author: M. F. Cavanagh, J.

text:
    PEOPLE v LONG
    Docket No. 77-273.
    Submitted April 5, 1978, at Lansing.
    Decided November 6, 1978.
    Leave to appeal denied, 406 Mich —.
    James A. Long was convicted, on his plea of guilty but mentally ill, of first-degree criminal sexual conduct, Alpena Circuit Court, Philip J. Glennie, J. Defendant appeals, alleging that the trial court erred by relying on the preliminary examination transcript to establish the factual basis for the plea where the defendant claimed that he had no memory of the events in question. Held:

    Reliance on the preliminary examination transcript is proper when accepting a plea of nolo contendere. A plea of guilty but mentally ill, however, differs from a plea of guilty only by the additional element of mental illness, and there is nothing in the nature of a guilty but mentally ill plea which is inconsistent with direct questioning of the defendant, as is required when accepting a plea of guilty. The trial court erred by relying on the preliminary examination transcript.
    Plea set aside; remanded for further proceedings.
    1. Criminal Law — Plea of Nolo Contendere — Preliminary Examination Transcript — Court Rules.
    A trial court must establish support for a finding of a defendant’s guilt by personally questioning him about the crime before accepting a plea of guilty; when taking a plea of nolo contendere, however, the court may rely on the preliminary examination transcript to establish the factual basis of the offense (GCR 1963, 785.7[3][b][ii]).
    2. Criminal Law — Plea of Nolo Contendere — Court Rules.
    A plea of nolo contendere may not be accepted unless the court states why a plea of nolo contendere is appropriate (GCR 1963, 785.7[3][b][i]).

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 497-502.
    29 Am Jur 2d, Evidence § 702.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.
    [3, 4] 21 Am Jur 2d, Criminal Law §§ 484-496.
    Duty of court, upon plea of guilty or nolo contendere to offense involving several degrees, to hear evidence to determine degree. 34 ALR2d 919.

      3. Criminal Law — Plea of Guilty — Plea of Guilty But Mentally III — Statutes.
    A plea of guilty but mentally ill is distinguished from a plea of guilty by the additional element of mental illness, and because a defendant found "guilty but mentally ill” may have continued treatment at a mental institution made a condition of parole or probation, the finding of "mentally ill” serves to aggravate rather than mitigate the restraints on a convicted defendant’s liberty (MCL 768.36; MSA 28.1059).
    4. Criminal Law — Plea of Guilty — Plea of Guilty But Mentally III — Questioning of Defendant.
    The policies which require direct questioning of a defendant by a court to establish the factual basis for a plea of guilty are fully applicable to a plea of guilty but mentally ill; therefore a trial court erred by relying on a preliminary examination transcript to supply the factual basis for a plea of guilty but mentally ill.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Theodore O. Johnson, Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Paul E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   M. F. Cavanagh, J.

On a plea of "guilty but mentally ill” defendant was convicted of first-degree criminal sexual conduct. MCL 750.520b; MSA 28.788(2). He appeals by right, seeking to have his plea set aside.

Court rule and case law have defined the procedures for taking guilty pleas and nolo contendere pleas. However, neither of these sources of authority delineates the procedures for taking the plea of guilty but mentally ill, established by the Legislature by 1975 PA 180. See MCL 768.36; MSA 28.1059. The dispositive issue in the case at bar concerns the proper procedure on taking this plea. Specifically, the issue is whether the trial judge erred by relying on the preliminary examination transcript to establish the factual basis for the plea, where the defendant claimed that, because of intoxication induced by alcohol and a controlled substance, he had no memory of the events in question.

Before accepting a plea of guilty, the court must establish support for a finding of the defendant’s guilt by personally questioning him about the crime. However, when taking a nolo contendere plea the court may rely on the preliminary examination transcript to establish the factual basis of the offense.

Defendant argues that the procedure for taking pleas of guilty but mentally ill should be the same as for guilty pleas, with the additional requirement of proving defendant’s mental illness at the time of the offense. The prosecution contends that, where the defendant asserts that he is unable to recall the alleged offense and that he was mentally ill at the time of its commission, guilty but mentally ill pleas should be treated as nolo pleas in order to give effect to the legislative purpose of the guilty but mentally ill statute.

To decide which is the appropriate practice we will consider, first, the reasons said to justify the difference in the two, and second, how those reasons apply in the context of the instant case.

In Guilty Plea Cases, 395 Mich 96, 133; 235 NW2d 132, 147 (1975), the Supreme Court stated its "preference for interrogation of the defendant by the judge and for reliance on his responses to establish a factual basis”. In an accompanying footnote, the Court quoted with approval the following, in apparent explanation of this preference:

"Direct questioning enables the judge to determine how the defendant views the facts. By the defendant’s answers to the judge’s questions, the judge, a trained observer, can himself appraise whether the plea is, indeed, a truthful plea. It permits the judge, who will be sentencing the defendant, to get the feel of the situation.
"Direct questioning of the defendant is informative; it permits the judge to satisfy himself as to the substantiality and justification for the prosecution and that it is consistent with the sound administration of justice to permit the defendant to plead guilty.” 395 Mich at 133, n 2; 235 NW2d at 147, n 2, quoting from People v Coates, 32 Mich App 52, 70; 188 NW2d 265, 273 (1971) (dissenting opinion by Levin, J.).

In People v Barrows, 358 Mich 267, 272; 99 NW2d 347, 350 (1959), the Court gave additional reasons for favoring direct questioning:

"The direct questioning of a defendant by the trial judge on plea of guilty is required by the rule for the purpose of establishing the crime and the participation therein of the person pleading guilty. This is a precaution against involuntary or induced false pleas of guilty, and against subsequent false claims of innocence.”

The plurality opinion in People v Schneff, 392 Mich 15, 26; 219 NW2d 47, 53 (1974), stated further reasons for the rule:

"This procedure also provides the best method for assurance that a defendant understands the nature of the charge to which he is. pleading. A complete recitation of facts from the defendant also provides for increased appellate certainty when reviewing challenged guilty pleas.”

In Schneff the plurality also supported the rule against use of preliminary examination transcripts with an argument that they are not trustworthy:

"The preliminary examination has for its limited purpose only the determination by a magistrate whether there is probable cause to bind the defendant over for trial; it 'is in no sense a trial to determine the guilt or innocence of an accused.’ People v McLean (1925), 230 Mich 423, 425 [202 NW 1005], and cases cited therein. In its essential nature the preliminary examination is inquisitional and to function properly a very broad scope is permitted the people in their offer of proofs sufficient to satisfy the magistrate’s inquisition as to probable cause. Not infrequently, defendant offers no proofs of his own and, indeed, may not even choose to cross-examine the witnesses offered by the people. On such testimony, no proper determination of guilty should be permitted for any purpose.”

People v Schneff, supra, 392 Mich at 25; 219 NW2d at 53, quoting from People v Zaleski, 375 Mich 71, 81-82; 133 NW2d 175, 180-181 (1965). However, in People v Chilton, 394 Mich 34, 38-39; 228 NW2d 210, 211-212 (1975), the Court, in upholding the use of a preliminary examination record in taking a nolo contendere plea, expressed a more measured distrust:

"Unquestionably the function of a preliminary examination is to determine probable cause. However, not infrequently at the preliminary examination the evidence weighs as heavily against the defendant as if that evidence were introduced at trial. It would constitute a sufficient basis for finding the defendant guilty as charged.
"Certainly a preliminary examination might establish probable cause that the defendant may have committed a crime but fail to establish that the defendant is guilty. But that determination can only be made after a review of the preliminary examination record. In this case the trial judge found that testimony sufficient to establish a factual basis for the acceptance of defendant’s plea. We cannot say he erred.”

Against this background we observe the reasons for the rule’s exception permitting use of preliminary examination transcripts for nolo pleas. See GCR 1963, 785.7(3)(b).

The guiding case is People v Chilton, 394 Mich 34; 228 NW2d 210 (1975). In Chilton the Court explained that "[a] nolo contendere plea by its nature prohibits an examining magistrate from eliciting from the defendant the requisite factual basis to support a nolo plea”; however, the magistrate must still establish the factual basis of the crime, albeit in another manner. 394 Mich at 37-38; 228 NW2d at 211.

A nolo plea cannot be accepted unless the court "state[s] why a plea of nolo contendere is appropriate”. GCR 785.7(3)(b)(i). This requirement has been equated with that of the present court rule’s predecessor, which required "that there be especial circumstances justifying departure from the norm of direct questioning of the defendant, as in a guilty plea, and acceptance of a plea of nolo contendere”. Guilty Plea Cases, supra, 395 Mich at 134; 235 NW2d at 147. See also People v Belanger, 73 Mich App 438, 455; 252 NW2d 472, 481 (1977), People v Gonzales, 70 Mich App 319; 245 NW2d 734 (1976), lv den, 402 Mich 815 (1977). A sampling of such reasons was set forth in Guilty Plea Cases, supra, 395 Mich at 134; 235 NW2d at 147:

"Among the justifying circumstances that have been suggested are (1) a reluctance on defendant’s part to relate the details of a particularly sordid crime (e.g., sexual assault on a child); (2) the defendant’s recollection of the facts may be unclear because he was intoxicated (People v Stoner, 23 Mich App 598, 608; 179 NW2d 217 [1970]) or he committed so many crimes of a like nature that he cannot differentiate one from another; and (3) because he wishes to minimize other repercussions, e.g., civil litigation. This enumeration is not meant to be exhaustive.”

See also People v Seaman, 75 Mich App 546, 550; 255 NW2d 680, 682 (1977), People v Maciejewski, 68 Mich App 1, 3; 241 NW2d 736, 737 (1976).

These reasons fall into two categories, which seem to define the "nature” of a nolo contendere plea: a means for enabling a defendant to plead to an offense where the defendant wishes to do so, but "is unable or unwilling to admit his guilt or relate the details of the alleged criminal conduct”. Guilty Plea Cases, supra, 395 Mich at 134; 235 NW2d at 147.

We turn now to the plea of guilty but mentally ill, and to consideration of how the rules and thinking regarding the procedures on other pleas apply to it.

The statute providing for the plea does not state what the judge must find with regard to the alleged criminal conduct. See MCL 768.36(2); MSA 28.1059(2). However, the statute does specify what the trier of fact must find if, after trial, a defendant is to be found guilty but mentally ill:

"(1) If the defendant asserts a defense of insanity * * * the defendant may be found 'guilty but mentally ill’ if, after trial, the trier of fact finds all of the following beyond a reasonable doubt:
"(a) That the defendant is guilty of an offense.
"(b) That the defendant was mentally ill at the time of the commission of that offense.
"(c) That the defendant was not legally insane at the time of the commission of that offense.” MCL 768.36(1); MSA 28.1059(1).

Assuming that a plea’s elements are the same as those of a jury verdict or bench trial finding, it is obvious that, with regard to the required findings, a plea of guilty but mentally ill is distinguished from a plea of guilty only by the additional element of mental illness.

Indeed, upon close inspection it appears that the label of the plea (or verdict, or finding) is somewhat of a misnomer. To a layperson, "guilty but mentally ill” may suggest that the culpability, and hence the punishment, attending the finding of "guilty” is mitigated by the finding of "mentally ill”. However, the statute explicitly provides that,

"If a defendant is found guilty but mentally ill or enters a plea to that effect which is accepted by the court, the court shall impose any sentence which could be imposed pursuant to law upon a defendant who is convicted of the same offense.” MCL 768.36(3); MSA 28.1059(3).

The statute further provides that a defendant found "guilty but mentally ill” may have continued treatment at a mental institution made a condition of parole or probation. MCL 768.36(3), (4); MSA 28.1059(3), (4). In sum, the finding of "mentally ill” can only serve to aggravate rather than mitigate the restraints on a convicted defendant’s liberty. The plea, verdict, or finding would more aptly be "guilty and mentally ill”. In its substance, and in its penal consequences, a plea of guilty but mentally ill is a guilty plea. Unlike a plea of nolo contendere, there is nothing in the nature of a guilty but mentally ill plea which is inconsistent with direct questioning of the defendant. It follows that the policies requiring direct questioning to establish the factual basis for guilty pleas are fully applicable to pleas of guilty but mentally ill. In fact, because a guilty but mentally ill plea can only be taken from a defendant for whom some showing of mental illness has been made, the policies behind direct questioning are even more applicable here. This is particularly true with regard to the need to learn whether the defendant understands the charge and how the defendant views the facts.

Nor do we see, in the purpose underlying this plea’s creation, any ground for a different result. The prosecution’s brief argues that nolo procedures must be permitted in taking pleas of guilty but mentally ill in order to "facilitate * * * the legislative purpose of the act”. However, the prosecution’s brief does not state, within its argument on this issue, what that legislative purpose is. In its argument on another issue in this case the prosecution seems to suggest a purpose for the plea:

"Appellant points to the language in MCLA 768.36 and asserts that it mandates treatment.
"Clearly, treatment is not implicit in the guilty but mentally ill verdict. The statute provides for diagnosis and then treatment, if necessary.
"Assuming that a 'right to treatment’ exists regardless of any particular statutory authority, the provisions of MCLA 768.36 add nothing to the 'right’ as this is already specifically provided for in the Mental Health Code. MCLA 330.2000 et seq. The guilty but mentally ill verdict simply provides an alternative mechanism for identification of prospective recipients of that 'right.’

Assuming for the sake of discussion only that this is indeed the purpose of the plea, as well as the verdict, we see in it no reason for dispensing with the usual guilty plea requirement of direct questioning. Imposing this requirement will prevent defendants who cannot or will not recall the details of a crime from pleading guilty but mentally ill. However, it may be safely assumed that, unless a defendant desired psychiatric care, he would not wish to plead guilty but mentally ill. Hence, as to those defendants who do not desire psychiatric care, requiring direct questioning on pleas of guilty but mentally ill will not deter any such pleas, and therefore will not thwart the statute’s purpose.

As to those defendants who do want psychiatric care, but who cannot or will not state the facts of the alleged offense, this rule will bar pleas of guilty but mentally ill. However, such defendants may tender pleas of nolo contendere and apply to the corrections officials for psychiatric care. MCL 330.2000(3); MSA 14.800(1000)(3). Therefore, even where the rule prevents defendants from pleading guilty but mentally ill, it will not prevent them from fulfilling the plea’s alleged purpose, self-identification of prospective recipients of mental health care.

We conclude that the court erred by relying on the preliminary examination transcript to supply the factual basis for the plea of guilty but mentally ill. This raises a question as to the appropriate remedy.

Where there has been a failure to establish an element of an offense to which the defendant has pled guilty, the remedy is a remand to augment the record:

"On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion.” Guilty Plea Cases, supra, 395 Mich at 129; 235 NW2d at 145. (Citation omitted.)

While this procedure may be a fitting cure for an omission to prove but a single element of an offense, we do not think it appropriate where, as here, the defendant has denied any recollection of the offense and the preliminary examination transcript has wholly supplanted direct questioning of the defendant. In such a case a remand to establish the "missing element” is a remand to establish every element of the offense, a procedure difficult to distinguish from a repeat of the preliminary examination. If this were acceptable, then the rule requiring direct questioning, and the objectives it was meant to further, would be defeated. Therefore, defendant’s plea shall be set aside. The parties may either strike a bargain for a plea of nolo contendere, or put the case on for trial.

Our resolution of this issue makes it unnecessary to consider the others raised by this appeal.

Remanded for proceedings consistent with the views expressed herein.

       GCR 1963, 785.7(3)(a); People v Schneff, 392 Mich 15, 23; 219 NW2d 47, 53-54 (1974).
      However, a mere assertion of intoxication or narcosis is no bar to acceptance of a guilty plea "as long as the defendant sufficiently recalls facts and circumstances which tend to show he participated in the commission of the offense”. People v Burton, 396 Mich 238, 242; 240 NW2d 239, 241 (1976).

       GCR 1963, 785.7(3)(b)(ii), People v Belanger, 73 Mich App 438, 455; 252 NW2d 472, 480-481 (1977), People v Conville, 55 Mich App 251, 254; 222 NW2d 312, 314 (1974).

        People v Harper, 83 Mich App 390; 269 NW2d 470 (1978).

         GCR 1963, 785.7(3)(d):
      "Where a plea of nolo contendere is made the court shall not interrogate the defendant regarding his or her participation in the crime. However, the court may not accept a plea of nolo contendere unless there has been or the judge thereupon conducts a hearing establishing substantial support for a finding that the defendant is in fact guilty of the charged offense or the offense to which he is offering the plea of nolo contendere and unless the judge first states reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime.”

       Additional authority for diagnostic observation is provided for in MCLA 791.267.”

       Appellee’s brief, at 2.

       "Must defendant’s plea of guilty but mentally ill be set aside because it was induced by the unfulfilled and illusory promise that he would receive special status in prison and treatment for his mental disorder?” (Issue as stated in defendant’s brief.)

       Appellee’s brief, at 5.

       In another issue raised in the case at bar, defendant asserts that his plea should be set aside because he has been denied the promised care. See n 6, supra. The prosecution responds that defendant "has a remedy through a civil suit against corrections’ officials”. Appellee’s brief, at 6. (Citation omitted.) We see no reason why the existence of this remedy should exclude another. However, because the plea has been set aside for the reasons herein stated, we need not reach the merits of this issue. We express no opinion as to whether this is defendant’s sole remedy.


source: Caselaw Access Project

author: V. J. Brennan, P.J.

license: Public Domain

text:
    ST. VINCENT v STATE OF MICHIGAN
    Docket Nos. 77-1227, 77-4428.
    Submitted May 3, 1978, at Marquette.
    Decided November 6, 1978.
    Leave to appeal applied for.
    Clarence St. Vincent sustained personal injuries when he dived into shallow waters at a Michigan state highway park in Dickinson County. He brought a negligence action in circuit court for damages against the State of Michigan, Michigan State Highway Commission, Department of Highways and Transportation and the Dickinson County Road Commission. A similar action was started in the Court of Claims. The State of Michigan and the state agency defendants moved for accelerated judgment and/or summary judgment. The Court of Claims, Calvin L. Bosman, J., granted the motion and the case in the Court of Claims against the state defendants was dismissed. Dickinson Circuit Court, Ernest W. Brown, J., granted summary judgment for the defendant Dickinson County Road Commission, and granted a motion for accelerated judgment for the State of Michigan and the state agency defendants. Plaintiff appeals the circuit court action as of right and appeals the Court of Claims action by leave granted.
    The questions on appeal are (1) whether plaintiffs claim against the state defendants is barred by the doctrine of sovereign immunity, and (2) whether the county is liable by virtue of a contract with the state to provide maintenance for the highway park. Held:

    1. The defense of sovereign immunity as applied to a state and its agencies has been abrogated by a rule which is prospective in application except for pending cases where an express challenge to the defense of immunity has been made and preserved. Plaintiffs is a pending case but his reply to the state’s claim of immunity only contests the application of the doctrine to his particular suit without making a direct challenge to the concept of common-law sovereign immunity; therefore, governmental immunity applies and defeats plaintiffs claim.

      References for Points in Headnotes
    [1-3] Am Jur 2d, States, territories, and Dependencies § 99 et seq.

    [4] 73 Am Jur 2d, Summary Judgment §§ 1, 2.

      2. Grant of summary judgment for the Dickinson County Road Commission was proper. Jurisdiction over a state highway park is with the state and not the county and the state remains liable for negligent maintenance where the county simply maintained a contract with the state to provide maintenance for the highway park.
    Affirmed.
    1. Torts — States—Governmental Immunity — Abrogation of Rule —Prospective Application.
    The common-law doctrine of sovereign immunity as applied to a state and its agencies has been abrogated by a ruling which is prospective in application, except for pending cases in which an express challenge to the common-law defense of state governmental immunity has been made and preserved.
    2. Torts — States—Governmental Immunity — Abrogation of Rule —Pending Cases.
    A plaintiffs action against a state or its agencies is subject to the defense of governmental immunity in a case pending at the time when the abrogation of immunity rule was released where the plaintiff’s reply to the state’s claim of governmental immunity contests only the application of the doctrine to his particular suit without making a direct challenge to the concept of common-law sovereign immunity.
    3. Negligence — States—State Parks — Jurisdiction—Maintenance Agreements with Counties — Liability.
    A state does not divest itself of jurisdiction over a state highway park by entering into maintenance agreements with a county; therefore, there is no basis for county liability on account of charged negligent maintenance where the county simply maintained a contract with the state for such maintenance.
    4. Judgment — Summary Judgment — Complete Defense.
    Summary judgment is proper where a defendant affirmatively presents to the court every fact necessary for a complete defense.

      Wisti & Jaaskelainen, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Louis J. Caruso
      and Francis J. Carrier, Assistants Attorney General, for defendant State of Michigan.

      Brouillette & Brouillette, for defendant Dickinson County Road Commission.
    Before: V. J. Brennan, P.J., and R. B. Burns and M. J. Kelly, JJ.
   V. J. Brennan, P.J.

Plaintiff Clarence St. Vincent brought suit both in the Michigan State Court of Claims and Dickinson County Circuit Court, seeking damages for personal injuries allegedly suffered due to the negligent acts of the State of Michigan, the Michigan State Highway Commission, Department of Highways and Transportation, and the Dickinson County Road Commission. The Court of Claims granted accelerated judgment to the state defendants pursuant to GCR 1963, 116.1(5). The Dickinson County Circuit Court granted county defendants’ motion for summary judgment on the basis of governmental immunity and nonliability pursuant to a maintenance contract existing between defendant county and defendant State Highway Department. GCR 1963, 117.2(1). Plaintiff appeals as of right under GCR 1963, 806.1.

Plaintiff brought suit against defendants on May 26, 1976, alleging injury which occurred in 1935 in a Michigan state highway park located north of M-69, near Hardwood in Dickinson County. Plaintiff stated that he was an invitee, that the premises were under the ownership and control of defendants, that defendants breached their duty of care by failing to erect signs warning of dangerously shallow waters, that he was injured upon diving into those waters, that defendants’ breach of duty was the direct and proximate cause of those injuries and that such injuries caused mental derangement which prevented him from instituting legal action prior to this time.

With regard to the state defendants, on July 19, 1976, the Dickinson County Circuit Court granted their motion for accelerated judgment on the ground that plaintiffs claim against them was cognizable only in the Court of Claims. Similarly, the Court of Claims, holding plaintiffs claim for naught, on August 13, 1976, granted the state defendants’ motion for accelerated and summary judgment. Although the court’s decision does not so indicate and the record is silent on the matter, judgment for state defendants was apparently based upon their claim that plaintiff was barred by the doctrine of sovereign immunity.

With regard to the county defendant, on October 27, 1976, the Court of Claims granted its motion for accelerated judgment on the basis that such claim was cognizable only in Dickinson County Circuit Court. Finally, on March 18, 1977, the circuit court granted defendants’ motion for summary judgment on grounds of governmental immunity and nonliability premised upon a contract between Dickinson County and the Michigan State Highway Commission.

Plaintiff raises several allegations of error. We will comment only briefly on them.

The Court of Claims properly granted summary judgment to state defendants. GCR 1963, 117.2(1). See White v Detroit, 74 Mich App 545, 547; 254 NW2d 572 (1977), McCann v Michigan, 398 Mich 65, 77; 247 NW2d 521, 523-524 (1976) (opinion of Ryan, J.), Galli v Kirkeby, 398 Mich 527; 248 NW2d 149 (1976) (opinion of Williams, J.). Recently, the Michigan Supreme Court abrogated the common-law doctrine of sovereign immunity as applied to the state and its agencies. Pittman v City of Taylor, 398 Mich 41; 247 NW2d 512 (1976). However, because plaintiff was not directly challenging the concept of common-law sovereign immunity in his reply to state defendants’ claim of immunity, but only contesting its application to plaintiff’s particular suit, we find plaintiff’s action is not governed by Pittman, despite the fact the suit was pending when Pittman was released. The Court stated there:

"This ruling is prospective, with the exception of the instant case and any cases now pending in which an express challenge to the common-law defense of state governmental immunity has been made and preserved.” Pittman v City of Taylor, supra, at 45.

Consequently, state defendants properly availed themselves of the immunity defense, and the Court of Claims correctly granted their motion for summary judgment. See Myers v Genesee County Auditor, 375 Mich 1; 133 NW2d 190 (1965).

Concerning county defendant, we find no basis for liability on account of charged negligent maintenance when the county simply maintained a contract with the state for such maintenance. See Moyer v Wayne County Road Comm, 52 Mich App 285; 217 NW2d 53 (1974), Bennett v Lansing, 52 Mich App 289; 217 NW2d 54 (1974). Therefore, defendant county was properly granted summary judgment when they affirmatively presented to the court every fact necessary for a complete defense. Bloss v Williams, 15 Mich App 228; 166 NW2d 520 (1968).

Having reviewed plaintiff’s remaining claims of error and finding none meritorious, we sustain the Court of Claims and Dickinson County Circuit Court.

Affirmed.


author: Bronson, J. D. F. Walsh, J.

text:
    HILL v SULLIVAN EQUIPMENT COMPANY
    Docket No. 77-1902.
    Submitted May 4, 1978, at Detroit.
    Decided November 6, 1978.
    Leave to appeal denied, 406 Mich —.
    Plaintiffs Robert A. Hill and Dora Hill brought an action against defendant Sullivan Equipment Company for damages for injuries sustained by Robert Hill when he caught his arm in a machine after reaching into a conveyor designed, manufactured and installed by defendant Sullivan Equipment Company for the Armen-Berry Company, Hill’s employer. Sullivan filed a third-party complaint against Armen-Berry seeking indemnification. The Wayne Circuit Court, Michael L. Stacey, J., granted the third-party defendant’s motion for summary judgment on the ground that the third-party complaint failed to state a cause of action. Sullivan Equipment Company appeals. Held:

    1. Common law indemnity is available only if the party seeking it is not actively negligent. The court looks to the primary plaintiffs complaint in determining this and if that complaint alleges only active negligence, as opposed to derivative liability, the defendant is not entitled to common law indemnity. Therefore, the trial court correctly determined that the defendant was not entitled to common law indemnity since the plaintiffs complaint did not allege vicarious liability.
    2. The court must look to the third-party complaint as well as the original complaint in determining whether the third-party complaint stated a cause of action for indemnity based on an implied contract. The trial court erred in granting the summary judgment since the allegations contained in the third-party complaint were sufficient to state a cause of action for indemnity based on an implied contract.
    Reversed and remanded.
    D. F. Walsh, J., dissented and would hold that there can be no recovery on either the common law indemnity doctrine or an implied contract of indemnity unless the party seeking recovery is free from active negligence. The trial court did not err in granting the third-party defendant’s motion for summary judgment since there could be no recovery against third-party plaintiff, Sullivan Equipment Company, unless active negligence was proven in the principal suit and, therefore, if active negligence were proven, there would be no right of indemnification.

      References for Points in Headnotes
    [1, 5, 7] 1 Am Jur 2d, Actions § 59.
    41 Am Jur 2d, Indemnity §§ 19-27.
    66 Am Jur 2d, Restitution and Implied Contracts §§ 16, 153 et seq.

    [2] 41 Am Jur 2d, Indemnity §§ 1-5.
    [3, 6] 41 Am Jur 2d, Indemnity §§ 15-20.
    [4, 6] 41 Am Jur 2d, Indemnity §§ 19-27.

      Opinion of the Court
    1. Appeal and Error — Indemnity—Summary Judgments — Failure to State — Cause of Action — Third-Party Complaints — Allegations — Implied Indemnity Contracts.
    A third-party defendant’s motion for summary judgment on the ground that the third-party complaint failed to state a cause of action was improperly granted where the allegations contained in the third-party complaint were sufficient to state a cause of action for indemnity from the third-party defendant based on an implied indemnity contract.
    2. Indemnity — Common Law.
    Common law indemnity is based on the equitable principle that where the wrongful act of one results in another being held liable, the latter party is entitled to restitution from the wrongdoer.
    3. Indemnity — Common Law — Active Negligence — Primary Plaintiff’s Complaint — Derivative Liability.
    Common law indemnity is available only if the party seeking it is not actively negligent; the court looks at the primary plaintiff’s complaint in determining this, and if that complaint alleges only active negligence, as opposed to derivative liability, the defendant is not entitled to common law indemnity.
    4. Trial — Indemnity—Third-Party Complaints — Original Complaints — Causes of Action — Implied Indemnity Contracts.
    A trial court must look to the third-party complaint as well as to the original complaint in order to determine whether a third-party plaintiff has stated a cause of action for indemnity based on an implied indemnity contract.
    5. Appeal and Error — Well-Pleaded Facts — Third-Party Complaints — Right to Recovery — Summary Judgments — Cause of Action — Failure to State.
    The Court of Appeals will accept well-pleaded facts contained in a third-party complaint as true and inquire whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery when the Court reviews a trial court’s granting of a summary judgment to a third-party defendant on the ground that the third-party complaint failed to state a cause of action.
    Dissent by D. F. Walsh, J.
    6. Indemnity — Active Negligence — Common Law — Implied Contracts.

      A party seeking indemnification must be free from active negligence where his claim is based upon the common law indemnity doctrine or an implied contract of indemnity.

    7. Appeal and Error — Third-Party Complaints — Summary Judgment — Cause of Action — Failure to State — Active Negligence.

      A trial court did not err in granting a third-party defendant’s motion for summary judgment on the ground that the third-party complaint failed to state a cause of action for indemnity where there could be no recovery against the third-party plaintiff unless active negligence was proven against the third-party plaintiff in the principal suit and, therefore, if such active negligence were proven, the third-party plaintiff would not have a right of indemnification.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, for defendant and third-party plaintiff-appellant, Sullivan Equipment Company.

      Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., for third-party defendant-appellee, ArmenBerry Company.
    Before: M. F. Cavanagh, P.J., and Bronson and D. F. Walsh, JJ.
   Bronson, J.

Robert Hill, the principal plaintiff, was injured at work when he reached into a screw conveyor and caught his arm in the screw mechanism. Hill sued defendant Sullivan Equipment Co, which designed, manufactured and installed the conveyor for Hill’s employer, Armen-Berry Company.

Sullivan filed a third-party complaint against Armen-Berry which alleged that Sullivan had originally designed the machine with a protective cover, but that Armen-Berry had explicitly rejected this design and insisted that the machine be installed without the cover. The third-party complaint further alleged that Armen-Berry stated to Sullivan that the machine would be used in such a manner that the screw conveyor would be inaccessible to workmen while the machine was in operation.

The trial court granted Armen-Berry’s summary judgment motion on the third-party complaint, holding that it failed to state a cause of action for indemnity. See GCR 1963, 117.2(1).

Defendant Sullivan alleges alternatively that it is entitled to common law indemnity or indemnity under an implied contract.

I

Common law indemnity is based on the equitable principle that where the wrongful act of one results in another being held liable, the latter party is entitled to restitution from the wrongdoer. See, e.g., Provencal v Parker, 66 Mich App 431; 239 NW2d 623 (1976). See generally Prosser, Torts (4th ed), § 51. In the typical case, indemnity is available only if the party seeking it is not "actively” negligent. Husted v Consumers Power Co, 376 Mich 41; 135 NW2d 370 (1965), Nanasi v General Motors Corp, 56 Mich App 652; 224 NW2d 914 (1974), McLouth Steel Corp v A E Anderson Construction Corp, 48 Mich App 424; 210 NW2d 448 (1973). In determining this, the court looks to the primary plaintiff’s complaint. If that complaint alleges only "active” negligence, as opposed to derivative liability, the defendant is not entitled to common law indemnity. Prosky v National Acme Co, 404 F Supp 852 (ED Mich, 1975) (decided under Michigan law), Minster Machine Co v Diamond Stamping Co, 72 Mich App 58; 248 NW2d 676 (1976). Accord, Jordan v Solventol Chemical Products, Inc, 74 Mich App 113; 253 NW2d 676 (1977).

In the case at bar, plaintiffs’ complaint does not allege vicarious liability; the trial court, therefore, correctly determined that defendant was not entitled to common law indemnity. Prosky v National Acme Co, supra, Diekevers v SCM Corp, 73 Mich App 78; 250 NW2d 548 (1976), Minster Machine Co v Diamond Stamping Co, supra.

II

The other basis for indemnity raised by Sullivan is an implied indemnity contract. This basis has been recognized in Michigan, see, e.g., Dale v Whiteman, 388 Mich 698, 705; 202 NW2d 797 (1972), citing Diamond State Telephone Co v University of Delaware, 269 A2d 52 (Del, 1970). See also Ryan Stevedoring Co, Inc v Pan-Atlantic Steamship Corp, 350 US 124; 76 S Ct 232; 100 L Ed 133 (1956). To determine whether a third-party plaintiff has stated a cause of action for indemnity based on an implied contract, the court must look to the third-party complaint as well as the original complaint. See Diekevers v SCM Corp, supra, at 81. As this case arises on summary judgment for failure to state a cause of action, we accept as true third-party plaintiff’s well-pleaded facts and inquire whether these claims are so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Borman’s, Inc v Lake State Development Co, 60 Mich App 175, 179-180; 230 NW2d 363 (1975).

In the case at bar, Sullivan alleged in its third-party complaint that Armen-Berry unqualifiedly rejected a proposed protective cover for the machine which injured plaintiff and advised Sullivan that the machinery would be situated and used so that it would be inaccessible to workers while in operation. We believe these allegations are sufficient to state a cause of action for indemnity. I.e., by expressly rejecting the proposed cover and undertaking to situate the conveyor so that it would be inaccessible, Armen-Berry may have impliedly agreed to indemnify Sullivan should Sullivan be held liable for Armen-Berry’s rejection of the cover or failure to use the machine as proposed.

As the third-party complaint thus stated a cause of action for indemnity, summary judgment should not have been granted.

Reversed and remanded. Costs to appellant.

M. F. Cavanagh, P.J., concurred.

D. F. Walsh, J.

(dissenting). I must respectfully dissent. Whether indemnification is based upon the common law indemnity doctrine or an implied contract of indemnity there can be no recovery on this theory unless the party seeking recovery is free from active negligence.

In Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972), relied upon by the majority, the Supreme Court discussed various theories of indemnity and concluded at 705:

"Whatever theory may be followed by the courts, the principle has been summed up in 42 CJS as follows:
'It is a well-recognized rule that an implied contract of indemnity arises in favor of a person who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another, the former having a right of action against the latter for indemnity * * * (42 CJS, § 21, p 596.)” (Emphasis added.)

In this case there can be no recovery against Sullivan Equipment Co. unless active negligence is proven in the principal suit. If active negligence is proven, there is no right of indemnification. Diekevers v SCM Corp, 73 Mich App 78; 250 NW2d 548 (1976).

I would affirm the trial court.


author: D. F. Walsh, P.J.

text:
    BRAGG v CITY OF KALAMAZOO
    Docket No. 77-2437.
    Submitted October 3, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Mary Bragg filed an action as next friend in behalf of Raymond Bragg, a minor, against the City of Kalamazoo for damages for injuries sustained in a fall from a swing in a park owned by the city. The Kalamazoo Circuit Court, Donald T. Anderson, J., on the basis that the governmental immunity statute on which defendant relied was unconstitutional as violative of the title-object clause of the Michigan Constitution, denied defendant’s motion for summary judgment. Defendant appeals by leave granted. Held:

    1. The purpose of the constitutional limitation of legislation to one object expressed in its title is to assure fair notice to legislators and the public of a statute’s content and to prevent deceit and subterfuge; in effectuating these purposes, courts must construe an act’s title reasonably, not in a narrow and technical sense.
    2. A statute making governmental agencies immune from "tort liability” in the discharge of governmental functions is not unconstitutional as violative of the title-object clause where the title disclosed the act to be one to make uniform governmental liability "for injuries to persons or property”.
    Reversed and remanded.
    1. Constitutional Law — Statutes—Titles of Statutes — Single Object — Construction.
    The purpose of the constitutional limitation of legislation to one object expressed in its title is to assure fair notice to legislators and the public of a statute’s content and to prevent deceit and subterfuge; in effectuating these purposes, courts must construe an act’s title reasonably, not in a narrow and technical sense (Const 1963, art IV, § 24).
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 97-102.
    [2] 73 Am Jur 2d, Statutes §§ 107, 158.

      2. Constitutional Law — Statutes—Titles of Statutes — Governmental Immunity.
    A statute making governmental agencies immune from "tort liability” in the discharge of governmental functions is not unconstitutional as violative of the title-object clause where the title discloses the act to be one to make uniform governmental liability "for injuries to persons or property”; the title to the governmental immunity act gives fair and adequate notice of the act’s purpose and content (Const 1963, art IV, § 24, MCL 691.1407; MSA 3.996[107]).

      Don M. Schmidt, City Attorney, and William S. Baird, Assistant City Attorney, for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and C. J. Byrns, JJ.

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

   D. F. Walsh, P.J.

Defendant appeals from the denial of its motion for summary judgment, GCR 1963, 117.2(1). The trial court rejected defendant’s claim that governmental immunity barred plaintiffs action.

On August 4, 1975, Mary Bragg, next friend of Raymond Bragg, a minor, filed a complaint against the City of Kalamazoo. Plaintiff sought damages for injuries sustained by the minor when he fell from a rope swing in a park owned by defendant.

Defendant moved for summary judgment claiming, inter alia, that it was immune from liability. MCL 691.1407; MSA 3.996(107). In denying the motion the trial judge ruled that the portion of the governmental immunity act upon which defendant relied was unconstitutional as violative of the title-object clause of the Michigan Constitution:

"No law shall embrace more than one object, which shall be expressed in its title.” Const 1963, art 4, § 24.

The purpose of the title-object clause is to assure fair notice to legislators and the public of a statute’s content and to prevent deceit and subterfuge. Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465; 208 NW2d 469 (1973). In effectuating these purposes, courts must construe an act’s title reasonably, not in a narrow and technical sense. Bankhead v Mayor of River Rouge, 387 Mich 610, 614; 198 NW2d 414 (1972), City of Gaylord v Gaylord City Clerk, 378 Mich 273, 288; 144 NW2d 460 (1966).

The title of the governmental immunity act (MCL 691.1401 et seq.; MSA 3.996[101] et seq.) provides in part:

"AN ACT to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons. ” (Emphasis added.)

Section 7 of the act (MCL 691.1407; MSA 3.996[107]), provides in part:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.” (Emphasis added.)

The trial court ruled that "tort” was broader than "injuries to property and persons” and that § 7 was, therefore, unconstitutional. It was the trial court’s opinion that "injuries to property and persons” means injury to tangible physical property and injury to the body of a person.

In Maki v City of East Tawas, 385 Mich 151; 188 NW2d 593 (1971), the Supreme Court held that § 7 of the governmental immunity act was unconstitutional as violative of the title-object clause. At the time of that decision, the title of the act granted immunity to governmental units from liability "for injuries to property and persons caused by negligence(Emphasis added.) 1964 PA 170. The Court held that the "tort” immunity granted in § 7 was broader than the "negligence” immunity granted in the act’s title.

The Legislature responded by reenacting the immunity statute under an amended title. The "caused by negligence” language was deleted. 1970 PA 155, § 1.

In interpreting statutes we are guided by MCL 8.3a; MSA 2.212(1):

"All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”

The trial court erroneously concluded that "injuries to property and persons” had acquired a peculiar meaning in the law. He relied on Sweet v Shreve, 262 Mich 432; 247 NW 711 (1933), where the Supreme Court held that an action for fraud was governed by the general six-year statute of limitations instead of the three-year statute governing injuries to persons or property. The Supreme Court went on to state that the three-year limitation applied only to actions involving specific property. As noted in Krum v Sheppard, 255 F Supp 994 (WD Mich, 1966), aff'd 407 F2d 490 (CA 6, 1967), this statement was not necessary to the decision and was merely obiter dictum.

In other contexts, the phrase "injuries to property and persons” has been interpreted more broadly; injury to specific tangible property or injury to the body of a person has not always been required. See, e.g., Krum v Sheppard, supra, Probst v Jones, 262 Mich 678; 247 NW 779 (1933), Stringer v Sparrow Hospital Bd of Trustees, 62 Mich App 696; 233 NW2d 698(1975), lv den 395 Mich 768 (1975), Anno: What constitutes "injury in person or property” within civil damage or dram shop act, 6 ALR2d 798.

We are not willing to adopt the trial court’s restrictive interpretation of the phrase "injuries to property and persons”. As currently worded, the title of the governmental immunity act gives fair and adequate notice of the act’s purpose and content. If we read the phrase "according to common and approved usage” we must decline to limit it to physical injuries. Stringer v Sparrow Hospital Bd of Trustees, supra at 702. Our holding is limited to the narrow issue raised on appeal. We express no opinion as to the merits of the governmental immunity defense raised by defendant.

The trial court’s ruling that § 7 of the governmental immunity act is unconstitutional is reversed. The cause is remanded for further proceedings.

       Our holding accords with dicta in several cases where Supreme Court Justices have indicated that the Legislature’s response to the Maki decision cured the title object defect in § 7. See e.g., Thomas v Dept of State Highways, 398 Mich 1, 15, fn 2; 247 NW2d 530 (1976), Pittman v City of Taylor, 398 Mich 41, 46, 53; 247 NW2d 512 (1976), Peters v Dept of State Highways, 400 Mich 50, 56, fn 5; 252 NW2d 799 (1977), Rosario v Lansing, 403 Mich 124, 130; 268 NW2d 230 (1978), Gerzeski v Dept of State Highways, 403 Mich 149, 165; 268 NW2d 525 (1978). See also Miller v Oakland County Road Comm, 43 Mich App 215, 221; 204 NW2d 141 (1972), Bennett v Attorney General, 65 Mich App 203, 205, fn 1; 237 NW2d 250 (1975).

       Plaintiff alleged defendant’s responsibility for creation of an "inherently dangerous condition”. Two theories of recovery were mentioned: negligence and attractive nuisance. The Supreme Court has recently discussed the availability of the defense of governmental immunity in an action where the injured party relies upon a nuisance in fact or attractive nuisance theory. We refer the parties to Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and Gerzeski v Dept of State Highways, 403 Mich 149; 268 NW2d 525 (1978).


author: Danhof, C.J.

text:
    PEOPLE v HILL
    Docket No. 77-3094.
    Submitted June 5, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Allen Hill, Jr., was convicted, on his plea of nolo contendere, of possession of heroin, Calhoun Circuit Court, Stanley Everett, J. The defendant appeals, alleging that critical evidence received at his preliminary examination had been seized in violation of his rights under the Fourth Amendment and that the circuit judge failed to properly specify reasons for accepting the defendant’s plea. Held:

    1. The defendant is precluded on appeal from challenging the denial of his motion to suppress evidence because a Fourth Amendment challenge to evidence which is introduced is a nonjurisdictional defense that is waived by a plea of nolo contendere.
    2. The trial judge gave an insufficient statement of the reasons why the defendant’s plea of nolo contendere was appropriate, therefore, the matter must be remanded for a supplemental statement of reasons why the plea was appropriate.
    Remanded for further proceedings.
    1. Criminal Law — Plea of Nolo Contendere — Waiver—Prior Defects — Suppression of Evidence.
    A plea of nolo contendere waives the right to challenge any nonjurisdictional defects in prior stages of the proceedings, including the right to challenge the denial of a motion to suppress evidence.
    2. Criminal Law — Pleas of Guilty — Waiver of Defects.
    Alleged defects that merely impugn the accuracy of a bindover or conviction are waived by a defendant’s guilty plea; they are inherently subsumed by the plea, which conclusively resolves the issue of the defendant’s guilt.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 501.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.
    [2] 21 Am Jur 2d, Criminal Law § 495.
    [3] 21 Am Jur 2d, Criminal Law §§ 446. 449.
    [4, 6] 21 Am Jur 2d, Criminal Law §§ 497-501.
    Plea of nolo contendere or non vult contendere. 89 ALR2d 540.
    [5] 21 Am Jur 2d, Criminal Law § 499.
    Plea of nolo contendere or non vult contendere, 89 ALR2d 540.

      3. Criminal Law — Preliminary Examination — Sufficiency of Evidence — Failure to Object — Pleas of Guilty — Waiver—Appeal and Error.
    A defendant may not, on appeal, challenge the sufficiency of evidence presented at his preliminary examination where he fails to make a timely objection in the trial court and subsequently enters a plea of nolo contendere; the inaction of the defendant causes the purported error to be waived.
    4. Criminal Law — Plea of Nolo Contendere — Court Rules.
    A trial court, before accepting a defendant’s plea of nolo contendere, is required to state why a plea of nolo contendere is appropriate (GCR 1963, 785.7[3][6][i]).
    5. Criminal Law — Plea of Nolo Contendere — Special Circumstances — Pleas of Guilty.
    A plea of nolo contendere is accepted only as a matter of grace, under special circumstances; the basic purpose of the plea is to protect a criminal defendant from unreasonable collateral effects of his pleading guilty.
    6. Criminal Law — Plea of Nolo Contendere — Appropriateness of Plea — Special Circumstances.
    A case should be remanded to the trial court for a supplemental statement by the judge of reasons why a defendant’s plea of nolo contendere was appropriate where the judge, upon accepting the defendant’s plea, had stated no special circumstances making the plea appropriate; if the lower court cannot supply adequate reasons, the plea should be vacated and the defendant ordered to stand trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Ronald A. Lebeuf, Chief Assistant Prosecutor, for the people.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.

      Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Danhof, C.J.

Defendant pled no contest, GCR 1963, 785.7, to a charge of possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), and was sentenced to from 2-1/2 to 4 years in the state prison. He appeals his conviction on the grounds that critical evidence received at his preliminary examination had been seized in violation of the Fourth Amendment and that the circuit judge, contrary to court rule, failed to properly specify reasons for accepting defendant’s plea.

I

At preliminary examination the magistrate received evidence of defendant’s heroin possession, which was obtained by officers conducting a warrantless search and seizure incident to defendant’s arrest. The magistrate denied defendant’s motion to suppress that evidence on Fourth Amendment grounds. Before trial, defendant moved to quash the information against him. In that motion he did not raise his Fourth Amendment defense, but made a general attack on the sufficiency of the evidence. Before the circuit court could rule, however, defendant changed his original plea to nolo contendere.

On these facts, under applicable law and policy, defendant is precluded on appeal from challenging the denial of his motion to suppress. In People v Goodman, 58 Mich App 220; 227 NW2d 261 (1975), this Court held that a Fourth Amendment challenge to evidence introduced at trial is a nonjurisdictional defense that is waived on appeal by a plea of nolo contendere. Defendant argues that the Michigan Supreme Court’s decision in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), compels us to an opposite result. In Alvin Johnson, decided after Goodman, three Justices agreed to expand the class of rights that survive a guilty plea to include those that would be a "complete defense” to the state’s prosecution. Among other examples, the opinion by Justice Williams cites "those [defenses] relating to insufficient evidence to bind over at preliminary examination and failure to suppress illegally-obtained evidence without which the people could not proceed”. Alvin Johnson, supra, at 444; 240 NW2d at 739-740. Defendant plausibly maintains that Alvin Johnson preserves his asserted constitutional defense since the suppression of evidence seized incident to his arrest would have eliminated the state’s ability to proceed with its charge.

For two reasons, we determine that Alvin Johnson does not control the outcome of this case. The precise holding in Alvin Johnson is that the defense of double jeopardy is a complete defense to a criminal prosecution and, therefore, is not waived by defendant’s guilty plea in a prior proceeding. Justice Williams defined a "complete defense” as any defense that "undercuts] the state’s interest in punishing the defendant, or the state’s authority or ability to proceed with the trial”. Id. (Footnotes omitted.) Because the plea-waiver rule serves important state policies, we interpret this definition narrowly. In light of the vast majority of criminal cases concluded by guilty plea, see Schwartz, Note The Guilty Plea as a Waiver of 'Present but Unknowable” Constitutional Rights: The Aftermath of the Brady Trilogy, 74 Colum L Rev 1435, fn 1 (1974) (hereinafter Guilty Plea as Waiver), the scope of the plea-waiver doctrine is an issue of immense practical importance. It should be resolved by reference to the competing state and individual interest involved.

From the state’s view, plea waiver serves the important community interests of judicial economy and finality. Accordingly, it has been firmly established in Michigan, see People v Ginther, 390 Mich 436, 440, fn 1; 212 NW2d 922, 924, fn 1 (1973), and has been approved by the United States Supreme Court. Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970). On the other hand, state rules that impinge upon individual rights should be carefully drawn so as to actually promote the asserted state interests and not sweep too broadly. Balancing these competing concerns, we conclude the scope of the plea waiver doctrine generally should be consistent with the function of the guilty plea, which is to relieve the state from proving defendant’s guilt.

In establishing a more specific test, we are aided by the decisions of the lower Federal courts. In defining exceptions to Brady, the Federal courts seem to have established that a "complete defense” is one that "reaches beyond the factual determination of the defendant’s conduct”. Guilty Plea as Waiver, supra, at 1447. They apparently reason that a "defendant asserting such a right does not dispute participation in the proscribed activity but — by reason of a subsequently recognized right — questions the capacity of the government to punish that activity”. Id. We believe the "complete defense” exception in Michigan should have the same scope. Defects that merely impugn the accuracy of a bindover or conviction are waived by defendant’s guilty plea; they are inher-. ently subsumed by the plea, which conclusively resolves the issue of defendant’s guilt.

Theoretically, it still might make sense to distinguish fact-finding defects in the preliminary examination from similar imperfections at trial, since the sufficiency of evidence at preliminary examination determines whether there will be a trial at all. That logical difference is nevertheless without practical significance; in either situation we would be forced to look beyond the defendant’s plea and factually evaluate the state’s unpresented case.

Therefore, we hold that Alvin Johnson supplies the rule for cases in which defendants assert an absolute defense, not including defenses which relate to establishing the fact of criminal conduct. Since defendant’s asserted defense relates to the sufficiency of evidence to support a factual finding that he probably committed the offense charged, it does not survive his plea of nolo contendere.

As a second reason for finding Alvin Johnson inapplicable to this case, we assume arguendo that defendant’s asserted right is the type that is within the "complete defense” exception, but nevertheless hold that defendant lost his right to assert it by failing to make a timely objection below. In People v McIntyre, 74 Mich App 661; 254 NW2d 603 (1977), this Court held that, despite Alvin Johnson, a defendant cannot challenge the sufficiency of evidence presented at his preliminary examination after a plea of guilty when he did not press the circuit court to rule on that defense. The panel reasoned that: "Inasmuch as Johnson grounded its decision on what the guilty plea itself waives, we do not think it applies where the inaction of the defendant causes the purported error to be waived.” Id., at 065; 254 NW2d at 605. In the instant proceedings, defendant moved to quash his information after preliminary examination, but did not allege any constitutional error nor await a ruling by the circuit judge. Following McIntyre, we believe defendant’s inaction waived his right to challenge evidence received at his preliminary examination. To hold otherwise, as the panel noted in McIntyre, would mean that the magistrate’s decision to bind over would have to be reviewed by the trial court in every plea of guilty or by this Court, performing the functions of a circuit court, whenever defendants failed to press the issue below.

II

Defendant’s second ground for appeal implicates GCR 1963, 785.7(3)(b)(i). That provision, which partially replaced GCR 1963, 785.7(3)(d) as of December 7, 1975, requires the court, before accepting a defendant’s plea of nolo contendere, to "state why a plea of nolo contendere is appropriate”. While there is scarce case law interpreting GCR 1963, 785.7(3)(b), the Michigan Supreme Court seems to interpret it substantially the same as the old rule. See People v Eugene P Jones, 399 Mich 873 (1977). Therefore, in determining whether defendant’s no contest plea was appropriate in this case, we must evaluate the judge’s stated reasons according to the "interests of the defendant and the proper administration of justice”. For standards we look to the purposes of the plea as opposed to the public’s interest in rejecting it. We keep in mind generally that a nolo contendere plea is accepted only as a matter of grace, under special circumstances. Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

The basic purpose of the plea is to protect a defendant from unreasonable collateral effects of his pleading guilty. See Anno: Plea of Nolo Contendere or non vult contendere, 89 ALR2d 540, 548-549. Hence, it has been most often used to avoid exacting an admission that could be used against the defendant in other potential litigation. United States v Jones, 119 F Supp 288 (SD Cal, 1954), (avoiding admissions is the main, if not only, modern purpose of nolo contendere). Similarly, it has been accepted from defendants who are technically guilty of criminal laws intended to reach only malicious violators or of criminal acts that are civil in nature but subject to criminal penalties. Anno, supra. Weighing against the acceptance of a nolo contendere plea are a high degree of moral culpability on the part of a defendant and a potentially adverse effect on law enforcement generally. See Anno, supra, at 566-569. Convictions based on a guilty plea, because they carry a greater stigma, are likely to have a stronger deterent effect than convictions based on a plea of no contest. Also, because the plea by its nature excuses the defendant from relating the facts that establish guilt, People v Chilton, 394 Mich 34; 228 NW2d 210 (1975), improper use of nolo contendere pleas could thwart ongoing criminal investigations. People v Spann, 60 Mich App 48, 55; 230 NW2d 302 (1975).

Considering all these factors in the present case, we find an insufficient statement of reasons why defendant’s plea was appropriate. As defendant points out, the circuit court’s stated reason for accepting the plea — to avoid admissions — was merely a conclusion. After acknowledging his duty to state reasons, the judge engaged in the following dialogue with defendant’s attorney:

"MR. DOBBINS: My understanding of the cases, and I may be incorrect, beyond a good reason, if he indicates that he wishes to enter a plea of nolo contendere for the reason that he does not want to enter a guilty plea on the Record or to express his guilt on the Record.
"THE COURT: He simply doesn’t want to make admissions that might be used against him. Is that the type of thing?
"MR. DOBBINS: That’s correct.
"THE COURT: All right, I’ll accept that.”

Such a cursory nonexamination of defendant’s proffered justification does not establish the appropriateness of the plea. Although the court may not interrogate the defendant about his participation in the crime after it finds that a no contest plea is appropriate, People v Chilton, supra, the court ordinarily should determine from the defendant whether his reasons for offering that special plea are valid. Such a collateral line of questioning will not subvert the purposes of the nolo contendere plea.

Considering the possible collateral effects of an admission in this case, defendant rightly points out that his crime was victimless, and therefore could not subject him to civil liability. The state argues, nevertheless, as a matter of law any admission by defendant in this case could be used to show motive, intent, or other relevant states of mind in any subsequent prosecution against defendant for an unrelated crime. MRE 404(b). This admittedly collateral effect is too contingent and remote to justify a no contest plea. The record does not show that defendant is presently subject to any other criminal charges. Any future prosecutions for crimes arising out of the transactions that underly the charge in this case would raise serious double jeopardy problems. See People v White, 390 Mich 245; 212 NW2d 222 (1973). Thus, the asserted effect is conditioned upon the chance that defendant will commit some other crime in the future that involves a mental element within the scope of MRE 404(b). This is far from the situation where the same acts that give rise to criminal liability could also give rise to civil liability.

The state also contends that incriminating statements in a guilty plea may be used "in pre-sentence reports to judges for purposes of sentencing; screening purposes for placement by the Department of Corrections; and consideration by the Parole Board when Defendant-Appellant comes for consideration of parole”. These highly probable effects are not collateral; instead they influence the future administration of defendant’s present conviction.

In short, none of the circumstances alleged by the state are special, they are the ordinary consequences of any guilty plea. Before we even consider the public’s interest in rejecting a nolo contendere plea, we should first satisfy ourselves that special circumstances would make a guilty plea extraordinarily harsh. By finding special circumstances in this case, we would be holding that nolo contendere is prima facie appropriate as a matter of course in any criminal prosecution.

The case must be remanded for a supplemental statement of reasons why the plea was appropriate. If the lower court cannot supply adequate reasons, the plea must be vacated, People v Belan ger, 73 Mich App 438; 252 NW2d 472 (1977), and defendant ordered to stand trial.

Remanded for further proceedings. We do not retain jurisdiction.

       For plea waiver purposes, it is immaterial whether defendant pleads guilty or no contest. People v Goodman, 58 Mich App 220, 222; 227 NW2d 261 (1975); see MCL 767.37; MSA 28.977.

        See People v Alvin Johnson, 396 Mich 424, 444; 240 NW2d 729, 739-740; cf., Mullady, Note, Appellate Review of Constitutional Inñrmities Notwithstanding a Plea of Guilty, 9 Hous L Rev, 305, 314 (1971) (insufficient evidence to bind defendant over is really a "jurisdictional” defect).

       Even in this case it is not prima facie evident that the state could not proceed without the evidence defendant sought to suppress. At preliminary examination, the magistrate must determine only that there is probable cause to bind defendant over for trial; that decision cannot be overturned unless it is a clear abuse of discretion. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), §§ 305-307, pp 363-366. Defendant sought to negate a finding of probable cause by excluding physical evidence, consisting of a vial containing heroin residue and other drug related paraphernalia, seized incident to his arrest. He also objected to testimony relating the discovery, seizure and analysis of those items. Apart from that evidence, however, the judge also heard testimony by the arresting officer from which an inference of heroin possession might be drawn. Since the element of criminal heroin possession, including the nature of the substance possessed, may be shown by circumstantial evidence, cf., People v Boyd, 65 Mich App 11; 236 NW2d 744 (1975) (sale of heroin), People v Atkins, 47 Mich App 558; 209 NW2d 735 (1973) (sale of heroin); State v Lanigan, 258 Ind 279; 280 NE2d 809 (1972), we would have to reevaluate all the evidence presented at preliminary examination to determine whether the state had authority to proceed. Although the state would probably have to show more at trial to convict defendant, see e.g., People v Boyd, supra, (without introducing physical evidence of heroin, the state must introduce testimony of someone sufficiently experienced with heroin, indicating that the substance sold was contraband), we cannot say that the prosecution, in its present posture is clearly without probable cause.

       In so holding we do not ignore the language in Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), that any defense that would prevent the trial from taking place is not waived by a' guilty plea. We recognize, however, that the language was not necessary to the result in Alvin Johnson nor clearly mandated by Justice Williams’s definition of a "complete defense” as any defense that undercuts the state’s interest or authority to proceed. Since we believe the rule that would be established by that dicta achieves an improper balance of competing interests, we should not follow it until we are bound to.

       Both parties briefed the issue under GCR 1963, 785.7(3)(d). That rule was replaced by GCR 1963, 785.7(3)(b), however, before defendant’s plea was taken. See text at this note.

       We reject the notion in People v Maciejewski, 68 Mich App 1; 241 NW2d 736 (1976), see also People v Michelle, 69 Mich App 389; 245 NW2d 59 (1976), that a nolo contendere plea is appropriate whenever a defendant is inclined to be noncummunicative about the facts establishing his guilt. We believe the appropriateness of a nolo contendere plea is qualitatively independent from its factual basis. Although there was a good deal of confusion about this point under the old court rule, see People v Gonzales, 70 Mich App 319; 245 NW2d 734 (1976), the new rule clearly distinguishes these two elements. Thus, a defendant is privileged to remain silent about his guilt or the facts establishing his guilt whenever he affirmatively states an adequate justification that outweighs any public interest in rejecting the plea. Once he does, the court may not interrogate him to establish a factual basis, since that would backhandedly convert his nolo contendere plea into a guilty plea.

       While we find this disposition mandated by court rule and case law, we are troubled by it. As we explained, the purpose of the nolo contendere plea is to protect defendants from unreasonable collateral effects of pleading guilty. It is anomolous on appeal for defendant to argue he should not have been so protected, that the court in essence gave him more than he deserved in detriment to the people’s interest in rejecting the plea. Yet, the court rule clearly requires the trial judge to make a record of appropriate reasons, and unless we are willing to accept nolo contendere pleas as a matter of course in criminal cases, we are constrained to find error in this case. At first blush, the error seems harmless and in this respect we note the Supreme Court’s language in Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), that "[wjhether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.” Id., at 113. If the error in this case is harmless, however, all errors by the trial court under GCR 1963, 785.7(3)(b)(i) would seem to be harmless. Practically, such a holding would write that subsection out of the court rule.
      Thus, we are obliged to remand for a supplemental statement of reasons, which under the circumstances is not likely forthcoming. See part II of this opinion, supra. The result on remand may very well be a vacation of defendant’s otherwise just and valid conviction in order to vindicate the "people’s interests”. To avoid such anomolies in the future we urge prosecutors to refrain from bargaining for nolo contendere pleas that are inappropriate.


text:
    PEOPLE v HANGSLEBEN
    Docket No. 77-3165.
    Submitted June 7, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Defendant Bradley L. Hangsleben was convicted of two counts of second-degree murder in the Saginaw Circuit Court, Joseph R. McDonald, J. During the investigation of the killings the police questioned defendant at various times and locations and eventually procured several incriminating admissions which were admitted at trial. Defendant testified that he was at the scene the night of the killings but that a third person had committed the murders. He claimed that at the time the police questioned him he did not remember what had happened but that at the time of trial he did remember. He sought to introduce statements he made to a psychiatrist who hypnotized and questioned him. The trial court disallowed these statements and any reference to hypnosis. Defendant appeals. Held:

    1. The police adequately warned defendant of his rights prior to the interrogation which elicited the incriminating statements and prior interrogations were consistent with proper investigative interrogation of witnesses requiring no warning.
    2. The Court of Appeals will not overturn a trial court’s determination of the voluntariness of a defendant’s statements to police unless it is left with a firm and definite conviction that a mistake has been made; in this case the Court was not convinced.
    3. Statements of a defendant while under hypnosis were inadmissible to establish the truth of the statements while under the hypnotic trance or to bolster the credibility of defendant’s story at trial by arguing that the hypnosis had a mind-jogging effect, which would help explain defendant’s earlier inconsistent admissions to police; such statements are never admissible for the former purpose because they are unreliable and any reference to hypnosis was not permissible in this case for the latter purpose because no general scientific acceptance of hypnosis as a mind-jogging technique had been shown.

      References for Points in Headnotes
    [1, 3] 29 Am Jur 2d, Evidence §§ 611-613.
    [2] 29 Am Jur 2d, Evidence §§ 529, 543, 582.
    [4] 29 Am Jur 2d, Evidence § 831.

      Affirmed.
    1. Appeal and Error — Criminal Law — Statements of Defendant— V OLUNTARINESS — DETERMINATION.
    The Court of Appeals must examine the entire record of a hearing held to determine whether a statement was voluntary and make its own independent determination of voluntariness.
    2. Appeal and Error — Criminal Law — Statements of Defendant— Voluntariness — State of Mind.
    A reviewing court attempts to determine the state of mind of the person giving a statement in making a determination of the voluntariness of the confession.
    3. Appeal and Error — Criminal Law — Statements of Defendant— Voluntariness.
    The Court of Appeals will not overturn a trial court’s determination of the voluntariness of a defendant’s statements to police unless it is left with a firm and definite conviction that a mistake has been made.
    4. Criminal Law — Statements of Defendant — Hypnosis—Statements Made Under Hypnosis.
    Statements of a defendant while under hypnosis were inadmissible to establish the truth of the statements while under the hypnotic trance or to bolster the credibility of defendant’s story at trial by arguing that the hypnosis had a mind-jogging effect, which would help explain defendant’s earlier inconsistent admissions to police; such statements are never admissible for the former purpose because they are unreliable and any reference to hypnosis was not permissible in this case for the latter purpose because no general scientific acceptance of hypnosis as a mind-jogging technique had been shown.

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

      Daniel R. Connell, Joseph H. Hans and Robert B. Currie, for defendant.

      Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Danhof, C.J.

This case arises from the June 1, 1976, slaying of two young girls at their home in Buena Vista Township, Saginaw County. Defendant, a teenage boy who lived across the street from the victims’ home, was charged with the murders on June 17, 1976. From the time of the murders until the time he was charged, defendant had repeated contacts with police, primarily with Detective William Browne of the Buena Vista Police Department, the chief investigator of the girls’ murder. Browne interviewed defendant at various times and locations, ultimately procuring several incriminating admissions. Tapes of these interviews were played at trial. To the jury defendant denied killing the girls. He testified that he was in their home the night of the murders, but that a third person had committed the crimes. He claimed he did not remember what had happened when he spoke to police, but did recall the actual events at trial. The jury found defendant guilty of two counts of second-degree murder, as defined by MCL 750.317; MSA 28.549. The trial judge sentenced defendant to two concurrent terms of life in prison.

On appeal as of right, defendant raises a host of alleged errors by the trial court. Our research and analysis reveals that only three of his arguments merit a nonsummary response: (1) whether any admissions used against defendant were the products of "inherently coercive” interrogations, in violation of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1965); (2) whether any admissions used against defendant at trial were involuntarily made; and (3) whether any evidence obtained by or references to an examination of defendant while under hypnosis were admissible at trial. We decide all three issues in favor of the people.

I

The Admissibility of Defendant’s Statements to Police.

As an admissions problem, the instant case is factually complex and is complicated by the defense’s imprecise presentation of the issues.

Defendant claims he made incriminating statements during at least nine separate contacts with police, some before he was warned of his constitutional rights, some after. Rather than informing the trial court precisely what incriminating statements were made during this series of interviews, and explaining how they could be used at trial to establish his guilt or could have been used before trial to obtain other incriminating statements, defendant generally sought to suppress all statements by him, during any meeting with police from June 1 to June 10. His theory is that all were obtained either involuntarily, through a scheme to harass, badger and mislead, or in violation of Miranda, either directly as part of a primary illegality or indirectly as "fruits of a poisonous tree.” After a Walker hearing, the trial court denied defendant’s motion.

It is undisputed that Officer Browne interviewed defendant twice, along with other neighbors, at the scene of the crime on June 1, and once again at the Buena Vista Police Department on June 4, before warning defendant of his constitutional rights. The nature of the questions each time was similar: Browne inquired where defendant had been the night of the murders and what he had seen, heard, or knew of the killings.

Defendant alleged a fourth similar meeting without Miranda warnings on June 5, at a police field station set up in the Buena Vista Red Roof Inn. Contrary to his testimony at the Walker hearing, defendant averred at trial that Officer Browne, in the Red Roof Inn meeting, accused defendant of discrepancies in his prior statements. Officer Browne acknowledged the field station at the Red Roof Inn, but denied the interview with defendant there on June 5.

At noon, on June 8, Officer Browne took defendant to the Buena Vista Police Station for fingerprinting, but did not detain him. That evening defendant met with Officer Browne at a second field station in the Buena Vista Holiday Inn. Prior to interviewing defendant there, Officer Browne gave the Miranda warnings. At that meeting, Officer Browne told defendant that his fingerprints had been found in the victims’ home, that defendant had been lying, and, for the first time, that defendant was in trouble. Browne taped the interview and also took hair and fingerprint samples. Although defendant was not arrested, at that point, he no doubt had become a primary suspect.

The following evening, June 9, Officer Browne drove defendant to the Bay City State Police Post for a lie detector examination. Before administering the test, the polygraph operator read defendant his constitutional rights. After the examination the operator and his supervisor questioned defendant further, obtaining defendant’s admission that he was in the house the night of the murders. The supervisor claimed that he readvised defendant of his constitutional rights, which claim defendant denies. There is also conflicting testimony whether defendant at that time called for Officer Browne and told him he killed the girls. It is certain that sometime after the polygraph examination, either at the State Police Post or during the return trip to Buena Vista, defendant described the clothes he was wearing the night of June 1 and said they were spotted with blood. The police obtained a warrant and defendant’s consent to search his parent’s home for this evidence. While Officer Browne and other investigators executed the warrant, defendant remained at the police station. When the investigators returned, they took defendant to the Holiday Inn field station, where they recorded his statements during a three hour interview, which lasted until 4 a.m., June 10. Both sides agreed that Officer Browne adequately warned defendant of his rights prior to this last interview.

A. The Miranda Issue

The present debate of whether the entitlement to Miranda warnings in Michigan rests on focus or custody, compare People v Martin, 78 Mich App 518; 260 NW2d 869 (1977), with People v Robinson, 79 Mich App 145; 261 NW2d 544 (1977), is not now before us. That issue was not briefed and its resolution is unnecessary to our decision, as we find that Miranda warnings were excused during the initial encounters between defendant and police under either test.

"Custody” does not necessarily entail police house confinement; it rests primarily on a finding that defendant was not free to go after questioning. Kamisar, "Custodial Interrogation” within the Meaning of Miranda, Crim Law & the Constitution, 335, 362 (Reed, et al., eds., 1968). The "focus” inquiry is interrelated with the inquiry of probable cause for arrest. See People v Ridley, 396 Mich 603, 608; 242 NW2d 402, 405 (1976), Kamisar, supra. The evidentiary bases for both findings may overlap.

Collectively the following facts indicate that, until the June 8 interview at the Holiday Inn, the Buena Vista police were engaged only in preliminary exploration and defendant remained free to go. Police never handcuffed or otherwise physically restrained defendant. They did not detain, threaten to detain or have probable cause to detain him at that time. Defendant was asked general investigatory questions, consistent with his being a witness as well as a suspect. Others, were questioned with him at the scene of the crime and, according to defendant, at the Red Roof Inn. The June 4 interview at police headquarters was prompted by defendant’s own phone call, he travelled there by his own means. Defendant did not believe he was under arrest until the morning of June 10.

Finding no primary illegality, it is unnecessary to determine whether any statements taken from these initial interviews were used at trial or whether defendant’s later admissions were fruits of the earlier ones.

The trial court declined to enter an order as to the alleged June 5 meeting at the Red Roof Inn, reasoning that since the prosecutor denied the interview, he could not introduce any evidence of it at trial. Although the so-called "fruits of the poisonous tree” doctrine casts a shadow upon this logic, see People v Robinson, 48 Mich App 253; 210 NW2d 372 (1973), but see Michigan v Tucker, 417 US 433; 94 S Ct 2357; 41 L Ed 2d 182 (1974), we find no reversible error in the court’s conclusion, as the meeting on the above facts would also have to be considered part of a preliminary investigation. Even defendant’s testimony at trial — that Officer Browne there accused him of lying — does not make out a case of focus or custody. At the preliminary exploration stage the police must be expected to check on witnesses’ stories and requestion those whose stories have been contradicted, in an effort to ascertain the true facts. A witness does not automatically become a suspect if there is a discrepancy in any part of his story. Nothing on the record shows that the parts of defendant’s story, which supposedly did not check out, necessarily had implicated him in the crime.

B. The Voluntariness Issue.

In accord with People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), we have reviewed the entire transcript of defendant’s Walker hearing, and have independently assessed the voluntariness of defendant’s statements. An attempt has been made to ascertain the defendant’s state of mind when he spoke to police, accord, People v Sum mers, 15 Mich App 346; 166 NW2d 672 (1968), to determine whether his statements were products of a free and unconstrained choice, accord, United States v Brown, 557 F2d 541 (CA 6, 1977). In making that determination we have read the record with an eye towards evidence of the duration and conditions of the interviews, the attitude of police towards defendant, defendant’s physical and mental state, and any other pressures which may have undermined defendant’s free will. Accord, People v Allen, 8 Mich App 408, 412; 154 NW2d 570, 572 (1967).

Weighing against the admissibility of defendant’s statements, we find evidence that police questioned defendant a substantial number of times (at least 8 times in 10 days); that contact was prolonged on the final occasion (June 9-10) for approximately 9 hours, during which time defendant was interrogated for approximately 6 hours without sleep, until early in the morning; and that police interrogated defendant without counsel or family present, at times in a foreign city. Coercion is also suggested by the facts that defendant was only 19 years old and was upset and crying during the final interview. Evidencing that his free will may have been undermined was defendant’s testimony that the polygraph operator yelled at him and accused him of lying, and that defendant subjectively feared he would be beaten if he did not confess.

Contrary to defendant’s assertion we do not find that the use of a polygraph in the course of interrogation necessarily renders his subsequent confession involuntary. Accord, United States v McDevitt, 328 F2d 282, 284 (CA 6, 1964).

In favor of the trial court’s findings is evidence that police timely warned defendant of his constitutional rights, never handcuffed him, and did not detain him until after the June 9 admissions; that police did not use or threaten physical force nor make any promises; that the prolonged interrogations on June 9-10 were conducted in separate sessions of about 3 hours each, with a 3 hour break in between; and that during this 9 hour contact defendant was offered and accepted refreshment. As to defendant’s personal circumstances, the record shows that he had a high school education and that while he was upset during the final hours, he was not extremely distraught.

Recognizing that it is impossible "precisely to delimit * * * the power of interrogation allowed to state law enforcement officers * * * ", Culombe v Connecticut, 367 US 568, 601; 81 S Ct 1860; 6 L Ed 2d 1037 (1961), wé affirm the trial court’s finding of voluntariness. This record does not leave us with a firm and definite conviction that a mistake has been made.

II

The Admissibility of Evidence Obtained by or References to Hypnosis.

Before presenting his case, defense counsel asked the court if he would be allowed to call a psychiatrist who had examined defendant after his arrest, to testify as to what defendant said while under hypnosis and to play a tape of that conversation. This testimony and tape would have related defendant’s story that he was in the home the night of the murders, but that a third person had committed the killings. Alternatively, defense counsel asked if he could at least refer to the hypnosis sessions in his opening remarks (or in his examination of defendant) to point out to the jury that defendant could not recall the events of the murder before hypnosis, but could recall them afterwards, and that that was after his confession. As a legal and factual foundation for the evidence, defense counsel offered an unappealed decision of the circuit court and stated that the proposed witness was a trained psychiatrist. The court denied both requests.

A proper analysis of the problem presented to the trial court by defendant’s request, requires some elaboration of the possible purposes defendant sought to achieve by it. One purpose for introducing the evidence obtained by hypnosis would be to establish the truth of the statements made by defendant while he was under the hypnotic trance. A second use, apparent from defense counsel’s alternative request, would be to bolster the credibility of defendant’s story at trial by arguing that the hypnosis had a mind-jogging effect, which would help explain defendant’s earlier inconsistent admissions to police.

As a matter of first impression in this state, we hold that evidence of a subject’s responses while under hypnosis is inadmissible for either of these purposes. Courts in other jurisdictions have universally disallowed such evidence under the first theory, reasoning that it is unreliable. See Anno: Physiological or Psychological Truth and Deception Tests, 23 ALR2d 1306, § 4, p 1310, 29 Am Jur 2d, Evidence, § 831, p 924. Defendant does not argue reliability in this case beyond his assertion that the psychiatrist who administered the test was qualified. This is an inadequate foundation for scientific evidence under People v Tobey, 401 Mich 141; 257 NW2d 537 (1977).

Some courts have admitted evidence obtained by hypnosis for other limited purposes. Thus, it has been held that an expert witness, in explaining his opinion of a defendant’s state of mind or sanity at the time of a criminal offense, may relate the administration and results of hypnotic tests that were used as tools in the diagnosis. E.g. People v Modesto, 59 Cal 2d 722; 31 Cal Rptr 225; 382 P2d 33 (1963); See Anno: Admissibility of Physiological or Psychological Truth and Deception Test or its Results to Support Physician’s Testimony, 41 ALR3d 1369. However, even among courts that allow such evidence for that purpose, there is a split as to whether the precise results, including testimony and tapes relating the subject’s actual responses, may be introduced. See 41 ALR3d, supra at 1372. Assuming for the moment that some evidence relating to defendant’s test under hypnosis would be admissible in this case for the limited purposes of enhancing his credibility, we agree with those courts that would exclude his actual responses. It was well within the trial court’s discretion to determine that the dubious value those results might have in clarifying and supporting defendant’s theory of memory restoration would be outweighed by the chance of misinterpretation and misuse by the jury. Cf. State v White, 60 Wash 2d 551; 374 P2d 942 (1962).

We also hold that under the circumstances of this case it was proper to exclude any references to hypnosis. In opposition to this view, defendant directs us to Harding v State, 5 Md App 230; 246 A2d 302 (1968), which also involved a witness who testified from her present memory, which had been restored by hypnosis. In Harding, however, the question was whether the witness should have been allowed to testify at all, and whether her testimony was sufficient to support defendant’s conviction for her rape. Warning that such testimony was suspect, since a subject under hypnosis was extremely susceptible to suggestion and yet capable of fantasizing, the court found no abuse in allowing the witness to testify, so long as the jury was cautioned about the inherent unreliability of her testimony. Accord, Wyller v Fairchild Hiller Corp, 503 F2d 506 (CA 9, 1974). Defendant notes that the Harding court emphasized that the witness’s testimony had been corroborated by the physical evidence. That emphasis, however, was in support of the court’s finding that the evidence was sufficient to support the conviction, despite the inherent untrustworthiness of the witness’s testimony.

The issue here is whether a criminal defendant may inform the jury that his memory was restored by hypnosis. Harding suggests that any error in restricting defendant in this respect would be harmless, since any reference to hypnotic memory restoration would tend to impeach, rather than rehabilitate the credibility of a witness’s present memory. Still, the facts of this case are sufficiently distinguishable so as to preclude a decision on the basis of nonreversible error. When both sides rested the jury was left essentially with a choice between defendant’s earlier admissions as related by police and his story at trial. The physical evidence tended to corroborate both versions. On these facts the reference to hypnosis may have had the abnormal effect of enhancing rather than diminishing the witness’s credibility.

Nevertheless, we find that references to defendant’s examination while under hypnosis were properly excluded because defendant has also failed to establish the reliability of hypnosis as a memory-jogging device. As we have recited, the only factual foundation offered to the trial court was defendant’s assertion that the witness was a qualified psychiatrist. In his brief defendant also quotes the Encyclopedia Britannica which merely defines hypermnesia and the theory of hypnotic memory restoration. That does not demonstrate the general scientific acceptance required by People v Tobey, supra. Absent an impartial showing that hypnosis has been successful in restoring the * memory of persons other than defendant, either by testimony of other subjects or experts, the references in this case were properly rejected as being of tenuous probative value. Cf. People v Busch, 56 Cal 2d 868; 16 Cal Rptr 898; 366 P2d 314 (1961).

Affirmed.

       There was a conflict between defense and prosecution witnesses whether defendant actually admitted killing the girls. He did admit being in the house the night of the murder. He also described the clothes he wore the night of the murder, which were later discovered in his home spotted with blood, and drew pictures of various implements which were used in the commission of the crime.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

       The field station had been employed to avoid station house confusion which had been generated by the murder investigation.

       The Federal standard is now clearly "custody”. Beckwith v United States, 425 US 341; 96 S Ct 1612; 48 L Ed 2d 1 (1976).

       Professor Kamisar suggests three standards by which to make that finding: (1) the subjective belief of the defendant, (2) the subjective intent of the police, and (3) the objective belief of a reasonable man.

       Thus, for example, probable cause for arrest may evidence that the police had focused on one suspect and also that they intended to detain him.