text:
    SIWIK v SIWIK
    Docket No. 78-2486.
    Submitted February 22, 1979, at Detroit.
    Decided April 17, 1979.
    Eugene and Doreen Siwik were divorced and the judgment of divorce granted custody of their minor son to Roy and Irene Reppenhagen, the paternal grandparents. Doreen, who has since remarried, petitioned the court for a modification of the divorce judgment and sought to obtain custody of the child. The Wayne Circuit Court, Harry J. Dingeman, Jr., J., granted the change of custody. The grandparents petitioned the Court of Appeals for, and obtained, a stay of proceedings and a remand for a more complete record. After further hearings, the trial judge submitted an opinion reaffirming his earlier order, and the Court of Appeals vacated the stay of proceedings. After the Reppenhagens’ motion for rehearing was denied, they appealed the circuit court’s order changing custody. Held:

    Upon a review of the entire record, it cannot be said that the trial judge was in error in finding that the best interests of the child would be served by granting the change of custody. In addition, the judge’s determinations that the child was not of sufficient age to express a meaningful preference and that he would not follow the recommendation of a child psychologist that custody not be changed were not abuses of discretion.
    Affirmed.
    • 1. Appeal and Error — Parent and Child — Custody — De Novo Review — Statutes.
    Review of a child custody case is de novo, with each case being judged on its unique facts and in light of a statutory requirement that a circuit court order or judgment is to be affirmed unless the trial judge made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCL 722.28; MSA 25.312[8]).

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 136.
    24 Am Jur 2d, Divorce and Separation § 772 et seq.

       24 Am Jur 2d, Divorce and Separation § 783.
    Nonresidence as affecting one’s right to custody of child. 15 ALR2d 432.
    Comment note: "Split,” "divided,” or "alternate” custody of child. 92 ALR2d 695.

       24 Am Jur 2d, Divorce and Separation §§ 784, 820.
    Child’s wishes as factor in awarding custody. 4 ALR3d 1396.

       24 Am Jur 2d, Divorce and Separation §§ 779, 782 et seq.

      2. Parent and Child — Custody — Best Interests of Child — Statutes.
    The guiding factor in all child custody matters is the best interest of the child, as determined pursuant to statute (MCL 722.23; MSA 25.312[3]).
    3. Parent and Child — Custody — Statutes — Presumptions — Best Interests of Child.
    The apparent conflict between a statutory presumption that the best interests of a child are served by awarding custody to the parents where a custody dispute is between the parent or parents and an agency or a third person and the statutory requirement that a trial court’s previous judgments or orders regarding custody not be modified to change custody is resolved by inquiring into the best interests of the child, which is a concern sufficient to overcome any of the statutory rebuttable presumptions (MCL 722.25, 722.27[cj; MSA 24.312[5], 25.312[7][c]).
    4. Parent and Child — Custody — Child’s Preference — Judge’s Discretion — Statutes.
    Determination of whether or not a child is of sufficient age to express a meaningful preference in a custody dispute is a matter within the sound discretion of the trial court (MCL 722.23[i]; MSA 25.312[3][i]).
    5. Parent and Child — Custody — Child Psychologists — Judge’s Discretion — Statutes.
    A trial court has the discretion to use the services of a child psychologist in determining a child custody matter; the weight to be given to a psychologist’s testimony is a matter of the trial court’s discretion (MCL 722.27[d]; MSA 25.312[7][d]).

      Thomas E. Cardinal, Legal Aid and Defender Association of Detroit, for Doreen Siwik.

      Martin S. Baum, for Roy and Irene Reppenhagen.

      Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Appellants appeal from Wayne County Circuit Court Judge Harry Dingeman’s determination that six-year-old Eugene Siwik, Jr., should be in the custody of his mother instead of in the custody of his paternal grandparents.

Eugene Siwik, Jr., was born on August 23, 1972. In September of 1976, his mother brought him to the Reppenhagen’s with the understanding that he would stay there until she "got her head together”. On November 10, 1977, the Wayne County Circuit Court granted plaintiff, who is not a party to the present dispute, a default judgment of divorce. The judgment also granted custody of the minor child to the Reppenhagens.

Defendant filed a petition to modify the divorce judgment on February 3, 1978. A custody hearing was held on June 16 and 19, 1978, and the trial judge’s June 20, 1978, order changed custody to the defendant. The Reppenhagens appealed and, after reviewing the record, appellants successfully petitioned this Court to stay the proceedings and remand the case for a more complete record. Pursuant to this Court’s order, Judge Dingeman held a second hearing on September 11, 12 and 13, 1978. On September 28, 1978, the trial judge reaffirmed his earlier findings of fact and conclusions of law. The next day, this Court vacated the stay which it had ordered. Mrs. Frye attained custody of her son and took him to Kansas where he now lives with her and her new husband. Thereafter, appellants’ motion for a rehearing before this Court was denied and they now appeal. We affirm.

Appellants raise three issues on appeal but each issue relates to the central question: Did the trial court properly interpret and apply the Child Custody Act in determining that the child’s best interests required a change in custody?

These cases are not easy. The trial judge in the present case indicated that he "spent an uncomfortable weekend reviewing the testimony and reexamining the law”. We sympathize with the trial judge and recognize that "[a] judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders”. Fritts v Krugh, 354 Mich 97, 101; 92 NW2d 604 (1958) (footnote omitted). We also note that our task is no easier than that of the trial judge.

A reviewing court is obligated to consider a child custody case de novo and appraise the evidence apart from the trial judge’s findings. In so doing, it is important for us to remember that each case must be judged on its unique facts. As stated in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432; 86 NW2d 166 (1957):

"We have stressed, heretofore, in these zoning cases, the principle that each case must be judged on its own facts. Some confusion may have arisen from its frequent repetition. The statement is merely a truism in the law, applicable to all cases, from arbitration to zoning.”

Additionally, in a custody case, we are bound by MCL 722.28; MSA 25.312(8), which provides that:

"* * * all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

The guiding factor in all child custody matters is the child’s best interests as outlined in MCL 722.23; MSA 25.312(3):

" 'Best interests of the child’ means the sum total of the following factors to be considered, evaluated and determined by the court:
"(a) The love, affection and other emotional ties existing between the competing parties and the child.
"(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
"(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
"(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
"(e) The permanence, as a family unit, of the existing or proposed custodial home.
"(f) The moral fitness of the competing parties.
"(g) The mental and physical health of the competing parties.
"(h) The home, school and community record of the Child.
"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
"(j) Any other factor considered by the court to be relevant to a particular child custody dispute.”

In the present case, the trial court was also faced with two apparently contradictory legal presumptions. MCL 722.25; MSA 25.312(5) provides:

"When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.”

The competing statutory presumption is contained in MCL 722.27(c); MSA 25.312(7)(c), which states in relevant part:

"* * * The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

However, this apparent conflict has been resolved properly in Stevens v Stevens, 86 Mich App 258, 264-269; 273 NW2d 490 (1978), and Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975). In each of those cases, our Court concluded that the basic inquiry must be into the best interests of the child. Further, the presumptions in MCL 722.25 and MCL 722.27(c) should be recognized equally, with the best interest of the child as the overriding concern, a concern sufficient to overcome any of the rebuttable presumptions in the statute.

In the present case, the trial judge carefully considered each of the factors in MCL 722.23. Additionally, the judge recognized the presumptions in MCL 722.25 and MCL 722.27(c) and compared the existing home and the proposed alternative. It does not appear that he gave improper weight to one presumption over the other. In any event, in his September 28, 1978, opinion, the court specifically concluded:

"* * * [I]t is the finding of this court that proper cause has been shown, and that clear and convincing evidence indicates that the best interest of Eugene Paul Siwik will be served by a change of the custodial environment of the child from the extended family relationship in which he now lives to that with his natural mother.”

After a painstaking review of the entire record, we cannot say that the trial judge was in error.

Appellants argue that the trial judge improperly ignored the child’s wishes by determining, after an interview, that the child was "not of sufficient age to express a meaningful preference in this matter”. We disagree. MCL 722.23(i) leaves this determination to the sound discretion of the trial judge and we find no abuse of discretion here. Even if the child stated that he wished to remain with his grandparents, the trial judge was not required to accede to that request. MCL 722.23 lists the child’s preference as one factor among many to be considered in determining the best interests of the child.

Appellants also claim that the trial judge gave inadequate consideration to the testimony of the child psychologist. Again, we disagree. The psychologist testified against changing the custodial environment but also admitted that an extended family is not the best atmosphere in which to raise a child and that a major factor in mitigating the trauma of a change in custody would be the mother’s future behavior. MCL 722.27(d); MSA 25.312(7)(d) specifically permits a circuit judge to utilize "community resources in behavioral sciences” in determining a custody matter. But the statute plainly indicates that the decision to use such information is a matter of trial court discretion. Further, the weight to be given to the information is best left to the trier of fact. In the instant case, the trial judge heard the testimony of the psychologist and gave it some consideration. We cannot say that he erred in either respect.

Finally, we note that the previous behavior of both parents leaves much to be desired. The father at the time of the divorce was imprisoned for a felony and was staying with his parents while on parole when the hearings for modification of custody were conducted. The mother had used alcohol to excess at times and was seen using controlled substances. At the hearings, however, Mrs. Frye stated under oath that she changed her mode of living, no longer abused alcohol or drugs, was happily married and wanted her child back. The court further stated:

"As has been pointed out by counsel in final arguments this is the natural mother seeking custody of her child and the present custodians are third persons. She’s 24 years of age. The grandparents are 51, and 62 respectively. In another 10 years, the child in its early teens if it is to continue living with the grandparents would have a male figure head in the house in his 70’s, and a mother in her 60’s. Can this be construed as being in the best interests of the minor child, or would he be better off with younger parents. This Court believes the latter.”

It is only natural for the grandparents to remember the mother as she was when she brought the child to them. And we commend them for taking the child and giving him love when it was necessary to do so. But the trial judge has concluded that the mother has changed her lifestyle and now is able to properly care for her child. We find no error in that determination.

Affirmed. No costs.


source: Caselaw Access Project

author: T. M. Burns, J.

license: Public Domain

text:
    PEOPLE v HOAG
    Docket No. 78-2770.
    Submitted November 7, 1978, at Lansing.
    Decided April 17, 1979.
    Leave to appeal applied for.
    Alonzo E. Hoag, a former sheriff and undersheriff of Eaton County, was charged with separate counts of obstruction of justice, perjury in a capital case and wilful neglect of duty as the result of an indictment entered by a citizen’s grand jury formed to investigate police misconduct in a murder prosecution. The cause of the grand jury indictment stems from the prosecution of Richard Morris for the murder of Gary Herrero. Morris’s first trial ended in a conviction which the Court of Appeals reversed in an unpublished per curiam opinion (Docket No. 14273, issued on December 4, 1974). Subsequently, a three-judge panel dismissed the Morris prosecution because of alleged police misconduct. The Court of Appeals affirmed the dismissal, 77 Mich App 561; 258 NW2d 559 (1977) and the Supreme Court denied leave, 402 Mich 844 (1977). Present defendant Hoag was not a party to those proceedings, nor was he represented by counsel. The people had intended to prosecute all three counts in a single trial. Defendant claimed that a single trial on all three counts would deprive him of a fair trial and moved to sever Count I from the remaining counts. The motion was granted, Eaton Circuit Court, Paul R. Mahinske, J. During the subsequent trial on Count I, the prosecutor asked for a mistrial based upon certain evidentiary rulings by the trial court and when defendant refused to consent to the mistrial, the prosecutor moved to dismiss Count I and the jury was discharged. Defendant joined in the motion to dismiss. The Court of Appeals rejected the prosecutor’s attempt to appeal the evidentiary questions on double jeopardy grounds. When the Court of Appeals denied the prosecutor’s appeal, following the dismissal of Count I, defendant moved to dismiss Counts II and III on the basis of double jeopardy. The circuit court found that further prosecution on Counts II and III was barred by double jeopardy. The net effect of the trial court orders was to prevent further prosecution of defendant for any alleged misconduct while he held the positions of sheriff and undersheriff of Eaton County. The people appeal seeking review of the orders entered by the circuit court. The questions on appeal are whether defendant waived his right to a single trial by seeking severance, whether the examining magistrate erred in his findings regarding materiality, falsity and wilfulness in determining that perjury was an issue of fact for a jury rather than a nonjury question of law, and whether a news reporter who refused to name the source of information he had used in formulating questions put to defendant in his capacity of having been a witness in the Morris trial could be barred from testifying in the subsequent trial of defendant for perjury and misconduct in office. Held:

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 165, 166, 209, 476.

       21 Am Jur 2d, Criminal Law §§ 442-451.

       60 Am Jur 2d, Perjury §§ 4-12.
    Materiality of testimony assigned as perjury as question for court or jury. 62 ALR2d 1027.
    Statement of belief or opinion as perjury. 66 ALR2d 791.

       60 Am Jur 2d, Perjury §§ 11, 12.
    Materiality of testimony assigned as perjury as question for court or jury. 62 ALR2d 1027.

       60 Am Jur 2d, Perjury §§ 59, 60.

      1. A defendant waives his double jeopardy rights when he seeks severance or opposes consolidation of charges; where a defendant has done everything he can to avoid having all charges tried in a single proceeding, a second trial is not barred because of double jeopardy.
    2. A trial court should not substitute its judgment for that of a magistrate unless the evidence is totally wanting on a material point. A review of the record discloses sufficient evidence to support the magistrate’s findings of falsity and wilfulness in binding Hoag over for trial on Count II, perjury in a capital case. The trial court erred by substituting its view of the evidence for that of the examining magistrate and in dismissing Count II.
    3. The news reporter should be allowed to testify in Hoag’s trial for perjury and misconduct in office. The source of information which prompted questions of the defendant regarding his testimony in the Morris trial was not relevant or material to the questions to be asked in the Hoag trial, had no relation to any fact in issue and did not affect the reporter’s credibility.
    Reversed and remanded.
    1. Criminal Law — Double Jeopardy — Waiver.
    Double jeopardy rights may be waived by a defendant who seeks severance or opposes consolidation of charges and the fact that a prior trial which has been severed ended in dismissal does not affect a waiver of double jeopardy rights which preceded it; a defendant waives his double jeopardy rights and double jeopardy rights should not bar a second trial where he has done everything he can to avoid having all charges against him tried in a single proceeding.
    2. Criminal Law — Magistrates — Preliminary Examination — Probable Cause — Evidence — Discretion.
    Abuse of the magistrate’s discretion is the standard to be applied by a trial court in determining whether probable cause was established by sufficient evidence at a preliminary examination and a trial court should not substitute its judgment for that of a magistrate unless the evidence is totally wanting on a material point.
    3. Perjury — Elements — Statutes.
    Three things are necessary to constitute perjury: (1) administration to the respondent of an oath authorized by law, by competent authority, (2) an issue or cause to which facts sworn to are material, and (3) wilful false statements or testimony by the respondent regarding such facts (MCL 750.423; MSA 28.665).
    4. Perjury — Witnesses — Statements — Credibility.
    A statement is usually held to be material and sufficient to support a prosecution for perjury if it is calculated to support or attack the credibility of the witness.
    5. Evidence — News Reporters — Source of Information — Perjury — Relevancy — Materiality — Reporter’s Credibility — Admissibility.
    A news reporter’s refusal to name the source of certain information he had used in formulating questions put to a party who was a witness in a prior trial of another defendant does not make such questions and testimony inadmissible in a subsequent prosecution of the witness for perjury where the source of the information was not relevant or material to the questions asked, had no relation to any fact at issue and did not affect the reporter’s credibility.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Joseph D. Reid, Special Prosecuting Attorney, and Lawrence J.

      Emery, Assistant Special Prosecutor, for the people.

      Abood & Abood, P.C., and Michael K. Hegarty, for defendant.
    Before: D. F. Walsh, P.J., and T. M. Burns and D. E. Holbrook, Jr., JJ.
   T. M. Burns, J.

The special prosecutor brings this appeal to review three orders entered by the circuit court on May 26, 1978. The net effect of these orders was to prevent further prosecution of defendant, a former sheriff and undersheriff of Eaton County, for any alleged misconduct while he held those positions.

A citizens grand jury formed to investigate police misconduct in a murder prosecution returned a nine-count indictment against defendant. At the preliminary examination, defendant was bound over for trial on three counts. The amended information, set forth as an appendix to this opinion, charged defendant with one count of obstruction of justice, MCL 750.505; MSA 28.773, one count of perjury in a "capital” case, MCL 750.422; MSA 28.664, and one count of wilful neglect of duty, MCL 750.478; MSA 28.746.

It would be of little value to detail the many motions, at least 22, and attempted appeals which have preceded our consideration of this case. It is sufficient to outline the action below which precipitated this appeal. One of the orders entered on May 26 dismissed Counts II and III of the information on double jeopardy grounds. Defendant’s double jeopardy claim arose from the following sequence of events.

The people intended to prosecute all three counts in the single trial. Claiming the acts upon which Count I were based were not part of the same transaction as those described in Counts II and III and that a single trial on all three counts would deprive him of a fair trial, defendant moved to sever the trial on Count I from the remaining counts. After extended, and at times heated argument, the motion was granted. Further argument was heard, at which point the trial court stated:

"The defendant in this particular case had made a motion, that I have just ruled on, to sever and in the arguments for the granting of such motion has indicated that he doesn’t like the position he places himself in because the prosecutor, to put it bluntly, gets more than one crack at it; and that it seems to me, and my ruling is, that the defendant, by making the motion, well knowing what jeopardy he may be putting himself into, or inconvenience he may be putting himself into, has waived any defense, if it is waiveable, of collateral estoppel.”

After the prosecutor’s efforts to rejoin the three counts were rejected the parties proceeded to trial on Count I. Because of certain evidentiary rulings by the trial court, but before the people’s case had been completed, the prosecutor asked for a mistrial. When defendant refused to consent to the mistrial, the prosecutor moved to dismiss Count I and the jury was discharged. Defendant joined in the motion to dismiss. The prosecutor’s attempt to appeal the evidentiary questions to this Court after the dismissal of Count I was rejected on double jeopardy grounds. When this Court denied the prosecutor’s appeal following the dismissal of Count I, defendant moved to dismiss Counts II and III on the basis of double jeopardy. In an apparent reversal of its previous position, the circuit court found that further prosecution on Counts II and III was barred by the double jeopardy clause.

The problem raised by these facts involves the double jeopardy bar against successive prosecutions. We assume, without deciding, the trial on all three counts should have been had in a single proceeding under the rule of People v White, 390 Mich 245; 212 NW2d 222 (1973). But, that is not the issue here. Our question is whether defendant waived his right to a single trial by seeking severance. We conclude that he did.

The double jeopardy problem was specifically raised at the time severance was granted. The trial court at that time indicated defendant was waiving the right. The fact that the first trial ended in a dismissal does not effect the waiver which had preceded it. This conclusion can be inferred from prior decisions of this Court. See, People v Fick, 45 Mich App 435; 206 NW2d 739 (1973), People v Galdoni, 81 Mich App 606; 266 NW2d 47 (1978). Other courts have found a waiver of double jeopardy rights when the defendant seeks severance or opposes consolidation. In the Matter of ALS, 377 A2d 1149 (DC App, 1977), State v Brissette, 31 Or App 1243; 572 P2d 1068 (1977), Commonwealth v Holmes, 480 Pa 536; 391 A2d 1015 (1978). In a case such as this, where defendant has done everything he can to avoid having all offenses tried in a single proceeding, we cannot hold that the double jeopardy clause bars a second trial. Cf. Jeffers v United States, 432 US 137, 152; 97 S Ct 2207; 53 L Ed 2d 168 (1977) (opinion of Blackmun, J.). The right has been waived.

As an alternative basis for dismissing Count II, the perjury count, the trial court held that the question and answer upon which that count was based could not constitute perjury as a matter of law. In effect, the trial court ruled that the examining magistrate erred in his findings regarding materiality, falsity and wilfulness.

The standard to be applied by a trial court in determining whether probable cause was established by sufficient evidence at the preliminary exam is the abuse of discretion standard. The trial court is not to substitute its judgment for that of the magistrate unless the evidence is totally wanting on a material point. People v Gould, 61 Mich App 614; 233 NW2d 109 (1975).

Perjury is defined in the statute as:

"Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, * * MCL 750.423; MSA 28.665.
"In order to constitute perjury under the statute, three things are necessary:
"First: Administration to the respondent of an oath authorized by law, by competent authority;
"Second: An issue or cause to which facts sworn to are material, and;
"Third: Wilful false statements or testimony by the respondent regarding such facts.” 4 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 2000, p 2281.

The specific question and answer upon which the perjury count is based is set forth in the footnote along with several questions preceding and following it. This testimony was given by Hoag at the second Morris trial during cross-examination by Morris’s attorney. Hoag had previously admitted meeting with the prosecutor prior to this second trial. There is no question that the magistrate had sufficient evidence to find that Hoag was under oath and that the oath was properly administered. The problem lies with the other elements of the offense.

We have concluded that the question and answer were material to an issue being tried in the Morris case. The origin of the blanket, whether it was found in Morris’s car by the Michigan State Police or had been placed there by Hoag, was a crucial fact. If the blanket could be tied to Morris or his car, it was a vital piece of evidence in the people’s case. By his cross-examination, Morris’s attorney was trying to prove that Hoag had placed the blanket in Morris’s car and that he had discussed that fact with the prosecutor only a short time before the second trial. At the very least, the question was material to Hoag’s credibility. Credibility is a sufficiently material issue to support a prosecution for perjury. See, 60 Am Jur 2d, Perjury, § 11, p 973.

We turn next to the magistrate’s finding of falsity. Accepting for the moment that a "literal truth”, even if unresponsive, cannot support a perjury prosecution under our statute, Bronston v United States, 409 US 352; 93 S Ct 595; 34 L Ed 2d 568 (1973) (construing the Federal perjury statute), that concept has no application here. The Bronston holding is limited to answers which are indisputably true. It is improper to accept, as a matter of law, that an answer is arguably true under a defendant’s interpretation of the question. See, United States v Haldeman, 181 US App DC 254; 559 F2d 31 (1976). Under the facts presented to the magistrate, whether the statement was false is a question of fact to be resolved by the trier of fact. There was sufficient indication of falsity to bind defendant over for trial.

The question of wilfulness may be resolved in the same manner. If the answer was not intentionally false, the jury must acquit. But, where there is some question as to what the defendant meant by his answer or some question as to how he interpreted the question, the issue is for the jury. People v German, 110 Mich 244; 68 NW 150 (1896). The evidence before the magistrate, including the testimony quoted in footnote 4, was sufficient to support a finding of wilfulness and to show that defendant did not have a problem interpreting the question.

The trial court erred by substituting its view of the evidence for that of the examining magistrate and in dismissing Count II of the information on the evidence there presented.

The final issue comes to us in a most unusual way. During the trial on Count I the Court struck the testimony of Ray James, a reporter who had questioned Hoag shortly after he, Hoag, had testified in the second Morris trial. The basis of the action was James’s refusal to name the source of certain information he had used in formulating questions put to Hoag. The information consisted of quotes from Hoag’s testimony at the Morris trial. James had asked Hoag if he had testified in that way and if that testimony was true. The trial court entered an order on May 26, 1978, stating that it would treat Mr. James’s testimony in exactly the same manner in any subsequent trial or trials ordered by this Court. In effect, the court held that if James did not reveal who gave him Hoag’s testimony in the Morris trial he could not testify in the perjury prosecution.

We do not perceive this problem as involving the scope of the reporter’s privilege to protect confidential sources under MCL 767.5a; MSA 28.945(1). As we see it, the question is whether the source of the information used by James to formulate his questions was relevant or material. Stated another way, was it a proper topic of inquiry? Under the circumstances of this case we hold that it is not. James testified that Hoag admitted that he testified as James suggested he had. Thus, where James got his information is not material. It has no relation to any fact at issue. We fail to see how revealing the source could affect James’s credibility.

Subject to the other rules of evidence, James’s testimony is admissible and should not be excluded solely because he does not reveal who supplied him information which later became the basis of questions to Hoag and was a matter of public record.

Reversed and remanded for further proceedings.

APPENDIX

State of Michigan

In the Circuit Court for the County of Eaton

People of the State of Michigan,

Plaintiff,

vs.

Alonzo Eugene Hoag,

Defendant.

Amended Information

File No. 76-214-FY

State of Michigan )

) ss.

County of Eaton )

In the Name of the People of the State of Michigan, Now comes the Special Prosecutor in and for the said County, State of Michigan, who prosecutes for and on behalf of the People of the State of Michigan, in said Court in the current term thereof, and gives the said Court to understand and be informed that the above-named Defendant heretofore on or about the date of offense set forth at the Location set forth, in the said County of Eaton, State of Michigan.

Count I

That on or about the twenty-third day of June, 1971, and continuing to the ninth day of January, 1976, A. Eugene Hoag, being obligated by oath and by law to investigate, report and disclose the results of his investigation into the death of one Gary Herrero did, in breach of said duty, willfully and deliberately suppress, conceal, and distort facts known to him concerning said investigation, to-wit:

A. Failing to inform State Police Investigators conducting a search of the vehicle of Richard Morris, then a suspect in the murder of Gary Herrero, that there was no blanket in said vehicle at the time the vehicle was first searched and seized by A. Eugene Hoag.

B. Failing to itemize on the return of the executed search warrant, the seizure of a blanket.

C. Failing to disclose to the prosecution that the blood stained blanket, offered and introduced as Plaintiffs Exhibit, during the Preliminary Examination of the accused Richard Morris, was not located in the vehicle of Richard Morris when it was first secured and searched by A. Eugene Hoag.

D. Failing to disclose to the prosecution that the aforementioned blood stained blanket was false evidence against the accused, Richard Morris, contrary to the laboratory analysis reports from the Michigan State Police submitted on or after August 6, 1971.

E. Failing to disclose during his testimony at the time of the first trial of Richard Morris, that the blood stained blanket was false evidence against the accused, Richard Morris.

F. Failing to disclose to the prosecution at a meeting on December 19, 1975, in the offices of the Eaton County Prosecutor that the aforementioned blood stained blanket was false evidence against the accused, Richard Morris.

G. Failing to disclose to the jury during his testimony at the second trial of Richard Morris on or about January 6, 1976, that the aforementioned blood stained blanket was discussed at the meeting conducted on December 19, 1975.

H. Intentionally misleading both defense counsel and the jury during his testimony at the second trial of Richard Morris on or about January 6, 1976, regarding a discussion as to the origin of the blanket as an Exhibit, said discussion having occurred at the offices of the Eaton County Prosecutor on December 19, 1975.

And that in each of the aforementioned acts or omissions A. Eugene Hoag did obstruct justice, willfully distorting and impeding the administration of the criminal law contrary to (MCLA 750.505; MSA 28.773) (Maximum penalty—five years imprisonment).

Count II

On or about the sixth day of January, A.D., 1976, A. Eugene Hoag, upon his oath, before the Honorable Richard Robinson, Eaton County Circuit Court Judge in the trial of the People of the State of Michigan v Richard Morris, No. 112-71C, on the charge of murder in the second degree, a capital crime, did falsely swear, in that he stated and answered "No” to the following question asked him: "Now did you make any mention, or mention or discuss questions of this blanket?”, whereas in truth and in fact the said A. Eugene Hoag on or about the nineteenth day of December, 1975, did discuss with Paul Berger, in the presence of Larry Hamilton, the origin of the blanket and the intended testimony of A. Eugene Hoag regarding said blanket, that said statements being made at the office of the Eaton County Prosecutor, located in the City of Charlotte, Eaton County, Michigan, that the foregoing false statement was made willfully and corruptly and that the false statement was material to the proceedings at which it was tendered. Contrary to P.A. 1931, No. 328, S 422 (MCLA 750.422; MSA 28.664) (Maximum penalty—life imprisonment).

Count III

On or about the sixth day of January, A.D., 1976, A. Eugene Hoag, upon his oath before the Honorable Richard Robinson, Eaton County Circuit Judge in the trial of the People of the State of Michigan v Richard Morris, No. 112-71C, on the charge of murder in the second degree, a capital crime, did falsely swear, in that he stated and answered "No” to the following question asked him: "Now did you make any mention, or mention or discuss questions of this blanket?”, whereas in truth and in fact the said A. Eugene Hoag on or about the nineteenth day of December, 1975, did discuss with Paul Berger, in the presence of Larry Hamilton the origin of the blanket and the intended testimony of A. Eugene Hoag regarding said blanket, that said statements being made at the office of the Eaton County Prosecutor, located in the City of Charlotte, Eaton County, Michigan, that the foregoing false statement was made willfully and corruptly in willful neglect of his duty as an officer sworn to uphold the law contrary to (MCLA 750.478; MSA 28.746) (Maximum penalty-one year and/or $500).

All of said conduct being against the peace and dignity of the People of the State of Michigan.

Witnesses

William Degraaf; Helen Clegg; Ray James; Larry Hamilton; Frank Combs; James Kirkpatrick; Dennis Armstrong; Robert Kowalski; Donald Schuiteman; Robert Deitrick; Donald Zimmer; Sharon Martin; Curtis Oglesby; Paul Berger; The Honorable Richard Robinson; Thomas Shirts; I. Goodman Cohen; Richard Bisbing; Joseph Krease; Elwin Smith; David Smith.

/s/ Joseph D. Reid

Joseph D. Reid

Special Prosecutor for Eaton County

Reid & Reid, P.C.

530 South Capitol Avenue

Lansing, Michigan 48933

/s/ Lawrence J. Emery

Lawrence J. Emery

Assistant Special Prosecutor for Eaton

County

Reid & Reid, P.C.

530 South Capitol Avenue Lansing, Michigan 48933

Dated: April 27, 1977

       Richard Morris was prosecuted for the murder of Gary Herrero. The first trial ended in a conviction which this Court reversed in an unpublished per curiam opinion (Docket No. 14273, issued on December 4, 1974). The retrial of Morris ended in a mistrial. Subsequently, a three-judge panel dismissed the Morris prosecution because of alleged police misconduct. This Court affirmed the dismissal, People v Morris, 77 Mich App 561; 258 NW2d 559 (1977), and the Supreme Court denied leave. 402 Mich 844 (1977).
      Defendant Hoag was not a party to those proceedings, nor was he represented by counsel. The factual findings of the circuit panel, which this Court affirmed on appeal, are, therefore, not binding in this prosecution.

       Defendant takes the opposite view in this appeal.

       The White majority specifically stated that the rule adopted did not affect the law relating to a defendant’s request for the severance of related offenses. 390 Mich at 258, fn 8.

       "Q. Well, did you remind him and say, How about going over the matter of the car?
      "A. No.
      "Q. You didn’t mention that?
      "A. No.
      "Q. Now did you make any mention, or mention or discuss questions of this blanket?

      "A. No.

      "Q. Not at all?
      "A. No.
      "Q. No question came up about whether you used a blanket or not to examine the car?
      "A. No.
      "Q. I’m assuming when you say No, without any hesitancy, you mean, No. It’s not, you don’t remember or you are not certain, it means No?
      "A. Yes.”

       The other evidence shows that the blanket was mentioned or discussed at Hoag’s meeting with the prosecutor. It also showed that Hoag told others he intentionally gave defense counsel misleading answers during the second Morris trial.

       The testimony of William DeGraaf should be treated in the same manner.


author: Per Curiam.

text:
    PEOPLE v BEAN
    Docket No. 27759.
    Submitted June 19, 1978, at Detroit.
    Decided April 17, 1979.
    Elliott J. Bean was convicted in a bench trial of breaking and entering an occupied dwelling, Recorder’s Court of Detroit, George W. Crockett, Jr., J. Defendant appeals, alleging that a prior statement, in which the defendant admitted his participation in the offense and upon which the trial court relied in finding the defendant guilty, was improperly admitted into evidence. On cross-examination the defendant had denied making the statement when confronted with it and the prosecution then offered the statement as rebuttal of the denial. Held:

    1. A defendant’s admission can be admitted into evidence only as a part of the prosecution’s case in chief. The statement here was not proper rebuttal evidence because it injected an issue of aiding and abetting a breaking and entering, which did not bear on any issue raised by either the prosecution or the defense. Because the court based its entire finding that the defendant aided and abetted the crime on the improperly admitted statement, the defendant was prejudiced by the error.
    2. The defendant voluntarily waived his rights prior to the making of the statement where he had signed a waiver of rights form prior to making another statement only 1-1/2 hours before and indicated that he wished to make a second statement, at which time he was again advised of his Miranda rights before he made the second statement. Admission of this statement under these circumstances would not be error.
    Reversed.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 251, 252, 599, 601, 611.
    75 Am Jur 2d, Trial § 159.

       29 Am Jur 2d, Evidence §§ 250, 269.

       4 Am Jur 2d, Appeal and Error § 491.
    5 Am Jur 2d, Appeal and Error §§ 898, 900.
    21 Am Jur 2d, Criminal Law §§ 357, 367.

       21 Am Jur 2d, Criminal Law § 358.
    29 Am Jur 2d, Evidence § 638.

      1. Criminal Law — Evidence — Admissions — Prosecution’s Case.
    An admission of a defendant can be admitted into evidence only as a part of the prosecution’s case in chief.
    2. Evidence — Rebuttal Evidence — Criminal Law — Properly Raised Issues.
    Rebuttal is limited to the refutation of relevant and material evidence bearing on an issue properly raised in a case; a defendant’s previous statement was improperly admitted into evidence where the prosecutor confronted the defendant with the statement on cross-examination, the defendant denied having made the statement, and the prosecutor then placed the statement in evidence to rebut the denial, thus injecting an issue which did not bear on issues properly raised by either the prosecution or the defense.
    3. Appeal and Error — Criminal Law — Defendant’s Statement — Waiver of Rights — Voluntariness.
    A reviewing court is required to examine the entire record and to make an independent determination on the issue of the voluntariness of a defendant’s waiver of Fifth Amendment rights where the defendant made a statement admitting his involvement in a crime.
    4. Criminal Law — Defendant’s Statement — Voluntariness — Waiver of Rights.
    An express waiver of rights is not required to establish the voluntariness of a defendant’s statement, which may be established by other circumstances such as the defendant initiating the questioning or volunteering the admission; mere silence, however, is not sufficient to constitute a waiver.

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

      Norris J. Thomas, Jr., Assistant State Appellate Defender (by Dawn Van Hoek, Research Attorney), for defendant.

      Before: D. C. Riley, P.J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

Defendant was convicted after a bench trial of breaking and entering an occupied dwelling, contrary to MCL 750.110; MSA 28.305, and appeals as of right.

At trial, two eyewitnesses testified that the defendant pried open a screen window into the complainant’s apartment, removed a television, and carried it to his car. A third eyewitness, testifying for the defense, insisted that the individual who broke into the building was not the defendant. On direct examination, defendant admitted that he was present at the time the theft was alleged to have occurred, but asserted that he was helping a man move from another apartment in the same building. In the process, he did carry a television from the building and place it in his car. On cross-examination, the prosecutor confronted the defendant with a statement, taken by police after defendant’s arrest, to the effect that he actually found the television set on the complainant’s landing before removing it. Defendant denied this, and asserted that he did not make or sign the statement being shown to him by the prosecutor. He did admit that he had made a prior, but different, statement.

After testimony by the arresting officer concerning the taking of the two statements, the court admitted the second statement, and permitted the prosecutor to read it into the record as rebuttal evidence. In this document, defendant asserted that another person told him about the opportunity to steal the complainant’s television, that after going to the apartment, he found the set outside on the landing and then carried it to his car. In delivering the verdict, the trial court noted in its findings of fact the conflict in the eyewitness testimony as to the identity of the person who broke into the apártment, but emphasized that the defendant’s own admission provided sufficient evidence to convict him of aiding and abetting the breaking and entering. The court concluded by finding the defendant "guilty as charged”.

After examining the various issues raised by defendant on appeal, we have determined that only one merits reversal. Defendant argues that his previous statement, offered to impeach his credibility, cannot be used as substantive evidence of guilt. Defendant’s contention essentially attacks the propriety of using the admission in question as rebuttal evidence. The Supreme Court in People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), addressed a similar issue presented by a factual situation closely analogous to the facts in the instant case. There, the prosecutor first elicited from the defendant a denial of a statement made to a fellow inmate. The prosecutor then presented the testimony of the inmate to rebut this denial.

In considering the inadmissibility of this evidence on rebuttal, the Bennett Court noted that the statement at issue constituted an admission, which can only be admitted as part of the people’s case in chief. See also People v Meadows, 80 Mich App 680, 687; 263 NW2d 903 (1977). The Court also commented on the purpose of rebuttal evidence and the proper circumstances under which it may be admitted:

"Rebuttal is limited to the refutation of relevant and material evidence—hence evidence bearing on an issue properly raised in a case.
"Such issue of course could be one raised in the prosecutor’s case in chief or one raised by way of defense, and evidence on either would be subject to rebuttal.
"But here, where the prosecutor did not oifer this evidence in his case in chief, which he would have had to do if this were to be regarded as an admission * * * it did not bear on an issue raised by the people.
"Neither does it bear on an issue raised by the defense.
"The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue.
"Both the statement and the veracity of the witness are then collateral matters and the cross-examiner is bound by the response.” People v Bennett, supra, at 449-450.

The analysis in Bennett is equally applicable to the case at bar. On cross-examination, the prosecutor confronted defendant with a prior statement in which the defendant admitted he was helping someone steal the television, which had already been removed from the apartment, and which he found on the complainant’s landing. The defendant denied making this statement; the prosecution then placed the statement into evidence to rebut defendant’s denial. This statement, which interjected an issue of aiding and abetting a breaking and entering, did not bear on an issue raised by the prosecution in its case in chief. Until this point, the people’s case had tended to prove only that the defendant perpetrated the crime himself. Neither did the statement bear on an issue raised by the defense. On direct, the defendant’s testimony was limited to a denial of guilt and to revelation of the possible bias of one prosecution witness. All of the defendant’s statements concerning the television set establishing the foundation for the impeachment were thus elicited on cross-examination.

Not every error in admitting rebuttal evidence warrants reversal. People v Meadows, supra, at 686-687. In the instant case, however, the prosecutor employed the exact device condemned in Bennett, supra, to establish the basis to admit defendant’s statement as rebuttal. Furthermore, the trial court based its entire finding that the defendant aided and abetted the breaking and entering on the improperly admitted statement. Consequently, we conclude that the error in the instant case was prejudicial to the defendant and reverse.

We address the issue of the voluntariness of defendant’s waiver of his Fifth Amendment rights due to the likelihood that it may occur at re-trial. On appeal the reviewing court is required to examine the entire record and to make an independent determination on the ultimate issue of voluntariness. People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974), People v McClendon, 48 Mich App 552, 555; 210 NW2d 778 (1973). Although no formal Walker hearing was held, sufficient facts concerning the taking of defendant’s statement were adduced at trial to permit our review of the issue.

Defendant made two statements to the police. The first statement was made at 5:30 p.m., prior to defendant’s being placed in custody by the police. Defendant signed a form waiver of rights appended to the statement. The defendant was subsequently placed in custody upon the information provided by an eyewitness to the crime. At 7:05 p.m., the police doorman informed the officer in charge that the defendant wished to make another statement. The officer repeated defendant’s Miranda warnings, but the defendant did not sign another waiver form. He then allegedly gave and signed the second statement admitting his involvement in the breaking and entering. At trial, the defendant steadfastly denied making the second statement.

Defendant relies on People v McClendon, supra, and argues that in light of his willingness to sign the first waiver form, his failure to sign the second constituted a refusal to waive his rights. Thus, the only evidence indicating that he voluntarily waived his rights is the fact that a statement was ultimately obtained. According to the McClendon opinion, this fact alone is insufficient to show a voluntary waiver.

However, a fair reading of the record reveals no evidence of an express refusal to sign a waiver form; it merely shows that the defendant did not sign. An express waiver of rights is not required to establish voluntariness; mere silence, on the other hand, is insufficient to constitute a waiver. People v McClendon, supra, at 557, indicates that a waiver may be shown by other circumstances, such as the defendant initiating the questioning or volunteering the admission. In the instant case, it appears that the defendant initiated the interview with the officer in charge during which the second statement was taken only one and one-half hours after giving the first statement. We consequently find that the defendant voluntarily waived his rights prior to the making of his second statement; the trial court thus would commit no error in admitting it.

Reversed.


text:
    PEOPLE v WILLIAMS
    Docket Nos. 31245; 77-4287.
    Submitted February 5, 1979, at Detroit.
    Decided April 17, 1979.
    Leave to appeal denied, 406 Mich 992.
    Robert A. Williams, while on bond awaiting disposition of other unrelated felony charges, was arrested and charged with two separate offenses of breaking and entering an occupied dwelling. These offenses occurred on April 7, 1976, and May 8, 1976; however, the complaint as to the former was not sworn out until May 10, 1976. Defendant was sentenced on the previous felony charges to a term of 5 to 15 years imprisonment. Upon his pleas of guilty to the two breaking and entering charges, defendant was sentenced in Wayne Circuit Court, Michael L. Stacey, J., to 3 years and 9 months to 15 years prison terms on each of these charges. These sentences were ordered to run consecutively, not only to the sentences for the prior unrelated felonies, but also to each other. Defendant appeals. Held:

    1. Sentences for felonies may not be made to run consecutively in the absence of statutory authority.
    2. The trial court lacked authority to order the sentences for the April 7 and May 8 offenses to run consecutively to each other.
    Remanded for resentencing.
    1. Criminal Law — Consecutive Sentences — Statutes.
    Sentences for felonies may not be made to run consecutively in the absence of statutory authority.
    2. Criminal Law — Consecutive Sentences — Subsequent Felonies —• Statutes.
    A sentence for a subsequent felony conviction cannot run consecutive to a sentence for an earlier felony conviction unless the earlier felony is charged before the second is committed; this rule applies even where both felonies are committed pending disposition of a prior third felony charge (MCL 768.7b; MSA 28.1030[2]).
    Reference for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 547.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Norris J. Thomas, Jr., and Lynn Chard, Assistant State Appellate Defenders, for defendant on appeal.
    Before: Danhof, C.J., and Bronson and Beasley, JJ.
   Per Curiam.

While on bond awaiting disposition of other unrelated felony charges, defendant was arrested and charged with two separate offenses of breaking and entering an occupied dwelling. One of the offenses occurred on April 7, 1976. The other happened on May 8, 1976. The complaint as to the former was not sworn out until May 10, 1976. Defendant was sentenced on the previous felony charges to a term of from 5 to 15 years imprisonment. Subsequently, he pled guilty to the two breaking and entering charges and was sentenced to two terms of from 3 years and 9 months to 15 years imprisonment. The judge ordered each term to run consecutively, not only to the sentences for the prior unrelated felonies, but to each other as well. Defendant appeals as of right. He claims two errors in the court’s imposition of consecutive sentences.

The issues raised by defendant’s appeal are framed by the following law in this state. A court lacks authority to order consecutive terms of imprisonment absent statutory authority. In re Carey, 372 Mich 378; 126 NW2d 727 (1964). Section 7b of the Code of Criminal Procedure for Trials provides:

"When a person, who, has been charged with a felony and pending the disposition of the charge, commits a subsequent offense which is a felony, upon conviction or acceptance of a guilty plea of the subsequent offense, the sentences imposed for conviction of the prior charged offense and any subsequent offense, may run consecutively.” MCL 768.7b; MSA 28.1030(2).
"The purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed.” People v Bonner, 49 Mich App 153, 158; 211 NW2d 542 (1973). The statute should be construed liberally to achieve the deterrent effect intended by the Legislature. People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977).

Defendant concedes the trial judge had authority under § 7b to order the sentences for his April 7 and May 8 felonies to run consecutively to his sentence for the prior unrelated felonies. He submits, however, the trial judge had discretion under § 7b to make the sentences run concurrently. The court’s failure to exercise that discretion is alleged to be in violation of the policy of tailoring sentences to fit each case and each offender. Defendant further contends the trial court erred in ordering the sentences for his April 7 and May 8 offenses to run consecutively to each other. He argues that § 7b does not authorize those sentences to run consecutively, since the May 8 felony was committed before the April 7 felony had been charged.

In response to defendant’s first claim, the state maintains that the transcript shows the trial court did recognize and exercise its discretion under § 7b. In answer to defendant’s second claim, the state contends that defendant’s construction of § 7b would thwart the statute’s purpose. "Under defendant’s interpretation,” the people argue, "he would have the security of knowing he could receive only one consecutive sentence, no matter how many crimes he committed while on bond.”

We find defendant’s first claim to be without merit. No extended discussion of the issue is necessary. Taken as a whole, the record shows that the trial judge exercised his discretion. Defendant’s second claim, however, is valid and necessitates a remand for resentencing. We agree the trial judge lacked authority under § 7b to order the sentences for the April 7 and May 8 offenses to run consecutively to each other. The sentence for a subsequent felony cannot run consecutively to the sentence for an earlier felony unless the earlier felony is charged before the second is committed. This rule obtains even when both felonies are committed pending disposition of a third felony charge.

Our construction of § 7b is supported by the statute’s clear language. Before a judge can impose consecutive sentences, it must be shown that the defendant committed a felony when he had been charged with another felony, and when disposition of the other felony charge was pending. Upon that showing, the statute provides that the sentences imposed for conviction of the prior charged felony and any subsequent offense may run consecutively. It does not further provide that the sentences for any subsequent offense may run consecutively to each other simply because they were all committed pending disposition of the first charge.

Our construction of § 7b is also consistent with the statute’s purpose. Our interpretation does not achieve the greatest deterrent effect, but does achieve what we believe to be the intended deterrent effect.

The intended effect of § 7b can best be seen by analyzing the deterrence situation that exists before and after a felony has been charged. In general, once a criminal defendant has been charged with a felony, the level of deterrence against his commission of a second felony drops. Section 7b restores the level of deterrence to its pre-charge plateau. It does not, however, raise the level of deterrence above that plateau.

When a person has committed a felony for which he has not yet been charged, he has the security, under In re Carey, supra, of knowing that the sentence for any subsequent felony will run concurrently with the sentence for his first crime. The primary deterrent against his commission of a second felony at that point is the risk of being "caught”. The further risk of receiving an additional concurrent sentence is minimal. Logically, the risk of another consecutive sentence would heighten the deterrence against his commission of the second felony. For countervailing reasons, nevertheless, the Carey Court chose not to impose that added risk, except in legislatively proscribed situations.

Once a person has been "caught” or charged with the commission of a felony, the threat of being "caught again” would have minimal deterrent effect, unless at that point it carried the additional risk of a consecutive sentence. Thus, § 7b authorizes consecutive sentences under the conditions specified above. Until the defendant is charged with a subsequent felony, however, he remains secure in the knowledge that the sentences for any subsequent felonies will run concurrently with each other. That is the security he enjoyed before he was charged with the first felony. It is the type of security In re Carey allows. Logically again, it can be argued that § 7b would achieve a greater deterrent effect if read the way the state would have us read it. That argument, however, is an indictment against the general rule favoring concurrent sentences rather than an indictment against our construction of § 7b.

Under our interpretation of § 7b, a defendant does not have the security of knowing he will receive only one consecutive sentence, no matter how many crimes he commits while out on bond. Once a second felony is charged, the sentence therefor and the sentences for all offenses committed pending its disposition may run consecutively.

Remanded for resentencing.


text:
    BLACKMAN v COOPER
    Docket No. 77-4635.
    Submitted November 2, 1978, at Grand Rapids.
    Decided April 17, 1979.
    Russell Blackman brought an action against Lyle Cooper, a police officer of the Albion Police Department, for damages for personal injuries allegedly suffered by the plaintiff in the police station after his arrest for a traffic violation. The defendant’s motion for summary judgment was granted, Calhoun Circuit Court, Paul Nicholich, J., based on governmental immunity. The plaintiff appeals. Held:

    1. Summary judgment in favor of defendant was proper as to the plaintiff’s claim that sought recovery on a theory of false arrest or false imprisonment. A police officer has freedom from tort liability when acting within the scope of his official duties.
    2. The common-law freedom or immunity from tort liability does not bar the plaintiff from bringing a suit based on a claim that the defendant assaulted, battered and used excessive force upon the plaintiff in the police station after the arrest. Summary judgment for defendant was improper on this claim.
    Affirmed in part and reversed in part and remanded.
    1. Torts — Governmental Immunity — Governmental Agencies — Public Officials — Statutes.
    The governmental immunity statute applies to all governmental agencies; however, governmental immunity extends only to governmental agencies as defined by statute and not to individual public officials acting in the line of duty (MCL 691.1401 et seq.; MSA 3.996[101] et seq.).

    2. Torts — Governmental Immunity — Governmental Agencies — Tort Liability — Police Officers — False Arrest.
    General governmental immunity from tort liability enjoyed by governmental agencies is to be distinguished from the freedom from tort liability possessed by law enforcement officers when acting within the scope of their official duties; a law enforcement officer’s immunity is conditioned upon acting in good faith with probable cause; for example, a police officer, acting in good faith with probable cause within the scope of his authority is not liable for false arrest or false imprisonment, even though the arrest is subsequently found to be baseless.

      References for Points in Headnotes

       72 Am Jur 2d, States, Territories, and Dependencies §§ 104,115.

       32 Am Jur 2d, False Imprisonment §§ 79, 105, 119.
    70 Am Jur 2d, Sheriffs, Police, and Constables § 50.

       5 Am Jur 2d, Arrest §§ 112, 114.
    Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death. 60 ALR2d 873.

      3. Torts — Governmental Immunity — Police Officers — Common-Law Immunity — Tort Liability — Assault — Battery.
    An individual police officer does not enjoy common-law freedom or immunity from tort liability in tort claims for assault, battery or use of excessive force after an arrest.

      Rifkin, Schultz & Kingsley, P.C. (by Frank Rhodes, III), for plaintiff.

      Lilly & Domeny, P.C., for defendant.
    Before: Beasley, P.J., and D. E. Holbrook and G. R. Cook, JJ.

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

   Per Curiam.

Plaintiff brought suit against defendant, a police officer, claiming personal injuries in the police station after his arrest for a traffic violation.

Defendant filed a motion for summary judgment and then an amended motion for summary judgment, the gist of which is that defendant police officer is immune from tort liability under the Michigan statutes which reinstated such immunity. Although accompanied by defendant’s affidavit, the amended motion is, by its terms, brought under GCR 1963, 117.2(1). Plaintiff’s response to the motion asserted that the governmental immunity applied only to municipal corporations and their agencies, e.g., police departments, and not individual police officers. In addition, plaintiff asserted that the common-law immunity of police officers (as distinguished from statutory governmental immunity which, by its terms, extends to "all government agencies”), extended only to acts within the scope of their authority. Plaintiff says that when defendant allegedly "assaulted, battered and falsely imprisoned” plaintiff, he exceeded his authority and, thereby, lost the common-law immunity he would otherwise enjoy as a police officer.

The trial judge filed a written opinion, holding that, when making an arrest, police officers are performing a governmental function and that when performing a governmental function a police officer enjoys governmental immunity under the statute. The trial judge concluded that defendant arrested and charged plaintiff with driving a motor vehicle while under the influence of intoxicating liquor, that in so doing defendant performed a governmental function that rendered him immune from tort liability and, therefore, granted defendant’s motion for summary judgment.

Plaintiff appeals as of right.

The recent history of the law regarding the tort liability of police is said to be characterized by shifting sands and obscured pathways.

While the citation is from a Federal case, certainly the characterization fits the Michigan events. After the Michigan Supreme Court undertook to outlaw prospectively the general, common-law doctrine of governmental immunity or sovereign immunity, insofar as it extended to municipal corporations, the Legislature undertook, by statute, to reinstate governmental immunity.

By governmental immunity, we mean that immunity from tort liability enjoyed by the state, its agencies, counties, municipal corporations and other political subdivisions when engaged in the exercise or discharge of governmental functions. It should be noted that this statute is not limited to law enforcement departments or agencies, but is a governmental immunity statute of general application to all governmental agencies. These statutes have been interpreted to extend only to governmental agencies as defined in the statute and not to individual public officials acting in the line of duty.

In Cole v Rife, plaintiff claimed damages for personal injuries in an automobile collision on the theory that the proximate cause of the collision was the negligence of a police officer in establishing a road block and directing traffic around it. This Court reversed the granting of a directed verdict in favor of the police officer at the conclusion of plaintiff’s proofs, holding that the statutory sovereign immunity did not extend to a claim that a police officer was negligent in performing his official duty. Of similar import is Lee v Utica.

However, this general governmental immunity from tort liability enjoyed by governmental agencies is to be distinguished from the freedom from tort liability possessed by law enforcement officers when acting within the scope of their official duties. Sometimes, this rule is cast as being conditioned upon acting in good faith with probable cause.

For example, a police officer, acting in good faith with probable cause within the scope of his authority, is not liable for false arrest or false imprisonment even though the arrest is subsequently found to be baseless. Examination of the record in this case, with particular reference to plaintiffs complaint, does not indicate a factual basis that would support a claim of false arrest or false imprisonment against defendant police officer. Consequently, we affirm the grant of summary judgment in favor of defendant on that part of plaintiffs claim that seeks recovery on a theory of false arrest or false imprisonment. In short, we treat defendant’s petition as a motion to dismiss and find that, as a matter of law, plaintiffs complaint does not state a cause of action predicated upon false arrest or false imprisonment.

The claim that defendant assaulted, battered and used excessive force upon plaintiff in the police station after arrest enjoys no such common-law freedom or immunity from tort liability. Insofar as the trial court granted summary judgment as a matter of law with respect to plaintiffs claim of assault and battery (excessive force), we find error, reverse the order for summary judgment and remand for trial.

Affirmed in part, reversed in part and remanded for further proceedings not inconsistent with this opinion.

       Defendant accompanied his amended motion for summary judgment with his affidavit indicating the arrest of plaintiff was for driving while under the influence of intoxicating liquor.

       MCL 691.1407; MSA 3.996(107).

       MCL 691.1407; MSA 3.996(107).

       See, Jones v Marshall, 528 F2d 132, 141 (CA 2, 1975). For a full historical exposition, see Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187 (1973).

        Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961).

       The last or present such statute being MCL 691.1407; MSA 3.996(107).

       MCL 691.1401-691.1415; MSA 3.996(101)-3.996(115).

       77 Mich App 545; 258 NW2d 555 (1977), also, Sherbutte v Marine City, 374 Mich 48; 130 NW2d 920 (1964).

       83 Mich App 679; 269 NW2d 267 (1978).

       See, Manion v State Highway Comm’r, 303 Mich 1, 19-22; 5 NW2d 527 (1942), for careful delineation of distinction between sovereign immunity from suit and sovereign immunity from liability.

       35 CJS, False Imprisonment, § 22, citing, Hammitt v Straley, 338 Mich 587, 594; 61 NW2d 641 (1953).

       In so ruling, we note that we are assigning a different basis for grant of summary judgment than that apparently expressed by the trial court.


text:
    HAMKA v AUTOMOBILE CLUB OF MICHIGAN
    Docket No. 78-1315.
    Submitted January 4, 1979, at Detroit.
    Decided March 23, 1979.
    Farid N. Hamka was operating his automobile and was stopped at an intersection when a pedestrian opened the door and struck Hamka in the nose. The pedestrian was subsequently found guilty of an assault. Hamka brought an action against his automobile insurer, Automobile Club of Michigan, to recover benefits for the injury suffered in the assault. The Wayne Circuit Court, Thomas J. Foley, J., granted summary judgment in favor of the defendant. Plaintiff appeals. Held:

    Summary judgment was proper. The assault did not arise out of the ownership, operation, maintenance or use of the automobile as those terms are used in the insurance policy.
    Affirmed.
    Automobiles — Insurance — Assault — Ownership, Operation, Maintenance, Use.
    An assault by a pedestrian against the driver of an automobile, in which the pedestrian approached the stopped automobile, opened the door and struck the driver, does not arise out of the ownership, operation, maintenance or use of the automobile as those terms are used in an automobile insurance policy.
    Reference for Points in Headnote
    7 Am Jur 2d, Automobile Insurance §§ 41, 42.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael A. Gagleard), for plaintiff.

      Selby, Dickinson, Pike, Mourad & Brandt (by Eric A. Andrzejak), for defendant.
    Before: N. J. Kaufman, P.J., and T. M. Burns and Bashara, JJ.
   Per Curiam.

Plaintiff sued to recover benefits for an assault under a family automobile insurance policy. On March 10, 1978, defendant’s motion for summary judgment was granted by Wayne County Circuit Court Judge Thomas J. Foley. Plaintiff appeals by right.

The parties stipulated that on April 4, 1976, the plaintiff, Farid N. Hamka, was the owner and operator of a 1976 Pontiac Tempest which was stopped at the intersection of Canterbury and Tuxedo in the City of Dearborn. While he was sitting in his car at the above-stated location, one Abdul Berry walked up to the car, opened the driver’s door and struck the plaintiff in the nose with his fist. Thereafter, Mr. Berry left the scene and police officers from the Dearborn Police Department arrived and prepared an "incident report”. The plaintiff filed a formal complaint with the Dearborn Police Department and Mr. Berry was subsequently found guilty on an assault charge. At the time of his deposition, the plaintiff was asked if he knew why Mr. Berry assaulted him. He replied that two days prior to the assault, Mr. Berry had asked to use his car and the plaintiff had refused because Mr. Berry was intoxicated.

The trial judge properly granted defendant’s motion for summary judgment. The assault did not arise out of the ownership, operation, maintenance or use of plaintiff’s car as those terms are used in the insurance policy. See Kangas v Aetna Casualty & Surety Co, 64 Mich App 1; 235 NW2d 42 (1975), lv den 395 Mich 787 (1975).

Affirmed.


text:
    VIDO v FORD MOTOR COMPANY
    Docket No. 78-1578.
    Submitted February 22, 1979, at Detroit.
    Decided March 26, 1979.
    John Vido petitioned for workmen’s compensation benefits from Ford Motor Company and the Second Injury Fund. The petition was dismissed for lack of progress. On appeal, the Workmen’s Compensation Appeal Board denied Vido’s request for reinstatement. The Court of Appeals denied Vido’s application for leave to appeal, and the Supreme Court, in lieu of granting leave to appeal, remanded to the appeal board for a hearing at which Vido would be allowed an opportunity to show good cause why his petition should not have been dismissed. 402 Mich 857 (1978). At the proceedings on remand the board denied Vido’s motion to reinstate, and Vido appeals by leave granted. Held:

    The appeal board’s order is sufficient to allow judicial review. Even though it does not set forth testimony adopted, the legal standard employed, or the reasoning followed, the matter was a simple administrative one in which the only question was whether or not Vido demonstrated good cause. The board’s decision is reviewable only for an abuse of discretion, and plaintiffs allegations provide no excuse for his having let the disposition deadline pass without taking further action. The board did not abuse its discretion.
    Affirmed.
    1. Administrative Law — Workmen’s Compensation Appeal Board — Order — Judicial Review — Sufficiency.
    An order of the Workmen’s Compensation Appeal Board denying a plaintiffs motion to reinstate his petition for benefits after the petition had been dismissed was sufficient to allow judicial review even though the order, unlike an opinion, did not set forth the testimony adopted, the legal standard employed, and the reasoning followed in reaching the decision, because it was a simple administrative matter in which the plaintiff either showed good cause or did not.

      References for Points in Headnotes

       2 Am Jur 2d, Administrative Law § 645 et seq.

    82 Am Jur 2d, Workmen’s Compensation §§ 613, 616.

       82 Am Jur 2d, Workmen’s Compensation §§ 630, 631.

      2. Administrative Law — Workmen’s Compensation Appeal Board — Good Cause — Judicial Review — Abuse op Discretion.
    The question of whether a plaintiff shows good cause why his petition for workmen’s compensation benefits should not have been dismissed is addressed to the discretion of the Workmen’s Compensation Appeal Board and is reviewable only for abuse of discretion.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eileen D. Zielesch, Assistant Attorney General, and John F. Brady, Special Assistant Attorney General, for the Second Injury Fund.
    Before: Allen, P.J., and R. B. Burns and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff’s petition for worker’s compensation benefits was dismissed without prejudice by the referee for no progress. MCL 418.205; MSA 17.237(205), 1972 AACS R 408.40d. Plaintiff had received two extensions of the disposition deadline. The last action in the case had occurred nearly three months prior to dismissal, when the referee denied plaintiff’s motion to take plaintiff’s testimony by out-of-state deposition. The motion was denied because there was no medical proof that plaintiff could not attend trial. The Workmen’s Compensation Appeal Board denied plaintiff’s request for reinstatement, and this Court denied leave to appeal. Upon plaintiff’s application for leave to appeal to the Supreme Court, that Court remanded to the board for a hearing at which plaintiff would be allowed an opportunity to show good cause why his petition should not have been dismissed by the referee, 402 Mich 857 (1978). The board granted plaintiff the option of proceeding by pleadings rather than a hearing, which plaintiff accepted. Plaintiffs pleadings asserted that plaintiff had attempted to get medical evidence of inability to travel, but had been stymied by defendant’s failure to pay medical bills as required by the act. Plaintiff further alleged that, while plaintiffs counsel was attempting to resolve this dispute, the petition was dismissed. The board entered an order denying plaintiffs motion to reinstate. Plaintiff appeals by leave granted. We affirm.

Plaintiff initially argues that the board erred by resolving the issue by order rather than through an opinion setting forth the testimony adopted, the legal standard employed, and the reasoning followed in reaching the decision. See, e.g., Leskinen v Employment Security Comm, 398 Mich 501, 509-510; 247 NW2d 808, 811 (1976). While such elaboration is necessary to allow us to review the board’s resolution of cases on the merits, it is not ordinarily necessary where the issue presented is a simple administrative matter. There was no testimony to sift, the legal standard to be applied was apparent, and its application to the facts alleged straightforward. Either plaintiff showed good cause or he did not. The board’s order indicates that it found that he did not. Nothing more is needed for review.

The question of whether plaintiff demonstrated good cause is one addressed to the discretion of the board, and is reviewable only for abuse of discretion. See Meyers v Iron County, 297 Mich 629; 298 NW 308 (1941), Sedlow v Peoples Wayne County Bank, 274 Mich 325; 264 NW 388 (1936). Accepting as true plaintiffs allegation that he was having difficulty getting medical evidence of inability to travel, that is no excuse for allowing the deadline to pass without seeking an extension or an order to 'compel his former employer to pay the outstanding medical bills. The board did not abuse its discretion.

Affirmed. Costs to defendant.


text:
    DEPARTMENT OF TREASURY v RECORDER’S COURT JUDGE CITY OF DETROIT v RECORDER’S COURT JUDGE
    Docket Nos. 78-4876, 78-4957.
    Submitted November 28, 1978, at Detroit.
    Decided March 27, 1979.
    On October 26, 1978, John P. Withers was driving an automobile and was stopped by the Detroit police for speeding and subsequently was arrested for driving under the influence of liquor. The police searched him and found $1,222 in cash and a quantity of cocaine. At that point Withers and a passenger were arrested for the possession of a controlled substance. At the police station, a search of Withers’ car disclosed over $40,000 in cash and other items.
    The next day, the Michigan Department of Treasury, Revenue Division, issued a jeopardy assessment on the property. Copies of the assessment, along with a warrant and notice of levy, were served upon a Recorder’s Court Judge and the Detroit Police Department.
    It was later determined that the seizure of the money found in the car had been improper. The Recorder’s Court of Detroit ordered the police to return the money and miscellaneous personal property which had been improperly seized.
    The Department of Treasury and the City of Detroit each filed a complaint in the Court of Appeals for superintending control against the Recorder’s Court Judge. Mr. Withers filed a motion to intervene. This motion was granted. On November 28, 1978, the Court of Appeals consolidated the two actions. Held:

    The Recorder’s Court of Detroit has jurisdiction only over the disposition of duly instituted criminal proceedings and issues directly related to those proceedings. The jeopardy assessment issued by the Department of Treasury in this case did not institute a criminal proceeding and did not raise issues directly related to the ongoing criminal proceeding. The Recorder’s Court did not have subject-matter jurisdiction to determine title to the property.

      Reference for Points in Headnotes

       20 Am Jur 2d, Courts §§ 30, 103, 122.

      The Recorder’s Court order is vacated, being void for lack of subject-matter jurisdiction.
    1. Courts — Recorder’s Court — Jurisdiction — Criminal Proceedings — Questions of Title.
    Jurisdiction of Detroit Recorder’s Court is limited to the disposition of duly instituted criminal proceedings and issues directly related to those proceedings; it does not include general jurisdiction to determine questions of title.
    2. Courts — Jurisdiction — Recorder’s Court — Title Questions — Jeopardy Assessments — Civil Jurisdiction — Criminal Proceeding,
    A question of title raised by a jeopardy assessment issued by the Michigan Department of Treasury is not within the jurisdiction of Recorder’s Court and must be addressed in a court of civil jurisdiction where no criminal proceeding has been instituted relating to the assessment and the assessment does not raise issues directly related to an ongoing criminal proceeding.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, E. David Brockman and Susan A. Harris, Assistants Attorney General, for plaintiff Treasury Department.

      Roger E. Craig, Corporation Counsel, William Dietrich, Assistant Corporation Counsel, and John H. Dise, Jr., Principal Attorney, for plaintiff City of Detroit.

      Alphonso R. Harper, for defendant Recorder’s Court Judge.

      William B. Hill (David L. Krusell, of counsel), for intervening defendant.
    Before: J. H. Gillis, P.J., and Bashara and D. C. Riley, JJ.
   Per Curiam.

Plaintiffs filed complaints for superintending control on November 21, 1978, and November 27, 1978, respectively. The issue presented is whether a Recorder’s Court judge can order property returned to a criminal defendant upon determination that the property was illegally seized, where the Michigan Department of Treasury has previously issued a jeopardy assessment on the property.

The facts are as follows. On October 26, 1978, John Patrick Withers was driving an automobile when he was stopped by the Detroit police for speeding. After struggling with the officers, Withers was arrested for driving under the influence of liquor. The police searched him and discovered $1,222 in cash and a quantity of cocaine. At that point, Withers and a passenger were arrested for violating the Controlled Substances Act and taken to a police station. A subsequent search of the vehicle at the station disclosed over $40,000 in cash as well as books, records and miscellaneous items.

On October 27, 1978, the Michigan Department of Treasury, Revenue Division, issued a jeopardy assessment against Withers. Copies of the assessment, along with a warrant and notice of levy were served upon a Recorder’s Court judge and the Detroit Police Department.

On November 2, 1978, Mr. Withers filed a motion for return of the property that had been seized. Recorder’s Court determined that the property had been improperly seized from the trunk of the car and ordered the police to return $42,242 and miscellaneous personal property.

In the meantime, defendant Withers was bound over for trial for violation of the Controlled Substances Act based upon the cocaine found on his person at the time of his initial arrest.

Plaintiffs filed complaints for superintending control against the Recorder’s Court judge. Mr. Withers filed a motion to intervene, which was subsequently granted. On November 28, 1978, this Court issued an order staying the proceedings in Recorder’s Court and consolidated the plaintiffs’ complaints.

The jurisdiction of Recorder’s Court is provided by statute. MCL 726.11; MSA 27.3561 provides:

"The said recorder’s court shall have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this state, for crimes, misdemeanors, and offenses arising under the laws of this state, and committed within the corporate limits of the city of Detroit, except in cases cognizable by the police court of the city of Detroit, or by the justices of the peace of said city; and shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which the circuit courts of this state, within their respective jurisdictions, may, in like cases, issue and do by the laws of this state: Provided, That this section shall not be construed to prevent the grand jury for the county of Wayne from inquiring into and presenting indictments, as heretofore, for crimes and offenses committed within the limits of said city.”

In People v Rosa, 382 Mich 163; 169 NW2d 297 (1969), the defendant moved, after dismissal of the case against him, for the return of money seized in an illegal search. No jeopardy assessment had been filed by the Department of Treasury, but Recorder’s Court Judge Ricca concluded that he had no jurisdiction to entertain the motion. On appeal, this Court determined that the Recorder’s Court had jurisdiction over the question and reversed. People v Rosa, 11 Mich App 157; 160 NW2d 747 (1968). The Supreme Court agreed with our disposition and explained Recorder’s Court jurisdiction in these matters as follows:

"The statute in question in regard to the recorder’s court grants jurisdiction to said court to have original and exclusive jurisdiction of all prosecutions and proceedings in behalf of the people of this State for crimes, misdemeanors, and offenses arising under the laws of this State and committed within the corporate limits of the city of Detroit.
"These statutory words 'to do all acts which the circuit courts of this state within their respective jurisdictions, may, in like cases, issue and do by the laws of this state,’ refer to criminal matters and are definitely connected with and refer to the preceding language dealing with issuing of process, et cetera, necessary to effectively and justly enforce the law and protect the accused from an unlawful exercise of police power.
"Our words go no farther than what we have just said. In view of section 726.11’s restrictive provision, 'in like cases,’ such words are not to be taken as extending either the power or jurisdiction of the recorder’s court beyond that of disposition of a duly instituted criminal proceeding which is then before that court.
"We do not interpret the Court of Appeals’ decision (as does plaintiff) as an authorization to the recorder’s court to exercise general jurisdiction determining questions of title, and specifically hold that the statute does not grant such powers.
"We do hold that in criminal cases similar to the one before us in this appeal, it is the ancillary right and duty of the recorder’s court to determine the right to possession of money or goods illegally seized by law enforcing officials.” 382 Mich 167-168. (Footnote omitted.)

In short, Recorder’s Court jurisdiction is limited to the disposition of duly instituted criminal proceedings and issues directly related to those proceedings. It does not include general jurisdiction to determine questions of title.

The jeopardy assessment issued by the Michigan Department of Treasury in this case does not institute a criminal proceeding and does not raise issues directly related to the ongoing criminal proceeding. Rather, the Department’s actions raise a separate question of title which must be addressed in a court of civil jurisdiction. See Craig v Detroit Police Dep’t, 397 Mich 185, 190; 243 NW2d 236 (1976), People v 3474 Fairview, 81 Mich App 479; 265 NW2d 381 (1978), lv den, 402 Mich 945 (1978). Accordingly, once the Department of Treasury served its jeopardy assessment and notice of levy, the Recorder’s Court had no jurisdiction to return the property in question to the criminal defendant. The Recorder’s Court order is vacated, therefore, as being void for lack of subject-matter jurisdiction.