author: Bronson, P. J.

text:
    PEOPLE v TERRY ALEXANDER
    Docket No. 77-153.
    Submitted January 10,1978, at Lansing.
    Decided April 17, 1978.
    Leave to appeal applied for.
    Terry Alexander was charged with second-degree criminal sexual conduct and with intent to commit criminal sexual conduct involving sexual penetration. A jury found him guilty of both counts in Muskegon Circuit Court, Frederic A. Grimm, J. The prosecuting attorney filed no notice of rebuttal but called a rebuttal witness who was permitted to testify over defense counsel’s objection that the defendant had not received the required statutory notice. Defendant appeals contending that the double conviction violates the constitutional proscription of double punishment for the same offense and that the court erred by permitting a rebuttal witness to testify after objection that there was non-compliance with the notice statute. Held:

    1. Separate convictions of second-degree criminal sexual conduct and assault with intent to commit criminal sexual conduct involving sexual penetration are not prohibited where a jury could have found second-degree criminal sexual conduct but also have found that any force used was not with the intent to penetrate; similarly, the jury could have found intent to penetrate but also have found that no sexual contact occurred.
    2. The prosecution is required to give a defendant notice of rebuttal and of all proposed rebuttal witnesses. Evidence offered in rebuttal should be excluded where the prosecution fails to comply with the statutory notice requirement.
    Reversed.
    1. Criminal Law — Multiple Convictions — Lesser Included Offenses — Cognate Included Offenses — Analysis of Facts— Question of Fact.
    A defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other; this test does not rest solely on the distinction of necessarily included offenses and cognate lesser included offenses, but requires an analysis of the facts in each case.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 189.

       65 Am Jur 2d, Rape §§ 20-23.

       65 Am Jur 2d, Rape § 25.

       21 Am Jur 2d, Criminal Law § 137.
    29 Am Jur 2d, Evidence § 240.
    81 Am Jur 2d, Witnesses § 4.

      2. Criminal Law — Criminal Sexual Conduct — Elements—Proof of Elements — Sexual Penetration — Sexual Contact.
    Assault with intent to commit criminal sexual conduct involving sexual penetration requires proof of an element not found in second-degree criminal sexual conduct, and that element is the specific intent to commit sexual conduct involving sexual penetration; second-degree criminal sexual conduct requires proof of an element not required for assault with intent and that element is sexual contact.
    3. Criminal Law — Criminal Sexual Conduct — Multiple Convictions — Sexual Penetration — Sexual Contact — Question of Fact.
    Separate convictions of second-degree criminal sexual conduct and assault with intent to commit criminal sexual conduct involving sexual penetration are not prohibited where a jury could have found defendant guilty of second-degree criminal sexual conduct but also have found that any force used was not with the intent to commit criminal sexual conduct involving sexual penetration; similarly, the jury could have found defendant guilty of the assault with intent to commit criminal sexual conduct involving sexual penetration offense but also have found that no sexual contact occurred.
    4. Criminal Law — Alibi—Rebuttal Witnesses — Notice to Defendant — Surprise—Statutes.
    The prosecution is required to give a defendant notice of all proposed alibi rebuttal witnesses; the purpose of alibi and rebuttal of alibi notice is to prevent surprise at trial, and this purpose can be attained only if both sides give the statutorily required notice (MCLA 768.20[2]; MSA 28.1043[2]).
    5. Criminal Law — Alibi—Rebuttal Witnesses — Notice to Defendant — Evidence—Exclusion of Evidence — Statutes.
    Evidence offered by the prosecution in rebuttal to a defendant’s evidence relevant to a defense of alibi should be excluded where the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant containing the names of witnesses he proposes to call in rebuttal (MCLA 768.21[2]; MSA 28.1044[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, and Stephen C. Corwin, Assistant Prosecuting Attorney, for the people.

      Marietti, Mullally & Grimm, for defendant.
    Before: Bronson, P. J., and R. B. Burns and R. E. A. Boyle, JJ.

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

   Bronson, P. J.

Defendant was charged with second-degree criminal sexual conduct, MCLA 750.520c; MSA 28.788(3), and assault with intent to commit criminal sexual conduct involving sexual penetration, MCLA 750.520(g)(1); MSA 28.788(7)(1). He was found guilty of both counts by a jury and appeals of right.

Defendant contends that his conviction of both second-degree criminal sexual conduct and assault with intent violates the constitutional proscription of double punishment for the same offense.

The Supreme Court has addressed the constitutional protection against double punishment in two recent cases. In People v Martin, 398 Mich 303, 307; 247 NW2d 303 (1976), the Court held that convictions for both possession and delivery of heroin constituted double punishment because:

"Possession of the heroin present in this case was that necessary to its delivery.
"On the evidence adduced at this trial, there is no doubt that unlawful possession was a lesser included offense of delivery.
"When the jury found defendant guilty of unlawful delivery of this heroin on the evidence in this record they necessarily found him in possession of it.”

Martin was followed in People v Stewart, 400 Mich 540, 548-549; 256 NW2d 31 (1977), which involved separate convictions for sale and possession of heroin. The Court held that:

"However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.
"Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.
"Defendant Stewart may not be 'doubly punished’ by convicting him of possession, which in this case was a 'necessary’ prerequisite or the sine qua non for the very sale for which he was also convicted.”

The test which emerges from Martin and Stewart is fairly easy to state: a defendant may not be convicted of two crimes where, on the facts of the particular case, the trier of fact must necessarily find him guilty of one in order to find him guilty of the other. This test does not rest solely on the distinction between necessarily and cognate lesser included offenses, but requires an analysis of the facts of each case.

In the case at bar, defendant was convicted of both second-degree criminal sexual conduct and assault with intent to commit criminal sexual conduct involving sexual penetration. The assault with intent offense requires proof of an element not found in second-degree criminal sexual conduct: the specific intent to commit criminal sexual conduct involving sexual penetration. Second-degree criminal sexual conduct requires proof of an element not required for assault with intent, namely, "sexual contact”. On the facts of this case, the jury did not necessarily find defendant guilty of one crime in finding him guilty of the other. See People v Stewart, supra. It is important to distinguish what the jury could find from the evidence presented and what the jury necessarily found. In the instant case, the jury could have found defendant guilty of second-degree criminal sexual conduct but also have found that any force used was not with the intent to commit criminal sexual conduct involving sexual penetration. Similarly, the jury could have found defendant guilty of the assault with intent offense but also have found that no "sexual contact” occurred. Therefore, separate convictions are not prohibited.

Although defendant’s convictions do not constitute double punishment, we must reverse for the prosecutor’s failure to give notice of a witness called as a rebuttal alibi witness.

MCLA 768.20(2); MSA 28.1043(2) requires the prosecution to give notice of all proposed alibi rebuttal witnesses:

"Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.”

In the case at bar, the prosecution called a rebuttal witness who was permitted to testify over defense counsel’s objection that he had not received the statutory notice. The witness was listed in defendant’s notice of alibi, although he was not called by the defense. The prosecutor filed no notice of rebuttal.

The prosecutor argues that he should not be required to give notice of an alibi rebuttal witness the defense has listed on its notice of alibi.

The purpose of alibi and rebuttal of alibi notice is to prevent surprise at trial. See Williams v Florida, 399 US 78; 90 S Ct 1893; 26 L Ed 2d 446 (1970). See, also, People v Merritt, 396 Mich 67; 238 NW2d 31 (1976). This purpose can be attained only if both sides give the statutorily required notice. While a defendant arguably should know how a witness whom he has listed on a notice of alibi will testify, a defendant should also be entitled to know whether the prosecution will rely on that witness in rebuttal. We decline to find an exception to the statutory requirement that the prosecution give notice of rebuttal alibi witnesses where the witness in question is listed in the defendant’s notice of alibi.

MCLA 768.21(2); MSA 28.1044(2) provides:

"If the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant as provided in section 20 or 20a, the court shall exclude evidence offered by the prosecution in rebuttal to the defendant’s evidence relevant to a defense specified in section 20 or 20a. If the notice given by the prosecuting attorney does not state, as particularly as is known to the prosecuting attorney, the name of a witness to be called in rebuttal of the defense of alibi or insanity, the court shall exclude the testimony of a witness which is offered by the prosecuting attorney for the purpose of rebutting that defense.”

This language is mandatory, unlike the prior statute. See People v Merritt, supra, at 74, fn 1. We cannot say, on the facts of this case, that the error in allowing the unlisted witness to testify was harmless beyond a reasonable doubt.

Reversed.

        See US Const, Am V, Const 1963, art 1, § 15.

       The Court also held that the second conviction must be vacated even though sentences for the two convictions were to run concurrently.

       In People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975), the Supreme Court described necessarily included offenses, which are "such that it is impossible to commit the greater without first having committed the lesser”, and cognate offenses, which "share several elements, and are of the same class or category, but may contain some elements not found in the higher offense”.

        But cf. People v Risher, 78 Mich App 431; 260 NW2d 121 (1977), refusing to hold that conviction of cognate offenses is barred by double jeopardy. In Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977), the United States Supreme Court stated that the test of whether multiple punishment has been imposed is whether each offense requires proof of a fact not required by the other offense. See, also, People v Guidry, 67 Mich App 653; 242 NW2d 461 (1976). Although this test is seemingly different from the Martin/Stewart test, the two tests can be reconciled. In Brown and Guidry, the courts were confronted with conviction of a necessarily included offense; they did not consider the effect of a conviction for an offense which was not technically necessarily included apart from the facts of a particular case. The latter issue, which was addressed in Martin and Stewart, therefore was not decided by the U. S. Supreme Court. In other words, Stewart and Martin are consistent with Brown as to necessarily included offenses, but state an additional test for circumstances not present in Brown, i.e., where two offenses are factually included. As we are not here presented with conviction of a necessarily included offense, we apply the Martin/Stewart test.

       We are not confronted here with the problem of whether the Legislature meant to provide for separate offenses for a single sexual penetration by subdividing sections defining criminal sexual conduct. See, e.g., People v Nelson, 79 Mich App 303; 261 NW2d 299 (1977), People v Willie Johnson, 75 Mich App 221; 255 NW2d 207 (1977), lv granted, 402 Mich 826 (1977).

       Contrary to the prosecutor’s argument, he is not prevented from listing a witness in a notice of rebuttal because defendant has listed the witness in a notice of alibi.
      We also reject the prosecutor’s argument that the prosecutor cannot "propose to call” a witness whom the defense proposes to call. If the prosecutor intends to rely on a witness in rebuttal, it is logical to assume that the defense will not call that witness. Given the purpose of the alibi notice statute, the fullest possible disclosure of potential rebuttal witnesses is to be encouraged.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v HOLLOWAY
    Docket No. 77-934.
    Submitted January 3, 1978, at Detroit.
    Decided April 17, 1978.
    Bruce Holloway was charged with carrying a concealed pistol and another concealed weapon. Defendant’s motion to suppress the concealed weapons as evidence was denied at the preliminary examination and defendant was bound over for trial. At trial the defendant again made a motion to suppress and the trial judge granted the motion on the basis that private security guards are bound by the strictures of the Fourth Amendment and the defendant was ordered discharged, Recorder’s Court of Detroit, Susan D. Borman, J. The people appeal. Held:

    Private security guards who are not acting under "the color of the law” are not bound by the strictures of the Fourth Amendment.
    Reversed and remanded for trial.
    N. J. Kaufman, J., concurred in result only:
    Security guards act under the color of law and are subject to the strictures of the Fourth Amendment. However, the evidence should not have been suppressed because the search conducted by the security guards was reasonable.
    Opinion of the Court
    1. Searches and Seizures — Governmental Officers — Private Security Guards — Restraints—Constitutional Law.
    The Fourth Amendment restraints on the activities of governmental officers does not extend to searches by private security guards (US Const, Am IV).
    Concurrence in Result by N. J. Kaufman, J.
    2. Searches and Seizures — Private Security Guards — Color of
    State Law — Reasonableness Standards — Police Officers. Private security guards in reality do act under color of state law and, therefore, their actions in searching a person are subject

      to the same reasonableness standards as are applicable to police officers.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures § 13.
    Private individual: admissibility, in criminal case, of evidence obtained by search by private individual. 36 ALR3d 553.

      3. Searches and Seizures — Security Guards — Reasonableness of Search — Suppression of Evidence — Pat-Down Search.

      Evidence seized by security guards in a pat-down search of a defendant was admissible into evidence and the trial court should not have ordered the evidence suppressed where, under the circumstances surrounding the encounter between the security guards and the defendant, the search was reasonable.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.
    Before: Bashara, P. J., and J. H. Gillis and N. J. Kaufman, JJ.
   Bashara, P. J.

The prosecutor appeals from an order granting defendant’s motion to suppress evidence and quash the information. Defendant was charged with carrying a concealed pistol and another concealed weapon contrary to MCLA 750.227; MSA 28.424.

The facts involved are neither complicated nor disputed. A private security guard stationed at a Cunningham’s drugstore in the Greyhound Bus Terminal spotted defendant acting in a "suspicious” manner, as if ready to steal some articles. The guard approached the defendant. By this time the guard’s partner was already speaking to him. The guard noticed a bulge in defendant’s pocket. A pat down revealed a .32-caliber pistol and a concealed knife. The weapons were turned over to the police and defendant was placed under arrest.

Defense counsel argued Fourth Amendment exclusion provisions at the preliminary examination. However, a Recorder’s Court judge, sitting as examining magistrate, was not persuaded and bound defendant over for trial. The argument was renewed on motion before the trial court. The trial judge granted the motion on the basis that private security guards are bound by Fourth Amendment strictures and therefore the evidence seized by the guard must be suppressed.

The primary issue, then, is whether the Fourth Amendment restraint on the activities of governmental officers extends to searches by private security guards. We hold that it does not and, therefore, reverse the opinion of the trial court.

This Court has very clearly spoken to the issue on more than one occasion. In People v Harry James Smith, 31 Mich App 366, 373-374; 188 NW2d 16 (1971), the Court stated:

"As previously stated, Mr. Gunn was a private guard, not a police officer, nor was he acting under any authority of any police agency. He was, therefore, a private individual. Thus, the evidence obtained is admissible into evidence whether his actions were reasonable or unreasonable.”

Again, in People v Langley, 63 Mich App 339, 344; 234 NW2d 513 (1975), we said, relying on People v Smith, supra:

"Admission of evidence obtained by a private individual, not acting under the authority of the state, is not prohibited by the U. S. Const, Am IV, whether his actions were reasonable or not.”

The learned trial judge relies on decisions of the United States Supreme Court to find that arrests by private security guards are made under "color of law” and are, therefore, subject to the Fourth Amendment strictures. A review of the cited decisions leads us to the conclusion that such reliance is misplaced.

In Griffin v Maryland, 378 US 130; 84 S Ct 1770; 12 L Ed 2d 754 (1964), the security guard involved had been deputized by the county sheriff for the express purpose of policing an amusement park where the incident complained of occurred. Williams v United States, 341 US 97; 71 S Ct 576; 95 L Ed 774 (1951), involved a private detective who held a special police officer’s card and badge. The detective was accompanied by a city police officer sent by his superior to lend authority to the proceedings. It was under those circumstances that the United States Supreme Court determined that evidence obtained could be suppressed, because it was acquired under "the color of the law”. Surely the facts in the foregoing cases are distinguishable from those at bar.

Accordingly, we would adhere to the precepts laid down in Burdeau v McDowell, 256 US 465, 475; 41 S Ct 574, 576; 65 L Ed 1048, 1051 (1921), which have not, so far as our research has shown, been diluted by subsequent decision. The Court stated:

"The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies * * * .
"It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken and held was turned over to the prosecuting officers of the Federal Government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.”

Thus an individual has the right to redress any wrongs which may have been committed by private citizens, be they security guards or not. They can bring civil actions or file criminal complaints against the alleged offenders. It is because the cloak of sovereign immunity is wrapped around law enforcement officials that the Fourth Amendment is applied to their actions (though today a somewhat ragged cloak).

There is a growing feeling among the courts of this country that the exclusionary rule has been stretched far beyond its original and very useful purpose. That frustration was well voiced by Mr. Justice Blackmun in the recent case of United States v Janis, 428 US 433, 459; 96 S Ct 3021; 49 L Ed 2d 1046 (1976), reh den, 429 US 874; 97 S Ct 196; 50 L Ed 2d 158 (1976):

"In the past this Court has opted for exclusion in the anticipation that law enforcement officers would be deterred from violating Fourth Amendment rights. Then, as now, the Court acted in the absence of convincing empirical evidence and relied, instead, on its own assumptions of human nature and the interrelationship of the various components of the law enforcement system. In the situation before us, we do not find sufficient justification for the drastic measure of an exclusionary rule. There comes a point at which courts, consistent with their duty to administer the law, cannot continue to create barriers to law enforcement in the pursuit of a supervisory role that is properly the duty of the Executive and Legislative Branches. We find ourselves at that point in this case.”

Finally we note that another panel of this Court, in People v Eastway, 67 Mich 464; 241 NW2d 249 (1976), wrote to the issue here addressed. The holding there, that the Fourth Amendment should apply to private security guards, was only dicta to the law of the case. Nonetheless, insofar as it touches upon our holding, we specifically decline to follow its result or reasoning.

Our resolution of the first issue raised makes it unnecessary to determine whether the private guard’s actions were reasonable or justifiable.

Reversed and remanded for trial.

J. H. Gillis, J., concurred.

N. J. Kaufman, J.

(concurring in result). Historically, debate over issues of constitutional law has largely been a matter of perspective. This case provides a good example of that maxim. The majority ' opinion has chosen to cast the Fourth Amendment in a narrow context and in static terms. In so doing, it ignores the reality of a law enforcement realm that encompasses not only sovereign peace-keeping forces but other instrumentalities whose activities may, at times, straddle that rather ephemeral public-private boundary which delineates the limits of the Constitution’s scope. The majority’s perspective ignores the potential for tacit abuse of power on the part of the state. It is a perspective, therefore, I cannot share.

The majority opinion is grounded in two major premises: (1) Michigan law clearly holds that security guards are not subject to the Fourth Amendment, and (2) certain decisions of the United States Supreme Court do not render that law inoperative. I cannot agree with either premise. Further, assuming arguendo the validity of the majority’s interpretation of its citations to support its contentions, I nonetheless would not come to the same conclusion.

The majority opinion cites only People v Harry James Smith, 31 Mich App 366; 188 NW2d 16 (1971), in support of its major proposition, that security guards are not subject to the Fourth Amendment. That case held that despite the fact that the security guard "was a private policeman licensed in the state of Michigan, and that he had a Detroit license to be a private patrol watchman under a Detroit ordinance”, he was nonetheless a private person in terms of the Fourth Amendment. However, this Court further explained:

"To hold a private individual to the same standard of conduct as that required of a police officer who acts with, for, and on behalf of the authority of the state, would create a chaotic situation. We recognize that Mr. Gunn was a private policeman but unless, and until, the Legislature or the Supreme Court of the State of Michigan or the Supreme Court of the United States places upon private policemen the same standard of care as is placed on police officers they are acting in an individual and private capacity.” 31 Mich App at 375.

I believe that the Legislature has placed "upon private policemen the same standard of care as is placed on police officers”. MCLA 338.1080; MSA 18.185(30) states:

"Sec. 30. Any private security police officer, as defined in section 29, who is properly licensed under this act shall have the authority to arrest a person without a warrant as set forth for public peace officers in section 15 of chapter 4 of Act No. 175 of the Public Acts of 1927, being section 764.15 of the Compiled Laws of 1948 when such security police officer is on his employer’s premises. Such authority shall be limited to his hours of employment as a private police officer and shall not extend beyond the boundaries of the property of his employer, and while such officer is in the full uniform of his employer.” (Footnote omitted.)

Thus, at least some security guards have the same powers as police officers. Ostensibly, the provision is limited by MCLA 338.1079; MSA 18.185(29):

"Sec. 29. This act shall not require licensing of any private security police employed for the purpose of guarding the property and employees of their employer and generally maintaining plant security for their employer, provided however, that any person, firm or corporation maintaining a private security police organization may voluntarily apply for licensing under this act. When a private security police employer described and defined in this section provides the employee with a pistol for the purpose of protecting the property of the employer, such pistol shall be considered the property of the employer and the employer shall retain custody thereof except during the actual working hours of the employee. All such private security people shall be subject to the provisions of section 19, subsection (1) of this act.”

Certainly the argument can be made that MCLA 338.1080; MSA 18.185(30) refers to, and is applicable to, only proprietary security guards who work in-house for a parent company who has voluntarily become licensed and supplies the training requirements of MCLA 338.1079; MSA 18.185(29).

However, such a construction would ignore the legislative intent of the Private Security Guard Act of 1968:

"[T]o license and regulate private security guards, private police, special police, security technicians, watchmen, patrol service, * * * to provide penalties for violations; * * * establish minimum qualifications for individuals as well as private agencies engaged in private security work.”

It would also ignore the rather pervasive licensing requirements embodied in MCLA 338.1053; MSA 18.185(3), and MCLA 338.1056; MSA 18.185(6).

A more expansive reading of MCLA 338.1080; MSA 18.185(30) would satisfy the Smith condition and would bring security guards within the ambit of the Fourth Amendment.

Significantly, this viewpoint has already been expressed by this Court in People v Eastway, 67 Mich App 464; 241 NW2d 249 (1976), specifically disapproved of by the majority. Thus, I would dispute their contention that Michigan law is clear on this subject.

As Michigan law is not clear, it remains for this panel to decide in which direction to turn at the crossroads. Do private security guards act in such a manner so that their activities may be classified as "public” or "governmental”? If the answer is "yes”, then the Fourth Amendment is applicable. As noted in Berger v New York, 388 US 41, 53; 87 S Ct 1873; 18 L Ed 2d 1040 (1967):

" 'The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ ” [Camara v Municipal Court of the City and County of San Francisco, 387 US 523, 528; 87 S Ct 1727; 18 L Ed 2d 930 (1967)].”

It is too simplistic to divide the world into public and private sectors and presume security guards to be on the private side. Security guards are hired to provide security for persons and property, cf. People v Smith, 82 Misc 2d 204; 368 NYS2d 954 (1975), precisely the function given to other governmentally constituted peace-keeping forces. A more detailed and practical examination should be undertaken.

Underlying the Fourth Amendment’s prohibitions against unwarranted governmental searches is the fact that people have a right of privacy which ought not be abridged by such activities. In Boyd v United States, 116 US 616; 6 S Ct 524; 29 L Ed 746 (1886), the United States Supreme Court discussed the intent of the framers and then declared:

"The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case * * * they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life.” 116 US at 630. (Emphasis added.)

Private security guards, as noted earlier, fall into a "gray” area astride the public-private distinction. To err on the side of a restrictive interpretation of the Fourth Amendment would be to sanction the possibility of widespread abuse of the privacy rights of individuals by private security guards. We live in an era where citizens’ fears for personal security lead to the formation of private law-enforcement groups. We may acknowledge the fact that public law-enforcement agencies try to discourage such groups; but must we stand ostrich-like to the destruction of basic constitutional rights merely because the police did not encourage the lawless behavior which attends this process? Respect for the law is not furthered by telling the citizenry at large that they may conduct illegal searches and turn the evidence over to the police to circumvent the Constitution. Illegal searches would still be undertaken even if officially "discouraged”. The Court in People v Williams, 53 Misc 2d 1086, 1091; 281 NYS2d 251, 256 (1967), expressed it best:

"It seems ludicrous to say that a District Attorney in prosecuting a defendant cannot use evidence obtained by a policeman in derogation of a defendant’s constitutional rights, but can use this same evidence obtained by a private person in derogation of a defendant’s constitutional rights, which in turn is handed over to a policeman who then hands it over to a District Attorney.”

This is not to suggest that publication of the majority opinion will lead to widespread illegal searches by private individuals. Clearly, most people have neither the opportunity nor the means to do so. But there is one group who has both— private security guards.

Ill-trained in the subtleties of the law of search and seizure, private security guards are more likely than public law-enforcement officials to conduct illegal searches and seizures. In addition, private security guards have accoutrements of office that tend to radiate an air of authority not possessed by other private individuals. Of particular importance are the uniform and the badge, both regulated by the state.

Therefore, it seems truly myopic to suggest that although the tasks of private security guards and police officers are similar, although at least some security guards have the same arrest powers as do police officers, and although security guards’ practical authority derives from trappings akin to those of public law-enforcement officials, private security guards are nonetheless to be treated as any other private individual in terms of the Fourth Amendment.

In reality, private security guards do act under "color of state law”. It may be admitted that this case is not so compelling as Griffin v Maryland, 378 US 130; 84 S Ct 1770; 12 L Ed 2d 754 (1964), or Williams v United States, 341 US 97; 71 S Ct 576; 95 L Ed 774 (1951). However, despite the majority’s summary treatment of those cases, I cannot — as does the majority — fault the trial court for failing to see that one state intermediate appellate opinion renders the conclusion of the United States Supreme Court in the two cases cited supra inapposite here.

Having thus concluded that the conduct of private guards is subject to the limitations of the Fourth Amendment it is still necessary to determine if the search and seizure of the weapon in this case was reasonable under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). I would hold that it was.

The inquiry demanded by Terry is a dual one:

"whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” 392 US at 20.

Terry itself provides guidelines to determine whether the security guard’s action in the instant case was justified at its inception. The Terry majority opinion recognized a variety of "street encounters” between police officers and citizens ranging from friendly exchanges of pleasantries to hostile confrontations of armed men involving arrest, or injuries, or loss of life. Terry, supra, 392 US at 13. The majority opinion in Terry referred to the need to balance the interests involved — the neutralization of danger to the policeman in the investigative circumstances and the sanctity of the individual. Terry, supra, 392 US at 26. Thus,

"[T]here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. * * * And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” (Citations omitted.) 392 US at 27.

In this case, defendant’s suspicious behavior, combined with the fact the guard noticed a bulge in defendant’s pocket, justified a limited pat-down condoned by Terry and conducted here.

Therefore, although I disagree with the reasoning of the majority opinion, I join in the result.

         The citation to People v Langley, 63 Mich App 339; 234 NW2d 513 (1975), is factually distinguishable as the private individual involved was the brother of the victim. Its inclusion merely begs the question.

       31 Mich App at 369.

       "Sec. 3. (1) A person, firm, company, partnership, or corporation shall not engage in the business of alarm system contractor, alarm system agent, private security guard, private police, special police, patrol service, or an agency furnishing those services, notwithstanding the name or title used in describing the agency and notwithstandihg that other functions and services may also be performed for fee, hire, or reward. Nor shall a person, firm, company, partnership, or corporation advertise the business to be that of alarm system contractor, alarm system agent, private security guard agency, or an agency furnishing those services without having first obtained from the department a license to do so, as hereinafter provided, for each bureau, agency, subagency, office, and branch office to be owned, conducted, managed, or maintained for the conduct of that business. Violation of this section is a misdemeanor punishable by imprisonment for not more than 90 days, or by a fine of not more than $1,000.00, or both.”

       "Sec. 6. (1) The department shall issue a license to conduct business as an alarm system contractor or a private security guard or agency, if it is satisfied that the applicant is a person, or if a firm, partnership, company, or corporation, the sole or principal license holder is a person who meets all of the following qualifications:
      "(a) Is a citizen of the United States.
      "(b) Is not less than 25 years of age.
      "(c) Has a high school education or its equivalent.
      “(d) Is currently, and has been for not less than 1 year, a resident of this state.
      "(e) Has not been under any sentence for the commission of a felony within 5 years prior to application, including parole, probation, or actual incarceration.
      "(f) Has not been dishonorably discharged from a branch of the United States military service.
      "(g) In the case of an applicant for a private security guard or agency license, has been lawfully engaged in 1 of the following:
      "(i) In the private security guard or agency business on his own account for a period of not less than 3 years.
      "(ii) In the private security guard or agency business for a period of not less than 3 years as an employee of the holder of a certificate of authority to conduct a private security guard or agency business, and has had experience reasonably equivalent to not less than 4 years of full-time guard work in a supervisory capacity with rank above that of patrolman.
      "(iii) In law enforcement employment on a full-time basis for not less than 4 years for a city, county, or state government, or for the United States government.
      "(iv) In the private security guard or agency business as an employee or on his own account, or as a security administrator in private business for not less than 2 years on a full-time basis, and is a graduate or its equivalent in the field of police administration or industrial security from an accredited college or university.
      "(j) Has posted with the department a bond provided for in this act.
      "(k) Has not been adjudged insane, unless restored to sanity by court order.
      "(2) In the case of a person, firm, partnership, company, or corporation now doing or seeking to do business in this state, the resident manager shall comply with the applicable qualifications of this section.”

       it is noteworthy that the Eastway holding is characterized as dictum. It is true that this Court states, "We need not reach that question, however, as the search and seizure complained of in this case was not unreasonable.” 67 Mich App at 467. However, had this Court strictly followed Smith, that analysis would be superfluous as the reasonableness of a private person’s actions need not be assessed. This Court clearly analyzed the private security guard’s actions as it would any other peace officer. It did not apply the exclusionary rule to the evidence seized, because the search was not unreasonable.

       See MCLA 338.1069; MSA 18.185(19).

       Private security guards, of course, being limited to the scope of their employment.

       Surely it will be argued that the mere fact of licensing alone does not a public official make. It is true that recitation of a familiar "talismanic formula”, People v Beard, 78 Mich App 636, 639; 261 NW2d 27 (1977), has a soothing effect on those who invoke it. But even fervent incantation cannot dispel the reality of what function is being licensed here — that of protection of person and property by an organized peace-keeping force.

       In so concluding, I acknowledge this Court’s holding in People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). I have no quarrel with the disposition of that case and agree with its reasoning. However, there are two salient features which distinguish Terrell from this case. Terrell took place out-of-doors and no "bulge” was readily apparent. That differs from the factual situation here where the chances of innocent people being injured were greater because the incident took place in the drugstore of the bus station. It was prudent for the security guard to make a Terry stop here even if it would not have been proper on the street.


author: D. F. Walsh, J.

text:
    COVINGTON v COX
    Docket No. 77-869.
    Submitted February 8, 1978, at Lansing.
    Decided April 18, 1978.
    Deborah Covington brought a paternity action charging Henry Cox with being the father of her child and seeking an order of filiation and support. The Oakland County Circuit Court, William J. Beer, J., entered an order of filiation and support. Defendant appeals. Held:

    1. The consequences of a paternity action do not sufficiently approximate the effects of a criminal conviction so as to warrant imposing upon such actions the jury waiver requirements applicable to criminal trials.
    2. A defendant in a paternity action may not challenge the verdict on the ground that he was denied effective assistance of counsel; the remedy for ineffective assistance in criminal cases should not apply to paternity actions since there are pertinent distinctions between them which obviate the necessity for vacating an order of filiation granted because of a serious mistake made by defense counsel, namely, the consequences of the order are not so severe as to mandate reversal in the interests of the integrity of the judicial system, and since the consequences are monetary, an action for malpractice provides an adequate remedy for incompetent representation.
    Affirmed.
    References for Points in Headnotes
    [1, 4, 6] 47 Am Jur 2d, Jury §§ 57, 88.
    Right to jury trial in bastardy proceedings. 94 ALR2d 1128.
    [2, 4-6] 10 Am Jur 2d, Bastards §§ 74, 75.

       16 Am Jur 2d, Constitutional Law § 573.
    21 Am Jur 2d, Criminal Law §§ 318-321.
    Constitutionally protected right of indigent accused to appointment of counsel in state court prosecution. 93 ALR2d 747.
    Determination of indigency of accused entitling him to appointment of counsel. 51 ALR3d 1108.
    Indigent accused’s right to choose particular counsel appointed to assist him. 66 ALR3d 996.

       10 Am Jur 2d, Bastards §§ 32, 118.
    Blood grouping tests. 46 ALR2d 1000.

       10 Am Jur 2d, Bastards § 132.

      1. Jury — Paternity Actions — Bastards—Waiver—Statutes— Court Rules.
    A failure to demand a trial by jury in a paternity action constitutes a waiver of such right (MCLA 722.715; MSA 25.495, GCR 1963, 730.2).
    2. Bastards — Paternity Actions — Civil—Criminal—Procedural Rules.
    A proceeding under the paternity act has both civil and criminal characteristics; whether a particular criminal or civil procedural rule is applicable to a given aspect of a paternity case must be determined as the issue is presented to the courts.
    3. Bastards — Assigned Counsel — Paternity Actions — Indigents.
    An indigent defendant in a paternity action has a right to assigned counsel at government expense.
    4. Bastards — Action—Right to Jury — Paternity Actions — Civil Procedure — Waiver.
    A paternity action follows civil procedure with respect to the right to a trial by jury since its consequences do not sufficiently approximate the effects of a criminal conviction to warrant imposing upon such actions the jury waiver requirements applicable to criminal trial.
    5. Bastards — Paternity Act — Purpose—Statutes.
    The purpose of the paternity act is to determine the existence and extent of a defendant’s obligation to support a particular child and not to impose punishment upon a defendant for antisocial behavior (MCLA 722.711 et seq.; MSA 25.491 et seq.).

    6. Jury — Waiver—Bastards—Paternity Actions — Prosecutors.
    The impact of an adverse judgment upon a defendant determines the necessity for the absolute prevention of an inadvertent waiver of a jury trial by the defendant; therefore, since that impact is not affected by the involvement of a government prosecutor in paternity actions such involvement, in itself, does not require that the jury waiver requirements applicable to criminal trials apply to paternity actions.
    7. Appeal and Error — Evidence—Court File — Inadmissible Evidence — Non-Jury Trials — Paternity Actions.
    The presence of inadmissible evidence of a blood test in a court file in the non-jury trial of a paternity action does not require a holding of error where there was no indication that the trial court considered the test results in deciding the issue of paternity.
    8. Bastards — Trial—Paternity Actions — Malpractice by Attorney — Appeal and Error — Adequacy of Remedy.
    A defendant in a paternity action may not challenge the verdict on the ground that he was denied effective assistance of counsel; pertinent distinctions between criminal actions and paternity proceedings obviate the necessity for vacating an order of filiation granted because of a serious mistake by defense counsel; first, the consequences of such an order are not so severe as to mandate reversal in the interests of the integrity of the judicial system, and, second, since the consequences of the order are monetary an action for malpractice provides an adequate remedy.

      L. Brooks Patterson, Prosecuting Attorney, and Elizabeth A. Kulesz, Assistant Prosecuting Attorney, for plaintiff.

      Gary A. Rossi, for defendant.
    Before: N. J. Kaufmann, P. J., and D. E. HolBrook, Jr. and D. F. Walsh, JJ.
   D. F. Walsh, J.

Defendant appeals from an order of filiation and support entered after a non-jury trial in a paternity action brought pursuant to MCLA 722.711 et seq.; MSA 25.491 et seq. He raises four issues:

I. In a paternity action can defendant’s right to trial by jury be waived by failure to demand it?

II. Did the presence in the court file of defendant’s application for blood tests render the trial judge unfit to sit as the trier of facts?

III. Was defendant denied a fair trial because of the trial judge’s partiality to the plaintiff?

IV. May the defendant challenge the verdict on the ground that he was denied effective assistance of counsel?

Defendant made no request for a jury trial. Under the procedural rules applicable to paternity actions, failure to demand a trial by jury constitutes a waiver thereof. Defendant argues, however, that the statute, MCLA 722.715; MSA 25.495, and the court rule, GCR 1963, 730.2, which contain these procedural waiver rules are constitutionally defective. Defendant’s premise is that a paternity action is criminal in nature and that the jury waiver provisions applicable to criminal cases should control. We disagree.

A proceeding under the paternity act has both civil and criminal characteristics. Artibee v Cheboygan Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976) (Coleman, J., dissenting), People v Stoeckl, 347 Mich 1; 78 NW2d 640 (1956), Houfek v Shafer, 7 Mich App 161, 167, n 5; 151 NW2d 385 (1967). Whether a particular criminal or civil procedural rule is applicable to a given aspect of a paternity case must be determined as the issue is presented to the courts.

In Artibee v Cheboygan Circuit Judge, supra, the Supreme Court held that an indigent defendant in a paternity action, like an indigent defendant in a criminal action, had a right to assigned counsel at government expense. In Romain v Peters, 9 Mich App 60; 155 NW2d 700 (1967), however, this Court held that with respect to the right to a trial by jury, a paternity action followed civil procedure and the verdict of 10 of 12 jurors (now 5 of 6 jurors) was sufficient.

We think Romain is controlling here. However, since defendant argues that the statute and court rule on which the decision in Romain was premised are unconstitutional, a more probing analysis is required.

The purpose of the paternity act is not to impose punishment upon a defendant for anti-social conduct but rather to determine the existence and extent of a defendant’s obligation to support a particular child. Thus, the immediate consequence of a judgment adverse to a defendant is not imprisonment or fine but merely an order defining the extent of the defendant’s support obligation.

Likewise, the gravity of the necessary consequences of an order of filiation is not as severe as those engendered by a criminal conviction. The latter always results in the stigma of criminality attaching to a defendant. Furthermore, any sanctions imposed are unavoidable by any subsequent conduct by the convicted defendant. In contrast, a paternity action merely defines a legal relationship involving the obligation of support. Artibee v Cheboygan Circuit Judge, supra. Only subsequent culpable action by the defendant can result in sanctions being applied for refusal to comply with the court’s judgment and in that regard the order of filiation and support does not differ from a civil judgment.

The fact that a county prosecutor frequently advocates the plaintiffs case does not in itself require that the jury waiver provisions applicable to criminal trials obtain in paternity actions. The critical comparison concerns the consequences of the respective proceedings for it is between the government’s imposition of those consequences and the defendant that the jury is interposed in criminal cases. See, e.g. Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). Thus it is the impact of an adverse judgment upon the defendant that determines the necessity for absolute prevention of an inadvertent waiver of a jury trial. That impact is not affected by the involvement of a government prosecutor.

Accordingly, we hold that the consequences of a paternity action do not sufficiently approximate the effects of a criminal conviction as to warrant imposing upon such actions the jury waiver requirements applicable to criminal trials.

Defendant’s second claim is that the trial court’s decision might have been influenced by its access to the results of a blood test taken at defendant’s request pursuant to MCLA 722.716(a); MSA 25.496(a). Although the results of that test were not introduced at trial, defendant argues that their very presence in the court file rendered the trial court incapable of objective fact-finding.

Defendant cites no authority for that argument and we decline to rule that the mere presence of inadmissible evidence in a court file automatically precludes a trial court from sitting without a jury. In the cases relied upon by the defendant, the trial court actually considered inadmissible evidence in reaching its decision. Compare People v Frazier Walker, 24 Mich App 360; 180 NW2d 193 (1970), affirmed, 385 Mich 596; 189 NW2d 41 (1971), with People v Dudley, 44 Mich App 9; 204 NW2d 743 (1972), reversed, 393 Mich 762; 223 NW2d 297 (1974). In the instant case, because there is no indication that the trial court considered the blood test results in deciding the issue of defendant’s paternity, we find no error. People v Grable, 57 Mich App 184; 225 NW2d 724 (1974).

Defendant’s third contention is that the trial court’s conduct indicated such partiality to the plaintiff as to have precluded a fair trial. Specifically, defendant points to the court’s comments following the plaintiff’s testimony:

"THE COURT: * * * I have heard some very positive testimony here. I think, Mr. McLay, you ought to have at least a conference with your client before we take further testimony. Thank you.
"MR. McLAY: Very well, your Honor.
"THE COURT: All right. All I am going to say, I see this many times. If this is your dughter (sic) and you have renounced her, it is you that will pay the price in the end, even if I rule in your favor. You should think about that. Mr. McLay is able to advise you. Thank you.”

Shortly thereafter the trial court heard the defendant’s testimony out of order.

We find no error in these comments. They did not indicate that the court had already decided the case prior to hearing the defendant’s testimony. Rather they expressed the court’s evaluation of plaintiff’s testimony for the guidance of defendant before he gave testimony which may have had a lasting effect on a sensitive human relationship.

Defendant’s final argument is that he was denied effective assistance of counsel and, therefore, is entitled to a new trial. He correctly asserts that the right to counsel guaranteed by Artibee, supra, implies the right to effective assistance of counsel. See, e.g., Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932). It does not follow from this, however, that the remedy for ineffective assistance in criminal cases should apply to paternity actions.

There are pertinent distinctions between a criminal action and a paternity proceeding that obviate the necessity for vacating an order of filiation granted because of a serious mistake made by defense counsel. First, as discussed above, the consequences of such an order are not so severe as to mandate reversal in the interests of the integrity of the judicial system. Second, insofar as the consequences of a filiation and support order are monetary, an action for malpractice provides an adequate remedy for incompetent representation; whereas, such an action obviously would be ineffectual to compensate a wrongfully convicted criminal defendant.

Given the absence of any systemic or practical necessity for affording the requested remedy, we hold that a defendant in a paternity action may not challenge the verdict on the ground that he was denied effective assistance of counsel.

The trial court is affirmed. No costs, a public question.

       MCLA 763.3; MSA 28.856 provides:
      "Sec. 3. In all criminal cases arising in the courts of this state whether cognizable by justices of the peace or otherwise, the defendant shall have the right to waive a determination of the facts by a jury and may, if he so elect, be tried before the court without a jury. Except in cases cognizable by a justice of the peace, such waiver and election by a defendant shall be in writing signed by the defendant and filed in such cause and made a part of the record thereof. It shall be entitled in the court and cause and in substance as follows: T, -, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury and elect to be tried by a judge of the court in which said cause may be pending. I fully understand that under the laws of this state I have a constitutional right to a trial by jury.’
      Signature of defendant.
      Such waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel.”

       MCLA 722.715; MSA 25.495 and GCR 1963, 730.2.

       MCLA 722.723; MSA 25.503.

       Criminal proceedings involve a number of unique safeguards designed to insure, as far as possible, the accuracy of a guilty verdict: for example, the requirement of proof beyond a reasonable doubt, the presumption of innocence, the res gestae witness rule, and the requirement of an unanimous verdict. That these safeguards apply only to criminal cases attests to the extremely high degree of importance attached to the factual integrity of criminal convictions. Given the gravity of the consequences and the corresponding concern that only the truly guilty should suffer them, affirming a criminal conviction caused by a serious mistake by defense counsel would be utterly unacceptable in our system of criminal jurisprudence.


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

text:
    PEOPLE v DARWALL
    Docket No. 77-1026.
    Submitted February 14, 1978, at Detroit.
    Decided April 18, 1978.
    Leave to appeal applied for.
    Darwall (defendant’s full legal name) was found to be guilty but mentally ill of murder in the second degree and assault with intent to commit murder in Recorder’s Court of Detroit, Samuel C. Gardner, J. Defendant appeals raising four issues: During the trial the court erred when it denied defendant’s motion to declare the statute providing for instructions on a verdict of "guilty but mentally ill” unconstitutional and instructed the jury that they must return a verdict of not guilty by reason of insanity or a verdict of guilty but mentally ill; the court refused to give defendant’s requested instruction that soundness of mind was an element of murder and had to be proven by the prosecution beyond a reasonable doubt; the prosecutor made certain remarks in closing argument which defendant claims deprived him of a fair trial; the court proceeded to instruct the jury on the definition of reasonable doubt over defendant’s objection that the term needed no definition. Held:

    1. The statute requiring jury instructions to the effect that, where warranted by the evidence, the jury should consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity and instructions on the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty does not shift the burden of proof to the defendant to prove his insanity and does not unconstitutionally discriminate against him.

      References for Points in Headnotes
    [1, 5] 21 Am Jur 2d, Criminal Law §§ 45, 50-53.
    75 Am Jur 2d, Trial §§ 738, 739, 742, 883.
    [2, 4, 6] 21 Am Jur 2d, Criminal Law §§ 50, 52.
    Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case. 17 ALR3d 146.

       16 Am Jur 2d, Constitutional Law § 137 et seq.

       16 Am Jur 2d, Constitutional Law § 533 et seq.

       40 Am Jur 2d, Homicide §§ 499, 515, 516.
    75 Am Jur 2d, Trial § 846.

       40 Am Jur 2d, Homicide §§ 534, 535.

       75 Am Jur 2d, Trial § 260.

       75 Am Jur 2d, Trial §§ 827, 830-836.

      2. The burden of proof of sanity beyond a reasonable doubt is on the prosecution if the issue is raised at trial by introduction of some evidence tending to overthrow the presumption of sanity.
    3. The state’s interest in protecting society from insane defendants who exhibit dangerous tendencies and in securing proper treatment for persons suffering from mental illness bears a reasonable relation to a statutory provision for two special verdict types indicating the jury’s findings as to insanity and mental illness. The statute does not, therefore, violate the equal protection clause.
    4. The trial court did not err in refusing to instruct the jury that "soundness of mind” was an element of murder requiring proof by the prosecutor beyond a reasonable doubt and was synonymous with "sanity”, where the judge instructed the jury that "there is a burden on the prosecutor to prove beyond a reasonable doubt that defendant was sane” and where he cautioned the jury that defendant had no burden to prove anything.
    5. A trial judge does not abuse his discretion in supplying to the jury only those supplemental instructions requested by the jury where at trial the jury first requested supplemental instructions on the definitions of first and second-degree murder and later the jury requested supplemental instructions on premeditation and the definitions of the three possible assaults and the defendant asked that, in addition to the requested instructions, the jury be given an instruction that sanity was an indispensable element of the crimes charged.
    6. A defendant has no right to prevent a judge from giving a proper jury instruction on the definition of reasonable doubt, and an instruction that defines "beyond a reasonable doubt” as a "conviction to a moral certainty” is proper.
    Affirmed.
    M. F. Cavanagh, J., concurred in the result only.
    1. Constitutional Law — Criminal Law — Statutes—Sanity—Mental Illness — Burden of Proof.
    A statute mandating that a jury be instructed, where the evidence warrants, to consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity and instructed as to the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty does not unconstitutionally shift the burden of proof to the defendant nor does it unconstitutionally discriminate against him (MCLA 768.29a[2]; MSA 28.1052[1] [2]).
    2. Criminal Law — Sanity—Evidence—Burden of Proof — Presumption.
    While it is true that at the outset of a criminal trial there is a presumption of sanity of the defendant, as soon as evidence is introduced tending to overthrow that presumption, the burden . of proof rests with the people to convince the trier of fact beyond a reasonable doubt of the defendant’s sanity, that being one of the necessary conditions upon which guilt may be predicated.
    3. Constitutional Law — Statutes—Judicial Review — Legislature.
    A statute must be treated with the deference due to a deliberate action of a coordinate branch of our state government and the conflict between the statute and the constitution must be clear and inevitable before the statute will be struck down as unconstitutional.
    4. Criminal Law — Sanity—Burden of Proof.
    The burden is upon the people to prove a defendant sane beyond a reasonable doubt if that issue is raised in the trial court.
    5. Constitutional Law — Equal Protection — Statutes—Criminal Law — Sanity.
    The equal protection clause of the constitution demands only that the government not impose differences in treatment on persons similarly situated except on the basis of some reasonable differentiation fairly related to the object of the law; a state’s interest in protecting society from insane defendants who exhibit dangerous tendencies and in securing proper treatment for such persons suffering from mental illness bears a reasonable relation to a statute’s provision for two special verdict types indicating the jury’s findings as to insanity and mental illness (MCLA 768.29a[2]; MSA 28.1052[1] [2]).
    6. Criminal Law — Murder—Instructions to Jury — Burden of Proof — Soundness of Mind.
    A trial court did not err in refusing to instruct the jury that soundness of mind is an essential element of murder, requiring proof by the prosecutor beyond a reasonable doubt, where it properly instructed the jury as to all the elements of the crimes, that "there is a burden on the prosecutor to prove beyond a reasonable doubt that the defendant was sane”, and cautioned the jury that the defendant has no burden to prove anything.

      7. Criminal Law — Instructions to Jury — Supplemental Instruction — Defense of Insanity.
    There is no requirement, when a jury has asked for supplemental instruction on specific areas, that the trial judge give all of the instructions previously given; thus, a trial court did not abuse its discretion in failing to refer to defendant’s defense of insanity when responding to the jury’s request for supplemental instruction on the definitions of murder in the first and second degrees, on definitions of the three assaults upon which they had been previously instructed and on premeditation.
    8. Criminal Law — Prosecutors—Closing Argument — Inferences.
    Prosecutors must be allowed reasonable latitude in arguing to the jury inferences from the facts on which they rely to establish guilt.
    9. Criminal Law — Instructions to Jury — Reasonable Doubt.
    A defendant has no right to prevent the judge from giving a proper "reasonable doubt” instruction; a trial court did not err in giving the jury, over defendant’s objection, an instruction defining "beyond a reasonable doubt” as a "conviction to a moral certainty”.

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

      Carl Ziemba, for defendant.
    Before: D. E. Holbrook, P. J., and V. J. Brennan and M. F. Cavanagh, JJ.
   D. E. Holbrook, P. J.

On January 27, 1977, defendant Darwall was found guilty but mentally ill by a Recorder’s Court jury of murder in the second degree, contrary to MCLA 750.317; MSA 28.549, and assault with intent to commit murder, contrary to MCLA 750.83; MSA 28.278. On February 4, 1977, defendant was sentenced to life imprisonment on each count and given credit for 475 days already served in jail. Defendant appeals as of right from these convictions.

The relevant facts are these. Darwall lived in a 22-room co-op in Detroit. Among the people who lived in the co-op were Robert McGillivay, Christina Reynolds and Maketa Schlega. On October 18, 1975, Robert McGillivay, Maketa Schlega and Christina Reynolds were in the kitchen of the coop talking. Bob McGillivay left the kitchen and within 30 seconds, Maketa Schlega and Christina Reynolds heard a shot. Schlega went from the kitchen into the hall to investigate and saw Mc-Gillivay lying on the floor. McGillivay was moaning that Darwall had shot him. Schlega looked up and saw Darwall standing over McGillivay reloading a shotgun. Darwall then pointed the gun at Schlega and Schlega ran out of the house and called the police. No shot was ever fired at him. Later, as the police were bringing Darwall out of the house, Schlega asked defendant why he did it. Defendant said, "Shut up. Shut up. I would have gotten you, too, mother-fucker, if the gun had been cocked”.

After calling the police, Schlega went back inside the house to find Christina Reynolds. He found her with her blouse "blown away” and her left side covered with blood.

Christina Reynolds testified that when she and Schlega heard the shot, she heard Bob McGillivay yell, "Darwall’s got a gun and he just shot me”. She stated that after Schlega went into the hall to see what happened, he yelled for her to hide. As she was trying to hide, she looked up and saw Darwall standing in front of her. He pointed the shotgun at her and fired it. She then pretended to be dead and laid there until he left. The emergency room physician that examined Christina after the shooting testified that one-third to one-half of her left breast had been torn off by the shotgun blast. Also, her left arm was so badly wounded that it was questionable whether or not the arm could be saved.

Darwall was arrested immediately after the shootings and a shotgun was seized from him. The shotgun was a single shot which required that it be loaded and cocked each time after it was fired.

The defendant raised the defense of insanity. Each side produced expert testimony concerning defendant’s sanity when he shot the victims. The defendant did not testify.

The first issue raised on appeal is whether the verdict forms "guilty but mentally ill” and "not guilty by reason of insanity” deny defendant due process of law by shifting the burden of proof regarding sanity to him or equal protection of the law by unfairly discriminating against him on the basis of his defense of insanity.

Darwall challenges MCLA 768.29a(2); MSA 28.1052(1)(2), which provides:

"At the conclusion of the trial, where warranted by the evidence, the charge to the jury shall contain instructions that it shall consider separately the issues of the presence or absence of mental illness and the presence or absence of legal insanity and shall also contain instructions as to the verdicts of guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty with regard to the offense or offenses charged and, as required by law, any lesser included offenses.”

The enabling statute for the "guilty but mentally ill” verdict is MCLA 768.36; MSA 28.1059. Defendant’s argument is based on his due process right to be free of the burden of proof in a criminal prosecution and his equal protection right not to be discriminated against unfairly. Darwall also claims that the forms of the verdicts (guilty but mentally ill, not guilty by reason of insanity) constitute special verdicts which are improper in a criminal case.

Counsel argues admirably on behalf of his client. However, this Court holds that defendant’s argument is not applicable under Michigan law. Defendant asserts that the two verdict forms of not guilty by reason of insanity and guilty but mentally ill, unconstitutionally shifts the burden of proof to the defendant. Defendant’s assertion is without support in Michigan case law. Justice Cooley in the early case of People v Garbutt, 17 Mich 9, 21-22; 97 Am Dec 162 (1868), wrote:

"The prosecution takes upon itself the burden of establishing not only the killing, but also the malicious intent in every case. There is no such thing in the law as a separation of the ingredients of offense, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilosophical, and at war with fundamental principles of criminal law. The presumption of innocence is a shield to the defendant throughout the proceedings, until the verdict of the jury establishes the fact that beyond a reasonable doubt he not only committed the act, but that he did so with malicious intent.
"It does not follow, however, that the prosecution at the outset must give direct proof of an active malicious intent on the part of the defendant; or enter upon the question of sanity before the defendant has controverted it. The most conclusive proof of malice will usually spring from the circumstances attending the killing, and the prosecution could not well be required in such cases to go further than to put those circumstances in evidence. And on the subject of sanity, that condition being the normal state of humanity, the prosecution are [sic] at liberty to rest upon the presumption that the accused was sane, until that presumption is overcome by the defendant’s evidence. The presumption is overcome by the defendant’s evidence. The presumption establishes, prima facie, this portion of the case on the part of the government. It stands in the place of the testimony of witnesses, liable to be overcome in the same way. Nevertheless it is a part of the case for the government; the fact which it supports must necessarily be established before any conviction can be had; and, when the jury come to consider the whole case upon the evidence delivered to them, they must do so upon the basis that on each and every portion of it they are to be reasonably satisfied before they are at liberty to find the defendant guilty.”

This holding was reiterated in People v Eggleston, 186 Mich 510, 514; 152 NW 944 (1915), wherein the Court wrote:

"While it is true that at the outset there is a presumption of sanity, as soon as evidence is introduced on behalf of respondent tending to overthrow that presumption, the burden of proof rests with the people to convince the jury beyond reasonable doubt of the respondent’s sanity, that being one of the necessary conditions upon which guilt may be predicated.”

See also, People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Sargeant, 65 Mich App 691, 696-697; 238 NW2d 175 (1975), and People v Marvin White, 81 Mich App 335; 265 NW2d 139 (1978).

In the instant case, the trial judge laid down the proper rule with reference to the burden resting upon the people.

In regards to the verdict of guilty but mentally ill, MCLA 330.1400a; MSA 14.800(400a) defines mental illness as follows:

"As used in this chapter, 'mental illness’ means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”

The trial judge instructed the jury as follows:

"Mental illness means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.”

Thus, the trial judge correctly instructed the jury on the definition of mental illness. We follow this Court’s holding in People v McLeod, 77 Mich App 327, 331; 258 NW2d 214 (1977), wherein our Court stated:

"It is well settled that a statute must be treated with the deference due to a deliberate action of a coordinate branch of our state government and that the conflict between the statute and the constitution must be clear and inevitable before the statute will be struck down as unconstitutional. Township of Dearborn v Dearborn Township Clerk [334 Mich 673, 680; 55 NW2d 201 (1952)], People v Guerrero [57 Mich App 316, 319; 225 NW2d 746 (1975)]. At this time and on this record, we do not find such clear and inevitable conflict between the questioned statute and the constitution. We, therefore, decline to hold this statute unconstitutional as to this defendant.” (Footnotes omitted.)

See also, People v Desi Jackson, 80 Mich App 244; 263 NW2d 44 (1977), People v Marvin White, supra.

Under the established law in Michigan, the burden is upon the people to prove a defendant sane beyond a reasonable doubt if that issue is raised in the trial court. We are cognizant that in other jurisdictions this rule does not prevail and a burden is placed upon a defendant to prove insanity either beyond a reasonable doubt or by a preponderance of the evidence.

The defendant’s equal protection challenge to this statute is based upon his assertion that the application of special verdicts like guilty but mentally ill and not guilty by reason of insanity constitutes unfair discrimination. We find this challenge without merit.

The equal protection clause demands only that the government not impose differences in treatment on persons similarly situated except on the basis of some reasonable differentiation fairly related to the object of the law. The defendant has not shown such a violation of equal protection. The statute treats the same all criminal defendants charged with murder and in a similar situation.

The state’s interest in protecting society from insane defendants who exhibit dangerous tendencies and in securing proper treatment for such persons suffering from mental illness certainly bear a reasonable relation to this statute’s provision for two special verdict types indicating the jury’s findings as to insanity and mental illness. The law passes muster if its classification is reasonably related to the legislative purpose. FS Royster Guano Co v Virginia, 253 US 412, 415; 40 S Ct 560; 64 L Ed 989 (1920). Therefore, defendant’s issue is without merit.

Next, defendant argues that he was denied his US Const, Am XIV right to a fair trial when the trial court refused to instruct the jury that soundness of mind is an essential element of murder, requiring proof by the prosecutor beyond a reasonable doubt, and the trial court erred in the giving of the supplemental jury instruction which omitted reference to the defense of insanity.

The defendant requested the following instruction:

"I instruct you, members of the jury, that an element of the crime of murder is soundness of mind of the accused. A person who is not of sound mind at the time of the commission of the alleged murder cannot be found guilty of the crime of murder. Nor can a person not of sound mind intend to commit the crime of murder.
"Therefore, since soundness of mind of the accused is an element of the offense of murder, I instruct you that when the accused raises the issue of his sanity at the time the alleged murder was committed, the burden is upon the prosecution to prove beyond a reasonable doubt that the accused was sane at the time of the commission of the alleged murder. I instruct that 'soundness of mind’ and 'sanity’ mean the same thing; the terms are synonymous.”

The trial court properly instructed the jury as to all the elements of the crimes and also that:

"There is a burden on the prosecutor to prove beyond a reasonable doubt that the defendant was sane.
"And, I want to caution you that the defendant has no burden to prove anything in this case.”

Thus, the trial court committed no error in these instructions.

The jury, after a period of deliberation, returned to the courtroom for supplemental instructions on the definitions of murder of the first degree and murder of the second degree. The court had the reporter read to the jury the court’s entire instruction on the definitions of murder of the first and second degrees. After further deliberations, the jury returned to the courtroom a second time and asked the court for further instructions on premeditation and the definitions of the three assaults upon which the court had instructed the jury. The court complied with this request.

The defendant asserts that error occurred in the supplemental instructions because the court did not mention defendant’s defense of insanity, thus, "The question of defendant’s insanity was buried amid multitudinous instructions on the elements of the crimes charged with the important and indispensable element of sanity not mentioned at all”.

There is no requirement that when a jury has asked for supplemental instruction on specific areas that the trial judge is obligated to give all of the instructions previously given. The trial judge need only give those instructions specifically asked.

As stated in People v Green, 7 Mich App 346, 358; 151 NW2d 834 (1967): "Absent a request by the jury, it was not error to fail to reiterate the previous instructions concerning the charges involved”. On the basis of Green, supra, and the trial court’s charge as a whole in this case, it is apparent that the supplemental instructions given did not constitute an abuse of discretion by the trial judge and defendant’s issue is without merit.

Third, defendant maintains that the prosecutor gave an improper closing argument. The following are the paragraphs of the prosecutor’s closing to which the defendant objects:

(1) "Well, if you can believe what I consider to be a device calculated to account for facts which can’t otherwise be accounted for, these devices that he thought himself as a Policeman and he wanted them to recognize him since he wasn’t in uniform, he was an undercover Policeman, and that is why he said, 'Don’t shoot me.’
(2) "Five days before he committed this crime he goes to the J. L. Hudson Company and he buys the gun. Why? Why did he buy the gun? There is no indication that he was going duck hunting. This was in October. I don’t know. Maybe it wasn’t the bird season.
(3) "Of course, the defense in this case is insanity. And the Court is going to give you a legal definition of insanity. But I say to you there is a considerable difference between a sick mind and sick soul. And I say, too, there is a difference between the sanity of a mind and moral sanity. And you listen carefully as the Judge instructs you on the definition of the insanity and mental illness and so forth. Because it appears from the facts in this case that what has been done is that a sickness of soul has been used to counterfeit mental illness as a defense to a charge of Murder, by reason of an expertise in — .
(4) "You heard the testimony of Doctor Danto, who saw through all of the shenanigans that the Defendant employed.
(5) "The Defense chose to put people on the Witness Stand to testify and there we did get some truth from them because they were honest people.
(6) "Counsel in touching upon some of the points I touched upon in My Opening Closing Arguments chose to answer certain things. Of course he didn’t explain to you why he had ten shotgun shells in his pocket, nor why he told Christina Reynolds 'Don’t let them shoot me,’ Nor why he told the Police, 'I have a gun. Don’t shoot me.’
"I would point out to you things defense counsel chose not to answer in his arguments, things that he chose not to answer. And I say to you that since he has had an opportunity to answer them and chose not to answer them, it is a pretty logical conclusion that he couldn’t.
(7) "You know, you remember about the mescaline and the hallucinogens and the — .
"So the first time he goes to seek any help is after he takes mescaline and he needs it because he finds — I don’t know if he ever took it again. I don’t know anything about it. I don’t know what his continued use of it was. But he was discharged from that hospital. You remember that?
(8) "I say to you, don’t buy this story that the defendant is trying to sell to you that he just put them in there and just shot. The fact is, he murdered them, he assaulted them.”

The defendant asserts that the prosecutor erred in the manner stated as to the following paragraphs:

(1) , (4) and (5) expressed his personal opinion on the credibility of witnesses and the facts in the case.

(2) and (6) impermissibly commented upon the fact that the defendant did not testify.

(3) expostulated nonexistent law to the prejudice of the defendant and expressed the prosecutor’s personal opinion as to guilt of defendant.

(7) deliberately invited the jury to consider that defendant probably used mescaline on a regular basis.

(8) expressed his personal opinion that the defendant was guilty.

We have carefully examined the prosecutor’s closing arguments in conjunction with the evidence brought out at trial and find no reversible error. In support of our ruling we turn to People v Davis, 57 Mich App 505, 511, 513; 226 NW2d 540 (1975), lv den, 399 Mich 878 (1977), wherein this Court discussed prosecutorial misconduct in closing argument and stated:

"Now to the final issue to be discussed: prosecutorial misconduct in both his summation in chief and rebuttal argument to the jury.
"This is a sticky wicket. Reading our case law, intermediate and ultimate, some citation can usually be found to support whatever position is urged by either party.
"It is apparent from the record that in this case the prosecution called the defendant’s testimony into question in terms that were less than delicate. There is often little room in a murder trial for delicacy and semantic nuance.
"Prosecutors are not permitted to state that on their 'solemn oaths’ they believe the defendant guilty. Nor may they say that if the defendant were not guilty he would not be on trial.
"Defendants can be convicted only on proof beyond a reasonable doubt and not on the personal belief of the prosecutor. The trial court must so charge. But prosecutors must in the words of the Campbell court be allowed reasonable latitude in arguing inferences from the facts on which they rely to establish guilt.” (Emphasis supplied.)

The statements by the prosecutor were fair comments based on the evidence presented.

The final issue defendant raises on appeal is whether the defendant is deprived of his US Const, Am XIV right to a fair trial where the trial court instructs the jury on the definition of "reasonable doubt” even though the defendant requests that no "reasonable doubt” definition be given. Defendant’s argument is based on his belief that any attempt to define "reasonable doubt” entails the use of words and terms which in turn require definition if the jury is to be truly enlightened. We do not agree. The defendant has no right to prevent the judge from giving a proper "reasonable doubt” instruction.

The trial judge gave the following instruction:

"By stating that the prosecution must prove guilt beyond a reasonable doubt, I mean that there must be such evidence as causes you to have a firm conviction amounting to a moral certainty of the Defendant’s guilt.
"If, aftering [sic] considering all of the evidence, you do not have such a certainty, then that is a reasonable doubt. A reasonable doubt is a state of mind which would cause you to hesitate to make an important decision in your life. It can arise from the evidence, the lack of evidence, or from the unsatisfactory nature of the evidence.”

The trial court’s instruction which defined reasonable doubt as a conviction to a moral certainty was proper. The Michigan Supreme Court in the early case of People v Swartz, 118 Mich 292, 300-301; 76 NW 491 (1898), upheld the reasonable doubt instruction which included the words "moral certainty”. The instruction by the trial judge in the instant case was just and fair. Defendant’s issue is without merit.

Affirmed.

M. F. Cavanagh, J., concurs in result only.

       In Leland v Oregon, 343 US 790; 72 S Ct 1002; 96 L Ed 1302 (1952), the Court held the due process clause does not prevent Oregon from requiring that the defendant prove insanity beyond a reasonable doubt as a defense in a murder prosecution. Additionally, in Rivera v Delaware, 429 US 877; 97 S Ct 226; 50 L Ed 2d 160 (1976), the United States Supreme Court dismissed an appeal challenging Delaware’s requirement that a defendant prove insanity by a preponderance of the evidence for want of a substantial Federal question. This seems to affirm the Court’s previous holding in Leland because a summary disposition is a decision on the merits having precedential effect within the meaning of Hicks v Miranda, 422 US 332; 95 S Ct 2281; 45 L Ed 2d 223 (1975).

        Driscoll v People, 47 Mich 413, 418; 11 NW 221 (1882).