomputed returns, plaintiffs claimed refunds as follows: $149,293 for 1973; $101,976 for 1972; and $74,494 for 1971. The Michigan Department of Treasury allowed the refunds for 1972 and 1973, but without interest. The refund for 1971 was denied on grounds that it was not timely filed, having been filed on September 12, 1975, a date more than three years after April 17, 1972, which was the date on which the separate 1971 return was filed. The 1971 Federal return had been audited by the Federal government and was in the process of litigation when plaintiffs filed the combined return in 1975.

Plaintiffs filed suit in the Circuit Court for Ingham County claiming a refund for the year 1971, and interest thereon from April 17, 1972. Further, plaintiffs claimed they were entitled to interest on the refunds given them for the years 1972 and 1973. The circuit court granted defendants’ motion for summary judgment for the reason that the combined return for 1971 was not filed three years from the date of filing the original separate return. Interest on the 1972 and 1973 returns was allowed, but only from September 12, 1975—the date on which the combined returns were filed. Plaintiffs disagree with the trial court’s denial of the 1971 refund and further seek interest on the 1972 and 1973 payments from April 17, 1972.

When read apart from other sections of the statute, § 441 spells out an absolute three-year period within which a taxpayer may claim a refund.

"(2) A taxpayer who has paid a tax which he claims was not due under this act may, on or before the expiration date of 3 years from the date set for the ñling of the annual or ñnal return for the year or the date the tax was paid, whichever is later, and not after, petition the department in writing to refund the amount so paid. If the annual return reflects an overpayment or credits in excess of the tax, the declaration thereof on the return constitutes a claim for refund.” (Emphasis supplied.) MCL 206.441(2); MSA 7.557(1441)(2).

But plaintiffs contend that § 441(2) cannot be read in isolation and should be interpreted in conjunction with § 411 which pertains to periods of limitations.

"(1) No deficiency, interest or penalty shall be assessed for any year after the expiration of 3 years from the date set for the filing of the annual return for each year or the date the return was filed whichever is later. If any person subject to tax under this act fraudulently conceals any liability for the tax or any part thereof, the department within 2 years of the discovery of the fraud shall assess the tax with interest and penalties as provided in this act, computed from the date on which the tax liability originally accrued, and the tax, penalties and interest shall become due and payable after notice and hearing as provided in this act, anything herein contained to the contrary notwithstanding.
"(2) The running of the statute of limitations shall be suspended for the period pending ñnal determination of litigation of or hearing on a taxpayer’s federal income tax return or of the return required by this act, or in the event any notice is required under the provisions of [MCLA 206.325; MSA 7.557(1325)], and for 1 year thereafter.
"(3) The running of the statute of limitations shall be suspended for the period for which the taxpayer and the commissioner have consented in writing that the period be suspended. The period so extended may be further extended by subsequent consent in writing made before the expiration of the extended period.
"(4) The running of the statute of limitations shall be suspended for any taxable year for which no return has been filed.” (Emphasis supplied.) MCL 206.411; MSA 7.557(1411).

The 1971 single consolidated Federal income tax return filed by the parent company included tax returns for three of the plaintiffs in this action. That return had been questioned by the Federal government and was still in the process of litigation when plaintiffs filed their combined Michigan return for 1971.

I

Plaintiffs argue that under §411(2) the pending litigation on the 1971 Federal income tax return tolls the three-year limitation imposed by § 441(a). Despite the over-all excellence of plaintiffs’ brief and oral argument we respectfully disagree. Subsection (2) of § 411, supra, is obviously ambiguous. One cannot determine what period of limitations the words "the running of the statute of limitations” refer to. Does it refer to the three-year period of limitations for refunds set forth in § 441(2) or does it refer to the three-year period of limitations for assessment of deficiencies set forth in §441(1), or both? The trial court held that because subsection (2) of § 411 immediately followed subsection (1) of §411 and because subsection (1) pertained only to deficiencies, subsection (2) tolled only the period during which the state could assess a deficiency. Subsection (2) is ambiguous in a second respect. Assuming, arguendo, that it does refer to refunds, it is not clear from the wording whether the refunds eventually due must arise out of litigation or hearing on the taxpayer’s Federal return or whether, as in the instant case, the refunds arise from facts completely unrelated to the Federal audit. Or to state the question in another way—did the Legislature intend subsection (2) to apply to a § 335 situation where, quite apart from any Federal income tax dispute, a taxpayer elects to file a combined return?

Where one section of a statute is ambiguous or is susceptible to more than one interpretation, the entire statute must be read as a whole, and the meaning given to one section should be determined by considering the other sections. King v Director of the Midland County Dep’t of Social Services, 73 Mich App 253; 251 NW2d 270 (1977), Williams v Secretary of State, 338 Mich 202; 60 NW2d 910 (1953). Another rule of statutory construction—and one which we will again refer to later in this opinion—is the rule that departure from a literal construction is justified when such a construction would produce an awkward result or a result inconsistent with the policies of the act in question. Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976). Relevant to our construction of the statute as a whole are § 325(2) and § 335. Section 325(2) reads:

"Every taxpayer shall notify the department in writing of any alteration in, or modification of, his federal income tax return which affects his taxable income under this act and of any similarly related recomputation of tax or determination of deficiency under the provisions of the internal revenue code. The notice shall be given in writing within 60 days after the final alteration, modification, recomputation or determination of deficiency. If the commissioner finds upon all the facts that an additional tax under this act is owing, the taxpayer shall thereupon pay the additional tax. If the commissioner finds that the taxpayer has overpaid the tax imposed by this act, a credit or refund of the overpayment shall thereupon be made as provided in section 441.” MCL 206.325(2); MSA 7.557(1325)(2).

Upon reading and considering the separate sections above cited in pari materia and upon evaluating the statute as a whole, this Court concludes that § 411(2) refers to both claims for deficiencies by the state and claims for refunds by the taxpayer. In this respect our conclusion resolves the first mentioned statutory ambiguity in favor of plaintiffs—a conclusion we note, which was conceded by defendants upon oral argument. However, we also conclude that § 411(2) does not encompass the tolling of the time for filing for a refund using a combined return under § 335. In this respect our conclusion resolves the second mentioned statutory ambiguity in favor of the state.

It appears clear to us that in § 411(2) and § 325, the Legislature intended to keep open the three-year limitation period where the taxpayer’s Federal return was being questioned. Because the state tax "piggy-backs” on the Federal return, Michigan Consolidated Gas Co v Dep’t of Treasury, 72 Mich App 426, 435; 250 NW2d 85 (1976), the Legislature was certain that any eventual change in the Federal return would in turn affect the state tax, resulting in either deficiencies or refunds. In such situations it is always the same taxpayer who is involved, viz.: the taxpayer who has filed the state return. But under § 335, a different taxpayer is involved. A combined return under § 335 is necessarily filed by a different taxpayer than the taxpayer filing the original state return. In the case before us the five named plaintiffs filed the state tax returns but it was Studebaker-Worthington which filed the combined return. For this reason we do not believe the Legislature intended the tolling to apply to § 335 situations.

Our conclusion that the Legislature did not intend to extend»the three-year period within which to file a combined return is reinforced by practical considerations. It is a well known fact, of which we take judicial notice, that corporate income fluctuates greatly. Depending upon economic conditions the differences between the tax due under individual returns and a combined return is extraordinary. It is in the state’s interest that this disparity and the state’s consequent obligation to make a refund be known within a reasonably short period of time. Three years appears to be a' reasonable period within which the taxpayer is given the option. But under plaintiffs’ construction of the statute, the grace period may be prolonged while the Federal government first audits and then engages in litigation on 40 or more subsidiaries. Such an interpretation is not reasonable. As stated in Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948), where the meaning of a statute is doubtful:

"* * * a reasonable construction must be given, looking to the purpose subserved thereby. Attorney General v Bank of Michigan, Harr Ch (Mich) 315; Bennett v Michigan Pulpwood Co, 181 Mich 33 [147 NW 490 (1915)]. Its occasion and necessity are matters of judicial concern. Sibley v Smith, 2 Mich 48[6 (1853)], and Bennett v Michigan Pulpwood Co, supra, and its purpose should be effected if possible, People v Stickle, 156 Mich 557 [121 NW 497 (1909)]. Its spirit and purpose should prevail over its strict letter, Stambaugh Township v Iron County Treasurer, 153 Mich 104 [116 NW 569 (1908)].”

Neither is plaintiffs’ construction of the statute practical.

"Nor will it be forgotten, in any question of statutory tax interpretation, that taxing is a practical matter and that the taxing statutes must receive a practical construction. ” In re Brackett Estate, 342 Mich 195, 205; 69 NW2d 164 (1955). (Emphasis supplied.)

Plaintiffs herein may argue that once this Court concludes, as we have in fact concluded, that § 411(2) relates to claims for refunds, the language of § 411(2) becomes so unambiguous and clear as to leave no room for a practical construction. See Detroit Edison Co v Secretary of State, 281 Mich 428, 433; 275 NW 196 (1937). We disagree, first, because we do not find the section to be clear and unambiguous and, second, because the plain words of § 441(2) state that the taxpayer’s right to claim a refund is three years "and not after”. In view of the express "and not after” limitation and the fact that refunds are considered a privilege rather than a right, Manistee & NER Co v Comm’r of Railroads, 118 Mich 349, 350; 76 NW 633 (1898), we conclude that in the case before us the taxpayers’ right to a refund depended upon filing the consolidated return within three years and that the taxpayers’ failure to exercise that privilege forfeited the right to the refund.

In their brief and oral argument, excellently done in all respects, plaintiffs cite cases from other jurisdictions in rebuttal to defendants’ claims that § 411(2) tolling applies only to refunds directly related to downward changes in the Michigan tax liability required by reason of the Federal litigation. Plaintiffs conclude that these cases refute any conclusion that "if facts which are not relevant to Federal taxable income were called to the Commissioner’s attention with respect to the year 'reopened’ by Section 325(2), or during the pendency of Federal hearings or litigation, the Commissioner would have to ignore them, and base his determination solely upon the actual changes in Federal taxable income”.

The flaw in plaintiffs’ reliance on said cases is that they speak to a different issue than the question before us. The Oregon and California cases so cited hold that once the taxpayer’s Federal return is in litigation and a change therein reported or otherwise brought to the attention of the state, the amount of the refund or deficiency may (in the absence of statutory provisions which, like Nebraska, Maine, et al, restrict the amount of the refund or deficiency to the precise change in the state tax caused by the Federal change) exceed the amount of the refund or deficiency occasioned by the change in the Federal return alone. In all of those cases the ensuing refund or deficiency stemmed from the change in the Federal return. But in the case before us the issue is not the amount of the higher refund but whether the tolling provision of §411(2) extends the time period within which the taxpayer may file a § 335 combined return. In the case before us, unlike the Oregon and California cases, the ensuing refund in no way stemmed from the change in the Federal return.

The inapplicability of the Oregon-California cases relied upon by plaintiffs is best illustrated by International Health & Life Ins Co, supra. There, plaintiff, an Oregon corporation, was a subsidiary of Industrial Housing Association, a California corporation doing business in Oregon. Both, corporations filed separate corporate excise tax returns in Oregon for 1964. In 1965, a corporate reorganization took place. In 1971, the reorganization was recognized by the IRS and International was allowed to carry back a 1967 operating loss against its 1964 income. As a result, International’s tax for 1964 was virtually eliminated and International would be entitled to a refund, provided (1) International’s claim for a refund was not barred by Oregon’s three-year statute of limitations, ORS 314.415, and (2) the refund was not restricted to those items which were not adjusted by the IRS. As to the first issue the court held that the claim was not barred by the statute because another section of the code expressly extended the time period. On the second issue the court held that the refund on an excise tax was not restricted to the items adjusted by IRS.

Unlike Oregon which makes a specific exception where there is a change in Federal taxable income, Michigan has no statutory exception extending the time for filing a § 335 combined return. Furthermore, the reduction in International’s 1964 state tax resulted from (though it exceeded in amount) the change made by IRS, whereas in the case before us the requested refund has nothing to do with changes made or to be made by the pending litigation in Studebaker-Worthington’s 1971 Federal return. Accordingly, we hold that defendants properly rejected plaintiffs’ combined tax return for 1971. While the trial judge assigned the wrong reasons for his decision on this issue, he nevertheless reached the correct result.

II

The second question raised on appeal to us is whether interest on the refunds due plaintiffs for the tax years 1972 and 1973, is computed from the date the original returns were filed or is computed from the date that the combined returns were filed on September 12, 1975. Prior to January 1, 1974, the Michigan income tax act did not expressly provide for the payment of interest on refunds. In 1974, § 441 was amended by adding to subsection (3) the following language, effective for tax years on or after January 1, 1974:

"* * * [I]nterest at the rate of 9% per annum shall be added to the refund, computed in the same manner and subject to the same provisions as provided in section 6611 of the internal revenue code.” MCL 206.441(3); MSA 7.557(1441)(3).

Plaintiffs claim that although the added language does not govern a 1971 tax return, it formalizes what was implicit in the statute prior to 1974. In expanding on this statement, plaintiffs state that the Michigan statute "piggy-backs” and is modeled after the Federal act; that under Treasury Regulation 301.6611-l(a) of the Federal act, interest is paid "from the date of overpayment”; that the date of overpayment is defined as the date on which the taxpayer overpays his correct tax liability.

Plaintiffs’ claim is technically attractive but we remain unconvinced. We hesitate to read into the statute provisions which the Legislature did not add until a later date. In the case before us the alleged "overpayment” occurred only because the taxpayers elected to use a nonfederal-type provision. Filing a combined report is a special legislative privilege pursuant to § 335. Plaintiffs’ filing of a combined Michigan return was not necessarily related to any of its Federal rights. We decline to give similar terms in the Federal and state statutes similar meanings when those terms are applied to dissimilar situations. Realistically, plaintiffs’ original 1972 and 1973 tax returns were not "overpayments”. As first filed, plaintiffs paid the precise amount of tax required under the returns. It was only after plaintiffs decided to file amended combined returns that an "overpayment” for 1972 and 1973 occurred. They have been paid interest from that date. This is not a case where the taxpayers have been paid no interest at all. Nor is this a case where the refund was due to an improper assessment or other action of the state. Until September 12, 1975, plaintiffs had nothing coming and nothing was due by the state. From that date forward plaintiffs have been paid.

Affirmed. No costs, a public question being involved.

       The parent corporation consists of some forty subsidiaries throughout the United States, Canada and Europe.

       "In the discretion of the commissioner, any taxpayer which owns or controls either directly or indirectly substantially all the capital stock of 1 or more other corporations, or substantially all the capital stock of which is owned or controlled either directly or indirectly by 1 or more other corporations, or by interests which own or control either directly or indirectly substantially all of the capital stock of 1 or more corporations may he required or permitted to make a report on a combined basis covering any such other corporations and setting forth such information as the commissioner may require.” (Emphasis supplied.) MCL 206.335; MSA 7.557(1335).

       In response to questions from the Court at oral argument, counsel for defendants admitted that the Department of Treasury had interpreted §411(2) to include refunds as well as deficiencies. However, defense counsel claimed that said section did not extend to § 335 situations.

       The cases cited by plaintiffs for this proposition are International Health & Life Ins Co v Dep’t of Revenue, 269 Or 23; 523 P2d 223 (1974), Industrial Air Products Co v Dep’t of Revenue, 259 Or 38; 485 P2d 24 (1971), Montgomery Ward & Co, Inc v Franchise Tax Board, 6 Cal App 3d 149; 85 Cal Rptr 890 (1970). Plaintiffs also cite statutory provisions which, unlike Michigan’s, expressly restrict refunds (or deficiencies) during the period "reopened” to refunds for the precise change in the state tax caused by the Federal change. See § 77-2793 Neb Rev Stat 1943; ch 36, § 5278, Maine Rev Stat 1954; § 1083 NY Tax Law; Ill Rev Stat 1975, ch 120, par 9-905(e).

       "However, we agree with the Tax Court that another statute, ORS 314.380(2), is applicable to the instant case. That statute states, in pertinent part:
      '* * * The taxpayer may file a report of a federal change or correction, and the report of the federal change or correction shall be treated by the department as a claim for refund pursuant to ORS 314.415 and, notwithstanding the [time] limitations of ORS 314.415, shall be deemed timely if filed with the department within one year after the federal correction has become final.’ ” International Health & Life Ins Co v Dep’t of Revenue, 269 Or 23, 26; 523 P2d 223.

       Treasury Regulation 301.6611-1(a), provides a clear statement of how the Federal income tax rule works. It provides in relevant part as follows:

        "* * * there can be no overpayment of tax until the entire tax liability has been satisfied. Therefore, the dates of overpayment of any tax are the date of payment of the first amount which (when added to previous payments) is in excess of the tax liability * * * and the dates of payment of all amounts subsequently paid with respect to such tax liability.”
      Section 6611 of the Internal Revenue Code of 1954, as amended, then goes on to provide that interest is to be paid from the date of the "overpaymen t”.

       In view of the fact that the Legislature did not provide for paying interest on tax refunds until January 1, 1974, the question arises why any refunds were paid in this case at all. However, that question was not raised by defendants in this appeal. Further, there is case.law authority that even in the absence of statutory authority, interest must be paid on tax refunds. Standard Oil Co v Michigan, 283 Mich 85, 96; 276 NW 908 (1937), Ready Power Co v Dearborn, 336 Mich 519, 526; 58 NW2d 904 (1953).


author: N. J. Kaufman, P.J. T. M. Burns, J.

text:
    PEOPLE v McKAIG PEOPLE v LOEWE
    Docket Nos. 77-4678, 78-303.
    Submitted January 4, 1979, at Detroit.
    Decided May 1, 1979.
    Michael K. McKaig and William Loewe were convicted of unarmed robbery in a bench trial, Wayne Circuit Court, Peter B. Spivak, J. Defendants appeal. The only meritorious question on appeal concerns defendants’ waiver of the right to a trial by jury. Defendants signed waiver of jury forms which were acknowledged by the court clerk. Defendant McKaig alleges correctly that the transcript of the hearing does not reveal that he orally acknowledged the waiver. Defendant Loewe does not allege this to be a ground for reversal but in the interests of justice the Court of Appeals considers the legal question as to both defendants. Held:

    The statute covering a waiver of a jury requires that a written waiver must be made in open court. It would be better procedure to supplement the written waiver with an oral acknowledgment but this is not required by the statute. Therefore, there should be no hard and fast rule against waiver where a hearing transcript does not reveal defendant’s oral acknowledgment of a written waiver. Defendant’s waiver was valid and there was strict compliance with the statute where it is apparent that the waiver was made in open court, the waiver was signed and filed the same day as the commencement of trial, the defendant was represented by an attorney and the defendant does not claim he did not sign the waiver in open court after having an opportunity to consult with his attorney.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that oral acknowledgment of a defendant’s waiver of his right to a jury trial should be mandatory. Rejection of this hard and fast rule sets a dangerous precedent involving an important right. The waiver should be an informed waiver and although the statute does not require an oral waiver per se, that is the best method of proving the waiver was made in open court as required by statute. The mere fact that a written waiver is dated the same date as the first day of trial does little to insure that it was acknowledged in open court.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 219, 312.
    47 Am Jur 2d, Jury §§ 81-83.

      Opinion op the Coukt
    1. Criminal Law — Right to Jury Trial — Waiver — Written Waivers — Open Court — Arraignment — Consultation with Counsel — Statutes.
    A criminal defendant has the right to waive a determination of facts by a jury and be tried before the court without a jury, and such waiver and election by a defendant shall be in writing, signed by the defendant and filed in such cause and made a part of the record thereof; such waiver of trial by jury must be made in open court after defendant has been arraigned and has had an opportunity to consult with counsel (MCL 763.3; MSA 28.856).
    2. Criminal Law — Right to Jury Trial — Waiver — Written Waiver — Oral Waiver — Consultation with Counsel — Statutes.
    The statute covering waiver of trial by jury requires that in order for a defendant to effectively waive his right to a jury trial he must make a written waiver in open court, and while it is better to supplement a written waiver with an oral acknowledgment, it is not required by statute; therefore, there should be no hard and fast rule against waiver where a hearing transcript does not reveal that a defendant orally acknowledged the waiver of a jury trial because there can be a valid waiver and strict compliance with the statute where it is apparent that the waiver was made in open court, the waiver was signed and filed the same day as the commencement of trial, the defendant was represented by an attorney and the defendant does not claim he did not sign the waiver in open court after having an opportunity to consult with his attorney (MCL 763.3; MSA 28.856).
    Dissent by T. M. Burns, J.
    3. Criminal Law — Right to Jury Trial — Waiver — Written Waiver — Oral Waiver — Silent Record.

      The right to a trial by a jury is a personal and constitutionally guaranteed right which cannot be waived by defense counsel and cannot be presumed to have been waived where the record
      is silent; therefore, the best method of proving a defendant’s waiver of his right to a jury trial is by oral acknowledgment in open court even though the statute does not per se require the oral waiver, because the right to a jury trial is too important in our system and the possibilities for abuse too great, compared with the ease of insuring that a waiver is an informed waiver, to apply anything other than a broad prophylactic rule which requires that even though a defendant has signed a written waiver, if the record does not disclose an oral waiver in open court, then there is no effective waiver.

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

      Riley & Roumell (by Robert J. Colombo, Jr.), for defendant McKaig.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   N. J. Kaufman, P.J.

On July 26, 1977, defendants Michael McKaig and William Loewe were found guilty in a bench trial of unarmed robbery, MCL 750.530; MSA 28.798. They were sentenced on August 9, 1977, and appeal as of right.

Michigan law requires that in order for a defendant to effectively waive his right to a jury trial, he must make a written waiver in open court. MCL 763.3; MSA 28.856:

"In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in such cause and made a part of the record thereof. It shall be entitled in the court and cause and in substance as follows: T,_, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’
Signature of defendant.
"Such waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel.”

The file shows defendants signed the "Waiver of Jury Trial Circuit Court” form on July 26, 1977. The waiver was acknowledged by Judge Spivak’s court clerk the same date.

Defendant McKaig alleges correctly that the transcript of the hearing does not reveal that he orally acknowledged the waiver of jury trial. Defendant Loewe does not allege this to be a ground for reversal. However, in the interest of justice we will consider the legal question as to both appellants.

In People v Rimmer, 59 Mich App 645, 647; 230 NW2d 170 (1975), a panel of this Court reversed the defendant’s conviction and stated:

"While the record does contain a written waiver executed by defendant on November 9, 1973, nowhere in the record does any transcript of an oral waiver before or at trial appear.”

I agree with the Rimmer result because footnote 2 reveals that the written waiver was executed more than three months prior to defendant’s trial and there is no indication that the waiver was made in open court. In our case, however, the waiver was stamped filed on the same date as the commencement of trial and defendant McKaig makes no claim that the waiver was not made in open court.

In People v Word, 67 Mich App 663, 665-666; 242 NW2d 471 (1976), a panel of this Court, in which I was one of the panelists, stated:

"* * * Thus strict compliance with the statute is necessary and requires both a written waiver and an acknowledgment in open court of the waiver of a jury. There being no open court acknowledgment of the waiver of jury trial, this Court’s prior ruling in Rimmer, supra, requires a retrial.”

Since concurring in the Word opinion, supra, I have come to the conclusion that there cannot be a hard and fast rule for every case. A valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. In cases such as the present, where the waiver is signed and filed the same day as the commencement of trial, the defendant is represented by an attorney, and the defendant does not claim that he did not sign the waiver in open court after having the opportunity to consult with his attorney, the statute is strictly complied with. See People v Woody, 25 Mich App 627, 629; 181 NW2d 621 (1970), lv den 384 Mich 822 (1971).

We encourage trial judges to supplement the written waiver with an oral acknowledgment by the defendant. This practice eliminates any doubt as to whether or not the waiver was made in open court. However, the statute does not require an oral waiver and we decline to impose that requirement on trial judges.

We have carefully reviewed the records and briefs and find the remaining allegations of error to be without merit.

Affirmed.

Bashara, J., concurred.

T. M. Burns, J.

(dissenting). The rules which should have governed this case are well stated in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 558, pp 53-54:

"The statute is in derogation of the common law and therefore must be strictly construed. Since the right to waive trial by jury arises only by statute, it follows that no effective waiver may result except through strict compliance with the mandates contained therein. The right to a trial by a jury is a personal and constitutionally guaranteed right which cannot be waived by defense counsel and cannot be presumed to have been waived where the record is silent. Therefore, even though the defendant, in open court, orally waives his right to a jury trial, if he refuses or fails to sign a written waiver, there is no effective waiver. Likewise, even though the defendant has signed a written waiver, if the record does not disclose an oral waiver in open court, then there is no effective waiver.” (Footnotes omitted.)

The majority rejects any "hard and fast rule for every case”. In doing so, I believe they are setting a dangerous precedent. The right to a jury trial is too important in our system and the possibilities for abuse too great, compared with the ease of insuring that a waiver is an informed waiver, to apply anything other than a broad prophylactic rule. People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975).

Although the statute does not per se require an oral waiver, that is the best method of proving the waiver was made in open court as required by the statute. The mere fact that the written waiver is dated the same as the first day of trial does little to insure that it was acknowledged in open court.

I would reverse these convictions because of the trial court’s failure to elicit an acknowledgment of the waiver in open court. People v Word, 67 Mich App 663; 242 NW2d 471 (1976), People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975).

      "2 This waiver was executed more than three months prior to defendant’s trial.”

       To the extent that People v Woody, 25 Mich App 627; 181 NW2d 621 (1970), lv den 384 Mich 822 (1971), is inconsistent with this position, I would no longer follow it.