text:
    FELDMAN v DEPARTMENT OF SOCIAL SERVICES
    Docket No. 77-4515.
    Submitted March 14, 1978, at Lansing.
    Decided June 6, 1978.
    Jack Feldman applied to the Michigan Department of Social Services to have a portion of Independence Manor, an independent living retirement community, licensed as an adult foster care facility. The license was denied by the department. The denial was upheld by an administrative law judge after a hearing on the matter. Mr. Feldman appealed the decision to circuit court. Summary judgment for defendant affirming the denial of the license, Oakland Circuit Court, Francis X. O’Brien, J. The plaintiff appeals. Held:

    The foster care facility licensing act which limits the number of 65-year-old-or-older adults which may reside at a licensed facility does not contravene the equal protection clause of the Fourteenth Amendment to the United States Constitution because such a classification has a rational basis due to the increased care needed for citizens of advanced ages. •
    Affirmed.
    1. Appeal and Error — Constitutional Law — Equal Protection— Social Legislation — Classifications—Adult Foster Care Facilities — Rational Basis.
    The task of the Court of Appeals in evaluating constitutional challenges to social legislation on the basis of equal protection is to determine if the classification in question has a rational basis; if any state of facts can reasonably be conceived as a just basis for the legislative classification, the Court’s inquiry is at an end, and the statute should be sustained.
    2. Constitutional Law — Rational Basis — Adult Foster Care Facilities — Elderly Residents — Limited Numbers.
    A reasonable basis exists for the Legislature to limit the number of elderly residents in adult foster care facilities because the greater the number of the elderly at a facility the less capable the facility may be of satisfying the particularly greater care requirements of the elderly.

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 496 et seq.

    [2] [No citation.]

      Neal L. Grossman, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Milton I. Firestone, Thomas R. Wheeker, and Mark S. Meadows, Assistants Attorney General, for defendant.
    Before: Bashara, P. J., and M. J. Kelly and Allen, JJ.
   Per Curiam.

Plaintiff appeals from a circuit court affirmance of a determination by defendant that plaintiffs adult care facility is ineligible for licensing as an adult foster care facility pursuant to 1972 PA 287, § 5. The basis for the administrative decision was that plaintiff had more than six adults of age 65 or older residing in his facility.

On appeal to the circuit court, plaintiff contended that the licensing act limitation on the permissible number of 65-year-old adults was a denial of equal protection of the law in contravention of the Fourteenth Amendment to the United States Constitution. Plaintiff urged that the limitation unconstitutionally infringed upon the associational rights of senior citizens and, additionally, lacked a rational basis.

The trial court ordered summary judgment for defendant on the grounds that plaintiff lacked standing to litigate the constitutional issue claimed. The court further found that the legislation had a rational basis.

The care rendered by plaintiff at his facility is in exchange for monetary consideration. To continue operating that facility, our state law requires that plaintiff obtain the appropriate license. MCL 331.685, 331.691; MSA 16.610(5), 16.610(11). Under the current mode of operation, the age mix of residents at plaintiff’s facility would preclude licensing. We therefore conclude that plaintiff has a sufficient interest in the outcome of this litigation to assure a vigorous and sincere advocacy of the merits of the challenge to the constitutionality of the statute. Such an interest establishes the requisite standing. Sierra Club v Morton, 405 US 727, 731-732; 92 S Ct 1361, 1364; 31 L Ed 2d 636, 641 (1972), Michigan License Beverage Association v Behnan Hall, Inc, 82 Mich 319; 266 NW2d 808 (1978).

However, plaintiff’s interest in this litigation is exclusively of a pecuniary nature. It rests upon neither a fundamental constitutional right nor a classificatory scheme perceived precedentially to be suspect. As it pertains to plaintiff, the class distinction drawn by the act is between adult care facilities with more than six residents 65 years of age or older and those with six or fewer of such residents.

The legislation providing for the licensing and regulation of adult foster care facilities has the principal purpose of assuring that such facilities offer a clean and safe environment for the residents and are operated by those who are capable of rendering constructive assistance to those persons. Essentially, the act and its accompanying administrative rules are oriented toward maintaining the social welfare inherent in a quality adult care program. In evaluating constitutional challenges to such social legislation on the basis of equal protection, our task is to determine if the classification in question has a rational basis. Dandridge v Williams, 397 US 471, 484; 90 S Ct 1153, 1161; 25 L Ed 2d 491, 501 (1970).

If any state of facts can reasonably be conceived as a just basis for the legislative classification, our inquiry is at an end, and the statute will be sustained. Id. at 485; 90 S Ct at 1161; 25 L Ed 2d at 502. Such a basis is evident from the circumstance addressed by the challenged classification.

An adult foster care facility is anticipated by the act and regulations to provide its residents with a more moderate degree of personal assistance in sustaining their daily well-being than rendered in such facilities as old age or nursing homes. The Legislature could reasonably expect that persons who, either by choice or necessity, reside in adult care facilities would realize an increasing need for personal assistance in their day-to-day activities as a concomitant of advancing age. Because of the varying capabilities of the different types of adult care facilities to respond to those needs, a reasonable basis exists for the Legislature to limit the number of elderly residents in those facilities less capable of satisfying their particularly greater care requirements. This basis of legislative determination is rationally connected to the legitimate objective of assuring the safety and well-being of persons utilizing the services of adult care facilities.

Under the governing standard of judicial review, our inquiry does not extend to the numerical limitations by which the Legislature achieves the foregoing objective. Dandridge, supra. Such determinations are wisely delegated to the investigative processes from which legislative enactments are derived. Having discerned a rational basis for those limitations, we affirm the trial court’s decision sustaining the licensing statute.

Affirmed. No costs, a public question being involved.

       MCL 331.685; MSA 16.610(5), amended by 1976 PA 232, § 1, effective August 4, 1976. The pertinent text of the statute provides, "An adult foster care facility shall not be licensed to care for more than 6 adults of age 65 or older.”

       See, e.g., Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), Bullock v Carter, 405 US 134; 92 S Ct 849; 31 L Ed 2d 92 (1972), Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969), Williams v Rhodes, 393 US 23; 89 S Ct 5; 21 L Ed 24 (1968), Skinner v Oklahoma, 316 US 535; 62 S Ct 1110; 86 L Ed 1655 (1942).

       See, e.g., Graham v Richardson, 403 US 365; 91 S Ct 1848; 29 L Ed 2d 534 (1971), McLaughlin v Florida, 379 US 184; 85 S Ct 283; 13 L Ed 2d 222 (1964), Oyama v California, 332 US 633; 68 S Ct 269; 92 L Ed 249 (1948).

       See 1975 AACS R 400.2101 et seq., especially R 400.2111 and 400.2112.

        Compare MCL 331.651 et seq.; MSA 14.1281 et seq., and 1969 AACS R 325.1901 et seq., especially R 325.1942-69; with MCL 331.681 et seq.; MSA 16.601(1) et seq., and 1975 AACS R 400.2101 et seq.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v MIKULA
    Docket No. 77-803.
    Submitted January 4, 1978, at Grand Rapids.
    Decided April 20, 1978.
    Vence Mikula, also known as Vincent M. Mikula, was convicted of second- degree criminal sexual conduct in Grand Traverse Circuit Court, Charles M. Forster, J. Defendant appeals claiming error: in the denial of motions to present evidence of the complainant’s prior sexual conduct with third persons and of prior false accusations of sexual assault made by the complainant, in admitting hearsay evidence regarding the details of the alleged assault, and in permitting a medical expert to testify concerning a gynecological examination of the complainant conducted six months after the alleged assault. Held:

    Evidence of specific instances of sexual activity by the complainant is admissible to explain the physical condition of her genital area to show that another person might have been responsible for her condition where the complainant’s physical condition is offered as circumstantial evidence of the defendant’s guilt. Such evidence of her physical condition is admissible when offered to prove an element of the crime charged provided the inflammatory or prejudicial nature of the evidence does not outweigh its probative value. Such evidence may be allowed in accordance with the statute regarding admission of such evidence where such condition is expressly included in the statute or where it is another condition similarly probative of one of the elements of the sexual offense charged. The complainant may also be cross-examined regarding prior false accusations of a similar nature, and if she denies them, proof of such charges having been made may be submitted. Hearsay testimony concerning the details of the complaint is admissible where the complainant is of "tender years”, her statement spontaneous, without indication of manufacture, and if any delay in making the complaint is excusable due to fear or other equally effective circumstances, however, only the original account of the assault may be related by a witness. Expert medical testimony is admissible as circumstantial evidence of the fact of penetration. Whether such testimony should be excluded because of the lapse of time between the incident and the examination should be determined in light of the facts and circumstances; however, a foundation must be laid for such testimony with some evidence of the complainant’s physical condition prior to the alleged assault.

      References for Points in Headnotes
    [1, 2] 65 Am Jur 2d, Rape § 82 et seq.

    [3] 65 Am Jur 2d, Rape § 86 et seq.

    [4] 65 Am Jur 2d, Rape §§ 76,101.
    [5] 65 Am Jur 2d, Rape § 63.

      Reversed and remanded.
    1. Rape — Evidence—Prior Sexual Conduct — Physical Condition of Complainant — Circumstantial Evidence.
    Evidence of the complainant’s prior sexual conduct with third persons is admissible in a trial for first-degree criminal sexual conduct when such evidence is offered to explain the physical condition of the complainant’s genital area where such physical condition is offered as circumstantial evidence of the defendant’s guilt; the defendant should be permitted to meet such circumstantial evidence from which the jury might infer the occurrence of a sexual act with proof of the complainant’s prior sexual activity tending to show that another person might have been responsible for the complainant’s condition.
    2. Rape — Evidence—Sexual Activity — Physical Condition of Complainant — Elements—Prejudice—Probative Value — Statutes.
    Evidence of specific instances of sexual activity by the complainant in instances other than the crime charged is admissible, in a trial for first-degree criminal sexual conduct, to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged, provided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative value; evidence of the origin of the condition offered to rebut the inference of guilt is admissible whether the condition is one of those expressly included in the statute regarding the admission of such evidence or another condition similarly probative of one of the elements of the crime (MCL 750.520j[l] [b]; MSA 28.788[10] [1] [bj.
    3. Rape — Evidence—Cross-Examination—False Accusations by Complainant — Credibility.
    The defendant may cross-examine the complainant in a prosecution for a sexual offense regarding prior false accusations of a similar nature, and, if the complainant denies having made them, submit proof of such charges; it is imperative that the defendant be given an opportunity to place before the jury evidence so fundamentally affecting the complainant’s credibility in an action where the verdict necessarily turns upon the credibility of the complainant.
    4. Rape — Evidence—Hearsay—Complaint—Tender Years — Original Account — Subsequent Accounts.
    Hearsay testimony concerning the details of a complaint of sexual assault is admissible in a trial for first-degree criminal sexual conduct where the complainant is of "tender years”, and where her statement is shown to have been spontaneous, and without indication of manufacture, and if any delay in making the complaint is excusable insofar as it is caused by fear or other equally effective circumstances; however, only the original account of the assault may be related by a witness.
    5. Rape — Evidence—Physician’s Testimony — Physical Condition of Complainant — Lapse of Time — Foundation.
    A physician’s testimony regarding the condition of a complainant’s genital area is competent circumstantial evidence of the fact of penetration in a trial for first-degree criminal sexual conduct; whether such testimony should be excluded because of a lapse of time between the incident and the examination is determined in light of the facts and circumstances of the case; however, a foundation must be laid for such testimony with some evidence of the complainant’s physical condition prior to the alleged assault.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John D. Foresman, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people.

      Robert J. Beuerle, for defendant.
    Before: D. F. Walsh, P. J. and R. M. Maher and Beasley, JJ.
   Per Curiam.

Defendant was charged with first-degree criminal sexual conduct. MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). He was tried by a jury and convicted of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). He was sentenced to 5 to 15 years imprisonment and now appeals. The following issues are presented for our consideration:

(1) Did the criminal sexual conduct act, MCL 750.520j(1)(b); MSA 28.788(10)(1)(b), prohibit admission of evidence of the complainant’s prior sexual conduct with third persons where that evidence was offered to explain the origin of the condition of the complainant’s hymen and vaginal opening?

(2) Did the aforementioned statute preclude admission of prior false accusations of sexual assault made by the complainant?

(3) Did the trial court err in admitting hearsay testimony regarding the content of the complaining witness’s complaint?

(4) Did the trial court err in permitting a medical expert to testify concerning the results of a gynecological examination of the complainant that was conducted six months after the alleged incident.

Facts

In a pretrial motion defense counsel stated that a police report contained an allegation that the complainant had been involved in a sexual incident with a 14-year-old boy some months prior to the alleged incident with the defendant. Counsel moved the court to order discovery of the details of the prior incident and to admit whatever evidence was obtained arguing that it would be relevant for one of two purposes:

(1) If the prior incident involved sexual penetration of the complainant, it would provide an alternative explanation for her physical condition; or

(2) If the incident did not occur, the complainant’s false accusation would be important impeachment evidence.

The trial court denied the motion ruling that MCL 750.520j(1)(b); MSA 28.788(10)(1)(b) prohibited the introduction of such evidence.

At trial, over timely objection, two prosecution witnesses were permitted to relate the details of the alleged assault as told to them by the complainant six months after the alleged incident. Neither witness was the first person to whom the complainant had related the incident.

The prosecution also introduced expert medical testimony concerning the condition of the complainant’s genital area. The testimony was based upon an examination conducted approximately six months after the alleged incident. The doctor testified that the complainant did not have an intact hymenal ring and that her vaginal opening was unusually open for a child of her age. In his opinion, the findings were "entirely consistent, although certainly not diagnostic of’ attempted or partial penetration by an adult penis. Defendant unsuccessfully objected to the testimony on the ground that no connection had been shown between the complainant’s condition and the alleged incident.

We address the issues in the order recited above.

I

The statutory provision under consideration reads in pertinent part as follows:

"Sec. 520j. (1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b and 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
"(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.” MCL 750.520j(1)(b); MSA 28.788(10)(1)(b).

Defendant argues that the intent of this provision is to permit an accused to introduce specific instances of the complainant’s sexual activity to show the origin of a physical condition offered as circumstantial evidence of defendant’s guilt. The prosecution contends that the specific physical condition here involved is not included in the statute and the proffered evidence was, therefore, properly excluded. We are persuaded that the defendant’s interpretation of the statute is correct.

It is well settled that where the prosecution substantiates its case by demonstrating a physical condition of the complainant from which the jury might infer the occurrence of a sexual act, the defendant must be permitted to meet that evidence with proof of the complainant’s prior sexual activity tending to show that another person might have been responsible for her condition. People v Hunter, 374 Mich 129; 132 NW2d 95 (1965), People v Russell, 241 Mich 125; 216 NW 441 (1927), People v Keller, 227 Mich 520; 198 NW 939 (1924), People v Werner, 221 Mich 123; 190 NW 652 (1922). The question in this case is whether the Legislature intended to retain that rule only for the conditions expressly included in the statute — to the exclusion of other physical conditions. We think not. We are persuaded that there is no rational distinction between the evidence expressly allowed under the statute and that offered in this case.

Certainly proof of the origin of the condition found in this case has no more potential for harassment of a complainant than proof of the origin of one of the conditions expressly included in the statute. Moreover, the prosecution offered the evidence of the condition found in this case for the same purpose for which evidence of a condition included in the statute would be introduced, i.e. to prove the guilt of the accused. The introduction of evidence of the origin of the condition to rebut the inference of guilt is equally important to the defense whether the condition be one of those in-eluded in the statute or another condition similarly probative of one of the elements of the crime.

We conclude, therefore, that the Legislature intended that evidence of specific instances of sexual activity is admissible to show the origin of a physical condition when evidence of that condition is offered by the prosecution to prove one of the elements of the crime charged provided the inflammatory or prejudicial nature of the rebuttal evidence does not outweigh its probative value.

II

The trial court’s order denying the discovery motion necessarily implied that the aforementioned statute also precluded introducing impeachment evidence of prior false accusations by the complainant. We address this issue separately because such evidence is admissible for reasons distinct from those discussed in the preceding issue.

In a prosecution for a sexual offense, the defendant may cross-examine the complainant regarding prior false accusations of a similar nature and, if she denies making them, submit proof of such charges. People v Werner, 221 Mich 123; 190 NW 652 (1922), People v Wilson, 170 Mich 669; 137 NW 92 (1912), People v Evans, 72 Mich 367; 40 NW 473 (1888). In a case such as the one before us, where the verdict necessarily turned on the credibility of the complainant, it is imperative that the defendant be given an opportunity to place before the jury evidence so fundamentally affecting the complainant’s credibility.

We emphasize that the complainant is not to be put on trial for any prior sexual activity. The evidence here discussed seeks to impeach her not because she is shown to be unchaste but because she has lied concerning similar charges in the past. See People v Wilson, supra, at 673-674.

Ill

Hearsay testimony concerning the details of a complaint of sexual assault is admissible where the complainant is of "tender years” if her statement is shown to have been spontaneous and without indication of manufacture, and if any delay in making the complaint is excusable insofar as it is caused by fear or other equally effective circumstances. People v Baker, 251 Mich 322; 232 NW 381 (1930), People v Taylor, 66 Mich App 456; 239 NW2d 627 (1976).

The trial court cited People v Taylor, supra, as the basis for admitting the challenged testimony. We find the Taylor rationale was properly applied here. Only the original account of the assault, however, may be related by a witness. It was improper for the trial court to permit subsequent accounts into evidence. People v Baker, supra.

IV

A physician’s testimony regarding the condition of a complainant’s genital area is competent circumstantial evidence of the fact of penetration. People v Inman, 315 Mich 456; 24 NW2d 176 (1946), People v Scouten, 130 Mich 620; 90 NW 332 (1902). Whether such testimony should be excluded because of the lapse of time between the incident and the examination must be determined in light of the facts and circumstances of the case. People v Inman, supra.

However, a foundation must be laid for such testimony. There must be some evidence of the complainant’s physical condition prior to the alleged assault. People v McGillen #2, 392 Mich 278; 220 NW2d 689 (1974), see People v Inman, supra.

In the instant case, there was no evidence concerning the complainant’s physical condition prior to the alleged incident. Unless such evidence is introduced, the medical testimony is irrelevant and immaterial. People v McGillen #2, supra.

Reversed and remanded for a new trial.

Beasley, J., concurs in the result only.

       Our disposition of the issues recited make it unnecessary to discuss the other issues raised by defendant.

       The police report indicated that the victim had stated that both the defendant and Bernie (the 14-year-old-boy) "did this to me, but I didn’t get pregnant”. It is apparent from the record that the prosecutor was also aware of the prior incident.

       The complainant’s testimony indicated that the two witnesses were the fourth (Mrs. Peek) and fifth (Sgt. Beadle) persons whom she had told. Mrs. Peek’s testimony indicated that, based on what the complainant had told her, she was the sixth person and Sgt. Beadle the eighth.
      Complicating the situation is the fact that the complainant’s mother contradicted her daughter’s allegation that she had reported the assault to her. If that testimony was accurate, the first complaint was made to one of Mrs. Peek’s children who was available at trial.
      In any event, it is clear that the testimony given did not describe the original complaint.

       On cross-examination, the doctor testified that the condition was also consistent with the child’s deliberate insertion of a foreign object into her vagina, accidental injury, disease, or congenital abnormality.

       The only purpose for which the doctor’s testimony was relevant was to establish an element of the crime, i.e. penetration. As such, its only relevance to the charged offense was to show inferentially that the defendant effected sexual penetration of the victim. It was, therefore, evidence pertaining to the guilt of the defendant.

         See also 1 Wharton’s Criminal Evidence (13th ed, 1972), § 237, p 523; 65 Am Jur 2d, Rape, § 85, p 811; 75 ALR2d 508, § 3[b], p 518; 140 ALR 364.

       On retrial it will be necessary for the court to determine to whom the complainant originally told her story.


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

text:
    MIRACLE BOOT PULLER COMPANY, LIMITED v PLASTRAY CORPORATION
    Docket No. 26913.
    Submitted April 6, 1977, at Lansing.
    Decided June 19, 1978.
    Leave to appeal applied for.
    Miracle Boot Puller Company Limited, a Canadian corporation, obtained a United States patent on a boot puller. It purchased a mold and manufactured and distributed the boot puller in the United States and Canada. Miracle Boot Puller Company Limited entered into a contract with Magloire Lucier granting Mr. Lucier a possessory right to the mold and exclusive right and license in the United States to the patent on the boot puller. After the mold was delivered to Mr. Lucier, he delivered the mold to Plastray Corporation, a Michigan corporation, contrary to the terms of the contract. Miracle Boot Puller Company Limited sued Plastray Corporation for damages for breach of contract, conversion of the mold and conversion of the intangible property right to benefit from the patent. Summary judgment was granted to defendant. Plaintiff appealed to the Court of Appeals, which reversed and remanded. Miracle Boot Puller Co, Ltd v Plastray Corp, 57 Mich App 443; 225 NW2d 800 (1975). On retrial, plaintiff obtained a verdict and the Macomb Circuit Court, Robert J. Chrzanowski, J., entered judgment accordingly. Defendant appeals and claims inter alia that the trial court had no jurisdiction in a suit involving a patent. Held:

    1. The question of the jurisdiction of the court over the subject matter is one which cannot be waived and may be raised at any time by the parties or by the court on its own motion.
    2. A cause of action for "conversion of patent rights” is a claim "arising under” the patent law over which Federal courts have exclusive jurisdiction: state courts have no jurisdiction to consider such a claim.

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts §§ 88, 92, 95, 97, 105, 139.
    [2, 5] 60 Am Jur 2d, Patents § 283 et seq.

    [3] 58 Am Jur 2d, New Trial § 3 et seq.

    76 Am Jur 2d, Trial § 1111.
    [4] 5 Am Jur 2d, Appeal and Error § 744.
    50 Am Jur 2d, Courts § 74.

      3. Judgment on a general verdict must be set aside where the jury considered a claim over which the court had jurisdiction and claims over which it did not and it cannot be determined upon which claim the jury returned a verdict.
    Reversed and remanded.
    Bronson, J., dissented. He would hold that the Court of Appeals is bound to follow its own prior ruling in this case that the plaintiff stated a cause of action submissible to a jury for conversion of patent rights; it may not now in the same case determine that the cause is one over which the Federal courts have exclusive jurisdiction. He would affirm.
    Opinion of the Court
    1. Courts — Jurisdiction—Subject Matter Jurisdiction.
    The issue of jurisdiction over the subject matter may be raised at any time by any party or may be considered by the court on its own motion; objection to subject matter jurisdiction cannot be waived.
    2. Courts — Jurisdiction—Patents—Conversion of Patent Rights.
    A complaint for conversion of patent rights states a claim "arising under” the patent law and Federal courts have exclusive jurisdiction over such claims.
    3. New Trial — Verdicts—General Verdicts — Multiple Theories.
    A new trial must be granted in a case where the jury returned a general verdict after submission of a case upon several theories, ■ some of which the court lacked jurisdiction to consider.
    Dissent by Bronson, P. J.
    4. Appeal and Error — Courts—Law of the Case.

      Prior decisions of the same court in the same cause become law of the case and may not be reexamined for error.

    5. Appeal and Error — Jurisdiction—State Jurisdiction — Federal Jurisdiction — Law of the Case — Patents—Conversion.

      The Court of Appeals is bound to follow its own prior ruling in a case where it previously ruled that a plaintiff stated a cause of action submissible to a jury for conversion of patent rights; it

      may not later in the same case determine that the cause is one over which the Federal courts have exclusive jurisdiction.

      Shrauger, Shively & Dunn, for plaintiff.

      James H. Hudnut, P. C. (Jay L. Cooke, of counsel) and Fisher, Gerhardt & Groh, for defendants.
    Before: Bronson, P. J., and M. F. Cavanagh and C. J. Byrns, JJ.

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

   M. F. Cavanagh, J.

We cannot agree with our brother Bronson’s disposition of the troublesome question of jurisdiction involved herein.

Our brother begins his analysis by conceding that:

"While this [Court’s previous] holding assumes that a state court has jurisdiction over such a conversion claim, the Court never so determined; the specific issue of jurisdiction was never raised nor addressed. (Emphasis added.)

Yet, a few paragraphs later he states:

"Thus, as we held that plaintiff’s claim arose under state law, state courts had jurisdiction over the claim.” (Emphasis added.)

The prior decision never held that plaintiff’s claim arose under state law for purposes of state, as opposed to exclusive Federal, jurisdiction.

In relevant part, the previous opinion of this Court states:

"Plaintiff also asserts that there was sufficient evidence to warrant submission to the jury the question of conversion of patent rights and the mold. We agree.
"The mold being a specifiable, physical chattel can be the subject of conversion; likewise, intangible personal property can also be the subject of conversion. Warren Tool Co v Stephenson, 11 Mich App 274, 298; 161 NW2d 133, 147 (1968), and Tuuk v Andersen, 21 Mich App 1, 13; 175 NW2d 322, 328 (1969). As such, the intangible right to benefit from a patent right can be converted.” Miracle Boot Puller Co, Ltd v Plastray Corp, 57 Mich App 443, 450-451; 225 NW2d 800 (1975). (Footnotes omitted.)

Again, there is no discussion here of jurisdiction. Our brother concedes that "this holding assumes that a state court has jurisdiction over such a conversion claim”. However, as was stated by Justice Cooley in Allen v Duffie, 43 Mich 1, 11; 4 NW 427 (1880), "A point thus assumed without consideration is of course not decided”. On point, and to our minds dispositive, is the following language from City of Stuart v Green, 91 F2d 603, 604 (CA 5, 1937):

"It is contended that the question of jurisdiction was foreclosed by the decision of this court on the former appeal, but, as the question was not raised by any of the parties or decided by the court, we know of no principle in the doctrine of estoppel or the doctrine of the law of the case which relieves us of the duty of considering and determining whether the cause was properly brought in the federal court. The objection is one which cannot be waived, and may be raised by the parties at any time or considered by the court on its own motion. Utah-Nevada Co v Delamar (C.C.A.) 133 F. 113.”

Looking squarely at the question, we are convinced the state court has no jurisdiction to resolve this dispute. While it is clear that the state is empowered to hear and resolve "conversion” claims, it is equally clear that this does not resolve the issue before us. Providing for exclusive Federal jurisdiction, as Congress has for patent infringement suits (28 USC § 1338[a]), would be a meaningless exercise if a complaint were not, on its face, one for which there would otherwise be concurrent state jurisdiction. The very function of the exclusive Federal jurisdiction statute is to oust any concurrent state jurisdiction. Therefore, our starting point must be whether this suit was one "arising under” the patent law1, for which exclusive jurisdiction is vested in the Federal courts.

In 60 Am Jur 2d, Patents, § 4, p 335, it is stated:

"An inventor has no common-law right to a monopoly of his invention. He has the right to make, use, and vend his own invention, but if he voluntarily discloses it, such as by oifering it for sale, the world is free to copy and use it with impunity. A patent, however, gives the inventor the right to exclude all others. As a patentee, he has the exclusive right of 'making, using, or selling the invention throughout the United States.’ The right to 'make’ within the meaning of the patent law embraces the construction of the thing invented; the right to 'use’ embraces within its meaning the right to put into service any given invention; and the right to 'sell’ secures to the inventor the exclusive right to transfer the title for a consideration to others; in these exclusive rights to make, use, and sell, fairly construed, reside the extent of the patent monopoly under the statutes of the United States.”

The conduct alleged in the count for "conversion of patent rights” was wrong only by virtue of the Federal patent law. Therefore, this claim was one "arising under” the patent law and the state court had no jurisdiction to consider it. We hold that it was error to allow it to go to the jury. Because the jury returned a general verdict, and it is impossible to tell whether it rested upon the conversion claim or one of the other claims, we reverse and remand for a new trial. See Rock v Derrick, 51 Mich App 704, 709; 216 NW2d 496 (1974), lv den, 391 Mich 836 (1974). Costs to appellant.

C. J. Byrns, J., concurred.

Bronson, P. J.

(dissenting). I respectfully dissent.

Defendant appeals a jury verdict of $35,000 in favor of plaintiff based in part on plaintiff’s claim of damages for conversion of a mold used to manufacture a patented "boot puller” and also on conversion of the intangible property rights to benefit from the patent.

The majority holds that the state court did not have jurisdiction to hear plaintiff’s claim for conversion of patent rights, as that claim is actually a claim for patent infringement over which Federal courts have exclusive jurisdiction.

This Court held on the prior appeal that plaintiff’s claim for conversion of the right to benefit from a patent stated a claim that could be submitted to the jury:

"The mold being a specifiable, physical chattel can be the subject of conversion; likewise, intangible personal property can also be the subject of conversion. Warren Tool Co v Stephenson, 11 Mich App 274, 298; 161 NW2d 133, 147 (1968), and Tuuk v Andersen, 21 Mich App 1, 13; 175 NW2d 322, 328 (1969). As such, the intangible right to benefit from a patent right can be converted.
"This case is reversed and remanded for determination by the jury based on contract and conversion.” Miracle Boot Puller Co, Ltd v Plastray Corp, 57 Mich App 443, 450-451; 225 NW2d 800 (1975).

While this holding assumes that a state court has jurisdiction over such a conversion claim, the Court never so determined; the specific issue of jurisdiction was neither raised nor addressed.

In Allen v Michigan Bell Telephone Co, 61 Mich App 62, 65; 232 NW2d 302 (1975), this Court stated:

"The term 'law of the case’, as generally used, designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain the same.” (Citations omitted.) (Emphasis added.)

This language indicates that the law of the case doctrine requires that the court actually have before it and address a legal question. As the jurisdiction issue was neither raised by the parties nor specifically addressed by this Court on the previous appeal, the law of the case doctrine is inapplicable to the jurisdiction issue. We must consider defendant’s claim on its merits.

A & C Engineering Co v Atherholt, 355 Mich 677, 681-682; 95 NW2d 871 (1959), quoting LA Young Spring & Wire Corp v Falls, 293 Mich 602; 292 NW 498 (1940), states the Michigan test for state court jurisdiction in proceedings involving patent issues:

"The key to the correct rule is the distinction between a 'case’ arising under the patent laws and a 'question’ arising under those laws. Pratt v Paris Gas Light & Coke Co. (1897), 168 US 255 (18 S Ct 62, 42 L Ed 458).
"Reduced to its lowest terms, the correct rule is that if the plaintiff founds his suit directly on a breach of some right created by the patent laws, he makes a case arising under those laws and only a Federal court has jurisdiction; but if he founds his suit on some right vested in him by the common law, or by general equity jurisprudence, he makes a case arising under State law and only a State court has jurisdiction. * * * A case founded on a principle of tort, contract, or equity law is a case arising under State law.”

Thus, the question is whether plaintiffs claim is based on some right created by state law or whether its claim arises under Federal patent law.

On the prior appeal, this Court held that plaintiff had properly pleaded a state cause of action in his claim for damages for conversion of the right to benefit from a patent. This holding became the "law of the case”. Thus, as we held that plaintiffs claim arose under state law, state courts had jurisdiction over the claim. A & C Engineering Co v Atherholt, supra.

In Damon v DeBar, 94 Mich 594, 595; 54 NW 300 (1893), the Court stated:

"It is well settled that a rule of law, as laid down by this Court in the decision of a cause, is to be applied, upon the same state of facts, in all subsequent proceedings in that cause.”

There, the Court refused to consider appellant’s claim that the prior decision was erroneous. The same rule was recited in Terrill v Michigan United Traction Co, 214 Mich 478; 183 NW 46 (1921). Again, the Court did not review the prior holding for possible error. In American Ins Co of Newark v Martinek, 216 Mich 421, 423; 185 NW 683 (1921), quoting Pierce v Underwood, 112 Mich 186, 187; 70 NW 419 (1897), the Court held:

"If it is claimed that the conclusions of law reached on the former hearing were erroneous, the remedy is by a motion for a rehearing, but a ruling of this court in a case becomes the law of the case to govern a new trial, and is not subject to review thereafter.”

In Leland v Ford, 252 Mich 547, 548; 233 NW 410 (1930), Justice Sharpe, writing for the majority, stated:

"While the writer of this opinion was not in accord with the conclusion reached by a majority of the court, the decision then rendered must be treated as law of the case.”

Significant also is Chief Justice West’s opinion in Leland, in which he concurred, even though he had dissented in the previous case, because he felt the Court was bound by the law of the case.

Thus, the settled law in Michigan is that prior decisions of the same court in the same cause become law of the case and may not be reexamined for error. This Court is bound to follow the substantial Supreme Court authority which accepts this proposition. Therefore, while I do not necessarily agree with the law previously established in this case, I would follow it.

Accepting as law of the case this Court’s prior determination that Michigan law recognizes a state cause of action for conversion of the right to benefit from a patent, I would hold that the state trial court had jurisdiction to decide this case. Under A & C Engineering Co v Atherholt, supra, plaintiff has stated a claim that arises under state law. The state courts therefore had jurisdiction over that claim even though the facts alleged also would support a patent infringement claim. American Harley Corp v Irvin Industries, Inc, 27 NY2d 168; 315 NYS2d 129; 263 NE2d 552 (1970), Koratron Co, Inc v Deering-Milliken, Inc, 418 F2d 1314 (CA9, 1969). See, generally, 10 ALR Fed 636.

As defendant’s other allegations of error are meritless, I would affirm.

       "Defendant did not file a brief in that appeal.”

       On a prior appeal, this Court held that plaintiffs claim for conversion of intangible property rights (the right to benefit from the patent) stated a jury-submissible claim. Miracle Boot Puller Co, Ltd v Plastray Corp, 57 Mich App 443; 225 NW2d 800 (1975).
      Plaintiffs complaint included four counts, two based on breach of contract, one based on conversion of patent rights and one based on infringement of patent rights. The last count was dropped before trial.

       35 USC 271.

       Defendant did not file a brief in that appeal.

         The cases cited above indicate that Michigan applies the "law of the case” as an absolute doctrine. See, 87 ALR2d 271, 290. Even assuming that a more flexible interpretation of that doctrine applies, we would follow the prior determination that plaintiff had a jurysubmissible state cause of action, in the interest of finality of this protracted litigation.


author: H. L. Heading, J. V. J. Brennan, P. J.

text:
    PEOPLE v FLORINCHI
    Docket No. 27855.
    Submitted December 14, 1977, at Lansing.
    Decided June 19, 1978.
    Leave to appeal applied for.
    Timothy L. Florinchi was convicted of second-degree murder, Shiawassee Circuit Court, Peter J. Marutiak, J. The defendant’s pretrial motion for discovery of all reports of named police officers and of all laboratory reports had been denied, based on the prosecutor’s representations that all such reports had been furnished to defense counsel. The defendant appeals alleging that all reports had not been furnished and that the trial judge abused his discretion in denying a motion for a change of venue. Held:

    The prosecutor did not fulfill his duty to see that justice was done by failing to furnish to the defense certain tip sheets which might have produced evidence leading the jury to entertain a reasonable doubt as to the defendant’s guilt. There was no abuse of discretion in denying the motion for change of venue.
    Reversed and remanded.
    V. J. Brennan, P. J., dissented. He would hold that the internal police "tip sheets” were not subject to discovery and would affirm the conviction.
    References for Points in Headnotes
    [1-5, 7] 21 Am Jur 2d, Criminal Law §§ 225, 328.
    29 Am Jur 2d, Evidence §§ 771, 842 et seq.

    Right of accused in state courts to inspection or disclosure of evidence in possession of prosecution. 7 ALR3d 8.
    Withholding or suppression of evidence by prosecution in criminal case as vitiating conviction. 34 ALR3d 16.
    [2] 23 Am Jur 2d, Depositions and Discovery § 307 et seq.

    [4] 63 Am Jur 2d, Prosecuting Attorneys §§ 26, 27.
    [6] 77 Am Jur 2d, Venue §§ 58-60, 79, 84.
    Construction and effect of statutory provision for change of venue for the promotion of the convenience of witnesses and the ends of justice. 74 ALR2d 16.
    Change of venue: pretrial publicity in criminal case as ground for change of venue. 33 ALR3d 17.

      Opinion of the Court
    1. Criminal Law — Evidence—Production of Evidence — Issue of Guilt — Control of Prosecutor — Witnesses—Impeachment.
    A defendant is entitled to have produced at trial all the evidence bearing on his guilt or innocence which is within the control of the prosecutor, including prior statements of witnesses which may be used for impeachment.
    2. Criminal Law — Constitutional Law — Due Process — Pretrial Discovery — Preparation of Defense.
    Considerations of due process and fairness require that a defendant be allowed pretrial discovery of any information necessary to the preparation of the defense; suppression by the prosecutor of evidence favorable to an accused is a violation of due process.
    3. Criminal Law — Constitutional Law — Due Process — Evidence— Disclosure of Evidence by Prosecutor — Material Evidence.
    The due process requirement that the prosecution disclose all material evidence which may be favorable to an accused applies to evidence which might lead a jury to entertain a reasonable doubt about a defendant’s guilt and this test should be liberally construed whenever there is substantial room for doubt as to the effect disclosure might have.
    4. Criminal Law — Justice—Prosecutor’s Duty.
    A prosecutor has a duty to see that justice is done, not merely to convict.
    5. Criminal Law — Discovery—Police Reports — Prosecutor’s Duty.
    A prosecutor, once he represented to the trial court that he would furnish a defendant with all police reports, became bound, in the interest of fundamental fairness and in view of his duty to see justice done, to place a broad interpretation on the term "police reports” and to err on the side of giving away too much rather than too little; a prosecutor is not free to avoid a discovery order by agreeing to voluntary discovery and then arguing that the defendant is not entitled to discovery or that materials within his control are not covered by the agreement because they are denominated "tip sheets” rather than police reports.
    6. Venue — Motions—Discretion—Abuse of Discretion — Pretrial Publicity — Burden of Proof.
    A motion for a change of venue is addressed to the discretion of the trial court, and the trial court’s decision will not be set aside absent a clear showing of abuse of discretion; the burden of establishing that prospective jurors have been influenced by pretrial publicity is on the party seeking the change of venue, and merely showing that jurors have been exposed to pretrial publicity is not sufficient in itself.
    Dissent by V. J. Brennan, P. J.
    7. Criminal Law — Witnesses—Res Gestae Witnesses — Discovery— Tip Sheets — Police Reports.

      Witnesses who were not part of the res gestae of a crime are not required to be indorsed or produced by the prosecutor, and internal police "tip sheets’’ are not subject to discovery by a defendant as official police reports.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald D. Lostracco, Prosecuting Attorney, for the people.

      F. Martin Tieber, Assistant State Appellate Defender, for defendant on appeal.
    Before: V. J. Brennan, P. J., and D. F. Walsh and H. L. Heading, JJ.

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

   H. L. Heading, J.

Defendant was convicted by a jury of second-degree murder, MCL 750.317, MSA 28.549, and was sentenced to a term of 15 to 25 years imprisonment. He appeals as of right, alleging several errors in the proceedings below.

Defendant was charged with the murder of one Jack Vincent, whose body was found near his muddy and blood-bespattered automobile in Rosevear Park in Owosso on the morning of April 13, 1975. Death apparently resulted either from multiple stab wounds to the chest and back, caused by a large knife, or from crushing of the chest and pelvis, possibly the result of having been run over by an automobile. The muddy area in which the body was found bore numerous automobile tire tracks, and blood of the same type as that of the victim was found on the front bumper and right front fender of the victim’s automobile.

In the victim’s automobile were found a jacket containing a small amount of money, the victim’s wallet, and a hunting knife identified as belonging to the victim and stained with blood of the same type as that of the victim. Also found in the mud near the body was a .38-caliber revolver similar to one seen in the possession of the victim on the evening before the body was discovered. Defendant’s fingerprints were found in the victim’s automobile, on both the inside and outside of both car doors.

Rebecca Daniels testified that she danced with defendant at a local bar shortly after midnight on April 13, and accompanied him to a table where the victim was sitting, where defendant attempted to enlist her aid in obtaining money from the victim. She also testified that the victim asked her to marry him. She testified that the victim offered to sell defendant something and that the two men went outside to look at the object for sale, at which time she left the table to join other friends.

Defendant testified that he had been in the company of the victim and Miss Daniels, but denied having said he wanted to get money from the victim. He testified that the victim offered to sell him a gun, and that they went to the victim’s automobile to see it, both men entering through the left door. He testified that when the bar closed, the victim offered him a ride, which he accepted. At that time he entered the automobile through the right side door. According to the defendant, the victim drove him to another bar, where they parted company. The bar being closed, defendant walked home.

The remaining evidence linking defendant with the crime consisted of testimony of two women, both under sentence for heroin possession or sale, that defendant told them a few days after the murder that he had stabbed the victim after the victim made sexual advances to him. Defendant admitted having said he killed Vincent, but maintained that the remark was only a joke.

Other testimony at trial revealed that the victim had been in another local bar earlier on the evening before his death, where he offered to sell a pistol to the bartender and several customers. He also asked a woman patron, one Patricia Shane, to go out with him and to marry him, actions which displeased Ms. Shane’s boyfriend.

There was also evidence that the victim was engaged in a close relationship with one Carolyn Donlan, a relationship of which Mrs. Donlan’s husband had recently become aware. The victim had in fact called Mrs. Donlan and arranged to meet her early in the evening, but failed to keep the appointment. The defense called two witnesses who testified that the victim had on two occasions told them that he carried a weapon in anticipation of a fight with Mrs. Donlan’s husband, an encounter which he expected only one of them to survive.

Prior to trial, defendant filed a motion for discovery of all reports of named police officers and all laboratory reports. The motion was denied by the court on the basis of representations by the prosecutor that he had furnished all such reports to defense counsel.

At trial, it soon became evident that there existed police reports which had not been furnished to defense counsel. Most notably, it was revealed during cross-examination of Detective Bart Barnes that defense counsel had not been furnished certain documents, known as tip sheets, on which the police recorded information received from informants which was in some way connected to the investigation of the case. Among the tips received by the police and recorded on tip sheets were: 1) a threat allegedly made against decedent by a man brandishing a knife, on April 11, 1975; 2) an incident in which the victim told acquaintances that he expected to have a run-in with his girlfriend’s husband; 3) a statement by a citizen that he had seen the victim’s automobile turn off its lights and run a red light at approximately 1:45 a.m. on April 13, 1975; and 4) a report that certain named individuals had been in the park where the body was found during the night of the murder. Some of the persons revealed in the report as possible witnesses were presented as defense witnesses later in the trial. Others, however, were unavailable as witnesses, by reason of having left the state.

It has long been the law in this state that a defendant is entitled to have produced at trial all the evidence bearing on his guilt or innocence which is within the control of the prosecutor, including prior statements of witnesses which may be used for impeachment, People v Dellabonda, 265 Mich 486; 251 NW 594 (1933), People v Davis, 52 Mich 569; 18 NW 362 (1884).

The right to pretrial discovery in criminal matters, however, is of more recent origin. At common law, defendant had no right to discover any evidence held by the prosecutor, People v Johnson, 356 Mich 619; 97 NW2d 739 (1959). Considerations of due process and fundamental fairness, however, led the courts to develop a rule that pretrial discovery of things admissible in evidence was a matter within the sound discretion of the trial court, People v Johnson, supra, People v Mara nian, 359 Mich 361; 102 NW2d 568 (1960). Recent cases have recognized that discovery is not necessarily limited to evidence admissible at trial, but may extend to any information necessary to the preparation of the defense, People v Walton, 71 Mich App 478; 247 NW2d 378 (1976).

The United States Supreme Court in Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), held that suppression by the prosecutor of evidence favorable to an accused is a violation of due process. Discussing the limits of the prosecutor’s duty, this Court said in People v Eddington, 53 Mich App 200, 206; 218 NW2d 831 (1974):

"While hindsight eases appellate courts’ judgments as to what is favorable evidence, neither prosecution, defense, nor trial judges are so blessed. Favorable evidence is elsewhere defined as all 'evidence which * * * might have led the jury to entertain a reasonable doubt about * * * guilt’. Levin v Katzenbach, 124 US App DC 158, 162; 363 F2d 287, 291 (1966). The test should be liberally construed especially when 'substantial room for doubt’ exists as to the effect disclosure might have. United States v Bryant, 142 US App DC 132, 138; 439 F2d 642, 648 (1971).”

Accord, People v Stark, 73 Mich App 332; 251 NW2d 574 (1977).

In the case now before us, defendant’s motion for discovery was denied by the trial court in an order which noted that the prosecutor had assured the court that all police reports had already been turned over to the defense. Thus, technically, the prosecutor was under no compulsion to afford defense counsel access to potentially favorable evidence prior to trial.

. The prosecutor argues that tip sheets are not police reports and, further, that defendant has no right to discovery. However, the prosecutor has a duty to see that justice is done, not merely to convict, People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). Once the prosecutor represented to the trial court that he would furnish defendant with all police reports, he became bound, in the interest of fundamental fairness and in view of his duty to see justice done, to place a broad interpretation on the term "police reports”, and to err on the side of giving away too much rather than too little. He is not free, as he did here, to avoid a discovery order by agreeing to voluntary discovery, then to argue that defendant is not entitled to discovery or that materials within his control are not covered by the agreement because they are denominated "tip sheets” rather than police reports.

Defendant next contends that the trial court erred in denying his motion for a change of venue. Such a motion is addressed to the discretion of the trial court, and its decision will not be set aside absent a clear showing of abuse of discretion, People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975). The burden of establishing that prospective jurors have been influenced by pretrial publicity is on the party seeking the change of venue, and merely showing that jurors have been exposed to pretrial publicity is not in itself sufficient, People v Stockard, 48 Mich App 680; 211 NW2d 62 (1973), aff’d, 391 Mich 481; 219 NW2d 68 (1974), People v Moore, 51 Mich App 48; 214 NW2d 548 (1974).

The record does not reveal any abuse of discretion in the denial of a change of venue. Pretrial publicity, although extensive, was not inflammatory or biased, People v Garland, 44 Mich App 243; 205 NW2d 195 (1972), rev’d other grounds, 393 Mich 215; 224 NW2d 45 (1974). Moreover, extensive voir dire revealed only five jurors who had knowledge about the case.

Defendant has failed to preserve his claim of error regarding improper rebuttal testimony of a police officer by timely objection at trial. Defendant’s other claims of error are without merit.

Reversed and remanded for a new trial.

D. F. Walsh, J., concurred.

V. J. Brennan, P. J.

(dissenting). I concur in my brother Heading’s opinion on all issues except that pertaining to the prosecutor’s failure to disclose all records and witnesses to defense counsel prior to trial.

The trial court ordered the prosecution to submit a complete list of witnesses as well as all the admissible police reports to defendant. To the best of its ability, the prosecution did so. I would only note that I share the prosecution’s position that witnesses who were not a part of the res gestae of the crime are not required to be endorsed or produced by the prosecution and that internal police "tip sheets” are not discoverable as official "police reports”. See, regarding res gestae witnesses, People v Harrison, 44 Mich App 578, 585-586; 205 NW2d 900 (1973). See, regarding internal departmental police "tip sheets”, People v Walton, 71 Mich App 478, 485; 247 NW2d 378 (1976).

Beyond these matters, the trial court also ordered a private investigation to be conducted by an investigator hired by defendant and paid by Shiawassee County. This investigation occurred and provided defendant valuable information. Generally, in fact, defendant was given wide latitude in regard to all he requested.

Defendant was allowed to develop completely his theories of the case. Because of extensive cross-examination by defense counsel, the jury knew the entire background of every prosecution witness. Defense counsel and the prosecution delved thoroughly into the previous police records of witnesses. Through defense counsel’s able and extensive cross-examination, any potential advantage to be gained by a witness’s testifying against defendant was exposed.

In short, defense counsel obtained every advantage for his client which a very strong prosecution, admittedly based on circumstantial evidence, would permit. I thus find no error in the trial court’s consideration and handling of this case. I would vote to affirm defendant’s conviction.


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

text:
    PEOPLE v HANSMA
    Docket No. 28850.
    Submitted October 6, 1977, at Grand Rapids.
    Decided June 19, 1978.
    Gregg J. D. Hansma was convicted of first-degree murder in Kalamazoo Circuit Court, Raymond W. Fox, J. Defendant appeals, alleging several errors in the court’s instructions to the jury. Held:

    1. The trial court’s refusal to give a requested instruction on manslaughter was reversible error.
    2. The trial court’s instruction on first-degree murder was erroneous in that it removed the element of malice from the jury’s consideration. The jury verdict of guilty was therefore tantamount to a conviction of manslaughter.
    3. The trial court erroneously refused to give the jury an instruction on the defense of intoxication on the basis that it was inconsistent with the defendant’s theory of alibi. The defendant is entitled to raise inconsistent defenses and the trial court must instruct on the defendant’s theory if there is any evidence to establish the defense. The refusal was harmless error, however, in light of the disposition of the case by the Court of Appeals.

      References for Points in Headnotes
    [1] 40 Am Jur 2d, Homicide §§ 525, 528-530, 533-535.
    [2] 40 Am Jur 2d, Homicide §§ 498-500.
    [3] 40 Am Jur 2d, Homicide § 500.
    [4] 21 Am Jur 2d, Criminal Law § 142. •
    [5] 75 Am Jur 2d, Trial § 588.
    [6] 75 Am Jur 2d, Trial §§ 743, 744.
    [7] 40 Am Jur 2d, Homicide § 129.
    Modern status of the rules as to voluntary intoxication as defense to criminal charge. 8 ALR3d 1236.
    [8] 21 Am Jur 2d, Criminal Law § 251.
    Accused’s right to speedy trial under Federal Constitution — Supreme Court Cases. 21 L Ed 2d 905.
    [9] 75 Am Jur 2d, Trial §§ 729-731.
    Duty of court, in absence of specific request, to instruct on subject of alibi. 72 ALR3d 547.
    [10] 40 Am Jur 2d, Homicide § 496.
    [11] 75 Am Jur 2d, Trial §§ 876, 882.

      4. Defendant was not denied his right to a speedy trial.
    5. The court’s alibi instruction was not reversibly erroneous.
    6. Defendant’s contention that the jury returned an ambiguous verdict is rendered moot by the Court of Appeals’ disposition of the case.
    Reversed and remanded.
    M. J. Kelly, J., concurred in the result but would hold that an omission to instruct on malice should not be reversible error unless properly preserved for review by objection or because the trial court refused to give a properly requested instruction. Judge Kelly also points out that the Michigan Supreme Court has recently held that manslaughter is not a necessarily included offense within the crime of murder, but may be if the evidence presented at trial would support a verdict of guilty of manslaughter.
    Opinion of the Court
    1. Homicide — Instructions to Jury — Murder—Manslaughter.
    A trial court’s refusal to give the jury a requested instruction on manslaughter in a trial for murder is reversible error.
    2. Homicide — Murder—Instructions to Jury — Malice.
    An instruction to the jury in a trial for murder that if they found that the victim’s "death occurred as a result of the attempt to commit the crime of robbery by this defendant, that is felony murder” removed the element of malice, essential to a conviction of first-degree murder, from the jury’s consideration and is therefore erroneous.
    3. Homicide — First-Degree Murder — Instructions to Jury-Malice — Manslaughter.
    Reversal of a defendant’s conviction of first-degree murder is not necessary even though the trial court’s instructions to the jury erroneously allowed the jury to convict the defendant without a finding of malice, where such a verdict is tantamount to a conviction of manslaughter and the Court of Appeals has already remanded the case for entry of a judgment of guilty of manslaughter for other reasons.
    4. Criminal Law — Defenses—Inconsistent Defenses — Intoxication — Alibi.
    A defendant in a criminal case is entitled to raise inconsistent defenses; the alternative defenses of intoxication and alibi both may be raised.
    5. Criminal Law — Instructions to Jury — Dependant’s Theory of Case.
    It is the duty of the trial court to cover in its charge to the jury in a criminal prosecution the theory upon which the defense is founded, if a proper request is made and supported by competent testimony.
    6. Criminal Law — Instructions to Jury — Intoxication—Supporting Evidence.
    A defendant is entitled to a requested instruction on intoxication if there is any evidence tending to establish the defense.
    7. Criminal Law — Instructions to Jury — Intoxication—Manslaughter — Harmless Error.
    Refusal to instruct the jury on intoxication was rendered harmless error where although the defendant was charged with a specific intent crime his conviction of first-degree murder is reduced by the Court of Appeals to a conviction of manslaughter, to which intoxication is not a defense.
    8. Criminal Law — Speedy Trial — Delay—Presumption op Prejudice.
    A delay of less than 18 months between a defendant’s arrest and commencement of his trial does not result in a presumption of prejudice.
    9. Criminal Law — Instructions to Jury — Alibi.
    A defendant’s contention that the trial court’s jury instruction on alibi was erroneous is without merit where the defendant did not file a notice of alibi, did not request an alibi instruction or object to the instruction given, and where the court specifically instructed that the defendant must be acquitted if the jury found that he was not present at the scene of the offense or if the evidence raised a reasonable doubt in their minds on this point.
    Concurrence by M. J. Kelly, J.
    10. Homicide — Instructions to Jury — Malice—Preserving Question.

      Omission by a trial court of an instruction on malice in a homicide trial should not be reversible error, whether the court uses the word murder or killing in its instruction, unless

      properly preserved for review by objection or where the trial court refused to give a properly requested instruction.

    11. Homicide — Manslaughter—Murder—Necessarily Included Offenses.

      Manslaughter is not a necessarily included offense within the crime of murder but may be so if the evidence adduced at trial would support a verdict of guilty of manslaughter.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.

      DeVries & Lamb, P. C., for defendant on appeal.
    Before: M. F. Cavanagh, P. J., and Bronson and M. J. Kelly, JJ.
   M. F. Cavanagh, P. J.

Defendant allegedly shot to death one John Bowler, a service station attendant, when Bowler resisted defendant’s attempted robbery. Defendant was brought to trial and the jury instructed on felony (first-degree) murder, MCL 750.316; MSA 28.548, and second-degree murder, MCL 750.317; MSA 28.549. The jury’s verdict was "guilty as charged”. Defense counsel, the prosecutor and the court all interpreted this verdict as guilty of first-degree murder. Defendant was subsequently sentenced to life imprisonment. He appeals by right.

I

Defense counsel, arguing that there was evidence that the killing occurred during a struggle, requested a jury instruction on manslaughter. MCL 750.321; MSA 28.553. The court refused to give this instruction. Defendant now contends, and we agree, that this was error. Cf. People v Van Wyck, 72 Mich App 101; 249 NW2d 311 (1976), rev’d, 402 Mich 266; 262 NW2d 638 (1978). See also People v Paul, 395 Mich 444, 447-450; 236 NW2d 486, 488 (1975), People v Dykes, 37 Mich App 555, 558-559; 195 NW2d 14, 16 (1972), People v Robert Brown, 37 Mich App 565, 568-570; 195 NW2d 60, 62 (1972), lv den, 387 Mich 763 (1972). Defendant’s conviction of first-degree murder is reversed and the case remanded for entry of a judgment of conviction of the lesser included offense of manslaughter and for resentencing. If, however, the prosecuting attorney is persuaded that the ends of justice would be better served, upon notification to the trial court before resentencing, the trial court shall vacate the judgment of conviction and grant a new trial on the charge that the defendant committed the crime of first-degree murder. See People v Jenkins, 395 Mich 440, 442-443; 236 NW2d 503, 504 (1975).

II

Defendant next contends that the court erred in its instructions on first-degree murder. Over objection by defense counsel, the court gave the following charge:

"The fifth element in felony murder is that the defendant caused the death of John Bowler without justification, excuse or mitigation. It is no defense to this charge that the death of John Bowler was the result of an accident. If you ñnd beyond a reasonable doubt that the death occurred as a result of the attempt to commit the crime of robbery by this defendant, that is felony murder. (Emphasis added.)

In People v Fountain, 71 Mich App 491, 505-506; 248 NW2d 589, 596 (1976), this Court considered a claim that very similar instructions constituted reversible error. After a careful analysis of Michigan case law, the Fountain Court concluded:

"Michigan has neither a statutory felony-murder doctrine nor a common law felony-murder doctrine. Malice is not, in this state, imputed to an act of killing from the intent to commit an underlying felony. Although malice may be inferred from the nature of the underlying felony and the circumstances surrounding its commission, the presence or absence of malice in each case remains a question for jury determination.
"Insofar as the trial court’s instructions removed the essential element of malice from the jury’s consideration, they were erroneous.”

Comparable instructions were before the Court in People v Wright, 80 Mich App 172, 178; 262 NW2d 917 (1977), wherein the Court, finding reversible error, stated:

"First-degree felony murder is murder in the second degree plus the element of perpetration of an enumerated felony. * * * Since the law may not impute malice to a second-degree murder, * * * it accordingly may not impute the malice requisite to a conviction of first-degree felony murder.” (Citations omitted.)

Although one other panel of this Court has disagreed (See People v Till, 80 Mich App 16; 263 NW2d 586 [1977]), we remain persuaded that Fountain and Wright correctly state the law. Under that law, the court’s instructions on felony murder in the instant case were erroneous.

We have given very serious consideration to the argument that these instructions, when read as a whole, do not take the element of malice from the jury. We reject this argument.

Because we have concluded that the instructions here were erroneous, we must consider the appropriate remedy. Defendant requests that we reverse his conviction and remand for a new trial. However, we do not find that the error here entitles defendant to this relief. The error in these instructions is that they allowed the jury to convict the defendant of murder without finding that he acted with malice. However, as was explained in People v Clark, 5 Mich App 672, 676; 147 NW2d 704, 706 (1967), lv den, 379 Mich 763 (1967), murder, absent malice, is manslaughter, " 'the unlawful killing of another without malice, express or implied.’ 'Manslaughter is distinguished from murder in that the element of malice, express or implied, which is the very essence of murder is absent.’ ” (Citations omitted.) Thus, even if the jury here convicted the defendant without a finding of malice, their verdict, on these instructions, is tantamount to a conviction of manslaughter. Cf. People v Jenkins, supra, 395 Mich at 442-443; 236 NW2d at 504. A conviction of manslaughter was perfectly compatible with the evidence. (See cases cited supra, in issue I.) We therefore decline to disturb the disposition reached in resolution of the previous issue.

Ill

Defendant next urges that his conviction should be reversed because the trial court refused his request to instruct on intoxication as a defense. The court seems to have refused the instruction because the intoxication defense was inconsistent with defendant’s alibi theory.

However, defendants in criminal cases are entitled to raise inconsistent defenses (People v John Willie Williams, 26 Mich App 218, 222; 182 NW2d 347, 349 [1970]), and this Court has specifically held that a defendant may raise the alternative defenses of intoxication and noninvolvement in the offense. People v McLean, 52 Mich App 182, 185, 186; 217 NW2d 138, 140, 141 (1974), lv den, 394 Mich 807 (1975). It follows that the reason stated by the court was insufficient to justify denying defendant’s request to instruct.

Nonetheless, whatever the reason stated, it would not be error to refuse giving the instruction if there were a valid reason for doing so. The applicable law was well summarized in People v Bonello, 25 Mich App 600, 602; 181 NW2d 652, 654 (1970):

"It is the duty of the trial court to cover in his charge to the jury in a criminal prosecution the theory upon which the defense is founded if a proper request is made and supported by competent testimony. People v Welke (1955), 342 Mich 164 [68 NW2d 759]; People v Lane (1942), 304 Mich 29 [7 NW2d 210]. Therefore, since it is the duty of the trial court to instruct the jury as to the law applicable to the case, MCLA § 768.29 (Stat Ann 1954 Rev § 28.1052), the refusal of the court to give a requested proper instruction is reversible error. Defendant has a right to a properly instructed jury. People v Liggett (1967), 378 Mich 706 [148 NW2d 784]; People v Barringer (1945), 311 Mich 345 [18 NW2d 850]; People v Bowen (1968), 10 Mich App 1 [158 NW2d 794].

See also People v Reed, 393 Mich 342, 349-350; 224 NW2d 867, 870 (1975), cert den, 422 US 1044, 1048; 95 S Ct 2660, 2665; 45 L Ed 2d 696, 701 (1975), People v Hoefle, 276 Mich 428, 431; 267 NW 644, 645 (1936). It is not disputed that proper request was made here. Therefore, we turn to consideration of whether the defense was supported by competent testimony.

There is some ambiguity in the cases regarding the quantum of evidence which must be introduced to support an instruction on intoxication. In People v Kirk, 151 Mich 253, 258; 114 NW 1023, 1025 (1908), quoted in People v McLean, supra, 52 Mich App at 186; 217 NW2d at 140, the Court stated that the jury should be instructed on intoxication,

"if there was testimony which would warrant a jury in saying that the intoxication of respondent was of a degree which rendered him incapable of entertaining the intent charged.”

Of course the "capacity” test was rejected by the Supreme Court in People v Crittle, 390 Mich 367, 374; 212 NW2d 196, 199-200 (1973), but our focus here is on that part of the quoted language which suggests that a defendant has no right to the instruction unless the evidence is sufficient, not only to raise a reasonable doubt, but to affirmatively establish defendant’s intoxication. This standard is similar to that applied where the defendant challenges the sufficiency of evidence to warrant an instruction to the jury on an offense (See, e.g., People v Royal, 62 Mich App 756, 757-758; 233 NW2d 860, 861-862 [1975]), but conflicts sharply with the test applied to the sufficiency of the evidence supporting other defenses, such as insanity, viz., that the defendant is entitled to the instruction if there is any evidence tending to establish the defense. See, e.g., People v Neumann, 35 Mich App 193, 195; 192 NW2d 345, 346 (1971). See also, People v Chivas, 322 Mich 384, 390-391; 34 NW2d 22, 25 (1948). The "any evidence” test is much more consistent with the prosecution’s burden of proof beyond a reasonable doubt, and its adoption by the Supreme Court was at least suggested by the Court’s language in People v Cahill, 215 Mich 322, 324; 183 NW 752 (1921), where it was stated:

"We think the instruction given [on intoxication] might well have been omitted, there being no testimony tending to show intoxication at the time the offense was committed.”

This position is also implicit in the proposed standard jury instruction on specific intent. CJI 3:1:16, Specific Intent. We conclude that the "any evidence” test embodies the appropriate rule.

As the trial court stated in refusing the instruction, there was evidence that defendant had "been doing considerable drinking [and] smoking pot” on the day of the alleged offense. Specifically, there was evidence that defendant was drinking whiskey in the afternoon or early evening of the date in question, and that defendant and a companion purchased a second bottle and began drinking it and smoking marijuana at around 8 or 8:15 p.m. on the same day. The offense allegedly occurred at about 10 p.m. We find that this evidence was sufficient to support defendant’s request for the instruction, and that it was error to deny it.

Intoxication is a defense only to a crime of specific intent. People v Kelley, 21 Mich App 612, 618-619; 176 NW2d 435, 439-440 (1970), lv den, 383 Mich 792 (1970). Armed robbery, which was the felony charged on the first-degree murder count, is a crime of specific intent to which intoxication is a defense. People v Crittle, supra, 390 Mich at 371; 212 NW2d at 198, People v Kelley, supra, 21 Mich App at 619; 176 NW2d at 438. However, by virtue of our resolution of the two previous issues, the crime of which defendant stands convicted is manslaughter. This is not a specific intent crime, and therefore intoxication is not a defense to it. People v Townsend, 214 Mich 267, 280; 183 NW 177, 181 (1921), People v Kelley, supra, 21 Mich App at 619; 176 NW2d at 438, People v Duffield, 20 Mich App 473, 480; 174 NW2d 137, 140 (1969), aff'd, 387 Mich 300; 197 NW2d 25 (1972). Hence, the refusal to instruct on intoxication was harmless error. See People v Taylor, 73 Mich App 139, 143; 250 NW2d 570, 572 (1977), lv den, 400 Mich 813 (1977). See also People v Robinson, 386 Mich 551, 563; 194 NW2d 709, 713 (1972).

IV

Defendant’s final allegations of error do not merit extended consideration.

Defendant contends that he was denied his right to a speedy trial. Although 14 months elapsed between defendant’s arrest and commencement of his trial, no presumption of prejudice arises for a delay of less than 18 months. See People v Grimmett, 388 Mich 590, 606; 202 NW2d 278, 286 (1972). We agree with the trial court that defendant has failed to demonstrate any prejudice from this delay. Nor do we find the length of this delay unreasonable in light of the numerous defense motions filed in the lower court. This issue is without merit.

Even less persuasive is defendant’s contention that the court’s alibi instruction was reversibly erroneous. Defendant did not file notice of alibi (See MCL 768.20; MSA 28.1043), nor did he request an instruction on alibi or object to the instruction given. See GCR 1963, 516.2. As a practical matter, defense counsel could hardly have objected to this instruction, having himself requested it as the "Claim of the Defendant”. Even looking past the obvious problems of failure to preserve for review an invited error, we note that the trial court gave thorough instructions on reasonable doubt and specifically instructed that defendant must be acquitted if the jury found that he was not present at the scene of the offense or if the evidence raised in their minds a reasonable doubt on this point. See People v McShan, 53 Mich App 407, 415-418; 219 NW2d 792, 797-798 (1974), People v Erb, 48 Mich App 622, 630; 211 NW2d 51, 55 (1973).

Defendant’s final contention is that his conviction should be reduced from first-degree to second-degree murder, because the verdict as rendered by the jury was ambiguous. See generally, People v Rand, 397 Mich 638; 247 NW2d 508 (1976). Our reduction of defendant’s conviction to manslaughter renders this issue moot. However, should the prosecutor elect to retry defendant on first-degree murder charges, the court will be careful to require the jury to state of which crime, if any, it finds defendant guilty.

Reversed and remanded for proceedings consistent with the views expressed herein.

Bronson, J., concurred.

M. J. Kelly, J.

(concurring). I concur in the result but write to record my disagreement with the majority’s endorsement of People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). Malice is a state of mind and the rule ought to be that whether the instruction uses the word murder or killing in connection with the underlying felony, an omission to instruct on malice would not be reversible error unless properly preserved for review by objection or by the trial court’s refusal to give a properly requested instruction. Were I at liberty to exercise my own judgment on the law as the law should be, I would unhesitatingly vote to affirm this defendant’s slaying of a gas station attendant when the attendant refused to give up the money after four eyewitnesses all agreed that the armed robber demanded money and threatened to shoot one of the attendant’s children. It seems to me that the right result obtained and any error was harmless.

In addition to the authorities cited in the majority opinion the Supreme Court has recently held that manslaughter is not a necessarily included offense but may be so if the evidence adduced at trial would support a verdict of guilty of that crime. People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978). On the facts of this case there is no doubt that the shooting occurred during a struggle between the decedent and the robber after another witness had reached for the gunman’s hand. I suppose the jury could have believed that the gun discharged accidentally in violation of MCL 750.329; MSA 28.561 and that defendant was drunk or otherwise incapable of felonious intent and I therefore reluctantly concur in the result.

         "I didn’t give the intoxication because though there was a claim that the defendant — the defendant testified and Tim Green testified that they had both been doing considerable drinking, smoking pot. I don’t know if anybody was using cocaine but most everything else. And so then the defendant takes the witness stand and testifies in detail everything he did that night, where he was, what he did, what time it was, whether he was watching television, sitting at the dining room table, and I just don’t see how somebody can say now here is what I did all that evening and therefore I’ve got an alibi, but if you don’t believe my alibi, then I was totally intoxicated to do it. Just doesn’t ring true to me and I refuse to give the intoxication. I think a man can take the stand or proofs can show he had two or three beers and he said well, I raised the question of intoxication. Now the burden is upon the prosecution. You have to raise the question of intoxication and then the burden is upon the prosecution.” (Emphasis added.)