author: Beasley, J. R. M. Maher, J.

text:
    PEOPLE v ORSIE
    Docket No. 30864.
    Submitted January 4, 1978, at Grand Rapids.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Billie J. Orsie was convicted by a jury in St. Joseph Circuit Court, Robert E. A. Boyle, J., of attempting to break and enter a safe with intent to commit larceny and of willfully or maliciously burning a building. On appeal, defendant alleges as reversible error that tracking-dog evidence introduced at trial lacked sufficient foundation for introduction and that his conviction on the circumstantial evidence introduced amounted to piling inference upon inference from the same evidence. Defendant appeals. Held:

    1. Four conditions precedent must be satisfied before tracking-dog evidence is to be admitted: (a) it is necessary to show that the handler is qualified to handle the dog; (b) it must be shown that the dog was trained and accurate in tracking humans; (c) it is necessary to show that the dog was placed on the trail where circumstances indicate the culprit has been; and (d) it is necessary to show that the trail had not become stale when the tracking occurred.
    2. Failure to object to admission of evidence precluded appellate review.
    3. There is nothing inherently wrong with basing a valid inference upon a valid inference.
    4. What is actually meant by the rule against basing an inference upon an inference is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.
    Affirmed.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 378, 379.
    30 Am Jur 2d, Evidence § 1146.
    Evidence of trailing by dogs in criminal cases. 18 ALR3d 1221.

       75 Am Jur 2d, Trial § 166.

       29 Am Jur 2d, Evidence §§ 166, 211.
    Modern status of the rules against basing an inference upon an inference or a presumption upon a presumption. 5 ALR3d 100.

       30 Am Jur 2d, Evidence §§ 1170-1172.

       30 Am Jur 2d, Evidence § 1125.

      R. M. Maher, J., concurred with the affirmation of defendant’s conviction for attempting to break or enter a safe with intent to commit larceny but dissented from the affirmation of defendant’s conviction of willfully or maliciously burning a building and from the majority’s abandonment or the "no inference upon an inference” rule. He would hold that pyramiding of inferences is improper and that the prosecution, to sustain a conviction upon circumstantial evidence, must present evidence that not only points to defendant’s guilt but also negates any reasonable theory or innocence.
    Opinion of the Court
    1. Criminal Law — Evidence—Tracking-Dog Evidence — Admissibility — Proper Foundation.
    Tracking-dog evidence is admissible in criminal cases where a proper foundation is laid showing that (1) the handler is qualified to handle the dog; (2) the dog is trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the culprit to have been; and (4) the trail had not become stale when the tracking occurred.
    2. Criminal Law — Evidence—Admissibility—Preserving Question.
    Failure to object to the admission of evidence precludes appellate review.
    3. Criminal Law — Evidence—Inferences—Inference Based on Inference.
    There is nothing inherently wrong or erroneous in basing a valid inference upon a valid inference; what is actually meant by the statement that an inference cannot be based upon an inference is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.
    Concurrence in Part, Dissent in Part by R. M. Maher, J.
    4. Criminal Law — Evidence—Inferences—Inference Based on Inference.

      Pyramiding of inferences is impermissible.

      5. Criminal Law — Evidence—Inferences—Inference Upon an Inference.

      The "no inference upon an inference” rule cannot be abandoned because a simpler concept is unsuitable to the complex nature of the evidentiary questions involved and because, in certain

      cases, abandonment would deprive a defendant of his right to have each element of the crime proven beyond a reasonable doubt.

    6. Criminal Law — Prosecutors—Evidence—-Circumstantial Evidence — Burden op Proof.

      The prosecution, to obtain a conviction upon circumstantial evidence, must present evidence that not only points to defendant’s guilt but also negates any reasonable theory of innocence.

      Kathleen M. Cummins, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. F. Walsh, P. J., and R. M. Maher and Beasley, JJ.
   Beasley, J.

Defendant, Billie Joe Orsie, was convicted by a jury, under count one, of attempting to break or enter a safe with intent to commit larceny in violation of MCL 750.531; MSA 28.799 and, under count two, of wilfully or maliciously burning a building in violation of MCL 750.73; MSA 28.268. Under count one, he was sentenced to not less than 10 nor more than 15 years in prison and, under count two, he was sentenced to not less than 6 years 8 months nor more than 10 years, the sentences to run concurrently. He appeals as of right, raising two issues which he claims require reversal.

First, defendant claims there was no sufficient foundation upon which to admit tracking-dog evidence. In accordance with the majority view, Michigan admits tracking-dog evidence. But, four conditions precedent must be satisfied before such evidence is admitted. They are: 1) it is necessary to show that the handler is qualified to handle the dog; 2) it must be shown that the dog was trained and accurate in tracking humans; 3) it is necessary to show that the dog was placed on the trail where circumstances indicate that the culprit was; and 4) it is necessary to show that the trail had not become stale when the tracking occurred.

Defendant claims foundation was lacking as to the dog’s training and accuracy in tracking humans.

Review of the record tends to support defendant’s assertion. However, no objection was made at trial by defendant respecting the qualifications of either the tracking dog or his owner-trainer. We are, therefore, left without evidence concerning the experience of the tracking dog and his owner-trainer. Since no objection was made, perhaps defense counsel was satisfied as to their qualifications and, thus, waived his right to object.

Failure to object to admission of evidence precludes appellate review; the question is deemed not preserved for appellate review.

Under MCL 769.26; MSA 28.1096, improper admission of evidence is not a basis for reversing or granting a new trial unless "after an examination of the entire cause it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”. In this case, there was not any manifest injustice in admitting the tracking-dog evidence. The testimony indicated that the officer could visually follow the tracks in the snow of shoes similar to those worn by defendant. The shoes left a distinctive print in the snow which was fully described in the testimony. The trail led from the location of the crime to the basement of an apartment building where defendant was apprehended hidden on a ledge. Thus, while the tracking-dog evidence may be described as cumulative, its addition to the overwhelming proofs against defendant did not constitute a miscarriage of justice.

Defendant also claims that the circumstantial evidence used to convict him constituted piling inference on inference based on the same evidence.

In support, defendant cites People v Atley. As indicated in Atley, the "no inference upon an inference” doctrine is a difficult concept at best.

In Atley, supra, the Court continues to pay lip service to the now generally discredited "no inference upon an inference” terminology. Indication of the ill repute in which this doctrine is held, is the following from Wigmore on Evidence:

"It was once suggested that an 'inference upon an inference’ will not be permitted, i.e. that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by several Courts, and sometimes actually enforced.” (Footnotes omitted.)
"There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. * * * In these and innumerable daily instances we build up inference upon inference, and yet no Court (until in very modern times) ever thought of forbidding it.”

A similar view is expressed in People v Eaves, citing with approval. 5 ALR3d 104-105, which states:

"The discussion of the legal effects of presumptions and inferences has evoked perhaps as much cloudy thinking and confusion of terminology as any other area of the law.
"The origin of the so-called rules against basing an inference upon an inference or a presumption upon a presumption is obscure, but statements and applications thereof appeared early in the reports and, despite the almost unanimous criticisms of legal scholars and of those courts which have gone into the matter at any length, the 'rules’ have shown amazing vitality, * * * .” (Footnotes omitted.)

In Atley, a jury convicted defendant of three counts; one, conspiracy to sell marijuana, two, unlawful possession of marijuana, and three, unlawful control of marijuana. The trial judge vacated and dismissed the Convictions for unlawful possession and unlawful control of marijuana and reduced the sentence on the conspiracy conviction. The Supreme Court reversed the conviction saying it was not "a fair inference” to infer the ultimate fact of conspiracy to sell from joint acquisition. The underlying theory of the cases that use the no inference on an inference terminology is well and accurately stated in People v Helcher, which cites an often quoted Indiana case as follows:

" 'What is actually meant by the statement found in many cases, that an inference cannot be based upon an inference, is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.’ Shutt v State (1954), 233 Ind 169 (117 NE2d 892, 894), quoted approvingly in People v Eaves (1966), 4 Mich App 457.” (Footnote omitted.)

Similarly, while we exercise the caution suggested in the Atley footnote, we find the statement in the Federal case of Dirring v United States clear and instructive:

"The defendant cautions us against 'piling inference upon inference.’ As interpreted by the defendant this means that a conviction could rarely be justified by circumstantial evidence [citation omitted.] The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. [Citations omitted.] If enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking. Reviewing the evidence in this case as a whole, we think the jury was warranted in finding beyond a reasonable doubt the picture of defendant Dirring.”

In short, we express a preference for abandoning the no inference upon an inference terminology because we believe it to be misleading and uncertain of meaning. There is nothing inherently wrong or erroneous in basing a valid inference upon a valid inference. In so indicating, we do not consider that we are acting contrary to precedents established by the Supreme Court which are, of course, binding; on the contrary, we are consistent with the substance of those decisions.

In this case, no objections were made by defendant at trial to the circumstantial evidence that convinced the jury of his guilt. Neither does defendant claim on appeal that objections should have been made at trial and sustained by the trial court. No motion for directed verdict was made by defendant at trial, either on completion of the prosecutor’s proofs or subsequent to both sides resting. No request was made for a jury instruction advising the jury that they were not permitted to pile one inference upon another. Neither was objection made in the trial court to the trial court’s instruction to the jury.

As this Court indicated in People v Horowitz, most arson cases are based upon circumstantial evidence. In affirming a conviction in Horowitz, this Court said:

"As evidence bearing upon the opportunity and motive of defendants to set the blaze, the prosecutor introduced the following facts: that the building was secured from the outside and there was no evidence of a breaking-in; that defendants were on the premises not long before the conflagration began; that it would have been easy for defendants to set the fire, although not physically present, by means of a timing device; that defendants owed three months rent; that they were indebted to the Michigan Department of Revenue for sales tax; that defendants owed $650 to the gas company; and that defendants carried $40,000 in fire insurance.”

Stated simply, the issue here is: was the circumstantial evidence sufficient for the jury to find defendant guilty beyond a reasonable doubt? In this case, the evidence indicates that a police officer saw smoke coming out of a ventilation duct in a Kentucky Fried Chicken building near Sturgis sometime shortly before 5 a.m. on January 15, 1976; that firemen and the assistant manager of the building were called; that the building had been secured around 9:20 the previous night; that a window had been broken during the night; that the store safe had been moved and damaged; that money was missing from the safe; and that there was substantial fire damage to the premises. The evidence also indicates that a police officer discovered footprints in unsullied snow with a distinctive print; that he followed these tracks to the basement of an apartment building; that he was aided by a tracking dog in following the tracks; that defendant was apprehended lying on a ledge in the basement and his tennis shoes made the same distinctive print as seen in the tracks in the snow. In the basement where defendant was apprehended, the officer found a box containing a pair of gloves and some money. There was also evidence which, if believed, indicated that there was white powder on black gloves that defendant was wearing and also on his shoes. An officer from the State Police Crime Lab testified that a comparison of the substance found on the shoes and gloves with samples of the safe insulation taken from the Kentucky Fried Chicken safe indicated that the two could have come from the same source.

A book of K-Mart paper matches was found on defendant’s person at his arrest. There was testimony that a box of K-Mart matchbooks was kept in a desk in the Kentucky Fried Chicken office. There was evidence that the desk had been rifled by the thief-arsonist. A partially burned paper match was found in the safe. That match was tested and compared with the matches found on defendant’s person. There was testimony that the match found in the safe could have come from the matchbook defendant was carrying when arrested.

With respect to the conviction of attempting to break or injure a safe with intent to commit larceny contrary to MCL 750.531; MSA 28.799, the language of the statute insofar as relevant here, is:

"Any person who, with intent to commit the crime of larceny, * * * shall attempt to break, burn, blow up or otherwise injure or destroy any safe, * * * in any building * * * shall, whether he succeeds or fails in the perpetration of such larceny * * * be guilty of a felony * * *."

From the testimony that the safe had been moved, that the safe had been damaged so as to make a hole in the upper left-hand corner of the safe big enough to reach in to the money tray where the cash had been left, a valid inference arises that an attempt had been made to break into the safe.

From the testimony of the assistant manager that there was approximately $100 in currency (bills) and $60 in coin in the safe when he locked it and that when he observed it in its damaged condition around or after 5 a.m. the next morning, none of the $160 in coin and currency was in the safe, a valid inference arises that someone had broken into the safe with intent to commit larceny.

From the testimony that tracks in the snow led from the building where the safe was to the basement of the apartment building where defendant was hidden on a ledge with his leg hanging down and with a box containing a roll of bills and a pair of gloves located about three feet from the ledge where defendant was, a valid inference arises that defendant was the person who had attempted to break into the safe with intent to commit larceny.

Without detailing the other evidence, we conclude that there was sufficient evidence to support defendant’s conviction under MCL 750.531; MSA 28.799.

With respect to the conviction for arson under MCL 750.73; MSA 28.268, the question raised by defendant has more substance. The statute under which defendant is charged provides:

"Any person who wilfully or maliciously burns any building or other real property, or the contents thereof, * * * shall be guilty of a felony * * *

The statutory definition of burn is contained in MCL 750.71; MSA 28.266, as follows:

"The term 'burn’ as used in this chapter shall mean setting fire to, or doing any act which results in the starting of a fire, or aiding, counseling, inducing, persuading or procuring another to do such act or acts.”

The State Police fire expert testified that, based upon his inspection of the subject premises five days after the incident, there had been two separate fires in the building; one in the manager’s office and the other in the storage area at the rear, and that ignition was caused by a human agent. He said the burned paper had been placed on the floor prior to the fire because there was no burning underneath the papers. He concluded ignition of the fires by a human agent because his examination of all burned materials, and materials that had been in the area of the fires’ origins and had been subjected to burning and of the areas of the building where the fires had occurred, revealed no other source of ignition.

Thus, this uncontroverted expert testimony included direct evidence (observation of the physical conditions and facts) and circumstantial evidence (valid inferences by a qualified expert).

Also, there was testimony that in the safe were found bits of brown burned paper toweling and a burned paper match. When arrested, defendant had a matchbook with some of the paper matches missing and a K-Mart matchbook cover. Defendant also had on his person a cigarette lighter which had no lighter fluid. However, while the prosecutor’s expert said the match found in the safe could have come from the book of matches taken from defendant, he was unable to say that it did come from that book.

Thus, the issue is whether this totality of evidence is sufficient for a jury to find defendant guilty of arson under MCL 750.73; MSA 28.268. Compared to Horowitz, supra, the circumstantial evidence is stronger, but the strong evidence of motive found in Horowitz is lacking. In People v Belcher, which is a murder in perpetration of arson case, this Court found credible evidence sufficient to find all of the elements established beyond a reasonable doubt.

Our job here is not to substitute our judgment for that of the jury; we only review to decide whether there was sufficient, credible evidence which, if believed, would establish the elements of the offense.

In People v Smock, the Supreme Court found sufficient evidence to sustain a guilty of arson verdict on inferences that did not appear to carry greater weight than those present here.

We conclude that there was sufficient evidence here, which, if believed, supported a jury verdict of guilty of arson.

Affirmed.

D. F. Walsh, P. J., concurred.

R. M. Maher, J.

(concurring in part; dissenting in part). I would affirm defendant’s conviction for attempting to break or enter a safe with intent to commit larceny. I cannot agree with the majority, however, that there was sufficient evidence to convict defendant of wilfully or maliciously burning a building.

Defendant’s presence in the building was inferred from footprints leading to and from that building. The tracks of those footprints, when followed, led to an apartment building where defendant was discovered hiding in the basement. The shoes worn by defendant had a pattern on their soles similar to the tracks in the snow. A box of money was found near the place defendant was hiding in the basement and safe insulation was found on his shoes and allegedly on his gloves.

It can be inferred from these circumstances that defendant was in the building. The inference is drawn from circumstantial evidence. It is not based upon uncertain or speculative facts, but upon proven facts. The inference is thus permissible. People v Eaves, 4 Mich App 457, 464; 145 NW2d 260 (1966).

In order to convict defendant of arson, however, we must infer that he was in the building and then that the matches found on his person could have come from the same book as those found at the building after the fire. Then we must infer that defendant started the fire. We draw farther and farther away from proven fact and move into the realm of speculation and possibility. Such a pyramiding of inferences is impermissible. People v Atley, 392 Mich 298; 220 NW2d 465 (1974). See also, People v Petro, 342 Mich 299; 70 NW2d 69 (1955). It deprives defendant of the right to be proved guilty beyond a reasonable doubt. People v McGregor, 45 Mich App 397; 206 NW2d 218 (1973).

The majority has simply abandoned the holding of People v Atley, supra. While stating that it exercises the caution suggested in Atley when using the language in Dirring v United States, 328 F2d 512 (CA 1, 1964), the majority in practice does not. It disregards the language in Atley which states that Dirring did not even involve an inference upon an inference, and it ignores the assertion in Atley that "the Dirring language, in its unconditional form, is clearly inadequate.” 392 Mich at 316, n 2.

The majority finds the no inference upon an inference standard to be misleading and uncertain of meaning. Yet the statement in Dirring, which the majority finds "clear and instructive”, that "if enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking” is expressly disapproved in Atley as being "too subjective a view to establish a proper jury instruction or to decide whether a case may go to the jury or be directed notwithstanding a verdict”. 392 Mich at 316, n 2.

The no inference upon an inference rule is, indeed, a difficult concept. But that is no reason to abandon it, as the majority is only too anxious to do. A simpler concept is unsuitable to the complex nature of the evidentiary question here involved. Courts must, at times, deal with difficult concepts rather than opt for their abandonment. In cases such as the present one, abandoning the concept means that defendant loses the protection of his right to be proved guilty of each element of the crime beyond a reasonable doubt.

Aside from the impermissible pyramiding of inference upon inference, defendant’s conviction for arson fails under a separate standard. It is incumbent on the prosecution to show that there is no innocent theory possible which will, without violation of reason, accord with the facts. People v Millard, 53 Mich 63; 18 NW 562 (1884), People v Spann, 3 Mich App 444; 142 NW2d 887 (1966). In order to obtain a conviction upon circumstantial evidence, the prosecution must present evidence that not only points to defendant’s guilt but also negates any reasonable theory of innocence. People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972), People v Wingfield, 62 Mich App 161; 233 NW2d 220 (1975), People v Talley, 67 Mich App 239; 240 NW2d 496 (1976).

In this case, the prosecution did not negate every reasonable theory of innocence. There is a reasonable possibility that the matches found on defendant’s person did not come from the book of matches found in the burned building. There is likewise a reasonable possibility that defendant did not use the matches to start the fire. The possibilities comprising the theory of defendant’s innocence were not negated by the prosecution. The circumstantial evidence was insufficient to support a finding beyond a reasonable doubt of defendant’s guilt. People v Talley, supra, at 243-244. I would reverse defendant’s conviction for arson.

        People v Harper, 43 Mich App 500; 204 NW2d 263 (1972); People v Norwood, 70 Mich App 53; 245 NW2d 170 (1976).

        People v Harper, supra; People v Norwood, supra.

        People v Miller, 16 Mich App 647; 168 NW2d 408 (1969).

       392 Mich 298; 220 NW2d 465 (1974).

       392 Mich 298, 315; 220 NW2d 465 (1974).

       1 Wigmore, Evidence (3d ed), § 41, pp 434-436.

       4 Mich App 457, 461; 145 NW2d 260 (1966).

       392 Mich 298, 314; 220 NW2d 465 (1974).

       14 Mich App 386, 390; 165 NW2d 669 (1968).

         People v Atley, supra, pp 315-316, n 2.

       328 F2d 512, 515 (CA 1, 1964), cert den, 377 US 1003; 84 S Ct 1939; 12 L Ed 2d 1052 (1964), reh den, 379 US 874; 85 S Ct 27; 13 L Ed 2d 83 (1964).

       37 Mich App 151, 157; 194 NW2d 375 (1971), lv den 387 Mich 753 (1972).

        People v Ferguson, 60 Mich App 302; 230 NW2d 406 (1975).

       37 Mich App 151, 157; 194 NW2d 375 (1971), lv den 387 Mich 753 (1972).

       29 Mich App 341, 352; 185 NW2d 440 (1971), lv den 384 Mich 821 (1971).

        People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975).

       399 Mich 282; 249 NW2d 59 (1976), reversing 63 Mich App 610; 234 NW2d 728 (1975). While there was the additional issue of whether, under MCL 750.73 and 750.71; MSA 28.268 and 28.266, a person can be found guilty as an aider and abetter without showing a guilty principal, the Court found that there was sufficient evidence to support jury verdicts of guilty against the defendants in an arson case even though there was no direct evidence linking defendants with the actual starting of a fire.


source: Caselaw Access Project

author: J. H. Gillis, P. J. H. L. Heading, J.

license: Public Domain

text:
    PEOPLE v DREW
    Docket No. 30877.
    Submitted November 1, 1977, at Lansing.
    Decided May 8, 1978.
    Edward L. Drew was convicted of armed robbery. Defendant appealed. Reversed, 67 Mich App 295 (1976). Defendant was retried in the Oakland Circuit Court, John N. O’Brien, J., and convicted of the same charge. Defendant appeals alleging prosecutorial misconduct, error in the jury instructions and prejudice. Held:

    1. It was error for the trial court to give an instruction limiting the jury’s consideration of defendant’s prior criminal record to the issue of credibility where the court had previously agreed to withhold that instruction, but the error was harmless where the defendant was not prejudiced by the instruction.
    2. Defendant’s allegations of prejudice arising from references by the prosecutor to "mug shot” photographs which were used to identify the defendant and from comments concerning defendant’s prior convictions during closing argument were within the bounds of fair comment on the defendant’s credibility and were not reversible error.
    Affirmed.
    Judge H. L. Heading dissented, and would find that it was fundamentally unfair and a violation of due process for a judge to renege on an agreed course of instruction, and that the references to "mug shots” were error beyond instructional cure where the defendant had not yet taken the stand and where defense counsel had not invited the error. He also would find that a jail identification bracelet which the defendant was required to wear over objection raised a potential of prejudice which outweighed the utility or convenience of the band. He would reverse because the totality of the errors denied defendant a fair trial.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 88.
    5 Am Jur 2d, Appeal and Error § 614.
    46 Am Jur 2d, Judges §§ 199, 202.
    Time for asserting disqualification of judge, and waiver of disqualification. 73 ALR3d 1238.

       5 Am Jur 2d, Appeal and Error § 801.
    29 Am Jur 2d, Evidence §§ 784, 785.
    Admissibility and prejudicial effect of admission of "mug shot”, "rogues’ gallery” photograph, or photograph taken in prison, of defendant in criminal trial. 30 ALR3d 908.

       75 Am Jur 2d, Trial §§ 260, 269, 867.

       75 Am Jur 2d, Trial §§ 867, 869.

       5 Am Jur 2d, Appeal and Error § 778.

      Opinion of the Court
    1. Appeal and Error — Judicial Disqualification — Timely Motions.
    No error can be predicated on a trial judge’s failure to disqualify himself from presiding over a trial unless the defendant timely moves for such disqualification.
    2. Criminal Law — Evidence—Photographs—Prosecutors—Mug Shots — Identification—Prejudice—Appeal and Error.
    A prosecutor’s questions to a police officer at trial regarding "mug shot” photographs of the defendant and pictures received from police sources did not result in reversible error where the questions were for the purpose of establishing what photographs were used in a photographic lineup at which the defendant was identified and where the questions were not particularly inflammatory or deliberately prejudicial.
    3. Criminal Law — Closing Argument — Prosecutors—Prior Convictions — Credibility.
    A prosecuting attorney may relate the evidence adduced at trial in his closing argument and draw conclusions therefrom; he may discuss a defendant’s prior convictions where they are relevant to the issue of the defendant’s credibility.
    4. Criminal Law — Jury Instructions — Prior Convictions — Appeal and Error — Harmless Error.
    It was error for a trial court to first grant a defense counsel’s request that an instruction limiting consideration of the defendant’s prior convictions to the issue of his credibility not be given and later to give that very instruction; the error was harmless beyond a reasonable doubt, however, where it was essentially in the defendant’s favor.
    5. Criminal Law — Appeal and Error — Harmless Error — Definition.
    Error in a criminal trial should be held harmless where it is not so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless or, if not so basic, where the appellate court can declare a belief that the error was harmless beyond a reasonable doubt.
    Dissent by H. L. Heading, J.
    6. Criminal Law — New Trial — Fair Trial — Appeal and Error— Totality of Errors.

      A defendant in a criminal case is entitled to a new trial where the totality of the errors committed during his trial deprived him of a fair trial, even where no one of the errors constituted clearly reversible error.

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

      Cooper, Shifman & Gabe, for defendant on appeal.
    Before: J. H. Gillis, P. J., and Bashara and H. L. Heading, JJ.

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

   J. H. Gillis, P. J.

Defendant was convicted by a jury of armed robbery, contrary to MCL 750.529; MSA 28.797, and sentenced to serve 15 to 30 years in prison. He now appeals as of right, raising seven allegations of error, of which five merit discussion by this Court.

This is the second time that this case has come before this Court. Accordingly, facts will only be presented when warranted by our discussion of the issues. For a more detailed description of the facts, see People v Drew, 67 Mich App 295; 240 NW2d 776 (1976).

Defendant first contends that the trial court erred in failing to conduct an evidentiary hearing regarding the admissibility of a witness’s identification of defendant.

Defendant was accorded an evidentiary hearing prior to his first trial. The trial court found that the witness’s identification was admissible. This Court upheld the trial court’s determination regarding the admissibility of the witness’s testimony identifying defendant when this case was previously before this Court. As this Court stated:

"Under the circumstances in the case at bar, we believe that the prosecution showed by clear and convincing evidence that Mrs. Gossett (Phillips) had an independent basis for her identification of the defendant. Therefore, we ñnd no error in the lower court’s decision to admit her identiñcation testimony.” People v Drew, supra, 299. (Emphasis supplied.)

Defendant has presented no new evidence that would cause the trial court to determine that the witness’s testimony would not be admissible. This Court’s prior ruling in the instant case was and is "the law of the case”. People v Bergin, 63 Mich App 526; 234 NW2d 687 (1975), People v McDonald, 239 Mich 253; 214 NW 186 (1927). We find no error in respect to this issue.

Defendant next contends that it was error for the trial court to preside over defendant’s second jury trial after having presided at defendant’s first jury trial on the same charge.

It is well established that no error can be predicated on a trial judge’s failure to disqualify himself from presiding over a trial unless the defendant timely moves for such disqualification. People v Dudley, 393 Mich 762; 223 NW2d 297 (1974), People v Stockford, 59 Mich App 423; 229 NW2d 484 (1975). In the instant case, defendant made no such motion, and, accordingly, we find no error.

Defendant further contends that the trial court erred in failing to grant his motion for mistrial based upon the prosecutor’s line of questioning regarding "mug shot” photographs and pictures received from police sources. We disagree.

Our review of the record reveals that the testimony was elicited for the purpose of establishing what pictures were used in the photographic lineup which identified defendant. The testimony was not particularly inflammatory nor was it deliberately injected into the proceedings to prejudice the defendant. Under such circumstances we find no reversible error. See People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), People v Hadley, 67 Mich App 688; 242 NW2d 32 (1976).

The penultimate issue which this Court will address concerns the prosecutor’s comments during his closing arguments in respect to defendant’s prior convictions.

Defendant claims that the references made by the prosecutor to his prior convictions were improper and require reversal of his conviction. We disagree.

It is well established that a prosecuting attorney can relate the evidence adduced at trial and draw conclusions therefrom during closing arguments. People v Davis, 57 Mich App 505; 226 NW2d 540 (1975).

The prosecutor stayed within these bounds by limiting his reference in regard to defendant’s prior convictions to the issue of defendant’s credibility. See People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973).

Defendant’s final allegation of error concerns an instruction given by the trial court which was first requested and later withdrawn by defense counsel.

The instruction at issue was to inform the jury to weigh defendant’s prior convictions in connection with his credibility only. Defense counsel withdrew his request for the instruction, apparently not wanting to remind the jury of defendant’s past convictions. The trial court indicated that the instruction would not be given. However, the trial court later gave the instruction at issue.

Although it was error for the trial court to first grant defense counsel’s request not to give an instruction and later give that very instruction, it was not reversible error.

The standard for harmless error is found in People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974):

"The standards by which we measure error to determine whether it is reversible, or merely harmless, have become well settled.
" 'Where it is claimed that error is harmless, two inquiries are pertinent. First, is the error so offensive to maintenance of a sound judicial process that it never can be regarded as harmless? * * * Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt?’
"People v Mobley, 390 Mich 57, 65; 210 NW2d 327, 332 (1973), People v Robinson, 386 Mich 551, 563; 194 NW2d 709, 713 (1972), People v Wichman, 15 Mich App 110, 116; 166 NW2d 298, 302 (1968).”

A review of the record discloses that this error was truly harmless beyond a reasonable doubt. The instruction given by the court was in favor of defendant since it was to insure that prejudice did not result in the jurors’ minds from defendant’s prior felony convictions. The error was essentially in favor of defendant.

We also note that the evidence adduced at trial was overwhelming in respect to defendant’s guilt.

Under such circumstances, we find the error harmless beyond a reasonable doubt.

Affirmed.

Bashara, J., concurred.

H. L. Heading, J.

(dissenting). I respectfully dissent. I believe that reversal of defendant’s conviction is required. Regardless of whether or not any one of the errors in this case constitutes clearly reversible error, the totality of the errors certainly deprived defendant of a fair trial. People v Skowronski, 61 Mich App 71, 77; 232 NW2d 306 (1975).

I

Defense counsel submitted a request that the trial court include in its final instructions a cautionary or limiting instruction on defendant’s prior criminal conduct. Subsequently, defense counsel withdrew that request, and the court agreed not to give the instruction. However, the court in its instructions to the jury gave the withdrawn instruction.

Although defense counsel, through his requested instruction, originally sought to have the jury’s consideration of defendant’s prior record properly limited to the issue of credibility alone, defense counsel apparently decided that the value of such an instruction was outweighed by the prejudicial impact of reminding the jury of defendant’s previous convictions. The cautionary instruction at issue here is obviously designed to benefit a defendant, and, thus, the decision as to whether or not to give such an instruction should properly be left to the defense. Compare the control which the defense exercises over the cautionary instruction regarding a defendant’s failure to testify. People v Hampton, 394 Mich 437; 231 NW2d 654 (1975).

In any event, regardless of who determines the appropriateness or necessity of an instruction, it is fundamentally unfair and a violation of due process for a trial judge, as here, to renege on an agreed course of instruction. People v Patskan, 387 Mich 701, 708-710; 199 NW2d 458 (1972) (opinion of SWAINSON, J.).

II

The prosecutor, during his examination of a police officer regarding the pretrial photographic identification of defendant, deliberately elicited testimony regarding a "mug shot” of defendant and the fact that the various photographs of defendant were obtained from "other police agencies”. Out of the presence of the jury defense counsel objected and moved for a mistrial. The court denied the motion but reprimanded the prosecutor for his "ill-advised” questions.

There can be no doubt that this line of questioning was highly suggestive of previous arrests and criminal conduct on the part of defendant. The introduction of evidence referring to a defendant’s criminal record is improper where, as here, the defendant has not yet taken the stand and where defense counsel has not invited the error. People v Embry, 68 Mich App 667, 670; 243 NW2d 711 (1976). This Court has even held this type of error to be "beyond instructional cure.”. People v Deblauwe, 60 Mich App 103; 230 NW2d 328 (1975).

III

Defendant objected to wearing, in the presence of the jury, a blue, 1-1/2 inch jail identification wrist band. The trial judge denied defendant’s motion for removal of the band, citing lack of prejudice as well as difficulty with removing the band.

Ordinarily, a court has no discretion with respect to a defendant’s attire and must allow defendant to wear civilian rather than prison clothing. People v Shaw, 381 Mich 467; 164 NW2d 7 (1969). Inasmuch as defendant’s objection came prior to impanelling of the jury, he has properly preserved this issue for appeal. People v Reginald Harris, 80 Mich App 228; 263 NW2d 40 (1977).

Although the wrist band at issue here is certainly not as readily prejudicial as more obvious forms of prison garb, there is no guarantee that the wrist band would not be observed and recognized by a juror. If recognized, the wrist band would be just as prejudicial as any other type of prison garb. In this situation, a defendant is precluded from establishing anything more than the possibility of prejudice, as voir dire of the jurors on this point would be counter-productive. The record reveals no effort by the court to remove the possibility of prejudice through alternative methods; concealing or covering the band was not attempted. Absent any compelling state interest, the possibility of prejudice outweighs the utility or convenience of the wrist band. Estelle v Williams, 425 US 501, 505-506; 96 S Ct 1691; 48 L Ed 2d 126, 131 (1976).

IV

Defendant has been tried and convicted of the instant offense twice. His first conviction was reversed by this Court in People v Drew, 67 Mich App 295; 240 NW2d 776 (1976). Defendant contends that reversible error occurred when the trial judge, who had presided at his first trial, failed to sua sponte disqualify himself from sitting at the second trial.

In Michigan, as in other jurisdictions, in the absence of specific statutory or constitutional grounds for disqualification, the disqualification of the original trial judge to sit on retrial after reversal is within the judge’s own judgment and discretion. Kolowich v Wayne Circuit Judge, 264 Mich 668; 250 NW 875 (1933). However, in light of the fact that the issue of disqualification has now been raised and in light of this Court’s disposition of this case, it would seem that the appearance of justice would be better served by a different judge presiding over a third trial of this cause. Cf. People v Jackson, 391 Mich 323, 340-341; 217 NW2d 22 (1974).

V

Defendant’s other assignments of error do not warrant extended treatment:

There was no need for a second hearing on the issue of identification as that issue had already been decided by this Court’s previous decision, and no new facts were offered. Topps-Toeller, Inc v Lansing, 47 Mich App 720; 209 NW2d 843 (1973), Naples v United States, 123 US App DC 292; 359 F2d 276 (1966).

The decision as to whether or not defendant could be impeached with his prior felony convictions was within the discretion of the trial judge. People v Jackson, supra, at 332-336.

Finally, no error occurred when the prosecutor’s closing argument referred to defendant’s prior convictions; the prosecutor’s use of those convictions properly focused on the issue of credibility. People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973).

I would reverse and remand for a new trial.


author: N. J. Kaufman, P. J.

text:
    HENSHAW v HENSHAW
    Docket No. 31254.
    Submitted February 7, 1978, at Lansing.
    Decided May 8, 1978.
    Fay F. Henshaw was granted a divorce from Richard C. Henshaw in Ingham Circuit Court, Jack W. Warren, J. Custody of their minor daughter, Elizabeth F. Henshaw, was awarded to plaintiff and defendant was granted visitation privileges and ordered to pay child support. Subsequently, defendant filed a motion seeking reduction or termination of child support payments on the ground that the child’s refusal to visit him rendered his visitation rights useless and for this reason he should be relieved of his support obligation. Motion denied. Defendant appeals. Held:

    There is no justification following a divorce, where there has been an award of custody of a minor daughter to the mother and an order of child support and visitation privileges to the father, for a cutoff of child support payments just because the daughter refuses to visit with her father.
    Affirmed.
    1. Appeal and Error — Divorce—De Novo Review.
    The Court of Appeals reviews divorce cases de novo but it will not revise or modify alimony awards and property settlements unless it is convinced that it would have reached a different result had it occupied the position of the trial court.
    2. Infants — Divorce—Visitation Rights — Child Custody Act— Statutes.
    Disputes over child visitation privileges are governed by the Child Custody Act (1970 PA 91; MCL 722.21 et seq.; MSA 25.312[1] et seq.).

    3. Infants — Divorce—Visitation Rights — Support Payments.
    Termination or reduction of child support payments may not be used as a weapon to force a child’s visitation.
    References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 868.

       24 Am Jur 2d, Divorce and Separation §§ 801, 802.

      4. Divorce — Infants—-Visitation Rights — Child Support.
    There is no constitutional right to be liked or loved; therefore a father who has been granted visitation rights following a divorce must convince his daughter that she should visit him, but, if she refuses, there is no justification for a cutoff of child support or for relief from his support obligation.

      William Pultusker, for defendant.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ.
   N. J. Kaufman, P. J.

Defendant husband appeals from a judgment of the trial court denying his motion for reduction or termination of child support payments to plaintiff wife for the support of their daughter. Defendant claimed that the child’s refusal to visit him rendered his visitation rights under the divorce decree useless, relieving him of his support obligation.

The parties were married on August 26 or 27, 1949, in Texas. They have two children: Richard Charles Henshaw, born February 15, 1957, who has attained the age of majority, and Elizabeth Faye Henshaw, born October 28, 1962. The parties were divorced on May 23, 1975, on the basis of an irretrievable breakdown in the marriage relationship. The court awarded custody of Elizabeth to plaintiff wife and ordered defendant husband to pay $60/week child support as well as assuming certain other expenses. Defendant received "reasonable rights of visitation” with the child.

On July 2, 1975, defendant filed a motion for a new trial or alternately to set aside the judgment, alleging that (1) plaintiff was violating an agreement respecting the division of personal property, and (2) that "Defendant has been denied visitation rights by the actions of Plaintiff’. Shortly afterward plaintiff brought an action alleging breach of the support provisions of the divorce decree. At various times since then, both parties have been ordered to appear and show cause why they should not be found in contempt of court, the plaintiff for not allowing visitation of her daughter to defendant and defendant for being in arrears of support payments. On January 15, 1976, the court did amend the visitation provisions of the divorce judgment by specifying particular times for the father’s visitation with the child.

At the May 12, 1976, hearing for cancellation of support payments, both plaintiff and defendant testified. Plaintiff testified she did not interfere with her daughter’s visitation. Defendant stated that he did not get regular visitation and that he had no control over his daughter.

Over plaintiff’s objections, Elizabeth Henshaw— who was then age 13 — took the stand. The judge explained the problem and the reasons for his visitation order. When asked to comment, Elizabeth said:

"Well, I don’t like to be with my dad because ... I mean, we don’t really have any interest in common, and a lot of times he just embarrasses me. And the only reason I ever see him, really, is really just to see Richard, because I don’t really feel like my dad ... I mean we don’t have anything in common and he embarrasses me, and sometimes he criticises me.”

At the conclusion of the hearing on May 12, the judge announced that he could not find Mrs. Henshaw in contempt because there was no testimony that she affirmatively acted to disobey the court’s order. She had not implemented a program to convince the child of the wisdom of visiting her father, but she was under no duty to do so. The judge stated, "I have to accept the testimony of that daughter to the effect that she doesn’t want to visit her father. There’s no testimony that rebuts that.” He said he was "appalled” at his inability to act.

On November 17, 1976, the trial judge filed an order denying the motion to cancel and/or reduce child support. Defendant appeals.

Initially, we must compliment the trial judge for his tolerance and patience. He heard testimony from both sides. He carefully explained to the daughter that she should visit with her father. He set specific dates for visitation and we certainly know what he meant when he stated he was "appalled” by his inability to act. There are very few matters that are more agonizing, frustrating, baffling and troublesome to a trial judge, especially if he does everything he can think of and still does not solve the problem.

However, it is clear to us that it is the defendant-father who must convince his daughter that she should visit him. We cannot prescribe how that should be accomplished because each case of this kind presents a new situation. The child’s likes and dislikes, her activities, her age and friends are all variables which weigh heavily in matters of this type.

In Schilleman v Schilleman, 61 Mich App 446, 449; 232 NW2d 737 (1975), lv den 395 Mich 769 (1975), this Court concluded:

"While this Court hears appeals in divorce cases de novo, we will not revise or modify alimony awards and property settlements in divorce cases unless convinced that we would have reached a different result had we occupied the position of the trial court. Ireland v Ire land, 56 Mich App 594; 224 NW2d 662 (1974), Hostetler v Hostetler, 46 Mich App 724; 208 NW2d 596 (1973).”

We are not convinced we would have reached a different result. The child’s interests must be paramount. As noted in Stevenson v Stevenson, 74 Mich App 656, 658-659; 254 NW2d 337 (1977):

"Since 1971, the Child Custody Act, 1970 PA 91; MCLA 722.21 et seq.; MSA 25.312(1) et seq., has governed disputes over child visitation. While the act focuses on custody disputes, there can be little doubt that the act was intended to control visitation privileges as well. MCLA 722.24, 722.27, 722.27a; MSA 25.312(4), 25.312(7), 25.312(7a). Lorenz v Lorenz, 70 Mich App 356; 247 NW2d 569 (1976).”

We hold that support payments may not be used as a weapon to force a child’s visitation.

While defendant’s disinclination to support a child who feels only a limited measure of affection for him is in a way understandable, his plight is not much different from that of many custodial parents who find themselves estranged from their children, especially as the latter enter adolescence. Estrangement of daughter from father "is, unfortunately, an all too common result of homes destroyed by divorce”. Straver v Straver, 26 NJ Misc 218; 59 A2d 39, 41-42 (1948). There is no constitutional right to be liked or loved. Elizabeth Henshaw—obviously an intelligent and articulate girl —made quite clear that she feels no hostility toward her father and desires his companionship from time to time. But she also made clear that she shares few interests with her father, that she has a life of her own, and that she cannot be coerced into artificial expressions of greater affection than she truly feels—least of all at scheduled times and places decreed by court order. That Elizabeth feels this way is unfortunate, even tragic, but it hardly justifies calling on the retributive power of the state.

Affection is bestowed, not bought. Family relations cannot be regulated by the clock. Obviously, any coerced companionship the defendant might compel by a cutoff of child support would be utterly devoid of the sentiments of filial love and respect whose encouragement furnished the only admissible ground for visitation in the first place.

Affirmed.

       This issue was not briefed on appeal and we treat it as abandoned. Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1955).


author: Bashara, P. J. N. J. Kaufman, J.

text:
    OWENS v ALLIS-CHALMERS CORPORATION
    Docket No. 31521.
    Submitted January 3, 1978, at Detroit.
    Decided May 8, 1978.
    Leave to appeal applied for.
    Sallie M. Owens, administratrix of the estate of Dan Owens, Jr., deceased, brought an action against the Allis-Chalmers Corporation on a theory of products liability seeking to recover for the death of her husband, who was killed when a forklift manufactured by the defendant overturned. The Wayne Circuit Court, Horace W. Gilmore, J., granted the defendant’s motion for a directed verdict at the conclusion of the plaintiffs proofs and a judgment for defendant was entered. Plaintiff appeals. Held:

      1. Manufacturers have a duty to provide adequate warnings to potential users of their products of the latent risks of injury created by their selection of product design. The adequacy of the warning under the particular circumstances of a given case is a question for resolution by the trier of fact.
    2. Evidence of the following must be presented for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect products liability litigation: (1) that the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or (2) that the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.

      References for Points in Headnotes

       63 Am Jur 2d, Products Liability § 206.

       63 Am Jur 2d, Products Liability §§ 28, 63.
    Manufacturer’s or seller’s duty as to product design as affecting his liability for product-caused injury. 76 ALR2d 91.

       63 Am Jur 2d, Products Liability § 53.
    Manufacturer’s or seller’s duty to give warning regarding product as affecting his liability for product-caused injury. 76 ALR2d 9.

       63 Am Jur 2d, Products Liability §§ 71-73.

       5 Am Jur 2d, Appeal and Error § 886.

       5 Am Jur 2d, Appeal and Error § 849.

       63 Am Jur 2d, Products Liability § 71.

      3. The trial court’s directed verdict was proper since the evidence presented by the plaintiff raised neither a question of design conformity with established standards nor a risk of injury that would not be readily perceived by the plaintiff’s decedent, an experienced forklift operator.
    Affirmed.
    N. J. Kaufman, J., concurred, holding a product liability suit based on an implied warranty theory requires proof of a defect in manufacturing or design and injury caused by or resulting from the defect; under this theory a defect is established by proof that the product is not reasonably fit for its intended, anticipated or reasonably foreseeable use.
    Opinion of the Court
    1. Action—Torts—Products Liability—Cause of Action—Elements—Strict Liability—Breach of Warranty.
    The requisite elements for a cause of action for products liability based upon strict liability in tort are congruent to those for breach of warranty.
    '2. Manufactures—Products Liability—Mechanical Devices—Injuries—Defects in Machine.
    Manufacturers are not required to make mechanical devices accident proof; the fact that an injury results from the use of a machine does not ipso facto mean that the machine is defective.
    3. Products Liability—Manufactures—Latent Risks—Warnings— Adequacy—Product Design.
    Manufacturers have a duty to provide adequate warnings to potential users of their products of the latent risks of injury created by their selection of product design; the adequacy of the warning under the particular circumstances of a given case is a question for resolution by the trier of fact.
    4. Products Liability—Evidence—Questions of Fact—Design Defects—Breach of Duty.
    Evidence of the following must be presented for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in a design defect products liability litigation: (1) that the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or (2) that the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.
    5. Appeal and Error—Motions—Directed Verdict—Evidence— Light Most Favorable to Nonmoving Party.
    The Court of Appeals in reviewing a trial court’s grant of a motion for a directed verdict should consider the evidence presented in a light most favorable to the nonmoving party.
    6. Products Liability—Directed Verdict—Design Defects—Appeal and Error.
    A trial court’s directed verdict in favor of the defendant in a product liability action based on an alleged design defect in a forklift was proper where the evidence presented by the plaintiff raised neither a question of design conformity with established standards nor a risk of injury that would not be readily perceived by the plaintiffs decedent, an experienced forklift operator.
    Concurrence by N. J. Kaufman, J.
    7. Products Liability—Implied Warranty—Proof of Defects—Injury.

      A product liability suit based on an implied warranty theory requires proof of a defect in manufacturing or design and injury caused by or resulting from the defect; a defect is established under this theory by proof that the product is not reasonably ñt for its intended, anticipated or reasonably foreseeable use.

      Hurwitz & Karp, for plaintiff.

      Garan, Lucow, Miller, Lehman, Seward & Cooper (Gromek & Bendure, of counsel), for defendant.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   Bashara, P. J.

This is an appeal by plaintiff from a directed verdict granted to defendant at the conclusion of plaintiffs proofs. On a theory of products liability, plaintiff sought recovery for the death of her husband, who was killed when the forklift truck he was operating for his employer overturned, crushing his skull with the overhead, protective guard.

No one witnessed the occurrence. Decedent reported to his job and was instructed to drive a forklift to another plant on his employer’s property. Moments after he left, other employees, in route over the same roadway to the same location, discovered decedent pinned under the overhead guard of the forklift. As it then appeared, the forklift had traveled off the roadway, struck a concrete-filled post, and turned over onto its side.

The forklift was manufactured by defendant and sold with other forklift vehicles to the decedent’s employer by one of defendant’s dealers. Plaintiff alleged that defendant was negligent in the design of the forklift, that the defective design constituted a breach of warranty, and that defendant was liable under the doctrine of strict liability in tort. Design defect allegations were predicated principally upon the absence of driver restraints on the vehicle, such as seat belts or a protective enclosure.

At trial, plaintiff’s expert witness testified at length about the inadequacy of the static stability tests utilized by the forklift manufacturers generally. His opinion was that dynamic stability tests were essential to ascertain the true handling characteristics of forklift vehicles so that proper design technology could be developed.

He also testified as to the risks of injury created by the absence of some driver restraint apparatus in forklifts equipped with an overhead guard. He opined that, given the unstable handling qualities of a forklift and the concomitant high probability of rollovers, some form of driver restraint system was necessary for a properly designed forklift. Notably, on cross-examination, the expert witness was unable to specify any industry standard, legislative enactment, or government regulation requiring the installation of a driver restraint device on forklifts or establishing dynamic stability testing requirements.

The trial court concluded there was no evidence to show that defendant was negligent in failing to adhere to some standard for testing or designing its forklifts. Further, the trial court found the evidence presented did not establish that any defect in the forklift was causally related to the decedent’s death.

Plaintiff claims that the question of whether the forklift was defectively designed should have been submitted to the jury. She urges that the expert testimony, stating that a driver restraint device would have prevented the decedent’s death, is itself sufficient to raise a question of fact as to the defective design.

Our discussion of this case may be narrowed by making a number of observations. This Court has recognized that the requisite elements for a cause of action based upon strict liability in tort are congruent to those for breach of warranty. Williams v The Detroit Edison Co, 63 Mich App 559, 567; 234 NW2d 702, 707 (1975), lv den 395 Mich 800 (1975). See also Johnson v Chrysler Corp, 74 Mich App 532, 535-536; 254 NW2d 569, 571-572 (1977), lv den 400 Mich 861 (1977). Therefore, the strict liability count is a mere redundancy, since recovery is equally available by the action for breach of warranty.

Further, we have carefully reviewed the evidence presented by plaintiff on the claim of negligence and defective design, especially the extensive testimony of plaintiffs expert witness. That evidence showed that forklifts are, by their nature, unstable vehicles. There is nothing to show how the vehicles’ stability may be enhanced, given the design characteristics mandated by the vehicles’ intended uses. Merely because an injury results from the use of a machine does not ipso facto mean that the machine is defective. Manufacturers are not required to make mechanical devices "accident-proof ”. Parsonson v Construction Equipment Co, 386 Mich 61, 64-65; 191 NW2d 465, 466 (1971).

At the commencement of this discussion, we deem it important to emphasize that this litigation does not involve a claim that the fatal injury resulted from some machine part that malfunctioned as a result of a defect in its manufacture. The responsibility of the trier of fact for finding a defect and injury causation as a matter of fact is well-established in that context. Caldwell v Fox, 394 Mich 401; 231 NW2d 46 (1975). See also Kupkowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975).

When courts are confronted with claims of product design defects, there is a geometric increase in the complexity of the issues. Product design choices are multi-faceted, or as one legal writer has termed it, polycentric. That is, design choices involve such considerations as the intended use and utility of the product, cost constraints dictated by the marketplace and the manufacturer’s competitive position, safety standards established by the industry or government regulation and the feasibility of alternative designs, to name only a few. To the extent that another coordinate branch of government has not determined the degree to which public policy shall govern design choices, the task devolves upon the judiciary.

Considering the nature of the design process, we find that adjudication must necessarily play a limited role in setting design standards. Without some extrajudicially established guidelines, the adjudicatory standard-setting process would resort to an assessment of conflicting expert testimony by those not possessed of the requisite expertise to adequately evaluate the interrelated and interdependent design choice criteria. Additionally, this evaluation would be made within an atmosphere susceptible to influence by sympathy for an injured plaintiff, instead of an abstract concern for the desirable effect that public policy should play in governing a manufacturer’s design choices. Inevitably, this would lead to varying standards from jury to jury or trial court to trial court.

We are merely recognizing from the foregoing considerations that triers of fact are not formulators of public policy and that trial courts are inappropriate for the task in the area of product design choices. This is not to say that plaintiffs have no means by which they can seek recovery for injuries resulting from the conscious design choices of manufacturers where extrajudicial design guidelines are absent.

There remains a duty of manufacturers to provide adequate warnings to potential users of their products of the latent risks of injury created by their selection of product design. See Comstock v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959). The adequacy of the warning under the particular circumstances of a given case, is a question for resolution by the trier of fact. Id.

Consequently, we conclude that for a plaintiff to establish a question of fact as to a manufacturer’s breach of duty in design defect products liability litigation, evidence of the following must be presented:

(1) That the particular design was not in conformity with industry design standards, design guidelines established by an authoritative voluntary association, or design criteria set by legislative or other governmental regulation; or

(2) That the design choice of the manufacturer carries with it a latent risk of injury and the manufacturer has not adequately communicated the nature of that risk to potential users of the product.

In determining the propriety of the directed verdict in this case, we must review the evidence presented in a light most favorable to the plaintiff. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46, 49 (1975). From our review of the plaintiffs evidence, we conclude that no question was raised as to any fact that would impose liability upon defendant. The evidence raised neither a question of design conformity with established standards nor a risk of injury that would not be readily perceived by decedent, who plaintiffs proofs showed was an experienced forklift operator, familiar with the machine’s intrinsic characteristics.

We are no longer on the frontier of products liability litigation. The time has approached when we must begin to refine the role of the judiciary in such controversies with deference to its limitations and cognizance of the importance of participation by our coordinate governmental branches. This case has presented such an opportunity. Because of the result reached, we need not consider the other issues raised by plaintiff.

Affirmed. Costs to defendant.

J. H. Gillis, J., concurred.

N. J. Kaufman, J.

(concurring). I concur separately in the well-written opinion by my colleague based on the following language from Elsasser v American Motors Corp, 81 Mich App 379, 384-385; 265 NW2d 339 (1978).

"A product liability suit based on an implied warranty theory requires proof of a defect in manufacturing or design and injury caused by or resulting from the defect. Piercefield v Remington Arms Co, 375 Mich 85, 96; 133 NW2d 129 (1965). Under the implied warranty theory a defect is established by proof that the product is not reasonably fit for its intended, anticipated or reasonably foreseeable use. Dooms v Stewart Bolling & Co, 68 Mich App 5, 14; 241 NW2d 738 (1976), lv den 397 Mich 862 (1976).”

In this case, a careful reading of the transcript reveals that there was no testimony whatsoever that the injury was caused by any defective product.

        See Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum L Rev 1531 (1973), Henderson, Design Defect Litigation Revisited, 61 Cornell L Rev 541 (1976), Henderson, Expanding the Negligence Concept: Retreat from the Rule of Law, 51 Ind L J 467 (1976).

       The role of the adjudication process, as it pertains to affecting the design choices of manufacturers, is perceptively explicated in Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum L Rev 1531 (1973).

       Henderson, supra n 2, at 1558. While Professor Henderson’s thesis has its opponents, none have analyzed the problem as perceptively, and Professor Henderson has been quick to provide a persuasive response to the more cogent criticisms of his position. Compare Twerski, Weinstein, Donaher & Piehler, The Use and Abuse of Warnings in Products Liability-Design Defect Litigation Comes of Age, 61 Cornell L Rev 495 (1976), .with Henderson, Design Defect Litigation Revisited, 61 Cornell L Rev 541 (1976).

       The problem presented in design defect cases where extrajudicial standards are absent may be analogized to ascertaining what Justice Levin has referred to as the "general standard of care”. Moning v

        Alfono, 400 Mich 425; 254 NW2d 759 (1977). A divergence from the ordinary negligence case occurs, because the term "reasonable care”, in the context of design defect litigation, is dependent upon determinants entailing complex technology and economic market structure. Absent extrajudicial guidelines, there remains no foundation from which a general standard of care can be ascertained. The establishment of such standards where the void exists is more ideally suited to the functions of the two other branches of government. See Henderson, Judicial Review of Manufacturers’ Conscious Design Choices: The Limits of Adjudication, 73 Colum L Rev 1531, 1569-77 (1973).

       These principles, while delimiting the extent of a manufacturer’s liability for conscious design choices, are not mutually exclusive. Either one or both may be shown by the evidence, and the existence of either one or both, in conjunction with the requisite showing of injury causation, will establish liability.

       Decedent’s foreman testified that decedent had been operating forklifts for at least three years. He also testified that every forklift operator, including decedent, had to pass a qualifications examination before being permitted to operate a forklift. This was the only position requiring such an examination.
      The safety director for decedent’s employer testified that a similar accident happened about a year before this occurrence. As a consequence, pertinent job safety manuals were reviewed with all operators to emphasize the need for caution in operating the forklifts.
      Plaintiff testified that decedent had been operating forklifts for approximately four to five years.

       Significant steps were taken to develop this aspect of our law 62 years ago in the case of MacPherson v Buick Motor Co, 217 NY 382; 111 NE 1050 (1916).