author: N. J. Kaufman, J. V. J. Brennan, J.

text:
    PEOPLE v KARMEY
    Docket Nos. 30380, 30381.
    Submitted March 14, 1978, at Detroit.
    Decided November 6, 1978.
    Leave to appeal denied, 406 Mich —.
    Defendant Abraham Karmey was convicted of conspiracy to break and enter with intent to commit larceny and receiving and concealing stolen property over the value of $100 in Wayne Circuit Court, Richard D. Dunn, J. At trial the prosecutor, without objection, played a tape recording of a conversation between defendant and the chief prosecution witness, then withdrew the tape as a proposed exhibit because it was largely unintelligible. On rebuttal the prosecutor, this time over defendant’s objection, was permitted to replay the tape, which was then allowed into evidence. Defendant claimed that allowing the playing of the tape at that time constituted allowing the prosecutor to renew his case in chief and that the tape did not provide a clear and direct contradiction of the defense witnesses’ testimony. Defendant appeals. Held:
    1. Proper foundation for admission of sound recordings into evidence consists of: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that no changes have been made in the recording, (5) a showing of the manner of preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made, without any inducement; in the absence of a proper foundation, admission of the tape recording was error.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 436.
    Admissibility of sound recordings in evidence. 58 ALR2d 1024.
    Omission or inaudibility of portions of sound recording as affecting its admissibility in evidence. 57 ALR3d 746.
    Admissibility in evidence of sound recording as affected by hearsay and best evidence rule. 58 ALR3d 598.
    [2, 7] 29 Am Jur 2d, Evidence §§ 250, 269.
    [3] 46 Am Jur 2d, Judges §§ 181, 199, 220.
    Disqualification of judge by state, in criminal case, for bias or prejudice. 68 ALR3d 509.
    [4] 81 Am Jur 2d, Witnesses §§ 419, 420.
    [5] 16 Am Jur 2d, Conspiracy §§ 9-11.
    50 Am Jur 2d, Larceny § 58.
    [6] 5 Am Jur 2d, Appeal and Error § 891.
    [8] 81 Am Jur 2d, Witnesses §§ 518, 612.
    5 Am Jur 2d, Appeal and Error § 776.

      2. Rebuttal is limited to the refutation of relevant and material evidence bearing on an issue properly raised in a case by way of defense or in the prosecutor’s case in chief; where not properly raised in this manner, the device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue, and both the statement and the veracity of the witness are then collateral matters and the prosecutor is bound by the response.
    3. A criminal defendant’s claim on appeal that the examining magistrate who bound him over for trial after his first preliminary hearing should have disqualified himself from presiding over a subsequent preliminary hearing is without merit in the absence of a showing of bias or prejudice in fact on the part of the examining magistrate as required by court rule.
    Reversed and remanded.
    V. J. Brennan, J., dissented. He would hold that the only issue with regard to the tape recording which was properly before the Court of Appeals was the issue of the propriety of the tape recording as rebuttal evidence and that it directly refuted the testimony of two defense witnesses and was, therefore, proper rebuttal evidence. He would also hold that the impeachment by extrinsic evidence at defendant’s trial was harmless error in light of the overwhelming evidence against him. He would affirm.
    Opinion of the Court
    1. Evidence — Admissibility—Sound Recordings.
    Proper foundation for admission of sound recordings into evidence consists of: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that no changes have been made in the recording, (5) a showing of the manner of preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made, without any inducement.
    2. Witnesses — Evidence—Rebutal—Collateral Matters — Cross-Examination.
    Rebuttal is limited to the refutation of relevant and material evidence bearing on an issue properly raised in a case by way of defense or in the prosecutor’s case in chief; where not properly raised in this manner, the device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue, and both the statement and the veracity of the witness are then collateral matters and the prosecutor is bound by the response.
    3. Criminal Law — Preliminary Hearing — Disqualification of Judges — Appeal and Error — Court Rules — Burden of Proof.
    A criminal defendant’s claim on appeal that the examining magistrate who bound him over for trial after his first preliminary hearing should have disqualified himself from presiding over a subsequent preliminary hearing is without merit in the absence of a showing of bias or prejudice in fact on the part of the examining magistrate as required by court rule (GCR 1963, 405.1[3]).
    4. Witnesses — Courts—Trial—Judicial Questioning — Appeal and Error.
    Questions asked of a witness by the trial court did not have the effect of unfairly influencing the jury’s verdict against the defendant and, therefore, there was no error, where a careful review of the entire record shows that the trial court’s questions had the apparent intent and effect of resolving ambiguities and bringing out additional relevant testimony that potentially could have aided either the prosecution or the defense and no interjection of the trial court’s personal views or bias is shown.
    5. Conspiracy — Criminal Law — Intent—Evidence—Inferences— Breaking and Entering.
    A defendant’s overt acts of supplying money to buy tools used in an attempted breaking and entering, and supplying tools used in a breaking and entering coupled with his knowledge that the crime was to be committed are sufficient to form the basis of an inference of intent sufficient to support a conviction of conspiracy to break and enter with intent to commit larceny.
    6. Appeal and Error — Criminal Law — Instructions to Jury.
    In the absence of an objection to the charge, the Court of Appeals will reverse a defendant’s conviction based on an erroneous instruction to the jury only upon a demonstration of manifest injustice.

      Dissent by V. J. Brennan, J.
    7. Evidence — Rebuttal.
    Rebuttal testimony is proper where it is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party.
    8. Evidence — Impeachment—Collateral Matters — Harmless Error.

      Impeachment by the use of extrinsic evidence on a collateral matter is improper; however, it is harmless error where there is overwhelming evidence against the defendant.

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

      Colista, Green, Green & Adams, for defendant.
    Before: R. M. Maher, P.J., and V. J. Brennan and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Defendant was convicted by a jury of conspiracy to break and enter a business place with intent to commit larceny, in violation of MCL 750.157a; MSA 28.354(1) and MCL 750.110; MSA 28.305, and of receiving and concealing stolen property over the value of $100, in violation of MCL 750.535; MSA 28.803. Defendant was sentenced to a term of from six to ten years imprisonment on the first charge and from three to five years imprisonment on the second charge. Defendant appeals as of right, raising numerous issues.

Defendant had originally been charged with having conspired with Gregory Teeter, the chief prosecution witness, to break and enter the Fairway Jewelry Store in East Detroit with intent to commit larceny therein. Defendant was also charged with receiving and concealing the stolen property from the break-in, in an amount over $100.

Defendant’s major contention on appeal is that a tape-recorded conversation between defendant and Gregory Teeter, which contained inculpatory statements, was erroneously admitted into evidence during the prosecution’s rebuttal.

The prosecution originally tried to introduce a portion of the recording at issue in its case in chief to prove the existence of the conspiracy between defendant and Teeter with respect to the burglary of the Fairway Jewelry Store and, further, to show that defendant had purchased from Teeter stolen goods from that burglary. The tape recording was marked as Exhibit 13 and was played to the jury without objection for approximately five minutes. After that time, the prosecutor withdrew the tape as a proposed exhibit because of the largely unintelligible nature of the recording. The prosecutor explained to the trial court that "obviously, it is too bad for us to get any entry value out of it, so I withdraw the tape even as a proposed exhibit”.

On rebuttal, the prosecution again decided to play the tape for the jury. Defense counsel objected to the playing of the tape recording during rebuttal, arguing that it would be allowing the prosecutor to renew his case in chief. Defense counsel further argued that the tape did not provide a clear and direct contradiction of the defense witnesses’ testimony. The trial court overruled the objection and allowed the prosecution to play the tape recording.

After the tape was played, the prosecution called two rebuttal witnesses and then moved for the admission of the tape recording. Defense counsel’s primary objection was that because of the great amount of interference in the tape recording, it was incomprehensible. In response the trial court stated:

"Well, the Court admitted the entire tape even though part of it was incapable of being understood. And it was admitted in the form that it was in the original taping. There is no question about it that there was a lot of interference. But I am going to admit the entire tape.”

The prosecutor mentioned the tape recording during rebuttal argument:

"Corroboration is also in the tape and discussions on the tape, particularly the last portion of the last side of what is possible to be heard.
"Perhaps one of the greatest amounts of the value on the tape is the fact that the two were together and talking. And whether it was a heated discussion or somewhat friendly discussion or a business discussion. The fact that there was discussion of costs and values and amounts and per centages [sic] and what is the markup on a Timex, I think is certainly relevant.” (Emphasis added.)

We empathize with the dilemma faced by the trial court in this case. It is a problem which confronts trial courts when part of a deposition is destroyed. The trial court must balance competing interests. Here, on the one hand, the tape contained at least arguably relevant evidence. On the other hand, at least part of the tape was incomprehensible. The trial court did try to make the requisite weighing of the interests. However, we must observe that the trial court failed to utilize the applicable standards of law while so doing. Accordingly, we are constrained to reverse and remand this case for a new trial.

Problems of audibility of tape recordings were considered by this Court in People v Taylor, 18 Mich App 381; 171 NW2d 219 (1969). This Court set forth what constitutes a proper foundation:

”(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.” 18 Mich App at 383-384.

Accord: People v Frison, 25 Mich App 146, 148; 181 NW2d 75 (1970), noting further:

" 'The fact that a recording may not reproduce an entire conversation, or may be indistinct or inaudible in part, has usually been held not to require its exclusion; however, the recording may be rejected if it is so inaudible and indistinct that the jury must speculate as to what was said. It has been held that unless the unintelligible portions of a tape recording are so substantial as to render the recording as a whole untrustworthy, the recording is admissible and the decision whether to admit it should be left to the sound discretion of the trial judge,’ 29 Am Jur 2d, Evidence, § 436, p 495.”

Although the prosecution did offer some foundation testimony through Detective Smith, we con-elude that it was insufficient to meet the TaylorFrison requirements.

Our resolution of this issue makes it unnecessary to rule on defendant’s contention that the tape recording constituted improper rebuttal evidence. However, it is clear that the tape is merely corroborative of the prosecution’s case in chief in a general way and does not provide a clear and direct contradiction of the proffered testimony of the defense witnesses. Additionally, we disapprove of saving a tape recording until rebuttal merely for use as a final mechanical arbiter solving the credibility question between two conflicting stories. Trial courts should not admit that type of evidence on rebuttal where it is argued that the evidence is merely cumulative in nature.

Defendant also contends that the trial court committed reversible error when it allowed as rebuttal evidence Detective Smith’s testimony because the testimony concerned a collateral matter raised by the prosecution on cross-examination of a defense witness.

Over defense Counsel’s objection, the prosecutor was allowed on cross-examination to ask defendant’s wife whether there were 17 sets of used golf clubs and golf bags in the basement and garage of their home. The trial court allowed the answer to test the credibility of the witness. She testified that at the time the search warrant was executed there were only two sets.

On rebuttal, Detective Smith testified over defense counsel’s objection that he had personally observed approximately 17 sets of various brand names of golf bags and clubs at the time the search warrant was executed. In response to defense counsel’s objection, the trial court ruled that this was the proper subject of rebuttal because there had been testimony about the presence of certain equipment.

This issue is controlled by a recent decision of this Court, People v Roeder, 79 Mich App 595; 262 NW2d 872 (1977). There:

"Defendant testified at trial, and during cross-examination was asked by the prosecutor whether she had shown Mrs. Wenzel, who was her landlady, a scrapbook containing a newspaper article about the fire in her parent’s home. Defendant denied having done so. Over the objection of defendant, the prosecutor was permitted to recall Mrs. Wenzel to the stand to testify in rebuttal that defendant had, in fact, shown her a scrapbook containing such an article.” 79 Mich App at 601.

Quoting People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), this Court noted:

"Rebuttal is limited to the refutation of relevant and material evidence — hence evidence bearing on an issue properly raised in a case.
"The device of eliciting a denial of some statement not properly in the case at the time of denial will not serve to inject an issue.
"Both the statement and the veracity of the witness are then collateral matters and the cross-examiner is bound by the response. People v Hillhouse, 80 Mich 580; 45 NW 484 (1890).” 79 Mich App at 602.

This Court then concluded:

"In the case at bar, no evidence about the scrapbook was presented either in the prosecutor’s case in chief or in the defendant’s case. The entire issue of the fire at the home of defendant’s parents was a collateral matter. Defendant was being tried on charges arising out of the fire which occurred at her mobile home, not the earlier fire at her parents’ house. Whether or not defendant kept a clipping about the earlier fire has no probative value on the question whether defendant intentionally burned her trailer home. As a collateral matter, the subject of the scrapbook concerning the earlier fire is appropriate neither for substantive rebuttal nor for extrinsic impeachment of defendant’s testimony. People v Bennett, supra, People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974).” 79 Mich App at 602-603.

We do not suggest that the rebuttal testimony offered in this case might never be admissible. However, on the facts of this case — with the evidence offered only to test the credibility of the witness — it must be held that the testimony went to a collateral matter. Thus, Roeder being dispositive, it was error to permit extrinsic impeachment of the witness’s testimony. We specifically decline to rule whether the error was harmless. See the rules set forth in People v Swan, 59 Mich App 409; 229 NW2d 476 (1975).

Defendant also claims that the trial court committed reversible error by admitting the tape recording because it contained inculpatory statements made by defendant to a prosecution witness (who was equipped with a body transmitter placed there by police authorities) and no Miranda warnings were given. The United States Supreme Court decided this question adversely to defendant’s position in Hoffa v United States, 385 US 293; 87 S Ct 408; 17 L Ed 2d 374 (1966).

Defendant further argues that the examining magistrate who bound him over for trial after his first preliminary examination should have disqualified himself from presiding over the second preliminary examination. Defendant has failed to show bias or prejudice in fact on the part of the examining magistrate, as is his burden under GCR 1963, 405.1(3); therefore, his claim is without merit. People v Tillman, 59 Mich App 768; 229 NW2d 922 (1975).

Defendant also contends that the trial court showed bias and prejudice to the jury by the manner in which he questioned chief prosecution witness Teeter about defendant’s occupation. A similar contention was raised in People v John Moore, 78 Mich App 150; 259 NW2d 403 (1977). There, this Court responded:

"A careful review of the entire record shows that the trial court’s questions had the apparent intent and effect of resolving ambiguities and bringing out additional relevant testimony that potentially could have aided either the prosecution or the defense. The record does not show any interjection of the trial court’s personal views or bias. The trial court’s questions did not have the effect of unfairly influencing the jury’s verdict against the defendant and therefore there was no error. People v Redfern, 71 Mich App 452, 456; 248 NW2d 582 (1976). People v Gray, 57 Mich App 289, 295; 225 NW2d 733 (1975).” 78 Mich App at 155.

Moore is controlling here. The questioning was not lengthy. There was no suggestion from the trial court that it thought defendant’s occupation to be anything but legal. Defendant’s claim is without merit.

Defendant further argues that the prosecutor’s closing argument was reversibly erroneous because he was permitted to explain to the jury the immunity situation pertaining to the chief prosecution witness. The prosecutor’s argument was made in direct response to defense counsel’s closing argument and was not prejudicially inflammatory. There was no error. People v Pomranky, 62 Mich App 304; 233 NW2d 263 (1975), lv den 397 Mich 823 (1976).

Defendant also claims that the prosecutor failed to fulfill his obligation to reveal to the jury the full extent of the deal that the prosecutor had made with the chief prosecution witness in exchange for his testimony. The claim is wholly without merit. Throughout the trial there was a continuing effort to keep the jury aware of the fact that the chief prosecution witness had been granted immunity in exchange for his testimony.

Next, defendant contends that there was insufficient evidence to support a conviction of conspiracy to break and enter with intent to commit larceny. The jury could reasonably find that there was an agreement between defendant and the chief prosecution witness to commit the crime of breaking and entering with intent to commit larceny on the basis of the evidence presented. The overt acts taken by defendant in furtherance of that crime, coupled with his knowledge that the crime was to be committed are sufficient to form the basis of an inference of intent. See People v Atley, 392 Mich 298, 310-311; 220 NW2d 465 (1974).

Finally, defendant contends that the trial court committed reversible error in its conspiracy instructions. Defendant’s trial counsel did not request any jury instructions regarding the conspiracy charge. Neither did he indicate any objections to the trial court prior to the jury retiring for deliberations. In the absence of objection to the charge, this Court will reverse the defendant’s conviction only upon a demonstration that manifest injustice has occurred. People v Embree, 70 Mich App 382; 246 NW2d 6 (1976). There was no manifest injustice.

Reversed and remanded.

R. M. Maher, P.J., concurred.

V. J. Brennan, J.

(dissenting). I must dissent from that portion of the majority’s opinion dealing with the use of the tape recording and the introduction of Detective Smith’s testimony regarding the 17 sets of golf clubs.

The majority’s determination that the introduction of the tape recording constituted reversible error was based on three factors; (1) no proper foundation was laid, (2) the recording was so inaudible that it was rendered untrustworthy as a whole, and (3) the recording was not proper rebuttal evidence. Initially it must be noted that not only were factors one and two above not preserved by objections at trial, but they were not raised in any of the defendant’s arguments on appeal. Although this Court has limited power to raise questions sua sponte, the present case does not constitute a proper subject for such action. See Vermeylen v Knight Investment Corp, 73 Mich App 632, 642; 252 NW2d 574 (1977). As to the admissibility of the tape recording I would address only that argument raised in the briefs, to wit: whether the recording constituted improper rebuttal evidence.

Rebuttal testimony is proper where it is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party. People v Bennett, 393 Mich 445, 449; 224 NW2d 840 (1975); People v Ebejer, 66 Mich App 333, 340; 239 NW2d 604 (1976). In the present case the defendant’s daughter testified that she and Gregory Teeter planned to "set up” the defendant and placed a paper bag containing some watches in a closet of the defendant’s home. Later defendant’s wife found the bag but did not call the police since she said it did not occur to her that the contents were stolen. This testimony, taking into account the reasonable inferences flowing therefrom, would tend to negate a finding that the defendant had knowledge of the stolen merchandise. The recording indicates defendant’s knowledge of certain jewelry store burglaries and shows the defendant’s participation in receiving the stolen goods. Thus the recording refutes the testimony of two defense witnesses pertaining to the defendant’s lack of guilty knowledge and constituted proper rebuttal.

I agree with the majority that Detective Smith’s testimony relating to the 17 sets of golf clubs was erroneously admitted as it goes to a collateral, nonmaterial issue. Impeachment by the use of extrinsic evidence on a collateral matter is improper. However, in light of the overwhelming evidence against the defendant I would hold the error harmless beyond a reasonable doubt. MCL 769.26; MSA 28.1096. See People v Sherman Hall, 77 Mich App 456, 461-462; 258 NW2d 517 (1977).

I would affirm the defendant’s conviction.

       The combination of the fact that an improper foundation was used to admit the tape, regarding its inaudibility, and the fact that the tape only corroborated Detective Smith’s testimony prompts our decision in this matter.

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

       The second preliminary examination was ordered by Wayne County Circuit Judge John R. Kirwan because defendant was not represented by retained counsel of his choice at the first proceeding.

         The particular questions assigned as error are as follows:
      "THE COURT: And do you know what his occupation is?
      "THE WITNESS: Yes, I know.
      "THE COURT: What is his occupation?
      "THE WITNESS: Well, I knew he was involved in illegal things. I don’t know exactly what he did.
      "MR. BOGGS [Defense counsel]: Your Honor, I am going to object.
      "THE COURT: What did he do for a living that you knew? Is he a doctor? A dentist? A jeweler? Or what is he?
      "THE WITNESS: Oh, I knew from his kid’s mouth before that.
      "THE COURT: You don’t know exactly?
      "THE WITNESS: No, just from his kids.
      "THE COURT: All right.”

       Defendant supplied the money for the purchase of tools at K-Mart to use in a first aborted attempt. Defendant also gave the chief prosecution witness’s brother some tools to use in the second successful break-in after the K-Mart tools had been abandoned during the first attempt.

       At trial Gregory Teeter testified that he burglarized Weinstein’s Jewelry Store and after apprising defendant of the burglary, sold the stolen merchandise to defendant. Teeter then discussed with defendant a forthcoming burglary at the Fairway Jewelry Store and the defendant provided tools for the break-in. Upon successful completion of the Fairway burglary stolen merchandise was delivered to the defendant at his home. Teeter identified a watch taken from defendant’s wrist as one he had stolen from Weinstein’s. Various police officers testified as to their participation in the search of defendant’s home wherein certain items of jewelry were confiscated. These items were subsequently identified as stolen merchandise from the Weinstein and Fairway jewelry stores.


source: Caselaw Access Project

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

license: Public Domain

text:
    PEOPLE v PRICE
    Docket No. 30833.
    Submitted June 12, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Remanded in lieu of leave to appeal, 406 Mich —.
    Albert Price, Jr., was convicted of breaking and entering with intent to commit larceny in Saginaw Circuit Court, Joseph R. McDonald, J. Latent fingerprints were discovered on pieces of glass at Kucher’s Standard Station where a rock had been thrown through the window. Defendant, pursuant to court order, was detained for submission of finger and palm prints in the investigation of an unrelated offense. The affidavit which served as a basis for the order contained a misstatement of fact. While it read that defendant attempted to give the informant "the .25 caliber gun”, meaning the gun used in the offense, it should have read that defendant attempted to give the informant "a gun”. Defendant was fingerprinted and released. Comparison of these prints led to defendant’s arrest on the unrelated charge and further fingerprinting. The latest fingerprints matched the latent prints on the pieces of glass from Kucher’s station and defendant was arrested for the Kucher break-in. Defendant’s pretrial motion to suppress the fingerprint evidence as the fruit of an illegal arrest was denied. On appeal, defendant contends that the order to submit fingerprints taken pursuant to the order and their fruits must be suppressed. Held:

    The order should have been quashed and all evidence derived therefrom held inadmissible. The magistrate relied upon an erroneous statement in issuing the order for detention, fingerprinting and palm printing of the defendant and although the misrepresentation was unknown to the judge at the time he issued the order he should have quashed the order and suppressed the evidence when the existence of the erroneous statement later came to light. Probable cause should be determined by the Court of Appeals from a review of the affidavit absent the erroneous statement upon which the issuing magistrate relied. There was no probable cause for issuance of the order.

      References for Points in Headnotes
    [1, 3] 68 Am Jur 2d, Searches and Seizures §§ 42, 71.
    [2, 4] 68 Am Jur 2d, Searches and Seizures §§ 29,105.
    [3] 68 Am Jur 2d, Searches and Seizures §§ 60, 62, 64, 68.
    [4] 68 Am Jur 2d, Searches and Seizures §§ 67, 68.

      Reversed.
    1. Searches and Seizures — Probable Cause — Magistrates—Warrant Requirements — Fourth Amendment.
    The general rule concerning searches and seizures is that the Fourth Amendment requires a prior determination by a detached and disinterested magistrate that probable cause to search exists.
    2. Evidence — Fingerprint Evidence — Detention for Fingerprinting — Fourth Amendment.
    Fingerprint evidence and detentions for the sole purpose of obtaining fingerprints are included within the reach of the Fourth Amendment.
    3. Appeal and Error — Searches and Seizures — Affidavits—Erroneous Statements — Probable Cause — Magistrates.
    An erroneous statement, relied upon by a magistrate in issuing an order for the detention, fingerprinting and palm printing of a defendant, should be deleted from the affidavit and probable cause should be determined from a review of the affidavit, by the Court of Appeals, absent the erroneous statement upon which the issuing magistrate relied; the order should have been quashed and all evidence derived therefrom held inadmissible where the misrepresentation was unknown to the judge who issued the order but came to light later and where appellate review of the affidavit, absent the erroneous statement, leads to a finding of absolutely no probable cause for issuance of the order.
    4. Searches and Seizures — Probable Cause — Detention Orders— Physical Identification — Reasonable Cause Test — Legislative Action.
    The Court of Appeals will not adopt a "reasonable cause” test to permit the detention of criminal suspects for the limited purpose of obtaining physical identification evidence without probable cause in the traditional sense in the absence of legislation or rule of the Michigan Supreme Court.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczma

      rek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.

      Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg,  JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   D. E. Holbrook, Jr., P.J.

Defendant was convicted by a jury of breaking and entering with intent to commit larceny contrary to MCL 750.110; MSA 28.305. Thereafter sentenced to a prison term of 2-1/2 to 10 years, defendant appeals as of right.

On August 18, 1975, at approximately 3 a.m., Kucher’s Standard Service was broken into. A rock had been thrown through the front window removing sufficient glass to provide an opening sufficient to permit entry by a person. Upon investigation that afternoon, the police discovered latent fingerprints on several pieces of glass found lying in the parking lot and one from the window frame. No other areas were fingerprinted and no fingerprints were matched to any suspects.

Eleven days later defendant, pursuant to court order, was detained for the purpose of submitting fingerprints and palmprints in the investigation of an unrelated offense. The affidavit, however, which served as the basis for the order contained a misstatement of fact. While it read that defendant attempted to give the informant "the .25 caliber gun”, meaning the gun used in the offense, it should have read that defendant attempted to give the informant "a gun”.

Pursuant to the order aforesaid the defendant, whose fingerprints had not previously been on file with any police agency, was taken from his home to the police station, fingerprinted and immediately released. Comparison of these prints led to defendant’s arrest on the unrelated charge and further fingerprinting. The latest fingerprints were subsequently matched with nine of 22 latent prints discovered as a result of the Kucher break-in. Prints from defendant’s left hand were found on both sides of the pieces examined. Defendant was then arrested for the Kucher break-in.

Defendant’s pretrial motion to suppress the fingerprint evidence as the fruit of an illegal arrest was denied and trial commenced. While defendant raises three issues on appeal one is dispositive and mandates reversal.

Defendant contends that the order to submit fingerprints was issued without probable cause, and that the fingerprints taken pursuant to the order and their fruits must be suppressed as violative of the US Const, Am IV and the Michigan Const 1963, art 1, § 11. The general rule concerning searches and seizures is that the Fourth Amendment requires a prior determination by a detached and disinterested magistrate that probable cause to search exists. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). Fingerprint evidence and detentions for the sole purpose of obtaining fingerprints are included within the reach of the Fourth Amendment. Davis v Mississippi, 394 US 721; 89 S Ct 1394; 22 L Ed 2d 676 (1969).

The order issued was based upon an affidavit which contained the following statement:

"That Juanita Clark stated that Albert Price, Jr. attempted to give her the .25 Caliber gun on August 22, 1975 at Claude’s Bar in Saginaw, Michigan and that she did not take it.” (Emphasis supplied.)

During the course of the hearing on defendant’s pretrial motion to suppress affiant acknowledged this statement to be in error. Rather than "the .25 caliber gun” the statement should have read "a gun”. Since the statement was erroneous it must be deleted from the affidavit and our review of probable cause must be determined from review of the affidavit absent the erroneous statement upon which the issuing magistrate relied. People v Broilo, 58 Mich App 547; 228 NW2d 456 (1975), People v Staffhey, 70 Mich App 737; 246 NW2d 364 (1976).

Having reviewed the affidavit, absent the erroneous statement, we find absolutely no probable cause for the issuance of the order for the detaining, fingerprinting and palmprinting of the defendant. Analogous to Broilo, supra, the misrepresentation was unknown to the judge who issued the order, but came to light later, and the order should have been quashed and all evidence derived therefrom held inadmissible.

While appellee asks us to adopt a "reasonable cause” test to permit the detention of criminal suspects for the limited purpose of obtaining physical identification evidence in the absence of probable cause in the traditional sense we refuse to so do absent legislation or rule of the Michigan Supreme Court. People v Marshall, 69 Mich App 288; 244 NW2d 451 (1976). It is therefore unnecessary for us to decide whether such "reasonable cause” exists in the instant case with the erroneous statement deleted.

Reversed.


author: D. E. Holbrook, J. M. F. Cavanagh, P.J.

text:
    PEOPLE v BOOTH
    Docket No. 31080.
    Submitted March 7, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Leave to appeal denied, 406 Mich —.
    Terry L. Booth was convicted, on his plea of guilty but mentally ill, of criminal sexual conduct in the first degree in the Alpena Circuit Court, Philip J. Glennie, J. Defendant appeals, claiming the trial judge erred when he relied on the preliminary examination transcript in order to establish a factual basis for the defendant’s plea. Held:

    A preliminary examination transcript may not be used as a means to establish the factual basis for a guilty or guilty but mentally ill plea but may be used in order to establish a factual basis in the case of a nolo contendere plea. The case is remanded for further hearing wherein the prosecutor shall be given an opportunity to establish the factual basis. If he is able to do so and there is no contrary evidence, the conviction shall be affirmed. If he is unable to establish a factual basis, the conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion.
    Remanded for further proceedings.
    M. F. Cavanagh, J., dissented and would order the plea vacated and the matter remanded for trial.
    Opinion of the Court
    1. Criminal Law — Preliminary Examination Transcript — Plea of Guilty — Factual Basis — Nolo Contendere Pleas.
    A preliminary examination transcript may not be used as a means of establishing the factual basis for a guilty plea but may be used in order to establish a factual basis in the case of a nolo contendere plea.
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 46-48, 440 et seq., 458, 497, 501, 502, 508.
    [3] 21 Am Jur 2d, Criminal Law § 459.

      2. Criminal Law — Preliminary Examination Transcript — Plea op Guilty but Mentally III — Factual Basis.
    A preliminary examination transcript may not be used as a means of establishing the factual basis for a guilty but mentally ill plea.
    Dissent by M. F. Cavanagh, P. J.
    3. Criminal Law — Guilty Pleas — Factual Basis — Adversarial Trials.

      The factual basis in any guilty plea, mentally ill or not, must come from the defendant; where the defendant himself cannot provide this factual basis, the only other basis for conviction recognized by our system is a full adversarial trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Theodore O. Johnson, Prosecuting Attorney, and Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people.

      Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook and Beasley, JJ.
   D. E. Holbrook, J.

On July 26, 1976, defendant was convicted, on his plea of guilty but mentally ill, of criminal sexual conduct in the first degree, contrary to MCL 750.520b; MSA 28.788(2). The plea was the result of a plea bargain whereby defendant pled "guilty but mentally ill” to Count I of criminal sexual conduct in the first degree, and a second count of criminal sexual conduct in the first degree was dismissed. On August 6, 1976, defendant was sentenced to life in prison. Defendant appeals as of right.

The defendant raises eight issues on appeal, only one of which merits discussion. The defendant asserts that the trial judge erred when he relied on the preliminary examination transcript in order to establish a factual basis for defendant’s plea of guilty but mentally ill.

The issue of whether or not a trial judge should be able to use a preliminary examination transcript to establish a factual basis for a guilty but mentally ill plea is one of first impression in this jurisdiction. However, there is considerable case law discussing the use of a preliminary examination transcript in order to establish the factual basis for guilty pleas and for nolo contendere pleas.

The use of the preliminary examination transcript as a means of establishing the factual basis of a guilty plea has been prohibited by the Michigan courts. People v Schneff, 392 Mich 15, 23; 219 NW2d 47 (1974), People v Taylor, 387 Mich 209, 225; 195 NW2d 856 (1972), and People v Zuniga, 56 Mich App 231, 234; 223 NW2d 652 (1974). In Schneff, supra, at 25-26, the Court states its reasons for prohibiting the use of a preliminary examination transcript as follows:

"It is our opinion that MCLA 768.35; MSA 28.1058 requires the trial court to derive the factual basis for a guilty plea directly from defendant or through testimony developed at a full adversarial trial. This procedure also provides the best method for assurance that a defendant understands the nature of the charge to which he is pleading. A complete recitation of facts from the defendant also provides for increased appellate certainty when reviewing challenged guilty pleas.
"We find therefore that the trial judge erred in considering the preliminary examination testimony when accepting defendant’s guilty plea.” (Footnotes omitted.)

In a footnote to the above quote we find the following:

"We note that defendant consented to the trial court’s examination of the preliminary examination transcript. The result is not, however, changed by this consent. MCLA 768.35; MSA 28.1058 places the 'duty’ on the trial court to insure that the plea is freely and knowingly proffered by the defendant. The procedures required in the plea taking process should be strictly complied with and may not be waived by the defendant. Cf. People v McMiller, 389 Mich 425, 432-434; 208 NW2d 451 (1973).” Schneff, supra, at 26, n 3.

Thus, a judge may not consider the preliminary examination transcript to establish a factual basis for a defendant’s guilty plea.

There is an exception to the rule prohibiting the use of a preliminary examination transcript in order to establish a factual basis in the case of a nolo contendere plea. People v Chilton, 394 Mich 34; 228 NW2d 210 (1975), People v Conville, 55 Mich App 251, 253-254; 222 NW2d 312 (1974), People v Gonzales, 70 Mich App 319, 324; 245 NW2d 734 (1976), lv den 402 Mich 815 (1977), People v Belanger, 73 Mich App 438, 455; 252 NW2d 472 (1977).

The prosecutor urges this Court to allow the use of a preliminary examination transcript to establish a factual basis for a guilty but mentally ill plea for the same reason that the preliminary examination transcript is allowed in a nolo contendere plea. We must decline. The people have not shown us a case which allows this. We hold that the nolo plea rule is not applicable to a guilty but mentally ill plea.

In the event that there is not a sufficient showing of a factual basis to disclose defendant’s participation in a crime, the trial judge may hold a hearing similar to the hearing on the issue of defendant’s mental illness, MCL 768.36; MSA 28.1059. At this hearing either party may present evidence to satisfy the judge of the factual basis for the plea. Such a hearing would provide a complete recitation of the facts for appellate review.

We remand to the trial court for further hearing. On remand the prosecutor shall be given an opportunity to establish the factual basis. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish a factual basis, the judgment of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975), People v Stewart, 69 Mich App 528, 532; 245 NW2d 121 (1976).

Remanded for further proceedings in accord with this opinion.

Beasley, J., concurred.

M. F. Cavanagh, P.J.

(dissenting). I must disagree with the majority disposition of this guilty plea. A reading of People v Schneff, 392 Mich 15, 25-26; 219 NW2d 47, 52-53 (1974), MCL 768.35; MSA 28.1058, and GCR 1963, 785.7(3), persuades me that the factual basis in any guilty plea, mentally ill or not, must come from the defendant. If the defendant himself cannot provide it, the only other basis for conviction recognized by our system is a full adversarial trial. Schneff, supra. For the reasons expressed in my opinion in People v Long, 86 Mich App 676; 273 NW2d 519 (1978), I would order this plea vacated and remand the matter for trial.


author: V. J. Brennan, J. M. F. Cavanagh, J.

text:
    PEOPLE v NELSON
    Docket No. 31236.
    Submitted February 15, 1978, at Detroit.
    Decided November 6, 1978.
    Leave to appeal applied for.
    Christopher Nelson was convicted of armed robbery in Recorder’s Court of Detroit, John Patrick O’Brien, J. Defendant appeals claiming that references to his economic and employment status by the prosecuting attorney were error requiring reversal. Held:

    The prosecutor’s comments on defendant’s impecuniousness were error, but the error does not mandate reversal because the comment was brief and the evidence against the defendant was overwhelming.
    Affirmed.
    M. F. Cavanagh, J., dissented. He would hold that the error requires reversal because the prosecutor’s questions and references were irrelevant and served no purpose other than to inject impermissible prejudicial inferences into the trial.
    Opinion op the Court
    1. Appeal and Error — Criminal Law — Prosecutor’s Comments— Impecuniousness — Overwhelming Evidence — Harmless Error.
    Error resulting from a prosecutor’s comment on a defendant’s impecuniousness does not mandate reversal under the harmless error test where the comment was brief and the evidence against the defendant was overwhelming (MCL 769.26; MSA 28.1096).
    References for Points in Headnotes
    [1, 2] 5 Am Jur 2d, Appeal and Error § 778.
    58 Am Jur 2d, New Trial §§ 31, 57, 60, 138.
    75 Am Jur 2d, Trial §§ 293-295.
    Counsel’s reference in criminal case to wealth, poverty, or financial status of defendant or victim as grounds for mistrial, new trial, or reversal. 36 ALR3d 839.

      Dissent by M. F. Cavanagh, J.
    2. Appeal and Error — Criminal Law — Prosecutor’s Comments— Defendant’s Economic and Employment Status — Irrelevant References — Prejudice—Trial Objection.

      Prosecutorial references to a defendant’s economic and employment status in cross-examination and closing argument constitute prejudicial error requiring reversal where the questions and references were irrelevant and served no purpose other than to inject impermissible prejudicial inferences into the trial; the Court of Appeals should reverse convictions in cases where interjection of the subject of a defendant’s unemployment is obviously an expedient, where reiteration of the matter in closing argument makes clear it was not an inadvertent slip, and where the defendant has by some form of objection raised the issue at trial.

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

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

The defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, and was convicted after a jury trial of one count. The defendant was sentenced to 15 to 30 years in prison and appeals as of right. Three issues are raised on appeal, only one of which merits discussion.

The facts surrounding the defendant’s claim of prosecutorial error are set forth in the dissenting opinion.

Although we feel that the prosecutor’s comment on the defendant’s impecuniousness in the present case constituted error, we do not believe that such error mandates reversal upon application of the harmless error test. MCL 769.26; MSA 28.1096. See People v Ronald Green, 74 Mich App 601, 604; 254 NW2d 788 (1977).

At trial the defendant did not question the fact that the robbery took place but raised the defense of alibi. Three eyewitnesses were introduced who testified that they picked the defendant out of a lineup and then positively identified the defendant at trial as the robber. In addition no alibi witnesses testified in regard to the robbery charge upon which the defendant was convicted.

The reference to the defendant’s impecuniousness was brief and was not the subject of a prolonged effort by the prosecutor. Taking into account the brevity of the comment and the overwhelming evidence against the defendant, we hold the error harmless and affirm the defendant’s conviction.

Affirmed.

D. E. Holbrook, P.J., concurred.

M. F. Cavanagh, J.

(dissenting). Following a jury trial, defendant was convicted of armed robbery, MCL 750.529; MSA 28.797. He appeals by right raising three issues, only one of which merits discussion.

Defendant claims that references to his economic and employment status by the prosecuting attorney were error requiring reversal. I agree. The questions and references were irrelevant. The prosecutor suggests on appeal that the questions were designed to establish defendant’s whereabouts immediately before the robbery. If this were so, why was it necessary to inquire about the defendant’s employment status during a three-month period? An examination of the record reveals that the questions on employment were a digression from, not a development of cross-examination dealing with defendant’s whereabouts the day of the robbery. There was no reason to ask the witness — twice—whether defendant was working at that time. This served no purpose other than to inject impermissible prejudicial inferences into the trial. See People v Henderson, 80 Mich App 477; 264 NW2d 22 (1978), lv gtd, 403 Mich 825 (1978).

While the error complained of here is less glaring than that oppugned in People v Johnson, 393 Mich 488; 227 NW2d 523 (1975), and People v Hammond, 394 Mich 627; 232 NW2d 174 (1975), if this Court is to effectuate the rule of Johnson and Hammond, it has no choice but to reverse convictions in cases like this one where the proffered rationale for interjection of the subject of the defendant’s unemployment is obviously an expedient, where reiteration of the matter in closing argument makes clear it was not an inadvertent slip, and where the defendant has by some form of objection raised the issue at trial.

Accordingly, I would reverse defendant’s conviction and remand for a new trial.

       Here the Court in applying the second prong of the harmless error test cited the "lengthy jury deliberations and the relative dearth of direct evidence implicating the defendant” and was unable to hold harmless the prosecutorial misconduct which included comment on defendant’s lack of employment.

       In cross-examining defendant’s girlfriend, an alibi witness, the prosecutor twice asked whether defendant was unemployed during the period when the robberies occurred:
      "Q. The period of time through the month of March and June, did the Defendant visit you a lot at home?
      "A. Yes.
      "Q. He wasn’t working, was he?
      "A. No.
      "Q. So he had a lot of time?
      "A. Right, he spent a lot of time around my house.
      "Q. Okay. But you know he had no job?
      "A. No.
      "Q. In other words, then shortly before — you know the Defendant is accused of a robbery on March 12th?
      "A. I didn’t hear you.
      "Q. I said you know the Defendant is accused of a robbery on March 12th? You know that?
      "A. Yes.”
      There was no objection by defense counsel. In closing argument, the prosecutor brought the matter up again and this time there was an objection:
      "I ask you again to focus your attention to minutes before the crime or minutes after as to where he was — I don’t care about that, that doesn’t mean anything. She indicated that he was with her all the time and he didn’t have a job, he had all of this free time on his hands, I wonder what his source of income was—
      "MR. FEINBERG: Objection, your Honor, that was never gone into.”


author: Danhof, C.J. V. J. Brennan, J.

text:
    PEOPLE v LANGSTON
    Docket No. 31327.
    Submitted June 5, 1978, at Grand Rapids.
    Decided November 6, 1978.
    Edwin L. Langston was convicted of first-degree felony murder, Van Burén Circuit Court, Meyer Warshawsky, J. The killing occurred during the commission of an armed robbery in which the defendant was an accomplice of the person who shot the victim. Defendant appeals, alleging error in the trial court’s instructions to the jury. Held:

    In order to be liable for murder an accomplice to a robbery must have acted with the intent to kill or in reckless disregard of a known and high degree of risk that death or serious bodily harm might occur. In this case the trial court’s instruction to the jury failed to inform the jury that malice entails a more than foreseeable risk of death and is based on the defendant’s subjective awareness of the" risks and consequences of his acts. The instruction was not sufficient to support a conviction of first-degree murder.
    Reversed and remanded.
    V. J. Brennan, J., dissented. He would hold that although the existence of malice is a question for the jury, the element of malice sufficient to elevate a killing to felony murder is established by finding that the killing occurred in the perpetration of one of the felonies enumerated in the first-degree murder statute.

      References for Points in Headnotes
    [1] 52 Am Jur 2d, Malice §§ 1-7.
    40 Am Jur 2d, Homicide §§ 41-43, 50, 51, 71-79, 227, 247, 454, 472, 498-500.
    Inference of malice or intent to kill where killing is by blow without weapon. 22 ALR2d 854.
    Presumption of deliberation or premeditation from the fact of killing. 86 ALR2d 656.
    Presumption of deliberation or premeditation from the circumstances attending the killing. 96 ALR3d 1435.
    What felonies are inherently or forseeably dangerous to human life for purpose of felony — murder doctrine. 50 ALR3d 397.
    [2-4] 40 Am Jur 2d, Homicide §§ 34-40.
    [4] What constitutes "imminently dangerous” act within homicide statute. 67 ALR3d 900.

      Opinion of the Court
    1. Homicide — Murder—Malice—Inference by Jury.
    Malice, under Michigan common law, is a necessary element of murder which may be inferred by a jury from the commission of an underlying felony but may not be imputed to a defendant by the court.
    2. Homicide — Felony Murder — Accomplice Liability — Malice.
    The reasoning which supports the rule that Michigan does not have a felony-murder doctrine leads to the conclusion that an accomplice to a robbery may not be held liable for a murder committed in the course of that robbery unless he acted with malice.
    3. Homicide — Felony Murder — Accomplice Liability.
    An accomplice to a robbery, in order to be held liable for a murder committed in the course of that robbery, must have acted with the intent to kill or in reckless disregard of a known and high degree of risk that death or serious bodily harm might occur.
    4. Homicide — Instructions to Jury — Murder—Malice.
    A trial court’s instructions to a jury that a murder must have been found to be "fairly within the scope of a criminal enterprise and it might have been expected to happen in the course of committing this robbery with a pistol” is not sufficient to support a conviction of an accomplice to a robbery of first-degree murder because it fails to inform the jury that malice entails a more than foreseeable risk of death and is based on a defendant’s subjective awareness of the risks and consequences of his acts.
    Dissent by V. J. Brennan, J.
    5. Homicide — Murder—Felony Murder — Malice—Statutes.

      The existence of malice, in a trial for murder, is a question for the jury; however, the element of malice sufficient to elevate a killing to felony murder is established by finding that the killing occurred in the perpetration of one of the felonies enumerated in the ffrst-degree murder statute (MCL 750.316; MSA 28.548).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ward S. Hamlin, Jr., Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

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

   Danhof, C.J.

Defendant was convicted after a jury trial of first-degree felony murder under MCL 750.316; MSA 28.548, and sentenced to mandatory life imprisonment. Claiming several errors in the proceedings below, he appeals as of right.

Defendant mainly objects to the trial court’s instructions on mens rea. By our disposition of this issue, we eliminate the need to discuss other alleged grounds for reversal.

At trial, the prosecution claimed defendant had intentionally aided Ronald Wilson in the armed robbery of a store, and that Ronald Wilson, in committing that robbery, shot and killed Arretta Lou Ingraham. The people proceeded on a felony-murder theory that any killing committed in the course of a robbery is first-degree murder under MCL 750.316; MSA 28.548, and that an accomplice to the underlying felony is liable as a principal for the murder. Citing People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976), defendant argues that MCL 750.316; MSA 28.548 is not a true felony-murder statute as it only applies after murder has been found, and then only to establish the degree of the offense. Under Michigan common law, malice is still an independent, necessary element of murder which may be inferred by the jury from the commission of an underlying felony, but may not be imputed by the court.

We agree with defendant and the panel in People v Fountain, supra, that there is no felony-murder doctrine in Michigan. The statutory and common law foundations for this ruling are well set out in the Fountain opinion. We add here that the ruling also is in line with the basic premise that a criminal state of mind is the essence of crime. See LaFave & Scott, Criminal Law, § 65, pp 515-17. In addition, by requiring an independent finding of malice, the rule does not substantially thwart the goal of deterring crime, as the punishment of negligent conduct only has a marginal deterrent effect, nor does it overburden the state in prosecuting criminals, as malice may often be inferred from the nature of the underlying felony and the circumstances surrounding its commission. People v Fountain, .supra.

From this view of felony murder it follows that an accomplice to robbery cannot be liable for a murder committed in the course of that robbery unless he acted with malice. While a majority of state courts hold an accomplice liable for all the foreseeable consequences of the criminal scheme he advances, LaFave & Scott, supra, we find that accomplice liability predicated on negligence, even when the crime involves a more serious state of mind, is as obnoxious as felony murder to the basic precepts and purposes of our criminal law. Logically, we cannot accept the former doctrine while rejecting the latter. Indeed, as Professors LaFave and Scott point out, the negligence standard for accomplice liability only makes sense in the context of felony murder — when a principal can be convicted for homicide without any showing of recklessness or intent, it is no less objectionable to hold the accomplice liable without showing he acted with a guilty mind. We find that it makes little sense to convict either the principal or accomplice under such circumstances.

Michigan case law also provides some support for this conclusion. Thus, the Michigan Supreme Court in People v Knapp, 26 Mich 112 (1872), broadly held that an accomplice is liable for any acts fairly within the common enterprise that might have been expected to happen. Later, it narrowed that decision in People v Foley, 59 Mich 553; 26 NW 699 (1886), by holding that an accomplice to an assault cannot be found liable for a robbery that was within the responsibility of all the assailants, but not shown as a matter of fact to be within the defendant’s specific intent. The inference is that foreseeability is a necessary but not a sufficient element of accomplice liability for unintended consequences. See also People v Koharski, 177 Mich 194; 142 NW 1097 (1913); People v Belton, 160 Mich 416; 125 NW 386 (1910); People v Cleveland, 107 Mich 367; 65 NW 216 (1895).

We hold, therefore, that to be liable for murder an accomplice to robbery must have acted with the intent to kill or in reckless disregard of a known and high degree of risk that death or serious bodily harm might occur.

In the instant case, the only instruction that indicated a need to find some mens rea beyond the intent to aid and abet robbery was the judge’s charge that the murder must have been found to be "fairly within the scope of a criminal enterprise and it might have been expected to happen in the course of committing this robbery with a pistol”. That charge does not satisfy the test we have laid out in this opinion as it fails to inform the jury that malice entails a more than foreseeable risk of death and is based on defendant’s subjective awareness of the risks and consequences of his acts. LaFave & Scott, supra, §71, p 554; CJI, 16:2:03 and commentary, pp 16-90-16-99. Although the record contains facts from which an inference of malice might have been drawn (i.e., aiding an armed robbery itself creates a risk of death), the issue must be retried and put before the jury. People v Fountain, supra.

Reversed and remanded for a new trial.

R. H. Campbell, J., concurred.

V. J. Brennan, J.

(dissenting). I must dissent from the majority’s opinion.

The controversy at bar focuses on the adequacy of the trial court’s instruction concerning the intent element of the crime of aiding and abetting felony murder. In regard to the aiding and abetting theory, the jury was told that if they found that defendant helped plan the robbery with intent to assist in the robbery, then they could find aiding and abetting. The trial court then went on to list the elements of the crime of aiding and abetting felony murder as: (1) defendant intended to commit robbery when he aided the principal, (2) defendant did in fact aid or abet or assist in the robbery, (3) murder occurred as a result of the robbery, (4) the murder was "fairly within the scope of [the] criminal enterprise and it might have been expected to happen in the course of committing this robbery with a pistol”. The trial court then explained that the jury was to distinguish between first- and second-degree murder and defined first-degree murder as "the killing occurred as a result of the crime of robbery and that the defendant was at the time engaged in aiding or abetting another, * * * in the commission of that crime”.

The majority holds that the instruction constitutes reversible error in that it eliminated the element of malice from the jury’s consideration.

The instruction when read as a whole indicates that if it is found that the killing occurred within the scope of the criminal enterprise of robbery with a pistol, and if the defendant aided or abetted in that criminal enterprise, then the defendant could be found guilty of felony murder. Although I agree that the existence of malice is a jury question, the element of malice sufficient to elevate the killing to felony murder is established by finding that the killing occurred in the perpetration of one of the enumerated felonies. People v Till, 80 Mich App 16, 28-29; 263 NW2d 586 (1977). In this regard I would hold the instructions in the present case not to be erroneous.

I believe that my position comports with the legislative policy underlying the felony murder rule which is "to discourage those who would commit, or attempt to commit, felonies inherently dangerous to human life by imposing a greater penalty than would otherwise obtain for deaths attributable to their acts in furtherance of the felonious purpose”. People v Till, supra, 36.

I would affirm the defendant’s conviction.


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

text:
    ROMULUS CITY TREASURER v WAYNE COUNTY DRAIN COMMISSIONER
    Docket Nos. 31365, 77-24.
    Submitted December 13, 1977, at Detroit.
    Decided November 6, 1978.
    Leave to appeal applied for.
    John B. Lewkowicz, Treasurer for the City of Romulus, and treasurers of other municipal corporations in Wayne County and W. Curt Boiler and Paul A. Kraft, as individual taxpayers, for themselves and others similarly situated, commenced an action against Charles N. Youngblood, Wayne County Drain Commissioner, Wayne County Board of Commissioners, County of Wayne and Wayne County Treasurer. In count I the treasurers sought declaratory and temporary and permanent injunctive relief from 1975 and 1976 special drain assessments. In count II the named taxpayers on behalf of all taxpayers living in communities which were assessed either specially or at large requested a refund of all illegal assessments since 1956.
    Defendants’ motion for accelerated judgment was granted as to count II, on the basis that the Tax Tribunal had exclusive jurisdiction over tax refund claims and, in any event, that the claims were barred by the applicable statute of limitations; the motion was denied as to count I, Wayne Circuit Court, John R. Kirwan, J.
    The defendants appeal, by leave granted, the denial of their motion for accelerated judgment on count I. The plaintiffs appeal the grant of accelerated judgment on count II. The cases were consolidated for appeal. Held:

    1. The trial court correctly ruled that the plaintiffs-treasurers had standing to sue because it is settled law in Michigan that a motion to dismiss should not be granted where a plantiffs standing to sue is based upon a disputed question of fact. This continues to be the law when a dismissal is denominated an accelerated judgment.

      References for Points in Headnotes
    [1] 59 Am Jur 2d, Parties §§ 26-31, 244, 254, 255.
    [2] 56 Am Jur 2d, Municipal Corporations, Counties, and Other
    Political Subdivisions §§ 283, 847-849.
    57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 108, 168 et seq.

    [3, 4, 8] 51 Am Jur 2d, Limitation of Actions §§ 400, 401, 417-420.
    56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 680 et seq.

    [5] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 846 et seq.

    [7] 52 Am Jur 2d, Mandamus § 39 et seq.

      2. The individual taxpayers must establish extraordinary circumstances indicating the existence of fraudulent conduct on the part of the county drain commissioner in order to maintain their action. If they can prove their allegation of fraud and fraudulent concealment, they would be exempt from the applicable 30-day statute of limitation for commencing an action for refund of taxes paid. Such a determination is a decision of fact which should await a full trial on the merits.
    3. It is appropriate that this matter be decided in the circuit court since the Tax Tribunal has not been given general equitable powers.
    Affirmed in part and reversed in part.
    Bronson, J., dissented. He would hold:
    1. The plaintiffs-treasurers have no standing to seek review of the defendants’ tax assessments.
    2. The individual taxpayers are barred from bringing the action because of the running of the 30-day statute of limitations, which applies even though the assessment complained of may have been illegal or void ab initio.

    He would reverse as to count I and affirm as to count II.
    Opinion op the Court
    1. Judgment — -Accelerated Judgment- — Motion to Dismiss — Standing — Court Rules.
    A defendant’s motion to dismiss based on a plaintiffs lack of standing to bring suit should not be granted where the plaintiffs standing to sue is based upon a disputed question of fact; this rule is still applicable when such a dismissal is denominated an accelerated judgment (GCR 1963, 116).
    2. Municipal Corporations — Drain Tax Assessments — County Drain Commissioner — Standing to Sue — Exceptionally Extraordinary Circumstances.
    Treasurers of municipalities within a county should not, without a full evidentiary trial, be denied standing to seek relief from drain tax assessments allegedly improperly assessed and levied by the county drain commissioner where the treasurers have alleged "exceptionally extraordinary” circumstances as required by Supreme Court case precedent.

      3. Limitation of Actions — Drain Assessments — Statute of Limitations — Tolling of Statute — Allegations of Illegality.
    Mere allegations of illegality in the special assessment of taxes for drain construction will not suffice to toll the running of the statute of limitations in actions to recover the assessments paid.
    4. Taxation — Special Assessments — Limitation of Actions — Taxpayers’ Suit — Fraud—Burden of Proof — Statutes.
    A taxpayers’ suit against a county drain commissioner, brought for the refund of special assessments after the running of the applicable 30-day limitations period in which the plaintiffs’ complaint alleged fraud and fraudulent concealment, is not barred by the statute of limitations where the plaintiffs can carry their burden of demonstrating fraudulent conduct on the part of the defendant; however, where the plaintiffs fail to show fraud on the part of the defendant, the action should be dismissed as untimely (MCL 280.265, 600.5855; MSA 11.1265, 27A.5855).
    5. Taxation — Injunctive Relief — Assessments—Tax Tribunal — Exclusive Jurisdiction — Circuit Court — Statutes.
    ■ It is appropriate that actions seeking injunctive relief from tax assessments be decided in circuit court despite the Tax Tribunal’s purported exclusive jurisdiction over tax matters, because the Tax Tribunal has not been given general equitable powers (MCL 205.701 et seq.; MSA 7.650[1] et seq.).

    Dissent by Bronson, J.
    6. Taxation — Municipal Corporations — Municipal Treasurers— Standing — Special Drain Assessment — Duty to Remit Taxes Collected — Statutes.

      The treasurers of the municipalities within a county have no standing to seek review of special drain assessment by the county drain commissioner because the treasurers have a statutory duty to remit collected taxes to the county treasurer and have no discretionary authority as to the payment of collected taxes (MCL 211.54, 280.265; MSA 7.98, 11.1265).

    7. Mandamus — Extraordinary Writs — Discretion of Court.

      Mandamus is a discretionary writ and a court, in its discretion, may refuse to enforce a ministerial duty in extraordinary circumstances.

      8. Taxation — Limitation of Actions — Drain Taxes — Action for Refund — Illegal Assessment — Statutes.

      There is a 30-day limitation period for commencing an action to recover drain taxes which have been paid; this limitation period applies even though an assessment complained of may have been illegal or void ab initio (MCL 280.265; MSA 11.1265).

      Harry S. Ellman, for plaintiffs.

      Aloysius J. Suchy, Corporation Counsel, and John K. Godre, Assistant Corporation Counsel, for defendant.
    Before: N. J. Kaufman, P.J., and Bronson and D. E. Holbrook, JJ.
   D. E. Holbrook, J.

Our brother, Judge Bronson, clearly sets out the facts of the instant case in his dissent. The plaintiffs’ standing to raise their allegations of fraud in the court below must be upheld. It is clear that there is no authority directly on point in this matter and our disagreement with the dissent on this issue is merely a disagreement regarding the extent of irregularity implied in the plaintiffs’ allegations. The dissent is certainly correct when it notes that the treasurers’ statutory duties with regard to the collection of drain assessments are merely ministerial. MCL 211.43; MSA 7.84. In addition, the treasurers are indemnified by the county against any action arising out of irregularity in the collection of drain taxes. MCL 280.265; MSA 11.1265.

The line of cases including The County Treasurer of Berrien v Bunbury, 45 Mich 79; 7 NW 704 (1881), Scholtz v Smith, 119 Mich 634; 78 NW 668 (1899), and Mayor of City of Dearborn v Dearborn Retirement Board of Trustees, 315 Mich 18; 23 NW2d 186 (1946), does suggest that the treasurers’ standing in this case may not be "commensurate with their public trusts and duties”. Nevertheless, we hold that careful attention must be accorded the plaintiffs’ allegations of fraudulent conduct, thereby placing greater emphasis and a broader interpretation upon the phrase "public trust” as used in Bunbury, Scholtz, and Dearborn Retirement Board, supra. Nothing in these cases dictates that standing shall only lie to fulfill "discretionary” duties of public officers and we hold that "public trust” includes the treasurers’ duties as fiduciaries in the management and application of funds. 62 CJS, Municipal Corporations, § 697, pp 1392-1395.

The treasurers-plaintiffs’ complaint basically alleges that defendant Wayne County Drain Commission has fraudulently utilized tax funds which are statutorily earmarked for drain construction work to cover administrative expenses; by statute, such administrative expenses should come from the defendant county’s general fund. MCL 280.196; MSA 11.1196. This statute permits the county drain commissioner to assess landowners benefit-ted by drain maintenance and repair costs up to $800 per mile, without petition, provided the repairs have been performed within the previous two years.

The plaintiffs-treasurers’ complaint alleged that the work for which the contested taxes were assessed was not performed within the last two years; that the assessments exceeded the statutory maximum and were not proportioned properly; that proper notice was not given; and finally, that the special assessments were not being used to reimburse the Drain Revolving Fund at all, but rather were used to cover administrative expenses. In Drain Commissioner of the County of Huron v Supervisor of the Twp of Chandler, 90 Mich 278, 279; 51 NW 282 (1892), the Court refused to issue a writ of mandamus to compel a township supervisor to assess a drain tax. According to the Court: "The proceedings being so defective that no legal drain could be laid out, the supervisor was not in the wrong in refusing to assess the tax.” Similarly, such a writ was denied in The Board of Supervisors of Cheboygan County v The Supervisor of the Twp of Mentor, 94 Mich 386, 388; 54 NW 169 (1892), on the grounds that it:

"[CJannot be invoked to accomplish a confessedly illegal purpose, even though the officer against whom it is invoked is charged with an express duty under the statute.
"The circumstances must be exceptionally extraordinary which will justify a supervisor in refusing to comply with his statutory duty, but we think the respondents in this case were justified in so doing.”

It is settled law in Michigan that a motion to dismiss should not be granted where the plaintiffs standing to sue is based upon a disputed question of fact. Watts Construction Co v Joint Clutch & Gear Service, Inc, 325 Mich 548; 38 NW2d 919 (1949). This continues to be the law under GCR 1963, 116, when such a dismissal is denominated an accelerated judgment, since Rule 116 was not intended to be a "radical departure from past practice”. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 336.

In the instant case such "exceptionally extraordinary” circumstances as required by the Supreme Court in Huron County Drain Commissioner and Cheboygan County Supervisors are alleged and this Court will not deny the plaintiffs-treasurers’ standing to seek relief, even affirmative relief, without a full evidentiary trial. In much the same manner, the individual taxpayers’ standing in the instant case depends upon whether they can establish extraordinary circumstances indicating the existence of fraudulent conduct on the part of the county drain commission. The Supreme Court cases of Twp of Norton v Cockerill, 265 Mich 405; 251 NW 543 (1933), and Brooks v County of Oakland, 268 Mich 637; 256 NW 576 (1934), clearly indicate that mere allegations of illegality will not suffice to toll the running of the statute of limitations. Neither of these opinions had occasion to consider the impact of allegations of fraudulent conduct.

Under MCL 600.5855; MSA 27A.5855, the taxpayers’ complaint in the instant suit alleged fraud and fraudulent concealment, which, if proven, would exempt the plaintiffs-taxpayers from the 30-day statute of limitations under MCL 280.265; MSA 11.1265. Whether or not MCL 600.5855 applies to save the individual plaintiffs’ actions in the instant case depends upon whether plaintiffs sustain their allegations of fraud at trial. If they should carry the burden of demonstrating fraudulent conduct on the part of the defendants, the plaintiffs’ action is timely. If the plaintiffs fail to show fraud on the part of the defendants, their action must be dismissed as not timely under MCL 280.265. Such a determination is clearly a decision of fact which should await a full trial on the merits. Cf. Corley v Logan, 35 Mich App 199; 192 NW2d 319 (1971).

We note that since the Tax Tribunal has not been given general equitable powers, it is appropriate that this matter be decided in circuit court. Despite the Tax Tribunal’s purported exclusive jurisdiction, MCL 205.701, et seq.; MSA 7.650(1), et seq., where relief is sought which only a court of general equitable jurisdiction can provide, the action may properly be brought before such court.

Affirmed in part and reversed in part.

N. J. Kaufman, P.J., concurred.

Bronson, J.

(dissenting). Plaintiffs (city and township treasurers and individual taxpayers) filed a two-count complaint in Wayne County Circuit Court on July 2, 1976. Count I, brought by township and city treasurers, sought declaratory and temporary and permanent injunctive relief from 1975 and 1976 special drain assessments. Plaintiffs-treasurers alleged that the defendant, Wayne County Drain Commissioner, was without jurisdiction to levy such taxes for the reasons that (i) the work was not in fact performed within two years prior to the assessments, (ii) the special assessments exceeded $800 per mile, (iii) the special assessments were not in proportion to the original proportions for costs, (iv) no notices of the assessments were given to the taxpayers by the defendant drain commissioner, and (v) the special assessments were not being used to replenish the Drain Revolving Fund for work actually performed but rather were being used to pay the defendant-appellee drain commissioner’s office’s administrative expenses, which should legally be paid from the defendant-appellee Wayne County’s General Fund.

Count II of the complaint was brought as a class action by the named taxpayers on behalf of all taxpayers living in communities which were assessed either specially or at large. It incorporates the grounds on which count I was based. Refund of all illegal taxes assessed since 1956 was the relief requested.

Defendants responded by moving for accelerated judgment on four bases. The first ground alleged that this suit was primarily a tax refund suit and that exclusive jurisdiction was vested in the Tax Tribunal. The second ground alleged that "the six plaintiff-treasurers who comprise Count I of the complaint possess no legal standing to challenge these drain taxes”. The third ground alleged that the named plaintiffs of the second count had no cause of action "because they are barred by the statute of limitations * * * and * * * cannot represent the taxpayers in their communities”. The fourth ground alleged that a class action "is improper, simply because there is no (common) issue of law or fact in this case”.

The trial court granted defendants’ motion as to Count II, holding that the Tax Tribunal had exclusive jurisdiction over tax refund claims and, in any event, that the claims were barred by the applicable statute of limitations. The motion as to count I was denied. The trial court held that the treasurers had standing and that the Tax Tribunal did not have exclusive jurisdiction over a suit seeking declaratory and injunctive relief.

Leave to appeal the decision on count I was granted and that case was consolidated with plaintiffs’ appeal as to count II.

Standing of plaintiffs-treasurers to bring count I

The trial court held that plaintiffs in count I had standing to seek declaratory and injunctive relief on the basis of Mayor of City of Dearborn v Dearborn Retirement Board of Trustees, 315 Mich 18; 23 NW2d 186 (1946), and The County Treasurer of Berrien v Bunbury, 45 Mich 79; 7 NW 704 (1881).

The rule in Michigan is that: " '[A]ll public officers, though not expressly authorized by statute, have a capacity to sue commensurate with their public trusts and duties.’ ” Mayor v Dearborn Retirement Board, supra, at 24, quoting Berrien County Treasurer v Bunbury, supra, at 84.

In Mayor v Dearborn Retirement Board, supra, the Mayor of Dearborn, in his official capacity, sought a declaratory judgment as to the validity of an appropriation included in the proposed budget by defendant board. The city council presented a proposed budget including the appropriation. The mayor vetoed that appropriation, but his veto was overridden by council. In response to the mayor’s suit for declaratory relief, defendant asserted that the mayor was not a proper party to sue for a declaration of rights. The Supreme Court held that the mayor was a proper party, reasoning that as the mayor had the power and the duty under the city charter to approve or reject any item in the annual budget, he was a proper party to seek judicial resolution of the controversy.

The key to that decision seems to have been the discretionary authority of the mayor to approve or reject the contested item coupled with his duty to approve a budget for the city. Obviously, no direct financial stake in the outcome was required by the court.

In the case at bar, plaintiffs-treasurers have a statutory duty to remit the collected taxes to the county treasurer. MCL 211.54; MSA 7.98 provides that:

"Within 20 calendar days after the time specified in his warrant, the township treasurer or other collecting officer shall pay to the county treasurer all state and county taxes collected, and within the same time shall make his statement of unpaid taxes upon real and personal property as required in section 55.”

Plaintiffs-treasurers in count I have no discretionary authority as to the payment of collected taxes, see Berrien County Treasurer v Bunbury, supra. Therefore, Mayor v Dearborn Retirement Board, supra, compels a result opposite to that reached by the trial court. Absent any discretionary authority, the treasurers have no standing to seek review of defendants’ tax assessments.

Plaintiffs rely on cases holding that, in extraordinary circumstances, mandamus will not issue to force a treasurer to comply with his statutory duty to spread an assessment on the tax rolls. See, e.g., Scholtz v Smith, 119 Mich 634; 78 NW 668 (1899), Laubach v O'Meara, 107 Mich 29; 64 NW 865 (1895), The Board of Supervisors v The Supervisors of the Twp of Mentor, 94 Mich 386; 54 NW 169 (1892). However, these cases do not stand for the proposition that a treasurer has discretionary authority with respect to spreading and collecting taxes. They hold that mandamus is a discretionary writ and that the court, in its discretion, may refuse to enforce a ministerial duty in extraordinary circumstances. These cases reinforce the point that the treasurers’ duties are ministerial and that they have no discretionary authority to refuse to remit taxes collected. Therefore, under Mayor v Dearborn Retirement Board, supra, they have no standing to seek review of defendants’ actions. Thus it is unnecessary to reach the jurisdictional issue.

It should also be noted that 1976 PA 344, amending MCL 280.196; MSA 11.1196, eliminates the need for prospective injunctive or declaratory relief on the legality of assessing administrative costs as incidental maintenance expenses. The amendment clearly prohibits such assessment. Essentially then, this suit is one for the refund of allegedly illegally assessed drain taxes, which was sought in count II of the complaint.

Maintenance of class action for tax refund in circuit court

In count II of the complaint, two taxpayers who paid assessed taxes sought recovery individually and on behalf of some 60,000 taxpayers. The trial court dismissed count II, holding that the Tax Tribunal has exclusive jurisdiction over property tax refund suits and, in any event, the suits for refunds were untimely, being filed after the 30-day statute of limitations on such suits.

The trial court correctly held that the 30-day limitation on drain tax refund suits contained in MCL 280.265; MSA 11.1265 prevents the individual plaintiffs in count II from obtaining a refund. This limitation period applies even though the assessment complained of may have been illegal or void ab initio. Brooks v County of Oakland, 268 Mich 637; 256 NW 576 (1934), Twp of Norton v Cockerill, 265 Mich 405; 251 NW 543 (1933).

The trial court did not address the question of certification of the instant class. See Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976). However, the record discloses that the putative representatives did not bring suit for a refund within the requisite 30-day period. Plaintiffs do not maintain that they or any other member of the "class” can satisfy that requirement. Therefore the trial court’s dismissal of count II was proper.

I would affirm as to count II (Docket No. 77-24) and reverse as to count I (Docket No. 31365).

        See MCL 280.196; MSA 11.1196, which was amended subsequent to the trial court’s order by 1976 PA 344, effective December 19, 1976. At issue is over $400,000 collected by plaintiffs-treasurers which is now being held in escrow pending the disposition of this case.

        See MCL 205.701 et seq.; MSA 7.650(1) et seq.

        See MCL 280.265; MSA 11.1265, which provides in part:
      "No suit shall be instituted to recover any drain tax or money paid or property sold therefor, or for damages on account thereof, unless brought within 30 days from the time of payment of such money to, or sale of such property by, the collecting officer; and if such tax shall be paid under protest the reasons therefor shall be specified, and the same procedure observed as is or may be required by the general tax law.”

        See note 3, supra.

       MCL 280.265; MSA 11.1265 provides that drain taxes are to be collected and remitted in the same manner as general taxes.

        See note 3, supra. Plaintiffs allege that the 30-day limitation does not apply to the instant case where "fraud” or "constructive fraud” have been alleged and/or where defendants have engaged in "fraudulent concealment”.
      Plaintiffs, however, cannot avoid the clear limitation on refund suits contained in § 265 by engaging in imaginative labeling. What they want is a refund of taxes paid. Section 265 says that a suit for a refund of taxes paid must be brought within 30 days. This section applies to invalid, illegal assessments. See Twp of Norton v Cockerill, 265 Mich 405; 251 NW 543 (1933). Therefore, plaintiffs’ suit for a refund was untimely, regardless of how the action is designated.

       Due to the resolution of the 30-day limitation issue, the question of whether the Tax Tribunal has exclusive jurisdiction over class action suits for property tax refunds need not be addressed.