text:
    PEOPLE v JACKSON
    Docket No. 78-2280.
    Submitted April 3, 1979, at Grand Rapids.
    Decided May 29, 1979.
    Henderson Jackson was convicted of statutory rape in Kent Circuit Court, Stuart Hoffius, J. His conviction was affirmed on appeal. People v Jackson (Docket No. 17698, decided December 2, 1974 [unreported]). A delayed appeal was eventually filed and denied by the Supreme Court, 401 Mich 804 (1977). At his trial, the only evidence connecting defendant to the crime was his identification by the victim. A chemist, as a witness for the prosecution, testified that he was not given any blood or sperm samples of the defendant and there was nothing in his tests that would connect defendant with the seminal secretion stains found on the victim’s panties. On February 3, 1977, upon request of the State Appellate Defender office, the same chemist analyzed blood and saliva samples taken from defendant to determine his blood type and secretor status. At a June 20, 1977, evidentiary hearing on defendant’s motion for a new trial, it was the chemist’s expert opinion, as gathered from his tests, that defendant did not leave the secretions that were found on the panties and, although he could not be absolutely certain, he was confident his tests were accurate. Judge Hoffius denied defendant’s motion for a new trial on the grounds of newly-discovered evidence. The court concluded that the evidence was speculative and not likely to render a different result probable on retrial, that the chemist was not positive of his secretor or nonsecretor tests and that such evidence could have been introduced by defendant at trial. Defendant appeals. Held:

    A new trial will be granted for newly discovered evidence only if there is a showing that the evidence is newly discovered, not merely cumulative, could render a different result on retrial and could not have been reasonably produced at trial. The trial court apparently agreed that the evidence was newly discovered and not cumulative. The chemist’s testimony raises a serious question as to whether defendant was the victim’s assailant, a question for jury consideration which would make a different result possible on retrial. The chemist’s report and notes were apparently not introduced at trial and defendant had no reason to rebut his testimony that the underwear contained seminal stains. The lower court’s finding that this evidence could have been produced is also of doubtful validity. Therefore, there was a showing of all four requirements necessary for the granting of a new trial based on newly discovered evidence. Defendant’s motion for a new trial should have been granted.

      Reference for Points in Headnote
    58 Am Jur 2d, New Trial §§ 166-169, 171, 172, 176-180.

      Reversed and remanded.
    Criminal Law — New Trial — Evidence — Newly Discovered Evidence.
    A new trial based on newly discovered evidence will be granted only if there is a showing that: (a) the evidence is newly discovered; (b) the evidence is not merely cumulative; (c) the evidence is such as to render a different result probable on retrial; and (d) the defendant could not with reasonable diligence have produced the evidence at trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Daniel J. Wright, Assistant State Appellate Defender, for defendant.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and Bashara, JJ.
   Per Curiam.

Defendant appeals, by delayed appeal, his conviction for statutory rape, a violation of former MCL 750.520; MSA 28.788, and from the trial court’s subsequent order denying his delayed motion for new trial.

Defendant’s conviction was originally affirmed by this Court in an unpublished per curiam opinion, People v Jackson (Docket No. 17698, decided December 2, 1974). Delayed appeal was eventually filed by the State Appellate Defender and denied by the Supreme Court. 401 Mich 804 (1977). The present appeal raises issues which were not raised in the prior appeal.

At trial, the only evidence connecting defendant to the crime was his identification by the victim. A chemist from the Department of Public Health in the division of Crime Detection, who conducted microscopic, chemical, and biological examinations on trace evidence for law enforcement agencies in Michigan, testified on behalf of the prosecution. He testified that the victim’s underwear contained seminal stains. He testified there was nothing in the tests connecting defendant with the specimen he examined, and although he could never make a specific connection between the person and the seminal secretion, in some instances he was able to eliminate particular people from the connection. However, he was not given any blood or sperm samples of defendant.

On February 3, 1977, upon the request of the State Appellate Defender office, the chemist analyzed blood and saliva samples taken from defendant in order to determine his blood type and secretor status. He determined from these tests that defendant was a blood type O and confirmed that he was a type O secretor.

At a June 30, 1977, evidentiary hearing on defendant’s motion for a new trial, the chemist testified that he recalled, with the help of notes taken during his original sperm tests, that the victim’s assailant was a nonsecretor. The notes on his tests indicated that the person involved did not secrete either A, B or H antigenic substances. In his expert opinion, defendant did not leave the secretions that were found on the panties. He did admit he was not absolutely certain that any method could be positively determinative of secretor or nonsecretor status, but he was confident these tests were accurate.

The trial court denied defendant’s motion on the grounds that the newly-discovered evidence was of such a speculative nature that it would not likely render a different result probable on a retrial. It found that the chemist was not positive of the test as to whether the semen was from a secretor or a nonsecretor and performed no test to confirm his initial tentative finding. Additionally it found that such evidence could have been introduced by defendant at trial.

A new trial will be granted for newly-discovered evidence only if there is a showing: (a) that the evidence is newly discovered; (b) that the evidence is not merely cumulative; (c) that the evidence is such as to render a different result probable on retrial; and (d) that the defendant could not with reasonable diligence have produced it at trial. People v Terry Burton, 74 Mich App 215; 253 NW2d 710 (1977).

The lower court apparently agreed that the evidence was newly discovered and that it was not cumulative. The question then is whether the evidence was too speculative to make a different result probable on retrial and whether defendant could not with reasonable diligence have produced it at trial. The lower court’s finding that the evidence was too speculative to make a different result probable on retrial is, in our opinion, erroneous. The chemist was confident that the tests were accurate and that in his expert opinion the tests done on stains from the victim’s panties seriously question whether defendant was in fact her assailant. The fact that he could not assign a degree of certainty to his opinion is a matter which can be weighed by the jury. This evidence could well make a different result possible on retrial, since the only evidence against defendant at the original trial was his identification by the victim.

The lower court’s finding that this evidence could have been produced by defendant at trial is also of doubtful validity. The chemist’s report and notes were apparently not introduced at trial, and defendant had no reason to rebut his testimony that the underwear contained seminal stains. Moreover there is no evidence that defendant and his counsel possessed the required scientific knowledge to interpret the notes.

Because there was a showing of all four requirements necessary for the granting of a new trial based on newly discovered evidence as set forth in Burton, supra, the lower court reversibly erred when it denied defendant’s motion for a new trial. Defendant’s conviction is reversed and the cause is remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WEST MICHIGAN PARK ASSOCIATION v DEPARTMENT OF NATURAL RESOURCES
    Docket No. 78-2182.
    Submitted June 6, 1979, at Grand Rapids.
    Decided July 16, 1979.
    In an action in 1958 by plaintiffs, West Michigan Park Association and others, it was held that certain platted park lands in Ottawa County and the subject of the present appeal, were held in fee by Ottawa County, that the county had the authority to transfer the care and control of the land by lease to the defendant Department of Natural Resources (then known as the Department of Conservation) and that the Ottawa Circuit Court amply provided for protection of the plaintiffs and the public by retaining jurisdiction for that purpose, West Michigan Park Ass’n v Dep’t of Conservation, 2 Mich App 254; 139 NW2d 758 (1966), lv den 377 Mich 709 (1966). In January of 1978 Ottawa County filed a petition with the court seeking approval of a proposed lease of some land including the park land to the Township of Park for public park purposes. The court ordered the county to notify certain affected parties. The West Michigan Park Association (WMPA) and Daniel Aument filed objections to the petition, complaining that, among other things, the county had no authority to transfer the care and control of the platted park lands to Park Township and that the WMPA had purchased the property and water service facility located within the park lands subsequent to the platting of the park and that the lease did not recognize those rights. The trial court, Calvin L. Bosman, J., substituted the Department of Natural Resources (DNR) for the Department of Conservation, found that the DNR had properly terminated its lease with the county, approved the new lease proposal to Park Township, dismissed the DNR as a party without notice to the plaintiffs and retained jurisdiction. Plaintiffs appeal. Held:

    1. A county owning park lands has the authority to lease the lands to a township under statutes providing that any county or township may operate a system of public recreation and playgrounds independently or may cooperate in any way they may agree.

      Reference for Points in Headnote
    59 Am Jur 2d, Parks, Squares, and Playgrounds § 11.

      2. To the extent the lease purported to convey an interest in property not owned by the county, it was defective and should not have been approved.
    3. Dismissal of the DNR from the suit without notice to plaintiffs, contrary to the court rule, was improper.
    Reversed and remanded for further proceedings.
    Counties — Townships — Park Lands — Statutes.
    A county owning park lands has the authority to lease the lands to a township under statutes providing that any county or township may operate a system of public recreation and playgrounds independently or may cooperate in its conduct in any way they may agree (MCL 123.51, 123.53; MSA 5.2421, 5.2423).

      Edward D. Wells, for plaintiffs.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank J. Pipp and Russell E. Prins, Assistants Attorney General, for defendant Department of Natural Resources.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr., and B. D. Burdick, JJ.

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

   Per Curiam.

This action arises indirectly out of an action previously decided by this Court. West Michigan Park Ass’n v Dep’t of Conservation, 2 Mich App 254; 139 NW2d 758 (1966), lv den 377 Mich 709 (1966). There, we held that Ottawa County held the fee title to certain park lands which are now the subject of this appeal, that under MCL 318.7; MSA 13.1015 the county had the authority to transfer the care and control of those parks, by lease, to the state and that the "judgment of the circuit court amply provided for protection of plaintiffs’ rights in and to said public lands by retaining jurisdiction of the matter to preserve and protect the rights of plaintiffs and the general public in said lands”. 2 Mich App 254, 268.

Now, the state has terminated its lease and the county seeks to lease the park lands to Park Township. We hold that the county also has that authority under MCL 123.51; MSA 5.2421, which provides that "[a]ny * * * county or township may operate a system of public recreation and playgrounds”, and MCL 123.53; MSA 5.2423, which provides that "[a]ny * * * county [or] township * * * may operate such a system independently or * * * may cooperate in its conduct in any manner in which they may mutually agree”.

However, the lease approved in the case at bar failed to incorporate an exclusion for certain pump house property, fee title to which was obtained by plaintiff West Michigan Park Association, Incorporated, subsequent to the date of our previous decision. To the extent the lease does purport to convey an interest in property not owned by Ottawa County, it is defective and, therefore, should not have been approved.

Finally, defendant DNR was dismissed from the trial court’s continuing jurisdiction in this lawsuit without notice to plaintiffs pursuant to GCR 1963, 107. This was done in violation of GCR 1963, 202. Defendant DNR was not misjoined, GCR 1963, 207, but rather its interest was merely transferred to Park Township. Therefore, defendant DNR should be reinstated, subject to dismissal upon motion properly made.

Reversed and remanded for proceedings not inconsistent with this opinion. No costs, a public question.


author: Per Curiam:.

text:
    MESSER v FLOYD RICE FORD, INC.
    Docket No. 77-4479.
    Submitted December 20, 1978, at Detroit.
    Decided July 24, 1979.
    Leave to appeal applied for.
    William and Lellewene Messer were both injured in an automobile accident. They brought an action against Floyd Rice Ford, Inc., from whom they had purchased their automobile, and Ford Motor Company, the manufacturer. They claimed that a defect in the automobile caused it to stall, with the result that Mr. Messer lost the ability to brake and to steer. The automobile left the road, and the Messers were injured. On the day of trial, the plaintiffs moved for leave to amend their complaint to add an allegation that defendants had failed to warn plaintiffs of the effects of a stall on braking and steering ability. The Wayne Circuit Court, James Montante, J., denied leave to amend. The case proceeded to trial, and after the close of proofs the trial court directed a verdict in favor of the defendants and entered a judgment accordingly. Plaintiffs appeal, alleging that the denial of their motion to amend their complaint was an abuse of discretion and that the court erred by directing a verdict for defendants and by denying a motion for disqualification of the trial judge. Held:

    1. Denial of the motion to amend the complaint was not an abuse of discretion. The plaintiffs were attempting to introduce a new theory of liability into the case on the day of trial, some four years after the filing of the complaint. The trial court’s ruling that to allow the amendment would unduly prejudice the defendants was not improper.
    2. The plaintiffs adduced sufficient proof of a defect attributable to the manufacturer. However, they did not establish that this defect was the probable cause of the accident and the resulting injuries. Without a showing of this causal link between defect and injury, a directed verdict for defendants was proper.

      References for Points in Headnotes

       61 Am Jur 2d, Pleading §§ 308-311.
    What constitutes "prejudice” to party who objects to evidence outside issues made by pleadings so as to preclude amendment of pleadings under Rule 15(b) of Federal Rules of Civil Procedure. 20 ALR Fed 448.
    Timeliness of amendments to pleadings made by leave of court under Federal Rules of Civil Procedure 15(a). 4 ALR Fed 123.

       63 Am Jur 2d, Products Liability §§ 10, 11, 15, 22, 23.

       63 Am Jur 2d, Products Liability §§ 89, 90.

      3. The plaintiffs’ allegations of prejudice against them on the part of the trial court, upon which they based their motion for disqualification, are unsubstantiated.
    Affirmed.
    1. Pleading — Amendment of Complaint — Judge’s Discretion — Court Rules.
    Leave to amend a complaint should be freely given when justice so requires; a trial court’s discretion in this regard is limited by the principle that a motion to amend should be denied only for particular reasons such as undue delay, bad faith or a dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or futility of the amendment (GCR 1963, 118.1).
    2. Pleading — Amendment of Complaint — Prejudice — Fair Trial.
    Mere introduction of a new theory of recovery is generally not sufficient reason to deny a motion to amend a complaint, unless prejudice to the opposite party results; the prejudice envisioned by this rule is not that the amendment may ultimately cause the opposite party to lose, but that it may prevent the party from having a fair trial.
    3. Pleading — Amendment of Complaint — Expense — Discovery.
    Additional expense and time-consuming new discovery to meet new matters raised in a proffered amendment to a complaint are appropriate considerations for a trial court when considering the prejudice to the defendant should the amendment be allowed.
    4. Pleading — Amendment of Complaint — Delay — Prejudice.
    Delay in seeking amendment to a complaint, absent a finding of bad faith or prejudice created by the delay, does not justify denial of a motion to amend; however, delay may be a major source of prejudice where the litigation has proceeded to a point where the opposing party cannot reasonably be expected to defend against the amendment.

      5. Products Liability — Directed Verdict — Inferences — Defect.
    The test to be applied in consideration of a motion for a directed verdict in a products liability case is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer.
    6. Products Liability — Defect — Defect Attributable to Manufacturer.
    A plaintiff in a products liability case must establish 1) the existence of a defect and 2) a reasonable probability that the defect complained of is attributable to the manufacturer.
    7. Products Liability — Defect — Proof — Specific Cause.
    A plaintiff in a products liability case, in order to meet the burden of proving a defect, is not required to isolate the specific cause of the defect.
    8. Products Liability — Negligence — Defect — Injury — Causal Link.
    The mere possibility that a defendant’s negligence in a products liability case may have been the cause of an accident is not sufficient to establish a causal link between the defendant’s negligence and the plaintiff’s injury; the absence of a causal link between a defect in a product and a plaintiff’s injury prevents the establishment of a case for submission to a jury, and a directed verdict for the defendant is proper.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Buell Doelle), for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by James R. Kohl and Christine D. Oldani), for Floyd Rice Ford, Inc.

      Harvey, Kruse & Westen, P.C. (by James N. Martin and James J. Williams), for Ford Motor Company.
    Before: M. F. Cavanagh, P.J., and Bashara and Allen, JJ.
   Per Curiam:.

Plaintiffs, William and Lellewene Messer, were injured when their car allegedly stalled while they were negotiating a sharp turn in an exit ramp. As a result, the plaintiffs claimed that Mr. Messer, the driver, lost the ability both to brake and steer the car, causing it to leave the road and roll down an embankment until Mr. Messer was finally able to bring the car to a halt. Both he and his wife suffered extensive injuries.

In October, 1973, plaintiffs filed a complaint against defendants Floyd Rice Ford, Inc., the seller of the car, and Ford Motor Company, the manufacturer. The complaint alleged as the cause of their injuries the defendant’s breach of express and implied warranties, and breach of their duty of care to plaintiffs by delivering a product containing a defect in manufacture, assembly and preparation.

On the day of trial, four years after filing, plaintiffs’ substituted counsel moved for leave to amend their complaint to add an allegation of defendants’ failure to warn plaintiffs of the effects of stalling on power-assisted brakes and steering. The trial court denied leave to amend, on grounds of timeliness, prejudice to the defendant by delay, and interjection of a new theory of liability after defendants had proceeded through discovery and prepared for trial on warranty and manufacturing defect theories.

Plaintiffs and defendants proceeded to introduce their proofs. At the close of their cases, both defendants moved for a directed verdict, which the court initially denied. On the next scheduled day for hearing, plaintiffs moved for a mistrial and disqualification of the trial judge for prejudice. After denying this motion, the trial court reversed itself and directed a verdict in favor of both defendants.

Plaintiffs appeal from this adverse decision as of right, arguing that the trial court abused its discretion by (1) denying their motion to amend their complaint, and (2) by excluding from evidence at trial representations allegedly made by one of the dealer’s salesmen as to the effects of stalling on the car’s braking and steering mechanisms. The plaintiffs further contend that the trial court erroneously directed a verdict for defendants as well as that the trial court erroneously denied their motion for the judge’s disqualification for prejudice.

Where a plaintiff seeks leave to amend its complaint prior to trial, this leave is to "be freely given when justice so requires”. GCR 1963, 118.1. Although the language of the rule commits this decision to the trial court’s discretion, this discretion is limited by the principle that such motions should be denied only for particular, reasons:

"* * * such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, * * Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134 (1973), citing Foman v Davis, 371 US 178; 83 S Ct 227; 9 L Ed 2d 222 (1962).

In its denial of plaintiffs’ motion, the trial court primarily relied on the prejudice to defendants if the amendment were permitted. The court specified several sources for this prejudice—the unanticipated change in plaintiffs’ theory of the case to one of failure to warn of a hazardous condition and the absence of expert witnesses to testify on this issue for defendant Ford—and took judicial notice of the four-year litigation history of the instant case and the delay in proffering the amendment. The basic issue on appeal is, therefore, whether in light of the record and the policy favoring amendment these reasons provided adequate grounds to support its ruling, or whether the denial constituted an abuse of discretion.

After reviewing the record in the case at bar, we are persuaded that the trial court did not abuse its discretion in denying plaintiffs’ motion to amend. First, as the trial court noted, the plaintiffs attempted to introduce a new theory of liability into the case on the day of trial. Mere introduction of a new theory of recovery is generally not sufficient reason to deny a motion to amend, Leahy v Henry Ford Hospital, 84 Mich App 719; 271 NW2d 34 (1978), unless prejudice results to the opposite party. The prejudice envisioned is not that the amendment may ultimately cause the opposite party to lose, but that it may prevent the party from having a fair trial. Ben P Fyke & Sons, supra, at 657.

In the instant case, it appears that discovery commenced 2-1/2 years earlier and had been finally completed six months prior to trial. During discovery, defendants had focused solely on the existence and nature of the manufacturing, assembly or preparation defect in the Messers’ automobile rather than upon defective or absent warnings as alleged in the proffered amendment. No information gleaned from discovery, either directly or indirectly, assisted preparation and avoided surprise at trial on the issue of failure to warn. Further discovery and expense thus appeared inevitable.

Numerous court decisions indicate that additional expense and time-consuming new discovery to meet new matters raised by a proffered amendment are appropriate considerations for a trial coiirt in weighing prejudice to an opposite party against the policy favoring amendments. Ben P Fyke & Sons v Gunter Co, supra, at 661, Makuck v McMullin, 87 Mich App 82, 87; 273 NW2d 595 (1978), Wilson v Eubanks, 36 Mich App 287; 193 NW2d 353 (1971), lv den 386 Mich 773 (1971); see also Matarazzo v Friendly Ice Cream Corp, 70 FRD 556 (ED NY, 1976). The trial court did not abuse its discretion by considering these factors in denying plaintiffs’ motion.

The trial court also noted the four-year litigation history of the case at bar. Delay in seeking amendment, without a finding of bad faith or prejudice created by the delay, does not justify denial of a motion to amend. Ben P Fyke & Sons v Gunter Co, supra, at 663-664. Thus, amendments have been permitted even where a three-year hiatus existed between the initial filing and the amendment of the pleading. Middle Atlantic Utilities Co v SMW Development Corp, 392 F2d 380 (CA 2, 1968). Delay, however, can be a major source of prejudice to the party opposing an amendment where, as in the case at bar, the litigation has proceeded "to a point where the opposing party cannot reasonably be expected to defend against the amendment; this is an especially pertinent factor on the eve of, during, or after trial”. Ben P Fyke & Sons, supra, at 663. We find thus no abuse of discretion by the trial court.

Plaintiff next contends that the trial court improperly directed a verdict for defendants at the close of all the proofs.

In Holloway v General Motors Corp (On Rehearing), 403 Mich 614, 622; 271 NW2d 777 (1978), the Supreme Court stated the proper test to be applied in cases similar to the one at bar, as follows:

"On a motion for directed verdict, the question is whether it is reasonable to infer from the evidence, direct or circumstantial, that the accident was probably caused by a defect attributable to the manufacturer.”

This test focuses on the essential elements of a plaintiffs case in a products liability action. The plaintiff must first establish the existence of a defect; to do so, he may show a demonstrable malfunction in a product, or behavior that contradicts the assumption that the product will serve a normal use without causing injury. Snider v Bob Thibodeau Ford, Inc, 42 Mich App 708, 713; 202 NW2d 727 (1972), lv den 388 Mich 812 (1972). A plaintiff then must establish a reasonable probability, either by direct evidence or by inference from circumstantial evidence, that the defect complained of is attributable to the manufacturer. Holloway v General Motors Corp, supra, at 621; Snider, supra, at 715. In order to meet its burden of proving a defect, however, a plaintiff is not required to isolate its specific cause. Holloway v General Motors Corp, supra, at 627.

Applying these various tests to the case at bar, it is apparent that plaintiff has adduced sufficient proof of a defect attributable to the manufacturer. The stalling propensities of the Messer vehicle is clearly a demonstrable malfunction; stalling is behavior not expected in a passenger car and can be unreasonably dangerous if it occurs at the wrong time. The fact that the cause of the stalling remained unidentified does not negate the existence of a defect. Record evidence also existed to support the inference that the defect was attributable to the manufacturer. The Messers’ car had a tendency to stall from the day of purchase. The dealership received it from Ford without making any mechanical alterations prior to delivery to the customer and performed warranty work for constant stalling that was charged to Ford.

Notwithstanding proof of defect, it must also be reasonable to infer from the evidence that the defect "probably caused” the injury. Thus, "[t]he mere possibility that a defendant’s negligence may have been the cause, either theoretical or conjectural, of an accident is not sufficient to establish a causal link between the two”. Jordan v Whiting Corp, 396 Mich 145, 151; 240 NW2d 468 (1976). The absence of this "probable” causal link between defect and injury prevents establishment of a jury submissible case. Cassette v General Motors Corp, 73 Mich App 225, 228; 251 NW2d 275 (1977), lv den 401 Mich 814 (1977).

After careful review of the record, we are persuaded that plaintiffs have failed to establish this requisite causal link. Plaintiff testified that he wasn’t certain of the speed he was travelling and appeared to admit on cross-examination that his speed was between 30 and 35 mph. For the purposes of argument, we will accept plaintiffs contention that he could not remember his speed, but that it was slower than 35 mph, the legal limit. As plaintiffs’ expert testified, the speed of a stalled vehicle must drop below 20 to 27 mph before power assist is lost to the brakes and steering. Above the critical speed, the driver of a stalled car continues to have full use of his power brakes and steering, as long as the car remains in gear. However, even below the critical speed, with the car in gear, the driver of a stalled car possesses two or three applications of his brakes from his vacuum reserve, assuming the driver does not rapidly pump his brakes.

Mr. Messer testified on the day of the accident that he simply stepped on the brakes in order to slow down for the curve in the ramp and sensed complete resistance in the brakes to the pressure from his foot. He denied rapidly pumping the brakes, and did not put the car in neutral until after he attempted to brake. His description of his car’s behavior is clearly inconsistent with the behavior to be expected if failure was due to stalling. According to his own expert’s testimony, two or three applications of his brakes remained to bring the car to a halt. From the evidence adduced, it would be unreasonable to infer that the car’s propensity to stall probably caused the accident. The directed verdict was therefore proper.

Given our disposition of this issue, we find it unnecessary to consider plaintiffs’ contentions concerning representations made by one of defendant dealership’s salesmen.

Finally, plaintiffs contend that the trial court improperly denied plaintiffs’ motion for mistrial and disqualification. After examining the record, we find plaintiffs’ allegations of prejudice against them on the part of the court to be unsubstantiated.

Affirmed. Costs to appellees.

       There is some confusion on the record on this point. Defense counsel, on cross-examination, read aloud statements made by plaintiff in his deposition concerning his speed at the time of the accident, as follows:
      "Q (By Mr. Martin) On Page 77 of the deposition, the first question on the page, Mr. Messer, is as follows:
      "Q I gather here at the scene of the accident you would be going at least 30, 35 miles an hour at that time when you tried to turn and applied brakes; would that be about right?
      "A I wouldn’t know but if I was to make an assumption I would say that that would be about it due to the three speed zones dropping down to 55 and 35 and then coming to this.
      "Q You never had stalled out in that range of speed before?
      "A No, no.’
      "Do you remember that?
      "A Yes.
      "Q Was that a correct statement then, back in '74, when you made it?
      "A To the best of my knowledge at that time, it was.
      "Q Okay.
      "THE COURT: And is that your testimony today?
      “MR. MARTIN: Did you hear the judge ask you a question?

        "THE COURT: Is that your testimony today? 'Yes’ or 'No.’
      "THE WITNESS: Yes.”
      It is ambiguous from the record whether plaintiff was in fact adopting his prior statement as true in response to the court’s question, in contradiction to his previous testimony that he did not know how fast he had been travelling. Although the court apparently relied on the above exchange as a substantive admission by plaintiff in directing a verdict for defendants, the testimony’s ambiguity prevents us from concluding the same. See McCormick, Evidence (2d ed), § 266, pp 636-639. However, as discussed in the body of the opinion, other facts in the record sufficiently support the trial court’s grant of the directed verdict for defendants.


text:
    CAPITAL CITIES BROADCASTING CORPORATION v TENTH DISTRICT JUDGE
    Docket No. 78-4328.
    Submitted June 7, 1979, at Grand Rapids.
    Decided August 2, 1979.
    Capital Cities Broadcasting Corporation brought an action in Calhoun Circuit Court seeking an order of superintending control to compel the Tenth District Judge to grant the plaintiff access to certain documents alleged to be public records. Superintending control was denied, Stanley Everett, J. Plaintiffs petition for rehearing was granted. On rehearing, the circuit court remanded the matter to district court for findings of fact. The district court found that the warrants and affidavits in question were public court documents and, as such, were normally available for public inspection. The district court also found that there was no longer any reason to deny the plaintiff access to the documents. The finding came approximately six months after the plaintiffs original request for access to the documents. These findings were adopted by the circuit court. The plaintiff filed a petition objecting to the adoption of these findings and arguing that the circuit court should make a specific finding determining whether or not the original suppression order was proper under the circumstances that then existed. The circuit court denied the petition and dismissed the plaintiffs complaint for superintending control. The plaintiff appeals. Held:

    Freedom of the press and the public nature of court documents require a hearing, open to all interested parties, before inspection of public court documents may be denied. In the instant case the circuit court should have assumed superintending control upon a finding that the district court had denied access to public court documents without a hearing.
    The issue is not moot, even though the documents have now been released, because the issue is capable of repetition and yet may evade review.

      References for Points in Headnotes

       16 Am Jur 2d, Constitutional Law § 345.
    20 Am Jur 2d, Courts §§ 61, 62.
    Restricting public access to judicial records of state courts. 84 ALR3d 598.

      Reversed.
    1. Constitutional Law — Freedom op Press — Court Documents — Public Hearings.
    Freedom of the press and the public nature of court documents require a hearing, open to all interested parties, before inspection of public court documents may be denied; the purpose of this hearing is to explore the constitutional and statutory validity of any proffered justifications for noninspection and to determine whether any alternative and less restrictive mechanisms than complete suppression exist.
    2. Constitutional Law — Public Documents — Access to Public Documents — Mootness.
    An issue as to access to certain public court documents did not become moot upon the release of those documents because the issue is capable of repetition.

      Sullivan, Hamilton, Ryan, Schulz & Woodruff, P.C., for plaintiff.

      James Norlander, Prosecuting Attorney, and John H. McFarlane, Assistant Prosecuting Attorney, for defendant.
    Before: R. B. Burns, P.J., and D. E. Holbrook, Jr. and B. D. Brudick, JJ.

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

   Per Curiam.

Plaintiff appeals from a decision of the circuit court dismissing its complaint which sought an order of superintending control to compel defendant to grant plaintiff access to certain documents alleged to be public records. More particularly, it sought to compel the district court to conduct a hearing before refusing inspection of warrants authorizing electronic surveillance of a specific defendant’s cell, and the affidavits supporting those warrants.

After a petition for rehearing, the circuit court remanded the matter to district court for findings of fact. The district court found that the warrants and affidavits in question were public court documents and, as such, were normally available for public inspection. The court also found that there was no longer any reason to deny the plaintiff access to the documents. The findings came approximately six months after the plaintiffs original request for access to the documents.

Freedom of the press and the public nature of court documents require a hearing, open to all interested parties, before inspection of public court documents may be denied. The purpose of this hearing is to explore the constitutional and statutory validity of any proffered justifications for noninspection and to determine whether any alternative and less restrictive mechanisms than complete suppression exist. See Detroit Free Press v Macomb Circuit Judge, 405 Mich 544; 275 NW2d 482 (1979), GCR 1963, 907(2). See also Nebraska Press Ass’n v Stuart, 427 US 539; 96 S Ct 2791; 49 L Ed 2d 683 (1976), Northwest Publications, Inc v Anderson, 259 NW2d 254 (Minn, 1977).

In the instant case the circuit court should have assumed superintending control upon a finding that the district court had denied access to public court documents without a hearing. Although the documents have now been released, the issue is not moot because it is capable of repetition and yet may evade review. Grano v Ortisi, 86 Mich App 482; 272 NW2d 693 (1978).

Reversed.


author: D. E. Holbrook, J.

text:
    DAUGHERTY v STATE OF MICHIGAN
    Docket No. 24404.
    Submitted June 15, 1979, at Lansing.
    Decided August 20, 1979.
    Leave to appeal applied for.
    Vincent Daugherty suffered serious injury when diving from a bridge into the Huron River, striking his head on an unknown object beneath the surface of the water. The incident occurred in the Proud Lake Recreation Area which was operated and maintained by the State of Michigan, Department of Natural Resources (DNR). Daugherty brought an action against the state and the DNR. In his complaint, and an amended complaint, he alleged that defendants knew or should have known of the hazardous and dangerous condition of the bridge; created and maintained a nuisance; failed to post warnings or provide supervision; failed to shape and maintain a safe riverbed; failed to remedy or remove the dangerous condition or raze the bridge; placed large boulders around the pilings of the bridge and failed to keep the bridge in reasonable repair. Defendants moved for summary and/or accelerated judgment on the basis of governmental immunity. Accelerated judgment for defendants, Court of Claims, Leo W. Corkin, J. Plaintiff appeals and raises two' issues: (1) Is the operation and maintenance of a recreational area a governmental function for the purpose of sovereign immunity? (2) Was accelerated judgment based on governmental immunity improper where plaintiff had alleged that defendants created and maintained a nuisance? Held:

    1. Governmental functions for the purpose of governmental immunity are limited to those activities which are sui generis governmental—of essence to governing. Operation of a recreational area by a state or state agency is not a special or unique activity which can be effectively accomplished only by government. Private recreational areas exist and provide essentially the same services. Therefore, the defense of governmental immunity from tort liability is not available to the State of Michigan or the DNR.

      References for Points in Headnotes

       57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 31-34, 42, 44.
    59 Am Jur 2d, Parks, Squares, and Playgrounds §§ 38, 40.

       57 Am Jur 2d, Municipal, School, and State Tort Liability § 293.
    59 Am Jur 2d, Parks, Squares, and Playgrounds § 44.

      2. The defense of governmental immunity is no longer a bar to intentionally created nuisances in fact. Defendants concede that plaintiff had pleaded the existence of an intentionally created nuisance in fact and the Court of Appeals finds that plaintiff did sufficiently allege an intentional nuisance. The trial court erred in granting defendants’ motion for accelerated judgment based on governmental immunity.
    Reversed and remanded.
    1. States — Torts — Parks — Governmental Function — Governmental Immunity.
    The operation of a recreational area by the State of Michigan and its Department of Natural Resources is not an activity which is sui generis governmental—of essence to governing; it is not a special or unique activity which can be effectively accomplished only by government because private recreational areas exist and provide essentially the same services; therefore, it is not a governmental function which would make available the defense of governmental immunity from tort liability.
    2. Torts — Nuisance — Governmental Immunity — Intentional Nuisances — Judgment — Accelerated Judgment.
    The defense of governmental immunity is not a bar to intentionally created nuisances in fact, and where the existence of an intentionally created nuisance is sufficiently pleaded, accelerated judgment based on governmental immunity is improper.

      Kenneth A. Webb, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank J. Pipp and Curtis G. Beck, Assistants Attorney General, 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 appeals as of right from an order of the trial court granting defendants’ motion for accelerated judgment on the basis of governmental immunity.

The complaint of plaintiff was filed in the Court of Claims on September 11, 1974, seeking damages for personal injuries sustained by him on July 13, 1973, when diving into the Huron River from a bridge in the Proud Lake Recreation Area, Oakland County, Michigan.

Plaintiff therein alleged that defendants were in control of the operation and maintenance of the "Power Picnic Site”, including a bridge over the Huron River, and that the bridge was in a state of disrepair and abandonment. Plaintiff also alleged that defendants knew, or should have known that the public openly and notoriously used the bridge for jumping and diving into the river. He further alleged that on July 13, 1973, he observed others jumping and diving into the river from the bridge, and he proceeded to do likewise, and in the process struck his head on an unknown object hidden beneath the surface of the river. This resulted in the plaintiff’s suffering permanent and complete paralysis from the shoulders down, with only minimal use of his arms.

Plaintiff in his complaint alleged also that defendants’ knowing or "having basis of belief for knowing” the hazardous and dangerous condition of the bridge, • created and maintained a nuisance and breached their duties to the public, including the failure to post warnings; provide supervision; shape and maintain a safe riverbed; remove dangerous conditions; remedy the dangerous condition, when defendants knew or should have known of it; and raze the bridge.

The defendants on September 19, 1974, filed a motion for summary judgment or, in the alternative, accelerated judgment, on the basis of governmental immunity. This motion was heard on March 27, 1975.

Thereafter, on April 3, 1975, plaintiff filed a motion to amend his complaint, with proposed additional allegations that defendants failed to keep the bridge in reasonable repair and in a condition reasonably safe and fit for travel, and that defendants created a nuisance per se and in fact by placing a large number of large boulders around the pilings of the bridge, creating a dangerous and hazardous condition.

The trial judge, on May 2, 1975, filed his opinion holding defendants immune, unless the nuisance complained of constituted a taking of property without just compensation. The trial court also found that the proposed amendments to the complaint would not affect his ruling on the motion.

Plaintiff raises two issues on appeal, viz:

I. Is the operation and maintenance of a recreational area a governmental function for the purposes of sovereign immunity?

II. Was accelerated judgment based on governmental immunity improper where plaintiff had alleged that defendants created and maintained a nuisance?

In addressing the first issue we acknowledge that our Michigan courts have traditionally treated the operation of recreational parks as a governmental function. Royston v Charlotte, 278 Mich 255; 270 NW 288 (1936), Penix v St. Johns, 354 Mich 259; 92 NW2d 332 (1958), Rohrabaugh v Huron-Clinton Metropolitan Authority Corp, 75 Mich App 677; 256 NW2d 240 (1977), Collison v Saginaw, 84 Mich App 325; 269 NW2d 586 (1978).

However, our Supreme Court has redefined "governmental function” in the two recent cases of Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), and Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 (1978). In Parker the Court held that the operation of a municipal hospital was not a governmental function. Mr. Justice Fitzgerald, with Mr. Chief Justice Kavanagh and Mr. Justice Levin concurring, stated:

"Again, we reject the rigid dichotomy of the past. Because an activity is not proprietary, it does not necessarily follow that the activity is governmental. We would limit the term 'governmental function’ to those activities sui generis governmental—of essence to governing.” 404 Mich 193.

Mr. Justice Fitzgerald rejected the "common good of all” test for defining the term "governmental function”. 404 Mich 194. He pointed out that the operation of a hospital is not an activity of a peculiar nature such that the activity can only be done by government. Rather, government participates along the side of private enterprise and charitable and religious organizations in operating hospitals. He additionally noted that the modern hospital is essentially a business and as such there is no rational ground upon which immunity for the government-operated hospital can rest. 404 Mich 195.

Mr. Justice Moody concurred in a separate opinion. Although not actually adopting the "sui generis governmental—of essence to governing test” his approach to the issue was similar wherein he stated:

"To delineate a complete and balanced definition of governmental function within a simplistic format would be presumptuous^ However, as a basic guideline, the crux of the governmental essence test should be founded upon the inquiry whether the purpose, planning and carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by the government. Unless liability would be an unacceptable interference with government’s ability to govern, activities that fall outside this parameter, although performed by a government agency, are not governmental functions and therefore not immune.” 404 Mich 200.

In the case of Perry, supra, the Supreme Court held that the operation of a public mental hospital is a governmental function.

In applying the law as stated in the recent decisions of our Supreme Court as we understand it, it appears that the operation of a recreational area is not "of essence to governing” because it is not an activity which can be done only by government. Private recreational areas do exist and provide essentially the same services. Also under the analysis stated by Mr. Justice Moody, in Parker, the instant case does not present a situation where the purpose, planning, carrying out of the activity, due to its unique character or governmental mandate, can be effectively accomplished only by government. In addition, liability would not be an unacceptable interference with the government’s obligation to govern.

Applying the principles laid down in Parker, we rule that the operation of the recreational area in question was not a governmental function. Therefore, defendants would not enjoy governmental immunity.

In fairness to the trial judge we point out that in 1975 when this matter was decided he did not have the benefit of the recent rulings laid down by our Supreme Court in 1978, in Parker and Perry.

We now turn to the second issue posed by plaintiff: was accelerated judgment based on governmental immunity improper where plaintiff alleged defendant created and maintained a nuisance?

The trial court decided the instant motion on the authority of Buddy v Dep’t of Natural Resources, 59 Mich App 598; 229 NW2d 865 (1975). However, in light of Rosario v Lansing, 403 Mich 124; 268 NW2d 230 (1978), and the companion case of Gerzeski v Dep’t of State Highways, 403 Mich 149; 268 NW2d 525 (1978), the Buddy decision no longer remains the law in Michigan. Briefly stated, Rosario and Gerzeski hold that the defense of governmental immunity is no longer a bar to intentionally created nuisances in fact. However, both Rosario and Gerzeski split 3-2 as to whether the bar of governmental immunity is inapplicable when the alleged nuisance is not intentionally created. See, Affiliated FM Insurance Co v Dep’t of State Highways & Transportation, 86 Mich App 203; 272 NW2d 239 (1978).

We rule that the present case is controlled by the principles enunciated. Defendants concede in their brief on appeal that plaintiff had pleaded the existence of an intentionally created nuisance in fact.

In Rosario, supra, Mr. Justice Moody set forth the definition of intentional nuisance as follows:

"A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance.” 403 Mich 124.

We find that the plaintiff did sufficiently allege an intentional nuisance, both in the original complaint and in the amended complaint. We therefore rule that the present case is controlled by the principles set forth in Rosario and Gerzeski, supra, and plaintiff has stated a claim in avoidance of governmental immunity.

We again, in fairness to the trial judge, point out that he did not have the benefit of our Supreme Court’s decision in the Rosario and Gerzeski cases.

Reversed and remanded for further proceedings consonant with this opinion.

Costs to plaintiff.

       See the three opinions written in the case.


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

text:
    PEOPLE v WORDEN
    Docket No. 77-99.
    Submitted January 5, 1979, at Grand Rapids.
    Decided August 20, 1979.
    George L. Worden was convicted of forgery, Calhoun Circuit Court, Stanley Everett, J. Defendant appeals, alleging, inter alia, that the trial court abused its discretion in deciding to admit evidence of defendant’s prior felony convictions for the purpose of impeachment, and that the trial court erred in admitting evidence of other bad acts and in failing to give, sua sponte, a cautionary instruction regarding accomplice testimony. Held:

    1. The trial court clearly recognized that it had the discretion to permit or deny the use of evidence of the defendant’s prior convictions for impeachment. The court’s decision to admit the evidence of the prior convictions was not an abuse of that discretion.
    2. The evidence of the defendant’s other bad acts was properly admitted to show the defendant’s intent to defraud, which was an essential element of the crime charged.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 333.
    75 Am Jur 2d, Trial § 863.
    81 Am Jur 2d, Witnesses §§ 569-586.

       5 Am Jur 2d, Appeal and Error § 881.
    75 Am Jur 2d, Trial §§ 393, 416 et seq.

    81 Am Jur 2d, Witnesses §§ 569, 584.

       75 Am Jur 2d, Trial §§ 393, 416 et seq.

       29 Am Jur 2d, Evidence § 320 et seq.

       29 Am Jur 2d, Evidence §§ 321, 330.
    81 Am Jur 2d, Witnesses § 577.
    Right to impeach credibility of accused by showing prior conviction, as affected by remoteness in time of prior offense. 67 ALR3d 824.

       81 Am Jur 2d, Witnesses § 576.
    Permissibility of impeaching credibility of witness by showing former conviction, as affected by pendency of appeal from conviction or motion for new trial. 16 ALR3d 726.

       29 Am Jur 2d, Evidence § 321 et seq.

       36 Am Jur 2d, Forgery §§ 1-4.
    37 Am Jur 2d, Fraud and Deceit § 28.

       75 Am Jur 2d, Trial §§ 690, 818-820, 866.

      3. The court’s failure to give an instruction on accomplice testimony was not error. There was no request for such an instruction, and in this case the issue was not so closely drawn as to require a cautionary instruction in the absence of a request.
    Affirmed.
    M. J. Kelly, J., concurred separately. He would hold that the decision to admit evidence of five prior convictions was error because the convictions were for conduct which was the same or substantially the same as that with which the defendant was charged, and this could likely influence the jury. The error does not require reversal in this case, however, because the people presented overwhelming evidence that defendant had forged the check.
    Opinion of the Court
    1. Criminal Law — Evidence — Witnesses — Prior Convictions — Impeachment — Rules of Evidence.
    Evidence that a witness has previously been convicted of a crime may, in the discretion of the trial court, be admitted for the purpose of impeaching the witness where the conviction was for a felony and where the trial court determines that the probative value of the evidence outweighs its prejudicial effect (MRE 609[a]).
    2. Appeal and Error — Criminal Law — Evidence — Witnesses — Prior Convictions — Judge’s Discretion.
    The Court of Appeals, when reviewing the decision of a trial court to admit evidence of a witness’s prior convictions for purposes of impeachment, must determine whether the trial court recognized that it had the discretion to deny admission of the evidence and, if so, whether admission of the evidence would be an abuse of that discretion.
    3. Evidence — Admissibility — Judge’s Discretion.
    Recognition by a trial court that the use of some evidence is to be permitted while the use of other evidence is to be denied is the essence of discretion on the admissibility of evidence.
    4. Criminal Law — Evidence — Prior Convictions — Same or Similar Conduct — Impeachment.
    The fact that a defendant’s prior convictions were for the same or similar offenses as the charged offense weighs against admissibility of evidence of those prior convictions for purposes of impeachment of the defendant.
    5. Criminal Law — Evidence — Impeachment — Prior Convictions.
    A trial court’s decision, to admit, for impeachment purposes, evidence of a defendant’s previous convictions is not improper merely because the prior convictions were remote in time.
    6. Criminal Law — Evidence — Impeachment — Prior Convictions — Reversible Error.
    It is error to permit impeachment of a defendant by use of evidence of a prior conviction which has subsequently been reversed upon appeal; however, such error is not reversible error unless it appears from the record that the admission of the evidence of the reversed conviction would have materially influenced the trier of fact in arriving at a verdict.
    7. Criminal Law — Evidence — Other Bad Acts — Similar Acts — Statutes.
    Generally, evidence of a defendant’s bad acts other than the crime charged is not admissible because its probative value is outweighed by the likelihood that it will prejudice the jury against the defendant; an exception is made for using such evidence to show a defendant’s motive, intent, absence of mistake, design, scheme, plan or system in committing the charged offense (MCL 768.27; MSA 28.1050).
    8. Forgery — Intent to Defraud — Elements of Crime.
    An intent to defraud is the gist of the crime of forgery and is, therefore, an essential element of the crime of forgery.
    9. Criminal Law — Instructions to Jury — Accomplice Testimony.
    Failure of a trial court to give a cautionary instruction regarding testimony of an accomplice was not error where there was no request for such an instruction and the issue was not closely drawn as the case involved the word of the defendant against the testimony of two accomplices and two nonaccomplices.
    Concurrence by M. J. Kelly, J.
    10. Criminal Law — Evidence — Prior Convictions — Same or Similar Conduct.

      The admission of evidence of a defendant’s Gve prior convictions for impeachment purposes is error where the prior convictions

      were for the same or substantially the same conduct as that involved in the charged offense; it is not required, in order for the evidence to be inadmissible, that the prior convictions be for the identical crime with which the defendant is charged.

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

      Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and M. J. Kelly, JJ.
   D. E. Holbrook, Jr., P.J.

Defendant was charged with forgery, a violation of MCL 750.248; MSA 28.445. In September, 1976, defendant was convicted by a jury of the charged offense and sentenced to 8-1/2 to 14 years in prison. He appeals as of right, raising five issues.

I

Defendant’s criminal history indicates that he has been convicted on six prior occasions. He was convicted of breaking and entering in 1954; issuing an insufficient funds check in 1958; uttering and publishing in October, 1958; issuing a no-account check in May, 1966; attempted uttering and publishing in January, 1968; and attempted uttering and publishing in May, 1972. Prior to the opening statements, defense counsel made a motion to prohibit the prosecution’s utilization of defendant’s prior convictions for impeachment purposes should defendant take the stand. This motion was discussed in chambers and the trial court determined that while the breaking and entering conviction could not be used, the remainder would be admitted. Defendant chose not to testify at his trial. He now argues that the trial judge abused his discretion by deciding to admit evidence of his convictions for impeachment purposes, and that this abuse of discretion infringed upon his rights to testify and to present an affirmative defense.

At the time of the trial in 1976, the admission into evidence of references to a defendant’s prior convictions for impeachment purposes was controlled by MCL 600.2158; MSA 27A.2158 and MCL 600.2159; MSA 27A.2159. These statutes were interpreted by Judge (now Justice) Levin in People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), as being permissive in their application, thus allowing a trial court, in the exercise of its discretion, to refuse to allow reference to a defendant’s prior conviction record. This analysis was adopted by the Michigan Supreme Court in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), in an opinion written by Justice Levin and concurred in by Chief Justice T. M. Kavanagh and Justices T. G. Kavanagh, Swainson and Williams. Writing for the Court, Justice Levin stated:

"We are persuaded that a trial judge may in the exercise of discretion exclude reference to a prior conviction record, and that it is error to fail to recognize that he has such discretion and, therefore, to fail or to refuse to exercise it.” People v Jackson, supra, at 336.

The Court’s decision in Jackson was an explicit recognition of the principle that a defendant may be impeached by the use of his prior, convictions in instances where the court determines that their probative value outweighs their prejudicial effect. See People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976), People v Moore, 391 Mich 426; 216 NW2d 770 (1974). This general principle was modified slightly in People v Renno, 392 Mich 45; 219 NW2d 422 (1974), when the Court prohibited the use of municipal ordinance and misdemeanor convictions when introduced by the prosecution solely for impeachment purposes.

The Michigan Supreme Court adopted the Michigan Rules of Evidence on January 5, 1978. MRE 609 concerns impeachment by evidence of conviction of crime and retains the Jackson rule and part of Renno. MRE 609(a) states:

"(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if
"(1) the crime was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or the crime involved theft, dishonesty or false statement, regardless of the punishment, and
"(2) the court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect.” 402 Mich ciii-civ.

This rule on its face requires that if the defendant’s prior conviction falls within the category stated in (1) of above, and the court determines that the probative value outweighs its prejudicial effect, then the evidence shall be admitted. We interpret the adoption of MRE 609 to be a reaffirmation by the Supreme Court of its prior position concerning the general admissibility of evidence of convictions for impeachment purposes. While MRE 609 was not in effect at the time of defendant’s trial, its requirements essentially reflect Michigan case law prior to its adoption, and we will refer to it when applicable.

When reviewing the decision of the trial court to permit impeachment of a defendant by evidence of his prior convictions, this Court must apply a two-prong test. We must examine the record to ascertain whether the trial court recognized that it had the discretionary power to deny utilization of the prior convictions for impeachment purposes; and if so, determine whether there was an abuse of this discretion when evidence of a defendant’s prior convictions was permitted to be introduced into evidence for impeachment purposes.

The first prong of this test was established in People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), when the Court stated that:

"In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion.” Cherry, supra, at 261.

Cherry is complied with when it is apparent from the record that the trial court was aware that it had the discretion to disallow the evidence of the prior conviction, and that its decision was based upon an exercise of this discretion. People v Castillo, 82 Mich App 476, 482; 266 NW2d 460 (1978), People v Pleasant, 69 Mich App 322, 328; 244 NW2d 464 (1976), lv den 399 Mich 831 (1977), People v Burse, 62 Mich App 204, 212; 233 NW2d 232 (1975). In the instant case, though much of the discussion took place in chambers, the court’s ruling on defendant’s motion was placed on the record, thus avoiding the error found in People v Williams, 84 Mich App 226; 269 NW2d 535 (1978). In its ruling, the trial court agreed to exclude evidence of one conviction and permitted the use of the others only with certain limitations. The recognition by a trial court that the use of some evidence is to be permitted while the use of other evidence is to be denied is the essence of discretion, People v Stephens, 58 Mich App 701, 706; 228 NW2d 527 (1975). The trial court clearly recognized that it had the discretion to permit or deny the use of defendant’s prior convictions for impeachment purposes and has exercised this discretion on the record. We are satisfied that the trial court complied with the procedural requirements of Jackson and Cherry.

The decision concerning the admission of evidence of a conviction for the purpose of impeachment is addressed to the trial court’s discretion. Its decision may only be reversed upon a finding that the discretion granted to it was abused. People v Merritt, 396 Mich 67, 80; 238 NW2d 31 (1976). The term "abuse of discretion” was defined in Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), as:

"Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts. The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an 'abuse’ in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.”

The discretion granted the trial court in this instance concerns the weighing of the probative value of evidence of a defendant’s prior conviction against the prejudicial effect introduction of such evidence will have. The exercise of this discretion envisions a decision by the trial court based upon its evaluation of the given fact situation, rather than the application of any rigid legal standard, and the Spalding standard should be utilized to determine whether its discretion was abused. See Daniels v Allen Industries, Inc, 391 Mich 398, 413; 216 NW2d 762 (1974).

There are no hard and fast rules to govern when a trial court should permit the use of evidence of prior convictions for impeachment purposes, except the requirement that the trial court must know the nature and age of the prior convictions. People v Killebrew, 61 Mich App 129, 134; 232 NW2d 392, lv den 395 Mich 817 (1975). See also People v Makidon, 84 Mich App 287, 289; 269 NW2d 568 (1978), People v Castillo, supra, at 483. Chief Justice, then Judge, Burger has, however, suggested several guidelines to be utilized by the trial court in the exercise of this discretion. In Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967), he stated:

"The rationale of our Luck [Luck v United States, 121 US App DC 151; 348 F2d 763 (1965)] opinion is important; it recognized that a showing of prior convictions can have genuine probative value on the issue of credibility, but that because of the potential for prejudice, the receiving of such convictions as impeachment was discretionary. The defendant who has a criminal record may ask the court to weigh the probative value of the convictions as to the credibility against the degree of prejudice which the revelation of his past crimes would cause; and he may ask the court to consider whether it is more important for the jury to hear his story than to know about prior convictions in relation to his credibility. We contemplated the possibility of allowing some convictions to be shown and some excluded; examples are to be found in those which are remote and those which have no direct bearing on veracity, and those which because of the peculiar circumstances at hand might better be excluded.” Gordon v United States, supra, at 346.

These guidelines as suggested by Justice Burger have been adopted by our judiciary and form the cornerstone of a trial court’s exercise of discretion. See People v Jackson, supra, at 333, People v Farrar, supra, at 302-303.

The Michigan appellate courts have set forth several guidelines to the exercise of this discretion. A factor weighing against admissibility is that the prior convictions are for the same or similar offenses as the charged offense. People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979). The more similar the prior conviction is to the offense for which the accused is being tried, the more hesitant should the trial judge be in allowing its admission. People v Cash, 80 Mich App 623, 626; 264 NW2d 78 (1978), People v Gunter, 76 Mich App 483, 491; 257 NW2d 133 (1977), People v Townsend, 60 Mich App 204, 206; 230 NW2d 378 (1975). Additionally, this Court has noted that the trial court’s decision will not be reversed simply because the prior convictions were remote in time. See People v Gunter, supra, at 491, People v Townsend, supra, at 206.

After a careful review of the record we are convinced the trial court did not abuse its discretion by ruling that defendant’s convictions could be utilized for impeachment purposes. The trial court, after being apprised of the nature and age of defendant’s prior convictions, permitted five of the six prior convictions to be used in evidence. These convictions, while for similar type offenses, were not for the identical crime of forgery that defendant was charged with in the instant case. The introduction of all five convictions would undoubtedly have created some prejudice to defendant, but we do not find that it would rise to the magnitude of prejudice that required reversal in People v Bennett, 85 Mich App 68, 72; 270 NW2d 709 (1978), where the introduction of evidence of five convictions, two of which were for crimes identical to the crime charged, was found to constitute an abuse of the trial court’s discretion.

Nor do we find defendant’s two 1958 convictions, which were 18 years old at the time of trial, to be so remote in time as to make it unfair or improper to admit evidence of them. People v Penn, 71 Mich App 517, 520; 248 NW2d 602 (1976), lv den 400 Mich 813 (1977), stated in dicta that the admission of evidence of two prior felony convictions for impeachment purposes, the latest of which was 18 years old, might constitute error, but we are convinced that this present case is significantly distinguishable. In Penn the most recent conviction was 18 years old, while in our instance the three most recent convictions ranged from 4 to 10 years old, and only the fourth and fifth convictions were 18 years old. The fact that these more recent convictions were for dishonesty-type offenses, as were the 1958 convictions, negates the inference that the mere passage of time has made the 1958 convictions less representative of the defendant’s willingness and ability to be a truthful person and to tell the truth. New MRE 609(b) absolutely prohibits the introduction for impeachment purposes of evidence of a conviction more than ten years old. However, since this rule was not in effect at the time defendant was tried, evidence of convictions older than ten years could properly be admitted in instances where the trial court found them to be more probative than prejudicial. United States v Townsend, 555 F2d 152, 159 (CA 7, 1977).

We note that defendant’s 1958 conviction for uttering and publishing was reversed upon appeal and subsequently the case was nol-prossed. The reversal of defendant’s conviction, while not tantamount to a finding of innocence, has the effect of making defendant no longer convicted of the crime charged. As such, it is error to permit impeachment of a defendant by evidence of such a conviction. See, 2 Wharton’s Criminal Evidence (13th ed), § 475. While such impeachment is error, it is reversible error only when it appears from the record that the admission of evidence of the reversed conviction would have materially influenced the trier of fact in arriving at its verdict. People v Coffey, 67 Cal 2d 204; 60 Cal Rptr 457; 430 P2d 15 (1967). In this instance, the defendant had three other admissible convictions of a more recent date. The additional prejudice created by evidence of this conviction would have been minimal at best, and does not warrant reversal.

Finally, a fair reading of the trial court’s decision in this matter indicates that it would have admitted evidence of the prior convictions primarily because of their bearing on defendant’s credibility. While the trial court’s decision might not be identical to that which we would have made had we been the trier of fact, it is not so palpably or grossly violative of fact or logic as to constitute an abuse of discretion. Accordingly, we find that the trial court’s decision concerning the admissibility of evidence of defendant’s prior convictions for impeachment purposes was not error.

II

Defendant’s second claim of error is that he was denied a fair trial when the trial court improperly admitted evidence of other bad acts. The prosecutor proposed to use the testimony of Miss Wilhelm to show that immediately prior to the forging of the check for which defendant was on trial, he had forged three other checks and had Miss Wilhelm cash them. Prior to the admission of this testimony, the court excused the jury and listened to Miss Wilhelm’s testimony. After hearing her testimony and listening to the arguments of counsel, it determined that the evidence was admissible under the similar acts statute as indicating a common scheme or plan and intending to show the motive or intent of the defendant. In order to minimize the prejudice to defendant, the trial court instructed the jury, before they heard the testimony of Miss Wilhelm, as follows:

"The prosecutor proposes to offer testimony regarding some other events that day which will involve other checks. Testimony of that kind can be received by you for a very limited purpose, and I want to explain it to you and if any of you have any questions, I want you to feel free to just raise your hand so that I can try to answer them.
"The fact that a person may have done something similar at another time cannot be used as evidence to establish that he did that act here. But under our law— I’ll read you in part from the statutes. 'Where the defendant’s motive, intent, in the absence of a mistake or accident on his part or the defendant’s scheme, plan or system in doing an act is material, any like acts or act which may tend to show his motive, intent, the absence of mistake or accident on his part or his scheme, plan or system in doing the act in question may be proved.’ In other words, they have a right to show that there may have been other checks that day solely to establish either that he had a scheme or a plan and this was part of it or that he intended to do this, to defraud somebody, that it was not an accident or a mistake on his part, and that’s the only reason for which you can hear or consider such testimony.”

It is defendant’s contention that this ruling was erroneous because intent and scheme were not material and the trial court failed to make the required analysis of prejudice versus probative value.

The general rule in Michigan is that evidence of a defendant’s other bad acts is inadmissible because its probative value is outwéighed by the likelihood that it will prejudice the jury against the defendant, preventing an objective determination of the disputed facts or issues. People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), People v Wilkins, 82 Mich App 260, 265; 266 NW2d 781 (1978). A statutorily created exception to this general rule is the similar acts statute, MCL 768.27; MSA 28.1050:

"In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”

This statute has been interpreted by Wilkins as requiring the showing of three things before the similar acts evidence is admissible. There must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced, the bad act must be probative of the defendant’s motive, intent, absence of mistake or design, scheme, plan or system in committing the charged offense, and that the defendant’s motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of defendant’s guilt of the charged offense. Wilkins, supra, at 267-268.

In this instance three witnesses, Miss Wilhelm, Patsy Roberts, and Duey Roberts, testified to stops at other stores at which Miss Wilhelm cashed checks allegedly written by defendant. This testimony sufficiently established that defendant actually perpetrated the bad acts in question, since the proof required need only convince the jury of the probability of the defendant’s action rather than constitute proof beyond a reasonable doubt. People v Duncan, 402 Mich 1, 13-14; 260 NW2d 58 (1977), People v Allen, 351 Mich 535; 88 NW2d 433 (1958). This evidence is also probative of defendant’s intent since it shows a continuing operation which culminated in the commission of the offense charged. People v Nawrocki, 376 Mich 252, 255; 136 NW2d 922 (1965). We agree with the trial court’s decision that defendant’s prior conduct shows an absence of mistake or accident on his part and is probative of defendant’s intent when he wrote the check in question.

An intent to defraud is the gist of forgery, Leslie v Kennedy, 249 Mich 553, 556; 229 NW 469 (1930), People v Long, 27 Mich App 385; 183 NW2d 641 (1970), and is therefore an essential element of the crime. See also CJI 28:1:01. Since the evidence of defendant’s other prior bad acts is probative of his intent and intent is an essential element of the charged crime of forgery, we conclude that the evidence meets the materiality test. Also, because the prosecution must prove intent, it may introduce this evidence in its case in chief. People v Wilkins, supra, at 269-270.

We find that the evidence of defendant’s prior bad acts has met the test stated in Wilkins and the presumption against admissibility has been overcome. However, merely because the evidence is admissible does not require the trial court to admit it. The trial court may only admit the evidence of prior bad acts if it finds that the evidence is more probative than prejudicial. An examination of the record indicates that the trial judge carefully considered this matter, and instructed the jury prior to the introduction of the evidence on permissible uses of the testimony in order to minimize any prejudice. The determination of whether the probative value of the similar acts testimony is substantially outweighed by prejudicial effect is within the sound discretion of the trial judge. People v DerMartzex, supra, at 415. We find that the trial judge did not abuse his discretion in this instance. See People v Duncan, supra, at 14-15.

Ill

Defendant’s third claim is that the trial court committed reversible error by failing to give sua sponte a cautionary instruction regarding an accomplice’s testimony. In People v McCoy, 392 Mich 231, 240; 220 NW2d 456 (1974), the Court stated:

"[I]f the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge.”

In this instance there was no request to charge and for error to occur we must find that the issue was closely drawn. In People v Gordon Hall, 77 Mich App 528; 258 NW2d 547 (1977), this Court held that when a single accomplice testifies that a defendant did the act charged, and the defendant denies any participation in the crime, then the issue is closely drawn because the trial becomes a credibility battle between the testifying accomplice and the defendant. In our instance, however, it is not the defendant’s word against a single testifying accomplice, but rather his word against the testimony of two accomplices and two nonaccomplices. After reviewing the record we find that the issue is not so closely drawn as to require the trial court to give sua sponte a cautionary instruction regarding accomplice testimony. Additionally we note that the jury instruction given by the court regarding the credibility of witnesses and the weight to be given to their testimony was fair and balanced and adequately protected defendant’s interest.

We find defendant’s, remaining claims of error to be without merit. Defendant’s contention that an exhibit containing Nancy Roberts’ signature, marked as defendant’s Exhibit D but not admitted into evidence, was given to the jury during deliberations, is without substance. The lower court record contains only the prosecution’s Exhibits 1-4 and defendant’s Exhibit E. We are unable to agree with defendant’s contention that because he is unable to find his missing Exhibit D we must presume that it was submitted to the jury. Nor do we find that defendant is entitled to be resentenced. There is no requirement that a defendant be present during an in-chambers discussion with counsel regarding the trial court’s sentence, and in the absence of a recorded request by defendant to examine the presentence report, there is no requirement that the defendant be afforded an opportunity to read the presentence report. People v Moore, 60 Mich App 1; 230 NW2d 281 (1975). The record in this instance reflects no such request.

Affirmed.

R. B. Burns, J., concurred.

M. J. Kelly, J.

(concurring). I concur only in the result.

I would hold that the lower court erred in allowing admission of evidence of defendant’s five prior convictions for purposes of impeachment. Apart from the fact that two of these prior convictions were 18 years old and one of them had been reversed on appeal and the case was subsequently nol-prossed, I think the prejudicial impact of the evidence of these five prior convictions far outweighed any probative value it might have had on the issue of defendant’s credibility.

This question of admissibility, in my opinion, is controlled by the recent Supreme Court decision in People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979), where it was held that, when the prior conviction is for the same or substantially the same conduct for which defendant is on trial, good reasons exist for excluding evidence of the prior conviction. In Baldwin, the trial court permitted the defendant, in a prosecution for assault with intent to go great bodily harm less than murder, to be impeached with evidence of his prior convictions of felonious assault and attempted robbery. In People v Woolfolk, a case consolidated on appeal with Baldwin, the trial court admitted evidence of defendant’s prior conviction of unarmed robbery for purposes of impeachment, in a prosecution on the charge of armed robbery. In both cases, the trial court reasoned that the similarity of the prior conduct to the charged offense was a factor favoring admissibility.

In reversing, the Court ruled that similarity between prior convictions and the charged offense is a factor weighing against admissibility and quoted, with approval, the following language from United States v Gordon, 127 US App DC 343, 347; 383 F2d 936 (1967):

"A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.” People v Baldwin, supra, at 553.

The majority, although conceding the prejudicial nature of the evidence of these five prior convictions, finds no abuse of discretion in its admission because "these convictions, while for similar type offenses, were not for the identical crime of forgery [with which] defendant was charged”. I think that conclusion misapprehends the analysis in Baldwin. Baldwin applies to prior convictions for "the same or substantially the same conduct”. Identity is not required.

In this case, the admission of evidence of these prior convictions and its use as impeaching evidence was, in all likelihood, the primary consideration in defendant’s decision not to take the stand. And rightly so, for, rather than an "inevitable pressure”, and recitation of this litany of prior, highly-similar offenses could, very possibly, have had a compelling effect on the jury.

In the context of this case, however, I would not find that the decision to admit evidence of these prior convictions constituted reversible error, for the people presented overwhelming evidence that defendant had forged the check. In a less clear-cut case where the decision to admit such evidence could have a decisive impact, I would find that the admission of evidence of five prior convictions for highly-similar offenses would constitute reversible error.

       MCL 750.110; MSA 28.305. This offense is a felony punishable by imprisonment in the state prison for not more than 10 years, or for not more than 15 years if the building is an occupied dwelling house.

       MCL 750.131; MSA 28.326. If the amount of the check is over $50, this offense is a felony punishable by imprisonment in the county jail for not more than one year; if $50 or less, it is a misdemeanor. The record is not clear regarding the amount of this insufficient funds check, but since defendant does not contend that the conviction was a misdemeanor, we assume that it was a felony.

       MCL 750.249; MSA 28.446. This offense is a felony punishable by imprisonment in the state prison for not more than 14 years.

         MCL 750.131a; MSA 28.326(1). This offense is a felony punishable by imprisonment in the state prison for not more than two years.

       MCL 750.249; MSA 28.446, MCL 750.92; MSA 28.287. This offense is a felony punishable by imprisonment in the state prison for not more than five years.

       The trial court’s ruling on defendant’s motion was made on the record, even though the argument was heard in chambers. The court ruled;
      "The Court: All right, lets take up the first matter. We have discussed it in chambers. I’ve indicated to the prosecutor that certain B & E convictions should not be referred to. They are old to begin with, and I would agree that as to them, there is little if any probative value. I have indicated to the prosecutor that those offenses relating directly to checks, either uttering and publishing or forgery or attempted uttering and publishing or the issuance of bad checks can be referred to but on the basis that he will have the right to ask the defendant 'have you been arrested and convicted’ of whatever the offense is and the number of times. It seems to me clearly that in the forgery case, prior convictions of a related nature go directly to the credibility of the witness if he testifies that he, for example, did not forge this or which I assume would be his defense. And the jury will be instructed of course, that—of the limited purpose for which such convictions may be referred to.
      "Mr. Shaffer: Your Honor, for the record, and in response to a statement by the prosecutor, in chambers, the prosecutor referred to a 1958 uttering and publishing conviction. I would like to place on the record that that conviction had been reversed. It was remanded and subsequently nolle prossed, so—.
      "The Court: All right. Well, I’m not going to allow the prosecutor to go into detail but to simply ask the defendant have you been arrested and convicted of whatever it is he has been arrested and convicted which relates to checks and the number of times. If it is uttering and publishing, he can ask him that. If it is forgery, he can ask him that. One of those was passing a no account check, he can ask that, but he is not going to be allowed to go into the details of these. You have a right, of course, if you want to bring out the age of these, of course, that’s your privilege.”

       This section states:
      "No person shall be excluded from giving evidence on any matter, civil or criminal, by reason of crime or for any interests of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.”

       This section modifies MCL 600.2159; MSA 27A.2159:
      "No person shall be disqualified as a witness in any civil or criminal case or proceeding by reason of his interest in the event of the same as a party or otherwise or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility. A defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

       The Justices in Jackson had the opportunity to prohibit the practice of impeachment by evidence of prior convictions but declined to do so even though four found the practice improper. The concurring opinion of Justice Swainson, concurred in by Chief Justice T. M. Kavanagh, stated that:
      "In my opinion, the interest of justice and the efficient administration of our judicial system would best be served by declaring prior convictions inadmissible for the purpose of impeaching the credibility of a criminal defendant.” Jackson, supra, at 343.
      The concurring opinion of Justice T. G. Kavanagh, concurred in by Justice Levin, stated:
      "We agree that a witness’ past conviction record should not be admissible for the purpose of impeaching his credibility.
      "We are convinced however that the change should be effected by promulgation of a court rule which would afford the Bench and Bar an opportunity to accommodate to this prospective change in procedure.” Jackson, supra, at 346-347.
      Justice Williams took a more intermediate view, limiting admissibility to evidence of convictions for dishonesty-type offenses. He stated:
      "My Brother Levin’s opinion is the right word at the right time, and I sign it without qualification.
      "Looking ahead with my Brothers T. G. Kavanagh, Swainson and Levin, I must agree that with the exception of conviction for perjury or some like crime there is neither logic nor warrant to introduce a defendant’s or a witness’s past conviction record for the purpose of impeaching his credibility, whatever other reason there may be for such admission.” Jackson, supra, at 347.

       In Hendrick, Justice Levin stated:
      "the credibility of a witness, including the accused when he takes the stand, may generally be impeached by reference to a prior conviction record”. Hendrick, supra, at 427 (Levin, J., dissenting.).

       In Moore, the Court stated:
      "Additionally, Jackson does not require a trial judge to exclude reference to a defendant’s conviction record; it only requires that he exercise his discretion before deciding whether to permit reference to a conviction record.” Moore, supra, at 436.

       402 Mich lxxxviii.

       MRE 609(a)(1) limits its applicability to crimes for which the punishment is more than one year; or any crime that involves theft, dishonesty or false statement, regardless of the punishment. It would appear that Renno’s applicability has been greatly limited by the second half of this standard.

       See Proposed MRE 609, Committee Note, 399 Mich 989-991 (1977).

       In Williams the motion to suppress defendant’s convictions was argued in chambers, but there was no ruling on this motion placed upon the record. This was found to be error, though not reversible in light of the later introduction of the prior convictions by defendant and the overwhelming evidence of guilt.

       MRE 609(c) states:
      "Evidence of a conviction is not admissible under this rule if * * * (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.”
      From the adoption of this rule it would appear that the Supreme Court was attempting to deny the use of only those convictions whose status has been changed because the verdict was incorrect. A reversal of a conviction on appeal and the remand for a new trial is not a recognition the result was incorrect, but rather that the method utilized was improper.

       The trial transcript reflects the following instruction;
      "Now, you are the sole judges of the credibility of the witnesses and the weight which should be given their testimony. In weighing the testimony of witnesses, you have the right to consider their candor and fairness, their manner and bearing while testifying before you, the reasonableness of their story, their means and opportunity of knowing the facts about which they testify, the consistency of their testimony with other known facts in the case. You may take into consideration their interest, bias or prejudice, if any, their relationship to the parties in the case, if any, the probability or improbability of the story related by them, and you may consider all other facts and circumstances in evidence which in your judgment would add to or detract from their credibility or the weight to be given their testimony. If there is a conflict in the testimony of certain witnesses, it is your duty to say where the truth lies. You are not bound to accept as true the statements of a witness where they are unreasonable or inconsistent with each other or with the known facts in the case.”