author: H. E. Deming, J.

text:
    PEOPLE v DIXON
    Docket No. 77-373.
    Submitted May 8, 1978, at Lansing.
    Decided July 17, 1978.
    Leave to appeal applied for.
    Richard F. Dixon was convicted in Allegan Circuit Court, George R. Corsiglia, J., of second-degree murder. Defendant appeals alleging the jury was not impartial due to unfavorable pretrial publicity, admission of involuntary statements, and prosecutorial infringement of his right against self-incrimination and his right to remain silent. Held:

    1. A trial court did not err in failing to order a mistrial on the basis that the jury drawn was not impartial where the defendant produced an affidavit stating that four members of the jury indicated during deliberations that they knew why defendant was a fugitive from justice when he was arrested but where that reason was never revealed or discussed; knowledge of publicity concerning a case does not automatically make a juror unfit to serve if that juror does not have a preconceived opinion concerning the defendant’s guilt or innocence which cannot be laid aside.
    2. The Court of Appeals is required to review a trial court’s determination of the voluntariness of a defendant’s statements by examining the whole record and making an independent determination, but where conflicting evidence is introduced and the determination of voluntariness depends to a large extent on the credibility of the witnesses at the hearing, deference will be given to the findings of the trial court and the trial court’s determination will not be disturbed unless the Court of Appeals is left with a definite and firm conviction that a mistake was made.
    3. Evidence of flight is relevant, material and admissible and the prosecutor is permitted to comment upon it and draw reasonable inferences from it; flight is not an assertion of the right against self-incrimination and the right to remain silent.

      References for Points in Headnotes
    [1] 21 Am Jur 2d Criminal Law §§ 427, 428.
    [2] 21 Am Jur 2d, Criminal Law § 426.
    Pretrial publicity in criminal case as affecting defendant’s right to fair trial. 10 L Ed 2d 1243.
    [3] 76 Am Jur 2d Trial §§ 1081, 1082.
    [4] [No Reference]
    [5, 6] 75 Am Jur 2d, Trial § 242.
    [6] 75 Am Jur 2d, Trial § 221.

      4. Testimony by a police officer that after arrest the defendant did not say anything or talked in a very low voice, but that later he answered or offered to answer their questions was harmless error when it was not deliberately injected into the proceedings by the prosecutor for the purpose of using the defendant’s silence against him, and where a review of the evidence presented to the jury indicates that there was no reasonable possibility that this testimony regarding defendant’s silence at his arrest contributed to his conviction.
    Affirmed.
    1. Criminal Law — Venue—Discretion—Appeal and Error.
    The grant or denial of a motion for a change of venue is within the discretion of the trial judge and, absent clear abuse of discretion, his decision will not be overturned.
    2. Criminal Law — Venue—Pretrial Publicity — Burden of Proof.
    The existence of publicity and some newspaper articles about a criminal case and the fact that some jurors may have read or heard about the case from the publicity does not necessarily require a change of venue and the burden is on the defendant to show undue influence or that the jurors had a preconceived opinion.
    3. Jury — -Impartial Jury — Pretrial Publicity — Juror Knowledge of Publicity — Mistrial.
    A mistrial on the basis that the jury drawn was not impartial was properly denied where the defendant produced an affidavit stating that four members of the jury indicated during deliberations that they knew why defendant was a fugitive from justice when he was arrested but where that reason was never revealed or discussed; knowledge of publicity concerning a case does not automatically make a juror unfit to serve if that juror does not have a preconceived opinion concerning the defendant’s guilt or innocence which cannot be laid aside (MCL 768.10; MSA 28.1033).
    4. Criminal Law — Statements of Defendant — Voluntariness—Appeal and Error — Court Rules.
    The Court of Appeals is required to review a trial court’s determination of the voluntariness of a defendant’s statements by examining the whole record and making an independent determination, but where conflicting evidence is introduced and the determination of voluntariness depends to a large extent on the credibility of the witnesses at the hearing, deference will be given to the findings of the trial court and the trial court’s determination will not be disturbed unless the Court of Appeals is left with a definite and firm conviction that a mistake was made (GCR 1963, 517.1).
    5. Criminal Law — Right Against Self-Incrimination — Right to Remain Silent — Flight—Prosecutorial Comment.
    Evidence of flight in a criminal case is relevant, material and admissible and the prosecutor is permitted to comment upon it and draw reasonable inferences from it; flight is not an assertion of the right against self-incrimination and the right to remain silent.
    6. Criminal Law — Evidence of Defendant’s Silence at Arrest— Harmless Error.
    Testimony by a police officer that after arrest the defendant did not say anything or talked in a very low voice but that later he answered or offered to answer questions was harmless error when it was not deliberately injected into the proceedings by the prosecutor for the purpose of using the defendant’s silence against him and where a review of the evidence presented to the jury indicates that there was no reasonable possibility that this testimony regarding defendant’s silence at his arrest contributed to his conviction.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Fred R. Hunter, III, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people.

      Janet Tooley, Assistant State Appellate Defender, for the defendant on appeal.
    Before: Beasley, P. J., and Allen and H. E. Deming, JJ.

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

   H. E. Deming, J.

On July 27, 1976, defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to life imprisonment. This prosecution arose out of the fatal shooting of a police officer on January 9, 1976. Defendant admitted shooting the officer but claimed that he acted in self-defense.

The first issue raised by defendant concerns the effect of pretrial publicity on his right to trial by an impartial jury, US Const, Am VI. The circumstances surrounding this case generated newspaper articles on the crime, the defendant, and the fact that, at the time of the shooting, defendant was sought by Federal authorities on an indictment arising out of an airplane hijacking. Prior to the selection of the jury defendant made a motion for a change of venue on the basis of this pretrial publicity but the judge reserved judgment on this motion until an attempt was made to impanel an impartial jury, see People v Jenkins, 10 Mich App 257; 159 NW2d 225 (1968), People v Dailey, 6 Mich App 99; 148 NW2d 209 (1967). Voir dire was very extensive, lasted eight days and occupied over 1,500 pages of transcript. Of the 89 prospective jurors examined, many remembered being exposed to the news media’s coverage of this case. Each juror who had formed an opinion about the case and who did not think that he could set that opinion aside and render a verdict solely on the evidence introduced at trial was excused, MCL 768.10; MSA 28.1033. Each prospective juror who had any knowledge of the hijacking charge was challenged for cause and all but two of these jurors were excused. During the voir dire, the trial judge denied defendant’s motion for a change of venue and he also denied defendant’s later motions for a change of venue.

The decision to grant or deny a motion for a change of venue is entrusted to the discretion of the trial judge and his decision will not be reversed absent a clear abuse of discretion, People v Nard, 78 Mich App 365; 260 NW2d 98 (1977). The burden is on defendant to show undue influence or that the jurors had a preconceived opinion, People v Nard, supra, People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975). The existence of publicity and some newspaper articles about a criminal case and the fact that some jurors may have read or heard about the case from this publicity does not necessarily require a change of venue, People v Ranes, supra, People v Jenkins, supra. There is no evidence of a strong community feeling or a pattern of bitter prejudice against the accused that would indicate that an impartial jury could not be drawn; see People v Eddington, 77 Mich App 177; 258 NW2d 183 (1977). People v Freeman, 16 Mich App 63; 167 NW2d 810 (1969), People v Jenkins, supra. This is not a case like Rideau v Louisiana, 373 US 723; 83 S Ct 1417; 10 L Ed 2d 663 (1963), or Sheppard v Maxwell, 384 US 333; 86 S Ct 1507; 16 L Ed 2d 600 (1966), in which the pretrial publicity was so extensive, inflammatory and patently prejudicial that it raised a presumption that prospective jurors could not remain impartial when exposed to it. All the jurors who were seated stated that they could set aside any opinion they might have of the case and determine their verdict solely on the evidence introduced at trial. Also a review of the evidence introduced at trial indicates that the jury could have found defendant guilty beyond a reasonable doubt of first-degree murder. Since the jury returned a verdict of guilty of second-degree murder and acquitted defendant on the first-degree murder charge, it is obvious to us that the jury independently and impartially weighed the evidence in reaching its determination; see People v Eddington, supra. The defendant has not shown the trial judge abused his discretion in denying the motion for a change of venue; see People v Hoffmeister, 52 Mich App 219; 217 NW2d 58 (1974), rev’d and remanded on other grounds, 394 Mich 155; 229 NW2d 305 (1975), reh den, 394 Mich 944; 230 NW2d 270 (1975), People v Freeman, supra, People v Jenkins, supra.

Defendant also claims that the trial court erred in denying his motion for a mistrial on the basis that the jury drawn was not impartial. Nine of the twelve jurors who ultimately decided the case had been exposed to some pretrial publicity. Two jurors stated on voir dire that they had heard of the hijacking incident. In support of this motion for a mistrial, defendant introduced an affidavit by the jury foreperson stating that four members of the jury said, during deliberations, that they knew why defendant was a fugitive from justice when he was arrested. However, this reason was never disclosed to the rest of the jury or discussed by the jury. Knowledge of publicity concerning a case does not automatically make a juror unfit to serve if that juror does not have a preconceived opinion concerning the defendant’s guilt or innocence which cannot be laid aside, MCL 768.10; MSA 28.1033. All the prospective jurors who stated that they had a preconceived opinion which they could not set aside were excused. The trial judge conducted a very thorough voir dire examination and he repeatedly warned the jurors to avoid exposing themselves to any discussions or media reports about the case. Defendant has not shown that any juror had an opinion of the case which prevented him from rendering an impartial verdict according to the evidence submitted to the jury at trial. Also, defendant has not shown any juror misconduct requiring reversal. The affidavit from the foreperson that four jurors said in the jury room that they were aware of why defendant was a fugitive does not require reversal. The reason why defendant was a fugitive was not disclosed to the rest of the jury, considered, or discussed. This fact distinguishes People v Moreland, 12 Mich App 483; 163 NW2d 257 (1968), where inadmissible evidence of prior convictions came to the jury’s attention during trial and was discussed and considered by the jury in deliberating on a verdict. The trial judge did not err by failing to order a mistrial.

Defendant also claims that it was reversible error to admit into evidence some statements that defendant made to the police because these statements were involuntary. The statements in question were made following defendant’s arrest and after defendant had been advised of his Miranda rights. A Walker hearing was conducted and after this hearing, the trial judge found the defendant’s statements to be voluntary and admissible. On appeal from a trial court’s determination of voluntariness, this Court is required to examine the whole record and make an independent determination of voluntariness, People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). When conflicting evidence is introduced and the determination of voluntariness depends to a large extent on the credibility of the witnesses at the hearing, deference will be given to the findings of the trial court, People v Smith, 80 Mich App 106; 263 NW2d 306 (1977); see also GCR 1963, 517.1. If after such a review, this Court does not possess a definite and firm conviction that a mistake was committed, the trial judge’s determination will be affirmed, People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974). After a review of the record, we are not left with a firm and definite conviction that a mistake was committed and so defendant’s claim of error does not justify reversal, People v Smith, supra.

Defendant’s third claim on appeal is that it was reversible error for the prosecutor to introduce testimony and to make references during his closing argument which infringed on defendant’s right against self-incrimination, US Const, Am V, Const 1963, art 1, § 17, People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). During his closing argument, the prosecutor referred to the fact that when a second police officer arrived on the scene of the shooting, the defendant fled. The prosecutor urged the jury to infer from this fact that defendant murdered the victim rather than acting in self-defense. Evidence of flight is relevant, material and admissible, People v Kyles, 40 Mich App 357, 360; 198 NW2d 732 (1972). The prosecutor is entitled to comment on this evidence and draw reasonable inferences from it. The admission of evidence of flight from police officers does not infringe on a defendant’s right against self-incrimination. Flight is not an assertion of the right against self-incrimination and one’s right to remain silent does not encompass the right to flee from law enforcement officers performing their official duties. The prosecutor’s reference during his closing argument to defendant’s flight from the scene does not violate the proscriptions enunciated in Bobo, supra.

A related Bobo, supra, issue raised by defendant involves the admission of testimony from some of the police officers present at defendant’s arrest concerning whether the defendant might have made any statements at that time. These officers testified that after defendant was informed of his Miranda rights, the officers asked him some questions. More specifically, the officers asked the defendant where the gun used in the shooting was, what his name was, and why he had shot the victim. The officers testified that initially defendant did not say anything or talked in a very low voice but that later he answered or offered to answer all these questions for the police. The admission of this evidence clearly violates the proscriptions stated in Bobo, supra. However, plaintiff contends that any error in this case was harmless and does not justify reversal. The test to determine whether a Bobo error was harmless is set out in People v Swan, 56 Mich App 22, 31; 223 NW2d 346 (1974).

On the facts involved in this case, these fleeting references to defendant’s silence at arrest were not so offensive to the maintenance of a sound judicial process that they can never be regarded as harmless; see People v Swan, supra. Although the testimony was not unresponsive to the prosecutor’s questions, it was not deliberately injected into the proceedings by the prosecutor for the purpose of using such silence against defendant. The testimony was given by the officers as an explanation of their actions which culminated in defendant making some inculpatory statements to them. Shortly after defendant’s initial silence, he answered the questions asked by the police offering to show them where he disposed of the gun and identifying himself as "Mamashay”. Although some recent decisions by this Court have resolved this "harmless error” issue in favor of the defendant by finding that any reference to defendant’s silence is offensive to the maintenance of a sound judicial process, People v Hoye, 80 Mich App 258; 263 NW2d 343 (1977), the fleeting references to defendant’s silence in this case were not so offensive that they require reversal under the first prong of the Swan, supra, harmless error test.

The next issue under the harmless error test is "whether there is a reasonable possibility that the evidence complained of might have * * * aided in convincing an otherwise undecided juror of the defendant’s guilt beyond a reasonable doubt”, People v Swan, supra, at 33, Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967). The purpose of this requirement is to safeguard the defendant’s right to be convicted only by a jury and only upon a finding of guilty beyond a reasonable doubt. A review of the evidence presented to the jury indicates that there is no reasonable possibility that this testimony regarding defendant’s silence at his arrest contributed to his conviction. Defendant’s later admissions of incriminating statements made it clear that he had something to hide at his arrest and rendered any similar implications from his silence at arrest merely cumulative, Swan, supra. Defendant admitted shooting the officer with a gun and also offered to help the police find the weapon. His admissions at the police station also clearly indicated that he had a reason to hide his identity. This subsequent cooperation with the police no doubt removed any inclination that the jury might have to penalize the defendant for having an uncooperative attitude; see People v Swan, supra. These admissions by the defendant effectively removed the possibility that the jury might have made inculpatory inferences in relation to the questions defendant did not answer at his arrest. The weight and nature of the other evidence against defendant made the error in this case harmless beyond a reasonable doubt.

The remaining issues raised by defendant do not warrant discussion or reversal. The admission of rebuttal evidence is within the discretion of the trial judge, People v Utter, 217 Mich 74; 185 NW 830 (1921), and the trial judge did not abuse his discretion. Defendant did not object to the jury instructions given by the judge and so reversal is not warranted unless manifest injustice resulted, People v Harless, 78 Mich App 745; 261 NW2d 41 (1977), People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977). No manifest injustice resulted from these instructions.

Affirmed.

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

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


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    BAZIL v MICHAEL
    Docket No. 77-434.
    Submitted June 15, 1978, at Detroit.
    Decided July 17, 1978.
    Leave to appeal applied for.
    Complaint by Ann Bazil and Edwin Bazil against James A. Michael, Jacqueline Michael and the City of Grosse Pointe Park in Wayne Circuit Court seeking damages for injuries sustained in a slip and fall on a public sidewalk. Defendant City of Grosse Pointe Park sought leave to amend its pleadings to include a statute of limitations defense. Motion denied by Thomas Roumell, J. Defendant appeals by leave granted. Held: The liberal amendment of pleadings rule should not be applied to allow a party to avoid trial on the merits to the prejudice of the opposing party.
    Affirmed.
    Pleading — Amendments op Pleadings — Motions—Discretion op Court.
    The rule allowing liberal amendment of pleadings was promulgated by the Supreme Court to facilitate trial of an action on the merits with all substantive issues fully presented; the rule should not be applied to allow a party to avoid trial on the merits by amending its pleadings to include a special defense where delay in requesting the amendment has prejudiced the opposite party.
    Reference for Points in Headnote
    61 Am Jur 2d, Pleading § 309.

      Rains, Block & Dean, for plaintiffs.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by John A. DeMoss and Christine D. Oldani), for defendant City of Grosse Pointe Park.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Beasley, J.

Plaintiff, Ann Bazil, claims damages for personal injuries arising out of a fall on a broken sidewalk on March 3, 1971.

On February 21, 1974, plaintiffs filed suit for damages and on March 15, 1974, defendant city filed an answer. Belatedly, defendant city discovered that it might be entitled to avail itself of a special two year statute of limitations, and on November 26, 1974, moved to amend its pleadings to add the affirmative defense of the statute of limitations. The trial court denied defendant city’s motion to amend, holding that plaintiff was prejudiced by the ten month delay in filing the motion to amend. Defendant city appeals by leave granted.

The reason behind the Gunter rule is to facilitate trial on the merits with all substantive issues fully presented. No such reason is present here. Defendant city seeks to avoid trial on the merits by application of the special two year statute of limitations applicable in some governmental immunity situations.

We do not find the trial judge’s finding clearly erroneous. There was a possibility of prejudice to plaintiff in the staleness of defendant city’s claim, which, considered together with the fact that the usual reason for application of Gunter, supra, is not present here, supports the trial judge’s conclusion.

Affirmed, with costs.

       MCL 691.1411; MSA 3.996(111) provides:
      "(1) Every claim against any governmental agency shall be subject to the general law respecting limitations of actions except as otherwise provided in this section.
      "(2) The period of limitations for claims arising under section 2 of this act shall be 2 years.
      "(3) The period of limitations for all claims against the state, except those arising under section 2 of this act, shall be governed by chapter 64 of Act No. 236 of the Public Acts of 1961.”
      One would suspect that, initially, both plaintiff and defendant city assumed application of the three year statute of limitations.

       However, plaintiffs’ action was within the general three year statute of limitations for tort claims. The trial court’s rationale was that plaintiff incurred unnecessary costs of additional discovery by defendant’s failure to seek amendment timely and, therefore, under Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973), the trial judge could exercise his discretion and deny permission to amend.

        Ben P Fyke & Sons v Gunter Co, supra.

       It would be ironic to permit defendant city a tardy motion to amend where the ultimate effect would be to punish plaintiff for tardy commencement of suit.

       This result is also consistent with the result in Wilson v Eubanks, 36 Mich App 287; 193 NW2d 353 (1971).


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

text:
    LESTER v SHERIFF OF OAKLAND COUNTY
    Docket Nos. 77-1485, 77-1567, 77-3022.
    Submitted May 3, 1978, at Lansing.
    Decided July 17, 1978.
    Keith Lester brought actions for mandamus and superintending control in Oakland Circuit Court against the Sheriff of Oakland County, the Oakland County Sheriffs Department, Oakland County Personnel Appeal Board and Oakland County to compel defendants to reinstate him to his former position of detective sergeant in the Oakland County Sheriff Department. Summary judgment for plaintiff was granted with an order requiring his reinstatement. The Oakland County Sheriff did not comply with the order and was found in contempt, William J. Beer, J. All actions have been consolidated on appeal. Defendants appeal contending (1) the trial court lacked jurisdiction to entertain plaintiffs mandamus action, (2) defendants had no clear legal duty to reinstate plaintiff, (3) the trial court did not have jurisdiction to entertain contempt proceedings against the sheriff, and (4) the trial court lacked jurisdiction to issue an order of superintending control against defendants in that an adequate administrative remedy was available to plaintiff. Held:

    1. Circuit courts have jurisdiction in mandamus proceedings for reinstatement of a deputy sheriff discharged by a county.
    2. A court may not order reinstatement of a dismissed deputy sheriff where there is no clear legal duty to make the reinstatement.

      References for Points in Headnotes
    [1-3] 52 Am Jur 2d, Mandamus §§ 286, 287.
    70 Am Jur 2d, Sheriffs, Police, and Constables § 18.
    [2-4] 52 Am Jur 2d, Mandamus
    [4] 2 Am Jur 2d, Administrative Law § 595.
    70 Am Jur 2d, Mandamus § 164.
    [5] 70 Am Jur 2d, Mandamus § 460.
    [6] 17 Am Jur 2d, Contempt § 42.
    Right to punish for contempt for failure to obey court order or decree either beyond jurisdiction of court or merely erroneous. 12 ALR2d 1059.
    [7] 2 Am Jur 2d, Administrative Law § 595.
    [8] 2 Am Jur 2d, Administrative Law §§ 334, 335.

      3. A deputy sheriff wrongfully discharged from his position who is denied a hearing before the appropriate administrative appeal board should petition the circuit court for an order requiring the board to conduct the hearing on the discharge. He is not entitled to an adjudication on the merits in the circuit court until that administrative remedy has been exhausted.
    4. In a mandamus action, a court is required to make findings of fact on the record so that the record may be complete for effective appellate review.
    5. Circuit courts have jurisdiction to hear contempt proceedings arising from disobedience of their orders; an improperly entered court order must still be obeyed until vacated by appropriate judicial action.
    6. An administrative appeal board does not lose jurisdiction over an agency dispute where the board’s failure to act is excusable.
    Reversed and remanded.
    1. Mandamus — Sheriffs and Constables — Dismissal—Reinstatement — Jurisdiction.
    Circuit courts have jurisdiction in all mandamus proceedings involving the action or nonaction of any officer or board of any county; a writ of mandamus is an appropriate remedy in an action for reinstatement of a deputy sheriff discharged by a county (GCR 1963, 714.1[2]).
    2. Sheriffs and Constables — Dismissal—Reinstatement.
    A court may not order reinstatement of a dismissed deputy sheriff to his former position where there is no clear legal duty on the part of the sheriff, the sheriff department, the appeal board or the county to make the reinstatement.
    3. Mandamus — Alternative Legal Remedy.
    A writ of mandamus will not issue where there is an alternate adequate legal remedy.
    4. Mandamus — Administrative Procedures — Hearings—Appeal Board — Duty to Hold Hearings.
    A county personnel appeal board’s failure to afford a hearing to a dismissed deputy sheriff in accordance with county administrative rules does not justify circumvention of the administrative appeal procedure by securing an adjudication on the merits in a mandamus action in circuit court; the appropriate avenue of relief is to petition the circuit court for a writ of mandamus ordering the appeal board to conduct a hearing in respect to the deputy’s discharge since the appeal board has a clear legal duty to hold such a hearing when an appeal is properly filed.
    5. Mandamus — Appeal and Error — Findings op Fact — Court Rules.
    A trial court must make findings of fact on the record for possible later appellate review when issuing a mandamus order. (GCR 1963, 517.1).
    6. Sheriffs and Constables — Courts—Jurisdiction—Orders—Reinstatement of Officer — Contempt.
    Circuit courts have jurisdiction to hear contempt proceedings arising out of a sheriffs refusal to obey the court’s order to reinstate a deputy to his former position in a county sheriff department; a court order, even though improperly entered, must still be obeyed until vacated by appropriate judicial action.
    7. Courts — Superintending Control — Administrative Appeals.
    A plaintiff must exhaust his administrative remedies before seeking an order of superintending control; the judiciary should not allow itself to be used to usurp the lawful functions of administrative agencies where another adequate remedy is available (GCR 1963, 701.1[b], 711.2, 711.4[b], 862.5[a]).
    8. Counties — Employers and Employees — Appeal Boards — Jurisdiction.
    A county personnel appeal board, which has jurisdiction to review the dismissal of a county employee, will not lose jurisdiction over the matter by its failure to act where the board’s failure to act is excusable.

      John A. Lyons, Jr., and Bruce T. Leitman, for plaintiff.

      Donald F. Slavin, Oakland County Civil Counsel, and Clary, Nantz, Wood & Van Orden (by Robert W. White), for defendants.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and N. J. Kaufman, JJ.
   J. H. Gillis, P. J.

The instant case is a consolidation of three separate appeals made by defendants from actions commenced by plaintiff in Oakland County Circuit Court. The suits were initiated by plaintiff in an effort to compel defendants to reinstate him to his former position of detective sergeant on the Oakland County Sheriffs Department.

Plaintiff was first suspended from his position on March 4, 1976, due to a pending request for a criminal warrant against him. On March 11, 1976, plaintiff was formally terminated from his position due to the issuance of a felony warrant by the Oakland County prosecuting attorney, charging plaintiff with larceny by conversion, contrary to MCL 750.362; MSA 28.594.

Plaintiff was subsequently brought to trial on the aforementioned charge, but the case was dismissed before being submitted to the jury by the trial judge who concluded that the prosecution failed to establish all of the elements of the crime charged. The prosecution appealed the dismissal to this Court, which in turn affirmed the trial judge’s ruling. People v Keith Lester, 78 Mich App 661; 261 NW2d 33(1977).

During these proceedings, plaintiffs counsel filed an appeal by letter with the Oakland County Personnel Appeal Board seeking a review of plaintiff’s suspension and subsequent dismissal pursuant to Merit System Rule II (R.O.A. October 25, 1977, Ex A). A hearing was delayed in the matter pending the outcome of the criminal proceedings.

On April 6, 1977, plaintiff commenced a mandamus action in Oakland County Circuit Court alleging that he was suspended and dismissed without cause, and demanded that he be reinstated to his former position with back pay. An ex parte order to show cause was issued by the circuit court requiring defendants to appear and answer plaintiff’s allegations within six days.

Defendants answered the complaint denying the allegations and raising several affirmative defenses.

On April 20, 1977, a hearing was conducted in respect to this matter. No testimony or evidence was offered by either party.

On April 28, 1977, an order was entered reinstating plaintiff forthwith to his position as a detective sergeant on the Oakland County Sheriff’s Department with all fringe benefits, seniority and back pay. No findings of fact or conclusions of law in support of the order were made by the trial court. The order made no reference to the hearing scheduled before the Personnel Appeal Board on May 13, 1977.

On April 29, 1977, defendants filed a claim of appeal with this Court from the mandamus order. On the same day, defendant Spreen, Sheriff of Oakland County, requested that a stay of proceedings be granted by the trial court conditioned upon the filing of a bond in an amount equal to the sums called for by the order. This request was denied without explanation by the trial court.

On May 6, 1977, the trial court found defendant Spreen in contempt of court for refusing to obey the mandamus order. Once again, no testimony was taken and no formal findings of fact were made by the trial court.

Defendant Spreen was jailed after refusing to purge himself by reinstating plaintiff. On May 7, 1977, Sheriff Spreen filed a claim of appeal, a motion for stay of proceedings and a motion for immediate consideration from the order finding him in contempt. This Court then ordered a stay of all further proceedings in the mandamus action and ordered Sheriff Spreen released upon personal recognizance bond.

On May 13, 1977, the Personnel Appeal Board conducted a hearing on plaintiff’s dismissal. Plaintiff presented a number of preliminary objections in respect to the manner in which the board was conducting the hearing, which were all overruled by the chairman. No testimony was taken at the hearing because plaintiff’s counsel requested and defendants’ counsel concurred in staying the proceedings until the circuit court ruled on the validity of plaintiff’s objections.

On May 25, 1977, plaintiff filed an action for superintending control in the Oakland County Circuit Court against all defendants in the mandamus action except Sheriff Spreen. Essentially the complaint reiterated the facts pleaded in the preceding mandamus action, the failure of defendants to honor their own governing rules and regulations, and the failure of the Oakland County Personnel Appeal Board to afford plaintiff a timely hearing pursuant to Merit Rule II, § 4.

After filing this suit, plaintiff moved for a summary judgment alleging that there was no genuine issue of material fact to be litigated. The trial court granted this motion and defendants now appeal as of right from this order as well as the two prior rulings entered by the trial court.

Defendants first contend that the trial court lacked jurisdiction to entertain plaintiff’s mandamus action. We disagree.

Const 1963, art 6, § 13 provides that:

"The circuit court shall have original jurisdiction in all matters not prohibited by law; * * * power to issue, hear and determine prerogative and remedial writs; * * * and jurisdiction of other cases and matters as provided by rules of the supreme court.”

RJA § 601, MCL 600.601; MSA 27A.601 contains a broad grant of all equity powers traditionally exercised in dhancery to the circuit courts. The underlying "assumption [is] that circuit courts have jurisdiction unless the matter in question is specifically excluded by law.” Practice Commentary to MCL 600.601. Similarly, RJA § 605, MCL 600.605; MSA 27A.605 provides a statutory basis for hearing mandamus actions against county officers in circuit court.

" * * * original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state.”

GCR 1963, 714.1(2) provides that:

"Circuit courts have jurisdiction in all mandamus proceedings involving the action or non-action of any officer or board of any county.”

The instant action clearly comes within this grant of jurisdiction. A writ of mandamus is an appropriate remedy in an action for reinstatement of a deputy sheriff discharged by the county. See Locke v Macomb County, 387 Mich 634; 199 NW2d 166 (1972).

Defendants next contend that the trial court erred in reinstating plaintiff to his former position in that defendants had no clear legal duty to reinstate plaintiff even after he was exonerated on the criminal charges.

A review of Oakland County Merit System Rule 8, § 3, supports defendants’ contention. The only duty defendants had in this matter was to review plaintiffs situation and determine whether the conduct of plaintiff involved moral turpitude or cast doubt upon the ability of plaintiff to perform his job, and if so, take what disciplinary action they deemed appropriate under the circumstances.

Accordingly, the trial court erred in ordering defendants to reinstate plaintiff in that there was no clear legal duty on the part of defendants to do so.

At this time we also note several other errors made by the trial court that would require this Court to vacate the mandamus order. It is well established that where there is an alternative adequate legal remedy, a writ of mandamus will not issue. See Toan v McGinn, 271 Mich 28, 33; 260 NW 108 (1935), Hazel Park Racing Association, Inc v Racing Commissioner, 336 Mich 508, 518; 58 NW2d 241 (1953).

Plaintiff contends that to pursue his administrative remedy before the Personnel Appeal Board would be a futile act in that the appeal board has failed to afford plaintiff a speedy hearing in accordance with Oakland County administrative rules. Therefore, plaintiff seeks to circumvent the administrative appeal procedure by securing an adjudication on the merits in a mandamus action in circuit court. However, such a remedy is improper under the circumstances of this case. The appropriate avenue of relief would be to petition the circuit court for a writ of mandamus ordering the Personnel Appeal Board to conduct a hearing in respect to plaintiffs discharge.

The Personnel Appeal Board has a clear legal duty to hold such a hearing when an appeal is properly filed before it. As noted earlier, defendants have np clear legal duty to reinstate plaintiff.

We also note the trial court’s failure to make findings of fact in compliance with GCR 1963, 517.1 would also mandate reversal of the mandamus order issued in this case. See Ray v Mason County Drain Commissioner, 393 Mich 294; 224 NW2d 883 (1975).

Defendants next contend that the trial court did not possess jurisdiction to entertain the contempt proceedings against Sheriff Spreen. Having already concluded that the trial court possessed jurisdiction to entertain the mandamus action, we have little difficulty in ruling that the trial court possessed jurisdiction to hear contempt proceedings arising out of a violation of that order. While acknowledging that the order was improperly entered, it must still be obeyed until vacated by appropriate judicial action.

In ARA Chuckwagon of Detroit, Inc v Robert, 69 Mich App 151, 161; 244 NW2d 393 (1976), this Court held that:

"[T]he law is clear that where a temporary restraining order has been improperly granted, it must be obeyed until judicially vacated. Rose v Aaron, 345 Mich 613; 76 NW2d 829 (1956), Berry Pontiac, Inc v Burke, 19 Mich App 648; 173 NW2d 243 (1969). The determination that such an order is invalid is one to be made by the courts, not by the parties. City of Troy v Holcomb, 362 Mich 163; 106 NW2d 762 (1961). Only those contempt orders issued by a court without jurisdiction may go unenforced. In re Mead, 220 Mich 480; 190 NW 235 (1922), People v Hernandez, 52 Mich App 56; 216 NW2d 438 (1974), lv den 391 Mich 830 (1974). The trial court here clearly possessed the requisite personal and subject matter jurisdiction to enter its order. * * * In essence, defendants contend that a court loses its jurisdiction by issuing an incorrect order. The illogic of such a position is self-evident.”

Notwithstanding the foregoing analysis, we find no reason to enforce the contempt order in that it was improperly issued and held in abeyance pending the outcome of this appeal. The enforcement of the order would serve no judicially recognizable purpose at this stage of the proceedings. See Rose v Aaron, 345 Mich 613; 76 NW2d 829 (1956), and Local 214, Law Enforcement Division, Teamsters State, County and Municipal Workers v Genesee County Board of Commissioners, 77 Mich App 296, 303; 258 NW2d 209 (1977).

Defendants further claim that the trial court lacked jurisdiction to issue an order of superintending control against defendants in that an adequate administrative remedy was available to plaintiff.

The judiciary should not allow itself to be used to usurp the lawful functions of administrative remedies. Lepofsky v Lincoln Park, 48 Mich App 347; 210 NW2d 517 (1973).

"If another adequate remedy is available to the party seeking the order, a complaint for superintending control may not be filed. See GCR 1963, 701.1(b); 711.4(b); 862.5(a).” GCR 1963, 711.2.
"The remedy of superintending control by the circuit court over inferior tribunals, including administrative agencies, is available under GCR 1963, 711 only 'if another plain, speedy and adequate remedy is [not] available to the party seeking the order.’ ” Farmers State Bank of Concord v Department of Commerce, Financial Institutions Bureau, 77 Mich App 313, 319; 258 NW2d 496 (1977).

Plaintiff contends that a review of his dismissal before the Personnel Appeal Board is not an adequate alternate remedy in that the appeal board has already failed to conduct a hearing in a timely fashion as prescribed by rule 11 of the Oakland County Merit System Rules, supra.

The record reveals that the appeal board did, in fact, fail to conduct a timely hearing as required by its own procedural rules. However, part of the delay can be attributed to plaintiffs continuing attempts to circumvent the administrative process. Another substantial factor contributing towards the delay was the pending criminal charges.

Under such circumstances, the appeal board’s failure to act is excusable and will not cause the appeal board to lose jurisdiction over the matter.

Accordingly, the plaintiff must exhaust his administrative remedies before seeking judicial intervention in this matter.

The other issues raised on appeal do not merit discussion by this Court.

Reversed and remanded for proceedings before the Oakland County Personnel Appeal Board. No costs, a public question being involved. We retain no further jurisdiction.

       Oakland County Merit System Rule 8, § 3, .19.
      "If an employee has been charged with the commission of a felony, he shall be suspended without pay pending a valid disposition of the charge. If final resolution of the charge does not result in a valid conviction, the Department Head shall determine whether the conduct of the employee involved moral turpitude or casts doubt on the ability of the employee to perform his job, and if he so determines, such conduct shall constitute 'cause’ for appropriate disciplinary action. Any such determination may be appealed to the Personnel Appeal Board.”

       Oakland County Merit System Rule 8, § 3, .19.


author: D. C. Riley, J.

text:
    PEOPLE v WALKER
    Docket No. 77-1776.
    Submitted May 8, 1978, at Detroit.
    Decided July 17, 1978.
    Darrell E. Walker was convicted, on his plea of guilty, of two counts of second-degree murder in Recorder’s Court of Detroit, Samuel H. Olsen, J. Prior to receiving his plea a competency hearing was ordered at which only a forensic social worker testified. He testified to interviewing the defendant and administering a questionnaire to him. He also testified that the defendant was examined by a psychiatrist and that the psychiatrist and the social worker produced a report containing their conclusions concerning defendant’s competency to stand trial. The report was signed by the psychiatrist as well as the social worker and the defendant did not object to the testimony or admission of the report and did not argue for a finding of incompetency. Defendant appeals his convictions. Held:

    The admission of the testimony of the forensic social worker was harmless error.
    Affirmed.
    Criminal Law- — Competence to Stand Trial — Social Worker’s Testimony — Psychiatric Examination Report.
    The admission of the testimony of a forensic social worker at a competency hearing was harmless error where the defendant received a psychiatric examination, the report of the examination presented the unified opinion of the psychiatrist and the forensic social worker and was cosigned by the psychiatrist, the social worker’s testimony laid the foundation for admission of the report, and the defendant did not object to the admission of the testimony or the admission of the report, did not argue for a finding of incompetency and did not present any evidence at the hearing.
    Reference for Points in Headnotes
    [1] 29 Am Jur 2d Evidence § 354.
    21 Am Jur 2d, Criminal Law §§ 68, 69.
    Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition. 32 ALR2d 434.

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

      Rose Mary C. Robinson, for defendant on appeal.
    Before: Cynar, P. J., and T. M. Burns and D. C. Riley, JJ.
   D. C. Riley, J.

This case involves an issue this Court faced in People v Parney, 74 Mich App 173; 253 NW2d 698 (1977), namely, whether a forensic social worker can give expert testimony at a court-ordered competency hearing.

Defendant Darrell Walker was charged with two counts of first-degree murder. MCL 750.316; MSA 28.548. On August 5, 1976, he moved for a competency evaluation, which was granted. The next day he was examined by a social worker employed by Detroit Recorder’s Court Psychiatric Clinic. The social worker administered a questionnaire to defendant and conducted an interview surrounding the answers to the questions. Defendant was also examined by a psychiatrist. Following these examinations, the social worker and the psychiatrist produced a report containing their conclusions concerning defendant’s competency to stand trial.

The competency hearing was held on August 27, 1976. The only witness was the social worker. There was no objection raised as to his qualifications to testify as an expert. He testified as to the procedure used in the examination of defendant and the report prepared together with the psychiatrist was admitted into evidence without objection. On the record, the social worker was not asked, and did not volunteer, his opinion as to defendant’s competency other than stating that his conclusion, as contained in the report, had not changed in the interim period from the drafting of the report to the date of the hearing.

Defendant offered no evidence of incompetency at the hearing, and, in fact, did not even make a final argument. Following the social worker’s testimony, the court found defendant competent. On January 28, 1977, defendant plead guilty to two counts of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to concurrent terms of life imprisonment, with a recommendation for "extensive psychiatric” treatment.

In People v Parney, supra, this Court held that a forensic social worker is not qualified to give expert testimony as to competency. The basis for this holding was not the individual capabilities of any particular social worker, but rather the court rule mandate of "psychiatric” evidence concerning competency:

"After cautious and thorough review of the record, we believe the lower court abused its discretion and thereby erred reversibly in qualifying [the social worker] as an expert capable of determining defendant’s competence to stand trial on the murder charge. People v Skowronski, 61 Mich App 71, 79-80; 232 NW2d 306 (1975). Further, we disagree with People v Lamont Crawford, 66 Mich App 581; 239 NW2d 670 (1976), to the extent it holds that any member of the forensic center staff, under MCLA 330.2026; MSA 14.800(1026), may determine a defendant’s competence to stand trial. Implicit within MCLA 330.2026, we believe, is the assumption that the 'personnel’ of the forensic center chosen 'to perform examinations relating to the issue of incompetence to stand trial’ must be minimally qualified to do so.

Under the Parney decision, it was error for the court to have allowed the testimony of the social worker. However, we do not find this error to require reversal, as in Parney, supra, for a number of reasons.

Foremost among these reasons are the facts that defendant did receive a psychiatric examination and the report was cosigned by the social worker and the psychiatrist. The report itself does not set forth separate conclusions of the two draftors, but rather presented a unified opinion. Even discounting the social worker’s testimony and his input into the report, there remains enough psychiatric evidence to minimally support the court’s determination of competency. By contrast, in Parney, supra, there was no testimony or evidence from a psychiatrist other than an outdated report. While we do not condone the use of the social worker as an expert witness, we do not find an absence of proper evidence as was the case in Parney.

In addition, this social worker’s testimony was not as substantive as that of the social worker in Parney. Here, the social worker did not give an opinion as to competency, but merely set a foundation for the admission of the report. As such, the report, and not the testimony, was the real evidence of the case and, as stated previously, the report was signed by the psychiatrist.

We must also note that the current hearing took place prior to the release date of the Parney decision. While we do not seek to decide in this context whether Parney should have retroactive effect, we do recognize that this fact mitigates the trial court’s culpability.

Finally, defendant did not object to the testimony or the admission of the report, did not argue for a finding of incompetency, and did not present any evidence at the hearing. These factors, while not determinative on their own, also tend to reduce the magnitude of the error. Accordingly, we find the present case distinguishable from Parney, supra, to the extent that the admission of the social worker’s testimony was harmless error.

Defendant’s other issue, whether the court erred at the plea proceeding in not explaining the differences between the legal elements of first- and second-degree murder, was decided adversely to his claims in Parney, supra, at 184-185. Neither the court rule nor Michigan case law requires a court to explain the elements of an offense. GCR 1963, 785.7(1)(a), Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

Affirmed.

       "We note that GCR 1963, 786 requires 'the performance of [a] forensic psychiatric evaluation’ on a defendant whose competence is questioned. (Emphasis added.) When statute and court rule collide in an area involving judicial practice and procedure, the court rule, of course, prevails. Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202 (1971), People v Joker, 63 Mich App 421; 234 NW2d 550 (1975). Thus, use of the word 'personnel’ in MCLA 330.2026; MSA 14.800(1026) cannot override the command of GCR 1963, 786 that a possibly incompetent defendant be given a forensic psychiatric evaluation.” (Emphasis in original.) 74 Mich App at 179.


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

text:
    PEOPLE v MIKULIN
    Docket No. 77-1787.
    Submitted April 13, 1978, at Detroit.
    Decided July 17, 1978.
    Gloria Mikulin was convicted of second-degree murder, Recorder’s Court of Detroit, Donald L. Hobson, J. The defense of insanity was raised before trial. The trial court instructed the jury that the permissible verdicts were guilty of first-degree murder, second-degree murder, or manslaughter and not guilty by reason of insanity. No instructions were given relative to a verdict of guilty but mentally ill or a general not guilty verdict. Defendant appeals. Held:

    1. It was reversible error for the trial court to fail to instruct the jury on the question of insanity before taking expert testimony on the subject.
    2. The trial court was required to give an instruction on the possible verdict of guilty but mentally ill because the evidence warranted an instruction on insanity.
    3. The court’s failure to include "not guilty” as a possible verdict was reversible error.
    4. The trial court’s ruling that only expert testimony would be admissible concerning the defendant’s mental condition at the time of the shooting was improper.
    Reversed and remanded for a new trial.
    1. Criminal Law — Instructions to Jury — Insanity Defense — Evidence — Expert Testimony — Appeal and Error — Statutes.
    The failure of a trial court to instruct the jury bn the question of insanity, in a criminal case where the defendant has raised an insanity defense, before taking expert testimony on the subject of insanity is reversible error, even without a request for such an instruction; the trial court has a duty to prepare the jury for the expert testimony which is to be received (MCL 768.29a[l]; MSA 28.1052[1] [1]).

      References for Points in Headnotes
    [1, 3] 75 Am Jur 2d, Trial §§ 738, 739.
    [2, 3] 75 Am Jur 2d, Trial § 883.
    [4] 31 Am Jur 2d, Expert and Opinion Evidence § 88.
    Requisite foundation or predicate to permit nonexpert witness to give opinion, in civil action, as to sanity, mental competency or mental condition. 40 ALR2d 15.

      2. Criminal Law — Instructions to Jury — Insanity—Guilty But Mentally III — Statutes.
    An instruction to the jury on a possible verdict of guilty but mentally ill is required whenever an instruction on insanity is warranted by the evidence (MCL 768.29a[2]; MSA 28.1052[1] [2]).
    3. Appeal and Error — Criminal Law — Instructions to Jury — Verdicts — Not Guilty.
    The failure of a trial court in a criminal case to include "not guilty” as a possible verdict is reversible error.
    4. Criminal Law — Evidence—Lay Testimony — Dependant’s Sanity —Foundation.
    Lay testimony is admissible on the question of a criminal defendant’s sanity at the time of the criminal act, assuming that a proper foundation can be shown.

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

      Ronald P. Weitzman, for defendant on appeal.
    Before: T. M. Burns, P. J., and N. J. Kaufman and Bashara, JJ.
   T. M. Burns, P. J.

The main issues in this appeal relate to the trial court’s duty to instruct at trial when the defense of insanity is raised before trial. Because of instructional error, we reverse defendant’s conviction for second-degree murder. MCL 750.317; MSA 28.549.

Defendant was originally charged with first-degree murder, MCL 750.316; MSA 28.548, in the death of her husband. The deceased died as the result of multiple gunshot wounds to the head. Before trial, defense counsel filed a notice of defense claiming the shooting was the result of an "irresistible impulse”. The court entered an order for psychiatric evaluation of the defendant at public expense, and later entered an order requiring defendant to undergo an examination at the Center for Forensic Psychiatry relative to the claim of insanity under MCL 768.20a; MSA 28.1043(1).

Both sides presented expert testimony at trial on defendant’s mental condition at the time of the offense. The trial court instructed the jury that the permissible verdicts were guilty of first-degree murder, second-degree murder, or manslaughter and not guilty by reason of insanity. No instructions were given relative to a verdict of guilty but mentally ill or a general not guilty verdict. It does not appear on the record that counsel were given an opportunity to register their objections to the instructions as given. GCR 1963, 516.2.

The standard of legal insanity is now codified in MCL 768.21a(1); MSA 28.1044(1)(1). Although the standards are substantially the same, the statutory standard replaces the common-law standard formerly followed in Michigan. The same act that codified the legal definition of insanity, 1975 PA 180, also introduced the concept of guilty but mentally ill, MCL 768.36; MSA 28.1059, and imposed additional duties on trial courts. The present defendant raises several questions about these newly imposed duties.

Defendant claims the failure of the trial court to instruct on the question of insanity before taking expert testimony on the subject was reversible error, even without a request for such an instruction. We agree. MCL 768.29a(1); MSA 28.1052(1)(1) provides:

"If the defendant asserts a defense of insanity in a criminal action which is tried before a jury, the judge shall, before testimony is presented on that issue, instruct the jury on the law as contained in sections 400a and 500(g) of Act No. 258 of the Public Acts of 1974 and in section 21a of chapter 8 of this act.” (Emphasis added.)

This section imposes a duty on the trial court to prepare the jury for the expert testimony which is to be received. The appropriate instruction is CJI 7:8:01. In this case, the record does not show that any instruction on insanity was given before the expert testimony was received and, therefore, reversible error occurred.

We do not hold that every failure to give CJI 7:8:01 is reversible error. The instruction may be modified to fit the expected testimony in any particular case. However, unless the substantial equivalent of such an instruction is given, the command of the statute will not have been fulfilled and reversal will be required. The policy of the statute recognizes the difficulty of weighing testimony relative to a defendant’s mental condition and criminal responsibility. By the use of mandatory language, the Legislature has concluded that an instruction is essential for a fair disposition of a claim of insanity. We agree with the expression of policy and intend to enforce it by requiring the instruction.

Defendant also claims reversible error in the trial court’s failure to instruct on the possible verdict of guilty but mentally ill. Because of the holding above, we need only note that the statute requires an instruction on guilty but mentally ill whenever an instruction on insanity is warranted by the evidence. MCL 768.29a(2); MSA 28.1052(1X2). See, CJI 7:8:03-7:8:13. This statute was not complied with here. Whether the court must honor a defense request that the instruction on guilty but mentally ill not be given, or whether any error is waived by failing to object to the court’s failure to include such an instruction need not be considered here.

We also note that the jury must be given the opportunity to return a general verdict of not guilty. See, People v Marvin White, 81 Mich App 335, 339, n 1; 265 NW2d 139 (1978). Failure of the trial court to include not guilty as a possible verdict is reversible error.

Only one of the remaining issues needs to be discussed. Twice during the trial the court sustained prosecution objections to questions posed by defense counsel to lay witnesses concerning defendant’s mental condition at the time of the shooting. The trial court seems to have concluded that only expert testimony would be admissible on this point. This is not the state of the law in Michigan. Assuming a proper foundation can be shown, lay testimony is admissible on the question of the defendant’s sanity at the time of the act. People v Cole, 382 Mich 695; 172 NW2d 354 (1969). See also, MRE 701 and State v Lujan, 87 NM 400; 534 P2d 1112 (1975).

Reversed and remanded for new trial.

       For the former standard see People v Martin, 386 Mich 407; 192 NW2d 215 (1971).

       The sections referred to in this statute are MCL 330.1400a; MSA 14.800(400a), defining mental illness and MCL 330.1500(g); MSA 14.800(500)(g), defining mentally retarded. The section also requires an instruction on legal insanity as defined in MCL 768.21a; MSA 28.1044(1). The appropriate instruction is CJI 7:8:01.


author: Bronson, J.

text:
    PEOPLE v COCHRAN
    Docket No. 77-2690.
    Submitted June 6, 1978, at Detroit.
    Decided July 17, 1978.
    Calvin D. Cochran was convicted in Recorder’s Court of Detroit of delivery of heroin, Patricia J. Boyle, J. Defendant appeals contending his joint trial with another defendant who was being tried for an unrelated transaction resulted in manifest injustice. Held:

    An appellate court will consider alleged error in jointly trying two defendants on unrelated criminal transactions to which no objection was raised at trial only where compelling circumstances make it necessary to prevent a miscarriage of justice.
    Affirmed.
    Criminal Law — Appeal and Error — Manifest Injustice-Miscarriage of Justice.
    An appellate court will consider alleged error in jointly trying two defendants on unrelated criminal transactions to which no objection was raised at trial only where compelling circumstances make it necessary to prevent a miscarriage of justice.
    Reference for Points in Headnote
    5 Am Jur 2d, Appeal and Error § 783.

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

      Gerald M. Lorence, P. C., for defendant on appeal.
    Before: Bashara, P. J., and Bronson and C. W. Simon, JJ.

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

   Bronson, J.

Defendant was convicted of two counts of delivery of heroin, MCL 335.341(a); MSA 18.1070(41)(a), by a jury on March 9, 1977. He appeals of right, raising a single issue.

Defendant was originally charged with both delivery of heroin and conspiracy to deliver heroin. He was tried jointly with an alleged coconspirator, Patricia Flowers, who was also tried on an unrelated count of delivery of heroin. Prior to trial, the conspiracy count was dropped. Defendants were then tried jointly. There was no objection or motion for severance.

On appeal, defendant Cochran argues that the joint trial on unrelated transactions resulted in "manifest injustice”, relying on People v Billingslea, 70 Mich App 371; 246 NW2d 4 (1976).

Generally, an issue based on alleged error at trial must be preserved by an objection. Absent an objection, appellate review is precluded except in compelling circumstances to avoid a miscarriage of justice. See, e.g., People v Oliphant, 399 Mich 472, 501; 250 NW2d 443 (1976). See generally MCL 769.26; MSA 28.1096; GCR 1963, 529.1.

We find no miscarriage of justice in the case at bar. Defendant Cochran was represented by his own attorney. He was aware from the beginning of proceedings that there would be a joint trial. Also, the court and his counsel repeatedly emphasized his separateness from codefendant Flowers.

To the extent Billingslea indicates that a joint trial of codefendants on separate offenses is per se reversible error absent an objection, we decline to follow it. As stated above, the general rule in Michigan is that an appellate court will consider error to which no objection was raised only to prevent a miscarriage of justice. Billingslea relied on Federal cases under Federal Rules of Criminal Procedure 8(b) in which there was an objection or motion for severance, while apparently ignoring other Federal cases holding that a failure to object to a joint trial precludes appellate review. See, e.g., United States v Papadakis, 510 F2d 287 (CA 2, 1975), United States v Ross, 464 F2d 1278 (CA 9, 1972), United States v Del Purgatorio, 411 F2d 84 (CA 2, 1969), Cupo v United States, 359 F2d 990 (CA DC, 1966). We believe the better view is that expressed in those cases and the American Bar Association’s Standards Relating to Joinder and Severance (Approved Draft, 1968), § 2.1, and Commentary at 27. I.e., a failure to move for severance precludes appellate review of that issue, except to remedy a miscarriage of justice.

Affirmed.

        People v Slate, 73 Mich App 126; 250 NW2d 572 (1977), cited Billingslea with approval. However, in Slate, the defendant did object at trial to the joinder. Id. at 128.

        See, e.g., United States v Bova, 493 F2d 33, 37 (CA 5, 1974), Ingram v United States, 272 F2d 567, 570-571 (CA 4, 1959).

       Other sections of the ABA Standards Relating to Joinder and Severance (Approved Draft, 1968), in particular, §§ 1.1, 1.2 and 2.2 have been noted with approval by Michigan courts. See People v Tobey, 401 Mich 141, 153 n 17; 257 NW2d 537 (1977), People v Slate, supra, at 136.


author: Danhof, C. J.

text:
    ARNOLD v GENERAL MOTORS CORPORATION
    Docket No. 77-2628.
    Submitted March 7, 1978, at Lansing.
    Decided July 18, 1978.
    Orvell J. Arnold, formerly employed by General Motors Corporation, applied for workmen’s compensation benefits. The hearing referee denied benefits, and on appeal, the Workmen’s Compensation Appeal Board affirmed the denial. Arnold appeals by leave granted, contending that the appeal board did not adequately set forth the testimony it adopted or the standard and reasoning used in reaching its conclusion that Arnold’s obstructive lung disease did not arise in or from the course of his employment, and that there was no evidence from which the appeal board could conclude that he did not carry his burden of proof. Held:

    The proper standard to be applied in a case such as this is that if the claimant is disabled because his employment aggravated, accelerated, or combined with an internal weákness or disease, he is entitled to compensation. The appeal board’s decision gives no indication of what standard the board applied, therefore the case must be remanded for findings of fact and conclusions of law, with a factual and legal basis for the board’s conclusions.
    Remanded.
    1. Workmen’s Compensation — Appeal and Error — Findings of Fact — Understanding of Law.
    The Court of Appeals, when reviewing a decision of the Workmen’s Compensation Appeal Board, must first separate the board’s findings of fact from its understanding of the law controlling the case; to make such review meaningful it is necessary for the board to set out the testimony it adopted, the reasoning it followed, and the standard it applied in reaching its conclusion.
    References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation §§ 616, 631.
    [2] 82 Am Jur 2d, Workmen’s Compensation §§ 290-298.
    [3] 82 Am Jur 2d, Workmen’s Compensation § 631.

      2. Workmen’s Compensation — Disability Due to Disease — Standard.
    The proper standard to be applied to a case in which án employee claims disability from a disease is that if the claimant is disabled because his employment aggravated, accelerated, or combined with an internal weakness or disease, he is entitled to compensation.
    3. Workmen’s Compensation — Workmen’s Compensation Appeal Board — Conclusions—Standard—Remand.
    A case in which the Workmen’s Compensation Appeal Board simply stated its conclusion in the statutory language, without indicating in its opinion the standard which it applied in reaching its conclusion, should be remanded to the board for consideration of the matter under the proper standard.

      Rosenberg & Vigiletti, P. C., for plaintiff.

      Munroe & Nobach, P. C. (by George H. Wyatt, III), for defendant.
    Before: Danhof, C. J., and D. E. Holbrook, Jr. and S. Everett, JJ.

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

   Danhof, C. J.

Plaintiff appeals by leave from a June 10, 1977, order of the Workmen’s Compensation Appeal Board affirming the decision of the referee denying compensation benefits. Plaintiff, on appeal, argues that the Workmen’s Compensation Appeal Board did not adequately set forth the testimony it adopted, or the standard and reasoning it used in reaching its conclusion that plaintiffs obstructive lung disease did not arise out of or in the course of his employment. Plaintiff also contends that there was no evidence from which the Workmen’s Compensation Appeal Board could conclude that plaintiff did not carry his burden of proof.

Plaintiff was employed by defendant as a carpenter from 1957 to 1970. He testified that the atmosphere he worked in was "very foul and a very hazy blue smoky condition”. His work area was unventilated and battery fumes and engine exhaust permeated the area. For approximately ten hours a week, plaintiff repaired wooden floor blocks using tar. This tar emitted smoke and fumes. Plaintiff did not wear any protective mask.

Plaintiff developed severe breathing problems in 1970 which forced him to stop working. On his last day of work, plaintiff was diagnosed as having bronchitis, emphysema, well-controlled diabetes, arteriosclerosis and chronic obstructive lung disease. Only the obstructive lung disease is at issue.

The proper procedure for reviewing workmen’s compensation decisions is set out in DeGeer v DeGeer Farm Equipment Co, 391 Mich 96, 100; 214 NW2d 794 (1974),

"Our first step in reviewing a decision of the Workmen’s Compensation Appeal Board is to separate its findings of fact from its understanding of the law controlling the case. If the Appeal Board correctly understood the law and determined as a matter of fact that appellant did not suffer permanent and total disability, we are bound by law to accept its decision in this case.”

To make this review meaningful, it is necessary for the board to set out the testimony it adopted, the reasoning it followed, and the standard it applied in reaching its conclusion, Frammolino v Richmond Products Co, 79 Mich App 18; 260 NW2d 908 (1977). Although it would be desirable for the board to explicitly designate its findings, reasonings and standards as such, it is sufficient if a review of the record allows one to reasonably conclude from it what testimony, reasoning and standards were, in fact, used.

Even though the board does not explicitly state which testimony it is adopting, a review of the record sufficiently indicates this for the purpose of appellate review. It is apparent from their controlling opinion that the board was relying on the testimony of Dr. Harris that, in most cases, the origin and cause of obstructive lung disease is unknown and that he could not specify the origin of the disease in this particular case. The board also appears to have accepted the doctor’s testimony that many things (such as smoke and fumes) can aggravate this disease and that the disease process will progress even in the absence of aggravating factors. The board’s acceptance of this last evidence is also supported by their recital of the fact that plaintiffs disease continues to progress even though he has stopped work and moved to Arizona. Also, it appears from the board’s opinion that they were relying on the fact that plaintiff had not mentioned his work environment as a possible source of his problems to the doctor before suit, as a factor which undermined his credibility.

However, the reasoning and standards that the board used in reaching its decision are unclear. The board does not give any indication of how it proceeded from the facts it accepted to the conclusion that "plaintiff did not receive a personal injury arising out of and in the course of his employment”. The board merely recites the testimony and then, in the statutory language, states its ultimate conclusion.

If the structure or wording of the opinion gives one any clues as to what standard the board used, they indicate that it applied the wrong standard. The correct legal standard for this case is set out in Deziel v Difco Laboratories, Inc, 394 Mich 466; 232 NW2d 146 (1975). If a claimant is disabled on account of his employment aggravating, accelerating, or combining with some internal weakness or disease, then he is entitled to compensation.

The opinion of the board does not show that it applied this standard. In fact, a reading of the opinion leads one to conclude that the board was applying the causal relation test which was overruled in Deziel, supra. Almost all the testimony referred to relates to the origin of the disease and its progressive nature. If the board did apply the "causal relation” standard, the case must be remanded for new findings. Contrary to defendant’s contention, it makes no difference if the evidence could support the board’s finding under the Deziel standard. The board was entrusted by the Legislature with the duty to assess the evidence under the proper standard and find the facts. That the board might have reached the same conclusion if it had applied the proper standard, does not mean that it necessarily would have. Similarly, while administrative considerations might require that an appellate court defer to the board’s decision on these facts if it had applied the proper standard, these same considerations do not apply to the board when it decides the case. Thus, even though the facts found could support a decision under the proper standard, the proper procedure where the board does not indicate its standard is to remand so the board can consider the issue under the proper standard, Leskinen v Employment Security Comm, 398 Mich 501; 247 NW2d 808 (1976), DeGeer, supra, Frammolino, supra, Lamb v John’s Tavern, 37 Mich App 678; 195 NW2d 278 (1972). As the Court noted in DeGeer, supra, at 100-101:

"Unfortunately, the opinion of the Appeal Board has combined its findings of facts and legal conclusions in such a manner that the opinion may be fairly read to support either appellant’s position that the Appeal Board denied benefits because it interpreted the law to limit recovery to factual situations in which the disability results from a direct injury to the legs, or appellees’ position that no permanent and total loss of industrial use was factually established. Consequently, we must remand this case for further proceedings consonant with the remainder of today’s opinion. * * * .
" 'We cannot * * * review the findings of the board as a question of law if * * * it has done nothing more than to present us with a conclusory finding in the form of the statutory language. We need to know the path the board has taken through the conflicting evidence. The appeal board should indicate the testimony adopted, the standard followed, and the reasoning it used in reaching its conclusion.’ ”

This quotation is particularly applicable to the instant case in which the board simply stated its conclusion in one sentence quoting the statutory language, Leskinen, supra. There is no indication of what standard it applied.

Accordingly, we remand this case to the Workmen’s Compensation Appeal Board with directions that it make findings of fact and conclusions of law determining whether plaintiff suffered a legal injury arising out of or aggravated or accelerated by his employment and that the board assign a factual and legal basis for its conclusions.

We do not retain jurisdiction.


text:
    LEAHY v HENRY FORD HOSPITAL
    Docket No. 77-2752.
    Submitted June 14, 1978, at Detroit.
    Decided July 18, 1978.
    In 1970, Helen E. Theisen entered Henry Ford Hospital for a gallbladder operation. As part of her post-surgical care she was administered an intravenous fluid manufactured by Abbott Laboratories. Helen E. Theisen then contracted a bacterial infection either because the fluid was improperly administered or improperly manufactured, or for some other reason. Helen E. Theisen commenced an action against the hospital and Abbott Laboratories and others. The hospital and its administrators were charged with negligence in allegedly having administered contaminated intravenous fluid. Abbott was originally charged with negligence and breach of warranty for allegedly having manufactured and sold contaminated intravenous fluid. Subsequently Helen E. Theisen died and the complaint was amended on July 18, 1974, to substitute William W. Leahy and David M. Leahy, co-administrators of her estate, as plaintiffs. The complaint was amended a second time, on June 4, 1976, to add a claim of certain alleged statutory violations by defendant Abbott in the marketing of allegedly contaminated intravenous fluid. After being unsuccessful in attempts to obtain copies of all data prepared during the defendant hospital’s investigation, the plaintiffs then sought to amend the complaint at a pre-trial hearing on May 24, 1977, to add an alternative allegation that the bacterial infection contracted by the decedent might also have been caused by negligent administration of intravenous fluid by defendant hospital. This motion to amend the complaint was denied in an order of June 20, 1977, on the ground that it stated a new theory, Wayne Circuit Court, Michael L Stacey, J. Plaintiffs appeal by leave granted. Held:

    The reasons stated on the record by the trial judge for denying the motion were insufficient to constitute findings of fact as to why justice would not be served if the amendment had been allowed. The granting of the motion would not haye resulted in undue prejudice to the defendants.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pleading §§ 309, 317.
    [2] 61 Am Jur 2d, Pleading § 310.

      Reversed and remanded.
    1. Motions — Complaints—Motions to Amend — Discretion—Court* Rules.
    The decision of whether to allow or deny a motion to amend a complaint is within the trial court’s discretion; however, that discretion is not unlimited and in the absence of any apparept or declared reason, the leave sought should be freely given (GCR 1963,118.1).
    2. Motions — Complaints—Motions to Amend — Statement by Trial Court.
    A trial court, in denying a motion to amend a complaint, must state specific reasons why justice would not be served if the amendment were allowed.

      Fischer, Franklin & Ford (by William C. Potter, Jr.), for plaintiffs.

      Kitch & Suhrheinrich, P. C. (by James G. Smith and James P. DeClercq), for defendant Henry Ford Hospital.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Beasley, J.

Plaintiffs appeal by leave from a June 20, 1977, order denying plaintiffs’ motion to amend their second amended complaint. The original complaint iff this action relates back to an incident in 1970. The facts, as taken from the pleadings of the parties, are briefly these. Plaintiffs’ decedent entered defendant hospital during that year for a gali bladder operation. As part of her post-surgical care, decedent was administered intravenous fluid manufactured by defendant Abbott Laboratories. Either because the fluid was improperly administered or improperly manufactured, or for some other reason, decedent contracted a bacterial infection.

It is alleged that other patients at defendant hospital contracted the same type of infection at about the same time, and that the hospital conducted an internal investigation and concluded that the fluid had been administered in a normal fashion. They also allegedly concluded that the fluid was at fault and must have been contaminated when it left the defendant laboratory manufacturer.

The instant action was begun while decedent was still alive and has been carried on by her administrators. Defendant Abbott Laboratories was originally charged with negligence and breach of warranty for allegedly having manufactured and sold contaminated intravenous fluid. Defendant hospital and its administrators were charged with negligence in allegedly having administered contaminated intravenous fluid.

The complaint was first amended on July 18, 1974, after decedent’s death. That amendment substituted the present plaintiffs in her place. The complaint was amended a second time on June 4, 1976, to add a claim of certain alleged statutory violations by defendant laboratories in the marketing of the allegedly contaminated intravenous fluid.

During discovery, counsel for defendant laboratories took the position that the bacteria contracted by decedent was hospital-acquired through improper handling of otherwise uncontaminated fluid. Plaintiffs were unsuccessful in their attempts to obtain copies of all data prepared during the defendant hospital’s investigation of the incident. Leave to appeal the trial court’s denial of plaintiffs’ motion to produce was denied by this Court on May 21, 1976, and by the Supreme Court on May 6, 1977.

Plaintiffs then sought to amend the complaint at a pre-trial hearing on May 24, 1977, to add an alternative allegation that the bacteria contracted by decedent might also have been caused by negligent administration of intravenous fluid by defendant hospital. The motion was denied in an order of June 20, 1977, on the ground that it stated a new theory. From that denial, plaintiffs appeal by leave granted.

On appeal, plaintiffs contend that there was no showing that allowing the amendment of the complaint would prejudice defendants, and, therefore, the trial court erred in denying plaintiffs’ motion to amend. We would agree.

The decision of whether to allow or deny a motion to amend a complaint is within the trial court’s discretion. However, that discretion is not unlimited, and " 'in the absence of any apparent or declared reason — 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 amendment, etc. — the leave sought should, as the rules require, "freely given” ’ ”. In denying a motion to amend, the court must state specific reasons why justice would not be served if the amendment were allowed.

In the instant case, the trial court explained his reason for denying plaintiffs’ motion to amend as follows:

"THE COURT: It seems to me you are in effect starting a whole new lawsuit, a whole new cause of action and these matters have to be resolved some place.
."I will deny your motion.”

We hold that the above statement is not sufficient to constitute findings of fact as to why justice would not be served if the amendment had been allowed. Nor are we convinced from a review of the record that granting of the motion would have resulted in undue prejudice to defendants. The plaintiffs’ motion to amend the second amended complaint should have been and is hereby granted. The case is remanded to the trial court for further proceedings.

Reversed and remanded.

        Simonelli v Cassidy, 336 Mich 635; 59 NW2d 28 (1953).

         Ben P Fyke & Sons v Gunter Company, 390 Mich 649, 656; 213 NW2d 134 (1973), quoting from Foman v Davis, 371 US 178, 182; 83 S Ct 227, 230; 9 L Ed 2d 222, 226 (1962), GCR 1963, 118.1.

        Goldsmith v Moskowitz, 74 Mich App 506; 254 NW2d 561 (1977).

        Goldsmith v Moskowitz, supra.

        Grove v Story Oldsmobile, Inc, 31 Mich App 613; 187 NW2d 923 (1971), Matson v Soronen, 57 Mich App 190; 226 NW2d 52 (1974), lv den, 394 Mich 762 (1975).