author: Per Curiam. J. H. Gillis, J.

text:
    PEOPLE v SCHINZEL
    Docket No. 77-3422.
    Submitted June 22, 1978, at Detroit.
    Decided October 3, 1978.
    Remanded in lieu of leave to appeal, 406 Mich —.
    Defendant, Joseph Schinzel, an inmate, was charged with murder. At trial the Recorder’s Court of Detroit, James A. Hathaway, J., allowed into evidence certain statements made by the victim to his friend and to a police officer approximately 45 minutes to one hour after receiving the fatal wound resulting in his death nine days later. Defendant was convicted of second-degree murder and appeals raising several issues. Held:

    1. The requirements for the admission of a dying declaration are: (1) the declarant must have been conscious of impending death; (2) death must actually have ensued; (3) the statements are sought to be admitted in a criminal prosecution against the individual who killed the decedent; and (4) the statements must relate to the circumstances of the killing. The statements were properly admitted as dying declarations.
    2. "Consciousness of death” requires first, that it be established that declarant was in fact in extremis at the time the statement was made and, secondly, that the decedent believed his death was impending, which may be proved like any other facts in the case and in the light of the existing and surrounding circumstances.
    3. Even if the statements were inadmissible as dying declarations they were properly admitted as excited utterances because a statement may be admitted into evidence under the excited utterance rule if (1) there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting, (2) the statement was made before there was time to contrive and misrepresent, and (3) the statement relates to the circumstances of the occurrence preceding it.

      References for Points in Headnotes
    [1, 2] 40 Am Jur 2d, Homicide §§ 347, 365, 366.
    [3] 40 Am Jur 2d, Homicide § 368.
    [4] 29 Am Jur 2d, Evidence § 708.
    Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act. 4 ALR3d 149.
    [5] 21 Am Jur 2d, Criminal Law § 249.
    [6] 21 Am Jur 2d, Criminal Law § 251.
    [7] 21 Am Jur 2d, Criminal Law § 255.

      4. The 180-day statutory period which controls the time for commencing a criminal prosecution against a prison inmate on outstanding warrants begins with the coincidence of either of following conditions 1 or 2 and condition 3: (1) the issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison; or (2) the incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and (3) the prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one in their custody.
    5. A period of unexplained inaction in excess of 180 days in the prosecution of a charge pending against an inmate, if the defendant has not contributed to the delay, is per se a violation of the statute which requires such a prosecution within 180 days, unless the people make an affirmative showing of exceptional and unavoidable circumstances which hamper the normal functioning of the trial courts.
    Reversed and the charges dismissed.
    J. H. Gillis, J., concurred with regard to the admissibility of the statements of the deceased but dissented with regard to the disposition of the case. He would hold that a trial court should be given an opportunity to state for the record its reasons for delaying a criminal trial subject to the statutory 180-day rule beyond 180 days where the defendant was subsequently convicted of second-degree murder and where the record is silent regarding the delay. In such a case the Court of Appeals should remand to the trial court for the making of a record while retaining jurisdiction to decide the issue of the excusability of the delay.
    Opinion of the Court
    1. Homicide — Evidence—Hearsay—Dying Declarations — Requirements.
    The requirements for the admission of a dying declaration are: (1) the declarant must have been conscious of impending death, (2) death must actually have ensued, (3) the statements are sought to be admitted in a criminal prosecution against the individual who killed the decedent, and (4) the statements must relate to the circumstances of the killing.
    2. Homicide — Evidence—Hearsay—Dying Declarations — Consciousness op Death.
    The "consciousness of death” requirement for the admission of a dying declaration requires first, that it be established that declarant was in fact in extremis at the time the statement was made and, secondly, that the decedent believed his death was impending.
    3. Homicide — Evidence—Dying Declaration — In Extremis — Belief in Impending Death.
    Whether or not a person who made a so-called "dying declaration” was in extremis and believed that his death was impending may be proved like any other facts in the case and in the light of the existing and surrounding circumstances; the fact that the decedent lived for nine days after making the declaration is not controlling where the criteria for admission are met.
    4. Evidence — Admissibility—Hearsay—Excited Utterance — Res Gestae Exception — Elements.
    A statement may be admitted into evidence despite the hearsay rule under the excited utterance rule if (1) there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting, (2) the statement was made before there was time to contrive and misrepresent, and (3) the statement relates to the circumstances of the occurrence preceding it.
    5. Criminal Law — Statutes—Speedy Trial — Inmates—Commencement of Proceedings — 180-Day Rule.
    The 180-day statutory period which controls the time for commencing a criminal prosecution against a prison inmate on outstanding warrants begins with the coincidence of either of following conditions 1 or 2 and condition 3: (1) the issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison; or (2) the incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and (3) the prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one in their custody. (MCL 780.131 et seq.; MSA 28.969[1] et seq.).

    6. Criminal Law — Statutes—Inmates—Trial on Pending Charge.
    A period of unexplained inaction in excess of 180 days in the prosecution of a charge pending against an inmate, if the defendant has not contributed to the delay, is per se a violation of the statute which requires such a prosecution within 180 days, unless the people make an affirmative showing of exeptional and unavoidable circumstances which hamper the normally efficient functioning of the trial courts (MCL 780.131; MSA 28.969[1]).
    Concurrence in Part, Dissent in Part by J. H. Gillis, J.
    7. Criminal Law — Statutes—Inmates—Trial on Pending Charges —180-Day Rule — Appeal and Error.

      A trial court should be given an opportunity to state for the record its reasons for delaying a criminal trial subject to the statutory 180-day rule beyond 180 days where the defendant was tried and subsequently convicted of second-degree murder and where the record is silent regarding the delay; in such a case the Court of Appeals should remand to the trial court for the making of a record while retaining jurisdiction to decide the issue of the excusability of the delay (MCL 780.131; MSA 28.969[1]).

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

      Ina G. Zeemering, for defendant on appeal.
    Before: R. M. Maher, P.J., and J. H. Gillis and McGregor. JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

On May 23, 1977, defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549. Sentenced to a term of from 20 to 30 years imprisonment, he appeals as of right.

The deceased, Clim Green, died as the result of a shotgun blast to his face. He was pronounced dead on April 1, 1976, nine days after he was shot. At trial, Climmie Allen, the deceased’s woman friend, testified that she was in his home on March 22, 1976. Green received two phone calls and at 7:30 or 7:45 p.m. he left his residence to meet one of the callers. Allen left and returned to her residence. At 8:15 p.m. she received a call from the hospital. Shortly afterwards she went there to visit the deceased. Green was covered with blood and had a towel over his head. He told Allen that the last phone caller had been a man named "Joe” who told Green to meet him at Campbell near Vernor. Green did so. Allen testified that deceased also stated, "Joe shot me”.

After the shooting Green staggered onto the front steps of the home of Kenneth Cantreraz. Cantreraz testified that he asked Green who had done it. Green responded by first stating David, then Joe, then he mentioned David once again and finally he said Joe three more times.

Police officer George Wilson interviewed Green at the hospital at approximately 9:15 p.m. The officer testified that Green was lying on his back with bandages on his face and blood dripping from it. Green was also spitting up blood. He told the officers what had happened. When asked by the officer to describe who shot him, Green spoke of a Mexican male, known to him as "Joe”, who was living on Cavalry south of Vernor Highway.

Officer Clyde Jones, partner of Officer Wilson, testified to participating in the interview of the deceased. He stated that the victim gave clear and coherent answers to the questions posed, pausing briefly after each question.

After Jones testified, defense counsel moved to strike the testimony of Officer Wilson, on the basis that the interview at the hospital did not fall within the "dying declaration” or "excited utterance” exceptions to the hearsay rule. The trial court denied the motion.

On appeal, defendant renews his argument that the testimony of Officer Wilson was hearsay and not recognized within any hearsay exception and therefore inadmissible. The trial court allowed the admission of the hearsay statement on the basis of the dying declaration exception and the excited utterance exception.

Four requirements must be met before a statement can be admitted as a dying declaration:

(1) The declarant must have been conscious of impending death.

(2) Death must actually have ensued.

(3) The statements are sought to be admitted in a criminal prosecution against the individual who killed the decedent.

(4) The statements must relate to the circumstances of the killing. See People v Franklin, 70 Mich App 343, 347; 245 NW2d 746 (1976).

The requirement in dispute in the case at bar is whether Clim Green was conscious of his impending death. "Consciousness of death” requires first, that it be established that declarant was in fact in extremis at the time the statement was made and, secondly, that the decedent believed his death was impending. People v Johnson, 334 Mich 169, 173; 54 NW2d 206 (1952).

On this record there is no evidence that anyone actually informed decedent of his critical condition. Nor did the decedent himself make any statements signifying his belief that death was imminent.

But a verbal indication that a person believes he or she is about to die is not necessary. People v Johnson, supra. The essential fact of declarant’s belief that death is impending may be proved like any other facts in the case in light of the existing and surrounding circumstances. People v Simpson, 48 Mich 474; 12 NW 662 (1882). The declarant’s belief may be shown by the apparent fatal quality of the wound, by statements made to the declarant by the doctor or by others that his condition is hopeless, and by other circumstances. McCormick, Evidence (2d ed), § 282, pp 680-681.

Despite the lack of a statement from decedent, we conclude from other circumstances that decedent knew death was imminent. The wound in the face which severed decedent’s eye, the blood, both dripping and being spit up, all point to an injury of fatal proportions. As the Supreme Court has stated:

"Some wounds certify death. Such a wound was given the sheriff. He was not asked if he was aware of impending death or informed that his death was imminent, nor did he express himself on the subject, so far as this record discloses. When the first bullet ripped its course through his vitals his hours were numbered. His stoical bearing, restraint of emotions and retention of opinion or knowledge on the subject of dissolution do not at all rule the admissibility of his statements. * * * To say he did not sense impending death would accord him less than ordinary intellegence.” People v Arnett, 239 Mich 123, 131-132; 214 NW 231 (1927).

Likewise, in People v Gorman, 252 Mich 603; 233 NW 430 (1930), the Court looked to the surrounding circumstances to reach the conclusion that decedent believed his death was imminent.

"There is no testimony that deceased at the time of the statement and the writing believed he was in extremis or that he had been so advised. He died the ninth day after the shooting, and was conscious during a portion of the early part of the intervening time. He was an intelligent man and experienced in police work. Besides having several large scalp wounds and numerous abrasions and contusions about the forehead and face, he was suffering from two bullet wounds. One bullet had entered just above and a little in front of the right ear and the other in the right side of his neck. To presume that in his conscious moments he did not appreciate that he was in the shadow of death would be doing violence to common sense and common experience.” 252 Mich at 605.

See also People v Franklin, supra.

The police here were notified by physicians that decedent’s condition was serious. Witnesses testified that decedent’s eye had been shot out, his face badly battered. At the hospital, blood continued to drip from the face and when answering the police officer’s questions, decedent was continually coughing up blood. These circumstances lead us to believe that decedent, as a man of ordinary common sense, knew that his death was imminent. The lack of a direct statement from decedent is not decisive.

Nor are we persuaded that the length of time between the shooting and Green’s death — nine days — removes decedent’s statement from the class of dying declarations. The fact that the maker of the dying declaration lives for several days after making the declaration is not controlling in determining its admissibility. People v Johnson, supra, at 173. In People v Denton, 312 Mich 32; 19 NW2d 476 (1945), it was held that a declaration made by a decedent while he was being taken to a hospital almost immediately after being shot and while he was conscious of impending death would be a dying declaration notwithstanding that decedent lived for 11 days after being shot. Similarly, under the circumstances of the case at bar, the passing of nine days did not negate the nature of decedent’s statements as a dying declaration.

Even if decedent’s words are not admissible as a dying declaration, they are admissible as an excited utterance. An excited utterance will be allowed in evidence if (1) there is a startling occasion, startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the statement was made before there has been time to contrive and misrepresent; and (3) the statement relates to the circumstances of the occurrence preceding it. Rogers v Saginaw-Bay City R Co, 187 Mich 490; 153 NW 784 (1915), Rice v Jackson, 1 Mich App 105; 134 NW2d 366 (1965), People v Mosley, 74 Mich App 145; 254 NW2d 33 (1977).

Here those three requirements are met. The statements did relate to the circumstances of the occurrence preceding it. A shooting is a startling occasion which can produce nervous excitement. See Rice v Jackson, 1 Mich App at 111. The statements were made approximately 45 minutes to an hour after the shooting. A 40-minute time lapse was not found to be too great in People v Ivory Thomas, 14 Mich App 642; 165 NW2d 879 (1968), when the party was in great pain and unconscious part of the time.

Decedent in the instant case was bandaged but still bleeding. He was continually expectorating blood. While there was a 45-minute period between the shooting and the police interview, the circumstances surrounding the events indicate that defendant did not reflect, contrive or misrepresent. The time lapse was not extraordinary considering that defendant had crawled for help, awaited an EMS van and had been bandaged at the hospital. When the police saw him he was still bleeding profusely, his eye was shot out and he was spitting up blood. One may infer that decedent’s statements were made before he had time or mind to contrive or misrepresent the facts in his statements to the police. See Rice v Jackson, supra, and Stone v Sinclair Refining Co, 225 Mich 344; 196 NW 339 (1923), for other situations in which excited utterances have been allowed in evidence despite a lapse of time. The trial court did not abuse its discretion by admitting into evidence the hearsay testimony of Officer George Wilson.

Defendant also alleges that the trial court erred in failing to dismiss the charges against defendant in accordance with MCL 780.131; MSA 28.969(1), the 180-day rule. When an inmate is not brought to trial within 180 days of the date on which the Department of Corrections notifies the prosecuting attorney that defendant is serving a sentence for a prior conviction, MCL 780.131; MSA 28.969(1) in conjunction with MCL 780.133; MSA 28.969(3), acts to deprive the trial court of jurisdiction.

Several cases have considered when the statutory period begins to run. See People v Thomas, 21 Mich App 465; 175 NW2d 540 (1970). In People v Hill, 402 Mich 272; 262 NW2d 641 (1978), the Supreme Court propounded the following rules:

"We hold that the statutory period begins with the coincidence of either conditions 1 or 2 and condition 3:
"D The issuance of a warrant, indictment or complaint against a person incarcerated in a state prison or under detention in any local facility awaiting incarceration in any state prison;
"2) The incarceration of a defendant in a state prison or the detention of such defendant in a local facility to await such incarceration when there is an untried warrant, indictment, information or complaint pending against such defendant; and
"3) The prosecutor knows or should know that the defendant is so incarcerated when the warrant, indictment, information or complaint is issued or the Department of Corrections knows or should know that a warrant, indictment, or complaint is pending against one sentenced to their custody.” 402 Mich at 280-281.

At the time of defendant’s arraignment on the instant charge, he was incarcerated on a parole violation. The coincidence of conditions commencing the statutory period in this case occurred on April 14, 1976, when the warrant was issued. The time elapsed between that date and the beginning of trial on May 18, 1977, is some 400 days. On the surface, the trial court would seem to have automatically lost jurisdiction.

But in interpreting the 180-day statute, the courts of this state have ruled that jurisdiction is not always lost if defendant does not go to trial within 180 days. The statute requires only that "good faith action” to commence proceedings be initiated within the six-month time limit. People v Hendershot, 357 Mich 300; 98 NW2d 568 (1959), People v Castelli, 370 Mich 147; 121 NW2d 438 (1963). When trial does not begin until well after the 180-day period has expired, the court may still have jurisdiction if the initial action was followed by reasonable diligence in proceeding to trial. People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976).

From April 14, 1976, until November 15, 1976, a series of excusable delays occurred. For the period between the original trial date of November 15, 1976, and the actual commencement of trial on May 17, 1977, there is no reason given for the delay. The prosecution seeks to absolve itself by laying blame for the delay on the judiciary, arguing that for purposes of the 180-day rule the actions of the trial court (e.g., in adjourning trial) are not to be attributed to the prosecution.

This Court, however, has adopted a position clearly contrary to that asserted by the prosecution. In People v Forrest, supra, the Court held that delays attributable to the judiciary were chargeable against the people.

"In the case at bar the people have not made an affirmative showing of unavoidable delays which might justify this inaction. A mere recitation of the factor of a crowded docket, without more, cannot warrant visiting on the incarcerated defendant a longer imprisonment than might otherwise be in store. If congestion and delay result from inadequate court staffing or funding, the inevitable results of those delays must fall upon the people, who have the power to remedy court congestion.” 72 Mich App at 273.

In the present case, the people have not given an adequate explanation for the delay. In light of Forrest, the reason proffered, the administrative procedures of the court, fails to sustain the people’s burden of making "an affirmative showing of exceptional and unavoidable circumstances which hamper the normally efficient functioning of the trial court”. Forrest, supra at 273. Such a reason (adminstrative procedures), " 'should be weighted less heavily [against the government] but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ Barker v Wingo, 407 US 514, 531; 92 S Ct 2182, 2192; 33 L Ed 2d 101, 117 (1972)”. (Footnote omitted.) 72 Mich App at 271.

Guided by Forrest, we hold that the inexcusable delay in this case violated the statute. Therefore, the trial court had no jurisdiction over defendant. The charges are dismissed.

Reversed.

J. H. Gillis, J.

(concurring in part, dissenting in part). I concur with my colleagues’ disposition of the first issue, but cannot at this time agree with the disposition of the second issue.

I would remand this case to the trial court for a testimonial record to determine the cause of the delay with this Court retaining jurisdiction. After the testimonial record was prepared, I would then make my determination of whether or not MCL 780.131; MSA 28.969(1) has been violated.

This is a serious homicide case, important to both the people of this state and the defendant. We have not been presented with any statement from the trial court nor has it been given the opportunity to present reasons for the adjournment. Justice in my opinion would require that all parties be given an opportunity to present on the record the reasons for the grant of adjournments in this cause.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GARB-KO, INC., v CARROLLTON TOWNSHIP
    Docket No. 77-3992.
    Submitted June 13, 1978, at Lansing.
    Decided October 3, 1978.
    Leave to appeal applied for.
    Garb-Ko, Inc. entered into a lease of a building in Carrollton Township, Saginaw County, and began operation of a -7-11 store. The building had previously been used as a grocery store, which since 1959 had been a nonconforming use in an area zoned residential. As a grocery store, the business was generally operated from 8 a.m. to 10 p.m. Garb-Ko began operation from 7 a.m. to 11 p.m., and later began operating from 6 a.m. to 2 a.m. The township advised Garb-Ko that it must cut its hours of operation to 7 a.m. to 11 p.m. Garb-Ko and Donna J. Bruske, the franchiser of the store, sought to enjoin the township from interfering with their hours of operation. The township counterclaimed, seeking to enjoin the plaintiffs from extending their business hours beyond 7 a.m. to 11 p.m. The Saginaw Circuit Court, Gary R. McDonald, J., denied the plaintiffs’ request for an injunction and ordered the plaintiffs to operate the store only between 7 a.m. and 11 p.m. The plaintiffs appeal, alleging that the township does not have the power to regulate the hours of operation of the store, which is being operated as a valid nonconforming use. Held:

    The trial court’s finding that the extension of operating hours constituted an expansion of the nonconforming use is consistent with the policy of the law which is against the extension or enlargement of nonconforming uses.
    Affirmed.
    1. Zoning — Nonconforming Use — Expansion of Use.
    The continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance; zoning regulations should be strictly construed with respect to expansion.

      References for Points in Headnotes
    [1] 82 Am Jur 2d, Zoning and Planning § 195 et seq.

    Zoning: changes, repairs, or replacements in continuation of nonconforming use. 87 ALR2d 4.
    [2] 5 Am Jur 2d, Appeal and Error §§ 703, 822.
    [3] 82 Am Jur 2d, Zoning and Planning §§ 182, 260, 261.

      2. Appeal and Error — Equity—De Novo Review.
    The findings of a trial court in an equity case, although reviewed de novo by the Court of Appeals, will not be disturbed unless the Court of Appeals would have arrived at a different result had it been in the position of the trial court.
    3. Zoning — Nonconforming Use — Townships—Restriction of Business Hours.
    A trial court did not err in finding that a township may lawfully restrict the operating hours of a grocery business which is operated as a nonconfdrming use in an area zoned residential.

      Albert C. Reinert, for plaintiffs.

      Richard A. Mertz, for defendant.
    Before: D. E. Holbrook, P.J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   Per Curiam.

This is an appeal by right of the trial court’s order limiting the operating hours of the plaintiffs’ business establishment. In 1949, Stanley Klenk erected the building in question located in Carrollton Township, Saginaw County, Michigan. Mr. Klenk operated the building as a grocery store until 1959, and kept the hours of 8 a.m. to 10 p.m.

In 1959, Carrollton Township passed a zoning ordinance which placed the property in question in a residential zone. The property was allowed to operate as a nonconforming use and continues to be used as a grocery store until the present time.

In 1959, Mr. Klenk sold the grocery business (not the building itself); and the business was later resold. The various grocery store owners generally operated the business from 8 a.m. to 10 p.m.

In 1971, the plaintiff, Garb-Ko, Inc., agreed to lease the store for a 7-11 operation if the building was refurbished. Mr. Klenk secured a building permit from the township to refurbish the building and in 1971 leased the building to the plaintiff, Garb-Ko, for the operation of their 7-11 store. No conditions or restrictions as far as hours of operation were imposed by the township at the time of the issuance of the building permit for the refurbishing.

When the store first opened in 1971, its hours of operation were from 7 a.m. to 11 p.m. Shortly after its opening, the store hours were changed to 6 a.m. to 12 midnight and after a short time were again changed to 6 a.m. to 2 a.m.

On November 8, 1974, the township board advised the plaintiffs by mail that they must cut back their hours of operation to 7 a.m. to 11 p.m. On July 30, 1975, the plaintiffs commenced this action against the township, seeking to temporarily and permanently restrain the township from interfering with plaintiffs’ hours of operation. The township filed a counterclaim against the plaintiffs, asking the court to temporarily and permanently restrain the plaintiffs from extending the hours of operation of the 7-11 store beyond 7 a.m. to 11 p.m.

Testimony was adduced at trial as to the trafile noise and disturbances at the 7-11 store after 11 p.m., and as to the plaintiffs’ desire to operate the store on a 24-hour-a-day basis.

The trial court denied the plaintiffs’ prayer for permanent injunction and ordered that the plaintiffs may not operate their 7-11 store beyond the hours of 7 a.m. to 11 p.m.

The plaintiffs appeal by right. The precise question on appeal is whether the extension of hours of a grocery store operating as a nonconforming use constitutes an expansion of the nonconforming use which can be lawfully restricted by the defendant township.

Although this precise question has not heretofore been addressed, Michigan courts have, on various occasions, set forth the policy and purpose of the law relating to nonconforming uses.

In Dearden v Detroit, 70 Mich App 163, 169; 245 NW2d 700 (1976), this Court stated:

" '[I]t is the law of Michigan that the continuation of a nonconforming use must be substantially of the same size and same essential nature as the use existing at the time of passage of a valid zoning ordinance.’ White Lake Township v Lustig, 10 Mich App 665, 674; 160 NW2d 353 (1968).”

In Norton Shores v Carr, 81 Mich App 715, 720; 265 NW2d 802 (1978), the Court stated:

"The policy of the law is against the extension or enlargement of nonconforming uses, and zoning regulations should be strictly construed with respect to expansion.”

The trial court’s finding that the extension of operating hours constituted an expansion of the nopconforming use is consistent with the aforementioned policy. While this Court reviews equity cases de novo, the findings of the trial court will not be disturbed unless this Court would have arrived at a different result had it been in the position of the trial court. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969). In view of the policy against the expansion of a nonconforming use, and the fact that the Michigan courts, in reviewing the question of expansion, have emphasized the scope and nature of the nonconforming use as existing at the time of the passage of a valid ordinance, it cannot be said that this Court would have reached a conclusion different from that of the trial court.

Affirmed.


text:
    PEOPLE v MERCHANT
    Docket No. 77-3997.
    Submitted August 31, 1978, at Grand Rapids.
    Decided October 3, 1978.
    James T. Merchant was arrested pursuant to two outstanding felony warrants immediately after he had renewed a rental contract on an automobile. Upon his arrest, an employee of the rental agency refunded Merchant’s money and obtained his signature on a cancellation form, terminating the rental contract. The police then removed a briefcase belonging to Merchant from the car, opened it, and discovered a quantity of heroin. On the basis of this evidence Merchant was subsequently convicted of possession of heroin with intent to deliver, Clinton Circuit Court, Leo W. Corkin, J. Defendant appeals, challenging the admission of the heroin into evidence. Held:

    1. Because the challenged evidence was totally decisive of the outcome of the case, the Court of Appeals will allow the defendant to raise the constitutional issue of the validity of the search and seizure for the first time on appeal.
    2. Because the rental agreement had been terminated, the defendant no longer enjoyed any reasonable expectation of privacy in the automobile. The removal of his briefcase by the police without a search warrant was therefore not violative of the defendant’s right against an unreasonable search and seizure.
    3. The briefcase was properly opened as a part of a standard inventory search of the defendant’s possessions, pursuant to the arrest on proper warrants for charges totally unrelated to the present case.
    Affirmed.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 574.
    29 Am Jur 2d, Evidence §§ 425, 426.
    Modern status of rule governing admissibility of evidence obtained by unlawful search and seizure. 50 ALR2d 531.
    [2, 3] 68 Am Jur 2d, Searches and Seizures §§ 2,16, 34.
    Validity, under Federal Constitution, of warrantless search of automobile — Supreme Court cases. 26 L Ed 2d 893.
    [3] 68 Am Jur 2d, Searches and Seizures § 57.

      1. Appeal and Error — Criminal Law — Evidence—Constitutional . Law — Admissibility of Evidence.
    The Court of Appeals must determine whether evidence which a defendant alleges was erroneously admitted was decisive to the outcome of the case where the defendant raises, for the first time on appeal, a constitutional question regarding the propriety of the search by which the evidence was obtained; the defendant may be allowed to raise the issue on appeal where the challenged evidence was totally decisive of the defendant’s conviction.
    2. Searches and Seizures — Constitutional Law — Expectation of Privacy — Criminal Law.
    Fourth Amendment protection from a search or seizure conducted without a warrant does not extend to situations where the reasonable expectation of privacy no longer exists; therefore, a defendant’s briefcase could be removed from an automobile which the defendant had been renting and on which the rental contract was terminated following the defendant’s arrest and there was no improper search or seizure because at that time the automobile was the property and under the control of the rental agent and the defendant had surrendered any reasonable expectation of privacy.
    3. Searches and Seizures — Inventory Search — Closed Containers —Justification for Search.
    A closed container obtained by police under a standard inventory search may properly be opened as a part of that search; the justifications for such search are (1) the protection of property while held in police custody, (2) the protection of the police against claims over lost or stolen property, and (3) protection of the police from potential danger.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon Newman, Prosecuting Attorney, for the people.

      William G. Jackson, for defendant on appeal.
    Before: Allen, P.J., and D. E. Holbrook, Jr., and D. F. Walsh, JJ.
   Per Curiam.

On August 2, 1977, defendant was convicted of possession of heroin with intent to deliver, MCL 335.341(l)(a); MSA 18.1070 (41)(l)(a). Sentenced to 4-1/2 to 20 years imprisonment, he appeals by right under GCR 1963 806.1.

On January 24, 1977, defendant was arrested at the Capital City Airport pursuant to two outstanding felony warrants for offenses totally unrelated to the present offense. Defendant had gone to the airport to renew a rental contract with Avis Rent-A-Car. While inside the terminal his car was parked in a loading zone. After renewing the contract, defendant returned to his car where he was apprehended while seated in the parked rental car. Defendant was then taken to the public safety office inside the terminal and was arrested there. At this time an Avis employee brought defendant’s rental contract to the office, refunded to defendant his money and secured defendant’s signature on the cancellation form. The police then went outside the terminal, searched the trunk of the car and removed defendant’s briefcase. The briefcase was brought into the office and placed on a desk. A search of the briefcase was conducted, disclosing 254 bindles of heroin. A motion to suppress was filed by defendant’s trial counsel prior to trial. Upon defendant’s waiver of a jury trial the hearing on the motion to suppress and the trial were combined. At the close of the proofs and legal arguments on the motion to suppress, the trial court found no constitutional violation and admitted the heroin into evidence.

During argument on the motion to suppress, defense counsel did not contest the validity of the removal of the briefcase from the car trunk, but instead claimed that the opening and examination of the briefcase after it was brought to the public service office where defendant was under arrest was illegal. The people claim that defendant has thereby waived the issue which cannot now be raised for the first time. On the facts in this case, we disagree. Where a defendant raises a constitutional question for the first time on appeal, the Court must determine if the allegedly erroneously admitted evidence was decisive to the outcome of the case. People v Summers, 70 Mich App 584; 246 NW2d 152 (1976), People v Blassingame, 59 Mich App 327; 229 NW2d 438 (1975). Here, the challenged evidence was totally decisive since defendant’s conviction was based exclusively on the bindles of heroin found in the briefcase. Under these circumstances we allow defendant to raise the issue even though our ruling admittedly makes for a less complete record than is desired.

On appeal defendant argues that since the search was warrantless it was illegal per se unless shown to be within one of the well-recognized exceptions to the warrant requirement rule. People v Reed, 393 Mich 342, 362; 244 NW2d 867 (1975). In his comprehensive brief defendant contends that none of the exceptions, including the automobile exception, are applicable. We view the issue differently.

Within a few minutes after defendant was placed under arrest in the airport terminal building, Jane Rundell, the Avis employee who earlier had accepted an additional deposit which extended defendant’s rental contract, returned to refund some $30 in cash to defendant and to obtain his signature terminating the rental agreement. She did so after phoning her superior to obtain instructions on what to do with the car and being instructed to close out the contract. Defendant did not object and signed the printed contract form showing the rental agreement was terminated.

In view of the unrebutted testimony that the rental agreement was terminated, that the car was the property of Avis rather than defendant, and that the car was illegally parked in a loading zone, we conclude that defendant no longer had standing to contest the removal therefrom of his personal possessions. He had surrendered any reasonable expectation of privacy. As was stated in People v Hopko, 79 Mich App 611; 262 NW2d 877 (1977), lv den, 402 Mich 950o (1978), Fourth Amendment protection from warrantless search or seizure does not extend to situations where the reasonable expectation of privacy no longer exists. Defendant cites two New Mexico decisions purportedly holding that a constitutionally protected expectation of privacy extends to a rented car. State v Brubaker, 85 NM 773; 517 P2d 908 (Ct App, 1973), State v Lewis, 80 NM 274; 454 P2d 360 (Ct App, 1969). The cases are clearly distinguishable. In neither had the rental agreement been terminated. In each case the rental agent acknowledged a continuing right of the lessee to the rented vehicle. But where, as here, the rental agent no longer recognizes any right of the lessee to the car, a subsequent New Mexico case, State v Clark, 89 NM 695, 696; 556 P2d 851, 852 (Ct App, 1976), suggests that the defendant would not have standing to object to the search of the vehicle.

"The state first contends that the defendant did not have standing to object to the search and seizure. We disagree. Mr. Johnson stated that he was holding the vehicle until paid what was owing and if defendant did not pay he was going to keep the contents of the van. The facts show that Mr. Johnson was waiting for the money owing at the time of the inventory search. Mr. Johnson was holding the vehicle for the defendant subject to payment. This recognition of defendant’s right to the vehicle by the U-Haul representative, Mr. Johnson, was sufficient to give defendant standing to object to the inventory search and seizure. State v Lewis, 80 NM 274; 454 P2d 360 (Ct App, 1969).” (Emphasis supplied.)

Having determined that removal of the briefcase was permissible the remaining question is whether the warrantless opening of the case was justified. The trial court upheld the search of the defendant’s briefcase under the inventory exception to the warrant requirement. Michigan recognizes inventory searches, People v Dixon, 392 Mich 691; 222 NW2d 749 (1974), People v Robinson, 388 Mich 630; 202 NW2d 288 (1972), but with the possible exception of People v Obadele, 58 Mich App 139; 227 NW2d 258 (1975), no Michigan case discusses the scope of the inventory search. Must the inventory be limited to a listing of the car contents, or may it include a listing of the contents of the contents? That question has been answered in South Dakota v Opperman, 428 US 364; 96 S Ct 3092; 49 L Ed 2d 1000 (1976), which clearly allows the opening of closed containers taken into custody by the police under standard police procedures. The justifications for such search are: (1) the protection of property while held in police custody; (2) protection of the police against claims over lost or stolen property; and (3) protection of the police from potential danger. Opperman has been cited with approval by this Court in People v Boutell, 80 Mich App 216; 263 NW2d 36 (1977).

Defendant argues that the Opperman holding has recently been reduced in scope by United States v Chadwick, 433 US 1; 97 S Ct 2476; 53 L Ed 2d 538 (1977). In that case a footlocker, suspected by the police of containing narcotics, was lifted out of an open car trunk and the defendants were placed under arrest. Defendants and the footlocker were taken to the Federal Building where the footlocker was opened. The Supreme Court held that the warrantless search of the locked footlocker was an unreasonable invasion of defendants’ expectation of privacy in the footlocker. However, Chadwick was not an inventory case since the arrests there were based on the contents of the footlocker as disclosed by the search. Here, defendant was not arrested for the heroin found in his briefcase but was arrested on outstanding warrants on charges of larceny from a building, and was about to be taken to jail on said charges. Under the circumstances, the police were making a standard type inventory of the items defendant had with him prior to being taken to jail. For purposes of this case Chadwick is inapplicable.

Affirmed.

       Probably because the court understood counsel was not contesting the opening of the car trunk the court made no findings of fact on that issue even though the testimony was disputed as to whether the Avis employee asked the officers to remove any personal possessions of defendant from the car.

       The automobile exception was first established in Carroll v United States, 267 US 132; 45 S Ct 280; 69 L Ed 543 (1925), and more recently restated and expanded upon in Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971).

       "Q. Now after you gave him the refund and acquired his signature what did you do then?
      "A. I believe I contacted my boss a second time and told her that the contract had been closed out and she asked me to find out what would happen with the automobile and I was told that the police would need to keep the car but that [the police] would return it to us as soon as possible.
      "Q. Did you and Mr. Merchant have any conversation when you gave him these dollars and asked him to sign this thing?
      "A. I think he asked me why it was such a small refund but I told him that it was because of the mileage discrepancy and then he Said, 'Oh, okay,’ and he signed the contract.”

         At trial, Officer Webster testified he opened the briefcase for two reasons: (1) at defendant’s request so that defendant might use his glasses which were contained in the case, (2) to make an inventory of the briefcase contents before taking defendant to jail. The trial court made a finding of fact that defendant did not ask for his glasses.


author: Per Curiam. Allen, P.J.

text:
    GREAT AMERICAN INSURANCE COMPANY v QUEEN
    Docket No. 77-4457.
    Submitted June 9, 1978, at Lansing.
    Decided October 3, 1978.
    Limited leave to appeal granted, 405 Mich 823.
    Peter Queen was injured in an automobile accident while in the course of his employment. Also involved in the accident were Patricia E. Moore and Michael I. Hughes. Queen’s claims against Moore and Hughes were settled in accordance with the no-fault automobile insurance statute. Meanwhile, Great American Insurance Company, the workmen’s compensation carrier for Queen’s employer, had paid workmen’s compensation benefits to Queen. After the settlement, Great American brought an action against Queen, Moore and Hughes to enforce an alleged lien agajnst the settlement proceeds for the benefits it had paid to Queen. The defendants moved for summary judgment, which was granted by the Oakland Circuit Court, Alice L. Gilbert, J. Great American appeals, alleging that it is entitled to satisfy its lien for workmen’s compensation benefits against the proceeds of the recovery for noneconomic benefits under the no-fault statute. Held:

    The workmen’s compensation insurer is not entitled to reimbursement from the proceeds of the settlement made in accordance with the no-fault statute. Because economic and noneconomic losses are two distinct types of loss, the injured employee is not provided with a double recovery.
    Affirihed.
    Allen, P.J., concurred separately to emphasize that the limitation on the workmert’s compensation insurer’s right to recover, for benefits paid, from a third-party tortfeasor applies only in a case where the injured party has been prohibited by the no-fault statute from recovering his economic benefits from the tortfeasor.
    References for Points in Headnotes
    [1, 2] Am Jur 2d, New Topic Service, No-Fault Insurance §§ 19.
    82 Am Jur 2d, Workmen’s Compensation § 432.
    No-Fault: right of insurer to reimbursement out of recovery against tortfeasor. 69 ALR3d 830.
    [2] Am Jur 2d, New Topic Service, No-Fault Insurance § 22.

      Opinion of the Court
    1. Insurance — Workmen’s Compensation — Automobiles—No-Fault Insurance — Third-Party Tortfeasors — Statutes.
    A workmen’s compensation insurer which pays benefits to an employee who has been injured is not entitled to reimbursement from a recovery by the employee from a third-party tortfeasor of noneconomic losses under the no-fault automobile insurance statute; the two recoveries, for economic loss and for noneconomic loss, represent compensation for distinct losses and do not provide double recovery to the injured employee (MCL 500.3135; MSA 24.13135).
    Concurrence by Allen, P.J.
    2. Workmen’s Compensation — Third-Party Tortfeasors — Recovery of Benefits — Automobiles—No-Fault Insurance — Statutes.

      Recovery by a workmen’s compensation carrier of beneñts paid to an employee who has been injured from the proceeds of a recovery of noneconomic losses by the employee from a third-party tortfeasor is prohibited only in cases where the limited tort recovery provisions of the no-fault automobile insurance statute apply (MCL 418.827[5], 500.3135; MSA 17.237[827][5], 24.13135).

      Johnson, Campbell & Moesta, P.C., for plaintiff.

      Freedman, Krochmal & Colman, for defendant Queen.

      Conklin & Maloney (Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, by John P. Jacobs, of counsel), for defendant Moore.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Randall D. Bryant), for defendant Hughes.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   Per Curiam.

The sole question in this case is whether a worker’s compensation carrier is entitled to be reimbursed from the injured employee’s recovery of noneconomic losses from the tortfeasors. The trial court held that they were not entitled to reimbursement and granted defendants’ motions for summary judgment.

Presently within this Court there exists a split of opinion on this issue. In Wrobel v Wayne County Road Comm, 79 Mich App 484; 261 NW2d 58 (1977), one panel of this Court relied upon the pre-no-fault case of Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975), and held that the compensation carrier was entitled to reimbursement. However, more recently in Reliance Insurance Co v Messina Trucking, Inc, 83 Mich App 159; 268 NW2d 328 (1978), another panel of this Court distinguished Pelkey and held that reimbursement was not authorized. We believe that Reliance Insurance Co v Messina Trucking, Inc is the better reasoned opinion and we adopt its reasoning and result herein. It makes no sense to us to reimburse plaintiff for monies paid out for economic loss out of a later recovery for noneconomic loss. The two recoveries represent compensation for distinct losses, without providing any double recovery for the injured employee. To adopt plaintiff’s argument would be to deny complete recovery to a seriously injured employee, while permitting any other person who suffers serious injury to recover in full. We do not believe that the Legislature, in enacting the worker’s compensation and no-fault acts, intended such a result.

Affirmed. No costs, a public question being involved.

Allen, P.J.

(concurring). I concur in the result in this case but believe it necessary to emphasize the limited nature of the holding in Reliance Insurance Co v Messina Trucking, Inc, 83 Mich App 159; 268 NW2d 328 (1978), and hence the limited nature of the holding in the instant case.

Section 827(5) of the Workers Disability Compensation Act, MCL 418.827(5); MSA 17.237(827)(5), provides that an employer or workers compensation insurance carrier shall be reimbursed for its payments from any tort recovery won by the injured employee. Since a recovery in tort virtually always compensated the injured person for his or her economic losses as well as other damages, the set-off provision of § 827(5) avoided a double recovery. With the advent of no-fault, tort recovery in automobile accidents was limited to a few situations not including the usual economic losses. MCL 500.3135; MSA 24.13135. An employee can no longer recover in tort for economic losses resulting from a traffic accident, and therefore there can be no double recovery from tort and workers compensation.

It is the interplay between the limited tort recovery of the no-fault act and the set-off provision of the workers compensation act which creates the unconstitutional classification struck down in Reliance Insurance Co v Messina Trucking, Inc, supra. And it is only in this situation that § 827(5) is being held unconstitutional.


text:
    PFEFFERLE v CORRECTIONS COMMISSION
    Docket No. 25635.
    Submitted May 12, 1976, at Detroit.
    Decided June 18, 1976.
    Sidney Pfefferle was an inmate at the State Prison of Southern Michigan. He escaped and later voluntarily surrendered to the State Police. The prison warden ordered the forfeiture of two years of Pfefferle’s accumulated good time. Pfefferle then instituted grievance proceedings which resulted in a hearing and a decision not to reverse the previous withdrawal of good time. Pfefferle brought a complaint for mandamus in the Court of Appeals, naming as defendants the Michigan Corrections Commission, the Director of the Department of Corrections, and the Warden of the State Prison of Southern Michigan, seeking an order directing the defendants to restore the good time which had been withdrawn. Held:

    1. Because escape is specifically included as a reason for forfeiture of accumulated good time in the statute which empowers the warden to take away good time, it is not necessary in this case to decide whether prison officials should promulgate more specific rules and regulations under the guidelines of the Administrative Procedures Act.
    2. A proceeding to revoke a prisoner’s good time must follow certain guidelines which have been set forth by the United States Supreme Court. In this case several of these guidelines were not followed and as a result the hearing was defective.
    Mandamus granted, defendants to conduct a hearing in compliance with the United States Supreme Court guidelines.
    1. Prisons — Prisoners—Good Time — Revocation—Appeal and Error — Statutes.
    A prison warden is given statutory authority to revoke a prisoner’s accumulated good time for certain offenses, including an escape; therefore, in acting upon a petition for mandamus from a prisoner whose good time was revoked after an escape it is not necessary for the Court of Appeals to decide whether under the guidelines of the Administrative Procedures Act a warden is required to promulgate more specific rules and regulations regarding revocation of good time for the offense of escape (MCL 24.201 et seq., 800.33; MSA 3.560[101] et seq., 28.1403).

      References for Points in Headnotes
    [1-3] 60 Am Jur 2d, Penal and Correctional Institutions § 64.
    Withdrawal, forfeiture, modification, or denial of good-time allowance to prisoner. 95 ALR2d 1965.

      2. Prisons — Prisoners—Good Time — Revocation.
    A proceeding to revoke a prison inmate’s accumulated good time must: (1) provide the inmate with advance written notice of a claimed violation; (2) provide the inmate at least 24 hours to marshal facts and prepare a defense; (3) provide a hearing at which the inmate shall be allowed to call witnesses and present documentary evidence, unless exercise of these rights will be unduly hazardous to institutional safety or correctional goals; (4) provide an illiterate or incompetent inmate with competent assistance if necessary; and (5) provide a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken.
    3. Prisons — Prisoners—Good Time — Forfeiture—Warden’s Discretion.
    The decision to forfeit a prisoner’s good time for an escape rests within the discretion of the prison warden; however, his decision should not work substantial injustice nor should the warden act in an arbitrary manner.
    Sidney Pfefferle, in propria persona.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas L. Casey, Assistant Attorney General, for defendants.
    Before: R. M. Maher, P.J., and M. J. Kelly and D. C. Riley, JJ.
   Per Curiam.

Sidney Pfefferle, an inmate imprisoned in the State Prison of Southern Michigan in Jackson, seeks a writ of mandamus to compel defendants to restore two years of accumulated good time withdrawn by defendants following plaintiff’s escape from custody. Plaintiff claims that the procedures used by defendants to withdraw the good time were constitutionally defective.

A brief recitation of background facts is helpful. In March, 1968, plaintiff was sentenced to 15 to 30 years for second-degree murder, MCL 750.317; MSA 28.549. While serving his sentence at Jackson Prison, plaintiff was accumulating good time pursuant to the statutory formula found in MCL 800.33; MSA 28.1403. During the first six years of his term in prison, plaintiff had repeatedly requested that the parole board grant him special parole, seeking a release before serving his minimum time. See MCL 791.233(b); MSA 28.2303(b). Plaintiff’s requests for special parole were consistently rejected, with the parole board informing plaintiff that his earliest release date would be 15 years from sentencing, less good time earned.

In August 1974, plaintiff escaped from a trustee detail, remained free for two weeks, and then voluntarily surrendered to the State Police. He has indicated that his escape was prompted by the homosexual harassment of a member of the prison staff, as well as the frustration resulting from persistent and, to his mind, erroneous denials of special parole requests.

On September 5, three days after his return to prison, Mr. Pfefferle was brought before a prison committee and was instructed on the possibility of forfeiture of good time. He made no statement. Five days later, the warden issued an order withdrawing two years of plaintiff’s good time. Nine months later, in June 1975, plaintiff instituted grievance proceedings and was granted a grievance hearing. On July 25 he received a "notice of intent to conduct an Administrative Hearing” from the warden. The notice merely informed plaintiff that there would be a hearing to obtain information "regarding his escape for which he forfeited good time”. On July 30, the hearing was held. Plaintiff apparently did not make any statement, insisting that he had a right to counsel. He did, however, file a letter detailing his reasons for the escape.

On August 4, the warden sent a letter to plaintiff stating simply that the warden declined at that time to reverse his previous withdrawal of good time. Plaintiff later received a hearing report that outlined his grievance but failed to indicate the particular reasons for denial. From this final administrative action, Mr. Pfefferle brings his pro per petition for mandamus.

Before addressing the possible procedural irregularities we must dispose of a preliminary issue. It is suggested that there can be no forfeiture of good time until prison officials promulgate rules and regulations under the guidelines of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560 (101) et seq. The previously cited statute authorizing good time accumulation also establishes the authority for revocation of good time:

" * * * The commissioner of corrections may, by general rule, subject to amendment from time to time and subject to general rules promulgated in compliance with the provisions of Act No. 88 of the Public Acts of 1943, as amended, being sections 24.71 to 24.82, inclusive, of the Compiled Laws of 1948, prescribe how much of the good time earned under the foregoing provisions a convict shall forfeit for 1 or more infractions of the prison rules in any month, and for any serious act of insubordination, attempt to escape, or escape, the warden may, by special order, take away any portion of the whole of the good time made by any convict up to the date of such offense * * * ” MCL 800.33; MSA 28.1403 (emphasis added).

We believe that this statute gives the warden the express authority to take away "any portion of the * * * good time” for "any serious act of insubordination, attempt to escape, or escape”. By statute, the warden need not rely on rules and regulations promulgated under the Administrative Procedure Act when revoking good time for certain offenses. Mr. Pfefferle’s escape is one such offense that is clearly mentioned in the statute. We need not consider therefore, on present petition, whether there must be more specificity to the phrase "serious act of insubordination” or whether present prison rules on forfeiture of good time for "infractions” comply with the Administrative Procedures Act. Those questions await resolution another day.

Our acknowledging that the warden has the statutory power to revoke, by special order, good time for an escape does not imply that the power is unfettered. A warden must comply with the specific due process mandates of Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974).

For a good time revocation process to be constitutional, Wolff requires:

(1) advance written notice of the claimed violation, 418 US at 563; (2) providing the inmate with at least 24 hours to marshal facts and prepare a defense, 418 US at 564; (3) a hearing, at which the inmate shall be allowed to call witnesses and present documentary evidence in his defense, unless prison officials, in the exercise of sound discretion, determine that exercise of these rights will be unduly hazardous to institutional safety or correctional goals, 418 US at 566; (4) providing an illiterate or incompetent inmate with some competent assistance when a need for such assistance is demonstrated, 418 US at 570; and (5) "a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken”. 418 US at 563.

Wolff additionally left to the sound discretion of state officials provision of an opportunity for confrontation and cross-examination, with the court noting that in certain cases "interest balancing may well dictate cross-examination”. 418 US at 569.

Finally, Wolff hinted that the decision maker(s) be "sufficiently impartial * * * not left * * * with unlimited discretion”. 418 US at 570-571. With these directives in mind, we conclude that Mr. Pfefferle was not treated fairly, for the good time revocation proceedings did not comport with the requirements of due process set out in Wolff

To begin with, the September proceedings were totally defective. Plaintiff received no prior written notice, nor was he given time to prepare a defense. It is therefore not surprising that at his "hearing” he did not call witnesses nor offer documentary evidence. The warden’s September 10 dispositional order did not satisfy the Wolff requirements of specificity of evidence and specificity of reasoning.

Nor do we believe that the July proceedings satisfied Wolff The July 25 notice was not a notice initiating proceedings to revoke good time but rather more in the nature of a notice of review of the initial disposition. Were this the only defect in the proceedings, we might not quibble over the terminology of the notice. However, we find further defects in the conduct of the second hearing. While plaintiff’s right to legal assistance has not been demonstrated, Wolff, supra, 418 US at 570; Baxter v Palmigiano, 425 US 308; 96 S Ct 1551; 47 L Ed 2d 810 (1976), the claim that plaintiff was entitled to call witnesses is sound. Given the possibility that his escape may have been justified because of threat of homosexual harassment, People v Luther, 394 Mich 619; 232 NW2d 184 (1975), plaintiff deserves an opportunity to establish his defense. The record does not establish any relinquishment of his right to present evidence, nor have defendants established that plaintiff’s calling witnesses would be unduly hazardous to institutional safety or correctional goals. Accordingly, we find the hearing defective. In addition, the August 4 letter from the warden and the subsequent issuance of a hearing report do not comply with the Wolff mandate of specific statements of evidence relied on and the decision maker’s reasoning.

We grant Mr. Pfefferle’s petition for mandamus and order defendants to conduct a hearing that complies with Wolff. Plaintiff shall be given: (1) a prior written notice of the intended revocation; (2) an opportunity to prepare his defense; (3) an opportunity to call witnesses and offer documentary evidence, unless defendants can show that such rights will be unduly hazardous to institutional safety or correctional goals; (4) an opportunity to request the confrontation and cross-examination of witnesses, with the granting or denial of his request left to the sound discretion of prison officials; and (5) a written statement of the factfindings as to the evidence relied upon and the reasons for the action taken. While the decision to forfeit a prisoner’s good time rests within the discretion of the warden, his ruling should not work "substantial injustice”, nor should the warden act in an arbitrary manner. People v Robinson, 41 Mich App 259, 264-265; 199 NW2d 878 (1972).

Finally, because the issue may arise again, we note that plaintiff's double jeopardy and/or equal protection arguments concerning loss of good time have been previously rejected. See People v Bachman, 50 Mich App 682; 213 NW2d 800 (1973), lv den, 392 Mich 776 (1974), and cases cited therein.

Writ of mandamus granted.

       MCL 24.71-24.82; MSA 3.560(7)-3.560(18) have been repealed by two public acts: 1964 PA 161 and 1969 PA 306. This latter legislation established the present Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Part of the act, MCL 24.312; MSA 3.560 (212), makes it clear that the good time statutory reference to the repealed act should now be construed as a reference to the present Administrative Procedures Act.