text:
    PEOPLE v MEADOWS
    1. Criminal Law — Evidence—Prosecutors—Order of Proofs.
    The prosecution should not be permitted to divide the testimony which it proposes to prove its case; a defendant is entitled to have the testimony introduced in its proper order.
    2. Criminal Law — Evidence—Rebuttal Testimony — Refutation of Opponent’s Evidence.
    Evidence which tends to prove the commission of the crime itself or the immediate circumstances surrounding the offense cannot ordinarily be classified as rebuttal; legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party.
    3. Criminal Law — Evidence—Admission—Case in Chief.
    Testimony that constitutes an admission can only be presented during the prosecutor’s case in chief.
    4. Criminal Law — Appeal and Error — Harmless Error — Prejudice — Miscarriage of Justice — Statutes.
    The Court of Appeals will not reverse a conviction because of a trial error unless the error results in a miscarriage of justice; two separate inquiries are involved in determining whether the error complained of substantially prejudiced the rights of an accused: first, whether the error is so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless; and second, whether it is reasonably possible that in a trial free of error one juror may have voted to acquit (MCLA 769.26; MSA 28.1096).

      References for Points in Headnotes
    [I] 63 Am Jur 2d, Prosecuting Attorneys § 27.
    75 Am Jur 2d, Trial § 158.
    [1, 2] 29 Am Jur 2d, Evidence § 250.
    [2, 5, 6] 29 Am Jur 2d, Evidence § 269.
    [3] 29 Am Jur 2d, Evidence §§ 597, 598.
    [4] 5 Am Jur 2d, Appeal and Error § 783.
    [5, 6] 75 Am Jur 2d, Trial §§ 124-127.
    [7, 10] 17 Am Jur 2d, Continuance § 42.
    [8-10] 41 Am Jur 2d, Indictments and Informations § 60.
    81 Am Jur 2d, Witnesses § 74.
    [II] 75 Am Jur 2d, Trial §§ 548-558.
    [12-14] 40 Am Jur 2d, Homicide §§ 44-52.
    [13, 14] 40 Am Jur 2d, Homicide §§ 438, 439, 454.
    Premeditation: presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.
    Homicide: what constitutes "lying in wait”. 89 ALR2d 1140.
    [14] 5 Am Jur 2d, Appeal and Error § 976.

      5. Criminal Law — Evidence—Rebuttal Testimony — Case in Chief —Prejudicial Error.
    The introduction of evidence in rebuttal, which properly belongs in the prosecution’s case in chief, is not an error which is always regarded as prejudicial.
    6. Evidence — Rebuttal Testimony — Improper Admission — Prejudice.
    Evidence improperly presented in rebuttal which merely expands upon or supports testimony previously admitted is not prejudicial.
    7. Criminal Law — Trial—Rebuttal Testimony — Case in Chief-Continuances — Cross-Examination—Surrebuttal Testimony.
    Any prejudice caused by allowing a prosecutor to present evidence which properly should have been presented in his case in chief was dissipated where the court granted defense counsel’s request for a continuance to prepare for cross-examination of the rebuttal witness and by a defendant’s surrebuttal testimony.
    8. Indictment and Information — Witnesses—Prosecutors—Indorsement of Witnesses — Informations—Production of Witnesses — Res Gestae Witnesses.
    A prosecutor shall indorse on an information the names of the witnesses known to him at the time of filing the information; additional witnesses may be indorsed on the information before or during trial by leave of the court; the indorsement and production of res gestae witnesses is a mandatory requirement (MCLA 767.40; MSA 28.980).
    9. Indictment and Information — Witnesses—Prosecutors—Indorsement of Witnesses — Informations—Rebuttal Witnesses.
    A prosecutor is required to indorse the names of witnesses on an information to protect the accused from false accusation and to permit a criminal defendant an opportunity to prepare for cross-examination; rebuttal witnesses, if known to the prosecutor, should also be indorsed on the information.
    10. Witnesses — Criminal Law — Indorsement of Witnesses — Late Indorsement — Judge’s Discretion.
    The late indorsement of witnesses is within the discretion of the trial court, having due regard for the defendant’s right to a fair trial; ordinarily, the late indorsement of a witness should be permitted and a continuance granted so as to obviate any potential prejudice.
    11. Appeal and Error — Criminal Law — Trial—Directed Verdict of Acquittal.
    An appellate court in reviewing a motion for a directed verdict of acquittal examines the record as it existed at the time the motion was made in the light most favorable to the prosecution to determine whether the people have introduced some evidence as to each element of the crime charged.
    12. Homicide — First-Degree Murder — Elements of Offense — Statutes.
    First-degree murder consists of the common-law offense of murder committed under any of the circumstances enumerated by statute (MCLA 750.316; MSA 28.548).
    13. Homicide — First-Degree Murder — Premeditation and Deliberation — Prior Relationships — Actions of Defendant — Immediate Circumstances — Post-Homicide Conduct.
    Factors to be considered in determining whether an accused had an opportunity to subject his actions to a second look in determining premeditation and deliberation include: (1) the previous relationship of the parties, (2) the defendant’s actions prior to the killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.
    14. Homicide — First-Degree Murder — Second-Degree Murder — -Evidence — Premeditation and Deliberation — Remand—Resentencing — Lesser Included Offense.
    Remand to the trial court for entry of a judgment convicting a defendant of second-degree murder and for resentencing on that conviction should be made where the conviction was for first-degree murder and the trial evidence does not support a finding of premeditation and deliberation in the commission of the murder.
    Appeal from Oakland, John N. O’Brien, J.
    Submitted June 22, 1977, at Lansing.
    (Docket No. 28526.)
    Decided November 30, 1977.
    Charles W. Meadows, III, was convicted of first-degree murder and assault with intent to commit murder. Defendant appeals.
    Affirmed in part, modified in part, and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      Nicholas Smith, P. C., for defendant on appeal.
    Before: D. F. Walsh, P. J., and Quinn and H. D. Stair, JJ.

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

   Per Curiam.

Defendant was tried by jury and found guilty of first-degree murder and assault with intent to commit murder. He received concurrent life sentences for each offense and now appeals.

The instant prosecution arose out of events occurring on the morning of May 21, 1972. On that date defendant, Rueben Herrerra and Michael Colleran were riding in a rented 1973 Gremlin automobile in Oak Park, Michigan. Defendant was driving. All three men were on parole. Michael Colleran had a .38-caliber revolver on his person. There was also a sawed-off shotgun in the car. The shotgun was owned by defendant.

Oak Park Police Officer Henry Wolf began following defendant’s automobile which was exceeding the speed limit. He reported the pursuit by radio. Defendant realized that he was being followed and became concerned over the fact that Colleran had a revolver on his person. Defendant slowed down and Colleran jumped out but he threw the revolver on the front passenger seat. Officer Wolf pulled behind the defendant and directed him to stop. Defendant left the car, met the officer midway between the two vehicles and produced his driver’s license. Wolf then accompanied the defendant to defendant’s automobile where he asked Rueben Herrerra for identification. A struggle between the three men ensued and Officer Wolf was shot in the back.

Defendant removed the officer’s body from the side of the automobile and drove off. As he did so, Officer Nimmor, responding to Officer Wolfs radio report, turned onto the street on which the shooting had occurred. According to Officer Nimmor, as the two cars approached one another, defendant rested a revolver on the steering wheel of his vehicle and shot at the officer. Ultimately, the two cars collided and defendant was taken into custody.

On appeal defendant argues, in part, that the trial court erred in permitting a prosecution witness to be called in rebuttal and in denying his motion for a directed verdict as to the charge of first-degree murder.

During cross-examination the prosecutor questioned the defendant as to his conversations with Frank Parker in the Oakland County jail following defendant’s arrest on the present charges. Defendant denied that he had admitted the shootings to Parker and that he had asked Parker to be a witness in his behalf. Parker was called as a rebuttal witness. Defense counsel objected on the grounds that Parker had not been indorsed on the information and that his testimony should have been introduced in the prosecutor’s case in chief. The trial court permitted Parker to testify.

Parker took the stand and testified that defendant had asked him to be a witness. He produced instructions, handwritten by the defendant, concerning the testimony which he was to give, and also a letter, written by the defendant to Parker’s wife, directing her to examine the scene of the shooting in order to determine the plausibility of the testimony. Parker also testified that defendant told him that he held Officer Wolf expecting Herrerra to shoot, and that when Herrerra failed to do so, defendant seized the officer’s own revolver and shot him. According to Parker, defendant also admitted shooting at Officer Nimmor during the attempted escape.

After cross-examining the witness briefly, defense counsel moved that Parker’s testimony be stricken and a mistrial declared on the same grounds earlier argued. Relying on its former ruling, the trial court denied the motion. The court granted defense counsel’s request, however, that his cross-examination of the witness be continued to the following day in order to permit further preparation.

The next day, after defense counsel’s cross-examination of Parker, defendant was called in surrebuttal. Defendant testified that it was Parker who suggested that he be a witness in defendant’s favor. Defendant further testified that he had maintained his innocence to Parker. He admitted writing the instructions and letter to Parker’s wife but stated that the exhibits were prepared at Parker’s direction. Except for Parker’s presence at the scene, defendant stated that the facts recited in the handwritten instructions were true. He further testified that he changed his mind about permitting Parker to testify after discussing the matter with defense counsel.

Defendant’s objections to the admission of the testimony were renewed in a motion for a new trial. The motion was denied.

The Michigan Supreme Court long ago ruled that the prosecution should not be permitted to divide the testimony upon which it proposes to prove its case. The defendant is entitled to have the testimony introduced in its proper order. People v Quick, 58 Mich 321; 25 NW 302 (1885), People v Wright, 74 Mich App 297; 253 NW2d 739 (1977), People v Parker, 65 Mich App 592; 237 NW2d 572 (1975). Evidence which tends to prove the commission of the crime itself or the immediate circumstances surrounding the offense cannot ordinarily be classified as rebuttal. People v Quick, supra. "Legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party”. People v Ebejer, 66 Mich App 333, 340; 239 NW2d 604, 609 (1976). Also, People v Bennett, 393 Mich 445; 224 NW2d 840 (1975). An admission can only be presented during the prosecutor’s case in chief. People v Bennett, supra, People v Lowe, 71 Mich App 340; 248 NW2d 263 (1976). See, People v Parker, supra. The trial court erred in the instant case, therefore, by permitting Parker to testify in rebuttal. We do not, however, find the error reversible.

This Court will not reverse a conviction because of a trial error unless the error results in a miscarriage of justice. MCLA 769.26; MSA 28.1096. Two separate inquiries are involved in determining whether the error complained of substantially prejudiced the rights of an accused. First, whether the error is so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless. Second, whether it is reasonably possible that in a trial free of the error one juror may have voted to acquit. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), People v Christensen, 64 Mich App 23; 235 NW2d 50 (1975).

The introduction of evidence in rebuttal, which properly belongs in the prosecution’s case in chief, is not an error which is always regarded as prejudicial. People v Rose, 268 Mich 529; 256 NW 536 (1934), People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975). See, People v Ebejer, supra. In the present case, this Court is convinced that the exclusion of Parker’s testimony from rebuttal would not have altered the verdict as to either charge. Not only was the evidence of defendant’s guilt overwhelming, but Parker’s testimony in large measure merely duplicated testimony earlier given by other witnesses and by defendant himself.

Lawrence Connolly, who resided near the scene of the shooting, saw Officer Wolf standing next to the Gremlin leaning inside. Connolly witnessed the defendant struggle with the officer, grab Wolfs revolver, step back and shoot him. Another witness, Hoy Smith, who was driving near the scene, saw the defendant standing outside the Gremlin holding a gun behind his back and also saw the feet and legs of someone bending over the front seat of the vehicle. Smith testified: "[T]he accused either spun or pushed the officer and the gun came out from behind his back and went inside the car and there was a shot”. Other witnesses, while not seeing a weapon fired, corroborated the positions of the officer and the defendant and defendant’s struggle with Wolf, during which time defendant grabbed at the officer’s side. The Oakland County medical examiner testified that Officer Wolf died as a result of a gunshot wound between the shoulder blades. A state police officer trained and employed in firearms identification testified that the bullet which caused Wolfs death had markings similar to those contained in the revolver of the decedent. Officer Wolfs revolver was found on the ground near the defendant following defendant’s collision with the vehicle driven by Officer Nimmor. The testimony of Officer Nimmor regarding defendant’s assault upon him was fully corroborated by a second eyewitness. Finally, a forensic chemist testified that the presence of certain chemicals on defendant’s left hand, and the area of their concentration, was consistent with the defendant having fired a gun.

The testimony presented at trial concerning defendant’s actions and the location of the fatal wound to Officer Wolf demonstrates, in our opinion, that had Parker’s testimony been eliminated the jury would still have convicted the defendant of each offense.

Where evidence improperly presented in rebuttal merely expands upon or supports testimony previously admitted, no prejudice results. People v Leonard E Smith, 15 Mich App 173; 166 NW2d 504 (1968), People v Joseph Barbara, Jr, 23 Mich App 540; 179 NW2d 105 (1970), People v Rosemary Gibson, 71 Mich App 543; 248 NW2d 613 (1976).

Moreover, any prejudice caused by allowing the prosecutor to present at the conclusion of the trial evidence which properly should have been presented in his case in chief was dissipated by the fact that the court granted defense counsel’s request for a continuance to prepare for cross-examination of the rebuttal witness and by defendant’s surrebuttal testimony. People v Rosemary Gibson, supra.

This Court similarly finds that the trial court did not err in permitting Parker to testify notwithstanding the fact his name had not been indorsed on the information.

MCLA 767.40; MSA 28.980 provides that the prosecutor shall indorse on the information the names of the witnesses known to him at the time at which the information is filed. Additional witnesses may be indorsed on the information before or during trial by leave of the court. The mandatory requirement of indorsement and production has been restricted to res gestae witnesses. People v Kayne, 268 Mich 186; 255 NW 758 (1934), People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975). The purpose of the requirement is to protect the accused from false accusation, People v Kayne, supra, and to permit a criminal defendant an opportunity to prepare for cross-examination, Peo pie v Quick, supra, People v Hammack, 63 Mich App 87; 234 NW2d 415 (1975). The latter reason suggests that rebuttal witnesses, if known to the prosecutor, should also be indorsed on the information. People v Quick, supra, People v Rose, supra, People v Hammack, supra. See, also, People v Gaiter (amended order), 392 Mich 689; 222 NW2d 1 (1974).

The late indorsement of witnesses is within the discretion of the trial court, having due regard for the defendant’s right to a fair trial. People v Tann, 326 Mich 361; 40 NW2d 184 (1949), People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973), People v Hammack, supra. Ordinarily, the late indorsement of a witness should be permitted and a continuance granted so as to obviate any potential prejudice. People v Harrison, supra.

In the case at bar, Frank Parker was never formally indorsed on the information. Nevertheless, defense counsel requested and was granted a continuance to prepare for cross-examination, People v Harrison, supra, his subsequent questioning of the witness was vigorous, People v Hammack, supra, and defendant’s surrebuttal testimony demonstrated counsel’s familiarity with the subject of Parker’s testimony some time prior to trial. Under the circumstances of the present case, the trial court did not err in permitting Parker to testify.

At the conclusion of the prosecution’s case defense counsel moved for a directed verdict as to the charge of first-degree murder. Counsel argued that the prosecutor had failed to introduce evidence from which the jury could infer that the murder of Officer Wolf was deliberate and premeditated. The trial court denied the motion. Defendant now attacks the ruling of the trial court as erroneous. We agree.

In reviewing a motion for a directed verdict of acquittal, the record as it existed at the time the motion was made must be examined in the light most favorable to the prosecution to determine whether the people have introduced some evidence as to each element of the crime charged. People v DeClerk, 400 Mich 10; 252 NW2d 782 (1977), People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).

First-degree murder consists of the common-law offense of murder committed under any of the circumstances enumerated by statute. MCLA 750.316; MSA 28.548, People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971). In the present case defendant was charged with having murdered Officer Wolf with premeditation.

"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’ ”. People v Morrin, supra, at 329-330; 187 NW2d 449. (Footnotes omitted.)

Accord, People v Vail, 393 Mich 460; 227 NW2d 535 (1975), People v Moss, 70 Mich App 18; 245 NW2d 389 (1976). Factors to be considered in determining whether the accused had an opportunity to subject his actions to a second look include: (1) the previous relationship of the parties, (2) the defendant’s actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide. People v Berthiaume, 59 Mich App 451; 229 NW2d 497 (1975), People v Gill, 43 Mich App 598; 204 NW2d 699 (1972).

We have reviewed all of the evidence relating to the circumstances surrounding the commission of the instant crime. We are persuaded that that evidence will not support the inference that the defendant murdered Officer Wolf with premeditation and deliberation. Accordingly, we remand the present cáse for the entry of a judgment convicting defendant of second-degree murder and for resentencing on that conviction. People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975), People v Morrin, supra.

We have carefully considered the remaining issues raised by the defendant and find them to be without merit.

Affirmed in part; modified in part; and remanded.

       MCLA 750.316; MSA 28.548.

       MCLA 750.83; MSA 28.278.

       Defendant was unconcerned with the presence of the sawed-off shotgun in the automobile being of the opinion that its possession did not constitute a felony.

       An error deliberately injected by the prosecution is such an affront to the maintenance of a sound judicial system that it automatically requires reversal. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Swan, 56 Mich App 22; 223 NW2d 346 (1974).
      Following the definitive ruling of the Supreme Court in People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), regarding the introduction of admissions, an error such as that which occurred in the present case might well be regarded as intentional. In the present case, however, we note that the trial occurred eight months prior to the Court’s decision and that the procedure followed in the case at bar had previously been upheld by the Court. People v DeLano, 318 Mich 557; 28 NW2d 909 (1947), cert den, 334 US 818; 68 S Ct 1082; 92 L Ed 1748 (1948).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    MOSS v MOSS
    1. Divorce — Alimony—Discretion—Statutes.
    An award of alimony is discretionary and should be based on the ability of either party to earn, the character and situation of the parties, and all the other circumstances of the case (MCLA 552.23[1]; MSA 25.103[1]).
    2. Divorce — Alimony—Factors—Financial Situation — Statutes.
    The financial situation of the parties is a principal, but not the exclusive or controlling factor, in awarding alimony in divorce actions (MCLA 552.23[1]; MSA 25.103[1]).
    3. Appeal and Error — Divorce—Alimony—Modifying Alimony Awards.
    The Court of Appeals will not modify an alimony award in a divorce action unless convinced that it would have reached a different result had it occupied the position of the trial court.
    References for Points in Headnotes
    [1-3] 24 Am Jur 2d, Divorce and Separation §§ 601, 602, 626 et seq.

    Allowance of permanent alimony to wife against whom divorce is granted. 34 ALR2d 313.
    Excessiveness of amount of money awarded as permanent alimony where divorce is or has been granted. 1 ALR3d 6.
    [3] 24 Am Jur 2d, Divorce and Separation §§ 667, 674.
    Divorce: power of court to modify decree for alimony or support of spouse which was based on agreement of parties. 6Í ALR3d 521.
    Appeal from Oakland, Arthur E. Moore, J.
    Submitted October 18, 1977, at Detroit.
    (Docket No. 31478.)
    Decided January 9, 1978.
    Leave to appeal applied for.
    Complaint by Lee A. Moss against Susan J. Moss for divorce. Counterclaim by defendant against plaintiff. Divorce granted on defendant’s counterclaim. Plaintiff appeals. Defendant cross-appeals.
    Judgment affirmed with a modification of the alimony award.

      Wilson, Portnoy, Basso & Leader, P. C., for plaintiff.

      Dan T. Ryan, for defendant.
    Before: T. M. Burns, P. J., and R. B. Burns and W. R. Brown, JJ.

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

   Per Curiam.

This case presents the not uncommon situation of a wife who, having worked so that her husband could obtain a professional education, finds herself left by the roadside before the fruits of that education can be harvested.

The parties were married for seven years but, because of the husband’s military service and several separations, lived together for only approximately four years. During this time the husband obtained a medical degree and is presently in a surgical residency in Maryland. The wife has worked as a guidance counselor in public schools during the marriage and continues in that employment. At the time of the judgment and for the next few years, the wife’s income will exceed the husband’s.

The trial court granted the wife’s counter complaint for divorce. There were no substantial assets acquired during the marriage, a result in part from the cost of the husband’s education. In lieu of a property settlement, the trial court awarded the wife $15,000 alimony in gross to be made in three payments beginning six months after the judgment was entered. The trial court deemed this an equitable adjustment of the parties’ interests. Both parties appeal. The husband claims that an award of alimony where his wife’s current earnings are greater than his own is an abuse of discretion. The wife claims the award should be raised to $60,000 to reflect her efforts in the husband’s acquisition of an M.D. degree.

An award of alimony is discretionary and should be based on "the ability of either party [to earn] and the character and situation of the parties, and all the other circumstances of the case”.

Under the statute, the financial situation of the parties is a principal, but not an exclusive or controlling factor.

We are not convinced we would have reached a different result had we occupied the position of the trial court. Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975), lv den, 395 Mich 769 (1975). It was impossible to award the wife a portion of the husband’s medical degree, the only substantial asset acquired during coverture. An award of $15,000 fairly represents the wife’s contribution to the acquisition of that asset, financial and otherwise.

We do think, however, that it is inequitable for the husband to be required to make the payments ordered by the trial court while still pursuing his medical training. We therefore modify the judgment to require payment of $2,000 plus interest per year while his residency continues and the balance to be paid within one year after his residency is completed.

The balance of the trial court’s judgment is affirmed.

       Before trial the lower court held the "no-fault” divorce statute, MCLA 552.6; MSA 25.86, was unconstitutional. The divorce was granted to the wife on a finding that the husband was guilty of "relationships with other women”. No issue as to the constitutionality of the statute has been raised on appeal. But see, Cowsert v Cowsert, 78 Mich App 129; 259 NW2d 393 (1977), finding the statute constitutional.

       MCLA 552.23(1); MSA 25.103(1).


author: Bashara, J.

text:
    BUTLER v BUTLER
    1. Contempt — Divorce—Nonsupport—Physical Ability to Work.
    A party’s physical ability to work is not a sufficient basis alone to sustain a judgment of contempt for failure to make child support payments; an inquiry must be made beyond ascertaining only that the alleged contemnor has the physical ability to work; the court must ascertain whether the alleged contemnor has sufficient ability, or by the exercise of due diligence could be of sufficient ability, to comply with the court’s order.
    2. Contempt — Civil Contempt — Coercion—Compliance.
    Civil contempt is a coercive remedy, designed to induce compliance with a court order by imposing the threat of incarceration until the contemnor renders that compliance.
    3. Contempt — Divorce—Nonsupport—Appeal and Error — Record Support — Physical Ability to Work.
    A trial court’s judgment of contempt of court for a plaintiffs failure to make child support payments pursuant to a previously issued divorce judgment was proper where the judgment was supported by a record sufficient to sustain the trial court’s finding that plaintiff is physically able to work and has neglected or refused to exercise due diligence to place himself in a position of sufficient ability to comply with the support order.
    References for Points in Headnotes
    [1, 3] 24 Am Jur 2d, Divorce and Separation §§ 764, 766, 847, 872.
    Contempt: pleading and burden of proof in contempt proceedings as to ability to comply with order for payment of alimony or child support. 52 ALR2d 591
    [2] 17 Am Jur 2d, Contempt §§ 4, 5.
    Appeal from Lapeer, Martin E. Clements, J.
    Submitted November 3, 1977, at Lansing.
    (Docket No. 28389.)
    Decided January 23, 1978.
    Complaint by Leroy Butler against Joan A. Butler seeking a divorce. Judgment for plaintiff. The trial court, subsequently, entered an order finding the plaintiff in contempt of court for failure to make child support payments pursuant to the divorce judgment. Plaintiff appeals.
    Affirmed.

      Nelson & Bird, Associates, for plaintiff.
    Before: J. H. Gillis, P. J., and Bashara and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Bashara, J.

This is an appeal by plaintiff from a trial court order finding him in contempt of court for failure to make child support payments pursuant to a previously issued divorce judgment. The amount of the arrearage was established at $9,025.

Plaintiff appeared at the contempt proceedings without the assistance of counsel. It was disclosed, upon inquiry of the trial court, that plaintiff’s only source of income was from public assistance payments under the aid to dependent children with an incapacitated parent program. Plaintiff also stated that he was appealing an adverse determination of disability in an effort to obtain social security benefits.

Since the litigants’ divorce, plaintiff has remarried and has three children by that marriage. At the contempt hearing, plaintiff indicated that it had been four or five years since he had last engaged in gainful employment. Plaintiff stated that he had arthritis. In response to the trial court’s statements that it appeared that plaintiff had not even made a reasonable attempt to find employment, the plaintiff stated only that he does go to a doctor for his arthritic condition.

The trial court found the plaintiff to be in contempt of court, but did not order his incarceration. Instead, the court instructed the plaintiff to seek employment and set a sentencing date for approximately three weeks hence, at which time plaintiff was to advise the court as to whether he was able to find employment. Plaintiff was admonished that he would be sent to jail unless he found a job.

At the sentencing proceeding, plaintiff appeared with counsel and without a job. A motion was made to set aside the judgment of contempt, which was denied, the trial court stating that it would not relitigate the issue of plaintiffs contempt. Plaintiffs counsel then proceeded to present medical reports as to the extent of plaintiffs arthritic condition. The trial court acknowledged the existence of plaintiffs arthritis, but found after an examination of the medical evidence that plaintiff was not precluded by the disease from engaging in all forms of employment. Further, as the trial court noted, there was no explanation or offer of any statements as to the efforts plaintiff made to find employment or why he was unable to secure a job. Plaintiff was sentenced to 30 days in the county jail, to be suspended upon payment of $300, which would be applied to the past due child support.

It is plaintiff’s contention that the trial court’s judgment of contempt rests upon an impermissibly narrow scope of factual findings and, therefore, cannot be sustained. This argument is based exclusively upon the recent case of Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976), which affirmed this Court’s decision reported at 59 Mich App 730; 229 NW2d 907 (1975). Viewed in light of Sword, plaintiff maintains essentially that the trial court’s judgment is based only upon a finding that there was a child support arrearage and that plaintiff was physically able to work.

If plaintiff’s characterization of the foundation for the trial court’s judgment were accurate, we would reverse that judgment and remand this case without hesitation. However, there is a determinative distinction between the circumstances in this case and those in Sword.

In Sword the alleged contemnor explained to the trial court the considerable efforts that were made unsuccessfully to find employment. Sword v Sword, 59 Mich App at 733; 229 NW2d at 908. Notwithstanding the apparent inability to secure employment after a good faith effort, the trial court held the defendant in contempt and sentenced him to jail. Thus, the defendant was incarcerated for disobedience of an order with which it was impossible for him to comply. Only the defendant’s physical ability to work was considered by the trial court. Id. at 734; 229 NW2d at 908.

Both this Court and the Supreme Court concluded that physical ability to work is not a sufficient basis alone to sustain a judgment of contempt for failure to make child support payments. Sword, supra. Civil contempt is a coercive remedy, designed to induce compliance with a court order by imposing the threat of incarceration until the contemnor renders that compliance. 399 Mich at 380; 249 NW2d at 92-93. However, if the alleged contemnor has made a diligent effort to obey the court’s order, but is unable to acquire the requisite means for compliance, no amount of coercive force applied in a civil contempt proceeding will alter that state of circumstances. Accordingly, Sword mandates that an inquiry be made beyond ascertaining only that the alleged contemnor has the physical ability to work.

A number of areas into which the trial court may inquire are suggested in the Sword opinion. Id. at 378-379; 249 NW2d at 92. However, those suggested areas of inquiry are not intended to be applied by rote to every case. Rather, each case will present a different array of circumstances to the trial court. From an inquiry into those circumstances, the trial court must ascertain whether the alleged contemnor has sufficient ability, or by the exercise of due diligence could be of sufficient ability, to comply with the court’s order. Id. at 379; 249 NW2d at 92. If the record supports a finding that the alleged contemnor has refused or neglected to reasonably endeavor to comply with the order, then a judgment of contempt will be sustained. It is those circumstances to which the coerciveness of civil contempt proceedings was intended to apply.

In the instant case the trial court did not limit its inquiry to determining plaintiffs physical ability to work. Indeed, the tenor of both the contempt and sentencing proceedings was directed toward ascertaining the diligence with which plaintiff endeavored to comply with the child support order. It became apparent from our reading of the record in both proceedings that the trial court was attempting to induce the plaintiff to make an effort to find employment so that he could meet his child support obligations.

Although the trial court found that plaintiff does have arthritis, it was also found that plaintiff’s condition does not obviate all potential employment opportunities. That finding is not challenged on appeal. Further, after adjudging plaintiff to be in contempt, the trial court delayed sentencing for nearly a month. The delay was accompanied by an admonishment to plaintiff to find employment if he desired to retain his freedom. At the sentencing proceeding plaintiff sought only to emphasize his arthritic condition, unaccompanied by any recitation of what measures had been taken to find suitable employment.

We conclude under these circumstances that the trial court’s judgment was proper. It is our opinion that the judgment is supported by a record sufficient to sustain the trial court’s finding that plaintiff is physically able to work and has neglected or refused to exercise due diligence to place himself in a position of sufficient ability to comply with the support order. The coerciveness of civil contempt may provide the plaintiff with the necessary incentive to rectify this unfortunate situation.

Affirmed.

       The pertinent colloquy was as follows:
      "THE COURT: I suppose Mr. Butler, you’re not even looking for a job. Most men come in here and say that they are out of work, laid off, I don’t have any money, can’t seem to find a job. Your situation is a little different, you are probably not looking for a job because in your own mind you feel you are disabled.
      "RESPONDENT: No, I do go to the doctor. He doesn’t say that, you mean my mind, but he says that too.
      "THE COURT: It is a difference of opinion as to whether you’re disabled, grant me that.
      "RESPONDENT: Between him and social security, yes. I’ll grant you that.
      "THE COURT: What do you feel is wrong with you?
      "RESPONDENT: Got arthritis.”


author: Danhof, C. J.

text:
    PEOPLE v BASHANS PEOPLE v HERBIN
    1. Criminal Law — Instructions to Jury — Lesser Included Offenses — Requests for Instructions — Specificity.
    A defendant’s requests for instructions to the jury on lesser included offenses must be sufficiently definite and unequivocal to apprise the trial court of what instructions it is being asked to give; a trial court did not err in refusing to instruct on lesser included offenses where defense counsel’s oral requests for instructions were equivocal, failing to specify with clarity upon what assertedly lesser included offenses he wanted the jury instructed.
    2. Criminal Law — Evidence—Hearsay—Exceptions—Statement Against Penal Interest.
    A decision of the Michigan Supreme Court which holds that a statement against penal interest is admissible as an exception to the hearsay rule is not retroactive; therefore, a trial court in a trial held prior to that decision did not err in refusing to admit testimony of a witness regarding an alleged statement of another person, since deceased, to the effect that the defendant had been tricked into committing the crime for which he was on trial.
    3. Witnesses — Criminal Law — Trial—Attorneys—Privilege Not to Testify — Codefendants.
    It is improper for an attorney to call a witness who he knows will claim a valid privilege not to testify; however, no reversible error occurred when a defense attorney was allowed to call his client’s codefendant, knowing that he would not testify, where the state did not attempt to implant an unfair inference in the minds of the jurors by emphasizing that a person closely associated with the defendant had exercised his privilege not to testify, where there was no timely objection by the codefendant’s counsel, and where the trial judge was careful to instruct the jury concerning the codefendant’s claim of privilege.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 882.
    [2] 29 Am Jur 2d, Evidence §§ 619-620.
    [3] 75 Am Jur 2d, Trial § 192.
    [4] 5 Am Jur 2d, Arrest § 25.

      4. Arrest — Felony—Jurisdiction of Police — Probable Cause— Statutes.
    Any citizen given probable cause, including a police officer acting outside of his jurisdiction, may make an arrest for a felony being committed in his presence or when the person to be arrested has committed a felony, although not in the presence of the person seeking to make the arrest; therefore, an arrest was proper, although made outside of the arresting officers’ jurisdiction, where surveillance of the defendants’ activities throughout the commission of the crime gave the officers probable cause to arrest the defendants (MCLA 764.16; MSA 28.875).
    Appeal from Saginaw, Joseph R. McDonald, J.
    Submitted October 11, 1977, at Lansing.
    (Docket Nos. 29441, 31063.)
    Decided January 23, 1978.
    Jacob P. Bashans and Harry Herbin were convicted of breaking and entering with intent to commit larceny. Defendants appeal.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Lawrence W. Smith, Assistant Prosecuting Attorney, for the people.

      Thomas L. Frank, for defendant Jacob P. Bash-ans.

      Craig H. Dill, for defendant Harry Herbin on appeal.
    Before: Danhof, C. J., and Allen and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   Danhof, C. J.

Defendants were convicted by a jury of breaking and entering with intent to commit larceny, contrary to MCLA 750.110; MSA 28.305. Defendants were sentenced to terms of from 6 to 15 years imprisonment and now appeal by right.

I

Defendant Bashans assigns as error the trial court’s refusal to instruct on "larceny” and "entering without breaking and without permission”, as requested by his counsel. This refusal occurred two days before the Supreme Court released opinions in People v Henry, 395 Mich 367; 236 NW2d 489 (1975), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), and People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975). We need not address the question of retroactivity, however, since we conclude that the trial judge did not err even under the post-Ora Jones rules.

Defense counsel failed to specify with clarity upon what assertedly lesser included offenses he wanted the jury instructed, at one point referring to "larceny” and "entering without breaking and without permission” and at another point referring to "larceny from a building” and "breaking and entering without permission”. Appellate counsel has not attempted to remedy this confusion, asserting at various points in his brief that defendant was entitled to instructions on "larceny” and "larceny from a building” and on "entering without breaking and without permission” and "breaking and entering of a dwelling without permission”. In People v Herbert Smith, 396 Mich 362, 363-364; 240 NW2d 245 (1976), the Court held that under the rule of People v Henry, supra, at 374, which requires a request for instructions on lesser included offenses before reversal is warranted for failure to so instruct,

"The issue is not preserved * * * by a general request for an instruction on the 'lesser included offenses’. We have recognized that the trial judge must rely on requests from counsel in carrying out his responsibility to instruct the jury. Henry, supra. He must receive more assistance from counsel than a mere request for an instruction on lesser included offenses to make his failure to so instruct reversible error.” (Footnotes omitted.)

Herbert Smith imposes upon defense counsel a requirement of specificity; requests for instructions on lesser included offenses must be sufficiently definite and unequivocal to apprise the trial court of what instructions it is being asked to give. For the present, at least, the trial judge may continue to rely on requests from counsel in formulating his instructions. People v Henry, supra, at 374, People v Herbert Smith, supra, see generally, People v Coles, 79 Mich App 255; 261 NW2d 280 (1977). In this case, defense counsel’s shifting oral requests for instructions on lesser included offenses were insufficient to satisfy the requirements of Henry, supra, and Herbert Smith, supra. Accordingly, the trial judge did not err in refusing defense counsel’s equivocal oral requests for instructions.

II

Defendant Herbin attempted to introduce testimony by one Robert Lacy, a prisoner in the county jail who professed to know one LaVerne Averill, to the effect that Averill (who was deceased at the time of trial) had told Lacy that he had "duped” defendant Herbin into removing furniture from a house by telling Herbin that the house and the furniture belonged to him (Averill) and that he wanted the furniture moved. The trial judge refused to admit Lacy’s testimony on the ground that it was hearsay. Defendant brought a motion for new trial, claiming that under People v Ernest Edwards, 396 Mich 551; 242 NW2d 739 (1976), which was decided approximately six months after the trial of the instant case, Lacy’s testimony was admissible because Averill’s statement was a declaration against penal interest. The trial court denied the motion for new trial. We affirm, on authority of People v Alexander, 72 Mich App 91, 96; 249 NW2d 307 (1976), with the reasoning of which we agree, holding People v Ernest Edwards, supra, nonretroactive.

Ill

Defendant Bashans called as his first witness his codefendant, Harry Herbin. When counsel for defendant Bashans called Herbin, Herbin’s counsel announced to the court that he would like to make an objection out of the presence of the jury whereupon the jury was excused. The court agreed that Bashans could not compel Herbin to be a witness, since Herbin was himself on trial, but after conferring with his client, Herbin’s counsel announced that Herbin would testify after all. This announcement prompted the court to explain to defendant Herbin at some length his right not to testify. The rest of the day was consumed in making separate records of certain testimony to determine questions of admissibility.

On the next day of trial, out of the jury’s presence, the court inquired whether defendant Herbin still wished to testify as a witness for Bashans. The following colloquy ensued:

"MR. BRIGHT [counsel for defendant Herbin]: Judge, I have conferred with Mr. Herbin last night and again very briefly this morning, and it is my understanding this morning that Mr. Herbin will not take the stand when called or will not take the stand if called by [Bashans’ counsel], that he reserves the right to take the stand on his own behalf, but it is his decision not to testify if called by Mr. Frank.
"THE COURT: So, if — I’ll make it plain when we reopen again. I will ask Mr. Frank to call his first witness. If you call Mr. Herbin, of course, then the court will explain to the jury that under our system of law, a person accused of a crime — and Mr. Herbin is a co-defendant — does not have to take the stand as a witness in this case where he himself is on trial, unless he does it in his own behalf.
"And he has a right to do this and a right not to do that. And if he chooses not to, they may not in any way use this fact against him in their deliberations.
"If that’s called, I will make that explanation to the jury.
"Then when it comes time to put on his defense he, of course, has that right to testify in his own behalf or not.
"So, if we have any questions now, I would like to have them raised right now, before I call the jury back. This is defense, so, the Prosecutor really has no control over the situation.
"You have a right to call whom you wish.”

When asked by the court whether there was "anything before we call the jury back?”, Herbin’s counsel replied, "I have nothing”. Thereupon, defendant Bashans’ counsel called Herbin to testify, and the following occurred:

"THE COURT: Mr. Bright [Herbin’s counsel]?
"MR. BRIGHT: Your Honor, the election as to whether or not Mr. Herbin shall take the stand is his own election. He is a co-defendant in this matter.
"I would object to the calling of Mr. Herbin as a witness by Mr. Frank and would state for the court that Mr. Herbin elects not to take the stand at this point, but reserves the right to take the stand on his own behalf, if he desires to do so.
"THE COURT: The court would instruct the jury that this is the right of Mr. Herbin. He is a co-defendant in this case, and under our system of law, as I instructed you at the beginning, these defendants are presumed to be innocent of the charges against them; the burden of proof is on the People to prove their guilt, and no man on trial may be required to give testimony in a case. He may do so, if he wishes, or he may decline to do so.
"If he declines to do so, you, as jurors, cannot consider the fact that he does not testify in any way as inferring [sic] guilt, because the duty remains at all times in a criminal case on the People to prove the guilt of the people accused of a crime beyond a reasonable doubt.
"So, Mr. Herbin has a right not to take the stand in this case, and you may not in any way infer anything from his refusal at this time to be called as a witness.
"Call your next witness * * * .”

The trial judge was in error when he stated that "you [Bashans’ counsel] have a right to call whom you wish”. As the Court observed in People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977),

"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify. The American Bar Association standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant
"— 'knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence’;
"— 'to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.’

That Bashans’ right to call Herbin was thus qualified is clear not only from the standards above quoted, but also from the result in Giacalone, supra. The question remains, however, whether the error committed by Bashans’ attorney when he went through the motions of calling codefendant Herbin, who he knew intended to claim his privilege not to testify, warrants reversal. For the reasons outlined below, we conclude it does not.

The most basic distinction between Giacalone and the present case is that here it was co-defense counsel, and not the prosecutor, who committed the error. Although we acknowledge that in more aggravated circumstances this distinction would not necessarily be controlling, since the standards above quoted apply equally to defense counsel and prosecutors, that it has some significance is strongly suggested by Giacalone and the authorities relied upon therein, all of which involve prosecutorial error. See Giacalone, supra, at 645 n 6, 646, 647 n 8, People v Dahrooge, 173 Mich 375; 139 NW 22 (1912), People v Trine, 164 Mich 1; 129 NW 3 (1910), Anno: Prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense with which accused is charged, 86 ALR2d 1443. Here the state did not attempt to implant an unfair inference in the minds of the jurors by emphasizing the fact that a person closely associated with the defendant had chosen to exercise his privilege not to testify.

Secondly, as the extensive quotations from the proceedings reveal, the procedure employed here was outlined to Herbin’s counsel by the trial judge before the jury returned, yet defense counsel failed to interpose any objection at that time. Although we disapprove the practice of permitting counsel to call a codefendant who he already knew would raise a claim of privilege, Bashans’ counsel must share the blame for whatever potential prejudice to his client may have resulted, since he failed to raise any objection to the procedure that he knew beforehand would unfold before the jury. Counsel’s pro forma objection when his client was called was, in effect, an agreed upon signal to the trial judge to give the curative cautionary instruction that followed, rather than a timely objection to his client being called. Counsel’s failure to lodge a timely objection distinguishes this case from Giacalone, supra, at 647.

The most important distinction between this case and Giacalone, supra, at 647, however, is that here the trial judge was careful to instruct the jury concerning Herbin’s claim of privilege.

"Where error is assigned because the prosecution has called as a witness one involved with the defendant in the commission of the offense for which the defendant is on trial only to elicit from the witness a refusal to testify under claim of privilege, an appropriate curative instruction or admonition to the jury will usually eliminate the prejudice created by the incident or cure the error.” Anno, supra, at 1456.

In this case the instruction, as well as the objection, was carefully framed in terms of an absolute right to testify, or not, as Herbin chose. Herbin was not even required to take the stand and submit to questioning before he claimed his privilege and obtained the insulating instruction. Cf. Giacalone, supra, at 645 n 6, 646, People v Trine, supra, People v Dahrooge, supra, People v Savard, 73 Mich App 175; 250 NW2d 565 (1977), People v McNary, 43 Mich App 134; 203 NW2d 919 (1972), aff'd 388 Mich 799 (1972). Consequently, absolutely no questioning occurred from which any particular prejudicial inference could have arisen. Cf. United States v Maloney, 262 F2d 535, 537-538 (CA 2, 1959).

We conclude that, although the trial judge ought not to have permitted defense counsel to call a codefendant who he already knew would not testify, the lapse, when viewed in the context of the entire trial, did not amount to a planned or deliberate attempt to make capital out of a witness’s refusal to testify. See Namet v United States, 373 US 179, 189; 83 S Ct 1151, 1156; 10 L Ed 2d 278, 285 (1963). Therefore, reversal is neither required nor warranted. See People v Giacalone, supra, at 647.

IV

The contention that the arresting officers were without authority to arrest defendants because the arrest occurred outside of their jurisdiction is without merit. Although it is true that officers acting outside of their own jurisdiction and not in conjunction with a law enforcement department that has jurisdiction do so without police authority, see MCLA 764.2a; MSA 28.861(1), given probable cause, any citizen, including a police officer acting outside of his jurisdiction, may make an arrest for a felony being committed in his presence or when the person to be arrested has committed a felony, although not in the presence of the person seeking to make the arrest. MCLA 764.16; MSA 28.875. The officers’ surveillance of the house that was broken and entered, to which they followed defendants from their own jurisdiction, throughout the commission of the crime clearly gave them probable cause to arrest defendants pursuant to MCLA 764.16; MSA 28.875.

With regard to Bashans’ counsel’s attempt to impeach detective Stinson’s testimony with an allegedly inconsistent statement contained in his police report, we find no error in the trial judge’s refusal to permit it. The matter was not only collateral and the subject of opinion, but the question was entirely unsupported by detective Stinson’s report.

The convictions are affirmed.

       In his objection to the judge’s charge, Bashans’ counsel referred to instructions on the lesser offenses of "larceny from a building” and "breaking and entering without permission”. On appeal, defendant Bashans refers to the offenses variously as "larceny from a building” and "entering without breaking and without permission”, and "larceny” and "breaking and entering of a dwelling without permission”.

       We leave for determination in future cases the question of whether other imprecise requests satisfy the requirements of People v Henry, 395 Mich 367; 236 NW2d 489 (1975), and People v Herbert Smith, 396 Mich 362; 240 NW2d 245 (1976). It is also unnecessary to determine which of defense counsel’s two oral requests for instructions governed, since neither request was adequate.
      Of course, if defense counsel is regarded as having requested instruction on the 90-day misdemeanor of entering with or without breaking without permission, MCLA 750.115; MSA 28.310, see MCLA 750.504; MSA 28.772, no instruction on that offense would be permitted at a second trial under the prospective rule of People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), and therefore reversal on this point would not be warranted. See People v Rappuhn, 78 Mich App 348; 260 NW2d 90 (1977).

       In light of our holding, it is unnecessary to add to the confusion generated by the Supreme Court’s cryptic order in People v Keatts, 54 Mich App 618; 221 NW2d 455 (1974), rev’d without opinion, 396 Mich 803 (1976). Since Keatts involved a conviction for attempted larceny in a building, even Judge Bashara’s dissenting opinion in Keatts suggests that instruction still would not have been required on larceny, People v Page, 73 Mich App 667, 670, 671; 252 NW2d 239 (1977), People v Robert Brown, 72 Mich App 749, 750; 250 NW2d 522 (1976), or larceny in a building, People v Huffman, 315 Mich 134; 23 NW2d 236 (1946), People v Page, supra, at 670, 676-678, People v Robert Brown, supra, at 750, and this would be so even if defense counsel had unequivocally elected to request instruction on either or both offenses.

       "THE COURT: Mr. Herbin, I am going to have to put you on the record on this case here. Do you understand that you are on co-trial with Mr. Bashans in this case, and as I will be telling the jury, each of you has a right to separate consideration, and the election to testify or not to testify is within your prerogative. And if you choose not to testify, I will tell this jury they have no right to infer guilt from your silence.
      "This is basic to our system and a right that we have to inform every defendant of before we take his plea.
      "Now, if you elect to answer this, Mr. Frank has no right to call you as a co-defendant in this case, on the very grounds that you do not have to. You are being tried with Mr. Bashans and you do not have to and he cannot invade that right of yours no more than the Prosecution could call you under any theory of the case.
      "So, if you give up this right, of course, then once you give this up, you will give it up on this record. And when you do, you have an irretraceable step.
      "You have heard the opening statement of Mr. Bashans’ attorney in which he admits being at 6150 Townline Road. Now, this is a very important element in this case, which the People must prove. And if you take that stand, and once you waive this privilege, then you have waived it. You can’t later on claim that at the time we come to your case, which Mr. Bright will be making an opening statement on, after Mr. Frank’s.
      "There is no way you can retrace this.”

       "ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function (Approved Draft, 1971), § 5.6(b) (the prosecution function) and § 7.5(b) (the defense function).

        "Id., § 5.7(c) (the prosecution function) and § 7.6(c) (the defense function).”

        See United States v Maloney, 262 F2d 535, 538 (CA 2, 1959) ("We rest our decision therefore upon the fact that the accredited ritual was not followed * * * .”), cf. People v Giacalone, 399 Mich 642, 647 n 8; 250 NW2d 492 (1977) (expressing some doubt, but not deciding, whether a curative instruction would cure the error).


author: H. D. Stair, J.

text:
    PEOPLE v ROY PEOPLE v BERRIER
    1. Criminal Law — Entrapment—Objective Test.
    The Michigan Supreme Court has adopted the objective test for the defense of entrapment; the objective test focuses upon the police conduct itself without regard to the predisposition of the particular defendant to have engaged in the crime.
    2. Criminal Law — Entrapment—Objective Test — Legal Question —Public Policy.
    The issue of entrapment under the objective test is a legal question to be decided by the trial court; this legal decision focuses basically on public policy grounds, specifically, on which police tactics involving the detection and prevention of crimes are justifiable in a free society.
    3. Criminal Law — Entrapment—Objective Test — Predisposition to Crime — Police Officers — Undercover Activity — Opportunity to Commit Crime.
    A person’s predisposition to crime should not expose him to unlawful government participation in a criminal transaction; this does not mean that the government’s use of undercover activity, strategy, or deception is necessarily unlawful and government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit a crime the opportunity to do so.
    References for Points in Headnotes
    [1-3] 21 Am Jur 2d, Criminal Law §§ 143-145.
    Availability of defense of entrapment where accused denies participating at all in offense. 61 ALR2d 677.
    Appeal from Jackson, Russell E. Noble, J.
    Submitted June 20, 1977, at Lansing.
    (Docket Nos. 29477, 77-1079.)
    Decided January 23, 1978.
    Leave to appeal denied, 402 Mich —.
    James R. Roy, Jr., and Harrison Berrier were charged with conspiracy to deliver heroin, conspiracy to possess heroin, attempted delivery of heroin, attempted possession of heroin, and defendant Roy was also charged with wilful neglect of duty. Motion to quash the information granted and charges dismissed. The people appeal.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert C. Ward, Jr., Assistant Attorney General, for the people.

      Myron E. Sanderson, for defendant Roy.

      Christian & Conant, for defendant Berrier.
    Before: D. F. Walsh, P. J., and Quinn and H. D. Stair, JJ.

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

   H. D. Stair, J.

Defendants James Roy, Jr. and Harrison Berrier were arrested and charged with four offenses: conspiracy to deliver heroin, MCLA 750.157a; MSA 28.354(1), MCLA 335.341(1); MSA 18.1070(41)(1), conspiracy to possess heroin, MCLA 750.157a; MSA 28.354(1), MCLA 335.341(4), MSA 18.1070(41)(4), attempted delivery of heroin, MCLA 750.92; MSA 28.287, MCLA 335.341(1); MSA 18.1070(41)(1), and attempted possession of heroin, MCLA 750.92; MSA 28.287, MCLA 335.341(4); MSA 18.1070(41)(4). Defendant Roy was also charged with wilful neglect of duty, MCLA 750.478; MSA 28.746.

Prior to the scheduled trial date defendants filed a motion to quash the information, asserting that they had been entrapped. After oral arguments and a stipulation that the trial judge consider the preliminary examination transcript in lieu of an evidentiary hearing, the court ruled that defendants had been entrapped and ordered all evidence suppressed and the charges dismissed. The prosecution brings the present appeal.

The facts of the present case were detailed at the preliminary examination. Ronald Stardevant, an inmate of Jackson Prison, wrote a letter to the Michigan Attorney General’s office seeking a personal interview. Special agent Charles Rettstadt, of the Attorney General’s Organized Crime Division, met with Stardevant on October 21, 1975. Stardevant expressed a fear that California authorities were in some manner seeking to interfere with his chances of parole. Stardevant sought the agent’s help in gaining parole. At one point of the conversation Stardevant mentioned the amount of drug traffic in Jackson Prison, but denied personal knowledge of the methods used.

At a second meeting Stardevant told Rettstadt that he had found out how drugs could be smuggled into the prison. The method was that an inmate who had a drug seller on the outside would pass on his seller’s phone number to an inmate who had a contact with a prison employee. The employee would phone the seller, meet with him outside of the prison, and then transport the drugs into the prison. The employee would give the drugs to his inmate-contact, who would then deliver them to the buyer. The employee and the inmate-contact would be paid a service charge for their part of the transaction. After hearing of this method Rettstadt instructed Stardevant to find out specific names of inmates who would arrange this type of drug deal.

At their next meeting Stardevant told Rettstadt that he had talked to defendant Berrier, a fellow inmate, and that Berrier had told him that if he had a contact on the outside that drugs could get into the prison. Rettstadt gave Stardevant a phone number and code name to pass on to Berrier.

Stardevant informed Berrier of the phone number and code name. A few days later Rettstadt received a call from a man, later identified as Roy, at the special number. Roy asked for "Duke”, the code name. Rettstadt arranged to meet with Roy at a shopping center parking lot.

At the meeting Rettstadt gave to Roy $100 in cash and a packet containing a facsimile of heroin that had been prepared by a state police chemist. Rettstadt told Roy that he would pay another $100 after he learned that his buyer (Stardevant) received the drugs. Roy at one point told Rettstadt that he was a prison employee, and another time said that he was a prison guard. In fact, Roy was a prison industries employee.

The next day Stardevant received a foil package containing a powdery substance from Berrier, which Berrier said had been brought into the prison from Stardevant’s dealer. Berrier apparently suspected that the substance was not real heroin and took some of it to test.

Stardevant gave the package to a prison security guard who then transferred it to Rettstadt. The chemist analyzed the substance and found it to be the same facsimile heroin he had originally provided.

When Berrier asked Stardevant why the heroin was fake, Stardevant replied that his dealer had not trusted the arrangment and had sent through a test package to see if it would actually reach Stardevant. Stardevant told Berrier to have his contact call the phone number again to set up the real transaction.

The same day Rettstadt received another call from Roy. A new meeting was set up. At the second meeting Rettstadt gave Roy more money and another package of facsimile heroin. Roy was then arrested as he drove out of the parking lot. Berrier was arrested inside of the prison.

In People v Turner, 390 Mich 7; 210 NW2d 336 (1973), the Michigan Supreme Court adopted for use in Michigan the "objective test” for entrapment. This test was originally set out by the dissenting opinion of Justice Stewart in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). In Russell, Justice Stewart stated the objective test as follows:

"[W]hen the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.” United States v Russell, supra, at 445.

The objective test thus focuses on the police conduct itself without regard to the predisposition of the particular defendant to have engaged in the crime.

Entrapment under the objective test is a legal question to be decided by the trial court. People v Sheline, 64 Mich App 193; 235 NW2d 177 (1975), lv granted, 395 Mich 817 (1975). The legal decision focuses basically on public policy grounds, specifically on which police tactics involving the detection and prevention of crime are justifiable in a free society. In Turner, supra, the Court criticized the use of the subjective test because it:

"fails to focus on the real concern in these cases— whether the actions of the police were so reprehensible under the circumstances, that the Court should refuse, as a matter of public policy, to permit a conviction to stand”. People v Turner, supra, at 22.

The present case involves a situation where the government agents were operating on both ends of a supposed drug transaction. The informant inside of Jackson Prison acted as the buyer and had direct contact with defendant Berrier. The undercover agent on the outside acted as the supplier and had direct contact with defendant Roy. This type of arrangement is sometimes referred to as a "take back” sale, where the intermediary between the two government agents is arrested for his part of the transaction. Although a different panel of this Court has held a "take back” sale to constitute entrapment, we do not find that the defense was established in the present case.

Focusing solely on the police conduct, as required by the Turner test, this Court does not consider that conduct to be reprehensible under the circumstances. It must be presumed that of the two defendants involved, the key person in the government’s view was Roy, the prison employee. Without a conduit who can freely bring drugs into the prison and transfer them to an inmate there would be no drug trafficking. Under these facts, the investigation centered on getting direct evidence of Roy’s involvement.

Roy, however, did not operate unless an inmate provided him with an outside source of drugs. To obtain the required evidence, therefore, it was necessary for the police to provide the outside contact. But the method of operation was not suggested by the police. The plan originated with Roy and Berrier. Nor did the police use any tactics calculated to induce the defendants to commit a crime they were not otherwise ready to commit. They merely followed instructions given them by Berrier.

In United States v Russell, supra, Justice Stewart stated his view that a person’s predisposition to crime should not expose him to unlawful government participation in the criminal transaction. He qualified that opinion, however, with the following statement:

"This does not mean, of course, that the Government’s use of undercover activity, strategy, or deception is necessarily unlawful. Lewis v United States, 385 US 206, 208-209; 87 S Ct 424; 17 L Ed 2d 312 (1966). Indeed, many crimes, especially so-called victimless crimes, could not otherwise be detected. Thus, government agents may engage in conduct that is likely, when objectively considered, to afford a person ready and willing to commit the crime an opportunity to do so. Osborn v United States, 385 US 323, 331-332; 87 S Ct 429; 17 L Ed 2d 394 (1966).” United States v Russell, supra, at 445.

In our judgment, the government agents in this case did nothing more than afford two persons ready and willing to commit a crime an opportunity to do so. The police conduct was not "of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it”. United States v Russell, supra, at 445. We find no entrapment in this case.

The order of the trial court is reversed. The case is remanded for reinstitution of the charges.

Quinn, J., did not participate.

       Under the subjective test, adopted by the Russell majority, the focus of the entrapment inquiry is on whether the particular defendant was predisposed to commit the crime. If so, the entrapment defense is not available.

        People v Stanley, 68 Mich App 559; 243 NW2d 684 (1976), see also Hampton v United States, 425 US 484; 96 S Ct 1646; 48 L Ed 2d 113 (1976) (Brennan, J., dissenting).