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

text:
    PEOPLE v BLACHURA
    Opinion of the Court
    1. Criminal Law — Appeal and Error — Defendant’s Theory Of Case — Court Clerk — Voice Problems of Judge.
    It was error for a trial judge in a criminal trial to allow the clerk of the court to read the defendant’s theory of the case to the jury, but such error was harmless and reversal of the defendant’s conviction is not required where (1) the trial judge explained to the jury that he was experiencing voice difficulty, and (2) the judge cautioned the jury that the instructions should be accepted as if he had read them; it is not error per se to allow a court clerk to read some or all pf the instructions when the judge is experiencing voice problems.
    2. Criminal Law — Grand Jury — Perjury—Secret Proceedings— Appeal and Error — Statutes.
    A short response by a grand jury foreman, at a defendant’s trial for perjury arising from the defendant’s testimony before the grand jury, answering a question posed by a prosecutor as to why the grand jury had called the defendant to testify does not violate a literal reading of the statute which cloaks a grand jury proceeding with secrecy; even if such testimony by the foreman violates the spirit of the statute, the error would be harmless error (MCLA 767.19; MSA 28.959).
    3. Criminal Law — Probation—Conditions—Costs—Expenses of Prosecution.
    A trial court may require that a defendant pay costs as a condition of his probation; however, the costs must bear a reasonable relationship to the expenses of prosecution; where the record bears no indication that the costs so levied were reasonably related to the expense of the prosecution, the cause should be remanded for findings with regard to the taxed costs (MCLA 771.3; MSA 28.1133).

      References for Points in Headnotes
    [1, 7] 5 Am Jur 2d, Appeal and Error §§ 791, 810.

       38 Am Jur 2d, Grand Jury §§ 39-41.

       21 Am Jur 2d, Criminal Law §§ 564, 565.

       41 Am Jur 2d, Indictment and Information §§ 19, 20.

       60 Am Jur 2d, Perjury § 28.

       38 Am Jur 2d, Grand Jury § 34 et seq.

      Dissent by D. E. Holbrook, Jr., P. J.
    4. Grand Jury — Indictment—Criminal Law — Preliminary Examination — Case Precedent.
    A person indicted by a citizen’s grand jury is entitled to a preliminary examination; however, the Michigan Supreme Court case which established this rule made it applicable to pending and future cases, therefore, where a defendant was convicted prior to the establishment of the rule, he was not entitled to a preliminary examination and the trial court’s failure to conduct a requested preliminary examination was not error.
    5. Criminal Law — Perjury—Grand Jury — Prosecutorial Misconduct — Due Process.
    A defendant’s indictment for perjury arising from the defendant’s testifying before a citizen’s grand jury must stand, even if the defendant’s alleged perjury may have resulted from prosecutorial misconduct which may have denied the defendant due process of law; prosecutorial misconduct does not permit a person to lie under oath.
    6. Grand Jury — Witnesses—Right to Counsel — Equal Protection.
    The significant differences between proceedings before a one-man grand jury and a citizens’ grand jury are ample justification for granting a witness before a one-man grand jury the right to have counsel present in the room where the inquiry is held and the denial of that right to a witness before a citizens’ grand jury.
    7. Criminal Law — Appeal and Error — Instructions to Jury — Dependant’s Theory of Case — Court Clerk — Voice Problems op Judge.

      It was reversible error for a trial judge in a defendant’s trial on charges of perjury to have the clerk of the court read the defendant’s theory of the case to the jury because the judge had a cold and wanted to save his voice where the judge read the instructions to the jury, then stopped to save his voice and had the clerk read the defendant’s theory, and then the judge continued to address the jury after the clerk had ñnished the defense theory which may have given the appearance to the jury that the defendant’s theory was so unimportant or so

      without merit that the judge could not waste his voice reading it.

    Appeal from Oakland, Arthur E. Moore, J.
    Submitted June 14, 1977, at Lansing.
    (Docket No. 29403.)
    Decided February 22, 1978.
    Leave to appeal applied for.
    Leon Blachura was convicted of perjury. Defendant appeals.
    Affirmed, but remanded for further proceedings.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Marvin S. Shwedel, Special Prosecuting Attorney, for the people.

      Leitman & Roeser, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and Allen and D. R. Freeman, JJ.

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

   Allen, J.

We agree with all of Judge Holbrook, Jr.’s dissenting opinion except his ultimate conclusion that the defendant’s conviction must be reversed because the trial judge allowed his court clerk to read the defendant’s theory of the case to the jury. We agree that error occurred, but believe the error was harmless. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), MCLA 769.26; MSA 28.1096, GCR 1963, 529.1.

It is not error per se to allow the clerk to read some or all of the instructions when the judge is experiencing voice problems. At least two circuit judges in Michigan have undergone throat surgery or are handicapped by voice problems and have their clerks read all of the instructions. In the present case, there is no evidence that the trial judge was not in fact suffering from a severe cold which affected his voice. Finding that he could not continue, he might have taken a brief recess until he recovered. In retrospect, that would have been the preferred course. Alternatively, he might have allowed his clerk to read some other portion of the instructions, and we would probably not find error. The problem, as Judge Holbrook, Jr., points out, is that he selected the worst possible moment to defer to his clerk. For that reason, we must agree that the judge erred.

However, the trial judge carefully explained to the jury the reason for the substitution and cautioned them that the instructions should be accepted as if he had read them. Further, the court instructed the clerk to "sound like me”. Under these circumstances we cannot believe the trial judge was sub silentio signaling the jury that the defendant’s theory was to be given little weight. And review of the record convinces us beyond a reasonable doubt that — in this case — the result would have been the same even if the disputed procedure had not been followed. People v Robinson, supra.

Defendant raises three issues which Judge Holbrook, Jr., correctly felt required no discussion because of his finding of reversible error on the question discussed above. We refer to defendant’s issues II, III and VI. In People v Blachura, 396 Mich 723; 242 NW2d 390 (1976), the Supreme Court dismissed defendant’s appeal of this Court’s decision in People v Blachura, 59 Mich App 664; 229 NW2d 877 (1975). We are precluded from going further on issue II. As to issue VI, the alleged error occurred when the grand jury foreman, in response to a question by the prosecutor, testified as to why the grand jury called the defendant.

"Q. (By Mr. Newcomer, continuing): Mr. Reynolds, can you tell us why you felt that the line of questioning that you asked Mr. Blachura was material to the inquiry regarding the Drain Commission Office?
"A. Yes. At that point in time I think we had a conflict in the minds of the jurors whether in fact Mr. Barry and Mr. Nicholes had an interest in the M-59 property.
"MR. NEWCOMER: I have no further questions.”

This three-line response by the foreman does not violate MCLA 767.19; MSA 28.959 when that statute is literally read. Assuming, arguendo, that the foreman’s response violated the spirit of the statute, viz.: total protective secrecy of the grand jury proceedings, we find such error harmless. Cf. People v Kert, 304 Mich 148; 7 NW2d 251 (1943).

Issue III, while not demanding reversal of defendant’s conviction, does require remanding to the trial court for further findings as to costs. As a condition of defendant’s probation, defendant was required to "pay costs in the amount of $1,000 for each count, or a total of $5,000”. Under MCLA 771.3; MSA 28.1133, the trial court had the power to assess costs. But costs must bear a reasonable relationship to the expenses of prosecution. People v Teasdale, 335 Mich 1; 55 NW2d 149 (1952), People v Barber, 14 Mich App 395; 165 NW2d 608 (1968). In the instant case there is no indication that the costs levied were reasonably related to the expense of the prosecution. On this issue the record is blank. Therefore, this cause is remanded for findings with regard to the taxed costs. In all other respects, the defendant’s conviction and sentence is affirmed.

Affirmed and remanded in accordance with this opinion.

D. R. Freeman, J., concurred.

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

(dissenting). This perjury conviction has a long history in Michigan courts. People v Blachura, 390 Mich 326; 212 NW2d 182 (1973), and People v Blachura, 59 Mich App 664; 229 NW2d 877 (1975), appeal dismissed, 396 Mich 723; 242 NW2d 390 (1976). However, the instant case represents defendant-appellant Blachura’s first appeal as of right from his November 4, 1971, conviction.

On June 24, 1971, appellant was indicted on six counts of perjury by an Oakland County citizens’ grand jury investigating corruption in the county drain commissioner’s office. After trial a jury found appellant guilty of five of the six counts and procedural skirmishing followed, represented in part by the above cited appellate opinions.

Defendant alleges numerous errors in the grand jury proceedings which led to his indictment and in the conduct of the trial. Our careful review of the record reveals no reversible error in the pretrial stages and Part I, below, represents the majority opinion as to the pre-trial issues. However, I believe the trial judge reversibly erred by allowing his court clerk to read defendant’s theory to the jury and Part II, below, is my dissent.

I

First, defendant assigns error to the trial court’s failure to conduct a requested preliminary examination after defendant’s indictment. In People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), the Michigan Supreme Court provided that a person indicted by a citizens’ grand jury is entitled to a preliminary examination. However, the Court limited this right to "pending” and "future” cases. Defendant Blachura was convicted on November 4, 1971; Duncan was decided October 31, 1972. We note the apparent conflict between several Court of Appeals panels on the applicability of Duncan. In People v Harris, 47 Mich App 757; 209 NW2d 793 (1973), the panel remanded for a preliminary examination on authority of Duncan, since an exam was requested prior to trial and even though Harris was convicted approximately a year before Duncan was handed down. Subsequent decisions by various panels have analyzed the applicability of Duncan in terms of "retroactivity”. People v Carter, 54 Mich App 69; 220 NW2d 330 (1974), lv den, 394 Mich 802 (1975), People v Lazaroff, 50 Mich App 84; 212 NW2d 743 (1973), lv den, 390 Mich 815 (1973), and People v Valoppi, 61 Mich App 470; 233 NW2d 41 (1975). While we confess some uncertainty as to what our Supreme Court meant when it used the phrase "all pending cases” we believe the better view is expressed by Carter, Lazaroff and Valoppi for the reasons set forth in Carter, supra, at 71-72. Defendant was not entitled to a preliminary examination.

Secondly, defendant contends that he was denied due process of law as a result of the prosecutor’s improper advice and comments during the grand jury proceedings. Specifically defendant claims that the prosecutor’s warnings not to reveal grand jury testimony to "anyone” so inhibited defendant from communicating even with his attorney that he was effectively denied access to counsel. Next defendant claims that these warnings coupled with inquiries and comments about defendant’s requests to see his attorney and inquiries about defendant’s conversations with his attorney breached the attorney-client privilege. Finally defendant contends the prosecutor’s warnings to defendant and other grand jury witnesses not to reveal testimony to "anyone” prevented him from preparing a defense. Because of these alleged due process violations defendant urges this Court to apply an exclusionary rule suppressing defendant’s grand jury testimony which forms the basis of the perjury indictment.

In essence defendant argues that if he is not properly advised of his rights he has a license to lie to the grand jury and not suffer the penalties for perjury. The record clearly shows that the defendant was given an instruction as to his Fifth Amendment privilege, the consequence of the general grand jury oath, a specific warning not to perjure himself and his privilege to consult his attorney outside the grand jury room. The record also reveals many improprieties on the part of the prosecutor in "advising” the defendant. While we cannot condone such prosecutorial conduct, it does not permit defendant to lie under oath.

Defendant was indicted for perjury. Two recent United States Supreme Court cases make it clear that perjury convictions will be upheld despite flagrant government abuses or defects in grand jury proceedings which effectively deprive a defendant of his constitutional rights. United States v Wong, 431 US 174; 97 S Ct 1823; 52 L Ed 2d 231 (1977), United States v Mandujano, 425 US 564; 96 S Ct 1768; 48 L Ed 2d 212 (1976). Although these cases involve convictions under Federal perjury statutes for lying before Federal juries, the principles are applicable to a prosecution under state law.

In Mandujano the Supreme Court briefly outlines the history and purpose of grand juries in our jurisprudence. The grand jury is an old and useful tool in the investigation of various types of criminal activity.

"In this constitutional process of securing a witness’ testimony, perjury simply has no place whatever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative.” Mandujano at 576.

Later, at 577, the Court said:

"[O]ur cases have consistently — indeed without exception — allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers. See e.g., United States v Knox, 396 US 77 [90 S Ct 363; 24 L Ed 2d 275] (1969); Bryson v United States, 396 US 64 [90 S Ct 355; 24 L Ed 2d 264] (1969); Dennis v United States, 384 US 855 [86 S Ct 1840; 16 L Ed 2d 973] (1966); Kay v United States, 303 US 1 [585 S Ct 468; 82 L Ed 607] (1938); United States v Kapp, 302 US 214 [58 S Ct 182; 82 L Ed 205] (1937).”

In Wong, supra, the petitioner claimed that her limited command of the English language prevented her from understanding the Fifth Amendment warnings given to her. The government did not challenge the lower court’s finding that in legal effect petitioner was unwarned of her Fifth Amendment privilege. The Court held that even absent a Fifth Amendment warning, there is no license for one who testifies to commit perjury.

"Finally, to characterize these proceedings as 'unfair’ by virtue of inadequate Fifth Amendment warnings is essentially to say that the Government acted unfairly or oppressively by asking searching questions of a witness uninformed of the privilege. But, as the Court has consistently held, perjury is not a permissible way of objecting to the Government’s questions. 'Our legal system provides methods for challenging the Government’s right to ask questions — lying is not one of them.’ * * * Bryson v United States, 396 US 64, 72 (1969), United States v Mandujano, 425 US at 577, 585. * * * Indeed, even if the government could, on pain of criminal sanctions, compel an answer to its incriminating questions, a citizen is not at liberty to answer falsely. United States v Knox, supra, 396 US, at 82-83. If the citizen answers the question, the answer must be truthful.” Wong, supra, at 180.

In light of these controlling principles we briefly address defendant’s specific allegations of prosecutorial misconduct. Defendant was not physically denied access to counsel; indeed he consulted with his attorney outside the grand jury chamber on several occasions. People v Blachura, 396 Mich at 724, People v Blachura, 59 Mich App at 667. Even if he was denied access to counsel he would have no right to perjure himself. See People v Blachura, 59 Mich App at 667. Next, even if the prosecutor’s comments and questions improperly inquired into the attorney-client relationship or defendant’s exercise of his Fifth Amendment privilege, lying is not a permissible way of objecting to the prosecutor’s questions. Bryson, supra, at 72. Finally, defendant’s unsubstantiated assertions that other grand jury witnesses would not talk to defense counsel are not properly before this Court on appeal. Defendant Blachura was provided with transcripts of his grand jury testimony and we find defense counsel’s claimed inability to prepare a defense to be without merit.

We believe Mandujano and Wong and cases cited therein express a firm commitment to punish those who perjure themselves even in the face of government improprieties and denials of constitutional rights. As in Mandujano, defendant Blachura was under oath to tell the truth and was clearly warned not to perjure himself. As the Mandujano Court summarized:

"In any event, a witness sworn to tell the truth before a duly constituted grand jury will not be heard to call for suppression of false statements made to that jury.” 425 US at 582.

Even if we accept defendant’s argument that prosecutorial misconduct resulted in the denial of due process of law, defendant’s indictment for perjury must stand.

Finally, defendant urges us to find the so-called citizens’ grand jury act, 1970 PA 9, MCLA 767.7a et seq.; MSA 28.947(1) et seq., unconstitutional because it denies equal protection of the law to witnesses who appear before a citizens’ grand jury. Defendant contends that the statutory provisions which create one-man and citizens’ grand juries unfairly discriminate against witnesses who appear before a citizens’ grand jury because they, unlike those who appear before a one-man grand jury, are not entitled to have counsel present in the grand jury chamber. Only those granted immunity may have counsel present in a citizens’ grand jury proceeding. MCLA 767.19e; MSA 28.959(5). People v Blachura, supra, 59 Mich App at 666.

We decline defendant’s invitation to address an equal protection argument which has already been decided adversely to defendant. People v Blachura, supra, 59 Mich App at 667. The great difference in the power of the one-man juror — the powers of summary contempt and immediate grants or denials of immunity — make the presence of counsel in the grand jury chamber mandatory. Counsel is necessary to balance the awesome power of the judge-inquisitor. In view of the significant differences between one-man and citizens’ grand juries, defendant has not met the heavy burden placed on him to overcome the presumption of statutory validity. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 667; 232 NW2d 636 (1975).

II

At this point I part company with my fellow judges. I believe the trial judge reversibly erred by allowing his court clerk to read defendant’s theory of the case to the jury.

After counsel submitted their requested instructions and after counsel had an opportunity to discuss the instructions, the trial judge began his charge to the jury. He first gave a.general overview of the duties of the jury, explained the indictment and the elements of the crime of perjury, and, as requested, gave the prosecution’s theory of the case; these matters comprise about 20 pages of transcript.

Then the judge came to defendant’s theory of the case:

"So much for the contention of the Prosecutor in this case. Now the contention of the Defendant or the Defendant’s theory of the case is as follows.
"I will let you do a little reading here, to save my voice. The Clerk will read from my notes. They will go on the record as if I were charging you, and see if you can sound like me Mr. Clerk.”

The court clerk proceeded to read the defendant’s theory which comprises about four pages of transcript. The judge then proceeded to finish charging the jury; this accounts for the next 20 pages of transcript. In short, the judge managed to read 20 pages of instructions, stopped to save his voice when it was time to read defendant’s theory, and continued for another 20 pages after defendant’s theory was read by the court clerk.

Once the jury was excused defense counsel objected to this curious procedure, contending that the judge seemed to be giving partiality to the people’s case by having the clerk read the defendant’s theory to the jury. The judge overruled the objection, reasoning,

"That is a techinicality [sic] that a lawyer might note, and your objection is overruled. I think his voice, was on the record, was as good as mine, maybe better under my cold conditions.”

While I cannot fault the judge for having a cold and consequently wanting to save his voice, I believe that he chose a critically inappropriate time to allow his clerk to partially instruct the jury.

This is a rather unique situation and a case of first impression in Michigan. The applicable court rule, GCR 1963, 516.7, provides in part:

"It is the duty of the court to present to the jury the issues in the case and the theories of the parties. * * * The Court need not give any statement to the jury in the form submitted if the court presents to the jury the material substance of the issues and of the theories of each party.” (Emphasis supplied.)

Subsection 516.7, added in 1970, requires the trial judge to instruct the jury on defendant’s theory of the case if the defendant so requests. People v Reed, 393 Mich 342; 224 NW2d 867 (1975). There can be little dispute that the term "court” in this context means the judge. See State Board of Education v von Zellen, 1 Mich App 147, 158; 134 NW2d 828 (1965).

As a general proposition the charge to the jury is especially crucial in a criminal case. Although GCR 1963, 516.1 authorizes the trial judge to make comments on the evidence, the testimony and character of witnesses as "the interests of justice require”, this is not a license for the trial judge to impose his or her opinion as to the verdict on the jury. People v Padgett, 306 Mich 545, 552-555; 11 NW2d 235 (1943), People v Barmore, 368 Mich 26, 28; 117 NW2d 186 (1962), People v Oates, 369 Mich 214, 216-217; 119 NW2d 530 (1963), People v Wichman, 15 Mich App 110; 166 NW2d 298 (1968).

In Wichman, supra, now Justice Levin wrote:

"A trial judge desiring to see that the case goes to the jury without disclosure of his personal views in the matter should be able, no matter how overwhelming the people’s case, to preserve an appearance of impartiality in his instructions. By presenting the defendant’s theory, presumably just argued to the jury, the judge can avoid creating the impression that he has stepped out of his role of impartial judicator and is now plugging for his own point-of-view.” 15 Mich App at 115.

It has long been recognized that the words and actions of a trial judge may weigh heavily with a jury. People v King, 384 Mich 310, 315; 181 NW2d 916 (1970), Snyder v United Benefit Life Insurance Co, 371 Mich 36, 44-45; 123 NW2d 234 (1963), citing McDuff v The Detroit Evening Journal Co, 84 Mich 1, 10; 47 NW 671 (1890). Even inadvertent or thoughtless remarks by a judge may prove exceedingly prejudicial in a criminal trial. People v Neal, 290 Mich 123, 129; 287 NW 403 (1939).

A defendant is entitled to a fair and impartial instruction on his or her theory of the case, although not in the exact form requested. The leading commentators on Michigan court rules state:

"The theories of each party and issues raised thereby must be stated fairly, giving equal stress to the positions of each party.” (Emphasis supplied.) 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), at 562.

See also 88 CJS, Trial, § 275, p 736. The trial judge should avoid the appearance of favoring one party by giving undue emphasis to that party’s theory.

"Since instructions should not draw the attention of the jury to particular facts, it is error to give instructions * * * which unduly emphasize issues, theories, defenses * * * whether by repetition or by singling them out and making them unduly prominent, or instructions which in any way unduly favor one party, although the instructions may be correct as legal propositions.” 88 CJS, Trial, § 340, pp 903-906.

See also 88 CJS, Trial, § 299, p 811; 75 Am Jur 2d, Trial, § 643, pp 603-604; Fields v Rutledge, 284 SW2d 659, 662 (Ky App, 1955), Martin Flying Service v Martin, 233 NC 17; 62 SE2d 528 (1950).

I conclude that the judge’s unfortunate choice of timing in allowing his clerk to read defendant’s theory is reversible error. Had the judge chosen to save his voice during the reading of the prosecution’s theory, defendant’s convictions would probably stand. Here, however, the judge read instructions comprising 20 pages of transcript both before and after the clerk read defendant’s theory. This lack of equal stress on defendant’s theory singled it out from the rest of the instructions. Were the jurors to infer that the defendant’s theory was so unimportant or so without merit that the judge could not waste his voice reading it? If a trial judge’s words weigh heavily with a jury, King, supra, at 315, his decision not to speak would weigh as, if not more, heavily.

This Court reviews the charge as a whole, Shreve v Leavitt, 51 Mich App 235; 214 NW2d 739 (1974), and although technically the jury was instructed on defendant’s theory, the judge’s decision to save his voice at that critical point failed to accord defendant’s theory equal prominence and credibility in the eyes of the jury. I cannot say this error was harmless beyond a reasonable doubt and I would reverse and remand for a new trial.

       The three issues are stated in defendant’s brief as follows:
      "II. Whether this court erred when in People v Blachura, 59 Mich App 664 (1975), it reversed the trial court’s discretionary grant of a motion for a new trial?”
      “III. Whether the trial court erred in taxing costs in the amount of $5,000.00 against Leon Blachura when the amount bears no reasonable relationship to the true expense of the prosecution?”
      “VI. Whether the trial court committed reversible error by allowing the foreman of the grand jury to testify to an opinion expressed by the individual members of the grand jury, in violation of MCLA 767.19; MSA 28.959?”

       There is surprisingly little authority defining the term "pending”, see Hartman v Edwards, 260 Mich 281, 285; 244 NW 474 (1932), and it is not clear whether our Supreme Court means any stage before the right must be exercised (i.e., in this case, after indictment but before trial), pending final judgment or pending exhaustion of appellate procedures.

       For the sake of argument only we may occasionally refer to defendant’s grand jury statements as "lies” or "perjury”; I do not express any opinion as to defendant’s guilt or innocence.

       We express no opinion as to the incorporation or application of other Federal grand jury principles or procedures to the conduct of grand jury proceedings in Michigan.

       To the extent that defendant’s claim is grounded on some compulsion to testify as to his conversations with his attorney, his claim fails because no attorney-client privilege was ever asserted. Defendant did testify as to the substance of conversations with counsel and thus is deemed to have waived the privilege. The attorney-client privilege belongs to the client and the client may waive it if he chooses. Schaibly v Vinton, 338 Mich 191, 196; 61 NW2d 122 (1953), In re Arnson Estate, 2 Mich App 478, 485; 140 NW2d 546 (1966), Agee v Williams, 17 Mich App 417, 423; 169 NW2d 676 (1969).

       It is difficult to read emotion into the grand jury transcripts. While defendant urges us to view the prosecutor as an overbearing aggressor making snide comments about defendant’s exercise of his Fifth Amendment right, an equally plausible interpretation is that the prosecutor was properly asking whether defendant was exercising a privilege not to answer or whether defendant was merely being evasive. Absent the assertion of some privilege a person has an absolute duty to testify before a grand jury, Mandujano, supra, at 581, United States v Calandra, 414 US 338, 343; 94 S Ct 613; 38 L Ed 2d 561 (1974), and if defendant Blachura was not asserting a privilege he had no excuse for not answering a question.

       Defendant has made no showing that there was any causal connection between the prosecutorial misconduct and the perjured statements. If defendant intended to imply that the perjured statements were somehow coerced by the prosecutorial misconduct, he should have argued "duress” at trial, rather than constructing a due process challenge on appeal. See concurring opinion of Justice Brennan in Mandujano, supra, at 585.

       For purposes of illustrating the relative length of various parts of the jury instructions it is convenient to refer to the number of pages of transcript.

       The caveat in GCR 1963, 516.7 that the trial judge need not deliver a party’s theory in the requested "form” does not save the judge’s procedure. This section of the rule allows the judge to exercise some discretion in presenting an aspect of an issue or theory which has been requested but is not justified for one reason or another. It does not allow unlimited discretion in presenting a party’s theory and certainly does not authorize the judge to improperly influence a jury’s verdict. A judge may not choose a "form” which gives unequal and unfair stress to one party’s theory.


source: Caselaw Access Project

author: V. J. Brennan, J.

license: Public Domain

text:
    PEOPLE v COUSINO (CITY OF UTICA v COUSINO)
    1. Costs — Courts—Taxation of Costs.
    The power of a court to tax costs is wholly statutory.
    2. Costs — Taxation of Costs — Regulation of Costs — Statutes.
    Except as otherwise provided by statute, the Supreme Court may by rule regulate the taxation of costs (MCLA 600.2401; MSA 27A.2401).
    3. Pleading — Costs—Unreasonable Allegations and Denials— Litigation Expenses — Attorney Fees — Court Rules.
    A party making an unreasonable allegation or denial of fact in his pleadings may be required to pay reasonable expenses incurred by the adverse party in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees (GCR 1963, 111.6).
    4. Costs — Assessment of Costs — Constitutional Law — Appeal and Error — Court Rules.
    A circuit court’s assessment of costs against an unsuccessful appellant from the district court in a criminal case who is exercising his constitutional right to appeal is reversible error and the award of such costs should be vacated where the assessment of the costs impermissibly threatens the defendant’s right to appeal by attempting to chill the exercise of a constitutional right (Const 1963, art 1, § 20, GCR 1963, 111.6).
    References for Points in Headnotes

       20 Am Jur 2d, Costs § 5.

       7 Am Jur 2d, Attorneys at Law § 235 et seq.

    20 Am Jur 2d, Costs § 78.
    Amount of attorneys’ compensation in absence of contract or statute fixing amount. 57 ALR3d 475.
    False statements: construction and application of state statute or rule subjecting party making untrue allegations or denials to payment of costs or attorneys’ fees. 68 ALR3d 209.

       4 Am Jur 2d, Appeal and Error §§ 128, 129.
    20 Am Jur 2d, Costs § 94.

      Appeal from Macomb, Hunter D. Stair, J.
    Submitted October 4, 1977, at Detroit.
    (Docket No. 29425.)
    Decided February 22, 1978.
    Leave to appeal denied, 402 Mich 950e.
    Paul W. Cousino was convicted in district court of violating a speeding ordinance in the City of Utica. Defendant appealed to circuit court which affirmed defendant’s conviction and assessed additional costs for initiating a vexatious appeal. Defendant appeals by leave granted.
    Affirmed in part, reversed in part.

      William J. McGrail, Jr., Assistant City Attorney, for the people.
    Paul W. Cousino, in propria persona.

    Before: D. F. Walsh, P. J., and V. J. Brennan and Beasley, JJ.
   V. J. Brennan, J.

Proceeding in propria persona, defendant Paul W. Cousino appeals an order of Macomb Circuit Judge Hunter D. Stair June 14, 1976, affirming on appeal defendant’s conviction of speeding and assessing costs of $350 for initiating a vexatious appeal.

Defendant was ticketed March 17, 1975, for driving 40 miles per hour in a 25 mile per hour zone in the City of Utica, County of Macomb. On March 21, 1975, he signed an appearance form, entering a plea of not guilty and requesting a trial on the charge.

The trial was held January 15, 1976, before visiting Judge Richard C. Stavoe, sitting in the 41st District Court. At the commencement of trial, defendant, representing himself in propria persona, moved to dismiss on two grounds: denial of the constitutional right to a speedy trial, and lack of jurisdiction on grounds the offense occurred in Sterling Heights rather than Utica. The motions were denied and testimony was received from the ticketing officer, Utica City Police Officer Russell Wilson. Defendant neither cross-examined the officer nor testified in his own behalf. Following final argument by both sides, the court found defendant guilty and imposed a $25 fine, including costs.

Defendant appealed as of right to Macomb County Circuit Court, and filed a brief of 12 pages raising nine issues. The prosecution responded with a brief of nine pages.

In an opinion dated May 25, 1976, Macomb Circuit Judge Stair affirmed the conviction and ordered costs assessed against defendant pursuant to GCR 1963, 111.6, based on a finding that "this appeal was motivated solely by a vexatious and bad faith desire to harass legitimate judicial process”. Judge Stair’s final order, dated June 14, 1976, ordered defendant to pay costs to the Utica City Clerk in the sum of $350, which amount includes actual attorney fees billed by the assistant city attorney representing the city on appeal.

Pursuant to the order of this Court dated September 27, 1977, we limited the parties to the issue whether the trial court erred reversibly in ordering defendant to pay $350 costs, representing attorney fees for the city attorney in defendant’s appeal as of right from his district court speeding conviction. We address this issue alone.

The power to tax costs is wholly statutory. Gundersen v Bingham Farms, 1 Mich App 647, 648; 137 NW2d 763 (1965). Nonetheless, except as otherwise provided by statute, the Michigan Supreme Court may by rule regulate the taxation of costs. MCLA 600.2401; MSA 27A.2401. The several statutes and court rules making provision for recovery of attorney fees as costs or damages under specified circumstances are collected in State Farm Mutual Automobile Insurance Co v Allen, 50 Mich App 71, 75; 212 NW2d 821 (1973). Included are GCR 1963, 526.7, 116.5, and 117.3 (filing an affidavit opposing a motion for summary or accelerated judgment without good faith and for purposes of delay); GCR 1963, 111.6 (unwarranted allegations and denials in pleadings); and GCR 1963, 816.5 (vexatious proceedings in the Court of Appeals).

Judge Stair relied upon GCR 1963, 111.6, which reads as follows:

"Unwarranted Allegations and Denials. If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees. GCR 1963, 111.6.”

The historical derivation of this rule is explored in Harvey v Lewis, 10 Mich App 23, 34-40; 158 NW2d 809 (1968) (Levin, J. dissenting). See also 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), 1975 Supp, pp 52-53.

Our review of this matter convinces us that GCR 1963, 111.6, may not be employed against unsuccessful appellants in criminal cases exercising their constitutional appeal as of right. The trial court’s assessment of costs in this case impermissibly threatens defendant’s right to appeal. Because of this disposition of plaintiffs claim, we need not consider what would have been in fact vexatious within the context of the actual pleadings in this case.

In short, we find the trial court’s assessment of $350 costs against a defendant attempting to appeal his speeding ticket constitutes an attempt to chill exercise of the right to appeal guaranteed by 1963 Michigan Constitution, art 1, § 20. GCR 1963, 111.6, may not be extended to the lengths the trial court sought to reach in assessing these costs against defendant. No other provision appears in Michigan statutes or court rules to justify the measure proposed here, especially in view of defendant’s constitutional right to appeal.

We affirm defendant’s conviction and reverse the decision of the trial court as to the award of costs and vacate the award of costs assessed.


text:
    ALVARADO v SCUTT
    1. Appeal and Error — Motions—New Trial — Abuse op Discretion.
    Review by the Court of Appeals of a trial court’s denial of a motion for a new trial is to determine whether the denial was an abuse of discretion.
    2. Appeal and Error — Jury Verdict — Defective Verdict — Redeliberation — Grounds for Reversal.
    There is no ground to reverse a jury verdict even where the verdict must, upon redeliberation, be substantially reassessed after discovery of a defect where the trial court does not seriously compromise the jury’s free exercise of judgment on the factual merits.
    3. Trial — Judge’s Discretion — Jury—Redeliberation—Form of Verdict.
    A trial judge did not abuse his discretion in asking a jury to redeliberate in order to correct the form of their verdict where the judge made no comment to the jury which compromised their determination of the facts, the judge’s response to the initial verdict was addressed solely to the improper form of the verdict, and the verdict ultimately returned was in the form the judge orginally requested.
    4. Judgment — Jury Verdict — Defective Judgment — Court Rules.
    A jury verdict upon which no judgment was rendered may not be attacked by use of a court rule which provides for a post-trial proceeding to remedy defective judgments (GCR 1963, 527).
    5. Damages — Evidence—Jury Verdict — Great Weight of Evidence.
    A jury’s verdict that a plaintiff was entitled only to minimal damages following an automobile accident was not contrary to the great weight of the evidence where there was evidence to indicate that the injury of which the plaintiff complained was work-related and existed prior to the automobile accident, that the injury may have been psychological rather than physical, and that the plaintiff was on sick leave from her employment at the time of the accident.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 123 et seq.

      58 Am Jur 2d, New Trial § 212 et seq.

       76 Am Jur 2d, Trial § 1208 et seq.

       76 Am Jur 2d, Trial § 1166.

      Appeal from Ingham, Ray C. Hotchkiss, J.
    Submitted November 8, 1977, at Lansing.
    (Docket No. 31140.)
    Decided February 22, 1978.
    Leave to appeal . applied for.
    Complaint by Anita Alvarado against Melissa M. Scutt for damages for injuries received in an automobile accident. Judgment for plaintiff. The plaintiff’s motions for a mistrial and for a new trial were denied, and the plaintiff appeals.
    Affirmed.

      Dunnings & Canady, P. C, for plaintiff.

      Foster, Swift, Collins & Coey, for defendant.
    Before: Quinn, P. J., and V. J. Brennan and C. L. Bosman, JJ.

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

   V. J. Brennan, J.

On February 15, 1974, plaintiff Anita Alvarado filed a complaint charging defendant Melissa M. Scutt with negligent operation of an automobile. The case arose out of an automobile accident in Lansing, Michigan, on February 2, 1973. Plaintiff was traveling north on Washington and stopped at a railroad crossing when the signal started flashing. While stopped at the crossing, plaintiff’s vehicle was struck from the rear by a car driven by defendant. Plaintiff experienced no pain at the time of the accident and indicated to a policeman at the scene that she was unhurt.

Plaintiff experienced pain and stiffness in her neck, shoulders and arms on the day after the accident and visited Ingham Medical Hospital. X-rays were taken and muscle relaxants prescribed. Plaintiff was employed at Oldsmobile at the time of the accident. However, she was on sick leave for a leg condition. Dr. DeBruin, the physician treating plaintiff’s leg condition, examined plaintiff regarding her complaints of pain in her neck and upper extremities, but found no evidence of organic disease. Nevertheless, during the next three years, plaintiff was forced by these injuries to undergo various treatment and hospitalization, as well as various reassignments in her employment due to her disability. Detailed testimony to this effect was elicited at trial.

At the conclusion of trial, the trial court instructed the jury as to the elements of negligence, burden of proof, and the measure of damages. The trial court further instructed the jury that their verdict should be in either of two forms: (1) verdict for the plaintiff with damages assessed in a dollar amount, or (2) verdict of no cause of action for defendant.

The jury rendered their verdict in the following manner:

"We find Miss Scutt guilty of negligence and we award Miss Alvarado recovery costs limited to medical expenses incurred to date which are not covered by Miss Alvarado’s insurance program plus $1,000 for pain and suffering.”

The trial court requested counsel to approach the bench and, after a conference out of the hearing of the jury and the court reporter, advised the jury that their verdict was not in the form which he had requested. The trial court remanded the jury for further deliberations after reinstructing them that they may find on behalf of the plaintiff and assess damages or find on behalf of the defendant.

After the jury retired, plaintiffs counsel moved for a mistrial on the basis of the improperly returned verdict. The trial court took the motion under advisement. The jury returned and found on behalf of the plaintiff, awarding her a lump sum verdict of $2,579.40. The trial court then denied plaintiffs motion for a mistrial. Plaintiff later moved for and was denied a new trial on the same ground. Plaintiff appeals as of right under GCR 1963, 806.1.

On appeal, plaintiff raises several issues for consideration. We will discuss at length only one of those claims.

Plaintiff contends that the trial court erred by denying her motion for a new trial because the court was forced to remand the jury to redeliberate after the jury had rendered an initial verdict in a form inconsistent with his instructions.

GCR 1963, 527.1 permits a new trial to be granted to all or any of the parties on all or part of the issues whenever their substantial rights are materially affected for any one of nine enumerated causes. Neither plaintiffs motion for a new trial nor her brief on appeal avers to any one of the specific grounds for granting a motion for new trial. The error plaintiff claims could be covered either by GCR 1963, 527.1(1), referring to irregularity in the proceedings of the court, or by GCR 1963, 527.1(7), concerning errors of law which occur during the proceedings. In any event, we review the court’s denial of plaintiff’s motion by determining whether an abuse of discretion occurred. Yaklin v Stanley, 42 Mich App 157, 159; 201 NW2d 347 (1972).

Michigan decisions indicate that even verdicts which on redeliberation must be substantially-reassessed after discovery of a defect do not create ground for reversal where the court does not seriously compromise the jury’s free exercise of judgment on the factual merits. See Jakubiec v Hasty, 337 Mich 205, 212; 59 NW2d 385 (1953). See also McCormick v Hawkins, 169 Mich 641, 648-649; 135 NW 1066 (1912) (no error in a case where the trial court instructed the jury to redeliberate and eliminate from their original verdict an order that defendant retract a certain defamatory article); Loranger v Loranger, 115 Mich 681, 686; 74 NW 228 (1898) (no error where the trial court required the jury to reconsider its verdict because the verdict did not conform with an applicable statute which required separation of the items of injury); Olcott v Hanson, 12 Mich 452, 454-455 (1864) (no error in an action on a promissory note where the jury was instructed to redeliberate in order to express its verdict in terms of a specific sum).

Plaintiff’s reliance on another recent case is misplaced. McTaggart v Kurys, 318 Mich 627; 29 NW2d 114 (1947). In that case, plaintiff sought to recover from defendant wife of deceased the sum of $5,350, the contents of a metal box. Uncontroverted testimony appeared that at least $1,000 of the total sum belonged to defendant. The jury awarded the contents of the box to plaintiff less $1,000 which they awarded to defendant. Upon hearing the verdict the trial court replied, "Well, now, that is not it”. He then directed the jury to find a certain amount and remanded them for further deliberation. The jury’s second verdict awarded the entire contents of the box to plaintiff. The Court reversed on the basis that the trial court’s initial reply to the jury’s verdict was evidently construed by the jury as a statement that defendant was not entitled to any damage at all in any form. In essence, the jury’s ability to determine the factual merits of the case was taken from them. McTaggart, supra, at 631-632.

We find the present case distinguishable simply because the trial court made no comment to the jury which compromised their determination of the factual merits of the case. The trial court’s response to the initial verdict addressed solely the improper form of the verdict. The verdict ultimately returned was properly in the form the trial court originally requested. We find no error in the court’s initial instruction and no abuse of discretion in his returning the jury to redeliberate in order to correct the form of the verdict. See Jakubiec v Hasty, supra at 212; McCormick v Hawkins, supra at 648-649. Plaintiffs claim is without merit.

Having carefully considered the plaintiffs remaining allegations of error, we might only note that because GCR 1963, 527 is a post-trial proceeding designed to remedy defective judgments and because judgment was entered only on the second verdict, the initial verdict, upon which no judgment was rendered, cannot be attacked under GCR 1963, 527.

Further, under plaintiffs final contention that the jury’s verdict was contrary to the great weight of the evidence, we would eliminate any possible review of the jury’s initial verdict on the grounds just mentioned. Regarding the second verdict, evidence appeared to indicate that plaintiffs injury was work-related and existed prior to the auto accident, that the injury may have sprung from psychological rather than physical etiologies, and that plaintiff was on sick leave at the time of the accident. Such evidence would support the theory that plaintiffs injury and inability to work could have been due to causes other than the accident, allowing the jury to properly find wages lost subsequent to the accident not a result of the accident itself. The verdict was not contrary to the great weight of the evidence and the court did not abuse its discretion by denying plaintiffs motion for a new trial on that ground. See People v Stephens, 58 Mich App 701, 703; 228 NW2d 527 (1975).

Affirmed.

Quinn, P. J., not participating.


author: H. L. Heading, J.

text:
    RAATIKKA v JONES
    1. Appeal and Error — Preserving Error — Jury Instructions— Timely Objections — Manifest Injustice.
    Plaintiffs fail to preserve claims of error to the jury instructions given by a trial court where they did not make timely objections to the instructions, but the Court of Appeals will reverse to prevent manifest injustice where the instructions given by the trial court on the controlling issue of the case were erroneous.
    2. Landlord and Tenant — Common Law — Duty to Repair — Latent Defects.
    The common-law rule regarding the extent of a landlord’s duty to repair defective premises provides that the landlord is liable to his tenant only for latent defects of which he knows or has reason to know.
    3. Landlord and Tenant — Michigan Housing Law — Good Repair— Common Law — Statutes.
    The Michigan housing law provides that every dwelling and all parts thereof be kept in good repair by the owner; the Michigan housing law abrogates the common-law rule regarding the landlord’s duty to repair in the localities where it applies (MCLA 125.471; MSA 5.2843).
    4. Landlord and Tenant — Michigan Housing Law — City Ordinances — Duty to Repair — Duty to Inspect — Statutes.
    A landlord may, under provisions of the Michigan housing law and city ordinances enacted under that law, be under a duty to repair all defects in the premises of which he knew or should have known; this does not impose a duty upon the landlord to inspect the premises on a regular basis to determine if any defects exist, but it does require him to repair any defects brought to his attention by the tenant or by his casual inspection of the premises (MCLA 125.401, 125.471; MSA 5.2771, 5.2843, Durand Ordinances, ch 83, 8.121, 8.172).

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 891.
    75 Am Jur 2d, Trial §§ 906, 908, 909.

       49 Am Jur 2d, Landlord and Tenant §§ 774, 775, 778.
    Statute requiring property to be kept in good repair as affecting landlord’s liability for personal injury to tenant or his privies. 17 ALR2d 704.
    Latent defect: modern status of rule requiring actual knowledge of latent defect in leased premises as prerequisite to landlord’s liability for injury resulting therefrom. 88 ALR2d 586.

      Appeal from Shiawassee, Bruce A. Fox, J.
    Submitted November 3, 1977, at Lansing.
    (Docket No. 31509.)
    Decided February 22, 1978.
    Complaint by Anna M. Raatikka and Theodore R. Raatikka against Robert W. Jones for damages for injuries incurred when Anna Raatikka fell on premises leased from the defendant. Judgment of no cause of action for defendant. Plaintiffs appeal.
    Reversed and remanded.
    Draper, Daniel, Ruhala & Seymour, P. C., for plaintiffs.

      Charles L. Jones, for defendant.
    Before: J. H. Gillis, P. J., and Bashara and H. L. Heading, JJ.

       Detroit Recorder’s Court judge, sitting on the Court of Appeals by assignment.

   H. L. Heading, J.

Plaintiffs were no-caused by a jury following trial of their negligence action against defendant. They moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, alleging several errors in the charge to the jury. From the trial court’s denial of that motion, they bring this appeal.

We find that plaintiffs failed to preserve their claims of error by timely objections to the instructions. However, we find that the instruction on the controlling issue of the extent of a landlord’s duty to repair defective premises was erroneous, and we reverse for a new trial to prevent manifest injustice, Hunt v Deming, 375 Mich 581; 134 NW2d 662 (1965).

The trial court instructed the jury that a landlord is liable to his tenant for injuries resulting from defects existing at the time the tenant leases the premises only if the landlord knew or should have known of the defect and it was not open to the observation of the tenant. In other words, the landlord is liable only for latent defects of which he knows or has reason to know. This has long been and continues to be the common-law rule, Heward v Borieo, 35 Mich App 362; 192 NW2d 668 (1971).

However, prior to the date upon which defendant landlord in this case rendered the subject premises to plaintiff tenants, the City of Durand, in which the premises are located, enacted as an ordinance the Michigan housing law, 1917 PA 167, as authorized by MCLA 125.401; MSA 5.2771, Durand Ordinances, ch 83, § 8.121. The Michigan housing law requires that every dwelling and all parts thereof be kept in good repair by the owner, MCLA 125.471; MSA 5.2843. In addition, the Du-rand housing code specifically requires that interior floors be kept in good repair, Durand Ordinances, ch 83, § 8.172.

It is well-established that the Michigan housing law, in localities where it applies, abrogates the common-law rule regarding the landlord’s duty to repair, Annis v Britton, 232 Mich 291; 205 NW 128 (1925), Crawford v Palomar, 7 Mich App 21; 151 NW2d 236 (1967).

We therefore conclude that the landlord was under a duty to repair all defects of which he knew or should have known. This does not impose a duty upon the landlord to inspect the premises on a regular basis to determine if any defects exist. It does require him to repair any defects brought to his attention by the tenant or by his casual inspection of the premises.

Accordingly, the trial court’s instruction on the extent of the landlord’s duty to repair did not accurately state the law on this crucial issue, and may well have been the determining factor in the jury’s verdict. To guard against the possibility of manifest injustice, we must reverse.

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

        Cf. Hockenhull v Cutler Hubble, Inc, 39 Mich App 163; 197 NW2d 344 (1972), lv den, 387 Mich 809 (1972).


author: T. M. Burns, J.

text:
    OAKLAND NATIONAL BANK v ANDERSON
    1. Bills and Notes — Acceleration Clauses — Claim and Delivery— Accelerated Balance.
    Acceleration of the balance of the payments on a note may be commenced by filing a complaint for claim and delivery based on the accelerated balance.
    2. Bills and Notes — Acceleration Clauses — Late Installments— Acceptance — Waiver of Acceleration — Claim and Delivery.
    The acceptance of a late installment payment on a note containing an acceleration clause serves to reduce a defendant’s indebtedness, but it does not cure all existing defaults; where an acceleration action has already been brought through a complaint for claim and delivery acceptance of a single late payment does not constitute a waiver of the acceleration of the balance of the note.
    3. Bills and Notes — Acceleration Clause — Late Payments — Current Account — Acceleration op Payments.
    Accepting late payments on an installment note containing an acceleration clause, where the payments were not timely made but the account was current at the time a complaint for claim and delivery was filed, prevents subsequent acceleration after acceptance of the late payments.
    4. Contracts — Sales—Installment Sales — Vehicle Sales Act — Acceleration Clauses — Creditor Insecurity — Statutes.
    The Motor Vehicles Sales Finance Act prohibits the inclusion of an acceleration clause for the reason that the lender deems itself insecure in any installment sales contract; an attempt to accelerate payment because of creditor insecurity, which was written into an agreement, is invalid and the seizure of an automobile for that reason is unlawful (MCLA 492.114[b]; MSA 23.628[14] [b]).

      References for Points in Headnotes
    [1-4] 11 Am Jur 2d, Bills and Notes §§ 179, 181, 183, 294-296.
    67 Am Jur 2d, Sales §§ 420, 421.
    What is essential to exercise of option to accelerate maturity of bill or note. 5 ALR2d 968.

       11 Am Jur 2d, Bills and Notes § 296.

       67 Am Jur 2d, Sales §§ 416, 417.

       7 Am Jur 2d, Automobiles and Highway Traffic §§ 42, 43, 45.

      5. Sales — Installment Sales — Motor Vehicles — Definition—Statutes.
    An installment sales contract is defined as including any contract for the retail sale of a motor vehicle in the Motor Vehicles Sales Finance Act and including any loan or other form of contract which has a similar purpose or effect (MCLA 492.102[9]; MSA 23.628[2] [9]).
    6. Conversion — Motor Vehicles — Unlawful Seizure — Sales Contracts — Acceleration Clauses — Damages.
    The remedy for the unlawful seizure and sale of an automobile in violation of the Motor Vehicles Sales Finance Act is damages for conversion; a defendant is entitled to recover the value of the automobile at the time of conversion, less any amount due the lender at the time of sale, plus any incidental damages arising from the conversion.
    Appeal from Oakland, Steven N. Andrews, J.
    Submitted November 14, 1977, at Detroit.
    (Docket No. 31510.)
    Decided February 22, 1978.
    Leave to appeal applied for.
    Complaint by Oakland National Bank against Walter D. Anderson and others to accelerate payment of certain notes for default and for claim and delivery of the collateral used to secure the notes. Cross-claim by defendants for damages for unlawful seizure and sale of collateral. Judgment for plaintiff. Defendants appealed to the Court, of Appeals which reversed and remanded for an adversary hearing in which the probable validity of the creditor’s claim of repossession must be established (Docket No. 15788, decided August 1, 1973 [unreported]). Plaintiffs appealed to the Supreme Court which affirmed the Court of Appeals decision, 390 Mich 815 (1973). On remand, the circuit court entered judgment for plaintiff. Defendants appeal.
    Affirmed in part, reversed in part and remanded.

      Radner, Radner, Shefman, Bayer & Berlow, P. C., for plaintiff.

      Curtis G. Rundell II, P. C, for defendant.
    Before: Bronson, P. J., and Allen and T. M. Burns, JJ.
   T. M. Burns, J.

In 1971, plaintiff made two loans to defendant in exchange for a security agreement on certain chattels and notes. The notes and security agreements included acceleration clauses in the event of a default. Also in 1971, plaintiff claimed default on the loans, instituted an action for claim and delivery, and seized the collateral without notice or hearing as then allowed by MCLA 600.2920; MSA 27A.2920 and GCR 1963, 757.

Defendant raised certain defenses to the claim and delivery action and claimed that the seizure without notice or hearing was unconstitutional. These points were rejected by the circuit court. The collateral was then sold at a sheriffs sale pursuant to a court order entered after the parties stipulated to the sale. The sale was confirmed by the circuit court.

In the appeal to this Court which followed, it was determined that the seizure of collateral was unconstitutional because done without notice or hearing. Oakland National Bank v Anderson (Docket No. 15788, decided August 1, 1973 [unreported]). The Supreme Court affirmed. 390 Mich 815 (1973). The hearing after remand from those decisions focused on whether defendant had a meritorious defense to the action for claim and delivery which would have allowed him to retain the collateral. See, Supreme Court Administrative Order, 1973-3.

Because the collateral had been sold, the issue actually was whether defendant could maintain his cross-complaint for damages arising out of the claimed illegal seizure and sale. The trial court determined that the bank was justified in accelerating the notes and determined that defendant had not presented a meritorious defense. The trial court ordered the proceeds of the 1972 sale delivered to the bank and dismissed all other claims in this suit. Defendant appeals from that judgment.

I

There are two loans and two sets of loan documents involved in this case. In each, the actual borrower was the corporate defendant, U-Auto Lease Division, Bible Press, Inc. In the first, the bank loaned $52,783.80 and received a security agreement covering two scraper-tractors which were then at work in construction of a mobile home park. This loan was granted on April 16, 1971, and was to be repaid in 10 monthly installments, payments beginning July 15, 1971. The second loan, in the amount of $5,301.72, was given on May 12, 1971, and secured by a new station wagon. These transactions will be treated separately because of the different payment histories and the status of the loans at the time the action for claim and delivery was begun on September 3, 1971.

II

The first payments due on the first loan, July 15 and August 15, had not been received when the initial complaint for claim and delivery was filed. A sum covering the July 15 payment plus interest and late charges was accepted by the bank on September 3 or shortly thereafter. The defendant claims that by accepting this payment, the bank waived its right to accelerate the balance on the note, relying on Theatre Equipment Acceptance Corp v Betman, 259 Mich 245, 242 NW 903 (1932).

In Betman the debtor had signed a series of notes, each of which included an acceleration clause for the subsequent notes in the series upon default. The debtor made only a partial payment on the first note but the creditor did not accelerate the other notes at that time. Thereafter, the debtor paid the full balance of the next two notes. Before the fourth note matured, the creditor attempted to accelerate all remaining notes because of the unpaid balance due on the first note. The Supreme Court found that the creditor had waived his right to accelerate based on default on the first note by accepting payment on the second and third notes.

Betman does not control here. The bank had properly accelerated the entire balance of the note by filing a complaint for claim and delivery based on the accelerated balance. Cf. Hawes v Detroit Fire & Marine Insurance Co, 109 Mich 324; 67 NW 329; 63 Am St 581 (1896). The acceptance of defendant’s check by the bank served to reduce defendant’s indebtedness on the note but it did not cure all the defaults which existed at the time, including the August 15 payment, nor did it waive the acceleration of the balance which had already occurred. See, Paul Londe & Associates, Inc v Rathert, 522 SW2d 609 (Mo App, 1975), US Savings Bank v Continental Arms, Inc, 338 A2d 579 (Del, 1975).

The trial court properly concluded that defendant did not state a meritorious defense to the bank’s action on the first note. That matter is properly concluded.

Ill

Different considerations apply in regard to the note covering the automobile. At the time the complaint was filed, the three payments which had become due had been paid. Although these payments had not been timely when made, this account was current at the time the complaint was filed. Betman properly applies here and prevents the subsequent acceleration after acceptance of the late payments.

The only other reason for invoking the acceleration clause of this security agreement appears to be that the bank deemed itself insecure. If this transaction was subject to the Motor Vehicle Sales Finance Act, MCLA 492.101 et seq.; MSA 23.628(1) et seq., then the "insecure” clause is invalid, MCLA 492.114(b); MSA 23.628(14)(b), and the bank’s seizure of the automobile was unlawful. The trial court determined that the act was inapplicable.

MCLA 492.114(b); MSA 23.628(14)(b) prohibits the inclusion of the clause in question here in any "installment sales contract”. Installment sales contract is defined in the act as including any contract for the retail sale of a motor vehicle and "shall include any loan * * * and any other form of contract which has a similar purpose or effect”. MCLA 492.102(9); MSA 23.628(2)(9).

The security agreement here is covered by those provisions. The form in which the security agreement and note are printed shows that this is a direct loan for a new automobile. The trial court erred in finding the act inapplicable.

The problem of a remedy remains since the automobile was sold many years ago. We hold that defendant is entitled to recover damages for conversion. Here, defendant can recover the value of the car at the time of the conversion, less añy amount due to the bank at that time. Wright v Dwight, 209 Mich 678; 177 NW 209 (1920). Defendant may also recover incidental damages arising from the conversion. 22 Michigan Law & Practice, Trover and Conversion, § 15.

IV

The other issues raised do not require extended discussion. The bank in no way deprived defendant of his right to post counter-bond and retain the collateral during the suit in 1971. Seé GCR 1963, 757.3 and MCLA 600.2920; MSA 27A.2920. Defendant never attempted to post bond and retain the collateral, but rather* decided to litigate the question on its merits.

The original sale of the collateral was done in a commercially reasonable manner. MCLA 440.9507(1); MSA 19.9507(1). The sale was pursuant to court order entered after a stipulation by defendant’s attorney. It is not the manner in which the collateral was sold, but the fact that it was sold which resulted in defendant’s recoverable loss.

Judgment affirmed as to the first note and reversed and remanded as to the second note. No costs, neither party having prevailed in full.

       Defendant also relies upon Cable Co v Wasegizig, 130 Mich 387, 90 NW 24 (1902), in his waiver argument. That case actually involves a question of estoppel. The debtor was told that if a payment were made, the collateral would not be seized. There is no claim of such an agreement here.

       The security agreement provided: "The occurrence of any of the following events shall constitute a default: * * * (g) the bank deems itself insecure for any reason whatsoever.” The note itself provided for acceleration only upon default in payment. The note, on the facts of this case, could not have been accelerated. The validity of the acceleration must rest on the security agreement.
      The trial court dismissed various other "defaults” claimed by the bank because they had existed at the time the loan was given.

       The bank makes two arguments to support its conclusion that the act does not apply, neither of which is persuasive. First, contrary to the bank’s assertion, the Motor Vehicles Sales Finance Act was in effect when this transaction occurred on May 21, 1971. Second, MCLA 487.491(c); MSA 23.710(191)(c) regulates only the amount of interest allowable on installment loans. Other terms of such loans may be supplied by other legislation and, in this case, are in fact supplied by the Motor Vehicles Sales Finance Act.


author: J. H. Gillis, J.

text:
    DeSANTIS v MICHIGAN BASIC PROPERTY INSURANCE ASSOCIATION
    1. Insurance — Words and Phrases — Premises—Building—Contents — Election to Repair.
    The word "premises” has been construed to be synonymous with the word "building”; therefore, a trial court did not err in determining that a fire insurer’s election to repair the premises owned by an insured, as set forth in a letter to the insured, did not include an election to repair the contents of the building.
    2. Insurance — Statutes—Building—Contents—Election to Repair.
    The statutory language of a standard fire insurance policy may be interpreted to allow an insurer to elect, and the parties are free to agree upon, different methods of adjustment of losses to buildings and their contents; therefore, a trial court did not err by finding that an insurer should repair a building which it insured but should pay for the building’s contents within the policy limits (MCLA 500.2832; MSA 24.12832).
    Appeal from Wayne, Horace W. Gilmore, J.
    Submitted December 7, 1977, at Detroit.
    (Docket No. 31558.)
    Decided February 22, 1978.
    Leave to appeal applied for.
    Complaint by Jerome DeSantis and Mildred De-Santis against the Michigan Basic Property Insurance Association requesting appointment of an umpire-appraiser to determine the extent of loss to a building and its contents owned by the plaintiffs and insured by the defendant. An umpire-appraiser was appointed, and the defendant agreed to repair the building. The trial court ordered defendant to repair the building and to pay the policy limits for the contents. Plaintiffs appeal.

      Reference for Points in Headnotes
    [1, 2] 44 Am Jur 2d, Insurance §§ 1800, 1802.

      Affirmed.

      Bacalls & Associates, P. C., for plaintiffs.

      Joseph Crystal, P. C., for defendant.
    Before: M. F. Cavanagh, P. J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

In April, 1976, a fire caused extensive damage to a funeral home owned by plaintiffs and insured by defendant. Plaintiffs commenced a suit in Wayne County Circuit Court after the parties could not agree on the amount of the loss. Plaintiffs’ complaint requested the trial court to appoint an umpire-appraiser, which it did on August 16, 1976. Shortly thereafter, defendant elected to repair the premises pursuant to MCLA 500.2832; MSA 24.12832 which provides the following options to the insurer:

"It shall be optional with this Company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.”

Defendant’s election was sent to plaintiffs within the 30-day limit in a letter which stated that:

"The Michigan Basic Property Insurance Association and the Metropolitan Detroit Loss Bureau have instructed me to advise you that Michigan Basic Property Insurance Association intends to exercise its option under the Standard Fire Insurance Contract, MCLA 500.2832, Paragraphs 141 through 147, to repair the premises at 26670 Charlevoix, Detroit, Michigan. In view of this election, the necessity for appraisal is obviated. This election has been made in accordance with the above provisions.” (Emphasis supplied.)

Defendant sent another letter to plaintiffs dated September 28, 1976, clarifying its repair election:

"The issue was raised at our initial appraisal meeting, as to whether or not if Michigan Basic elected to repair the building, an election to replace the contents or repair the contents would necessarily follow. After researching the issue and reading the provisions of the policy again, and noting the separate premiums charged, that it is the position of Michigan Basic that an election to repair the building necessarily creates a duty to repair or replace the contents. In the above captioned loss, the $30,000 limit of liability for contents is noted and there is no disagreement that the loss suffered was in that amount. If therefore Michigan Basic decides to exercise its option to repair the building, it will be for the building only.”

As a result of this letter, plaintiffs filed affidavits claiming that defendant had breached its contract to repair both the building and its contents.

The trial court found no question of fact concerning whether or not defendant had made a valid election to repair under the statute. The trial court ruled that defendant had made an unequivocal election to repair the premises. However, the trial court also ruled that defendant’s election to repair the premises did not include repairing the contents.

Hence, defendant was ordered to repair the building and pay the policy limits in respect to the contents.

Plaintiffs appeal, contending that 1) the trial court erred in ruling on a factual issue without sufficient fact finding, and 2) the trial Court erred in allowing defendant to repair the building and pay for the contents.

Plaintiffs’ first allegation of error involves the issue of what defendant had elected to repair. Defendant’s Original election to repair concluded that,

"Michigan Basic Property Insurance Association intends to exercise its option under the Standard Fire Insurance Contract, MCLA 500.2832, Paragraphs 141 through 147, to repair the premises at 26670 Charlevoix, Detroit, Michigan.” (Emphasis supplied.)

Plaintiffs interpret the aforementioned portion of defendant’s letter as an election to repair both the building and its contents. Such an interpretation is clearly erroneous. The word "premises” has been construed to be synonymous with the word "building”. Courts in other jurisdictions have held the words interchangeable.

It appears that the trial court simply construed defendant’s election to repair in accordance with the clear language set forth in defendant’s letter, and determined that the election to repair the premises did not include an election to repair the contents.

Under such circumstances, no question of fact was presented to the trial court for determination. Therefore, plaintiffs’ first allegation of error must fail.

Plaintiffs next contend that MCLA 500.2832; MSA 24.12832, lines 141-147, requires an insurer to elect to repair all or none of the damaged property. Hence, defendant could not elect to repair the building and pay for its contents.

As noted earlier, the Michigan Standard Fire Insurance Policy, MCLA 500.2832; MSA 24.12832, provides in part that:

"It shall be optional with this Company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed or damaged with other of like kind and quality within a reasonable time, on giving notice of its intention so to do within thirty days after the receipt of the proof of loss herein required.”

Defendant contends in its brief on appeal that:

"The language of the statute states it is optional with the insurance company to take all, or any part, of the property at the agreed or appraised value, and also to repair, rebuild or replace the property destroyed. The company may take all, or any part, and repair or replace. The legislature in writing the statute has chosen to use the words 'and also’, a conjunction, to join the clauses defining the insurance companies’ options. 'And’ is defined as:
" 'Expressing the general relation of connection or addition, esp. accompaniment, participation, combination, contiguity, continuance, simultaneity, sequenu; thus; along or together with; added to or linked to; as well as; as without ceasing; as at the same time; in addition to being * * * .’ Webster’s New Int’l Dictionary, Second Edition (Unabridged).
"The options of the insurance company under the plain meaning of the statute indicate that it may take all, or any part of the property as well as repair or rebuild. It may elect to do so simultaneously, each in combination with the other.”

Defendant’s interpretation of the statute seems consistent with the language contained therein even though other jurisdictions have held that an insurer may not split its method of adjustment.

This Court has construed MCLA 500.2832; MSA 24.12832, lines 141-147, in Ijames v Republic Insurance Co, 33 Mich App 541; 190 NW2d 366 (1971), lv den, 385 Mich 775 (1971):

"We hold that where, as here, an election of one method of adjustment has been agreed to by the parties for 'contents only’ the company is not barred from exercising its option 'to repair or * * * replace’ the building insured in the same policy.
"The statute, or the contract [viz., the policy], does not prohibit it; hence, the parties must be considered free to agree upon the differing methods as to the different coverages.” 33 Mich App at 546.

Our reading of the Ijames case, supra, leads us to the conclusion that the insurer and tiie insured may agree upon different methods of indemnification in respect to different coverages pursuant to MCLA 500.2832; MSA 24.12832.

Hence, when a building and its contents are insured for separate amounts under one policy, the parties may agree upon different methods of adjustment for the building and its contents.

Accordingly, the trial court’s order requiring defendant to repair the building and pay for its contents in accordance with the policy limits is affirmed. Costs to appellee.

        See Everett v Patrons & Farmers Mutual Fire Insurance Co of Jackson County, 222 Mo App 1010, 1018-1019; 7 SW2d 463, 468 (1928), and Kenefick v Norwick Union Fire Insurance Co, 205 Mo 294; 103 SW 957 (1907).

       "Nor can the insurer elect to replace part of the property insured, and pay for the rest.” 6 Appleman, Insurance Law and Practice, § 4003, p 702 (1972), citing Globe & Rutgers Insurance Co v Prairie Oil & Gas Co, 248 F 452 (CA 2, 1917), Gowan v Homestead Mutual Insurance Co, 272 Wis 127; 74 NW2d 634 (1956).


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

text:
    PEOPLE v ROBERTSON
    Opinion of the Court
    1. Appeal and Error — Criminal Law — Suppression Of Evidence— Clearly Erroneous Rule.
    A trial court order granting a defendant’s motion to suppress evidence will be affirmed by the Court of Appeals unless the trial court was clearly erroneous in granting the motion.
    2'. Searches and Seizures — Automobiles—Probable Cause — Guns— Suppression of Evidence.
    Suppression of a loaded pistol from evidence was erroneous where the pistol wás seized under circumstances where thé only sensible thing for a police officer was to determine if an object dropped in a hole in an automobile where a radio speaker had once been installed was a weapon that could be used against him or illegal contraband.
    3. Searches and Seizures — Automobiles—Furtive Gestures — Suppression of Evidence.
    A furtive gesture in removing from a man’s waistband and secreting a dark colored object, in a high crime area, in the early hours of the morning, after a lawful stop of an automobile, gave the police a reason to search and seize and a loaded pistol seized under such circumstances should not be suppressed from trial evidence.
    4. Searches and Seizures — Evasive Actions — Furtive Gestures— Probable Cause — Limited Protective Search.
    Evasive action, such as an attempt to 'fleé, coupled with furtive gestures, such as removing a dark colored object from a man’s waistband and secreting it, is sufficient justification for an officer to conduct a limited protective search.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 602-605.
    [2 — 4] 29 Am Jur 2d, Evidence § 425.
    68 Am Jur 2d, Searches and Seizures §§ 41-45, 62, 99.
    [3, 4, 8] "Furtive” movement or gesture as justifying police search. 45 ALR3d 581,
    [5, 6, 8, 9] 68 Am Jur 2d, Searches and Seizures §§ 43-45, 99.
    [5 — 9] Lawfulness of search Of motor vehicle following arrest for traffic violation. 10 ALR3d 314.

       68 Am Jur 2d, Searches and Seizures §§ 39, 40.

      Dissent by D. E. Holbrook, Jr., J.
    5. Searches and Seizures — Criminal Law — Automobiles—Without Warrant — Probable Cause.

      There must be probable cause to believe that a felony has been or is being committed to justify the search of an automobile without a warrant.

    6. Searches and Seizures — Criminal Law — Probable Cause — Burden of Proof — Exigent Circumstances.

      The burden is on the people to show the police acted with probable cause and in response to exigent circumstances, thus bringing the search under one of the specific exceptions to the warrant requirement before a search without a warrant can be sustained.

    7. Searches and Seizures — Automobiles—Probable Cause — -Irrelevant Traffic Violations.

      The fact that a driver committed several traffic violations is totally irrelevant to a determination of whether an officer has probable cause to search his automobile; the lawfulness of a traffic stop is not a factor in determining whether there was probable cause to search.

    8. Searches and Seizures — Automobiles—Probable Cause — Furtive Gestures — Mere Suspicions — Specific Knowledge — Justification for Search.

      A mere furtive gesture does not create probable cause to search an automobile; furtive gestures which raise a mere suspicion, without some additional specific knowledge on the part of an officer, are insufficient to justify a search without a warrant because mere suspicion is not probable cause.

    9. Searches and Seizures — Protective Searches — Suppression of Evidence — Safety of Officers.

      A search cannot be characterized as a "protective” search where there is no testimony that the officer knew what the object which was later seized was or that he feared for his safety; evidence is illegally seized and should be suppressed where the record is barren as to any fears which would justify an immediate protective search of an automobile.

      Appeal from Recorder’s Court of Detroit, Susan D. Borman, J.
    Submitted November 3, 1977, at Detroit.
    (Docket No. 77-102.)
    Decided February 22, 1978.
    Scott Robertson was charged with carrying a pistol in a motor vehicle. Defendant’s motion to suppress evidence was granted. The people appeal.
    Reversed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      John C. Mouradian, for defendant.
    Before: Beasley, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
   M. J. Kelly, J.

Plaintiff appeals from a trial

court order granting defendant’s motion to suppress evidence and dismiss the proceedings.

Defendant was charged with carrying a pistol in a motor vehicle, contrary to MCLA 750.227; MSA 28.424. The evidence presented below at the preliminary examination revealed circumstances under which a limited protective search was allowable.

The arresting officer testified that on September 29, 1976, at approximately 2 a.m., he and his partner were conducting a routine scout car patrol in the area of John R. and Erskine in the City of Detroit. He observed a green Maverick, in which defendant was a passenger, double-parked on Erskine. The occupant of the Maverick appeared to be talking to two black males in a blue Thunderbird. The officer turned his patrol car around to investigate. Upon seeing the patrol car, apparently the driver of the Maverick made a U-turn on Erskine and sped away. The officer pursued the Maverick at a speed of 45-50 miles-per-hour in a 25 mile-per-hour zone, finally pulling the car over. The driver of the car was unable to produce a driver’s license or car registration, whereupon she was arrested for driving without a license.

Defendant was seated in the right rear passenger’s seat. As the driver exited the vehicle, the officer observed defendant take a dark-colored object from the right waistband of his pants. Defendant placed the object in a hole, approximately four inches in diameter, where a radio speaker had once been installed. The officer then ordered defendant and a front seat passenger out of the car. He then proceeded to conduct a search of the car, limited to the area of the rear seat where he had observed defendant drop the object. The only object found in the hole was a .32-caliber blue steel automatic, which defendant did not have a permit to carry. The pistol and a live round of ammunition were taken as evidence.

The trial court order suppressing the pistol will be affirmed by this Court unless we find the trial court to be clearly erroneous in granting defendant’s motion. People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977). We hold that the trial court ruling was clearly erroneous. Under the circumstances the only sensible thing for a police officer was to determine if the object dropped in the well hole was a weapon that could be used against him or illegal contraband. A furtive gesture in removing from the waistband and secreting a dark colored object, in a high crime area, in the early hours of the morning, after a lawful stop, should not result in suppression of a loaded pistol.

Furthermore, the defendant and his companions rapidly departed from the scene where they were first observed by the police, apparently upon seeing the police turn around and come in their direction. Cf. People v Nelson Pitts, 40 Mich App 567, 576; 199 NW2d 271 (1972), lv den, 388 Mich 791 (1972), People v Evans, 3 Mich App 1; 141 NW2d 668 (1966). This apparently evasive action, coupled with the furtive actions of defendant, is sufficient evidence to justify the limited protective search. Certainly, the facts and circumstances involved more than a mere furtive gesture on the part of defendant. See generally People v Terrell, supra, People v Hall, 40 Mich App 329, 337; 198 NW2d 762 (1972), Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977).

The order to suppress the evidence is reversed and the proceedings against the defendant are reinstated.

Reversed.

Beasley, P. J., concurred.

D. E. Holbrook, Jr., J.

(dissenting). In granting defendant’s motion to suppress, the trial judge noted that the preliminary examination transcript revealed no testimony by the police officer that he had any idea what the "dark colored object” was nor any testimony that the officer feared for his safety. Under these circumstances there was no probable cause for a warrantless automobile search and the evidence should be suppressed.

To justify a warrantless automobile search, there must be probable cause to believe that a felony has been or is being committed. People v Kuntze, 371 Mich 419; 124 NW2d 269 (1963), Peo ple v Strong, 77 Mich App 281, 284; 258 NW2d 205 (1977), People v Iverson, 34 Mich App 519, 526; 191 NW2d 745 (1971). To sustain a warrantless search, the burden is on the people to show the police acted with probable cause and in response to exigent circumstances, thus bringing the search under one of the specific exceptions to the warrant requirement. People v White, 392 Mich 404, 410; 221 NW2d 357 (1974), People v Strong, supra at 285.

The fact that the driver committed several traffic violations is totally irrelevant to a determination of whether the officer had probable cause to search the automobile. People v Ridgeway, 74 Mich App 306, 312; 253 NW2d 743 (1977), People v Strong, supra at 285. The lawfulness of the traffic stop is not a factor in determining whether there was probable cause to search. People v Nelson Pitts, 40 Mich App 567, 571-572; 199 NW2d 271 (1972), lv den 388 Mich 791 (1972).

The only possible basis for the search, therefore, is the fact that the defendant dropped an unidentified dark colored object into a hole in the backseat area. Such a mere "furtive gesture” does not create probable cause to search an automobile. People v Pitts, supra at 576. In the instant case, as in Pitts, the officer had no reason to believe the occupants of the auto possessed any contraband. The defendant could have been hiding any number of things from the police. As in Pitts, the officer here had to infer that the defendant’s actions were evasive and the officer had to infer the dark colored object was contraband. At most, the officer had a mere suspicion and mere suspicion is not probable cause. People v Pitts, supra at 579. Furtive gestures which raise a mere suspicion, without some additional specific knowledge on the part of the officer, are insufficient to justify the warrant-less search. People v Terrell, 77 Mich App 676, 680; 259 NW2d 187 (1977).

As noted above, the testimony of the police officer at the preliminary examination reveals he did not know what the object was. Further there was no testimony that the officer feared for his safety, so the search cannot be characterized, as the majority has done, as a "protective” search. If anything the placing of the pistol into a hole in the side of the car placed the officer in less danger than had the defendant kept the pistol in his waistband. I am aware of the potential dangers facing police officers in even routine traffic stops, Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977), but here the record is barren as to any fears which would justify an immediate protective search of the auto.

I would affirm the trial court’s suppression of the illegally seized evidence.