author: T. M. Burns, P.J.

text:
    PEOPLE v HERNDON
    Docket No. 27674.
    Submitted January 2, 1980, at Detroit.
    Decided July 22, 1980.
    Travis Herndon was convicted of assault with intent to commit armed robbery in Wayne Circuit Court, Joseph B. Sullivan, J., and sentenced to 15 to 30 years imprisonment. The defendant appeals alleging numerous errors. Held:

    1. Michigan law expresses a strong preference for the use of line-ups and not photographic displays for identification purposes after a defendant is taken into custody. However, photographic displays are permissible when it is not possible to arrange a proper line-up.
    2. A defendant has a right to appear in court without handcuffs. However, as a matter of practical necessity, the conduct of orderly court process often unavoidably requires a defendant to appear in court in handcuffs or prison uniform. Absent a showing that such necessity was lacking or that prejudice resulted, the Court of Appeals will not reverse a defendant’s conviction merely because the jury may have seen the defendant in handcuffs.
    3. A defendant may not assign as error issues pertaining to improper material in his presentence report where that defendant does not make a record of error at the time of sentencing to enable the Court of Appeals to perform its function of review.
    4. The lower court did not err in finding that the defendant was not deprived of effective assistance of counsel by the failure of his attorney to raise and present an alibi defense at trial.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 368, 369.
    Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedure. 39 ALR3d 487.
    Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedure. 39 ALR3d 1000.

       21 Am Jur 2d, Criminal Law §§ 239, 240.
    Propriety and prejudicial effect of gagging, shackling, or otherwise physically restraining accused during course of state criminal trial. 90 ALR3d 17.

       5 Am Jur 2d, Appeal and Error § 648 et seq.

      Affirmed.
    1. Criminal Law — Line-ups — Photographic Display.
    Michigan law expresses a strong preference for the use of line-ups and not photographic displays for identification purposes after a defendant is taken into custody; however, photographic displays are permissible when it is not possible to arrange a proper line-up.
    2. Criminal Law — Handcuffs — Defendants.
    A defendant has a right to appear in court without handcuffs; however, the conduct of orderly court process often unavoidably requires a defendant to appear in court in handcuffs or prison uniform and, absent a showing that such necessity was lacking or that prejudice resulted, the Court of Appeals will not reverse a defendant’s conviction merely because the jury may have seen the defendant in handcuffs.
    3. Criminal Law — Courts — Defendants — Presentence Reports — Appeal.
    A defendant may not assign as error issues pertaining to improper material in his presentence report where that defendant does not make a record of error at the time of sentencing to enable the Court of Appeals to perform its function of review.

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

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J., and Bashara and N. J. Kaufman, JJ.
   T. M. Burns, P.J.

Defendant appeals of right his December 10, 1975, jury conviction of assault with intent to commit armed robbery. MCL 750.89; MSA 28.284. On December 18, 1975, defendant was sentenced to a term of 15 to 30 years imprisonment.

The most significant issue raised in this appeal concerns whether the lower court erred when it permitted the complainant to make an in-court identification of defendant, where the complainant previously had identified defendant at a photographic display conducted at a time when he was in incarceration.

On September 1, 1975, the complainant was shot in the stomach by a man who was attempting to rob him. Nine days later, on September 10, police detectives gave the complainant a group of seven photographs and asked him whether he could identify his assailant. Defendant, who was in the custody of the police, was represented by a lawyer at the photographic display. Although the complainant was not positive in his identification, he stated that if the man depicted in the photograph of defendant had a small goatee, it would look like the man who assaulted him. The record does not disclose any objection to the photographic display by the attorney who represented defendant there.

At the subsequent preliminary examination the complainant was unable to identify defendant. Defense counsel objected to the complainant’s in-court identification, alleging that it was tainted by the suggestiveness of the photographic display. Following a hearing held off the record, the lower court denied defense counsel’s motion to exclude the identification testimony. The judge found that the photographic display had been conducted properly, had not been suggestive and did not taint the complainant’s in-court identification. We agree.

Michigan law expresses a strong preference for the use of line-ups and not photographic displays for identification purposes after a defendant is taken into custody. People v Kachar, 400 Mich 78; 252 NW2d 807 (1977), People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). However, not all photographic displays are impermissible. In Anderson, id., 186, the Supreme Court recognized the necessity of using photographs for identification when, in a particular case, it was not possible to arrange a proper line-up. Inasmuch as the instant photographic display occurred in the presence of an attorney who was representing defendant, and at a time that the complainant was in the hospital recovering from a gunshot wound that he had received in the assault, we agree with the lower court judge that the photographic display in this case was not per se impermissible.

However, our holding that the use of a photographic display was appropriate in this case does not end our consideration of this issue. We must also determine whether the display was unnecessarily suggestive because, as was held in People v Adams, 92 Mich App 619, 625; 285 NW2d 392 (1979), quoting Simmons v United States, 390 US 377, 384; 88 S Ct 967; 19 L Ed 2d 1247 (1968):

"[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentiñcation.” See also, People v Kachar, supra, People v Lee, 391 Mich 618; 218 NW2d 655 (1974).

After considering evidence presented at a separate hearing on defendant’s motion to quash the complainant’s in-court identification, the lower court ruled that the photographic display had not been impermissibly suggestive. We agree. The facts of this case indicate that, prior to the photographic display, the attorney who was representing defendant was given a stack of 45 photographs by the police and told to choose any number of them for inclusion in the display. There is no evidence that that attorney objected to the display and, although the trial judge suggested that defendant call the attorney to obtain his testimony regarding the circumstances of the photographic display, defendant did not do so. As a consequence, there is no evidence in the record that would tend to establish that the otherwise proper photographic display was impermissibly suggestive. Inasmuch as we cannot say that the lower court abused its discretion when it held that the complainant’s in-court identification of defendant was not tainted by an improper or biased photographic display, we hold that this issue does not present reversible error.

Defendant also complains that he was denied his right to a fair and impartial jury because during trial he was observed in handcuffs by members of the jury.

Except in unusual situations, a defendant has a right to appear in court without handcuffs. People v Shaw, 381 Mich 467; 164 NW2d 7 (1969). However, as a matter of practical necessity, the conduct of orderly court process often unavoidably requires a defendant to appear in court in handcuffs or prison uniform. People v Carroll, 49 Mich App 44, 49; 211 NW2d 233 (1973), aff'd 396 Mich 408; 240 NW2d 722 (1976). Therefore, absent a showing that such necessity was lacking or that prejudice has resulted, this Court will not reverse a defendant’s criminal conviction merely because the jury may have, seen the defendant in handcuffs. People v Anderson, supra, 191, adopting 29 Mich App 578, 582-583; 185 NW2d 624 (1971), People v Panko, 34 Mich App 297; 191 NW2d 75 (1971), lv den 385 Mich 783 (1971).

Although evidence in the record indicates that defendant may have been in the presence of the jury while in handcuffs, there is no evidence that would indicate that any member of the jury ever saw handcuffs on defendant. Further, defense counsel did not request an evidentiary hearing to inquire as to whether members of the jury saw shackles on defendant and, if they did, whether they were thereby prejudiced. See, People v Panko, supra. In the absence of such an evidentiary record we are unable to hold that defendant was denied his right to a fair and impartial jury. We reject any contention that the trial judge had a duty to give any unrequested cautionary instruction to the jury regarding any encounter they may have had with defendant while he was in handcuffs. People v Ernest Smith, 87 Mich App 18; 273 NW2d 573 (1978).

We also reject defendant’s argument that the lower court erred in finding that he was not deprived of effective assistance of counsel by the failure of his attorney to raise and present an alibi defense at trial. Following an evidentiary hearing on defendant’s motion for a new trial, in which he raised this issue, the lower court judge concluded that this issue was without merit because defendant had not made a good faith effort to communicate to his counsel his desire to assert an alibi defense. Defendant’s trial counsel testified at this hearing that despite his repeated requests to defendant to provide him with names of purported alibi witnesses, defendant never gave him any. Defense counsel also testified that defendant rejected his proposal to offer a police officer witness who was alleged to have seen defendant on the day of the crime at his mother’s home in support of the alibi defense. Further, the attorney stated that although he had talked with defendant’s mother on a number of occasions, she was unable to inform him of the exact time that defendant was at her home. Upon review of the entire record we are not left with a firm conviction that the lower court abused its discretion when it held that defendant was not denied his right to effective representation because of his failure to adequately inform his counsel of the necessary information to investigate his alibi defense.

We are similarly unpersuaded by defendant’s argument that he was unfairly prejudiced by certain allegedly improper comments by the prosecutor during closing argument to the jury. We find that the prosecutor’s remarks were not impermissible but, rather, were merely comment on uncontradicted evidence presented at trial. Further, even assuming that the prosecutor’s closing argument did contain improper content, defendant’s failure to object to it or request a curative jury instruction has waived any error. People v Duncan, 402 Mich 1, 16-17; 260 NW2d 58 (1977), People v Hall, 396 Mich 650; 242 NW2d 377 (1976).

Finally, we hold that defendant’s failure to object at the time of his sentencing to purportedly improper information in his presentence report has resulted in a failure to preserve this issue for our review. Where a defendant does not make a record of error at the time of sentencing to enable this Court to perform its function of review, that defendant may not assign as error issues pertaining to improper material in the presentence report. People v Sallee, 63 Mich App 146; 234 NW2d 180 (1975).

Affirmed.


source: Caselaw Access Project

author: Danhof, C.J.

license: Public Domain

text:
    PEOPLE v DIAZ
    Docket No. 78-169.
    Submitted June 2, 1980, at Lansing.
    Decided July 22, 1980.
    Frank Diaz was convicted of delivery of heroin, Saginaw Circuit Court, Hazen R. Armstrong, J. He appeals, alleging the trial court erred in (1) ordering his codefendant to complete the presentation of his defense prior to any presentation by defendant Diaz, (2) permitting the prosecutor to examine a rebuttal witness who was not noticed until the day he was to testify, (3) allowing the prosecutor to cross-examine defendant’s alibi witnesses concerning their failure to contact the police regarding the alibi after defendant’s arrest, and (4) prohibiting defendant from calling a certain witness in his defense. Held:

    1. The order of proofs in a criminal case is largely discretionary with the trial judge. The trial court’s exercise of discretion in ordering the codefendant to complete his case before defendant Diaz could present any witnesses so as to prevent confusion for the jury did not constitute error.
    2. The trial court properly admitted the testimony of the prosecution’s rebuttal witness since the name of the witness was not available when notice was required and could not have been available in the exercise of due diligence.
    3. It was proper for the trial court to allow the prosecutor to cross-examine defendant’s alibi witnesses concerning their failure to come forward with the alibi prior to trial since the credibility of a witness may be attacked by showing that he failed to speak or act where it would have been natural to do so if the facts were in accordance with his testimony.
    4. It was not error for the trial court to preclude calling a defense witness where the court knew he would claim his Fifth Amendment privilege and refuse to testify.

      References for Points in Headnotes

       75 Am Jur 2d, Trial § 146.

       75 Am Jur 2d, Trial § 158.

       75 Am Jur 2d, Trial § 159.

       81 Am Jur 2d, Witnesses §§ 4, 74.

       81 Am Jur 2d, Witnesses § 658.

       81 Am Jur 2d, Witnesses §§ 507, 662 et seq.

      Affirmed.
    1. Criminal Law — Trial — Order of Proofs — Judicial Discretion.
    The order of presentation of proofs in a criminal trial is largely discretionary with the trial judge.
    2. Criminal Law — Trial — Defense — Order of Presentation — Joint Trial — Unified Strategy.
    A defendant can decide when he may testify during trial in the course of presenting his own defense, but where codefendants are jointly tried, their defenses are separate and independent, and they have no right to commingle their witnesses to achieve a unified strategy.
    3. Prosecuting Attorneys — Trial — Notice of Rebuttal — Unfair Surprise — Alibi Defense — Criminal Law.
    The prosecutor is required to file a notice of rebuttal to prevent unfair surprise at trial where a defendant has asserted an alibi defense.
    4. Witnesses — Criminal Law — Parties — Duty to Disclose —
    Post-Filing Notice of Rebuttal — Motions — Alibi Defense — Trial.
    Both the defendant and the prosecuting attorney are under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices of alibi and rebuttal, and upon- motion with notice to the opposite party and upon a showing by the moving party that the name of an additional witness was not and could not have been, by the exercise of due diligence, available when the notice was filed, such witness may be called during trial to establish or rebut an alibi defense.
    5. Trial — Jury — Credibility of Witnesses — Alibi Defense.
    It is within the jury’s province to determine the credibility of all witnesses, including any whose testimony tends to establish an alibi.
    6. Witnesses — Attack on Credibility — Failure to Speak or Act.
    The credibility of a witness may be attacked by showing that he failed to speak or act where it would have been natural to do so if the facts were in accordance with his testimony.

      7. Witnesses — Alibi Witnesses — Cross-Examination — Failure to Come Forward — Criminal Law.
    It is proper to cross-examine an alibi witness concerning his failure to come forward with the alibi prior to trial.
    8. Witnesses — Exclusion of Witnesses — Claim of Privilege — • No Error.
    The exclusion of a defense witness by a trial court where the court knew that the witness would claim his Fifth Amendment privilege and refuse to testify does not constitute error; the exercise of a witness’s constitutional right to remain silent should not be used as evidence to support an inference for either side (MRE 401, 403).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Appellate Prosecuting Attorney, for the people.

      P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and M. J. Kelly and G. R. Corsiglia, JJ.

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

   Danhof, C.J.

Following a jury trial, defendant was convicted of delivery of heroin, contrary to MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). On October 14, 1977, defendant was sentenced to 6 to 20 years imprisonment. He appeals as of right.

Defendant was jointly tried with one Robert Jordan, a/k/a Robert Hodges. The charges arose out of a September 1, 1976, transaction with Lansing Police Officer David Ruiz in Saginaw, Michigan. Ruiz, an undercover officer posing as a narcotics dealer, arranged to meet Hodges at 7:15 p.m. at the Scottish Inn in Saginaw. Pursuant to a telephone conversation, Ruiz was to receive a small sample of heroin, one ounce of which would be purchased for $1,800 at a later time. At the Inn, Hodges gave Ruiz a wax paper packet containing a brown substance and told him that the heroin was of good quality. They agreed to transact a larger purchase, and Ruiz followed Hodges to the latter’s residence. There, he saw two Mexican males seated at a table. Hodges introduced one as "Frank Lopez” and the other as "Mike”. Ruiz identified defendant as the man called "Frank Lopez”. Hodges then asked defendant if he had the stuff; defendant nodded in an affirmative manner. Defendant removed a baggie containing a brown, powdery substance from his pocket and handed it to Mike who handed it to Ruiz. Defendant assured Ruiz that it was good heroin and agreed that the price was $1,800. The baggie contained 24.1 grams of a substance that was 6.6% heroin. Ruiz paid the money, Hodges counted it, and Mike placed it in his pocket. Defendant and Mike then left the house, Ruiz remaining with Hodges.

Six police officers, two per car, were on surveillance duty during the transaction (via a radio transmitter concealed on Ruiz’s person). While three of them observed Ruiz just outside the house with Hodges before the transaction, they did not see anyone leave the residence before Ruiz and Hodges.

Both defendant and Hodges asserted alibi defenses. Hodges testified he was near Bad Axe, Michigan, on September 1, 1976. Five witnesses were called in support of this claim. Defendant testified he was in the Chicago area on September 1, 1976. Four witnesses testified in support of his claim.

Hodges testified that on September 13, 1976, he arranged a transaction at his house between Ruiz and "Mike” Gomez. Defendant was present. But at the house, Hodges claimed he did not see any drug-related transactions. Defendant testified that he went to Hodges’s house with Mike Casarez (a/ k/a Mike Gomez) on September 13, 1976. At the house, Casarez produced a bag containing a tan substance which he sold to Ruiz for $1,800.

On appeal, defendant argues that the trial court erred in ordering codefendant Hodges to complete the presentation of his defense before defendant Diaz could present his. He claimed they should have been able to intermingle their proofs so that the alibi evidence of both could be presented before the decision to present evidence implicating them in a later drug sale was made. He asserts that this decision was "pivotal to the defense” so that it was fundamentally unfair for the judge to require the choice without an opportunity to evaluate the actual value of their evidence. We disagree.

The order of proofs in a criminal case is largely discretionary with the trial judge. People v Bigge, 297 Mich 58, 67; 297 NW 70 (1941). MCL 768.29; MSA 28.1052, provides in relevant part:

"It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”

Defendant relies on Brooks v Tennessee, 406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972). In that case, the Court held that a statute which precluded a defendant from testifying unless he testified before his other witnesses infringes his right to remain silent and his right to due process of law. The majority concluded:

"While nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the order of proof, the accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand.” 406 US 605, 613.

Defendant’s reliance on Brooks is misplaced. While a defendant can decide when he may testify in the course of presenting his own defense, Brooks has no application to joint trials like the present. When codefendants are jointly tried, their defenses are separate and independent. They have no right to commingle their witnesses to achieve a unified strategy.

We hold the trial court properly exercised its discretion in deciding that Hodges would finish his case before defendant Diaz could present any witnesses. Due to the complex nature of this case and the large number of witnesses (10 for the people, 11 for Hodges, and 5 for Diaz), an orderly, nonconfusing presentation of testimony to the jury was necessary.

Defendant next argues that the trial court erred in permitting the prosecutor to present a rebuttal witness who was not noticed until the day he was to testify.

On the ninth day of trial, the prosecutor filed a notice of rebuttal naming Damien Pifkowski, the manager of a Chicago Holiday Inn. The prosecutor argued that this witness was unknown to the prosecutor until that very day and the witness could not have been available earlier in the exercise of due diligence. The trial court ruled the evidence admissible.

Where a defendant has asserted an alibi defense, the prosecutor is required to file a notice of rebuttal to prevent unfair surprise at trial. People v Terry Alexander, 82 Mich App 621, 627; 267 NW2d 466 (1978). MCL 768.20; MSA 28.1043, provides in relevant part:

"(2) Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.
"(3) Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices as provided in this' section. Upon motion with notice to the other party and upon a showing by the moving party that the name of an additional witness was not available when the notice required by subsections (1) or (2) was filed and could not have been available by the exercise of due diligence, the additional witness may be called by the moving party to testify as a witness for the purpose of establishing or rebutting an alibi defense.”

On this record we hold the trial court properly admitted the testimony based on a showing that the name was not available when notice was required and could not have been available in the exercise of due diligence.

Defendant’s notice of alibi stated that defendant stayed with one Rudy Castellanos in Chicago. Two of his alibi witnesses could not be located before trial, and the third made no mention of a Holiday Inn. While the two testified at trial that they stayed at a Holiday Inn, the location of the hotel was not ascertained. It was not until defendant testified they stayed in the Holiday Inn near Mel-rose Park that the prosecution was aware of a possible rebuttal witness. The prosecutor then promptly contacted Damien Pifkowski.

In a related argument, defendant claims that the trial court erred in allowing hearsay testimony from Damien Pifkowski regarding the result of a check of Holiday Inn records by his assistant.

Pifkowski testified that he personally checked the records of his Inn for the names of defendant’s party, while his assistant checked two other Inns. The people concede the testimony as to the result of the assistant’s search is hearsay but argue that it is harmless error. We agree.

The error was not so offensive to the maintenance of a sound judicial process that it can never be regarded as harmless. People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972). Further, it was harmless beyond a reasonable doubt. This conclusion is derived from an assessment of the direct eyewitness testimony of Officer Ruiz supported by surveillance officers as compared to the evidence presented by defendant. In this light, the hearsay was harmless. Defendant and his witnesses were unclear as to which Holiday Inn they stayed in. The hearsay covered only two Inns in the area and was rebutted by defendant’s surrebuttal witness who testified that they stayed in a different Holiday Inn.

Defendant next argues that the prosecutor’s cross-examination of the alibi witnesses concerning their failure to contact the police regarding the alibi after defendant was arrested denigrated his alibi defense, denying him a fair trial.

It is within the jury’s province to determine the credibility of all witnesses, including any whose testimony tends to establish an alibi. People v Loudenslager, 327 Mich 718; 42 NW2d 834 (1950).

The credibility of a witness may be attacked by showing that he failed to speak or act when it would have been natural to do so if the facts were in accordance with his testimony. People v Mc-Clow, 40 Mich App 185, 193; 198 NW2d 707 (1972). Thus, in McClow, a panel of this Court held it proper to cross-examine an alibi witness concerning his failure to come forward with the alibi prior to trial.

We agree with McClow and hold that the trial court did not err when it allowed the prosecutor to pose similar questions to defendant’s alibi witnesses.

Finally, defendant argues that the trial court erred when it prohibited defendant from calling Mike Gomez, a/k/a Mike Casarez, as a defense witness.

Initially, Casarez could not be located. However, at mid-trial Casarez was found, and both defense counsel wanted to present him as a defense witness. It was defendant’s theory that only Casarez was involved in the September 1, 1976, heroin sale to Officer Ruiz. At a hearing outside of the presence of the jury, Casarez was questioned. He stated his name and address but invoked his right to remain silent as to any other questions.

Defendant claims Casarez’s exercise of his privilege should have been placed before the jury because it would have aided defendant’s theory that Casarez alone had delivered the heroin.

In People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977), the Court found an evidentiary trial error where the prosecutor called an accomplice as a witness knowing that he would claim his Fifth Amendment privilege and refuse to testify. The rationale of the rule that a lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify is that prejudice arises from the human tendency to treat the claim of privilege as a confession of crime, creating an adverse inference which an accused is powerless to combat by cross-examination.

This Court has split on the question of whether the Giacalone prohibition applies to the defense’s calling of a witness knowing he would refuse to testify. People v Bashans, 80 Mich App 702; 265 NW2d 170 (1978), cf., People v Jerry Johnson (After Remand), 86 Mich App 430; 272 NW2d 672 (1978).

We conclude the trial court did not err in precluding the calling of this witness. As a matter of public policy, we believe the exercise of a witness’s constitutional right to remain silent should not be used as evidence to support an inference for either side. Such an inference is wholly speculative since it rests on litigants’ perception of juries’ foibles. A jury may infer the refusal to testify is a confession implicating defendant or may somehow believe defendant was not involved since his accomplice would not testify. Neither inference is desirable because the former is obviously prejudicial to defendants while the latter inference cannot be combated by the truth testing device of cross-examination due to the constitutional rights of the witness. Nor can the evidence be termed "relevant evidence”. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. MRE 401. The wholly speculative inference advanced by defendant does not make the existence of any fact of consequence more probable or less probable. The witness was properly excluded. MRE 403.

Affirmed.


author: D. E. Holbrook, Jr., P.J.

text:
    PEOPLE v TAYLOR
    Docket No. 78-2018.
    Submitted May 21, 1980, at Detroit.
    Decided July 22, 1980.
    Leave to appeal applied for.
    Douglas E. Taylor was convicted of first-degree murder, armed robbery, and felony-firearm in Detroit Recorder’s Court, Roy J. Daniel, J. He appeals alleging numerous errors. Held:

    1. A criminal defendant’s demand for an immediate ruling from the trial judge as to whether impeachment by evidence of prior convictions of the defendant would be allowed should be decided immediately by the trial judge. This is to allow the defendant to better determine whether or not to take the witness stand. However, in this case the Court of Appeals was left with the firm impression that defendant would have testified regardless of the trial court’s decision. Additionally, defendant did not object to the trial court’s reserving its ruling.
    2. Appellate review of the trial court’s failure to correct sua sponte a defendant’s misstatement of the nature of his prior conviction is precluded in the absence of a showing of manifest injustice where there was no attempt by the defense to correct the error and there was no request for a curative instruction.
    3. The entire text of an exculpatory statement by a defendant made after his arrest was properly excluded at trial as self-serving where it was the defendant who brought out portions of the statement in an attempt to aid his case and the prosecution response was limited to areas raised by the defendant.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320, 321, 327. 75 Am Jur 2d, Trial § 416.

       5 Am Jur 2d, Appeal and Error § 623. 75 Am Jur 2d, Trial §§ 573-575, 577, 578.

       29 Am Jur 2d, Evidence § 621.
    Admissibility of party’s own statement under Rule 801(d)(2)(A) of the Federal Rules of Evidence. 48 ALR Fed 922.

       40 Am Jur 2d, Homicide §§ 7, 486, 529-531. 75 Am Jur 2d, Trial §§ 876, 877, 878, 881.

       40 Am Jur 2d, Homicide §§ 10, 127, 129, 517. 75 Am Jur 2d, Trial § 743.
    Modern status of rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.
    When intoxication deemed voluntary so as to constitute a defense to criminal charge. 73 ALR3d 195.

      4. Failure to instruct the jury on manslaughter, where the defendant is charged with murder, may constitute reversible error where the evidence presented at trial could support a guilty verdict on that charge even though manslaughter is not necessarily a lesser included offense of murder. There was no credible evidence, excuse or justification to mitigate the degree of the offense to manslaughter in this case.
    5. A second-degree murder conviction does not require proof of a specific intent to kill, thus there is no error in failing to instruct the jury that intoxication is a defense to second-degree murder.
    Affirmed.
    1. Criminal Law — Impeachment — Prior Convictions — Admissibility.
    A criminal defendant’s demand for an immediate ruling from the trial judge as to whether impeachment by evidence of prior convictions of the defendant would be allowed should be decided immediately by the trial judge to allow the defendant to better determine whether or not to take the witness stand.
    2. Appeal — Criminal Law — Error — Sua Sponte Correction.
    Appellate review is precluded in the absence of a showing of manifest injustice where the trial court failed sua sponte to correct a defendant’s misstatement of the nature of his prior conviction where there was no attempt by the defense to correct the error and there was no request for a curative instruction.
    3. Criminal Law — Defendants — Exculpatory Statements.
    The entire text of an exculpatory statement by a defendant made after his arrest was properly excluded at trial as self-serving where it was the defendant who brought out portions of the statement in an attempt to aid his case and the prosecutor’s response was limited to areas raised by the defendant.
    4. Homicide — Jury Instructions — Manslaughter — Lesser Included Offenses — Murder.
    Failure to instruct the jury on manslaughter, where the defendant is charged with murder, may constitute reversible error where the evidence presented at trial could support a guilty verdict on that charge even though manslaughter is not necessarily a lesser included offense of murder.

      5. Homicide — Second-Degree Murder — Jury Instructions — Intoxicating Liquors.
    A second-degree murder conviction does not require proof of a specific intent to kill, thus there is no error in failing to instruct the jury that intoxication is a defense to second-degree murder.

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

      Robert W. Hayden, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and V. J. Brennan and S. Everett, JJ.

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

   D. E. Holbrook, Jr., P.J.

Defendant was jury convicted of first-degree murder, MCL 750.316; MSA 28.548, armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in commission of a felony, MCL 750.227(b); MSA 28.424(2). Thereafter sentenced to lifetime solitary confinement at hard labor, he appeals as of right.

The victim went to a drug store to purchase gum and cigars for his retirement party the next day honoring 30 years of employment. He was forced back into his car by defendant and a codefendant and driven to a nearby alley where he was found murdered and robbed.

Defendant gave three separate statements, each somewhat different in substance, but all given in full compliance with Miranda. The essence of defendant’s defense was that (1) he was drunk and didn’t know what was happening, (2) he was forced at gunpoint to drive the car by his codefendant, and (3) he had no advance knowledge of the robbery and did not participate in either the robbery or the murder. This version of the facts conflicts with testimony of witnesses that defendant was in the backseat of the car with the victim. Furthermore, the victim’s watch and ring were found on defendant during the arrest.

Prior to the presentation of defendant’s case, the trial court stated that it was inclined to exclude prior conviction evidence but reserved the right to allow such evidence should it become substantially probative. Defendant did not object to the court’s reservation of its ruling. However, he now claims that the trial court abused its discretion by taking under advisement the motion to suppress evidence and by later allowing impeachment.

The facts of the instant case bear close resemblance to People v Lytal, 96 Mich App 140; 292 NW2d 498 (1980), in which defendant indicated that he would testify whether or not impeachment by evidence of a prior conviction was permitted. It was held that under such circumstances the decisional process could not have been adversely affected by the judge’s reservation to the motion to suppress. There was no indication that he would not have testified had the trial judge immediately ruled that the prior conviction would be admissible for impeachment purposes. A review of the record gives us the firm impression that he would have testified regardless of the trial court’s decision. Indeed, he seemed anxious to exonerate himself with his contention that he was coerced by the codefendant.

There may be situations in which a defendant’s very decision to testify may be contingent upon whether the trial judge would permit impeachment by evidence of prior convictions. When a defendant demands an immediate ruling so that he may better determine whether or not to take the witness stand, the trial judge should immediately render a decision. In this instance, however, there was no such demand and the reservation of the ruling allowed the trial judge to more carefully consider the probative value versus the prejudicial effect that evidence of the prior conviction would have on the case. The transcript reflects that the trial judge proceeded cautiously with an acute awareness of the factors to be considered in weighing the admissibility of evidence of the prior conviction.

Defendant also claims the trial court erred by failing sua sponte to correct defendant’s misstatement of the nature of his prior conviction. Defendant testified that his prior conviction was for armed robbery, however his conviction was actually for assault with intent to rob while being armed. There was no attempt by the defense to correct the error and there was no request for a curative instruction. Appellate review is therefore precluded, in the absence of a showing of manifest injustice. People v Todaro, 253 Mich 367; 235 NW 185 (1931). There does not appear to be manifest injustice as the error was minimized by the limited purpose for which evidence of the prior conviction was admitted. Defendant testified that the very prospect of the armed robbery caused him to become hysterical. The admission of evidence of a prior conviction for "armed robbery” rendered that claim less credible, but the same effect would have been achieved had evidence of the actual prior conviction of "assault with intent to commit armed robbery” been admitted at trial. Considering the other evidence against defendant, there is no reasonable possibility that the admission of this testimony resulted in a miscarriage of justice.

Defendant also claims that the rule of completeness entitled him to have the entire text of his statement admitted at trial. That rule only applies where the prosecution offers a part of defendant’s statements against him. It was defense counsel who brought out portions of the statement in an attempt to aid his case. The prosecutor’s response was limited to areas raised by the defendant. An exculpatory statement by a defendant made after his arrest is properly excluded at trial as self-serving. People v Hunter, 69 Mich App 594; 245 NW2d 347 (1976).

The trial court did not err by refusing to instruct the jury on manslaughter. Although manslaughter is not necessarily a lesser included offense of murder, failure to instruct on that alternative may be reversible error where the evidence presented at trial could support a guilty verdict on that charge. People v Van Wyck, 402 Mich 266, 268; 262 NW2d 638 (1978). In the instant case, however, there was no credible evidence, excuse or justification to mitigate the degree of the offense to manslaughter.

Defendant’s final contention is that the trial court erred by failing to instruct the jury that intoxication is a defense to second-degree murder. His argument fails under People v Hill, 94 Mich App 77; 288 NW2d 408 (1979), and People v Barnard, 93 Mich App 590; 286 NW2d 870 (1979), where it was held that a second-degree murder conviction does not require proof of a specific intent to kill. See also, People v Garcia, 398 Mich 250; 247 NW2d 547 (1976).

Affirmed.

        Miranda v Arizona, 384 US 436; 86 S CT 1602; 16 L Ed 2d 694; 10 ALR 3d 974 (1966).


author: Cynar, J.

text:
    JACOBS v HIGHLAND PARK POLICE AND FIRE CIVIL SERVICE COMMISSION
    Docket Nos. 78-3316, 78-3317.
    Submitted January 8, 1980, at Detroit.
    —Decided July 22, 1980.
    Jeffery Jacobs, a police officer for the City of Highland Park, was relieved from active duty following an incident in which Jacobs’ gun discharged, causing a fellow officer to be injured. Charges relating to his removal were brought by the police department. On October 26, 1976, Jacobs answered those charges and requested a civil service hearing within ten days pursuant to the civil service for fire and police departments act. On November 1, 1976, Jacobs stipulated to a waiver of the requirement that the civil service hearing be held within ten days, provided that the hearing would be held on November 24, 1976. On November 24, 1976, a hearing before the commission commenced before two members of the three-member civil service commission. After the swearing of the first witness, the commission adjourned the hearing without date, the reason for the adjournment being that continuation of testimony before the commission might jeopardize the pending criminal case against Jacobs arising out of the same shooting incident.
    On February 14, 1977, Jacobs filed a complaint for a writ of superintending control, seeking an order requiring the civil service commission to show cause why the charges should not be dismissed by reason of the failure to hold a hearing within the ten-day period required by the statute and requesting plaintiff’s reinstatement with back pay pending the commission’s decision. The commission held the hearing on March 11 and 12, 1977. Following an April 6, 1977, show cause hearing on the complaint for a writ of superintending control, the Wayne Circuit Court, Joseph A. Moynihan, Jr., J., acting for John R. Kirwan, J., issued an order dated April 7, 1977, that plaintiff be reinstated with back pay pending the commission’s determination but denying plaintiffs other requested relief. On April 18, 1977, the commission reached its decision and affirmed plaintiffs discharge.

      References for Points in Headnotes
    [1, 2, 5] 15A Am Jur 2d, Civil Service § 68. 70 Am Jur 2d, Sheriffs, Police, and Constables § 15.
    [3, 4] 61 Am Jur 2d, Pleadings §§ 47-49, 121.

       5 Am Jur 2d, Appeal and Error § 962.

      On July 15, 1977, Jacobs filed a second complaint for a writ of superintending control, which sought an order directing the civil service commission and the City of Highland Park to return plaintiff to his position as a policeman. In the alternative, if the writ of superintending control was not issued, the complaint requested that the circuit court review the matter as an appeal on the merits. A hearing was held on November 7, 1977. At that hearing, Judge Kirwan indicated that he would review the entire case on the merits upon the filing with the court of a copy of the commission’s March hearing. On July 10, 1978, Judge Kirwan issued an order denying the writ of superintending control without prejudice to any statutory appeal of the matter, Judge Kirwan concluding that the commission was not divested of jurisdiction by the failure to hold the hearing within the statutory ten-day period and that the question of any prejudice caused by the adjournment of the hearing should be decided in an appeal on the merits. Plaintiff appeals. Held:

    1. The use of the word "shall” in the provision of the act establishing civil service for fire and police departments which provides for a hearing before the civil service commission within ten days after the filing of charges relative to the discharge or reduction in rank of a covered employee makes adherence to the temporal limitation mandatory rather than directory in nature.
    2. The failure of the civil service commission to hold a hearing on the charges brought against plaintiff officer within the temporal limitation mandated by the statute does not render the commission’s determination void ab initio. The failure of the commission to hold the hearing within the statutorily mandated ten-day period rather renders its determination voidable upon a showing that the delay in holding the hearing resulted in material prejudice to the plaintiff.
    3. Since plaintiff requested appeal on the merits as alternative relief in the event that the trial court denied its request for a writ of superintending control and since the court rule in effect at the time of the filing of plaintiff’s complaint permitted the pleading of such alternative relief, the circuit court, upon properly concluding that a writ of superintending control should not issue because of the existence of the right to review by an appeal, should have considered the matter as an appeal on the merits.
    4. A remand to the circuit court for the purpose of determining on the merits plaintiffs appeal of the commission’s decision, including a determination of whether the delay in the commission’s hearing materially prejudiced plaintiff, is necessary. The circuit court shall submit written findings to the Court of Appeals within 90 days following the release of this opinion.
    Remanded with instructions. The Court of Appeals retains jurisdiction.
    1. Civil Service — Police and Fire Departments — Discharge — Notice — Hearing — Statutes.
    The use of the word "shall” in the provision of the act establishing civil service for municipal fire and police departments which provides for a hearing within ten days of the filing of charges relative to the discharge or the reduction in rank of a covered employee makes adherence to that temporal limitation mandatory rather than directory in nature (MCL 38.514; MSA 5.3364).
    2. Civil Service — Police and Fire Departments — Discharge — Hearing — Void Acts — Voidable Acts — Material Prejudice — Statutes.
    A determination of a municipal civil service commission relative to the removal of a police officer where the commission fails to hold a hearing on the charges relative to the removal of the officer within the ten-day period mandated by the statute is not void ab initio because of the failure to satisfy the temporal mandate of the statute, rather, the determination is voidable upon a showing that material prejudice to the officer resulted from the noncompliance with the statutory mandate (MCL 38.514; MSA 5.3364).
    3. Superintending Control — Court Rules — Alternative Pleading — Leave to Appeal — Former Court Rule.
    The court rule governing actions for superintending control, prior to the July 25, 1977, amendment to that rule, permitted a person bringing a complaint for superintending control to seek, in the alternative, leave to appeal; the court rule in effect prior to July 25, 1977, provided that a complaint for a writ of superintending control did not necessarily mandate dismissal where an appeal on the merits was available, rather, the rule, under such circumstances, treated a complaint for a writ of superintending control as an application for leave to appeal (GCR 1963, 711.4).
    4. Superintending Control — Court Rules — Former Court Rule — Courts — Review — Appeal on the Merits.
    A complaint for a writ of superintending control filed before July 25, 1977, which sought, in the alternative, an appeal on the merits is governed by the court rule in effect prior to July 25, 1977; accordingly, under such circumstances, a circuit court, upon determining that a writ of superintending control should not issue because of the availability of review by an appeal, should treat the matter as an appeal on the merits and proceed with review in that fashion (GCR 1963, 711.4).
    5. Civil Service — Hearing on Charges — Delay of Hearing — Material Prejudice — Appeal — Remand.
    A remand for consideration by the circuit court of the question of whether a discharged police officer was materially prejudiced by a municipal civil service commission’s delay in holding its hearing upon the charges against the officer is mandated where the circuit court failed to reach the merits of that question.

      Robert W. Larin, for plaintiff

      Gregory K. Jackson, for defendants.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Cynar, J.

On July 15, 1977, plaintiff filed a complaint for a writ of superintending control in Wayne County Circuit Court which sought an order directing the defendants to return the petitioner to his position as policeman with full back pay, and, in the alternative, if the writ of superintending control was not granted, requested that the circuit court review the matter as an appeal on the merits. On July 10, 1978, the circuit court issued its order denying a writ of superintending control without prejudice to bringing an appeal on the merits, concluding the civil service commission did not divest itself of jurisdiction by failing to hold a hearing within ten days of the filing of charges against him, as provided for in the statute. Further, the court held that the question of whether the plaintiff had been unfairly prejudiced by adjourning the hearing beyond the ten-day period could be considered if the plaintiff decided to appeal the matter on the merits to the circuit court, including the filing of a complete transcript of the civil service commission proceedings.

This case concerns the discharge of the plaintiff, a City of Highland Park police officer. On October 14, 1976, plaintiff was involved in an incident wherein his gun discharged, striking a fellow officer. Criminal charges were brought against the plaintiff stemming from the incident. On the date of the occurrence, the plaintiff was relieved of active duty by his police chief and was told not to return to work until further notice, and his pay was stopped.

On October 26, 1976, the plaintiff received a statement of charges brought against him by the police department arising out of the shooting. On the same day, he answered the charges in writing and requested a hearing within ten days, pursuant to § 14 of the civil service for fire and police departments act ("act”), MCL 38.514; MSA 5.3364.

On November 1, 1976, attorneys for the plaintiff and defendants stipulated to a waiver of the ten-day hearing requirement under the act, provided the hearing would be held on November 24, 1976.

The hearing was started on November 24, 1976, as agreed. Two of the three-member defendant commission were present, the third having died a few weeks earlier. On November 24, 1976, the hearing was commenced and, after the first witness was sworn, the hearing was adjourned without date. The reason given was that continuation of the testimony could jeopardize the pending criminal case against plaintiff that was scheduled for trial in a couple of days. Plaintiff objected to the adjournment, contending the commission intentionally adjourned the hearing because it knew the testimony of the witness would be favorable to the plaintiff and the witness might not be available later.

On February 14, 1977, plaintiff filed a complaint for a writ of superintending control in the Wayne County Circuit Court, requesting the circuit court to issue an order requiring the civil service commission to show cause why the charges should not be dropped for failure to give the plaintiff a hearing within ten days. A request was also made to reinstate the plaintiffs back pay pending a commission decision.

On March 11 and 12, the commission held a hearing on the charges brought against the plaintiff. A transcript of the hearing was not filed in the circuit court as part of the record on appeal. A third commissioner was appointed on March 12, 1977.

On April 6, 1977, the circuit court, after a show cause hearing on the complaint for a writ of superintending control filed in February 1977, ruled that the plaintiff was entitled to remain in office pending the commission’s decision. Further, the court determined that the commission did not abandon the right to hold the hearing by not complying with the ten-day rule, and that the plaintiff was not harmed since the commission was ordered to reinstate the plaintiff pending its decision; however, the question of the timeliness of the hearing could be raised in the appeal on the merits.

The City of Highland Park filed a motion to intervene, which motion was granted on April 19, 1977. The circuit court issued an order effective April 7, 1977, requiring plaintiff be reinstated with back pay until such time as the commission reached a decision. The commission reached a decision on April 18, 1977, affirming the discharge of the plaintiff.

As previously indicated, on July 15, 1977, plaintiff filed a complaint which is the subject of this appeal. On November 7, 1977, a show cause hearing was heard on the complaint. The court indicated it would not decide the case piecemeal and, upon a transcript of the civil service commission hearing being submitted, the court would be prepared to make a decision on all the issues. The record submitted herein indicates that both counsel understood the position of the circuit court. The record, however, is not helpful in explaining why the lower court did not ultimately review the entire proceeding, including the appeal on the merits, as appears to have been the understanding of all concerned at the November 7, 1977, hearing. On July 10, 1978, the circuit court merely issued an order denying the motion for superintending control without prejudice to the filing of any future appeal on the merits. Plaintiff appeals and raises one question for review.

Did the lower court err in denying the writ of superintending control based upon plaintiff's allegation that the commission's failure to hold a hearing within ten days of the request divested the commission of jurisdiction?

Section 14 of the act reads, in pertinent part, as follows:

"If the person sought to be removed or reduced shall demand it, the civil service commission shall grant him a public hearing, which hearing shall be held within a period of 10 days from the filing of the charges in writing and a written answer thereto. Pending the period between the making of the charges as a basis for removal and the decision thereon by the commission the member shall remain in the office.” MCL 38.514; MSA 5.3364.

Use of the word "shall” makes the procedure mandatory, not merely directory. Lawson v Wayne Community School District, 63 Mich App 57, 60; 233 NW2d 713 (1975). Therefore, the commission was required to hold the hearing within ten days from the filing of the charges in writing and a written answer thereto. Both parties waived the ten-day rule as provided under MCL 38.514 with the understanding that the hearing requested would be adjourned only to November 24, 1976.

The hearing was started on November 24, 1976, but adjourned by the commission after the first witness was sworn but before any material testimony was taken. The plaintiff’s attorney objected to the adjournment, contending that the witness would have testified favorably in behalf of the plaintiff, would be returning to Florida and might not be available at a later date. The reason given for the adjournment by the commission’s attorney was that the pending criminal trial could be prejudiced by the testimony. The circuit court in its opinion of July 10, 1978, indicated that the hearing was adjourned apparently for the reason that one of the three members on the civil service commission had died and no one had been appointed to fill that vacancy. The hearing was not reconvened until March 11, 1977.

Although the commission did not comply with the mandate of the statute concerning the ten-day rule, the question is whether that noncompliance renders the commission’s decision to discharge the plaintiff void. While no cases directly interpret the ten-day provision, a number of cases are helpful in our determination that the charges in the case at bar are not void ab initio, but merely, are voidable upon a determination of material prejudice to plaintiff as a result of the noncompliance.

Plaintiff cites Davis v River Rouge Board of Education, 73 Mich App 358; 251 NW2d 585 (1977), as supporting his contention that reinstatement with back pay is mandated by the commission’s failure to follow the correct procedures. The opinion cited states that the teacher tenure commission’s failure to provide the discharged teacher with a copy of the transcript of the hearing within the time limits of the statute requires reinstatement of the teacher. However, the Court of Appeals decision was reversed by the Michigan Supreme Court. See Davis v River Rouge Board of Education, 406 Mich 486; 280 NW2d 453 (1979). The Supreme Court held that reinstatement is not the proper remedy. The Court stated that the tolling of the appeals period is a more appropriate remedy than reinstating a teacher who may be unfit and who has not been prejudiced by the delay in receiving the transcript.

In Solomon v Highland Park Civil Service Comm, 47 Mich App 536; 209 NW2d 698 (1973), the city failed to file the charges against the police officer within 90 days as required under § 14 of the act. The act states that "all charges shall be void unless filed within 90 days of the date of the violation”. The statement of charges not having been filed within 90 days, the plaintiff was reinstated. Solomon is distinguishable from the case at bar because the statute states unequivocally that charges not filed within 90 days are void, whereas the statute does not state the remedy for noncompliance with the ten-day rule.

In Montiy v Civil Service Board of East Detroit, 54 Mich App 510; 221 NW2d 248 (1974), the Court interpreted the city’s civil service rule that • requires the employee be given notice of the reasons for suspension within 24 hours after the suspension takes effect. The plaintiffs received notice of suspension 16 to 18 hours beyond the 24-hour period. The lower court dismissed the complaint for superintending control. Plaintiffs alleged that noncompliance with the 24-hour rule voided the proceedings.

This Court noted that plaintiffs did not allege that they were not afforded procedural due process or suffered any other prejudice. In upholding the lower court’s dismissal of the complaint for superintending control, the Court looked to the Administrative Procedures Act for the standard of review. The Court held:

"Finally, while the actions of a city civil service commission do not come within the scope of the Administration Procedures Act, MCLA 24.201, et seq.; MSA 3.450(101), et seq.; we nevertheless believe that an examination of that act’s provisions indicates the legislative intent in regard to the effect of procedural errors in administrative actions.
"MCLA 24.306; MSA 3.560(206) provides:
" '(1) Except when a statute or the constitution provides for a different scope of review, the court shall hold unlawful and set aside a decision or order of an agency if substantial rights of the petitioner have been prejudiced because the decision or order is any of the following:
" '(c) Made upon unlawful procedure resulting in material prejudice to a party.’ (Emphasis supplied.)
"The key to this section is the phrase 'material prejudice’. We believe that such a showing is embodied within and crucial to the issuance of any order of superintending control in regard to procedural irregularities of an administrative tribunal. Admittedly there was no material prejudice in this case. Consequently we believe that the order of superintending control was - properly denied.” Id., 515-516.

Defendant argues that a writ of superintending control as an extraordinary remedy is not the appropriate remedy here since the statute gives the plaintiff review on the merits in the circuit court. Section 14 of the act reads, in relevant part, as follows:

"In the event that the civil service commission shall sustain the action of the removing officer the person removed shall have an immediate right of appeal to the circuit court of the county wherein the city, village or municipality is situated. Said appeal shall be taken within 90 days from the entry from the civil service commission of its final order; upon such an appeal being taken and docketed with the clerk of the circuit court of said county, the circuit court shall proceed to hear the appeal upon the original record taken therein and no additional proof shall be permitted to be introduced. The circuit court’s decision shall be final, saving the employee, however, the right to petition the supreme court for a review of the court’s decision.”

The relief requested in the complaint entitled, "Petition for Writ of Superintending Control”, encompasses both issuance of a writ of superintending control in the event the lower court finds the commission was without jurisdiction and also appeal on the merits. At the hearing on the complaint on November 7, 1977, the lower court stated that it would review the entire case on the merits once a copy of the March hearing transcript was received. Whether the transcript of the March hearing was filed is unknown to us. Further, no light is shed as to why the trial court did not proceed as it indicated it would at the November 7, 1977, hearing. The opinion of July 1978 indicates that the court considered the complaint for a writ of superintending control only to the extent that it related to the issue of jurisdiction and did not consider the merits of the other issues presented. The court stated that the adjournment did not divest the commission of jurisdiction. The court then held:

"If the plaintiff was unfairly prejudiced by this second adjournment, it is this Court’s belief that such matters should be considered on an Appeal on the merits. It is, therefore this Court’s view that the Motion for Superintending Control should be denied without prejudice and the plaintiff may, if he so desires, file with this Court a Claim of Appeal on the merits, along with a complete transcript of the proceedings held before the Civil Service Commission.”

The defendant correctly cites GCR 1963, 711.2 which states:

"Policy Concerning Use. If another adequate remedy is available to the party seeking the order, a complaint for superintending control may not be filed. See GCR 1963, 701.1(b); 711.4(b); 862.5(a).”

Moreover, GCR 1963, 711.4(b) states:

"When an appeal in the Supreme Court, the Court of Appeals, or the circuit court is available, that method of review must be used. If superintending control is sought and an appeal is available, the complaint for superintending control must be dismissed.”

A literal reading of these subsections would support dismissal of a writ of superintending control where the underlying statute gives the petitioner the right to appeal in the circuit court.

It must be noted that the quoted language of GCR 1963, 711.4 was not added to the court rule until July 25, 1977, after plaintiff had filed his complaint in this action. The former rule was more liberal in that it did not mandate dismissal of an application for a writ of superintending control where appeal on the merits was available, but instead, treated it as an application for leave to appeal. Prior practice thus allowed pleading in the alternative in situations such as in this case. Although permissible under prior practice, we do not intend to intimate that the present version of GCR 1963, 711 countenances such alternative pleading. If anything, it expressly precludes it, requiring an appeal on the merits, when available, as an exclusive method of review. Necessarily, pleadings in these cases must reflect such exclusivity of remedy.

However, since alternative relief was requested in the petition controlled by the prior version of GCR 1963, 711, the appeal to the circuit court should have been treated as seeking, alternatively, a writ of superintending control or an appeal on the merits. It appears, based on the record of the November 7, 1977, hearing, that the circuit court was proceeding in such a direction. However, an appeal on the merits in this case would necessitate submission of the transcript of the March civil service commission hearing for the court’s consideration. The plaintiff should have filed the transcript of the March 1977 civil service proceeding to enable the court to fully decide this action.

This matter is remanded to the circuit court to review the entire matter, including the record of the March 1977 civil service hearing. The trial court shall make a specific determination as to whether or not the plaintiff was materially prejudiced by the delay in holding the hearing following the second adjournment on November 24, 1976. The trial court shall submit written findings to this Court within 90 days following the date of release of this opinion. No costs are awarded. We retain jurisdiction.

       MCL 38.514; MSA 5.3364.

       MCL 24.201 et seq.; MSA 3.560(101) et seq.


author: Mackenzie, P.J. D. F. Walsh, J.

text:
    DAVIS v CITY OF DETROIT
    Docket No. 78-3580.
    Submitted December 4, 1979, at Detroit.
    Decided July 22, 1980.
    Plaintiffs, Joe and Mattie Davis, brought suit for damages sustained by them because of injuries to Joe Davis while working on a construction project for defendant. Defendant moved for summary judgment based on the defense of governmental immunity. The Wayne Circuit Court, Patrick J. Duggan, J., denied defendant’s motion. Defendant appeals by leave granted. Subsequently, plaintiffs moved to file an amended complaint to plead nuisance in fact, which the Court of Appeals granted. Held:

    1. Due to the magnitude and public importance of defendant’s sewer project, its construction constituted a governmental function, and, thus, defendant is immune from tort liability arising from the construction, and the trial judge should have granted defendant’s motion for summary judgment as to plaintiffs’ allegations of negligence.
    2. Plaintiffs’ having pled sufficient facts to allege an intentional nuisance necessitates reversal, and on remand the existence of a nuisance and whether or not it was intentionally created are questions for the trier of fact.
    Affirmed in part, reversed in part.
    References for Points in Headnotes
    [1, 4] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 25, 97 et seq.

    72 Am Jur 2d, States, Territories, and Dependencies §§ 104-117.
    Municipal immunity from liability for torts. 60 ALR2d 1198.

       57 Am Jur 2d, Municipal,’School, and State Tort Liability §§ 31-34.
    Municipal immunity from liability for torts. 60 ALR2d 1198.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 293-305.
    58 Am Jur 2d, Nuisances § 141.

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 192-194.
    Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability. 57 ALR2d 1336.

      D. F. Walsh, J., dissented. He would hold that the defendant is not entitled to the defense of governmental immunity. He would affirm.
    Opinion of the Court
    1. Negligence — States — Governmental Immunity.
    The basic guideline to be employed in determining whether an agency of the government is immune by statute from tort liability is whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government; unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this perimeter, although performed by a governmental agency, are not governmental functions and therefore not immune.
    2. Negligence — States — Governmental Immunity — Proprietary Functions — Pecuniary Profits.
    The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function, i.e., any activity conducted primarily for the purpose of producing a pecuniary profit for the state, excluding any activity normally supported by taxes or fees.
    3. Nuisance — Question of Fact — Trier of Fact — Trial.
    Whether or not a particular thing or act creates a nuisance, and whether the nuisance was created intentionally or negligently, are questions of fact to be determined by the trier of fact.
    Dissent by D. F. Walsh, J.
    4. Negligence — States — Governmental Function.

      The construction of even a vast and complex sewer system is not an activity which can be effectively accomplished only by the government, and, thus, does not entitle the government agency responsible for it to immunity from tort liability.

      The Jaques Admiralty Law Oíñces, P.C. (by Robert E. Swickle), for plaintiffs.

      Harvey, Kruse & Westen, P.C. (by Dane A. Lupo and Kirt B. DeVries), for defendant.

      Before: Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   Mackenzie, P.J.

Plaintiff Joe Davis sustained an injury on March 3, 1973, while working in a tunnel under the Clinton River in Macomb County on a construction project involving defendant City of Detroit’s sewer facilities. After plaintiffs filed suit for damages, defendant moved for summary judgment based on the defense of governmental immunity. On September 8, 1977, defendant’s motion was denied by the trial court. Defendant appeals by leave granted on October 13, 1978.

Defendant argues that the trial court erred in denying summary judgment on the ground of governmental immunity. The statutory provision that deals with tort liability of a governmental agency, MCL 691.1407; MSA 3.996(107), provides in part:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function.”

In Beauchamp v Saginaw Twp, 74 Mich App 44; 253 NW2d 355 (1977), a panel of this Court held that the construction of sewers as a public health measure is a governmental function. However, in light of the recent construction of the term "governmental function” by the Michigan Supreme Court in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978), it is necessary to reexamine this issue.

In Parker, the Michigan Supreme Court, in three separate opinions, dealt with the construction of the term "governmental function”. Justice Fitzgerald, with Justices Kavanagh and Levin concurring, stated that the term was limited to activities that are "of essence to governing”; he was unable to conclude that the operation of a public hospital was a governmental function since it was not an activity that could be performed only by the government.

In a separate opinion, Justice Moody reached the following conclusion:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous. However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning, and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activites that fall outside this perimeter, although performed by a government agency, are not governmental functions and therefore not immune.” 404 Mich 183, 200.

Justice Moody agreed that the operation of a public general hospital is not a governmental function. However, in Perry, he disagreed with Justices Fitzgerald, Levin, and Kavanagh and concluded that the operation of a public mental hospital was a governmental function. He noted the pervasive role of the government in the mental health area and stated that mental hospitals perform a unique activity mandated by the Legislature. He did not find it determinative that private mental hospitals perform a similar function. Rather, he stressed that the number of private mental health facilities was inadequate to deal effectively with the substantial institutional needs of the public and to process probate and circuit court commitment proceedings. 404 Mich 205, 214.

Recently, in Rubino v Sterling Heights, 94 Mich App 494; 290 NW2d 43 (1979), a panel of this Court, relying on Parker, held that a municipal water system was not a governmental function. The Court reasoned that the public’s demand for water could be met by the private sector; citizen participation in the activity was not mandatory; and potential tort liability could be taken into consideration as a cost of doing business. See also Ross v Consumers Power Co, 93 Mich App 687; 287 NW2d 319 (1979), where construction of a drain was held not to constitute a governmental function.

However, due to the magnitude and public importance of the sewer project in question, we believe its construction constituted a governmental function. The project was begun in 1962 as the result of a study done for the Inter-County Drain Committee representing the counties of Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne in Southeastern Michigan. It was recommended that the City of Detroit’s sewage disposal project be expanded to cover the larger metropolitan area.

By 1966, increased pollution of the Clinton River prompted the Michigan Water Resources Commission (MWRC) to deny disposal permits. This directly affected Macomb County, which had previously dumped its effluent into the river, and the City of Detroit, as the river emptied into the Great Lakes upstream, polluting the city’s raw water intake. Soon thereafter, the City of Detroit entered into a contract with Macomb County to provide sewage disposal with the express goals of serving the public and enhancing the water quality of the Great Lakes.

The project was funded by Federal grants (55 percent), state grants (25 percent), and a bond issue by the City of Detroit (20 percent). It involved a total expenditure of $100,700,000 and was designed to handle the effluent of all six counties.

Like mental health, sewage treatment is an area subject to pervasive state regulation. See generally, MCL 46.171 et seq.; MSA 5.2767(1) et seq., MCL 123.241 et seq.; MSA 5.2661 et seq., MCL 323.151 et seq.; MSA 5.2769(81) et seq., and MCL 325.151 et seq.; MSA 14.1008 et seq. Under those provisions, the Legislature has authorized local government units to own, acquire, construct, equip, operate, and maintain sewage treatment facilities, subject to inspection and certification by the state health commissioner. It is possible for local government units to grant franchises to private individuals to own and operate sewage treatment facilities, MCL 123.245; MSA 5.2665. However, the size of the project herein, in terms of cost, volume of effluent, and water pollution control, convinces us that it could not be effectively coordinated by a private individual or company in the best interests of the public.

Plaintiffs also argue construction of the project constituted a "proprietary function” such that defendant was not entitled to immunity pursuant to MCL 691.1413; MSA 3.996(113):

"The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined. Proprietary function shall mean any activity which is conducted primarily for the purpose of producing a pecuniary profit for the state, excluding, however, any activity normally supported by taxes or fees.”

Charges imposed by the City of Detroit herein are based upon the cost of the system and are used to pay current expenses of administration and operation, with the remainder to be applied toward principal and interest on bonds outstanding. No amount is permitted to leave the sewer system to be deposited in the city’s general fund. It is also evident that, based on current charges, the city will be hard-pressed to recoup its initial investment. We are convinced that the primary purpose of the project is to deal with disposal problems while protecting the environment. In summary, plaintiffs have not persuaded us that defendant has derived a peculiar benefit from the construction of the sewers in question. See Beauchamp, supra, 74 Mich App 44, 52.

Finally, it must be determined whether our order of November 29, 1979, permitting plaintiffs to amend their complaint to plead nuisance in fact necessitates remand. To prevail, plaintiffs must plead sufficient facts to allege an intentional nuisance in fact. Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), Rosario v City of Lansing, 403 Mich 124; 268 NW2d 230 (1978), Affiliated FM Ins Co v Dep’t of State Highways & Transportation, 86 Mich App 203; 272 NW2d 239 (1978).

We believe that remand is mandated due to our Supreme Court’s determination that "whether or not the particular thing or act creates a nuisance” and whether the nuisance was created intentionally or negligently, are questions of fact to be determined by the trier of fact. Rosario, supra, 403 Mich 124, 142; Gerzeski, supra, 403 Mich 149, 160.

In examining plaintiffs’ amended complaint, we note that most of plaintiffs’ allegations, that defendant failed to inspect, coordinate and supervise work activities, failed to provide safety standards and a safe work environment, and neglected to assure that employees would not be subjected to the use of hazardous tools and equipment, sound in negligence. See Rosario, supra, 403 Mich 124, 143. However, plaintiffs also allege that defendant deliberately engaged in construction activities involving the use of dangerous tools and equipment creating the alleged nuisance and failed, upon ascertaining the failure of the contractor to implement adequate safety precautions, to institute its own safety precautions. These allegations, implying that defendant had knowledge of the nuisance but failed to correct the situation, when liberally construed, are sufficient to withstand dismissal by accelerated judgment. However, plaintiffs must still prove at trial that the conditions alleged created a nuisance intentionally caused by defendant.

Therefore, the trial judge should have granted defendant’s motion for summary judgment as to plaintiffs’ allegations of negligence on the ground of governmental immunity. But plaintiffs may attempt to prove the existence of an intentional nuisance in fact as pled in their amended complaint.

Affirmed in part, reversed in part.

V. J. Brennan, J., concurred.

D. F. Walsh, J.

(dissenting). For the reasons stated in Ross v Consumers Power Co, 93 Mich App 687; 287 NW2d 319 (1979), I must respectfully dissent.

The construction of a sewer system, even one as vast and as complex as the one involved in this lawsuit, is not, in my judgment, an activity which "can be effectively accomplished only by the government”. Parker v Highland Park, 404 Mich 183, 200; 273 NW2d 413 (1978). Many of the power and communication systems which service this nation and other industrial nations throughout the world, and which are larger and more complex than this sewer system, were constructed and are effectively maintained and operated by private, investor-owned, utility companies.

I would affirm the trial court’s denial of defendant’s motion for summary judgment and rule that the defendant is not entitled to the defense of governmental immunity under the facts of this case.

       For the same reason, we will reconsider the decision of the Court in Northrup v City of Jackson, 273 Mich 20; 262 NW 641 (1935), that the operation of a sewage system is a governmental function.

       Although three members of the Supreme Court were of the opinion in Rosario and Gerzeski that the governmental immunity doctrine is inapplicable whenever a nuisance in fact is alleged, be it negligent or intentional, because they could not acquire a majority for this position, Justice Moody’s opinion adopting the more stringent “intentional nuisance” analysis became law.


author: M. F. Cavanagh, J.

text:
    PEOPLE v PACE
    Docket No. 78-4073.
    Submitted May 7, 1980, at Detroit.
    Decided July 22, 1980.
    Larell Pace was convicted of third-degree criminal sexual conduct in Detroit Recorder’s Court, Justin C. Ravitz, J. The defendant appeals, alleging that: (1) the prosecution failed to demonstrate due diligence in its attempts to produce the physician who examined the complaining witness; (2) the statement he gave to the police shortly after he was taken into custody was involuntary; (3) the prosecuting attorney’s cross-examination of the defendant’s brother concerning whether the brother had used an alias constituted error, and (4) he was denied effective assistance of counsel. Held:

    1. There was no due diligence by the prosecutor to locate the physician. However, the defense was one of consent. The doctor’s report indicated that evidence of intercourse was found upon examination of the victim and the complaining witness testified that the defendant struck her but that no bruises resulted from the blows. The error was harmless.
    2. The inculpatory statement made by the defendant after being taken into custody was not involuntary. The defendant was given the Miranda warnings prior to making the statement, and even though the defendant believed he was speaking with an attorney’s investigator rather than a police officer, his confession was self-induced.
    3. A witness’s use of an alias is highly probative of his credibility and where inquiries as to such use are not emphasized in an attempt to discredit the witness through innuendo they do not constitute error.
    4. The defendant was afforded representation that meets the standard for effective assistance of counsel.
    Affirmed.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 808.

       29 Am Jur 2d, Evidence §§ 555-557.
    Necessity of informing suspect of rights under privilege of self-incrimination prior to police interrogation. 10 ALR3d 1054.

       81 Am Jur 2d, Witnesses § 529.

      1. Criminal Law — Witnesses — Prosecuting Attorneys — Due Diligence — Harmless Error.
    v Failure to produce the physician who examined the victim in a criminal sexual conduct case was harmless error where there was no due diligence to locate him but where the defense was one of consent and the doctor’s report indicated that evidence of intercourse was found upon examining the victim and the complaining witness testified that the defendant struck her but that no bruises resulted from the blows.
    2. Criminal Law — Inculpatory Statements — Involuntary Statements — Constitutional Law.
    An inculpatory statement made by a defendant after being taken into custody will not be considered involuntary where the defendant was given the Miranda warnings prior to making the statement, even though the defendant believed he was speaking with an attorney’s investigator rather than a police officer when making the statement where the defendant’s confession was self-induced.
    3. Witnesses — Aliases — Credibility — Inquiries — Harmless Error.
    A witness’s use of an alias is highly probative of his credibility and where inquiries as to such use are not emphasized in an attempt to discredit the witness through innuendo they do not constitute error.

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

      Robert E. Slameka, for defendant on appeal.
    Before: Beasley, P.J., and M. F. Cavanagh and W. A. Porter, JJ.

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

   M. F. Cavanagh, J.

Defendant was convicted by a jury of third-degree criminal sexual conduct, MCL 750.520(d); MSA 28.788(4), and was sentenced to a term in prison from 3-1/2 to 15 years. He claims this appeal by right.

Defendant first contends that the prosecution failed to demonstrate due diligence in its unsuccessful attempts to produce an endorsed res gestae witness, the examining physician. The trial court found, at the motion hearing for a new trial, that there was no absence of due diligence, that the jury was given a due diligence instruction, and that the absence of the witness was not prejudicial to the defendant. The complaining witness was examined by the physician on September 20, 1977. The physician left the hospital at which he worked on November 30, 1977, and returned to his native country, Turkey, on December 8, 1977. Police efforts to produce the physician included a telephone call to the hospital where he worked "early in December, 1977”, at which time it was learned that "the doctor was to return to Turkey”, and one other telephone call to immigration authorities on January 24, 1978, which established that the doctor had left the country on December 8, 1977. Additionally, the physician’s office was called and his telephone was found to have been disconnected, but no date was given for that call. Sometime after the trial began on February 14, 1978, the jury was told that the doctor had left the country due to his expired visa, but they were instructed that, if this explanation was not satisfactory to excuse his nonproduction as a trial witness, they could infer that his testimony would have been unfavorable to the prosecution.

These efforts on behalf of the prosecution to produce the doctor at trial do not convince us that due diligence was shown. For instance, at the in-trial hearing on this matter, the prosecutor indicated that he had been aware of the doctor’s impending departure and had preserved testimony by deposition for a different case, although he was unaware of the doctor’s involvement in the present case. Also, the police officer’s testimony suggests that after the telephone call in early December, it was still possible that the doctor was in the area, yet no further attempt was made to locate him until late January. People v Willie Pearson, 404 Mich 698, 716-717; 273 NW2d 856 (1979).

Despite the lack of due diligence, however, we find that this failure constitutes harmless error. Defendant’s defense was one of consent. The trial judge requested that the prosecution subpoena the doctor’s report on the examination of the complaining witness so that it could be reviewed at the hearing on the motion for a new trial. That report was read into the record at the hearing, and it indicated that evidence of intercourse was found. The complaining witness testified that defendant threatened her repeatedly and that he struck her but that no bruises resulted from the blows. Given these circumstances, we affirm the finding of the trial court that no reversible error occurred through the nonproduction of the doctor. Pearson, supra, 725.

Next, defendant argues that his statement given to the police shortly after being taken into custody and after he was given the Miranda warnings was involuntary because he thought he was speaking to an investigator for an attorney. The statement was inculpatory to the extent that defendant admitted meeting the complainant on the night in question, driving around with her and eventually stopping on a side street where they discussed religion for about three hours. At that point, however, defendant ceased talking and requested an attorney. A motion to suppress was made during trial at which time a separate hearing was conducted. The trial court ruled at the hearing on the motion for a new trial that the statement was given voluntarily. Defendant admitted that he had been given the Miranda warnings prior to speaking with the officer and that he had signed a copy thereof. He was unable to explain how he became aware that the perceived investigator was actually a police officer. None of the practices condemned with regard to taking defendant’s statements in People v Brannan, 406 Mich 104; 276 NW2d 14 (1979), are evident here. It appears that defendant’s alleged confusion was self-induced and, thus, we affirm the ruling of the trial court on this issue.

Defendant also takes issue with certain cross-examination of the defendant’s brother where the prosecutor asked him whether he had ever used an alias in general or two different, specific names. These questions were not objected to at trial, but were mentioned in defendant’s motion for a new trial. In ruling upon this argument, the trial court stated that such inquiries could become a problem where they are replete throughout the record, but one isolated instance as this was not a problem. This Court has stated that a witness’s use of an alias is highly probative of his or her credibility. People v Dietrich, 87 Mich App 116, 139; 274 NW2d 472 (1978). Where, as here, the inquiries are not emphasized in an attempt to discredit a witness through innuendo, especially when the witness was the defendant’s brother, they do not constitute error.

Defendant’s final contention is that he was denied effective assistance of counsel by virtue of two mistakes committed by his trial counsel. They were that no pretrial motion to suppress defendant’s statement was made, and, that defense counsel through his questioning allowed the jury to become aware of the fact that defendant had curtailed his statement by invoking his Fifth Amendment privilege. Concerning the first mistake, defense counsel did instigate a hearing on the voluntariness of defendant’s statement, albeit at trial, and it was found to be admissible. Our above review of that determination makes it clear that the statement was not obtained illegally, and thus, it is clear that a failure to litigate the issue prior to trial had little effect upon defendant’s conviction. People v Degraffenreid, 19 Mich App 702, 714-715; 173 NW2d 317 (1969). Defendant had terminated his statement to the police in mid-sentence as he was saying, "We sat there for three hours talking about religion * * After ruling that the statement was admissible, the trial court cautioned counsel not to mention defendant’s assertion of his right to an attorney. Nevertheless, defense counsel questioned the officer as to the completeness of the statement and as to the fact that the last sentence ended with a comma. This was deemed to have opened the door to the prosecution’s inquiry as to why the statement was incomplete. The jury was instructed that defendant’s assertion of the privilege was not to be taken in a prejudicial manner. Defense counsel, in support of his theory of consent, elicited from the complainant the admission that she and defendant had discussed sex. By demonstrating that defendant’s statement was incomplete he was able to bolster this theory by indirectly adding to defendant’s statement the fact that they had also discussed sex. A failure to show the statement’s incompleteness may have negated that contention. This appears to be a conscious choice of trial strategy and we find that defendant was afforded representation that meets the standard adopted in People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976).

Affirmed.

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