author: Allen, P.J.

text:
    PEOPLE v LYTAL
    Docket No. 78-3013.
    Submitted January 3, 1980, at Lansing.
    Decided March 17, 1980.
    Leave to appeal applied for.
    David Lytal was convicted of four counts of possession with intent to deliver a controlled substance, Saginaw Circuit Court, Gary R. McDonald, J. Defendant appeals. On appeal, defendant raises five issues. 1. Did the court’s ruling, evidence and argument concerning defendant’s prior conviction constitute reversible error? 2. Was the defendant denied a fair trial where the prosecutor examined his own accomplice witnesses regarding their convictions arising out of the present incident and then referred to those convictions in closing argument? 3. Did the trial court err in permitting the prosecutor to introduce as witnesses the unindorsed alleged accomplices of the defendant? 4. Was the trial court’s instruction on the element of intent to deliver inappropriate in the context of the particular facts adduced at trial? 5. Did the trial court err in failing to suppress defendant’s statement to the police where the police failed to notify defendant’s counsel and where the statement allegedly was induced by unkept promises of leniency? Held:

    1. A trial court must exercise its discretion when requested to exclude references to a defendant’s prior conviction record, but the exercise of that discretion need not take place as soon as a motion to suppress is made. Where a defendant chooses to testify whether or not impeachment by evidence of a prior conviction is permitted, there should be no objection to a judicial reservation of the court’s discretionary decision to include or exclude evidence of a prior conviction until after hearing defendant testify. The trial court did not err in reserving its decision concerning the admission of evidence of defendant’s prior conviction or in ruling that evidence of defendant’s prior conviction for intent to deliver a controlled substance was admissible for impeachment purposes because the credibility of a witness may be attacked by proof that material facts are other than as testified to by the witness under attack and evidence of defendant’s conviction tended to show that the material facts regarding his knowledge of the identity of substances was other than as testified to by the defendant on direct examination. Defendant’s claim that it was reversible error for the prosecutor to argue that the defendant’s prior conviction indicated that defendant was acting in conformity with his prior conduct is unpersuasive. The remark standing alone might be seen as improper, but it does not constitute reversible error because any undue prejudicial effect could have been eliminated by a curative instruction, if one had been requested by the defendant upon a timely objection. Furthermore, the prosecutor’s remarks were not objected to and there is no indication of a miscarriage of justice. This precludes appellate review.

      References for Points in Headnotes
    [1,2,5] 29 Am Jur 2d, Evidence § 320 et seq.

    [2-4] 75 Am Jur 2d, Trial § 30.
    [6] 81 Am Jur 2d, Witnesses § 618.
    [7] 4 Am Jur 2d, Appeal and Error § 541.
    [8] 75 Am Jur 2d, Trial § 315 et seq.

    [9,10] 81 Am Jur 2d, Witnesses § 518
    [11,12] 81 Am Jur 2d, Witnesses § 632 et seq.

    [13] 81 Am Jur 2d, Witnesses § 2.
    [14] 81 Am Jur 2d, Witnesses §§ 2, 74.
    [15] 5 Am Jur 2d, Appeal and Error § 891.
    [16] 75 Am Jur 2d, Trial § 575.
    [17] 29 Am Jur 2d, Evidence § 611 et seq.

    [18] 29 Am Jur 2d, Evidence § 611 et seq.

      2. Absent a request by defense counsel, neither the prosecutor nor the trial judge is under an obligation to reveal to the jury information that an accomplice has been granted immunity or other leniency to secure his testimony at trial. Furthermore, evidence of an accomplice’s plea of guilty or conviction following a trial is admissible where such evidence is used merely to restore credibility or to refute that the accomplice witness is not testifying to obtain a break from the prosecutor.
    3. The prosecutor has no obligation to indorse or call accomplice witnesses. His decision to call an unindorsed accomplice as a witness at trial was not improper.
    4. There is no merit to defendant’s challenge to the court’s jury instructions. Defendant made no objection at trial. Failure to object precludes appellate review in the absence of manifest injustice. The record discloses that the trial judge fulfilled his responsibility to see that the case went to the jury in an intelligent manner so that they would have a clear and correct understanding of what it was they were to decide. There is no showing of a miscarriage of justice.
    5. The record supports the trial court’s finding that the statement to a policeman was voluntary. Defendant’s motion to suppress this statement was properly denied. The statement was voluntary and admissible because the accused instigated the contact with the policeman and thereafter made the statement to him in the absence of counsel.
    Affirmed.
    1. Criminal Law — Evidence — Prior Convictions — Impeachment — Discretion.
    Motions to exclude the use of evidence of a defendant’s prior convictions for impeachment are left to the sound discretion of the trial judge and a request to exclude references to a defendant’s prior convictions requires an exercise of the court’s discretion; no existing precedent mandates that the exercise of the court’s discretion must take place as soon as the motion is made.
    2. Criminal Law — Evidence — Prior Convictions — Impeachment — Discretion — Reservation of Discretion.
    A trial judge should immediately exercise his discretion where a party requests him to exclude or include reference to a defendant’s prior conviction for the purpose of impeaching the defendant’s testimony; however, an exception to this rule exists in some instances where there is no need for a discretionary decision until the trial judge can make an intelligent and reasoned appraisal based upon the circumstances as revealed at trial.
    3. Criminal Law — Evidence — Witnesses — Defendant as Witness — Prior Convictions — Impeachment — Discretion — Reservation of Discretion.
    A trial judge may reserve his decision to rule upon the admissibility of evidence of prior convictions until after a defendant’s trial testimony, where the defendant has indicated that he will testify notwithstanding the possibility of an adverse ruling by the trial judge.
    4. Criminal Law — Evidence — Prior Convictions — Impeachment — Discretion — Immediate Decision.
    A trial judge should immediately render his decision on whether or not to admit or exclude evidence of a defendant’s prior convictions where the defendant demands an immediate ruling so that he may better determine whether to take the witness stand in his own behalf; this is so because there may be situations in which the defendant’s very decision to testify may be contingent upon whether or not the trial judge permits impeachment by evidence of prior convictions.
    5. Criminal Law — Evidence — Prior Convictions — Impeachment — Great Care Necessary — Character of Witness.
    Evidence of conviction of a crime is generally admissible for impeachment purposes; however, such evidence should be admitted with great care because it reflects on the character of the witness for truthfulness or mendacity.
    6. Witnesses — Credibility — Variance in Testimony — Proof of Material Facts.
    The credibility of a witness may be attacked by proof that material facts are otherwise than as testified to by the witness under attack.
    7. Appeal — Criminal Law — Argument of Counsel — Preserving Question.
    Appellate review of alleged improprieties in a prosecutor’s remarks is precluded in the absence of objection at trial unless failure to consider the issue would result in a miscarriage of justice.
    8. Criminal Law — Argument of Counsel — Prejudice — Objections — Curative Instructions.
    No error results because of a prosecutor’s allegedly improper remarks where any undue prejudicial effect could have been eliminated by a curative instruction, if one had been requested upon a timely objection, and no such request had been made.
    9. Witnesses — Criminal Law — Prosecutor Deals — Disclosure.
    Upon request by the defendant, the prosecution is under an affirmative duty to disclose any deal made in exchange for a witness’s testimony, especially where the defense does not have specific knowledge of the agreement.
    10. Witnesses — Criminal Law — Accomplices — Coconspirators — Reward for Testimony — Disclosure.
    The grant of immunity or other leniency to an accomplice or coconspirator to secure his testimony makes it incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel; if defense counsel fails to make the necessary request, neither the prosecutor nor the trial judge is under an obligation to reveal to the jury the information that an accomplice has been granted immunity or other leniency to secure his testimony.

      11. Witnesses — Criminal Law — Qualifications — Interest or Bias — Relationship with Accused.
    Proof of anything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness is proper; this includes proof of any fact tending to show the absence of interest or bias which a witness might naturally be supposed to possess; therefore, a party should be given broad leeway to establish the qualifications and background of his witness, including neutralization of a natural inferénce that the witness may be biased or prejudiced because of his relationship with an accused.
    12. Witnesses — Criminal Law — Accomplices — Evidence — Guilty Plea — Conviction — Witness Credibility.
    Generally, an accomplice’s plea of guilty or conviction following a trial is inadmissible as substantial evidence against another person; however, evidence of the prior plea or conviction may be used to restore the witness’s credibility or to refute claims that the witness is testifying to obtain a break from the prosecutor.
    13. Witnesses — Criminal Law — Res Gestae Witnesses — Information — Duty to Call — Accomplices — Indorsement.
    A prosecutor is required to indorse all res gestae witnesses who are known to him at the time of filing an information; however, a prosecutor is under no obligation to indorse an accomplice or participant in the crime even if known to the prosecutor, nor is the prosecutor required to produce or call an accomplice even though indorsed on an information.
    14. Witnesses — Criminal Law — Accomplice Witnesses — Called at Trial — Surprise — Adjournment.
    A prosecutor has no obligation to indorse, produce or call accomplice witnesses; therefore, and because of this trial rule, a trial court may properly allow a prosecutor to call an accomplice witness who has not been indorsed especially where the defendant does not claim surprise or ask for an adjournment to prepare for trial.
    15. Appeal and Error — Instructions to Jury — Failure to Object — Miscarriage of Justice.
    Failure to object to allegedly erroneous jury instructions precludes appellate review of those instructions in the absence of manifest injustice.
    16. Criminal Law — Trial — Jury — Judge’s Discretion.
    A trial judge in a criminal prosecution has the responsibility to see that the case goes to the jury in an intelligent manner so that the jury may have a clear understanding of what it is they are to decide.
    17. Criminal Law — Appeal and Error — Statement to Police — Voluntariness — Findings of Fact — Review.
    A trial court’s findings of fact at a hearing to determine the voluntariness of a defendant’s statement to the police will be upheld on appeal where the findings are amply supported by a record which does not leave the reviewing court with a definite and firm conviction that a mistake has been made.
    18. Criminal Law — Assistance of Counsel — Statement to Police — Voluntariness — Constitutional Law.
    A defendant’s constitutional rights to remain silent and to the assistance of counsel are not violated where the defendant instigates a contact with a policeman and thereafter makes a statement to him in the absence of counsel; the statement is admissible at trial.

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

      Peter Jon Van Hoek, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Allen, P.J.

Defendant appeals from his February, 1978, jury convictions of four counts of possession with intent to deliver a controlled substance contrary to MCL 335.341(1)(b); MSA 18.1070(41)(1)(b). He was sentenced to concurrent prison terms of 4 to 7 years on each of the first two charges and 10 to 20 years on each of the other two charges. Five issues are raised on appeal.

I. Did the ruling, evidence and argument con cerning defendant’s prior conviction constitute reversible error?

At the close of the prosecutor’s case in chief, but prior to commencement of defendant’s case, the prosecution sought permission to impeach defendant’s credibility with evidence of a single 1977 conviction for possession with intent to deliver a controlled substance. Defense counsel objected and requested that evidence of the prior conviction be excluded because of its overwhelming prejudicial effect. In response to the motion, the trial judge, after indicating that the issue was one addressed to his discretion, ruled:

"There is no question in the Court’s mind that there could be prejudicial effect.

"However, I would like to reserve my ruling on this, because I think this depends on the testimony of the defendant, if he takes the stand. I think my — I’m going to reserve ruling until the direct examination has been finished of the defendant, Mr. Lytal, and then at that time, I’ll look at the previous conviction in light of the testimony that has been given to determine whether or not it would be probative value at that time.”

No objection was made by defense counsel to this ruling whereupon, after a short recess, defendant took the stand and testified regarding his lack of knowledge concerning the contents of bottles shown to him by purported accomplices. Following the direct examination of defendant, the prosecutor moved to use evidence of defendant’s prior conviction for impeachment purposes during his cross-examination. Defense counsel again objected to the use of evidence of this conviction on the basis that its prejudicial effect far outweighed any probative value, and that "it is not offered to impeach, but merely to convict him on this charge”. The trial court rejected this contention and permitted the prosecutor to use evidence of the prior conviction for impeachment purposes, ruling:

"There is no question, of course, as any criminal conviction, I think, is prejudicial to a defendant. That, I think, the Court will always accept.

"The question is whether or not the prejudice outweighs the probative value, and in this particular case and after reviewing the direct testimony of the defendant, Mr. Lytal, the Court has determined that there is probative value on this particular conviction, because the defendant has apparently stated that he cannot read or write, and is not familiar with drugs or bottles, or whatever, and has denied that the box — he had any knowledge that the box contained controlled substances when he saw it.

"I think that previous experience of the defendant in another drug, of course, is probative value, and does have probative value for the jury to decide.

"So, the Court will allow the Prosecution to impeach by prior conviction.”

The prosecutor made only one reference to this conviction in his initial question on cross-examination of the defendant.

’’[Prosecutor]: Mr. Lytal, in 1977, were you arrested and subsequently convicted in this Circuit Court for Saginaw County? On February the 14th of 1977, did you plead guilty, and were convicted of the crime of possession with intent to deliver a controlled substance, diazapane.

’’[Defendant]: Yes, I was.”

Defense counsel made reference to this conviction on redirect examination by following up on defendant’s earlier testimony that the reason he did not want anything to do with the illegal drugs possessed by the alleged accomplices was because he "didn’t want to get in no trouble” since he was already on probation from his earlier conviction.

On appeal, defendant raises numerous issues based on the foregoing occurrences which he contends justify reversal.

First, defendant maintains that the trial judge erred in reserving his ruling on the admissibility of evidence of defendant’s prior conviction until after defendant had testified. Defendant argues thus:

"Motions to exclude the use of prior convictions for impeachment are left to the sound discretion of the trial judge. People v Jackson, 391 Mich 323, 336 [217 NW2d 22] (1974); MRE 609(a). When invoked, this discretion must not only be recognized but exercised. People v Jackson, supra; People v Cherry, 393 Mich 261 [224 NW2d 286] (1974). In the instant case Judge McDonald identified the decision to be made but declined to make it until after Defendant testified on direct. He thus effectively refused to exercise his discretion when requested to do so and thereby committed reversible error. People v McCartney, 60 Mich App 620, 624 [231 NW2d 472] (1975); People v Davis, 61 Mich App 220, 224 [232 NW2d 683] (1975) (Maher, J., dissenting).”

In People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975), a panel of this Court ruled that the trial judge erred in stating that "it could not decide this discretionary matter until the defendant had taken the stand and the prosecutor had laid an adequate foundation to question the defendant concerning his prior criminal record”. In reaching this conclusion the Court reasoned that the decisions in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), and People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), holding that a trial judge must exercise his discretion in determining whether to exclude reference to a prior conviction record for impeachment purposes, mandate that the trial court immediately exercise its discretion at the time the request is made by one of the parties. Our reading of those cases does not convince us that this conclusion is properly founded. Both People v Jackson, supra, and People v Farrar, supra, stand for the proposition that the trial court must exercise its discretion when it is requested to exclude references to a defendant’s prior conviction record. Neither case holds that the exercise of that discretion must take place as soon as the motion is made. In fact, the only case in which such a holding has been rendered is People v McCartney, supra.

While it is true that in most instances the trial judge should immediately exercise his discretion when requested by a party to exclude or include reference to a defendant’s prior conviction for the purpose of impeaching the defendant’s testimony, in situations such as the present one, there is no need to do so until the trial judge can make an intelligent and reasoned decision based upon the circumstances as revealed at trial.

In Jackson the Michigan Supreme Court cited with approval the adoption by this Court in Farrar of the guidelines for the exercise of the trial court’s discretion which were explained in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967):

"Among the factors to be considered are the nature of the prior offense, whether it is for substantially the same conduct for which the accused is on trial, and the effect on the decisional process if the accused does not testify from fear of impeachment by prior convictions.” 391 Mich 323, 333.

The Court in People v McCartney, supra, felt that the third factor noted above is violated where the trial court reserves its ruling because the decisional process is affected by the defendant’s resolve not to testify from fear of possible impeachment by the prior convictions sought to be suppressed. This factor is of no concern where, as in the case at bar, the defendant takes the stand and is able to present his defense and "tell his side of the story”. Naturally, where a defendant chooses to testify whether or not impeachment by evidence of a prior conviction is permitted, it cannot be said that the decisional process is adversely affected by the judge’s reservation. Rather, if anything, the trial judge’s withheld decision in this situation permits the judge to more carefully consider the impact which the admissibility of the evidence of a prior conviction will have on the purpose for which it is admitted, i.e., impeaching defendant’s testimony. In short, once the defendant has indicated that he will testify, notwithstanding the possibility of an adverse ruling by the trial judge, the judge is then put in a better position to "consider the nature of the prior offense” as it relates to defendant’s credibility and the impeachment of his testimony.

In so ruling, however, it must be emphasized that if the defendant demands an immediate ruling so that he may better determine whether to take the witness stand in his own behalf, the trial judge should immediately render his decision. This is because there may be situations in which the defendant’s very decision to testify may be contingent upon whether or not the trial judge permits impeachment by prior conviction. However, where, as here, the defendant fails to object to the trial judge’s decision to reserve his ruling and then proceeds to testify in his own behalf, it cannot be said that the trial judge erred in refusing to exercise his discretion promptly. Consequently, this case is distinguishable from People v McCartney, supra, because there the defendant failed to take the stand out of fear that the trial judge would return with an adverse ruling to his request to suppress evidence of his prior convictions. In contrast, in the instant case, the defendant took the stand and fully testified without objecting to the trial court’s reservation of the parties’ motion to suppress. A review of the record gives us the firm impression that the defendant would have testified, as he did, regardless of the trial court’s decision.

Did the trial court abuse its discretion in ruling that evidence of defendant’s prior conviction for possession with intent to deliver a controlled substance was admissible for impeachment purposes? The decision to allow impeachment by evidence of a prior conviction was within the discretion of the trial court, MCL 600.2159; MSA 27A.2159, People v Jackson, supra.

"Although evidence of similar prior convictions should be admitted with great care, People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), People v Green, 86 Mich App 142; 272 NW2d 216 (1978), similarity does not per se bar every impeachment by evidence of a prior similar conviction, People v Cash, 80 Mich App 623; 264 NW2d 78 (1978), People v Townsend, 60 Mich App 204; 230 NW2d 378 (1975). Furthermore, a prior conviction need not be specifically in the area of dishonesty, as fraud or embezzlement, for evidence of it to be admissible for impeachment. People v Cash, supra, People v Payne, 27 Mich App 133; 183 NW2d 371 (1970).” People v Hughes, 93 Mich App 333; 287 NW2d 226 (1979).

Impeachment by evidence of conviction of a crime is generally admissible, subject to some rigorous qualifications, because it reflects on the character of the witness for truthfulness or mendacity. See McCormick, Evidence (2d ed), §§ 41, 43, pp 81, 84. Another way of attacking the credibility of a witness is by proof that material facts are otherwise than as testified to by the witness under attack. Id., § 33, p 66. In the case at bar the trial court admitted evidence of defendant’s prior conviction because it tended to show that the material facts regarding his knowledge of the identity of substances in the instant case were otherwise than as testified to by defendant on direct examination. That is, to the extent that defendant testified that he did not know that the substances shown to him by alleged accomplices were illegal narcotics, then evidence that defendant was familiar with controlled substances tended to discredit or impeach his testimony. Therefore, we cannot conclude that the trial court abused its discretion in admitting such evidence for impeachment purposes. People v Worden, 91 Mich App 666, 675; 284 NW2d 159 (1979).

The prosecutor, in closing argument, referred to the defendant’s prior conviction five separate times. On four occasions, the prosecutor argued that the prior conviction was probative of the defendant’s credibility and also of the defendant’s knowledge and intent concerning the illegal nature of the drugs which he allegedly possessed. On the fifth occasion, the prosecutor argued that the prior conviction was evidence that the defendant was simply continuing on a previous course of conduct. Defense counsel did not object to any of these arguments. In fact, during his closing argument, defense counsel argued that the defendant’s mere plea of guilty to the prior offense could not be construed as evidence that defendant knew and was aware of the contents of the controlled substances in the instant case.

The trial court, in its instructions to the jury, stated:

"There is evidence that the Defendant has a prior criminal conviction which has been alluded to. This evidence is to be considered by you only insofar as it may affect the Defendant’s credibility, believability, as a witness. It is not to be considered by you as evidence of his guilt of this crime.”

On appeal, defendant claims that it was reversible error for the prosecutor to argue that the defendant’s prior conviction indicated that defendant was acting in conformity with his prior conduct.

Since the remarks of the prosecutor were not objected to, appellate review is foreclosed unless the failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), People v Alcala, 396 Mich 99; 237 NW2d 475 (1976). Such is not the case here. The prosecutor incorrectly argued that the defendant’s prior conviction could be considered as substantive evidence of defendant’s lack of knowledge of the identity of the substances in the instant case. Evidence of defendant’s prior conviction had not been introduced at trial under the so-called "similar acts” statute and, thus, it could not be considered as substantive evidence of his intent or knowledge in the instant case. MCL 768.27; MSA 28.1050. However, at the very beginning of his argument to the jury, the prosecutor informed the jury of the limited use of this evidence, i.e., that it could be used to discredit defendant’s direct testimony that he did not know that the contents of various bottles contained illegal narcotics. In addition, the trial judge specifically charged the jury that evidence of the defendant’s prior conviction could be considered by them only as bearing on the believability of his testimony. This should have been sufficient to inform the jury of the limited nature for which the evidence could be considered.

The same rationale applies to the prosecutor’s argument concerning evidence of defendant’s prior conviction as evidence of his acting in conformity therewith in the instant occasion. Although if standing alone this remark could be seen as improper, it does not constitute reversible error in this case because any undue prejudicial effect could have been eliminated by a curative instruction if one had been requested upon a timely objection. People v Duncan, supra, at 16-17, People v Hall, 396 Mich 650, 655; 242 NW2d 377 (1976), People v Walker, 93 Mich App 189; 285 NW2d 812 (1979).

II. Was the defendant denied a fair trial where the prosecutor examined his own accomplice wit nesses regarding their convictions arising out of the present incident, and then referred to those convictions in closing argument?

On appeal, defendant claims that he was prejudiced by the prosecutor’s examination of defendant’s alleged accomplices, as witnesses for the prosecution, regarding their convictions and punishment arising out of the present incident. Defendant notes that the testimony was not elicited for the purposes of impeaching the witness or to fulfill any prosecution duty to reveal promises made in exchange for the testimony of its witnesses, as required by People v Atkins, 397 Mich 163; 243 NW2d 292 (1976), and People v Nettles, 41 Mich App 215; 199 NW2d 845 (1972). On the contrary, defendant observes, the prosecutor was seeking to bolster the credibility of his witnesses by showing that there were no deals made for their testimony, and that to do this the prosecutor needed to show that both Diaz and Tackleberry had been convicted and sentenced. This allegedly constitutes error on authority of People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), People v Eldridge, 17 Mich App 306; 169 NW2d 497 (1969), People v Crawl, 401 Mich 1, 33; 257 NW2d 86 (1977) (Levin, J., dissenting), and People v Brown, 44 Mich App 402; 205 NW2d 207 (1973).

The prosecutor responds that the purpose for eliciting this testimony was to rebut the natural inference that a "deal” was made between the prosecutor and the witnesses in order to obtain their favorable testimony at trial. In addition, the prosecutor contends that not only did defendant fail to object to this testimony but defense counsel pursued this line of questioning on cross-examination.

By now it is clear that the prosecution is under a duty to disclose any deal made in exchange for a witness’s testimony where the defense does not have specific knowledge of the agreement. People v Atkins, supra, People v Nettles, supra, People v Evans, 30 Mich App 361; 186 NW2d 365 (1971), People v Love, 43 Mich App 608, 613; 204 NW2d 714 (1972), People v Mata (On Remand), 80 Mich App 204; 263 NW2d 332 (1977), People v Tillman, 85 Mich App 425; 271 NW2d 261 (1978), rev’d on other grounds 406 Mich 898 (1979), People v Dietrich, 87 Mich App 116; 274 NW2d 472 (1978). Defense demand triggers the prosecutor’s duty to disclose information to the jury, unless false information is given, in which case the prosecutor’s duty is triggered, notwithstanding the lack of a request by the defense. People v Tillman, supra, at 432-433, People v Mata (On Remand), supra.

"Where an accomplice or co-conspirator has been granted immunity or other leniency to secure his testimony, it is incumbent upon the prosecutor and the trial judge, if the fact comes to the court’s attention, to disclose such fact to the jury upon request of defense counsel.” People v Atkins, supra, at 173 (Emphasis added.)

Thus, absent a request by defense counsel, neither the prosecutor nor the trial judge is under an obligation to reveal to the jury information that an accomplice has been granted immunity or other leniency to secure his testimony in the instant trial.

The issue presented, however, is more complex and of first impression. It raises the question of whether, absent such a request by the defense, the prosecutor is permitted to anticipate a cross-examination by defense counsel of alleged accomplice witnesses for the prosecution on the matter of a prior deal with the prosecutor in exchange for their testimony and thereby raise the issue on direct examination. We conclude that the prosecutor did not prejudice the defendant’s cause by doing so in this case.

Initially we note that the purpose of the prosecutor’s presently challenged examination of the two accomplice witnesses was to bolster their credibility by illustrating to the jury that they had nothing to gain in testifying as prosecution witnesses against the defendant. Since the granting of immunity or the promise of leniency to an accomplice creates a situation in which the probability of false swearing or bias against the defendant is heightened, it follows that the accomplice witnesses’ testimony is subject to serious impeachment if such an arrangement exists. 3A Wigmore, Evidence (Chadbourn Rev), § 967, p 814. In light of this probability, the prosecutor no doubt calculated that the best trial strategy was to expose or to nullify this possibly discrediting evidence at the outset. The issue then is whether the use of this trial strategy unduly affected defendant’s right to a fair trial.

Generally, absent an attack upon the credibility of a witness no sustaining evidence is allowed. McCormick, Evidence (2d ed), § 49, p 102. However, in calling a witness to testify, a party may prove any fact tending to show the absence of interest or bias which a witness might naturally be supposed to possess. Thus, for the purpose of setting the scene and establishing the foundational factors by which a witness is competent to testify, a party should be given broad leeway to establish the qualifications and background of his witness, including neutralization of a natural inference that the witness may be biased or prejudiced because of his relationship with the accused. See e.g., 88 CJS, Trial, § 99, p 211. Although a witness’s character for veracity is presumed, 98 CJS, Witnesses, § 459, p 323, Wigmore, Evidence (Chadbourn Rev), § 1104, p 233, as a general rule,

"Anything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness, including the surrounding facts and circumstances, is proper to be shown and considered in determining the credit to be accorded his testimony.” 98 CJS, Witnesses, § 460, p 323-324.

Therefore, the prosecutor did not behave inappropriately by seeking to establish that the two accomplice witnesses, called by the state to testify against the defendant, were not interested in slanting their testimony in favor of the state due to a possible arrangement between the prosecutor’s office and the witnesses.

In so ruling we are not unmindful of the decisions reached in People v Brocato, supra, People v Eldridge, supra, and People v Brown, supra. However, the situation in the instant case is clearly distinguishable from those presented in the foregoing cases. In considering the same issue in People v Crawl, supra, a panel of this Court held:

"It is recognized that a codefendant’s or accomplice’s guilty plea cannot be employed as substantive evidence of the accused’s guilt. People v Brocato, 17 Mich App 277 [169 NW2d 483] (1969); People v Eldridge, 17 Mich App 306 [169 NW2d 497] (1969). However, the purpose of eliciting testimony regarding the witness’s guilty plea here was not to establish defendant’s guilt, but rather to establish that the witness was not testifying to obtain a 'break’ from the prosecutor. * * * Clearly, the prosecutor’s primary objective here was not to use the witness’s guilty plea as substantive evidence of the guilt of the accused, but rather to restore the witness’s credibility, which had been assaulted by defense counsel.” 47 Mich App 749, 752; 209 NW2d 809 (1973).

The issue was appealed to the Michigan Supreme Court, which, in a 4-3 decision, concluded that the issue did not "warrant a complete reversal and the granting of a new trial”. 401 Mich 1, 15, 17; 257 NW2d 86 (1977). Accordingly, the long-established common-law rule that an accomplice’s plea of guilty or conviction following a trial is not admissible against another person is inapplicable where it is used merely to restore or to refute that the witness is not testifying to obtain a "break” from the prosecutor.

Likewise, we find without merit defendant’s challenge to the adequacy of the trial court’s instruction concerning the closing arguments by the prosecutor based upon the challenged testimony. People v Watson, 307 Mich 596, 605; 12 NW2d 476 (1943), cert den, 323 US 749; 65 S Ct 81; 89 L Ed 600 (1944), reh den 323 US 815; 65 S Ct 127; 89 L Ed 648 (1944), People v Willie Smith, 43 Mich App 562, 564-565; 204 NW2d 555 (1972).

III. Did the trial court err in permitting the prosecutor to introduce as witnesses the unindorsed alleged accomplices of defendant?

During the trial, defense counsel objected to the prosecution’s offering Mr. Diaz as a witness since he had not been indorsed as one of the people’s witnesses on the information. After concluding that Diaz was charged with an offense arising out of the transaction at issue in the present trial, and thus was an "accomplice”, the trial court decided that it was not necessary for the prosecution to indorse him prior to his testifying. Later in the trial, the prosecutor indicated that defense counsel had asked him to have Tackleberry (also unindorsed) present at the trial, and the prosecutor indicated that he might use Tackleberry as a prosecution witness. Diaz and Tackleberry ultimately testified as prosecution witnesses.

The issue presented is also one of first impression and requires us to determine if the prosecution is precluded from calling as its own witness an accomplice who is not otherwise indorsed.

MCL 767.40; MSA 28.980 requires the prosecutor to indorse all res gestae witnesses who are known to the prosecutor at the time of filing the information. People v Castelli, 370 Mich 147; 121 NW2d 438 (1963), People v Abrego, 72 Mich App 176; 249 NW2d 345 (1976), People v Johnson, 65 Mich App 290; 237 NW2d 295 (1975), People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973).

One well-recognized exception to this rule is that the prosecution is under no obligation to indorse an accomplice or participant in the crime, even if known to the prosecution prior to or at trial. People v Raider, 256 Mich 131; 239 NW 387 (1931), People v Lyle Brown, 37 Mich App 25; 194 NW2d 450 (1971), People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), lv den 390 Mich 803 (1973), People v Threlkeld, 47 Mich App 691; 209 NW2d 852 (1973), People v Penn, 70 Mich App 638; 247 NW2d 575 (1976). Nor is the prosecution required to produce or call an accomplice even though indorsed on the information. People v Potts, 55 Mich App 622, 626-627; 223 NW2d 96 (1974), lv den 396 Mich 826 (1976), People v Resh, 107 Mich 251; 65 NW 99 (1895). But, is the converse true: can the prosecutor call an accomplice witness even though not indorsed on the information?

In People v Thomas, 49 Mich App 682; 212 NW2d 728 (1973), the defendant-appellant alleged that the trial court erred in granting the prosecution’s motion to indorse an alleged accomplice, Mr. Smith, after the jury had been impaneled. This Court disagreed, ruling:

"This claim of error is entirely vitiated by the well settled rule that the people need not indorse accomplices as res gestae witnesses. People v Henderson, 47 Mich App 53; 209 NW2d 326 (1973); People v Peck, 39 Mich App 150; 197 NW2d 346 (1972). Since the prosecutor had no duty to indorse Mr. Smith as a res gestae witness, error cannot be predicated upon his late, albeit unnecessary, motion to do so.” 49 Mich App at 686-687.

Though the better rule would have the prosecutor indorse all witnesses that he anticipates calling at trial, with the understanding that he need not call any indorsed accomplices, People v Potts, supra, People v Resh, supra, we find the rationale used by this Court in People v Thomas, supra, to be applicable here; since the prosecutor has no obligation to indorse, produce or call an accomplice witness, his decision to do so at trial cannot be deemed improper.

We might be inclined to rule differently had defendant claimed surprise and asked for an adjournment, claiming he had not had time to prepare for trial. People v Koukol, 262 Mich 529, 530; 247 NW 738; 87 ALR 878 (1933), People v Wilson, 397 Mich 76; 243 NW2d 257 (1976), reh den 397 Mich 962 (1976). Defendant did not ask for time to interview the witnesses, nor did he ask for a continuance as was required in People v Koukol, supra. Therefore, we conclude that the trial court did not err in permitting the defendant’s accomplices to testify in the prosecution’s case in chief, notwithstanding that they were unindorsed witnesses. People v Southern, 306 Mich 324, 327; 10 NW2d 901 (1943). "The failure to move for a continuance is strongly indicative of a lack of prejudice.” People v Martin, 44 Mich App 254, 257; 205 NW2d 96 (1972).

IV. Was the trial court’s instruction on the element of "intent to deliver” inappropriate in the context of the particular facts adduced at trial?

Defendant next contends that the trial court’s instructions to the jury on the element of "intent to deliver” were inappropriate in the context of the particular facts adduced at trial because they permitted the jury to convict defendant on the impermissible theory that the transfer of controlled substances to an alleged accomplice for any reason constituted sufficient proof of possession with the intent to deliver.

In defining the element of "delivery” to the jury at the close of the case, the trial judge, relying on CJI 12:2:03(1), stated:

"Delivery means that the Defendant transferred or attempted to transfer this substance to another person knowing that this substance was in fact morphine or apo-morphine or pentobarbital or thiopental and intending to so deliver it to another person. That is what delivery means.”

No objection was proffered to this instruction, hence appellate review is foreclosed unless manifest injustice resulted. People v Dixon, 84 Mich App 675, 685; 270 NW2d 488 (1978), lv den 405 Mich 837 (1979).

Defendant contends that the foregoing instruction, while it would be proper under normal cirucmstances, was inappropriately relied on in the present case since the transfer was made between parties to the crime, and was not made by defendant to a consumer. In support of his contention, defendant relies on United States v Swiderski, 548 F2d 445 (CA 2, 1977). There the issue was whether joint purchasers and users of a controlled substance could be found guilty of possession with intent to distribute if the transfer was made between them for their own use, with no intent to distribute the narcotics to outside parties.

The facts offered at the trial in the present case are materially different from those relied on by the court in Swiderski. Here, defendant and his accomplice, Diaz, did not simultaneously acquire possession of the narcotics at the outset. In addition, there was evidence that Diaz took possession of the narcotics in order to distribute them commercially, not merely for use among his friends. Other evidence indicated defendant’s involvement in the chain of distribution: Tackleberry testified that the defendant and another alleged accomplice urged him to sell the narcotics; and evidence of defendant’s transfer of the drugs to the Diaz residence showed facilitation of their safekeeping for subsequent distribution.

Absent an objection or submission of an alternate instruction, we conclude that the trial judge fulfilled his responsibility to see that the case went to the jury in an intelligent manner so that they had a clear and correct understanding of what it was they were to decide. People v Townes, 391 Mich 578, 587; 218 NW2d 136 (1974). The trial court’s instruction that the transfer of the controlled substances to another person (Diaz) constituted a delivery was not erroneous.

V. Did the trial court err in failing to suppress defendant’s statement to the police, where the police failed to notify defendant’s counsel, and where the statement allegedly was induced by unkept promises of leniency?

Prior to trial defendant sought suppression of a statement made to a Detective Fowler while in police custody. The statement was made on October 7, 1977. About two weeks earlier, defense counsel was appointed to represent defendant in the matter. On January 30, 1978, a hearing was held pursuant to People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), to determine whether the statement would be admissible at trial. At the close of the hearing the trial judge denied defendant’s motion to suppress the statement and subsequently allowed it to be introduced at defendant’s trial. On appeal, defendant claims that the trial judge’s ruling was erroneous on two grounds.

First, defendant contends that his statement to Detective Fowler was given in exchange for a promise of leniency and therefore the statement was rendered involuntary and inadmissible. People v Pallister, 14 Mich App 139; 165 NW2d 319 (1968). The trial judge resolved a direct conflict in the testimony against the defendant and our review of the Walker hearing does not leave us with a firm and definite conviction that a mistake was committed. People v Coppernol, 59 Mich App 745, 751; 229 NW2d 913 (1975), lv den 398 Mich 803 (1976).

Second, defendant argues that it was impermissible for the police to take a statement from him in the absence of counsel, notwithstanding that defendant was given the Miranda warnings prior to the interview. In this regard the trial judge noted that it was unethical for Detective Fowler to pursue and interview the accused when he had reason to suspect that the man had a lawyer. However, the trial court found that since the defendant instigated the contact by requesting his probation officer to inform Fowler that defendant would like to speak to him, the judge concluded this to be an extenuating circumstance, not tainting an otherwise voluntary confession. This conclusion is in accord with the law in this state. People v Donald Williams, 2 Mich App 91, 94-95; 138 NW2d 498 (1965), People v Daniels, 2 Mich App 395, 398-399; 140 NW2d 541 (1966), lv den 378 Mich 721 (1966), People v Jordan, 34 Mich App 360, 367-369; 191 NW2d 58 (1971), lv den 386 Mich 776 (1971), cert den 406 US 908; 92 S Ct 1616; 31 L Ed 2d 818 (1972), People v Patterson, 39 Mich App 467, 471; 198 NW2d 175 (1972), lv den 387 Mich 795 (1972), People v Moore, 51 Mich App 48, 50-51; 214 NW2d 548 (1974), People v Ernest Green, 74 Mich App 351, 355; 253 NW2d 763 (1977), aff'd on other grounds, 405 Mich 273; 274 NW2d 448 (1979).

None of defendant’s claims of error justify reversal.

Affirmed.

       The recent decision of this Court in People v Evans, 96 Mich App 55; 292 NW2d 162 (1980), follows the reasoning of People v McCartney, supra, but, like McCartney, is distinguishable from the instant case for the reasons, inter alia, stated in the text of this opinion.

       In such a case the trial judge, if he feels that it is necessary to know the gist of the defendant’s case or the substance of his testimony in order to properly exercise his discretion in the matter, should conduct a hearing, outside the presence of the jury.

       In so holding we urge the trial judge to use extreme caution in admitting evidence of prior convictions for impeachment purposes where, as in the instant case, the prior conviction and the instant charges are similar. The normal rule in such an instance is to consider the similarity as a factor weighing heavily against admissibility. People v Baldwin, supra, People v Green, supra. However, since in the case at bar the defendant’s prior conviction is offered as evidence of a fact disputing a material portion of the defendant’s testimony, it impeaches the direct testimony of the defendant and does not merely suggest to the jury that "if he did it before he probably did so this time”. Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967).

       Defendant’s alleged accomplices, Diaz and Tackleberry, gave testimony as witnesses for the prosecution. On direct examination by the prosecutor, Diaz testified that in regard to the present incident, he had pled guilty to possession with intent to deliver, and was awaiting sentence. Diaz was asked whether, when he pled guilty, it was part of his plea bargain that he had to testify against defendant. Diaz replied that it was not. Tackleberry was also questioned on direct examination in regard to the present incident. Tackleberry testified that he was prosecuted and convicted of possessing a controlled substance and larceny in juvenile court. In reply to the prosecutor’s question, Tackleberry stated that he had been placed on probation and had been incarcerated for some time. Tackleberry was asked by the prosecutor whether, when he pled guilty to these charges and was sentenced, any prosecutor had talked to him about testifying against defendant. Tackleberry replied that no agreement had been made to the effect that he would have to testify against defendant.

       In addition, even the dissenting Justices in People v Crawl, lead by Justice Levin, concluded that the rebuttal by the prosecutor that its chief witness, an accomplice of defendant, had no personal motive for assisting the police and testifying against the defendant, was permissible under the circumstances, so long as the jury is "fully and accurately informed” of any arrangement between the witness and the prosecutor or police.

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).


source: Caselaw Access Project

author: M. J. Kelly, P.J.

license: Public Domain

text:
    STAMBAUGH v CHRYSLER CORPORATION
    Docket No. 78-3376.
    Submitted January 15, 1980, at Detroit.
    Decided March 17, 1980.
    Leave to appeal applied for.
    Plaintiffs, James and Muriel Stambaugh, brought a negligence action against Chrysler Corporation and Myr Sheetmetal Company claiming damages as a result of injuries sustained by plaintiff James Stambaugh when he fell from a catwalk at a Chrysler plant. Myr Sheetmetal Company, general contractor for the installation job on which plaintiff James Stambaugh was working at the time of his fall, impleaded Stambaugh’s employer, Hoyt, Brum and Link, a subcontractor, and J. A. Fredman, Inc., the subcontractor responsible for construction of the catwalk. At trial in Oakland Circuit Court, Frederick C. Ziem, J., evidence was admitted relative to an alternate safer route which plaintiff could have used at the time of his fall from the catwalk. The jury was instructed that they should return a verdict for defendants if they found plaintiff James Stambaugh was contributorily negligent. The jury returned a verdict of $8,000 in favor of plaintiffs against defendant Myr Sheetmetal Company only and found no cause for action on Myr’s cross-claims against the two subcontractors. Plaintiffs’ motion for a new trial was denied. Plaintiffs appeal. Myr Sheetmetal Company cross-appeals. Held:

    1. It was error for the trial court to instruct the jury that they could find in favor of defendants if they found that plaintiff James Stambaugh was contributorily negligent. Since plaintiffs’ claim was based upon a failure to provide adequate safety devices at a work site, the defense of contributory negligence was not available to defendants. Accordingly, instructing on contributory negligence was improper.
    2. The evidence of the existence of an alternate route which was safer than the catwalk route taken by plaintiff James Stambaugh at the time of his fall should not have been admitted. Since the catwalk in question was used by many workers from various trades performing a variety of tasks, that catwalk was a common work area which the general contractor was duty-bound to equip with adequate safety devices. Evidence of the existence of a safer route and evidence of plaintiffs knowledge of the existence of such alternate route was, therefore, irrelevant to the question of whether defendant Myr Sheetmetal satisfied its obligation to provide a safe work environment, and such evidence, accordingly, should not have been admitted.

      References for Points in Headnotes
    [1,2] 53 Am Jur 2d, Master and Servant §§ 121, 122.
    Am Jur 2d, New Topic Service Occupational Safety and Health Acts, § 34.
    [3] 4 Am Jur 2d, Appeal and Error § 184.
    Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages rendered. 29 ALR2d 1199.
    [4] 73 Am Jur 2d, Summary Judgment § 26 et seq.

      3. The errors resulting in the improper admission of evidence and from the improper instructions to the jury are not harmless errors merely because the jury returned a verdict in favor of plaintiffs. These errors, coupled with the possibility that a grossly inadequate award of damages resulted from a compromise verdict by the jury flowing from consideration of those instructions. and that evidence requires reversal and remand for a new trial. Because of the better perspective of the evidence which the trial court has, the question of whether the retrial shall be a retrial of the matter in toto or merely a retrial on the issue of damages is left to the discretion of the trial court.
    Reversed and remanded.
    1. Appeal and Error — Jury Instructions — Contributory Negligence — Safety Devices — Injured Workmen.
    It is error to instruct a jury on contributory negligence with respect to a claim for injuries to a workman which alleges a failure to provide an adequate safety device at a work site, since contributory negligence by the workman is not a defense to a claim based upon a failure to maintain adequate safety devices.
    2. Appeal and Error — Evidence — Safe Work Areas — Alternative Routes — Common Work Areas — Duty to Maintain Common Work Areas.
    It is error to admit evidence of an alternative safer route in a trial on a claim based upon a failure to provide a safe work area where the proofs establish that the route used by the injured workman was a common work area, since the evidence of the alternative route is irrelevant to the question of whether the general contractor satisfied its obligation to safely maintain a common work area..

      3. Appeal and Error — New Trial — Trial Court — Damages.
    The Court of Appeals will leave to the trial court the determination of whether to have a new trial in toto or a new trial on the issue of damages where the Court of Appeals finds that the amount of damages may not have been adequate due to improper instructions relative to contributory negligence and improper admission of evidence.
    4. Judgments — Summary Judgment — Question of Fact.
    Summary judgment is properly denied where the question is one of fact which is properly a question for the trier of fact.

      Beier, Howlett, McConnell, Googasian & Mc-Cann, for plaintiffs.

      Kitch, Suhrheinrich, Smith, Saurbier & Drutchas, P.C. (by Jeremiah J. Kenney), for Chrysler Corporation.

      Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C., for Myr Sheetmetal Company.

      Jack Erps (by Sandra Prokopp), for J. A. Fred-man, Inc.

      Joselyn, Rowe, Jamieson & Grinnan, P.C. (by William G. Jamieson and Barry M. Feldman), for Hoyt, Brumm and Link.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   M. J. Kelly, P.J.

Plaintiffs, James and Muriel Stambaugh, brought a negligence action against Chrysler Corporation and Myr Sheetmetal Company (Myr) claiming damages as a result of injuries sustained by plaintiff James Stambaugh (hereinafter plaintiff), a 59-year old pipefitter, when he fell from a catwalk at the Chrysler Dodge Truck Plant in Warren, Michigan on November 30, 1973. Myr was the general contractor hired by Chrysler for the installation of paint drying equipment. Based upon an indemnification agreement, Myr impleaded third-party defendant Hoyt, Brum and Link, the subcontractor which employed James Stambaugh. Myr also impleaded J. A. Fredman, Inc., the subcontractor responsible for construction of the catwalk, claiming a right to contribution. In the principal action a jury verdict was returned in favor of plaintiffs and against Myr only in the amount of $8,000. The jury also returned a verdict of no cause of action against Myr and in favor of third-party defendants Hoyt, Brum, and Link and J. A. Fredman, Inc. Plaintiffs’ motion for a new trial was denied without opinion. Plaintiffs appeal as of right, and Myr has filed a cross-appeal.

Mr. Stambaugh was working as a pipefitter at the time the accident occurred. After removing a section of pipe from the pipe machine, he knelt and fell from the catwalk, which was not equipped with guardrails. Myr raised contributory negligence as a defense asserting that alternative, safer routes of transporting the pipe were available and known to plaintiff. Mr. Stambaugh’s foreman, Cyril Kruger, testified that plaintiff had complained about the lack of guardrails and that he, Kruger, had directed plaintiff where to work on the morning of the accident.

The depositions of three physicians were admitted into evidence and read to the jury. Dr. Stanco Stanisavljevic, an orthopedic surgeon, examined the plaintiff after the accident and diagnosed two fractured vertebrae, multiple broken teeth, and facial abrasions. Severe back pain necessitated two subsequent hospitalizations, and plaintiff has not returned to work since November 24, 1975. In Dr. Stanisavljevic’s opinion, plaintiff will require future medical treatment. William F. Veling, M.D., an occupational medicine specialist, testified by deposition that all injuries sustained by Stambaugh could be the result of the fall. In his opinion, Stambaugh is completely and permanently disabled. Dr. William Salot testified by deposition that plaintiffs back problems may be partially attributed to a congenital swayback tendency and degenerative arthritis. Dr. Salot opined that any continuing disability is related to these conditions, whereas Dr. Stanisavljevic testified that plaintiffs continuing problems could have been aggravated by the accident and trauma to the spine. At trial, plaintiffs introduced evidence of medical expenses, including hospital and physician fees, oral surgery costs and orthopedic appliances, in the amount of $5,138. Plaintiffs further claimed $197,680 in lost wages. Defendants denied liability, damages and the characterization of plaintiffs disability as being total and permanent.

In its charge to the jury, the trial court gave the following instructions concerning negligence and the defense of contributory negligence:

"The law places ultimate responsibility for job safety in common work areas on the general contractor.

"If you find that the general contractor, Myr Sheet Metal Company, failed in its duty to implement the necessary precautions and provide the necessary safety equipment in the area where the Plaintiff was working, and if you find such to be a common work area, then Myr Sheet Metal Company is liable for all damages suffered by the Plaintiff proximately resulting from said failure, unless you find Plaintiff was contributorily negligent.

"In this case, it was the duty of Myr Sheet Metal Company to provide proper supervision and inspection as was necessary, and to stop work or order changes if it saw, through its agents or employees, an obviously dangerous situation to exist.

"It was the duty of Myr Sheet Metal Company to provide adequate safety precautions to protect the Plaintiff from harm.

"The scope of the general contractor’s responsibility will often depend on the nature of the risk and of the precaution or safeguard claimed to have been needed.

"Designation of Myr Sheet Metal as general contractor is not alone determinative of the issue of control and responsibility.

"If you find that Plaintiff unnecessarily exposed himself to risks by choosing a hazardous work area over a safe work area you may find the Plaintiff guilty of contributory negligence.

"Your verdict as to the Plaintiff’s claim, will be for the Plaintiff, if the Plaintiff, Mr. Stambaugh, was injured, the Defendant was negligent — this will apply to each of the Defendants — that the Defendant was negligent, and that the Defendant’s negligence was a proximate cause of the Plaintiff’s injuries and damages; unless Plaintiff, Mr. Stambaugh, himself, was negligent and such negligence proximately contributed to his injury and damages.

"Your verdict will be for the Defendants, this will apply to each of the Defendants, separately, if the Plaintiff was not injured, or damaged, or if that Defendant was not negligent, or if negligent, such negligence was not a proximate cause of the Plaintiff’s injuries or damages, or if the Plaintiff, himself, was negligent and such negligence was a proximate contributing cause of his injuries and damages.”

We agree with plaintiff that the trial court erred in instructing the jury that a finding of contributory negligence bars recovery. Contributory negligence is not an available defense when defendants have failed to provide an adequate safety device. Tulkku v Mackworth Rees Division of Avon Industries, Inc, 406 Mich 615; 281 NW2d 291 (1979). In accordance with the Supreme Court’s decision in Tulkku, the jury should have been instructed to consider whether defendant met its obligation to provide an adequate safety device and that failure to perform that duty, if such failure was a proximate cause of plaintiff’s injuries, precludes any consideration of contributory negligence as a defense.

Plaintiffs also claim error in the trial court’s decision to admit evidence of an alternate, safer route for transporting pipes which was known to plaintiff at the time the accident occurred. The catwalk on which plaintiff was working was utilized by many workers from various trades performing a wide variety of tasks. The walkway therefore falls within the definition of a common work area which Myr, as the general contractor, was duty-bound to equip with adequate safety precautions. Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). The existence of other safe work areas within the plant was irrelevant to the jury’s determination of whether defendant satisfied this obligation and should not have been admitted. MRE 401 and 402.

The discussion and disposition of the above issues is integrally related to plaintiff’s argument that the jury’s award is grossly inadequate. Defendants submit that any instructional error regarding contributory negligence was harmless because the jury returned a verdict in favor of plaintiff. Juries, however, are not always logical. Juries are known to return compromise verdicts, and it is difficult to measure the influence of the instructional error and erroneously admitted evidence on their deliberations. It is quite possible that the jury considered some degree of contributory negligence as a rationale for a limited award, covering only current and estimated future medical expenses, rather than turning plaintiffs away completely. This hypothesis is supported by the fact that the jury requested reinstruction on the contributory negligence defense. Therefore, we believe the case must be either remanded for a trial limited to the issue of damages or be retried in toto. The verdict apparently indicates a jury finding that defendants failed to provide adequate safety equipment in the common work area where plaintiff was injured. Plaintiffs are thus entitled to have the jury determine fair compensation for each of the elements of damage free of any improper consideration of contributory negligence. We take the perhaps innovative step of leaving to the learned trial judge, who has a better perspective on the credibility of the witnesses and the weight of the evidence, the choice of determining whether to retry the matter in toto or to have a trial on damages only. This is particularly appropriate because, in the trial court’s ruling on the motion for new trial, no specifics were given as to the trial court’s view of the question of the inadequacy of the damages.

We find the other issues raised by plaintiff non-meritorious, noting in particular the correctness of the court’s refusal to grant summary judgment against defendant Chrysler Corporation. The degree of retained control over the project, if any, which might subject Chrysler to liability for inadequate safety measures, was a question for the trier of fact. Funk, supra, Erickson v Pure Oil Corp, 72 Mich App 330; 249 NW2d 411 (1976), lv den 400 Mich 859 (1977).

The issues raised by third-party plaintiff Myr Sheetmetal Company are controlled by Darin & Armstrong, Inc v Ben Agree Co, 88 Mich App 128, 136; 276 NW2d 869 (1979), and Funk, supra, 104. The jury’s verdict in favor of Hoyt, Brum and Link, J. A. Fredman, Inc. and Chrysler Corporation is affirmed.

The verdict in favor of the plaintiffs and against defendant Myr Sheetmetal Company is set aside and the cause is remanded to the trial court for retrial, either solely on the issue of damages or, in the exercise of its discretion, as to both liability and damages, if that court is persuaded that retrial on the liability issue is necessary. No costs are awarded between plaintiff-appellants and defendant-appellee as neither side has prevailed in full. Third party defendants-appellees are awarded costs in their favor against third-party cross-appellant.

       The trial judge was probably misguided by the Court of Appeals opinion which was reversed after the Stambaugh trial. See 76 Mich App 472; 257 NW2d 128 (1977).

       Whether the jury found total lack of safety measures or inadequate safety measures is immaterial, since in either case, consideration of contributory negligence is precluded. Tulkku, supra.

       Comparative negligence instructions would, of course, be improper on remand since a finding of causal negligence by defendant forecloses any consideration of plaintiff’s fault. Compare Tulkku, supra, and Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).


author: V. J. Brennan, J.

text:
    HUGHES v ALLIS-CHALMERS CORPORATION
    Docket No. 78-3664.
    Submitted December 5, 1979, at Detroit.
    Decided March 17, 1980.
    Leave to appeal applied for.
    Plaintiff, Emma L. Hughes, is the administratrix of the estate of Russell A. Hughes, who died from an accident that occurred while he was working in the course of his employment. There were no eyewitnesses to the accident. Decedent was found dead, lying on his back under the loader on which he had been working, with his left shoulder pinned by the right front tire. Plaintiff filed suit in the Wayne Circuit Court against Allis-Chalmers Corporation, the manufacturer of the loader, and Earle Equipment Company, who sold the loader to decedent’s employer. By stipulation, Earle Equipment Company was dismissed as a party. Plaintiffs theory at trial was that decendent fell from the right-hand side of the loader between the right front and rear tires and struck his head. Plaintiff theorizes that the loader then rolled back, pinning decedent’s shoulder. Plaintiff contended that a guardrail was recommended by the Society of Automotive Engineers and that Allis-Chalmers was negligent in failing to install such a guardrail. The court, Roland L. Ozark, J., entered judgment for plaintiff upon a jury verdict and denied defendant’s motion for judgment n.o.v. and a new trial. Defendant appeals. Held:

    1. Defendant objected to the testimony of plaintiffs expert witness as to the cause of decedent’s injuries and to the reasonableness of the design of the loader. Rules governing the admissibility of testimony of expert witnesses are: (1) there must be an expert; (2) there must be facts in evidence which require or are subject to examination and analysis by a competent expert; and (3) there must be knowledge in a particular area that belongs more to an expert than to the common man. Ordinarily, the qualification of competence of expert witnesses is a matter for the discretion of the trial judge. It is incumbent upon the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him to give such testimony. The witness was a safety expert with qualifications sufficient to render an expert opinion on both issues.

      References for Points in Headnotes
    [1] 31 Am Jur 2d, Expert and Opinion Evidence § 3.
    [2] 31 Am Jur 2d, Expert and Opinion Evidence § 16 et seq.

    [3] 31 Am Jur 2d, Expert and Opinion Evidence § 31.
    [4] 4 Am Jur 2d, Appeal and Error §§ 112, 969.

      2. The standard for review of a lower court determination to deny a motion for judgment notwithstanding the verdict is whether, after viewing the facts and all legitimate inferences therefrom in the light most favorable to the party opposing the motion, reasonable men could differ. If they can, the question is one for the trier of fact. The trial court properly denied defendant’s motion for judgment n.o.v.
    Affirmed.
    1. Evidence — Expert Testimony — Judge’s Discretion — Abuse of Discretion — Appeal and Error.
    Admission or exclusion of expert testimony • is within a trial court’s discretion and the trial court’s decision will not be disturbed unless it is clearly erroneous.
    2. Evidence — Admissibility — Witnesses — Expert Witnesses.
    Rules governing the admissibility of testimony of expert witnesses are: (1) there must be an expert; (2) there must be facts in evidence which require or are subject to examination and analysis by a competent expert; and (3) there must be knowledge in a particular area that belongs more to an expert than to the common man.
    3. Witnesses — Expert Witnesses — Competence.
    Ordinarily, the qualification of competence of expert witnesses is a matter for the discretion of the trial judge; it is incumbent upon the person offering an expert witness to show that the witness possesses the necessary learning, knowledge, skill or practical experience to enable him to give such testimony.
    4. Appeal — Judgment — Notwithstanding Verdict — Standard for Review — Trier of Fact.
    The standard for review of a lower court determination to deny a motion for judgment notwithstanding the verdict is whether, after viewing the facts and all legitimate inferences therefrom in the light most favorable to the party opposing the motion, reasonable men could differ; if they can, the question is one for the trier of fact.

      Goodman, Eden, Millender & Bedrosian (by Joan Lovell and James A. Tuck), for plaintiff.

      Tyler & Canham, P.C., for defendant Allis-Chalmers.
    Before: Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   V. J. Brennan, J.

This is a products liability and negligence action arising from an accident which occurred on March 15, 1972, and which resulted in the death of Russell A. Hughes, plaintiffs decedent. On that evening the decedent was operating a Model 545 wheel loader designed, manufactured and sold by defendant Allis-Chalmers Corporation. When he was found dead, he was lying under the right side of the loader on his back with his left shoulder pinned by the right front tire. On June 14, 1978, a Wayne County Circuit Court jury returned a verdict for the plaintiff in the amount of $405,000. The defendant now appeals by right, pursuant to GCR 1963, 806.1.

It was plaintiffs theory at trial that Mr. Hughes fell from the right hand side of the loader and struck his head. This fall would have put Hughes between the right front and right rear tires of the loader. Subsequently, plaintiff reasons, the machine rolled back and the right front wheel pinned Hughes’ shoulder. Plaintiff contended that a guardrail on the right side of the loader would have prevented such a fall, that such a guardrail was recommended by the Society of Automotive Engineers and that, therefore, the defendant provided a machine which was improperly designed.

The defendant argues that since there were no eyewitnesses there was no proof that the defendant fell from the right side of the machine rather than tripping while on the ground and falling under the machine’s wheels. Therefore, it was impossible to assume that a guardrail would have prevented this accident.

The defendant raises two issues on appeal.

Defendant first argues that Mr. McKibben, one of plaintiffs expert witnesses, was unqualified to testify as to the cause of decedent’s head injuries or as to the reasonableness of the design of the machine in question. We disagree.

Generally, it is within the trial court’s discretion to admit or exclude expert testimony and this decision will not be disturbed unless clearly erroneous. Francisco v Parchment Medical Clinic P.C., 86 Mich App 583; 272 NW2d 736 (1978), modified 407 Mich 325; 285 NW2d 39 (1979), Johnson v Detroit, 79 Mich App 295; 261 NW2d 295 (1977).

The rules regarding expert testimony are succinctly stated in Dowell v General Telephone Co, 85 Mich App 84, 92; 270 NW2d 711 (1978), quoting from O’Dows v Linehan, 385 Mich 491, 509-510; 189 NW2d 333 (1971).

"[W]hat are the rules governing the admissibility of such [expert] testimony?

"1. There must be an expert. * * *

"2. There must be facts in evidence which require or are subject to examination and analysis by a competent expert. * * *

"3. Finally, there must be knowledge in a particular area that belongs more to an expert than to the common man.”

It is incumbent upon the party offering an expert witness to show that the witness possesses the knowledge or skill necessary to competently testify. Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976).

The defendant takes issue with two areas of McKibben’s testimony. First McKibben testified that the decedent’s head injury was most probably caused by a fall of about 10 to 12 feet at approximately 15 to 20 miles per hour. The defendant argues that, since McKibben was not a medical doctor, he was unqualified to so testify. We are not persuaded by this argument.

McKibben testified at trial that he is a certified professional safety engineer. He teaches accident reconstruction and investigation. More importantly, he has done extensive research regarding head injuries to free-falling bodies (i.e., motorcycle accident victims). Given his qualifications, the trial court did not err in allowing McKibben to testify regarding the probable cause of decedent’s head injury. It appears that McKibben was more than qualified to give such an opinion.

The defendant next argues that McKibben was not qualified to testify regarding the design of the loader and the fact that it violated a Society of Automotive Engineers (SAE) standard. This argument is also unpersuasive.

McKibben testified that he is a member of SAE, an organization of people involved in transportation or self-propelled equipment. He has investigated cases in construction machinery similar to that in this case and is familiar with such equipment.

Under these circumstances we find that the witness’s expert testimony was correctly received by the trial court. There was ample evidence presented at trial that he possessed the necessary knowledge and skill to enable him to competently testify, Siirila, supra.

The defendant next asserts that the trial court committed reversible error when it refused to grant defendant’s motion for judgment notwithstanding the verdict.

The. standard for review of a lower court’s denial of a motion for judgment notwithstanding the verdict is whether, after viewing the facts and all legitimate inferences therefrom in the light most favorable to the party opposing the motion, reasonable men could differ. If they could, the question is one for the trier of fact. Cryderman v Soo Line R Co, 78 Mich App 465; 260 NW2d 135 (1977), Weiss v Ford Motor Co, 64 Mich App 519; 236 NW2d 124 (1975), Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223; 123 NW2d 768 (1963).

The defendant argues that there was insufficient evidence presented at trial which would support a finding that the defendant’s head injuries were caused by a fall from the loader. However, reviewing the record, we find ample evidence to support such a finding.

The deceased was last seen at the controls of the loader 10 to 15 minutes before his body was discovered. When found, he was lying on his back with his left shoulder pinned by the machine’s right front tire and his feet pointing away from the machine at an angle. The left hand side of the machine has a railing; the right side is open.

The deceased suffered extensive head injuries. Plaintiff’s expert witness testified that the probable cause of such injury was a fall from a height rather than tripping or slipping on the ground. The expert further testified that a body falling from the platform could have "bounced” off the ground and landed under the tractor, thereby explaining how the deceased’s body could have been found partially under the machine.

Since there was no eyewitness to the accident, defendant’s argument that the jury had to infer that the deceased somehow fell from the right hand side of the vehicle is correct. There was ample competent evidence upon which to base that inference.

Finally, defendant contends that the jury must have inferred that the decedent’s chest injuries were caused by the loader running over him and that there was insufficient evidence to support such an inference. We disagree. There was evidence presented at trial that both the head injuries and the chest injuries were sufficient, in and of themselves, to cause death and that the head injuries occurred prior to, or concurrent with, the chest injuries. Accordingly, the jury did not have to find that the decedent’s chest injuries were caused by the machine. It would be sufficient if they found only that the decedent fell from the machine and that the fall caused his head injuries.

There was also evidence presented at trial which would support a finding that the defendant was negligent in failing to equip the loader in question with a right-hand siderail. A siderailing on such machines was recommended by the Society of Automotive Engineers Standards (J185). Mr. Dubois, defendant’s chief engineer, testified that, although he was aware of and customarily reviewed these standards, such a railing was not included on the loader. Mr. McKibben, an accident reconstruction expert, testified that such a rail would substantially reduce accidents from the work platform.

Accordingly, after reviewing the testimony presented at trial, we find that, viewing the evidence in the light most favorable to the plaintiif, defendant’s motion for judgment notwithstanding the verdict was properly denied.

Affirmed. Costs to be assessed against defendants.