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

text:
    PEOPLE v BURGESS
    Docket No. 78-907.
    Submitted December 11, 1979, at Detroit.
    Decided April 1, 1980.
    Leave to appeal applied for.
    Arthur L. Burgess was convicted of one count of first-degree murder and two counts of second-degree murder, Wayne Circuit Court, Joseph B. Sullivan, J. The defendant appeals, challenging 1) the trial court’s instructions to the jury regarding the malice element of first-degree murder, reasonable doubt and the credibility of witnesses, 2) the sufficiency of evidence presented on the element of premeditation, 3) the trial court’s characterization of a Witness as "unavailable” and the subsequent admission of the witness’s preliminary examination testimony, and 4) the admission of evidence of the defendant’s prior convictions for impeachment purposes. Held:

    1. The trial court’s instructions to the jury regarding malice, reasonable doubt and the credibility of witnesses conformed with the Michigan Criminal Jury Instructions. There was no error which warrants reversal with respect to the instructions given on reasonable doubt and credibility of witnesses. Technical error did occur in the trial court’s instruction on malice. The court failed to tell the jury that a first-degree murder conviction may be premised only upon a finding of an actual intent to kill. The court’s instruction on specific intent misstated the law by including language concerning "very high risk” of death which was applicable only in the context of instructions on the lesser included offense of second-degree murder. However, there was no manifest injustice. The evidence of actual intent to kill was overwhelming and the facts simply do not permit speculation that the jury may have predicated its verdict of guilty of first-degree murder upon a finding that the defendant created a very high degree of risk with knowledge of the probable Consequence of death.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 575.
    [2] 40 Am Jur 2d, Homicide §§ 42, 44-53, 500.
    [3,5] 40 Am Jur 2d, Homicide § 525.
    [4] 40 Am Jur 2d, Homicide §§ 45, 47, 52.
    [6] 40 Am Jur 2d, Homicide § 527.
    [7] 40 Am Jur 2d, Homicide § 52, 284, 439.
    [8] 40 Am Jur 2d, Homicide § 439.
    [9] 29 Am Jur 2d, Evidence §§ 739, 758.
    Admissibility of former testimony of nonparty witness, present in jurisdiction, who refuses to testify at subsequent trial without making claim of privilege. 92 ALR3d 1138.
    [10] 29 Am Jur 2d, Evidence § 327.

      2. Premeditation and deliberation need not be demonstrated by direct evidence. The requisite state of mind may be inferred from surrounding facts and circumstances. In the instant case, there was sufficient evidence on the element of premeditation, absent the defendant’s extrajudicial admissions, to sustain the first-degree murder conviction.
    3. The trial court’s characterization of a certain witness as unavailable was justified, as was the admission at trial of the witness’s preliminary examination testimony. The witness adamantly refused to testify and the court was not obliged to threaten the witness with contempt charges. Moreover, such a threat to the witness probably would have been an exercise in futility in light of the substantial prison sentence already being served by the witness.
    4. There was no error in the trial court’s ruling oh the admissibility of evidence of certain of the defendant’s prior convictions for impeachment purposes. The record shows that the trial court exercised its discretion on the record. The defendant concedes the admissibility of evidence of the 1977 armed robbery conviction. The trial court reasoned, with regard to a 1960 conviction for first-degree murder, that the serious nature of the offense outweighed its remoteness. It was clearly within the court’s discretionary power to rule in this manner since the 10-year back rule imposed by the new rulés of evidence was not in effect at the time of trial.
    Affirmed.
    1. Criminal Law — Instructions to Jury — Criminal Jury Instructions.
    The Michigan Supreme Court has strongly recommended use of the Michigan Criminal Jury Instructions whert they are applicable and accurately state the law.
    2. Homicide — Murder — First-Degree Murder — SeconId-Degree Murder — Criminal Jury Instructions.
    The Criminal Jury Instructions make no differentiation between first-degree murder and second-degree murder with regard to the element of malice (CJI 16:2:01).

      3. - Homicide — First-Degree Murder — Lesser Included Offenses — Second-Degree Murder — Instructions to Jury.
    The trial court in every first-degree murder case is obliged to instruct the jury on the lesser included offense of second-degree murder.
    4. Homicide — First-Degree Murder — Premeditation — Deliberation.
    Premeditation and deliberation are the crucial elements which distinguish first-degree murder from second-degree murder; however, viewing these two factors as the sole source of distinction is misleading because not all malicious, premeditated, deliberated actions resulting in death constitute murder in the first-degree.
    5. Homicide — First-Degree Murder — Elements of Crime — Specific Intent — Instructions to Jury.
    First-degree murder, other than felony murder, is a crime of specific intent requiring an intention to take life; for first-degree murder, specific intent instructions should be given; the jury must be told that a first-degree murder conviction may be premised only upon a finding of actual intent to kill.
    6. Homicide — First-Degree Murder — Instructions to Jury — Specific Intent — Appeal.
    A trial court’s technical error in its instructions to the jury on first-degree murder which misstated the law by inclusion of the "very high risk” language applicable only in the context of instructions on the lesser included offense of second-degree murder did not result in manifest injustice and reversal is not warranted where the evidence of the defendant’s actual intent to kill and the facts do not permit speculation that the jury may have predicated its verdict of guilty of first-degree murder upon a finding that the defendant created a very high degree of risk with knowledge of the probable cause of death rather than a finding of actual intent to take the victim’s life.
    7. Homicide — First-Degree Murder — Corpus Delicti — Evidence — Confessions — Premeditation — Deliberation.
    The corpus delicti of first-degree murder must be established by evidence independent of the confession of the accused; however, premeditation and deliberation need not, indeed cannot, be demonstrated by direct evidence.
    8. Homicide — Evidence — Premeditation and Deliberation — Inferences.
    Premeditation and deliberation may be inferred by the surrounding circumstances including prior relationships tending to show motive, a murder weapon acquired and positioned in preparation for homicide, evidence in the record supporting the inference that the killer transported the victim to a secluded location for an illicit or criminal purpose, circumstances surrounding the killing suggesting premeditation and deliberation, and organized conduct subsequent to the killing suggesting the existence of a plan.
    9. Witnesses — Criminal Law — Preliminary Examination Testimony — Unavailability of Witness — Statutes.
    A witness’s preliminary examination testimony was properly admitted into evidence where the witness’s adamant refusal to testify at trial justified the trial court’s characterization of the witness as an unavailable witness; the trial court was not obliged to threaten the witness with contempt charges (MCL 768.26; MSA 28.1049).
    10. Criminal Law — Evidence — Prior Convictions — Impeachment — Similar Offenses.
    Impeachment of a criminal defendant by evidence of prior convictions for similar offenses should be allowed only with great caution.

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

      Carl Ziemba, for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. P. Cavanagh and P. C. Elliott, JJ.

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

   M. J. Kelly, P.J.

Defendant was charged with three counts of first-degree murder contrary to MCL 750.316; MSA 28.548. Following a jury trial defendant was convicted of the first-degree murder of Leslie Kinsman and the second-degree murders of Victor Bossio and James Ketelaar. Defendant received a life sentence on each conviction and now brings this appeal as of right.

On appeal, defendant makes several claims of error concerning the trial court’s instructions to the jury regarding the malice element of first-degree murder, reasonable doubt, and the credibility of witnesses. In each instance, thé instructions given conformed with Michigan Criminal Jury Instructions. The Supreme Court has strongly recommended use of these instructions when they are applicable and accurately state the law. People v Thomas, 85 Mich App 618, 625; 272 NW2d 157 (1978), People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978). With respect to the instructions given on reasonable doubt and credibility of witnesses, we find no error which warrants reversal.

Defendant argues that the following instructions related to both first and second-degree murder incorrectly defined the element of malice:

"Forthly [sic], for murder, you must find that the Defendant consciously and knowingly performed the act, which caused death. The defendant must have, either intended to kill, that is, he must have done the act intending that it resulted in death, or in great and serious bodily injury, or he must have knowingly created a very high risk of death, with the knowledge that it probably would cause death.”

It is defendant’s position that the verdicts are invalid because they may have been predicated upon a finding that the defendant did not intend to kill, but that he created a very high risk of death with knowledge of its probable consequences. Defendant relies on People v Milton, 81 Mich App 515, 518; 265 NW2d 397 (1978), in which a panel of this Court stated:

"Mere conscious indifference to the likelihood of death as a result of a person’s intentional act is not enough; to commit first-degree murder, a person must act with the purpose of causing death. People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976).”

We note initially that the court’s instructions in the case at bar closely paralleled CJI 16:2:01. Wilful, deliberate and premeditated murder and the lesser included offense of second-degree murder are combined for instructional purposes with the admonition that a conviction for first-degree murder requires proof beyond a reasonable doubt of the additional elements of premeditation and deliberation. There is no differentiation made ip CJI 16:2:01 between the degrees of murder with regard to the element of malice:

"(2) There are two kinds of murder, first degree and second degree, and you will be instructed as to both. [Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that, the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.]

"(10) Fourth, for murder you must find that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.

"(11) The degree of risk for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person’s life, and the defendant must have been conscious of that risk.”

In the instant case the challenged "risk” language was properly included in the trial court’s charge to the jury; in every case of first-degree murder the court is obliged to instruct, sua sponte, on the lesser included offense of second-degree murder. People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975). Neither Milton nor Garcia purports to criticize or reject the above definition of malice as an element of second-degree murder. The single consideration here is whether the court must specify, when employing the "risk” language, that its application is limited to the lesser offense of second-degree murder. In order that the instructions accurately reflect the law of this jurisdiction, this point of clarification is vital. To avoid confusion, it is highly advisable to make this distinction during the general murder instructions as well as when instructing on the specific intent required for first-degree murder.

The ambiguity present in CJI and general confusion surrounding the issue of the requisite intent for first-degree murder stems, as the Garcia Court indicates, from the terminology found in second-degree murder cases which is inappropriate when transferred to the first-degree murder context. Premeditation and deliberation are the crucial elements which distinguish first-degree from second-degree murder. See, e.g., People v Vail, 393 Mich 460, 468; 227 NW2d 535 (1975), People v Morrin, 31 Mich App 301, 326; 187 NW2d 434 (1971). Viewing the factors as the sole source of distinction, however, is misleading,; not all malicious, premeditated, deliberated actions resulting in death constitute murder in the first degree. Perkins offers the example of an individual who wishes to destroy certain property by explosion. Conscious of the very high degree of risk that someone will be killed, and after taking all possible precautions short of abandoning his plan, he proceeds to cause the explosion which results in a person’s death. His premeditated, deliberated act, executed with reckless disregard of its probable consequences, constitutes murder. Perkins, Criminal Law (2d ed), p 36. See also LaFave & Scott, Criminal Law, § 70, p 543. Absent is the actual intent to kill which would elevate the crime to first-degree murder.

Early Michigan Supreme Court cases hold that legislative refinement of the common-law definition of murder, dividing the crime into degrees of seriousness, was accomplished for the purpose of reducing the severity of punishment imposed upon those guilty of "wanton act” murder as opposed to first-degree murder. The Court made its position clear in People v Potter, 5 Mich 1, 7 (1858):

"Now, at the common law, if a mortal blow was malicious, although not given with intent to kill, or if death ensued from an act accompanying an unlawful collateral act, or under circumstances which showed general malice, such as a reckless disregard of the safety or lives of others, the killing would be murder, and would be punishable in the same manner as though perpetrated with the deliberate design of taking the life of the victim. It was to mitigate the punishment for this class of murders, and to leave it to the discretion of the court, to a considerable extent, that our statute was passed; while for murder perpetrated willfully, or in the perpetration, or attempt to perpetrate, either of the four felonies mentioned, the punishment is inflexibly fixed by the law. Hence, in defining the first degree of murder, the statute specifies two instances in which willfulness, deliberation, and premeditation are most strongly indicated, viz., the use of poison, and lying in wait; and then provides that all other willful, deliberate, and premeditated killing, should also be murder in the same degree. The more atrocious crime is separated from the general class of murder; and, it would seem to follow that to establish murder in the first degree, more proof is necessary than of the single fact of malicious homicide, and that it must be shown that the killing was willful, and with design to take the life of the victim.”

See also, People v Scott, 6 Mich 287 (1859), People v Doe, 1 Mich 451, 457 (1850). The Potter Court continued:

"Now, malice aforethought is either express or implied, and there can be no case of murder in the first degree, except when committed in the perpetration, or attempt to perpetrate, arson, rape, robbery, burglary, or when there does not exist express malice; while, in case of murder in the second degree, the malice is generally, if not universally, implied. ” 5 Mich 1, 9.

The term "express malice” has generally been interpreted as an intent to kill, Perkins, supra, at 49; malice is "implied” when "there is no showing of actual intent to kill, but death is caused by acts which the law regards as manifesting such an abandoned state of mind as to be equivalent to a purpose to murder”. 40 CJS, Homicide, § 16, p 863. The Supreme Court, in People v Garcia, supra, has terminated all doubt that first-degree murder requires an actual intent to kill:

"This classification of murder by degree was first enacted by the State of Pennsylvania in 1794. In 1838, motivated by a concern that the more culpable forms of murder should be punished more severely, this state adopted a similar statutory scheme. People v Potter, 5 Mich 1, 6 (1858); People v Morrin, 31 Mich App 301, 325; 187 NW2d 434 (1971).

"Courts in Pennsylvania have consistently held that their first-degree murder statute requires a specific intent to kill. Commonwealth v Murray, 2 Ashm (Pa) 41 (Phila O & T, 1834); Commonwealth v Fostar, 455 Pa 216; 317 A2d 188 (1974).

"In hopes of ending the confusion and on the authority in Potter and Scott, we hold that nonfelony first-degree murder is a specific intent crime requiring an intention to take life.

"Our holding is supported by the language of the first-degree murder statute.

'All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing * * * shall be murder of the first degree’. MCLA 750.316; MSA 28.548.

"A reading of the statute mandates the construction that 'wilful * * * killing’ means the intent to accomplish the result of death.” 398 Mich 250, 258-259.

In accord with the Garcia decision, CJI includes a note advising that, for first-degree murder, specific intent instructions also be given. At this point the trial court must crystallize the first/second-degree murder intent distinction for the jury. The jury must be told that a first-degree murder conviction may be premised only upon a finding of actual intent to kill. It was at this point that technical error occurred in the case at bar. The court’s specific intent instructions misstated the law by inclusion of the "very high risk” language applicable only in the context of instructions on the lesser included offense of second-degree murder.

Although error is present, reversal is not warranted in the absence of manifest injustice. People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977). The evidence of actual intent to kill was overwhelming. The facts simply do not permit speculation that the jury may have predicated its verdict upon a finding that defendant created a very high degree of risk with knowledge of the probable consequence of death. Furthermore, the error here is not of the same magnitude as that which occurred in Milton. The Milton trial court not only failed to clarify the definition of malice as applicable to first-degree murder but totally eliminated premeditation and deliberation instructions. The trial court in the instant case carefully explained these elements and instructed the jury at this point to consider whether the evidence demonstrated a preconceived design to "take the victim’s life”. We do not suggest that in all circumstances the above statement would be sufficient to differentiate the degrees of murder without, in addition, correct specific intent instructions. However, the whole record in this case convinces us that the established error does not mandate reversal.

Defendant next urges reversal of his first-degree murder conviction, challenging the sufficiency of the evidence presented on the element of premeditation. Defendant is correct in his assertion that the corpus delicti of first-degree murder must be established by evidence independent of the confession of the accused, People v Allen, 390 Mich 383; 212 NW2d 21 (1973). But premeditation and deliberation need not, indeed cannot, be demonstrated by direct evidence. The requisite state of mind may be inferred from surrounding facts and circumstances, including; a prior relationship to the parties indicating a motive, the use of a weapon acquired in preparation for the homicide, circumstances and events surrounding the killing, and the defendant’s subsequent conduct suggestive of a scheme or plan. People v Germain, 91 Mich App 154, 165; 284 NW2d 260 (1979). See also People v Hoffmeister, 394 Mich 155; 229 NW2d 305 (1975).

In the case at bar, trial testimony revealed defendant’s animus for the decedent Leslie Kinsman both as a sexual rival and as a competitor in the narcotics trade. This discordant prior relationship provided the motive for the killing. Circumstances and events preceding the killing, including defendant’s entry into the landlord’s residence, his direction that the landlord, Mr. Bossio, lure Kinsman downstairs on the premise that he needed to discuss something, and the fact that the victim was bound with electrical wire before being stabbed and shot, are suggestive of a scheme or plan. Therefore, there was sufficient evidence on the element of premeditation, absent defendant’s extrajudicial admissions, to sustain the first-degree murder conviction.

We also find that witness Scott Croydon’s adamant refusal to testify at trial justified the court’s characterization of Croydon as an "unavailable” witness and the admission of his preliminary examination testimony. MCL 768.26; MSA 28.1049, People v Walton, 76 Mich App 1; 255 NW2d 640 (1977), People v Pickett, 339 Mich 294; 63 NW2d 681 (1954). The trial court was not obliged to threaten the witness with contempt charges; moreover, in light of the substantial prison sentence already being served by this witness, such a warning would probably have been an exercise in futility.

Finally, we find no error in the trial court’s ruling on the admissibility of evidence of certain prior convictions for impeachment purposes. Defendant’s brief concedes the admissibility of evidence of the 1977 armed robbery conviction. Contrary to defendant’s position, an examination of the record shows that the trial court exercised its discretion on the record. With specific reference to the 1960 conviction for first-degree murder, the trial court reasoned that the serious nature of the offense outweighed the remoteness argument. It was clearly within the court’s discretionary power to rule in this manner since the 10-year-back rule imposed by the new rules of evidence was not in effect. Though evidence of similar crimes should be admitted with great caution, People v Green, 86 Mich App 142; 272 NW2d 216 (1978), People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), we cannot say that the trial court’s willingness to admit evidence of prior murder convictions constitutes an abuse of discretion. We find no affirmative misapplication of the standards enunciated in People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), and People v Baldwin, supra, which warrants reversal, nor will we presume error from an otherwise silent record. Crawford, supra, Baldwin, supra, People v Roberson, 90 Mich App 196; 282 NW2d 280 (1979).

Affirmed.


source: Caselaw Access Project

author: Bronson, P.J. D. C. Riley, J.,

license: Public Domain

text:
    PEOPLE v WHITTY
    Docket No. 78-1732.
    Submitted November 15, 1979, at Detroit.
    Decided April 1, 1980.
    Defendant, Roosevelt Whitty, was convicted of first-degree murder in the Wayne Circuit Court, Myron H. Wahls, J. Defendant was the manager of a party store owned by the woman with whom he lived. On the night of the incident giving rise to the charge, a man identified as Gregory Smith entered the store and asked for the defendant. The clerk informed Smith that defendant was busy but that she would get him in a minute. After subsequent requests to see defendant were answered in the same manner, Smith pulled a gun and robbed the cash register, threatening to kill defendant and threatening to kill the clerk if she told anyone who it was that had robbed the store. Defendant was in the back of the store and did not witness the robbery. The police came. The clerk knew Smith, and through her identification defendant also recognized that it was Smith who had robbed the store. The two police officers who took the report both testified that defendant told them he would kill Smith if he found him before the police did. Defendant set out with some friends to find Smith, found him at the Granwood Hotel and admitted shooting him. Testimony differed as to the events surrounding the shooting. Debra Bishop testified that she heard loud noises on the street and looked down from her third-floor window of the Granwood. She observed defendant knocking Smith against a window while holding a rifle. She saw Smith fall, get up and run down an alley. She said defendant pursued Smith into the alley and shot him. Defendant and his companion testified that they found Smith, who came into the street and spoke with defendant, that defendant told Smith he was taking him to the police, that Smith reached for his waist in what defendant and his companion took to be an effort to pull a gun and that defendant shot him. Defendant appeals, alleging numerous errors. Held:

      References for Points in Headnotes
    [I] 5 Am Jur 2d, Arrest §§ 34, 36, 70, 71.
    [2, 4] Homicide: private person’s authority, in making arrest for felony, to shoot or kill alleged felon. 32 ALR3d 1078.
    [3, 12] 5 Am Jur 2d, Arrest § 80 et seq.

    [5] 5 Am Jur 2d, Arrest § 85.
    [6] 81 Am Jur 2d, Witnesses § 569 et seq.

    [7] 81 Am Jur 2d, Witnesses §§ 587, 589.
    Impeachment of witness by evidence or inquiry as to arrest, accusation, or prosecution. 20 ALR2d 1421.
    [8] 81 Am Jur 2d, Witnesses §§ 563, 668.
    [9] 29 Am Jur 2d, Evidence §§ 644, 645.
    [10] 29 Am Jur 2d, Evidence § 885.
    Evidence: admissibility of newspaper article as evidence of the truth of the facts stated therein. 55 ALR3d 663.
    [II] 29 Am Jur 2d, Evidence § 180.

      1. A statute allows a private person to arrest another who has actually committed a felony, even though not in the arrestor’s presence. The person making the arrest has a duty to inform the person to be arrested of the intention to arrest and the cause of the arrest, where possible. The use of deadly force must be necessary either to meet deadly force or to prevent escape before it may justifiably be used. The trial court erred in instructing the jury when it limited the justifiable use of deadly force to circumstances where the defendant was confronted with deadly force. It also erred in instructing the jury that deadly force was not justified in attempting a citizen’s arrest unless defendant was in fresh pursuit of Smith from the scene of the crime, because it was undisputed that defendant did not immediately set out after Smith and the jury could well have concluded that only a nonforceful arrest of Smith was justified.
    2. Evidence of prior misdemeanor convictions may not be used for purposes of general impeachment, but it may be used to show the interest a witness may have in testifying. A criminal defendant is permitted to use evidence of pending charges against a prosecution witness to bring out the witness’s bias or interest, if any, affecting the outcome of the case. It was error to prohibit defendant from questioning Debra Bishop concerning misdemeanor charges pending against her.
    3. The previous life and character of a witness may be inquired into to elicit facts which may aid the jury in determining what credence they will attach to his testimony. It is the trial court’s duty to keep such character examination within reasonable bounds. The trial court erred in allowing the prosecutor to cross-examine defendant concerning: his participation in the management of the store despite a letter from the Liquor Control Commission prohibiting such participation; allegations that defendant was receiving welfare benefits when not entitled to them; allegations that the woman with whom he lived was receiving Aid to Dependent Children; questions involving the legality of his carrying of a loaded shotgun; and questions concerning illegal drinking in the rear of the store.
    4. Silence in the face of accusations of criminal conduct may not be used as evidence, but an exception to this rule exists in cases where a defendant does make a statement and the questions concerning the defendant’s silence relate to omissions from the statement.
    5. A newspaper article purporting to contain statements of the defendant which differed from his trial testimony was improperly used by the prosecution where the defendant did not recall making the statement and where the reporter did not testify. Use of the statement on retrial, under the same circumstances, would be improper.
    6. Prosecutorial argument to the jury suggesting that defendant failed to seek out certain witnesses because he knew that their testimony would be unfavorable to his position was improper. A defendant is under no duty to bring in any witnesses.
    Reversed and remanded.
    D. C. Riley, J., concurred, but argues for judicial adoption of a rule of law to the effect that deadly force exercised in attempting a citizen’s arrest should be justifiable only where necessary to prevent the flight of an escaping felon from the scene of the crime and is not justifiable once the felon successfully leaves the scene of the crime and the identity of the felon is known to the police.
    Opinion of the Court
    1. Arrest — Citizen’s Arrest — Statutes.
    A statute allows a private person to arrest another who has actually committed a felony, even though not in the arrestor’s presence, and the person making the arrest has a duty to inform the person to be arrested of the intention to arrest and the cause of the arrest, where possible (MCL 764.16, 764.20; MSA 28.875, 28.879).
    2. Homicide — Arrest — Citizen’s Arrest — Deadly Force — Instructions to Jury.
    A trial court, in a trial for homicide where the defense was that the victim died from the lawful exercise of deadly force in making a citizen’s arrest and where there was testimony to support an instruction regarding the use of deadly force both in self-defense and as necessary to prevent flight, committed reversible error in instructing the jury when it limited the justifiable use of deadly force to circumstances where the defendant was confronted with deadly force.

      3. Arrest — Force — Deadly Force.
    The use of deadly force must be necessary either to meet deadly force or to prevent a felon from fleeing from an attempted arrest before it may justifiably be used.
    4. Homicide — Arrest — Citizen’s Arrest — Deadly Force — Instructions to Jury.
    It was error for the trial court in a trial for the homicide of a felon to instruct the jury that deadly force was not justified in attempting a citizen’s arrest unless defendant was in fresh pursuit of the felon from the scene of the crime where, because it was undisputed that defendant did not immediately set out after the felon, the jury could have concluded that only a nonforceful arrest of the felon was justified.
    5. Arrest — Citizen’s Arrest — Deadly Force.
    The use of deadly force in making a citizen’s arrest is not justified if the person to be arrested is not in fact a felon.
    6. Witnesses — Impeachment — Prior Misdemeanor Convictions.
    Evidence of prior misdemeanor convictions may not be used for purposes of general impeachment, but it may be used to show the interest a witness may have in testifying.
    7. Witnesses — Criminal Law — Pending Charges — Admissibility — Impeachment.
    A criminal defendant is permitted to use evidence of pending charges against a prosecution witness to bring out the witness’s bias or interest, if any, affecting the outcome of the case.
    8. Criminal Law — Witnesses — Credibility — Impeachment — Evidence — Character.
    The previous life and character of a witness may be inquired into to elicit facts which may aid the jury in determining what credence they will attach to his testimony; however, it is the trial court’s duty to keep such character examination within reasonable bounds.
    9. Criminal Law — Constitutional Law — Evidence — Right to Silence.
    Silence in the face of accusations of criminal conduct may not be used as evidence, but an exception to this rule exists in cases where a defendant does make a statement and the questions concerning the defendant’s silence relate to omissions from the statement.

      10. Criminal Law — Evidence — Newspaper Articles — Statements of Defendant.
    A newspaper article purporting to contain statements of a defendant differing from his trial testimony may not be used at trial by the prosecutor where the defendant does not recall making the statement and where the reporter does not testify.
    11. Criminal Law — Prosecutorial Comment — Failure to Secure Witnesses.
    Prosecutorial argument to the jury suggesting that a defendant failed to seek out certain witnesses because he knew that their testimony would be unfavorable to his position was improper; a defendant is under no duty to bring in any witnesses.
    Concurrence by D. C. Riley, J.
    12. Arrest — Citizen’s Arrest — Deadly Force.

      Deadly force exercised in attempting a citizen’s arrest should be justiñable only where necessary to prevent the Sight of an escaping felon from the scene of the crime and is not justiñable once the felon successfully leaves the scene of the crime and the identity of the felon is known to the police.

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

      Terence R. Flanagan and Karla Kendall, Assistant State Appellate Defenders, for defendant on appeal.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Bronson, P.J.

Defendant was convicted after a jury trial of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to the mandatory term of life in prison. His motion for a new trial was denied, and he now appeals as of right.

I

Defendant managed the W and W Party Store in Highland Park, which was owned by the woman with whom he lived. On September 24, 1974, at approximately 11:30 p.m., a man identified as Gregory Smith entered the store and asked for the defendant. The clerk informed Smith that defendant was busy but that she would get him in a minute. After subsequent requests to see defendant were answered in the same manner, Smith pulled a gun and robbed the cash register. As he left, he threatened to kill the defendant and also threatened to kill the clerk if she told anyone who it was that had robbed the store. Defendant was in the back of the store at the time and did not witness the robbery.

The police were called and shortly arrived at the store. The clerk knew Smith and through her identification the defendant also realized that it was Smith who had robbed the store. The two police officers who took the report both testified that defendant told them he would kill Smith if he found him before the police did. Defendant set out with some friends to find Smith. In a statement he gave to the police, defendant stated he was seeking Smith to find out why Smith wanted to kill him. He eventually found Smith at the Granwood Hotel on Woodward Avenue in Highland Park and admitted to shooting him at about 2 a.m.

Testimony differed as to the events surrounding the actual shooting. Debra Bishop, a resident of the Granwood, testified for the prosecution. Her testimony was that she looked onto the street from her third-floor window after hearing loud noises on the street. She observed defendant knocking Smith against the windows of the Western Union office beneath her window while holding a rifle. After the men were together for about five minutes, she observed Smith fall, get up, run down Woodward, and turn into an alley between the hotel and a Red Barn restaurant. She further testified that defendant pursued Smith into the alley and then shot him.

The accounts given by the defendant and by his companion Cornelius Richards differed from that given by Debra Bishop. The defendant testified that he found Smith at the hotel, and that, after Smith came into the street, they spoke for about six minutes. The defendant confronted Smith with the robbery and with the threats made against defendant and the clerk, and the men moved toward the alley as they argued. The defendant testified that, when he told Smith he was going to take him to the police, Smith called defendant a "mother fucker” and reached toward his waist for what defendant believed to be a gun. Richards, who had been watching all this time, yelled, "Look out, he has a gun”. Defendant then shot Smith, who stumbled backwards into the alley. Defendant denied that he planned to kill Smith, stating that he intended only to bring him into custody. The testimony of Cornelius Richards was similar to that given by defendant.

II

Defendant did not deny killing Smith but defended on the basis that the killing was justified either as a proper use of deadly force in making an arrest or as necessary in self-defense. On appeal, he attacks the trial court’s instructions on the use of deadly force in effecting a valid arrest.

Under the common law, a private citizen was justified in arresting a person whom he reasonably suspected had committed a felony, if in fact a felony had been committed. People v McLean, 68 Mich 480, 485; 36 NW 231 (1888), People v Panknin, 4 Mich App 19, 27; 143 NW2d 806 (1966); The question is now covered by a statute which allows a private person to arrest another who has actually committed a felony, even though not in the arrestor’s presence. The person making the arrest has the duty of informing the person to be arrested of the intention to arrest and the cause of the arrest, with exceptions made for circumstances when it would be impossible to do so.

There was testimony in the instant case to support defendant’s claim that his attempted arrest of Smith was valid. The next question is whether a private person may lawfully use deadly force in effectuating an otherwise valid arrest of a felon. This question is not controlled by statute in Michigan, so we must look to the common law.

Under the common law, the use of deadly force in making an arrest can be divided into two categories; the use of deadly force when the person making the arrest is met with force from the person who is to be arrested, and the use of deadly force when necessary to prevent the person who is to be arrested from fleeing. The first is generally analyzed under principles of self-defense, although there may be differences such as forgoing the necessity of retreat. See State v Dunning, 177 NC 559; 98 SE 530 (1919) (police officer), People v Ligouri, 284 NY 309; 31 NE2d 37 (1940) (private citizen). The second is more problematic, and has sparked the most controversy. Pearson, The Right to Kill in Making Arrests, 28 Mich L Rev 957 (1930). It also appears that the common law imposed a further distinction between police officers and private persons when the matter escalated beyond the issue of making the arrest to the question of when deadly force could be used to make the arrest. While a private citizen could arrest a person who was suspected of committing a felony that in fact occurred, deadly force was justified only if the felony actually occurred and the person against whom the force was used was in fact the person who committed the felony. A police officer was justified in acting on the basis of reasonable belief at both levels of inquiry. LaFave & Scott, Criminal Law, § 56, pp 403-405, Anno: Private person’s authority in making arrest for felony, to shoot or kill alleged felon, 32 ALR3d 1078, 1083.

In the instant case, there was testimony to support instructions regarding the use of deadly force both in self-defense and as necessary to prevent flight. The trial court’s instructions regarding the authority of a private citizen to make an arrest and regarding the killing of another in self-defense appear to us as essentially correct. We find, however, that in other regards the instructions given by the trial court were either in error or misleading.

For example, the trial court instructed:

"A private person, acting on his own account, is justified in using physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest or to prevent the escape from custody of an arrested person who he reasonably believes has committed a felony and who in fact has committed that felony. But he is justifíed in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use of or imminent use of deadly physical force.” (Emphasis added.)

This instruction ignores the possibility of the use of deadly force where necessary to stop a felon from fleeing. 3 Gillespie, Michigan Criminal Law and Procedure, § 1691, pp 732-733, People v Gonsler, 251 Mich 443; 232 NW 365 (1930). By limiting the justifiable use of deadly force to circumstances where defendant was confronted with deadly force, the trial court erred reversibly, and this cause must be remanded for a new trial.

The trial court also gave the following instruction:

"If you find that the Defendant, after evaluating all of the evidence, if you ñnd that the Defendant was in fresh pursuit of an armed felon ñeeing from the scene of a crime of robbery armed, you may conclude that the Defendant reasonably believed it was necessary to arm himself in order to effect a lawful arrest.” (Emphasis added.)

There is no requirement that a person be in "fresh pursuit” of a felon from the scene of the crime before the use of deadly force is justified. The purpose of permitting force is to enable the arrestor to apprehend the arrestee, so that any question of "fresh pursuit” must be examined in terms of "fresh pursuit” from the attempted arrest, not from the scene of the crime. It is true that before deadly force may be used to stop a felon from fleeing from an attempted arrest, the use of such force must be "necessary”. People v Gonsler, supra. For example, if an arrest is attempted but the felon flees the attempt, it would probably not be "necessary” for the arrestor who later finds the felon again to shoot him without notice. In this regard, it is arguable that the arrestor must be in "fresh pursuit” of a felon fleeing from an attempted arrest. The effect of the trial court’s instruction in the instant case, however, was to inform the jury that deadly force was not justified unless defendant was in fresh pursuit of Smith from the scene of the crime. Because it was undisputed that defendant did not immediately set out after Smith, the jury could well have concluded that only a nonforceful arrest was justified. As the charge was materially misleading, reversal is required. People v Martin, 392 Mich 553, 562; 221 NW2d 336 (1974).

It is apparent that the trial court instructed as it did out of a belief that the common law regarding use of deadly force against a felon fleeing a citizen’s arrest is outmoded. We appreciate the trial court’s concern. The common law rule developed in an era when the large majority of felonies were punishable by death, so that the killing of a fleeing felon tended only to hasten the ultimate result. LaFave & Scott, Criminal Law, § 56, p 405, Pearson, The Right to Kill in Making Arrests, 28 Mich L Rev 957, 974-975 (1930), Commonwealth v Chermansky, 430 Pa 170; 242 A2d 237 (1968). This rationale is, of course, no longer applicable. It is undoubtedly considerations of this sort that have led to changes in the law regarding the use of deadly force by private citizens. Massachusetts, for example, has adopted § 3.07 of the Model Penal Code, which prohibits the use of deadly force by private citizens unless they are assisting a person believed to be authorized to act as a peace officer. Commonwealth v Klein, 372 Mass 823; 363 NE2d 1313 (1977). Pennsylvania limits the use of deadly force to violent felonies, and enumerates some of the felonies that meet this standard. Commonwealth v Chermansky, supra.

Despite the fact that some jurisdictions have cut back on the justifiable use of deadly force, many others have maintained the common law rule, and there is good reason for doing so. The fact remains that the police cannot be everywhere they are needed at once. The occasion may arise where the private citizen is confronted with the choice of attempting a citizen’s arrest or letting the felon escape. In order to make the citizen’s arrest, it is regrettable, but sometimes necessary, to make use of deadly force. The common law in Michigan recognizes this but still stops far short of granting the private citizen a license to hunt down and kill those suspected of committing a felony. The use of deadly force is not justified if the person to be arrested is not in fact a felon. Additionally, and most importantly, the use of deadly force must be necessary either to meet deadly force or to prevent the felon’s escape. Elimination or severe curtailment of the citizen’s justifiable use of deadly force would ignore the practical limitations on the ability of law enforcement authorities to arrest every felon. The present rule in Michigan, on the other hand, recognizes that the citizen’s use of deadly force is sometimes necessary, while at the same time it reasonably limits the justifiable use of such force. It should be clear that we are expressing no opinion as to whether defendant’s conduct was justifiable under the present rule. We hold only that he was entitled to have his conduct measured by the jury under the rules existing at the time of his acts. Commonwealth v Klein, supra, 832-834. See Marks v United States, 430 US 188; 97 S Ct 990; 51 L Ed 2d 260 (1977), Bouie v Columbia, 378 US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964).

Because retrial may be had in this case, we believe it appropriate to briefly address some of the other errors raised on appeal.

Ill

Defendant also contends the trial court erred in refusing to allow cross-examination of the prosecution’s chief witness, Debra Bishop, concerning her prior misdemeanor convictions and pending charges.

A. Prior Misdemeanor Convictions

The Supreme Court held in People v Renno, 392 Mich 45, 55; 219 NW2d 422 (1974), that evidence of misdemeanor convictions could not be used for the purposes of general impeachment. See, also, MRE 609(a)(1). While evidence of prior misdemeanor convictions may be used to show the interest a witness may have in testifying, see People v Crutchfield, 62 Mich App 149, 154-155; 233 NW2d 507 (1975), lv den 395 Mich 758 (1975), we do not perceive in what manner Debra Bishop’s prior misdemeanor convictions related to her interest in testifying, and, accordingly, conclude that their exclusion was proper.

B. Pending Charges

Generally, evidence of arrests not resulting in convictions are inadmissible to impeach the general credibility of a witness. People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973). Unlike the situation involving prior misdemeanor convictions, however, the fact that a prosecution witness has charges pending is particularly relevant to the issue of the witness’s interest in testifying, and it has been held that evidence of arrests not resulting in conviction are admissible for this purpose. People v Torrez, 90 Mich App 120, 124-125; 282 NW2d 252 (1979), People v Harrington, 76 Mich App 118; 256 NW2d 52 (1977), hr den 401 Mich 852 (1977), People v Sesson, 45 Mich App 288; 206 NW2d 495 (1973), lv den 389 Mich 801 (1973). The defendant does not have to first demonstrate that some sort of deal exists before impeaching the witness in this manner; the cross-examination is proper in an attempt to elicit an interest that may exist. People v Torrez, supra, 124.

Accordingly, the trial court erred in limiting cross-examination in this regard and if defendant is retried the questions should be allowed. Evidence concerning the witness’s status as a prostitute or drug addict will, in the event of retrial, be governed by MRE 608(b).

IV

Defendant next argues that the trial court erred in allowing the prosecutor to cross-examine him concerning specific allegations of misconduct unrelated to the charged offense. Specifically, defendant alleges the prosecution’s cross-examination improperly inquired into the following areas:

(1) his participation in the management of the store despite a letter from the Liquor Control Commission prohibiting such participation;

(2) allegations that defendant was receiving welfare benefits when not entitled to them;

(3) allegations that the woman with whom he lived was receiving Aid to Dependent Children;

(4) questions involving the legality of his carrying of a loaded shotgun;

(5) questions concerning illegal drinking in the rear of the store.

These questions and insinuations were highly prejudicial, and at best of little relevance to his credibility or to his guilt or innocence of the charged offense. Nor could the questions be said to have been necessary to contradict statements made by the defendant on direct examination. Defendant had not testified that he was living off the profits of the store but had instead claimed that his chief means of support was supplemental security insurance benefits related to a medical disability. Similarly, he never claimed that the woman with whom he lived did not receive welfare benefits. That carrying a loaded shotgun in a car is illegal does not contradict the defendant’s statement that he did not carry a handgun instead because it would have been illegal to do so. While there is a question as to whether defendant ever claimed to have legal ownership of the party store, his legal status in the store does not alter his contentions that he was associated with its control and was upset by the robbery. The use of unproven insinuations of welfare fraud was also improper.

It is the duty of the trial court to keep character examination within reasonable bounds. In the instant case those bounds were exceeded by the introduction of irrelevant and unproven insinuations. See People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977). The examination was particularly prejudicial when compared with the narrowly limited cross-examination of Debra Bishop.

Defendant also attacks the use of extrinsic evidence to impeach his responses on some of these collateral points, specifically the use of a letter from the Liquor Control Commission and a medical assistance card. This was also error. People v Bennett, 393 Mich 445, 449-450; 224 NW2d 840 (1975).

V

Defendant also alleges his right to post-arrest silence was violated when the prosecution questioned one of the arresting officers concerning the fact that when arrested defendant made no mention of having attempted a citizen’s arrest. It was argued that this silence was inconsistent with defendant’s defense at trial.

In order to protect the right of post-arrest silence, silence in the face of an accusation of criminal conduct cannot be used as evidence. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). An exception to this rule exists in cases where defendant does make a statement and the questions concerning defendant’s silence relate to omissions from the statement. People v Richendollar, 85 Mich App 74, 82; 270 NW2d 530 (1978), lv den 405 Mich 820 (1979), People v Baldwin, 74 Mich App 700, 709-712; 254 NW2d 619 (1977), rev’d on other grounds, 405 Mich 550; 275 NW2d 253 (1979). This was the situation in the instant case, and the questions were accordingly proper.

VI

Defendant also objects to the prosecution’s attempted use of a newspaper article apparently containing a statement made by the defendant to a reporter that differed somewhat from the defendant’s testimony at trial. Defendant did not recall making the statement, and the reporter did not testify. Although the statement was not admitted into evidence, its substance was placed on the record through the prosecution’s questions. Use of this statement on retrial, under the same circumstances, would be improper. People v Terry, 80 Mich App 299, 304-306; 263 NW2d 352 (1977).

VII

We lastly address ourselves to one aspect of the prosecution’s closing argument attacked by defendant. Defendant had at one point served prosecution subpoenas on two witnesses at the request of the prosecutor. Defense counsel brought this fact out on direct examination of his client in an apparent attempt to show the extent of defendant’s cooperation with the authorities. On cross-examination, the prosecution was allowed to question defendant concerning his failure to locate other witnesses, specifically, two men who were near the scene of the shooting but unknown to defendant. In the argument to the jury, the prosecutor again raised the issue and suggested that defendant did not bring in the two men because he knew their testimony would be unfavorable to his position.

We find this argument improper. The defendant is under absolutely no duty to seek out and produce witnesses for the prosecution. This is not changed by the fact that defendant volunteered to locate and serve subpoenas on two particular witnesses. In so doing, defendant cannot be said to have assumed a general responsibility for hunting down the prosecution’s witnesses. The prosecutor’s remarks suggested to the jury that defendant’s failure to seek out certain witnesses meant he was hiding something. Because defendant was under no duty to bring in any witnesses he cannot be faulted for not doing so, and the inferences suggested by the prosecutor were improper.

Reversed and remanded.

E. A. Quinnell, J., concurred.

D. C. Riley, J.,

(concurring). I concur substantially with the excellent opinion written by Judge Bronson. However, I write separately to acknowledge what I perceive to be the trial court’s reluctance to endorse uncontrolled vigilantism. While I am persuaded that "fresh pursuit” is not required under Michigan law, I am equally persuaded that "delayed pursuit” is a mischaracterization of the facts here. Further, I question whether "fresh pursuit” or "delayed pursuit” is even the issue where, as here, the felon is known to the complainant, police and to defendant (who has told police he will kill felon if he finds him before arrest). The facts here are simply not supportive of a shooting "justified” to prevent a fleeing felon’s escape.

I urge that we consider judicial adoption of limits upon a citizen’s authority to use deadly force in situations such as this, i.e., deadly force is justifiable only where necessary to prevent the flight of an escaping felon and that once the felon successfully leaves the scene of the crime there is no longer the compelling (justifiable) need for a citizen to hunt the felon down, prepared to use deadly force.

I stress again, this felon’s identity was known to the police and they were the proper instrumentality to effect the arrest. This is not a case, for example, where an escaped felon, known only to the victim on sight, is seen on the street and (delayed) pursuit ensues.

       Approximately six weeks after the trial, Debra Bishop approached the woman with whom defendant lived and stated that her testimony at trial had not been truthful. She was persuaded to take this information to defendant’s trial attorney, and did so at counsel’s home on the evening of October 28, 1975. A tape recording was made of this conversation, and was later transcribed. Her statement conflicts in several material aspects from the testimony given at trial. She denied actually seeing defendant strike Smith on the street, or seeing Smith run into the alley. She also claimed that she heard defendant say words to the effect of, "Come with me — police”. She stated that she lied at trial because she didn’t want to go to jail, and because she was told by the police that things would be "all right” if she cooperated.
      Bishop’s statement was presented to the trial court in defendant’s motion for a new trial. We note that the trial court may well have discounted the statement as motivated by sympathy for defendant, or animosity toward the police.

       MCL 764.16; MSA 28.875:
      "A private person may make an arrest —
      "(a) For a felony committed in his presence;
      "(b) When the person to be arrested has committed a felony although not in his presence;
      "(c) When summoned by any peace officer to assist said officer in making an arrest.”

       MCL 764.20; MSA 28.879:
      "A private person, before making an arrest, shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, except when he is then engaged in the commission of a criminal offense, or if he flees or forcibly resists arrest before the person making the arrest has opportunity so to inform him.”

       Under the statute an arrest is justified only if the person to be arrested has actually committed a felony. See note 2, supra. As such, there is presently no further distinction between officers and private persons regarding the use of deadly force in making a valid arrest.

       The Court in Gonsler approved the following instruction:
      "Both officers and private persons seeking to prevent a felon’s escape must exercise reasonable care to prevent the escape of the felon without doing personal violence, and it is only where killing him is necessary to prevent this escape, that the killing is justified, and it is for you as jurors to determine from the evidence in the case the existence or absence of the necessity. If a killing is not justifiable, it is either murder or manslaughter.” 251 Mich 443, 446-447.

       The trial court had previously instructed:
      "Homicide is justifiable and not unlawful when necessarily committed in attempting by lawful ways and means to apprehend any person who has actually committed a felony.”
      This comes much closer to correctly stating the law. Given the fact that this statement followed immediately after the trial court’s "fresh pursuit” instruction (discussed in text, infra) and was presumably modified by it, and given also that the trial court’s later instruction totally negated the justifiable use of deadly force except in self-defense, we cannot say that the instructions, "taken as a whole”, adequately apprised the jury of the applicable law. People v Burkard, 374 Mich 430, 438; 132 NW2d 106 (1965), People v Beard, 78 Mich App 636, 639-640; 261 NW2d 27 (1977), lv den 402 Mich 930 (1978).

       During the hearing on defendant’s motion for a new trial, the following discussion took place between defense counsel and the court:
      "THE COURT: * * * [Tjhose cases, with rare exception, with rare exception were very old cases which I thought were — that lost their legal significance in 19 — whenever we tried this case. By and large many of those cases were nineteenth century cases. They were cases which were handed down when there was a lack of any reasonable ability to communicate with law enforcement officers and it was necessary because of the circumstances, that people might under the circumstances, under the law, be justified in arresting and killing felons. But that annotation, none of the cases in that annotation satisfied me that they were applicable in present day circumstances, particularly in view of the fact that the alternatives that are now available to people who need police service were not available when many of these cases were decided.
      "A telephone, for instance, the mobility of the police department generally, the fact that this homicide took place within a block of the police headquarters. Just as a general proposition to suggest that any citizen, private citizen has a right to kill an escaping felon was a proposition that I thought was not the law of the State of Michigan, notwithstanding the citation, and no cases in Michigan were cited to me.
      "MR. SUMMER [defense counsel]: Well, I never asked the Court to instruct the jury that just because a man has committed a robbery you could kill him, I said if it was necessary in order to prevent his escape. That’s the instruction that I requested.

        "THE COURT: And I denied that because I don’t think that is the law. And I qualified it by saying that unless the escape or unless the person is in hot pursuit from the scene of the particular robbery, the use of deadly force was not legal. I think to hold otherwise gives everybody a license to kill everybody whenever he finds him.”

       Section 3.07 of the Model Penal Code (Proposed Official Draft 1962) provides:
      "(1) Use of Force Justifiable to Effect an Arrest. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
      "(2) Limitations on the Use of Force.

      "(a) The use of force is not justifiable under this Section unless:
      "(i) the actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
      "(ii) when the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.
      "(b) The use of deadly force is not justifiable under this Section unless:
      "(i) the arrest is for a felony; and
      "(ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and
      "(in) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and

        "(iv) the actor believes that:
      "(1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
      "(2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.”

       See, generally, MCL 600.2158-600.2159; MSA 27A.2158-27A.2159.


author: Allen, P.J.

text:
    PEOPLE v TERLISNER
    Docket No. 78-1989.
    Submitted January 4, 1980, at Lansing.
    Decided April 1, 1980.
    Leave to appeal applied for.
    Leo R. Terlisner was charged with and convicted of murder in the perpetration of a robbery. At his trial in Van Burén Circuit Court, Meyer Warshawsky, J,, the defendant moved to suppress the statements which he had made to the police. The charge arose out of the death of a tavern owner in 1971. The deceased was found in his home with his wallet nearby. The contents of the wallet were strewn about, but no cash was found even though the deceased was known to carry large sums of cash in his wallet. Neither the receipts from his business nor the bag in which he was known to bring home the receipts was found. Also, a knife and gun known to be owned by the deceased were not found. Five years later, defendant, during the investigation of another matter, made* a series of statements to the police which implicated himself in the homicide. The substance of defendant’s statements was that he had acted as a lookout during the robbery and homicide. The trial court, on finding that defendant had been informed of his constitutional rights prior to the taking of the statements and finding that defendant’s statements were voluntarily made, denied the motion to suppress. The jury returned a verdict of guilty of aiding and abetting in the commission of a felony murder. Defendant was given the mandatory life sentence. Defendant appeals. Held:

    1. It is the established rule in Michigan that the corpus delicti of a crime must be established by independent evidence prior to the admission into evidence of any confession or admission of the accused. The evidence, absent defendant’s confessions, was clearly sufficient to establish that a felony murder had been committed, i.e., that a homicide had been committed during the perpetration of a robbery. Since the corpus delicti of the felony murder was established by independent evidence, the corpus delicti rule is satisfied. Having established the corpus delicti of the underlying crime by independent proofs, it was not necessary that the prosecution establish the nature of defendant’s participation in the crime as an aider and abettor by proofs independent of defendant’s confessions.

      References for Points in Headnotes
    [1] 30 Am Jur 2d, Evidence § 1140.
    [2] 67 Am Jur 2d, Robbery § 59.
    [3] 29 Am Jur 2d, Evidence § 530. 30 Am Jur 2d, Evidence § 1142.
    [4] 29 Am Jur 2d, Evidence §§ 785-787.
    Comment note on length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment. 33 ALR3d 335.
    [5] 21 Am Jur 2d, Criminal Law §§ 577, 580-582, 590.

      2. The trial court’s determination to admit into evidence defendant’s confessions cannot be said to be clearly erroneous. Given the trial court’s superior position to judge the credibility of the witnesses, the Court of Appeals cannot say that the findings of the trial court that defendant was fully apprised of his constitutional rights and was under no duress at the time he gave his confessions were unwarranted.
    3. The black and white photographs of the scene of the crime were properly admitted, since the photographs were not inflammatory, despite the presence of bloodstains in some of the photographs, and since they were more probative than prejudicial.
    4. The mandatory nonparolable sentence received by the defendant does not violate the constitutional right to due process of the laws, the constitutional right against cruel and unusual punishment or the constitutional provision requiring separation of the powers of the various branches of government.
    Affirmed.
    1. Criminal Law — Corpus Delicti — Evidence — Confession.
    The corpus delicti of a crime must be established by independent evidence prior to putting into evidence any confessions or admissions of the accused.
    2. Robbery — Corpus Delicti — Proof — Evidence — Sufficiency of Evidence.
    The corpus delicti of robbery is sufficiently established by proofs independent of the accused’s confession where the evidence established that a deceased was found in his home with his wallet pulled from his pocket, the wallet was without cash although the deceased was known to carry large sums of cash in his wallet, the remaining contents of the wallet were strewn about the room, and the receipts from the deceased’s business, along with the bag in which the deceased carried the receipts, and a gun and knife owned by the deceased were missing.

      3. Criminal Law — Corpus Delicti — Aiding and Abetting — Proof — Independent Proof — Evidence — Confession.
    The rule requiring that the corpus delicti of a crime be established prior to the admission of the confession of an accused does not require independent proof of the aiding and abetting of a felony murder where the evidence independently establishes that a robbery was committed by someone and that a killing occurred during the course of that robbery; it is unnecessary to establish by evidence independent of the accused’s confession that the accused aided and abetted in the crime.
    4. Criminal Law — Evidence — Photographs — Admissibility — Prejudicial Effect — Probative Value.
    Black and white photographs depicting the scene of a robbery and murder which include bloodstains are admissible where the bloodstains are not inflammatory in nature and the photographs are necessary to establish the corpus delicti of the crime, and where the photographs are more probative than prejudicial.
    5. Homicide — First-Degree Murder — Mandatory Sentence — Constitutional Law — Statutes.
    The mandatory nonparolable life sentence for one convicted of felony murder does not violate the constitutional right to due process, the prohibition against cruel and unusual punishment or the constitutional provision requiring separation of powers (MCL 750.316; MSA 28.548).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Ward S. Hamlin, Jr., Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Allen, P.J.

Where defendant is charged with murder in the perpetration of robbery, MCL 750.316; MSA 28.548, and where the only evidence linking defendant to the crime is defendant’s extra-judicial confession that he was, at most, an accomplice, and not a direct participant, is it necessary for the prosecution to prove the corpus delicti of aiding and abetting independent of defendant’s extra-judicial confession? The trial court answered this question of first impression in Michigan in the negative and denied defendant’s motion to suppress the confession. Following trial by jury, defendant was found guilty and appeals of right.

Joe Swetay was last seen alive when he closed his store tavern late at night May 1, 1971. It was his custom to put all receipts from the store tavern in a money bag which he would take home with him upon closing. He was found dead the next morning lying face down in the bedroom fully clothed, lights and TV on, blood spewed about the room. His wallet lay on the bedroom chair, its contents, sans cash, strewn nearby. His left rear trouser pocket had been cut off, and his body was punctured in many places. The dresser drawers were open with articles lying half in and half out; and none of the day’s receipts or the money bag, nor any money at all found in the house. The safe in the bedroom had not been opened. Three people rolled the safe out of the house where it was taken to a locksmith who opened it. It did not contain the last day’s receipts, but did contain between $27,000 and $28,000. One of decedent’s sons testified that his father had the habit of carrying large sums of money in his wallet in his back trouser pocket.

Some five years later, on May 18, 1976, while defendant was being investigated by a grand jury in connection with criminal activity not related to the death of Joe Swetay, defendant made a series of statements implicating himself in the Swetay homicide. In these statements, all given after defendant was given full Miranda warnings, defendant stated that one Wayne Wilson offered him $10 to drive Wilson and a friend, "Nutty”, to Swetay’s home to rob it; that defendant accepted the offer and acted as a lookout while Wilson and "Nutty” committed the robbery, picking up "Nutty” and meeting at Wilson’s home after the robbery. A tape of defendant’s statement made June 1, 1976, was admitted into evidence. Prior to trial, defendant moved to suppress the statements and quash proceedings on grounds that the statements were involuntary.

In January, 1977, defendant was charged with murder during the perpetration of a robbery or attempted robbery, and following preliminary examination in February, 1977, was bound over to circuit court on the offense charged.

Following a Walker hearing in September 1977, the motion to suppress was denied. Trial by jury commenced October 4, and continued through October 20, 1977. After deliberating one and one-half hours, defendant was found guilty of aiding and abetting a robbery felony murder and, on December 27, 1977, was sentenced to a term of mandatory life.

Based upon the long established rule that the corpus delicti must first be established before admissions or confessions of the accused may be put in evidence, People v Swetland, 77 Mich 53, 63; 43 NW 779 (1889), People v Allen, 390 Mich 383; 212 NW2d 21 (1973), defendant argues that, except for his confession as set forth in the several statements described earlier, the prosecution failed to independently prove: (a) a robbery had occurred, or (b) aiding and abetting. Ergo, contends defendant, the state failed to independently prove the corpus delicti. As to assertion (a), defendant is correct on the law but is wrong on the facts.

At both the preliminary examination and trial, sufficient evidence was produced to establish the corpus delicti of robbery, an essential element of the offense charged. All of the facts surrounding the discovery of the deceased’s body indicate a robbery. Deceased’s empty wallet, normally carried in his rear trouser pocket, was found without cash, its other contents strewn about the room. The day’s receipts from the deceased’s business and the bag used by deceased to carry the receipts home were missing. The deceased’s trouser pocket in which he carried the wallet had been slashed away. Dresser drawers in the bedroom were open, with their contents strewn about, and, though deceased had a gun and a knife, neither were ever found. The only evidence contradicting robbery was the unopened safe which had been left in deceased’s home. But this evidence was contradicted by the fact that the safe was bulky and heavy and difficult to open even if one knew the combination. Based upon these undisputed facts, we find that independently of the accused’s statements armed robbery was established.

The question posed in defendant’s assertion (b) is more difficult to resolve and is of first impression. In order to convict a person as an aider and abettor, is it necessary to establish the corpus delicti of aiding and abetting sans the confession? Citing Judge (now Justice) Levin’s dissenting opinion in People v Allen, 39 Mich App 483, 496; 197 NW2d 874 (1972), adopted in full by the Supreme Court in People v Allen, 390 Mich 383; 212 NW2d 21 (1973), defendant argues that both the principal crime of robbery-murder and the separate and distinct crime of aiding and abetting must be established by proof independent of defendant’s confession. Specifically, defendant relies on that portion of the opinion stating that all the essential elements of the offense -must be established apart from the confession:

"[T]he law in this state is clear that the corpus delicti of an offense is not established until the people have introduced evidence from which the trier of fact may reasonably find that acts constituting all the essential elements of the offense have been committed and that someone’s criminality was responsible for the commission of those acts.” (Emphasis in the original.)

First, in Allen, defendant was convicted of felony murder during the perpetration of a robbery. Unlike the situation in the instant case, there was no evidence of the underlying felony (robbery) apart from the confession. Thus, strictly construed, Allen holds no more than that where the defendant is charged with robbery-murder, the underlying felony of robbery must be established apart from the defendant’s confession.

Second, the significant difference in the penalty for conviction of first-degree or second-degree murder constituted a sound basis for Justice Levin’s decision that the distinguishing element between them, viz: premeditation or a killing in the course of committing certain named felonies, be established by evidence apart from the confession. But, in the case before us, there is no difference in penalty between the crime of robbery and the offense of aiding and abetting a robbery. Under MCL 767.39; MSA 28.979, every person concerned in the commission of a felony is equally guilty whether he directly commits the offense or aids or abets in its commission.

Third, the policy behind the corpus delicti rule is to insure that the crime has occurred. As Justice Levin noted, since confessions are sometimes obtained under circumstances that make them suspect, "evidence, other than the defendant’s statements, that the charged offense has been committed by someone — not necessarily the defendant” is required. Allen, supra, 505. Because there is no likelihood that a felony murder has not been committed by someone in the instant case, it is not necessary to establish defendant’s aiding and abetting by independent evidence. It is sufficient that the corpus delicti of the principal crime, viz: a killing during the course of a robbery, was established by independent evidence. Though defendant contends that one may not be found guilty as an aider or abettor unless there is proof that he intended to rob or kill or knew that his fellow participants so intended, one becomes an aider and abettor criminally responsible for the acts of his principals when he knows that the actual perpetrators had the required intent to lie in wait and rob the victim. People v Wirth, 87 Mich App 41, 46-47; 273 NW2d 104 (1978).

Defendant contends that the trial court erred when, following the Walker hearing, it found defendant’s several extra-judicial statements voluntary. This Court in People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969), described the standard of review of Walker hearings as the "clearly erroneous test”. The Hummel Court further explained the standard of review by stating that this Court would give deference to the trial court’s findings, especially where the demeanor of the witnesses is important, as where credibility is a major factor. In the present case, the trial judge had a superior opportunity to judge the credibility of the witnesses at the Walker hearing, and thus deference should be given to his finding that the witnesses for the prosecution were more credible than the defense witnesses.

Although there were several questioning sessions, there was no evidence that defendant at any point absolutely refused to talk with Officer Reeves or anyone else, and he was read his Miranda rights prior to each questioning session. Furthermore, no physical threats were made to defendant, and defendant suffered no physical harm except perhaps some hunger on one occasion. Generally, defendant was offered food and he did accept it. Defendant’s medical problems were mild and he made no complaints about them prior to June 1, 1976. The trial judge, at the close of the Walker hearing, made detailed findings and concluded that defendant’s statements were voluntary. This Court concludes that the trial judge’s findings were not clearly erroneous.

Nineteen photographs were, offered in evidence and 18 were admitted. Defendant argues that all 18 should have been excluded because they shed no light on any disputed issue and served only to prejudice the jury. In particular, objection is made to photographic exhibits 8, 10, 11 and 14. We disagree. To begin with, the exhibits were not color photographs but were black and white. Thus, the bloodstains were hardly inflammatory. Further, the exhibits were helpful — in fact necessary —to establish the corpus delicti of robbery-murder which, as we have noted earlier, could not be established by the accused’s confessions. Exhibit 11 does not depict the victim’s body, but shows a severed telephone cord and chair; exhibit 8 shows the pulled-out filing cabinet drawers and articles strewn about; exhibit 10 focuses on the severed rear trouser pocket; exhibit 14 is an enlargement of exhibit 8. In our opinion, the photographs were more probative than prejudicial. Accordingly, we fault neither the trial court for ruling them admissible, nor defense counsel for failing to object to their admission.

Defendant’s remaining contentions of error are found without merit.

Affirmed.

       Defendant gave statements on six different occasions (1) May 18, 1976, before he testified before the grand jury; (2) on May 18, 1976, after he testified at the grand jury; (3) and (4) May 19, 1976, at 1 p.m. and 8 p.m.; and (5) and (6) June 1, 1976, at 10 a.m. and on tape at 2:50 p.m.

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

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

       Defendant was not charged or bound over to circuit court on a charge of aidng and abetting- At trial, the jury was instructed on aiding and abetting.

       Defense counsel objected to exhibit 16 and subsequently the prosecutor withdrew the exhibit. No objection was made to the remaining 18 photographs.

       Defendant claims that the nonparolable life sentence required for conviction of felony murder, MCL 750.316; MSA 28.548, is unconstitutional because it (a) violates due process; (b) violates defendant’s right against cruel and unusual punishment, and (c) is a violation of separation of powers. Constitutionality of the felony murder statute has been sustained in People v Bills, 53 Mich App 339, 357; 220 NW2d 101 (1974), and People v Hall, 396 Mich 650, 658; 242 NW2d 377 (1976).


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

text:
    PEOPLE v McGILMER
    Docket Nos. 78-2227, 78-4907.
    Submitted September 4, 1979, at Lansing.
    Decided April 1, 1980.
    Calvin McGilmer was convicted, Washtenaw Circuit Court, Edward D. Deake, J., of breaking and entering an occupied dwelling with intent to commit larceny therein and of being an habitual offender. He was tried with his brother and codefendant Norman McGilmer. Sometime before trial, Norman Mc-Gilmer’s counsel filed an affidavit in support of his motion in opposition to consolidating the trial of Norman McGilmer with that of his brother Calvin McGilmer. Calvin McGilmer made no written motion nor filed any affidavit but orally moved opposing consolidation. The motions were denied. Defendant appeals. On appeal, defendant challenges the constitutionality of the habitual offender statute, argues that the discretion afforded the prosecutor under the habitual offender statute violates due process and equal protection and contends that the trial court committed reversible error by granting the prosecution’s motion to consolidate his case with that of his brother and by denying his motion in opposition and his later motion to sever. Held:

    1. The statutes providing for prosecution of a repeating offender are constitutional.
    2. A prosecutor’s discretion to charge under the habitual offender statute is not violative of due process or equal protection.
    3. A severance should be granted where the defenses of several defendants jointly indicted are antagonistic to each other. A defendant must make an affirmative showing that he would be prejudiced by a joint trial before he is entitled to a severance. A fair reading of the record does not lead to the conclusion that the defenses of Calvin and his brother were sufficiently antagonistic to warrant a severance of trials. Both Calvin and Norman were at the scene of the crime. Both were identified and apprehended with the fruits of the burglary. The suggestion that the trial was a finger-pointing match between the brothers was a sham totally injected by counsel’s argument and unsupported by actual or proffered testimony or exhibits.

      References for Points in Headnotes
    [1, 2] 39 Am Jur 2d, Habitual Criminals and Subsequent Offenders §§2-5.
    [3-5] 75 Am Jur 2d, Trial §§ 20, 21.
    Antagonistic defenses as ground for separate trials of codefendants in criminal case. 82 ALR3d 245.

      Affirmed.
    Cynar, J., dissented on the issue of severance. He would hold that a separate trial should have been granted because the remarks of Norman’s counsel in opening statement and closing argument were of such nature as to leave the impression that defendant was greatly prejudiced thereby. He would reverse and remand for a new trial.
    Opinion of the Court
    1. Criminal Law — Repeating Offenders — Supplemental Information — Statutes — Criminal Status — Protection of Citizens.
    The statutes providing for prosecution of a repeating offender by supplemental information are constitutional; the statutes are not directed toward the status of being an habitual criminal but to protect citizens from persons who continue to engage in criminal activities.
    2. Criminal Law — Repeating Offenders — Prosecuting Attorney — Discretion — Statutes — Constitutionality.
    The discretion afforded a prosecutor to file a separate or supplemental information under the habitual offender statutes is not violative of due process or equal protection.
    3. Criminal Law — Trial — Severance — Judge’s Discretion — Antagonistic Defenses.
    A defendant generally does not have a right to a separate trial; however, a severance, which is discretionary with the court, should be granted where the defenses of several defendants jointly indicted are antagonistic to each other.
    4. Criminal Law — Trial — Joinder — Severance.
    A defendant must make an affirmative showing that he would be prejudiced by a joint trial before he is entitled to a severance.
    Dissent by Cynar, J.
    5. Criminal Law — Trial — Joinder — Severance — Prejudicial Remarks.

      A defendant was prejudiced by a failure to grant his motion for

      severance and a separate trial where the remarks of his co-defendant’s counsel in opening statement and closing argument were of such nature as to be prejudicial against the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Albert B. Blixt, Jr., Assistant Prosecuting Attorney, for the people.

      Conlin, Conlin & McKenney (by Michael D. Highñeld), for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Cynar, JJ.
   M. J. Kelly, P.J.

Defendant was convicted of breaking and entering an occupied dwelling with intent to commit larceny therein, MCL 750.110; MSA 28.305, and of being an habitual offender, MCL 769.12; MSA 28.1084. Defendant was subsequently sentenced to 10 to 15 years imprisonment and now appeals as of right.

Defendant first assails his conviction under the habitual offender statute as being unconstitutional because it punished the status of being a criminal. This argument is lacking in merit. People v Hendrick, 52 Mich App 201, 207-208; 217 NW2d 112 (1974), aff'd 398 Mich 410; 247 NW2d 840 (1976), People v Potts, 55 Mich App 622, 634-639; 223 NW2d 96 (1974).

Likewise lacking in substance is defendant’s claim that the discretion afforded the prosecutor under the habitual offender statute is violative of due process and equal protection. People v Birmingham, 13 Mich App 402; 164 NW2d 561 (1968).

Finally, defendant contends that the trial court committed reversible error by granting the prosecution’s motion to consolidate his case with that of his brother and by denying his motion in opposition thereto and his later motion to sever.

The decision on which the defendant relies for his severance argument is People v Hurst, 396 Mich 1; 238 NW2d 6 (1976), which states the general rule to be that a defendant does not have a right to a separate trial.

"Joinder of defendants for trial is usually within the discretion of the court. However, '[a] severance should be granted when the defenses of several defendants jointly indicted are antagonistic to each other’. 5 Wharton’s Criminal Law & Procedure § 1946; Anno: Right to severance where two or more persons are jointly accused, 70 ALR 1171.” (Footnotes omitted.)

So the question becomes, what constitutes an antagonistic defense. This defendant, Calvin Lewis McGilmer, did not present any affidavit in opposition to the prosecution’s motion for joinder. Counsel for his brother, that is, counsel for Norman McGilmer, did present an affidavit in opposition. His attorney preliminarily argued that:

"Defendant recognizes that it would not be an abuse of discretion for this Court to grant prosecution’s motion for consolidation of trials if the defendant did not provide a supporting affidavit.”

Thereafter, by affidavit and by oral argument on the motion, counsel for defendant Norman Mc-Gilmer presented the argument that although Norman would not take the stand and would not present testimony or evidence, he, that is counsel, would argue that Norman was not the dark complected black man seen by the witness, it was Calvin. Calvin’s counsel presented no argument against joinder except this statement:

"Mr. Burgess: Your Honor, I had not been involved in this, but I did inform the Court at the last hearing that I would be in support of the denial for the motion to consolidate and join Mr. Ferris in his motion.”

In denying the motion the court ruled:

"Both the defendants can refuse to take the stand, and then there wouldn’t be any conflict. If one takes the stand, I don’t know if he would necessarily accuse the other.”

And what followed was as predicted. Calvin took the stand and testified. He gave evidence, but he did not implicate his brother. He exculpated himself and his brother. Before he testified his counsel addressed the jury as follows:

"I represent Calvin McGilmer. You have heard the statements of Mr. Blixt [prosecutor], statements of Mr. Ferris [counsel for Norman McGilmer] and I would again tell you that those are not evidence. My statements are not evidence. The evidence you’re going to have to consider is the evidence that is presented from the witness stand, and the exhibits and stipulations in this case.”

The evidence presented on behalf of Norman was constituted only of testimony of a police sergeant and two exhibits which were photographs of each defendant. Thereafter, the defense of Norman Mc-Gilmer rested and Calvin McGilmer took the witness stand. He testified that he and his brother picked up a couple of girls at the Detroit bus station and took them to Ann Arbor and were directed by one of the girls to a parking lot in the Arrowwood Complex, arriving a little before 10 p.m., whereupon the brothers separated. He said thereafter that while he was sitting in the car "a guy came out and started to get in his car and started talking to me”. This unknown person then asked Calvin for a ride because he had a flat and Calvin gave him a ride to a store and brought him back and let him off in the lot. The man gave him some change, mostly in nickels and dimes in exchange for this favor, and Calvin bought a bag containing a headphone and earphone component set from this man. Thereafter, Calvin located his brother and the other suspect at a house of some friends and took off in the car. They were momentarily stopped by the police. Following Calvin’s cross-examination he rested his case.

The testimony later developed that the brothers and Martin Baxter were apprehended a short distance from the apartment complex by police officers answering a call as to the breaking and entering. Martin Baxter successfully avoided prosecution but was subpoenaed to testify at trial and, although he was a reluctant witness, his testimony detailed the brothers having broken into the apartment with the use of a tool they used to pry a sliding glass door off its track. The defendants were further implicated by the inhabitants of the adjoining apartment who called the police and by the police officers who apprehended them within three or four minutes of their having been dispatched. The headphones and camera taken from the burglarized apartment were in the vehicle; the camera in the back seat and the headphones in the front seat. A substantial quantity of nickels and dimes found on defendant Calvin McGilmer were linked to the items missing from the burglarized apartment.

We do not think the defenses were antagonistic. A fair reading of this record puts both Calvin and Norman at the scene of the crime, identified and apprehended with the fruits of the burglary. The suggestion that it was a finger-pointing match between the brothers was a sham totally injected by counsel’s argument and unsupported by actual or proffered testimony or exhibits.

In People v Dunlap, 87 Mich App 528; 274 NW2d 62 (1978), this Court held that severance was not required where an allegation of antagonistic defenses was not supported either by citing previous antagonistic statements made by the co-defendant or by making an offer of proof on the point. People v Smith, 73 Mich App 463; 252 NW2d 488 (1977), held that a supporting affidavit defining the inconsistencies between the defenses of the parties is required before this Court will find an abuse of discretion in not ordering separate trials. Norman McGilmer never testified against Calvin, nor was an offer of proof made out of the presence of the jury so that the court could make an informed decision. We believe this case is distinguishable from People v Webb, 82 Mich App 182; 266 NW2d 483 (1978), lv den 404 Mich 809 (1978), wherein the testimony of each defendant clearly implicated the other.

Affirmed.

M. F. Cavanagh, J., concurred.

Cynar, J.

(dissenting).- I am in full agreement with the majority as to the disposition of the first two issues raised by defendant. However, whether or not the defendant was entitled to a severance of his trial is a close and perplexing problem.

Sometime before trial, counsel for codefendant Norman McGilmer filed an affidavit in support of his motion in opposition to consolidating the trial of Norman McGilmer with that of his brother Calvin McGilmer. Counsel claimed that if consolidation were granted, as attorney for defendant Norman McGilmer he would argue that the case against Calvin McGilmer was very strong; therefore, to consolidate the trials would also serve to greatly prejudice Norman because of the jury’s natural inclination to associate Norman with his obviously guilty brother Calvin. Calvin McGilmer made no written motion nor filed any affidavit but orally moved opposing consolidation.

The suggestions that the finger-pointing by Norman McGilmer against his brother was a sham bears careful consideration since counsel for Norman McGilmer acknowledged a refusal by his client to take the witness stand and accuse his brother Calvin while he was on trial with him. However, in the next breath, so to speak, Norman McGilmer did in effect testify against his brother through his attorney’s accusations in his opening statement and in closing argument to the jury.

The position of Calvin McGilmer was not antagonistic to Norman McGilmer. The sole witness called by defendant Norman McGilmer was a police officer who testified regarding booking pictures of that defendant which apparently had been labeled with the wrong name. The antagonism claimed by Norman McGilmer sprang from the words of his counsel, who declared in his opening statement:

"[T]he government will prove Calvin McGilmer guilty beyond a reasonable doubt, and I stand here accusing Calvin McGilmer of being guilty beyond a reasonable doubt. There is direct evidence implicating him in this crime. Mr. Blixt did not mention it, but Mr. McGilmer was found with coins, a number of dimes and nickels on him that Mr. Schatz or Shots [sic] will say came, or Mr. Hohmann will say came from his apartment, therefore I ask you don’t hold this against Norman McGilmer.

"The People will show that Calvin McGilmer was present at the scene and that he had stolen property on his person when he was stopped.”

In closing argument, counsel for Norman Mc-Gilmer argued:

"The case against Calvin McGilmer is a very, very strong one.”

These mere conclusionary, arguable allegations of antagonistic defenses made by counsel for Norman McGilmer should not inure to the benefit of Norman McGilmer. The opening statement in its simplest form was not only argument but in great part argument by counsel for Norman McGilmer on behalf of the people against Calvin McGilmer. Based on what was presented to the trial court the rulings which first granted consolidation and later denied severance were not erroneous. Surely something more should have been proffered to support an antagonistic defense; else such bare allegations might become standard fare in future joint criminal trials. However, no matter how analyzed, the remarks in the opening statement and in closing argument by counsel for Norman McGilmer were of such a nature as to leave this writer with the impression that Calvin McGilmer was greatly prejudiced thereby. In addition, I am unable to legally conclude Calvin McGilmer was involved in a scheme to present the alleged antagonistic defense on behalf of Norman McGilmer. I would reverse and remand for a new trial.