text:
    PEOPLE v STRELOW
    Docket No. 78-3704.
    Submitted January 17, 1980, at Detroit.
    Decided March 17, 1980.
    Albert J. Strelow was convicted in St. Clair Circuit Court, Hal-ford I. Streeter, J., of resisting and obstructing an officer in the discharge of his duties. This charge arose out of a struggle between defendant and á police officer who had entered defendant’s residence to effectuate the arrest for a traffic offense. The officer had observed defendant’s automobile traveling in excess of the speed limit; however, the officer, instead of stopping defendant immediately, followed defendant to his residence, using neither flashing lights nor siren. As defendant exited from his automobile, the officer shouted "hey”, whereupon defendant ran into his residence with the officer close behind. The officer entered the residence without announcing his purpose or requesting admission to the premises. When defendant refused to produce his driver’s license, a protracted scuffle ensued. Defendant appeals claiming that his arrest was invalid by reason of the officer’s warrantless and unannounced entry into a defendant’s private residence. Held:

    1. The officer could properly arrest defendant for the traffic offense even though some period of time had passed between the time of the offense and the time the officer eventually attempted to effectuate the arrest. The arrest was not so temporally remote from the traffic violation as to require the securing of a warrant.
    2. A police officer may make a warrantless entry into a private residence in order to make an arrest for a misdemeanor committed in the officer’s presence. Such entry, however, must be preceded by the officer’s announcement of his purpose and must come only after the officer has been denied admittance to the residence. The requirements of the Michigan entry statute, which is couched in terms of a felony arrest, are equally applicable to entries made to effectuate arrests for misdemeanors.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Arrest §§ 33, 43.
    Peace officer’s delay in making arrest without a warrant for misdemeanor or breach of peace. 58 ALR2d 1056.
    [2,3] 5 Am Jur 2d, Arrest §§ 69, 70, 93.
    Police officer’s power to enter private house or inclosure to make arrest, without a warrant, for a suspected misdemeanor. 76 ALR2d 1432.
    [4] 5 Am Jur 2d, Arrest §§ 33, 43, 69, 70, 93.

      3. The officer’s shouting of the single word "hey” was not sufficient under these circumstances to apprise the defendant of the officer’s purpose of making an arrest for the prior traffic offense which was both temporally and geographically removed from the arrest location. Not only did the shouting of this word not satisfy the announcement requirement necessary to make an entry of a private residence, but, further, the shouting of that single word was not sufficient to amount to substantial compliance with the entry requirements or to act as the basis of a hot pursuit of the defendant into his residence without making the necessary announcement of purpose.
    4. Since there was no compelling reason for the officer to believe that the delay occasioned by satisfying the announcement of purpose requirement and by awaiting a denial of admittance before proceeding with the entry would permit defendant to escape from justice, would endanger the safety of the officer or the public, or would lead to the destruction or hiding of material evidence, there were no exigent circumstances which would justify the officer’s unannounced entry into defendant’s residence.
    5. Since the officer’s attempted arrest of defendant within his residence for the traffic offense was unlawful by reason of the officer’s improper unannounced entry into defendant’s home, defendant’s subsequent arrest for resisting and obstructing an officer in the discharge of his duties was improper. The conviction for resisting and obstructing an officer, accordingly, must be reversed.
    Reversed.
    1. Arrest — Warrantless Arrest — Misdemeanor — Time Between Offense and Arrest.
    An arrest for a traffic violation is sufficiently immediate to the commission of that violation to justify arrest without a warrant where a police officer observes a defendant speeding and then follows the defendant to his residence before attempting to effectuate the arrest.

      2. Arre?t — Warrantless Arrest — Misdemeanor — Entry into Private Home — Failure to Announce Purpose — Statutes.
    A police officer may make a warrantless entry into a private residence in order to effectuate an arrest for a misdemeanor committed in the officer’s presence; however, such entry must be preceded by the officer’s announcement of his purpose and by a denial of admittance, since the requirements of the Michigan felony arrest entry statute are equally applicable to an entry made to effectuate an arrest for a misdemeanor (MCL 764.21; MSA 28.880).
    3. Arrest — Warrantless Arrest — Misdemeanor — Entry into Private Residence — Failure to Announce Purpose — Substantial Compliance — Hot Pursuit.
    The shouting of the word "hey” by a police officer who followed a defendant’s automobile, without the use of flasher lights or siren, to the defendant’s residence for the purpose of effectuating an arrest of the defendant for a traffic violation is not sufficient to place the defendant on notice of the officer’s purpose such that, when the defendant enters his residence, the officer is justified on the basis of substantial compliance or on the basis of hot pursuit to enter defendant’s residence without first announcing his purpose.
    4. Arrest — Warrantless Arrest — Misdemeanor — Unannounced Entry — Exigent Circumstances.
    An unannounced entry into a defendant’s residence by a police officer seeking to effectuate an arrest for a traffic violation committed in the officer’s presence is not justified on the basis of exigent circumstances where there is no compelling reason to believe that the delay occasioned by the officer announcing his purpose would permit defendant to escape justice, would endanger the life or safety of the officer or the public, or would lead to the destruction or hiding of material evidence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Van De Graaf & Van De Graaf, for defendant.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   M. J. Kelly, P.J.

Defendant was found guilty by a jury of resisting and obstructing an officer in the discharge of his duties contrary to MCL 750.479; MSA 28.747 and ordered to pay a fine of $100, court costs of $150 and restitution of $135. Defendant appeals of right.

According to the testimony presented by the prosecution the charge against defendant arose out of the following series of events which occurred on the evening of June 23, 1977. While driving south on Dyke Road at approximately 8:30 p.m., Gary Brusate, a Clay Township police officer, clocked defendant’s vehicle at 62 miles per hour in a 50 miles per hour zone. Brusate waited for traffic to clear, made a U-turn, and proceeded to follow defendant. Before the officer was able to execute his turn, a third vehicle intervened traveling in the same direction as defendant at a slower rate of speed. By the time Officer Brusate was able to close the distance between them, defendant was no longer speeding. Due to the presence of the other vehicle positioned between the defendant and himself, Brusate did not activate his siren or flashing lights. Th,e three-car procession turned left on Anchor Bay Drive. The middle car subsequently turned oif in another direction and Officer Brusate followed defendant down a dead-end street and into defendant’s driveway. At this time defendant was traveling at approximately 25 miles per hour. As defendant was exiting from his vehicle the officer beeped his horn and, alighting from the marked police car, shouted "Hey” to defendant Strelow. Mr. Strelow, who saw the officer and heard his call, ran into the house with Brusate close behind. Without stating his purpose or requesting admission, the policeman followed defendant into the residence. When defendant refused to produce his driver’s license the officer placed him under arrest. A protracted scuffle ensued and defendant was finally subdued upon the arrival of additional officers who had been called to the scene.

Defense witnesses, including Strelow’s brother-in-law who was in the house when the defendant returned home and two neighbors, presented a different version of the events that occurred that evening. All were in agreement that defendant arrived home 1-1/2 to 3 minutes before the police car appeared on the scene. Defendant’s own testimony, and that of his brother-in-law, differed from the complainant’s testimony as to the sequence of events and nature of the struggle that took place once Brusate was inside the home.

The critical issue raised on appeal is the legality of the arrest that was effected subsequent to the officer’s warrantless, unannounced entry into defendant’s private residence. Defendant’s first claim in this regard is focused on the timing of the arrest. The Supreme Court stated in People v Johnson, 86 Mich 175; 48 NW 870 (1891), that a warrantless arrest for an offense committed in the officer’s presence must be made immediately. However, determination of proper timing is dependent on all the facts and circumstances of a particular case, particularly the purpose for delay and the actual length of time between criminal act and arrest. See 58 ALR2d 1056. In People v Gray, 23 Mich App 139; 178 NW2d 172 (1970), the officer followed a reckless driver until he reached his residence. The officer called additional units to his location, and after they arrived the policeman made the arrest. This Court found such facts to constitute sufficient immediacy. In accord with Gray, we find the officer’s actions were sufficiently immediate upon commission of the traffic violation.

Although we might question the Wisdom of Officer Brusate’s decision to postpone issuing a traffic citation until he reached defendant’s home, we are presented with more serious issues in the context of his use of force in effectuating the misdemeanor arrest and the failure to obtain permission to enter a home.

In its attempt to justify the officer’s warrantless, Unannounced entry into defendant’s household the prosecution relies on MCL 764.15; MSA 28.874 which permits a police officer to make a warrant-less arrest when a misdemeanor is committed in his presence. The people claim that this proper exercise of authority encompasses the right of entry into a private residence. Support for this position is found in 76 ALR2d, § 2[b], 1441 which provides:

"Where the circumstances are such that a police officer is justified in believing that a misdemeanor is being committed in his presence, he may enter a private residence or enclosure in order to make an arrest for such offense, even though he has no warrant.”

Authority to make a Warrantless entry into a private residence does not automatically include, however, the right to enter without proper notice. ALR subsequently states:

"There is some rather scattered authority, sometimes reflecting statutory requirements, in support of the conclusion that, assuming entry into private premises for the purpose of making an arrest for a misdemeanor, without a warrant, is otherwise proper, the officer ih question has no authority to enter without first requesting admittance.” 76 ALR2d, § 2[c], 1443.

Defendant, in advancing his position that the arrest was illegal due to the manner of entry, relies on MCL 764.21; MSA 28.880 which provides:

"To make an arrest, a private person, if the offense be felony committed in his presence, or a peace officer with a warrant or in cases of felony when authorized without a warrant, may break open an inner or outer door of any building in which the person to be arrested is or is reasonably believed to be if, after he has announced his purpose, he is refused admittance.”

Although the statute is silent as to arrest for misdemeanors, we believe the same requirements, clearly designed to protect reasonable expectations of privacy, are mandated for lesser offenses. The people respond that demanding formal notice in the instant case would amount to an elevation of form over substance since defendant was aware of Brusate’s presence and purpose. This Court has previously recognized the validity of this argument by finding that in some cases, where declaration of purpose would be futile or an unnecessary formality, substantial compliance with the statute is sufficient. People v Poindexter, 57 Mich App 419; 225 NW2d 788 (1975), People v Charles Brown, 43 Mich App 74; 204 NW2d 41 (1972). However, viewing the evidence in a light most favorable to the state, we do not find that Officer Brusate’s conduct triggers application of the substantial compliance doctrine. The defendant testified that he was unaware of the speeding violation. The patrolman followed him for some distance at a reduced speed without ever activating his flasher lights or siren or signalling the defendant to pull over. Police vehicles, absent such demonstrations of authority, are part of the common flow of traffic and we are therefore not persuaded that Mr. Strelow was cognizant of the officer’s purpose in following him to his home and entering the residence. Certainly the officer’s beeping his horn and shouting "hey” did not provide such information.

The people further contend that defendant’s response to the officer’s summons permitted the police to pursue him into his home for the second alleged misdemeanor, resisting an officer in the discharge of his duties. As previously stated, we are not convinced that the defendant was aware of any violation which would give him cause to elude the officer. Flight alone does not justify an arrest, particularly when defendant is not fleeing the scene of a crime. People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978), People v Dogans, 26 Mich App 411; 182 NW2d 585 (1970).

Several cases hold that substantial compliance is met by an announcement of identity which implies a declaration of purpose. United States v Alexander, 346 F2d 561 (CA 6, 1965), cert den, 382 US 993; 86 S Ct 575; 15 L Ed 2d 480 (1966), United States v Sharpe, 322 F2d 117 (CA 6, 1963), United States v Freeman, 144 F Supp 669 (D DC, 1956). At first blush these cases appear to support the entry made in the instant case since defendant was well aware of the patrolman’s identity; however, each case is distinguishable on at least one of several grounds: (1) the arrest was for commission of a serious offense, (2) swift action was necessary to prevent the destruction of evidence, or (3) to prevent the flight of the suspect. None of the above circumstances is present in the case at bar. Furthermore, in Alexander, Sharpe, Freeman and Brown, the officer at least indicated by knocking and identifying himself that he sought admission into the dwelling. Here, Officer Brusate did not give any warning of his intention or desire to enter.

In addition to its substantial compliance argument, the people offer the "hot pursuit” exception to the statutory notice requirements as justification for the complainant’s conduct. Whether this exception applies to an unannounced nonconsensual entry into a private residence to effect a misdemeanor arrest has not been previously addressed in this jurisdiction. New York and California have enacted similar legislation clearly applicable to both felony and misdemeanor arrests. Both jurisdictions recognize that hot pursuit of a fleeing felon excuses deviation from the rule. People v Karpel, 66 App Div 2d 960; 411 NYS2d 718 (1978), People v Smith, 63 Cal 2d 779, 795-797; 48 Cal Rptr 382; 409 P2d 222 (1966). However, extension of the hot pursuit exception to justify unannounced entry into the premises of a fleeing misdemeanant is inconsistent with the policies underlying such legislation. The statutory notice requirements manifest an intent to protect the privacy of the individual in his home, protect innocent persons who may also be present on the premises where an arrest is made, prevent situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice, and protect police who might be injured by a startled and fearful householder. People v Solario, 139 Cal Rptr 725; 566 P2d 627 (1977). The hot pursuit doctrine excuses strict adherence to statutory notice and demand mandates in order to prevent police from being unduly burdened in their efforts to arrest criminals guilty of serious offenses. Preventing the escape of a fleeing felon may necessarily prevail over the interests the statute was designed to protect. Employing the same balancing test, the less serious nature of a misdemeanor offense militates against extending the hot pursuit exception to justify unannounced entry into a private residence to make such an arrest. Important interests such as privacy expectations and prevention of unnecessary violence must, in this instance, prevail.

Finally, we must consider whether the presence of any other exigent circumstances vindicates the warrantless, unannounced intrusion which occurred in the instant case. The New York statute, for example, lists specific situations which excuse noncompliance: (1) to prevent defendant’s escape, (2) to avoid endangering the life or safety of an officer or other person, (3) to prevent destruction or secretion of material evidence. See also Rodriguez v Butler, 536 F2d 982 (CA 2, 1976), People v Hyter, 61 App Div 2d 990; 402 NYS2d 602 (1978) (officer had reason to believe suspected felon was armed and dangerous). Here, the officer had no reason to believe defendant was armed or dangerous or that immediate entry was necessary to prevent the destruction of evidence.

One recent New York decision approved of a police officer’s unannounced entry into defendant’s dwelling to effect a warrantless felony arrest in the absence of exigent circumstances. People v Payton, 45 NY2d 300; 408 NYS2d 395; 380 NE2d 224 (1978). The question of the constitutionality of this procedure is pending before the United States Supreme Court. 48 USLW 1096. Even if the Court finds no constitutional violation involved in such an arrest, the seriousness of a felony offense, as opposed to a misdemeanor, must be considered in comparison.

In People v Hughes, 240 Cal App 2d 615, 619-620; 49 Cal Rptr 767, 771 (1966), officers forcibly entered a building without giving notice of purpose or demanding admission to arrest the occupants for gambling. In reversing the defendant’s conviction the California Court of Appeals commented upon the unannounced entry for a misdemeanor arrest as follows:

"Traditionally, the law has imposed on the police a more restricted field of action where mere misdemeanors were involved than where felonious conduct was sought to be prevented or punished. Thus, except in cases of detention of juveniles (where special problems arise) even an officer may arrest without a warrant for a misdemeanor only where it has been committed in his presence, and the use of lethal force for the prevention of a crime, or to effect an arrest, is also limited to cases of felonies , and is not permissible in cases of misdemeanors.

"We think that the same distinction should be observed here. There is no suggestion that the officers had any reason to suspect that anything was going on other than a private, 'friendly’ game among defendant and his guests. It is not suggested that the officers believed that a felony was being committed, or that they had any purpose other than to effect an arrest for a violation of section. 330 or 330a of the Penal Code — misdemeanors carrying a maximum penalty of a $500 fine or a six month jail sentence, or a combination of such penalties. No 'compelling reason’ to prevent the commission of a major crime, or to insure the capture and conviction of a major criminal, presented itself to the officers. Nor are we pointed to any suspicion on their part that any of the gamblers were vicious men or that they might be armed.

"Under these circumstances, there was no overwhelming public interest to be served sufficient to excuse the officers from violating rules laid down by the Legislature as a matter of public policy and designed to insure the citizen against a destruction of his property or an invasion of his personal privacy which notice and demand could have made unnecessary.” (Footnote and citations omitted.)

We adopt the sound reasoning demonstrated by the California court and conclude that defendant herein was the subject of an unlawful arrest. The decision below is reversed. This disposition renders discussion of the remaining issues raised by defendant unnecessary.

Reversed.

       New York Criminal Procedure Law, § 140.15 (McKinney 1971), provides:
      "1. A police officer may arrest a person for an offense, pursuant to section 140.10, at any hour of any day or night.
      "2. The arresting police officer must inform such person of his authority and purpose and of the reason for such arrest unless he encounters physical resistance, flight or other factors rendering such procedure impractical.
      "3. In order to effect such an arrest, such police officer may use such physical force as is justifiable pursuant to section 35.30 of the penal law.
      "4. In order to effect such an arrest, a police officer may enter premises in which he reasonably believes such person to be present, under the same circumstances and in the same manner as would be authorized, by the provisions of subdivision four and five of section 120.80, if he were attempting to make such arrest pursuant to a warrant of arrest.”
      §’ 120.80 provides:
      "4. In order to effect the arrest, the police officer may, under circumstances and in a manner prescribed in this subdivision, enter any premises in which he reasonably believes the defendant to be present. Before such entry, he must give, or make reasonable effort to give, notice of his authority and purpose to an occupant thereof, unless there is reasonable cause to believe that the giving of such notice will:
      (a) Result in the defendant escaping or attempting to escape; or
      (b) Endanger the life or safety of the officer or another person; or
      (c) Result in the destruction, damaging or secretion of material evidence.
      "5. If the officer is authorized to enter premises without giving notice of his authority and purpose, or if after giving such notice he is not admitted, he may enter such premises, and by a breaking if necessary.”

       California Penal Code, § 844 (West 1970), provides:
      "To make an arrest, a private person, if the offense be a felony, and ih all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.”

       The New York court’s decision has been overturned by the United States Supreme Court, Payton v New York, 48 USLW 4375 (April 15, 1980—Reporter.


source: Caselaw Access Project

author: Bronson, J. R. M. Maher, J.

license: Public Domain

text:
    ANDERSON v GREAT LAKES DREDGE AND DOCK COMPANY
    Docket No. 78-3843.
    Submitted October 3, 1979, at Detroit.
    Decided March 17, 1980.
    Leave to appeal applied for.
    Plaintiff, Willie L. Anderson, was injured while employed by defendant, Great Lakes Dredge and Dock Company, and working. either on the dredge Alaska or on a spill barge that was part of the Alaska’s operation. Plaintiff commenced an action in Wayne Circuit Court seeking damages for negligence and for breach of warranty to provide a reasonably seaworthy vessel. The plaintiff resides in Jacksonville, Florida, and the defendant is a New Jersey corporation with its headquarters and principal place of business in Chicago, Illinois. The defendant has offices and conducts operations in various places both in the United States and abroad. The defendant has a resident agent in Michigan, has conducted operations here in the past and presently has a contract to dredge portions of the Saginaw River. The other crew members of the Alaska at the time of the accident are reported by defendant to reside in North Carolina, Georgia and Puerto Rico, with the majority in Florida, although plaintiff points out that given the transitory nature of seamen’s employment these potential witnesses may now be located elsewhere. The plaintiff has been treated by physicians in both Florida and Michigan and expert medical testimony will be drawn from both states. The Alaska is apparently in Georgia at present. The defendant’s motion that the Wayne Circuit Court decline to exercise its jurisdiction based on the principle of forum non conveniens was denied, James Montante, J. The defendant appeals by leave granted, alleging that 1) the trial court erred by applying a hardship standard when ruling on the motion, and 2) in balancing the factors the trial court abused its discretion in determining that jurisdiction should be retained. Held:

    1. The Michigan Supreme Court, in the precedent case on the doctrine of fortim non conveniens, suggested factors to be considered when a trial court must determine whether to accept jurisdiction or decline jurisdiction on the basis of forum non conveniens. In the instant case the trial coürt recognized its discretion and in exercising it considered those factors. To the extent that the trial court’s opinion can be read as involving factors other than those set out by the Supreme Court, it is to be noted that the consideration of additional factors was not foreclosed by the Supreme Court. The trial court’s conclusion that on balance the factor's did not point to a sufficient “hardship” to the defendant to upset the plaintiff’s choice of forum was not an abuse of discretion. For purposes of a forum non conveniens motion there is little difference between a defendant having to demonstrate "serious inconvenience” and "hardship”.

      References for Points in Headnotes
    [1,3,4] 20 Am Jur 2d, Courts §§ 172-176.
    [2,5] 20 Am Jur 2d, Courts § 176.
    [3] 4 Am Jur 2d, Appeal and Error § 18.
    5 Am Jur 2d, Appeal and Error §§ 772, 774.

      2. In applying the doctrine of forum non conveniens, some amount of deference is due a plaintiff in the choice of the forum. While Wayne County may not appear at first to be the best of all possible forums from the plaintiffs standpoint, the fact remains that plaintiff has chosen his forum and the record reflects legitimate reasons for his doing so. The trial court recognized and exercised its discretion. The factors considered point to no one forum that is so obviously better than the others that it can be said that the trial court abused its discretion in refusing to upset the plaintiffs choice of forum.
    Affirmed.
    R. M. Maher, J., dissented. He would hold that the defendant made a sufficient showing of inconvenience under the enumerated factors in case precedent and that the trial court improperly refused to decline jurisdiction because the defendant failed to make an independent showing of "hardship”. He would reverse.
    Opinion of the Court
    1. Courts — Jurisdiction — Forum Non Conveniens.
    The principle of forum non conveniens establishes the right of a court to resist imposition upon its jurisdiction although such jurisdiction could properly be invoked; it presupposes that there are at least two possible choices of forum.
    2. Courts — Jurisdiction — Forum Non Conveniens — Private Interests — Public Interests — Witnesses — Proof — Judgment.
    A balancing out and weighing of factors tó be considered in rejecting or accepting jurisdiction in cases where the doctrine of forum non conveniens has been raised should include: (1) the private interest of a litigant in (a) availability of compulsory process for attendance of willing witnesses, (b) ease of access to sources of proof, (c) distance from the situs of the accident or incident which gave rise to the litigation, (d) enforceability of any judgment obtained, (e) possible harassment of either party, (f) other practical problems which contribute to the ease, expense and expedition of the trial, and (g) the possibility of viewing the premises; (2) matters of public interest in (a) administrative difficulties which may arise in an area which may not be present in the area of origin, (b) consideration of the state law which must govern the case, and (c) people who are concerned by the proceeding; and (3) reasonable promptness in raising the plea of forum non conveniens; however, consideration of additional factors is not foreclosed.
    3. Courts — Jurisdiction — Forum Non Conveniens — Discretion — Appeal and Error.
    A decision on whether to decline jurisdiction on the basis of forum non conveniens is in the discretion of the trial court and that decision will not be overturned on appeal absent an abuse of discretion; to be an abuse of discretion the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.
    4. Courts — Jurisdiction — Forum Non Conveniens — Choice op Forum — Plaintiff’s Choice — Due Deference.
    Some amount of deference is due a plaintiff in the choice of the forum when a court is considering a defendant’s motion for denial of jurisdiction based on the doctrine of forum non conveniens; the critical factors concerning the private interest of the litigants involve this choice.
    Dissent by R. M. Maher, J.
    5. Courts — Jurisdiction — Forum Non Conveniens — Factors.

      The factors to be considered in deciding whether to reject or accept jurisdiction in cases where the doctrine of forum non conveniens has been raised have to do with ease, expense and expedition of the trial; these factors amount to a consideration of hardship, so no additional factor of hardship need be considered.

    The Jaques Admiralty Law Offices, for plaintiff.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. (by Ivan E. Kerr and Mark D. Willmarth), for defendant.
    Before: T. M. Burns, P.J., and . Bronson and R. M. Maher, JJ.
   Bronson, J.

Defendant appeals by leave granted the order of the trial court denying defendant’s motion that the court decline to exercise its jurisdiction based on the principle of forum non conveniens.

I.

Plaintiff was injured while employed by defendant and working either on the dredge Alaska or on a spill barge that was part of the Alaska’s operation. It is alleged that while plaintiff was handling a piece of frayed cable, one or more strands of the cable passed through his shoe and pierced his little toe. An infection resulted and the affected limb was partially amputated. Plaintiff brought suit in Wayne County Circuit Court alleging a cause of action for negligence and for breach of the warranty to provide a reasonably seaworthy vessel under general maritime law and the Jones Act.

Plaintiff resided in Jacksonville, Florida, and defendant is a New Jersey corporation with its headquarters and principal place of business in Chicago, Illinois. Defendant has offices and conducts operations in various places both in the United States and abroad. Defendant has a resident agent in Michigan, has conducted operations here in the past, and presently has a contract to dredge portions of the Saginaw River. The other crew members of the Alaska at the time of the accident are reported by defendant to reside in North Carolina, Georgia, and Puerto Rico, with the majority in Florida, although plaintiff points out that given the transitory nature of seamen’s employment these potential witnesses may now be located elsewhere. Plaintiff has been treated by physicians in both Florida and Michigan, and expert medical testimony will be drawn from both states. The Alaska is apparently in Georgia at present.

II.

Defendant first argues that the trial court erred in applying the wrong standard when ruling on the motion. Specifically, defendant’s contention is that in deciding the motion the trial court applied a "hardship” standard, and retained jurisdiction because defendant had not made a sufficient showing of hardship. Defendant argues that this was improper because hardship is not one of the factors set out in Cray v General Motors Corp, 389 Mich 382; 207 NW2d 393; 59 ALR3d 127 (1973).

In Cray, supra, the Supreme Court formally adopted the principle of forum non conveniens. After analyzing several cases from other jurisdictions, the Court deduced several important characteristics concerning the principle and, in setting out these characteristics, delineated the proper scope of the doctrine’s application in Michigan. Presupposing that alternative forums are available, the principle of forum non conveniens was said to establish the right of a court to "resist imposition upon its jurisdiction although such jurisdiction could properly be invoked”. Cray, supra, 395. Application of the doctrine was placed in the sound discretion of the trial courts, which were charged to consider the plaintiffs choice of forum and to "weigh carefully the relative advantages and disadvantages of jurisdiction and the ease of and obstacles to a fair trial in this state”. Cray, supra, 396. The trial courts were said to have discretion to decline jurisdiction "in such cases as the convenience of the parties and the ends of justice dictate”. Id.

To aid trial courts in the exercise of this discretion, the Court suggested factors to be considered that were drawn from the cases previously analyzed:

"1. The private interest of the litigant.

"a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;

"b. Ease of access to sources of proof;

"c. Distance from the situs of the accident or incident which gave rise to the litigation;

"d. Enforcibility [sic] of any judgment obtained;

"e. Possible harrassment [sic] of either party;

"f. Other practical problems which contribute to the ease, expense and expedition of the trial;

"g. Possibility of viewing the premises.

"2. Matters of public interest.

"a. Administrative difficulties which may arise in an area which may not be present in the area of origin;

"b. Consideration of the state law which must govern the case;

"c. People who are concerned by the proceeding.

"3. Reasonable promptness in raising the plea of forum non conveniens.” Cray, supra, 396.

While suggesting these factors, however, the Supreme Court was not foreclosing the possibility of examining other factors that might be relevant in a particular case. Its intent was not to set out hard and fast rules, but rather to suggest a framework in which a decision could be made on the basis of the underlying purpose of the principle.

" 'Wisely it has not been attempted 'to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves 'much to the discretion of the court to which the plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.’ ” Cray, supra, 395, quoting Gulf Oil Corp v Gilbert, 330 US 501, 508; 67 S Ct 839; 91 L Ed 1055 (1947).

The trial court in the instant case recognized the criteria established in Cray and listened to the arguments of counsel concerning how those factors militated for and against retention of jurisdiction. In rendering its opinion, the trial court noted that it was persuaded by the arguments of plaintiffs counsel and that jurisdiction ought to be retained. Reference was also made to the point that seamen are traditionally favored in their choice of forum. In all of this we find no abuse of discretion. The trial court recognized its discretion and in exercising it considered the Cray factors. To the extent that the trial court’s opinion can be read as involving factors other than those set out in Cray, we note only that Cray does not foreclose the consideration of additional factors. Similarly, the trial court’s conclusion that on balance the factors did not point to a sufficient "hardship” to defendant to upset plaintiffs choice of forum was not an abuse of discretion. The Supreme Court in Cray did not use any specific word to characterize the outcome of the balance of the competing factors. It instead used phrases such as "advantages and disadvantages of jurisdiction”, "ease of and obstacles to a fair trial”, and "convenience of the parties and the ends of justice”, Cray, supra, 396. The trial court’s use of the term "hardship” simply reflects its means of expressing that the balance of factors weighed on the side of retaining jurisdiction, and in our opinion the use of the term was not sufficiently distinct from the phrases used by the Supreme Court to warrant a finding that the trial court abused its discretion. In this regard, 1 Restatement Conflicts, 2d, § 84, p 251, quoted by the Cray Court, provides that a state will not exercise its jurisdiction if it is a "seriously inconvenient” forum for trial. For the purposes of a forum non conveniens motion we see little difference between a defendant having to demonstrate "serious inconvenience” and "hardship”.

III.

Defendant next argues that in balancing the Cray factors the trial court abused its discretion in determining that jurisdiction should be retained.

The decision on whether to decline jurisdiction is in the discretion of the trial court, and that decision will not be overturned on appeal absent an abuse of discretion. Cray, supra, 395-397. In order to be an abuse of discretion, " 'the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias’ ”. Wendel v Swanberg, 384 Mich 468, 475-476; 185 NW2d 348 (1971), quoting from Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).

In the instant case the trial court recognized and exercised its discretion. Both parties argued vigorously on each of the Cray factors, and each put forth good arguments. They have done so again on appeal. But, after a careful review of the record and briefs on appeal, we cannot say that the trial court abused its discretion in denying the motion and retaining jurisdiction. A review of the arguments brings to focus one particular point that is also reflected in the trial court’s opinion, While Wayne County might not at first appear to be the best of all possible forums from plaintiff’s standpoint, the fact remains that plaintiff has chosen his forum and the record reflects legitimate reasons for his doing so. In applying forum non conveniens, some amount of deference is due plaintiff in the choice of the forum, and the critical factors concerning the private interest of the litigants involve how this choice affects the defendant. See 1 Barron & Holtzoff, Federal Practice and Procedure, § 87 pp 442, 443. In the instant case, the factors point to no one forum that is so obviously better than the others that we can say the trial court abused its discretion in refusing to upset plaintiff’s choice of forum. While the defendant has offices in Florida, it also has offices in many other locations. Its principal place of business is Chicago, which is closer to Detroit than to Florida, and it is organized under the laws of New Jersey. Defendant reports that many of the potential witnesses reside in Florida, but others are reported to reside in North Carolina, Georgia, and Puerto Rico, and as the defendant notes, the nature of these witnesses’ employment may result in their residing in places other than Florida at the time of trial. The Alaska itself is no longer in Florida, but ip Georgia. While some of the witpesses who treated the plaintiff reside in Florida, others are in Michigan. The fact that defendant may wish to have this coptroversy tried somewhere other than Michigan does not mean that the trial court is compelled to decline jurisdiction and, based on all the facts and circumstances in this case, we find no abuse of discretion in the decision to retain jurisdiction.

IV.

Having found no abuse of discretion, the order of the trial court is affirmed, and the cause is remanded for further proceedings.

Affirmed.

T. M. Burns, P.J., concurred.

R. M. Maher, J.

(dissenting). I respectfully dissent from the majority’s conclusion that a trial court must find "hardship”, or even "extreme hardship”, before choosing to decline jurisdiction based on the principle of forum non conveniens.

The factors which were enumerated in Cray v General Motors Corp, 389 Mich 382; 207 NW2d 393; 59 ALR3d 127 (1973), have to do with the ease, expense, and expedition of the trial. These factors amount to a showing of hardship, so no additional factor of hardship need be considered. It is anomalous to conclude that the movant has satisfactorily demonstrated all of the Cray factors, but cannot prevail unless it makes an independent showing of "hardship”.

In the instant case, the trial judge made careful findings of fact on each of the factors enumerated in Cray, supra, and said that defendant had made an adequate showing of expense and inconvenience to witnesses. His only reason for denying defendant’s motion was the following:

"* * * [B]ecause removal should only be where there is a showing of extreme hardship on the part of the defendant — and I am making that declaration so you can test if — and that for the convenience of the parties and the cause it would be. more proper to have the case heard in another jurisdiction.”

It seems to me that this conclusion was contrary to the policy which was announced in Cray, supra. I would therefore reverse.

       46 USC 688.

       At one point the trial court referred to "a showing of extreme hardship”. (Emphasis added.)

       This is so regardless of whether the plaintiff is a seaman. See particularly the commentary at 1 Restatement Conflicts, 2d, § 84, Comment (c), p 251 (cited in Cray, supra, 394-395, fn 2), which notes that one of the most important rules is that "since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons”.

       We note also that the decision on a forum non conveniens motion impacts heavily on the trial court itself. Considerations of the status of the docket and other administrative difficulties are peculiarly within the consciousness of the trial court. Accordingly, in reviewing an exercise of discretion that resulted in the retention of jurisdiction deference to that exercise is warranted.


author: R. B. Burns, J.

text:
    CORRIGAN v MILLER
    Docket No. 78-4733.
    Submitted February 5, 1980, at Grand Rapids.
    Decided March 17, 1980.
    Carl Corrigan, Olive TenEyke and Camilla Wehan own a parcel of land which borders on a parcel owned by Winfield and Charlotte Miller, who acquired the parcel from Mr. and Mrs. Roman Wolf. A fence line has run between the parcels since near the turn of the century, and Corrigan and his father have been farming their parcel up to the fence line for that entire time. When the Millers acquired the adjoining parcel in 1973 a survey was made which established the actual boundary between the parcels to be 22 feet from the old fence line, on the Corrigan side, and the Millers began to erect a fence and plant trees. Corrigan, TenEyke and Wehan brought an action for ejectment against the Millers, and the Wolfs were also named as defendants. The Kent Circuit Court, John T. Letts, J., entered a judgment of no cause of action. The plaintiffs appeal, alleging that the trial court erred in holding that the doctrine of acquiescence did not apply to the case because there had been no prior dispute and settlement between the parties. Held: The doctrine of acquiescence may be applied even where there has been no actual prior dispute and settlement where the parties have treated a fence as the boundary between their property for longer than the 15-year statutory period.
    Reversed and remanded.
    1. Quieting Title — Appeal — De Novo Review — Findings of Fact.
    A suit to quiet title is equitable in nature and subject to de novo review, but the Court of Appeals will give great weight to the findings of fact made by the trial court and will not disturb those findings unless convinced it would have reached a different result had it been in the trial court’s position.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 145.
    5 Am Jur 2d, Appeal and Error § 822.
    [2] 12 Am Jur 2d, Boundaries §§ 85-88.
    Adverse possession involving ignorance or mistake as to boundaries-modern views. 80 ALR2d 1171.

      2. Quieting Title — Boundaries — Acquiescence.
    It is not necessary that there be evidence of a prior dispute and settlement between the parties to a boundary dispute in order for the doctrine of acquiescence to apply where the parties have treated a fence, not located on the actual boundary, as the boundary between their property for longer than the statutory period of 15 years.

      Cholette, Perkins & Buchanan (by Robert A. Benson), for plaintiffs.

      Russell, Ward & Hodgkins, for defendants Win-field and Charlotte Miller.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   R. B. Burns, J.

Plaintiffs appeal from an order of judgment of no cause for action, dismissing their action for ejectment against defendants. The action involves a boundary dispute between the parties, who own adjoining parcels of land in Kent County, and was submitted to the trial court oh briefs, testimony contained in a deposition of plaintiff Carl Corrigan, a survey done by William F. DeYoung, and the trial court’s personal inspection of the premises.

In his deposition testimony, Carl Corrigan did not dispute that the survey line, approximately 22 feet west of the fence he had assumed was the boundary line between the property, is actually the true line. However, he stated that he and his parents had been farming the property to the fence since he could remember, approximately 70 years, and he had always assumed he owned the disputed property when he farmed it. Lately, he had been using the strip of property as a pasture but in the past had rotated crops on it. Corrigan stated that the fence had been there when defendants moved onto their property and was in pretty good shape before Mr. Miller tore it down. He did not know when the existing fence was built but testified that three or four fences had been built since the time the property was surveyed. Nor did he know when the property was last surveyed, but he thought the fence was intended to be placed on the boundary line. Corrigan did not know of any deed purporting to give him title to the disputed strip of land or any easements or right-of-way that had been granted regarding the property. He testified that a three-foot depression shown on the survey map was the remains of the old Corrigan home in which he was born in 1909 and which was torn down approximately 58 years ago. Although the land now owned by defendants is rather wild and uncultivated, he remembers when he was approximately 18 years of age that a Mr. Scalleys had farmed the land now owned by the Millers and used the fence as a boundary line between the two parcels.

In November of 1973, the Millers acquired title to their property from Mr. and Mrs. Roman Wolf. A survey done in late 1973 by William F. DeYoung disclosed the actual location of the boundary line between the two parcels and iron stakes were placed thereon. The Millers entered into possession and during the early spring of 1974 placed steel fence posts along the boundary line and proceeded to plant trees and otherwise use the property. They were then advised by Carl Corrigan that that was his land and he claimed the actual boundary line was the fence.

The trial court found that plaintiff could not show title by either adverse possession or acquiescence and entered judgment for defendants.

The first issue is whether the trial court erred in holding that the doctrine of acquiescence did not apply, because there had been no prior dispute and settlement between the parties regarding the boundary line, even though the parties and their predecessors in title had treated the fence as the boundary between their property for well over the statutory period of 15 years.

While a suit to quiet title is equitable in nature and subject to de novo review, this Court gives great weight to the findings of fact made by the trial court and will not disturb those findings unless convinced it would have reached a different result had it been in the lower court’s position. De Hollander v Holwerda Greenhouses, 45 Mich App 564, 566; 207 NW2d 187 (1973).

Despite the lack of evidence of a prior dispute or agreement between the parties regarding the boundary line, Carl Corrigan’s undisputed deposition testimony demonstrates that plaintiffs and their parents, as well as defendants’ predecessors in title, the Scalleys, farmed up to each side of the fence as the boundary between their property for well over the statutory period of 15 years. In a similar situation in the case of Hanlon v Ten Hove, 235 Mich 227, 230; 209 NW 169, 170 (1926), the Supreme Court held that "[wjhere coupled with acquiescence is the further fact that it has continued for the statutory period, such acquiescence for such statutory period fixes the line”. In that case, the Court made it clear that evidence of a prior dispute and settlement was not necessary where the line is acquiesced in for longer than the statutory period:

"Where a fence has been treated and acquiesced in as the correct boundary line between adjacent owners for fifteen years the boundary line ought not to be disturbed even if there were some variance from the true line, and a long established fence is better evidence of actual boundaries settled by practical location than a survey made after the monuments of the original survey have disappeared. And where a boundary line has been recognized and acquiesced in for fifteen years it would not be disturbed by reason of new surveys.” Id., 231.

Therefore, since under Michigan law it is not necessary that there be evidence of an actual prior dispute and settlement between the parties where the parties have treated a fence as the boundary between their property for longer than the statutory period of 15 years, the trial court erred in holding that the doctrine of acquiescence was inapplicable. Since the doctrine of acquiescence is applicable, plaintiffs’ argument regarding the application of adverse possession need not be reached.

Reversed and remanded to the trial court. Costs to plaintiffs.


author: Beasley, J.

text:
    PEOPLE v THOMAS
    Docket No. 78-5256.
    Submitted December 4, 1979, at Lansing.
    Decided March 17, 1980.
    Defendant, Billie G. Thomas, was found guilty of first-degree murder but mentally ill in the Ingham Circuit Court, Michael G. Harrison, J. Prior to the preliminary examination defendant’s counsel requested that the court adjourn the proceedings and refer the defendant to the Center for Forensic Psychiatry for evaluation as to whether he was competent to stand trial. The examining magistrate refused the request. In circuit court, the request was renewed and granted. Pursuant to the Center’s recommendation, defendant was adjudged incompetent to stand trial but was later determined to be competent. The circuit court then denied defendant’s request for a remand for a second or further preliminary .examination. Trial was had during which the court disallowed the testimony of a doctor who examined defendant at the Center to be introduced on the issue of defendant’s criminal responsibility at the time of the commission of the crime. The court also instructed the jury on the possibility of a verdict of guilty but mentally ill and the disposition of the defendant upon such a verdict. Defendant appeals. Held:

    1. Where there is evidence of incompetency of the defendant prior to the preliminary examination, the examining magistrate should halt preliminary proceedings, refer the defendant to the Center for Forensic Psychiatry and, upon receipt of the Center’s written report and recommendation, conduct a hearing and determine the issue of competency.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 64.
    [2] 21 Am Jur 2d, Criminal Law § 443.
    [3] 21 Am Jur 2d, Criminal Law §§ 313, 318 et seq.

    [4] 21 Am Jur 2d, Criminal Law §§ 48, 69
    [5] 21 Am Jur 2d, Criminal Law § 66.
    [6, 9] 75 Am Jur 2d, Trial §§ 738, 739.
    [7] 5 Am Jur 2d, Appeal and Error §§ 938, 976.
    [8] 21 Am Jur 2d, Criminal Law §§ 32, 63.
    [10] 5 Am Jur 2d, Appeal and Error § 881.
    [11] 29 Am Jur 2d, Evidence § 353 et seq.

      2. A statute imposes a duty on trial courts to instruct on the verdict of guilty but mentally ill where the evidence warrants it, and, in such a case, the court does not err in giving the appropriate criminal jury instructions even over the objection of defendant that the jury will be misled into returning a compromise verdict.
    3. The fact that defendant has received no treatment since his confinement is not sufficient to warrant a reversal of his conviction.
    4. The verdict of guilty of first-degree murder but mentally ill is not internally inconsistent; a person may be mentally ill and still be capable of forming the mens rea and premeditation for first-degree murder.
    5. The decision of a trial court regarding the admissibility of evidence should not be disturbed unless clearly erroneous. A trial court’s ruling, in a first-degree murder trial, that injection of the issue of competency into the proceeding, by introduction of the testimony of a doctor from the Center of Forensic Psychiatry who had evaluated defendant with regard to his competency to stand trial, would be a source of confusion to the jury on the issue of criminal responsibility was not clearly erroneous.
    Affirmed.
    1. Criminal Law — Competency to Stand Trial — Court Rules.
    The issue of competency to stand trial may be raised at any time before trial, and, when raised, the trial court must address the issue (GCR 1963, 786).
    2. Criminal Law — Preliminary Hearing — Judicial Proceeding — Probable Cause — Critical Stage.
    The preliminary hearing, in Michigan, is a judicial proceeding designed to establish probable cause that a crime has been committed and probable cause to believe that the accused committed it and is a critical stage of our criminal process.
    3. Criminal Law — Preliminary Hearing — Right to Counsel.
    Counsel must be provided to represent an indigent defendant at the preliminary examination because the preliminary examination is considered to be a critical stage of a criminal proceeding.
    4. Criminal Law — Preliminary Hearing — Competency to Stand Trial.
    The examining magistrate should halt preliminary proceedings, refer the defendant to the Center for Forensic Psychiatry and, upon receipt of the Center’s written report and recommendation, conduct a hearing and determine the issue of competency where there is evidence of incompetency of the defendant prior to the preliminary examination and counsel for defendant requests a determination of competency to stand trial.
    5. Criminal Law — Competency — Preliminary Hearing — Assistance of Counsel.
    Denial of a defendant’s motion for a determination of competency to stand trial made at a preliminary examination and denial of his motion for a remand for a second preliminary examination after he has been found competent to stand trial is not reversible error where the record fails to indicate that the defendant’s incompetence was so severe that he was denied the effective assistance of counsel at the preliminary examination, even assuming that defendant is incompetent to stand trial at a preliminary examination.
    6. Criminal Law — Guilty but Mentally III — Instructions to Jury.
    A statute imposes a duty on trial courts to instruct on the verdict of guilty but mentally ill where the evidence warrants it, and, in such a case, the court does not err in giving the appropriate Criminal Jury Instructions even over the objection of defendant that the jury will be misled into returning a compromise verdict (MCL 768.36; MSA 28.1059, CJI 7:8:01, 7:8:09).
    7. Criminal Law — Guilty but Mentally III — Mental Illness — Treatment of Mental Illness.
    The fact that a defendant, sentenced under the guilty but mentally ill statutes, has received no treatment since his confinement is not sufficient to warrant a reversal of his conviction.
    8. Homicide — Guilty but Mentally III — First-Degree Murder.
    The verdict of guilty but mentally ill of first-degree murder is not internally inconsistent; a person may be mentally ill and still be capable of forming the mens rea and premeditation for first-degree murder.
    9. Criminal Law — Instructions to Jury — Disposition Upon Verdict.
    A trial court does not reversibly err in instructing the jury, at the prosecutor’s request and even over defendant’s objection, on the disposition of a defendant who is found not guilty by reason of insanity when there is conflicting evidence presented at trial regarding defendant’s sanity and, therefore, the jurors would not necessarily have believed that the defendant would be released at an early date.
    10. Appeal — Evidence — Admissibility op Evidence.
    The decision of a trial court regarding the admissibility of evidence should not be disturbed unless clearly erroneous.
    11. Homicide — Evidence — Competency — Expert Testimony.
    A trial court’s ruling, in a first-degree murder trial, that injection of the issue of competency into the proceeding, by introduction of the testimony of a doctor from the Center for Forensic Psychiatry who had evaluated defendant with regard to his competency to stand trial, would be a source of confusion to the jury on the issue of criminal responsibility was not clearly erroneous.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Michael G. Woodworth, Chief Appellate Attorney, for the people.

      Hubbard, Fox, Thomas, White & Bengston, for defendant.
    Before: Danhof, C.J., and Beasley and Cynar, JJ.
   Beasley, J.

Defendant, Billie Gene Thomas, was convicted by a jury of first-degree murder but mentally ill. After being sentenced to life imprisonment with eligibility for psychiatric treatment, if appropriate, he appeals as of right, claiming there are seven issues.

On August 7, 1977, defendant’s estranged wife, Dixie Mae Thomas, was shot to death. On August 23, 1977, defendant was arrested and charged with her premeditated murder.

Immediately prior to commencement of preliminary examination on September 7, 1977, counsel for defendant moved to adjourn the preliminary examination and to refer defendant to the Center for Forensic Psychiatry for evaluation as to whether he was competent to stand trial. The district judge denied defendant’s motion. After preliminary examination, defendant was bound over for trial for murder in the first degree, as charged. In circuit court, defendant renewed his motion regarding competency for trial and, on September 30, 1977, an order was entered referring defendant to the Center For Forensic Psychiatry. Pursuant to recommendations from the center, defendant was adjudicated incompetent to stand trial on December 23, 1977, but, subsequently, on September 13, 1978, was determined competent to stand trial. On the latter date, September 13, 1978, defendant moved to remand for a second or further preliminary examination, which motion was denied.

On appeal, defendant claims error occurred in the two rulings, (1) denial on September 7, 1977, by the district judge of his motion to be referred to the Forensic Psychiatry Center for evaluation as to competency, and (2) denial on September 13, 1978, by the circuit judge of his motion to remand to the district court for a further or second preliminary examination. He urges that these two rulings deprived him of a meaningful preliminary examination, of effective legal counsel at the preliminary examination and timely diagnostic evaluation by the Forensic Center of competency to stand trial.

The issue of competency to stand trial may be raised at any time before trial. A defendant who is determined incompetent to stand trial may not be proceeded against while incompetent. When the issue of competency is raised, the trial court must address the issue. When counsel for defendant moved for psychiatric evaluation prior to preliminary examination, the magistrate questioned his own authority to conduct a commitment hearing and order commitment. The cases are ambiguous on this proposition.

In People v Matheson, prior to the preliminary examination, by stipulation of the parties, the circuit court ordered defendant committed to the Forensic Center for a competency evaluation. No case law expressly addresses the issue of whether a magistrate, upon a showing that defendant may be incompetent to stand trial, may order a competency evaluation. The case law, applicable statutes and court rule speak of the trial court only.

In actual practice, a division of opinion exists as to whether a district judge has the power to make a finding of possible incompetency and a referral to the Forensic Center for evaluation and recommendation. Some district judges are making such referrals, and the Forensic Center is accepting such referrals and making evaluation and recommendation upon which district judges are conducting hearings and making determinations regarding competency for trial.

We find nothing in the statutes or case law expressly prohibiting referrals to the Forensic Center by a district judge. We believe that there is good reason for empowering the district judge to entertain the issue of competency for trial where the issue is raised. It tends to speed up the full criminal process by encouraging prompt, early referral to the Forensic Center where a situation demands it. Unless the district judge may make such a referral and determination, there is an inevitable delay in either awaiting a circuit court referral to the Forensic Center and subsequent determination of competency or in the district judge proceeding to hear such matters as may be before him at the risk of later reversal on the basis of incompetency to stand trial.

The prosecutor argues and the magistrate adopts the reasoning that the preliminary examination plays a limited role in the criminal justice system. In People v Bellanca, the Michigan Supreme Court stated:

"In Michigan the preliminary hearing is a judicial proceeding designed to establish * * * that a crime has been committed and probable cause to believe the accused committed it. It is a critical stage of our criminal process.”

As the preliminary examination is considered to be a "critical stage”, counsel must be provided to represent an indigent defendant at the preliminary examination. Defendant argues that the inability to assist counsel in his defense because of his mental incompetence actually means that this defendant was not present at this critical stage of the criminal proceeding against him. While this is, perhaps, an unusual or exaggerated way to put it, the fact is that a defense to a criminal charge is sorely handicapped if defendant is unable to assist in his own defense.

Article 1, § 20 of the 1963 Michigan Constitution provides that:.

"In every criminal prosecution, the accused shall have the right * * * to be confronted with the witnesses against him; * * * to have the assistance of counsel for his defense * *

The Bellanca Court read that provision as according a defendant the same assistance of counsel contemplated in the Sixth Amendment to the United States Constitution. That right was considered by the United States Supreme Court in Coleman v Alabama, wherein the Court observed:

"Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State’s case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.”

To be truly effective in a practical sense (as distinguished from effective in the "constitutional minimum” sense), counsel must be properly prepared for cross-examination of the people’s witnesses. This entails some minimal communication with the defendant.

On the other hand, this Court has recognized the narrow scope of the preliminary examination:

"The preliminary examination is a screening process to test the substance of the state’s allegations against the accused as a basis for further proceedings against him. It is not a trial and should be as brief and to the point as the nature of the charge and the intricacies of the matter will permit, but not at the abuse of its twofold purpose to determine whether or not the offense was committed and whether or not probable cause exists to believe that the defendant was guilty of the commission of that crime.”

However limited the scope of the preliminary examination is considered to be, the fact remains that it is a critical stage of the criminal proceeding. We, therefore, conclude that, where there is evidence of incompetency prior to the preliminary examination and counsel for defendant requests a determination of competency to stand trial, the examining magistrate should halt preliminary proceedings against a defendant and refer the defendant to the Center for Forensic Psychiatry for evaluation and recommendation. Upon receipt of the written report and recommendation, the district judge should conduct a hearing and make a determination of competency. Unless this procedure is followed, serious question may arise as to whether defendant’s right to confront witnesses and assist in his or her own defense has been violated.

As the rule announced today applies to future preliminary examinations, we must determine whether, under the facts of this case, denial of defendant’s motion prior to preliminary examination for determination of competency and/or denial of defendant’s motion for a second, or supplemental, preliminary examination require reversal of the conviction and remand for further proceedings and a new trial. In making our determination, we must examine events subsequent to the preliminary examination and defendant’s commitment. We conclude that, under these facts, any error that may have occurred was not of such a magnitude as to require reversing the conviction and remanding for a new trial.

The facts indicate that testimony was taken at the preliminary examination on September 7 and 8, 1977, and defendant was bound over on an open charge of murder. On September 30, 1977, the circuit court judge ordered defendant committed to the Center for Forensic Psychiatry for an evaluation of his competency to stand trial. On November 22, 1977, the center recommended an adjudication of incompetency and, on December 23, 1977, defendant was found incompetent to stand trial. We assume arguendo that defendant was incompetent at the preliminary examination in September.

Our review of the record at the preliminary examination fails to indicate that defendant’s incompetence was so severe that he was denied the effective assistance of counsel. Defense counsel skillfully cross-examined witnesses, inquiring into a witness’s consumption of alcohol the day of the killing and the lack of fingerprint evidence on a beer bottle found near the victim’s window. He also probed into defendant’s unusual behavior at the time of his arrest. Counsel tried to use some of the preliminary examination testimony for purposes of impeachment at trial. All of the witnesses who testified at the preliminary examination also testified at trial, so counsel was able to recross-examine at a time when defendant was competent and able to assist in his defense. It would not appear that either delaying the preliminary examination, as initially sought, or granting a second preliminary examination, as subsequently sought, would have assisted defendant’s defense or affected the outcome.

Thus, we do not find any prejudical error from denial of defendant’s motion to delay the preliminary examination or for a second preliminary examination. Furthermore, defendant has not specifically alleged in what manner he has been harmed. Upon this record, we conclude that defendant was not prejudiced in such a way as to require reversal for another trial.

Next, defendant launches a three-pronged attack on MCL 768.36; MSA 28.1059, the guilty but mentally ill statute. He first argues that the trial court erroneously instructed on the possible verdict, over objection, because the statute unconstitutionally confuses the jury in its resolution of the issue of criminal responsibility and encourages a compromise verdict. MCL 768.29a; MSA 28.1052(1), which guides us, provides in pertinent part:

"(2) At the conclusion of the trial, where warranted by the evidence, the charge to the jury shall contain instructions that it shall consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity and shall also contain instructions as to the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty with regard to the offense or offenses charged and, as required by law, any lesser included offenses.”

The trial court complied with the language of the statute by giving proposed Criminal Jury Instruction 7:8:01 and proposed Criminal Jury Instruction 7:8:09. Defense counsel objected both before and after the giving of the instructions. One panel of this Court raised, but did not resolve, the question of whether such instruction can be omitted at defendant’s request. The language of the statute imposes a duty on trial judges to use this instruction where the evidence warrants it. While trained professionals may better understand the distinction between a not guilty by reason of insanity verdict and a guilty but mentally ill verdict, MCL 768.36; MSA 28.1059 offers sufficient guidance in this respect. We, further, do not find evidence of the jury being misled into returning a compromise verdict or of being improperly instructed

Defendant next attacks MCL 768.36(3); MSA 28.1059(3), claiming that he has received no treatment since his confinement. People v McLeod indicates that this argument does not warrant reversal.

Defendant’s final attack on the guilty but mentally ill statute is based on a claim that it would be inconsistent to have a verdict of guilty but mentally ill where one is convicted of first-degree murder. Defendant argues that a person who is found to have a mental disorder would be incapable of forming the requisite intent for a premeditated killing. We are guided by this Court’s holding in People v Bruce Ramsey. The panel in Ramsey addressed the question of whether a mentally ill person was able to form the mens rea for second-degree murder. The Court found that mental illness and malice aforethought are not mutually exclusive mental conditions. We agree that a finding of mental illness does not necessitate a finding of not guilty of premeditated murder.

Defendant next claims the trial court erred when, at the prosecution’s request and over defendant’s objection, the jury was instructed on the disposition of a defendant who is found not guilty by reason of insanity. Defendant argues that the court’s instruction, coupled with a Forensic Center employee’s testimony that defendant was neither mentally ill nor insane, necessarily informed the jury that defendant would be released within 60 days.

In People v Cole, the Michigan Supreme Court adopted the rule of Lyles v United States and held that when an insanity defense is fairly raised, a trial court must instruct, when requested by defendant or by the jury, on the disposition of a defendant found not guilty by reason of insanity. The Cole Court did not address the question of whether such an instruction could be given sua sponte or at the prosecution’s request.

However, in revisiting the Coles-Lyles doctrine, a panel of this Court has held that a sua sponte instruction is error. It can be argued that the same rationale for finding a sua sponte instruction error would also apply to an instruction request by the prosecutor where defendant objects. The Samu elson Court found that, by implication, such an instruction would be error but then proceeded to reason it was not reversible error because it was helpful to defendant’s claim of insanity.

In this connection, there is much to be said for adopting a truth and accuracy test as a measure of the correctness of a trial judge’s instruction regarding the effect of a not guilty by reason of insanity verdict or a guilty but mentally ill verdict. It is just as wrong and erroneous to mislead a jury into believing there is no public safety factor in either of those verdicts because a defendant will not be released until it is certain that he will not commit further violent crime as it is to mislead a jury into believing a defendant will automatically be released from a mental hospital within a very short time after either of these verdicts. The argument for the truth and accuracy of the jury instruction test rests on the practical assumption that under our adversary system the prosecutor and the defense counsel will each indirectly and obliquely seek to persuade the jury of their respective, differing versions of what happens after a not guilty by reason of insanity verdict or a guilty but mentally ill verdict and that the best way to combat these efforts is by telling the jury what the law provides. Leaving the question of whether or not to give this jury instruction to the whim of the defendant imparts a kind of judicial gamesmanship to the trial. Confidence in the jury should override the fear that somehow knowledge of what happens to a defendant in the case of a not guilty by reason of insanity or a guilty but mentally ill verdict will result in an unjust verdict.

Nevertheless, as in Samuelson and in People v Staggs we do not find that upon this record reversal is warranted. Although one expert testified that defendant was not insane, another expert disagreed with this analysis. The jurors would not necessarily have believed that defendant would be released at an early date. Even if we were to assume this was error, we would not find it so prejudicial as to require reversal.

Defendant’s next assignment of error relates to the trial court’s refusal to grant defense counsel’s motion to adjourn the trial date. We do not find an abuse of the trial court’s discretion, and find this issue to be without merit.

We must next determine whether the trial court erred in excluding the testimony of Dr. William Yarroch from the Center for Forensic Psychiatry, who had evaluated defendant on his competency to stand trial. Defendant sought to introduce the testimony on the issue of defendant’s criminal responsibility at the time of the commission of the crime. In reviewing questions regarding the admissibility of evidence, the decision of the trial court is not to be disturbed unless clearly erroneous. Although such evidence would be admissible under MCL 330.2028(3); MSA 14.800(1028X3), subject to the trial court’s discretion, we do not view the trial court’s ruling, that injection of the issue of defendant’s competency into the proceedings would be a source of confusion to the jury on the issue of criminal responsibility, to be clearly erroneous.

We also find no error in admitting the testimony of Dr. Harley Stock, a psychologist at the Center for Forensic Psychiatry, where the court ruled that Dr. Stock could only testify as to background information and that such testimony would not apprise the jury of a prior competency hearing.

Finally, defendant contends that the trial court’s instruction on lying-in-wait impermissibly advised the jury that intent to kill could be presumed. There was no objection to the trial court’s instruction. We have reviewed the instruction and do not find that the trial judge equated the two concepts; rather, the court explained when intent may be presumed from lying-in-wait. We find no error.

Having reviewed the errors which defendant claims occurred at the preliminary examination and at trial and finding none warranting reversal of defendant’s conviction, we affirm.

Affirmed.

       MCL 750.316; MSA 28.548, MCL 768.36; MSA 28.1059.

       MCL 768.36(3); MSA 28.1059(3).

       GCR 1963; 786. Under some circumstances, competency to stand trial may be raised during trial.

         MCL 330.2022; MSA 14.800(1022).

        People v Hamm, 79 Mich App 281, 288; 261 NW2d 288 (1977).

        People v Lucas, 393 Mich 522; 227 NW2d 763 (1975), People v Blocker, 393 Mich 501; 227 NW2d 767 (1975), People v Spry, 74 Mich App 584; 254 NW2d 782 (1977), People v Parney, 74 Mich App 173; 253 NW2d 698 (1977), People v Hamm, supra, People v Matheson, 70 Mich App 172; 245 NW2d 551 (1976).

        People v Matheson, supra.

       386 Mich 708, 712; 194 NW2d 863 (1972).

       399 US 1; 90 S Ct 1999; 26 L Ed 2d 387 (1970).

       399 US 1, 9.

         People ex rel Ingham County Prosecutor v East Lansing Municipal Judge, 42 Mich App 32, 39; 201 NW2d 318 (1972).

       See, People v Eddington, 77 Mich App 177, 190; 258 NW2d 183 (1977).

         People v Mikulin, 84 Mich App 705, 709; 270 NW2d 500 (1978).

       77 Mich App 327; 258 NW2d 214 (1977), lv gtd 402 Mich 927 (1978).

       89 Mich App 468, 471-472; 280 NW2d 565 (1979).

       382 Mich 695, 720-721; 172 NW2d 354 (1969).

       103 US App DC 22; 254 F2d 725 (1957).

         People v Samuelson, 75 Mich App 228, 232-234; 254 NW2d 849 (1977) . Also see, People v Staggs, 85 Mich App 304; 271 NW2d 211 (1978). Both cases were decided after the new Mental Health Code became effective on August 6, 1975. See, MCL 330.2050; MSA 14.800(1050) and MCL 330.2102; MSA 14.800(1102).

        People v Samuelson, supra.

        People v Samuelson, supra, 234.

        People v Samuelson, supra, People v Staggs, supra.

       See, People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972).

        People v McKinney, 65 Mich App 131, 141; 237 NW2d 215 (1975).

       MCL 330.2028(3); MSA 14.800(1028)(3).


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

text:
    CITY OF GRAND RAPIDS v GRAND RAPIDS LODGE NO 97, FRATERNAL ORDER OF POLICE
    Docket No. 78-5449.
    Submitted January 2, 1980, at Grand Rapids.
    Decided March 17, 1980.
    Leave to appeal applied for.
    Ronnie F. Stevens, a former Grand Rapids police officer, requested that the City of Grand Rapids assume the costs of his defense and indemnify him in the event of any judgment rendered against him in an action brought in the Federal District Court against the city, its police chief, and Stevens arising out of an incident in which Stevens was involved in the course of his duties as a police officer. The city refused, and Grand Rapids Lodge No. 97, Fraternal Order of Police, filed a grievance on Stevens’ behalf and, after further refusals, filed a demand for arbitration of the grievance pursuant to the collective bargaining agreement between the FOP and the city. Shortly before the demand for arbitration Stevens filed a crossclaim against the city in the Federal court action requesting that the city be held responsible for his costs and for satisfaction of any judgment rendered against him. When the demand for arbitration was made, the city brought an action in Kent Circuit Court against the FOP, Stevens, and the American Arbitration Association requesting that the arbitration proceedings be enjoined. The circuit court, Roman J. Snow, J., granted an injunction, relying upon a clause in the collective bargaining agreement which he interpreted to hold that the defendants were estopped from proceeding with arbitration. The FOP appeals by leave granted. Held:

    The bargaining representative (FOP) had a right to pursue a grievance on behalf of Stevens and the entire lodge and to pursue that grievance through arbitration. The action by Stevens to obtain a personal remedy did not affect this right. The grant of the injunction was error.
    Reversed, and the injunction set aside.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Arbitration and Award § 14.
    [2] 48 Am Jur 2d, Labor and Labor Relations § 399.
    [3] 48A Am Jur 2d, Labor and Labor Relations §§ 1842, 1843.
    Matters arbitrable under arbitration provision of collective labor contract. 24 ALR2d 752.

      D. F. Walsh, P.J., dissented. He would hold that the language of the collective bargaining agreement expressly provides that this particular grievance is excluded from arbitration. He would affirm.
    Opinion of the Court
    1. Arbitration — Contracts — Public Policy.
    Arbitration is a matter of contract; it is favored by public policy and arbitration clauses should be broadly applied.
    2. Labor Relations — Grievances — Authorized Bargaining Representatives.
    An authorized bargaining representative has great discretion in processing grievances, including the independent' right to bring a grievance on behalf of an employee, notwithstanding the separate pursuit by the employee of personal remedies.
    Dissent by D. F. Walsh, P. J.
    3. Labor Relations — Arbitration — Action — Relief Sought.

      A trial court properly enjoined grievance arbitration proceedings where the employee involved instituted a crossclaim in a court action, requesting the same relief as that sought in the grievance proceedings, and the collective bargaining agreement expressly provides that in such a case the matter is excluded from arbitration.

      Varnum, Riddering, Wierengo & Christenson (by Terrance R. Bacon), for plaintiff.

      Timothy G. Holland, for defendant.
    Before: D. F. Walsh, P.J., and R. B. Burns and J. H. Gillis, JJ.
   R. B. Burns, J.

In April 1978, James Hoogerhyde filed suit in the United States District Court or the Western District of Michigan against the City of Grand Rapids, the city’s police chief, and Ronnie Stevens, a former police officer for the city. Defendant Stevens asked that the city assume the costs of his defense and indemnify him in the event of any judgment rendered against him for actions taken in the course of his official duties. The city refused Stevens’ request.

In May 1978, defendant Fraternal Order of Police, Grand Rapids Lodge No. 97 (FOP), filed a grievance with Chief Robert Anderson claiming that the city’s action violated various sections of the parties’ collective bargaining agreement. When the grievance was denied at this step, defendant FOP submitted its demand to Joseph Zanea, City Manager. The record on appeal does not disclose any answer at this step but we assume that the grievance was denied and such information given to defendant. On June 19, 1978, defendant FOP filed its demand for arbitration of the grievance with the American Arbitration Association.

Approximately ten days before FOP filed its arbitration demand, defendant Stevens had filed a crossclaim against the city in the Federal court action asking that the city be held responsible for his costs and for satisfaction of any judgment rendered against him. When FOP made its demand for arbitration the city brought this action in the Circuit Court for the County of Kent asking that the arbitration proceedings be enjoined on the ground that since the crossclaim had been initiated the matter was no longer subject to the grievance procedure. The circuit court judge granted the injunction, stating:

"The initiation of a crossclaim in Case No. G 78-148 CA 1, in the United States District Court for the Western District of Michigan, estops defendants from proceeding in the arbitration of the same dispute.”

The circuit court relied upon Article VIII, § 3(b) of the collective bargaining agreement which reads:

"If proceedings involving any matter which is Or might be alleged as a grievance are instituted in any administrative action before a government board or agency, or in any court, then such administrative or judicial proceedings shall be the sole remedy; and grounds for a grievance under this agreement shall no longer exist. Injunctions, temporary restraining orders, or actions under Veteran’s preference shall not be considered part of the grievance procedure.”

Arbitration is a matter of contract. Kaleva-Norman-Dickson School District No. 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583; 227 NW2d 500 (1975).

In the present case, the parties entered into a collective bargaining agreement under the authority of the public employment relations act (PERA). MCL 423.201 et seq.; MSA 17.455(1) et seq. Article VIII of their contract delineates the grievance procedure to be employed by the parties and it provides for arbitration as the final step of the grievance procedure.

The Michigan Supreme Court has held that arbitration in the resolution of disputes is favored by the public policy of our state, KND School District, supra, and the Court has noted the directive of the United States Supreme Court in United Steelworkers of America v Warrior & Gulf Navigation Co, 363 US 574; 80 S Ct 1347; 4 L Ed 2d 1409 (1960), that arbitration clauses should be broadly applied.

"The Court said, 'An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ (Emphasis supplied.) Absent an 'express provision excluding [a] particular grievance from arbitration’ or the 'most forceful evidence of a purpose to exclude the claim’ (emphasis supplied) the matter should go to arbitration.” KND School District, 393 Mich at 592.

It is apparently undisputed that FOP had the right to initiate the grievance in the present case and, absent any action by defendant Stevens, to pursue the grievance through arbitration. What is at issue is whether, under Article VIII, § 3(b), FOP’s right to pursue arbitration was terminated by the decision of its member, defendant Stevens, to seek a judicial determination on the matter. We have read Article VIII and have considered the course of its evolution and we find no forceful evidence of an intent to terminate FOP’s right to arbitration where the individual grievant has made an election of remedies.

Under the PERA, defendant FOP is the exclusive representative of all the public employees in its unit. MCL 423.211; MSA 17.455(11). The Michigan Supreme Court has stated that authorized bargaining representatives have great discretion in processing grievances, Cortez v Ford Motor Co, 349 Mich 108; 84 NW2d 523 (1957), and that discretion includes the independent right to bring a grievance. The power of defendant FOP to control the grievance procedures cannot be contingent on the pursuit or outcome of an employee’s personal remedies.

In our opinion the FOP, as exclusive bargaining agent for the Grand Rapids Police Department, had a right to pursue a grievance on behalf of Ronnie Stevens and the entire lodge. No action by Ronnie Stevens could affect this right. The FOP had the right to file a grievance and to pursue such grievance through arbitration.

The trial court is reversed and the injunction set aside.

Costs to defendant FOP.

J. H. Gillis, J., .concurred.

D. F. Walsh, P.J.

(dissenting). I must respectfully dissent. I concur with the trial judge that the plain language of Article VIII, § 3(b), of the collective bargaining agreement expressly provides that this particular grievance is excluded from arbitration. Kaleva-Norman-Dickson School District No 6 v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583, 592; 227 NW2d 500 (1975). I find no language in Article VIII, § 3(b), which can be interpreted as requiring that the court proceeding must be instituted by the union rather than by the individual aggrieved party.

I would affirm.

       The policy favoring arbitration of disputes is appropriate for contracts entered into under the PERA. KND School District, supra, 393 Mich at 591.