text:
    PEOPLE v SHEDRICK
    Docket No. 77-3377.
    Submitted June 21, 1978, at Detroit.
    Decided July 20, 1978.
    Nero Shedrick was convicted of second-degree murder in Recorder’s Court of the City of Detroit, Henry Heading, J. Defendant appeals. Held:

    Court instructions which deprive a jury of its right to render a general verdict of not guilty are erroneous.
    Reversed.
    1. Criminal Law — Plea of Not Guilty — Elements of Crime — Jury Trial — Constitutional Law.
    Once a plea of not guilty is entered, the defendant has an absolute right to a jury determination upon all essential elements of the offense, neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him; under no circumstances may the trial court usurp this right by ruling as a matter of law on an essential element of the crime charged.
    2. Criminal Law — Instructions to Jury — Jury Functions — General Verdict — Not Guilty Verdict — Error.
    Court instructions which deprive a jury of its right to render a general verdict of not guilty are erroneous.
    References for Points in Headnotes
    [1] 47 Am Jur 2d, Jury §§ 7-11, 47-50.
    [2] 75 Am Jur 2d, Trial §§ 579, 590, 623.

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

      Carl Ziemba, for defendant on appeal.

      Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

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

   Per Curiam.

Defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549. He was sentenced to life imprisonment and appeals as of right.

The trial court instructed the jury on second-degree murder and manslaughter, stating in part:

"Now, again, if you find from the testimony and the acts and the law that he was so provoked by the acts and the law that he was so provoked by the actions of somebody else, or the circumstances as he saw them he could not control himself, and that there was sufficient —or that there is sufficient provocation to remove this from second degree murder, then you may convict him of manslaughter because that’s what it would be, if you decide that. That there was great and severe provocation here.
"Now what do I mean by that? I have told you what the elements of each offense is, manslaughter and murder in the second degree. If the prosecution does not prove one of those elements the defendant is not guilty, because the prosecution must prove each and every element of the offense charged.”

After a side bar conference with the assistant prosecutor and defense counsel, the trial judge continued:

"THE COURT: Now, members of the jury, you may find the defendant guilty as charged, that is of second degree murder;
"Or you may find the defendant not guilty of second degree murder;
"Or you may find the defendant guilty of manslaughter.
"And as I have aforesaid, if you find that the defendant did not kill Linda Holt you may find him not guilty.
"THE COURT: All right, any objections to the Court’s charge?
"MR. HENRY [Defense Counsel]: No, Your Honor.
"THE COURT: All Right.
"MR. MARZEC [Prosecuting Attorney]: The People are satisfied.” [Emphasis supplied.]

The defendant pled not guilty. However, the trial court did not give the jury the option of finding defendant not guilty unless they found that someone else committed the crime.

At trial, defendant testified that he had no recollection of stabbing the deceased; that on the fatal day, he had drunk quantities of wine, had smoked reefers and had taken medicine to relax the muscles and for blood pressure. Defendant remembered nothing of what happened after deceased cut him on the arm and ran out of her house.

There was ample evidence that defendant had stabbed the deceased and caused her death. Defendant did not contest the fact that he had stabbed the deceased: his defense was that he had consumed alcohol and intoxicating drugs to the point that he could not have formed the intent to kill the deceased.

The court agreed with defense counsel that the court was obliged under the law to instruct the jury on the lesser included offense of manslaughter.

But the court expressed himself as opposed to its instructing the jury that they could find the defendant not guilty:

"THE COURT: Well, I can tell you right now the way I am feeling right now I am not going to instruct that jury that they could find this man not guilty. Let an appellate court reverse me, I don’t care.
"THE COURT: Well, suppose I instructed them and they come out and say that he’s not guilty, then what?
"MR. MARZEC: And I understand—
"THE COURT: Do you want to live with that?
"MR. MARZEC: No, sir.
"THE COURT: Well, you go ahead and live with it, I’m not. As I see the law right now I’m going to instruct on manslaughter and second degree, I’m not going to instruct on a not guilty. And I will stand behind that.
"MR. MARZEC: All right.
"THE COURT: I’m not going to sit up here and just see everything happen. And as I have said, I have been reversed before and I am going to be reversed again, but I am going to be reversed standing up like a man. I’m not just going to let anything happen in this courtroom.
"THE COURT: Well, you put on the record that you think I should instruct on not guilty. Well, I can tell you right now, the way I am feeling, unless you can convince me, I’m not going to give an instruction on that.
"MR. MARZEC: I was worried—
"THE COURT: What are you worried about?
"MR. MARZEC: About a possible reversal.
"THE COURT: Well, let them reverse.
"MR. MARZEC: Okay.
"THE COURT: They will be reversing me, not you. And I can take it. All right. Now is there anything else?”

It is clear that the trial court took from the jury the option of returning a verdict of not guilty, in direct contravention of existing Supreme Court precedent. In People v Reed, 393 Mich 342; 224 NW2d 867 (1975), the Supreme Court held:

"Once a plea of not guilty is entered, the defendant 'has an absolute right to a jury determination upon all essential elements of the offense. This right, emanating from the criminal defendant’s constitutional right to a trial by jury, is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him. * * * [Furthermore, in a situation wherein an understandingly tendered waiver is not forthcoming from the defendant, under no circumstances may the trial court usurp this right by ruling as a matter of law on an essential element of the crime charged.’ United States v England, 347 F2d 425, 430 (CA 7, 1965). (Footnote omitted.)
"The trial judge must carefully ensure that there is no trespass on this fundamental right.
"The instruction to the jury must include all elements of the crime charged, People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967); People v Pepper, 389 Mich 317, 322; 206 NW2d 439 (1973), and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them. 22 Michigan Law & Practice, Trial, § 236, p 386.” 393 Mich at 349-350.

Due to the disposition of the previous issue, it is unnecessary to address the other alleged error.

Reversed and new trial ordered.

       We are aware that defense counsel is an experienced criminal attorney and did not object to the trial court’s instruction. We must also commend the prosecutor for acting as an advocate for justice instead of in a more partisan role. Nevertheless, to do other than reverse defendant’s conviction would result in depriving the jury of its right to render a general verdict of not guilty.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v FIORINI
    Docket No. 77-695.
    Submitted June 23, 1978, at Detroit.
    Decided August 21, 1978.
    Americo J. Fiorini was convicted in Wayne Circuit Court, James Montante, J., of armed robbery. Defendant appeals, making several claims of error. Held:

    1. Refusal of the trial court to give a requested instruction on alibi was not error where the defendant had presented no evidence in support of an alibi.
    2. The trial court’s instructions to the jury, when read as a whole, set forth the proper standard of proof necessary to find the defendant guilty, even though a portion of those instructions was ambiguous.
    3. The trial court should not have submitted to the jury the issue of nonproduction of a res gestae witness because there was insuificient evidence to permit a finding that the prosecutor used due diligence in attempting to produce the witness or that the witness’s testimony would have been cumulative.
    4. An instruction that the jury was entitled to infer that the testimony of a witness whom the prosecution failed to produce would have been unfavorable to the prosecution was not sufficient to cure the error where it cannot be said with certainty that the missing testimony would not have been favorable to the defendant.
    5. The defendant’s motion for a new trial, which alleged the failure of the prosecution to indorse and produce res gestae witnesses, was erroneously denied in the absence of a hearing to determine whether the prosecutor exercised due diligence or whether the witnesses’ testimony was likely to be cumulative.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 729-737.
    [2] 75 Am Jur 2d, Trial § 756.
    [3] 29 Am Jur 2d, Evidence §§ 708, 713.
    [4 — 7] 29 Am Jur 2d, Evidence §§ 180-187.
    [5] 75 Am Jur 2d, Trial § 771.
    [6] 41 Am Jur 2d, Indictment and Information §§ 56, 60.
    58 Am Jur 2d, New Trial § 41.
    [8] 75 Am Jur 2d, Trial § 119.

      6. The nonindorsement and nonproduction of res gestae witnesses was harmless error because of the overwhelming evidence against the defendant.
    7. The trial court’s remark during a ruling on a motion that the court was willing to make a record for the reviewing court was not prejudicial to the defendant where the court promptly cured the error.
    Affirmed.
    1. Criminal Law — Instructions to Jury — Alibi—Evidence.
    An instruction to the jury on alibi generally must be given if requested; however, a trial court should not give instructions not supported by the evidence, and therefore a trial court did not err by refusing a defendant’s request for an instruction on alibi where the defendant presented no evidence in support of an alibi.
    2. Criminal Law — Instructions to Jury — Ambiguous Instructions —Standard of Proof.
    A trial court’s instructions to the jury were not erroneous where, although a portion of the instructions was ambiguous as to the standard of proof required to find a defendant guilty, the instructions as a whole clearly stated the proper standard of proof: that the defendant must be proven guilty beyond a reasonable doubt.
    3. Criminal Law — Prosecutor’s Duty — Witnesses—Res Gestae Witnesses — Due Diligence.
    A prosecutor is required to indorse only those res gestae witnesses known to him at the time of filing an information; however, he is required to exercise due diligence in seeking to ascertain the identities of any witnesses.
    4. Witnesses — Criminal Law — Res Gestae Witnesses — Failure to Produce Witness.
    A trial court erred in submitting the issue of nonproduction of a res gestae witness to the jury where there was not sufficient evidence to permit a jury to find that the prosecution used due diligence in attempting to produce the witness or that the witness’s testimony would be cumulative.
    5. Criminal Law — Instructions to Jury — Res Gestae Witnesses— Failure to Indorse and Produce.
    An instruction to the jury that they are entitled to infer that the testimony of a nonproduced res gestae witness would be unfavorable to the prosecution is not sufficient to cure the prosecutor’s failure to indorse and produce the witness where it cannot be said with certainty that the witness’s testimony, would not have been favorable to the defendant.
    6. Criminal Law — New Trial — Witnesses—Res Gestae Witnesses.
    Denial of a defendant’s motion for a new trial, where defendant alleged failure of the prosecutor to indorse and produce res gestae witnesses, is error absent a hearing to determine whether the prosecutor exercised due diligence or whether the witnesses’ testimony was likely to be cumulative.
    7. Witnesses — Criminal Law — Res Gestae Witnesses — Harmless Error.
    The nonindorsement and nonproduction of res gestae witnesses was harmless error, and reversal of a defendant’s conviction is not required, where the evidence against the defendant was so overwhelming that aside from the taint of the error all reasonable jurors would find guilt beyond a reasonable doubt.
    8. Criminal Law — Appeal and Error — Remarks op Court — Prejudice.
    Matters of appeal are not proper questions to be presented before a jury; however, a trial judge’s statement made during a ruling on a motion that the court was willing to make a record for the reviewing court was not prejudicial to the defendant where the court promptly ordered the remark stricken, ordered the jury to disregard it, and later carefully instructed the jury on their duty and on the differing responsibilities of judge and jury.

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

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.

      Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant was arrested and charged with armed robbery, MCL 750.529; MSA 28.797. He was convicted by jury trial on December 17, 1976, and later sentenced to life imprisonment.

On May 20, 1976, Cook’s Pharmacy in Redford Township was robbed. An armed robber, disguised, robbed the pharmacy of money and drugs. An employee followed the robber in his car to a motel a short distance away and then notified police. When the police arrived they proceeded to the room the suspect had entered. Through the window they observed defendant stacking money on the dresser and they saw several pill bottles on the bed. An officer then arrested defendant and confiscated the pills, the money, and several items bearing the name Cook’s Pharmacy. Defendant appeals his conviction as of right.

Defendant makes several claims of error. He argues that the trial court erred in refusing his request to instruct the jury on alibi. We find no error.

It is true that in People v Burden, 395 Mich 462; 236 NW2d 505 (1975), the Supreme Court stated that if requested an alibi instruction must be given. But the present case differs from Burden. There was at least some testimony given in Burden which supported an alibi defense, if believed by the jury. In the instant case no evidence of an alibi defense was given. Although defendant does not have the burden of proof on the alibi issue, he has the burden of producing at least some evidence in support of his claim of alibi, possibly sufficient evidence to raise a reasonable doubt. People v Marvill, 236 Mich 595; 211 NW 23 (1926). Defendant here presented no proper evidence in support of an alibi, not even his own testimony.

Those cases dealing with the defense of insanity provide an apt analogy. Just as one must do more than merely assert an insanity defense to become entitled to a jury determination, People v Livingston, 57 Mich App 726; 226 NW2d 704 (1975), so one must present some evidence of an alibi defense beyond its mere assertion. The court should not give instructions not supported by the evidence. People v Dembinski, 62 Mich App 583; 233 NW2d 662 (1975). In this case an instruction on alibi would have misled the jury into believing that defendant had presented evidence of alibi, when in fact he had not. Defendant was not entitled to an alibi instruction.

Defendant also contends that it was error for the trial court to charge that the jury must be convinced of defendant’s guilt, not beyond all reasonable doubt but beyond a reasonable doubt, in order to convict. He asserts that the following sentence in the court’s instructions constitutes error:

"Each and every one of you must be satisfied beyond a reasonable doubt — note, if you will, I did not say 'beyond all reasonable doubt’; I said 'beyond a reasonable doubt’ — after deliberating that the defendant is guilty before you can return a verdict of guilty.”

As given the phrase is ambiguous. It may be read as advising the jury that "beyond all reasonable doubt” is not the proper standard to use for conviction. It may also be read as charging the jury that the proper standard is "beyond a reasonable doubt”, thus differentiating the two standards. Defendant argues that the two are the same and that the jury was thus confused. It is not clear that a jury would necessarily be confused by the instructions as defendant suggests.

When an allegedly erroneous instruction is subject to two or more interpretations, it is proper to read the instructions in their entirety to determine if the trial court resolves the ambiguity by other comments it makes and instructions it gives. People v Beard, 78 Mich App 636; 261 NW2d 27 (1977). An ambiguity exists in the present case: reading the instructions as a whole is an appropriate mechanism to resolve the ambiguity. The instructions as a whole clearly state that the prosecution must prove the defendant guilty beyond a reasonable doubt. The proper standard of proof was set out by the trial court.

Defendant next claims that the prosecutor’s failure to endorse and produce a res gestae witness requires reversal. The prosecutor is required to endorse only those witnesses known to him at the time the information is filed. People v Erb, 48 Mich App 622; 211 NW2d 51 (1973). He is, however, required to exercise due diligence in seeking to ascertain the identities of any witnesses. People v Simpson, 57 Mich App 320; 225 NW2d 748 (1975). The prosecutor may be excused from producing a res gestae witness if he makes a showing that he used due diligence in attempting to produce the witness or if the witness’s testimony would be cumulative. People v Buero, 59 Mich App 670; 229 NW2d 880 (1975).

In this case there was no showing of due diligence by the prosecutor, nor sufficient evidence of cumulativeness to justify nonproduction on those grounds. The court erred in submitting the issue of nonproduction to the jury in the absence of sufficient evidence to permit a jury to find due diligence or cumulativeness. People v Yarborough, 61 Mich App 303; 232 NW2d 394 (1975).

Moreover, it was error for the trial court to attempt to cure the prosecutor’s failure to endorse a res gestae witness by instructing the jury that they were entitled to infer that the nonproduced witness’s testimony would be unfavorable to the prosecution. Such an instruction is not sufficient in all cases in which a res gestae witness was not endorsed. In People v Harris, 56 Mich App 267; 224 NW2d 57 (1974), in which the Court found that the testimony of the missing witness would have been definitely favorable to the defendant, the failure to use diligence to produce that witness was reversible error, despite the court’s curative instruction. Likewise, People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975), holds that the curative instruction at issue is not always sufficient.

"If the witness’s testimony gives complicated or detailed corroboration of the defendant’s version of the facts or if the testimony contains complicated or detailed rebuttal of prosecution evidence, the only remedy may be a new trial.” 60 Mich App at 417.

Here we cannot say with certainty that the testimony of the unproduced res gestae witnesses does not fall within the Harris or Gordon or a similar exception. The trial court’s instruction did not remedy its error.

It was also error for the trial court to deny defendant’s motion for a new trial, which alleged failure to endorse and produce res gestae witnesses. There was no hearing as mandated by People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), to determine whether due diligence has been exercised or whether the witnesses’ testimony was likely to be cumulative.

However, in this case, there was overwhelming evidence against defendant which renders the trial court’s errors harmless. The rationale of harmless error was discussed in People v Hadley, 67 Mich App 688, 691-692; 242 NW2d 32 (1976).

"We are constrained to add this opinion to those which have held that nonendorsement and nonproduction was harmless error. We do not find this error unduly 'offensive to the maintenance of a sound judicial process’. People v Swan, 56 Mich App 22, 31-32; 223 NW2d 346 (1974). We base our decision on the overwhelming evidence against defendant. Where 'the proof was so overwhelming, aside from the taint of the error, that all reasonable jurors would find guilt beyond a reasonable doubt’, then a defendant’s conviction should be affirmed. People v Swan, supra, 33, quoting from Saltzburg, The Harm of Harmless Error, 59 Va L Rev 988, 1014, fn 89.”

In the case before us, three witnesses described the robber. One witness testified that he saw the robber get into an automobile belonging to defendant and that he followed the automobile to a nearby motel. A few minutes later defendant was apprehended in a motel room in which the proceeds of the robbery were found. The car in which the robber fled was outside the room. Defendant had been observed handling the stolen money, apparently counting it. Given the overwhelming evidence, we can only conclude that "aside from the taint of the error * * * all reasonable jurors would find guilt beyond a reasonable doubt”. People v Hadley, supra, at 692. The error was harmless.

Finally, defendant asserts that he was prejudiced when, during trial, the judge stated that he was willing to make a record for the reviewing court. Upon objection by defendant, the trial court promptly ordered the remark stricken from the record and ordered the jury to disregard it.

Matters of appeal are not proper questions to be presented before a jury. See People v Connors, 251 Mich 99; 230 NW 931 (1930). But any prejudice resulting from the remark can be cured by a proper instruction. People v Krogol, 29 Mich App 406; 185 NW2d 408 (1971).

When a statement similar to the one made in this case has been made in the course of jury instructions, at least one court has found any error cured by a thorough charge on the duty of the jury. State v Clark, 227 Or 391; 362 P2d 335 (1961). A panel of this Court, relying on the Oregon decision, held there was no reversible error when the trial judge in his preliminary instructions to the jury said that any errors made by the trial judge would be reversed by a higher court. People v Foster, 77 Mich App 604; 259 NW2d 153 (1977). Among the factors relied on by the Court was the trial court’s predeliberation instructions to the jury which impressed upon the jury the solemnity and importance of their duty. 77 Mich App at 616.

The allegedly improper remark was made during a ruling on a motion by defendant. The remark was stricken and the jury told to disregard it upon objection by defendant. The jury was later carefully instructed on their duty and the differing responsibilities of judge and jury. Under the circumstances defendant suffered no prejudice great enough to constitute reversible error.

We have examined the briefs and record and find defendant’s remaining claims to be without merit.

Affirmed.

       Defendant attempted to introduce evidence of his alibi but none of it was proper. Defendant claims that, although his alibi witness could not testify that he was in the bar where she worked on the afternoon of the robbery, her testimony did establish that defendant knew what the topics of conversation were in the bar on that date. This is not the case. Although defendant’s questions of the witness incorporated details of the alleged conversations, questions are not evidence and cannot establish anything regarding defendant’s knowledge.
      Defendant also contends that the testimony of Sergeant Livingston regarding a statement made by defendant at the time of his arrest supports his claim of alibi. Over the objection of the prosecutor, Sergeant Livingston testified on cross-examination that defendant stated on arrest that he was in the Rustic Pub at the time of the robbery. The transcript clearly reveals, however, that this testimony was not admitted to establish the truth of defendant’s statement, but only to show that such a statement was made. Defendant so stipulated on the record. Clearly Sergeant Livingston’s testimony cannot be used to support defendant’s claim of alibi.
      Defendant also points out in his brief that the prosecutor sought to refute defendant’s claim of alibi in his closing argument. Once again, statements of counsel are not evidence. That the prosecutor thought it necessary to argue that defendant had failed to establish his alibi does not necessarily mean that defendant had presented alibi evidence.


text:
    PEOPLE v YATOOMA
    Docket No. 77-2415.
    Submitted June 21, 1978, at Detroit.
    Decided August 21, 1978.
    Leave to appeal applied for.
    Defendant, Harry Yatooma, was convicted of one count of conspiracy to burn real property and one count of burning real property in the Recorder’s Court of Detroit, Thomas L. Poindexter, J. The primary evidence against him was the testimony of two co-conspirators who testified under a grant of immunity. Defense counsel, in cross-examination, questioned one of the two co-conspirators about the terms of the immunity grant and elicited the answer that as a condition of the immunity grant the witness had to pass a lie-detector test. Defense counsel moved for a mistrial and, when that was denied, refused the offer of a cautionary instruction by the Court. Defendant appeals. Held:

    In reviewing a criminal trial in which evidence of a polygraph examination was introduced for the prejudicial effect of the evidence the following factors should be considered: (1) whether the defendant objected and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster the witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted; under the facts of this case the reference to the lie-detector test was reversible error.
    Reversed and remanded.
    Criminal Law — Appeal and Error — Evidence—Polygraph Examination.
    Evidence of a polygraph examination is inadmissible in a criminal trial; in reviewing the prejudicial effect of the admission of evidence of a polygraph examination of one of the witnesses the following considerations should be weighed: (1) whether the defendant objected and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster the witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted.

      References for Points in Headnote
    29 Am Jur 2d, Evidence § 296.
    75 Am Jur 2d, Trial §§ 110, 208, 266.
    Propriety and prejudicial effect of comment or evidence as to accused’s willingness to take lie detector test. 95 ALR2d 819.

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

      Daniel R. Siefer and Colista, Green, Green & Adams (by Richard C. Kaufman), for defendant.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

Defendant Harry Yatooma, convicted at a jury trial of one count of conspiracy to burn real property, MCL 750.73, 750.157a; MSA 28.268, 28.354(1), and one count of burning real property, MCL 750.73; MSA 28.268, was sentenced to concurrent prison terms of three to ten years.

The primary evidence of defendant’s involvement in a fire at the Al Hadaf Printing Shop in Detroit was the testimony of Michael Robinson and Hazim Saeegh. Robinson and Saeegh both testified under grants of immunity from the prosecution. Saeegh testified that he was approached by Johnny Yaldoo, who asked Saeegh to arrange with Robinson to burn the print shop as a favor to defendant. Saeegh later discussed the fire directly with defendant.

Robinson testified that Yaldoo and Saeegh instructed him to burn the print shop and gave him a key which he eventually used to enter the shop and set the fire. Some time after the fire defendant admitted to Robinson that he had arranged for the fire.

On cross-examination Robinson stated that part of the immunity deal he had made with the prosecutors was that he would not be charged relevant to his involvement in approximately 30 other fires. The questioning then turned to other aspects of the immunity agreement:

"Q (By Mr. Varga, continuing) [Defense Attorney]: Are you being prosecuted for any of those fires?
"A No, I’m not.
"Q Is that part of your deal with the Prosecutor’s office?
"A That is one of the major clauses of immunity.
"Q What are some of the other clauses?
"A That I pass a lie-detector test.”-

Following this response the jury was removed and defendant moved for a mistrial. The court denied the motion, but offered to give a cautionary instruction for the jury to disregard the mention of a polygraph test. Defense counsel, refused the instruction, arguing that no instruction could remove the prejudice of the remark from the jurors’ minds.

There is no dispute that evidence of a polygraph examination is inadmissible under Michigan law. People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), People v Davis, 343 Mich 348; 72 NW2d 269 (1955). Clearly the prosecution could not have asked Robinson about the test, or introduced any evidence as to the test results.

In the present case, however, the statement concerning the polygraph was made in a seemingly unanticipated response to a question by defense counsel. Our research reveals several cases in which polygraph testimony was elicited on cross-examination of a witness.

In People v Leroy Goodwin, 40 Mich App 709; 199 NW2d 552 (1972), the reference to a polygraph test occurred during the cross-examination of the prosecution’s chief witness, a police informant who was testifying after a pending charge against him had been dropped. The witness, responding to counter defendant’s suggestion that the charge had been dropped in exchange for the testimony, stated that the charge was dismissed after he had successfully passed a polygraph test. Testimony regarding this test was also brought forth during the direct and cross-examinations of a police witness.

The Goodwin Court, noting that defendant neither objected to the testimony nor sought a cautionary instruction, nevertheless found reversible error. In reaching this decision, the Court took into account several factors:

"In considering the possible prejudicial effect of the inadmissible evidence in the case at bar, it is significant to note that reference was made to polygraph tests on two separate occasions by different state witnesses. In both instances said reference was neither brief nor inadvertent, but, on the contrary, was a clear attempt to rehabilitate and restore informant Booker’s credibility. In both situations the results of the test were testified to in the jury’s presence. The problem was further aggravated by the police officer testifying as to the reliability of such tests. Furthermore, it is pointed out that informant Booker’s testimony was the crucial aspect of the prosecution’s case and impeaching his credibility became defendant’s major tactic of defense. In light of all the above, we reach the conclusion that the introduction of the inadmissible evidence may well have improperly influenced the jury’s verdict in this case so as to constitute a miscarriage of justice. The accused thus becomes entitled to a new trial.” (Footnote omitted.) 40 Mich App at 715-716.

A similar approach, involving analysis of a number of factors, was taken by this Court in People v Whitfield, 58 Mich App 585; 228 NW2d 475 (1975). The Whitñeld Court considered (1) whether defendant objected and/or sought a cautionary instruction; (2) whether the reference was inadvertent; (3) whether there were repeated references; (4) whether the reference was an attempt to bolster the witness’s credibility; and (5) whether the results of the test were admitted rather than merely the fact that a test had been conducted. 58 Mich App at 588-591. The Court concluded, based on the facts of the particular case, that no reversible error had been committed. See also People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975), People v Lawson, 48 Mich App 662; 211 NW2d 96 (1973), People v Paffhousen, 20 Mich App 346; 174 NW2d 69 (1969).

Applying this factor analysis to the case at bar, we conclude that defendant is entitled to a new trial. Admittedly several factors do lean toward a finding of harmless error. The remark was an isolated and apparently inadvertent occurrence. Defendant refused to allow a cautionary instruction. However, these factors are outweighed by the remaining considerations.

Defendant did seek a mistrial. The decision to forego an instruction, after the mistrial motion was denied, was a legitimate tactical decision, as defense counsel did not want the jury reminded that the remark had been made. Further, the results of the test were made known to the jury rather than just the fact of the test, since the witness stated that he had to "pass” the test before the immunity was approved.

The most telling factor weighing for reversal is the effect of the remark on the critical issue of the trial, namely the relative credibilities of Robinson and Saeegh versus defendant. The jury, required to choose between two directly conflicting stories regarding defendant’s involvement in the fire, cannot be presumed to have been unaffected by evidence that one of the witnesses had successfully passed a lie-detector test prior to his testimony. In addition, the jury may have made an inference, although no testimony was presented on the subject, that Saeegh also had to have passed a polygraph test prior to his grant of immunity. A primary rationale behind exclusion of polygraph testimony is that such evidence is not as yet sufficiently reliable, by way of scientific recognition, to risk the potentiality that the trier of fact will suspend its powers of deliberation and rely solely on the results of the test. See People v Barbara, supra at 404, fn 36. We conclude that a sufficient possibility existed in defendant’s trial that the jury may have resolved the credibility issue by reference to the polygraph testimony. We therefore must reverse the conviction. People v Leroy Goodwin, supra.

In light of this disposition, we need not discuss the other issues raised by defendant. We will note, however, that rebuttal testimony is admissible only to refute relevant and material evidence, and cannot be introduced in regard to collateral matters. People v Bennett, 393 Mich 445; 224 NW2d 840 (1975).

Reversed and remanded.


text:
    BEAMON v CITY OF HIGHLAND PARK
    Docket No. 77-2435.
    Submitted June 19, 1978, at Detroit.
    Decided August 21, 1978.
    Leave to appeal applied for.
    Plaintiff, Olivia Beamon, was injured in a fall while walking down a public sidewalk in the City of Highland Park when she tripped over an uneven section of the sidewalk. She sued defendant, City of Highland Park, and the Wayne Circuit Court, Irwin H. Burdick, J., granted a judgment notwithstanding the verdict in favor of the defendant. Plaintiff appeals. Held:

    Under the statute governing such suits the city must have notice of the defect by 1) actual notice, 2) existence of the defect for over 30 days, in which case the presumption of notice is conclusive, or 3) evidence showing that the city should have discovered and repaired the defect in the exercise of reasonable diligence; where there is no evidence presented from which the jury might infer notice in one of these forms, a judgment notwithstanding the verdict on behalf of defendant was proper.
    Affirmed.
    1. Highways — Sidewalks-—Liability for Defects — Notice of Defect — Statutes.
    The statute governing suits against governmental agencies for injuries caused by defective highways, including sidewalks, requires notice of the defect to the governmental agency in one of three ways: 1) actual notice; 2) existence of the defect for 30 days prior to the injury, which establishes a conclusive presumption of notice; or 3) evidence showing that the governmental agency should have discovered and repaired the defect in the exercise of reasonable diligence (MCL 691.1403; MSA 3.966[103]).
    2. Judgments — Judgment Notwithstanding the Verdict.
    A trial court, in order to properly grant a judgment notwithstanding the verdict, must find that, taking the evidence most favorably to the party against whom the judgment is sought, reasonable people could not have honestly reached a different conclusion.

      References for Points in Headnotes
    [1] 39 Am Jur 2d, Highways, Streets, and Bridges §§ 411, 415.
    [2] 46 Am Jur 2d, Judgments §§ 106-108.

      Turner & Turner, P. C. (by Carol Petsko), for plaintiff.

      George W. Moore, City Attorney, and Norris Goudy, Assistant City Attorney, for defendant.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

Plaintiff, Olivia Beamon, appeals from the trial court’s grant of a judgment notwithstanding the verdict in favor of defendant.

The incident that precipitated this lawsuit occurred on September 26, 1972. On that date, plaintiff was walking along a public sidewalk in Highland Park when she tripped over an uneven section of the sidewalk and fell, resulting in a knee injury. She brought the complaint against the city under MCL 691.1403; MSA 3.996(103), which reads:

"No governmental agency is liable for injuries or damages caused by defective highways unless the governmental agency knew, or in the exercise of reasonable diligence should have known, of the existence of the defect and had a reasonable time to repair the defect before the injury took place. Knowledge of the defect and time to repair the same shall be conclusively presumed when the defect existed so as to be readily apparent to an ordinarily observant person for a period of 30 days or longer before the injury took place.”

For the purposes of the statute the term "highway” includes public sidewalks. MCL 691.1401; MSA 3.996(101).

The issue in dispute in the present appeal is whether the city had constructive notice of the sidewalk defect so as to subject it to liability under the statute. Plaintiff testified that she did not see the defect before she tripped, but that it was clearly visible. She also stated that she had walked down the same sidewalk prior to the date of the fall and had not noticed any defect. Plaintiff did introduce photographs of the sidewalk to illustrate its condition as of September 26, 1972.

The superintendent of public services for the city also testified. He admitted that the sidewalk in question was a public area, for which the city was responsible for maintenance. He also testified that the city had no actual notice or knowledge of the sidewalk defect until plaintiff’s accident was reported. The sidewalk had last been inspected on April 13, 1972. The defect in question was repaired approximately one week after the accident.

There was no testimony presented in relation to how long the defect had been present. There were no witnesses presented from the business establishments or residences in the immediate area.

At the close of proofs defendant moved for a directed verdict, which was taken under advisement pending the jury’s verdict. The jury found for plaintiff in the amount of $20,000. Immediately thereafter, the court granted the judgment notwithstanding the verdict, stating in part:

"This is the Court’s opinion: there is not a shread of evidence in this case to support any contention on the part of the plaintiff that the defendant, City of Highland Park, did have or should have had any notice or any information prior to the City’s part to lead them to believe that it had notice. The only evidence submitted was that of photographs showing defective sidewalk. Let it further be stated on the record that this accident occurred in front of the Goodwill on Hamilton Avenue, that there are business places there and yet despite the fact that there are business places there and the sidewalk was in that condition, nobody has proffered an order to show that the defect of the sidewalk as it existed was there for any period of time; that the jury verdict had to be speculative.”

Under the statute there are three ways to show notice: (1) actual notice, (2) existence of the defect for over 30 days, which establishes a conclusive presumption of notice, and (3) evidence showing that the city should have discovered and repaired the defect in the exercise of reasonable diligence, i.e., constructive notice. It was not argued that either actual or presumptive notice was present in the case at bar.

In order to properly grant a judgment nov, the trial court must have found, taking the evidence most favorably to plaintiff, that reasonable people could not have honestly reached different conclusions. Doran v Equitable Life Assurance Soc of the United States, 58 Mich App 507; 228 NW2d 437 (1975). Although we agree with plaintiff that the issue of constructive notice would generally be a question of fact for the jury, we conclude that on the facts below the trial judge correctly rendered judgment for defendant. We concur with the trial court that there was a virtual absence of any evidence with which the jury could have reasonably inferred that the city had a reasonable opportunity to discover and repair the defect. By contrast, in other cases involving constructive notice under this statute, the trier of fact was presented with at least some evidence from which notice could be inferred. See Peters v Dept of State Highways, 400 Mich 50; 252 NW2d 799 (1977), Burgdorf v Holme-Shaw, 356 Mich 45; 96 NW2d 164 (1959), Hargis v Dearborn Heights, 34 Mich App 594; 192 NW2d 44 (1971). In the case at bar plaintiff merely proved that the defect existed at the moment of her fall. Absent additional evidence, it was not reasonable to infer that the defect was sufficiently long-standing and/or notorious in support of the jury verdict of constructive notice. Whitford v Twp of Washington, 184 Mich 422; 151 NW 632 (1915).

Affirmed. Costs to appellee.


author: Per Curiam. N. J. Kaufman, J.

text:
    PEOPLE v ANTONIO JOHNSON
    Docket No. 77-2563.
    Submitted April 13, 1978, at Detroit.
    Decided August 21, 1978.
    Antonio A. Johnson was charged with manslaughter. At a pretrial Walker hearing to determine the voluntariness and admissibility of a statement made by the defendant, the trial court found that, although the defendant had been properly advised of and had waived his Miranda rights, the statement must be. suppressed because the defendant was arrested in the morning of March 3 and was not arraigned until March 5, and therefore was not arraigned without unnecessary delay as required by the prompt arraignment statute, Recorder’s Court of Detroit, George W. Crockett, Jr., J. The people appeal by leave granted. Held:

    The statement by the defendant would be admissible because the delay between the defendant’s arrest and arraignment was not employed as a tool to extract the statement from the defendant.
    Reversed and remanded to another Recorder’s Court judge for a determination of the voluntariness and admissibility of the statement in question.
    N. J. Kaufman, J., concurred. He would hold that the statement should not be suppressed solely because of a statutory violation. However, he would not condone the procedure of a "reverse writ” of habeas corpus to hold the defendant in derogation of his rights.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 440, 456.
    29 Am Jur 2d, Evidence § 547.
    Admissibility of confession as affected by delay in arraignment of prisoner. 19 ALR2d 1331.
    [2] 29 Am Jur 2d, Evidence §§ 529, 543.
    [3] 29 Am Jur 2d, Evidence §§ 555-557.
    Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation. 10 ALR3d 1054.
    [4] 39 Am Jur 2d, Habeas Corpus §§ 1, 2.

      Opinion op the Court
    1. Criminal Law — Arrest—Felony—Arraignment—Unreasonable Delay — Evidence—Confessions—-Exclusion op Evidence— Statutes.
    The statutes governing the arrest-arraignment process provide that after a defendant has been arrested on a felony charge he shall be taken before a magistrate for arraignment without unnecessary delay; however, this does not require the exclusion of every admission or confession obtained during a period of unreasonable delay; only when the delay has been employed as a tool to extract a statement should an exclusionary rule be imposed under these statutes (MCL 764.13, 764.26; MSA 28.871[1], 28.885).
    2. Criminal Law — Statements by Dependant — Voluntariness of Statements — Evidence—Admissibility of Statements.
    The determination of the voluntariness of statements made by a criminal defendant is a matter of fact; voluntary statements are admissible and involuntary statements are not.
    3. Criminal Law — Interrogation op Suspect — Police Conduct— Precise Command op Miranda.
    Police conduct in the interrogation of a suspect is governed by the "precise command” of Miranda and not by a much broader prohibition.
    Concurrence by N. J. Kaufman, J.
    4. Constitutional Law — Habeas Corpus — Persons Illegally Confined — Reverse Writ op Habeas Corpus.

      Habeas corpus is a civil proceeding the main purpose of which is to cause the release of a person illegally conñned, to inquire into the authority of law by which a person is deprived of his liberty; a reverse writ of habeas corpus, used to hold a defendant in derogation of his rights, is not mentioned in the constitution and is wrong (Const 1963, art 1, § 12).

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

      George P. Mann, for defendant on appeal.

      Before: T. M. Burns, P. J., and N. J. Kaufman and Bashara, JJ.
   Per Curiam.

This is a prosecutor’s appeal by leave granted to review the trial court’s pretrial decision to suppress a statement made by the defendant after his arrest, but before his formal arraignment. On defendant’s motion, a Walker hearing was held. At the conclusion of the hearing, the court found that, although defendant was properly advised of and waived his Miranda rights, the statement must be suppressed because he was not arraigned without unnecessary delay, a violation of MCL 764.26; MSA 28.885. The prosecution for manslaughter, MCL 750.321; MSA 28.553, has been stayed, pending our review of that determination.

The charge against defendant is based on the strangulation death of Ernestine Payton in March of 1975. Defendant was a suspect and heard that the police were looking for him. He called the police around 9:15 a.m. on March 3, 1975, and agreed to turn himself in. A police car was sent to pick up the defendant and he was arrested at that time.

Defendant was given his Miranda rights and made an exculpatory statement shortly after his arrest. The admission of this first statement has not been questioned by the defense nor does the prosecutor intend to offer it in evidence at trial. Because the police did not believe the statement, defendant volunteered to support it by taking a polygraph test. An officer made an appointment for the polygraph examination for 11 a.m. the next day, March 4.

Since defendant was to be held in custody until the polygraph examination could be administered, he was taken before a judge for a "reverse writ” of habeas corpus. Defendant told the officer while in court, but before he appeared before the judge, that he was willing to talk about this crime. The officer refused to speak to the defendant about the incident until after the polygraph test. What defendant was told by the judge during the "reverse writ” proceeding does not appear in the record. The officer who accompanied defendant before the judge did not testify, even though the prosecutor offered to produce him.

No further questioning of defendant occurred before the polygraph exam the next day. However, after the test results did not support defendant’s initial statement, he was questioned by another officer from 3:20 p.m. to 4:20 p.m. on March 4. It was during this session that the challenged statement was given, reduced to writing and signed by the defendant. The contents of the statement do not appear in the record, but the prosecutor claims that it was still largely exculpatory. Defendant was formally charged and arraigned on a second-degree murder count on March 5.

In the motion requesting a Walker hearing, defense counsel did not rely on the tardy arraignment as a basis for suppressing the statement. The matter was raised by the trial court after both counsel had completed examination of the officers testifying at the Walker hearing. Defendant had been called, but did not testify when the court indicated it was willing to rule on the admissibility of the statement based on the statute.

The court, in a written opinion, found that defendant had properly waived his Miranda rights before each of the questioning sessions. The court found, however, that since defendant was arrested in the morning of March 3 and not arraigned until March 5, the statement must be suppressed because of a violation of MCL 764.26; MSA 28.885, the prompt arraignment statute. The court also discussed, but made no specific findings on, a due process violation and the voluntariness of the statement. The question for our review is whether this statement should be suppressed solely because of a statutory violation. The Supreme Court has considered the same question. In People v White, 392 Mich 404, 424; 221 NW2d 357 (1974), the Court stated:

"These sections, while straightforward in their command to the police, have not been interpreted by this Court or [sic] require the exclusion of every admission or confession obtained during a period of unreasonable delay. Only when the delay has been employed as a tool to extract a statement has an exclusionary rule been imposed under these sections. People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960); People v Harper, 365 Mich 494; 113 NW2d 808 (1962); People v Farmer, 380 Mich 198; 156 NW2d 504 (1968).”

The question for the trial court was whether the delay from defendant’s arrest on the morning of March 3 until the time the statement was given between 3:20 p.m. and 4:20 p.m. on March 4 was "employed as a tool to extract a statement”. We hold that the trial court abused its discretion in finding that this delay was used to coerce a confession.

The record shows that defendant was questioned by the police three times in this 30-hour period: once shortly after his arrest, during the polygraph examination, and shortly after the polygraph had been administered. The defendant was warned of his Miranda rights on each occasion and the officers testified that no request for an attorney or to stop the interrogation was ever made. Indeed, the defendant asked for the polygraph and expressed a willingness to talk about the incident while waiting in court for the reverse writ. The questioning session which led to the challenged statement was apparently a result of defendant’s desire to talk about the incident expressed before the reverse writ proceeding.

There is nothing in this record to indicate that defendant was coerced or that the statement was involuntary. The statement was not "sweated out” of the defendant by constant and unrelenting interrogation, the real thrust of those cases applying an exclusionary rule for the type of violation found here. See, People v Farmer, 380 Mich 198; 156 NW2d 504 (1968). Each of the questioning sessions was preceeded by warnings and, if the officer’s testimony is believed, defendant was more than willing to talk about the incident.

The question isn’t one of delay, but of whether the statement was voluntary or coerced. People v Dawson, 29 Mich App 488, 495; 185 NW2d 581 (1971), People v Gwinn, 47 Mich App 134, 141-142; 209 NW2d 297 (1973). The determination of voluntariness is a matter of fact. Voluntary statements are admissible and involuntary statements are not. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972) . Police conduct in the interrogation of a suspect is governed by the "precise command” of Miranda and not, as the trial court held, a much broader prohibition. People v Charlie Lee Woods, 382 Mich 128; 169 NW2d 473 (1969). The trial court erred in ordering the statement suppressed.

Reversed and remanded to another Recorder’s Court judge for a determination of the voluntariness and, therefore, the admissibility of the statement in question.

N. J. Kaufman, J.

(concurring). A prisoner’s right to habeas corpus is granted by Const 1963, art 1, § 12. As noted in People v McCager, 367 Mich 116, 121; 116 NW2d 205 (1962):

"Habeas corpus is a civil proceeding the main purpose of which is to cause the release of persons illegally confined, to inquire into the authority of law by which a person is deprived of his liberty.”

Nowhere in the constitution is there mention of a "reverse writ”, used to accomplish exactly what the constitutional provision protects against. In this case, the "reverse writ” was used to hold defendant in derogation of his rights under MCL 764.26; MSA 28.885. This is wrong and I certainly do not condone the procedure.

Nevertheless, as the question presented for appelláte review was narrow, "whether [the] statement should be suppressed solely because of a statutory violation,” I concur separately from the majority opinion. See People v White, 392 Mich 404; 221 NW2d 357 (1974), People v Hamilton, 359 Mich 410; 102 NW2d 738 (1960).

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

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

       See also, MCL 764.13; MSA 28.871(1).

       Defendant was originally charged with second-degree murder, MCL 750.317; MSA 28.549, but pled guilty to manslaughter. After a hearing ordered by this Court on appeal, the plea was set aside. There is no question that the people are now restricted to prosecuting defendant for manslaughter. People v McMiller, 389 Mich 425; 208 NW2d 451 (1973).

       Judge Crockett stated in his opinion, "The reverse writ proceeding is informal and without any documentation. It is the local police method of seeking judicial approval for extended detention of an arrestee without benefit of a warrant.”

       Mere delay in taking a defendant before a judge does not make admission of a statement taken during the delay a violation of due process. The question, under the due process clause, is whether the statement was coerced; even if the delay was a violation of state law. See, e.g., Crooker v California, 357 US 433; 78 S Ct 1287; 2 L Ed 2d 1448 (1958), Clewis v Texas, 386 US 707; 87 S Ct 1338; 18 L Ed 2d 423 (1967), and Anno: Admissibility of confession, 1 L Ed 2d 1735, 1747, § 6, n 5.

       For purposes of discussion we have accepted the trial court’s finding that the statute was violated. This assumption is based primarily on the lack of a showing of what defendant was informed of when he appeared before the judge on March 3. If the prosecutor can show that defendant was judicially warned of his rights, we would then be able to consider whether such a proceeding is an adequate substitute for an arraignment.

        White involved a pre-Miranda statement. There is no reason to believe that the statutory analysis should be any different post-Miranda. The quoted portion of the opinion was endorsed by all five participating justices.

       The delay is counted only to the point that the statement in question is made. Obviously, any delay after the statement is made could not have contributed to coercing it. People v Livingston, 57 Mich App 726; 226 NW2d 704 (1975), remanded on other grounds, 396 Mich 818 (1976).

       It must be recalled that the trial court made its ruling without the benefit of defendant’s testimony and the testimony of the other officers who would have been called by the prosecution. We do not know whether the prosecutor would consider the record complete enough to allow a different judge to consider the voluntariness on the present record. Since the prosecution bears the burden of showing that the statement is voluntary, it will be up to it to determine whether more testimony must be taken.


text:
    MAYS v INSURANCE COMPANY OF NORTH AMERICA
    Docket No. 77-2604.
    Submitted May 4, 1978, at Grand Rapids. —
    Decided August 21, 1978.
    Leave to appeal applied for.
    Plaintiff John A. Mays brought suit to collect benefits allegedly owed to him under a policy of disability insurance issued by defendant Insurance Company of North America to the plaintiff’s employer. The policy entitled the plaintiff to receive disability benefits reduced by any social security or worker’s compensation which was "payable” to him. The Kalamazoo Circuit Court, Donald T. Anderson, J., held that plaintiff was entitled to the disability benefits reduced by the amount of social security and worker’s compensation which plaintiff had already received. Plaintiff appeals challenging the setoffs. Held:

    So long as plaintiff has received or has a right to receive the social security and worker’s compensation benefits, those benefits are "payable” within the meaning of the contract. Whether or not the social security or worker’s compensation benefits were previously "payable” during the time when the plaintiff’s right to receive them was disputed is irrelevant to a determination of whether the defendant may now reduce its obligation by the amounts of social security and worker’s compensation already paid. Such setoffs are clearly authorized in the disability insurance contract.
    Affirmed.
    Insurance — Disability Insurance — Contracts—Social Security— Worker’s Compensation Benefits — Payable Benefits — Set-offs — Right to Receive Benefits.
    Whether or not social security or worker’s compensation benefits were previously "payable” to an insured during the time when the insured’s right to receive such payments was disputed is irrelevant to a determination of whether the insurer may now reduce, by the amount of social security and worker’s compensation already paid to the insured, its obligation to the insured under a policy of disability insurance clearly authorizing a setoff where such benefits are "payable” to the insured; as long as plaintiff has received or has a right to receive the social security and worker’s compensation benefits, those benefits are "payable” within the meaning of the contract and may, therefore, be set off in accordance with the contract.

      References for Points in Headnote
    44 Am Jur 2d, Social Security and Medicare § 43.
    82 Am Jur 2d, Workmen’s Compensation § 364.

      Ford, Kriekard, Staton, Allen & Decker, P. C., for plaintiff.

      Cholette, Perkins & Buchanan (by Robert A. Benson), for defendant.
    Before: D. E. Holbrook, Jr., P. J., and Bashara and R. M. Maher, JJ.
   Per Curiam.

Plaintiff brought suit to collect benefits which he believed were owed to him under a policy of disability insurance issued by defendant to plaintiff’s employer. Under this policy plaintiff was entitled to receive disability benefits, reduced by any social security or worker’s compensation which was "payable” to him. The trial judge ruled that plaintiff was entitled to collect the disability benefits, however, the judge also ruled that these benefits were to be reduced by the amount of social security and worker’s compensation which plaintiff had already received. Plaintiff now appeals challenging these setoffs.

Plaintiff’s major contention is that these benefits were not "payable” because his right to receive them had been initially disputed; as a result, he contends that a setoff of these benefits is inappropriate. We disagree. Whether or not the social security or worker’s compensation benefits were previously "payable” during the time they were disputed is irrelevant to a determination of whether the defendant now may reduce its obligation by the amounts of social security and worker’s compensation already paid. Such setoffs are clearly authorized in the disability insurance contract. So long as plaintiff has received or has a right to receive the social security and worker’s compensation benefits, those benefits are "payable” within the meaning of the contract. Bonney v Citizens’ Mutual Automobile Ins Co, 333 Mich 435; 53 NW2d 321 (1952). To adopt plaintiff’s view, that benefits are never payable if they are at any time disputed, would not only defeat the clear intent of the contractual language but would give plaintiff a windfall.

We note that plaintiff’s employer has appealed the award of worker’s compensation benefits to plaintiff. If the Workmen’s Compensation Appeal Board concludes plaintiff was not and is not entitled to compensation benefits, then those benefits would not be "payable” and defendant would be required to reimburse plaintiff for any sums plaintiff must repay to the worker’s compensation carrier and defendant would not be entitled to reduce its future obligation to plaintiff.

Plaintiff’s other arguments are meritless and do not warrant discussion.

Affirmed.


text:
    PEOPLE v WILLIAMS
    Docket No. 77-2839.
    Submitted June 20, 1978, at Detroit.
    Decided August 21, 1978.
    Leave to appeal applied for.
    Ricky Williams was charged with armed robbery. A jury was impaneled and sworn in the Recorder’s Court for the City of Detroit to hear the case. The prosecutor was thereafter allowed to interrogate the complaining witness out of the presence of the jury. After this hearing, and over defense objections, the trial judge, Thomas L. Poindexter, J., declared a mistrial based on alleged conversations by the defendant with a juror and upon alleged threats to the complainant. The defendant was thereafter reprosecuted and convicted of armed robbery in the Recorder’s Court for the City of Detroit, George W. Crockett, Jr., J. Defendant appeals claiming the reprosecution violated the double jeopardy clause. Held:

    There was no manifest necessity to declare a mistrial based on the alleged threats by the defendant against the complainant or on the alleged improper contact between the defendant and a juror. Before a trial judge sua sponte declares a mistrial he should make explicit findings, after a hearing on the record, that no reasonable alternative exists. This was not done here. Since there was no manifest necessity to declare a mistrial and the defendant did not consent to one, jeopardy attached in the first trial. Since by the second trial the defendant was placed in jeopardy twice, in violation of his constitutional right, the conviction will not stand.
    Reversed.
    1. Constitutional Law — Trial—-Criminal Law — Jeopardy—Jury— Mistrials — Manifest Necessity.
    A defendant is placed in jeopardy once a jury is impaneled and sworn; when a defendant has been placed in jeopardy he has a right to have his guilt weighed finally by that tribunal unless he consents to the trial’s interruption, or a mistrial occurs because of manifest necessity.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 176.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 180, 195.
    [3, 5, 6] 76 Am Jur 2d, Trial § 1083.
    [4] 76 Am Jur 2d, Trial § 1084.
    [7] 76 Am Jur 2d, Trial § 1089.

      2. Constitutional Law — Trial—Reprosecutions—Criminal Law— Mistrials — Jury—Double Jeopardy — Defendant’s Objections — Manifest Necessity.
    The reprosecution of a defendant following a trial judge’s sua sponte declaration of a mistrial after a jury is sworn violates the double jeopardy clause where the defendant did not object to the mistrial and there was no manifest necessity to declare a mistrial.
    3. Criminal Law — Trial—Mistrials—Manifest Necessity — Curative Measures — Judicial Discretion.
    The doctrine of manifest necessity applies to a declaration of a mistrial standing as a command to trial judges not to foreclose a defendant’s options to consider alternative curative measures before declaring the mistrial until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.
    4. Criminal Law — Trial—Mistrials—Judicial Discretion — Impartial Verdicts — Procedural Errors.
    A trial judge properly exercises his discretion to declare a mistrial where an impartial verdict cannot be reached, or where a verdict of conviction would have to be reversed on appeal due to an obvious procedural error in the trial.
    5. Criminal Law — Trial—Mistrial—Record—Curative Measures —Double Jeopardy — Alternatives.
    A trial judge, before he sua sponte declares a mistrial, should make explicit findings, after a hearing on the record, that no viable alternative curative measure exists; however, the double jeopardy clause will not bar a retrial, even if the examination of alternatives is not undertaken, if to do so would be futile because clearly no reasonable alternative existed.
    6. Appeal and Error — Trial—Mistrials—Armed Robbery — Improper Contacts — Court’s Findings — Record—Alternatives —Manifest Necessity.
    A trial court erred, in a trial for armed robbery, in sua sponte declaring a mistrial based in part on alleged improper contacts by the defendant with one of the 14 jurors and upon alleged threats to the complainant where the court did not make explicit findings, after a hearing on the record, that no reasonable alternative existed to the declaration of a mistrial, where the Court of Appeals finds that such alternatives existed, and where there was no manifest necessity to declare a mistrial.
    7. Constitutional Law — Criminal Law — Double Jeopardy — Armed Robbery — Mistrial—Jury—Defendant’s Consent — Manifest Necessity.
    A criminal defendant was placed in jeopardy twice, in violation of his constitutional right against double jeopardy, where he was convicted of armed robbery in a second trial after the trial judge’s sua sponte declaration of a mistrial, after the jury was sworn in his first trial, and where the defendant did not consent to the mistrial and there was no manifest necessity to declare a mistrial.

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

      Victor A. Gold, for defendant.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   Per Curiam.

On May 6, 1976, defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to a term of 10 to 15 years in prison, and appeals as of right.

The main issue raised on appeal is whether reprosecution of the defendant following the trial judge’s sua sponte declaration of a mistrial after the jury was sworn was violative of the double jeopardy clause. We hold that it was and that the information should be dismissed. As this question is dispositive, we do not consider the other issues raised by defendant.

Defendant was first brought to trial on September 4, 1975. On the following day, immediately prior to the completion of the jury selection process, one of the members of the jury panel asked to be and was excused by the trial judge apparently because she had observed the defendant conversing at length with one of the other panel members. Another member of the panel was then qualified as juror No. 14, and the jury was impaneled and sworn by the court.

Following the swearing of the jury, the prosecutor requested and was allowed to interrogate the complaining witness out of the presence of the jury. During the hearing, the complainant positively identified the defendant as the person who had robbed him. The complainant testified that defendant had approached him three or four times out of court prior to trial, had admitted the robbery and had offered to pay back the money taken to avoid going to court. Complainant further testified that defendant had told him that his brother was in the Mafia, and that he didn’t want his brother to go after the complainant.

Following this hearing, the trial court declared a mistrial based on the defendant’s alleged conversations with the juror and with complainant. Defense counsel vigorously opposed the mistrial.

Once a jury is impaneled and sworn a defendant is placed in jeopardy. United States v Jorn, 400 US 470, 479; 91 S Ct 547, 554; 27 L Ed 2d 543, 553 (1971), People v Tillard, 318 Mich 619; 29 NW2d 111 (1947), People v Gardner, 37 Mich App 520; 195 NW2d 62 (1972). When a defendant has been placed in jeopardy, he has a right to have his guilt weighed finally by that tribunal. Unless he consents to the trial’s interruption, or a mistrial occurs because of manifest necessity, the state is precluded from bringing him to trial again. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976).

In People v Benton, 402 Mich 47; 260 NW2d 77 (1977), Justice Levin analyzed the concept of manifest necessity as enunciated in United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824):

"Jorn requires that the judge consider viable alternative curative measures before sua sponte declaring a mistrial. As stated in Dinitz, quoting from Jorn, in the absence of a motion by a defendant for a mistrial, 'the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings’.
"In Illinois v Somerville, 410 US 458, 464, 471; 93 S Ct 1066; 35 L Ed 2d 425 (1973), the Court ruled that there was manifest necessity where under local law a defect in the indictment was not curative by amendment and could not be waived by the defendant’s failure to object: 'A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction * * * would have to be reversed on appeal due to an obvious procedural error in the trial.’
"The United States Court of Appeals for the Second Circuit reconciled Somerville and Jorn in these terms:
" ’Somerville holds, then, that the double jeopardy clause will not bar retrial even though the examination of alternatives mandated by Jorn is not undertaken if to do so would be futile because clearly no reasonable alternative existed.’ United States v Grasso, 552 F2d 46, 52, fn 2 (CA 2, 1977).” 402 Mich at 57-58 (original footnotes omitted).

In the instant case, the declaration of a mistrial did not involve an obvious procedural error or "a proceeding that at best would have produced a verdict that could have been upset at will by one of the parties”. Thus, we must consider whether a "scrupulous exercise of judicial discretion” would have revealed a less drastic remedy than declaration of a mistrial. United States v Jorn, supra, pp 484-485.

Two grounds were cited by the trial court as necessitating a mistrial. The court indicated that the conversation with the juror, standing alone, might have caused it to hesitate, but combined with the threat against the complainant, there was a sufficient basis to declare a mistrial.

We fail to perceive how the alleged threat by defendant could have necessitated a mistrial. The declaration of a mistrial and the subsequent second trial did not alter the fact that the complainant had been threatened, if in fact he had been threatened. Furthermore, complainant testified that the alleged threat had been made a year before the trial, and that nothing had happened since that time. In addition, the witness testified at both the preliminary examination and at the hearing after the jury was sworn that he was positive of the identity of the defendant as the person who had robbed him. We conclude that there was no manifest necessity to declare a mistrial based on this ground.

The other basis for the mistrial, the alleged improper contact between defendant and a member of the. jury, also does not rise to the level of manifest necessity.

Fourteen jurors were impaneled in the first trial. MCL 768.18; MSA 28.1041, which provides for the impaneling of 14 jurors, states in pertinent part:

"Should any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors so impaneled from further service, he may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12.”

In the instant case, the trial judge should have examined the remaining 13 jurors to determine if they had been prejudiced by contact with the defendant or by the juror who had spoken with defendant. If there had been no prejudice, the trial judge could have dismissed the juror who had spoken with defendant and continued with the remaining 13 jurors. People v Fountain, 392 Mich 395; 221 NW2d 375 (1974), People v Bell, 74 Mich App 270; 253 NW2d 726 (1977).

The cases which the prosecutor cites for the proposition that disqualification of a juror is an occurrence in which there is manifest necessity for a mistrial do not involve alternate jurors. In addition, we note that defendant could have stipulated to a jury trial with less than 12 jurors after the trial had begun. People v Rabin, 317 Mich 654; 27 NW2d 126 (1974), People v Jerome I Smith, 21 Mich App 717; 176 NW2d 430 (1970).

This Court accords considerable deference to a trial judge’s determination of whether there is manifest necessity justifying declaration of a mistrial. People v Alvin Johnson, supra, p 437. However, before a trial judge sua sponte declares a mistrial, he or she should make explicit findings, after a hearing on the record, that no reasonable alternative exists. This was not done in the instant case.

We conclude that there was no manifest necessity to declare a mistrial and that because defendant did not consent to the mistrial, jeopardy attached in the first trial. Since the second trial placed defendant in jeopardy for a second time, in violation of his constitutional right, the conviction may not stand and defendant must be released.

Reversed.

        United States v Jorn, 400 US 470; 91 S Ct 547; 27 L Ed 2d 543 (1971).

        United States v Dinitz, 424 US 600; 96 S Ct 1075; 47 L Ed 2d 267 (1976).

        Illinois v Somerville, 410 US 458, 471; 93 S Ct 1066; 35 L Ed 2d 425 (1973).


text:
    WALLACE v PATTERSON
    Docket No. 77-3511.
    Submitted June 21, 1978, at Detroit.
    Decided August 21, 1978.
    Leave to appeal applied for.
    Charles Wallace commenced a personal injury action against Linda Patterson, administratrix of the estate of Kenneth D. Patterson, deceased, .on March 17, 1976, ten days prior to the running of the statute of limitations for personal injury actions. The defendant filed an answer on July 14, 1976, and subsequently filed a counterclaim on December 30, 1976. The plaintiff filed a motion for partial summary judgment on the basis that the counterclaim was barred by the statute of limitations. Partial summary judgment was granted, limiting the defendant’s counterclaim to the setoff amount established by plaintiff’s claim. The defendant’s untimely motion for rehearing was denied, Wayne Circuit Court, Thomas J. Roumell, J. The defendant appeals by leave granted. Held:

    The defendant’s counterclaim should not be limited to a setoff established by the plaintiff’s claim since the purpose of the statute of limitations is to bar stale claims and where a counterclaim arises out of the same incident as the complaint, the counterclaim is no more stale than the complaint. Fair play and justice mandate that the defendant be able to assert her counterclaim arising out of the same occurrence where it was brought within a reasonable time during the pendency of the lawsuit.
    Reversed and remanded.
    1. Limitation of Actions — Stale Claims — Counterclaims—Same Incident.
    Statutes of limitations are statutes of repose and are designed to bar stale claims; however, where a counterclaim arises from the same incident as the complaint, the counterclaim is no more stale than the complaint; simple justice dictates that if the plaintiff is given an opportunity to present a claim for relief based upon a particular collision in an automobile negligence action, the defendant should not be prevented from presenting a counterclaim in that action by a mere technicality.

      References for Points in Headnotes
    [1, 2] 51 Am Jur 2d, Limitation of Actions §§ 17, 78, 79.
    Claim barred by limitation as subject of setoff, counterclaims, recoupment, cross bill, or cross action. 1 ALR2d 630.

      2. Limitation of Actions — Stale Claims — Timely Filing of Action —Tolling of Statute of Limitations — Tort Action — Counterclaims.
    The objective of statutes of limitations is to bar stale claims arising out of transactions or occurrences which took place in the distant past; since this purpose is satisfied when a person files a timely action, he has effectively tolled the running of the statute as to the occurrence, involved and there appears no justification for barring a defendant’s counterclaim arising therefrom providing the defendant asserts it in due course in that action; therefore, in a tort action, if a claim of a defendant arises out of the same occurrence which is the basis of the plaintiff’s claim and is not barred by limitation when the suit is brought, it may be asserted by the defendant in a pleading timely served in such suit even though the limitation period has elapsed between the time of the commencement of the suit and the serving of the counterclaim.

      Harvey, Kruse & Westen, P. C. (by John F. Milan), for plaintiff.

      Felix F. Rogalle, for defendant.
    Before: R. M. Maher, P. J., and J. H. Gillis and McGregor, JJ.

       Former Court of Appeals judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

The facts in this matter are not in dispute.

Plaintiff and defendant’s decedent, Kenneth Don Patterson, were involved in a motor vehicle collision in March, 1973.

Plaintiff commenced an action against decedent’s estate on March 17, 1976, ten days prior to the running of the statute of limitations as set forth in MCL 600.5805(7); MSA 27A.5805(7). Defendant filed an answer on July 14, 1976, and subsequently filed a counterclaim on December 30, 1976.

Shortly thereafter, plaintiff filed a motion for partial summary judgment on the basis that the counterclaim was barred by the statute of limitations. The trial court agreed and limited defendant’s counterclaim to the setoff amount established by plaintiff’s claim in accordance with MCL 600.5823; MSA 27A.5823.

Defendant subsequently filed an untimely motion for rehearing, objecting to the trial court’s limitation of her counterclaim. This motion was denied.

Defendant now appeals by delayed leave granted challenging the validity of the trial court’s ruling.

The sole issue raised on appeal can be set forth in one rather simple sentence. Did the trial court err in limiting defendant’s counterclaim, which was based upon the same accident which gave rise to plaintiff’s claim, to a setoff under MCL 600.5823; MSA 27A.5823?

MCL 600.5805(7); MSA 27A.5805(7) provides a 3-year statute of limitations for personal injury actions. GCR 1963, 101, states that a civil action is commenced upon the filing of the complaint. The accident in question occurred on March 26, 1973, and defendant did not file her counterclaim until December 30, 1976. Hence, defendant’s claim was filed outside the 3-year limitation period.

MCL 600.5823; MSA 27A.5823 provides that:

"To the extent of the amount established as plaintiff’s claim the periods of limitations prescribed in this chapter do not bar a claim made by way of counterclaim unless the counterclaim was barred at the time the plaintiff’s claim accrued.”

The application of MCL 600.5823; MSA 27A.5823 is illogical in a negligence action where the counterclaim is based on the same accident as the original complaint, because it limits the defendant to a setoff. This is an illusory benefit, since if the plaintiff is found to be fully liable for the accident, the defendant would not be able to recover anything. Also, since contributory negligence would bar a negligence action, an application of MCL 600.5823; MSA 27A.5823 to such a case would be meaningless since plaintiff would not be entitled to any recovery and defendant’s counterclaim would be worth nothing. The Legislature could not have intended to produce such absurd results. Accordingly, this Court does not believe that MCL 600.5823; MSA 27A.5823 governs the instant case.

We now turn to MCL 600.5805(7); MSA 27A.5805(7), the 3-year statute of limitations in respect to personal injury claims.

The policy underpinning the statute is to afford individuals security against stale claims which are difficult to defend against due to the loss of evidence and/or witnesses after extended periods of time. See Bigelow v Walraven, 392 Mich 566; 221 NW2d 328 (1974), Bay State Milling Co v Izak, 310 Mich 601; 17 NW2d 769 (1945).

Under the facts in the case at bar, there is no need to protect plaintiff from defendant’s stale claim, in that it is no staler than his own, being based upon the very same accident. As long as the counterclaim is brought within a reasonable time during the pendency of the lawsuit, there seems to be no unfairness in allowing it. Indeed, it may well be argued that once a complaint is filed, the statute is tolled with respect to that cause of action on behalf of all of the parties involved.

Other jurisdictions support such a result.

"Statutes of limitation are statutes of repose — they are designed to bar stale claims. Where, as in this case, the counterclaim arises from the same incident as the complaint, the counterclaim is no more stale than the complaint.
"Simple justice dictates that if the plaintiffs are given an opportunity to present a claim for relief based upon a particular automobile collision, the defendant should not be prevented from doing so by a mere technicality.
"Without meaning to suggest in any way that the instant suit involves frivolous claims, the rule adopted by this Court will also have the beneficial effect of tending to discourage the filing of frivolous claims just before the running of the statute of limitations.” Azada v Carson, 252 F Supp 988, 989 (D Hawaii, 1966).
"As noted, the statutes of limitation are designed to bar stale claims arising out of transactions or occurrences which took place in the distant past. Since the objective is satisfied when a party files a timely action, he has effectively tolled the running of the statute as to the occurrence involved and there appears no justification for barring the defendant’s claim arising therefrom, provided the latter asserts it in due course in that action.
"We therefore hold that in a tort action, if a claim of a defendant arising out of the same occurrence which is the basis of the plaintiff’s claim is not barred by limitation when the suit is brought, it may be asserted by a pleading timely served in such suit even though the limitation period has elapsed between the time of the commencement of the suit and the serving of the counterclaim.” Armstrong v Logsdon, 469 SW2d 342, 343-344 (Ky, 1971).

Accordingly, this Court believes that fair play and justice mandate that defendant be able to assert her counterclaim in this case.

Reversed and remanded. Costs to defendant.