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

text:
    PEOPLE v BRAXTON
    Docket No. 77-2343.
    Submitted January 5, 1979, at Detroit.
    Decided August 20, 1979.
    Robert Braxton was convicted of first-degree criminal sexual conduct in a bench trial in Detroit Recorder’s Court, Samuel H. Olsen, J. More than a month before trial, defendant and his attorney executed before a court clerk the form required for waiving a jury trial. Immediately prior to defendant’s trial, the judge indicated, in the presence of defendant and his attorney, that the defendant had executed a written waiver of trial by jury. No comments or objections were moved by defendant or his counsel. Defendant appeals and argues that there was no knowing waiver of his right to a jury trial. Held:

    The written waiver of a jury trial executed by defendant and his attorney before the court clerk, when coupled with the trial court’s reference to that waiver form made in the presence of defendant and his counsel immediately prior to trial, satisfies the statutory requirement that the waiver be made in open court.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the statutory requirements for an effective waiver of the right to a jury trial were not satisfied. Neither the waiver form itself, nor the trial court’s reference to that form, establishes that the defendant waived his right to a jury trial in open court as required by statute. He would reverse and remand for new trial.
    Opinion of the Court
    1. Criminal Law — Right to Jury Trial — Waiver — Written Waiver — Open Court — Statutes.
    A written waiver of a jury trial executed by defendant, with his attorney present, before a court clerk, when coupled with reference to that waiver form made by the trial court in the presence of defendant and his counsel immediately prior to trial, is sufficient to satisfy the statutory requirement that the waiver of the right to a jury trial shall be in open court after an opportunity to consult with counsel (MCL 763.3; MSA 28.856).

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 219.
    47 Am Jur 2d, Jury §§ 83, 84.

       47 Am Jur 2d, Jury §§ 83, 84.

      Dissent by T. M. Burns, J.
    2. Criminal Law — Right to Jury Trial — Waiver — Written Waiver — Open Court — Oral Waiver — Statutes.

      The statutory requirement that a waiver of the right to a jury trial must be in open court requires proof, other than the written waiver itself, that the waiver occurred in open court (MCL 763.3; MSA 28.856).

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

      John C. Mouradian, for defendant on appeal.
    Before: N. J. Kaufman, P. J., and T. M. Burns and Bashara, JJ.
   Bashara, J.

The majority of this panel adopts the factual determination set forth by Judge Burns. However, we reach a different conclusion and would affirm the conviction.

MCL 763.3; MSA 28.856 provides that the "waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel”.

A review of the record reveals that defendant was accompanied by counsel when he signed the proper waiver form in open court before a clerk of the court.

Immediately prior to trial, the judge indicated on the record that the defendant had executed the waiver. At the time of that pronouncement, defendant and his attorney were in the courtroom.

The cases cited by the dissent can be distinguished. In People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974), and People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975), no written waiver was made a part of the record. In People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), and People v Word, 67 Mich App 663; 242 NW2d 471 (1976), no oral acknowledgment was made in open court.

Rather, we rely on our majority opinion in People v McKaig, 89 Mich App 746; 282 NW2d 209 (1979), People v Little, 87 Mich App 50; 273 NW2d 583 (1978), and People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975).

Affirmed.

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

T. M. Burns, J.

(dissenting). Defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l)(f); MSA 28.788(2)(l)(f), in a bench trial. The only question on appeal is whether defendant properly waived his constitutional right to be tried by a jury.

On January 26, 1977, defendant and his attorney executed before a court clerk a document waiving a jury trial. The form signed is that required by the statute. MCL 763.3; MSA 28.856. Trial began over a month later, March 8, 1977. At that time, the trial court stated: "Let the record show the defendant has executed a written waiver of trial by jury.” There was no questioning of the defendant by the court and defendant said nothing.

In my view, there was not sufficient compliance with the statute. Defendant did not properly waive his right to a jury trial and the conviction should be reversed.

The rules surrounding waiver of a jury in criminal cases are collected and discussed in 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 558, p 52. Recognizing the importance of a jury trial in our scheme of criminal procedure, and its exclusivity at the common law, our courts have required strict compliance with the statute before an effective waiver will be found. People v Edwards, 51 Mich App 403; 214 NW2d 909 (1974), People v Polhamus, 59 Mich App 609; 230 NW2d 171 (1975), lv den 394 Mich 819 (1975). Where the written waiver is executed well before trial, it is necessary that there be proof, other than the document itself, that the waiver occurred in open court. An oral waiver before taking evidence is sufficient proof of this fact and is a necessary step in situations such as presented here. People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975), People v Word, 67 Mich App 663; 242 NW2d 471 (1976). See also my dissenting opinion in People v McKaig, 89 Mich App 746, 751; 282 NW2d 209 (1979), also submitted to this panel.

In this case there is no indication that defendant waived his right to a jury in open court as required by the statute. The trial court’s statement refers only to a written waiver in the file. It has no bearing on where or when or under what circumstances that waiver was executed. The record does not show that the provisions of the statute were followed and defendant is entitled to a new trial.

I would reverse and remand.

       Compare People v Slappy, 59 Mich App 525; 230 NW2d 4 (1975), and People v Little, 87 Mich App 50; 273 NW2d 583 (1978), where an effective waiver was found with the facts of this case.


source: Caselaw Access Project

author: J. H. Gillis, P.J.

license: Public Domain

text:
    PEOPLE v ASHFORD
    Docket No. 77-3549.
    Submitted May 3, 1979, at Detroit.
    Decided August 20, 1979.
    Marshall Ashford was convicted of two counts of first-degree criminal sexual conduct, one for forcing a complainant to perform fellatio during the commission of another felony, namely armed robbery, and one for forcing the same act of fellatio while the defendant was armed with a dangerous weapon, and one count of armed robbery, Recorder’s Court of Detroit, Justin C. Ravitz, J. The defendant appeals. Held:

    1. The defendant’s lack of objection to the trial judge’s alleged failure to instruct the jury on all elements of the charged crime of first-degree criminal sexual conduct did not waive the defendant’s rights to review. However, it was not error for the trial court to fail to instruct the jury on the sexual nature of fellatio, since there is no question about the sexual nature of this act.
    2. The defendant failed to object to the trial court’s instruction to the jury, given suá sponte, regarding the disposition of the defendant should he be found not guilty by reason of insanity. In the absence of a showing of manifest injustice, this issue was not preserved for appeal.
    3. The prosecutor’s comments regarding the disposition of the defendant should a verdict of not guilty by reason of insanity be returned do not mandate reversal. The comments of the prosecutor were in response to defense counsel’s remarks and were brief and not prejudicial.

      References for Points in Headnotes

       75 Am Jur 2d, Trial §§ 713, 908.

       75 Am Jur 2d, Trial §§ 701, 718.

       75 Am Jur 2d, Trial § 906 et seq.

       5 Am Jur 2d, Appeal and Error § 624.

       40 Am Jur 2d, Hospitals and Asylums § 43.
    31 Am Jur 2d, Expert and Opinion Evidence § 36 et seq.

    Admissibility under business entry statutes of hospital records in criminal cases. 69 ALR3d 22.

       31 Am Jur 2d, Expert and Opinion Evidence § 36 et seq.

       21 Am Jur 2d, Criminal Law § 182 et seq.

    Double jeopardy under statutes relating to sexual psychopaths. 24 ALR2d 354.

      4. Testimony by an expert witness for the prosecution regarding the defendant’s sanity was properly admitted into evidence. The expert’s opinion testimony was properly based, in part, upon a chart compiled during the defendant’s 30-day stay at the forensic center.
    5. The foundation for the prosecution’s expert witness’s testimony was properly brought out on cross-examination. It did not have to be laid prior to the witness’s direct testimony.
    6. Defendant’s allegation that the trial court erred in considering incorrect information in the presentencing report was not preserved for appeal.
    7. The defendant’s constitutional protection against double jeopardy was violated by convictions on two separate counts of first-degree criminal sexual conduct where there was only one sexual act involved. The conviction on the second count of first-degree criminal sexual conduct is reversed, the other is affirmed.
    Convictions for one count of first-degree criminal sexual conduct and for armed robbery are affirmed. The conviction for the second count of first-degree criminal sexual conduct is reversed.
    1. Criminal Law — Instructions to Jury — Elements of Charged Crime — Request for Instructions — Failure to Object — Appeal and Error.
    It is incumbent upon a trial judge to instruct the jury on all elements of a charged crime even in the absence of a request by the defendant; lack of objection to the trial judge’s failure to so instruct the jury does not waive the defendant’s right to review.
    2. Criminal Law — Criminal Sexual Conduct — Sexual Act — Fellatio — Instructions to Jury.
    There is no question about the sexual nature of an act of fellatio; therefore, where a defendant was charged with first-degree criminal sexual conduct for forcing a complainant to perform fellatio, it was not error for the trial court to fail to give an instruction to the jury concerning the sexual nature of the act.
    3. Appeal and Error — Criminal Law — Instructions to Jury — Not Guilty by Reason of Insanity — Disposition of Defendant — Manifest Injustice.
    A defendant may not raise on appeal a claim that a trial judge gave, sua sponte, an instruction to the jury regarding the disposition of the defendant should he be found not guilty by reason of insanity, unless the defendant makes a showing of manifest injustice, where no objection was raised at trial.
    4. Criminal Law — Prosecutor’s Comments — Insanity — Disposition of Defendant — Appeal and Error.
    Neither the prosecutor nor defense counsel may comment during trial upon the consequences of a jury finding that a defendant is not guilty by reason of insanity; however, where a prosecutor’s remarks regarding such consequences are in response to defense counsel’s comments regarding the same subject and the remarks are brief and not prejudicial, no reversible error occurs.
    5. Witnesses — Expert Witnesses — Criminal Law — Evidence — Admissibility of Evidence — Statutes.
    Opinion testimony of an expert psychiatric witness that was based on a chart compiled during a defendant’s stay at the forensic center is admissible as evidence where the chart was of historical value to the expert (MCL 330.2028[3]; MSA 14.800[1028][3]).
    6. Witnesses — Expert Witnesses — Basis of Opinion — Cross-Examination — Court Rules.
    The factual data upon which an expert witness has based his opinion is not required to be presented on direct examination; it may be brought out on cross-examination (GCR 1963, 605).
    7. Constitutional Law — Double Jeopardy — Two Convictions — Single Offense — Criminal Sexual Conduct.
    Conviction of a defendant on two separate counts of first-degree criminal sexual conduct where there was only one sexual act involved violates the defendant’s constitutional protection against double jeopardy.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offender Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Cooper, Shifman & Gabe (by Philip H. Seymour), for defendant on appeal.

      Before: J. H. Gillis, P.J., and Beasley and R. B. Webster, JJ.

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

   J. H. Gillis, P.J.

Defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520(b)(1); MSA 28.788(2)(1), and one count of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to life imprisonment on each count and appeals by right.

On July 17, 1976, Linda Hollins was at a motel with a friend, Stephen Harris. At or about 3:30 a.m., defendant forcibly entered the room with a gun in his hand. He ordered Harris to get into the closet. Defendant then asked Ms. Hollins for money and dope and took approximately $25 from her purse.

After taking the money, defendant made Ms. Hollins perform fellatio while he held the gun to her head. He then told her to get into the closet and stay there for five minutes. When Harris and Ms. Hollins came out of the closet they noted that Harris’s shoes and money from his pants were missing.

Defendant was identified by Ms. Hollins in a lineup held on November 26, 1976.

Defendant’s initial arguments concern the trial court’s instructions. He contends the trial court failed to specifically instruct the jury that to be guilty of first-degree criminal sexual conduct defendant must have committed a sexual act. Furthermore, defendant contends the trial court failed to instruct the jury on intent and asportation as elements of armed robbery.

While defendant did not object to the court’s instructions at trial, it is incumbent upon the judge to instruct on all elements of the charged crime even in the absence of a request by the defendant. Failure to object does not waive the defendant’s right to review in these circumstances. People v Price, 21 Mich App 694; 176 NW2d 426 (1970).

Defendant’s contention that the trial court should have given CJI 20:2:04 which defines "sexual act” is without merit. The note to that section indicates the instruction must be given when there is any question about the sexual nature of the act. Here, the facts indicate defendant forced Ms. Hollins to perform fellatio. There is no question about the sexual nature of this act. Hence, it was not error to omit CJI 20:2:04.

We also reject defendant’s argument concerning' the armed robbery instructions. A review of the transcript reveals that the jury was instructed on both specific intent and asportation.

Defendant next argues that the trial court committed reversible error by sua sponte instructing the jury regarding the disposition of defendant should he be found not guilty by reason of insanity. In the absence of an objection this Court will not reverse unless manifest injustice is shown. People v Samuelson, 75 Mich App 228; 254 NW2d 849 (1977). Defendant has failed to demonstrate such a result.

Defendant also argues that the prosecutor’s comments regarding the disposition of defendant as a result of a verdict of. not guilty by reason of insanity mandate reversal. While the general rule proscribes such comment by either counsel, no reversible error occurs where, as here, the comments of the prosecutor were in response to defense counsel’s remarks and were brief and not prejudicial. People v Hall, 83 Mich App 632; 269 NW2d 476 (1978), People v Blake, 58 Mich App 685; 228 NW2d 519 (1975).

Defendant also argues that the trial court committed reversible error by admitting the testimony of an expert witness, Dr. Margolis, who testified that in his opinion defendant was not insane at the time of the offense.

Dr. Margolis was a psychiatrist who examined the defendant pursuant to a court ordered evaluation. Dr. Margolis based his opinion, in part, upon a chart compiled during defendant’s 30-day stay at the forensic center. MCL 330.2028(3); MSA 14.800(1028)(3) provides in part:

"Information gathered in the course of a prior examination that is of historical value to the examining qualified clinician may be utilized in the formulation of an opinion in any subsequent court ordered evaluation.”

We find that Dr. Margolis’s testimony was admissible under this provision. Furthermore, a foundation did not have to be laid prior to the witness’s testimony, but was properly brought out upon cross-examination. GCR 1963, 605, People v King, 58 Mich App 390; 228 NW2d 391 (1975).

Defendant’s argument that the trial court erred in considering incorrect information contained in the presentencing report was not preserved for appeal. See People v Powell, 87 Mich App 192, 194; 274 NW2d 16 (1978). .

Defendant’s contention that the constitutional protection against double jeopardy was violated when he was convicted on two separate counts of criminal sexual conduct where there was only one act is correct. People v Willie Johnson, 406 Mich 320; 279 NW2d 534 (1979). Therefore, his conviction on the second count of first-degree criminal sexual conduct is reversed and the sentence imposed for that charge is vacated.

Defendant’s other two convictions are affirmed.


author: D. E. Holbrook, J.

text:
    PURSELL v WOLVERINE-PENTRONIX, INC.
    Docket No. 77-3720.
    Submitted June 15, 1979, at Lansing.
    Decided August 20, 1979.
    Leave to appeal applied for.
    C. L. Pursell was employed, at the age of 59, by Wolverine-Pentronix, Inc., which orally agreed to employ him until he reached retirement at age 65. Prior to reaching age 65, Pursell’s employment was terminated. He brought an action against Wolverine-Pentronix for damages for breach of the oral employment contract. The trial court granted the defendant’s motion for accelerated judgment, based úpon the statute of frauds. The plaintiff appealed, and the Court of Appeals reversed and remanded for trial, 44 Mich App 416 (1973). The plaintiff had relied upon the doctrine of equitable estoppel to prevent the defendant from raising the defense of the statute of frauds. The Court of Appeals held that the facts adduced at trial might show sufficient reliance on the oral contract by the plaintiff, to his detriment, to estop the defendant from raising the defense. At the trial, at the conclusion of plaintiff’s proofs, the Jackson Circuit Court, Charles J. Falahee, J., granted defendant’s motion for a directed verdict, finding as a matter of law that the plaintiff had failed to establish that he had given up prior employment and substantial retirement benefits in reliance upon the oral agreement and that the defendant, therefore, was entitled to rely upon the statute of frauds as a defense. The plaintiff appeals. Held:

    Reviewing the facts in the light most favorable to the plaintiff, reasonable men could differ on the question of whether the plaintiff acted to his detriment solely in reliance upon the oral agreement with the defendant. The trial court’s grant of defendant’s motion for a directed verdict was, therefore, error.
    Reversed and remanded.
    1. Appeal and Error — Directed Verdict — Evidence.
    The Court of Appeals will view the evidence in the light most favorable to a plaintiff who is appealing from a trial court order granting a defendant’s motion for a directed verdict; the test for determining whether the motion should have been granted is whether or not evidence was offered upon which reasonable minds could differ.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 886.

       73 Am Jur 2d, Statute of Frauds § 565.

      2. Frauds, Statute of — Estoppel — Evidence — Question of Fact — Directed Verdict.
    An estoppel may be raised to defeat the defense of the statute of frauds where one has acted to his detriment solely in reliance on an oral agreement, and a trial court erred in granting a directed verdict for a defendant in a case in which the plaintiff presented sufficient evidence to raise a question of fact as to whether he acted to his detriment by giving up his prior employment and its substantial retirement benefits solely in reliance on an oral employment agreement with the defendant.

      Edward L. Cobb, P.C., and Navarre & Navarre, P.C., for plaintiff.

      Levin, Levin, Garvett & Dill (by Leonard J. Grabow), for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, 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.

   D. E. Holbrook, J.

Plaintiff sued defendant for breach of an oral employment contract, the circuit court granted defendant’s motion for directed verdict, and judgment in favor of defendant was entered.

This case was first before the Court in Pursell v Wolverine-Pentronix, Inc, 44 Mich App 416; 205 NW2d 504 (1973). There the circuit court had granted defendant’s motion for accelerated judgment based on the statute of frauds and this Court reversed and remanded for trial, stating in pertinent part as follows:

"The facts appearing in the plaintiff’s complaint are largely uncontested. In 1966, the plaintiff was 59 years old and employed by Dow Chemical as general manager of its plant in Jackson, Michigan. This plant was acquired by the defendant from Dow Chemical on September 1, 1966. The defendant offered to keep the plaintiff on as general manager, orally promising to employ him as vice-president until he reached retirement at age 65. In reliance on these promises, the plaintiff severed his employment with Dow Chemical and accepted the position offered by the defendant. In June of 1970, the defendant terminated plaintiff’s employment thereby breaching the oral promise.
"The plaintiff’s first contention in this Court is that the trial court erred in dismissing his claim for damages resulting from the breach of the oral contract of employment.
"At the outset, it must be stated that a contract not to be performed within one year from its making must be in writing to be enforceable, MCLA 566.132(1); MSA 26.922(1), and that this rule applies to oral contracts of employment. Adolph v Cookware Co of America, 283 Mich 561 [278 NW 687] (1938); Lynas v Maxwell Farms, 279 Mich 684 [273 NW 315] (1937).
"The plaintiff concedes that the oral contract is covered by the above-cited rule but argues that the defendants are estopped from raising this defense.
"The doctrine of equitable estoppel, upon which the plaintiff relies is set forth in 3 Williston, Contracts (3d ed), § 533A, p 796:
" 'Where one has acted to his detriment solely in reliance on an oral agreement, an estoppel may be raised to defeat the defense of the Statute of Frauds.’
"In the instant case, plaintiff argues that the giving up of his prior employment and the substantial retirement beneñts that accompanied it constituted sufficient reliance within the meaning of the doctrine. The defendants counter this argument with the proposition that the giving up of other employment is not sufficient to invoke the doctrine of estoppel. In support of this proposition the defendant cites Adolph v Cookware Co of America, 283 Mich 561 [278 NW 687] (1938); Gude nau v Farm Crest Bakeries, 268 Mich 399 [256 NW 462] (1934), and McLaughlin v Ford Motor Co, 269 F2d 120 (CA 6, 1959). The holdings of these cases are adequately stated in McLaughlin, supra, 124, 125, in the following language:
" 'The exception recognized by that case and in some other jurisdictions is that the oral agreement is not affected by the Statute of Frauds if it is supported by a consideration separate and apart from its performance, such as where the plaintiff has given up something to the defendant for which it would not be compensated unless the agreement was enforced. * * * The action of the appellant in giving up his position with the General Motors Corp. was only a necessary incident in placing himself in a position so that he might perform his agreement with the Ford Motor Company. This conferred no benefit upon the Ford Motor Company and was not a separate consideration passing from the appellant to the Ford Motor Company within the meaning of the rule. Lynas v Maxwell Farms, 279 Mich 684, 689; 273 NW 315 [1937]; Adolph v Cookware Co of America, 283 Mich 561, 568; 278 NW 687 [1938].’
"Thus, these cases did not deal with the problem of estoppel and are not controlling.
"A careful review of the law in this state reveals that the only case dealing with the doctrine of estoppel as applied to a factual situation similar to the instant case is Oxley v Ralston Purina Co, 349 F2d 328 (CA 6, 1965). In Oxley, supra, the plaintiff underwent considerable expenditures to begin to operate a 'hog leasing’ program as a result of an oral agreement with the defendant. The Court upheld the trial judge’s finding that the defendant was estopped from asserting the Statute of Frauds.
"Granted, there may be a difference between the spending of a large amount of money in reliance on an oral contract and one’s giving up of his employment. However, the doctrine of equitable estoppel applies in those cases where its application is called for by the facts. Oxley, supra.
"In the instant case, the facts adduced at trial may show that in this particular case, there was sufficient reliance to estop the defendant from raising the Statute of Frauds as a defense. Therefore, the granting of the motion for accelerated judgment was improper.” (Emphasis added.)

Trial of the case commenced on July 18, 1977. At the conclusion of plaintiffs proofs, the motion of the defendant for a directed verdict was granted on the grounds that plaintiff, as a matter of law, had failed to establish that he gave up prior employment and substantial retirement benefits with Dow and that, therefore, no estoppel was present and defendant was entitled to assert the statute of frauds as a defense.

The rule as to motions for directed verdicts is clearly stated in the case of Light v Schmidt, 84 Mich App 51, 59; 269 NW2d 304 (1978), as follows:

"When a defendant is seeking a directed verdict, the motion may be offered at the close of plaintiffs evidence. GCR 1963, 515.1. On appeal from a trial court order granting defendant’s motion for a directed verdict, this Court will view the evidence presented in the light most favorable to the plaintiff. Cody v Marcel Electric Co, 71 Mich App 714; 248 NW2d 663 (1976), lv den, 399 Mich 851 (1977), Hensley v Colonial Dodge, Inc, 69 Mich App 597; 245 NW2d 142 (1976). The proper test for determining whether the motion should be granted is whether or not evidence was offered upon which reasonable minds could differ. Armstrong v LeBlanc, 395 Mich 526; 236 NW2d 419 (1975).”

In this case we must determine if there was sufficient evidence presented by plaintiff to raise a question of fact as to whether plaintiff acted to his detriment solely in reliance on the oral agreement with the defendant.

The plaintiff, Mr. Pursell, testified that he was manager of the Jackson plant, that he had been an employee of Dow for more than five years at the time of negotiations by defendant with Dow for the purchase of the Jackson plant, and that he was never terminated by Dow. It was his desire to continue to work for Dow. He had a good record with Dow and inquired of Mr. Ansell, his boss, about a transfer to the Madison plant near St. Louis, Missouri, and also made inquiry of Personnel at the home office at Midland about transfer to another Dow position if and when the Jackson plant was disposed of by Dow. The person at Personnel replied: no problem, let us know 90 days ahead of that time. Mr. Ansell, plaintiffs boss, said plaintiff was a capable person and he would like to have Pursell with him and would recommend to Dow that he come with him to the Madison plant. Mr. Herbert Lyon, on the board at Dow, testified that to his knowledge there was no one at Dow that objected to Mr. Pursell continuing to work for Dow. He also stated that Dow had an executive pool that Mr. Pursell was qualified to be assigned to, should his position at the Jackson plant be discontinued. Mr. Lyon also testified:

"Q. [by Mr. Cobb] Mr. Lyon, you were asked in your January 1975 deposition did you make an effort to place people in the organization who were displaced by reason of this sale to other organization?
"MR. GRABOW: Would you repeat.
"Q. Did you make an effort to place people in the organization? The answer was,
" 'We certainly did. The Dow Chemical Company does not sell off a facility and jerk it right out from under the employees and cast them loose. That is what I don’t like about the word termination.’
"Q. That’s what I was trying to get at, company policy. The answer was,
" T felt that we make every effort to place the employees in a situation of that sort.’ ”

It was established that plaintiffs five years’ service would qualify him for the regular Dow retirement plan should he be placed in the Dow organization that had the plan; that under the plan and with his five years of credit with Dow, he would have 11 years of credit at age 65 and be entitled to substantial benefits.

Mr. Pursell, the plaintiff, testified concerning the conversation he had with defendant corporation’s officers: Mr. Donald Smith, Chairman of the Board, the executive vice-president, Mr. Clark, and an accountant and another person connected with the defendant. This testimony is as follows:

"Q. [Mr. Cobb, plaintiffs attorney] Did something come up concerning sale of the Plant and your continuing employment with Dow?
"A. Yes, Mr. Smith asked me what I needed to run the Plant as the Manager of the Plant and I said, 'It isn’t my intent to work for you.’ He said, 'Well I can’t use this Plant unless you do’ and then we got into a discussion of what he could offer.
"Q. Did the question of your age come up?
"A. Yes, I told him I was getting too far along in life to be making transfers to another corporation and thought it was best for my family to stay with Dow in order to accumulate credit for pension fund.
"Q. In connection with negotiations to retain you as Manager was this subject discussed?
"A. Yes, Mr. Smith asked how much money I made.
"MR. GRABOW: These questions are all narrative questions, and I am put in the position because of the questions Mr. Cobb is asking.
"MR. COBB: I merely asked if the question of age came up in connection with the discussion.
"MR. GRABOW: You are asking for a narrative.
"THE COURT: That’s yes or no. Did the question of age come up?
"THE WITNESS: Yes.
"Q. What was the subject of the age matter?
"A. I said I was too old to be changing jobs and for the protection of my family I should stay with Dow.
"Q. Were you 59 then?
"A. Yes.
"Q. What was his response?
"A. He said, 'How much do you think you would get in the Dow pension’ and I said, T never checked it but I thought in the area of $500 a month at age 65.’
"MR. GRABOW: I have to protect the record and we have nothing to do with Dow pension unless it is established he was under the Dow Chemical plan.
"THE COURT: I think you can go into this on cross-examination if there was one or two Dow pensions.
"Q. What did he respond?
"A. He said $500 was peanuts and they didn’t believe in pensions and would put me in profit sharing which was a better paying proposition based on profit and he asked how much I made and he said I will raise you at least $2,500 a year.
"Q. What did you receive at this time?
"A. At this time Dow was paying me $20,000 a year and he said I will start you at 22,500 and I will let you know in a couple of days after we talked it over. That will be a minimum.
"Q. Did he offer anything else?
"A. Yes, 'Does Dow furnish you with a Company Car.’ I said, 'No’ and he said, 'We would intend to give you a Company Car.’ Indicating in the Buick class and he said, 'At least a $4,000 car.’ He said, 'Are you getting vacations and insurance’ and I said, 'Yes, both’ and he said, 'How much is your insurance’ at that time Dow was paying double of the salary $40,000 of life insurance and he said, 'We will give you far more insurance than that, at least two and a half times your salary.’
"Q. Did the question of entertainment or travel come up?
"A. Yes, he said, 'Does Dow furnish you with entertainment expense’ and I said, 'We had very little entertainment expenses’ and he said, 'Do you belong to the Country Club’ and I said, 'Yes’ and he said, 'Does Dow pay for the Country Club’ and I said 'No’ and he said, 'All of our Vice Presidents are paid to belong to the Country Club and we will pick up your tab’ and he said 'Do you have a credit card’ and I said, 'No’ and he said, 'All of our employees have Standard Oil credit cards and you will have that for yourself.’
"Q. (By Mr. Cobb) Mr. Pursell, you were talking about negotiations with Mr. Smith concerning your employment contract. Did you talk about insurance.
"A. Yes, Mr. Smith asked me how much insurance Dow carried on my life insurance and I said 'two times the amount of the salary and he said, 'We would give you two and one half times the salary plus a $17,000 Phoenix policy’ which I think brought it around to $82,000 in coverage and said, 'We will furnish Blue Cross, Blue Shield.’ I guess we covered it.
"MR. GRABOW: If the Court please, I hate to interrupt again. Mr. Cobb I am sure knows this is true in this Jury case asking about insurance is asking a leading question.
"THE COURT: It was testified to anyway this morning the same thing. I think it is already in the record.
"Q. Were retirement benefits discussed of Dow versus Wolverine?
"A. Yes. Mr. Smith asked me what age I retired under the Dow Plan and I said, 'Age 65’ and he said, 'Well we don’t have any age limits in our Company. A man' can work as long as—
"MR GRABOW: Objection, materiality. The complaint is based on age 65, Your Honor. I have to object again Counsel doesn’t know his own declaration.
"THE COURT: Bear in mind Jurors the claim is not beyond age 65. As to any testimony beyond age 65, no damages can be assessed.
"Q. Did you discuss with him your concern that you would be employed until your retirement age and in effect only six years from retirement?
"MR. GRABOW: Objection that’s the most leading question I have heard in the last 20 years of my practice.
"THE COURT: Well, it is hard some times to draw the line between what is leading and what isn’t.
"MR. GRABOW: I realize that and I have tried to withhold my natural reaction.
"THE COURT: I will overrule.
"MR COBB: He can answer.
"THE WITNESS: Yes, I told Mr. Smith at that time I felt I was too old to be switching plans and it was at that time he said 'How old are you and how long and when do you retire under Dow.’
"Q. What did you tell him?
"A. I told him Dow had a retirement plan at age 65 and he said 'We don’t have any age limits.’
"Q. What was your present age at that time?
"A. At that time I was 59.
"Q. When is your birthday?
"A. August 24, 07.
"Q. And what did he respond to your comment that you were too old to switch plans?
"A. He said in that connection, 'We don’t have an age limit. As a matter of fact we have people 65 and older still working for us.’
"Q. Did you get any assurance from him concerning employment and the age time?
"A. Yes, Mr. Smith said that he would hire me at least until age 65.
"Q. Now, did you ask for an employment contract?
"A. Yes, after all these offers had been made I said, 'Mr. Smith I think we should have some kind of written agreement.’ He said 'We don’t give written agreements if a man’s word and a handshake isn’t good then we better not talk any further.’ At that time he pulled out of his pocket a Prudential.
"MR. GRABOW: Just a moment, Mr Pursell. Your Honor. I realize my prior objections have been stated and I will not repeat them. He is now talking about pulling something out of his pocket and it is not at all responsive to the question and if you read back the question there is no element of response, if there is an area he wants to talk about it is not being done in anything approaching proper procedures.
"THE COURT: Barbara will you read back that last question?
"Reading: Did you ask for an employment contract?
"THE COURT: And the answer is yes or no.
"THE WITNESS: Yes, sir.
"Q. What was his response to your request for a written contract?
"A. He said we do not have written contracts. We think a man’s word is sufficient and if we can’t have it on a handshake we better not talk any further. Then he handed me a copy of a Prudential Life Insurance note for a million and one half dollars.
"Plaintiffs Exhibit 2 marked.
"Q. Will you identify this copy, Mr. Pursell?
"A. A proposal for one and a half million dollar loan for Wolverine and he handed that to me and said 'These people think our word is good and if they think so I think you should think so too’ or words to that effect.”

The proper test for determining whether a plaintiff should be granted a motion for directed verdict is whether reasonable men could reach different conclusions from the facts taken in the light most favorable to the plaintiff.

After a careful review of the facts in this case as stated herein, we rule that reasonable men could reach different conclusions as to whether plaintiff acted to his detriment solely in reliance on the oral agreement with the defendant. We therefore find that the trial court erred in granting the motion for directed verdict in favor of defendant.

Reversed and remanded for a new trial. Costs to plaintiff.


author: V. J. Brennan, P.J. C. J. Hoehn, J.

text:
    PEOPLE v KING
    Docket No. 77-4253.
    Submitted January 10, 1979, at Lansing.
    Decided August 20, 1979.
    Defendant, Melvin King, was convicted of attempted armed robbery in the Recorder’s Court of Detroit, John Patrick O’Brien, J. Defendant appeals alleging abuse of discretion in ruling that the prosecution could introduce evidence of defendant’s prior felony conviction in cross-examination in the event defendant testified. Held:

    It is sufficient that the court recognized that it had discretion in allowing or disallowing evidence of defendant’s prior conviction to be used in cross-examination. It is not necessary that the court place its weighing process of the various factors on the record.
    Affirmed.
    C. J. Hoehn, J., concurred in the result for a different reason. He would hold that the failure of the court to require the prosecution to justify the use of a prior conviction to impeach defendant was harmless error in this case. He would further hold that whenever a defendant impeaches a prosecution witness by the use of prior convictions, the trial judge has a sufficient basis for permitting the prosecutor to use prior convictions of defendant for impeachment purposes.
    Opinion of V. J. Brennan, P.J.
    1. Criminal Law — Evidence — Impeachment — Prior Convictions.
    It is within the discretion of the trial court to allow or disallow impeachment of a criminal defendant by evidence of prior convictions after considering various factors; a trial court did not err in exercising its discretion where it recognized its discretion, even though it failed to specifically place the weighing process in the record and where there is no showing that improper factors were considered.
    References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320, 321, 327, 333.

       81 Am Jur 2d, Witnesses §§ 569-571.

      Opinion of C. J. Hoehn, J.
    2. Criminal Law — Evidence — Impeachment — Prior Convictions.

      Failure of the prosecutor to justify admission of evidence of prior convictions to impeach the defendant was not prejudicial where the defendant used prior convictions to impeach a prosecution witness; in such circumstances the trial judge has a sufficient basis for permitting the 'prosecution to use defendant’s prior convictions for impeachment.

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

      Alvin C. Sallen, for defendant.
    Before: V. J. Brennan, P.J., and M. F. Cavanagh and C. J. Hoehn, JJ.

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

   V. J. Brennan, P.J.

Defendant, Melvin King, was charged with armed robbery in violation of MCL 750.529; MSA 28.797. Defendant’s jury trial resulted in his being convicted, on November 10, 1976, of attempted armed robbery. MCL 750.92; MSA 28.287. On November 24, 1976, defendant was sentenced to 40 to 60 months in prison, and defendant appeals from his conviction as of right.

Defendant raises only one issue on this appeal. Defendant claims that the trial court did not properly exercise its discretion when it ruled that defendant’s prior conviction for armed robbery could be used by the prosecution in cross-examination if the defendant elected to testify. We disagree.

Upon review of the record it is found that the prosecution properly requested a ruling as to the admissibility of defendant’s prior conviction. This, together with the trial court’s response, indicated that the trial court recognized its discretion in the matter and thus the rule in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), was not violated. It is true that in the exercise of this discretion various factors are to be balanced. See People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). However, no Michigan case holds that this weighing process must be specifically placed on the record. In the recent case of People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), the Supreme Court could have imposed this specific requirement but chose not to do so.

The present case differs from Baldwin, supra, and Crawford, supra, wherein the trial court violated the proper standard in exercising its discretion. Since the record in the present case indicates that the trial court recognized its discretion and since there is no showing that improper factors were considered, we find no error.

Defendant’s conviction is affirmed.

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

C. J. Hoehn, J.

(concurring). I concur in the result but not the reasoning set forth in Judge Brennan’s well-considered and well-written opinion in the instant case.

Reference to the record does not reveal any showing by the prosecution to justify the use of the conviction for impeachment purposes. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), requires such a showing on the record.

"The court below did not require the people to justify the use of these convictions for impeachment purposes. The defendant does not have the burden of persuading the court that his criminal record should be excluded. The people must justify admission.” (Emphasis added.) Crawford, supra, 38.

Here the record is barren of any showing by the prosecution to justify the use of prior convictions to impeach.

The error, in this instance, is not prejudicial. The trial of this case occurred before the decision in Crawford, supra, and followed the procedure approved by this Court in People v Pleasant, 69 Mich App 322; 244 NW2d 464 (1976). The failure of the trial court to anticipate the procedural methods set forth in Crawford, does not, per se, require reversal of the conviction.

The writer would hold that Crawford is only a method to assist the appellate court in checking to insure that defendant has received a fair trial and as such should be prospective in nature only.

It is further noted that the defendant used prior felony convictions to impeach the complaining witness.

It would be an interesting twist to the "good guy —bad guy” syndrome, which has lately so titillated the bench and bar, if the defendant were released because the impeached complaining witness appeared before the jury as the "bad guy” while, the convictions of the defendant having been suppressed by the court, the defendant appeared to the jury as the "good guy”.

I would hold that, whenever a defendant impeaches a prosecution witness by the use of prior convictions, the trial judge has a sufficient basis for permitting the prosecution to use prior convictions of defendant for impeachment purposes. Interestingly, this doctrine would bring us full circle to § l(f)(ii) of the English Criminal Evidence Act of 1898.

Under the above circumstances, defendant suffered no prejudice but, indeed, stood on even ground with his accusor.

The conviction is affirmed.


text:
    PEOPLE v CLAY
    Docket No. 78-7.
    Submitted June 11, 1979, at Lansing.
    Decided August 20, 1979.
    Leave to appeal applied for.
    Vesper Clay was tried on an open murder charge and was convicted of second-degree murder, Washtenaw Circuit Court, Edward D. Deake, J. Defendant appeals, alleging several errors. Held:

    1. The instructions to the jury on the issue of the defendant’s sanity, which included a presumption of sanity, were proper. The instructions also properly instructed the jury on the burden of proof as to sanity, and, when considered as a whole, fairly and accurately presented the issues to the jury.
    2. Sufficient evidence was presented at the preliminary examination to warrant the magistrate’s binding over the defendant on the open charge of murder.
    3. Denial of the defendant’s motion to quash the information was proper.
    4. Denial of the defendant’s motion for a directed verdict on first-degree murder was proper. There was sufficient evidence to permit the trial court to submit the issue of first-degree murder to the jury. ’
    5. A statement made by defendant to the police was voluntarily and understandingly made, and, therefore, was properly admitted into evidence.

      References for Points in Headnotes

       30 Am Jur 2d, Evidence §§ 1176, 1177.
    75 Am Jur 2d, Trial §§ 738, 739, 742.
    Presumption of continuing insanity as applied to accused to criminal case. 27 ALR2d 121.
    Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case. 17 ALR3d 146.

       5 Am Jur 2d, Appeal and Error § 891.

       21 Am Jur 2d, Criminal Law §§ 442, 443.

       21 Am Jur 2d, Criminal Law §§ 449, 450.
    40 Am Jur 2d, Homicide § 454.

       75 Am Jur 2d, Trial § 483.

       29 Am Jur 2d, Evidence §§ 611-614.

       29 Am Jur 2d, Evidence §§ 320, 321, 327, 333.
    30 Am Jur 2d, Evidence §§ 1161, 1175-1177.
    Presumption of continuing insanity as applied to accused in criminal case. 27 ALR2d 121.

      6. The testimony of a psychiatrist who had evaluated the defendant on behalf of the people, and a tape recording of an interview with defendant conducted by that psychiatrist, were properly admitted into evidence as rebuttal to the defense of insanity which was presented by the defendant’s witnesses, a psychiatrist and a psychologist. References in the taped interview to the defendant’s prior criminal activity were admissible, on rebuttal, as bearing on the issue of the defendant’s sanity.
    Affirmed.
    1. Criminal Law — Presumption of Sanity — Instructions to Jury.
    A criminal defendant is presumed to be sane, and a trial court’s jury instructions in a case where insanity was claimed as a defense were proper where the instructions included this presumption and explained that the burden of proof was on the people to prove the defendant sane once there was evidence presented tending to show insanity.
    2. Appeal and Error — Instructions to Jury — Failure to Object — Court Rules.
    Failure to object to a jury instruction precludes appellate review of that instruction (GCR 1963, 516.2).
    3. Homicide — Murder — Preliminary Examination — Degree of Murder.
    A district judge conducting a preliminary examination of a defendant charged with murder is not required to determine the degree of murder; that determination is for the trier of fact.
    4. Homicide — Murder — Preliminary Examination.
    A magistrate did not abuse his discretion in binding a defendant over to circuit court on an open murder charge where there was evidence presented at the preliminary examination from which it could be inferred that several minutes passed between the defendant’s initial attack on the victim and the fatal stabbings, which would be sufficient time for a "second look” and for the elements of premeditation and deliberation to be present.
    5. Criminal Law — Motion for Directed Verdict.
    The prosecution’s evidence must be taken as true and viewed in the light most favorable to the prosecution, with the prosecution receiving the benefit of every reasonable inference to be drawn from the evidence, where a defendant has moved for a directed verdict on a charge.

      6. Appeal and Error — Criminal Law — Statement of Defendant — Voluntariness — Admissibility.
    A trial court’s ruling on the voluntariness and admissibility of a defendant’s statement to the police will not be reversed on appeal unless the Court of Appeals is convinced that a mistake has been committed and that the decision of the trial court is clearly erroneous.
    7. Criminal Law — Evidence — Prior Criminal Activity — Insanity.
    Testimony regarding prior arrests, convictions, or assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of a defendant of the offense charged, becomes material and admissible as bearing on the issue of the defendant’s sanity where the defense has presented evidence that the defendant was legally insane at the time of the charged offense.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and James S. Sexsmith, Senior Assistant Prosecuting Attorney, for the people.

      Josephson & Fink, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, 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.

   D. E. Holbrook, J.

On Thursday, April 21, 1977, at approximately 6:30 p.m., the defendant-appellant, Vesper Clay, stabbed to death the victim, Carl Gehringer, in an upstairs bedroom of the Tessmer Adult Foster Care Home, in the City of Ypsilanti, Washtenaw County, Michigan.

The defendant was almost immediately arrested at the scene of the crime. The defendant was charged with the crime of open murder, MCL 750.316; MSA 28.548, on April 22, 1977. The defendant was subsequently arraigned in the 14th District Court for Washtenaw County and preliminary examination was set for and held on April 28, 1977. The defendant was represented by counsel at his preliminary examination and also at his trial. Counsel for defendant urged the magistrate to find a lack of evidence to bind defendant over to circuit court for first-degree murder. The district court ruled that even though the court was not bound to find premeditation, there was sufficient evidence produced at the preliminary examination to show premeditation.

The defendant was bound over to circuit court for trial at the conclusion of the aforementioned preliminary examination. Defendant’s arraignment in the Circuit Court for Washtenaw County occurred on May 26, 1977. At arraignment, the defendant stood mute and a plea of not guilty was entered by the court. A pretrial conference was ultimately held on July 14, 1977, at which time a firm trial date of October 17, 1977, was set. The defendant’s counsel made several pretrial motions including a motion for a Walker hearing, which was granted, and a motion to quash. The Walker hearing was held on October 17, 1977, at which time the motion to quash was also heard.

At the conclusion of the Walker hearing, the trial court ruled that the defendant’s statement, made after having been advised of his rights per Miranda, was admissible. It should be noted at this juncture that the district court magistrate had also ruled, at the preliminary examination, that the defendant’s statement was admissible. _

Defendant’s motion to quash was also denied by the trial court.

At trial, the prosecution produced evidence to show that the defendant and the deceased were residents of the Tessmer Adult Foster Care Home in Ypsilanti, where they shared a room. On April 21, 1977, both the defendant and the victim had dinner at the home, during which time they had a slight argument. After the dinner, the victim went up to his room and the defendant went outside the home for a few minutes. The defendant later went upstairs to the room, whereupon he and the victim continued their argument. The testimony at trial showed that approximately five minutes passed between the first argument at the dinner table and the second argument upstairs in the bedroom. Trial testimony further showed that the resident manager, Gerald Fortier, was called upstairs by another resident, because of a fight between the defendant and the victim. Mr. Fortier, upon going upstairs, found the two men standing about eight to ten feet apart, the victim with an incision in his neck, and the defendant with a knife in his hand. After observing this, Mr. Fortier left the room to call the police. When Mr. Fortier returned, after notifying the police, he found the victim slumped over the bed pleading for help. Mr. Fortier then went downstairs to wait for the ambulance and observed the defendant cleaning off his knife in the crack of the sidewalk.

By the time the police arrived, the victim was dead. Dr. Robert C. Hendrix, an expert pathologist, testified that the victim died from loss of blood from two- stab wounds in the chest and lung.

Testimony was introduced by the prosecution to show that Detective William Stenning took a taped statement from the defendant after having advised him of his Miranda rights. The taped statement was played in its entirety for the jury.

After the people had rested, the defendant called Professor Hutt and Doctor Danto, a psychologist and psychiatrist respectively, who testified that at the time of the killing, the defendant was legally insane.

In rebuttal of the defense witnesses, the prosecution called Dr. Charles Hattaway, a psychiatrist from the Center for Forensic Psychiatry, who testified that the defendant was neither mentally ill nor legally insane at the time of the killing. Prior to Doctor Hattaway’s testimony, the prosecutor learned that Doctor Hattaway had taped an interview between the defendant and himself. The prosecuting attorney ultimately moved for admission of the tape recording, which was objected to by defendant’s trial counsel. However, the defendant’s trial counsel’s objection was not based on evidentiary grounds but rather on the fact that if the court were to admit the tape recording it should also admit defendant’s written reports from Doctor Hutt and Doctor Danto. The tape recording of the interview with Doctor Hattaway was ultimately admitted and played to the jury. Doctor Hattaway stated that he had relied on the information received from the tape recorded interview in forming his opinion as to the defendant’s sanity.

The written reports of Doctor Hutt and Doctor Danto were also admitted into evidence at trial. It should be noted at this point that Doctor Hutt’s and Doctor Danto’s reports contained several references to the defendant’s prior incarcerations and prior criminal record.

After both sides had rested, the court then heard final arguments and gave instructions to the jury. Prior to the court’s instructions to the jury, the defendant’s counsel objected to the giving of the Michigan Judges Association instructions on insanity, for the reason that a presumption of sanity instruction was included therein.

The jury found the defendant guilty of murder in the second degree. Thereafter, the defendant was sentenced to a term of 20 to 40 years with the Michigan Department of Corrections. Defendant now appeals his conviction and sentence by right.

The defendant claims four errors which we consider in proper order.

I. The trial court’s failure to give the Michigan Criminal Jury Instructions on insanity was error. Further, the instructions given from the Michigan Judges Association instructions improperly contained a statement on "presumption of sanity” and failed to state a burden of proof as to mental illness.

We reject the defendant’s claims of error. The presumption of sanity has been the law from the very beginning and is still a viable part of our law. People v Garbutt, 17 Mich 9 (1868), People v Eggleston, 186 Mich 510, 514; 152 NW 944 (1915), and People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968). The trial court properly instructed the jury in accord with the rules laid down in the cases just cited. The proposed Michigan Criminal Jury Instructions (not mandatory at the time of trial of this case) also contain a commentary on the presumption of sanity. 1 MCJI (Ann Arbor, Institute of Continuing Legal Education), p 7-145.

The trial judge instructed on burden of proof as to sanity in the following words:

"Once however there is any evidence tending to show that the defendant was insane, the people then have the burden of proof of establishing beyond a reasonable doubt that the defendant was legally sane at the time of the alleged offense. In order for you to render a just verdict, it will be necessary for you to consider separately the questions of the presence or absence of mental illness and the presence or absence of legal sanity. In determining whether or not the defendant was mentally ill at the time of the alleged offense, you are to apply the following definitions of mental illness. Mental illness means a substantial disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality or the ability to cope with the ordinary demands of life.”

The defendant claims that the trial judge should have expanded further on the insanity instructions. The defendant failed to object to this aspect of the instructions so the issue is not preserved for appeal. GCR 1963, 516.2. The instructions, considered as a whole, fairly and accurately presented the issues to the jury.

II. (A) The district court committed error in binding defendant over to circuit court for trial on a charge of open murder, and determining that premeditation was shown on the record.

(B) The trial judge committed error in denying defendant’s motion to quash the information, and denying defendant’s motion for directed verdict as to first-degree murder.

A. First we point out that the district judge is not, on preliminary examination, required to determine the degree of murder. The degree of murder is for the trier of fact. People v Strutenski, 39 Mich App 72; 197 NW2d 296 (1972), and People v Norwood, 68 Mich App 730; 243 NW2d 719 (1976).

We also point out that there was some evidence aliunde defendant’s confession in the examination record that indicated premeditation. The resident manager, Gerald Fortier, went upstairs to the room that Gehringer and defendant shared, and saw them standing a distance apart, with a cut on Gehringer’s neck and with defendant swinging a knife in Gehringer’s direction, but not reaching him. He did not describe any other cutting on Gehringer at that time. Both men were standing when Fortier observed them for a short time. Fortier then left the room and went to his apartment next door and called for the police and an ambulance. When he returned to the room, defendant had left and Gehringer, the victim, was partially on the floor and partially on the bed—and he called to Fortier to help him. According to the evidence several minutes elapsed before the fatal stabbings took place. The pathologist, Dr. Hendrix, testified at the preliminary examination in part as follows:

"Q. Would you relate for the Court please, what signs of trauma you found, ah * * * on the body of Mr. Gehringer?
"A. There was a cut on the left ear, was a horizontal cut * * * 'bout mid-point in the ear, it also extended back onto the scalp a little bit behind the ear. Also on the left side of the head on the scalp there was a large cut, it was vertical in position, it was sort of a tangential slice, it was about two and a half (2 1/2) inches in length. There was a cut on the neck on the left side of the neck which extended from the mid-line well around onto the left side. Ahmmm * * * it was about four (4) inches long. It was very shallow; it extended down to the muscle to the neck, but it did not cut any of the major blood vessels of the neck. On the right side of the chest, there were two (2) stabbing or cutting wounds, ahmmm * * * one (1) of them was about eight (8) inches below the shoulder and four (4) inches from the mid-line. This extended, ah * * * it was vertical in position and it was about one and a half (1 1/2) inches long and three-quarters an inch wide. It extended downward through the soft tissues and the * * * third rib was cut. The defect then entered the chest cavity and penetrated the lung. There was another cutting or stabbing wound on the right side of the chest. This was about ten (10) inches below the shoulder and it was an inch from the mid-line; it measured one and a quarter by three-quarters of an inch. Ah * * * it was in an oblique position pointing upwards and towards the center of the body. This ex—cut went through the fifth rib and entered the chest cavity and penetrated the lung. There was about a quart o’ blood free and clotted in the chest cavity. Also on the right side o’ the chest right up near the armpit, slightly above the armpit, there were two (2) vertical very shallow scratches; one of these was about two and a half (2 1/2) inches long and the other about one (1) inch. On the left shoulder * * * there was a rather deep cut about three-quarters of an inch long, ah * * * it was way out on the tip o’ the shoulder; it extended through the skin into the muscle, no farther. And also on the left upper arm on the lateral side, just above the elbow, there was a two (2) inch, very shallow cut. There were no other injuries.

From the evidence it could be inferred that the fatal stabbings in the chest took place several minutes after the infliction of the neck wound that was shallow and not fatal. This we believe would be a sufficient length of time for defendant to take a 'second look’ and satisfy the element of premeditation and for deliberation to be present. People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), and People v Meier, 47 Mich App 179, 191-192; 209 NW2d 311 (1973).

We cannot say that the magistrate abused his discretion in binding defendant over to circuit court for trial on the charge of murder. People v Melvin, 70 Mich App 138; 245 NW2d 178 (1976).

B. Did the trial court err in denying defendant’s motion to quash the information and in denying the defendant’s motion for a directed verdict on the charge of first-degree murder?

We have already ruled that there was sufficient evidence in the preliminary examination testimony to permit the magistrate to bind defendant over on the charge of murder. By the same token it was not error for the trial court to deny defendant’s motion to quash the information.

Where defendant at trial claims that the issue of first-degree murder should not have been submitted to the jury, the prosecution’s evidence must be taken as true and viewed in the light most favorable to the prosecution with the state receiving the benefit of every reasonable inference to be drawn from the evidence. People v Watkins, 36 Mich App 380; 193 NW2d 914 (1971), aff’d 388 Mich 717; 202 NW2d 780 (1972).

We find there was more evidence favorable to the state on the issue presented at trial than at the preliminary examination, and that it was sufficient to permit the trial court to submit the issue of first-degree murder to the jury. People v Charles, 58 Mich App 371; 227 NW2d 348 (1975), lv den 397 Mich 815 (1976), reconsideration den 401 Mich 805 (1977), People v Vail, 393 Mich 460; 227 NW2d 535 (1975), and People v Meier, supra, 191-192.

III. The trial judge erred in determining that defendant’s confession was voluntary and admitting the same into evidence.

The defendant made a taped statement to the police on the evening Gehringer was killed. Following a Walker hearing the trial court held that the statement was admissible. We review the record to determine the issue. The trial court’s ruling will not be reversed unless this Court is convinced that a mistake has been committed and the decision of the trial court is clearly erroneous. People v Robinson, 79 Mich App 145, 153; 261 NW2d 544 (1977). Our review of the record convinces us that the required warnings set forth in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), were given to the defendant before the statement was taken. The defendant also stated in response to the warnings that he understood them and that he would give a statement.

Dr. Max Hutt, a clinical psychologist, testified that he saw defendant on June 29 and July 15, 1977, and obtained a history of the incident from defendant. Dr. Hutt gave him two series of psychological tests. In the doctor’s opinion, defendant was in a confused post-epileptic state at the time he made the statement to the police.

Dr. Hutt felt that defendant’s recall in his statement was correct in the sense that he voluntarily offered everything he could but was totally incorrect in terms of accuracy in that he did not recall many of the events.

On cross-examination, Dr. Hutt made the following comments regarding defendant’s understanding of his rights:

"Q. Professor Hutt, if Mr. Clay were read, 'You have the right to remain silent,’ would he have understood that at the time?
"A. I think he would have understood it. I don’t know whether he would have accepted that. I think he had a great need to talk.
"Q. There’s no reason, you have no basis for assuming he wouldn’t understand the simple statement, 'You have a right to remain silent,’ isn’t that correct?
"A. No, no, I don’t think he would have known what that meant, what it’s implications were, not at that time.
"Q. Well, aren’t you changing your testimony? Didn’t you just say he would have understood it?
"A. He would have understood the literal aspects of that question, that he had a right to remain silent, but I am saying he would not have understood the implications of that in terms of defense or what he was being charged. I’m saying that that didn’t probably enter into his consideration at all.”

Detective Stenning testified at the Walker hearing and stated that he gave defendant warnings of his Miranda rights and that he knew defendant was epileptic and on medication. Stenning testified that defendant moved "like in slow motion”, his answers were slow and halting and he rambled some. Stenning testified that defendant was coherent, "pretty” logical and gave a continuous narration. We believe that defendant’s memory was somewhat confused as to events but that he voluntarily and understandably made the statement to the police. The trial court’s finding was proper and not clearly erroneous. The present case is distinguishable from People v Stanis, 41 Mich App 565; 200 NW2d 473 (1972).

IV. It was reversible error to allow the forensic center’s psychiatrist to testify as to defendant’s statements and admit a taped interview between the forensic center’s psychiatrist and the defendant for the purposes of rebuttal of an insanity defense.

Defendant claims the trial court should not have allowed the forensic center’s psychiatrist to testify as to defendant’s statements made to the psychiatrist at the time of his forensic evaluation. While the plaintiff-appellee agrees with the defendant’s quotation of the applicable statute, to-wit: MCL 768.20a(5); MSA 28.1043(1)(5), the plaintiff submits that the statements were clearly admissible because they had a bearing on the issue of the defendant’s mental illness or insanity at the time of the alleged offense.

In People v Woody, supra, our Supreme Court stated:

"When the defense-called psychiatrist testified that in his opinion the defendant was legally insane, it became the burden of the people to prove his sanity, like every other element of an offense, beyond a reasonable doubt. Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged, became material and admissible as bearing on the issue of his sanity.” 380 Mich 332, 338.

See also People v Musser, 53 Mich App 683, 686; 219 NW2d 781 (1974), People v Culpepper, 59 Mich App 262, 266; 229 NW2d 407 (1975), and People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975). Contrary to the defendant’s position, Doctor Hattaway did rely on the information received from the defendant, during his two interviews with Dr. Hattaway, in forming an opinion as to defendant’s sanity.

It is true that certain references were made in the taped interview to defendant’s prior criminal record and incarceration. The defendant claims that the forensic psychiatrist may testify to facts learned at a compulsory mental examination only for purposes of rebutting an insanity defense. The plaintiff replies that that is exactly the reason that Doctor Hattaway was called to the stand; to rebut the insanity defense put before the jury by defendant’s witnesses, Doctor Hutt and Doctor Danto. There was no error here.

The defendant objected at trial to the admission of the taped interview but not for the reason now advanced. Counsel for defendant, during the discussion with the trial court, argued that it would not be fair to permit the taped interview with Doctor Hattaway to be admitted unless the reports of defendant’s Doctors Hutt and Danto were likewise admitted. We note that these reports were admitted. We also note that the references on the tape to defendant’s prior criminal record and incarceration were likewise contained in Doctor Hutt’s and Doctor Danto’s reports. These facts were properly used by all of the doctors in evaluating the defendant’s sanity.

Affirmed.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

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

       The defendant and the victim had an argument at dinner and defendant went outside for about five minutes and then went up to his room where the victim was present and the argument was renewed. The defendant used a knife on the victim and cut his neck before Mr. Fortier entered the room for a few minutes.


text:
    HARMON v CITY OF SOUTHFIELD
    Docket No. 78-619.
    Submitted June 12, 1979, at Detroit.
    Decided August 20, 1979.
    Leave to appeal applied for.
    Maurice J. Harmon became a probationary member of the South-field Police Department in October, 1974. At the end of his one-year period of probationary employment, he was denied permanent appointment. A hearing was held before the Southfield Police and Fire Civil Service Commission resulting in a decision affirming Harmon’s discharge. On appeal to the Oakland Circuit Court Harmon’s dismissal was affirmed, Robert L. Templin, J. In plaintiffs appeal to this Court, he contends that the commission applied an improper legal standard in determining that his dismissal was for cause. Held:

    A probationer may be denied permanent appointment where his conduct or capacity is not satisfactory to the appointing officer. The appointing officer does not have unlimited discretion in denying permanent employment to a probationer. The basis for denial cannot be arbitrary or capricious nor can he use discriminatory reasons which are racial, sexual or illegal. The commission did not apply an incorrect standard in determining that plaintiffs dismissal was justified. Five reasons were given, all have relevance to his fitness for police work and were supported by competent, material and substantial evidence.
    Affirmed.
    1. Municipal Corporations — Labor Relations — Police — Probationary Employees — Discharge — Hearings on Dismissal — Statutes.
    The appointment of a probationer to permanent employment on a city police department may be denied where his conduct or capacity has not been satisfactory to the appointing officer; if permanent appointment is denied, the probationer is entitled to a hearing before the civil service commission (MCL 38.511; MSA 5.3361).
    References for Points in Headnotes

       15A Am Jur 2d, Civil Service §§ 56, 57.

       15A Am Jur 2d, Civil Service § 33.

       15 Am Jur 2d, Civil Rights § 148.

      2. Labor Relations — Probationary Employees — Definitions.
    A probationer for employment purposes is defined as one whose fitness is being tested on a trial basis.
    3. Municipal Corporations — Labor Relations — Police — Probationary Employees — Tenured Employees — Grounds for Dismissal.
    The applicable standard of cause, in the dismissal of a probationary employee from a city police department, is different from that applied to tenured officers; a probationer may be refused permanent employment where he has failed to satisfy his superior’s expectations even though his conduct is not so reprehensible as to be grounds for dismissing a tenured officer.
    4. Municipal Corporations — Labor Relations — Probationary Employees — Permanent Appointment — Discretion — Abuse of Discretion.
    An appointing officer of a city does not have unlimited discretion in denying permanent employment to a probationer in the police department; permanent appointment cannot be denied for arbitrary or capricious reasons nor can the appointing officer engage in racial, sexual or other illegal discrimination.
    Maurice J. Harmon, in propria persona.

      Sigmund A. Bera, Southfield City Attorney, and Ruth E. Fair, Assistant City Attorney, for defendant.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

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

   J. H. Gillis, P.J.

Plaintiff, Maurice J. Harmon, became a probationary member of the Southfield Police Department in October, 1974. At the end of his one-year period of probation he was denied permanent appointment. A hearing was held before the Southfield Police and Fire Civil Service Commission, resulting in a decision affirming plaintiff’s discharge. On appeal, the circuit court affirmed.

The only issue meriting discussion is plaintiffs contention that the commission applied an improper legal standard in determining that plaintiffs dismissal was for cause.

Section 11(a) of the Firemen and Policemen Civil Service Act provides in part as follows:

"All original appointments to any positions in the police departments, within the terms of this act, shall be for a probationary period of 1 year after the completion of legally required courses of basic training. At any time during the probationary period the appointee may be dismissed for such cause, in the manner provided in this act. If at the close of this probationary term, the conduct or capacity of the probationer has not been satisfactory to the appointing officer, the probationer shall be notified within 10 days, in writing, that he will not receive permanent appointment, whereupon his employment shall cease; otherwise his retention in the service shall be equivalent to his final appointment. The probationer shall be entitled to a hearing before the commission as provided in section 14.” MCL 38.511; MSA 5.3361.

In City of Troy v Troy Civil Service Comm, 81 Mich App 585; 265 NW2d 759 (1978), this Court held that the above provision entitled a probationary officer to a hearing on dismissal at the end of the probationary period of employment. At such a hearing, the city must establish cause for dismissal.

Section 14 of the act enumerates the criteria for which an officer may be disciplined or discharged. It provides:

"The tenure of every one holding an office, place, position or employment under the provisions of this act shall be only during good behavior and efficient service; and any such person may be removed or discharged, suspended without pay, deprived of vacation privileges or other special privileges, by the civil service commission, for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment to the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” MCL 38.514; MSA 5.3364.

The issue before us now is whether "cause” for dismissal of a probationary employee is limited to the criteria listed in § 14 or whether a less strict standard may be used by the appointing authority.

The Civil Service Commission noted that § 11(a) states that a permanent appointment may be denied where the conduct or capacity of the probationer has not been satisfactory to the appointing officer, whereas § 14 speaks of the "tenure” of persons holding employment under the act. Hence, the commission concluded that the standard of "cause” to be applied in the case of a probationary employee is different from that applied to tenured officers.

The commission went on to state:

"Although, as above noted, Section 11(a) of Act 78 authorizes the appointing officer to deny permanent employment to a probationary officer if his conduct of capacity of the probationer has not been 'satisfactory’ to the appointing officer, we do not, however, view that language as authorizing the appointing officer to deny permanent employment arbitrarily, or for discriminatory or other unlawful reasons. Accordingly, at the hearing herein, this Commission required Southfield’s Appointing Officer to establish the grounds and justification upon which he acted in this matter.”

We agree that the Legislature did not intend a probationary employee be dischargeable only for such cause as would be sufficient to dismiss a tenured employee. "Probationer” is defined as "one whose fitness is being tested on a trial basis”. Webster’s Third New International Dictionary (1965). A tenured officer has proven his ability to do the job and can only be dismissed for those reasons listed in § 14. A probationary officer, on the other hand, is still undergoing evaluation to see whether he is capable of handling the many responsibilities of police work. Hence, he may be refused permanent employment where he has failed to satisfy his superior’s expectations even though his conduct is not so reprehensible as to be grounds for dismissing a tenured officer.

Of course, as the commission noted, the appointing officer does not have unlimited discretion in denying permanent employment to a probationer. It cannot be denied for arbitrary or capricious reasons nor can the appointing officer engage in racial, sexual or other illegal discrimination.

We find the commission did not apply an incorrect standard in determining that plaintiffs dismissal was justified.

In addition, the reasons given for plaintiffs dismissal did not contravene the above standard. Five reasons were given for his dismissal:

"1. Disregard for the safety of citizens and fellow officers by driving at high rates of speed without just cause.
"2. Display of extreme prejudice against female police officers and females in general.
"3. Disregard of departmental rules, regulations, and procedure; in particular, repeated departures from his assigned area and from the City of Southfield without permission, and without notification to the Police Department dispatcher.
"4. A contemptuous attitude toward superior officers and the Court.
"5. The judgment of his superior officers that Officer Harmon has not and would not properly adapt to the conduct required of a Southfield police officer.”

These charges all have relevance to a person’s fitness for police work and. were supported by competent, material and substantial evidence. While the fifth item would be too vague alone to support dismissal, when read in conjunction with the other charges plaintiff was sufficiently apprised of the reasons permanent appointment was denied.

Affirmed. No costs, a public question being involved.

       While in City of Troy v Troy Civil Service Comm, 81 Mich App 585; 265 NW2d 759 (1978), the Court ruled that a probationer could only be dismissed for cause, the Court did not state whether cause for dismissing a probationer is identical to cause for dismissing a tenured officer. While certain language in that opinion may indicate they are the same, such a conclusion was not essential to the decision in that case.


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

text:
    PEOPLE v SANDERS
    Docket No. 78-1008.
    Submitted December 8, 1978, at Grand Rapids.
    Decided August 20, 1979.
    George L. Sanders was convicted, on his plea of guilty, of criminal sexual conduct in the third-degree, Calhoun Circuit Court, Stanley Everett, J. The guilty plea was entered as part of a plea agreement reached with the prosecution. The prosecution agreed to dismiss an amended supplemental information which had been filed, charging the defendant with having been convicted of two prior felonies and seeking to have the defendant’s punishment increased in the present case. The prosecution also agreed not to seek a warrant for absconding on bond by defendant’s failure to appear in this case and to recommend a sentence of no more than 6 to 15 years in prison. The defendant appeals, alleging that the plea bargain was partially illusory because the two convictions charged in the amended supplemental information were the results of pleas which are constitutionally infirm and therefore the defendant could not have had his sentence in the present case enhanced under the habitual offender statute. Held:

    1. An habitual offender information is a proper subject of bargaining which, in itself, raises no problem of the voluntariness of the plea.
    2. The defendant may still challenge the constitutional validity of the earlier plea-based convictions, from which no direct appeals were taken, based on the allegations that he was never informed that he was waiving his right to remain silent by pleading guilty.
    3. An attack on the validity of the earlier plea-based convictions should not be started in the Court of Appeals. The appropriate relief is to remand to the trial court to allow the defendant to raise the issue of the invalidity of the prior pleas of guilty. If the trial court finds that the defendant was not advised of his right to remain silent before pleading guilty to the two earlier offenses, the plea in this case shall be set aside as the product of an illusory bargain. If the trial court finds that the defendant was advised of his right to remain silent before pleading guilty to the earlier offenses, the conviction shall stand.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 485.
    Validity of guilty pleas - Supreme Court cases. 25 L Ed 2d 1025.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 32.

       39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 6.
    Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes. 24 ALR2d 1247.

      Remanded with instructions.
    1. Criminal Law — Habitual Offenders — Plea of Guilty — Plea Bargains — Voluntariness of Plea.
    An habitual offender information is a proper subject of plea bargaining which, in itself, raises no problem of involuntariness of the plea.
    2. Criminal Law — Plea of Guilty — Habitual Offenders — Inducement of Plea.
    A prosecutor may claim that he will charge a defendant with an habitual offender prosecution, if applicable, in order to induce a plea, or may promise to forego such a prosecution in exchange for a plea; however, if a plea is induced by a promise to forego a recidivist proceeding where no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory.
    3. Criminal Law — Constitutional Law — Plea of Guilty — Setting Aside Guilty Pleas — Habitual Offenders — Collateral Attack.
    A defendant seeking that a guilty plea entered as part of a plea bargain wherein the prosecutor agreed not to pursue an habitual offender information against the defendant based on two specific prior plea-based felony convictions be set aside may collaterally attack the prior felony convictions raising allegations of constitutional defects in the earlier plea proceedings; such collateral attack is not restricted to allegations of denial of counsel.
    4. Criminal Law — Plea of Guilty — Plea Bargains — Illusory Bargains.
    Guilty pleas entered in response to illusory plea bargains should not be allowed to stand.
    5. Criminal Law — Appeal and Error — Plea of Guilty — Plea Bargains — Habitual Offenders — Collateral Attack — Constitutional Law.
    The appropriate relief where a defendant appeals seeking to set aside a plea-based conviction which was induced by a plea bargain wherein the prosecutor agreed to forego pursuing an habitual offender information based on prior plea-based felony convictions which the defendant, for the first time on appeal from the last conviction, alleges to be constitutionally infirm is to remand to the trial court to allow the defendant to raise the issue of the invalidity of the prior pleas of guilty.
    6. Criminal Law — Habitual Offenders — Prior Convictions — Statutes.
    A defendant’s prior convictions must precede the commission of the principal offense in order to enhance the defendant’s punishment under the habitual offender statute (MCL 769.11; MSA 28.1083).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Ronald A. Lebeuf, Chief Assistant Prosecutor, for the people.

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J., and M. J. Kelly and D. F. Walsh, JJ.
   T. M. Burns, P.J.

After jury selection had begun in this case, defendant entered a guilty plea to criminal sexual conduct in the third degree, MCL 750.520d(l)(b); MSA 28.788(4)(l)(b). In exchange for the plea the prosecution agreed to dismiss the amended supplemental information which had been filed charging defendant with having been convicted of two prior felonies and seeking to have his punishment in the present case increased. MCL 769.11; MSA 28.1083. The people further agreed not to seek a warrant for absconding on bond by defendant’s failure to appear in this case, MCL 750.199a; MSA 28.396(1), and to recommend a sentence of no more than 6 to 15 years in prison. The court agreed to be bound by the prosecution’s recommendation of maximum sentence before the plea was accepted.

At sentencing, defendant sought to withdraw his plea because of a "misunderstanding” about the possible sentence which he would or could have received had he continued with the trial on the supplemental information. After a discussion between defense counsel and the court, defendant was informed that the information he had received from defense counsel was correct—if he had been convicted as an habitual offender he could be sentenced to 20 to 30 years. The court was still willing to allow defendant to withdraw his plea, but defendant agreed to proceed with sentencing when the court informed him that he was getting a good deal and that if his plea were withdrawn, the prosecution would start over on the original charges. It is clear from this record that the possibility of sentencing under the habitual offender provisions played a substantial part in defendant’s decision to plead guilty.

Defendant does not allege any error in the plea-taking proceeding relating to the criminal sexual conduct charge itself. He does claim that his plea was coerced because the bargain was partially illusory. Defendant claims the two convictions charged in the amended supplemental information were the results of pleas which are constitutionally infirm. This alleged infirmity was raised for the first time in this appeal._

The two convictions charged in the supplemental information were based on guilty pleas in two incidents of bad checks in 1972. Defendant was represented by counsel in these prior cases but was not informed, at the actual plea proceeding, that he was waiving his right to remain silent by pleading guilty. The entire record for these two prior convictions has not been provided on appeal, but only the transcripts were furnished as an appendix to appellant’s brief. This practice has been and should be, discouraged. It is, therefore, impossible to say with certainty whether the required information for a valid guilty plea was imparted in some other way.

We start our analysis of the question by accepting the proposition that an habitual offender information is a proper subject of bargaining which, in itself, raises no problem of involuntariness of the plea. Bordenkircher v Hayes, 434 US 357; 98 S Ct 663; 54 L Ed 2d 604 (1978). However,

"Implicit in the proper use of a habitual offender charge as a plea bargaining tool is the legal applicability of the recidivist statutes to the particular defendant. The accused must be in fact a potential subject of habitual offender supplementation if this factor is to play a part in the plea negotiations. If the plea is induced by a promise to forego a recidivist proceeding, when no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory. See, People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).” People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978).

The supplemental information in this case charged defendant with prior convictions on two occasions. The information is valid on its face since neither of the prior convictions has been appealed or vacated. That raises two questions: Can defendant attack those prior convictions in this proceeding or at this stage of the present proceeding and, if so, could the prosecution "go back” and obtain new convictions in a manner which would subject defendant to habitual offender liability in this case?

There is a line of cases involving actual conviction under the habitual offender act holding that a defendant cannot collaterally attack the underlying plea-based convictions in an appeal of the habitual offender convictions. These cases would require a defendant to have the prior conviction set aside in other proceedings before allowing him to raise the invalidity as part of an attack on the habitual offender finding. See, e.g., People v Mays, 77 Mich App 389; 258 NW2d 87 (1977), People v Pangburn, 81 Mich App 324; 265 NW2d 138 (1978) (defendant can collaterally attack prior pleas only on the grounds of denial of the right to counsel).

These cases rely in part on my prior opinion in People v Hendrick, 52 Mich App 201; 217 NW2d 112 (1974), which in turn relied on People v Gavin, 50 Mich App 743; 213 NW2d 758 (1973). Gavin was reversed on this point by the Supreme Court, 391 Mich 837; 218 NW2d 144 (1974), on the authority of People v Moore, 391 Mich 426; 216 NW2d 770 (1974). And, while the Supreme Court affirmed Hendrick on another question, 398 Mich 410; 247 NW2d 840 (1976), in the order which granted leave and restricted the grant to the question ultimately decided, the Court referred to Moore as controlling on the point in question here. 394 Mich 839 (1975). Based on these considerations, we find the cases restricting collateral attack of a prior guilty plea to be improperly grounded in precedent and do not follow them. It is also clear from the Supreme Court’s action in the same cases that the attack is not restricted to denial of the right to counsel.

The cases just discussed involve conviction under the habitual offender provisions and are thus distinguishable from the present situation where the habitual offender information was dismissed in exchange for a plea. However, it is a distinction without a difference. Since the validity of the bargain, and thus the plea, depends on the validity of the charge, People v Roderick Johnson, supra, the defendant in this case should be allowed the same standing to challenge possibly invalid prior convictions as one in which the supplemental information had been pursued. Any other rule would allow a plea to stand even though part of the consideration was legally improper. We cannot allow pleas based on illusory plea bargains to stand. People v Lawson, 75 Mich App 726; 255 NW2d 748 (1977).

The question remains whether the attack can start in this Court. Because of the factual development upon which the legal analysis depends, the appellate courts of this state have been very reluctant to pass on these questions in the first instance. People v Moore, supra. The appropriate relief, if any, is to remand to the trial court to allow defendant to raise the invalidity of the prior pleas of guilty. People v Jones, 83 Mich App 559; 269 NW2d 224 (1978).

The prosecution suggests that even if the prior pleas are invalid, defendant’s plea in this case should stand because, if nothing else, the prosecution could obtain new convictions in the check cases and thus bring the situation back to what it was at the time the bargain was offered in this case. If the prosecution’s theory is correct, then the plea bargain in this case would not be illusory. However, the argument ignores the language of the habitual offender act under which the prosecution proceeded. MCL 769.11; MSA 28.1083. As this Court has held in People v Cobington, 70 Mich App 188; 245 NW2d 558 (1976), lv den 402 Mich 843 (1977), and People v Roderick Johnson, supra, the convictions on the prior offenses must precede the commission of the supplemented offense. Obviously, if the prosecution must rely on a conviction obtained now, the statute would not apply.

Having held that defendant may attack the validity of the plea in this cáse by showing that the convictions upon which the supplemental information is based are invalid, we hold that the appropriate remedy is to remand to the circuit court to allow defendant to establish the invalidity of the prior convictions. If the circuit court finds that defendant was not advised of his right to remain silent before pleading guilty to the two check offenses in 1972, see, People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), the plea in this case shall be set aside as the product of an illusory bargain. If defendant was so advised the plea and bargain should stand. We do not retain jurisdiction.

       Defendant was released on a $1,000 recognizance bond when he was not tried within six months of his arrest. After being released, defendant fled and was arrested in Florida on another charge. He was returned to Michigan through extradition to stand trial in this case.

       The possibility of "reconvicting” defendant on the prior charges was raised at oral argument to rebut the assertion that defendant could not legally be charged as an habitual offender in this case.
      It appears that defendant had prior convictions other than the two charged in this supplemental information. Since the prosecution had actually filed a supplemental information before the plea in this case, we must consider only the offenses actually charged therein.

       The holding on the validity of the plea renders discussion of defendant’s sentencing claim unnecessary since it is based on an assertion that the same two prior convictions are invalid.