text:
    PEOPLE v HAYWOOD
    Docket Nos. 45061, 45062.
    Submitted April 8, 1980, at Lansing.
    Decided May 20, 1980.
    Hiram A. Haywood was convicted on his pleas of guilty to larceny over $100, and nolo contendere to breaking and entering a building with intent to commit larceny, in Washtenaw Circuit Court, Ross W. Campbell, J. Defendant was sentenced to three years, four months to five years on the larceny conviction and five years to ten years on the breaking and entering charge, the sentences to be served consecutively. The defendant appeals alleging that the plea bargains were infirm because they were based on illusory prosecutorial promises. Held:

    1. A prosecutor is not precluded from proceeding with a prosecution under the habitual felony offender act as long as the prosecutorial action is prompt and provides fair notice to the defendant sufficiently in advance of a trial on the current charge.
    2. A plea bargain wherein the prosecutor agrees to forbear from filing a supplemental information against the defendant under the habitual felony offender act, where the defendant is a potential subject of habitual offender supplementation, does not constitute an illusory offer by the prosecutor.
    3. A prosecutor may validly file an information charging a defendant as a habitual offender after plea negotiations have failed, provided the defendant was given notice during the negotiations of the prosecutor’s intention to file if such negotiations failed.
    Affirmed.
    1. Criminal Law — Prosecuting Attorneys — Habitual Offender Act.
    A prosecutor is not precluded from proceeding with a prosecution under the habitual felony offender act as long as the prosecutorial action is prompt and provides fair notice to the defendant sufficiently in advance of a trial on a current charge.

      References for Points in Headnotes
    [1] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§ 18, 19.
    [2] 21 Am Jur 2d, Criminal law § 491.5.
    [3] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 19.

      2. Criminal Law — Prosecuting Attorneys — Habitual Offender Act — Plea Bargains.
    A plea bargain wherein the prosecutor agrees to forbear from filing a supplemental information against the defendant under the habitual felony offender act, where the defendant is a potential subject of habitual offender supplementation, does not constitute an illusory offer by the prosecutor (MCL 769.10 et seq.; MSA 28.1082 et seq.).

    3. Criminal Law — Prosecuting Attorneys — Habitual Offender Act — Plea Bargains.
    A prosecutor may validly file an information charging a defendant as a habitual offender after plea negotiations have failed provided the defendant was given notice during the negotiations of the prosecutor’s intention to file if such negotiations failed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Robert L. Cooper, Assistant Prosecuting Attorney, for the people.

      Norman Fell, for defendant on appeal.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Defendant entered a plea of guilty to larceny over $100, MCL 750.356; MSA 28.588, and a plea of nolo contendere to breaking and entering a building with intent to commit larceny, MCL 750.110; MSA 28.305, an unrelated offense. He was sentenced to three years, four months to five years on the larceny and five to ten years on the breaking and entering, the sentences to be served consecutively as the larceny was committed while defendant was out on bail on the breaking and entering charge. Defendant appeals as of right under GCR 1963, 806.1.

Defendant contends that the plea bargains were infirm in that they were based upon illusory prosecutorial promises. The basis of the plea bargains was the prosecutor’s promise to forbear from filing a supplemental information under the habitual felony offender act, MCL 769.10 et seq.; MSA 28.1082 et seq. Defendant did have prior felony convictions upon which a supplemental information could have been based. However, the prosecution did not file a supplemental information at the time the information charging defendant’s last felony was filed. Defendant argues that a retroactive application of People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), requires such a filing because the prosecutor knew of defendant’s prior convictions prior to filing the informations charging the principal offenses. Defendant theorizes that this prosecutorial failure to file a supplemental information in a timely fashion precludes any later filing as per the express mandate of Fountain, supra. Any promise of forbearance from later filing, then, would be valueless and illusory and a plea bargain with such as its basis would be invalid. Cf., People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978).

We disagree. People v Fountain, supra, involved two distinct situations in which the prosecutor filed supplemental informations under the habitual offender statute following defendants’ convictions by trial. In contrast, the instant situation involves a plea negotiated by the defendant, defense counsel, and the prosecutor, wherein the prosecutor, in exchange for the plea, promised not to charge defendant as an habitual offender. The agreement was reached prior to defendant’s plea. Presumably, if an agreement had not been reached, the prosecutor would have pursued all of the pending and potential charges against defendant. He could have done so under MCL 767.46; MSA 28.986, which allows him to amend defects or omissions in the information, or under MCL 769.13; MSA 28.1085, which indicates that he "may” file such a separate or supplemental information.

Moreover, we need not be concerned with retro-activity questions herein as we find that the rule announced in Fountain, supra, does not apply to the facts of this case. The Fountain pronouncement does not preclude the prosecutor from proceeding with a prosecution under the habitual offender act as long as the prosecutorial action is prompt and provides fair notice to the defendant sufficiently in advance of a trial on the current charge. And, in the instant situation, at the time the plea bargain was made and accepted, defendant was, in fact, a potential subject of habitual offender supplementation. The defendant was well apprised of this fact as attested to by his plea bargain. Further, the prosecutor, absent such plea agreement, could have promptly proceeded to supplementation. Therefore, the offer by the prosecutor to forego supplementation as part of the plea agreement cannot be considered illusory. See Roderick Johnson, supra, 79.

In Bordenkircher v Hayes, 434 US 357; 54 L Ed 2d 604; 98 S Ct 663 (1978), the prosecutor carried out a threat made during the plea negotiations and reindicted the defendant on habitual offender charges after the negotiations failed. The United States Supreme Court upheld the conviction indicating:

"It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with defendant’s insistence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.” [Footnote omitted.] Bordenkircher, supra, 360.

We find this passage particularly instructive and affirm accordingly.


source: Caselaw Access Project

author: Per Curiam. R. B. Burns, J.

license: Public Domain

text:
    SHUNK v STATE OF MICHIGAN
    Docket No. 46346.
    Submitted April 9, 1980, at Lansing.
    Decided May 20, 1980.
    Ray Shunk and others, hereinafter plaintiffs, brought an action against the State of Michigan and the Department of Public Health, hereinafter defendants, alleging that defendants knew or should have known that exposure to PBB (polybrominate biphenyl) created an immediate and serious hazard to plaintiffs and that defendants were negligent and committed various intentional torts. The Court of Claims, Robert Holmes Bell, J., granted defendants’ motion for summary judgment based on the governmental immunity doctrine. Plaintiffs appeal. Held:

    Intentional torts do not fall within the governmental immunity statute since they are not in the exercise or discharge of a governmental function. A motion for summary judgment on the basis that plaintiffs have failed to state a claim upon which relief can be granted will be tested by the pleadings alone which must be considered as true as to the facts alleged. The pleadings state a claim upon which relief can be granted.
    Reversed and remanded.
    R. B. Burns, J., dissented. He would find that the defendants were engaged in a governmental function and are immune from tort liability. He would affirm.
    Opinion of the Court
    1. Torts — Governmental Immunity — Intentional Torts.
    Intentional torts do not fall within the governmental immunity statute since they are not in the exercise or discharge of a governmental function.
    Dissent by R. B. Burns, J.
    2. Judgment — Summary Judgments — Torts — Governmental
    Immunity — Intentional Torts.

      Summary judgment may be upheld, even where a plaintiff alleges

      that a governmental defendant committed an intentional tort, where the defendant was engaged in a governmental function (MCL 691.1407; MSA 3.996[107]).

      Reference for Points in Headnotes
    [2, 3] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 69-72, 79.

      Sablich, Ryan, Rapaport, Bobay & Pollok, P.C., for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Philip J. Smith, Assistant Attorney General, for defendants.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

The trial court entered summary judgment against the plaintiffs on their complaint which alleged negligence and intentional torts on the part of the defendants. Defendants’ summary judgment motion was premised upon GCR 1963, 117.2(1), i.e., that plaintiffs failed to state a claim upon which relief can be granted. The trial court granted defendants’ motion thereunder on the basis that defendants were immune from tort liability for acts performed in the exercise of a governmental function, MCL 691.1407 et seq.; MSA 3.996(107) et seq. We reverse.

A motion for summary judgment brought pursuant to GCR 1963, 117.2(1) will be tested by the pleadings alone which must be considered as true. Struble v Detroit Automobile Inter-Ins Exchange, 86 Mich App 245, 256; 272 NW2d 617 (1978), Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974).

By their pleadings, plaintiffs alleged that defendants knew or should have known that exposure to PBB (polybrominate biphenyl) created an immediate and serious hazard to plaintiffs as employees of the Michigan Chemical Company, which produced PBB. In addition, plaintiffs alleged that despite defendants’ knowledge of such health hazard, defendants willfully and intentionally failed to take the appropriate actions required by statute, MCL 408.1031; MSA 17.50(31).

In McCann v Michigan, 398 Mich 65; 247 NW2d 521 (1976), in separate opinions, a majority of the Supreme Court agreed that an intentional tort was not in the exercise or discharge of a governmental function. See also Lockaby v Wayne County, 406 Mich 65; 276 NW2d 1 (1979). Therefore, we find that plaintiffs’ pleadings, taken as true, were sufficient to overcome the defense of governmental immunity and state a claim upon which relief could be granted. To hold otherwise might result in a situation where employees are forced to work in conditions known to be unsafe. This would place them squarely on the horns of a dilemma. If they refuse, they could very well be reprimanded or disciplined. If they consent, they might be jeopardizing their health.

Accordingly, we reverse and remand.

R. B. Burns, J.

(dissenting). I must dissent.

The trial court entered summary judgment against the plaintiffs on their complaint which alleged negligence and intentional torts on the part of the defendants.

An examination of the record discloses no prejudicial error. Defendants were engaged in a governmental function and immune under MCL 691.1407; MSA 3.996(107). Also see Thomas v Dep’t of State Highways, 398 Mich 1; 247 NW2d 530 (1976).

I would affirm.

       For a similar rationale, see Whirlpool Corp v Marshall, 445 US 1; 100 S Ct 883; 63 L Ed 2d 154 (1980), wherein a unanimous Supreme Court upheld an Occupational Safety and Health Act regulation allowing employees to refuse to perform job assignments if they reasonably believe there is no less drastic alternative to avoid risking serious injury.


author: Per Curiam.

text:
    DEERING v UNIONVILLE-SEBEWAING AREA SCHOOLS
    Docket Nos. 46569, 46570.
    Submitted April 8, 1980, at Lansing.
    Decided May 20, 1980.
    Ralph J. Deering was discharged from his employment as a school bus driver for the Unionville-Sebewaing Area Schools. Deering filed charges with the Employment Relations Commission, alleging that his discharge was the result of his efforts at organizing his co-workers. An administrative law judge determined that Deering’s participation in lawful concerted activities was minimal and that the actual reason for his discharge was the issuance of two unsafe driving reprimands against him. Deering appealed and the full commission upheld the decision of the administrative law judge. Deering appeals. Held:

    The findings of the commission are conclusive where supported by competent, material and substantial evidence in the record as a whole. In this case there is sufficient support in the record for the findings of the administrative law judge and the commission that Deering was discharged for reasons other than assertion of his rights to participate in concerted activity for collective bargaining purposes.
    Affirmed.
    1. Administrative Law — Employment Relations Commission — Findings of Fact — Constitutional Law — Statutes.
    Findings of fact of the Employment Relations Commission are conclusive if they are supported by competent, material and substantial evidence on the record considered as a whole (Const 1963, art 6, § 28, MCL 423.23[e]; MSA 17.454[25][e]).
    2. Administrative Law — Review — Findings of Fact.
    Review of an administrative agency decision should accord due deference to administrative expertise; the Court of Appeals will not invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views.

      References for Points in Headnotes
    [1] 2 Am Jur 2d, Administrative Law §§ 443, 452, 483.
    [2] 1 Am Jur 2d, Administrative Law §§ 167, 168.
    2 Am Jur 2d, Administrative Law §§ 620, 621.

      John L. Weslowski, for plaintiff.

      Mellinger & Mahlberg, for defendant.
    Before: D. C. Riley, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff appeals as of right from a decision of the Michigan Employment Relations Commission which provided that defendant did not violate the public employment relations act, MCL 423.201 et seq.; MSA 17.455(1) et seq., by discharging plaintiff from its employ.

Plaintiff was discharged from employment as a bus driver for the defendant on March 10, 1978. Plaintiff thereupon filed a charge with the Michigan Employment Relations Commission (MERC) alleging, in effect, that his discharge was precipitated by his efforts at organizing his co-workers to obtain higher wages and increased benefits. On the basis of this charge, a hearing was held before an administrative law judge.

After taking extensive testimony from various witnesses, including plaintiff, the administrative law judge concluded that the record did not establish that plaintiff was discharged for any protected activity within the meaning of MCL 423.209; MSA 17.455(9). The judge found that plaintiff’s participation in lawful concerted activities under § 9, infra, was minimal and that the actual moving cause for his discharge was the issuance of two unsafe driving reprimands against him. Plaintiff then appealed this decision to the full commission. On July 20, 1979, the commission upheld and adopted the recommended order and decision of the administrative law judge and thereby gave rise to this appeal.

MCL 423.209; MSA 17.455(9) provides:

"It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice.”

Additionally, MCL 423.210; MSA 17.455(10) of the PERA provides that: "[i]t shall be unlawful for a public employer or an officer or agent of a public employer * * * to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9”.

MERC found that plaintiffs discharge was not related to or precipitated by his assertion of his § 9 rights, supra. It is this determination which we are called upon to review.

The standard of appellate review of MERC findings of fact is set forth in the labor mediation act as follows:

"* * * The findings of the board with respect to questions of fact if supported by competent, material and substantial evidence on the record considered as a whole shall be conclusive.” MCL 423.23(e); MSA 17.454(25)(e).

This standard comports with Const 1963, art 6, § 28, which sets forth the minimum constitutional scope of judicial review of administrative decisions:

"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record.”

This review requires careful consideration of both sides of the record with due deference being given to administrative expertise. We do not "invade the province of exclusive administrative fact-finding by displacing an agency’s choice between two reasonably differing views”. See MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974).

We have reviewed the record and find sufficient support for the findings of the administrative law judge and the commission. There was adequate evidence to find that plaintiff was discharged for reasons other than assertion of his § 9 rights, supra. For instance, one of plaintiff’s fellow bus drivers testified that, although there was a negotiating committee which represented the bus drivers’ interests before the Board of Education, plaintiff never served on this committee nor was he authorized to speak for the drivers. Also, the superintendent of the Unionville-Sebewaing Schools reiterated that plaintiff never acted as spokesperson for the bus drivers. Moreover, the superintendent indicated that plaintiff had been reprimanded for his driving in the past and stated that, in his opinion, plaintiff’s poor driving jeopardized the safety of the children in the school district.

In view of the foregoing, we conclude that MERC’s findings were supported by competent, material and substantial evidence on the record.

Affirmed.


text:
    PEOPLE v THERRIEN
    Docket Nos. 78-1673, 78-1674.
    Submitted November 16, 1979, at Detroit.
    Decided December 20, 1979.
    Francis R. Therrien was convicted of two counts of third-degree criminal sexual conduct in the Monroe Circuit Court, James J. Kelley, Jr., J. Defendant appeals, alleging error in the admission of certain testimony. Held:

    While the defendant failed to preserve the issue for appeal by making a timely objection, the Court of Appeals will consider manifest and serious error to prevent fundamental injustice even absent such an objection. The evidence complained of included testimony by an investigating officer that the complainants’ testimony at trial was consistent with their previous statements to him. Since there was no claim of recent fabrication, allowing their testimony to be bolstered by their prior consistent statements was error. The error was fundamental since the complainants’ testimony was the only evidence establishing that a crime had been committed.
    Reversed and remanded.
    1. Torts — Criminal Law — Evidence — Admissibility — Preserving Question.
    The Court of Appeals will consider the issue of the admissibility of testimony for manifest and serious error to prevent fundamental injustice, even absent a timely objection at trial.
    2. Criminal Law — Evidence — Prior Consistent Statements — Appeal.
    It was fundamental error mandating a new trial even in the absence of a timely objection for a trial court to allow the bolstering of a complainant’s testimony by a showing that it was consistent with prior statements where there was no allegation of recent fabrication and the complainant’s testimony was the sole evidence establishing that a crime had been committed.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error §§ 548, 549.
    [2] 81 Am Jur 2d, Witnesses §§ 641-643.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William F. Lavoy, Assistant Prosecuting Attorney, for the people.

      James Krogsrud, Assistant State Appellate Defender, for defendant on appeal.
    Before: R. B. Burns, P.J., and M. F. Cavanagh and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was charged with one count of first-degree criminal sexual conduct, MCL 750.520(b); MSA 28.788(2), and one count of third-degree criminal sexual conduct, MCL 750.520(d); MSA 28.788(4). He was jury convicted of two counts of third-degree criminal sexual conduct. Thereafter sentenced to 10 to 15 years imprisonment for each conviction, to be served concurrently, he now appeals as of right.

Defendant first contends that the trial court erred in admitting testimony which bolstered complainants’ credibility. The testimony in question includes: 1) repeated affirmance on direct examination by complainants of the truth of their testimony; 2) testimony by a town constable that another unidentified person had contacted him regarding the charged offenses; 3) testimony by an investigating officer that the complainants’ testimony at trial was consistent with their previous statements to him.

While defendant failed to preserve this issue for appeal by timely objection at trial, this Court will nevertheless consider manifest and serious error to prevent fundamental injustice even absent such objection. People v Holmes, 292 Mich 212; 290 NW 384 (1940), People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), People v Larry Goodwin, 40 Mich App 709; 199 NW2d 552 (1972). Although we do not find any manifest or serious error in complainants’ affirmance on direct examination of the truth of their testimony we do find the constable’s testimony to be hearsay. People v Hallaway, 389 Mich 265, 275; 205 NW2d 451 (1973). Moreover, since there was no claim of recent fabrication by defendant, allowing their credibility to be bolstered by their prior consistent statements was error. Brown v People, 17 Mich 429 (1868), Stewart v People, 23 Mich 63 (1871), People v Purman, 216 Mich 430; 185 NW 725 (1921), People v Hallaway, supra, People v Coles, 79 Mich App 255; 261 NW2d 280 (1977), People v Harris, 86 Mich App 301; 272 NW2d 635 (1978). Since complainants’ testimony was the sole evidence to establish that a crime had been committed, the bolstering testimony might well have tipped the scales, in the minds of the jury, from innocent to guilty. Such error, in our minds, constituted a fundamental injustice and we therefore reverse.

Defendant’s final contention is that the trial court erred in allowing statements in arguments of counsel as to complainants’ social and economic position. Defendant also failed to preserve this issue for appeal by timely objection. While error may indeed have occurred, the prejudicial effect on defendant was not so great as to produce fundamental injustice.

Reversed and remanded for a new trial.


text:
    PEOPLE v WILLIAM HEILER PEOPLE v THEODORE HEILER
    Docket Nos. 43039, 43040.
    Submitted February 15,1980, at Lansing.
    Decided April 29, 1980.
    Defendant William Heiler was convicted on three counts of possession of a controlled substance and defendant Theodore Heiler was convicted on three counts of possession with intent to deliver a controlled substance in Saginaw Circuit Court, Joseph R. McDonald, J. Prior to trial, defendants moved to suppress evidence found during the search of defendant William Heiler’s home. The defendants alleged that the affidavit in support of the search warrant: (1) did not establish probable cause; (2) was impermissibly based on hearsay; (3) failed to describe the residence to be searched with particularity; and (4) did not sufficiently establish the informant’s reliability. The trial court denied defendants’ motion to suppress. Defendants appeal. Theodore Heiler on appeal further contends that the prosecutor improperly filed a supplemental information charging Theodore Heiler as a habitual offender subsequent to his conviction on the principal charges. Held:

    1. The search warrant authorizing the search of defendant William Heiler’s home was based on sufficient information.
    2. An affidavit in support of a search warrant meets the requirements as set forth by the United States Supreme Court where the affidavit contains sufficient information to inform a magistrate of the underlying circumstances from which the informant concluded that the contraband was where the informant claimed it was and the affiant swears as of his own personal knowledge that the informant is credible and reliable.
    3. The Court of Appeals will look to the following four factors in determining whether a new Supreme Court ruling should be applied retroactively or prospectively: (1) the purpose of the new rule; (2) the general reliance on the old rule; (3) the effect on the administration of justice; and (4) whether the decision affects the guilt or innocence of the defendant.

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizure § 63 et seq.

    [2] 20 Am Jur 2d, Courts § 85..
    Prospective or retroactive operation of overruling decision. 10 ALR2d 572.

      4. The rule established by the Supreme Court in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), regarding a supplemental information charging a defendant as a habitual offender subsequent to conviction on a current charge has prospective application to those cases in which the substantive offense on which the supplemental information is based is filed on or after the date of the Fountain decision.
    Affirmed.
    1. Criminal Law — Searches and Seizures — Warrants — Affidavits.
    An affidavit in support of a search warrant meets the requirements as set forth by the United States Supreme Court where the affidavit contains sufficient information to inform a magistrate of the underlying circumstances from which the informant concluded that the contraband was where the informant claimed it was and the affiant swears as of his own personal knowledge that the informant is credible and reliable.
    2. Criminal Law — Courts — Rules — Prospective — Retrospective.
    The Court of Appeals will look to the following four factors in determining whether a new Supreme Court ruling should be applied retroactively or prospectively: (1) the purpose of the new rule; (2) the general reliance on the old rule; (3) the effect on the administration of justice; and (4) whether the decision affects the guilt or innocence of the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, Linda Berns Wright, Appellate Prosecuting Attorney, and Kay F. Pearson, Assistant Appellate Prosecuting Attorney, for the people.

      Irwin F. Hauffe, II, for defendant on appeal.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Per Curiam.

Defendant William Heiler was convicted of three counts of possession of a controlled substance contrary to MCL 335.341(4); MSA 18.1070(41)(4), and was sentenced to one year probation and appeals. Defendant Theodore Heiler was convicted on three counts of possession with intent to deliver a controlled substance contrary to MCL 335.341(1); MSA 18.1070(41X1) and appeals.

Prior to trial, defendants moved to suppress evidence found during the search by warrant of defendant William Heiler’s home. The basis of the motion was that the affidavit in support of the warrant (1) did not establish probable cause; (2) was impermissibly based on hearsay; (3) failed to describe the residence to be searched with particularity; (4) did not sufficiently establish the informant’s reliability. We disagree.

Careful examination of the file and the affidavit discloses that the warrant was based on sufficient information. We find no abuse of discretion. People v Thomas, 86 Mich App 752, 758-759; 273 NW2d 548 (1978), lv den 406 Mich 971 (1979). An affidavit may be based on hearsay if it meets the two requirements set forth in Aquilar v Texas, 378 US 108, 114-115; 84 S Ct 1509; 12 L Ed 2d 723 (1964). The affidavit in question meets these requirements. People v Johnson, 68 Mich App 697, 703; 243 NW2d 715 (1976).

Reviewing the affidavit in á common sense manner as prescribed by United States v Ventresca, 380 US 102; 85 S Ct 741; 13 L Ed 2d 684 (1965), persuades us that the facts recited in the affidavit supported the conclusion that the house at 703 South Webster Street was the residence of both defendants.

The statements made to the affiant officer proved to be true, thus giving some indicia that the informant was specifically identified by name. Therefore, we conclude that the affidavit contained sufficient indicia of the informant’s credibility.

On a motion granted by this Court, defendant Theodore Heiler filed a supplemental brief claiming that the prosecutor violated the rule set forth in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), by filing a supplemental information charging defendant as an habitual offender after conviction on the latest charges. It is undisputed that the prosecution had actual or presumed knowledge of defendant’s prior felony record because its office prosecuted the prior felonies. Fountain, supra. Further, it is uncontested that the filing of the supplemental information followed defendant’s conviction on the current charges but preceded sentencing thereon, similar to the circumstances presented in Fountain, supra. However, since all of the critical facts occurred prior to the Supreme Court’s decision in Fountain, the rule announced therein should not be applied to vacate defendant’s current sentence on the habitual offender conviction unless Fountain is to be given retroactive effect.

In an order issued less than two months after Fountain was decided, the Supreme Court vacated a defendant’s habitual offender sentence and reinstated his sentence on the underlying offense. People v Morris, 407 Mich 885 (1979). By relying on Fountain as authority for its action, the Supreme Court seemed to be giving retroactive effect to that decision. Similar action was taken by the Supreme Court in People v Devine, 407 Mich 904 (1979). However, there the Court specifically observed: "In resolving this case we intimate no opinion on the retroactivity of People v Fountain * * Still later, on May 11, 1979, the Supreme Court vacated this Court’s order to affirm a defendant’s sentence and conviction and remanded to the Court of Appeals to determine "whether Fountain should be given retroactive effect”. People v Ronald Brown, 407 Mich 913 (1979). From this series of orders, we conclude that the issue of the retroactivity of Fountain is, as yet, undecided.

In deciding whether a new Supreme Court ruling should be applied retroactively or prospectively, the various factors set forth in People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971), and People v Kamin, 405 Mich 482, 494; 275 NW2d 777 (1979), must be balanced and considered. Upon weighing these factors, we conclude that the Fountain rule has prospective application to those cases in which the substantive offense on which the supplemental information is based is filed on or after the date of the Fountain decision. In considering (1) the purpose of the new rule, (2) the general reliance on the old rule, (3) the effect on the administration of justice, and (4) whether the decision affects the guilt or innocence of the defendant, Hampton, supra, 676, it is clear that the relevant precedent mandates that Fountain not be given retroactive application.

Affirmed.


text:
    PEOPLE v MEANS (ON REMAND)
    Docket No. 46252.
    Submitted March 5, 1980, at Grand Rapids.
    Decided May 1, 1980.
    Eddie Means was convicted of armed robbery following a jury trial in Muskegon Circuit Court, Charles A. Larnard, J. At trial, defense counsel failed to move for the exclusion of the in-court identification of defendant by a witness who had identified defendant at a photographic show-up conducted in the absence of legal counsel some three years after the commission of the crime and after defendant had been arrested and placed in custody on this charge. Defense counsel further failed to move for a hearing on the voluntariness of defendant’s confession, which was admitted at trial, even though there was serious doubt as to its voluntariness, and failed to object to certain prejudicial remarks by the prosecutor and a prosecution witness. Defendant appealed. Appellate counsel filed a motion to withdraw and a brief in support of the motion to withdraw pursuant to Anders v California, 386 US 738; 87 S Ct 1396; 18 L Ed 2d 493 (1967). The Court of Appeals, by an unpublished order (Docket No. 23262, order of February 18, 1976), granted the motion to withdraw and affirmed defendant’s conviction. Defendant filed a delayed application for leave to appeal with the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, remanded to the Court of Appeals for plenary consideration of the issues raised by defendant in his application for delayed leave to appeal. See 406 Mich 989 (1978). Held:

    1. A criminal defendant is denied effective assistance of counsel such that the defendant is entitled to a new trial if trial counsel does not do at least as well as a lawyer with ordinary training and skill in the criminal law and does not conscientiously protect defendant’s interests undeflected by conflicting considerations or has made a serious mistake which, if not made, would have given the defendant a reasonable likelihood of acquittal.

      References for Points in Headnotes
    [1, 4] 21 Am Jur 2d, Criminal Law § 315.
    Incompetency of counsel chosen by accused as affecting validity of conviction. 74 ALR2d 1390.
    [2] 5 Am Jur 2d, Appeal and Error § 548 et seq.

    [3] 29 Am Jur 2d, Evidence §§ 371, 371.6.
    Extrajudicial or pretrial identification of accused, admissibility of evidence as to. 71 ALR2d 449.

      2. To establish a claim of ineffective assistance of trial counsel ordinarily requires the convicted person to be able to point to the lower court record to support his claim and to exclude hypotheses consistent with the view that his trial counsel represented him adequately. A motion for a new trial is not necessary to preserve the question of the adequacy of trial counsel if the question was fully explored at trial and the lower court record contains sufficient facts to reach the issue.
    3. The pretrial photographic show-up was improper and tainted the in-court identification of the witness. While an in-court identification may be permitted where it is shown to have a basis independent of an improper pretrial show-up, it is unnecessary to decide that question in order to resolve the question of whether defendant was denied effective assistance of counsel.
    4. Defense counsel’s failure to object to the in-court identification, coupled with counsel’s failure to seek a hearing on the voluntariness of defendant’s confession and to object to the prejudicial remarks, convinces the Court of Appeals that the defendant was denied effective assistance of counsel. Even if the inaction of defense counsel with respect to the tainted in-court identification were considered to be an intentional trial tactic, the Court of Appeals would be compelled to conclude that such a tactic was a serious mistake which was decisive to the outcome of the trial and which would thus warrant the granting of a new trial.
    Reversed and remanded.
    1. Criminal Law — Effective Assistance of Counsel — Standard.
    A criminal defendant is denied effective assistance of counsel such that the defendant is entitled to a new trial if his trial counsel does not do at least as well as a lawyer with ordinary training and skill in the criminal law and does not conscientiously protect defendant’s interests undeflected by conflicting considerations or has made a serious mistake which, if not made, would have given the defendant a reasonable likelihood of acquittal.
    2. Criminal Law — Effective Assistance of Counsel — Appeal — Record — Motion for New Trial.
    An appellate claim of ineffective assistance of trial counsel ordinarily requires the convicted person to be able to point to the lower court record to support his claim and to exclude hypotheses consistent with the view that his trial counsel represented him adequately; a motion for a new trial is not necessary to preserve an inadequacy of counsel claim if the circumstances surrounding the alleged deficiencies of defendant’s trial counsel were fully explored at trial and the lower court record contains sufficient facts to reach the issue.
    3. Witnesses — Criminal Law — Identification — Show-Up — Photographs — Exclusion of Evidence — Independent Basis.
    A pretrial photographic show-up conducted in the absence of legal counsel some three years after the crime and after the defendant was arrested and in custody for the charge in question taints the in-court identification of a witness who was shown the photographs; the in-court identification of a witness whose identification testimony is tainted by a pretrial show-up should be excluded at trial unless the in-court identification is shown to have a basis independent of the improper pretrial identification procedure.
    4. Criminal Law — Effective Assistance of Counsel — Failure to Object — Trial Tactic — Serious Mistake.
    A failure of defense counsel to move for the exclusion of any in-court identification of defendant by a witness who participated in an improper pretrial photographic identification of defendant, when coupled with defense counsel’s failure to move for a hearing on the voluntariness of defendant’s confession and to object to prejudicial remarks made by the prosecution and a prosecution witness, is sufficient to establish, even in the absence of a trial court hearing on the question of an independent basis for the in-court identification, that defendant was denied effective assistance of counsel, where the Court of Appeals finds, on the basis of the record before it, that defense counsel’s inaction concerning the identification testimony did not meet the expected standard of representation and, if such inaction was a trial tactic, it was a serious error where it was decisive to the outcome of the trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, and Stephen C. Corwin, Senior Assistant Prosecuting Attorney, for the people.

      Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, Jr., JJ.

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

   On Remand

Per Curiam.

Defendant was indicted by a grand jury in June, 1974, for the offense of armed robbery allegedly committed on May 5, 1971. He was arrested on June 27, 1974, and, following a jury trial, was convicted of armed robbery on October 23, 1974. MCL 750.529; MSA 28.797. On December 3, 1974, defendant was sentenced to 5 to 15 years imprisonment. He appealed to the Court of Appeals, which affirmed. He filed application for leave to appeal in the Supreme Court. That Court, in lieu of granting leave, remanded to the Court of Appeals for consideration of the issues raised in the application for leave to appeal. See 406 Mich 989 (1979).

The sole issue raised on appeal is whether defendant received effective assistance of counsel. The inadequacy of an accused’s trial counsel entitles him to a new trial if counsel does not perform "at least as well as a lawyer with ordinary training and skill in the criminal law”, and does not conscientiously protect his client’s interests undeflected by conflicting considerations. People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976). In addition to meeting this standard, defense counsel must not have made a "serious mistake” without which defendant would have had a reasonable likelihood of acquittal. Garcia, supra, 266, People v Hanna, 85 Mich App 516, 523; 271 NW2d 299 (1978), lv den 406 Mich 893 (1979).

Ordinarily, where a convicted person attacks the adequacy of his trial counsel, he must be able to point to a lower court record which supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately. People v Ginther, 390 Mich 436, 442-443; 212 NW2d 922 (1973), People v Jelks, 33 Mich App 425, 431; 190 NW2d 291 (1971). Here the facts and circumstances surrounding the alleged deficiencies of defendant’s trial counsel were fully explored at trial, and the record contains sufficient facts to reach the issue. People v Moore, 391 Mich 426, 431; 216 NW2d 770 (1974), People v Krokker, 83 Mich App 474, 477; 268 NW2d 689 (1978). Accordingly, the absence of a motion for new trial or evidentiary hearing on the issue is not fatal to defendant’s claim on appeal. Compare, People v McKenzie, 67 Mich App 356, 362; 241 NW2d 205 (1976), lv den 406 Mich 958 (1979), and People v Clemons, 74 Mich App 448, 454-455; 253 NW2d 795 (1977), with People v Michael Anthony Williams, 391 Mich 832 (1974), and Moore, supra, 431.

The record makes clear that the police officers investigating the case showed photographs to the victim, for the purpose of identifying the defendant, after defendant was taken into custody. In addition, the photographic show-up was conducted in the absence of legal counsel. Testimony concerning the victim’s photographic identification was admitted at trial. The victim also made an in-court identification of the defendant.

The parties agree that the foregoing procedure violated defendant’s rights under the rule set forth in People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973), and People v Jackson, 391 Mich 323, 338-339; 217 NW2d 22 (1974). The display of photographs to the victim after the defendant was arrested and placed in custody on this charge, and more than three years after the commission of the crime, constituted an erroneous procedure on the part of the investigating officers. As such, the evidence of identification should have been excluded from trial. Id. Defendant’s trial counsel failed to move to suppress this evidence. On appeal, defendant claims that this failure demonstrates the inadequacy of his trial counsel.

The prosecution contends that the reason defense counsel may not have moved to suppress this evidence is because he may have concluded, in light of the facts in the case and this Court’s decision in People v Stewart, 63 Mich App 6; 233 NW2d 870 (1975), that the victim’s in-court identification had a basis independent of the improper pretrial identification procedure. Had this been true, we would be inclined to agree that the in-court identification would have been proper. People v Kachar, 400 Mich 78, 83; 252 NW2d 807 (1977), Anderson, supra, 188. However, though we decline to specifically rule on the merits of the argument, especially in the absence of a full hearing on the matter, Kachar, supra, People v Hill, 84 Mich App 90, 95; 269 NW2d 492 (1978), we note the existence of persuasive evidence that the victim-witness did not have a basis independent of her tainted pretrial identification for her in-court identification of the defendant. During cross-examination, the witness testified that her in-court identification of defendant was not wholly based upon her memory of the incident:

"Q. Is your identification in court today based upon the fact that Eddie Means is sitting there, and the fact that you have previously picked him out of a picture, or is that identification based upon your current memory of what happened in May of 1971?
"A. Both.”

Despite this concession by the witness, defense counsel never moved to suppress her in-court identification as the "illegal fruit” of an improper pretrial identification procedure. In addition, defense counsel did not even object to the witness’s testimony concerning her pretrial photographic identification of the defendant, a procedure which all acknowledge was clearly improper. Anderson, supra, Jackson, supra.

In view of these apparently serious errors, we could remand to the trial court for a hearing to determine whether, in fact, the witness had an independent basis for her in-court identification, Kachar, supra. However, we note that, even if the trial judge resolved the issue in favor of admissibility, there would remain the problem of the witness’s testimony concerning her pretrial identification. Consequently, rather than remand for such a hearing, we are required to determine whether defense counsel’s failure to move for suppression of the identification testimony constituted a decisive error or evinces a failure to perform "at least as well as a lawyer with ordinary training and skill in the criminal law”. Garcia, supra, 264.

In light of the other factors revealed in the record, demonstrating that defense counsel failed to conscientiously protect his client’s interests, we are inclined to hold that defense counsel’s inaction concerning the identification testimony did not meet the standards of representation expected of "a lawyer with ordinary training and skill in the criminal law”. In this regard, People v Phelps, 57 Mich App 300, 306; 225 NW2d 738 (1975), is distinguishable from the instant case because there, counsel had requested a pretrial evidentiary hearing, and a ruling denying the challenge had been made by the trial court. In addition, defense counsel in Phelps argued the suggestiveness of the entire identification procedure during his closing argument. Nothing in the instant record demonstrates that defense counsel’s complete failure to consider the issue was "clearly a trial tactic”. People v Bowen, 77 Mich App 684, 690; 259 NW2d 189 (1977).

Even if this inaction could be considered as an appropriate trial tactic, we find that defense counsel made a "serious mistake” in adopting this tactic which was decisive to the outcome of the trial. People v Karasek, 63 Mich App 706, 715; 234 NW2d 761 (1975), People v Degraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969), Garcia, supra, 266. Although the identification testimony was not the only evidence offered by the prosecution in its case against the defendant, without the victim-witness’s in-court identification of the defendant the prosecution’s case against the defendant would have been considerably weakened, to the point that "in all likelihood” acquittal would result from a new trial without the mistake. Karasek, supra, People v Tumpkin, 49 Mich App 262, 264; 212 NW2d 38 (1973). See People v Till, 406 Mich 641, 645-646; 281 NW2d 297 (1979).

Accordingly, because we are persuaded that defendant was denied effective assistance of counsel at his first trial, we are required to reverse his conviction and remand this matter for a new trial.

Reversed and remanded._

       On appeal, defendant cites two other instances which evince the inadequacy of his trial counsel. First, the voluntariness of defendant’s confession, which was admitted at trial, was subject to serious doubt. Nevertheless, defense counsel failed to move for a Walker hearing. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). Second, defense counsel failed to object to certain prejudicial remarks by the prosecutor or prosecution witness which failure, though possibly due to counsel’s trial strategy, was, based upon our review of the record, more likely caused by counsel’s oversight. We are not convinced that either instance is sufficient to mandate a finding that defendant was denied effective assistance of counsel as a matter of law. However, we observe that the cumulative effect of these apparent errors, combined with the error noted in the text of the opinion, requires a finding that defendant was denied his right to effective assistance of counsel.

       The prosecution asserts that defense counsel "may have considered that interrogation of the witness on the stand * * * may have given the witness the opportunity to 'practice’ her testimony in advance of actually delivering same before a jury” and that he had "the enviable opportunity of observing the witness’ demeanor” and "the certainty with which she testified”.

       In addition to the victim-witness’s testimony, the prosecution primarily relied on the testimony of the defendant’s in-custody admissions (see fn 1) and the testimony of an accomplice who had been granted immunity. See People v Till, 406 Mich 641, 646; 281 NW2d 297 (1979).


text:
    PEOPLE v ROBERT LEWIS (ON REMAND)
    Docket No. 50765.
    Submitted April 3, 1980, at Lansing.
    Decided May 9, 1980.
    Leave to appeal applied for.
    Robert H. Lewis was convicted of bringing whiskey and marijuana into prison, Jackson Circuit Court, Russell E. Noble, J. He appealed and his conviction was affirmed. He then applied for leave to appeal to the Supreme Court which, in lieu of granting leave, vacated the decision of the Court of Appeals and remanded the case, directing the Court of Appeals to address the issues of whether an inmate of a prison can be convicted of bringing contraband into the prison and whether there was sufficient evidence of guilt of a principal to convict the defendant as an aider and abettor, 408 Mich 874 (1980). The defendant also alleges: error in the jury instructions, no evidence of distributing contraband to others, and that the statute under which he was convicted violates the title-object clause of the Michigan Constitution. Held:

    1. The defendant was properly convicted of bringing the contraband into the prison because in the scheme employed to smuggle it in the defendant was directly responsible for the bringing in of the contraband.
    2. There was sufficient evidence to convict the defendant as a principal. Therefore, the argument that there was insufficient evidence to convict him as an aider and abettor is without merit.
    3. The trial court’s instruction regarding aiders and abettors was not objected to at trial. In the absence of manifest injustice, review of this issue is precluded.
    4. Distribution of contraband to other inmates is not an element of the offense charged.
    5. The statute under which the defendant was convicted does not violate the title-object clause of the Constitution.
    Affirmed.
    References for Points in Headnotes
    [1] 60 Am Jur 2d, Penal and Correctional Institutions § 41 et seq.

    73 Am Jur 2d, Statutes §§ 157, 158, 300, 303.
    [2] 5 Am Jur 2d, Appeal and Error §§ 623, 891 et seq.

    [3] 73 Am Jur 2d, Statutes §§ 99, 100.

      1. Prisons and Prisoners — Statutes — Contraband.
    The statute which prohibits the bringing of certain contraband into prisons is designed to keep contraband out of prison, not to punish a particular group of people; therefore, an inmate, as well as an outside supplier, may be punished under the statute (MCL 800.281; MSA 28.1621).
    2. Appeal — Instructions to Jury — Preserving Question.
    Appellate review of an alleged error in the trial court’s instructions to the jury is precluded where no objection to the instructions was made at trial, unless there is manifest injustice.
    3. Prisons and Prisoners — Contraband — Constitutional Law — Statutes.
    The statute which prohibits the bringing of certain contraband into prisons does not violate the title-object clause of the Michigan Constitution (Const 1963, art 4, § 24, MCL 800.281; MSA 28.1621).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and H. R. Carroll, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   On Remand

Per Curiam.

Defendant was convicted of bringing whiskey and marijuana into a prison, contrary to MCL 800.281; MSA 28.1621. He was sentenced to three years, four months to five years imprisonment. Defendant appealed as of right to this Court which affirmed his conviction in an unpublished memorandum opinion. People v Lewis, (Docket No. 77-599, released July 27, 1979). Defendant applied for leave to appeal to the Michigan Supreme Court. In lieu of leave to appeal that Court vacated this Court’s judgment and remanded the case to this Court with the direction that we address two issues raised before this Court but not specifically dealt with in our prior opinion. 408 Mich 874 (1980).

Defendant argued that, as a matter of law, an inmate who does not leave prison cannot be convicted of bringing liquor and drugs into prison. Defendant claimed that he, as a convict, is not within the class of offenders described in the statute; he believes only outside suppliers are to be punished under the statute. We disagree.

The intent of MCL 800.281; MSA 28.1621, is to prohibit bringing enumerated contraband into prisons. It is designed to keep contraband out of prison, not to punish a particular group of people. Cf., People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Defendant’s behavior was clearly proscribed by the statute because he employed agents to pick up whiskey and marijuana outside of the prison and smuggle it inside in garbage trucks. Others would unload the contraband, repackage it and deliver it to defendant. Thus, defendant was directly responsible for "bringing” the contraband into the prison.

Defendant also argued that there was insufficient evidence of guilt of a principal so defendant could not be convicted as an aider and abettor, that the trial court erred in instructing the jury on aiding and abetting, and that there was no evidence of furnishing contraband to other inmates.

The people submitted this case to the jury on the theory that defendant was guilty of bringing contraband into the prison as a principal or, in the alternative, as an aider and abettor. First of all, we reject defendant’s argument that the evidence was insufficient because we find sufficient evidence to convict him as a principal. Secondly, the evidence established that an inmate garbage truck driver knowingly brought whiskey and marijuana into the prison at the direction of defendant. There was sufficient evidence to hold this inmate guilty as a principal.

We also reject defendant’s instructional claim. Since defendant did not object at trial, appellate review is precluded absent manifest injustice. People v Parker, 76 Mich App 432, 452; 257 NW2d 109 (1977). We find no manifest injustice because the jury was properly instructed that they had to find a principal guilty of the charged offense beyond a reasonable doubt before finding defendant guilty as an aider and abettor.

Further, no evidence of distributing contraband to other inmates is required because distribution to others is not an element of the offense charged. Similarly, no jury instruction to that effect is required.

Finally, we again hold defendant’s original argument that MCL 800.281; MSA 28.1621 violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, to be without merit. Defendant’s reliance on People v Stanton, 400 Mich 192; 253 NW2d 650 (1977), is misplaced. Stanton held that the 1972 amendment, proscribing possession by a convict of a weapon, exceeded the scope of the title and was thus unconstitutional. It did not affect the rest of the statute, under which defendant was charged.

Affirmed.

H. R. Carroll, J., did not participate.


text:
    GALLAGHER v PARSHALL
    Docket No. 78-5418.
    Submitted February 5, 1980, at Lansing.
    Decided May 21, 1980.
    Fred Gallagher was injured in an accident in which his automobile was struck by an automobile driven by Steven Parshall and owned by Mary Baxter. Gallagher brought an action for damages against Parshall and Baxter, claiming that as a result of the accident he suffered a hydrocephalic condition. Gallagher’s wife, Ruth Gallagher, claimed damages for loss of consortium. The Gratiot Circuit Court, Leo W. Corkin, J., directed a verdict in favor of the defendants on the loss of consortium claim and on the issue of causation, and the jury returned a verdict of no cause of action on Fred Gallagher’s claim of serious impairment of body function. Judgment on the verdicts was entered by Judge Corkin and plaintiffs appeal, alleging error in the court’s refusal to admit opinion testimony on the loss of consortium claim, the grant of defendants’ motion for a directed verdict on the issue of causation, and the refusal to direct a verdict for plaintiffs that Mr. Gallagher suffered a serious impairment of body function. Held:

    1. The testimony of two physicians was properly excluded. One of them testified that he was not qualified to give an expert opinion on hydrocephalic conditions. With regard to the other physician’s testimony, there was testimony in evidence upon which the jury was capable of reaching its own conclusion unaided by an expert’s opinion on the matter.
    2. Because the jury found no cause of action on Mr. Gallagher’s claim of serious impairment of body function, Mrs. Gallagher’s claim of loss of consortium was without merit. This is because such a claim is dependent upon the injured spouse’s ability to pursue a claim in tort.
    3. Viewing the evidence in the light most favorable to the plaintiffs, there was no medical testimony which would make the question of causation as between defendant Parshall’s negligence and Mr. Gallagher’s hydrocephalic condition one for the jury’s consideration. Therefore, the trial court properly directed a verdict in favor of the defendants on the issue of causation.

      References for Points in Headnotes
    [1, 3] 31 Am Jur 2d, Expert and Opinion Evidence § 22.
    [2] 31 Am Jur 2d, Expert and Opinion Evidence §§ 1, 26.
    [4] 7 Am Jur 2d (Rev), Automobile Insurance §§ 348, 349.
    [5] 5 Am Jur 2d, Appeal and Error § 891.
    75 Am Jur 2d, Trial §§ 576, 577.
    [6] 5 Am Jur 2d, Appeal and Error § 886.

      4. The trial court properly refused to direct a verdict that Mr. Gallagher suffered a serious impairment of body function because reasonable persons could differ as to the meaning of the evidence involved.
    Affirmed.
    1. Evidence — Opinion Testimony — Rules of Evidence.
    Opinion testimony which embraces an ultimate issue to be decided by the trier of fact is not necessarily objectionable; however, the testimony must be otherwise admissible to be allowed into evidence (MRE 702, 704).
    2. Evidence — Expert Testimony — Opinion Testimony.
    Three factors must be established before admitting expert opinion testimony into evidence: (1) the witness must be qualified as an expert in his field; (2) there must be facts which require an expert’s interpretation or analysis; and (3) the witness’s knowledge must be peculiar to experts rather than to lay persons.
    3. Evidence — Opinion Testimony.
    Opinion testimony should not be received in evidence where all the relevant facts can be introduced in evidence and the jury is competent to draw a reasonable inference therefrom.
    4. Torts — Automobiles — Serious Impairment of Body Function — Loss of Consortium — Statutes.
    Serious impairment of body function, permanent serious disfigurement or death to a plaintiff injured by the ownership, maintenance or use of a motor vehicle must be established in order that a claim in tort under the common law for those injuries may be asserted; absent such a preliminary showing a claim by the injured party’s spouse for loss of consortium will not lie (MCL 500.3135[1]; MSA 24.13135[1]).
    5. Appeal — Instructions to Jury — Failure to Request Instructions — Court Rules.
    Failure of a party to request a jury instruction prior to the jury’s retiring to deliberate precludes review of the issue of the trial court’s failure to give the instruction (GCR 1963, 516).

      6. Appeal — Motions — Directed Verdicts.
    The Court of Appeals reviews the grant or denial of a motion for a directed verdict by viewing the evidence in the light most favorable to the nonmoving party; if reasonable persons could differ as to the meaning of the evidence in question a motion for a directed verdict should not be granted.

      Gray & Taylor, P.C., for plaintiffs.

      Fortino, Plaxton & Moskal, for defendants.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Per Curiam.

In the court below, the trial judge directed a verdict in favor of defendants and against plaintiff wife on her claim for loss of consortium, and directed a second verdict in favor of defendants and against plaintiff husband on the issue of causation as between defendants’ negligence and plaintiff husband’s hydrocephalic condition. The jury then returned a verdict of no cause of action on plaintiff husband’s claim of serious impairment of bodily function under the no-fault act. Judgment was entered on the verdicts, from which plaintiffs take this appeal as of right.

Plaintiffs initially contend that the trial court committed reversible error in refusing to admit opinion testimony of two treating physicians regarding the seriousness of the impairment of plaintiff husband’s bodily functions. We disagree.

We acknowledge that testimony in the form of an opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. MRE 704. However, the testimony must be "otherwise admissible” under MRE 702 to be allowed into evidence. Ford v Clark Equipment Co, 87 Mich App 270, 280; 274 NW2d 33 (1978).

Before admitting expert opinion evidence, three factors must be established to the trial court’s satisfaction. First, the witness must be qualified as an expert in his field. Second, there must be facts which require an expert’s interpretation or analysis. Third, the witness’s knowledge must be peculiar to experts rather than to lay persons. Dep’t of Natural Resources v Frostman, 84 Mich App 503, 505; 269 NW2d 655 (1978). Such a witness is entitled to express an opinion, or conclusion, where that opinion is dependent on professional or scientific knowledge or skill. Id. Where all the relevant facts can be introduced in evidence and the jury is competent to draw a reasonable inference therefrom, opinion evidence will not be received. Dudek v Popp, 373 Mich 300, 306; 129 NW2d 393 (1964).

We conclude that the trial court properly excluded the testimony of Dr. Graham. His own testimony establishes that he was not qualified to give an expert opinion in the area of hydrocephalic conditions. Therefore, his opinion was not "otherwise admissible” under MRE 702. With regard to any opinion testimony by him relative to plaintiff’s neck and chest injuries, we likewise conclude that it would not be "otherwise admissible” under MRE 702, because the jury was fully capable, on the record before them, to determine the question of serious impairment vel non with respect to these injuries.

As to the trial court’s exclusion of the opinion testimony of Dr. Devlin regarding whether plaintiff’s stiff neck constituted serious impairment, we are fully in accord therewith. Given the detailed testimony regarding the diagnosis of the injuries and the doctor’s explication of the medical terms utilized in such diagnosis, we again conclude that the jurors were capable of reaching their own conclusion thereon unaided by any expert’s opinion on the matter.

Plaintiffs next argue that the trial court reversibly erred in directing a verdict in favor of defendant on plaintiff wife’s claim for loss of consortium. We reject this contention.

In order to assert a claim in' tort under the common law for injuries arising out of the ownership, maintenance or use of a motor vehicle, the injured plaintiff (or his representative) must first establish serious impairment of bodily function, permanent serious disfigurement, or death. MCL 500.3135(1); MSA 24.13135(1). Warner v Brigham, 90 Mich App 640, 643; 282 NW2d 428 (1979). Absent such a preliminary showing, any claim for loss of consortium under the statute will not lie. Id. Therefore, even assuming the direction of a verdict on the claim for loss of consortium was error, such error does not necessitate reversal, given the jury’s finding of no cause of action on the necessary underlying claim of serious impairment of bodily function. GCR 1963, 529.1.

Furthermore, we find plaintiffs’ complaint regarding the failure of the court below to give an explanatory instruction concerning the dismissal of the consortium claim to be of no moment, given their failure to request same prior to the jury’s retiring to deliberate. GCR 1963, 516, cf., Sakorraphos v Eastman Kodak Stores, Inc, 367 Mich 96, 99; 116 NW2d 227 (1962).

Nor do we find any reversible error in the trial court’s grant of defendants’ motion for a directed verdict on the issue of causation as between defendant’s negligence and plaintiff husband’s hydrocephalic condition. Viewing the evidence in the light most favorable to plaintiffs, the nonmoving party, Wynn v Cole, 91 Mich App 517, 524; 284 NW2d 144 (1979), we conclude that it failed to establish a prima facie case; therefore, direction of verdict in favor of defendants was not improper. Id. The only neurologist to testify stated unequivocally that the accident was not the cause of the hydrocephalus. Plaintiff husband’s own physician buttressed this conclusion in testifying that the symptoms which he observed which are normally associated with a hydrocephalic condition did not manifest themselves immediately after the accident, but some 21 months later. The expert in neurology, Dr. Field, had testified that such symptoms set in rather rapidly after a blow to the head is received, if such impact is the cause of the condition. The blow to plaintiff husband’s head which occurred in the accident was alleged to be the cause of his condition. There was therefore no testimony couched in terms of medical possibilities so as to make the case one for the jury’s consideration. Howard v City of Melvindale, 27 Mich App 227; 183 NW2d 341 (1970).

Lastly, we address plaintiffs’ argument to the effect that the lower court reversibly erred in refusing to direct a verdict in favor of plaintiffs on the issue of whether or not plaintiff husband suffered a serious impairment of bodily function. We disagree. On the record before us, we conclude that reasonable persons could differ as to the meaning of the evidence in question, especially when viewed in the light most favorable to defendants, the nonmoving party. Therefore, the motion for directed verdict was properly denied. Ringo v Richardson, 88 Mich App 684, 687; 278 NW2d 717 (1979), lv den 407 Mich 906 (1979).

We detect no error mandating reversal, and therefore affirm.

Affirmed. Costs to defendants.


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

text:
    PEOPLE v JACKSON
    Docket No. 78-930.
    Submitted February 5, 1980, at Detroit.
    Decided June 2, 1980.
    Anthony R. Jackson was convicted by a jury of second-degree murder, armed robbery and assault with intent to murder. During his trial in the Recorder’s Court of Detroit, Judge George W. Crockett, III, extensively questioned the defendant when defendant took the stand in his own defense. The nature and extent of the questioning was such that the jury could have perceived that the trial judge disbelieved the defendant’s testimony and, from that, inferred judicial support of the testimony of the prosecution witnesses, chief among those witnesses being defendant’s accomplices. No cautionary instruction regarding the scrutiny to be given accomplice testimony was requested and no such instruction was given. Defendant appeals. Held:

    1. The trial judge had the duty to avoid any invasion of the prosecutor’s role and the duty to exercise caution with respect to any questioning of the witnesses so that the jury would not be able to infer from that questioning that the judge believed or disbelieved the testimony of any given witness. Since the trial judge failed to exercise such caution, but instead engaged in extensive questioning of the defendant that could cause the jury to believe that the judge disbelieved the defendant’s testimony and, by implication, that the judge believed the testimony of the prosecution’s witnesses, the defendant was denied a fair and impartial trial.
    2. The trial court should have sua sponte instructed the jury as to the caution with which accomplice testimony should be viewed. While there was no request for such an instruction, where, as here, the issue of guilt or innocence is closely drawn, such an instruction should be given even in the absence of a request to charge.
    3. While on retrial care should be taken to avoid any ambiguity as to whether the jury can find defendant not guilty of second-degree murder, the ambiguity in the charge as given to the jury can be resolved when the jury instructions are read as a whole.

      References for Points in Headnotes
    [1, 2] 75 Am Jur 2d, Trial § 88.
    [3] 75 Am Jur 2d, Trial §§ 690, 818 et seq.

    Propriety of specific jury instructions as to credibility of accomplices. 4 ALR3d 351.
    [4] 75 Am Jur 2d, Trial § 613 et seq.

      Reversed and remanded.
    1. Criminal Law — Trial — Examination of Witnesses — Impartiality of Trial Judge.
    A trial judge in a criminal jury trial should avoid any invasion of the prosecutor’s role and should exercise caution so that any questions asked of witnesses by him will not be viewed as being intimidating, argumentative, prejudicial, unfair or partial.
    2. Criminal Law — Trial — Fair Trial — Examination of Witnesses — Jury — Perceived Partiality of Trial Judge.
    A criminal defendant is denied a fair and impartial trial where, in a jury trial, the trial judge engages in examination of the defendant in such a manner and to such an extent that the jury could have perceived judicial rejection of the defendant’s credibility and inferred judicial support of the testimony of the prosecution witnesses.
    3. Criminal Law — Instructions to Jury — Accomplice Testimony — Cautionary Instructions — Request to Charge — Sua Sponte Instructions.
    A cautionary instruction regarding accomplice testimony must be given not only when there is a request to charge but also must be given sua sponte if the issue of guilt or innocence is closely drawn.
    4. Trial — Instructions to Jury — Ambiguous Instructions — Charge as a Whole.
    An ambiguous instruction to the jury will not mandate reversal where the charge to the jury, read as a whole, resolves the ambiguity.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Robert E. Edick, Assistant Prosecuting Attorney, for the people.

      Maxwell & Sniderman (Howard Hertz, of counsel), for defendant.

      Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and R. M. Maher, JJ.
   D. E. Holbrook, Jr., J.

Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, armed robbery, MCL 750.529; MSA 28.797, and assault with intent to kill and murder, MCL 750.83; MSA 28.278. Thereafter sentenced to concurrent prison terms of 25 to 40 years, life imprisonment, and 20 to 40 years, respectively, he appeals as of right.

Defendant and two friends went to a notorious "dope den”. Defendant entered the apartment alone with the intention of getting the occupant’s gun. After obtaining the gun, defendant opened the apartment door. His friends came in and there was shooting. Two men from the apartment were wounded and one was killed.

At trial defendant’s two friends obtained pleas to lesser charges in return for their testimony. There were conflicting stories as to whether defendant or his friends did the shooting.

Defendant claims that the trial court questioned him at length in such a way as to discredit his testimony in the jury’s minds. We agree. Where there is a jury, the judge should avoid any invasion of the prosecutor’s role and exercise caution so that his questions will not be intimidating, argumentative, prejudicial, unfair or partial. People v Cole, 349 Mich 175, 199; 84 NW2d 711 (1957).

The judge pursued an intimidating and argumentative line of questioning. By injecting into the trial his skepticism of defendant’s testimony, he exceeded the bounds of impartiality. For example, he challenged defendant’s testimony concerning defendant’s tricking the decedent out of his gun:

"THE COURT: Did you think that you could have gotten Mr. Jackson’s weapon from him voluntarily?
"THE WITNESS: Voluntarily?
"THE COURT: Yes.
"THE WITNESS: I did.
"THE COURT: You said you went there to borrow the weapon, right?
"THE WITNESS: Oh, yes, sir.
"THE COURT: Did you realistically think that he would loan you his weapon?
"THE WITNESS: Yes, sir.
"THE COURT: And was he running a dope pad?
"THE WITNESS: Yes.
"THE COURT: How long have you been familiar with dope pads?
"THE WITNESS: Oh, since I was 16.
"THE COURT: How old are you now?
"THE WITNESS: 24.
"THE COURT: You realistically thought Mr. Jackson would loan you his weapon which he was using to protect his dope pad?
"THE WITNESS: Yes, sir.”

Such judicial questioning did not serve the purpose of producing fuller testimony or of clarifying points as sanctioned under Simpson v Burton, 328 Mich 557, 564; 44 NW2d 178 (1950).

Defendant testified that one of the accomplices, Melvin Daniels, gave him a gun prior to entering the apartment. He stated that he went into the apartment for the sole purpose of borrowing decedent’s gun and that he had no prior knowledge) of the events which took place. He also said that he did not participate in the robberies or shootings. He obtained decedent’s gun and was leaving the apartment when he was surprised by Daniels and McKinney, the other accomplice. The trial judge questioned defendant regarding the alleged surprise:

"THE COURT: Mr. Jackson, how tall were you on January 3, 1977?
"THE WITNESS: I am about five ten, five eleven.
"THE COURT: And how much did you weigh then?
"THE WITNESS: Same as I do now.
"THE COURT: What is that?
"THE WITNESS: 180.1 am sure.
"THE COURT: Is Mr. Daniels as tall or as heavy as you?
"THE WITNESS: He is not as tall, but about as heavy as me.
"THE COURT: Is Mr. McKinney as tall or heavy as you?
"THE WITNESS: I am not sure. I don’t know Mr. McKinney.
"THE COURT: You don’t know him?
"THE WITNESS: The first I seen him was the day this happened.
"THE COURT: You saw him the other day, didn’t you?
"THE WITNESS: Yes, sir.
"THE COURT: And at the time you became frightened, either Mr. Daniels or Mr. McKinney or both, and you had two weapons, one of which was loaded?
"THE WITNESS: Yes, sir.
"THE COURT: You were armed and bigger than either of those individuals, is that right?
"THE WITNESS: I was armed and taller, but I would like to express myself.
"THE COURT: Feel free to.
"THE WITNESS: Okay. I have never been in places— placed in a position like that before, and opening the door and seeing them and the expression on their face was something that I can’t describe.
"THE COURT: Anything further, counsel?
"MR. HOGG: I have some further questions based on the Court’s examination.”

Such an interrogation indicates skepticism or incredulousness on the part of the judge. It could have influenced the jury to the detriment of defendant’s case. People v Roby, 38 Mich App 387, 392; 196 NW2d 346 (1972). Defendant’s version of the facts, that he was frightened and surprised, was impeached by the trial court’s suggestion that defendant had a physical advantage over both Daniels and McKinney.

A prosecution witness testified to seeing two men run to a car. He then heard more gun shots from within the building and saw a third man in a blue parka run from the building and enter the car. Defendant testified that he was one of the first two men to enter the car. The trial court questioned defendant:

"THE COURT: Were you wearing a blue parka similar to the one that is on evidence here?
"THE WITNESS: That’s correct.
"THE COURT: Were you the last person to get in the car?
"THE WITNESS: No, sir.
"THE COURT: Did you hear that young man testify and say he was on his porch and he heard shots?
"THE WITNESS: Yes, sir.
"THE COURT: That he saw two people come out with one wearing a tan coat or a beige coat and another one who he couldn’t describe, and they went and got straight into the car?
"THE WITNESS: Yes, I remember.
"THE COURT: And then after hearing the shots he saw somebody come out who hesitated, looked around and then got into the car?
"THE WITNESS: That’s what he said.
"THE COURT: Did you know him?
"THE WITNESS: No.
"THE COURT: Have you ever seen him before in your life?
"THE WITNESS: In the neighborhood.
"THE COURT: Had you ever done anything to him?
"THE WITNESS: No.”

The trial court improperly assumed a prosecutorial role. The above colloquy rejected defendant’s credibility and implied judicial support of the prosecution witness’s testimony. Such partiality quite possibly could have influenced the jury to the detriment of defendant’s case. People v Roby, supra.

In order to escape prejudicial error under People v Piscunere, 26 Mich App 52; 181 NW2d 782 (1970), the questioning and comments by the trial judge must be limited in scope, material to the issue, and must not communicate to the jury any opinion that the trial judge may have regarding these matters. We have no other recourse but to find that defendant was denied a fair and impartial trial despite the evidence presented. People v Smith, 363 Mich 157; 108 NW2d 751 (1961).

Defendant also contends that the trial judge committed reversible error in failing to give a cautionary instruction regarding accomplice testimony. No such instruction was requested, but it has been held in People v McCoy, 392 Mich 231, 240; 220 NW2d 456 (1974), that it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge when the issue is "closely drawn”. We find that the issue of guilt or innocence was closely drawn in the instant case. Since there were no eyewitnesses to the actual shooting, the question came down to whom to believe, the defendant or the accomplices. Moreover, the trial judge, through his questioning of defendant, cast a cloud of judicial skepticism over defendant’s testimony. Under these circumstances, the trial court should have sua sponte given the jury a cautionary instruction as to the weight and credibility which should be accorded to the testimony of the accomplices, particularly here where one of the accomplices, McKinney, admitted that he would like to help either himself or his friend, Daniels, the other accomplice. A cautionary instruction as to accomplice testimony would have acted as a safeguard for the defendant:

" 'Testimony of an accomplice has been held to be fraught with weakness due to the effect of fear, threats, hostility, motives, or hope of leniency. The consideration of the infirmities of this kind of testimony goes to the credibility of the evidence, and the law requires that such testimony be closely scrutinized and accepted with caution. * * * It has been said that a skeptical approach to accomplice testimony is a mark of the fair administration of justice.’ ” People v Love, 43 Mich App 608, 611; 204 NW2d 714 (1972).

Defendant also contends that the trial court never clearly told the jury that it could find defendant not guilty of second-degree murder. At the close of his final charge to the jury, the judge summarized the possible verdicts as to Count I, the first-degree felony murder count, as follows:

"Your possible verdicts are as to Count I, not guilty or guilty of murder in the first degree or guilty of murder in the second degree.”

While we wish that the trial judge had been clearer in his instruction, we find that the above ambiguity is resolved when the final charge is read as a whole. The jury was also instructed that, "If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder in the first degree or guilty of the lesser offense of murder in the second degree.” This instruction indicated to the jury that they were to decide first whether defendant was guilty of murder; if they so found, then it was necessary to decide what degree. Moreover, general instructions as to the burden of proof and reasonable doubt underscored the option of a not guilty verdict. We do hope, however, that the trial court will be more clear in the future.

As to defendant’s remaining allegations of error, we find them to be without merit.

Reversed and remanded.


author: N. J. Lambros, J.

text:
    PEOPLE v KRIST
    Docket No. 78-1910.
    Submitted November 19, 1979, at Detroit.
    Decided June 2, 1980.
    Leave to appeal denied, 409 Mich 936.
    Larry J. Krist was convicted of extortion in St. Clair Circuit Court, Halford I. Streeter, J., and sentenced to 10 to 20 years imprisonment. Defendant appeals, alleging that he is, at most, guilty of unarmed robbery and that the evidence is insufficient to sustain his conviction for extortion. Held:

    1. The elements of statutory extortion are as follows: (1) a communication; (2) threatening accusation of any crime or offense or any injury to the person or property or mother, father, husband, wife, or child of another; (3) with intent thereby to extort money or pecuniary advantage as to compel the person so threatened to do or refrain from doing an act against his will.
    2. Robbery may be accomplished in either of two ways: (1) by force or violence to the person; or (2) by putting someone in fear of immediate injury.
    3. Unarmed robbery requires a taking from the person or in the presence of the person.
    4. The evidence is insufficient to sustain the defendant’s conviction of extortion. The facts developed are proof of unarmed robbery, not extortion.
    Reversed and the defendant discharged.
    1. Extortion — Elements.
    The elements of statutory extortion are as follows: (1) a communication; (2) threatening accusation of any crime or offense or any injury to the person or property or mother, father, husband, wife, or child of another; (3) with intent thereby to extort money or pecuniary advantage as to compel the person so threatened to do or refrain from doing an act against his will.
    References for Points in Headnotes
    [1] 31 Am Jur 2d, Extortion, Blackmail, and Threats §§ 1, 2, 8-11.
    [2] 67 Am Jur 2d, Robbery § 10 et seq.

    [3] 67 Am Jur 2d, Robbery §§ 11,12.

      2. Robbery — Elements.
    Robbery may be accomplished in either of two ways: (1) by force or violence to the person; or (2) by putting someone in fear of immediate injury (MCL 750.530; MSA 28.798).
    3. Robbery — Unarmed Robbery — Requirements.
    Unarmed robbery requires a taking from the person or in the presence of the person (MCL 750.530; MSA 28.798).

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

      Peter J. Van Hoek, Assistant Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   N. J. Lambros, J.

Following a jury trial, defendant was convicted of extortion, MCL 750.213; MSA 28.410, and sentenced to a term of 10 to 20 years imprisonment. Defendant appeals as of right.

On June 28, 1977, the defendant entered a gas station in St. Clair County and asked one of the attendants if he could charge some gasoline. The defendant represented to the gas station attendant, 16-year-old Mark Hartner, that he had a charge account at the station. After Hartner checked the records and informed the defendant that he could not charge the gasoline, defendant became indignant and ordered Hartner to put gas in the car or he was going to "kick his ass”. With that, the attendant filled defendant’s gas tank. Hartner noticed that the defendant had been drinking and could see a wine bottle in the front seat of the defendant’s car. While Hartner was filling defendant’s tank with gas, defendant looked in Hartner’s shirt pocket and asked for a cigarette. Although there was money in Hartner’s pockets, the defendant stated that he only wanted a cigarette. Hartner and the defendant went inside the gas station to get a cigarette.

Once inside, defendant told Hartner to give him two packages of cigarettes from the cigarette machine. Hartner took some change from the till, purchased the cigarettes and gave them to the defendant. Defendant was dissatisfied with the brand of cigarette, so he slapped Hartner in the face and ordered him to get another brand. Hartner bought two more packages of cigarettes for the defendant.

After this incident, Hartner filled out a charge slip for the gas and cigarettes. Defendant told Hartner that his name was "Gypsy Saveeny”. Hartner wrote the name on the slip and left it on the counter. The defendant remained at the station and continued to harass Hartner and his 14-year-old friend. He told the boys that he had a gun and ordered them about when customers appeared. The boys testified that they did not see a weapon. After the defendant had been at the station for approximately one hour, the owner, Don Greenia, returned. Defendant then got in his car and drove away. He was apprehended shortly thereafter. The arresting officer searched the car and seized a bottle of wine and a package of cigarettes, which were ultimately admitted into evidence. No weapon was found on defendant’s person or in the car. Defendant was taken to the police station and charged with unarmed robbery. On the following day, the prosecutor raised the charge to extortion.

Defendant contends on appeal that he is, at most, guilty of unarmed robbery and that the evidence is insufficient to sustain his conviction for extortion. The testimony adduced at trial supports this theory.

The unarmed robbery statute, MCL 750.530; MSA 28.798, provides that,

"Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another * * * any money or other property * * * not being armed * * * shall be guilty of a felony, punishable by * * * not more than 15 years.”

On the other hand, the extortion statute, MCL 750.213; MSA 28.410, provides as follows:

"Any person who shall, either orally or by a written or printed communication, maliciously threaten to accuse another of any crime or offense, or shall orally or by any written or printed communication maliciously threaten any injury to the person or property or mother, father, husband, wife or child of another with intent thereby to extort money or any pecuniary advantage whatever, or with intent to compel the person so threatened to do or refrain from doing any act against his will, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 20 years or by a fine of not more than 10,000 dollars.”

In People v Kruper, 340 Mich 114, 120; 64 NW2d 629 (1954), the Michigan Supreme Court discussed the respective statutes and distinguished them from one another:

"The primary distinction between the offense of robbery and extortion is that in robbery the taking must be without the consent of the party robbed, while in extortion the taking is with consent.”

This is at best a distinction without a difference, for both offenses equally demand that the defendant’s threats induced the victim to give up his property, something which he would not otherwise have done:

"(T)he willingness to surrender the property in any case is only an apparent willingness since in both instances the victim must choose between alternative evils, namely the surrender of his property or the execution of the threat.” Comment, A Rationale of the Law of Aggravated Theft, 54 Colum L Rev, 84, 85-86 (1954).

See also LaFave & Scott, Criminal Law, Ch 8, § 95, p 707.

The illusory nature of the Kruper distinction is made clearer when the very language of the extortion statute is closely examined. The applicable Michigan statute, MCL 750.213; MSA 28.410, requires that the threat be made "to compel the person so threatened to do or refrain from doing any act against his will”. The phrase "against his will”, as used in the context of the extortion statute, is defined in CJI 21:1:04 as follows:

"A person does an act or refrains from doing an act against his will when, with apparent willingness, he does the act with the understanding that thereby he will be saved from some personal injury to himself or a member of his immediate family or saved from personal disgrace, doing such act as the lesser of two unpleasant alternatives, notwithstanding the fact that he may mentally protest against the circumstances which compel the choice.”

It must be concluded that the distinction made in Kruper, supra, is not helpful to the trier of fact in determining whether an extortion, or an unarmed robbery, has been committed. We therefore review the common law origins and statutory history of the two crimes in our search for a more tangible differentiation.

At common law, extortion was the unlawful taking by a public officer, under color of his office, of any money or thing of value that was not due to him, or more than was due, or before it was due. Hawkins, Pleas of the Crown, 418 (1787), Commonwealth v Bagley, 24 Mass (7 Pick) 279 (1828). Common law extortion was punishable as a misdemeanor.

Robbery, on the other hand, was a capital felony. Its difference from common law extortion has been described by modern commentators as follows:

"To obtain another’s property by means of a threat of immediate bodily harm to the victim (or someone in his company) is robbery; and robbery is held to embrace also a threat to destroy the victim’s home or a threat to accuse him of sodomy. That was, however, as far as robbery by threats went — doubtless because the severe penalty for robbery, long a capital offense, restrained the courts from expanding robbery to include the acquisition of property by means of other effective threats— such as a threat to inflict future rather than immediate bodily harm, or to destroy the victim’s property other than his house, or to accuse him of some crime other than sodomy, or to expose his failings or secrets or otherwise to damage his good name or business reputation. To fill this vacuum practically all states have enacted statutes creating what is in effect a new crime * * * called statutory extortion.” LaFave & Scott, supra, 704-705.

See also, Comment, Criminal Law — A Study of Statutory Blackmail and Extortion in the Several States, 44 Mich L Rev 461, 466 (1945), and Law of Aggravated Theft, supra.

The underlying purpose of statutory extortion, to plug loopholes in the common law crime of robbery, is reflected in the scope of the present-day statutes. In Michigan, unarmed robbery is given a specific ambit. Robbery may be accomplished in either of two ways: a) by force or violence to the person, or b) by putting him in fear of immediate injury. MCL 750.530; MSA 28.798, Saks v St Paul Mercury Indemnity Co, 308 Mich 719; 14 NW2d 547 (1944), CJI 18:3:01(3). See also 2 Wharton’s Criminal Law and Procedure 507 (1957).

Unarmed robbery further requires a taking from the person or in the presence of the person. MCL 750.530; MSA 28.798.

Statutory extortion, on the other hand, does not require either of the above elements. See Perkins, Criminal Law, 372 (2d ed) (1969), Model Penal Code (Proposed Official Draft, 1962), §§ 222.1 and 223.4. Its elements are three-fold: 1) a communication, 2) threatening accusation of any crime or offense or any injury to the person or property or mother, father, husband, wife, or child of another, 3) with intent thereby to extort money or pecuniary advantage as to compel the person so threatened to do or refrain from doing an act against his will. People v Percin, 330 Mich 94; 47 NW2d 29 (1951), People v Whittemore, 102 Mich 519; 61 NW 13 (1894).

Thus, although the two crimes are closely related and do overlap in several respects, unarmed robbery in Michigan encompasses a narrower set of circumstances. Larceny by fear of immediate bodily harm or violence to the person will be prosecuted as robbery; the unlawful obtaining of property by threats of a different nature, i.e., threats of future harm, will ordinarily constitute a different offense such as extortion. The case law of Michigan supports this distinction. Prosecutions for statutory extortion have generally been characterized by threats of future harm if the victim does not comply with the extortionist’s wishes. See People v Percin, supra, People v Garcia, 81 Mich App 260; 265 NW2d 115 (1978), People v Jones, 75 Mich App 261; 254 NW2d 863 (1977), People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975), and People v Curry, 58 Mich App 212; 227 NW2d 254 (1975). The victims in those cases were not confronted with the threat of immediate harm; the threatened injury was delayed, usually for hours or days, pending the victim’s failure to act upon the extortionist’s demands.

Applying the above analysis to the instant case, we find that the defendant’s actions fall within that conduct proscribed by the unarmed robbery statute, not the extortion statute. Defendant told the attendant, Hartner, that he would "kick his ass” if he did not put gas in the car. The defendant then gave Hartner a slap on the face and told him that he had a gun and that he hoped he didn’t have to use it. It is clear from this testimony that defendant’s alleged threats were threats of immediate physical injury. Had he in fact beaten Hartner, it would have been there in the gas station, not at any other time. Similarly, had the defendant in fact had a gun and used it, it would have been there in the gas station, not later. Moreover, property was actually taken in the presence of Hartner. These facts are proof of unarmed robbery, not extortion. At no time was any threat made of future physical harm or such threats that would remove this case from the purview of the robbery statute.

Accordingly, we conclude that the evidence is insufficient to sustain the defendant’s conviction for extortion.

We have considered the defendant’s remaining allegations of error and find them without merit. For reasons set forth in People v McCurtis, 84 Mich App 460, 463; 269 NW2d 641 (1978), the case must be reversed and the defendant discharged.

Reversed.