author: Per Curiam.

text:
    PEOPLE v NICKERSON
    Docket Nos. 77-2811, 77-2357.
    Submitted January 7, 1980, at Detroit.
    Decided April 3, 1980.
    Richard Nickerson was convicted, on his plea of guilty, of conspiracy to deliver heroin, Recorder’s Court of Detroit, Joseph A. Gillis, J. The defendant was sentenced to five years of probation, with the first six months to be served in the Detroit House of Correction. A fine of $20,000 and probation costs of $1,040 were also assessed, to be paid at the rate of $500 per month, commencing upon defendant’s release from Detroit House of Correction. At a probation revocation hearing in 1976, the trial court revoked the defendant’s probation for his nonpayment of the fine and continued drug use and sentenced him to 10 to 20 years in prison. The defendant appealed and the Court of Appeals reversed and remanded for a new revocation hearing. (Docket No. 28350, April 1, 1977 [unreported]). At the revocation hearing on remand, the defendant’s probation was revoked for his failure to cooperate with the probation department by not discontinuing his drug use. The defendant was sentenced to a term of 9 to 20 years in prison. The defendant appeals his conviction by leave granted and as of right from the second revocation of his probation, alleging that, with respect to the underlying plea, the trial court erred reversibly in failing to fulfill the plea agreement since the $20,000 fine was never mentioned until the time of sentencing. Held:

    1. The record unambiguously shows that the only agreement mentioned at the time that the defendant’s plea was taken involved a sentence of five years of probation with the first six months in the Detroit House of Correction. The fine was outside the scope of the plea agreement, entitling the defendant to reversal of his conviction. The defendant may now withdraw his plea.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 485, 491.5.
    [2] 21 Am Jur 2d, Criminal Law §§ 487, 489.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [3] 21 Am Jur 2d, Criminal Law §§ 492, 494.1.
    [4] 16 Am Jur 2d, Conspiracy §§ 2, 10, 13.

      2. An independent ground for reversal involves the trial court’s failure to comply with the language of the court rule governing the defendant’s plea proceeding in 1975. The governing court rule, at that time, required the plea-taking court to inform the defendant of the maximum sentence for the offense to which the plea was being offered. Since the fine was statutorily mandated, the failure to inform the defendant of the maximum consequences of the plea was reversible error.
    3. The court rules require that a sufficient factual basis be elicited to support the defendant’s plea. In the instant case, there was an insufficient factual basis to support the conspiracy charge.
    Reversed and remanded to allow the defendant an opportunity to withdraw his guilty plea.
    1. Criminal Law — Plea of Guilty — Unfulfilled Bargains — Withdrawal of Plea.
    A defendant’s plea-based conviction should be reversed and the defendant should be allowed to withdraw his guilty plea if promises of leniency in sentencing, made in exchange for the guilty plea, are not fulfilled; in the alternative the promise should be specifically enforced; the defendant’s choice of remedy is to be accorded considerable weight.
    2. Criminal Law — Plea of Guilty — Informing Defendant of Maximum Sentence — Court Rules.
    Former language in a court rule governing the acceptance of guilty pleas required the trial court to inform a defendant of the maximum sentence for the offense to which the plea was being offered, not just the maximum prison sentence; thus, in a case where the former language was applicable, it was reversible error for the trial court to fail to inform the defendant that the maximum possible sentence included a $20,000 fine, as well as a term of imprisonment (GCR 1963, 785.7[l][b], as in effect in 1975).
    3. Criminal Law — Plea of Guilty — Factual Basis.
    A sufficient factual basis must exist to show that a defendant might be convicted at a trial before the defendant’s plea of guilty may be accepted by the judge at a plea-taking session.
    4. Conspiracy — Unlawful Agreement — Intent — Inferences.
    The gist of the crime of conspiracy is an unlawful agreement; there must be a showing of an intent to conspire and an intent to commit a substantive offense; charges of conspiracy cannot be made out by piling inference upon inference.

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

      Ellen C. Wallaert and George C. Dovas, for defendant on appeal.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Per Curiam.

The defendant appeals by leave granted from his plea-based conviction on July 17, 1975, for conspiracy to deliver heroin, MCL 335.341(1)(a); MSA 18.1070(41)(1)(a) and MCL 750.157a; MSA 28.354(1). Defendant was sentenced on September 5, 1975, to five years of probation, with the first six months to be served in the Detroit House of Correction. A fine of $20,000 and probation costs of $1,040 were also assessed, to be paid at the rate of $500 per month commencing upon defendant’s release from Detroit House of Correction.

A notice of probation violation dated March 16, 1976, alleged that defendant had violated the terms of his probation by nonpayment of the fine and by continued use of drugs. On March 26, 1976, the trial court revoked defendant’s probation and sentenced him to a term of 10 to 20 years in prison. The basis for revocation was defendant’s failure to pay the assessment and fine at the rate of $500 per month. The Court reversed the trial court’s decision in an unpublished per curiam opinion, since there was no evidence of defendant’s ability to pay. The case was remanded for a new revocation hearing, which was held on April 22, 1977. At this time, the trial court revoked defendant’s probation for failure to cooperate with the probation department by not discontinuing his drug use. The defendant was sentenced to a term of 9 to 20 years in prison, and appeals as of right from his second probation revocation.

Since we find that our decision concerning defendant’s underlying plea is dispositive, we need not reach the defendant’s allegations of error with respect to the probation revocation hearing.

With respect to the underlying plea, defendant contends that the trial court erred reversibly in failing to fulfill the plea agreement since the $20,000 fine was never mentioned until the time of sentencing. The record unambiguously shows that the only agreement mentioned at the time that defendant’s plea was taken involved a sentence of five years’ probation with the first six months to be served in the Detroit House of Correction.

The rule is well-established that if promises of leniency in sentencing which are made in exchange for a guilty plea are not fulfilled, the conviction will be reversed and the defendant will be allowed to withdraw the plea, or else the promise will be specifically enforced. In re Valle, 364 Mich 471, 478; 110 NW2d 673 (1961), People v Stevens, 45 Mich App 689, 692; 206 NW2d 757 (1973), People v Baker, 46 Mich App 495; 208 NW2d 220 (1973), People v Eck, 39 Mich App 176; 197 NW2d 289 (1972). The defendant’s choice of remedy is to be accorded considerable weight. People v Stevens, supra.

We find that the trial court’s imposition of a $20,000 fine was outside the scope of the plea agreement, entitling defendant to reversal of his conviction. Defendant may now withdraw his plea.

An independent ground for reversal involves the trial court’s failure to comply with GCR 1963, 785.7(1)(b), which was in effect in 1975, which required the trial court to inform a defendant of the maximum sentence for the offense to which the plea is offered. Since the fine was statutorily mandated, the failure to inform defendant of the maximum consequences of his plea is reversible error. Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

Finally, we find that the trial court failed to elicit a sufficient factual basis to support the defendant’s plea, as required by GCR 1963, 785.7(3)(a). In the Guilty Plea Cases, supra, the Court states that a sufficient factual basis must exist to show that the defendant might have been convicted at trial.

In People v McCracken, 88 Mich App 286, 295; 276 NW2d 609 (1979), this Court stated: "The gist of conspiracy is an unlawful agreement. There must be a showing of an intent to conspire and an intent to commit the substantive offense * * *. Charges of conspiracy cannot be made out by piling inference upon inference.”

In People v Atley, 392 Mich 298; 220 NW2d 465 (1974), the Court stated that an agreement to sell marijuana could not be inferred from the fact that the parties jointly harvested and possessed 127 pounds of marijuana, even though at least one of the defendants had intended to sell the marijuana. The Court said that acquisition of 127 pounds of marijuana would support an inference of an intent to sell, but could not support the "inference upon an inference” of an agreement to sell, which is the essence of conspiracy.

In the instant case, the defendant’s statements were sufficient to establish that defendant was a middleman or supplier to another supplier, but there is no evidence that defendant agreed to aid the purchaser in delivering to a third person. Thus, there was an insufficient factual basis to support the conspiracy with which defendant was charged.

Reversed and remanded to allow the defendant an opportunity to withdraw his guilty plea.

        People v Nickerson (Docket No. 28350, decided April 1, 1977 [unreported]).

       We note that in its present form, GCR 1963, 785.7(1)(b) only requires the trial court to inform defendant of the maximum possible prison sentence for the offense. Apparently, under the present rule, the failure to mention the possibility of a fine would not be erroneous. However, this would not change our holding in the instant case, since a trial court could not validly impose a fine where there is a sentence bargain without informing the defendant about the fine prior to accepting his plea.

       We distinguish People v Cueller, 73 Mich App 88; 250 NW2d 553 (1976), where the Court decided that any error in failing to inform defendant of a possible $2,500 fine was harmless because there was no fine imposed.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v HICKS
    Docket No. 77-3736.
    Submitted February 5, 1980, at Detroit.
    Decided April 3, 1980.
    Donald C. Hicks was charged with felony murder and pled guilty but mentally ill to second-degree murder. The Wayne Circuit Court, Joseph G. Rashid, J., did not apprise defendant at the guilty plea hearing of the elements of the offense to which defendant offered his plea. The factual basis elicited from the defendant was such that it did not necessarily support a finding of malicious intent. Defendant appeals. Held:

    While generally the failure to explain the elements of the crime to which a defendant is offering his plea of guilty will not mandate reversal, the failure to explain to the defendant, a schizophrenic who had periods during which he was unable to recognize reality, the intent necessary to make the homicide second-degree murder, coupled with the failure to elicit from defendant a factual basis which would be sufficient to find that he necessarily had the malicious intent needed to establish that the homicide was second-degree murder, mandates reversal and remand.
    Reversed and remanded.
    Criminal Law — Plea of Guilty •— Elements of Offense — Second-Degree Murder — Intent — Factual Basis.
    The failure to inform a defendant prior to the acceptance of his plea of guilty but mentally ill to the offense of second-degree murder of the element of intent mandates reversal where the defendant was a schizophrenic who had periods during which he was unable to recognize reality and the factual basis for the plea did not necessarily support a finding that the malicious intent needed to establish the crime of second-degree murder existed.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutors Repeat Offenders Bureau, and Larry L. Roberts', Assistant Prosecuting Attorney, for the people.

      References for Points in Headnote
    [1] 21 Am Jur 2d, Criminal Law §§ 485, 494.1.
    40 Am Jur 2d, Homicide §§ 10, 53, 114, 115.

      Douglas D. Elliard (Carl Ziemba, of counsel), for defendant.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and R. M. Maher, JJ.
   Per Curiam.

Defendant was charged, along with a codefendant, with felony-murder, contrary to MCL 750.316; MSA 28.548. He pled guilty but mentally ill to second-degree murder, MCL 750.317; MSA 28.549, before the Wayne County Circuit Court. Sentenced to imprisonment for 10 to 30 years, defendant now appeals as of right under GCR 1963, 806.1.

Defendant contends the plea-taking court did not take adequate measures to insure the voluntariness of his plea in that the court did not apprise him of the elements of the offense charged, felony-murder, or of the offense to which he was pleading, second-degree murder. Moreover, defendant argues, the court failed to ascertain an adequate factual basis for his plea, especially with regard to the element of intent, as required by GCR 1963, 785.7(3)(a).

We have reviewed the guilty plea transcript and found that defendant is correct in his assertion that he was not apprised of the elements of the offenses. In most instances, this would not be considered error as neither the court rule nor Michigan case law requires a plea-taking court to explain the elements of an offense. GCR 1963, 785.7(1)(a), Guilty Plea Cases, 395 Mich 96, 116; 235 NW2d 132 (1975), People v Walker, 84 Mich App 700, 704; 270 NW2d 498 (1978). In the instant case, however, one of the elements defendant asserts that the court neither apprised him of, nor ascertained a factual basis upon, is the element of intent.

A similar situation presented itself in Henderson v Morgan, 426 US 637; 96 S Ct 2253; 49 L Ed 2d 108 (1976). In that case, the defendant was also charged with first-degree murder and eventually pled guilty to second-degree murder. He also argued that this plea was involuntary since the plea-taking court did not discuss the elements of the offense of second-degree murder or refer to the requirement of intent to cause the death of the victim. The United States Supreme Coúrt agreed that the plea was not voluntary because the defendant never received real notice of the charge against him. The Henderson Court noted at 647, fn 18:

"There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense; we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required.”

The Henderson Court further stated at 647:

"Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.”

In determining that defendant was not effectively apprised of the nature of the charge against him, the Henderson Court considered the following factors important: defendant was of below average intelligence; the charge of second-degree murder was never formally read; defendant did not stipulate to the existence of the requisite intent; and defendant had made no factual statement or admission necessarily implying that he had such intent. See Henderson, supra, 645-649.

These factors exist in the case at bar as well. The defendant was diagnosed as a schizophrenic who had periods during which he was unable to recognize reality. The charge of second-degree murder was never formally read to the defendant because he, like the defendant in Henderson, was originally charged with first-degree murder. There was no stipulation by defense counsel that the requisite intent was present at the time of the alleged crime. Finally, defendant’s statement of a factual basis for his plea would not necessarily support a finding of intent. The defendant merely admitted to having agreed with his codefendant that the victim should be hit or struck. This does not constitute a sufficient factual basis for a finding of malice. The natural tendency of the defendant’s behavior, in aiding and abetting in the hitting of the victim, would not cause death or great bodily harm.

Therefore, we find the instant case to be controlled by the Henderson decision. Accordingly, we reverse defendant’s guilty plea and remand for a trial upon the charge of second-degree murder.


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

text:
    PEOPLE v DUNCAN PEOPLE v McINTOSH
    Docket No. 78-1815.
    Submitted November 15, 1979, at Detroit.
    Decided April 3, 1980.
    Leave to appeal applied for.
    Albert Duncan and Leon McIntosh were convicted of conspiracy to do a legal act in an illegal manner and of solicitation of a bribe, Wayne Circuit Court, Joseph G. Rashid, J. Their convictions were affirmed by the Court of Appeals, 55 Mich App 403 (1974), and by the Supreme Court, 402 Mich 1 (1977). The defendants filed a delayed motion for a new trial in the circuit court, based on a claim of newly discovered evidence that the chief prosecution witness had been raped by the police chief and had been supplied with drugs while being held in protective custody during the defendants’ trial. The motion was denied and the defendants appeal by leave granted. Held:

    1. The new evidence was not discovered until well after the trial, when the witness brought charges against the police chief. The evidence was not merely cumulative, although it was established at trial that the witness was a heroin addict, had a criminal record and was a police informant. The relative credibility of the defendants and the prosecution witness was a primary issue in the case, and the credibility issue bears directly on the guilt or innocence of the defendants.
    2. The impact of the new evidence would probably cause a different result on retrial. The trial judge’s denial of the motion for a new trial was an abuse of discretion.
    Reversed.
    R. B. Burns, P.J., dissented. He would hold that the newly discovered evidence is not sufficient to warrant a new trial because it does not relate to the guilt or innocence of the defendants, but only to the character and credibility of the chief prosecution witness, whose character and credibility was put in question at trial. He would affirm and cancel the defendants’ bonds.

      References for Points in Headnotes
    [1] 58 Am Jur 2d, New Trial §§ 164-182.
    [2] 58 Am Jur 2d, New Trial §§ 212, 213.
    [3] 58 Am Jur 2d, New Trial §§ 145, 173.

      Opinion of the Court
    1. New Trial — New Evidence — Factors Considered.
    The test for granting a new trial based on new evidence involves a finding that (1) the evidence itself, not merely its materiality, was newly discovered; (2) the evidence is not cumulative; (3) the evidence is such as to render a different result probable on retrial; and (4) the party offering the evidence could not with reasonable diligence have discovered and produced it at trial.
    2. New Trial — Judge’s Discretion.
    The granting of a motion for a new trial is within the sound discretion of the trial court, and to establish error a clear abuse of discretion must be shown.
    Dissent by R. B. Burns, P.J.
    3. New Trial — New Evidence — Witnesses — Character and Credibility.

      A new trial based upon newly discovered evidence is not warranted where the new evidence does not relate to the defendant’s guilt or innocence but rather attacks the character and credibility of the prosecution’s main witness, whose character and credibility was put in question at trial when it was established that she was a heroin addict, a convicted felon and a police informant.

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

      Freatman, Barr, Anhut & Moir, for defendants on appeal.
    Before: R. B. Burns, P.J., and M. F. Cavanagh and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendants were found guilty by a jury of conspiracy to do a legal act in an illegal manner, MCL 750.157a; MSA 28.354(1), and solicitation of a bribe, MCL 750.505; MSA 28.773. Their convictions were affirmed by this Court, 55 Mich App 403; 222 NW2d 261 (1974), and by the Supreme Court, 402 Mich 1; 260 NW2d 58 (1977). A delayed motion for a new trial was filed in the trial court based on a claim of newly discovered evidence. The trial court denied defendants’ motion for a new trial.

The chief prosecution witness, Bettye Harris, was held in protective custody by the City of Inkster during the defendants’ trial. After she was transferred to the custody of the Wayne County Task Force she filed charges against Anderson Young, Chief of Police for the City of Inkster. She testified at a preliminary hearing that Chief Young raped her when she was in protective custody. Harris also made statements that she was forced to have sex with Young because he threatened that he would tell the defendants where she was being held. She testified that Young had also purchased liquor for her, taken her to dinner the night he raped her and purchased a new dress to replace the dress that was torn during the rape. Lastly she testified that she was provided with methadone while she was in custody. This testimony was not known to the defendants until after their trial had ended and their appeal was in progress.

The four-part test for granting a new trial based on new evidence involves a finding that (1) the evidence itself, not merely its materiality, was newly discovered; (2) the evidence is not cumulative; (3) it is such as to render a different result probable on a retrial of the case; and (4) the party could not with reasonable diligence have discovered and produced it at trial. People v Clark, 363 Mich 643, 647; 110 NW2d 638 (1961), People v Howard, 78 Mich App 592, 596; 261 NW2d 15 (1977). " 'The granting of a motion for a new trial lies within the sound discretion of the trial court, and to establish error, a clear abuse of this discretion must be shown.’ ” Howard, supra, 598.

The first of the above-noted four factors was satisfied because, although defendants knew that Ms. Harris was being held in protective custody, they knew knothing of the circumstances attending her stay in custody until after they had been convicted. Both of the defendants and their attorney attested to this fact by affidavit supporting their application for leave to appeal to this Court. Nor do we find that the new evidence is merely cumulative. Despite evidence introduced at trial which demonstrated that Ms. Harris was a heroin addict, had engaged in prostitution and had been convicted of felonies involving dishonesty and theft, the new evidence alluded to above convinces us that it differs significantly from her demonstrated criminal history. People v Ake, 362 Mich 134, 137; 106 NW2d 800 (1961). Moreover, as Justice Levin opined, it was the relative credibility of the defendants that constituted the primary issue in the case, a case that "depended almost entirely on the testimony of Harris”. People v Duncan, 402 Mich 1, 31, 44-45. Thus, it appears that the credibility contest does not bear directly upon the defendants’ guilt or innocence. People v Cummings, 42 Mich App 108, 110; 201 NW2d 358 (1972).

Based on the preceding analysis, it follows that we believe the impact of the new evidence would probably cause a different result in a new trial. With regard to the final factor, it became apparent during the cross-examination of the police chief that Ms. Harris was being sequestered in protective custody for fear of reprisal by defendants and certain drug dealers. Responding to questions posed by the prosecutor, the police chief reiterated that the sequestration was necessary due to threats made against Ms. Harris by various drug dealers named by her in similar acts testimony. This response was repeated after defense counsel’s objection was overruled. Earlier, further inquiry into the matter of the protective custody had been terminated by objection from the prosecution. Without any knowledge of the circumstances surrounding Ms. Harris’s protective custody there was no apparent reason to pursue the matter. It was not until after the preliminary examination concerning the charge against the police chief, some two years after defendants’ convictions, that they became aware of the new evidence, as nothing of that matter had been raised at their trial. The exercise of reasonable diligence on the part of the defendants at their trial would not have apprised the defendants of this new evidence.

The motion for a new trial based on new evidence was heard and decided by the trial court five years after defendants had been convicted. The trial judge stated that his denial of the motion was based "purely on (his) recollection (of the trial)”. Given our finding that the requisite factors for granting a new trial based upon the new evidence have been satisfied, it is our ruling that an abuse of discretion in not granting a new trial was present.

Reversed.

R. B. Burns, P.J.

(dissenting). Defendants were found guilty by a jury of conspiracy to do a legal act in an illegal manner, MCL 750.157a; MSA 28.354(1), and solicitation of a bribe, MCL 750.505; MSA 28.773. Their convictions were affirmed by this Court, 55 Mich App 403; 222 NW2d 261 (1974), and by the Supreme Court, 402 Mich 1; 260 NW2d 58 (1977). A delayed motion for a new trial was filed in the trial court based on a claim of newly discovered evidence. The trial court denied defendants’ motion for a new trial.

The chief prosecution witness, Bettye Harris, was held in protective custody by the City of Inkster during the defendants’ trial. After she was transferred to the custody of the Wayne County Task Force she filed charges against Anderson Young, Chief of Police for the City of Inkster. She testified at a preliminary hearing that Chief Young raped her when she was in protective custody. Harris also made statements that she was forced to have sex with Young because he threatened that he would tell the defendants where she was being held. She testified that Young had also purchased liquor for her, taken her to dinner the night he raped her and purchased a new dress to replace the dress that was torn during the rape. Lastly she testified that she was provided with methadone while she was in custody. This testimony was not known to the defendants until after their trial had ended and their appeal was in progress.

The four-part test for granting a new trial based on new evidence involves a finding that (1) the evidence itself, not merely its materiality, was newly discovered; (2) the evidence is not cumulative; (3) it is such as to render a different result probable on a retrial of the case; and (4) the party could not with reasonable diligence have discovered and produced it at trial. People v Clark, 363 Mich 643, 647; 110 NW2d 638 (1961), People v Howard, 78 Mich App 592, 596; 261 NW2d 15 (1977). " 'The granting of a motion for a new trial lies within the sound discretion of the trial court, and to establish error, a clear abuse of this discretion must be shown.’ ” Howard, supra, 598.

The newly discovered evidence in the present case does not relate to the defendants’ guilt or innocence but rather attacks the character and credibility of the prosecution’s main witness. It had been established at the trial that Bettye Harris was a heroin addict, a convicted felon, and a police informant. The new evidence is not sufficient to warrant a new trial and the trial court did not abuse its discretion in denying defendants’ motion.

I would affirm defendants’ convictions and cancel their bonds.


text:
    RUTLEDGE v RUTLEDGE
    Docket No. 78-2863.
    Submitted February 7, 1980, at Detroit.
    Decided April 3, 1980.
    Plaintiff, Cassandra Rutledge, and defendant, Charles Rutledge, were divorced in the Wayne Circuit Court. Custody of the parties’ minor child was awarded to plaintiff, and defendant was ordered to pay $58 per week child support. At the time of that order, defendant worked for the Legal Aid and State Defender’s Office and earned approximately $24,000 per year. In 1978, defendant voluntarily quit his job and entered the private practice of law, whereupon his gross income dropped to a projected $2,510 per year. Defendant moved for a reduction in child support. The testimony at the hearing revealed that defendant had remarried and shared living expenses with his new wife, who was a recent medical school graduate serving her first year of residency at a local hospital and was expecting a baby. The Friend of the Court recommended no reduction and the court, Henry Zaborowski, J., denied defendant’s motion. Defendant appeals. Held:

    The modification of child support awards is normally entrusted to the discretion of the trial court. Review of an equity determination in a child support dispute is de novo. However, the Court of Appeals will not reverse the trial court’s determination unless there was an abuse of discretion. Modification of orders for child support are permitted to accord with the welfare of the child within the means and ability of the father. All relevant circumstances must be considered in deciding a petition for modification of child support and a voluntary reduction in income of the noncustodial parent is a relevant circumstance where the voluntary reduction is not made in bad faith or with willful disregard for the interests of the child. A father’s voluntary reduction in income is not an adequate reason for a trial court’s refusal to modify a child support order where bad faith or a willful disregard for the interests of the dependent children by the father are absent.

      References for Points in Headnotes
    [1, 5, 6]24 Am Jur 2d, Divorce and Separation §§ 847, 848.
    Change in financial condition or needs of parents or children as ground for modification of decree for child support payments. 89 ALR2d 7.
    [2] 24 Am Jur 2d, Divorce and Separation § 844.
    [3] 5 Am Jur 2d, Appeal and Error § 868.
    [4] 4 Am Jur 2d, Appeal and Error § 76. 5 Am Jur 2d, Appeal and Error §§ 839, 841.

      Reversed and remanded for a modification hearing.
    1. Parent and Child — Child Support — Modification — Ability of Father.
    Modification of orders for child support are permitted to accord with the welfare of the child within the means and ability of the father.
    2. Parent and Child — Child Support — Modification of Award — Discretion.
    The modification of child support awards is normally entrusted to the discretion of the trial court.
    3. Appeal — Divorce — Child Support — De Novo Review — Abuse of Discretion.
    Review of an equity determination in a child support dispute is de novo; however, the Court of Appeals will not reverse the trial court’s determination unless there was an abuse of discretion.
    4. Appeal — Abuse of Discretion — Findings of Fact.
    A trial court will not be found to have abused its discretion unless the trial court’s findings of fact are clearly erroneous or the reviewing court is convinced it would have reached a different result had it been in the lower court’s position.
    5. Parent and Child — Child Support — Modification.
    All relevant circumstances must be considered in deciding a petition for modification of child support and a voluntary reduction in income of the noncustodial parent is a relevant circumstance where the voluntary reduction is not made in bad faith or with willful disregard for the interests of the child.
    6. Parent and Child — Child Support — Modification — Father’s Income — Voluntary Reduction — Bad Faith — Willful Disregard of Interests.
    A father’s voluntary reduction in income is not an adequate reason for a trial court’s refusal to modify a child support order where bad faith or a willful disregard for the interests of the dependent children by the father are absent.

      Carole L. Chiamp, for plaintiff.

      Maxwell & Sniderman, for defendant.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr., and R. M. Maher, JJ.
   Per Curiam.

Plaintiff and defendant were granted a judgment of divorce in the Wayne County Circuit Court on July 19, 1977. The judgment awarded custody of the parties’ minor child to the plaintiff and required defendant to pay $58 per week child support until the child attained the age of 18 or until further order of the court. On June 23, 1978, the circuit court denied defendant’s motion for modification of this support order. From this determination, defendant appeals as of right under GCR 1963, 806.1.

Defendant predicated his motion for modification on the substantial decrease in income he incurred in the year following the judgment. At the hearing on the motion, defendant testified that in 1977 he was employed as an attorney for the Legal Aid and State Defender’s Office at an annual salary of approximately $24,000. In 1978, however, defendant indicated that he voluntarily entered private practice, whereupon his gross income for the year dropped to $2,510, a projection based on defendant’s income for the first five months of 1978.

The trial court then examined defendant’s circumstances to discover if he was able to take care of his own necessities. The testimony taken revealed that defendant had remarried and that he now shared expenses for shelter, food, and transportation with his new wife. She had just recently graduated from medical school and was serving her first year of residency at a local hospital. The two were expecting a baby in August, 1978. The court then denied defendant’s modification motion, stating:

"I am going to adopt the recommendation of the Friend of the Court. If you wish to change your career and ways of practice you may do so, but you better take care of your obligations.”

Defendant now claims that this ruling was reversibly erroneous.

Michigan law provides for modification of orders for child support so as "to accord with the welfare of the child within the means and ability of the father”. West v West, 241 Mich 679, 686; 217 NW 924 (1928), Hagbloom v Hagbloom, 71 Mich App 257, 259; 247 NW2d 373 (1976). See MCL 552.17; MSA 25.97.

Such modification is within the trial court’s discretion and its decision to modify will not be disturbed absent a clear abuse of discretion. Cullimore v Laureto, 66 Mich App 463, 465; 239 NW2d 409 (1976), Polley v Polley, 367 Mich 455; 116 NW2d 924 (1962). This Court reviews lower court rulings in such matters de novo. We will not reverse or modify the award unless convinced that we would have reached a different result had we occupied the position of the trial court. Hagbloom, supra, 259, Schilleman v Schilleman, 61 Mich App 446, 449; 232 NW2d 737 (1975).

All relevant factors should be considered when entertaining a petition for modification of child support. Moncada v Moncada, 81 Mich App 26; 264 NW2d 104 (1978), McCarthy v McCarthy, 74 Mich App 105; 253 NW2d 672 (1972). A reduction in defendant’s income may be considered, but it cannot be the sole factor to justify a modification, Cymbal v Cymbal, 43 Mich App 566; 204 NW2d 235 (1972). See also Schneider v Schneider, 30 Mich App 124; 186 NW2d 17 (1971). The father’s obligation to support his minor children is not limited to his income. Additionally, the court may take into consideration the father’s ability and potential to earn money. Travis v Travis, 19 Mich App 128; 172 NW2d 491 (1969). See also Baird v Baird, 368 Mich 536; 118 NW2d 427 (1962).

In essence, the instant trial court ruled that the fact that the defendant voluntarily changed careers and incurred a reduction in income as a consequence would not and should not affect his obligation to his minor child. A review of case law in this area indicates that this conclusion is not totally correct, however. A voluntary reduction in income, if made in bad faith or with willful disregard for the interests of the dependent child, will not warrant a modification of support payments. Absent bad faith or such a willful disregard, however, the fact that defendant’s reduction in income was voluntary is not an adequate reason for refusing modification. An individual should be allowed to make good faith changes in his employment and his child should share in the financial inconvenience or hardship, just as the child would if the family had remained together. See Moncada v Moncada, supra, 30-32, and the cases cited therein. The converse is true as well, i.e., if the divorced father’s income increases, the child should share in the benefits. The mother can see to such by her own modification motion.

It is not clear from the record whether the trial court considered the defendant to be acting in bad faith or in willful disregard for the rights of his child when he changed careers. Our independent review of the record has not clarified this point. Although defendant’s testimony as to the reason he left the Defender’s office provides little help in this regard, we do not find it to be unreasonable for a lawyer working in the Defender’s office to enter private practice. From such an unclear record, we cannot say defendant’s career move was intended in bad faith or as a means to circumvent his legal obligations. .

Another factor complicating our review of this case is the length of time that has passed since defendant’s modification motion was denied. We do not know whether defendant’s 1978 income was as dire as projected. We can only assume that his private practice has become more successful during the ensuing time.

In view of the numerous blanks that need to be filled in in this case, we reverse and remand for another hearing on defendant’s modification motion. At this hearing, the court shall examine defendant’s subjective intent in changing careers. If it finds he acted in bad faith or in willful disregard of his dependent’s rights, modification should be denied. If the court finds that the defendant acted in good faith, however, modification of the support order should be granted, providing defendant’s present income calls for it. The question of defendant’s liability for accrued arrearages should rest or fall upon the same considerations.

Reversed and remanded for a modification hearing. We do not retain jurisdiction.


text:
    BRUCE v GRACE HOSPITAL
    Docket No. 78-5130.
    Submitted February 5, 1980, at Detroit.
    Decided April 3, 1980.
    Edward Bruce, Sr., and Edward Bruce, Jr., brought an action for medical malpractice against Grace Hospital, Frederick Lat-timer, Benjamin Haddad, Gordon Scratch, and Lattimer, Had-dad and Scratch, P.C. After granting several adjournments to the plaintiffs, the Wayne Circuit Court, James Montante, J., indicated that no further adjournments would be granted. The court then dismissed the action without prejudice and denied the defendants’ request for costs, postponing the determination of costs pending the filing of a subsequent action. Defendants appeal. Held:

      1. The grant or denial of a dismissal is within the sound discretion of the trial court. The dismissal in this case was not an abuse of that discretion.
    2. It was not necessary for the trial court to award costs at the time of the dismissal. Reinstatement of the case may by court rule be conditioned upon payment of costs or, in the event the plaintiffs do not reinstate the matter, costs may be awarded upon the running of the statute of limitations.
    Affirmed.
    1. Trial — Dismissal — Judge’s Discretion.
    The grant or denial of a voluntary dismissal of a case is within the sound discretion of the trial judge; in exercising that discretion the trial judge is to weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays.
    2. Motions — Dismissal — Prejudice.
    Generally, a motion by a plaintiff to dismiss a case should be granted unless the defendant would be legally prejudiced by the dismissal.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit §§ 6, 8.
    [2] 24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 6 ef seq.

    [3] 5 Am Jur 2d, Appeal and Error § 774.
    [4] 24 Am Jur 2d, Dismissal, Discontinuance, and Nonsuit § 93.

      3. Appeal — Judge’s Discretion — Abuse of Discretion.
    An abuse of discretion by a trial court is found only if an unprejudiced person, upon considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made.
    4. Costs — Previously Dismissed Action — Court Rules.
    A trial court may condition the reinstatement of a previous action which was dismissed without prejudice upon the payment of costs for the previous action (GCR 1963, 504.4).

      Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. (by James L. Borin), for defendant Grace Hospital.

      Kerr, Russell & Weber (by Robert R. Nix, II), for defendants Lattimer, Haddad, Scratch and Lat-timer, Haddad & Scratch, P.C.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr. and R. M. Maher, JJ.
   Per Curiam.

The defendants appeal as of right from a November 30, 1978, order of the Wayne County Circuit Court granting the plaintiffs’ request for a dismissal without prejudice. The plaintiffs had filed a medical malpractice action on April 23, 1974, against the defendants, based upon operations which were performed from 1968 to 1972.

A summary of the history of this litigation is in order. At a pretrial conference which was held in November of 1976, the case was scheduled for trial on February 17, 1978. On February 8, 1978, a settlement conference was held, and plaintiffs sought an adjournment of the trial to June 5, 1978. The adjournment was granted with a notation by the trial judge that no more adjournments would be granted. However, in an order filed May 10, 1978, the plaintiffs’ request for another adjournment was granted over defendants’ objections, and the trial date was set for October 23, 1978. The trial judge noted on the order: "No further adjournments. All attorneys agree on date.”

On October 13, 1978, plaintiffs’ counsel filed yet another motion for a six-month adjournment. The motion alleged that plaintiffs and their counsel had reached a "complete disagreement” over the handling of the case, and an adjournment was necessary to allow plaintiffs to secure other counsel. Defense counsel objected, and the trial court decided to "hold” the matter until November 13, 1978, in order to allow the plaintiffs time to find substitute counsel.

On November 13, 1978, the parties again appeared before the trial court. At this time, the plaintiffs said that their newly retained counsel needed further time to evaluate the case. The trial judge indicated that he would not grant any further adjournments, but would dismiss the matter without prejudice so that plaintiffs could reinstate the action. The trial judge also refused to grant the defendants’ request for costs. An order dismissing the cause without prejudice and holding the determination of costs pending a subsequent lawsuit was filed on November 30, 1978.

On appeal, the defendants allege that the trial court abused its discretion in granting plaintiffs’ motion to dismiss without prejudice and deferring the determination of costs, where the action had been pending for over five years and had been adjourned several times at plaintiffs’ request.

The court rule governing dismissals, GCR 1963, 504.1(2), provides:

"(2) By Order of Court. Except as provided in subrule 504.1(1), an action shall not be dismissed at the plaintiff’s instance unless by order of court upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the court shall not order the action dismissed over the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal by order of court under this paragraph is without prejudice.”

There are few Michigan cases which discuss this rule. In African Methodist Episcopal Church v Shoulders, 38 Mich App 210, 212; 196 NW2d 16 (1972), the Court noted, in footnote 1, that GCR 1963, 504.1(2) is based on FR Civ P 41(a)(2), so it was appropriate to look to Federal cases for guidance. The Court then stated:

"Plaintiffs argue that the grant or denial of a voluntary dismissal is within the sound discretion of the trial judge. Roberson v Thomas, 13 Mich App 384 [164 NW2d 544] (1968). We agree; however, in exercising that discretion the trial judge is to weigh the competing interests of the parties along with any resultant inconvenience to the court from further delays. Granger v Lundberg, 32 Mich App 462 [189 NW2d 14] (1971). Normally, such a motion should be granted unless defendant will be legally prejudiced as a result. Durham v Florida East Coast Railway Co, 385 F2d 366 (CA 5, 1967). As the purpose of GCR 1963, 504.1(2) is to protect defendant from the abusive practice of dismissal after much time and effort has been put into a lawsuit, any dismissal should be on terms and conditions which protect defendant. See American Cyanamid Co v McGhee, 317 F2d 295 (CA 5, 1963).”

In its discussion of the Federal rule, 9 Wright & Miller, Federal Practice & Procedure, § 2364, pp 165-171, states:

"The purpose of Rule 41(a)(2) 'is primarily to preyent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions.’ Accordingly the courts have generally followed the traditional principle that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. It is not a bar to dismissal that plaintiff may obtain some tactical advantage thereby. * * * Dismissal has been allowed to give plaintiff an opportunity to secure new evidence after he has found, by discovery or otherwise, that he cannot prove his present claim. * * * In exercising its discretion, the court will consider the expense and inconvenience to the defendant and will deny the motion if defendant will be seriously prejudiced by a dismissal.” (Footnotes omitted.)

Federal cases generally have adopted a liberal policy toward allowing a dismissal without prejudice where defendant’s position would not be unduly prejudiced. See LeCompte v Mr Chip, Inc, 528 F2d 601 (CA 5, 1976), Holiday Queen Land Corp v Baker, 489 F2d 1031 (CA 5, 1974).

The defendants rely on Makuck v McMullin, 87 Mich App 82; 273 NW2d 595 (1978), where this Court affirmed the trial court’s denial of plaintiffs motion to dismiss without prejudice. The motion came at the close of plaintiffs opening statement in a negligence case. Plaintiffs counsel sketched a completely different cause of action in his opening statement than was set forth in the pleadings, and freely admitted that he could offer no proofs on the theory pled. In finding that there was no abuse of discretion in denying plaintiffs motion, this Court noted that defendant had invested considerable time and expense in preparing a defense and would be subjected to further expense in defending a new cause of action. We find that Makuck is distinguishable on its facts and does not establish the contrary proposition that a decision to grant plaintiffs motion for dismissal without prejudice would have constituted an abuse of discretion.

An abuse of discretion is found only if an unprejudiced person, upon considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made. Seifert v Buhl Optical Co, 276 Mich 692, 699; 268 NW 784 (1936). See also, People v Wilson, 397 Mich 76, 80; 243 NW2d 257 (1976).

We find that the decision to dismiss the instant case without prejudice in order to allow plaintiffs sufficient time in which to obtain a second evaluation of their medical malpractice action did not constitute an abuse of discretion.

With respect to the trial court’s decision to postpone a determination of costs, we note that GCR 1963, 504.4 allows the trial court to condition the reinstatement of a previously dismissed action upon the payment of costs. Therefore, it was not necessary to award costs at the time of granting the plaintiffs’ motion to dismiss. The trial court should retain jurisdiction over the matter, and if the suit is not reinstated before the statute of limitations period runs out, costs can be awarded at that time.

Affirmed.

       We note that the recovery of attorney fees, either as an element of costs of suit or as an item of damages, is not allowed unless expressly authorized by statute or court rule. City of Center Line v 37th District Court Judges, 74 Mich App 97, 103; 253 NW2d 669 (1977). Thus, if defendants wish to recover attorney fees as an element of costs, they will have to present to the trial court some statutory basis or other authority for such entitlement.


author: Per Curiam. Cynar, J.

text:
    PEOPLE v BECK
    Docket No. 78-5384.
    Submitted January 8, 1980, at Detroit.
    Decided April 3, 1980.
    Defendant, Oscar Beck, Jr., was convicted of armed robbery and felony-firearm in the Recorder’s Court of Detroit, Thomas L. Poindexter, J. At trial, the prosecutor elicited the statement from defendant that he had never possessed a blue steel automatic pistol. After both sides had rested, the prosecutor was allowed to recall one of defendant’s witnesses to "rebut” the denial by testimony that defendant had threatened her with a blue steel automatic pistol four days after the robbery. Defendant appeals. Held:

    1. Rebuttal is limited to the refutation of relevant and material evidence, hence, evidence bearing on an issue properly raised in a case. The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue and both the statement and the veracity of the witness are then collateral matters and the cross-examiner is bound by the response.
    2. A jury instruction which states "the defendant has a right to take the stand and become a witness in his own behalf and it is your duty to consider his testimony by the same standards as you would that of any other witness who has appeared on the stand; however, you must take into account the fact that he is the defendant and has an interest in the outcome of the case” is improper for the reason that it may lead the jury to consider the defendant’s testimony differently from that of any other witness regardless of the circumstances.
    Reversed and remanded.
    Cynar, J., dissented. He would hold that the evidence of defendant’s guilt was overwhelming and any error in introducing the evidence regarding the pistol was harmless. He would affirm.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 250, 269.
    [2] 81 Am Jur 2d, Witnesses §§ 473-476, 520, 612, 613.
    [3] 75 Am Jur 2d, Trial § 687.
    [4] 5 Am Jur 2d, Appeal and Error §§ 797, 798. 29 Am Jur 2d, Evidence § 250.

      Opinion of the Court
    1. Evidence — Rebuttal.
    Rebuttal is limited to the refutation of relevant and material evidence, hence, evidence bearing on an issue properly raised in a case.
    2. Witnesses — Denial — Collateral Matters — Cross-Examination.
    The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue and both the statement and the veracity of the witness are then collateral matters and the cross-examiner is bound by the response.
    3. Criminal Law — Instructions to Jury — Witnesses — Defendant as a Witness.
    A jury instruction which states "the defendant has a right to take the stand and become a witness in his own behalf and it is your duty to consider his testimony by the same standards as you would that of any other witness who has appeared on the stand; however, you must take into account the fact that he is the defendant and has an interest in the outcome of the case” is improper for the reason that it may lead the jury to consider the defendant’s testimony differently from that of any other witness regardless of the circumstances.
    Dissent by Cynar, J.
    4. 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 regarded as prejudicial where the evidence of defendant’s guilt was overwhelming.

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

      Arthur Jay Weiss, for defendant.

      Before: R. M. Maher, P.J., and M. F. CavanagiI and Cynar, JJ.
   Per Curiam.

Defendant was tried by a jury and found guilty of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm while in the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of 2 to 15 years for the robbery, plus a consecutive two years for the felony-firearm offense and appeals by right.

We have reviewed the arguments raised on appeal by defendant and conclude that one of them requires reversal. The remaining five issues, with the exception of one, do not require discussion.

The error occurred when, after both parties had rested their respective cases, the trial court allowed one of defendant’s witnesses to be recalled as a rebuttal witness. Previously, during the presentation of the defendant’s case, the prosecutor had reserved the right to recall this witness, Ms. Clark, at a later time. Also, during the cross-examination of defendant, the prosecutor elicited the statement from defendant that he had never possessed a blue Steel automatic pistol. When Ms. Clark was recalled ostensibly for rebuttal purposes, she testified that defendant had threatened her with a pistol following an argument some four days after the robbery in issue had occurred. It is apparent from the prosecutor’s "rebuttal” examination that Ms. Clark had previously reported to the police that defendant had threatened her with a blue steel automatic pistol, the same type of pistol purportedly employed in the robbery.

The trial court was in error in admitting this evidence as rebuttal evidence, since, "[r]ebuttal is limited to the refutation of relevant and material evidence — hence evidence bearing on an issue properly raised in a case”. People v Bennett, 393 Mich 445, 449; 224 NW2d 840 (1975). That opinion went on to state that, "[t]he device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue”. Bennett, supra, 449. The circumstances in the case now under consideration are slightly different than those in Bennett, inasmuch as we are concerned with the denial of an action rather than a statement. But, in both instances, elicitation of the denial subjected the defendant to an improper and unfair order in the presentation of the people’s proofs. People v Meadows, 80 Mich App 680, 686; 263 NW2d 903 (1977).

In this case it is readily apparent that the prosecutor "saved” this evidence until the defendant had rested in an attempt to guarantee its maximum effect upon the jury as shown by his reference in closing argument to the "piece de resistance” which this testimony of Ms. Clark represented. If admissible at all, this evidence should have been pursued when Ms. Clark initially testified or presented in the people’s case in chief. People v Kraai, 92 Mich App 398, 410; 285 NW2d 309 (1979), lv den 407 Mich 954 (1980).

The prosecution also' sought to justify the admission of this evidence as proper impeachment evidence bearing on defendant’s credibility. The record discloses, however, that defense counsel correctly argued that once the prosecutor received defendant’s negative response, the matter became collateral and it was erroneous to introduce new evidence pertaining thereto. People v McGillen #1, 392 Mich 251, 266-267; 220 NW2d 677 (1974). We further find that, due to the importance of the credibility of the witnesses in this case and the prosecution’s deliberate tactic of injecting this evidence just prior to jury deliberations, this error cannot be classified as harmless. People v Meadows, supra, 686-687.

Finally, defendant objects for the first time to the following jury instruction:

"The defendant took the stand and testified. The defendant has a right to take the stand and become a witness in his own behalf and it is your duty to consider his testimony by the same standards as you would that of any other witness who has appeared on the stand; however, you must take into account the fact that he is the defendant and has an interest in the outcome of the case.”

Language similar to this was approved by this Court in People v Nash, 61 Mich App 708, 715; 233 NW2d 153 (1975). However, we take this opportunity to note that the instruction approved in Nash digresses from the instructions approved in the cited case of People v Williams, 208 Mich 586, 593; 175 NW2d 187 (1919). In our opinion, the language of the precedents more fairly instructs the jury to weigh a defendant’s testimony, in view of all the facts and circumstances shown, to the extent that the jury finds it is appropriate. The instant instruction, as well as that in Nash, does not similarly qualify the directive to the jury, and we disapprove of it for the reason that it may lead a jury to consider a defendant’s testimony differently from that of any other witness regardless of the circumstances. People v Williams, supra, 594.

Reversed and remanded.

Cynar, J.

(dissenting). I respectfully dissent.

I feel that any error caused by the admission of the rebuttal testimony was harmless beyond a reasonable doubt in light of the overwhelming evidence of guilt adduced at trial. People v Mead ows, 80 Mich App 680, 686-687; 263 NW2d 903 (1977). I would not find the introduction of the evidence relating to the blue steel revolver so offensive to the riiaintenánce of a sound judicial system that it amounted to per Se reversible error. Accordingly, I would affirm defendant’s conviction.


text:
    LANGS v CITY OF PONTIAC
    Docket No. 43057.
    Submitted January 16, 1980, at Lansing.
    Decided April 3, 1980.
    Charles W. Langs brought on December 13, 1978, an action in circuit court seeking to enjoin the sale of certain bonds which were scheduled for sale by the City of Pontiac on December 14, 1978. The City of Pontiac moved for summary and accelerated judgments. The Oakland Circuit Court, Richard D. Kuhn, J., granted the motion for accelerated judgment on the basis that the plaintiff failed to bring his action in a timely fashion and granted the motion for summary judgment on the basis that plaintiff’s theory that the sale of the bonds was illegal under the so-called Headlee amendment to the Michigan Constitution failed to state a cause of action upon which relief could be granted, since that amendment, while approved by the electorate, did not take effect until December 22, 1978. Plaintiff appeals. Held:

    The granting of accelerated judgment was appropriate since plaintiff delayed commencement of his action until December 13, 1978, the day before the sale of the bonds, despite the fact that public knowledge of the scheduled sale of the bonds had existed since April, 1978, and then proceeded to base his claim for relief upon a constitutional amendment which, while approved by the electorate by the date of commencement of the action, had not yet become effective. Further, while plaintiff sought to rely upon the approved but not yet effective amendment to the constitution, plaintiff failed to commence the action in accordance with the provisions of that constitutional amendment and failed to seek a stay of the order granting accelerated and summary judgment. Under these circumstances, the delay by plaintiff in commencing his action to enjoin the sale of the bonds until the "eleventh hour” was not reasonable and justified the refusal of the circuit court to continue the litigation.
    Affirmed.
    References for Points in Headnote
    [1] 4 Am Jur 2d, Appeal and Error § 103 et seq.

    64 Am Jur 2d, Public Securities and Obigation § 478.

      Appeal and Error — Actions — Bonds — Constitutional Amendment — Delay in Commencing Action.
    The Court of Appeals will not overturn a circuit court’s order of accelerated judgment in favor of a defendant city in an action seeking to enjoin a December 14, 1978, municipal bond sale where: (1) the action was commenced on December 13, 1978, (2) the asserted reason for the delay in commencing the action was to await the approval by the electorate on November 7, 1978, of the so-called Headlee amendment to the Michigan Constitution, (3) the Headlee amendment, while approved by the electorate, was not to take effect until December 22, 1978, (4) while the basis for the plaintiffs claim of the illegal nature of the bond sale was based upon the Headlee amendment, the plaintiff commenced his action in circuit court rather than the Court of Appeals, as provided for by the Headlee amendment, and (5) the plaintiff failed to seek a stay of the circuit court’s order (Const 1963, art 9, §§ 25-34).

      James G. Hartrick, for plaintiff.

      Miller, Canfield, Paddock & Stone (by Gilbert E. Gove and Kristine Galien Opperwall), for defendant.
    Before: Beasley, P.J., and D. E. Holbrook, Jr. and R. E. Robinson, JJ.

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

   Per Curiam.

As part of a downtown redevelopment project, defendant City of Pontiac undertook to issue bonds so as to be able to construct a parking facility and pedestrian plaza. Plaintiff started an "eleventh hour” lawsuit on the day before bonds were scheduled for sale to enjoin the sale or other disposition.

Defendant moved for accelerated and summary judgments. The trial court expedited the hearing and granted the motions. Plaintiff appeals as of right.

The trial court granted accelerated judgment under Bigger v City of Pontiac, pointing out that the scheduled issuance of the bonds to finance the project was known to the public in April, 1978, that plaintiff did not start suit until December 13, 1978, and that the bonds were scheduled for sale on December 14, 1978.

Plaintiff argues that in seeking to sell the bonds without voter approval, defendant sought to circumvent the clear intention of the Headlee amendment to the Michigan Constitution. Plaintiff says that since the Headlee amendment was only adopted at the November, 1978, election and since that amendment did not become effective until December 22, 1978, he was neither "sleeping on his rights” nor tardy in commencing suit.

Plaintiff’s argument for distinguishing this case from Bigger is not without merit. The Headlee amendment to the constitution contains broad language which may be interpreted to place limitations upon municipal projects funded as here. But we are not unmindful of the fact that as of the date of preparation of this opinion, the Supreme Court has twice denied, in 4-3 votes, requests by the Senate and by the Governor, respectively, to render an advisory opinion regarding the meaning of the Headlee amendment.

Section 32 of the Headlee amendment specifically gives standing to any taxpayer to bring suit in the Court of Appeals to enforce sections 25 through 31. Plaintiff did not and has not availed himself of this constitutional right to bring suit, if he, in fact, believes the Headlee amendment applies.

Normally, we would hesitate to apply concepts of laches, lack of due diligence, or tardiness in starting suit to a plaintiff who files suit on December 13th for a claim which arguably arises out of a constitutional amendment approved by the electorate on November 7th, and which had, by it terms, a built-in effective date of December 22nd, after suit had been started. But, in this case, since the Headlee amendment contains its own built-in appellate provision, and since plaintiff does not seek to come under that provision, we hold that the Headlee amendment does not help plaintiff and does not preclude application of Bigger, supra.

We are aware that, but for a Bigger rule, projects duly adopted by elected government officials could be delayed and frustrated virtually indefinitely by artful applications of various phases of the judicial process. We particularly note that in the within case, plaintiff did not choose to seek a stay of the order granting accelerated judgment and summary judgment in this Court, or in the Supreme Court, or even in the trial court which granted the judgment.

Our review of plaintiff’s other claims persuades us they are without merit.

In this case, defendant claims on appeal that, since plaintiff only sought injunctive relief and since the bonds have been, in fact, issued and sold, plaintiffs claim is moot. Here, we do not characterize plaintiffs claims as moot and do not base decision on that theory. While in some factual situations we might hold the pendency of ati appeal was a cloud over the validity of a bond sale, we here do not choose to upset the grant of accelerated judgment.

Affirmed. No costs, a public question being involved.

       390 Mich 1; 210 NW2d 1 (1973), cert den, 415 US 917; 94 S Ct 1415; 39 L Ed 2d 471 (1973).

       See, Const 1963, art 9, §§ 25-34, inclusive.

       Const 1963, art 9, § 31 provides:
      "Units of Local Government are hereby prohibited from levying any tax not authorized by law or charter when this section is ratified or from increasing the rate of an existing tax above that rate authorized by law or charter when this section is ratified, without the approval of a majority of the qualified electors of that unit of Local Government voting thereon.”

         Request for Advisory Opinion on the Constitutionality of 1979 PA 57, 407 Mich 60; 281 NW2d 322 (1979) (request by the Senate) and Request for Advisory Opinion on the Constitutionality of 1979 PA 57, 407 Mich 506; 286 NW2d 686 (1980) (request by the Governor).

       Const 1963, art 9, § 32 provides:
      "Any taxpayer of the state shall have standing to bring suit in the Michigan State Court of Appeals to enforce the provisions of Sections 25 through 31, inclusive, of this Article and, if the suit is sustained, shall receive from the applicable unit of government his costs incurred in maintaining such suit.”

       Const 1963, art 12, § 2.


text:
    ROBINSON v A Z SHMINA AND SONS COMPANY
    Docket No. 43205.
    Submitted February 6, 1980, at Detroit.
    Decided April 3, 1980.
    David Robinson was killed when a crane came in contact with an electric wire. Robinson was an employee of Weiss Pollution Control Company. Weiss was a subcontractor under a contract for the construction of a water purification plant entered into between A. Z. Shmina and Sons Company, the general contractor, and the City of Pontiac. Alfred J. Robinson, the administrator of the estate of David Robinson, brought an action against Shmina, the City of Pontiac, the City of Pontiac Water Department and Detroit Edison, the owner of the electrical transmission wire contacted by the crane. Shmina, in turn, filed a third-party complaint against Weiss seeking indemnification from Weiss both pursuant to the indemnity provision of the contract between Shmina and Weiss and under common-law indemnity. Weiss moved for summary judgment contending that the contractual indemnification clause was statutorily void because it sought to indemnify Shmina for its own negligence and that common-law indemnity was not available to Shmina because the primary plaintiff alleged that Shmina was actively negligent. The Wayne Circuit Court, Joseph A. Moynihan, J., granted Weiss’s motion for summary judgment with respect to the claim based upon contractual indemnity, but denied the motion for summary judgment with respect to the claim based upon common-law indemnity. Shmina appeals. Held:

    The portion of the indemnity provision of the contract which purported to indemnify promisee Shmina from liability for damages arising out of its sole negligence is contrary to public policy. That portion of the indemnity provision of the contract, however, is severable from the portion of the provision which purports to indemnify Shmina from liability where the damages arise out of its joint rather than its sole negligence. The joint negligence portion, being severable, is not rendered invalid by reason of the fact that it is supported by the same consideration as the unlawful portion of the indemnity provision. Accordingly, the trial court erred in granting summary judgment dismissing the claim for indemnity based upon the contractual provisions. "

      References for Points in Headnotes
    [1] 17 Am Jur 2d, Contracts § 188.
    57 Am Jur 2d, Negligence § 20.
    63 Am Jur 2d, Products Liability § 30.
    [2] 17 Am Jur 2d, Contracts §§ 275, 276.
    [3] 17 Am Jur 2d, Contracts § 230.

      Reversed and remanded.
    1. Indemnity — Contracts — Construction Contracts — Negligence — Statutes.
    An indemnity provision in a construction contract which seeks to protect the promisee from liability for personal injury or property damage arising from the sole negligence of the promisee is, as a matter of public policy, void (MCL 691.991; MSA 26.1146[1]).
    2. Contracts — Indemnity — Construction of Contract — Intention — Strict Construction — Drafter of Contract — Indemnitee.
    An indemnity contract, like other contracts, is enforced so as to effectuate the intention of the parties, but the language of an indemnity contract will be strictly construed against the party who drafts the contract and against the indemnitee.
    3. Contracts — Indemnity — Severance — Negligence — Consideration.
    A general rule of contract law is that a void section of an otherwise valid provision can be severed if it is not an essential part of the whole; therefore, a portion of an indemnity provision of a construction contract which purports to unlawfully indemnify a promisee from liability for damages arising solely from the promisee’s negligence will be severed from the remaining portion of the indemnity provision which lawfully indemnifies the promisee from liability for damages arising out of the promisee’s joint negligence with the promisor; a lawful promise based on good consideration is not invalidated by an unlawful promise which is made for the same consideration.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark, for A. Z. Shmina and Sons Company.

      Hibbs, Lewis & Golden, P.C. (by Terry S. Welch), for Weiss Pollution Control Corporation.

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

This appeal arises from a third-party indemnity action.

In August, 1973, A. 2. Shmina and Sons Company (hereinafter Shmina) entered into a contract with the City of Pontiac for the construction of a water purification plant. Subsequently, Shmina subcontracted part of the work to Weiss Pollution Control Corporation (hereinafter Weiss). David Robinson, an employee of Weiss, suffered fatal injuries while working on the job. Alfred Robinson, the administrator of his estate, brought an action against Shmina. In turn, Shmina filed a third-party complaint against Weiss seeking indemnification if Shmina is ultimately held liable to the primary plaintiff.

In response to Shmina’s third-party complaint, Weiss filed a motion for summary judgment contending: (1) that the contractual indemnification clause was void under MCL 691.991; MSA 26.1146(1), which prohibits an indemnitee from recovering for his sole negligence; and (2) Shmina was not entitled to common law indemnity because the primary plaintiff alleged that Shmina was actively negligent.

In his complaint, the primary plaintiff alleged that David Robinson was electrocuted while unloading a sluice gate valve from a crane which was parked in close proximity to a high voltage electrical wire and came in contact with the overhead wire. The primary plaintiff averred, inter alia, that Shmina was negligent in allowing the crane to be parked close to an overhead wire, in failing to warn the crane operator to avoid the wires, in failing to inspect the job site and discover the danger, in failing to equip the crane with insulation devices or proximity warning devices, and in failing to have the electrical wires de-energized.

After a hearing in the Wayne County Circuit Court, the trial judge granted Weiss’s motion for summary judgment on the basis of contractual indemnity, finding that the indemnity clause in question violated the sole negligence provision of MCL 691.991; MSA 26.1146(1). However, the trial judge denied Weiss’s second ground for summary judgment, finding that Shmina’s third-party complaint properly stated a claim for common-law indemnity. This portion of the decision has not been appealed, and our decision is confined to the issue of contractual indemnity.

Shmina brought a motion for rehearing in the trial court on the issue of contractual indemnity. The motion was denied in an opinion written on August 29, 1978. Shmina appeals as of right from the order implementing the trial court’s opinion.

The indemnity clause between Shmina and Weiss, which is contained in the subcontract, provides:

"That the Subcontractor shall:

"(l).Be bound to the Contractor by the terms of the Contractor Documents and this Agreement, and assume toward the Contractor all the obligations and responsibilities that the Contractor, by those documents, assumes toward the Owner, as applicable to this Subcontract.”

The interpretation of this so-called "step-over” clause depends upon the contract between the City of Pontiac (referred to as the "owner”) and Shmina, the general contractor (or "contractor”). The indemnity clause between Shmina and the city provides:

"B-4.09.01 The Contractor will indemnify and hold harmless the Owner and the Engineer and their agents and employees from and against all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting from the performance of The Work, provided that any such claim, damage, loss or expense (a) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than The Work itself) including the loss of use resulting therefrom and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnifíed hereunder.

"B-4.09.02 In any and all claims against the Owner or the Engineer or any of their agents or employees by any employee of the Contractor, any .Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph B-4.09.01 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor under workmen’s compensation acts, disability benefit acts or other employee benefit acts.” (Emphasis added.)

In the building and construction industry, public policy, as expressed by MCL 691.991; MSA 26.1146(1), prohibits an indemnitee from recovering for his sole negligence. This statute provides:

"Sec. 1. A covenant, promise, agreement or understanding in, or in connection with or collateral to, a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenance and appliance, including moving, demolition and excavating connected therewith, purporting to indemnify the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee or indemnitee, his agents or employees, is against public policy and is void and unenforceable.”

Thus, as a matter of public policy, the indemnitor is not liable even if the contract specifically provides for indemnity for the indemnitee’s negligence, unless the indemnitor is also negligent. Nanasi v General Motors Corp, 56 Mich App 652, 659; 224 NW2d 914 (1974), Robertson v Swindell-Dressler Co, 82 Mich App 382, 399; 267 NW2d 131 (1978).

Indemnity contracts, like other contracts, are to be enforced so as to effectuate the intentions of the parties. Gartside v Young Men’s Christian Ass’n, 87 Mich App 335, 339; 274 NW2d 58 (1978). In ascertaining the intentions of the parties, one must consider not only the language used in the contract but also the situation of the parties and the circumstances surrounding the contract. Gartside, supra. Indemnity contracts are construed most strictly against the party who drafts them, and against the party who is the indemnitee. Gartside, supra, Fireman’s Fund American Ins Cos v General Electric Co, 74 Mich App 318; 253 NW2d 748 (1977).

We agree that the language of the contracts previously quoted could be construed to require Weiss to indemnify Shmina in a situation where Shmina was solely negligent. However, this does not invalidate the indemnity clause in toto. A general rule of contract law is that a void section of an otherwise valid provision can be severed if it is not an essential part of the whole. Robertson v Swindell-Dressler Co, supra.

In Ford v Clark Equipment Co, 87 Mich App 270, 274-276; 274 NW2d 33 (1978), this Court was faced with the following indemnity provision in a contract providing for the installation of an overhead sprinkling system at a facility owned by Clark:

"It is Understood and agreed that the seller will indemnify and save harmless the buyer from and against any and all claims for injury or death to persons or damage to property (including costs of litigation and attorney’s fees) in any manner caused by, arising from, incident to, connected with or growing Out Of the work to be performed under this contract, regardless of whether such claim is alleged to be caused, in whole or in part, by negligence or otherwise, on the part of the buyer or its employees. Seller will promptly notify buyer in writing of any such claim, setting forth all details thereof known to seller.” Id., at 272-273.

The Court stated that the contractor made two separate promises in the indemnity clause: to indemnify Clark for its sole negligence, and to indemnify Clark if the injury was caused "in part” by Clark’s negligence. Both of these promises were supported by the same consideration. Citing the rule in 17 CJS, Contracts, § 289(a), p 1220, the Court found that a lawful promise based oil good consideration is not invalidated by aft unlawful promise which is made for the same consideration. The Court concluded that the promise to indemnify Clark for its sole negligence could be severed, and the promise to indemnify Clark where it was partially negligent could be enforced without doing violence to either the contracting parties’ intent or to the statute.

We agree with the reasoning of Ford v Clark, supra. We therefore reverse the trial court’s grant of summary judgment and remand for a trial on the third-party action. As there is some ambiguity in the meaning of the "step-over” clause, its construction cannot be decided by the Court as a matter of law.

Reversed and remanded for proceedings consistent with this opinion.


text:
    PEOPLE v HAROLD JOHNSON
    Docket No. 45033.
    Submitted February 13, 1980, at Lansing.
    Decided April 3, 1980.
    Harold D. Johnson was convicted of driving under the influence of intoxicating liquor-third offense, Washtenaw Circuit Court, Ross W. Campbell, J. The defendant appeals, alleging that the trial court erred reversibly in refusing to instruct the jury, as requested by the defendant, on the lesser included offense of the misdemeanor of driving while visibly impaired and that the prosecution, in the second phase of the bifurcated proceeding, failed to establish the defendant’s two prior convictions for driving under the influence. Held:

    1. The trial court erred in refusing to give the requested instruction on the lesser included offense of driving while impaired. The rule prohibiting an instruction on a lesser included offense for which the maximum allowable incarceration period is one year or less in a case wherein the charged offense is punishable by incarceration for more than two years is not applicable to the first phase of a bifurcated trial for driving under the influence of intoxicating liquor, third violation, and does not preclude a jury instruction on driving while visibly impaired.
    2. At the second phase of a trial on a charge of driving under the influence of intoxicating liquor-third offense, the prosecution must prove both the fact of the alleged prior convictions and the identity of the defendant as the person who had committed those previous offenses. In the instant case the prosecution adequately established the two prior convictions by introducing into evidence certified copies of two prior convictions bearing the seal of the respective courts in which the convictions occurred. The prosecution sought to establish the defendant’s identity as the same defendant in the prior convictions by matching his vital statistics with those appearing in the court records for the previous convictions. This, combined with the fact that the same name appeared for the defendant as was used in the previous convictions, was sufficient, as a matter of law, on the element of identity.

      References for Points in Headnotes
    [1] 7 Am Jur 2d, Automobiles and Highway Traffic § 257.
    75 Am Jur 2d, Trial §§ 880, 881.
    [2] 7 Am Jur 2d, Automobiles and Highway Traffic § 330.
    30 Am Jur 2d, Evidence § 1175.

      Reversed and remanded for a new trial.
    1. Criminal Law — Instructions to Jury — Lesser Included Offenses — Driving Under the Influence •— Driving While Impaired.
    The rule prohibiting an instruction on a lesser included offense for which the maximum allowable incarceration period is one year or less in a case wherein the charged offense is punishable by incarceration for more than two years is not applicable to the first phase of a bifurcated trial for driving under the influence of intoxicating liquor, third violation, and does not preclude a jury instruction on driving while visibly impaired.
    2. Criminal Law — Driving Under the Influence — Third Violation — Prior Convictions —■ Evidence — Statutes — Court Rules.
    The prosecution in the second phase of a bifurcated trial for driving under the influence of intoxicating liquor-third violation must prove both the fact of the alleged prior convictions for driving under the influence of intoxicating liquor and the identity of the defendant as the person who committed those previous offenses; each element must be proven beyond a reasonable doubt; on the element of the fact of the defendant’s prior convictions, a certified and sealed copy of a court record of conviction is prima facie evidence that such conviction was rendered; on the element of identity, the general common-law rule is that sufficient evidence is offered to discharge the prosecution’s burden of proof where either direct or circumstantial evidence is offered to show that the person named in the former convictions and the defendant on trial are one and the same (MCL 257.625, 600.2106; MSA 9.2325, 27A.2106, MRE 902[4]).

      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.

      Law Offices of Gerald D. Grohnert (by William A. Tanoury), for defendant on appeal.

      Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Per Curiam.

In the first phase of a bifurcated trial for a charge of driving under the influence of intoxicating liquor, third violation, conducted pursuant to MCL 257.625; MSA 9.2325, must the trial court, on request of counsel, instruct the jury on the lesser included offense of the misdemeanor of driving while visibly impaired, MCL 257.625b; MSA 9.2325(2), which carries a maximum penalty of 90 days, or is such requested instruction precluded by People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975)? In the second phase of such a trial is it sufficient if the prosecution offers certified copies of two prior convictions for driving under the influence of intoxicating liquor, bearing the seal of the respective courts in which the convictions occurred? These two questions come to us on the following facts.

On September 29, 1978, defendant was arrested on a charge of driving under the influence of liquor and was eventually charged and arraigned on the charge of driving under the influence of liquor-third offense, MCL 257.625(c); MSA 9.2325(c). Trial by jury proceeded January 18, 1979, in the approved method of bifurcation under which the jury is presented with evidence of driving under the influence of liquor without the jury being informed that this would be a third offense. The two arresting officers testified for the people concerning defendant’s driving behavior on the night of the arrest. Defendant testified as to the reason for his behavior and offered the corroborating testimony of his wife. At the conclusion of proofs and closing arguments, the trial court refused to instruct the jury on the lesser included offense of driving while visibly impaired despite a request for the instruction by defense counsel. The jury returned a verdict of guilty of driving under the influence of liquor.

After the verdict, the second trial commenced before the same jury. The prosecution offered in evidence only the certified copies of the judgments of conviction in the prior trials. The defendant did not testify and the trial judge instructed the jury with regard to the proof required and the standard of reasonable doubt. The jury returned a verdict of guilty as charged of driving under the influence-third offense. April 13, 1979, defendant was sentenced to prison for two years, eight months to four years. He appeals of right.

I

The identical issue raised as question one in the instant case was addressed in People v Pipkin, 93 Mich App 817; 287 NW2d 352 (1979). In an opinion written by Judge Mackenzie, our Court held that the Chamblis rule does not apply and, thus, when requested in the first stage of a DUIL-third violation trial, a driving while visibly impaired (DWI) instruction must be given.

"In a DUIL third-violation jury trial, the defendant is entitled to a bifurcated proceeding. In the first phase of the trial, the jury is required to determine the defendant’s guilt or innocence with respect to the current DUIL offense. In order to ensure that the jury will not be prejudiced against the defendant, they are not permitted at this stage to know of the defendant’s prior convictions. If the defendant is convicted, the second stage of the trial is held to determine whether the defendant has been convicted of the same offense twice before within 10 years. See People v Bosca, 25 Mich App 455; 181 NW2d 678 (1970).

"Thus, as a practical matter, in the first stage of the bifurcated proceeding, the defendant is in effect charged not with DUIL third-violation, an offense punishable by greater than two years imprisonment, but rather with simply DUIL, an offense not punishable by greater than two years imprisonment. Accordingly, a necessary precondition to the application of the Chamblis rule, a charged offense for which the maximum allowable incarceration period is greater than two years, is not here present. The Chamblis rule is inapplicable. The trial court, in the first stage of a DUIL third-violation trial, must, upon the defendant’s request, instruct on DWI.” 93 Mich App 817, 820.

We are persuaded by Pipkin and, accordingly, reverse and remand for a new trial. In no way should our decision be taken as faulting the trial court, which at the time of trial in January, 1979, did not have the benefit of Pipkin or People v Miller, 406 Mich 244; 277 NW2d 630 (1979).

II

The issue presented in defendant’s second question is of first impression and will necessarily be raised again on retrial. Accordingly, we address it even though our decision on question one, supra, makes it unnecessary to do so. It is claimed that the trial court erred because the prosecution did not offer evidence other than the certified copies of the prior judgments that the person convicted of the two prior judgments was the same person on trial in the present case. According to defendant, the situation is analogous to the burden of proof required in habitual offender prosecutions.

Under the habitual offender statute, the prosecution must prove both the fact of the alleged prior conviction and the identity of the defendant as the person who had committed those previous offenses. People v Covington, 70 Mich App 188, 191; 245 NW2d 558 (1976), lv den 402 Mich 843 (1977). Though a sentence enhancement provision and not a substantive offense, each of the elements of the statute must be established by the prosecution beyond a reasonable doubt. People v Covington, supra, 191, People v Stevens, 88 Mich App 421, 426; 276 NW2d 910 (1979). In Covington, this Court found that these two elements were sufficiently established as a matter of law where, in addition to offering into evidence certified copies of the prior convictions, the prosecution presented testimony from a fingerprint expert who had compared fingerprints on the cards of the prior convictions with the fingerprints of defendant in the case on trial and found them the same. Defendant argues that the same standard of proof is applicable in proving the elements of a DUIL-third offense charge at the second phase of the bifurcated trial. We agree.

At the second phase of a DUIL-third offense charge, the prosecution must prove both the fact of the alleged prior convictions under MCL 257.625; MSA 9.2325, and the identity of the defendant as the person who had committed those previous offenses. MCL 257.625(c); MSA 9.2325(c), People v Miller, 357 Mich 400, 409-410; 98 NW2d 524 (1959), cf., People v Bosca, 25 Mich App 455; 181 NW2d 678 (1970). In addition, for the same reasons given in Covington and Stevens, supra, concerning the habitual offender statute, each of the elements of the statute must be established by the prosecution beyond a reasonable doubt. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). There must be sufficient evidence to permit a rational trier of fact to find that the essential elements of the statute were proven beyond a reasonable doubt. Id.

Of course, it would be impossible to catalogue all of the various methods and types of evidence which would suffice, under the above standard, to sustain a judgment of a DUIL-third offense charge as a matter of law. Still, on the element of the fact of the defendant’s prior convictions, we note that a certified and sealed copy of a court record of conviction is prima facie evidence that such conviction was rendered, and therefore, is sufficient to sustain a judgment on this element of the offense. MCL 600.2106; MSA 27A.2106, MRE 902(4). On the element of identity, the general common-law rule is that sufficient evidence is offered to discharge the prosecution’s burden of proof where either direct or circumstantial evidence is offered to show that the person named in the former convictions and the defendant on trial are one and the same person. Anno: Evidence of identity for purposes of statute as to enhanced punishment in case of prior conviction, 11 ALR2d 870. Thus, for example, evidence of fingerprints, photographs, distinguishing physical characteristics, or similarity of names which tends to show that the defendant and the person previously convicted are the same person, is generally considered by the courts to be sufficient under the "reasonable doubt” standard of proof. Id, §§ 6-12, see Johnson v State, 96 Okla Crim 294; 253 P2d 179 (1953). Here, the prosecution sought to establish defendant’s identity by matching his vital statistics with those appearing in the court records for the previous convictions. This, combined with the fact that the same name appeared for the defendant as was used in the previous convictions, is sufficient, as a matter of law, on the element of identity. 11 ALR2d, supra, §§ 7-10.

Reversed and remanded for a new trial.

        Miller was decided May 1, 1979, and held that Chamblis would not preclude giving an instruction on a lesser included misdemeanor offense where the difference between the offense charged and the misdemeanor was the difference in market value of the alleged stolen property. In the instant case, defendant argues that since the difference between DUIL and DWI is only the degree of intoxication, People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975), the Miller exception to Chamblis should govern. Our reliance on Pipkin makes it unnecessary to rule on this issue.

       In fact, the reasons for applying the "reasonable doubt” standard of proof are more persuasive where, unlike under the habitual offender statute, the third conviction raises the substantive offense from a misdemeanor to a felony, with all the attendant consequences of a felony conviction.