author: Per Curiam.

text:
    ELMORE v DETROIT POLICE COMMISSIONER (ON REMAND)
    Docket No. 77-560.
    Submitted June 19, 1978, at Detroit.
    Decided September 6, 1979.
    Leave to appeal denied, 407 Mich 933.
    Plaintiff, Arthur Elmore, joined the Detroit Police Department as a probationary police officer in December 1971. Shortly thereafter he was diagnosed as having chronic lymphocytic luekemia. In February 1972 Elmore was discharged from the police department for medical reasons. Elmore brought, in Wayne Circuit Court, an action for damages for wrongful discharge, alleging that he was asymptomatic and capable of work. Following a jury trial, a judgment of $30,152.53 was entered in favor of plaintiff, Theodore R. Bohn, J. Defendant, Police Commissioner of the City of Detroit, appealed. The Court of Appeals affirmed in an unpublished memorandum opinion on August 11, 1978. Defendant appealed to the Supreme Court, which on March 5, 1979, remanded to the Court of Appeals "for amplification of its opinion and decision by addressing the question: whether the defendant-appellant had to have 'cause’ to terminate plaintiff-appellee or whether defendant-appellant could terminate plaintiff-appellee for any reason during the probationary period”. 406 Mich 872 (1979). Held:

    The provisions of the 1918 Detroit city charter relative to the organization of the police department imply that "cause” had to be established before a probationary police officer could be discharged by the police commissioner.
    Affirmed.
    Municipal Corporations — Probationary Police Officers — Discharge — Cause — Detroit City Charter.
    The provisions of the 1918 Detroit city charter relative to the organization of the police department imply that "cause” had to be established before a probationary police officer could be discharged by the police commissioner.
    Reference for Points in Headnote
    56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 314.

      Dee Edwards, for plaintiff.

      Roger E. Craig, Corporation Counsel, and William Dietrich and Gregory E. Snow, Assistants Corporation Counsel, for defendant.
    Before: D. C. Riley, P.J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   On Remand

Per Curiam.

Following this Court’s affirmance of the jury verdict below, this caúse was remanded to us by our Supreme Court for amplification.

Detroit, as a home-rule city, MCL 117.4j; MSA 5.2083, provided for the establishment of a commissioner of the police who was entrusted with the supervision of the police department. Detroit Charter, Title IV, Chapter 21, § 5. Applicants for employment as patrolmen are subject to the general qualifications imposed in § 8 and must pass the required examination as provided in § 14(h). Title IV, Chapter 21.

An eligibility list of qualified applicants who pass the examination is prepared by the commissioner from which he appoints candidates for patrolmen. That appointment is for a probationary period of six months. The pertinent section further provides: "At or before the expiration of the probationary period the police commissioner may discharge such probationary patrolman or patrolwoman. Upon passing the requirements of the probationary period such probationary patrolman or patrolwoman shall be confirmed as a regular police officer and the appointments shall be deemed permanent”. Title IV, Chapter 21, § 14(1). A subsequent section provides: "No member of the police force shall be removed from the force except upon written charges preferred against him to the commissioner and after opportunity of being heard in his defense, but the commissioner may suspend any member of the force pending the hearing of the charges against him.” Title IV, Chapter 21, §16.

The only other relevant provision in this inquiry is the Detroit ordinance which specifies the minimum employment standards for law enforcement officers. In pertinent part it directs that the applicant-trainee "shall be free from any physical defects, chronic diseases, organic diseases, organic or functional conditions, or mental instabilities which may tend to impair efficient performance of duty which might endanger the lives of others or himself if he lacks these qualifications”. Detroit City Code, § 46-4-l(H). At trial the police commissioner was'unable to demonstrate that plaintiffs disease would impair his efficient performance of duty as a patrolman.

Throughout the entire chapter of the Detroit charter concerning police there is only one specific reference to removal of an employee with or without cause. That occurs with reference to privately employed patrolmen who "shall hold office at the pleasure of the commissioner * * * and may be removed at any time by the commissioner without cause assigned therefor.” Title IV, Chapter 21, § 10. This stands in contrast with the less explicit provision that "the police commissioner may discharge such probationary patrolman or patrolwoman.” Title IV, Chapter 21, § 14(1).

Plaintiff in this case was sworn in as a Detroit Police Officer on December 27, 1971. By the provisions of the Charter he was a police officer, Title IV, Chapter 21, § 14(c). He was, therefore, entitled to the "opportunity of being heard in his defense” before being separated from the police force. Title IV, Chapter 21, § 16. We conclude that the applicable charter provisions imply that "cause” must be established. These charter provisions must control our resolution. See Ture v Ecorse City Council, 331 Mich 380; 49 NW2d 339 (1951).

Accordingly, we did and do affirm. Costs to appellee.

B. M. Hensick, J., not participating.

       "* * * the matter is REMANDED to the Court of Appeals for amplification of its opinion and decision by addressing the following question: whether the defendant-appellant had to have 'cause’ to terminate the employment of plaintiff-appellee or whether defendant-appellant could terminate plaintiff-appellee for any reason during the probationary period. The amplified opinion is then to be filed with this Court.” 406 Mich 872 (1979).

       Plaintiff was dismissed on February 7, 1972, therefore, the provisions of the 1918 Detroit City charter apply to his trial, rather than those of the new Detroit charter, effective July 1, 1974.


source: Caselaw Access Project

license: Public Domain

text:
    THE YODER COMPANY v LIBERTY MUTUAL INSURANCE COMPANY
    Docket No. 78-723.
    Submitted May 15, 1979, at Detroit.
    Decided September 6, 1979.
    Liberty Mutual Insurance Company paid certain workmen’s compensation benefits as a result of the death of Daniel Maddux, who was killed when he was caught in a metal slitting machine designed and manufactured and sold to his employer by The Yoder Company. Liberty Mutual and the estate of Maddux allied in a product liability action against The Yoder Company. Yoder entered a counterclaim for contribution against Liberty Mutual alleging that Liberty Mutual’s negligently performed safety inspections were a contributing cause of Maddux’s death. The claim and counterclaim were severed for separate trials. Liberty Mutual and the estate of Maddux prevailed in the product liability action. Yoder obtained a judgment in the trial of its contribution claim. Defendant Liberty Mutual moved for judgment non obstante veredicto. The motion was granted, Wayne Circuit Court, John D. O’Hair, J. Plaintiff appeals. On appeal, Liberty Mutual, having had an unfavorable result from the trial jury, argues that no state of proofs may support a judgment in favor of the plaintiff because the claim for contribution is not one upon which relief may be granted. Liberty Mutual’s contentions are based upon the Restatement of Torts, Second Edition. According to Liberty Mutual, the restatement should be interpreted by application of the maxim, expressio unius est exclnsio aiterius, reasoning that the express creation of a cause of action in favor of the third person acts to prevent application of ordinary principles of contribution. Held:

    1. The Restatement of Torts is not a statute but a treatise, an attempt to categorically recite the content of the common law. Use of statutory interpretation techniques in the construction of the Restatement language, which is not produced by the legislative process, is not advisable. The authority which should be used is not the Restatement per se but the cases in this jurisdiction which have adopted and explained those provisions. Case authority holds that an employee injured by a hazard at his workplace may bring an action against his employer’s workmen’s compensation insurer on the claim that the insurer’s negligent inspection of the workplace was a cause of the injury.

      References for Points in Headnotes

       57 Am Jur 2d, Negligence § 67.

       73 Am Jur 2d, Statutes §§ 325-332.

       46 Am Jur 2d, Judgments §§ 107, 108.
    Practice and procedure with respect to motions for judgment notwithstanding or in default of verdict under Federal Civil Procedure Rule 50(b) or like state provisions. 69 ALR2d 449.

      2. Judgment non obstante veredicto is appropriate only if the movant is entitled to judgment as a matter of law; where reasonable minds could differ, a jury’s verdict should not be ignored. Reasonable minds could differ where it cannot be said upon review of the record that Maddux’s employer did not rely on its insurer’s inspections or that the insurer did not undertake to perform the employer’s role of safety monitor. The trial court erred in granting defendant’s motion.
    Judgment vacated and cause remanded for entry of judgment on the jury’s verdict.
    1. Negligence — Gratuitous Undertakings — Third Persons — Due Care — Reliance.
    A person who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (1) his failure to exercise reasonable care increases the risk of harm, or (2) he has undertaken to perform a duty owed by the other to the third person, or (3) the harm is suffered because of reliance of the other or third person upon the undertaking.
    2. Courts — Case Precedent — Legal Precedent — Restatement of Law — Construction.
    The Restatement of the Law is not a statute, but an attempt to categorically recite the content of the common law; therefore, use of statutory interpretation techniques in the construction of the Restatement’s language, which is not produced by the legislative process, is not advisable.
    3. Judgment — Judgment Notwithstanding the Verdict — Evidence — Inferences — Reasonable Minds — Jury Verdicts.
    Judgment non obstante veredicto is appropriate only when the evidence and the inferences to be drawn from it, viewed in the light most favorable to the opponent of the motion, entitle the movant to judgment as a matter of law; only when reasonable minds could not differ in the conclusion favorable to the movant may a jury’s verdict be ignored.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John P. Jacobs), for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, and Gromek, Bendure & Thomas, for defendant.
    Before: N. J. Kaufman, P.J., and Allen and K. B. Glaser, Jr., JJ.

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

   Per Curiam.

Daniel Maddux was killed in 1970 when he was caught in a metal slitting machine designed and manufactured and sold to his employer by the counter-plaintiff-appellant (hereinafter plaintiff). Counter-defendant-appellee (hereinafter defendant) paid certain workmen’s compensation benefits as a result of the death, and it and the estate of Maddux allied in an action in product liability against the plaintiff. The plaintiff entered a counterclaim for contribution against the defendant under the provisions of MCL 600.2925; MSA 27A.2925, now MCL 600.2925a(l); MSA 27A.2925(1), alleging that the defendant’s negligently performed safety inspections were a contributing cause of the death and the ensuing judgment against the plaintiff.

The claim and counterclaim were severed for separate trials. The defendant and the estate of Maddux were successful, recovering from the plaintiff a sum which was divided in accordance with the applicable statutes.

The plaintiff prevailed in the trial of its contribution claim, recovering from the defendant an amount equal to approximately one-half of the judgment in favor of the defendant and the estate. Upon the defendant’s motion, the trial judge granted judgment for the defendant n.o.v. The plaintiff brings this appeal as of right.

Having had an unfavorable result from the jury, the defendant argues on appeal that no state of proofs may support a judgment in favor of the plaintiff because the claim for contribution based upon negligent inspection is not one upon which relief may be granted. The defendant’s arguments center on suggested statute-like interpretations of 2 Restatement Torts, 2d, § 324A, p 142, upon which it claims its liability is based. The defendant recognizes, of course, that the authority for this action is not the Restatement per se, but the cases in this jurisdiction which have adopted and explained those provisions.

An employee injured by a hazard at his workplace may bring an action against his employer’s workmen’s compensation insurer on the claim that the insurer’s negligent inspection of the workplace was a cause of the injury. Olkowski v Aetna Casualty & Surety Co, 53 Mich App 497; 220 NW2d 97 (1974), aff'd 393 Mich 758; 223 NW2d 296 (1974).

Olkowski adopted the section of the Restatement at issue in this action:

"One who undertakes gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” 2 Restatement Torts, 2d, § 324A, p 142.

The defendant argues that the Restatement should be interpreted by application of the maxim, "expressio unius est exelusio alterius,” reasoning that the express creation of a cause of action in favor of the "third person” (here, Mr. Maddux) acts to prevent application of ordinary principles of contribution. The Restatement is not a statute, but an attempt to categorically recite the content of the common law. Use of statutory interpretation techniques in the construction of language not produced by the legislative process does not seem advisable. In any event, we note that this Court has recognized the application of § 324A in a contribution action similar to the one at bar in Stafford v E W Bliss Co, 86 Mich App 197; 272 NW2d 237 (1978).

The plaintiff’s claim asserted only the bases of liability described in subsections (b) and (c) of § 324A. In hearing the defendant’s motion for directed verdict, the trial court observed:

"I’m going to take the Motion under advisement for these reasons; I think the Motion has merit. I do not believe in my judgment and in evaluation of the record, the document [sic doctrine] of favorable view, that Liberty Mutual by providing services specifically in the form of recommendations to the Wolverine Company, increased the risk of hazard to employees in total or in part, assuming that the actual discharge of Wolverine’s duty to its employees to provide a safe place to work, or that Wolverine relied exclusively upon its insurance carrier to provide direction as to what was necessary to obviate hazards.”
* * *
"In the event that the Motion is not mooted by they [sic] jury’s verdict, I’m telling you that I will grant it and in so telling you I hope that I do not diminish the vigor with which you will pursue the matter, that is the one danger I see in making a declaration of this character.”

Judgment n.o.v. is appropriate only when the evidence and the inferences to be drawn from it, viewed in the light most favorable to the opponent of the motion, entitle the movant to judgment as a matter of law. Only when reasonable minds could not differ in the conclusion favorable to the movant may the jury’s verdict be ignored. See Andrews v Insurance Company of North America, 60 Mich App 190; 230 NW2d 371 (1975). A review of the record indicates that the trial court erred in granting the defendant’s motion.

The relations between the defendant and the employer of Maddux were the subject of considerable and varied testimony. Of particular interest was the nature of the employer’s own safety program; there is evidence to indicate both that the employer had no organized program and that its supervisory employees were charged with the duty to observe safety problems in the facility. The defendant’s employees made numerous inspection tours of the plant and on occasion made recommendations to the employer concerning safety problems therein. There was testimony that the employer’s practice was to rely on the defendant’s inspections in place of an internal safety program. On this record, it cannot be said that the employer did not rely on the defendant’s inspections or that the defendant did not undertake to perform the employer’s role of safety monitor.

The judgment is vacated and the cause remanded for entry of judgment on the jury’s verdict.

       This cause of action was cut off by legislative action in 1972, amending MCL 418.131; MSA 17.237(131). That amendment does not control the liabilities arising from this accident.


author: R. B. Burns, J.

text:
    PEOPLE v BROOKS
    Docket No. 31222.
    Submitted August 29, 1979, at Lansing.
    Decided September 19, 1979.
    Joseph C. Brooks was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein, Washtenaw Circuit Court, William F. Ager, J. The defendant appeals, alleging that he was denied a fair trial since his trial was held partially in concert with the trial of a codefendant whose defense tended to incriminate the defendant. Held:

    The trial court employed a dual jury system in the trial of the defendant and his codefendant. With this procedure two separate juries were selected, one to hear the case against the defendant and one to hear the case against the codefendant. Both juries were present for the prosecutor’s opening statement and the prosecutor’s direct examination of witnesses. At all other times only one jury was present, each hearing the matters relevant to its own case. The trial court successfully avoided pitting one defendant against the other and successfully avoided convicting one defendant through the efforts of the other defendant. The conviction of defendant Brooks could only have been based on the evidence presented by the prosecution and in defense of defendant Brooks. The dual jury trial afforded the defendant a trial which was in compliance with the rights and protections afforded by the United States and Michigan Constitutions. The defendant had a fair trial.
    Affirmed.
    Criminal Law — Fair Trial — Dual Jury Trial — Constitutional Law.
    A defendant was not denied a fair trial by the use of a dual jury trial, wherein the defendant and a codefendant were tried in a joint trial before two separate juries, one for each defendant, where the court avoided the problem of "pitting one defendant against the other, each trying to save himself at the detriment of the other” by removing the defendant’s jury during the presentation of evidence by the codefendant and where all of the constitutional guarantees pertaining to a criminal trial were provided by the dual jury trial.

      Reference for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 223, 235.

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

      Hazlett & Judge, for defendant on appeal.
    Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   R. B. Burns, J.

Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny therein. MCL 750.110; MSA 28.305. He appeals raising three issues, two of which became moot when a corrected transcript of the trial was filed. The third puts in issue the fairness of the defendant’s trial which was partially held in concert with the trial of his codefendant, Harold Martin.

A motion to consolidate the trials of defendant Brooks and Martin had been made, but at the beginning of trial it became apparent that Martin’s defense would incriminate defendant Brooks. After a conference with the prosecutor and both defense counsel, the trial court decided that in the interest of judicial economy the cases would be tried in part together with separate juries. Upon the suggestion of counsel a procedure was arrived at in which both juries would be present for the prosecutor’s opening statement and the prosecutor’s direct examination of witnesses. At all other times only one jury would be present, each hearing the matters relevant to its own case. The trial court stated that the jury would be excused at the request of either defendant. No objections were made to this procedure during the dual trials.

During his instructions, the trial court commented on the success of the procedure:

"Things have gone quite smoothly. This is sort of a new procedure that we have followed here. It has helped the Court, assisted the Court in that where it has taken us four days, we have been able to handle it in a little over two days. It is because of the cooperation of Counsel, parties in the case, and, of course the Juries. We have had, I guess, a couple of times, traffic jams going in and out of the Courtroom but these are very, very sferious proceedings and are important both to the People and to the Defendant.”

Defendant now asserts that the dual trial procedure was totally unacceptable and resulted in confusion and chaos. Defendant claims that he was denied a fair trial under the United States and Michigan Constitutions and also that he was deprived of a separate trial which was mandated by the inconsistent defense of defendant Martin.

The trial court recognized the problem inherent in jointly trying defendant Brooks and Martin. The trial court’s solution to this problem, rather than separate trials, was simultaneous trials before separate juries. The first question which this Court must answer is whether that solution provided defendant with the same protections as he would have enjoyed through a separate trial.

In People v Hurst, 396 Mich 1, 9; 238 NW2d 6 (1976), the Michigan Supreme Court pinpointed the difficulty which arose in a joint trial of defendants who presented inconsistent defenses: "By insisting on a joint trial, the state succeeded in pitting one defendant against the other, each trying to save himself at the detriment of the other.” The Court noted that such a situation may produce a "spectacle” in which the prosecution is relieved of carrying its burden of proof by the attempt of a defendant to clear himself at the expense of his codefendant. Id., 7.

This Court believes that the dual jury procedure used in this case successfully avoided convicting one defendant through the efforts of the other. The Brooks jury heard none of the evidence presented by defendant Martin. Their verdict could only have been based on the evidence presented by the prosecution and in defendant Brooks’ defense.

Having found that the dual jury procedure avoided the pitfalls inherent in a joint trial of defendant Brooks and Martin, the Court must next determine if defendant was afforded a trial which comports with the rights and protections of the United States and Michigan Constitutions.

US Const, Art III, § 2(3) provides: "The Trial of all Crimes * * * shall be by Jury.”

US Const, Am VI, provides:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.”

Const 1963, art 1, § 14, provides: "The right of trial by jury shall remain.”

And in the course of trial no person shall be "deprived of life, liberty, or property, without due process of law”. US Const, Am V. Const 1963, art 1, § 17.

Each of the rights guaranteed to defendant have been provided by the dual jury trial. Defendant’s challenge of the dual jury rests upon three events, none of which appear to the Court to be significant. They are "traffic jams” in the courtroom, the seating of one of the juries outside the jury box, and the ability of the juries to observe each other. Certainly there is nothing sacrosanct in the placement of the jury in the jury box and in all trials individual jurors are able to observe the other jurors with whom they sit. Finally, there is no indication that any rowdiness or breach of decorum accompanied the complained-of traffic jam. In fact, the trial court had commented that "[t]hings have gone quite smoothly”.

In approving the dual jury procedure, the Court briefly notes that dual juries have been used in the Federal system. United States v Rowan, 518 F2d 685 (CA 6, 1975), cert den 423 US 949; 96 S Ct 368; 46 L Ed 2d 284 (1975), and United States v Sidman, 470 F2d 1158 (CA 9, 1972), cert den 409 US 1127; 93 S Ct 948; 35 L Ed 2d 260 (1973). We note, in particular, the statement of the Third Circuit in Byrne v Matczak, 254 F2d 525, 529 (CA 3, 1958), cert den 358 US 816; 79 S Ct 24; 3 L Ed 2d 58 (1958), adopted by the Ninth Circuit in Sidman, at 1168, that "fair 'new procedures which tend to facilitate proper fact finding, are allowable, although not traditional”’.

Finding that defendant was afforded a fair trial, we affirm his conviction.

       It is obvious that the dual jury procedure will impose upon the good natures and skills of the court reporters upon whom will fall the duty of keeping separate records of the proceedings. The Court believes that this does not outweigh the advantages gained and that this difficulty does not affect the fairness of the trial.


author: W. Van Valkenburg, J.

text:
    PEOPLE v KRAAI
    Docket No. 77-262.
    Submitted May 1, 1979, at Lansing.
    Decided September 19, 1979.
    Leave to appeal denied, 407 Mich —.
    Barnard Kraai was convicted of first-degree criminal sexual conduct and, on his plea of guilty, of being a habitual second felony offender, Ingham Circuit Court, James T. Kallman, J. Complainant, a 15-year-old girl, testified that she was attacked by a man while walking through a park in Lansing, Michigan, and was forced to perform an act of fellatio on him. The defense was alibi. On appeal, defendant raises four claims of error: (1) that the evidence introduced at the preliminary examination as to the element of personal injury suffered by the victim was insufficient to support binding over on a charge of first-degree criminal sexual conduct, (2) that the trial court erred in allowing the prosecution to introduce evidence of another sexual assault allegedly perpetrated by defendant, (3) that the trial court reversibly erred in its jury instructions on the use of the evidence of defendant’s escape from custody at the time of his circuit court arraignment, and (4) that the prosecution’s introduction of a rebuttal witness was so prejudicial as to constitute reversible error. Held:

    1. Injuries suffered in a sexual assault need not be permanent or substantial. Complainant testified that during the sexual assault she suffered a bloody nose, a slap in the face, a punch to the stomach, strangulation until she lost consciousness and mental anguish. This is sufficient to satisfy the statutory element of personal injury for purposes of establishing first-degree criminal sexual conduct.
    2. Where a defendant’s other bad act is offered to prove identity, the special circumstances common to both the other act and the charged offense must be similar in both instances. The type of force used and the nature of the sexual act were entirely different in the two assaults; therefore, evidence of the other bad act was highly prejudicial and should have been excluded.

      References for Points in Headnotes

       [No Reference]

       29 Am Jur 2d, Evidence §§ 320, 321, 333.

       29 Am Jur 2d, Evidence §§ 321, 333.

       29 Am Jur 2d, Evidence § 322.

       29 Am Jur 2d, Evidence § 285.

       75 Am Jur 2d, Trial § 920.

       29 Am Jur 2d, Evidence §§ 250, 269.

       81 Am Jur 2d, Witnesses § 563.

      3. A defendant’s flight from custody may be admitted to show a defendant’s state of mind but it cannot be considered as substantive proof of guilt. The court’s instruction, "You may consider this fact [escape from custody] in determining the guilt or innocence of the defendant” was erroneous and requires reversal.
    4. The testimony of the rebuttal witness should háve been part of the prosecution’s case in chief. It was not responsive to any issue raised by the defense and tended only to prove the commission of the crime itself. It was highly inappropriate, prejudicial and an improper subject matter for rebuttal testimony.
    Reversed and remanded.
    1. Criminal Law — Criminal Sexual Conduct — Elements — Statutes — Criminal Jury Instructions.
    The statutory element of personal injury for purposes of establishing first-degree criminal sexual conduct means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ; the injuries suffered need not be permanent or substantial, it is sufficient where the assailant inflicts bodily injury upon his victim by slapping, punching, strangulation and causing mental anguish to the victim (MCL 750.520a[f]; MSA 28.788[l][f], CJI 20:2:11).
    2. Criminal Law — Evidence — Other Bad Acts — Admissibility — Exceptions.
    Evidence of a defendant’s other bad acts is generally inadmissible because it prevents an objective determination of the defendant’s guilt or innocence of the crime charged; there are, however, a limited number of statutory and judicial exceptions to this exclusionary rule.
    3. Criminal Law — Evidence — Similar Acts — Probative Value — Prejudice — Tests for Admissibility.
    A trial court’s decision to allow evidence of a criminal defendant’s similar or other bad acts requires that: (1) substantial evidence show that the defendant actually committed the bad act, (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items, (3) the evidence is material and is probative of a matter in issue, and (4) even if all three of the above are satisfied, the trial court must still weigh the evidence’s probative value against its prejudicial effect before deciding whether to admit the evidence.
    4. Criminal Law — Identity — Evidence — Similar Acts — Admissibility — Uncharged Offenses — Inferences.
    Evidence of a defendant’s similar acts may be admissible in order to establish identity; however, where other bad acts are offered to prove identity, the test for admission is as follows: the inference of identity arises when the marks common in the charged and uncharged offenses considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.
    5. Evidence — Instructions to Jury — Escape from Custody — State of Mind — Proof of Guilt.
    Evidence of a defendant’s flight from custody is admissible to show a defendant’s state of mind but it cannot be considered as substantive proof of guilt; therefore, an instruction which states, "You may consider this fact [escape from custody] in determining the guilt or innocence of the defendant” is erroneous.
    6. Instructions to Jury — Conflicting Instructions — Erroneous Instructions — Jury Selection.
    A jury will be presumed to have followed the erroneous instruction where correct and incorrect instructions are given on the same point, especially where the correct and incorrect instructions are not mutually exclusive.
    7. Criminal Law — Evidence — Rebuttal and Rebutting .Evidence.
    Rebuttal is limited to the refutation of relevant and material evidence; therefore, testimony which should have been part of the prosecution’s case in chief, was not responsive to any issue raised by the defense and tended only to prove the commission of the charged crime, is improper subject matter for rebuttal.
    8. Witnesses — Credibility — Impeachment — Good Citizen Standard.
    Discrediting an alibi witness by insinuating that she failed to act as a good citizen is not permitted.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Lee W. Atkinson, Chief, Criminal Division, for plaintiff.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and W. Van Valkenburg, JJ.

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

   W. Van Valkenburg, J.

Defendant was charged with and convicted by jury trial of first-degree criminal sexual conduct contrary to MCL 750.520b; MSA 28.788(2). Defendant also pled guilty to an additional charge of being a habitual second felony offender, MCL 769.10; MSA 28.1082, and was sentenced to two concurrent prison terms of 60 to 90 years. He now appeals as of right. We find numerous errors denying defendant a fair trial and reverse.

Briefly stated, the facts indicate that the 15-year-old complainant was attacked by a man while walking through a park in Lansing, Michigan, around noon on January 23, 1976, and was forced to perform an act of fellatio on her assailant. Defendant offered an alibi defense. Other facts will be detailed when necessary to our discussion of the issues.

Defendant raises four claims of error which warrant discussion: (1) that the evidence introduced at the preliminary examination as to the element of personal injury suffered by the victim was insufficient to support binding over defendant on a charge of first-degree criminal sexual conduct; (2) that the trial court erred in allowing the prosecution to introduce evidence of another sexual assault allegedly perpetrated by defendant; (3) that the trial court reversibly erred in its jury instructions on use of the evidence of defendant’s escape; and (4) that the prosecution’s introduction of one rebuttal witness was so prejudicial as to constitute reversible error.

I

At defendant’s preliminary examination, the complainant testified that during the sexual assault she had suffered a bloody nose, a slap in the face, a punch to the stomach, strangulation until she lost consciousness and mental anguish. Defendant contends on appeal that none of these purported injuries was sufficient to constitute "personal injury” within the meaning of MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), the provision setting forth the elements of first-degree criminal sexual conduct relevant to this prosecution, because no injury was severe or permanent in nature, and that he therefore should not have been bound over on that charge.

The statutory element of "personal injury” for purposes of establishing first-degree criminal sexual conduct is defined in MCL 750.520a(f); MSA 28.788(l)(f):

" 'Personal injury’ means bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ.”

The pertinent Michigan Criminal Jury Instruction, CJI 20:2:11, further provides as follows:

"Personal injury means bodily injury. It also includes any disfigurement, chronic pain, pregnancy, disease, loss or impairment of a sexual or reproductive organ, or mental anguish.' Mental anguish means suffering which occurs at the time of the alleged act.”

We find no indication in the statute that the injuries suffered must necessarily be permanent or substantial. It is sufficient that the assailant inflict bodily injury of the sort described by the complainant in the instant case. People v Thompson, 76 Mich App 705, 710; 257 NW2d 268 (1977).

We also reject defendant’s related contention that the statutory definition of "personal injury” is void for vagueness because, without some saving interpretation of the term, there is no principled distinction between first- and third-degree criminal sexual conduct. Defendant particularly focuses on the mental anguish component of "personal injury”. He argues that conduct which would otherwise constitute only third-degree criminal sexual conduct, MCL 750.520d(1)(b); MSA 28.788(4)(1)(b) (sexual penetration accomplished by force or coercion), necessarily causes at least temporary mental anguish to the victim, thus allowing prosecutors to arbitrarily raise the charge to first-degree criminal sexual conduct, MCL 750.520b(1)(f) (sexual penetration accomplished by force or coercion with infliction of personal injury). Defendant decries this lack of specific criteria to guide prosecutorial charging discretion and asks us to read into the definition of "personal injury” a requirement for serious psychiatric impairment rather than mere mental anguish.

We note defendant’s constitutionally based challenge to the statute because, raised in an appropriate case, it has arguable merit. But this is not such a case. Defendant lacks standing to raise the issue because the evidence of bodily injury to complainant clearly supports a charge of first-degree as opposed to third-degree criminal sexual conduct. Thompson, supra. Cf., People v Swearington, 84 Mich App 372, 374; 269 NW2d 467 (1978).

II

Defendant’s next allegation of error concerns the trial court’s decision to allow evidence, under a similar acts theory, that defendant had perpetrated another sexual assault on a 17-year-old victim in a parklike area in Lansing, Michigan, on February 12, 1976. Over defense counsel’s objection, the trial court ruled that the similar act evidence was material to a matter in issue and that it was more probative than prejudicial.

Although evidence of a defendant’s other bad act is generally inadmissible because it prevents an objective determination of defendant’s guilt or innocence of the crime charged, People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), there are a limited number of statutory and judicial exceptions to this exclusionary rule. See People v Wilkins, 82 Mich App 260, 265-270; 266 NW2d 781 (1978), for a comprehensive delineation of those exceptions.

Under the circumstances of the instant case, the most likely rationale for introducing evidence of another alleged sexual assault by defendant was to prove the identity of the perpetrator of the charged offense. See Wilkins, supra at 269. See also People v Kelly, 386 Mich 330, 333-335; 192 NW2d 494 (1971), People v Oliphant, 399 Mich 472, 489; 250 NW2d 443 (1976), People v Clark, 62 Mich App 740, 742-744; 233 NW2d 856 (1975), People v Gibson, 66 Mich App 531, 536-537; 239 NW2d 414 (1976), People v Golochowicz, 89 Mich App 57, 59-60; 279 NW2d 576 (1979). Because defendant offered an alibi defense, the central factual dispute at trial was whether defendant and not some other individual had committed the sexual assault which complainant described.

Once a basis for offering evidence of a defendant’s other bad act is established, however, it must still be shown that the evidence meets the threshold requirements for admission. These requirements were stated in People v Ernest Smith, 87 Mich App 18, 22; 273 NW2d 573 (1978):

"(1) substantial evidence must show that the defendant actually committed the bad act; (2) some special circumstance about the act sought to be introduced tends to prove one of the statutory items; (3) the evidence is material, i.e., is probative of a matter 'in issue’; and (4) even if all three of the above are satisfied, the trial court must still weigh the evidence’s probative value against its prejudicial effect before deciding whether to admit it.”

See also Golochowicz, supra at 59-60; Wilkins, supra at 267-268; Oliphant, supra. More specifically, where a defendant’s other bad act is offered to prove identity, the test for admission is as follows:

" '[T]he inference of identity arises when the marks common in the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.’ People v Haston, 69 Cal 2d 233, 246; 70 Cal Rptr 419; 444 P2d 91 (1968).” People v Jones, 83 Mich App 559, 566; 269 NW2d 224 (1978).

In the instant case, there was sufficient evidence to show that defendant actually committed the other bad act. But we find a fatal deficiency in the absence of special circumstances common to both the other act and the charged offense from which one could logically infer that the identity of the perpetrator was the same in both instances.

Among the more unpersuasive similarities alleged by the prosecution below were the following: both acts occurred during the afternoon in secluded park areas, both acts involved young victims taken by surprise, and neither act involved robbery as a motive. These attributes of both incidents are also common to many other sexual assaults.

Other common factors emphasized by the prosecution were the manner in which the assailant grabbed both victims from behind by placing one hand over the mouth and the other arm around the waist or shoulders, the way in which both sexual assaults were initiated by rubbing and sucking the victim’s breasts, and the similarities between the victims’ physical descriptions of their assailant (e.g., Caucasian, blue coat, brown pants, medium build). The prosecutor also pointed out that the two assaults occurred within a few weeks of each other and in the same area of the city. The similarity in method of grabbing the victims and in initial attention to the victims’ breasts does tend to indicate a common modus operandi. But again the methods common to these two incidents are not particularly distinctive when compared to those used in other sexual assaults. While there do exist several similarities in physical description, we note that they relate to rather general attributes of appearance and apparel.

The most telling factor in our decision that the other act was wrongly introduced at trial is, however, the number of significant differences in modus operandi between the two assaults. In the assault on which the instant prosecution was based, the assailant never attempted to, hide his identity. He displayed no weapon nor did he intimate that he had one. Instead, he punched, slapped, shoved and choked the victim, inflicting various bodily injuries upon her. After rubbing her vaginal area, he forced her to commit an act of fellatio upon him. By contrast, in the other assault, the assailant obscured his features from the victim by covering most of his face with the hood of his jacket and lifted her shirt up over her face. While he displayed no weapon, he threatened to "cut her up” and patted his coat pocket as if to indicate the presence of a knife. He did not inflict any physical injury upon her. Finally, the assailant shoved the victim’s hairbrush up her vagina and then vaginally penetrated her with his penis three or four times. Thus, the concern for concealment of identity, the type of force used and the nature of the sexual act accomplished were entirely different in the two assaults. Far from being "strikingly similar”, Kelly, supra, Clark, supra, or demonstrating a "singular pattern”, Jones, supra, many of the characteristics of the two assaults were gravely dissimilar. Evidence of the other bad act was highly prejudicial to defendant and should have been excluded.

HI

The next alleged error concerns the trial court’s jury instruction on defendant’s escape from custody at the time of his circuit court arraignment in this case. Over defendant’s objection, the judge instructed as follows:

"There has been some evidence that the Defendant fled from custody of the State after his arrest but before his trial on the charge. You should first determine whether you believe the testimony and whether you believe that that testimony establishes that the Defendant escaped. You may consider this fact in determining the guilt or innocence of the Defendant. It may point to panic, mistake or fear equally as well. While this evidence is not conclusive evidence of defendant’s guilt or innocence, it may be considered along with all the other evidence and circumstances of the case in determining the Defendant’s state of mind.”

The instruction was erroneous and requires reversal. It is well settled in Michigan that evidence of a defendant’s flight from custody is admissible to show defendant’s state of mind. But contrary to the judge’s instruction, it cannot be considered as substantive proof of guilt. People v Bunker, 22 Mich App 396, 408-409; 177 NW2d 644 (1970), People v Cismadija, 167 Mich 210, 215; 132 NW 489 (1911). Even though the judge also correctly charged the jury on use of the escape evidence in determining defendant’s state of mind, we must presume that the jury followed the erroneous instruction. People v Sangster, 33 Mich App 712, 715; 190 NW2d 317 (1971), People v Eggleston, 186 Mich 510, 514-515; 152 NW 944 (1915). This is especially so where, as here, the correct and incorrect instructions were not mutually exclusive.

IV

Finally, defendant alleges that reversible error occurred when the prosecution was allowed to introduce an improper rebuttal witness, defendant’s wrestling coach, to testify about wrestling matches which defendant had failed to attend in January and February of 1976. This witness also testified about a particular wrestling hold allegedly similar to the technique which the complainant’s assailant had used to grab her from behind. The coach was then recalled by the prosecution to demonstrate the wrestling hold on the prosecutor.

The prosecutor argues that defendant’s wrestling schedule was a proper subject of rebuttal inquiry because defendant and his alibi witnesses used it as a focus for their recollection of events on the date of the alleged offense. While the prosecution overstates the witnesses’ reliance on the schedule, we concede some marginal relevance at least in the fact that there was no wrestling match scheduled on the day after the alleged assault. In addition, that portion of the coach’s remarks could npt have been very prejudicial to defendant.

But the coach’s rebuttal testimony about and demonstration of the wrestling hold was highly inappropriate and improper. If admissible at all, the testimony should have been part of the prosecution’s case in chief. It was not responsive to any issue raised by the defense and tended only to prove the commission of the crime itself, an improper subject matter for rebuttal testimony. See People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974). Furthermore, even though defendant did not object, the trial court should have halted immediately the prosecution’s prejudicial courtroom dramatics at the close of trial.

Ip the event of a retrial, we also warn the prosecution to refrain from employing certain unsubstantiated, prejudicial lines of cross-examination against defendant’s alibi witnesses. There was absolutely no factual basis for the prosecutor’s intimations that one alibi witness had been threatened with death by defendant, that her mother had been distressed by defendant’s phone calls or that the witness had gone to the prosecutor’s office to gather information so as to manufacture an alibi for defendant. Neither should the prosecutor have attacked another alibi witness on the grounds that she was remiss in not reporting her knowledge of defendant’s escape to the police. There was no evidence that she herself had assisted defendant’s escape and she had no legal duty to report whatever knowledge she had. Discrediting an alibi witness by insinuating her failure to act as a good citizen is not permissible. Cf., People v Simons, 42 Mich App 400; 202 NW2d 575 (1972). Consonant with our duty to maintain the integrity of the trial process, a duty to which the prosecutor in this case should feel equally dedicated, we cannot tolerate such unwarranted use of innuendo and tactics of intimidation.

Because defendant’s underlying conviction for first-degree criminal sexual conduct is infirm, we must also reverse his habitual second felony offender conviction. Remanded for trial.

       Although the offense allegedly occurred in Ingham County, venue was changed to Delta County because of the nature of the crime and pretrial publicity.

       We briefly note that the habitual offender statute does not create a separate substantive offense, but only permits the trial judge to augment a defendant’s sentence for second and subsequent felonies. People v Shotwell, 352 Mich 42; 88 NW2d 313 (1958). The trial court erred in failing to vacate defendant’s sentence for first-degree criminal sexual assault when sentencing him on the habitual offender conviction. See MCL 769.13; MSA 28.1085.

       At the time of this trial, defendant had only been charged with committing a second act of criminal sexual conduct. Subsequent to his conviction in this case, however, defendant pled guilty to the second offense and was sentenced to a prison term of 10 to 15 years. His guilty plea was affirmed by this Court in an unpublished per curiam opinion. (Docket No. 77-4208, decided November 14, 1978 [unreported]).

       Neither the prosecutor’s arguments below nor the trial court’s jury instructions demonstrated a clear understanding of the potential relevance of defendant’s other bad act. Citing as authority the similar act statute, MCL 768.27; MSA 28.1050, the prosecutor contended that the evidence showed a "scheme, plan or system” used by defendant to obtain forced sex from his victims. But he never specified what connection this alleged plan had to any particular disputed issue at trial. The trial judge instructed the jury that it could consider the other bad act in determining whether defendant was acting purposefully pursuant to a characteristic scheme, plan or system, thus negating the possibility of accident, mistake or misjudgment on his part. We find no indication that defendant’s intent was ever in dispute.

       Defendant was later apprehended in California pursuant to a Federal fugitive warrant and was brought back to Michigan for trial.

         Two of defendant’s alibi witnesses stated that, in reconstructing the events of the date in question, they partially relied on their memories of a scheduled wrestling match the next day. Defendant himsplf did not testify to any such reliance.

       MRE 611(a) now sets forth the standard for mode and order of trial witness interrogation. Although this rule was not in effect at the time of this trial, we note that it would dictate the same result. The committee notes to the text of proposed Rule 611(a), which was passed as proposed, state that it is consistent with prior Michigan law.

       The witness testified that what little "inside information” she had concerning defendant’s escape was communicated to her by her boyfriend and that she herself had no desire to become involved. Her mere failure to report the information to the police does not support any logical inference of bias.


author: V. J. Brennan, J.

text:
    PEOPLE v PAINTMAN
    Docket No. 77-3436.
    Submitted June 6, 1979, at Lansing.
    Decided September 19, 1979.
    Leave to appeal applied for.
    Defendant, Norman Paintman, was charged in the Oakland Circuit Court with four counts of first-degree murder. Prior to trial, a Walker hearing was held and William J. Beer, J., ruled that defendant’s statements were involuntary and taken in violation of Miranda. The prosecutor appealed that determination by leave granted and the Court of Appeals reversed. Defendant applied to the Supreme Court for leave to appeal and was denied leave (397 Mich 885 [1976]). After his trial and conviction on all four counts defendant appeals alleging numerous errors. Held:

    1. A legal question which has been raised in one appeal may not be raised again in a subsequent appeal after proceedings held on remand to the lower court. The previous decision of the Court of Appeals that defendant’s statements were voluntary is controlling.
    2. A person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. Therefore, the trial court did not err in instructing on aiding and abetting first-degree murder despite the fact that the alleged principal was convicted of second-degree murder.
    3. The admission of photographs of the injuries suffered by victims of crime is primarily committed to the discretion of the trial court and the issue to be confronted with regard to their admission is whether the photographs are substantially necessary or instructive to show material facts or conditions or are merely calculated to excite passion and prejudice. The trial court did not err in allowing the prosecutor to introduce photographs of the victims to prove that the victims were all shot within just a few seconds, supporting the inference that the shots were fired by two gunmen, contrary to defendant’s contention.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 744 et seq.

       21 Am Jur 2d, Criminal Law §§ 127, 128.

       5 Am Jur 2d, Appeal and Error § 816.

       29 Am Jur 2d, Evidence § 260.

       29 Am Jur 2d, Evidence §§ 496, 497, 650.

      4. State of mind, when material, may be shown by testimony of statements made by the individual in question as an exception to the hearsay rule, regardless of the availability of the declarant.
    Affirmed.
    1. Appeal and Error — Law of the Case.
    A legal question which has been raised in one appeal may not be raised again in a subsequent appeal after proceedings held on remand to the lower court.
    2. Criminal Law — Aiding and Abetting.
    A person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal.
    3. Criminal Law — Jury Instructions — Aider and Abetter — Principal.
    An instruction to the jury on alternative theories of a defendant’s guilt—either as a principal or as an aider and abetter—that fails to instruct the jury that a verdict on either theory must be unanimous is not prejudicial to the defendant where he has been convicted as an aider and abetter because the jury- could not have reached an improper compromise verdict since those members who felt that the defendant was guilty as the principal would have necessarily also found him guilty as an aider and abetter.
    4. Criminal Law — Evidence — Photographic Evidence of Injury.
    The admission of photographs of the injuries suffered by victims of crime is primarily committed to the discretion of the trial court and the issue to be confronted with regard to their admission is whether the photographs are substantially necessary or instructive to show material facts or conditions or are merely calculated to excite passion and prejudice.
    5. Evidence — State of Mind — Declarations — Hearsay Rule.
    State of mind, when material, may be shown by testimony of statements made by the individual in question as an exception to the hearsay rule, regardless of the availability of the declarant.

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

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

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   V. J. Brennan, J.

Defendant, Norman Paint-man, was convicted by a jury of four counts of first-degree murder, MCL 750.316; MSA 28.548. Defendant was sentenced to life imprisonment on each conviction and brings this appeal by right.

The defendant and one William Wardel Kidd were charged together with the February 23, 1976, premeditated murders of Ronald Brown, Floyd McElahanon, Theodoro Nelson, and Andrea Brown. At trial the medical examiner testified that the victims died of gunshot wounds to the head. One to three wounds were inflicted on each victim; seven wounds in all. Police officers established by their testimony that the four victims had been discovered lying side-by-side on the floor of a Southfield apartment on February 23, 1976. Testimony relating to bullets and shell casings established the probable weapons as a Smith and Wesson revolver and an F.I.E. "Titan Tiger”.

The prosecution’s evidence also included testimony by Arthur Sailes. Sailes was an ex-narcotics dealer who had frequently purchased narcotics from Floyd McElahanon. Sailes testified that he drove to McElahanon’s apartment in Southfield on February 23, 1976, after speaking with Mc-Elahanon on the telephone at about noon that day. Arriving in the area of the apartment at approximately 12:25 pm, Sailes saw the defendant and Kidd leave McElahanon’s apartment building. The defendant was carrying a shiny object in his hand. Sailes tried to gain entry into the apartment building by ringing the bell but received no response. He entered the building with a key and went to McElahanon’s apartment, finding the door open. Sailes stated that, looking inside, he saw three bodies on the floor and noticed an odor of gunpowder. Sailes stated that he had known William Kidd for a period of time and he had seen Kidd carry a .38-caliber Smith and Wesson revolver. He testified that Kidd had threatened to kill Floyd Mc-Elahanon.

Also presented as a part of the prosecution’s case was testimony from Southfield Police Captain Edward Ritenour. Ritenour related the substance of defendant’s statement given on March 1, 1976, in the Oakland County jail. According to the statement, defendant agreed to go with William Kidd to McElahanon’s apartment to hold up McElahanon for money and drugs. Defendant knew that Kidd also intended to kill McElahanon. Defendant also knew that Kidd owed McElahanon money for previous drug dealings. Defendant and Kidd went to McElahanon’s apartment building where Kidd gave defendant a handgun. Kidd and defendant then gained entrance to the apartment building, and ultimately into McElahanon’s apartment where they forced the people inside to lie on the floor. Kidd "covered” the people on the floor while defendant searched for, and found, a quantity of drugs and money. Then defendant and Kidd shot the persons lying on the floor, and left.

The jury returned a verdict of guilty on all counts. Defendant appeals raising several allegations of error.

The first two allegations of error concern the admissibility of defendant’s statement made while in police custody. This precise question was addressed by this Court in a previous interlocutory appeal by the prosecutor. In that appeal the Walker hearing in the present case was reviewed on the whole record with the ultimate finding that the statement was voluntary and thus admissible. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974). Since the prior ruling concerned the same questions of law presented on this appeal, it is the law of the case and is controlling. A legal question which has been raised in one appeal may not be raised again in a subsequent appeal after proceedings held on remand to the lower court. People v Drew, 83 Mich App 57; 268 NW2d 284 (1978), Allen v Michigan Bell Telephone Co, 61 Mich App 62; 232 NW2d 302 (1975).

Next defendant argues that the trial court erred in instructing the jury that they could find the defendant guilty of aiding and abetting first-degree murder when the alleged principal had been convicted of second-degree murder. The defendant’s contention is without merit. A person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. People v Mann, 395 Mich 472, 477-478; 236 NW2d 509 (1975), People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974).

Next defendant claims on appeal that the following instruction was erroneous:

"It is charged in this case that Norman Paintman either deliberately committed the crime charged, that is either murder in the first degree, or that he intentionally aided and assisted another in the commission of the crime. All persons who aide [sic] or assist in the commission of a crime are as libel [sic] as if they had directly committed the crime and may be convicted of the principal offense or as an aider and abettor.
"Before you may convict, you must be convinced of the following beyond a reasonable doubt: First, the crime charged must have been committed either by the Defendant or some other person; second, the Defendant must have performed acts or given encouragement which aided or assisted the commission of that crime either before or at the time of the commission of the crime; third, the Defendant must have intended the commission of the crime charged at the time of giving aid or encouragement.”

It is the defendant’s contention that the rule of People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974), requires reversal where a single offense is based on two alternative theories of guilt and the jury has not been instructed that it must unanimously agree on the theory upon which it finds the defendant’s guilt. In Olsson, the defendant was charged with murder in the first degree. The jury was instructed to agree unanimously on a verdict and was charged that a conviction of first-degree murder could follow from a theory of felony murder or from a theory of premeditated murder. In its explanation of the fault in the instruction in that case the Court noted:

"We feel that these instructions did not adequately inform the jury of their duty to make a unanimous finding as to whether defendant was guilty of premeditated murder or murder in the perpetration of a felony. We agree with defendant that on the basis of these instructions, it is possible that the jury arrived at a compromise verdict, that is, some members of the jury may have felt defendant was guilty beyond a reasonable doubt of murder in the perpetration of a robbery or larceny while the. remaining members may have felt that defendant was guilty beyond a reasonable doubt of premeditated murder. Such a verdict would not be unanimous and could not convict defendant. GCR 1963, 512.1.” 56 Mich App 500, 506.

However, the determinative factor for the Olsson majority was a fatal lack of evidence on the underlying felony (robbery), and the Court held that no instruction on the felony murder theory was proper in the case. 56 Mich App 500, 504.

In three other cases this Court has held that where the evidence of felony murder and premeditated murder is sufficient to go to the jury, the failure to require the jury to unanimously decide between the theories is either not error or is harmless error. People v Embree, 70 Mich App 382; 246 NW2d 6 (1976), People v Embree, 68 Mich App 40; 241 NW2d 753 (1976), People v Fullwood, 51 Mich App 476; 215 NW2d 594 (1974).

In People v Burgess, 67 Mich App 214; 240 NW2d 485 (1976), as in the case at bar, the guilt of the defendant rested on alternative theories of participation as principal or as aider and abettor. The evidence was sufficient to support guilt under either theory. The defendant admitted that the coactor was guilty as a principal but denied having any part in the assault. This Court found no error in jury instructions which did not require the jurors to unanimously decide whether the defendant was a principal or an aider and abettor.

Next the defendant argues that the trial court erred in admitting photographs of the victims of the shootings. We disagree.

The admission of photographs of the injuries suffered by victims of crime is primarily committed to the discretion of the trial court. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). That case rejected the theory that the prosecution is bound to pursue alternative proofs before resorting to photographic evidence. In People v Falkner, 389 Mich 682, 685; 209 NW2d 193 (1973), the Court stated that the issue to be confronted in the admission of photographic evidence was whether the photographs were "substantially necessary or instructive to show material facts or conditions” or were merely "calculated to excite passion and prejudice”.

In the case at bar the defendant addressed the jury before the opening of proofs, setting forth his claim that only Kidd had participated in the killings and that the defendant had not been present when the shootings occurred. The photographs were advanced by the prosecution as proof that all four victims were killed in a matter of just seconds, supporting the inference that the fatal shots were fired by two gunmen. The prosecutor’s closing argument asserted that the photographs showed that the vicitms had not attempted to rise from the floor or struggle while the shots were being fired. In this light we cannot say that the admission of the photographs constituted an abuse of discretion.

Contrary to the defendant’s next assertion, we find nothing improper in the prosecutor’s closing argument. The prosecutor did not inform the jury of the existence or outcome of the Walker hearing. With the validity and credibility of the defendant’s confession under attack, claiming police fabrication, it was not unfair for the prosecution to show the facts and circumstances of the confession which would lend credibility to it. The jury was left with the ultimate task of deciding whether the statement was reliable.

The prosecutor’s comment regarding the photographs was the subject below for a motion for mistrial. Review of the comment indicates that the prosecutor was using the photographs to advance a part of his case, specifically, that the shots were fired so quickly that two gunmen must have been involved. There is nothing in this argument that is improper.

Defendant next challenges the admission of testimony concerning threats made against a victim by William Kidd. The state of mind of William Kidd was relevant to his intent in killing the victims and therefore to the defendant’s guilt as an aider and abettor. A declaration of an existing state of mind is admissible as an exception to the hearsay rule. Hazen v Elmendorf, 365 Mich 624; 113 NW2d 892 (1962). Under this exception availability of the declarant is irrelevant. See MRE 803(3).

As to the remaining allegations of error we find that the abbreviated reference by Captain Ritenour to the defendant’s contemplation of suicide has not been shown to be sufficiently prejudicial to warrant a determination that the trial judge abused his discretion in denying defendant’s motion for mistrial. In addition the district judge neither applied a faulty legal standard nor otherwise abused his discretion in binding the defendant over for trial on the charge of first-degree murder. Finally, the defendant’s claim that the corpus delicti of first-degree murder had not been shown by competent evidence before his confession was introduced is without merit.

The defendant’s conviction is affirmed.

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


author: Cynar, P.J.

text:
    PEOPLE v BOLDEN
    Docket No. 78-664.
    Submitted February 13, 1979, at Lansing.
    Decided September 19, 1979.
    Clifton Bolden was charged with armed robbery and two counts of criminal sexual conduct in the second degree, all of which arose out of an assault upon an elderly woman in her home. Because of the inability of the complaining witness to identify defendant as her assailant, the prosecution sought to introduce the testimony of two other elderly women who would testify that defendant had robbed and sexually assaulted them using the same modus operandi that was used in the robbery and assault at issue at trial. In each instance, an elderly woman, living alone in the same area of Detroit, was robbed of money and jewelry and was sexually assaulted after being tied to her bed in a spread-eagle position. Defendant had been acquitted of charges arising out of one of these prior incidents. Defendant objected to this testimony. The Recorder’s Court of Detroit, James A. Hathaway, J., permitted the testimony under the similar acts statute. Defendant was found guilty only on the armed robbery count. Defendant appeals. Held:

    1. Evidence of prior criminal acts by the defendant may be admitted under the similar acts statute to show the defendant’s scheme, plan, intent, or motive or the absence of mistake or accident where there is substantial evidence that defendant committed the prior act, there are some special circumstances of the prior act which tend to prove the defendant’s scheme, plan, intent, or motive or the absence of mistake or accident, and defendant’s scheme, plan, intent, or motive or the absence of mistake or accident is material to the determination of defendant’s guilt of the charged offense.
    2. The fact that defendant was acquitted of charges arising out of a prior act does not bar the admission under the similar acts statute of evidence of witnesses to the prior act concerning such act.
    3. The probative value of evidence of prior criminal acts admitted under the similar acts statute must outweigh the prejudicial effect of such evidence.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 321 et seq.

       29 Am Jur 2d, Evidence § 332.

      4. There is no requirement that the trial court spread upon the record the balancing process undertaken to determine whether the probative value of evidence offered under the similar acts statute outweighs the prejudicial effect. If such a requirement is forthcoming, it should come from the Supreme Court rather than the Court of Appeals.
    5. The trial court properly admitted the testimony concerning defendant’s prior acts. Since the testimony was critical to the question of the identity of defendant as the assailant, the testimony concerning the prior acts by defendant had probative value. The prejudicial effect was minimal, as is demonstrated by defendant’s acquittal on the sexual assault counts.
    Affirmed.
    D. E. Holbrook, Jr., J., concurred in the result only.
    1. Criminal Law — Evidence — Similar Acts — Admissibility — Requirements — Statutes.
    Evidence of a defendant’s prior criminal acts may be admitted under the similar acts statute to show the defendant’s scheme, plan, intent or motive or to show the absence of mistake or accident where there is substantial evidence that the defendant committed the prior act, there are some special circumstances of the prior act which tend to prove the defendant’s scheme, plan, intent, or motive or the absence of mistake or accident is material to the determination of the defendant’s guilt of the charged offense (MCL 768.27; MSA 28.1050).
    2. Criminal Law — Evidence — Similar Acts — Prior Acquittals — Admissibility — Statutes.
    The fact that a defendant was acquitted of charges arising out of prior similar incidents, evidence of which is sought to be introduced to establish the defendant’s scheme, plan, intent or motive or the absence of mistake or accident under the similar acts statute, does not bar the admission of direct evidence of witnesses to the prior acts regarding those prior incidents under the similar acts statute (MCL 768.27; MSA 28.1050).
    3. Criminal Law — Evidence — Similar Acts — Prejudicial Effect — Probative Value — Appeal and Error — Statutes.
    The probative value of evidence of prior criminal acts which is admitted under the similar acts statute must outweigh the prejudicial effect of such evidence; however, there is no requirement that the trial court spread on the record the balancing process undertaken to determine whether the probative value outweighed the prejudicial effect (MCL 768.27; MSA 28.1050).

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

      Raymond L. Miller, for defendant.
    Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   Cynar, P.J.

Defendant was charged with armed robbery, contrary to MCL 750.529; MSA 28.797, and two counts of criminal sexual conduct in the second degree, contrary to MCL 750.520c(1); MSA 28.788(3)(1). A Detroit Recorder’s Court jury found the defendant guilty of armed robbery only, and he was sentenced to a prison term of from 20 to 30 years. Defendant now appeals as of right.

The complaining witness was unable to identify defendant as her assailant, though his fingerprints were found on a green box in her apartment. This inability to identify her assailant occurred because her assailant removed her glasses, which left her unable to see clearly. The prosecution, in order to prove that defendant was the same individual that accosted the complaining witness, utilized the testimony of two other individuals who testified that defendant had previously sexually assaulted and robbed them utilizing the same modus operandi that was used in the present robbery and criminal sexual conduct. This testimony was received into evidence over defendant’s objection, the trial court ruling that it was permitted under the similar acts statute, MCL 768.27; MSA 28.1050.

Defendant initially contends that it was error for the trial judge to admit the "similar acts” evidence. He notes that he was acquitted of charges arising out of the incident about which one of the witnesses testified. He further claims that the probative value of the evidence was outweighed by its prejudicial effect.

MCL 768.27; MSA 28.1050 permits the introduction of evidence of similar acts of a defendant "where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material”. In People v Wilkins, 82 Mich App 260, 267-269; 266 NW2d 781 (1978), a panel of this Court set forth the requirements for admission of evidence under this statute. There must be substantial evidence that defendant committed the act sought to be introduced, there must be some special circumstances of the prior act which tend to prove defendant’s plan, scheme, intent, etc., and the defendant’s plan, scheme, intent, etc., must be material to the determination of defendant’s guilt of the charged offense.

We conclude that these requirements are satisfied in the present case. The two witnesses testified from first-hand knowledge as to defendant’s perpetration of the prior acts. The fact of defendant’s acquittal on charges arising out of one of the prior incidents does not act to bar its admission. People v Oliphant, 399 Mich 472, 495-500; 250 NW2d 443 (1976). The similarity between these acts and the sexual assault alleged in the present case is striking. In each instance, an elderly woman, living alone in the same area of Detroit, was robbed of money and jewelry, tied to her bed in a spread-eagle position, and sexually assaulted. The materiality of this evidence and its propensity to show a scheme and the disputed identity of the assailant in the present case is obvious.

The question remains, however, whether the probative value of this evidence outweighed its prejudicial effect. Such a determination must be made even if the requirements set out above are met. People v Wilkins, supra, 270.

The record in the present case does not expressly indicate whether the trial judge applied this balancing test when ruling that the evidence was admissible. However, no case to date has required a trial judge to spread this balancing process on the record. If such a requirement is forthcoming, we believe it should come from the Supreme Court. Additionally, we are not willing to presume from a silent record that the trial judge in this case failed to balance these factors.

We further conclude that the probative value of the similar acts testimony in this case outweighed its prejudicial effect. The identity of the assailant was the critical issue at trial. Defendant presented an alibi defense at trial and, because of her poor vision, the complainant was unable to identify defendant as her assailant. Thus, the similar acts testimony was of paramount importance in establishing defendant’s identity as the assailant, and its probative value was enormous.

The admission of the testimony concerning prior bad acts or criminal convictions of a defendant will always have some prejudicial effect. However, in the present case, this effect was minimized, as the jury was made aware that defendant had been acquitted of the prior sexual assaults. The jury’s verdict, acquitting defendant of the criminal sexual conduct charges, is further proof of the evidence’s minimal prejudicial effect.

In light of the above analysis, we conclude that no error occurred in the admission of the similar acts testimony in this case. We have also examined defendant’s other contentions of error and find them to be without merit. See People v Duncan, 402 Mich 1, 15-16; 260 NW2d 58 (1977), and GCR 1963, 516.2.

Affirmed.

D. E. Holbrook, Jr., J., concurs in the result only.


author: Bashara, J. M. F. Cavanagh, P.J.

text:
    PEOPLE v STEVENS
    Docket No. 78-1700.
    Submitted March 6, 1979, at Lansing.
    Decided September 19, 1979.
    Leave to appeal applied for.
    Defendant, Rodney W. Stevens, was charged with felonious assault. He had allegedly pointed a starter pistol at another. It is undisputed that the firing pin had been filed and the pistol was incapable of firing a bullet. The Jackson Circuit Court, Charles J. Fahalee, J., dismissed the charge, ruling that the inoperable pistol was not a “dangerous weapon” under the felonious assault statute. The people appeal. Held:

    If a victim perceives an object such as a handgun and believes that object to be a dangerous weapon, a prima facie case of felonious assault is made out.
    Reversed,
    M. F. Cavanagh, J., dissented. He would hold that an instrumentality incapable of firing a projectile is not a firearm and, therefore, cannot be a "dangerous weapon” under the felonious assault statute, regardless of the victim’s perception. He would affirm.
    Opinion of the Court
    1. Assault and Battery — Words and Phrases.
    A simple criminal assault is either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery.
    2. Assault and Battery — Felonious Assault.
    A prima facie case of felonious assault is made out where a victim perceives an object such as a gun and believes it to be a dangerous weapon; whether or not the gun is operable is irrelevant.
    References for Points in Headnotes

       6 Am Jur 2d, Assault and Battery §§ 2-7.
    Attempt to commit assault as criminal offense. 79 ALR2d 597.

       6 Am Jur 2d, Assault and Battery §§ 48-54.
    Fact that gun was unloaded as affecting criminal responsibility for assault. 79 ALR2d 1415.

      Dissent by M. F. Cavanagh, P.J.
    3. Assault and Battery — Felonious Assault.

      The crime of felonious assault is established by proof of an assault plus the use of a dangerous weapon.

    4. Assault and Battery — Felonious Assault — Dangerous Weapon — Firearm — Statutes.

      An instrumentality which is incapable of propelling a dangerous projectile cannot be a "ñrearm” or a "dangerous weapon” contemplated by the felonious assault statute (MCL 8.3t, 750.82; MSA 2.212[20], 28.277).

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

      Jacobs & Engle (by Frederick J. Gentner), for defendant.
    Before: M. F. Cavanagh, P.J., and Bashara and D. E. Holbrook, Jr., JJ.
   Bashara, J.

The majority of this panel accepts the factual findings of Judge Cavanagh. We differ in his conclusion that the pointing of an inoperable handgun loaded with live shells at the complaining witness does not amount to felonious assault.

The applicable statute, also set forth by Judge Cavanagh, provides that one who assaults another with a gun, without intending to commit great bodily harm, is guilty of a felony. We agree that the statute should be strictly construed. However, it is difficult to traverse around its plain meaning. When the statute speaks of a gun, it does not refer to its caliber, nor to its operability.

We are required to accept the definition of the term "assault” set forth in People v Sanford, 402 Mich 460, 479; 265 NW2d 1 (1978). The Supreme Court there unanimously declared that:

"We adopt what Perkins on Criminal Law (2d ed), p 117, says is the majority rule, namely 'a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’.”

This is the traditional subjective test of assault which examines the mind, of the vicitm to determine whether that individual had a reasonable apprehension of an impending battery.

To say that an assault was not committed because the weapon involved was not operable misses the mark. If a victim perceives an object such as a handgun and believes that object to be a dangerous weapon, then a prima facie case of felonious assault is made out. People v Williams, 6 Mich App 412; 149 NW2d 245 (1967).

Given the facts of this case, the trial court was in error in dismissing the charge prior to trial.

Reversed.

D. E. Holbrook, Jr., J., concurred.

M. F. Cavanagh, P.J.

(dissentingl A charge of felonious assault was brought against the defendant arising from an incident where defendant, as a passenger in one car, pointed a starter pistol at the occupants of another car after initially making obscene gestures and verbal comments towards them and prompting similar responses. The statute under which defendant was charged, MCL 750.82; MSA 28.277, required the use of a dangerous weapon in the assault. Prior to trial, the trial court granted defendant’s motion to quash the information based upon the parties’ stipulation that the gun involved was totally inoperable as a firearm. The people appeal from the subsequent order of dismissal.

The stipulation below incorporated the findings of a police ballistics expert that indicated that the weapon was a starter pistol with a barrel that had been bored out, that it contained eight live .22-caliber shells but that its firing pin had been filed down to the point where it would be impossible to fire the weapon.

The trial court relied upon the definition of an inoperable firearm as given in Criminal Jury Instruction 17:4:05, to hold that one of the elements of the crime was missing. Because a penal statute was involved, the trial court construed it strictly and in a fashion most favorable to the accused. It was concluded that because the weapon was inoperable, it was not a "dangerous weapon”. Since the crime of felonious assault requires the use of a dangerous weapon, the trial court determined the lower court magistrate had abused his discretion in binding the defendant over for trial. I would affirm the ruling of the trial court.

The statute under which defendant was charged reads as follows:

"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.” MCL 750.82; MSA 28.277.

The crime of felonious assault is established by proof that shows an assault plus the use of a deadly weapon in perpetrating the assault- People v Richard Johnson, 42 Mich App 544; 202 NW2d 340 (1972), People v Hooper, 36 Mich App 123; 193 NW2d 203 (1971).

The major contention of the people on appeal is that the alternate definitions of a simple criminal assault offered by our Supreme Court in People v Sanford, 402 Mich 460; 265 NW2d 1 (1978), should be held to apply to the charge of felonious assault in this case. The Supreme Court held that a case of simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery”. Sanford, supra, 479. The people argue that under the latter definition, the alternative that focuses upon the victim’s subjective apprehension of immediate injury, the relevant statutory language concerning the use of a dangerous weapon should be interpreted subjectively as well as objectively. That is, so long as the victim perceived that a firearm was being pointed at him it is immaterial that the firearm was totally inoperable. To support this line of reasoning the people rely on two cases that for purposes of the felonious assault statute held that an unloaded gun is a dangerous weapon. People v Williams, 6 Mich App 412; 149 NW2d 245 (1967), People v Doud, 223 Mich 120; 193 NW 884 (1923).

The Williams case resolved that a defendant charged with felonious assault was not entitled to an instruction directing that the jury acquit him if the gun involved was found to be unloaded. The opinion quoted from Doud and offered additional reasons for the Doud holding. The first was that "the purpose of the statute is to punish those who” cause a victim to be placed in a position of fear "by use of dangerous weapons”. Williams, supra, 418. The second reason was the virtual impossibility of proving whether or not the shotgun in that case was loaded at the time of the assault.

There is an obvious distinction between an unloaded firearm and a firearm that is totally inoperable in that the former weapon is capable of being fired. The evidentiary problem concerning proof of whether or not a firearm is loaded is not present in this case. It is also quite clear that in both Doud and Williams the instrument used was a "dangerous weapon”, albeit unloaded.

As defined by statute, MCL 8.3t; MSA 2.212(20), here the instrumentality employed by defendant was not a firearm since it was incapable of propelling a dangerous projectile, and was not, therefore, one of the weapons enumerated in the felonious assault statute. MCL 750.82; MSA 28.277. See also MCL 750.222; MSA 28.419.

Penal statutes are to be construed strictly, as well as in a manner that is most favorable to the accused. People v Lockhart, 242 Mich 491, 494; 219 NW 724 (1928), People v Goulding, 275 Mich 353, 358-359; 266 NW 378 (1936), People v Buford, 69 Mich App 27, 30; 244 NW2d 351 (1976). Accordingly, I would affirm the ruling of the trial court.