text:
    GOLDSTEIN v KERN
    Docket No. 77-1769.
    Submitted March 13, 1978, at Detroit.
    Decided April 18,1978.
    Donald L. Goldstein brought a complaint against Samuel Kern alleging breach of an agreement to form a partnership. Defendant answered the complaint and moved for a more definite statement, which motion was granted. Plaintiff did not file a more definite statement but did file a more detailed complaint and a bill of particulars. The Oakland County Circuit Court, William J. Beer, J., then orally granted defendant’s motion for summary judgment for failure to state a claim and failure to obey the court’s order requiring a more definite statement. Plaintiff then requested leave to file an amended complaint prior to the signing of the summary judgment order. The request was denied on the basis that summary judgment had already been granted. Plaintiff appeals. Held:

    Summary judgment for failure to state a claim was not appropriate on the count seeking damages for loss of partnership profits, since the amount of these damages, if any, is a question of fact and not an appropriate subject for summary judgment. Since the defendant responded to the plaintiff’s complaint prior to his motion for a more definite statement he is precluded from filing that motion. The plaintiff should be allowed to file an amended complaint.
    Reversed and remanded.
    1. Judgment — Time of Effect — Signing—Oral Pronouncements.
    A judgment normally does not become effective until signed; in order for an oral pronouncement to become binding as a judgment, the terms of the judgment must be read into the record, and the judge must declare that such statement is to be given immediate effect as a judgment without further action or signing of a written judgment.

      References for Points in Headnotes

       46 Am Jur 2d, Judgments §§ 6, 55, 70.

       56 Am Jur 2d, Motions, Rules, and Orders §§ 19, 42, 44.

       1 Am Jur 2d, Actions §§ 62-64. 45 Am Jur 2d, Interference § 39.

       45 Am Jur 2d, Interference §§ 39, 45 et seq. 48 Am Jur 2d, Labor and Labor Relations §§ 45-47.

       48 Am Jur 2d, Labor and Labor Relations § 9. 53 Am Jur 2d, Master and Servant § 34.

       73 Am Jur 2d, Summary Judgment § 26.

       61 Am Jur 2d, Pleading §§ 201, 354.

      2. Motions — Complaints—Amendment—Deniai^-Court Rules.
    Motions to amend a complaint must be freely given when justice so requires; a denial of such a motion, although discretionary, must be supported by specific findings as to why justice would not be served by the amendment (GCR 1963,118.1).
    3. Contracts — Tortious Interference — Complaints.
    A plaintiff fails to state a cause of action for the tortious interference with a contractual relationship where he never alleges in his complaint that he actually entered into the contractual relationship allegedly interfered with.
    4. Action — Economic Advantage — Employment—Third Parties— Employers — Employees.
    A plaintiff has no cause of action where he alleges that the defendant interfered with the plaintiff’s prospective economic advantage by inducing the plaintiff away from employment with a third party; such a cause of action rests with the third person losing the services of the one induced and not with the person induced.
    5. Action — Employers—Employees—Discharge—Contracts—Detriments — Reliance.
    A plaintiff-employee has no cause of action for wrongful discharge from employment where his employment contract was terminable at will; the employee’s detrimental reliance in foregoing another employment opportunity with a third party in order to accept offered employment with the defendant-employer does not estop the employer from terminating the employment contract.
    6. Judgment — Summary Judgment — Dissolution of Partnership— Damages — Questions of Fact.
    The amount of damages caused by the wrongful dissolution of a partnership is a question of fact and not an appropriate subject for summary judgment for failure to state a claim in an action where the plaintiff seeks damages for loss of partnership profits.

      7. Motions — More Definite Statements — Time to File — Court Rules.
    A party who is objecting to an opposing party’s pleading must file a motion for a more definite statement prior to responding to the pleading, otherwise the party will be precluded from filing such a motion (GCR 1963,115.1).

      Hiller, Howard, Larky & Hoekenga, for plaintiff.

      Lawrence J. Stockier (by Barry D. Herbach), for defendant.
    Before: R. M. Maher, P. J., and V. J. Brennan and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff appeals from an order granting defendant’s motion for summary judgment for failure to state a claim and failure to obey an order of the court requiring plaintiff to file a more definite statement.

The case arises out of the breach of an agreement to form a partnership. According to plaintiffs complaint, he had been offered employment with a competitor of defendant. When he told defendant he intended to accept the offer, defendant offered plaintiff a partnership interest in the new store he was opening. Plaintiff accepted, and the parties signed an agreement to form a partnership upon the purchase of the store. Plaintiff turned down the offer from defendant’s competitor. After the store had been opened approximately 6 months, defendant, without consulting plaintiff, sold the store and terminated plaintiffs employment.

Plaintiff then commenced this lawsuit. The complaint was filed, defendant answered and moved for a more definite statement. The motion was granted. Plaintiff did not file a more definite statement but did file a more detailed complaint and a bill of particulars. Defendant moved for summary judgment which the trial court orally granted at the close of the hearing. Before the order was signed, however, plaintiff requested leave to file an amended complaint. The trial court denied the request, stating that summary judgment had already been granted. Plaintiff was informed that his sole basis for relief was a motion to set aside the judgment. That motion was also denied.

The first issue in this case is whether summary judgment had been granted before plaintiff made the motion to amend his complaint. Although a judgment may become effective merely upon its oral pronouncement by the trial court, the normal rule is that a judgment does not become effective until signed. Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977). In order for an oral pronouncement to become binding as a judgment, the terms of the judgment must be read into the record, and the judge must declare that such statement is to be given immediate effect as a judgment without any further action or signing of a written judgment. Tiedman, at 577. A review of the record in this case clearly shows that the trial court’s oral pronouncement did not possess these characteristics. Summary judgment, therefore, did not become effective before plaintiff moved to file, his amended complaint.

Motions to amend must be "freely given when justice so requires”. GCR 1963, 118.1. Moreover, a denial of such a motion, although discretionary, must be supported by specific findings as to why justice would not be served by the amendment. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). No such findings were given in the present case. Therefore, the motion to amend the complaint should have been, and hereby is, granted. GCR 1963, 820.1(7).

An examination of this amended complaint, however, discloses that summary judgment is appropriate for various of the counts presented.

Count II, alleging that defendant tortiously interfered with plaintiff’s contractual relationship, fails to state a cause of action because plaintiff never alleged that he actually entered into a contract with defendant’s competitor. There was no contract: consequently, defendant could not have tortiously interfered with it.

Count III, alleging interference with plaintiff’s prospective economic advantage, also does not state a claim. The cause of action in such a claim rests not with the person induced, but with the person losing the services of the one induced. See Restatement of Torts, § 766, Comment k. Therefore, defendant’s competitor might conceivably have a cause of action against defendant for inducing plaintiff away from him, but plaintiff as the party induced, not the party protected, has no cause of action under this doctrine.

Plaintiff has no cause of action for wrongful discharge. The employment contract was terminable at will. An employee’s detrimental reliance in foregoing another employment opportunity in order to accept the offered employment does not estop the employer from terminating his employment contract. The action of plaintiff in rejecting the offer of employment from defendant’s competitor was only a necessary incident in placing himself in a position to accept defendant’s offer. Lynas v Maxwell Farms, 279 Mich 684; 273 NW 315 (1937). Therefore, summary judgment is appropriate on the wrongful discharge count.

Summary judgment is not appropriate, however, on Counts I and V of plaintiff’s complaint which seek damages for loss of partnership profits. The parties entered into an agreement to become partners upon the purchase of the clothing store mentioned in the agreement. Once the store was purchased, the partnership came into existence. Defendant’s unilateral sale of the store, the sole property of the partnership, caused its wrongful dissolution, making defendant liable to plaintiff for damages caused by the dissolution. The amount of these damages, if any, is a question of fact and not an appropriate subject for summary judgment for failure to state a claim.

Finally, the defendant responded to plaintiff’s complaint before moving for a more definite statement. GCR 1963, 115.1 clearly states that such motions must be made prior to responding to the objectionable pleading. Having failed to do this, defendant is precluded from filing the motion, and the granting of the motion by the trial court was therefore erroneous and will not serve as a basis for summary judgment.

Plaintiff is allowed to file his amended complaint. We reverse and remand for proceedings consistent with this opinion.

       Defendant attempts to distinguish Tiedman, supra, by claiming that it involved a consent judgment which is not a judgment act but an act between the parties needing consent as to substance and form before becoming valid. See, Norton Shores v Carr, 59 Mich App 561; 229 NW2d 848 (1975). Defendant contends that although a written judgment was necessary in Tiedman because of its consensual nature, no such document is needed in the present case which involves a judicial decree. Defendant misconstrues Tiedman. Tiedman involved more than a consensual property settlement. Tiedman held that the divorce itself was not effective without a written judgment. Although property settlements may be consensual, the act of decreeing the parties divorced is not. The parties may not merely file for divorce and then consent to a divorce judgment without participation of the court. A decree of divorce needs judicial imprimatur to be effective. See GCR 1963, 728.2(2). Therefore, the judgment in Tiedman related to a judicial act, not merely an act between the parties. As such it is not distinguishable but instead controlling.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    McLAUGHLIN v GREAT LAKES CONTRACTING CO. OF DETROIT
    Docket No. 77-1994.
    Submitted March 14, 1978, at Detroit.
    Decided April 21, 1978.
    Edward J. McLaughlin brought an action for damages in Macomb Circuit Court against Great Lakes Contracting Co. of Detroit alleging negligence in the maintenance of a roadway which plaintiff claimed was subject to defendant’s supervision for construction purposes. The basic issue at trial was whether defendant was negligent in failing to place barricades or post signs around a pier cap which defendant left on a service drive to a freeway then under construction. Defendant denied any negligence and asserted the affirmative defense of contributory negligence. Judgment of no cause of action for defendant, Edward J. Gallagher, J. Plaintiff appeals. Held:

    1. The exclusion of evidence which was relevant for the purpose of establishing defendant’s duty to the general public, whether the risk of harm it created was reasonable or unreasonable and the exclusion of testimony which would lend weight to defendant’s assertion of contributory negligence is inconsistent with substantial justice and mandates reversal where the Court of Appeals is unable to determine whether a jury verdict was based on a defendant’s lack of negligence or contributory negligence of a plaintiff.
    2. Exclusion of evidence of subsequent repairs constitutes reversible error where the evidence is otherwise relevant, would not offend policy considerations in favor of encouraging repairs and the remedial action is not taken at the direction of a party plaintiff.
    Reversed and remanded for a new trial.
    References for Points in Headnotes

       57 Am Jur 2d, Negligence § 69.

       57 Am Jur 2d, Negligence §§ 58, 94.

       57 Am Jur 2d, Negligence §§ 67, 68, 78.

       57 Am Jur 2d, Negligence § 295 et seq.

       29 Am Jur 2d, Evidence §§ 275, 628.
    Admissibility of evidence of repairs, change of conditions, or precautions taken after accident. 64 ALR2d 1296.

      1. Negligence — Unreasonable Risk — Foreseeability—Degree of Care — Possible Consequences.
    An unreasonable, foreseeable risk of harm must exist in order for there to be negligence and in determining the degree of care required, both the extent of the possible consequences caused by the risk must be considered as well as its probability.
    2. Negligence — Reasonableness—Foreseeability—Jury Question.
    Reasonableness, as foreseeability, is normally a question for the jury to determine in negligence actions.
    3. Negligence — Standard of Care — Evidence—Prudent Man— Reasonable or Unreasonable Risks.
    The standard of care which is required in any negligence case is that of a reasonably prudent man acting under the same or similar circumstances and it is error to exclude evidence which is relevant to establish the extent of duty which a defendant owes to the general public or whether the risk of harm created by the defendant was reasonable or unreasonable.
    4. Negligence — Contributory Negligence — Jury Verdict — Substantial Justice — Appeal and Error — Court Rules.
    The exclusion of testimony which lends weight to a defendant’s assertion of contributory negligence is inconsistent with substantial justice and reversal is mandated where the Court of Appeals is unable to determine whether a jury verdict was based on lack of negligence of the defendant or due to contributory negligence of the plaintiff (GCR 1963, 529.1).
    5. Negligence — Evidence—Subsequent Repairs — Admissibility.
    Generally, evidence of subsequent repairs is inadmissible to show negligence; however, such a policy is not present where imposition of liability is not sought against the person taking the remedial action.
    6. Negligence — Evidence—Subsequent Repairs — Admissibility— Error.
    The admission of evidence of subsequent repairs to prove negligence is limited to situations where: (1) evidence of the subsequent remedial action is otherwise relevant, (2) admission of the evidence would not offend policy considerations in favor of encouraging repairs, and (3) the remedial action is not undertaken at the direction of a party plaintiff; a trial court’s exclusion of evidence of subsequent remedial action where all three of these requirements are met constitutes reversible error.

      Lopatin, Miller, Bindes, Freedman & Bluestone (by Michael Gagleard), for plaintiff.

      Sommers, Schwartz, Silver, Schwartz & Tyler, for defendant.
    Before: R. M. Maher, P. J., and V. J. Brennan and N. J. Kaufman, JJ.
   Per Curiam.

Plaintiff sued defendant alleging negligence in the maintenance of a roadway which plaintiff claimed was subject to defendant’s supervision for construction purposes. Defendant answered plaintiffs complaint denying negligence and asserting the affirmative defense of contributory negligence. At the. conclusion of the trial a verdict of no cause of action in favor of defendant was reached and plaintiff appeals as a matter of right.

The basic issue at trial was whether defendant was negligent in failing to place barricades or post signs around a "pier cap” which defendant left on 11 Mile Road on October 24, 1972. Apparently, this section of highway was a service drive to a freeway then under construction. A pier cap is a structure set on columns to support the beams for a bridge. This pier cap was made from reinforced steel, was 40 inches high, three to four feet wide and 40 feet in length.

It was plaintiffs theory that defendant should have placed barricades around the pier cap when they knew or should have known that vehicles were traveling on that portion of the pavement.

J. Frederick Charbonneau, a resident of the area where the accident occurred, testified that there were no barrels near the site of the accident. He stated that Meredith Street was barricaded the night of the accident and was unsure about Grobbel and Milton Streets. He thought that Haverhill, another street leading onto 11 Mile Road, was open. He testified that there was plenty of room off the road for the pier cap.

A special record was made regarding vehicular traffic on 11 Mile Road on days prior to the accident. The special record indicates that on days prior to the accident, vehicles (other than construction vehicles) had used the roadway section where the accident later took place. Three residents of the area, J. Frederick Charbonneau, Dorothy Charbonneau and Christine Berent all testified that they saw vehicles, other than construction vehicles, on the road where the accident took place, at times previous to the date of the accident. This evidence was barred by the trial court. Plaintiff argues that this ruling constituted reversible error. We agree.

In order for there to be negligence, there must exist an unreasonable, foreseeable risk of harm. Samson v Saginaw Professional Building, Inc, 393 Mich 393, 404; 224 NW2d 843 (1975). In determining the degree of care required, both the extent of the possible consequences caused by the risk must be considered, as well as its probability. Samson, supra at 407. The Supreme Court acknowledged that:

"reasonableness, as foreseeability, is normally a question for the jury to determine.” 393 Mich at 407.

We hold that the trial judge erred in excluding from jury consideration the evidence of prior trafile on the roadway. If motorists had previously used the roadway, the chances that they would do so on future dates, including the date of plaintiffs accident, is increased. This evidence thus tends to prove that defendant knew or should have known that vehicles were using the section of roadway where the accident took place and is relevant for purposes of establishing the extent of duty which defendant owed to the public generally. Or put another way, this evidence is relevant for purposes of establishing if the risk of harm created by leaving the pier cap on the roadway was reasonable or unreasonable. The standard of care which is required in any negligence case is that of the "reasonably prudent man acting under the same or similar circumstances.” Wamser v N J Westra & Sons, Inc, 9 Mich App 89, 93; 155 NW2d 871 (1967).

Therefore, the exclusion of this testimony lent weight to defendant’s assertion of contributory negligence. As it is impossible for this Court to determine whether the jury verdict was based on lack of negligence of defendant or due to contributory negligence of plaintiff, we find this exclusion to be "inconsistent with substantial justice”. GCR 1963, 529.1. Reversal is therefore mandated.

A separate record was also taken of testimony regarding precautionary measures taken after the date of the accident. Mr. Charbonneau testified that within a day or two of the accident, a barricade and flashing arrow were put on 11 Mile Road. Ms. Charbonneau testified that the pier cap was taken off the road the next day and that 11 Mile Road was totally blocked at Haverhill. Ms. Berent also stated that 11 Mile Road was blocked off after the date of the accident. The trial court refused to allow this evidence to go before the trier of fact.

On appeal and at trial, both parties conceded that these subsequent precautionary measures were performed by Midwest Bridge Co., who is no longer a party to this litigation.

We note that, as a general rule, evidence of subsequent repairs is inadmissible to show negligence. Grawey v Board of Road Commissioners of the County of Genesee, 48 Mich App 742, 749; 211 NW2d 68 (1973), lv den 390 Mich 814 (1973). However, in Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976), thé Supreme Court held that such a policy is not present "where imposition of liability is not sought against the person taking the remedial action”. Denolf, supra at 667. The admission of such evidence was permitted in Denolf to prove negligence, but was limited to situations where: 1) evidence of the subsequent remedial action is otherwise relevant; 2) admission of the evidence would not offend policy considerations in favor of encouraging repairs; and 3) the remedial action is not undertaken at the direction of a party plaintiff.

As all three of these requirements are met in the present case, the trial court’s exclusion of evidence of subsequent remedial action also constitutes reversible error.

To assist the trial court on retrial, we note that plaintiffs attorney attempted to ask a hypothetical question of the State Highway Department engineer on this construction project. The question’s assumption, that either Milton or Grobbel Streets was left open, was based upon the witness’s own testimony and upon plaintiffs testimony that he had turned from a side street onto 11 Mile Road without encountering any barricades. The trial court sustained defendant’s objection to the question on the ground that there was no evidence supporting the assumption that either Grobbel or Milton Streets were open to traffic.

Although it was not conclusively proven whether Milton or Grobbel Streets provided access to 11 Mile Road, the evidence would tend to establish that such was the case. We hold that plaintiff is correct in contending that the name of the street which was open is actually irrelevant, as plaintiffs case is predicated upon defendant’s duty to barricade the pier cap, assuming that access to the pier cap was possible from one of the side streets.

Reversed and remanded for a new trial.

       Midwest Bridge Co. was originally sued by plaintiff but it settled with plaintiff.

       The question that plaintiff’s attorney attempted to ask Robert Coe was:
      "I want you to assume that on the 24th day of October, 1972, that either Milton or Grobbel were open, that traffic could get on the service drive, and that a subcontractor had built this pier cap, using reinforcing rods, and had completed the pier cap at approximately 4:30 in the afternoon, and according to the foreman of the subcontractor, put one barrel at the northeast end of the pier cap, without any blinking lights, just a striped barrel. If you saw that condition to exist on the 24th day of October, 1972, when you left the project, what would you do, if anything, as a project engineer?”


author: N. J. Kaufman, J.

text:
    PEOPLE v JOHNSON
    Docket No. 26747.
    Submitted November 3, 1977, at Grand Rapids.
    Decided May 8, 1978.
    Jerry L. Johnson was convicted of one count of possession with intent to deliver marijuana and one count of possession with intent to deliver phencyclidine in the Muskegon Circuit Court, Charles A. Larnard, Jr., J. Defendant appeals. Held:

    The requirement of unanimous jury agreement on a defendant’s innocence of a greater charge before discussion of a lesser charge is permitted is coercive, unduly restrictive and results in reversible error.
    Reversed and remanded.
    1. Criminal Law — Greater and Lesser Charges — Jury Agreement —Coercion.
    The requirement of unanimous jury agreement on a defendant’s innocence of a greater charge before discussion of a lesser charge is permitted is coercive, unduly restrictive and results in reversible error.
    2. Criminal Law — Informants—Identity—Disclosure—Prosecutors — Relevance—Materiality—Search Warrants.
    A prosecutor is justified in withholding an informant’s identity where disclosure is neither relevant nor material to a fair resolution of the case; therefore, the withholding of such information may be justified, in a trial for possession with intent to deliver marijuana and phencyclidine, where the defendant’s sole reason for requesting the production of the informant was to challenge the truth of the information supplied to the police and used to obtain a search warrant.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 185, 187.

       21 Am Jur 2d, Criminal Law § 332.
    81 Am Jur 2d, Witnesses § 294.
    Accused’s right to, and prosecution’s privilege against, disclosure of identity of informer. 76 ALR2d 262.

       25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 45, 47.
    29 Am Jur 2d, Evidence §§ 253, 260.

       25 Am Jur 2d, Drugs, Narcotics, and Poisons §§ 46, 47.

       81 Am Jur 2d, Witnesses § 49.

       75 Am Jur 2d,' Trial §§ 277, 643.

       5 Am Jur 2d, Appeal and Error § 885.

       5 Am Jur 2d, Appeal and Error §§ 882, 883.

      3. Drugs and Narcotics — Appeal and Error — Evidence—Controlled Substances Act — Probative Value — Prejudice— Statutes.
    A trial court erred by allowing evidence of a large number of tablets containing a substance not proscribed under the Controlled Substances Act in a trial for possession with intent to deliver marijuana and phencyclidine, substances proscribed under the act, where the probative value of that evidence did not outweigh the attendant prejudice to the defendant (MCL 335.301 et seq.; MSA 18.1070(1) et seq.).

    4. Drugs and Narcotics — Evidence—Marijuana Paraphernalia— Photographs — Admissibility.
    The admission of marijuana paraphernalia and photographs which depicted the paraphernalia was error in a trial for possession with intent to deliver marijuana and phencyclidine; generally, evidence regarding the use of marijuana does not have a sufficient nexus to a charge of possession with intent to deliver to render it admissible.
    5. Attorney and Client — Trial—Witnesses—Privilege.
    It is improper for any attorney to call a witness knowing that he will claim a valid privilege not to testify.
    6. Criminal Law — Instructions to Jury — Theory of Case — Evidence — Misstatements of Law.
    A defendant is entitled to an instruction on his theory of the case, provided there is evidence on the record to support that theory; a proposed instruction on the defendant’s theory of the case may be refused where it contains a misstatement of the law.
    7. Appeal and Error — Criminal Law — Trial—Directed Verdict— Prima Facie Case — Elements of Crime — Evidence.
    An appellate court tests the correctness of the denial of a motion for a directed verdict by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty; a directed verdict is precluded where a prima facie case is established by the prosecutor presenting evidence to support each element of the crime charged.

      8. Appeal and Error — Criminal Law — Standard of Review — Evidence — Sufficiency—Jury Verdict of Guilty — Reasonable Doubt.
    The standard of appellate review to be applied in a case where the defendant claims there was insufficient evidence to support the jury verdict of guilty is: would the evidence presented by the prosecution justify a reasonable person in concluding that all elements of the crime were established beyond a reasonable doubt.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Gerald D. Warner, Prosecuting Attorney, David L. Bossenbroek, Senior Assistant Prosecutor, and Gerald W. Gibbs, Assistant Prosecutor, for the people.

      Glotta, Adelman, Dinges, Davis, Middleton, Riley & Murphy, P. C., for defendant.
    Before: R. M. Maher, P. J., and M. F. Cavanagh and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Defendant was convicted of one count of possession with intent to deliver marijuana and one count of possession with intent to deliver phencyclidine, in accordance with MCL 335.341(1); MSA 18.1070(41X1). Sentenced to three years probation (the first 90 days to be spent in jail) and assessed $500 in costs, defendant appeals, raising numerous issues.

On January 16, 1975, Muskegon police officer Paul R. Lodholtz swore that an unidentified informant, who had allegedly relayed reliable information in previous undisclosed cases, had told him that he had seen a large quantity of marijuana at 2144 Apple Avenue in Muskegon. The informant had also allegedly observed two kinds of mescaline pills. On the basis of that information, a search warrant was issued.

That same day, a search was conducted. The police found 153 ounces of marijuana and 184 phencyclidine pills. A ledger book and triple beam scale were also found. Defendant’s name was on the back of the scale. No mescaline was found.

Prior to trial, defense counsel argued a suppression motion. It was denied and the case was ordered to trial.

On the day of the trial, prior to the selection of the jury, defense counsel objected to the fact that all 46 proposed exhibits were exposed to view on a table in the courtroom. The trial court ordered the table removed until the jury was selected.

Prior to selection of the jury, the prosecution moved to indorse Gloria Thurkettle as a witness, arguing that she was formerly a codefendant and allegedly an occupant of 2144 Apple Avenue. Over objection by defense counsel, the trial court granted the motion.

After the jury was selected, the table with the exhibits was returned to the courtroom. Defense counsel renewed his objection to the display as prejudicial. The trial court, noting that the exhibits were covered, denied the renewed objection.

During trial, Gloria Thurkettle was called as a witness by the prosecution. She refused to testify on Fifth Amendment grounds. The trial court ordered Ms. Thurkettle imprisoned until she decided to testify, citing her behavior as contemptuous.

At the conclusion of the prosecution’s case, defense counsel moved for a directed verdict. The motion was denied.

Prior to instructing the jury, the trial court noted defense counsel’s objection to its refusal to give a requested instruction on nonexclusive possession of the premises at 2144 Apple Avenue, pursuant to People v Davenport, 39 Mich App 252; 197 NW2d 521 (1972).

The trial court instructed the jury, in part, as follows:

"If you find the Defendant guilty of Count I, your foreman or forelady will state, we, the jury, find the Defendant guilty as charged on Count I.
"If you find the Defendant not guilty on Count I, your foreman or forelady will state, we, the jury, find the Defendant not guilty on Count I.
"As to Count II, if you find the Defendant guilty of Count II, your foreman or forelady will rise and state, we, the jury, find the Defendant guilty as charged on Count II.
"If you find the Defendant not guilty on Count II, your foreman or forelady will rise and state, we, the jury, find the Defendant not guilty on Count II.
"Then, if necessary you may go to the matter of a lesser included offense.
"First possession of marijuana, and second the possession of PCP or phencyclidine.
"It is actually a matter of course that if you find the Defendant guilty of Count I that is as far as you need to go.
"If you find the Defendant guilty of Count II that is as far as you need to go.
"If you find the Defendant not guilty of either one or both Counts I and II, then you may proceed to the lesser included offenses, and report your verdict on those.”

On appeal, defendant contends that the trial court’s instructions coerced the jury into determining defendant’s guilt or innocence on the principal charge before proceeding to consider his culpability on lesser included offenses.

To determine the validity of defendant’s contention, it is necessary to remember that coercion in deliberation instructions may be either express or implied and that this Court has treated the two types in wholly different manners.

The issue of express coercion was settled by People v Ray, 43 Mich App 45; 204 NW2d 38 (1972). In that case, the jury broke from deliberations and asked for guidance on the deliberation procedure. In response to a juror’s question, "If we insist — if someone insists upon taking a vote on the first charge, do we have to keep voting on that charge?”, the trial court answered, "Well you have to either keep voting on the first charge until you either all find him not guilty, or all find him guilty”.

This Court reversed, explaining:

"While the trial court was certainly required to say something to the jury when it requested assistance in conducting its deliberations, the requirement of unanimous agreement on defendant’s innocence of the greater charge before discussion of the lesser charges is permitted is coercive, unduly restrictive and reversible.” 43 Mich App at 50.

The problem of implied coercion has been harder to solve. Initially, it must be asked whether implied coercion should be encouraged. Although one opinion, the majority in People v Ronald L Johnson, 74 Mich App 250; 253 NW2d 722 (1977), suggests its desirability, this Court on three occasions has specifically discouraged impliedly coercive instructions. See People v Embry, 68 Mich App 667; 243 NW2d 711 (1976), People v Waldron, 64 Mich App 648; 236 NW2d 732 (1975), People v Freeman, 57 Mich App 90; 225 NW2d 171 (1974).

Any concern over implied coercion, however, must be tempered by the knowledge that due to the limitations of the spoken word, it is inevitable that some ordering of offenses will occur. One offense will always come first.

Thus, armed with the realization that no implicit coercion is an unattainable goal, but condemning the concept of implicit coercion, this Court has formulated two ways to deal with the problem.

One method is to subjectively examine instructions on a case-by-case basis to determine the potential for implicit coercion. In People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974), the trial court instructed:

" 'If you find that he did commit the act * * * of rape * * * beyond a reasonable doubt, * * * then, he is guilty of the crime charged. Before you can go or consider the lesser included offenses, you must first then determine that he did not commit that crime. If you consider that and fínd and are satisfied from your deliberations that he did not commit the crime as charged, then you can consider the lesser included offenses and only then. That would be the assault with intent to commit rape, assault and battery, or simple assault. If you are not satisfied beyond a reasonable doubt that he committed any of those acts, then, the verdict would be not guilty.’ (Emphasis added.)” 54 Mich App at 394.

This Court reversed, first noting that the prosecution "[t]acitly conced[ed] that the instruction given in this case is basically identical to that given in Ray”. 54 Mich App at 395. As to the purpose of People v Ray, supra, this Court explained:

"Ray seeks to prevent those jurors opposed to a defendant’s conviction on a higher charge from being coerced into voting for conviction by an instruction requiring acquittal of that higher charge before lesser offenses can even be considered. For example, if the jury is considering the charge of assault with intent to commit rape, and juror A is opposed to conviction, he may be coerced into changing his vote to guilty by the prospect that the lesser included offenses of assault and battery and simple assault will not even be considered unless all the remaining 11 jurors agree to acquit the defendant of assault with intent to commit rape.” 54 Mich App at 396.

Of course, the problem occurs when the instruction does not define the phrase "acquittal of the higher charge”, affirmatively (in terms of a finding of not guilty), but rather defines it negatively (in terms of not finding defendant guilty of the higher charge). The negative way is thus ambiguous to the extent that it is unclear whether the jurors realize their options if they are deadlocked on the higher charge.

To solve the difficulty with the ambiguous type of instruction cited above, this Court has adopted the second method alluded to earlier. Consistently, this Court has read People v Ray, supra, literally. This procedure, aptly dubbed "a sterile 'magic language’ approach” by Judge T. M. Burns, in his dissent to People v Ronald L Johnson, supra, "tends to disregard the effect of improper instructions by simply scanning them for the word 'unanimous’ ”. 74 Mich App at 258.

We agree with the Johnson dissent that the "magic language approach” has not proven to be a workable test. Under its rubric fall cases where the trial court did affirmatively try to avoid the possibility of coercion, e.g., People v Morton, 77 Mich App 240; 258 NW2d 193 (1977), People v Don Francisco Lopez, 65 Mich App 653; 237 NW2d 599 (1975); but, there are other cases where the "magic language” test was manipulated to reach a desired result, e.g, People v Waldron, 64 Mich App 648; 236 NW2d 732 (1975), People v Walker, 58 Mich App 519; 228 NW2d 443 (1975). Most significantly, the test has never substantively analyzed the most common yet vexing instruction, "If you do not find defendant guilty, then you may consider lesser-included offenses”.

Generally, it would be best if trial courts added an admonition, as in People v Morton, supra, that it is not imposing any order of deliberation on the jury. However, we need not formulate any such rule of law in this case because we find that the assailed instructions are substantially similar to those found reversibly erroneous in People v Summers, 73 Mich App 411; 251 NW2d 311 (1977). Therefore, we reverse defendant’s conviction and remand for a new trial. Accord: People v Hurst, 396 Mich 1, 10; 238 NW2d 6 (1976).

To avoid unnecessary errors on retrial, where warranted, we will consider defendant’s other claims of error.

Defendant contends that the trial court improperly denied defendant’s motions to quash the information, suppress the evidence, or, in the alternative, release the name of the informant who provided the police with the information used to obtain a search warrant for the defendant’s residence. People v Davis, 72 Mich App 21; 248 NW2d 690 (1976), and People v Kinnebrew, 75 Mich App 81; 254 NW2d 662 (1977), dispose of defendant’s argument.

Here, defendant did not claim that the informant had exculpatory evidence, as was the case in People v Stander, 73 Mich App 617; 251 NW2d 258 (1976), where this Court reversed the trial court’s prohibition against having the informant’s identity revealed. Rather, defendant’s sole reason for requesting the production of the informant was to challenge the truth of the information supplied to the police and used to obtain the search warrant. Under Davis, supra and Kinnebrew, supra, the informant need not be produced under such circumstances.

Defendant also argues that the trial court erred by allowing into evidence a large number of tablets containing ephedrine, a substance not proscribed under the Controlled Substances Act, MCL 335.301 et seq.; MSA 18.1070(1) et seq. With this contention, we agree.

Without passing directly on the issue of whether the evidence constitutes proper "similar acts” testimony, it is sufficient to note that the probative value of the evidence does not outweigh the attendant prejudice to defendant. People v McCarver, 72 Mich App 311, 318-319; 249 NW2d 403 (1976). See generally, People v Wilkins; 82 Mich App 260; 266 NW2d 781 (1978).

Similarly, the admission of marijuana paraphernalia and photographs which depicted the paraphernalia was error on the part of the trial court. Generally, evidence regarding the use of marijuana does not have a sufficient nexus to a charge of possession with intent to deliver to render it admissible. As noted in Wilkins, supra, at n 4:

"The result of admitting such evidence without the requisite connection with the charged offense is to admit precisely the kind of evidence condemned in the cases quoted at the beginning of this discussion, i.e., evidence relevant only to the defendant’s propensity to commit the offense. McCormick, Evidence (2d ed), § 190, at 453, Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv L Rev 988, 1007 (1938).”

The prosecution did not make the required showing of "special circumstances of the prior bad act which tend to prove [defendant’s motive, intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act.]” People v Wilkins, supra, 82 Mich App at 267.

Defendant’s other objections as to the admissibility of certain exhibits are without merit.

Defendant also complains that the trial court erred by allowing the jury to observe the prosecution’s proposed exhibits — particularly a large quantity of orange tablets later ruled inadmissible —before a determination as to their admissibility had been made. On retrial, the trial court is directed to People v Brisco, 15 Mich App 428, 429; 166 NW2d 475 (1968), where this Court concluded:

"[i]t has been ruled in Michigan that evidence exhibited to the jury but not offered or introduced is to all intents and purposes considered as evidence. People v Rozewicz, 228 Mich 231 [199 NW 632 (1924)]. Also, see 46 ALR2d 1423. The use of evidence in court inadmissible by direct offer, cannot be condoned — entry through the back door cannot be allowed where entry through the front door has been refused.”

In this case, the prejudice to defendant is obvious. See People v McCarver, supra.

Defendant additionally contends that he was denied a fair trial when the prosecutor called defendant’s former codefendant who then refused to testify, on Fifth Amendment grounds. As noted earlier, the trial court found no basis for a Fifth Amendment claim, and, in fact, ordered her imprisoned until she decided to testify.

We do not reach the merits of this issue except as it relates to a retrial. In People v Giacalone, 399 Mich 642; 250 NW2d 492 (1977), the Supreme Court held it improper for any attorney to call a witness knowing that the witness will claim a valid privilege not to testify. We will not decide the validity of Ms. Thurkettle’s privilege in dictum; we certainly will not extend the holding of People v Giacalone, supra, to all claims of privilege, in dictum. However, we assume that the prosecutor’s decision regarding the necessity of Ms. Thurkettle’s testimony on retrial will be made with People v Giacalone, supra, in mind.

Defendant’s contention that the charge of possession with intent to deliver a controlled substance should be reduced to mere possession because the intent element was based on "an inference on an inference” is without merit.

Defendant further complains that the trial court committed reversible error by refusing to give a requested instruction on non-exclusive possession of the premises. Defendant requested that the following instruction be given:

"I charge you that mere residency, standing alone, is not sufficient to prove possession of all the articles within the residence unless use and access to the premises is exclusive and undivided. Where more than one person has access to a residence, there must be facts which show the possession of the articles therein on an individual basis.”

The trial court denied the request.

It is evident that the requested instruction, particularly the first sentence, is a misstatement of law. As such, the trial court did not err by refusing to so charge.

However, defendant argues that his theory of the case was embodied in the requested charge. Therefore, defendant contends that failure to give defendant’s theory constitutes reversible error.

We acknowledge with approval the long line of Michigan cases that hold that a defendant is entitled to an instruction on his theory of the case, provided there is evidence on the record to support that theory. See e.g., People v Reed, 393 Mich 342; 224 NW2d 867 (1975), People v Cummins, 47 Mich 334; 11 NW 184 (1882). However, we decline to extend that line of reasoning to this case for two reasons.

First, trial courts need not be required to divine from requests for incorrect legal instructions that, in actuality, the defendant really wished to have his theory of the case presented to the jury. It is not too much to have a defendant’s trial counsel make a proper request, given the stringent requirements imposed upon trial courts to grant such requests. Second, to give the instruction as requested by defense counsel would, in effect, give the defense theory the imprimatur of law. Clearly, neither the prosecution nor the defendant should be given an advantage by the way the request for a theory-of-the-case instruction is phrased. The trial court did not err by refusing defendant’s proposed instruction — even if it is treated as a request for an instruction on defendant’s theory.

Finally, defendant argues that the trial court erred by denying his motion for a directed verdict at the close of the prosecutor’s case, and that there was insufficient evidence to support the verdict of guilty. We will treat each contention separately, as a resolution in defendant’s favor as to the first contention would bar a retrial. People v Killingsworth, 80 Mich App 45, 51-52; 263 NW2d 278 (1977).

In People v Garcia, 398 Mich 250, 256; 247 NW2d 547 (1976), the Supreme Court set forth the test to be used in reviewing a claim that a directed verdict was improperly refused:

"An appellate court tests the correctness of the denial of such motion by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty of murder in the first degree. People v Vail, 393 Mich 460; 227 NW2d 535 (1975). People v Abernathy, 253 Mich 583; 235 NW 261 (1931). To the extent that the case of People v Qualls, 9 Mich App 689; 158 NW2d 60 (1968), holds to the contrary, it is expressly overruled.” (Emphasis in original.)

Applying the Garcia standard here, we find that the trial court properly denied the motion. The prosecution presented evidence tending to prove that defendant (1) unlawfully possessed a controlled substance with (2) intent to deliver it. People v Mumford, 60 Mich App 279; 230 NW2d 395 (1975).

First, a police officer testified that he found a large quantity of illegal drugs (including marijuana and PCP) in a house which the defendant rented and resided in. Second, the extremely large quantity of drugs created a reasonable inference that defendant intended to sell at least some of them to other parties. People v Kirchoff, 74 Mich App 641; 254 NW2d 793 (1977). Therefore, since the prosecutor presented evidence to support each element of the crime charged, a prima facie case was established, sufficient to preclude a directed verdict.

We need not reach the sufficiency question as we find that a new trial is unavoidable. However, since defendant’s strategy seems to rely on the oft-quoted notation in People v Davenport, supra, regarding the prosecution’s burden in circumstantial evidence cases, we will discuss the issue in terms of the standard this Court will apply in sufficiency of evidence cases.

In People v Edgar, 75 Mich App 467, 470-474; 255 NW2d 648 (1977), this Court discussed, at length, the problems engendered by a literal interpretation of Davenport. It noted:

"* * * for reasons outlined below, we decline to apply the [Davenport] test literally.
"First, we believe that the implied distrust of circumstantial evidence is not warranted. Whether the evidence is 'direct’ or 'circumstantial’, we would not allow a conviction if we felt that the evidence was not sufficient to prove guilt beyond a reasonable doubt. To the extent that the rule requires the prosecution to disprove all negative theories, the test could never be met, even by direct evidence. Even with eye-witness testimony there are always innocent theories which are not specifically disproven. There will always be a chance that an eye-witness is honestly mistaken about identification.
"Second, there is a tendency to classify evidence as 'direct’ if the desired inference is compelling and to call it 'circumstantial’ if the inference is merely the most likely of several alternatives. One consequence is that the Davenport rule is not applied in all circumstantial evidence cases.” 75 Mich App at 472.

After further discussion, this Court concluded that:

"* * * the [Davenport] rule is defective to the extent that it treats circumstantial evidence differently than direct evidence and to the extent that it requires the prosecution to specifically disprove all innocent theories. It should be sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce.” (Emphasis in original.) 75 Mich App at 473-474.

We agree with the direction of Edgar's criticism of the Davenport test. Therefore, defendant’s trial strategy should be formulated, acknowledging the following standard of appellate review: Would the evidence presented by the prosecution justify a reasonable person in concluding that all elements of the crime were established beyond a reasonable doubt?

As noted earlier, because of reversibly erroneous jury instructions, this case must be reversed and remanded for a new trial.

Reversed and remanded.

       "A persuasive argument has been made that trial judges should be given greater latitude when they are giving jury instructions. Wright, Adequacy of Instructions to the Jury: I, 53 Mich L Rev 505 (1955), Wright, Adequacy of Instructions to the Jury: II, 53 Mich L Rev 813 (1955), See also, Wright, The Invasion of Jury: Temperature of the War, 27 Temple L Q 137 (1953), Wright, Instructions to the Jury: Summary Without Comment, 1954 Wash Univ L Q 177. The heart of Wright’s presentation is the conclusion that the judges’ responsibility must be matched by commensurate authority; if the judges are held accountable for fully instructing the jury, then they should not be limited in ways that render such instruction impossible. 53 Mich L Rev 813, 846-847.” People v Ronald L Johnson, 74 Mich App 250, 255-256, n 2; 253 NW2d 722 (1977).

       It is arguable that the emphasized instruction in People v Harmon, 54 Mich App 393, 394; 221 NW2d 176 (1974), may be read in both ways.

       Grano, 1976 Annual Survey of Michigan Law: Criminal Procedure, 23 Wayne L Rev 517, 605, is not troubled by that seeming ambiguity. He writes that excess concern over ambiguous deliberation instructions:
      "* * * rests on the untested assumption that jurors will interpret the instruction as absolutely precluding further discussion unless all agree to verdict on the most serious charge. Absent empirical data suggesting that nuances in jury instructions really have a practical effect, courts perhaps should be more reluctant to reverse otherwise validly obtained convictions.” (Footnote omitted.)
      However, since it is the defendant who receives the "benefit of the doubt” in Anglo-American jurisprudential theory, we must conclude that, "absent empirical data suggesting” that ambiguous instructions
        do not result in unwarranted implied coercion, our concern in this area remains warranted.

        People v Morton, 77 Mich App 240; 258 NW2d 193 (1977), People v Ronald L Johnson, 74 Mich App 250; 253 NW2d 722 (1977), People v Shears, 73 Mich App 683; 252 NW2d 563 (1977), People v Jacobson, 72 Mich App 489; 250 NW2d 105 (1976), People v Erwin, 70 Mich App 60; 245 NW2d 173 (1976), People v Ross, 69 Mich App 705; 245 NW2d 335 (1976), People v Embry, 68 Mich App 667; 243 NW2d 711 (1976), People v Don Francisco Lopez, 65 Mich App 653; 237 NW2d 599 (1975), People v Waldron, 64 Mich App 648; 236 NW2d 732 (1975), People v Bankston, 61 Mich App 275; 232 NW2d 381 (1975), People v Walker, 58 Mich App 519; 228 NW2d 443 (1975), People v Britt, 57 Mich App 375; 225 NW2d 771 (1975), People v Szymarek, 57 Mich App 354; 225 NW2d 765 (1975), People v Freeman, 57 Mich App 90; 225 NW2d 171 (1974), People v Robert Hall, 56 Mich App 10; 223 NW2d 340 (1974), People v Bates, 55 Mich App 1; 222 NW2d 6 (1974), People v James, 51 Mich App 777; 216 NW2d 473 (1974).

       It is significant to note that opinions soon began to advance the proposition that Michigan law is settled as to this issue. What is troublesome is the fact that in the first cases cited in support of the literal interpretation of Ray, People v Robert Hall, supra, People v Bates, supra, People v James, supra, the assailed instructions of their respective trial courts were not preserved.

         People v Summers, 73 Mich App 411, 413-414, n 1; 251 NW2d 311 (1977):
      "The portion of the charge objected to was:
      " 'Now, I think this is the first jury case in which all of you have ever served. It may be helpful to say a word about your verdict. Of course, in a criminal case such as this in Michigan the verdict must be unanimous, all 12 of you must agree as one and a verdict is announced by the foreman of the jury, so when you retire I think it might be best first as an order of business to pick your own foreman. There are, as I stated, four possible verdicts in this case. First, of course, you must consider the primary charge of assault with intent to rob while armed, decide whether the Defendant is guilty of that or not guilty. If you find him not guilty of that charge, consider the included offense of attempted armed robbery, and if you find that he is not guilty of that, then you must consider the second included offense of felonious assault. If you find the Defendant not guilty of that, the Defendant is not guilty, but you must consider in order these three charges, the primary offense of assault with intent to commit robbery while armed. If you find him guilty of that, you need not consider the other included offenses, just that one offense.
      " T hope that is clear, I will go over it again so it sticks in your mind. First consider the primary charge of assault with intent to commit robbery while armed. If you find him not guilty of that, then consider the first included offense of attempted armed robbery. If you find him not guilty of that, consider the second included offense of felonious assault. If he is not guilty of that, he is not guilty. I hope that is clear.’ (Emphasis supplied.)”

       It should be noted that the citations to People v Davis, 72 Mich App 21; 248 NW2d 690 (1976), and People v Kinnebrew, 75 Mich App 81; 254 NW2d 662 (1977), do not represent our unqualified endorsement of their holdings.
      We remain concerned that a literal application of those decisions impinges on the appellate power of review. Under Davis and Kinnebrew, the trial court need only acquaint itself with the knowledge that the informant (on whose representations rests the underlying validity of the search warrant) had of the charged offense. See People v Stander, 73 Mich App 617; 251 NW2d 258 (1976). If the trial court finds that the informant would not testify in favor of the defendant, the informant need not be produced.
      Of course, this does not solve the problem where a defendant raises the question of whether an "informant” exists at all. Unless the trial court is convinced that the affiant is lying, People v Kinnebrew, supra, at 88, it will deny the request for production.
      Our standard of review of the trial court’s verdict in that type of one-on-one credibility battle is the familiar abuse-of-discretion test. If, under that standard, we give weight to the trial court in matters of credibility, in effect, we relinquish our function of review to the trial court. If we do not force the trial court to create a record comprised of more than its subjective reaction to the testimony of both sides, we tacitly accede to whatever decision it makes.

       The substance which appeared to be marijuana, despite the fact that it was never chemically analyzed, may be admitted if qualified in the same manner as at the first trial, People v Kirchoff, 74 Mich App 641, 647; 254 NW2d 793 (1977).
      The photographs of the narcotics were cumulative at the first trial but their admissibility is nevertheless subject to the discretion of the trial court. People v Spillman, 399 Mich 313; 249 NW2d 73 (1976), People v Ebejer, 66 Mich App 333; 239 NW2d 604 (1976), People v Ranes, 58 Mich App 268; 227 NW2d 312 (1975).

       The "intent” element was based not on the fact that defendant resided where the drugs were found and the inference that defendant therefore possessed them but rather that the quantity of narcotics involved allowed for the inference that defendant intended to deliver them. People v Mumford, 60 Mich App 279; 230 NW2d 395 (1975).

       "[W]here the people’s case is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with defendant’s innocence of the crime charged.” People v Davenport, 39 Mich App 252, 257-258; 197 NW2d 521 (1972).


author: N. J. Lambros, J.

text:
    PEOPLE v ULRICH PEOPLE v HARGER
    Docket Nos. 30336, 30337.
    Submitted February 14, 1978, at Lansing.
    Decided May 8, 1978.
    Dale A. Ulrich and Richard D. Harger were convicted of armed robbery, Cheboygan Circuit Court, Philip J. Glennie, J. Defendants appeal. Held:

    1. The stopping of the vehicle in which the defendants were riding was proper because the vehicle had a defective license plate light and because the sheriffs deputies had reasonable cause to make an investigative stop in connection with the armed robbery based on specific facts available to the deputies giving them a reasonable belief that criminal activity might be afoot. Subsequent to stopping the defendant’s vehicle, the precautionary measures taken by the deputies, approaching the vehicle with shotguns and asking the subjects to exit and conducting a pat-down search with the subjects off balance, were reasonable in light of the circumstance known to the deputies and did not constitute an illegal arrest but rather a proper investigatory detention, and the trial court committed no clear error in refusing to suppress the evidence obtained.
    2. Any violation of the defendants’ right to remain silent by the prosecution’s questions at the bench trial asking two witnesses if the defendants had made any statements after receiving their Miranda warnings was harmless error beyond a reasonable doubt.
    Affirmed.
    1. Criminal Law — Evidence—Motion to Suppress — Appeal and Error — Clearly Erroneous.
    The Court of Appeals will not reverse a trial court’s ruling on a motion to suppress evidence unless that ruling is found to be clearly erroneous.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 602.

       5 Am Jur 2d, Arrest § 45.

       5 Am Jur 2d, Arrest § 1.

       68 Am Jur 2d, Searches and Seizures §§ 2, 5.

       21 Am Jur 2d, Criminal Law §§ 349, 351-353.

       5 Am Jur 2d, Appeal and Error §§ 778, 779, 798, 801, 802.
    21 Am Jur 2d, Criminal Law § 353.

      2. Criminal Law — Arrest—Stop of Suspicious Individuals — Reasonableness — Facts Known to Police Officers.
    A police officer’s brief stop of a suspicious individual in order to determine the individual’s identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time; however, specific articulable facts must be known to the officer at the time of the intrusion which would warrant a man of reasonable caution in believing that the action taken was appropriate.
    3. Arrest — Definitions—Words and Phrases.
    An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest; the act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested.
    4. Constitutional Law — Criminal Law — Invasion of Rights — Reasonableness — Public Interest — Personal Security.
    The touchstone of an analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security”; reasonableness depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers (US Const, Am IV).
    5. Constitutional Law — Criminal Law — Right to Remain Silent— Nonutterances — Statements—Witnesses.
    Conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation will not be condoned; "nonutterances” are not statements and the fact that a witness did not make a statement may be shown only to contradict his assertion that he did.
    6. Criminal Law — Right to Remain Silent — Constitutional Law— Statements — Harmless Error.
    Allowing two unobjected-to questions and answers in a bench trial as to whether or not the criminal defendants had made any statements to police officers after the defendants had been arrested and given their Miranda warnings violated the defendant’s right to remain silent, but such error was harmless beyond a reasonable doubt and played no part in the ultimate verdict where the questions and answers were very brief and the evidence of guilt was clear and overwhelming.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Michael J. Hackett, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Keith D. Roberts, Assistant Attorney General, of counsel), for the people.

      Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C. J., and Bronson and N. J. Lambros, JJ.

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

   N. J. Lambros, J.

On June 23, 1976, defendants were convicted of armed robbery in violation of MCL 750.529; MSA 28.797 following a joint bench trial. Subsequently both defendants were sentenced to terms of 5 to 15 years in prison. Both defendants appeal as of right raising the same two issues.

I

Defendants first contend that much of the evidence presented against them at trial should have been suppressed because it was obtained as a result of an illegal arrest. Resolution of this issue requires us to look at the information known to the lower court at the time it denied defendants’ motion to suppress. This Court will not reverse a trial court’s ruling on a suppression motion unless that ruling is found to be clearly erroneous. People v Terrell, 77 Mich App 676, 679; 259 NW2d 187 (1977). Shortly after midnight on January 20, 1976, defendants, wearing ski masks and armed with guns, entered and robbed a bar in Wolverine, Michigan. They made their getaway from the scene in a pickup truck driven by a third person. The robbery was reported and a police radio bulletin was issued. This bulletin was picked up at the Otsego County Sheriffs Office in Gaylord, Michigan, at approximately 12:40 a.m. Two sheriffs deputies, who had finished working the 4 p.m. to midnight shift, were present and, at the request of the midnight shift desk sergeant, set out to check a possible escape route by driving north on Highway 27. In evaluating the actions of these two deputies, we must look at the specific articulable facts known to the deputies at the time they acted. See People v Wade, 23 Mich App 132, 135; 178 NW2d 139 (1970), and People v Hunter, 72 Mich App 191, 197; 249 NW2d 351 (1976). The deputies testified, prior to the suppression ruling, that the radio broadcast stated that there had been an armed robbery at a bar in Wolverine, Michigan, at approximately 12:30 a.m. involving two subjects who were possibly headed south. One of the two subjects had worn a ski mask and the other possibly a nylon type covering over his face during the robbery. A yellow or gold money bag was reported taken. No mention of a vehicle was made in the broadcast. The two deputies traveled north on Highway 27 in a fully marked patrol vehicle equipped with two spotlights and red and blue overhead revolving lights. One deputy testified that snow had been falling off and on and most county roads were slippery that night, the temperature was cold and from ten until midnight the road traffic had gone from "nothing to nil”. After traveling for three to three-and-one-half miles, the deputies encountered a pickup truck headed south with three occupants. At this point the pickup truck was approximately 20 miles from the robbery scene and approximately 20 minutes had elapsed since the robbery, the pickup was swaying as it traveled, and slowed down after passing the patrol car. The patrol car turned around and pursued the truck at a speed under the speed limit. The deputies observed that one taillight was "out” and that there was no license plate light operating on the pickup truck. The patrol car overhead flashers were activated and the pickup truck stopped after traveling an additional one-quarter to one-half mile. While following the pickup, the deputies observed that the center passenger kept peering out the back window and looking around while the other passenger was "doing a lot of movement”. One deputy stated that the pickup took longer than normal to stop and that the outside passenger bent over a little bit in the seat as if possibly he might have been storing something away.

After the pickup truck was stopped at approximately 12:50 a.m., the deputies, armed with shotguns, approached it from the rear and asked the occupants to exit the passenger side door. Two passengers did so, however, the driver whose window was rolled down exited on the driver’s side. As the two passengers exited, an object, later found to be a ski mask, fell from the truck to the ground. All three subjects were ordered to the rear of the truck, "spread eagled” against the back of the truck and patted down. This pat down resulted in the discovery of a ski mask with panty hose in it, and a bank deposit money bag. Subsequently, the ski mask that had fallen out of the truck was retrieved and identified, and upon shining a flashlight into the open passenger side door opening of the pickup cab, two sawed-off shotguns were discovered and retrieved. At this point the subjects were told that they were under arrest.

The initial stop of the pickup was proper, and the deputies did have sufficient probable cause to arrest the defendants at the time the "formal” arrest was made. Defendants argue, however, that "the warrantless arrest here occurred at the moment that the officers ordered defendants out of their vehicle at gunpoint” and that at that point the officers did not have probable cause to believe the defendants had committed a felony. Consequently, defendants argue that this arrest was illegal and all of the resulting evidence should have been suppressed. While it is a very close question, we agree that the deputies did not have probable cause to arrest at the time they asked the defendants to exit their truck. Compare, People v Scott, 23 Mich App 568, 570; 179 NW2d 255 (1970), People v Beauregard, 21 Mich App 224; 175 NW2d 301 (1970), People v Knight, 41 Mich App 293, 294; 199 NW2d 861 (1972), and People v Obadele, 58 Mich App 139; 227 NW2d 258 (1975).

In support of their argument defendants cite People v Gonzales, 356 Mich 247, 253; 97 NW2d 16 (1959), where the Court cited 4 Am Jur, Arrest, §2: In some cases it may be analytically helpful to determine the precise point at which an arrest occurs. See for example, People v Sands, 82 Mich App 25; 266 NW2d 652 (1978). Compare, People v Harris, 43 Mich App 531, 538-541; 204 NW2d 549 (1972). In some cases, however, merely labeling certain conduct as an arrest or nonarrest will produce an unsatisfactorily arbitrary result. Regardless of when the "arrest” occurred, there was a seizure of the defendants within the meaning and protection of the Fourth Amendment at the time the defendants were asked to exit their vehicle. The initial stop of the vehicle was proper both because of the defective license plate light, see People v Edwards, 73 Mich App 579, 587; 252 NW2d 522 (1977), and because the deputies had reasonable cause to make an investigative stop in connection with the armed robbery, see People v Kirchoff, 74 Mich App 641, 644-645; 254 NW2d 793 (1977), based on the following specific and articulable facts available to the deputies giving them a reasonable belief that criminal activity might be afoot, see People v Lillis, 64 Mich App 64, 70; 235 NW2d 65 (1975). The pickup truck was headed rapidly away from the crime scene on a possible escape route, at a very late hour, in poor weather, and extremely light traffic, swaying down the highway at a time and place where an escape vehicle could logically be expected to be found. In addition, the truck had three occupants when two persons had perpetrated the crime, and the pickup had slowed down upon passing the patrol car, one passenger repeatedly looking out the rear window at the officers.

"American Jurisprudence defines 'arrest’ in these terms:
" 'An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested.’ 4 Am Jur, Arrest, § 2.”

The next and decisive question is the propriety of the deputies’ actions after the pickup was stopped. See, Commonwealth of Pennsylvania v Mimms, 434 US 106; 98 S Ct 330; 54 L Ed 2d 331 (1977). Citing People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), Adams v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), and United States v Brignoni-Ponce, 422 US 873; 95 S Ct 2574; 45 L Ed 2d 607 (1975), the defendants contend that such an investigatory stop must be conducted in an "appropriate manner”. We agree, but note that what is appropriate in one context may not be appropriate in another context. The rule to be applied was set out in Mimms, supra:

"The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ Terry v Ohio, 392 US 1, 19 (1968). Reasonableness, of course, depends 'on a balance between the public interest, and the individual’s right to personal security free from arbitrary interference by law officers.’ United States v Brignoni-Ponce, 422 US 873, 878 (1975).” 434 US at 108-109; 98 S Ct at 332; 54 L Ed 2d at 335-336.

In the instant case the two deputies had reason to suspect that the three occupants of the pickup truck were armed and in the process of fleeing the scene of a felony. We believe that the precautionary measures taken, approaching the pickup with shotguns and asking the subjects to exit the truck and conducting a pat-down search with the subjects off balance were reasonable in these circumstances. In light of all the circumstances known to the deputies at the time, they did act in an "appropriate manner,” which therefore did not constitute an illegal arrest but rather a proper investigatory detention and the trial court committed no clear error in refusing to suppress the resulting evidence.

II

Defendants also assert that reversible error occurred when the prosecution elicited testimony from the arresting officer that both defendants chose to remain silent after Miranda warnings were given. The questions and answers involved were:

"Q Did the suspects make any statements to you?
"A No, sir.
"Q Were any statements made to you on the way to the Otsego County Sheriffs Department after the Miranda Warnings were read?
"A No, sir.”

In People v Bobo, 390 Mich 355, 359; 212 NW2d 190 (1973), the Court stated:

"We will not condone conduct which directly or indirectly restricts the exercise of the constitutional right to remain silent in the face of accusation. 'Nonutterances’ are not statements. The fact that a witness did not make a statement may be shown only to contradict his assertion that he did.”

In People v Swan, 56 Mich App 22, 26-35; 223 NW2d 346 (1974), Bobo error was found to be harmless but the Court stated:

"In finding the error harmless in this case, we wish to emphasize that we do not condone conduct which directly or indirectly restricts or penalizes the exercise of the constitutional right to remain silent in the face of accusation. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). We will find it difficult in the future to believe that prosecutors and police are ignorant of the well-established principle of law which forbids comment upon an accused’s silence or that clear violations of the principle arise from inadvertence. Deliberate violations of this rule may lead us to reverse convictions even where evidence might be overwhelming. The prosecutor who comments, or elicits comment, on a defendant’s silence thus risks the loss of a perfectly good case for no reason.” People v Swan, supra, at 35.

In People v Patricia Williams, 63 Mich App 531; 234 NW2d 689 (1975), this Court held that a combination of Bobo error and the improper introduction of an arrest record was so offensive to the maintenance of a sound judicial process that the Court declined to reach the harmless error question. In People v Hargrave, 74 Mich App 690; 254 NW2d 614 (1977), this Court went beyond People v Patricia Williams in holding that Bobo error by itself "under the circumstances of this case” was so offensive to the maintenance of a sound judicial process that the harmless error issue would not be considered. See also People v Norris, 74 Mich App 361; 253 NW2d 767 (1977), and cases cited therein. Compare People v Christopher Johnson, 72 Mich App 172; 249 NW2d 343 (1976).

Unlike People v Hargrave, supra, the error in allowing the two unobjected to questions and answers in this bench trial was not so offensive to the maintenance of a sound judicial process that it could never be regarded as harmless. Therefore, we must ask whether the error was harmless beyond a reasonable doubt. People v Mobley, 390 Mich 57, 65; 210 NW2d 327 (1973). In light of the brevity of the questions and answers and the clear and overwhelming evidence of guilt, we believe the Bobo error in this case was harmless beyond a reasonable doubt, and played no part in the ultimate verdict.

Affirmed.

        Compare People v Johnson, 81 Mich App 70; 264 NW2d 125 (1978), holding that a coercive intrusion into a home on less than probable cause was unreasonable, in light of People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973):
      "Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.”


author:
Bashara, J.
      H. L. Heading, J.

text:
    SMART v CITIZENS MUTUAL INSURANCE COMPANY
    Docket No. 30568.
    Submitted November 1, 1977, at Lansing.
    Decided May 8, 1978.
    Plaintiff Beverly J. Smart, for herself and as guardian of her minor children, filed a claim with Citizens Mutual Insurance Company for benefits as survivors under a policy of automobile insurance after her husband was killed in an automobile accident. The policy provided for maximum survivors’ loss benefits of $1,000 per month. However, Citizens reduced this by the amount which plaintiff received in Social Security benefits. Plaintiff filed suit, alleging breach of the insurance contract. The Livingston Circuit Court, Paul R. Mahinske, J., granted summary judgment for the plaintiff as to one count of her complaint, finding the clause in the insurance policy and the legislation authorizing the clause to be unconstitutional. The second count of plaintiff’s complaint, alleging fraud, has not yet been adjudicated. Defendant appeals from the summary judgment. Held:

    The section of the no-fault automobile insurance statute which authorizes the deduction from personal injury protection and survivors’ loss benefits of the amount of any compensation paid under state or Federal law is not unconstitutional. That section operates to maintain a minimum level of compensation set by the Legislature.
    Reversed and remanded.
    H. L. Heading, J., dissented, adopting the majority opinion of a previous panel of the Court of Appeals which held the applicable section of the statute to be unreasonable and, therefore, unconstitutional.
    Opinion of the Court
    1. Insurance — Automobiles—Constitutional Law — Statutes.
    A statute which provides for the subtraction of any amount of compensation received under state or Federal law from survivors’ loss benefits under a policy of no-fault automobile insurance is not unconstitutional; the Legislature established a minimum level of disability benefits and the statute in question maintains that minimum level; a party wishing to enhance that benefit level may do so by entering into private contractual arrangements (MCL 500.3109[1]; MSA 24.13109[1]).

      References for Points in Headnotes

       Am Jur 2d, New Topic Service, No-Fault Insurance §§ 12, 13, 22.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 229.

      Dissent by H. L. Heading, J.
    2. Insurance — Automobiles—Constitutional Law — Statutes.

      A section of the no-fault automobile insurance act which provides for a reduction in personal injury protection beneñts equal to any amount of compensation received under state or Federal law is unreasonable and therefore unconstitutional (MCL 500.3109[1]; MSA 24.13109[1]).

      McCririe & Latreille, for plaintiff.

      Carl J. Schoemer, 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.

   Bashara, J.

Plaintiff is the widow and guardian of the minor children of Richard W. Frasher, who was killed in an automobile accident on October 11, 1973. At the time of his death the decedent was covered by a no-fault automobile insurance policy issued by the defendant. Plaintiff and the children are dependents of decedent for purposes of survivors’ loss benefits. Plaintiff-widow has since remarried. Plaintiff filed a timely claim for benefits. The insurance provided by the maximum survivors’ loss benefits would not exceed the sum of $1,000 per 30-day period for a period of three years. This amount, however, was reduced by $650, the amount plaintiff received in Social Security benefits. This deduction was made pursuant to MCL 500.3109; MSA 24.13109 which provides as follows:

"(1) Benefits provided or required to be provided under the laws of any state or the federal government shall be subtracted from the personal protection insurance benefits otherwise payable for the injury.”
"(2) An injured person is a natural person suffering accidental bodily injury.”

Plaintiff received only $350 per month. A complaint was filed in the circuit court alleging breach of the insurance contract by not paying the maximum benefits allowed in the contract.

Defendant raised MCL 500.3109(1); MSA 24.13109(1) as an affirmative defense, asserting that as a matter of law defendant was entitled to deduct from any benefits paid to plaintiff all benefits paid to the plaintiff pursuant to the laws of any state or Federal government agency.

Plaintiff then moved for summary judgment pursuant to GCR 1963, 117.2(2) and 117.2(3), alleging as one ground that MCL 500.3109(1); MSA 24.13109(1), which provides for the deduction of governmental benefits from the personal protection insurance benefits, is unconstitutional as applied to plaintiff.

Each party filed briefs in support of their respective positions and on April 6, 1976, the trial judge issued his opinion finding the clause in question as well as legislation authorizing such clause to be unconstitutional. An order for stay before taking an appeal was entered on July 15, 1976; claim of appeal was filed the same date. A formal order incorporating the lower court’s opinion was entered by the court on September 13, 1976. This was dispositive of count I only of plaintiff’s complaint. Count II of plaintiffs complaint, which contains allegations of fraud, has not been decided and is being held in abeyance pending the outcome of the Court of Appeals’ decision in this matter.

Defendant argues that the trial court erred reversibly in granting summary judgment for the plaintiff and holding MCL 500.3109(1); MSA 24.13109(1) of the no-fault act to be unconstitutional.

A panel of this Court has reached the same conclusion as the trial judge, O’Donnell v State Farm Mutual Automobile Insurance Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted, 397 Mich 848 (1976). However, we do not agree with the conclusion reached by the majority in O’Donnell, supra.

In mandatory terms, the Legislature, by its enactment of the no-fault automobile insurance provisions, established a minimum level of disability benefits for Michigan citizens who suffer adverse financial consequences from personal injury automobile accidents. The establishment of that minimum level is maintained by § 3109(1).

All benefits derived from governmentally promulgated programs are combined under that section to reach the predetermined minimum benefit level. Those who desire to enhance that benefit provision may do so by voluntarily entering into private contractual arrangements. The constitutional implications of this scheme were also analyzed in the dissenting opinion in O’Donnell. With that reasoning and result, we agree.

Reversed and remanded for proceedings consistent with this opinion.

J. H. Gillis, P. J., concurred.

H. L. Heading, J.

(dissenting). I respectfully dissent.

MCL 500.3109(1); MSA 24.13109(1) of the no-fault act has been declared unconstitutional by one panel of the Court of Appeals, O’Donnell v State Farm Insurance Co, 70 Mich App 487; 245 NW2d 801 (1976), lv granted, 397 Mich 848 (1976), and the case is presently pending before the Supreme Court. In O’Donnell, supra, two scholarly opinions were written. The majority opinion declared MCL 500.3109(1); MSA 24.13109(1) to be unconstitutional. After carefully considering both opinions, I adopt the majority opinion in that case.

I would affirm.


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

text:
    PEOPLE v CRAWFORD
    Docket No. 30834.
    Submitted January 18, 1978, at Detroit.
    Decided May 8, 1978.
    Dell Crawford was convicted of six counts of armed robbery, in Wayne Circuit Court, Richard D. Dunn, J. All counts arose out of a holdup at Kindred’s Bar in Dearborn. While all six victims in the Kindred Bar robbery testified, only some of these victims were able to identify defendant. The prosecution also called as witnesses five victims of a robbery at Lem’s Lounge, also in Dearborn, and, again, only some of the victims were able to identify the defendant. The trial court also denied defendant’s pre-trial motion to suppress reference to his prior criminal record, consisting of two convictions for armed robbery, in the event the defendant took the stand in his own behalf. Defendant appeals. Held:

    1. The rule allowing the decision whether to allow impeachment of a defendant in a criminal case by evidence of prior convictions to rest in the discretion of the trial court envisions a true exercise of discretion by balancing the competing factors, and the burden of persuasion is with the people to justify admissior.
    2. The factors a trial court must weigh in deciding whether or not to allow impeachment of a defendant in a criminal case by evidence of prior convictions are: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?); (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man” or assume that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?); and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?); a trial court abuses its discretion when it fails to consider these factors in deciding to allow evidence of prior convictions.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence §§ 320-333.
    Right to impeach credibility of accused by showing prior conviction, as affected by remoteness in time of prior offense. 67 ALR3d 824.
    Admissibility, at trial of criminal case, of evidence of defendant’s criminal acts other than those charged — Supreme Court cases. 93 L Ed 185.

       29 Am Jur 2d, Evidence §§ 322, 326.

      3. Parading groups of victims of unrelated offenses in front of a jury in a criminal case under the guise of proof of identity, thus proving identity only in the sense that it shows defendant’s propensity to crime, in the absence of a truly unique fact situation, is improper.
    4. In the retrial, the trial court should follow CJI 4:1:01 in regard to instructing the jury on its function with regard to defendant’s claimed confession.
    Reversed and remanded.
    1. Criminal Law — Evidence—Admissibility of Evidence — Impeachment — Evidence—Prior Convictions — Discretion—Burden of Proof.
    The rule allowing the decision whether to allow impeachment of a defendant in a criminal case by evidence of prior convictions to rest in the discretion of the trial court envisions a true exercise of discretion by balancing the competing factors, and the burden of persuasion is with the people to justify admission.
    2. Criminal Law — Evidence—Admissibility of Evidence — Impeachment — Prior Convictions — Abuse of Discretion.
    The factors a trial court must weigh in deciding whether or not to allow impeachment of a defendant in a criminal case by evidence of prior convictions are: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?); (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man” or assume that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?); and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?); a trial court abuses its discretion when it fails to consider these factors in deciding to allow evidence of prior convictions.
    3. Criminal Law — Evidence—Identification Evidence — Similar Acts.
    Parading groups of victims of unrelated offenses in front of a jury in a criminal case under the guise of proof of identity, thus proving identity only in the sense that it shows a defendant’s propensity to crime, in the absence of a truly unique fact situation, is improper.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

      Lander C. McLoyd, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P. J., and M. F. Cavanagh and D. C. Riley, JJ.
   T. M. Burns, P. J.

Defendant was convicted of six counts of armed robbery, MCL 750.529; MSA 28.797, by a Wayne County jury in August of 1976. He was subsequently sentenced to 43 years, 4 months to 65 years on each count. All the charges arose out of a holdup at Kindred’s Bar in the city of Dearborn.

All six people who were victims in the Kindred’s Bar robbery testified at trial. Some of these witnesses identified defendant as a participant in the robbery, others did not. In addition, the people called five witnesses under the similar acts statute, MCL 768.27; MSA 28.1050, who had been victims of a robbery at Lem’s Lounge, also a Dearborn bar. Again, some of the victims of the Lem’s Lounge robbery identified defendant as a participant in that offense and some did not.

Defendant moved before trial to suppress reference to his prior criminal record, consisting of two convictions for armed robbery. The trial court refused to restrict the prosecutor’s cross-examination if defendant chose to take the stand. This presents the factual framework for the main allegations of error in this appeal.

I

We turn first to the trial court’s refusal to suppress reference to defendant’s prior convictions. The decision to allow impeachment by prior convictions is within the discretion of the circuit court. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). This rule envisions a true exercise of discretion by balancing the competing factors involved, however. See, People v Farrar, 36 Mich App 294, 301-303; 193 NW2d 363 (1971). The failure to do so in this case requires reversal.

The court below did not. require the people to justify the use of these convictions for impeachment purposes. The defendant does not have the burden of persuading the court that his criminal record should be excluded. The people must justify admission. People v McCartney, 60 Mich App 620; 231 NW2d 472 (1975).

The prosecutor did not participate in the discussion regarding the suppression of defendant’s record. While this alone may not justify reversal, the trial court’s decision evidences an abuse of discretion which does require reversal.

The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man” or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value on the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?). See, People v Farrar, supra; People v McCartney, supra.

Had the trial court balanced these factors, we are convinced that he would have suppressed defendant’s prior record. Indicative of this fact is the following discussion:

"Miss Ritter [Defense counsel]: Obviously, he has the right to take the stand.
"The Court: Okay.
"Miss Ritter: I don’t see a jury in the world that could acquit him knowing he has two robbery armed convictions.
"The Court: I agree.”

The court implicitly recognized that defendant could testify and be impeached with two prior armed robbery convictions (raising the dangers noted in factor 2 above) or forego testifying and deprive the jury of his side of the story (factor 3 above). Defendant did not testify or otherwise present a defense. To fail to suppress defendant’s prior armed robbery convictions was an abuse of discretion requiring reversal in this case.

II

A similar problem, balancing the probative value against the prejudicial effect, is involved in the admission of the testimony of the victims of the Lem’s Lounge robbery under the similar acts statute in this prosecution.

Judge Walsh has recently undertaken an extensive analysis of similar acts problems in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). Application of the principles set out in that opinion would require that the evidence in this case be excluded.

There is a need to mention only one of the factors which should have gone into the trial court’s analysis; the potential for confusing the issues in the case. People v Wilkens, at 260. The jury was presented with testimony from two groups of robbery victims. As the prosecutor stated in argument on another point:

"Mr. Lang [Assistant prosecutor]: Your Honor, I would say for the record that all the witnesses that have testified in his case by way of civilians testified in the last case, so, in a sense, this case would be tried for the second time today.”

The potential for jury confusion, even if properly instructed, is obvious. We strongly disapprove of the practice of parading groups of victims from unrelated offenses in front of a jury under the guise of proof of identity, in the absence of a truly unique fact situation. See, People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976). This type of evidence proves identity only in the sense that it shows defendant’s propensity to crime. Such a use is improper.

III

The other issues raised merit little or no discussion.

The record does not support defendant’s claim that the 36-hour delay between his arrest and arraignment was used as a tool to extract a confession. It appears that the interview which resulted in the confession was initiated at defendant’s request. See, People v White, 392 Mich 404; 221 NW2d 357 (1974), cert den, 420 US 912 (1975).

In the retrial, we suggest that the trial court follow CJI 4:1:01 in instructing the jury on its function with regard to defendant’s claimed confession.

For the reasons stated in section I of this opinion, the conviction is reversed and remanded for a new trial.

       A similar analysis is appropriate under new MRE 609 and the result in a case such as this would be identical.

       These principles are now embodied in MRE 404(b).
      In commenting.on the equivalent rule in the Federal system, Judge Weinstein stated:
      "The factors in each case are so varied and unique, and the counterthrusting pressures — constitutional and otherwise — so great, that in some instances the courts are thrown back to suggesting that the only requisite is that the decision accord with fundamental notions of fairness. Yet some aid to fairness is afforded by analyzing each proffer of other crime proof to determine what evidential hypotheses the jury is expected to use, and weighing the probative force of the line of proof against the need of the prosecutor and the risks specified in Rule 403. The more reason there is in the decision to admit or exclude, the more apt it is to be fair. Both bench and bar benefit at a trial if critical questions of admissibility are exposed and reasons clearly stated.” 2 Weinstein’s Evidence ¶ 404[08], p 404-441.
      We can only echo the proposition that appellate review is aided if the attorneys and court below truly analyze these problems rather than perfunctorily admitting such testimony.