author: Cynar, J.

text:
    PEOPLE v EMANUEL
    Docket No. 78-1738.
    Submitted January 9, 1980, at Detroit.
    Decided June 16, 1980.
    Leave to appeal applied for.
    Lawrence Emanuel was convicted of first-degree murder and arson of a dwelling house following a jury trial in Wayne Circuit Court, Patrick J. Dugan, J. At that trial, two statements given by defendant to the City of Taylor police were admitted into evidence over the objection that the statements were the fruit of defendant’s unlawful arrest. It was established that defendant had discussed his involvement in these crimes with two Detroit police officers, one of those officers being defendant’s cousin, and had indicated that he was going to talk to the City of Taylor police, since the crimes took place in Taylor. One of the Detroit officers informed the Taylor police. Taylor police officers went to defendant’s home and asked him to accompany them to the Taylor police station for questioning. While defendant was not placed under arrest, the officers indicated that if defendant had not agreed to accompany them to the police station he would have been placed under arrest. At the police station, defendant made an exculpatory statement. On the following day, defendant gave a second statement after being informed that the story given by an accomplice was at variance with defendant’s prior statement.

      References for Points in Headnotes

       5 Am Jur 2d, Arrest § 2.

       29 Am Jur 2d, Evidence § 546.
    Suppression before indictment or trial of confession unlawfully obtained. 1 ALR2d 1012.
    Admissibility of pretrial confession in criminal case — Supreme Court cases. 1 L Ed 2d 1735; 4 L Ed 2d 1833; 12 L Ed 2d 1340; 16 L Ed 2d 1294; 22 L Ed 2d 872.

       29 Am Jur 2d, Evidence §§ 543, 544.

       29 Am Jur 2d, Evidence §§ 367, 372.
    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449.

       5 Am Jur 2d, Appeal and Error § 713. 29 Am Jur 2d, Evidence § 249 et seq.

       5 Am Jur 2d, Appeal and Error § 803. 29 Am Jur 2d, Evidence § 249 et seq. 81 Am Jur 2d, Witnesses § 238.
    Privilege, in judicial or quasi judicial proceedings, arising from relationship between psychiatrist or psychologist and patient. 44 ALR3d 24.

      During the trial, defendant sought to suppress certain identification testimony on the basis that the prosecutor had informed defense counsel that the witness would have no identification testimony and that the in-court identification was tainted by a pretrial observation of the defendant. The trial court determined that the prosecutor in good faith believed that the witness had no identification testimony and permitted the in-court identification.
    The accomplice testified for the prosecution. Defense counsel sought to call that person’s psychiatrist for the purpose of impeaching her testimony. The prosecution objected on the basis of the psychiatrist-patient privilege. Defense counsel made no offer of proof to show that the testimony of the psychiatrist was demonstrably relevant to any matter in this case. The trial court refused to permit the psychiatrist to be called as a witness.
    Defendant appeals. Held:

    1. The request by the Taylor police that defendant accompany them to the police station, that request being under circumstances in which noncompliance with the request would have resulted in defendant’s formal arrest, constituted a seizure of defendant’s person and was therefore an arrest within the meaning of the Fourth Amendment of the United States Constitution. The statement given by defendant during the interrogation following that arrest thus would be admissible at trial only if it was shown that the statement was an act of free will, purged of the primary taint of the unlawful arrest.
    2. The statement of defendant following the illegal arrest was independent of the taint of that arrest since the quintessential variable which motivated the defendant to make that confession was not the illegal arrest but rather was defendant’s voluntary discussion of the matter with the Detroit police officers and defendant’s previously expressed intent to turn himself in to the police. The first statement by defendant, therefore, was properly admitted at trial.
    3. Even if comments made by the police officer prior to the second statement by defendant constituted threats or promises of leniency, his statement was properly admitted into evidence, since the primary motivations for the second statement were defendant’s prior admissible statement and the statement given by the accomplice. The second statement cannot be said to have been coerced merely by reason of the fact that the police confronted defendant with the evidence against him.
    4. The prosecutor’s good faith statement to defense counsel that a witness did not have identification testimony did not mandate suppression of that witness’s in-court identification testimony when it was ultimately determined that the witness did, in fact, have identification testimony. The failure of defense counsel to seek a pretrial lineup or to make any preliminary showing, other than mere conjecture, that any identification evidence flowing from a lineup would necessarily have been favorable to defendant militated against suppression of the in-court identification.
    5. The prosecution’s cross-examination of the defendant on collateral matters having minimal relevancy does not mandate reversal, since defense counsel pursued similar lines of inquiry. The Court of Appeals cannot say that manifest injustice occurred or that the trial court abused its discretion in permitting such inquiry.
    6. The Court of Appeals will decline to address the question of the refusal of a trial judge to permit impeachment of a witness by examination of that witness’s psychiatrist where the prosecution objects to such testimony on the basis of the psychiatrist-patient privilege and defense counsel fails to make an offer of proof showing that such testimony is demonstrably relevant. The defendant’s right to confrontation is not abridged by the refusal to permit such testimony, since the exclusion of such evidence was not decisive to the outcome and was harmless error, if error at all.
    Affirmed.
    M. F. Cavanagh, J., concurred in the result only.
    1. Arrest — Request by Police Officer — Circumstances of Request — Seizure of Person — Constitutional Law.
    A request by police officers that a person accompany them to the police station under circumstances where, if that person did not comply with the request, he would be formally placed under arrest constitutes a seizure of that person and an arrest for purposes of the Fourth Amendment of the United States Constitution (US Const, Am IV).
    2. Criminal Law — Evidence — Confession — Illegal Arrest — Admissibility of Evidence — Purging of Taint.
    A confession given by a defendant during interrogation following an arrest that is illegal because the arrest was made without probable cause is not admissible in evidence at trial unless the confession is sufficiently an act of free will so as to purge the primary taint of the unlawful arrest.
    3. Criminal Law — Evidence — Confession — Illegal Arrest — Motivation for Confession — Admissibility of Evidence.
    A confession given by a defendant folio-wing an illegal arrest is independent of the taint of that illegal arrest, and therefore admissible in evidence at trial, where the quintessential variable which motivated the defendant to make that confession was the defendant’s prior voluntary discussion of the matter with police officers and his previously expressed intent to turn himself in to the police.
    4. Criminal Law — Evidence — Confession — Admissibility of Evidence — Motivation for Confession — Coercion.
    A confession by a criminal defendant is not rendered inadmissible in evidence at trial, even if made after police threats or promises of leniency, where it is determined that the confession was given because of a prior admissible statement by the defendant in which he tended to implicate himself in the crime and because of a statement given by an accomplice in the crime; a confession is not coerced merely because the police confront a defendant with the evidence against him.
    5. Criminal Law — Evidence — Identification Testimony — Good Faith — Appeal — Clearly Erroneous.
    A trial court’s refusal to suppress identification testimony of a witness after the prosecutor informed defense counsel that no identification testimony would be heard from that witness does not mandate reversal where the Court of Appeals cannot say that the trial court’s determination that the prosecutor’s assurance was made in good faith was clearly erroneous.
    6. Criminal Law — Evidence — Identification Testimony — Suppression — Lineups.
    Suppression of in-court identification testimony is not mandated where a lineup was not requested and there was no preliminary showing, other than conjecture, that any identification evidence flowing from a lineup would necessarily have been favorable to the defense.
    7. Criminal Law — Examination of Witnesses — Relevance — Appeal — Manifest Injustice — Abuse of Discretion.
    Prosecutorial examination of a defendant as to collateral matters of minimal relevancy does not mandate reversal where defense counsel pursued similar lines of inquiry and the Court of Appeals cannot say either that manifest injustice resulted or that the trial court abused its discretion in permitting such inquiry.
    8. Criminal Law — Evidence — Witnesses — Psychiatrist-Patient Privilege — Relevance — Appeal — Offer of Proof — Confrontation — Harmless Error.
    Reversible error is not established relative to the refusal by a trial judge to permit defense counsel in a criminal trial to call the psychiatrist of a prosecution witness for the purpose of impeachment of that witness where there was no offer of proof that the testimony excluded because of the assertion of the psychiatrist-patient privilege was demonstrably relevant; any claim that the exclusion of such testimony abridged the defendant’s right to confrontation fails because the exclusion of such evidence, even if erroneous, was not decisive in the case and was harmless error.

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

      Daniel J. Wright and Mardi Crawford, Assistant State Appellate Defenders, for defendant on appeal.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   Cynar, J.

Following a lengthy jury trial, defendant was found guilty of first-degree premeditated murder, MCL 750.316; MSA 28.548, and of arson of a dwelling house, MCL 750.72; MSA 28.267. He received the mandatory life sentence on the former conviction and a concurrent 13 to 20 year term of imprisonment on the latter. Defendant appeals as of right.

I

The victim, one Lynn Bradfield, died of strangulation by ligature. At trial, the testimony established that defendant had met Taurus Duncan, an accomplice, some five years prior to the murder. Both knew the decedent. Duncan and the defendant became friends. At the time of the homicide, both were employed at the Chrysler Mound Road Engine Plant and often drove to and from work together. Duncan professed to being in love with defendant, who was married.

Approximately three years prior to the killing, Duncan had met the deceased. A year later, in 1975, Duncan went to California and remained domiciled there for a year. During that same period, the victim had given birth to a daughter, Renee, referred to as "Tiffany” by Ms. Duncan. When Duncan returned to Detroit, she told defendant that Renee was her child, that she had given birth to her while in California, and that he (Emanuel) was the father. She claimed that she had given "Tiffany” to the victim to care for her and that the victim and her husband had adopted Renee. Defendant from that point forward saw the child frequently, lavished gifts upon her, took her and Duncan on various outings, and introduced Renee to his family as his own child.

The day prior to the murder, June 16, 1977, Duncan and defendant twice spoke with regard to killing Lynn Bradfield and taking the child, although they both testified that it began as a joke.

Finally, that same evening, defendant and Duncan drove to the victim’s apartment in Taylor, Michigan, using a car owned by defendant’s father to avoid being recognized, as defendant’s car had been seen in the vicinity many times previously. On the way, they stopped to fill a gasoline can, which was used to douse the apartment with gasoline in order to set a fire that would destroy any evidence. Upon arriving, Duncan entered the apartment alone, leaving the gas can on the front porch.

It is at approximately this point where the stories of defendant and Ms. Duncan diverge. Defendant maintained in two statements given the police, as well as in his testimony at trial, that he never left his father’s car that evening and had nothing to do with the strangulation of Lynn Bradfield or with the arson. He claimed that he fell asleep in the car and did not awaken until Duncan returned to the car with the gas can and with "Tiffany”, at which time she told defendant "I killed my aunt”. Defendant contended that it was Duncan alone who strangled the victim with a dog leash, spirited the baby away, and set fire to the apartment.

According to defendant’s second in-custody statement, Duncan carried out a preconceived plan to first strangle the victim with the dog leash while combing her hair, then take the baby, and finally set fire to the apartment. In this statement defendant maintained that, even after driving Duncan to the apartment, he did not believe she would go through with the plan. On the witness stand at trial, and in his earlier statement to the police, defendant denied any prior knowledge of the plan.

The testimony given by Ms. Duncan, the principal prosecution witness, which was consonant with her previous custodial statement, recounted a story quite different from that told by defendant. Duncan’s testimony generally accorded with defendant’s until the point immediately after she put the dog leash around the decedent’s neck. At that juncture, while she held the leash tightly, she signalled defendant to enter the apartment by flicking the porch light on and off. Defendant next entered the apartment, argued with Duncan, and then told her that they had to go through with it.

According to Duncan, defendant grabbed the victim by the hair, while simultaneously grabbing the leash, and then dragged her upstairs. Duncan took "Tiffany” and then left the apartment, leaving defendant alone with the decedent, whom Duncan said was gagging but still alive.

Duncan waited in the car for defendant. They had left another child in the apartment, as per the plan to substitute another infant for "Tiffany”. As they drove away, Ms. Duncan saw flames coming from the apartment.

Defendant raises a number of issues on appeal which merit discussion. In particular, he argues against the admission into evidence at trial of the two statements he made to the police. The first was made July 25, 1977, before any statement was given the police by Taurus Duncan; the second was made the following day, July 26. The two custodial statements of defendant, inconsistent with each other as well as with defendant’s testimony at trial, supplied the major ammunition for the impeachment of defendant by the prosecution and served to discredit, or at least cast doubt upon, substantial portions of defendant’s testimony in his own behalf on direct examination.

II

Defendant first contends that the trial court reversibly erred in admitting his statement of July 25, as it was the product of an illegal arrest, one made in the absence of probable cause. Since the arrest, if one can be said to have occurred, was illegal, the statement should have been excluded as fruit of the poisonous tree.

We must initially determine whether an arrest in the Fourth Amendment sense took place on July 25. The trial court ruled that one had not.

On July 25, 1977, a Lieutenant Stewart of the Detroit Police called the Taylor Police Department and gave them defendant’s name and address, as well as informing them of a conversation he had had with defendant and defendant’s cousin, a Detroit policeman, a few days earlier. The substance of that conversation led Stewart to believe that defendant was possibly involved in the Bradfield murder. Stewart had told defendant to go to the police, and when he called the Taylor police and learned that defendant had not contacted them, Stewart gave them the above-described information.

Acting on this lead, Taylor police went to defendant’s residence, arriving before defendant. When defendant drove up, he was approached by two officers who identified themselves and informed defendant that it was their understanding he had information relating to a killing. Defendant was told that the officers wanted to talk to him at the police station.

Defendant responded that he had intended to go to the Taylor Police Department and speak with someone, but that he had not yet gotten around to it. Defendant agreed to go to the police station with the officers. Defendant was given the option of riding with the police or of following in his own car, according to the officers. Defendant denied being given a choice.

Before being placed in the police car, defendant was patted down, but he was not handcuffed. Defendant claimed that he was told he was under arrest, but the officers denied telling defendant either that he was or was not under arrest. One of the officers present at that time testified that, while he did not feel that defendant had been placed under arrest, defendant would not have been allowed to leave if he asked to do so. The officer also said that if defendant had attempted to leave he would have been placed under arrest.

Arriving at the station, defendant was neither fingerprinted nor booked, but instead was taken to the detective bureau. Apprised of his Miranda rights, defendant proceeded to give his first statement, which was tape recorded. He was then released.

The Michigan Supreme Court has recently reexamined the constitutional law relating to arrests in People v Summers, 407 Mich 432; 286 NW2d 226 (1979). The Court quoted from Terry v Ohio, which quotation in relevant part declared:

" 'Obviously, not all personal intercourse between policemen and citizens involves "seizures” of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure” has occurred.’ ” Summers, supra, 444.

Thus, the sine qua non for an arrest or "seizure” of the person of a defendant is a significant restraint of freedom, an intrusion more severe than a Terry-type "stop and frisk”. Summers, supra, 444-446. As noted by the Court in Summers, the Terry rationale is extremely limited in scope and will justify only brief on-the-street stops, with attendant questioning regarding suspicious activity, and limited weapons-frisks when necessary to insure safety. Id., 447. It is obvious, therefore, that Terry cannot be used to justify the actions of the police in the case at bar.

Plaintiff however argues that defendant voluntarily accompanied the police to the station following a request to do so, and, as such, no arrest took place. Defendant argues to the contrary, claiming that, because the police intended to exercise control over the defendant and because the circumstances indicated that defendant reasonably believed that he was under police control, there was an arrest, a "seizure” of his person for Fourth Amendment purposes.

An examination of this constitutional claim requires us to review the facts of this case in light of the holdings in Brown v Illinois, 422 US 590; 95 S Ct 2254; 45 L Ed 2d 416 (1975), and Dunaway v New York, 442 US 200; 99 S Ct 2248; 60 L Ed 2d 824 (1979).

As Brown points out, mere recitation of the Miranda warnings will not serve as a panacea, validating an otherwise unconstitutional seizure of the person of a defendant on less than full probable cause and rendering admissible in evidence any fruits derived therefrom, including an otherwise voluntary confession. Brown, supra, 601-603. The warnings are instead but one of several factors to be looked at in determining whether a confession is obtained by exploitation of an illegal arrest and become relevant at the point where the Fourth and Fifth Amendment protections interface.

We must yet confront the antecedent question of whether an arrest took place. In deciding this question, we look to Dunaway to provide the analytical framework.

In Dunaway, the police located the defendant, who was suspected of a crime, at a neighbor’s home and drove him to the police station for questioning. Although defendant was not told he was under arrest, he would have been physically restrained if he had attempted to leave.

The Supreme Court found that the police actions were violative of the Fourth Amendment, as there was no probable cause to arrest the defendant. Relying on the language found in Terry, quoted hereinbefore, the Court concluded that defendant had been "seized” within the meaning of the Fourth Amendment under that standard. The Court upheld the finding of the trial court that defendant did not voluntarily accompany the police, stating in footnote 6 of Justice Brennan’s majority opinion:

" 'It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized” that person,’ Terry v Ohio, 392 US 1, 16 (1968). Respondent contends that petitioner accompanied the police voluntarily and therefore was not 'seized.’ Brief for Respondent 7-9. The County Court found otherwise, App 117, quoted supra, at p 205; and the Appellate Division treated the case as an involuntary detention justified by reasonable suspicion. See [People v Dunaway,] 61 App Div 2d [299], at 302-303, 402 NYS2d [490], at 492 [(1978)]. See also ALI, Model Code of Pre-Arraignment Procedure § 2.01(3) and commentary, p 91 (Tent Draft No. 1, 1966) (request to come to police station 'may easily carry an implication of obligation, while the appearance itself, unless clearly stated to be voluntary, may be an awesome experience for the ordinary citizen’).” Dunaway, supra, 207.

The Court went on to hold that an involuntary detention such as had occurred in that case could be justified only upon a showing of full probable cause to arrest. In elaborating thereon, the Dunaway Court opined:

"[T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was 'free to go’; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an 'arrest’ under state law. The mere facts that petitioner was not told he was under arrest, was not 'booked,’ and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v Murphy, 412 US 291; [93 S Ct 2000; 36 L Ed 2d 900] (1973), obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny.” Dunaway, supra, 212.

The circumstances present in the instant case cannot be distinguished from those which controlled in Dunaway. Of crucial import are the facts that defendant was never expressly told that his appearance at the station was voluntary, that he was never informed that he was "free to go”, and that he would have been restrained if he refused to go to the station or had tried to escape the officers’ custody. Moreover, the fact that defendant was given the option of driving his own car to the station carries de minimis weight insofar as it is relevant to the question of whether he accompanied the officers voluntarily and whether the fact that he had a choice in the matter had been communicated to him. When defendant returned home, he was met by two policemen who were total strangers to him and who expressed a desire that defendant accompany them.

We conclude that this situation was pregnant with the "implication of obligation”, and, as such, we cannot say that defendant voluntarily accompanied the police. Accordingly, we hold that the actions of the police in this case constituted a "seizure” of defendant’s person under the Fourth Amendment, and that such arrest, conceded to have been made in the absence of probable cause, was illegal.

However, this alone does not per se require the suppression of the statement made by defendant to the police on July 25. Under Fourth Amendment rubric, the confession must be excluded from evidence only if it was obtained by exploitation of the illegal arrest, i.e., if it was the product of the illegal arrest. Brown v Illinois, supra, 603, Dunaway v New York, supra, 216-218. The focus is on the causal nexus between the illegality and the confession, or, to put it another way, the question is whether the connection was sufficiently attenuated to permit the use at trial of the evidence obtained during the period of illegal detention: whether the statement was purged of its primary taint. Brown, supra, 602-604, Dunaway, supra, 217-218, and the cases cited therein.

Brown sets out a number of factors which are relevant in determining the admissibility of a confession obtained while a defendant is illegally detained:

"The question whether a confession is the product of a free will under Wong Sun [v United States, 371 US 471; 83 S Ct 407; 9 L Ed 2d 441 (1963)] must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution.” (Footnotes and citations omitted.) Brown, supra, 603-604.

While not expressly enumerated as a factor worthy of consideration, we find that any antecedent circumstances, i.e., events transpiring prior to the "arrest”, may well be relevant to the question of whether the statement should be excluded. We do not perceive an intention by the Court to make the factors listed in Brown exclusive and/or exhaustive.

The voluntariness of the confession in a Fifth Amendment sense is not directly challenged. However, as Brown points out, the Fourth Amendment question is whether the statement is "sufficiently” an act of free will so as to purge the primary taint of the unlawful arrest. Brown, supra, 599. Phrased another way, we must determine if the confession was obtained by means sufficiently distinguishable to be purged of the primary taint. That is why the giving of the Miranda warnings, although a factor operating in favor of admissibility under Brown, is not alone dispositive of the causal nexus question.

Militating against admissibility was the temporal proximity between the arrest and the confession as well as the fact that there was no intervening event of significance whatsoever. So too, as in Brown, the arrest of defendant without probable cause therefor had a "quality of purposefulness” about it, although it was much less of a "fishing expedition” for evidence than the police actions were in that case, and surely less flagrant misconduct. Dunaway adds little to this analysis, as the Court therein characterized that case as "virtually a replica of the situation in Brown”. Dunaway, supra, 218.

What we find to be the factor which distinguishes the case at bar from Brown and Dunaway is the conversation involving defendant that took place prior to his arrest and confession, which, in our opinion, operated to sufficiently attenuate any causal connection between the arrest and the giving of the inculpatory statement by defendant so as to justify the admission of the confession in evidence at trial. The necessary nexus was not present because, as we see it, the quintessential variable which compelled or motivated defendant to make a confession was his earlier discussion with his cousin and Lieutenant Stewart, at which time he made a statement which contained the essence of his later July 25 confession, plainly was made of defendant’s own volition, without the inherent coercion of a custodial environment or any other compunction, and was told to a police officer defendant had never previously met. Also supportive of this conclusion is defendant’s statement to the Taylor police at the time he was first approached by them, to the effect that he had intended to come speak with them but had not yet done so. More importantly, defendant, immediately following his conversation with Lieutenant Stewart, had expressed an intention to turn himself in to the Taylor police while accompanied by counsel.

We find these circumstances to be sufficient to satisfy the prosecution’s burden of showing that the custodial statement given by defendant to the Taylor police on July 25 was sufficiently an act of free will to justify admission, i.e., that the confession was not obtained by exploitation of the illegal arrest under the standard announced in Brown and explicated in Dunaway.

Ill

Defendant next assigns as reversible error the admission into evidence of his custodial statement of July 26, 1977, a claim inextricably intertwined in large part with his contentions regarding the statement of July 25. This statement was given to police after Taurus Duncan had made a confession to the police, which confession was substantially at odds with defendant’s statement of July 25 and which indicated a materially greater degree of culpability and participation in the planning and actual killing of Lynn Bradfield than defendant had previously admitted.

Defendant specifically argues that: (1) this statement was the product of an illegal arrest; and (2) it was coerced by the implicitly threatening comments of the interrogating officer.

We reject the former contention, as it is predicated upon the holding of Brown v Illinois, supra, that the second statement of the defendant therein was inadmissible because it was clearly the product of that defendant’s first inadmissible confession. Here, we have already determined that defendant’s first statement was admissible, inasmuch as it was not the product of an illegal arrest. Therefore, even if the second statement flowed inexorably from the first, it would not be the direct or indirect product of the primary taint or illegality, defendant’s arrest, nor would it be infirm as being a direct result of the first confession, as that confession was clearly valid. Wong Sun v United States, 371 US 471, 484-485, 488, 491; 83 S Ct 407; 9 L Ed 2d 441 (1963).

We are likewise unpersuaded by defendant’s argument that his second statement was coerced by the implicitly threatening comments of the interrogating officer to the effect that defendant could be charged with first-degree murder. As noted by the trial judge, some of the language used by the police was objectionable and bordered on being threats. However, we believe that defendant was led to make this second statement for reasons other than these "threats” or any other language of the interrogating officer which could be construed to be promises of leniency.

This Court will not reverse a trial court’s finding that a confession was voluntary unless it is left with a firm conviction that a mistake was made. People v Smith, 80 Mich App 106, 111; 263 NW2d 306 (1977), lv den 406 Mich 920; 275 NW2d 259 (1979). Reviewing the totality of the circumstances, we are not left with such a conviction. The factors which we find persuasive are: (1) that the previous day defendant gave a statement which tended to implicate him in the murder; (2) at that time, defendant agreed to return voluntarily to the station for further questioning; and (3) upon his arrival, he was informed that Taurus Duncan had given a statement differing from his earlier statement, from which the police knew to a greater degree of certainty that defendant was involved. We further note that a confession will not be found to be coerced merely because the police confront the defendant with the evidence against him, as was the case here. People v Ricky Smith, 85 Mich App 32, 47-48; 270 NW2d 697 (1978). We conclude that the above factors impelled defendant to make the second statement, more so than any language used by the interrogating officer, and uphold its admission into evidence at trial.

IV

We find no reversible error in the trial court’s refusal to suppress the identification testimony of a witness who claimed to have seen defendant walking near the scene of the homicide around the time it occurred. We cannot say that the court below was clearly in error in concluding that the prosecution acted in good faith in telling defense counsel that no identification testimony would be heard from that witness and that, therefore, suppression of such testimony was unnecessary. People v Ulrich, 83 Mich App 19, 21; 268 NW2d 269 (1978), cf., People v Amison, 70 Mich App 70, 76-82; 245 NW2d 405 (1976).

Our review of the record indicates that the witness inadvertently viewed defendant through a courtroom door window while jury voir dire was being conducted and recognized him. The witness had mistakenly shown up at the courthouse believing he was to testify that day. We do not believe that the witness’s identification testimony at trial was solely, if at all, the product of this chance viewing. Moreover, the record is clear that the police felt that the man the witness saw the night of the murder was not defendant because of the discrepancy between the witness’s description of the clothes that man was wearing and the description of the clothes worn hy defendant that night given by defendant himself and by Taurus Duncan.

Defense counsel could have requested that a lineup be held for that witness, notwithstanding the representations of the prosecution. Counsel also could have attempted to contact the witness for purposes of conducting his own investigation and, thus, must share the responsibility for the loss of any meaningful lineup evidence. Moreover, it is clear that a defendant is not entitled to a lineup as a matter of right, People v Mann, 89 Mich App 511, 515; 280 NW2d 577 (1979), and that the granting of a pretrial lineup is a matter addressed to judicial discretion. People v Farley, 75 Mich App 236, 239; 254 NW2d 853 (1977). Therefore, even if defendant had been informed that the witness would identify defendant at trial, there was no assurance that a request to hold a lineup would have been granted, although we would assume such request would have been granted if made. In sum, although the prosecution’s representations may have dissuaded defense counsel from seeking a lineup, they did not foreclose addressing such request to the trial judge. Counsel’s lack of due diligence in a situation where multifarious methods of discovering favorable evidence were at his disposal militates against suppression of the identification testimony. In addition, defendant has made no preliminary showing, other than conjecture, that any identification evidence flowing from a lineup would necessarily have been favorable to his defense, even under the liberalized standard found in People v Amison, supra, 77-78.

Finally, the identification at trial was not subject to exclusion on the ground that the pretrial identification procedure was impermissibly suggestive, as the witness’s initial perception of defendant on the night of the homicide would provide an independent basis for the in-court identification under People v Kachar, 400 Mich 78, 91-97; 252 NW2d 807 (1977), notwithstanding the prosecution’s doubts. For all the above reasons, we conclude that suppression of the identification testimony was not required.

V

Defendant’s claim that he was denied a fair trial as a result of the manner in which a jury view of the area near where the victim was killed was held, at defense counsel’s request, is similarly wanting in merit. People v Connor, 295 Mich 1, 6; 294 NW 74 (1940).

VI

Defendant next urges us to find reversible error in the cross-examination of defendant by the prosecutor, wherein the prosecutor asked defendant if defendant, his wife, and Taurus Duncan had all slept together. Although no objection was made at trial, defendant argues that the prejudice which inheres from such questioning resulted in manifest injustice requiring reversal even in the absence of objection. Initially, we note that earlier in the trial defense counsel in cross-examining Taurus Duncan inquired of her whether she had ever said that, if she could not have defendant, no one would. The witness acknowledged making the statement in the presence of defendant’s wife. On redirect, the prosecution established that defendant’s wife knew that Ms. Duncan and defendant were lovers.

Defendant denied on direct examination that his wife knew of his relationship with Duncan. The disputed cross-examination ensued shortly thereafter.

Clearly, the relationship between Ms. Duncan and defendant was relevant to the case because it was Duncan who allegedly influenced defendant to commit the offense. During the course of the trial, counsel for both sides were given wide latitude in exploring the nature of that relationship. Defense counsel first raised the question of Taurus Duncan’s relationship with defendant’s wife. Once defense counsel had opened the door to this line of inquiry, the prosecution was entitled to question defendant regarding his wife’s knowledge of the relationship.

Although the question put forward by the prosecutor had little, if any, relevance to the issue of defendant’s wife’s knowledge of defendant’s relationship with Ms. Duncan, we do not perceive it to have resulted in manifest injustice which denied defendant a fair trial, especially given the fact that the defense pursued similar collateral lines of inquiry. Nor do we charge the trial court with an abuse of discretion in allowing the same. People v Johnson, 393 Mich 488, 498-499; 227 NW2d 523 (1975), People v Dye, 356 Mich 271, 277; 96 NW2d 788 (1959), People v Duke, 50 Mich App 714, 717; 213 NW2d 769 (1973), lv den 393 Mich 753 (1974), People v Kincade, 61 Mich App 498, 506; 233 NW2d 54 (1975). Therefore, we decline to reverse on this ground.

VII

Defendant raises a final issue meriting discussion. He claims that he was denied a fair trial because Taurus Duncan was allowed to assert her patient-psychiatrist privilege, thereby preventing the psychiatrists whom she had visited following the murder from testifying. Defendant argues that, when an accomplice testifies on behalf of the state and implicates a third person, he or she waives any and all privileges. Also, absent access to statements made by Ms. Duncan to her psychiatrists, defendant was not able to effectively impeach her testimony, which impeachment was crucial to the defense, and was thereby denied his right of confrontation.

Plaintiff contrarily contends that the privilege in issue here can be waived only when the witness testifies as to matters about which the psychiatrist has personal knowledge, not when the testimony of the psychiatrist would serve merely to impeach the patient-witness’s credibility. Moreover, as no offer of proof was made as to the nature of the testimony which would be offered if the privilege were found to be waived, such defect precludes reversal on this basis.

On cross-examination Ms. Duncan testified that she had seen a psychiatrist since the killing. However, she denied that the reason therefor was because she had dreams of Lynn Bradfield burning.

When defense counsel attempted to call a psychiatrist who had seen Duncan, the prosecution objected, arguing that any testimony relative to such visits was barred by the psychiatrist-patient privilege.

A case factually quite similar to the instant case is People v Bortnik, 28 Mich App 198; 184 NW2d 275 (1970). There, an alleged accomplice testified against the defendant and then denied any knowledge of a "deal” with the prosecution made in exchange for his testimony. When defense counsel attempted to call the accomplice’s attorney to question him regarding the "deal” for the purpose of impeaching the accomplice-witness’s prior testimony, the trial court ruled that the communications between the witness and his attorney were privileged.

This Court disagreed, ruling that "[w]hen an accomplice testifies on behalf of the state and implicates a third person he waives any and all privileges. He cannot testify to those facts supporting his story and then claim privilege to defeat cross-examination.” Bortnik, supra, 200. The Court went on to reverse defendant’s conviction and remand for a new trial at which the privilege was to be inapplicable. We note that Bortnik has neither been followed nor rejected in any subsequent decision of this Court.

However, a more recent case, People v Davis, 91 Mich App 434; 283 NW2d 768 (1979), lv den 407 Mich 868 (1979), held that, at least in the discovery context, a generalized claim of privilege must yield only to a demonstrated specific need for evidence in a pending case, i.e., that the evidence sought must be "demonstrably relevant”. Id., 442. In that case, defendant sought to discover records of complainant’s treatment for alcoholism, contending that the records bore directly on the defendant’s defense of consent. This Court reversed the lower court’s order allowing discovery.

Assuming the narrower Davis standard is now the correct one to apply to a factual situation such as in Bortnik and the case sub judice, we cannot say that that standard was satisfied here. The evidence sought might possibly have been proven to be "demonstrably relevant”, but in the absence of any offer of proof affirmatively indicating that it was, we decline to speculate to that end. In addition, the failure to make an offer of proof with regard to excluded testimony normally precludes appellate review. Illenden v Illenden, 46 Mich App 710; 208 NW2d 565 (1973), lv den 390 Mich 783 (1973), MRE 103(a)(2).

Were we to review this issue insofar as it relates to defendant’s Sixth Amendment claim of a denial of his right of confrontation, we would nonetheless find no reversible error. We are unable to say that, assuming the evidence was erroneously excluded, such error was decisive to the outcome of the case. See People v Merchant, 86 Mich App 355, 358; 272 NW2d 656 (1978). Alternatively, we find any error caused by the exclusion to be harmless beyond a reasonable doubt. People v Christensen, 64 Mich App 23, 32-34; 235 NW2d 50 (1975), lv den 397 Mich 839 (1976).

VIII

We conclude that none of the claimed errors necessitates reversal and, therefore, affirm defendant’s convictions and sentences.

Affirmed.

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

       Defendant testified that Taurus Duncan told him that the gasoline was for a lawn mower.

       Defendant, at least at trial and in his first custodial statement, denied aiding Duncan in formulating the plan to murder Lynn Bradfield or of having any knowledge before the fact regarding the same, although he did admit at all times to a general knowledge of Duncan’s threats to kill the victim and take "her” baby.

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

         392 US 1, 19, fn 16; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

       The substance of the officer’s statement to defendant was as follows:
      "Okay, Lawrence, as we explained to you yesterday, we felt sure you had information regarding this case that would be important to the case and after we talked to you yesterday, and after we talked to Taurus, now that’s been confirmed. And we know there are certain things that occurred that night that you are aware of that you participated in. Now, you have already cleared up a certain amount of things and the other problem that arises is that after talking with Taurus, she tells us a number of things that differ from what you told us.
      "Now, here’s the position that it puts you in. You agreed to take a polygraph and I assume that you will take one. Now you realize that she took a polygraph and failed the polygraph and that’s one thing that put us both — that put us on to both of you. And if you take a polygraph and fail it, you are sure to be placed under arrest and charged with first degree murder.
      "I have had some conversation again this morning with the lieutenant from the homicide squad. He has talked with your cousin, evidently and the thing that we’re most concerned about now is clearing up the total part that you have in the situation.
      "Now, Taurus has made certain accusations and some of the things you told us differ greatly from what she told us. We want to make sure you weren’t mistaken when you told us certain things yesterday.
      "The other thing I want to impress on you is that she is going to come off pretty good because she’s cleared up. She has been very straightforward. She came and told us what she has been involved in. That’s going to help her a long way as far as what people are going to think or whether she is telling the truth or whether she is lying.
      "She sat here and very candidly told us word for word what she thought occurred that night. At this point, we don’t know if she is telling the complete truth or if she is lying a little bit. I tend to believe an awful lot of what she told us and the thing I want to impress upon you is that if she goes into this situation and clears up her part completely, she stands a chance of coming out of it pretty decent.
      "If you go into it and withhold information for whatever reason, to protect her or to protect yourself, protect your family, more of it is going to be dumped on you. You already realize that. If you get involved and go to trial, that she is going to go on the stand and be— she is going to say one thing and people may or may not believe what she says more than what you say. So how you handle yourself now is very important.
      "All right, if you are candid with us, if you clear up everything you are involved in, that is going to go a long way in helping what is going to happen to you. The problem is, if you lie to us and if we find out you are lying, it’s going to go against you.
      "So you have already agreed to come forward and tell us what parts you knew. All we are asking now is that you tell us the truth.
      "The first question I want to ask you about is the automobile.”


source: Caselaw Access Project

author: Cynar, P.J.

license: Public Domain

text:
    PEOPLE v LOSEY
    Docket No. 78-3340.
    Submitted February 6, 1980, at Lansing.
    Decided June 16, 1980.
    Leave to appeal applied for.
    Orville Losey, Jr. was convicted of conspiracy to commit murder and sentenced to 40 to 60 years imprisonment, Eaton Circuit Court, Richard Robinson, J. The information filed by the prosecuting attorney alleged a conspiracy to murder defendant’s ex-wife among the defendant, James Lafler and Ronald Heath. Heath was granted immunity from prosecution in return for his testimony. Lafler was tried separately after the defendant’s trial and was acquitted. Defendant appeals alleging numerous errors. Held:

    1. A criminal defendant charged with conspiracy may be convicted of conspiracy despite the acquittal of other codefendants charged with the same conspiracy, where one codefendant was granted immunity from prosecution because no determination as to the guilt of the codefendant who had been granted immunity has been made.
    2. The corpus delicti of first-degree premeditated murder must be established by evidence aliunde a defendant’s confession, however this rule does not extend to a defendant’s admissions.

      References fok Points in Headnotes

       16 Am Jur 2d, Conspiracy § 24 et seq.

    Prosecution or conviction of one party to alleged conspiracy as affected by disposition of case against other parties. 91 ALR2d 700.

       29 Am Jur 2d, Evidence §§ 149, 530. 40 Am Jur 2d, Homicide §§ 284, 285, 432 et seq.

    Corroboration of extrajudicial confession or admission. 45 ALR2d 1316.

       16 Am Jur 2d, Conspiracy §§ 45-48.

       16 Am Jur 2d, Conspiracy § 5.

       40 Am Jur 2d, Homicide § 28 et seq.

       16 Am Jur 2d, Conspiracy § 12.

       29 Am Jur 2d, Evidence §§ 363, 364.

       29 Am Jur 2d, Evidence §§ 783, 785, 787, 790, 798.
    Admissibility in evidence of colored photographs. 53 ALR2d 1102.

       5 Am Jur 2d, Appeal and Error § 624 et seq. 63 Am Jur 2d, Prosecuting Attorney § 27.

      3. A prima facie case of conspiracy must be established by independent evidence as a condition precedent to the admissibility of a coconspirator’s statements.
    4. Murder is not an element of conspiracy to commit murder because conspiracy to commit a crime is a distinct offense apart from the crime which is the object of the conspiracy.
    5. A criminal conspiracy does not end merely because the substantive crime which is its primary object has been completed; settling of the financial aspects of the transaction among the conspirators and other acts necessary to complete the operation on which they were jointly engaged are equally part of the conspiracy.
    6. Evidence brought out by the prosecuting attorney by cross-examination which was relative to motive and provided the vital connective link to a material issue being tried is admissible evidence.
    7. An on-the-scene color photograph of a murder victim may be admitted into evidence if relevant and material so long as it is not so gruesome as to compel the conclusion that it was offered solely to arouse the passion or prejudice of the jury or to render its prejudicial effect greater than its probative value.
    8. Reversible error does not result where a prosecuting attorney did not reveal the existence of a prior inconsistent statement of a key prosecution witness until after the jury had retired to deliberate but where the defendant made no request for exculpatory material and where there is no reasonable doubt about the guilt of the defendant.
    Affirmed.
    1. Conspiracy — Criminal Law — Coconspirators — Immunity from Prosecution.
    A criminal defendant charged with conspiracy may be convicted of conspiracy despite the acquittal of other codefendants charged with the same conspiracy where one codefendant was granted immunity from prosecution because no determination as to the guilt of the codefendant who has been granted immunity has been made.
    2. Homicide — First-Degree Murder — Corpus Delicti — Confession.
    The corpus delicti of first-degree premeditated murder must be established by evidence aliunde a defendant’s confession, however this rule does not extend to a defendant’s admissions.

      3. Conspiracy — Criminal Law — Coconspirators — Statements.
    A prima facie case of conspiracy must be established by independent evidence as a condition precedent to the admissibility of a coconspirator’s statement (MRE 801[d][2][E]).
    4. Homicide — Murder — Conspiracy — Elements.
    Murder is not an element of conspiracy to commit murder because conspiracy to commit a crime is a distinct offense apart from the crime which is the object of the conspiracy.
    5. Homicide — Murder — Aiding and Abetting — Elements.
    Murder is an element of the crime of aiding and abetting murder.
    6. Conspiracy — Criminal Law — Elements.
    A criminal conspiracy does not end merely because the substantive crime which is its primary object has been completed; settling of the financial aspects of the transaction among the conspirators and other acts necessary to complete the operation on which they were jointly engaged are equally part of the conspiracy.
    7. Evidence — Cross-Examination — Prosecuting Attorney.
    Evidence brought out by a prosecuting attorney by cross-examination which is relative to motive and provides the vital connective link to a material issue being tried is admissible evidence.
    8. Criminal Law — Evidence — Homicide — Photographs.
    An on-the-scene color photograph of a murder victim may be admitted into evidence if relevant and material so long as it is not so gruesome as to compel the conclusion that it was offered solely to arouse the passion or prejudice of the jury or to render its prejudicial effect greater than its probative value.
    9. Appeal — Evidence — Prosecuting Attorneys — Inconsistent Statements — Reversible Error.
    Reversible error does not result where a prosecuting attorney did not reveal the existence of a prior inconsistent statement of a key prosecution witness until after the jury had retired to deliberate but where the defendant made no request for exculpatory material and where there is no reasonable doubt about the guilt of the defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Paul F. Berger,
      Prosecuting Attorney, and Janis L. Blough, Assistant Prosecuting Attorney, for the people.

      James Krogsrud and Terrence R. Flanagan, Assistant State Appellate Defenders, for defendant on appeal.
    Before: Cynar, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   Cynar, P.J.

Defendant was convicted of conspiracy to commit murder, MCL 750.316; MSA 28.548 and MCL 750.157a; MSA 28.354(1), and was sentenced to 40 to 60 years imprisonment. Defendant was acquitted of a charge of aiding and abetting murder. He appeals as of right.

I

The information filed in this case alleged a conspiracy among defendant, James Willis Lafler, and Ronald Heath to murder Maria A. Losey, defendant’s ex-wife. Lafler was tried separately after defendant’s trial and was acquitted of that charge and Heath was granted immunity in return for his testimony.

On February 11, 1977, the victim was found dead in her home in Delta Township by the defendant, who reported the crime to the police. Death was the result of two .22-caliber bullet wounds in the head. The bullets were found in the victim’s skull. Based on information received during the course of their investigation, a state police diver recovered a .22-caliber bolt action rifle, which was alleged to be the murder weapon, from the Kalamazoo River.

A neighbor of the victim testified that on the date of the homicide she saw a car drive past the decedent’s house, which vehicle stopped twice. The neighbor was uncertain of the make and model year of the car but noted that it had a brown bottom and a white top. A car fitting this general description was found to have been owned by a Ron VerMuelen at the time of the killing and was borrowed by Lafler the day prior to the murder.

Ronald Heath was the key prosecution witness. At trial, he testified that defendant asked him if Lafler could "get rid of’ his ex-wife. A few days later, Health brought Lafler to defendant’s house at his request. Defendant and Lafler held a discussion in Heath’s absence. Immediately thereafter, Heath noticed that Lafler had acquired a substantial amount of money. Leaving defendant’s home, Lafler had Heath drive him past the victim’s residence, at which time Lafler discussed killing her. On a subsequent occasion, Heath witnessed a transfer of $300 to Lafler from defendant. He substantiated the fact that Lafler borrowed Ver-Muelen’s car. On the day of the homicide, Lafler called Heath asking for defendant’s telephone number.

Heath further testified that on February 12, he accompanied Lafler, VerMuelen, and two other men, Leroy Baker and Ted Renner, on a trip to pick up VerMuelen’s car. The auto was stranded on 1-94 just east of 1-69. Upon arriving at their destination, Lafler retrieved a .22-caliber rifle secreted away near the car. Lafler tossed the rifle into a nearby river. This account was corroborated by Baker, Renner, and VerMuelen.

Heath also testified regarding payments made by defendant to Lafler after the killing in which he served as the middleman.

Defendant testified in his own defense. He stated that Heath informed him that Lafler had killed his ex-wife. He explained that one payment made to Heath was in return for a loan.

II

Defendant first argues for reversal of his conviction on the ground that there can be no one-man conspiracy and that since Lafler was acquitted of the charge at a later trial, and Heath was granted immunity, he, as the sole remaining alleged coconspirator, cannot be convicted on the conspiracy charge.

This argument was raised and rejected in People v Berry, 84 Mich App 604, 607-608; 269 NW2d 694 (1978), where this Court declared:

"On appeal, defendant contends that he cannot be convicted of a conspiracy charge where his sole alleged coconspirator received immunity from prosecution. Defendant reaches this conclusion by analogy from cases which have held that where all but one coconspirator is acquitted, the remaining coconspirator cannot be convicted on a conspiracy charge. People v Alexander, 35 Mich App 281; 192 NW2d 371 (1971). See generally, Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 ALR2d 700. This result is based on the fact that a conspiracy is a partnership in criminal purposes that requires more than one conspirator. There is no such thing as a one-man conspiracy, and once all alleged coconspirators are acquitted, what would remain would be a one-man conspiracy, People v Alexander, supra, at 282; People v Atley, 392 Mich 298, 310; 220 NW2d 465 (1974).
"Defendant’s analogy is not valid, however. When alleged coconspirators are acquitted, a finding of not guilty of the charged conspiracy has been made. When alleged coconspirators are granted immunity (or when they are unavailable for prosecution for some reason), no determination as to their guilt has been made. A grant of immunity is not inconsistent with guilt. The instant defendant may still be convicted despite his sole codefendant’s immunity from conviction. This holding is in accord with the decision of other jurisdictions which have passed on similar situations. See Anno: Prosecution or Conviction of One Party to Alleged Conspiracy as Affected by Disposition of Case Against Other Parties, 91 ALR2d 700, 722.”

We deem Berry to be dispositive of this predication of error, and find against defendant thereon.

III

Defendant next claims that the information filed in the instant case should have been quashed by the trial court or a verdict of acquittal should have been directed by the court below because there was not sufficient evidence aliunde the statements of a coconspirator (Heath) or defendant’s extrajudicial admissions to establish a conspiracy. Absent such independent evidence establishing the existence of a conspiracy (the corpus delicti), the co-conspirator’s statements were not admissible under MRE 801(d)(2)(E), in effect at the time of trial; nor were defendant’s admissions admissible.

In a related argument, defendant further contends that the quantum of proof necessary to independently establish the conspiracy is proof by a preponderance of the evidence, not merely the establishing of a prima facie case of conspiracy, the traditional standard. Defendant argues that the adoption of the Michigan Rules of Evidence, specifically MRE 104(a), mandates this conclusion.

We first address defendant’s claim that his own admission should not have been allowed in evidence unless the corpus delicti of the offense is first established by evidence aliunde those admissions. This contention fails for more than one reason.

First, the rule in Michigan is that the corpus delicti of first-degree premeditated murder (one of the charged offenses here) must be established by evidence aliunde a defendant’s confession. People v Johnson, 93 Mich App 667, 672; 287 NW2d 311 (1979), and the cases cited therein. This rule does not extend to a defendant’s admissions. Id., 673. Moreover, even if defendant’s statements were not admissible on this basis, they were clearly admissible under the rationale found in People v Randall, 42 Mich App 187; 201 NW2d 292 (1972), wherein this Court stated:

"There are several types of statements which while classified as admissions are nonetheless admissible to establish the corpus delicti. A statement which itself is an element of the offense may be admitted. People v Lay, 336 Mich 77 (1953). Excited utterances are admissible. A statement of a presently existing state of mind made shortly before the crime is committed is admissible to prove the crime. People v Potter, 5 Mich 1 (1858). In general, admissions made before the crime was committed are admissible to prove the corpus delicti. Warszower v United States, 312 US 342; 61 S Ct 603; 85 L Ed 876 (1941). A statement made roughly contemporaneously with the crime even if shortly after may be admitted to prove the corpus delicti. People v Quimby, 134 Mich 625 (1903).
"When a defendant’s statement is not simply an admission, but also falls within another exception to the hearsay rule, which gives an additional indication of truth, the statement is admissible to prove the corpus delicti.
"The policy of the rule requiring proof of the corpus delicti by proof other than a confession is not offended by admitting statements which fall within two exceptions to the hearsay rule. This is sufficient indication of the truth to overcome any reluctance to convict on the basis of a confession. A rule that was created for the salutary purpose of doing justice should not be construed in a manner that makes it merely an escape hatch for the guilty.” (Emphasis added.) Id., 190-192.

The admission of defendant placed in evidence, to which he now objects, was to the effect that defendant admitted hiring Lafler to kill his wife. It establishes an indispensable element of the crime of conspiracy, the fact of an agreement to do an unlawful act. See People v Atley, 392 Mich 298, 310-311; 220 NW2d 465 (1974). Thus, it falls squarely under the first exception enumerated in Randall, supra, and would be admissible on that basis. We therefore reject defendant’s contentions regarding his own admission being offered in evidence.

Since this evidence was properly received, we find defendant’s argument regarding the admission into evidence of his coconspirator’s statements to be wanting in merit. The independent evidence presented, including the ample circumstantial evidence noted previously, was sufficient to make out a prima facie case of conspiracy so as to satisfy the necessary condition precedent to admissibility found in MRE 801(d)(2)(E). The order of presentation of the proofs was unimportant, as it is clear that a trial court may vary the order of proofs and admit the coconspirator’s statements contingent upon later production of the independent evidence required under MRE 801(d)(2)(E). See MRE 104(b).

Our above use of the standard requiring the establishment of a prima facie case of conspiracy independent of a coconspirator’s statements is by design, for this is the traditional requirement in Michigan, People v Stewart, 397 Mich 1, 6; 242 NW2d 760 (1976), People v Scotts, 80 Mich App 1; 263 NW2d 272 (1977), and we are not persuaded that the adoption of the Michigan Rules of Evidence elevated this standard to proof by a preponderance of the evidence. See United States v Ochoa, 564 F2d 1155, 1157 (CA 5, 1977), which interpreted similar Federal Rules of Evidence provisions, and concluded that prima facie evidence was the proper standard for independent proofs. We dismiss defendant’s claim to the contrary.

IV

Defendant further urges us to conclude that the verdicts rendered by the jury in the case at bar were reversibly inconsistent. Defendant argues that there was no rational basis to explain the verdicts on the facts and circumstances of this case. We are unable to accept this proposition.

Murder is not an element of conspiracy to commit murder because conspiracy to commit a crime is a distinct offense apart from the crime which is the object of the conspiracy. The crime of conspiracy does not depend upon the success or failure of its object. People v Chambers, 279 Mich 73, 77; 271 NW 556 (1937). Contrarily, murder is an element of the crime of aiding and abetting murder. MCL 767.39; MSA 28.979. A rational explanation of the two verdicts is that the jury entertained a reasonable doubt as to some element of murder. See People v Phillips, 43 Mich App 581, 583-584; 204 NW2d 250 (1972), People v Willie Johnson, 58 Mich App 165, 167-168; 227 NW2d 272 (1975), lv den 394 Mich 755 (1975), cert den 423 US 849; 96 S Ct 91; 46 L Ed 2d 72 (1975). The case at bar is distinguishable from People v McCurtis, 84 Mich App 460; 269 NW2d 641 (1978), lv den 407 Mich 893 (1979), and People v Vaughan, 92 Mich App 742; 285 NW2d 444 (1979), where the jury in each case necessarily found both the existence and nonexistence of a common element of the two crimes charged.

V

Defendant’s next assignment of error concerns the trial court’s ruling that the conspiracy involved in this case did not end with the death of Maria Losey, defendant’s ex-wife. Defendant contends that the conspiracy terminated when the victim’s death, the object of the conspiracy, was a fait accompli. Thus, according to defendant, those statements of coconspirator Ronald Heath, of and concerning the conspiracy and made after the decedent’s demise, should not have been admitted. We disagree, for we do not believe the conspiracy terminated at that juncture. Instead, we adopt the rule stated in United States v Perrone, 161 F Supp 252 (SD NY, 1958), where the court held:

"A conspiracy does not end merely because the substantive crime which is its primary object has been completed. The final settling of the financial aspects of the transaction among the conspirators, and other acts necessary to complete the operation on which they were jointly engaged, and to consummate the arrangements between them, are equally part of the conspiracy with the attempt to commit or the commission of the substantive offense which was its prime object. Rettich v United States, 1 Cir, 84 F2d 118; McDonald v United States, 8 Cir, 89 F2d 128.
"There is nothing to the contrary in Grunewald v United States, 353 US 391, 77 S Ct 963, 1 L Ed 2d 931, and Krulewitch v United States, 336 US 440, 69 S Ct 716, 93 L Ed 790, on which defendants rely. In the case at bar the acts of the conspirators which took place subsequent to the completion of delivery on May 27 are not merely attempts to conceal a crime already committed, as was the case in Grünewald and Krulewitch. They were affirmative steps in pursuance and furtherance of the conspiracy charged. Cf. Grunewald v United States, supra, 353 US at page 405, 77 S Ct at page 974.” Id., 259.

Cf, People v Scotts, supra, 5-6.

We find this reasoning persuasive. The gravamen of the conspiracy charge in the case sub judice was defendant’s agreement to pay Lafler to kill Maria Losey. So long as defendant continued to pay, the agreement remained in force.

VI

Next, defendant asks this Court to find reversible error in the cross-examination of the defendant by the prosecutor, which he contends included impermissible inquiries into several collateral matters.

With respect to the prosecutor’s questions regarding child support for the children from defendant’s first marriage, the burning of defendant’s son’s hand, and as to a breaking and entering of the victim’s home, each question was met with an objection, which objection was sustained and an appropriate cautionary instruction given. We decline to find reversible error on this record. People v Taylor, 44 Mich App 640, 648; 205 NW2d 884 (1973), lv den 391 Mich 758 (1974).

Defendant further complains that reversible error occurred after he was cross-examined regarding a telephone conversation his ex-wife was alleged to have engaged in, in defendant’s presence, t a week before the homicide. Defendant denied remembering the event, whereupon, according to defendant impermissible rebuttal testimony of a witness, Maria Seeley, was heard wherein she testified to being the other party to that conversation as well as to events involving defendant described to her by the victim as occurring simultaneously with the phone conversation. Defendant claims that the rebuttal testimony was impermissible extrinsic impeachment on a collateral matter, since the prosecutor was bound by defendant’s denials on the matter.

The prosecution argues contrariwise that the inquiries made of defendant regarding the telephone conversation between his ex-wife and the rebuttal witness were relevant to defendant’s motive and that therefore the matter was not collateral and the rebuttal testimony was proper.

The specific questions asked defendant concerned whether he had attempted to remove the victim’s pants while she conversed with Maria Seeley on the telephone on February 4, and whether the decedent was screaming at that time. To rebut defendant’s denials that such had occurred, the prosecution called Maria Seeley, who testified that she spoke on the telephone with the victim on February 4. Seeley said the victim sounded upset and began to scream when her ex-husband attempted to remove her pants and told Seeley that defendant did not believe her explanation that she was "on her period” as her reason for resisting his overtures.

It is not seriously open to question that motive was an issue in the case, more narrowly defendant’s hatred of his ex-wife on which evidence was previously adduced in the prosecution’s case in chief. The cross-examination above referred to was relative to motive and provided the vital connective link to a material issue being tried which would suffice to render the now objected to rebuttal testimony admissible. People v McGillen #1, 392 Mich 251, 266-268; 220 NW2d 677 (1974), People v Bauman, 332 Mich 198, 206-207; 50 NW2d 757 (1952). As such, we decline to reverse on this ground.

VII

We fail to perceive any abuse of discretion on the part of the court below in admitting into evidence an on-the-scene color photograph of the victim. The photograph was relevant insofar as it corroborated Ronald Heath’s secondhand account of the murder and his veracity generally. Heath testified as to how the murder took place, based on a conversation he had with James Lafler, the alleged "hit” man. The accuracy of Heath’s account was material and his credibility obviously in issue, as with any witness. The photograph served to substantiate in large measure Heath’s testimony regarding the murder. In addition, the photo depicted the corpus delicti. Neither was it so gruesome as to compel the conclusion that it was offered solely to arouse the passion or prejudice of the jury nor to render its prejudicial effect greater than its probative value. Such being the case, we refuse to reverse on this contention of error. People v Eddington, 387 Mich 551, 561-563; 198 NW2d 297 (1972).

VIII

We cannot agree with defendant’s claim that the prosecutor impermissibly vouched for the credibility of the people’s witnesses and injected his office or personality into the decision-making process. The prosecutor properly related his arguments to the evidence and expressed an opinion based upon the proofs presented. People v Yarborough, 61 Mich App 303, 308; 232 NW2d 394 (1975). The prosecutor’s gratuitous comment regarding the rights of the victim was not so inflammatory that any possible prejudice resulting therefrom could not have been cured by a cautionary instruction. See People v Walker, 93 Mich App 189, 198-199; 285 NW2d 812 (1979). Cf., People v Blassingame, 59 Mich App 327, 336; 229 NW2d 438 (1975), lv den 399 Mich 842 (1977).

IX

As a final issue, defendant argues that the trial court abused its discretion in refusing to grant a new trial, because the prosecutor did not reveal until after the jury had retired to deliberate the existence of a prior inconsistent statement of the key prosecution witness, Ronald Heath. It must be noted that defendant made no request for an examination of this statement.

The statement was made to the prosecutor by Heath following an interview with a state police sergeant. The substance of the statement was that Heath did not think James Lafler was actually going to kill anyone but that he was only going to "fleece” defendant for as much money as he could. The content of the statement was not relevant to show Lafler’s state of mind; it only indicated Heath’s opinion of Lafler’s state of mind. However, Heath’s state of mind was relevant since the jury had to base a verdict of guilty of conspiracy to commit murder on a finding that either Heath or Lafler possessed the twofold specific intent both to conspire (act in concert) and to commit the substantive wrong which is the object of the conspiracy in addition to defendant’s being possessed of a like twofold intent, since the rule is that that intent must be possessed by more than one individual. People v Atley, supra, 310. So too, the statement was germane to Heath’s credibility, since he had testified to certain incidents inconsistent with such a state of mind.

Defendant argues in the alternative, claiming that reversible error was committed whether the withholding of the statement by the prosecutor was intentional or whether it was negligent.

We note only that good faith or bad faith on the part of the prosecutor is not a controlling consideration, at least where no request for exculpatory material is made or only a general request is put forward. United States v Agurs, 427 US 97, 107-109; 96 S Ct 2392; 49 L Ed 2d 342 (1976), Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963). Such was the case here. Therefore, we conclude that the proper standard of review of defendant’s claim is under the fair trial guarantee of the due process clause found in United States v Agurs, supra, wherein the majority opinion stated:

"On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.
"On the other hand, since we have rejected, the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his 'conviction is sure that the error did not influence the jury, or had but very slight effect.’ Kotteakos v United States, 328 US 750, 764. Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.
"The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.
"This statement of the standard of materiality describes the test which courts appear to have applied in actual cases although the standard has been phrased in different language.” (Footnotes omitted.) Id., 111-113.

Evaluating the withheld statement in the context of the entire record, we are not convinced that it creates a reasonable doubt that did not heretofore exist. Put another way, there is no reasonable doubt about guilt whether or not the additional evidence is considered. Moreover, on cross-examination, Heath had denied that he ever agreed with defendant or Lafler to kill the victim. The content of the withheld statement was therefore merely cumulative of this testimony. We can see no justification for a new trial on this basis.

X

In sum, we do not find any of the claimed errors sufficient to necessitate reversal, and therefore affirm defendant’s conviction and sentence.

Affirmed.


author: T. M. Burns, P.J.

text:
    PEOPLE v OLSON
    Docket No. 78-3609.
    Submitted December 13, 1979, at Lansing.
    Decided June 16, 1980.
    Leave to appeal applied for.
    Edward G. Olson, Jr. was convicted of receiving and concealing stolen property over $100, Monroe Circuit Court, William J. Weipert, Jr., J. He was sentenced to three years probation and ordered to serve 120 days in the county jail. The defendant appeals, contending 1) the lower court erred in refusing to suppress certain evidence found by police after an illegal stop of his automobile and 2) the lower court erred when it placed him on probation and then ordered that he serve 120 days in the county jail should he violate a term of his probation. Held:

    1. Police officers observed unusual activity near Mr. Olson’s automobile providing a reasonable basis for their subsequent stop of the vehicle. Thus, since the investigatory stop was not improper, the lower court did not err when it denied defendant’s motion to suppress evidence found in the plain view of the police.
    2. The defendant was placed on probation and ordered to serve 120 days in the county jail as a term of his probation, not as a penalty to be imposed only if he violated a term of his probation. As such, the sentence does not violate the law.
    Affirmed.
    1. Searches and Seizures — Investigatory Stops — Reasonableness Test — Criminal Law — Police Officers.
    Police officers need only have a reasonable suspicion of criminal activity, and not probable cause, to justify investigatory stops.
    2. Searches and Seizures — Investigatory Stops — Validity — Rules — Motor Vehicles — Reasonableness Test — Police Officers.
    The rules to be applied in determining the validity of investigatory stops of automobiles by the police are (1) both the stop and the search of a moving motor vehicle must be reasonable, (2) reasonableness will be determined from the facts and circumstances of each case, (3) where moving vehicles are involved, fewer foundation facts are necessary to support a finding of reasonableness than where a house or home is involved, and (4) fewer facts are necessary to support a finding of reasonableness where a stop of a motor vehicle for investigatory purposes is involved than where both a stop and a search is conducted.

      References for Points in Headnotes
    [1-4] 68 Am Jur 2d, Search and Seizure § 102.5.
    "Furtive” movement or gesture as justifying police search. 45 ALR3d 581.

       68 Am Jur 2d, Searches and Seizures § 88.
    Search and seizure: observation of objects in "plain view” — Supreme Court cases. 29 L Ed 2d 1067.

       21 Am Jur 2d, Criminal Law §§ 565, 567.

      3. Searches and Seizures — Investigatory Stops — Reasonableness Test — Surrounding Circumstances — Criminal Law — Police Officers.
    Unusual activity observed by police during early morning hours provided a reasonable basis for an investigatory stop, even though there was insufficient evidence to believe a crime had been committed.
    4. Searches and Seizures — Investigatory Stops — Reasonableness Test — Insufficient Basis — Criminal Law — Police Officers.
    A random stop of a vehicle without any reason other than general investigatory purposes does not provide a reasonable basis for the stop.
    5. Evidence — Criminal Law — Suppression — Plain View — Searches and Seizures — Investigatory Stops — Police Officers.
    Evidence found by police officers in their plain view during a proper investigatory stop is admissible.
    6. Criminal Law — Sentencing — Probation — Courts — Penalty — Error.
    A sentence of probation which includes a specific term of imprisonment to be imposed prospectively as a penalty for violation of a term of the probation is an improper sentence.
    7. Criminal Law — Sentencing — Probation — Imprisonment — Statutes.
    A sentence of less than six months, which includes an order of a definite jail term to be served at some stated point within a probation period imposed at the time of the initial probation order and which is not contingent on the violation of a term of the probation, is itself a term of the probation (MCL 771.3, 771.4; MSA 28.1133, 28.1134).

      8. Criminal Law — Additional Sentencing — Probation Violation — Judges — Statutes.
    The sentencing judge may impose an appropriate sentence of imprisonment if any term of the probation is violated during a probationary period (MCL 771.4; MSA 28.1134).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William P. Godfroy, Assistant Prosecuting Attorney, for the people.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J. and J. H. Gillis and Bashara, JJ.
   T. M. Burns, P.J.

Defendant appeals of right his April 19, 1978, bench trial conviction of receiving and concealing stolen property over $100. MCL 750.535; MSA 28.803. On July 7, 1978, he was sentenced to three years probation and ordered to serve 120 days in the county jail. We affirm.

Defendant contends that the lower court erred in refusing to suppress certain evidence that was found by the police after what defendant terms was an illegal stop of his automobile. It appears that on June 10, 1977, at approximately 2:30 a.m., police officers on routine patrol observed a vehicle with its lights on parked at the end of a dead end street. One of the police officers testified at trial that near the automobile they saw someone "throwing things about”. The police officers turned their vehicle onto the dead end street and were approaching defendant’s car when defendant reentered his car and began to leave. He stopped, however, when the police officers turned a spot light on his car. Upon exiting from their automobile and approaching defendant, the police officers noticed, in the back seat of defendant’s car, citizen’s band radio equipment, a stereo tape deck and speakers, a camera, and business cards that read “Monroe Evening News, Robert Vergiels”. Defendant and a companion were arrested after the police officers radioed their dispatcher, who telephoned Mr. Vergiels, who indicated that the items seen by the police had been stolen from his car. Defendant’s pretrial motion to suppress this evidence was denied.

In Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), the United States Supreme Court considered the nature of investigatory stops by the police and enunciated guidelines therefor. The Court held that police officers need only have a reasonable suspicion that criminal activity may be afoot, and not probable cause, in order to justify investigatory stops.

Subsequently, in People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973), the Michigan Supreme Court adopted several rules for determining the validity of investigatory stops of automobiles by the police:

"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
"2. Said reasonableness will be determined from the facts and circumstances of each case.
"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.
"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.”

The unusual activity observed by the police officers in this case during early morning hours provided a reasonable basis for their subsequent stop of defendant’s vehicle, even though the officers did not have sufficient evidence to believe that a crime had been committed. This case does not involve the random stop of a vehicle without any reason other than general investigatory purposes. The police officers observed someone near defendant’s automobile who was engaged in conduct that was curious enough to warrant further investigation. Therefore, because we hold that the investigatory stop of defendant’s automobile was not improper, the lower court did not err when it denied defendant’s motion to suppress evidence that the police officers found in their plain view.

Defendant also argues that the lower court erred when it placed him on probation and then ordered that he serve 120 days in the county jail, should he violate a term of his probation. Were we convinced that the lower court did this, we would hold that error occurred. However, we find that defendant has misinterpreted the sentence imposed upon him by the sentencing judge. In effect, defendant was placed on probation and ordered to serve 120 days in the county jail as a term of his probation. The sentencing judge indicated that if defendant served the term of his probation without violating its conditions, the jail sentence might be waived. This jail term was not, as defendant characterizes it, a penalty to be imposed upon him only if he violated a term of his probation.

In pertinent part, MCL 771.3; MSA 28.1133, provides:

"As a condition of probation, the court may require the probationer to be imprisoned in the county jail or the house of correction for not more than six months, at such time or intervals, which may be consecutive or nonconsecutive within the probation period as the court may determine * * * however, the period of confinement shall not exceed the maximum period of imprisonment provided for the offense charged if this maximum period is less than six months.”

The prosecution argues that this statute authorizes the sentence imposed upon defendant. We agree and find that the prosecutor’s argument is supported by MCL 771.4; MSA 28.1134, which provides, in part:

"In case such a probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.”

Defendant’s argument that these statutes, when read together, do not contemplate the sentencing of a defendant to a jail term at the time of the initial probation order, other than to a definite term to be served at some stated point within the probationary period, is correct. By sentencing a defendant prospectively for a probation violation, before any such probation violation has occurred, a sentencing judge would negate any opportunity he may have to consider the nature of the probation violation and any mitigating circumstances that may tend to lessen the defendant’s sentence. Of course, if during a probationary period a defendant violates any term of his probation, then the sentencing judge may sentence that defendant to any term of imprisonment that would be appropriate.

In this case, however, defendant’s sentence does not violate the intent of the Legislature as evidenced in these statutes. The four month sentence that defendant must serve is not contingent on his violating a term of his probation; rather, the sentence itself is a term of his probation. As such, it does not violate the law.

Affirmed.