author: B. D. Burdick, J.

text:
    VAN LAAR v ROZEMA
    Docket No. 78-4438.
    Submitted June 6, 1979, at Grand Rapids.—
    Decided January 3, 1980.
    Leanne Van Laar brought an action against Thomas Rozema alleging that the defendant was the father of the plaintiffs child and praying for an order of filiation. A judgment was entered confirming a compromise settlement stipulated to by the parties, Kent Circuit Court. The judgment confirming the compromise agreement did not reflect an acknowledgment of paternity by the defendant, nor does the record reflect such an acknowledgment. In 1978, the plaintiff moved to amend the judgment to increase the support payments. The circuit court, George V. Boucher, J., denied the motion ruling that it was without the power to modify this type of consent judgment. The plaintiff appeals. Held:

    The Paternity Act permits the mother and the putative father of an illegitimate child to reach an agreement or compromise for the support and education of the illegitimate child in lieu of proceeding to trial on the issue of paternity. Once such an agreement has been signed, the mother’s or child’s remedies for support or education are restricted. However, the intent of the act is to compel and provide support of children born out of wedlock. It is not necessary to decide the issue of whether support agreements involving illegitimate children who are not the subject of orders of filiation are always modifiable by the showing of need in order to determine that the judgment in this case was modifiable by the court. The trial court, in its judgment confirming the compromise agreement reached by the parties, ordered the defendant to pay $65 per month in support until the child attains 18 years of age, or graduates from high school whichever occurs last, or until further order of the court. Such language in the support agreement gave the trial court continuing jurisdiction to make modifications in the support agreement and put the parties on notice that such modifications were a possibility.

      References for Points in Headnotes

       10 Am Jur 2d, Bastards § 98.
    Validity and construction of putative father’s promise to support or provide for illegitimate child. 20 ALR3d 500.

       10 Am Jur 2d, Bastards § 131.

      Reversed and remanded for an evidentiary hearing to determine changed circumstances and the proper level of support.
    1. Bastards — Child Support — Paternity — Compromise Agreements — Paternity Act — Statutes.
    The Paternity Act allows the mother of an illegitimate child and the putative father to reach an agreement or compromise for the support and education of the child in lieu of proceeding to trial on the paternity issue; the act restricts the mother’s or the child’s remedies for support once the agreement has been performed (MCL 722.713; MSA 25.493).
    2. Bastards — Jurisdiction — Child Support — Modification of Judgments — Statutes.
    Support judgments in paternity cases may be modified until such time as the judgment has been completely satisfied; until such time the court shall have continuing jurisdiction over proceedings brought under the Paternity Act to increase or decrease the amount fixed by an order of filiation (MCL 722.720; MSA 25.500).
    3. Bastards — Judgments — Child Support — Modification of Judgment.
    A trial court which had entered a judgment confirming a compromise agreement between the mother of an illegitimate child and the putative father had continuing jurisdiction to make modifications in the support agreement, even though paternity was never acknowledged by the putative father, where the father was ordered to pay support of a certain amount until the child "reaches 18 years of age * * * or until further order of the court".

    4. Parent and Child — Child Support — Bastards — Compromise Agreements — Statutes.
    Support agreements which purport to sign away the rights of a child are viewed by the Court of Appeals with disfavor, particularly when the result of such an agreement may be that the child becomes a public charge; the Legislature, in allowing the mother of an illegitimate child and the putative father to enter into a compromise agreement for the support of the child, intended to allow such agreements only where adequate provision for the child is secured (MCL 722.713; MSA 25.493).

      Legal Aid of Western Michigan (by Gary N. Gershon and Diann J. Landers), for plaintiff.

      Milanowski & Milanowski, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr., and B. D. Burdick, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1963.

   B. D. Burdick, J.

Plaintiff filed a complaint alleging that the defendant was the father of her child and prayed for an order of filiation. In March, 1975, plaintiff and defendant stipulated to a settlement. The record in this case contains neither a transcript of these stipulations nor any written stipulations signed by the parties. Pursuant to a judgment confirming the settlement, defendant was ordered to pay $65 per month child support, to reimburse plaintiff for medical bills incurred by the child’s delivery and medical care, to maintain a $10,000 life insurance policy in favor of the child, and to pay attorney fees, costs, and friend of the court charges. The judgment confirming the compromise agreement did not reflect an acknowledgment of paternity by defendant and defendant does not appear to have made such an acknowledgment elsewhere.

In August, 1978, plaintiff moved to amend the judgment to increase support. Plaintiff’s motion was denied at the close of a hearing on the motion because the trial court ruled that it was without power to modify this type of consent judgment. Plaintiff appeals as of right.

The plaintiff argues that the trial court did have the power to modify the compromise agreement for support entered into between the parties to this paternity action even though paternity had not been specifically acknowledged. The issue of whether an order confirming a compromise agreement for child support, which does not specifically acknowledge paternity, may be modified by the court upon a showing of need, is one of first impression in Michigan.

Section 3 of the Paternity Act, 1956 PA 205, MCL 722.711 et seq.; MSA 25.491 et seq., permits the mother and putative father to reach an agreement or compromise for the support and education of an illegitimate child in lieu of proceeding to trial on the paternity issue:

"Sec. 3. (a) An agreement or compromise made by the mother or child or by some authorized person on their behalf with the father concerning the support and education of the child shall be binding upon the mother and the child only when the court having jurisdiction to compel support and education of the child shall have determined, that adequate provision is reasonably secured by payment or otherwise and has approved the agreement or compromise.” MCL 722.713(a); MSA 25.493(a).

MCL 722.713(b); MSA 25.493(b) restricts the mother’s or child’s remedies for support and education once the agreement has been performed:

"(b) The performance of the agreement or compromise, when so approved, shall bar other remedies of the mother or child for the support and education of the child.”

The operation of the statute in this case must be determined in light of the legislative intent behind the statute. Frost-Pack Distributing Co v Grand Rapids, 399 Mich 664, 683; 252 NW2d 747 (1977). The easily discernible intent behind this statute is to provide support for illegitimate children. Why- bra v Gustafson, 365 Mich 396, 400; 112 NW2d 503 (1961), Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976). This intent is initially expressed in the act’s preamble: "AN ACT * * * to compel and provide support of children born out of wedlock.”

The case law in this area clearly allows for court ordered increases in child support payments, upon a showing of need, in spite of contrary agreements between the parties in cases involving legitimate children or illegitimate children who are the subject of orders of filiation. Boyles v Brown, 69 Mich App 480; 245 NW2d 100 (1976), MCL 722.720; MSA 25.500, Ebel v Brown, 70 Mich App 705, 709; 246 NW2d 379 (1976).

This Court need not decide whether support agreements involving illegitimate children, who are not the subject of orders of filiation, are always modifiable by the court upon a showing of need. On the facts of this case, however, the judgment confirming the compromise agreement was subject to modification by the court.

The trial court, in confirming the agreement in this case, was required to determine that adequate provision for the child was reasonably secured. MCL 722.713(a); MSA 25.493(a). In so doing the court ordered the defendant to pay $65 per month in support until the child attains 18 years of age, or graduates from high school, whichever occurs last, or until further order of the court. The presence of this language in the support agreement gave the court continuing jurisdiction to make modifications in the support agreement and put the parties on notice that such modifications were a possibility. Thus, the trial court was not without power to modify this order upon a showing of need on the part of the child.

From a policy standpoint, this Court has taken a dim view of agreements purporting to sign away the rights of a child, particularly when the result of such an agreement may be that the child becomes a public charge, as in this case. Ebel v Brown, supra, 709, Ballard v Ballard, 40 Mich App 37; 198 NW2d 451 (1972). The legislative intent to allow compromise agreements for the support of illegitimate children only if adequate provision for the child is secured is evident from the requirements of MCL 722.713; MSA 25.493. In view of these considerations, this Court will not construe the language in the instant order, providing for a further order by the court, as solely providing a limiting factor for the period of support. If this language were read as a limiting factor only for the period of support, the defendant would be able to petition the court for termination of the support payments upon a showing of decreased need on the part of the child, but the court would have no power of modification upon a showing of increased need on the part of the child. Such a decision would not be in keeping with the intent of the Paternity Act in protecting the interests of, and providing support for, illegitimate children.

Accordingly, it is the opinion of this Court that the trial court had the power to modify this support agreement, as to the period or amount of payments, upon a showing of need. We make no decision, however, as to the merits of the plaintiffs claim for modification. This matter is remanded to the trial court for an evidentiary hearing to determine changed circumstances and the proper level of support.

Reversed and remanded.

       "The New York Court of Appeals in Bacon v Bacon, 46 NY2d 477, 480; 386 NE2d 1327; 414 NYS2d 307 (1979), discussed a statute similar to ours and stated:
      "the statute does not mandate or prohibit the- inclusion of any particular term in the contract, the parties are free to make the agreement modifiable and thus provide for unforeseen contingencies.”


source: Caselaw Access Project

author: Danhof, C.J. N. J. Kaufman, J.

license: Public Domain

text:
    PEOPLE v VINCENT
    Docket No. 43718.
    Submitted October 19, 1979, at Detroit.
    Decided January 3, 1980.
    Leave to appeal applied for.
    Robert P. Vincent and two codefendants were convicted of armed robbery and possession of a firearm in the commission of a felony, Wayne Circuit Court, John H. Hausner, J. A bait shop employee testified that two men held him up at gunpoint. He observed a third man outside the store wearing a mask. He was certain that defendant Vincent was not one of the men in the store. The employee was bound. After the intruders left he freed himself and called the police. After hearing a radio report of the robbery police gave chase to a silver van and after a high speed chase the van hit a parked vehicle and stopped. The codefendants fled but Vincent was caught inside the van. The van contained masks, a pistol and numerous guns and other items taken from the bait shop. Vincent had recently completed a prison term imposed upon a conviction of the Federal offense of misprision of a felony. The trial court ruled that the fact and date of this felony conviction could be shown but that the nature of the felony could not be disclosed except by initiative of the defense. Defendant appeals. On appeal defendant argues that in this state there is no crime known as misprision of a felony and argues that evidence of his conviction of this Federal crime should not have been held admissible to impeach his testimony. Held:

    1. Foreign convictions may not be proved to impeach a defendant in a Michigan court unless the conduct that makes out the foreign offense can also meet the minimal elements of a Michigan crime. Misprision of a felony, the Federal offense, is not a felony in the courts of this state. Evidence of it cannot be used in a Michigan court to impeach the testimony of a criminal defendant.
    2. It is improper to permit impeachment of a criminal defendant’s credibility by admitting evidence of a prior conviction of an unspecified felony without disclosing the nature of the felony.

      References for Points in Headnotes

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

       21 Am Jur 2d, Criminal Law § 7.

       29 Am Jur 2d, Evidence § 333.

       5 Am Jur 2d, Appeal and Error §§ 778, 803.

      3. Where a defendant testifies and is improperly impeached, it is possible but difficult to assess the damage done to the fairness of his trial. Therefore, although improper impeachment of a defendant’s testimony is harmless error where evidence of guilt is overwhelming, if the evidence is less than overwhelming the error is not harmless and defendant’s conviction should be reversed and a new trial ordered.
    Reversed and remanded.
    N. J. Kaufman, J., dissents. He would hold that the store employee’s testimony and the circumstance of defendant’s apprehension in a van containing masks and stolen items from the store presented overwhelming evidence of guilt. He would further hold that any error was harmless and defendant’s conviction should be affirmed.
    Opinion of the Court
    1. Witnesses — Impeachment — Foreign and Domestic Crimes ■— Rules of Evidence.
    The rule governing impeachment of a witness by evidence of his past criminal convictions does not distinguish between foreign and domestic crimes; a difficult question arises where evidence of convictions for acts that are not criminal in Michigan are offered as crimes to impeach a defendant in a Michigan court (MRE 609).
    2. Criminal Law — Evidence — Unrelated Criminal Activity — Effect on Jury — Prejudice.
    A defendant should be punished for only the crimes for which he is prosecuted; where evidence of a defendant’s unrelated criminal activity is brought into a trial, there is always a danger that the trier of fact will follow the forbidden reasoning that a "criminal” of the defendant’s "kind” is highly likely to have broken the law once again.
    3. Criminal Law — Impeachment — Prior Convictions — Credibility — Justification.
    Impeachment of the testimony of a criminal defendant by proof of other convictions can be sustained as a means of impeachment only because of the belief that, despite the acknowledged risks, many acts that are criminal also reflect so strongly on a defendant’s credibility as to justify the danger to the defendant and to the integrity of our notions of justice; the focus of this type of impeachment is conduct rather than criminality.
    4. Criminal Law — Impeachment — Prior Convictions — Foreign Convictions — Misprision — Michigan Crimes — Federal Offenses.
    A foreign conviction may not be proved to impeach a defendant in a Michigan court unless the conduct that makes out the foreign offense can also meet the minimal elements of a Michigan crime; misprision of a felony, the Federal offense, does not constitute a felony in the courts of Michigan and evidence of a conviction of it cannot be used in a Michigan court to impeach the testimony of a criminal defendant (18 USC 4, MRE 609).
    5. Witnesses — Criminal Law — Impeachment — Credibility — Prior Convictions — Unspecified Felony — Jury Speculation — Prejudice.
    It is improper to permit impeachment of a criminal defendant’s credibility by admitting evidence of a prior conviction of an unspecified felony without disclosing the nature of the felony because the unspecified felony, standing alone, says nothing of the conduct that is asserted to bear negatively on the defendant’s reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused.
    6. Witnesses — Criminal Law — Impeachment — Overwhelming Evidence — Harmless Error.
    Improper impeachment of a defendant’s testimony is harmless error where evidence of his guilt is overwhelming; it is possible but difficult to assess the damage done to the fairness of a trial where a defendant testifies and is improperly impeached.
    Dissent by N. J. Kaufman, J.
    7. Witnesses — Criminal Law — Impeachment — Overwhelming Evidence — Harmless Error.

      Overwhelming evidence of a defendant’s guilt can render improper impeachment of his testimony harmless error.

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

      Anthony C. Penta, Jr., for defendant on appeal.
    Before: Danhof, C.J., and N. J. Kaufman and D. C. Riley, JJ.
   Danhof, C.J.

Carl Lee LaDosz, Anthony Mazzio and the defendant were charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). In a joint jury trial, all the defendants were convicted of both offenses. The defendant brings this appeal as of right.

The evidence shows that at approximately 9:30 a.m. on January 17, 1978, a silver van entered the parking lot at Hudson’s Bait Shop in Wayne. Codefendant LaDosz entered the shop, carrying a bucket in which he wanted the store clerk to place some minnows. Almost immediately, a man in a blue mask appeared, holding a pistol to the clerk’s face. The clerk observed a third man outside the store, wearing a mask he could not describe. He was certain that the defendant was not one of the men in the store. The clerk was tied with tape and, after some scuffling about and shouting between the intruders, the men left. The clerk immediately freed himself and called the police.

Officers of several police agencies gave chase to a silver van almost immediately after hearing the radio report of the robbery; the first officer to take up the pursuit contacted the van approximately eight miles from the bait shop. After a high speed chase the van crashed to a stop and codefendants Mazzio and LaDosz fled. Defendant Vincent was held at bay inside the van. The van was found to contain two masks, a pistol and numerous guns and other items taken from the bait shop. The shortest time between the beginning of the robbery and the crash of the van supported by the evidence is 15 minutes.

Well before the prosecution rested its case, the trial judge disposed of motions concerning the admissibility of evidence of the defendants’ prior convictions in the event they elected to testify. Defendant Vincent had recently completed a prison term imposed upon a conviction of the Federal offense of misprision of felony. After some rather casual argument by prosecution and defense, the trial court ruled that the fact and date of the defendant’s felony conviction could be shown but that the nature of that felony could be disclosed only upon the initiative of the defense.

Of the attacks the defendant brings against this ruling, we need address only one. The defendant points out that in this state there is no crime known as misprision of a felony, see People v Lefkovitz, 294 Mich 263; 293 NW 642 (1940), and argues that his conviction of this Federal crime should not have been held admissible to impeach his testimony.

Impeachment of a witness by evidence of his past criminal convictions is controlled by MRE 609. The rule does not distinguish between foreign and domestic crimes. However, the rationale underlying this method of impeachment raises a difficult question when evidence of convictions for acts that are not criminal in Michigan are offered as evidence of crimes to impeach a defendant in a Michigan court.

Impeachment of the testimony of a criminal defendant by proof pf other convictions necessarily involves a rather fine compromise between the need to thoroughly evaluate his testimony and the much-cherished belief that a defendant should be punished for only the crimes for which he is prosecuted. When evidence of a defendant’s unrelated criminal activity is brought into a trial, the latter principle is severely tested, for there is always a danger that the trier will follow the forbidden reasoning that a "criminal” of the defendant’s "kind” is highly likely to have broken the law once again.

This means of impeachment can only have been sustained against its many critics because of the Relief that, despite the acknowledged risks, many acts that are criminal also reflect so strongly on a defendant’s credibility as to justify the danger to the defendant and to the integrity of our notions of justice. See generally, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). The focus of this type of impeachment is conduct, rather than mere criminality. We believe that it would be anomalous indeed to strike this tightwire balance between competing values when the actions involved are not considered criminal in the court in which the compromise is attempted. We hold that unless the conduct that makes out the foreign offense can also meet the minimal elements of a Michigan crime admissible under MRE 609, the foreign conviction may not be proved to impeach a defendant in a Michigan court.

The acts that bring criminal liability under 18 USC 4 would not constitute a felony in the courts of this state. Therefore, the ruling of the trial judge was in error.

We also note that the trial court ruled that the defendant’s Federal conviction could be presented by the prosecution only as an unspecified "felony”. Recently, this Court has examined this practice and found that by failing to disclose the nature of the felony, such a ruling effectively strips the evidence of the only probative effect that justifies its admission. See People v Jones, 92 Mich App 100; 284 NW2d 501 (1979), and People v Garth, 93 Mich App 308; 287 NW2d 216 (1979). In Jones, supra, the Court wrote:

"[Presentation of evidence of an unspecified 'felony’ conviction for purposes of impeaching the defendant’s credibility says nothing of the conduct that is asserted to bear negatively on the defendant’s reliability as a witness while presenting a very substantial possibility of jury speculation and consequent prejudicial impact upon the rights of the accused. The very difficult questions presented by the use of evidence of prior convictions for impeachment must be decided rather than compromised; as this case indicates, a compromise may be more injurious to a defendant than an adverse decision.” Jones, supra, at 113.

It has been suggested that, if the defendant is free to disclose the nature of the prior conviction the prosecutor has proved, the "compromise” decision is fair when evidence of the conviction is otherwise admissible. Garth, supra, V. J. Brennan, J., dissenting. However, when a trial judge denies the prosecution the power to present the nature of the prior offense to the jury, he has decided that the nature of the offense is either unduly inflammatory or misleading (as was the case in Jones, supra) or not sufficiently relevant to the defendant’s veracity (as was apparently the belief of the trial judge in the case at bar). Either circumstance dictates exclusion of the evidence altogether, rather than stripping it of its probative value and inviting the jury to speculate on what the defendant "felon” has done in the past. Further, the fact that a trial court’s admission of evidence of the whole conviction, including its nature, might not constitute reversible error is not sufficient justification for the compromise decision. Such reasoning, viewed in light of the "abuse of discretion” standard by which such decisions are reviewed, would effectively insulate the injury done by the evidence of a past unspecified "felony” from appellate repair.

When a defendant testifies and is improperly impeached, it is possible but difficult to assess the damage done to the fairness of the trial. It has been held that "overwhelming” evidence of guilt can render improper impeachment harmless. People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978). In this case the evidence against the defendant is sufficient to support the conviction but cannot be termed "overwhelming”. The defendant took the position that he was not the third man at the bait store or that, if he was, he was not a willing participant in the robbery. Such a theory could draw significant support from the defendant’s testimony. Because the defendant did not take the stand, it is of course impossible to determine the value of the testimony he might have given. It is not clear that his decision to remain silent was a tactical move unaffected by fear of improper impeachment. See People v Denny, 86 Mich App 40; 272 NW2d 332 (1978).

The defendant shall have the opportunity to testify at a new trial without reference to his Federal conviction.

Reversed and remanded.

D. C. Riley, J., concurred.

N. J. Kaufman, J.

(dissenting). I agree with the majority in their conclusion that the trial court erred in admitting, for impeachment purposes, evidence of defendant’s foreign conviction of an offense not cognizable as a crime in the state of Michigan. It should be emphasized that not only is misprision of a felony not a crime in Michigan but that Michigan has gone a step further and abolished aider and abettor status for accessories after the fact. See People v Lucas, 402 Mich 302; 262 NW2d 662 (1978).

I also agree with the reasoning of the majority that the trial court abused its discretion in allowing the prosecution to present evidence of defendant’s foreign conviction as an unspecified "felony”. When a prior conviction is allowed to be admitted in this manner, its prejudicial effect outweighs its probative value. Instead of being given matter reflective of defendant’s credibility or lack thereof, the jury is left to speculate upon the severity of defendant’s prior conviction.

However, I disagree with the majority’s assessment of the gravity of this trial court error.. I find the instant situation to be controlled by People v Makidon, 84 Mich App 287; 269 NW2d 568 (1978), wherein it is held that "overwhelming” evidence of guilt can render improper impeachment harmless.

From the testimony and evidence adduced in the trial court, it appears that three people robbed the bait store. Two entered the store, one unmasked and the other masked. These individuals were identified as the codefendants. The third individual who participated in the robbery was never identified. An employee of the bait store testified that he saw another person in a mask outside the door of the store. The witness also related that the robbers were driving a silver Dodge van.

Within minutes of the robbery, a Wayne County police officer observed a silver Dodge van with three male occupants about 11 miles from the bait store. Having received the radio description of the robbers and their vehicle, the officer pursued the van. There followed a high speed chase ending with the van eventually stopping after hitting a parked vehicle.

After the van stopped, two individuals exited from the passenger side. One was identified as codefendant LaDosz, the unmasked individual who had been inside the bait store. The other was identified as codefendant Mazzio. Both were apprehended after a foot chase. Defendant Vincent was apprehended inside the van. Also found inside thé van were many stolen items from the bait store including the store clerk’s wallet, a knife and a shotgun. Additionally, two masks were found therein.

Thus, we have a robbery perpetrated by three individuals, two of whom wore masks. We have three individuals being apprehended in close proximity in both time and place to the robbery, one of whom is identified as the unmasked robber. At apprehension, these individuals occupied a vehicle of the same description as that of the robbers. The stolen merchandise was found in this vehicle. Defendant was found in the vehicle amidst this stolen merchandise.

In light of this evidence, defendant’s theory thát he was not the third man at the bait store or that, if he was, he was an unwilling participant in the robbery becomes extremely implausible. The fiist part of this theory fails in that it calls for an illogical assumption. To find defendant was not the third man at the bait store, one would have to assume that defendant was picked up by the robbers after the incident. It defies logic to conclude that fleeing villains would stop and pick up a stranger during their escape and allow this stranger to occupy a seat amidst their stolen merchandise. Moreover, if defendant’s theory is accepted, one álso has to assume that the third inasked robber, whose presence was testified to by the bait store clerk, was dropped off before defendant was picked up. Clearly, it is much more logically consistent to conclude that defendant was indeed this third robber.

Defendant’s duress theory is equally riddled with inconsistencies. The clerk testified that the third man wore a mask and remained outside the store. Assuming defendant was this third man, an altogether logical assumption as noted above, defendant’s duress theory fails when one considers that he was out of the presence of the other two robbers. Being outside the store, defendant could have abandoned the criminal activity at any time without coercion from his fellow perpetrators. Instead, he chose to remain masked and on guard outside the store.

In summary, then, although I agree with the premises espoused by the majority, I must disagree with their conclusion. I find the quantum of evidence introduced herein to be overwhelming so as to render the trial court’s admission of the improper impeachment evidence harmless error. Accordingly, I would affirm defendant’s conviction.

       "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in'civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.” 18 USC 4.
      Conviction under this statute requires some affirmative act directed at concealing a felony from authorities. Lancey v United States, 356 F2d 407 (CA 9, 1966).

       This discussion occurred at two different points in the trial and, as to the defendant, was rather short:
      "MR. NICHOLS: [for the defendant] Mr. Vincent has one conviction for misprision of felony, Federal crime. I don’t think that’s too relevant, doesn’t involve theft, dishonesty. He merely kept his mouth shut.
      "THE COURT: What’s that? I know what misprision of felony is.
      "MR. NICHOLS: I don’t have the dates, but he was released about a year ago.
      "THE COURT: Misprision of a felony is a felony though under Federal Law, and I would allow the fact of a conviction but not in nature of any unless you want to bring it in.
      "MR. NICHOLS: You won’t allow the nature of it?
      "THE COURT: I won’t allow unless you, the Defendant’s attorney, wants to bring it in. I would allow them to say he was convicted once, 1971, or whatever it is.
      "MR. HIGBEE: [for the prosecution] There is one as to Mr. Vincent. That was the misprision of felony.
      "MR. NICHOLS: He was released about a year ago, misprision of felony.
      "THE COURT: That’s title 18, section four, $500.00 fine, prison, not more than three years or both. I will let you ask him if he has ever been convicted of a felony and the year.
      "MR. HIGBEE: I think it’s * * *
      "MR. NICHOLS: Probably ’73, isn’t that on there, ’72, ’73. Isn’t that on there?
      "THE COURT: It’s in the last 10 years.
      "OFFICER PATTERSON: ’74.
      "THE COURT: But not the nature, ’74, because, misprision of felony * * *
      "MR. HIGBEE: I think it does go to the nature of deception.
      "THE COURT: Well, misprision of felony is, I don’t think you can say that. And I will tell you why, because you can’t have misprision of felony unless somebody asks you if you know about something and you say no.
      "MR. HIGBEE: You in- effect tell a lie about it or don’t 'fess up when you know something about it’.
      "THE COURT: The statute says whoever had any knowledge of conviction of a felony cognizable of the felony of the United States, conceals and does not make known saying, some other person et cetera et cetera et cetera, shall be fined. I am just going to let it be conviction of a felony. If you want to bring it out, you can. I am not going to do it. I don’t know the particularities of it. It’s possible, but I don’t even know if it is or not. I will let you mention the fact that he has been convicted of a felony, 1974.”

       MRE 609 provides in pertinent part:
      "(a) * * * For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
      "(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
      "(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect.”

       There are doubtless many Federal crimes which, because of the unique concerns of that jurisdiction, may not be expected to have a counterpart in the law of any state. The disposition of the question such a conviction would present is not before the Court in this case.

       The Michigan statute most closely resembling 18 USC 4 is MCL 750.149; MSA 28.346:
      "Any person having knowledge of the commission of any oifense punishable with death, or by imprisonment in the state prison, who shall take any money, or any gratuity or reward, or any engagement therefor, upon an agreement or understanding, express or implied, to compound or conceal such oifense, or not to prosecute therefor, or not to give evidence thereof, shall, when such oifense of which he has knowledge was punishable with death, or imprisonment in the state prison for life, be guilty of a felony; and where the oifense, of which he so had knowledge, was punishable in any other manner, he shall be guilty of a misdemeanor, punishable by imprisonment in the county jail not more than 1 year, or by fine of not more than 500 dollars.”
      It is apparent that Michigan, unlike the Federal jurisdiction, considers the acceptance of money or some other thing of value to be an important aspect of a defendant’s culpability in concealing his knowledge of a felony. Indeed, this statute would appear to indicate that actually concealing the felony is of less importance than agreeing or promising to do so for value.


author: M. J. Kelly, J.

text:
    KRIM v COMMERCIAL UNION ASSURANCE COMPANY
    Docket No. 44510.
    Submitted November 19, 1979, at Detroit.
    Decided January 3, 1980.
    Leave to appeal applied for.
    Plaintiffs, Leonard Krim, Mac Krim and Sol Krim, doing business as Farmington Cinemas and 96 Grand Corporation, owned a motion picture theater which was damaged by fire in January, 1977. The building was insured by Commercial-Union Assurance Company against fire losses. Plaintiffs’ proofs of loss as to the building, its contents and business interruption were rejected by the insurer as excessive. Subsequent negotiations resulted in the settlement of one claim in October, 1977. Appraisal procedures provided for in the policy were conducted as to the other claims. Appraisal awards were entered in June, 1978. The settlement and appraisal awards were all for amounts less than originally claimed by plaintiffs. Defendant made payment within 30 days of the settlement and within 30 days of the appraisal awards. Subsequently, the plaintiffs brought an action against the insurer in Oakland Circuit Court seeking interest on all amounts paid by the defendant. Gene Schnelz, J., entered summary judgment in favor of the defendant. Plaintiffs appeal. Held:

    When the parties settle a good faith dispute over the amount of liability on a fire insurance claim through negotiation or resort to appraisal procedures provided for under a policy, interest is not available to the insured if the insurer pays the claim within 30 days of the ascertainment of the loss. In this case the defendant properly made payment within 30 days of the dates of ascertainment of the dollar amounts of the loss on each claim.
    Affirmed.
    1. Statutes — Conflicting Statutes — Statutory Construction.
    Statutes which are in apparent conflict should be construed, if possible, to give each full force and effect.
    References for Points in Headnotes
    [1] 16A Am Jur 2d, Constitutional Law § 862.
    73 Am Jur 2d, Statutes §§ 253, 254.“

       44 Am Jur 2d, Insurance § 1655.

      2. Insurance — Fire Insurance — Disputed Liability — Interest — Appraisal Procedures — Statutes.
    Interest is not available to an insured where the insured and an insurer settle a good faith dispute over the amount of liability on a fire insurance claim through negotiation or resort to appraisal procedures provided for under the insurance policy if the insurer pays the claim within 30 days of the ascertainment of the loss (MCL 500.2836[2]; MSA 24.12836[2]).
    3. Insurance — Fire Insurance — Appraisal Procedures.
    Complying with appraisal procedures provided for in a fire insurance policy is a prerequisite to any court action to determine the insurer’s liability where the amount of liability for the insured’s loss is in dispute.

      Honigman, Miller, Swartz, & Cohn (by Peter M. Alter and Karen S. Spector), for plaintiffs.

      Stephen M. Wittenberg, P.C., for defendant.
    Before: Allen, P.J., and M. J. Kelly and N. J. Lambros, JJ.

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

   M. J. Kelly, J.

Plaintiffs’ motion picture theater was insured by defendant against fire losses under a Michigan standard policy, MCL 500.2832; MSA 24.12832. On January 13, 1977, a fire damaged plaintiffs’ building and contents and interrupted their business. Plaintiffs filed proofs of loss which were rejected by defendant as excessive. Negotiations between the parties resulted in settlement of one claim on October 5, 1977, and appraisal procedures provided for in the policy were conducted as to the other claims. The appraisal awards were entered on June 29, 1978. The settlement and appraisal awards were all for amounts less than originally claimed by plaintiffs. In each case defendant made payment within 30 days.

Plaintiffs brought an action seeking interest on all amounts paid by defendant, commencing 30 days after the fire. The court denied plaintiffs’ motion for summary judgment under GCR 1963, 117, and entered summary judgment for defendant. Plaintiffs appeal.

Plaintiffs contend that payment by defendant was required within 30 days of the occurrence of the loss (the fire) under MCL 500.2836(2); MSA 24.12836(2) which states:

"All losses under any fire insurance policy shall be paid within 30 days, the provisions of any contract or statute to the contrary notwithstanding.”

The policy issued by defendant contained lines 150-156 of the Michigan standard policy, which provide:

"When loss payable.
"The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided.” MCL 500.2832; MSA 24.12832.

We reject plaintiff’s argument that the former statutory provisions totally displace lines 150-156. We' are not presented here with a later statute repealing an earlier one by implication, since both provisions were enacted by the Legislature on the same day with identical effective dates. It is true that § 2836(2), as a special act, must necessarily prevail over § 2832, viewed as a general provision, because we must presume that the Legislature did not intend conflict. Thus, the 30-day time provision is controlling here. Reed v Secretary of State, 327 Mich 108; 41 NW2d 491 (1950). It is an equally important principle of statutory construction that "apparently conflicting statutes should be construed, if possible, to give each full force and effect”. State Highway Comm’r v Detroit City Controller, 331 Mich 337, 358; 49 NW2d 318 (1951). Application of these canons of construction leads to the conclusion that, there being no inconsistency between the two provisions other than the time limitation, defendant properly made payment within 30 days of the dates of ascertainment of the dollar amount of the loss on each claim, based upon agreement of the parties or appraisers’ awards.

We also hold that when the parties settle a good faith dispute over the amount of liability on a fire insurance claim through negotiation or resort to appraisal procedures provided for under the policy, interest is not available to the insured if the insurer pays the claim within 30 days of the ascertainment of the loss.

Contrary to plaintiffs’ position, denial of interest payments does not constitute a penalty for complying with appraisal procedures instead of triggering interest by filing a complaint in circuit court. Such proceedings are a prerequisite to any court action. Thermo-Plastics R & D, Inc v General Accident Fire & Life Assurance Corp, Ltd, 42 Mich App 418; 202 NW2d 703 (1972). It is only when a breakdown in negotiations or a failure to comply with the findings of the panel of appraisers necessitates a lawsuit that the insured is entitled to interest as compensation for delay. It is only during the interim period of postponement of payment due that plaintiff is denied use of the funds wrongfully held by the insurer. See Banish v City of Hamtramck, 9 Mich App 381; 157 NW2d 445 (1968). This conclusion is based on the mandatory character, of the appraisal proceeding and precedent where this Court has previously held that any interest payments became due as of the date of filing the complaint. MCL 600.6013; MSA 27A.6013, Arkin Distributing Co v The American Ins Co, 85 Mich App 359, 370; 271 NW2d 430 (1978), lv den 405 Mich 841 (1979). Justice would be poorly served if we required an insurer who acts in good faith compliance with appraisal proceedings to pay interest from the date of loss when, as in Arkin, an insurer who fails to comply must only pay interest from the date of filing of the complaint.

Affirmed.


author:
R. B. Burns, P.J.
      M. F. Cavanagh, J.,

text:
    PEOPLE v CAIN
    Docket No. 44968.
    Submitted November 14, 1979, at Detroit.
    Decided January 3, 1980.
    Leave to appeal applied for.
    Defendant, David Cain, was convicted in Recorder's Court of Detroit of armed robbery and felony-firearm. During jury deliberations the bailiff was handed a note asking whether the verdict had to be unanimous. The note was conveyed to the judge, Dalton A. Roberson, who was occupied with other court matters. The judge instructed the bailiff to return to the jury room and inform the jury that the verdict must be unanimous. The bailiff returned to the jury room, knocked on the door and opened it. Standing in the doorway and without entering the room the bailiff told the jurors that their verdict had to be unanimous. The court later granted defendant a new trial on the basis of this incident. The people appeal by leave granted. Held:

    The trial court acted improperly, but the error does not require the granting of a new trial in the absence of a showing of prejudice.
    Reversed.
    M. F. Cavanagh, J., dissented. He would hold that there is a strict rule prohibiting any communication with the jury outside the courtroom and the presence of counsel, breach of which requires a new trial, and prejudice need not be shown. He would affirm.
    Opinion of the Court
    1. Criminal Law — Trial — Instructions to Jury.
    A trial court acted improperly, when questioned by a jury as to whether the verdict had to be unanimous, in allowing the bailiff, outside the presence of the judge and counsel, to instruct the jury that it must be, but his error did not require the granting of a new trial in the absence of a showing of prejudice.
    References for Points in Headnotes
    [1, 2] 76 Am Jur 2d, Trial §§ 1045-1048.
    Additional instruction to jury after submission of felony case, in accused’s absence. 94 ALR2d 270.

      Dissent by M. F. Cavanagh, J.
    2. Criminal Law — Trial — Instructions to Jury.

      A trial court acted improperly, when questioned by a jury as to whether the verdict had to be unanimous, in allowing the bailiff, outíide the presence of the judge and counsel, to instruct the jury that it must be, and such error requires the granting of a new trial.

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

      Arthur Jay Weiss, for defendant.
    Before: R. B. Burns, P.J., and M. F. Cavanagh and D. E. Holbrook, Jr., JJ.
   R. B. Burns, P.J.

Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and felony firearm, MCL 750.227b; MSA 28.424(2).

In a post-trial hearing the court officer testified that the jury adjourned to deliberate at approximately 9:00 a.m. At approximately 9:30 a.m., there was a knock on the jury room door. The bailiff answered the door and was handed a note. In the note the jury asked whether the verdict had to be unanimous. The bailiff took the note to the judge who read it and told the bailiff to tell the jurors that their verdict had to be unanimous. The bailiff returned to the jury room, knocked on the door and opened it. Standing in the doorway, not entering the jury room, he told the jurors that their verdict had to be unanimous.

The trial court granted defendant’s motion for a new trial.

We are well aware of the numerous cases wherein trial courts have been chastised for allowing anyone to communicate with the jury outside of the courtroom and the presence of counsel. However, lately there has been a relaxation of the rule and some states are requiring a showing of prejudice before granting a new trial. Gale v Hoekstra, 59 Ill App 3d 400; 16 Ill Dec 583; 375 NE2d 456 (1978), Seitz v Seitz, 35 Wis 2d 282; 151 NW2d 86 (1967).

Wilson v Hartley, 365 Mich 188; 112 NW2d 567 (1961), presented facts very similar to this case. The jury foreman sent a note to the judge inquiring as to the form of the verdict. The judge, who was trying another case, gave oral instructions to the clerk of the court to give to the jury. The clerk and bailiff went to the jury room and the clerk informed the jury:

"There is no form which you will use in giving your verdict. I will ask your foreman if he has reached a verdict, and if so, what it is. He will tell me what you have agreed on. And then I will read a form to you and that will be all.” 365 Mich 188, 189.

Justice Thomas M. Kavanagh, writing for a unanimous Court, stated:

"Although we do not condone such improper method of handling a jury trial, under the circumstances we are of the opinion that no prejudice resulted to plaintiff and that the situation does not constitute a just reason for reversal of the verdict and judgment.” Id., 190.

So, in our present case. In our opinion the court acted improperly, but the actions do not require a new trial.

Reversed.

D. E. Holbrook, Jr., J., concurred.

M. F. Cavanagh, J.,

(dissenting). I strongly disagree with the majority’s conclusion that the grant of a new trial in this case was error. My brothers note that the strict rule prohibiting any communication with the jury outside of the courtroom and the presence of counsel has been relaxed in some states. This is not so in Michigan.

There is no dearth of Michigan law on this point, yet my brothers fail to mention, let alone distinguish, the decisions in Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972), People v Heard, 388 Mich 182; 200 NW2d 73 (1972), People v Olson, 66 Mich App 197; 238 NW2d 579 (1975), lv den 396 Mich 824 (1976), People v Percy Harris, 43 Mich App 746; 204 NW2d 734 (1972), People v Kangas, 366 Mich 201; 113 NW2d 865 (1962), People v Zeegers, 61 Mich App 546; 233 NW2d 76 (1975), lv den 395 Mich 807 (1975).

In Zaitzeff, supra, 579, Justice Black stated:

"With what was written so plainly in 1961 for Wilson v Hartley, 365 Mich 188 [112 NW2d 567], concerning the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by 'no prejudice shown’ conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room.”

In People v Kangas, supra, the Court stated at pages 206-207:

"[C]ommunications or instructions by the court to the jury, after they have retired for deliberations, out of court and in the absence of the parties or their counsel, are grounds for a new trial, regardless of whether such communications or instructions were prejudicial.” (Emphasis added.)

How much more explicitly can it be stated?

In the instant case the communication to the jury was in the nature of an instruction, off the record and without counsel, in (at the perimeter of) the jury room, and while the jury was deliberating. The facts of this case are indistinguishable from those in People v Zeegers, supra, and People v Kangas, supra. Accordingly, I think leave was improvidently granted by this Court, and I would affirm the trial court’s granting of a new trial.


author: D. C. Riley, J.

text:
    PEOPLE v MARTIN
    Docket No. 77-4566.
    Submitted November 15, 1979, at Detroit.
    Decided January 9, 1980.
    Leroy Martin was charged with the felony murders of Thelma and Clifford Campbell. He was found guilty of second-degree murder but mentally ill, Wayne Circuit Court, Harry J. Dingeman, Jr., J. Defendant approached the police to report two murders. He voluntarily accompanied police officers to the police station in order to make a statement. After a few minutes he became restless and left. Two officers followed and tried to convince him to return, whereupon defendant attacked and attempted to strangle one of them. Defendant was then placed under arrest for investigation of murder and transported to the police station where he subsequently confessed to the strangulation homicides. Defendant appeals. On appeal he alleges that his confession was improperly admitted into evidence as it was the fruit of an illegal stop and an illegal arrest. Held:

    A legal arrest must be based upon probable cause to believe that an offense was committed and that the suspect committed it. An arrest for investigation purposes only is an illegal arrest. Defendant’s arrest for "investigation of murder” was without probable cause and was unlawful. There is no such crime as investigation of murder. The Fourth Amendment prohibits illegally obtained statements from being admitted into evidence. Defendant’s confession, which was solely the product of an illegal arrest, was inadmissible on constitutional grounds. Defendant’s contention that his confession was the poisoned fruit of an illegal arrest is correct.
    Reversed.
    References for Points in Headnotes
    [1, 6] 29 Am Jur 2d, Evidence §§ 412-415.
    68 Am Jur 2d, Searches and Seizures § 6.
    Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.
    Federal Constitution as affecting admissibility of evidence obtained by illegal search and seizure. 84 ALR2d 959.
    ’’Fruit of the poisonous tree” doctrine excluding evidence derived from information gained in illegal search. 43 ALR3d 385.

      1. Searches and Seizures — Constitutional Law — Illegal Seizures — Items and Statements — Admissibility.
    The Fourth Amendment’s prohibition against unreasonable searches and seizures prevents illegally seized items and statements from being admitted into evidence.
    2. Searches and Seizures — Investigatory Stops — Probable Cause — Identity and Information.
    Police officers, in appropriate circumstances and in an appropriate manner, may approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to arrest; stops may be made to determine a person’s identity or to obtain information on crimes.
    3. Searches and Seizures — Investigatory Stops — Criminal Activity — Reasonable Suspicion.
    A reasonable suspicion that criminal activity has been or is taking place is sufficient for an investigatory stop.
    4. Arrest — Criminal Law — Probable Cause.
    A necessary prerequisite to a valid arrest is probable cause to believe that an offense was committed and that the suspect committed it; the facts upon which the probable cause is premised must exist at the time of arrest.
    5. Arrest — "Investigation of Murder” — Illegal Arrest.
    An arrest for investigation purposes only is an illegal arrest; there is no such crime as "investigation of murder” and an arrest which gives this as a reason for detention is unlawful.
    6. Searches and Seizures — Constitutional Law — Criminal Law — Defective Arrest — Confessions — Admissibility.
    The Fourth Amendment prevents illegally obtained statements from being admitted into evidence and a confession that is solely the product of an illegal arrest is inadmissible on constitutional grounds; for a confession to be admissible it must be determined that there was no causal connection between the tainted arrest and the confession; it is also necessary to observe the time lapse between the defective arrest and the confession, the ñagrancy of official misconduct and any intervening circumstances.

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

      Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant on appeal.
    Before: Bronson, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   D. C. Riley, J.

Defendant was charged with the felony murders of Thelma and Clifford Campbell, contrary to MCL 750.316; MSA 28.548. He was tried before a jury and found guilty of second-degree murder contrary to MCL 750.317; MSA 28.549 but mentally ill under MCL 768.36; MSA 28.1059. Defendant appeals as of right, raising a plethora of errors, only one of which we need address.

In the instant case, defendant approached the police to report two murders which were later verified by police to be strangulation homicides. He then voluntarily accompanied the officers to the police station in order to make a statement. After waiting a few minutes, the defendant became restless and left. Two officers followed bim and tried to convince him to return, whereupon the defendant attacked and attempted to strangle one of them. Defendant was then placed under arrest for "investigation of murder” and transported to the station where he subsequently confessed to the homicides.

Defendant asserts that his confession was improperly admitted into evidence as it was the fruit of an illegal stop and an illegal arrest. The exclusionary rule, adopted to effectuate the Fourth Amendment’s prohibition against unreasonable searches and seizures, prevents illegally seized items and statements from being admitted into evidence. United States v Calandra, 414 US 338, 347; 94 S Ct 613; 38 L Ed 2d 561 (1974). Defendant calls upon us to rectify the error committed by the trial court in not having applied this rule below.

Defendant first challenges the legality of the police officer’s stop. Police officers may "in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest”. Terry v Ohio, 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). Stops may be made to determine a person’s identity, Adams v Williams, 407 US 143, 146; 92 S Ct 1921; 32 L Ed 2d 612 (1972), or to obtain information on crimes. Id., People v DeFillipo, 80 Mich App 197, 202; 262 NW2d 921 (1977), rev’d on other grounds, 439 US 816; 99 S Ct 2627; 61 L Ed 2d 343 (1979), People v Jeffries, 39 Mich App 506, 511; 197 NW2d 903 (1972). We believe, under the facts and circumstances of this case, that the officers acted reasonably in pursuing defendant for. questioning regarding the reported crimes.

Defendant further contends that even if the police were justified in stopping him, they were without probable cause to arrest him. While a "reasonable suspicion” that criminal activity has been or is taking place will suffice for a stop, People v Lillis, 64 Mich App 64, 70; 235 NW2d 65 (1975), probable cause that an offense was committed and that the suspect committed it is a necessary prerequisite to arrest. People v Langston, 57 Mich App 666, 672; 226 NW2d 686 (1975), People v Murphy, 28 Mich App 150, 154-155; 184 NW2d 256 (1970). Moreover, the facts upon which the probable cause is premised must exist at the time of arrest. People v Langston, supra.

In the case at bar, there certainly was sufficient probable cause to arrest defendant for assault and battery of the attacked officer. There may even have been sufficient probable cause to support an arrest for murder. See Langston, supra at 673. However, the defendant was not arrested for either offense, but was arrested for "investigation of murder”.

In Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975), the United States Supreme Court faced with a similar situation, ruled that an investigatory arrest is an illegal arrest. In the case sub judice, the officers repeatedly acknowledged that the defendant was arrested for investigatory purposes only. As there is no such crime as "investigation of murder”, the arrest was unlawful. Accordingly, we conclude that the trial judge abused his discretion in finding that the arrest was proper.

Finally, defendant argues that his confession, as the fruit of an illegal arrest, should have been suppressed. A confession that is solely the product of an illegal arrest is inadmissible on constitutional grounds. Wong Sun v United States, 371 US 471, 491; 83 S Ct 407; 9 L Ed 2d 441 (1963). For the confession to be admitted, it must be determined that there was no causal connection between the tainted arrest and the confession. Brown, supra at 602, People v Mosley (On Remand), 72 Mich App 289, 293; 249 NW2d 393 (1976). Proof of the giving of Miranda warnings merely satisfies threshold Fourth Amendment requirements. Dunaway v New York, 439 US 979; 99 S Ct 2248; 60 L Ed 2d 824 (1979). One must also look at the time lapse between the defective arrest and the confession, the flagrancy of official misconduct and any intervening circumstances. Dunaway, supra, Brown, supra at 603.

In the instant case there was an illegal seizure and a close temporal proximity between that seizure and defendant’s statement. We find no intervening circumstances which could have purged the taint of the deficient arrest. Therefore, defendant’s contention that his statement was the poisoned fruit of an illegal arrest is correct.

In light of the disposition of this case, defendant’s other claims need not be addressed.

Reversed.

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


author: Mackenzie, J.

text:
    FARMERS INSURANCE GROUP v CLEAR
    Docket No. 77-5183.
    Submitted April 5, 1979, at Detroit.
    Decided January 9, 1980.
    In April, 1976, Eugene Buoncompagno, while allegedly intoxicated, crashed his automobile into the front lobby of the Ford Motor Credit Company. Buoncompagno’s insurer, Farmers Insurance Group, settled with Ford. As a result of the settlement, Farmers Insurance Group and Buoncompagno were released from further liability. As subrogee of Ford, Farmers Insurance Group brought an action against Julia Clear, doing business as Elbow Room Bar, under the dramshop act. The defendant moved for summary judgment and/or accelerated judgment. The defendant contended that summary judgment was appropriate because the plaintiff failed to name and retain Buoncompagno as a party in the lawsuit. The defendant further contended that, since Buoncompagno would be entitled to an accelerated judgment based upon release if he were a named party, the defendant could employ this defense and, thus, was entitled to accelerated judgment on this ground. The Wayne Circuit Court, Andrew DiMaggio, J.,' entered summary judgment for defendant. The plaintiff appeals. Held:

    1. The "name and retain” provision of the dramshop act is not mandatory where the plaintiff has no recognized right of recovery against the intoxicated person. In this case, the plaintiff has no cause of action against Buoncompagno because of the release and naming and retaining him as a party to the action makes no sense. Summary judgment on the basis of failure to name and retain Buoncompagno was improper.
    2. Accelerated judgment rather than summary judgment would be appropriate with regard to the defendant’s claim of release and the Court of Appeals will treat it as if it were an accelerated judgment. However, such a defense must be raised not later than the first responsive pleading or the defendant’s original answer must be amended to include such defense or the defense is waived. In this case the defendant had already filed her answer before moving for accelerated and/or summary judgment and she failed to amend her original answer before she filed the motion. Accelerated judgment was improper.

      References for Points in Headnotes

       73 Am Jur 2d, Statutes §§ 260, 265.

       45 Am Jur 2d, Intoxicating Liquors § 561 et seq.

       56 Am Jur 2d, Motions, Rules, and Orders § 4 e£ seq.

       56 Am Jur 2d, Motions, Rules, and Orders § 8.
    61 Am Jur 2d, Pleading § 354.

      Reversed and remanded.
    1. Statutes — Literal Construction — Unjust Result.
    A fundamental rule of statutory construction is that departure from the literal construction is justified where a literal construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.
    2. Intoxicating Liquors — Dramshop Act — Name and Retain Provision — Statutes.
    The "name and retain” provision of the dramshop act, which requires a plaintiif to name and retain the alleged intoxicated person as a party defendant in any action brought under the act, should not be used to deny relief to plaintiffs who have failed to name or retain the intoxicated person where the plaintiffs are clearly protected by the statute’s substantive provisions but, under the circumstances of the case, have no cause of action against the intoxicated person and the application of the provision would lead to an absurd result (MCL 436.22; MSA 18.993).
    3. Motions — Incorrectly Named Motion — Prejudice to Non-moving Party.
    An incorrectly named motion should be considered as if correctly labeled if there is no prejudice to the nonmoving party.
    4. Judgment — Accelerated Judgment — Motions — Waiver — Court Rules.
    A defendant’s motion for accelerated judgment on the ground that a claim is barred because of release, payment, prior judgment, statute of limitations, statute of frauds, infancy, or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action is waived by a failure to raise it either in the first responsive pleading or in a motion filed not later than the first responsive pleading; however, where the special defense is not raised in a preliminary motion or the defendant’s answer, it may still be permitted where the defendant’s original answer is amended to include it (GCR 1963, 116.1[5]).

      Harvey, Kruse & Westen, P.C. (by Dennis M. Goebel), for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Charles Huckabay and Christine D. Oldani), for defendant.
    Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Mackenzie, J.

On April 9, 1976, Eugene Buoncompagno crashed his automobile into the front lobby of the offices of Ford Motor Credit Company, located at Michigan Avenue and The American Road, City of Dearborn. Buoncompagno’s insurer, plaintiff Farmers Insurance Group, settled with Ford, making payment in the amount of $45,000. As a resült of the settlement, plaintiff and Buoncompagno were released from further liability. As subrogee of Ford Motor Company, plaintiff brought an action against defendant under the dramshop act, MCL 436.22; MSA 18.993.

Defendant made a motion for summary judgment and/or accelerated judgment. Defendant contended that she was entitled to a summary judgment because plaintiff failed to name and retain Buoncompagno as a party in the lawsuit. Defendant also contended that since the intoxicated person, Buoncompagno, would be entitled to an accelerated judgment based upon release if he were named as a party, defendant could employ this defense and, thus, was entitled to an accelerated judgment on this ground. The trial court granted defendant’s motion for summary judgment, and plaintiff appeals as of right.

The first determination to be made is whether summary judgment was proper because plaintiff failed to name and retain Buoncompagno. MCL 436.22; MSA 18.993 provides in pertinent part:

"No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”

Defendant argues that since the intoxicated person’s identity was known by plaintiff, the "name and retain” provision is applicable under Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976). In Salas, the Court held that where the plaintiff is unaware of the identity of the intoxicated person, he is not required to name and retain the person. The Court stated that the purpose of the requirement was to eliminate possible collusion between the intoxicated person and the plaintiff. It concluded that requiring a plaintiff to name and retain an individual whose identity was unknown to prevent collusion would produce an absurd and unjust result.

We disagree with defendant that Salas dictates adherence to the "name and retain” amendment whenever the identity of the alleged intoxicated person is known. According to the Supreme Court in Salas:

"In determining whether plaintiffs in this case are barred from suing under the dramshop act, we must keep in mind the fundamental rule of statutory construction that departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” Salas v Clements, supra, at 109.

This Court has held the "name and retain” provision inapplicable in cases where, although the identity of the intoxicated person was known, its application would lead to an absurd and unjust result. In Dickerson v Heide, 69 Mich App 303; 244 NW2d 459 (1976), the plaintiffs sued a tavern owner to recover damages for the death of their •son. The complaint alleged that the defendants served Terry Knepple alcoholic beverages while he was intoxicated. The plaintiffs’ son was killed while riding in Knepple’s car that evening, after Knepple drove into a tree. Under the wrongful death act, the only persons capable of suing Knepple were the personal representatives of the deceased. Because the plaintiffs were not their son’s personal representatives, they could not bring a wrongful death action against Knepple. Therefore, plaintiffs could name Knepple, but could not retain him. The Court found it antithetical to the purposes of the dramshop act to "deny relief to plaintiffs who are clearly protected by the statute’s substantive provisions by requiring them to satisfy a procedural requirement which cannot possibly be satisfied”, 69 Mich App at 309. Noting also that the possibility of collusion was minimal, the Court permitted the plaintiffs’ suit to continue without the naming and retaining of the intoxicated person.

In Scholten v Rhoades, 67 Mich App 736, 746; 242 NW2d 509 (1976), the Court held that the name and retain requirement was not mandatory "where plaintiff has no recognized right of recovery against the minor or intoxicated person”. In that case, the intoxicated person was the plaintiff’s son who had been injured because he had consumed some beer sold to him by one of the defendants. The Court reasoned that since a parent is legally responsible for the medical bills of his minor child, a judgment by the parent against the child is meaningless. The Court stated:

"While it makes good sense to name and retain a party defendant where there is a cause of action against the defendant it makes no sense at all to do so where recovery is impossible because no cause of action exists. * * * [W]e find that in situations where no cause of action otherwise exists by a parent against a child who is not a third party tortfeasor, the mandatory application of the name and retain amendment is awkward, strained and absurd.” Id., 744.

The instant case is similar to Scholten in that naming and retaining the intoxicated person makes no sense because a cause of action does not exist against the intoxicated person. Plaintiff is the insurer of the intoxicated person. Pursuant to its policy with Buoncompagno, it paid $45,000 to Ford Motor Company for property damage, resulting in the release from further liability to Ford Motor Company of either plaintiff or Buoncompagno. Thus, even if plaintiff is viewed solely as subrogee of Ford Motor Company, rather than the intoxicated person’s insurer, it is lacking a cause of action. We thus conclude that the trial judge erred in granting summary judgment on this ground.

The next determination to be made is whether summary judgment was properly granted on the basis that Buoncompagno’s release from liability entitled defendant to this defense as well. Defendant predicates its argument upon a provision in MCL 436.22; MSA 18.993 which provides:

"Any action shall be instituted within 2 years after the happening of the event and all factual defenses open to the alleged intoxicated person or minor shall be open and available to the principal and surety.”

Defendant further relies upon Crawfis v Gardner, 65 Mich App 502; 237 NW2d 509 (1975), pointing out that this Court affirmed a summary judgment granted in the defendants’ favor after the defendants had maintained that a release as to the alleged intoxicated person also operated as a release as to them. An examination of Crawñs, however, reveals that the decision was actually based upon the "name and retain” provision of the dramshop act. Since the plaintiffs executed releases to the alleged intoxicated person, this person could not be named and retained. Since, as a result, the "name and retain” requirement could not be met, the Court held that the plaintiff did not have a valid cause of action, and thus the summary judgment was proper.

Plaintiff argues on appeal that defendant’s motion on this ground is barred. Under GCR 1963, 116.1(5), defendant may make a motion for accelerated judgment where release is claimed as a defense. Thus, accelerated judgment rather than summary judgment was appropriate with regard to this claim. Although an incorrectly named motion is considered as if correctly labeled absent prejudice to the other party, the judgment entered in the instant case is fatally defective.

Claims covered by GCR 1963, 116.1(5) are waived by failure to raise them either in the first responsive pleading or in a motion filed not later than the first responsive pleading. Where the special defense is not raised in a preliminary motion or the defendant’s answer, it may still be permitted where defendant’s original answer is amended to include it. Manufacturers Construction Co v Covenant Investment Co, 43 Mich App 123; 204 NW2d 54 (1972), Flynn v McLouth Steel Corp, 55 Mich App 669, 676; 223 NW2d 297 (1974). In the instant case, defendant had already filed her answer before moving for accelerated and/or summary judgment. She did so without amending her original answer. Therefore, neither summary nor accelerated judgment was proper with regard to this claim of defendant.

Reversed and remanded.


author: Cynar, J.

text:
    PEOPLE v ROBIDEAU
    Docket Nos. 78-520, 78-521.
    Submitted September 4, 1979, at Lansing.
    —Decided January 9, 1980.
    Herbert M. Robideau was convicted of armed robbery, first-degree criminal sexual conduct, and possession of a firearm during the commission of a felony, Genesee Circuit Court, Ollie B. Bivens, Jr., J. Defendant appeals, alleging several errors. Held:

    1. Defendant was not denied the effective assistance of counsel. His trial counsel subpoenaed defense witnesses whom he was made aware of, he called upon an expert witness in an attempt to establish the defendant’s insanity defense, it was established that certain hospital records which defendant sought to have introduced were totally unrelated to any psychiatric treatment, and the manner in which defendant’s counsel examined witnesses was a matter of trial strategy which is not a basis for a claim of ineffective assistance of counsel.
    2. The convictions of armed robbery and first-degree criminal sexual conduct, which both arose out of the same criminal episode, do not violate the prohibition against double jeopardy because proof of armed robbery was not legally required in order to convict for first-degree criminal sexual conduct and because the criminal sexual conduct statute expresses a legislative intent to authorize multiple convictions and cumulative punishments.
    3. The trial judge did not err in instructing the jury that in order to find defendant guilty of the criminal sexual conduct charge they would have to find that sexual penetration occurred under circumstances involving the commission of an armed robbery, where armed robbery was the only other felony specified in the information filed on the criminal sexual conduct charge.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law, § 315.

       67 Am Jur 2d, Robbery §§ 4, 80.

       65 Am Jur 2d, Rape § 3.
    What constitutes penetration in prosecution for rape or statutory rape. 76 ALR3d 163.

       21 Am Jur 2d, Criminal Law § 188.

       75 Am Jur 2d, Trial §§ 876, 877.

       67 Am Jur 2d, Robbery §§ 68, 69, 70.

       5 Am Jur 2d, Appeal and Error § 821.

       17 Am Jur 2d, Continuance § 35
    Withdrawal, discharge, or substitution of counsel in criminal case as ground for continuance. 73 ALR3d 725.

       21 Am Jur 2d, Criminal Law §§ 345, 346.

      4. The trial court did not err by refusing to instruct the jury on the definition of fellatio where the instructions as given adequately reflected the matter of whether or not penetration occurred and the legal definition of penetration as it related to this case.
    5. Failure to give jury instructions on attempted unarmed robbery and attempted larceny from a person was not error where no requests for such instructions were made.
    6. The jury was adequately apprised by the trial court of the defendant’s theory of the case.
    7. There was sufficient evidence of sexual penetration to support the jury’s verdict of guilty of first-degree criminal sexual conduct.
    8. The defendant’s substitute trial counsel was afforded sufficient time to familiarize himself with the case. There is no showing of prejudice in this regard.
    9. The anonymous tip which led to the defendant’s arrest was sufficiently detailed and corroborated prior to the arrest to make the arrest lawful.
    10. Defendant waived the indorsement and production of an alleged res gestae witness by failing to make a timely motion therefor.
    Affirmed.
    1. Criminal Law — Ineffective Assistance of Counsel — Trial Strategy.
    The decision of trial counsel to question or not to question certain witnesses is a matter of trial strategy and is not a basis for a claim of ineffective assistance of counsel.
    2. Robbery — Armed Robbery — Elements of Offense.
    A conviction of armed robbery requires proof of an assault, a taking, and an intent to permanently deprive the owner of his or her property, while the defendant was armed with a dangerous weapon or an article fashioned so as to lead the victim to reasonably believe it was a dangerous weapon.
    3. Rape — First Degree Criminal Sexual Conduct — Elements of Offense.
    A conviction of first-degree criminal sexual conduct requires proof of a sexual penetration and the existence of any of several specified circumstances, including the commission of any other felony at the time of the offense (MCL 750.520b[l][cj; MSA 28.788[2][l][c]).
    4. Robbery — First Degree Criminal Sexual Conduct — Double Jeopardy — Statutes.
    The criminal sexual conduct statute expresses a legislative intent to authorize multiple convictions and cumulative punishments; therefore, a defendant’s convictions of both armed robbery and first-degree criminal sexual conduct, where both arose out of the same criminal episode, do not violate the prohibition against double jeopardy (MCL 750.520b; MSA 28.788[2]).
    5. Criminal Law — Instructions to Jury — Lesser Included Offenses.
    A trial court is not obliged to give instructions to the jury on lesser included offenses, other than in a first-degree murder case, where such instructions are not requested prior to the jury’s deliberations.
    6. Criminal Law — Instructions to Jury — Defendant’s Theory of Case.
    A trial court adequately presented a defendant’s theory of the case, that he did not possess the requisite specific intent for a conviction of armed robbery because of intoxication, where the court instructed on the presumption of innocence, reasonable doubt, specific intent, and intoxication as a defense to specific intent offenses.
    7. Criminal Law — Evidence — Elements of©ffense — Appeal and Error.
    A defendant’s claim that the evidence presented on an element of an offense was insufficient to support his conviction is viewed in the light most favorable to the prosecution, and unless there is total want of any direct or circumstantial evidence to prove an essential element of the offense a jury verdict of guilty will not be overturned.
    8. Criminal Law — Substitution of Counsel — Continuance — Prejudice.
    A defendant’s allegation that his substitute Counsel was given an inadequate length of time in which to familiarize himself with the case does not require reversal of the defendant’s conviction where the defendant has not established that any prejudice resulted from the trial court’s decision as to the length of the continuance granted.
    9. Witnesses — Res Gestae Witnesses — Criminal Law — Indorsement and Production of Witness.
    Failure of a defendant to make a timely motion for the indorsement and production of a res gestae witness of whom he has knowledge waives any right the defendant may have had to such indorsement and production of the witness.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
    Herbert M. Robideau, in propria persona.

    Before: M. J. Kelly, P.J., and M. F. Cavanagh and Cynar, JJ.
   Cynar, J.

Following a jury trial, defendant was convicted of two counts of armed robbery, MCL 750.529; MSA 28.797, of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and of criminal sexual conduct in the first degree, MCL 750.520b(l)(c); MSA 28.788(2)(l)(e). Defendant was sentenced to 26-1/2 to 40 years on each armed robbery count, and to 20 to 35 years on the criminal sexual conduct count, these three sentences to be served concurrently, as well as to the mandatory two-year consecutive sentence for the felony-firearm violation. Defendant appeals as of right.

The evidence of guilt adduced at trial was overwhelming. The complainant testified that in the early morning hours of March 3, 1977, she and her boyfriend were asleep in front of the TV set in the living room of her home in the City of Flint. At about 12:30 a.m. she heard a knock on the front door. In response to the knock, she opened the door and a man with a shotgun forced his way in. While pointing a shotgun at her and her boyfriend, the first man into the house indicated that they would be killed if they did not do as they were commanded. Moments later, two other men entered. The complainant identified defendant as being the second man to come through her front door. She indicated that defendant was armed with a small pistol.

The robbers demanded money and drugs. "They robbed complainant’s companion of his wallet and while the first robber in the house held the two victims at gunpoint, the two other men proceeded to ransack the house for the next 10 to 15 minutes.

About 15 minutes after the hold-up began, the robbers forced the victims to proceed to the second floor of complainant’s home. The robbers directed them to remove their clothes and when this was done, the two were tied up and complainant’s friend was ordered into a closet on the second floor of the house. While the other robbers were elsewhere, defendant first forced complainant to perform fellatio on him and some minutes later attempted to have intercourse with her in a closet.

After threatening to kill the victims, the robbers left the house taking with them a large quantity of jewelry, two guns and a clock.

Complainant’s companion corroborated her testimony in every major respect.

Due to the alertness of a neighbor, Flint police were summoned when the robbers first entered complainant’s home. A number of police officers waited in the street and throughout the nearby area during the course of the robbery. When defendant and his cohorts exited from the home, they were apprehended immediately as they sought to flee in a car owned by defendant but driven by a second robber.

The police officers and the victims both testified at length concerning identification of the various articles of jewelry, the two guns, and the clock stolen in the robbery and taken from the robbers’ car immediately upon their arrest.

I. Effective Assistance of Counsel

Defendant initially contends that he was denied the effective assistance of counsel at trial, because of the failure of retained counsel to: (1) subpoena certain defense witnesses; (2) call any expert witnesses to establish defendant’s insanity defense; (3) produce certain hospital records; or (4) properly examine or cross-examine witnesses at trial. Defendant’s post-sentencing motion for a new trial based on a claim of ineffective assistance of counsel was denied. We also reject defendant’s contention.

With respect to the failure to subpoena certain witnesses, this allegation is not borne out by the record. Although counsel was not made aware of the existence of these witnesses by defendant until the third day of trial, he was successful in locating them. Indeed, an alleged alibi witness was served and did appear in court, but was not called to testify, following conversation with counsel.

A second "missing” witness, a Dr. Leech, was also located by counsel and found to be dying of cancer and unavailable. Dr. Leech’s wife had no knowledge of where his records were stored, or if they still existed. Counsel was further unable to discern whether Dr. Leech had even treated defendant for any psychological disorders which may have been germane to defendant’s insanity defense. A second psychiatrist testified to seeing defendant and questioning him with regard to earlier treatment. Defendant stated to him that he had in fact previously received psychiatric treatment, but that this had occurred in 1975, two years prior to the commission of the instant crimes. Thus, expert testimony was heard but did not support defendant’s insanity claim.

The keeper of the hospital records testified out of the jury’s presence that the records defendant sought to have produced were totally unrelated to any psychiatric treatment.

As to the questioning of witnesses, this is properly attributable to trial strategy, and therefore not a basis for a claim of ineffective assistance of counsel. People v Roberson, 90 Mich App 196, 204; 282 NW2d 280 (1979). In any event, the questioning by counsel appears to be reasonable strategy under the circumstances.

We therefore conclude that defendant received the effective assistance of counsel under both prongs of the test set out in People v Garcia, 398 Mich 250, 264-266; 247 NW2d 547 (1976).

II. Double Jeopardy

Next, we address defendant’s claim that his convictions for armed robbery, and for first-degree criminal sexual conduct (penetration during the commission of another felony, viz., armed robbery) violate the double jeopardy provisions of both the Federal and state constitutions.

We initially note that defendant’s argument that convictions for both armed robbery and felony-firearm are also violative of double jeopardy has been rejected in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374, 397-398; 280 NW2d 793 (1979).

We conclude that the contested convictions violate neither the Blockburger rule, nor the rule most recently reiterated in People v Martin and People v Stewart.

In applying the Blockburger test, we look to Wayne Prosecutor, supra, for guidance. In order to convict defendant of armed robbery, the prosecution was legally required to prove an assault, a taking, and an intent to permanently deprive the owner of his or her property, all while the defendant was armed with a dangerous weapon, or an article fashioned so as to lead the victim to reasonably believe it was a dangerous weapon. Wayne Prosecutor, supra, 397-398. In order to convict defendant of first-degree criminal sexual conduct under MCL 750.520b(l)(c), the prosecution was legally required to prove: first, that a sexual penetration occurred, and second, that it occurred under circumstances involving the commission of any other felony. Thus, as in Wayne Prosecutor, the prosecution was not legally required to prove armed robbery, as any proper felony would have sufficed for conviction on the criminal sexual conduct charge.

Nor is there any constitutional infirmity under the standard in People v Martin and People v Stewart. As explicated in Wayne Prosecutor, supra, 399-402, the evil sought to be prevented in those cases was multiple convictions and cumulative punishments based on only one occurrence when the statutes involved failed to evidence a clear legislative intent to authorize the same. Such is not the case here. We find a clear expression of a legislative intent to authorize multiple convictions and cumulative punishments in the language of MCL 750.520b, just as the Court in Wayne Prosecutor, supra, 402, found similar legislative intent expressed in the felony-firearm statute.

III. Alleged Instructional Errors

Defendant raises a number of issues related to the giving of, or failure to give, instructions in the instant case.

First, defendant argues that the trial court reversibly erred in instructing the jury that in order to find defendant guilty of criminal sexual conduct in the first degree (CSC I) they must find that a sexual penetration occurred under circumstances involving the commission of an armed robbery. This, according to defendant, placed the jury in a position that forced them to find evidence for a conviction of armed robbery in order to convict defendant of CSC I, and, as such, was erroneous, for any other felony would suffice.

This argument is wanting in merit. The information filed in this case specified only armed robbery as the felony underlying the CSC I count. Proof of armed robbery thereby became an element of the offense, to the exclusion of any other felony. In addition, a failure to so specify the underlying felony(ies) would deprive defendant of his right to notice of the charges against which he would be required to defend.

Next, defendant assigns as reversible error the refusal of the trial judge, upon request, to instruct on the definition of fellatio. The prosecution argues that the trial judge instructed the jury in accordance with the Michigan Criminal Jury Instructions, and that the instructions were complete and proper. We agree with the prosecution.

The trial court instructed the jury in detail on the elements of both first- and second-degree criminal sexual conduct, which instructions adequately reflected the fundamental difference between CSC I and CSC II — the fact of penetration vel non. The court also instructed verbatim from MCL 750.520a; MSA 28.788(1) on the legal definition of sexual penetration as relevant to this case. The term fellatio is one generally understood by laymen, and possesses no distinct legal definition. We find no error in the trial court’s refusal to define fellatio in the language requested by defendant. Cf., People v MacPherson, 323 Mich 438, 449; 35 NW2d 376 (1949).

Defendant further claims that reversible error occurred when the trial judge failed to instruct on attempted unarmed robbery and attempted larceny from a person, even though requested to do so. A review of the trial transcript fails to support defendant’s position. Neither of these instructions was requested by defense counsel. An instruction on unarméd robbery was requested and given, as well as one on larceny from a person.

The jury was instructed on attempted armed robbery, as per defendant’s request, through the trial court’s reading of an instruction on attempt as a lesser-included offense of armed robbery, taken verbatim from CJI 9:1:02. Also given was CJI 9:1:03, which apprised the jury that factual impossibility would be no defense to the charge of attempting to commit the substantive offense. We also note, while abstaining from further comment, that defendant in his pro per brief on appeal states, "The record clearly established that an armed robbery occurred and it was committed with shotguns and a pistol”.

We conclude that no requested instructions were omitted, and that the court’s instructions, read as a whole, were complete and accurate. Finally, in this case, the trial judge was not obliged to give the omitted instructions sua sponte. People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975), People v Combs, 69 Mich App 711, 717; 245 NW2d 338 (1976).

Defendant’s last alleged instructional error concerns the failure of the trial court to instruct sua sponte on defendant’s theory of the case. This Court is split on whether such a requirement is imposed upon the trial judge. In People v Gayton, 81 Mich App 390, 394; 265 NW2d 344 (1978), one panel of this Court held that a trial court must instruct on the defendant’s theory of the case, even in the absence of a request, and that a failure to do so is reversible error. Accord, People v Stanley Jones, 69 Mich App 459, 462; 245 NW2d 91 (1976).

Another panel of this Court adopted the diametrical position, and concluded that a trial court is not obligated to instruct on a defendant’s theory of the case when no request therefor is made nor any statement thereof submitted. People v Trammell, 70 Mich App 351, 353-354; 247 NW2d 311 (1976). Accord, People v Samuel Smith, 85 Mich App 404, 414; 271 NW2d 252 (1978), rev’d on other grounds 406 Mich 945; 277 NW2d 642 (1979). See also GCR 1963, 516.7.

We take note of this irreconcilable difference of opinion, but find it unnecessary to adopt either position at this time. On the facts of this case, we conclude that the court’s instructions on presumption of innocence, reasonable doubt, specific intent, and intoxication as a defense to specific intent offenses, adequately presented defendant’s theory of the case, i.e., that as a result of intoxication defendant did not possess the requisite specific intent required for conviction of armed robbery. Cf., People v Manuel Johnson, 58 Mich App 347, 355-356; 227 NW2d 337 (1975), People v McIntosh, 6 Mich App 62, 69-70; 148 NW2d 220 (1967).

IV. Other Issues

Defendant raises four additional issues for review.

Defendant first argues that there was insufficient evidence from which the jury could find that a sexual penetration had occurred. We disagree.

In examining such a claim the evidence is viewed in the light most favorable to the prosecution. Unless there is a total want of any direct or circumstantial evidence to prove an essential element of the charged offense, a jury verdict will not be overturned. People v McCracken, 88 Mich App 286, 294; 276 NW2d 609 (1979), and the cases cited therein. The testimony of the complainant in the instant case was sufficient evidence to establish a sexual penetration and support the jury’s verdict.

Defendant further assigns as reversible error the trial judge’s grant of his motion for substitution of counsel after the prosecution had rested its case and after the defense had presented the major portion of its case, without allowing substitute counsel sufficient time to prepare a proper defense.

We find the allegation of inadequate preparation subsumed in our discussion of defendant’s claim of ineffective assistance of counsel in part I, supra, and thus without merit. Moreover, defendant has failed to establish that any prejudice resulted from the trial judge’s decision to grant only an eight-day continuance, as required by People v Wilson, 397 Mich 76; 243 NW2d 257 (1976). The record reveals that substitute counsel had access to the lower court file and to previous counsel’s work product, and personally spoke with the prosecutor, former counsel, and defendant. He also received a copy of the entire transcript of proceedings, including trial and preliminary examination, and from these was able to prepare eight separate motions for the court’s consideration, each of which demonstrated more than satisfactory preparation and familiarity with the case. Counsel also recalled the complainant to the stand and engaged in probing cross-examination seeking to discredit her testimony. We find no abuse of discretion on the part of the trial judge with regard to the duration of the continuance.

Defendant’s contention that his arrest was unlawful as it was based on the tip of an anonymous informant received over the telephone by the police is unsubstantial. The tip itself was quite detailed and was sufficiently corroborated by independent police work prior to defendant’s arrest. Thus, resolution of this issue is controlled by People v Walker, 401 Mich 572, 579-584; 259 NW2d 1 (1977).

Finally, defendant argues that reversible error occurred as a result of the prosecution’s failure to secure the presence at trial of the physician who examined the complainant following the incident in question and who later treated her on more than one occasion. The record reveals that defense counsel failed to move for endorsement of this witness until the close of the prosecution’s case, even though counsel knew of the witness’s identity and his relationship with the complainant well prior to trial. The trial court denied defendant’s motion on the basis that it was not timely made, and that the witness was not a res gestae witness.

Assuming arguendo that the doctor was a res gestae witness, defendant waived any right he may have had to the endorsement and production of this witness by failing to make a timely motion therefor. People v Harrison, 75 Mich App 556, 558-559; 255 NW2d 682 (1977), People v Parsons, 59 Mich App 79, 86-87; 228 NW2d 852 (1975), People v Jones, 38 Mich App 512, 516; 196 NW2d 817 (1972).

We find no error necessitating reversal and therefore affirm.

Affirmed.

       MCL 750.529; MSA 28.797.

      MCL 750.520b(l)(c); MSA 28.788(2)(l)(c).

        Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).

         People v Martin, 398 Mich 303; 247 NW2d 303 (1976).

        People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).

       MCL 750.227b; MSA 28.424(2).