author: M. J. Kelly, J.

text:
    PEOPLE v EDMOND
    Docket Nos. 78-1125, 78-1368.
    Submitted June 16, 1978, at Lansing.
    Decided October 10, 1978.
    Leave to appeal denied, 405 Mich 813.
    At the request of the Ingham County Prosecutor, Honorable Jack W. Warren, Judge of the Ingham Circuit Court, ordered a grand jury summoned for the September, 1977, term. Honorable Michael G. Harrison was chosen by blind draw to be the supervising judge of the grand jury and was assigned to select it. The Ingham County Jury Board was never officially notified or informed of the existence of the grand jury.
    Judge Harrison obtained a group of 50 jurors derived from the September, 1977, petit jury panel from the court clerk’s office in Lansing. Judge Harrison personally and privately conducted a voir dire of each of the members of this group. No record of these individual voir dires was made. He then personally selected, without a random or blind draw, the 17 persons who would compose the Ingham County Citizens Grand Jury. On December 15, 1977, the grand jury returned an indictment against 12 persons, charging 63 counts of violations of the Controlled Substances Act. The 12 persons indicted were Percy A. Edmond, Charles Pointer, Roosevelt Carson, William Carson, also known as William Carthen, Monroe McClurkin, Ralph Dennis Hopkins, also known as Denny, Herschel Walker, Larry Benson, also known as Bebop, Willie Jones, Samarai Hood, also known as Sam, James Giles, also known as Jimbo, and Butch Thomas.
    A preliminary examination was held on February 27, 1978. At that time several motions were heard by the examining magistrate, including a motion to quash the indictments because of the alleged improper selection of the grand jury. The testimony of 12 witnesses was heard, detailing the selection process used. After the hearing, the motion to quash was denied.

      References for Points in Headnotes
    [1, 3] 38 Am Jur 2d, Grand Jury §§ 12, 13.
    [2] 38 Am Jur 2d, Grand Jury § 13.
    [4] 38 Am Jur 2d, Grand Jury § 9.
    [5] 46 Am Jur 2d, Judges §§ 220-222.
    [6] 38 Am Jur 2d, Grand Jury § 21.
    [7] 47 Am Jur 2d, Jury § 230.
    [8] 47 Am Jur 2d, Jury §§ 2, 139, 140.
    [9] 38 Am Jur 2d, Grand Jury § 12.
    [10] 47 Am Jur 2d, Jury § 316.

      One of the defendants filed a "claim of appeal, motion for leave to appeal, for immediate consideration, and for stay of proceedings pending appeal” with the Ingham Circuit Court. This motion was assigned by blind draw to Honorable Thomas L. Brown. Another defendant filed a similar appeal with the Honorable Ray C. Hotchkiss, contesting the same ruling.
    In the appeal directed to Judge Hotchkiss, the defendants sought to quash the indictment on the grounds that 1) two members of the County Jury Board failed to take the oath of office as required by statute, 2) the prospective grand jurors were improperly selected from a panel of prospective petit jurors, 3) the grand jurors were improperly selected and impaneled by the supervising judge, and 4) one juror was improperly allowed to sit as a grand juror and participate in the proceedings. Judge Hotchkiss granted the defendants’ motion and quashed the indictment on the basis of the improper selection and impaneling of the grand jury by the supervising judge. The people appeal by leave granted. Defendant Percy A. Edmond and nine other defendants also appeal. The appeals were consolidated for hearing. Held:

    1. It is not required that the final grand jury array be selected by random selection. The .applicable statute does not preclude reasonable selection by the supervising judge.
    2. The circuit court erred in holding that mere judicial participation in the selection of a grand jury, absent bias or prejudice, violates constitutional due process.
    3. There was no obligation for the supervising judge to make a record of his voir dire of the individual prospective jurors.
    4. The failure of two members of the Ingham County Jury Board to take the oath of office before the presiding judge, upon their reappointment, was of a technical rather than fundamental due process nature, and is protected from challenge by statute.
    5. The statutory provision that the names of prospective grand jurors be "drawn in the same manner and from the same source as petit jurors” contemplates the use of randomly selected petit jury candidates as the source of a grand jury array. It does not require the compilation of a separate list of prospective grand jurors.
    6. The fact that one of the jurors was a cousin to four of the witnesses called, by itself, should not operate as a disqualification of that juror.
    The decision quashing the indictments is reversed.
    1. Jury — Grand Jury — Selection of Grand Jurors — Statutes— Voter Lists.
    A statute which provides the manner in which members of a grand jury are to be selected does not mandate that a jury board randomly select the final 13 to 17 persons ultimately chosen to sit on the grand jury, nor does it preclude reasonable selection by the supervising judge; a key number random selection from voter registration lists is the blind selection contemplated by the statute (MCL 600.1326; MSA 27A.1326).
    2. Jury — Grand Jury — Constitutional Law — Due Process — Selection of Grand Jurors.
    The exercise of individual judgment in the selection of grand jurors does not, standing alone, deny constitutional due process because a grand jury is an inquisitorial, informing and accusing body, and it is not a trial body or the ultimate fact finder.
    3. Jury — Grand Jury — Selection of Grand Jurors — Discretionary Selection.
    The selection of a grand jury is not an adversary proceeding as is the drawing of a petit jury in a contested trial; the mode of selecting a grand jury is a matter of statutory requirement, and state procedures which rely solely on discretionary selection by state officials, as opposed to random selection, have consistently been upheld by the United States Supreme Court.
    4. Jury — Grand Jury — Selection of Grand Jurors — Constitutional Law — Due Process.
    The fact that it is a judge, rather than some other state official, who exercises individual discretion in the selection of grand jurors, is not, absent discrimination, offensive to constitutional due process.
    5. Judges — Constitutional Law — Due Process — Spectre of Judicial Manipulation.
    Neither the Supreme Court nor the Court of Appeals has ever been willing to find the "spectre” of judicial manipulation or bias, without more, to be sufficient to establish a due process violation when reviewing the judicial and nonjudicial activities of a judge; unsupported speculation and conjecture regarding judicial impropriety is not appropriate at any stage of appellate review.
    6. Jury — Grand Jury — Selection of Grand Jurors — Voir Dire of Jurors — Supervising Judge.
    There is no obligation for a judge selecting a grand jury to make a record of his voir dire of the individual prospective jurors; as the accused have no right to subject a grand jury or grand jurors to a voir dire, they should not be permitted to indirectly challenge grand jurors for bias or prejudice through the voir dire of the judge who supervises a grand jury.
    7. Jury — County Jury Board — Oath of Office — Technical Defect —Statutes.
    The failure of a member of a county jury board, who had taken the oath of office before a deputy clerk, to take the oath of office before the presiding judge upon reappointment constitutes a technical defect which is statutorily protected from challenge (MCL 767.13, 767.14; MSA 28.953, 28.954).
    8. Jury — Petit Jury — Grand Jury — Selection of Jurors — Statutes.
    The statutes which provide for the selection of jury panels make no distinction between the selection of petit jury panels and grand jury panels; therefore, a grand jury array drawn from a panel which was randomly selected from the voter registration lists would satisfy the statutory mandate that it be drawn in the same manner and from the same source as petit juries (MCL 600.1308, 600.1311, 600.1312, 600.1313, 600.1326; MSA 27A.1308, 27A.1311, 27A.1312, 27A.1313, 27A.1326).
    9. Jury — Grand Jury — Petit Jury — Selection of Jurors — Random Selection — Statutes.
    It is not required that a separate list of prospective jurors be compiled for the selection of a grand jury because the use of randomly selected petit jury candidates was contemplated by the Legislature as the source of a grand jury array (MCL 600.1326; MSA 27A.1326).
    10. Jury — Grand Jury — Disqualification of Grand Juror — Statutes.
    The fact that a member of a grand jury was a cousin to four of the witnesses called by the grand jury, by itself, should not operate as a disqualification of that juror because only those interests defined by statute will disqualify a member of a grand jury or vitiate an indictment returned (MCL 767.13, 767.14; MSA 28.953, 28.954).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney and John E. Steele and Michael G. Woodworth, Assistant Prosecuting Attorneys, for the people.

      Alan C. Harnisch, for defendant Percy A. Edmond.

      Phillip K Campbell, for defendant Charles Pointer.

      W. Charles Kingsley, for defendant Roosevelt Carson.

      Ronald C. Emerson, for defendant William Carson.

      Kenneth A. DeBoer, for defendant Monroe Mc-Clurkin.

      Raymond L. Scodeller, for defendant Ralph D. Hopkins.

      Karl A. H. Bohnhoff, for defendant Herschel Walker.

      Michael F. Walsh, for defendant Larry Benson.

      Thomas A. Kulick, for defendant Willie Jones.

      Thomas A. Bengtson, for defendant Samarai Hood.
    Amicus Curiae: William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the Wayne County Prosecuting Attorney.
    Before: D. E. Holbrook, P.J., and M. J. Kelly and P. J. Marutiak, JJ.

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

   Procedural History

M. J. Kelly, J.

Four different Ingham County Circuit Court Judges are woven into the background fabric of this action and we outline their respective roles before reaching the merits of this appeal.

On August 5, 1977, the Honorable Jack W. Warren, at the request of the Ingham County Prosecutor, ordered a grand jury summoned for the September, 1977, term, "in accordance with the statutes providing for the drawing of grand jurors”.

On September 6, 1977, the Honorable Michael G. Harrison, who was chosen by blind draw to be the supervising judge of the grand jury and had been assigned to select it, issued an "amended order for summoning grand jury”. Neither order was directed to, conveyed to or received by the Ingham County Jury Board (hereinafter Board), nor was the Board ever notified or informed of the existence of the grand jury.

Judge Harrison, sitting in the City of Mason, Michigan, obtained a group of 50 jurors derived from the September, 1977, petit jury panel from the court clerk’s office in the Lansing City Hall Building. Over the next several days, he personally and privately conducted a voir dire of each of the members of this group. No record of these individual voir dires was made.. Judge Harrison then personally selected, without a random or blind draw, the 17 persons who compose the Ingham County Citizens’ Grand Jury. On December 15, 1977, this grand jury returned an indictment against 12 persons, the defendants, charging 63 counts of violations of the Controlled Substances Act.

At the preliminary examination on February 27, 1978, several motions were heard by the examining magistrate, including a motion to quash the indictment because of the improper selection of the grand jury. The examining magistrate took the testimony of 12 witnesses concerning this motion and, after the hearing, denied the motions on March 2, 1978.

The testimony established that the Board, during its annual meeting in May, 1977, had compiled a first jury list by applying the "key number” to the voter registration lists supplied by the county clerk. Questionnaires were sent to the persons on the list. The Board then reviewed the questionnaires and excused those persons who were exempted by statute or otherwise unqualified. A second jury list, comprised of those qualified to serve as jurors, was then prepared. The Board subsequently compiled panels from the second jury list to serve as jurors for the September, October, November and December, 1977, terms. No separate drawing and listing of prospective grand jurors was ever prepared by the Board. It was from the September panel that the 50 persons who comprised the grand jury array were selected.

On the day the district court denied the motions, one of the defendants filed a "claim of appeal, motion for leave to appeal, for immediate consideration, and for stay of proceedings pending appeal” with the Ingham County Circuit Court, which was assigned by blind draw to the Honorable Thomas L. Brown. On the very next day, March 3, 1978, another defendant filed similar appeal pleadings with the Honorable Ray C. Hotchkiss, contesting the same ruling of the examining magistrate as the appeal filed and assigned the previous day to the Honorable Thomas L. Brown.

In the appeal directed to Judge Hotchkiss, the defendants sought to quash their indictment on the grounds that: (1) two members of the County Jury Board failed to take the oath of office as required by statute; (2) the prospective grand jurors were improperly selected from a panel of prospective petit jurors; (3) the grand jurors were improperly selected and impaneled by the supervising judge; and, (4) one juror (juror No. 7) was improperly allowed to sit as a grand juror and participate in the proceedings. The circuit court quashed the indictment. In considering the first two issues, it held that such failures to strictly comply with the applicable statute did not affect or threaten the due process rights of the defendants, and thus, that these defects were properly entitled to protection from challenge under the provisions of MCL 767.13 and 767.14; MSA 28.953 and 28.954. As to the fourth issue, the trial court held that, as juror No. 7 was merely one of 17 grand jurors, only nine of whom are needed to concur on issuing an indictment, his participation in the proceedings would not affect their outcome and, by itself, was not grounds for quashing the indictments. As to the claim that the grand jurors were improperly selected and impaneled by the supervising judge, the trial court held that constitutional due process required some method of random selection of grand jurors, and accordingly entered an order granting defendants’ motion.

Other pertinent facts are contained in the statement of facts appended to Judge Hotchkiss’s opinion and order of March 20, 1978, which was adopted by the people-appellants and accepted by the defendants with minor additions which are not significant in this appeal. The statement of facts of Judge Hotchkiss is attached hereto as Appendix A.

Judicial Selection of the Grand Jury

The order of the circuit judge states several issues but observes that: "The most serious issue raised by the defendants regards the selection and impaneling of the Citizens Grand Jury by the supervising judge.” Because this issue is determinative and since the other issues are pertinent only if the grand jury was properly impaneled initially, we address it first.

The Wayne County Prosecutor in an amicus brief attempts to raise a totally new issue regarding the authority of the circuit court to entertain an appeal from a district court decision on a motion to quash based on irregularity in the grand jury selection. In the brief it is claimed that, in effect, it is tantamount to review by one circuit court judge of the action of another in the latter’s selection and supervision of a Citizens’ Grand Jury. We decline to address that issue and treat this matter solely as a review of an appeal to the Ingham County Circuit Court from an adverse ruling of the examining magistrate.

The people assert that Judge Harrison’s personal selection of 17 persons to serve as grand jurors does not impugn the validity of the Ingham County Citizens’ Grand Jury. In making this argument, they place reliance on Chapter VII of the Code of Criminal Procedure, being MCL 767.1 et seq.; MSA 28.941 et seq. Chapter VII is captioned "Grand Juries, Indictments, Informations & Proceedings Before Trial”. The circuit court found, and both sides concur, that, while some sections of Chapter VII relate to grand juries, no single identifiable statute provides any specific method for the exact procedural selection and impaneling of grand jurors. The prosecutor argues that it is therefore not necessary to select the jurors by lot or by blind draw so long as the supervising judge acted in good faith. There is no allegation or finding that the supervising judge acted other than in good faith.

The defendants, in attacking the validity of the Citizens’ Grand Jury, rely on Chapter XIII of the Revised Judicature Act. That chapter was added in 1968 and is captioned "Jurors”. MCL 600.1301 et seq.; MSA 27A.1301 et seq. Sections 1306, 1312 and 1326 refer to grand juries or grand jurors and § 1326 is of special significance; it states:

"If a grand jury is ordered by the court, or required by statute, the board shall draw the names of a sufficient number of persons, as determined by the presiding circuit judge, to serve as grand jurors in accordance with the provisions of section 11 of chapter 7 of Act No. 175 of the Public Acts of 1927, as amended, being section 767.11 of the Compiled Laws of 1948. The names shall be drawn in the same manner and from the same source as petit jurors. The term of service of grand jurors shall be as prescribed by section 7a of chapter 7 of Act No. 175 of the Public Acts of 1927, as added, being section 767.7a of the Compiled Laws of 1948.” (Emphasis added.)

The reference to § 11 in the above quote refers to the Code of Criminal Procedure and appears at MCL 767.11; MSA 28.951. It limits the grand jury to no more than 17 nor less than 13 persons. The defendants argue that a reading of the above statute in conjunction with GCR 1963, 511.1 requires that prospective grand jury names be drawn in the same manner as petit jurors, that is, it would require their selection by blind draw rather than by the personal voir dire of the supervising judge. GCR 1963, 511.1 provides for the selection of petit jurors as follows:

".1 Selection of Jurors.
(1) The clerk of the court shall deposit in a box separate slips containing the names of persons returned by the sheriff and not discharged or excused as prospective jurors by the court. The slips shall be folded to conceal the names contained thereon, and shall be intermingled after being deposited in the box.
(2) At every trial where any or all of the issues are to be tried by a jury, the clerk shall draw from the box a number of slips: (a) Sufficient to name a jury of 12 or more persons approved to sit as jurors in criminal cases or (b) sufficient to name a jury of 6 or more persons approved to sit as jurors in civil cases as provided by this rule.
(3) When the jury is impaneled, the clerk shall return all slips drawn from the box which contain the names of qualified persons not approved or sworn to sit as jurors at the trial.
(4) When the jury is discharged from the case the clerk shall return all slips which contain the names of the jurors so discharged.
(5) In a circuit having more than 1 judge trying jury cases at 1 time, the circuit judges may, by local rule, provide for drawing jurors from the Jury Box.”

In ordering the indictments quashed, Judge Hotchkiss rejected the defendants’ argument that § 1326 mandated a blind draw selection of the grand jury rather than selection by personal voir dire of the supervising judge. The circuit court held that § 1326 required only that a separate list of prospective grand jurors be drawn by the jury board. However, the court did hold that some method of random selection was mandated under the due process provisions of the state and Federal constitutions, and, therefore, ruled that the method of selection used here denied the defendants’ due process.

We agree with the circuit court’s conclusion that the selection process outlined in § 1326 and GCR 1963, 511.1 does not render the indictment by the Citizens’ Grand Jury invalid. We do not think that § 1326 incorporates the method of juror selection expressed in the court rule; the language of GCR 1963, 511.1(2)-(5) indicates that it is directed exclusively to the selection of petit, rather than grand, jurors. Furthermore, some judicial voir dire, some input in the selection, seems essential because it is highly unlikely that 17 jurors randomly selected could all be seated. Some would likely seek to be excused from the rigors of prolonged service (six months to one year, MCL 767.7a; MSA 28.947(1)). Moreover, the voir dire and exclusion of prospective grand jurors on the grounds of bias or prejudice are functions which the Board is not statutorily empowered to perform. We hold, therefore, that MCL 600.1326; MSA 27A.1326 does not mandate that the Board randomly select the final 13 to 17 persons ultimately chosen to sit on the grand jury nor does it preclude reasonable selection by the supervising judge. The key number random selection from the voter registration lists is the blind selection contemplated by § 1326. A wheel within a wheel is not required.

We disagree, however, with the circuit court’s decision to quash the indictments on constitutional due process grounds. In holding that the mere possibility of judicial bias or manipulation in the grand jury selection process constituted a valid reason to quash the indictments, Judge Hotchkiss raised to a level of constitutional due process a requirement unfounded in our case law or statutes.

The exercise of individual judgment in the selection of grand jurors does not, standing alone, deny constitutional due process. A grand jury is an inquisitorial, informing, and accusing body, and it is not a trial body or the ultimate factfinder. 8 Michigan Law & Practice, Criminal Law, § 141, p 213. The selection of a grand jury is not an adversary proceeding as is the drawing of a petit jury in a contested trial. In the absence of statutory direction or evidence of judicial manipulation, we are not prepared to create, as an element of constitutional due process, a requirement that grand jurors be selected in . exactly the same fashion as petit jurors.

Historically, grand jurors have been selected with some relative degree of flexibility in the process. At common law, the sheriff drew them to his liking. 38 CJS, Grand Juries, § 9. Presently, in practically all jurisdictions, the mode of selecting a grand jury is a matter of statutory requirement and state procedures which rely solely on discretionary selection by state officials, as opposed to random selection, have consistently been upheld by the United States Supreme Court. In Smith v Texas, 311 US 128; 61 S Ct 164; 85 L Ed 84 (1940), for example, the court upheld a grand jury selection system whereby the appointed grand jury commissioners would jointly select 16 names from the county assessment rolls. Similarly, in Carter v Jury Comm of Greene County, 396 US 320; 90 S Ct 518; 24 L Ed 2d 549 (1970), the Court upheld against constitutional challenge the Alabama statutory grand and petit jury selection system which vested a large amount of discretion in state officials, even in the face of "overwhelming proof’ that the officials had, in fact, abused their discretion by discriminating on the basis of race.

In addition, the fact that it is a judge, rather than some other state official, who exercises individual discretion in the selection of grand jurors is not, absent discrimination, offensive to constitutional due process. Many jurisdictions make provision for judicial input in the selection of grand jurors. The grand jury selection process in Louisiana, for example, provides for the exercise of broad discretion by the judge and has been upheld as constitutional in Eubanks v Louisiana, 356 US 584; 78 S Ct 970; 2 L Ed 2d 991 (1958), where the Court stated:

"The method by which grand juries are selected in the parish is not controverted. A jury commission is required to select, 'impartially, from the citizens of the Parish of Orleans having the qualifications requisite to register as voters, the names of not less than seven hundred and fifty persons competent * * * to serve as jurors’. Twice each year the Commissioners draw the names of 75 persons from this group. The list of 75 is then submitted to one of the six judges of the local criminal court who, in rotation, choose a new grand jury of 12 every six months. Obviously the judges have broad discretion in selecting from the list provided by the Commission. State v Dorsey, 207 La 928, 22 So2d 273. Several of them interview a substantial number of prospective jurors before making their choice. Others, including the judge who chose the jury that indicted petitioner, testified that they usually selected on the basis of personal knowledge or reputation in the community. Petitioner does not challenge this system of choosing grand jurors, as such, but he does contend that it has been administered by the local judges so that members of the Negro race have been systematically excluded from grand jury service.” 356 US at 585-586 (Footnotes omitted.)

The circuit court, therefore, erred in holding that mere judicial participation in the selection of a grand jury, absent bias or prejudice, violates constitutional due process.

In the present case, there are no facts or allegations of fact indicating bias or prejudice with regard to the judicial selection of the 17 chosen grand jurors. Judge Harrison, the supervising judge of the Ingham County Citizens’ Grand Jury, appeared before the district court to give testimony relevant to defendants’ motion to quash. He explained that he was selected as the supervising circuit judge through the use of a blind draw. Judge Harrison said that at least 50 prospective grand jurors were brought before him. Each of the candidates was interviewed by the judge and it was only after all these interviews were completed that 17 individuals were chosen by him to sit as grand jurors. Judge Harrison testified in detail as to the criteria he applied in impaneling the jury:

"Q. Judge, could you tell the Court the factors you considered in your selection of the 17 people from the 50 people?
"A. Yes, sir. My objective or goal was to have a jury which, as much as reasonably possible, would represent a cross-section of the community. I was interested in age, sex, race, and ethnic background, educational background, employment. That was what I was striving for as far as trying to develop a jury of 17 individuals who could at least reasonably fairly represent a cross-section of the community. Now, in certain specifics, what I was looking for in 17 individuals who would represent this cross-section, were characteristics as far as general responsibility. The questions I would ask, for instance, were with respect to their employment record, if they had any reprimand for tardiness, problems with absenteeism. I talked to them about the importance of having the procedure — having those persons there during this process beginning on time, being there on time, and I was looking for, among other things, those characteristics because I realized that if we had problems with tardiness or absenteeism, it would substantially affect the ability of the Grand Jury to function.”

Judge Harrison described the make-up of the grand jury as follows: Of the three blacks on the array, one was selected for grand jury service. Also on the grand jury is one Spanish surnamed person. The majority of the grand jurors are female; the age range is from 18-21 to 65 years old. The occupations of the jurors include laborers, factory employees, self-employed businessmen, State of Michigan employees, MSU employees, general commercial type employees and homemakers. One member is on public assistance and one member is a student. Geographically, approximately half of the jurors are from the City of Lansing, and half from the remainder of Ingham County, a split which corresponds to the population distribution in the county. Although defendants’ counsel had a full opportunity to question Judge Harrison and did in fact do so, none of them elicited any testimony or otherwise produced any evidence indicating that he had an improper motive or was swayed by personal bias in the selection process. In short, the record contains no indication of judicial impropriety, and indeed, plainly refutes its existence.

Neither the Supreme Court nor this Court has ever been willing to find the "spectre” of judicial manipulation or bias, without more, to be sufficient to establish a due process violation. GCR 1963, 405.1(3), (8); GCR 1963, 912.2(2), (7), Crowley, Milner & Co v Macomb Circuit Judge, 239 Mich 605, 613; 215 NW 29 (1927), Kolowich v Ferguson, 264 Mich 668; 250 NW 875 (1933), People v Moran, 36 Mich App 730, 734; 194 NW2d 555 (1971), People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975). As this Court observed in Irish v Irish, 59 Mich App 635, 639; 229 NW2d 874 (1975):

"In Wayne County Prosecutor v Doerfler, 14 Mich App 428, 441; 165 NW2d 648 (1968), we discussed the question of disqualification of a judge and formulated the following standard for interpretation of the court rule:
'An appellate court must demand actual proof of claimed prejudice when reviewing the nonjudicial activities of a judge, and when none is forthcoming that court must find that no violation of due process has occurred. The language of GCR 1963, 405.1(8), apparently a catch-all phrase, still requires some actual showing of prejudice and it will not encompass the unfounded fears of defendants.’
"While the above-quoted statement was made in reference to the nonjudicial activities of a judge, we feel that it is equally applicable to a case such as this where the judicial activities of a judge are involved. Actual proof of prejudice must be presented before a trial judge will be disqualified.”

Unsupported speculation and conjecture regarding judicial impropriety is not appropriate at any stage of appellate review. See People v Irwin, 47 Mich App 608, 610; 209 NW2d 718 (1973).

Neither do we find convincing the emphasis placed below on the failure of the supervising judge to make a record of his voir dire of the individual prospective jurors. We do not find an obligation to make such a record in order to provide fodder for an otherwise prohibited skirmish. In light of the testimony of Judge Harrison quoted above and the fact that there is no allegation of bad faith on his part, there was no basis for challenging the array on the grounds of purposeful discrimination in selection. Hence, a record of the voir dire, if made, could only be used in the present case to attack individual grand jurors on the grounds of bias or prejudice. This an accused may not do, for an accused has no right to subject a grand jury or grand jurors to a voir dire. Commonwealth v Dessus, 423 Pa 177; 224 A2d 188 (1966), Estes v United States, 355 F2d 609 (CA 5, 1964). As stated in United States v Knowles, 147 F Supp 19, 20-21 (D DC, 1957):

"Challenges for bias or for any cause other than lack of legal qualifications, are unknown as concerns grand jurors. No provision is made for peremptory challenges of grand jurors and no such challenges are permitted. Likewise no voir dire examination exists in respect to grand jurors. In other words, the status of a member of a grand jury may not be questioned except for lack of legal qualifications.”

We will not permit the defendants to do indirectly, through the voir dire of Judge Harrison, what they may not do directly, that is, challenge grand jurors for bias or prejudice.

We hold that the participation of the supervising judge in the selection and impaneling of the Ingham County Citizens’ Grand Jury did not constitute a due process violation. The circuit court erred in requiring that the 50 names be dropped into a box and extracted therefrom randomly and blindly as an element of constitutional due process. The Legislature could, if it so desires, clarify the language of § 1326 and incorporate the petit jury blind draw system outlined in GCR 1963, 511.1 or it could proscribe voir dire examination by a supervising circuit judge. In the absence of a legislative mandate, however, the lower court should not have imposed such requirements.

We therefore reverse the order of the circuit court quashing the defendants’ indictment.

Jury Board Qualification

In addition to the challenges to judicial participation in the selection of the grand jury, the defendants raised other questions in the circuit court regarding qualifications of the Board and the source of the grand jury array. We now turn to those questions.

The defendants assert that the failure of two members of the Board to take the oath of office upon reappointment, as required by MCL 600.1303a; MSA 27A.1303(1), voids the Board’s initial selection of the petit jury panels. The prosecutor, on the other hand, contends that the defective constitution of the Board represents merely a technical defect of the sort entitled to protection from challenge under the provisions of §§ 13 and 14 of Chapter VII of the Code of Criminal Procedure, MCL 767.13 and 767.14; MSA 28.953 and 28.954. We believe the point is well taken. Those provisions read:

"Sec. 13. A person held to answer to any criminal charge may object to the competency of anyone summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the person so summoned shall be set aside.”
"Sec. 14. No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.”

The prosecutor had the best of this issue below. Judge Hotchkiss held that the failure of two members of the Board to take the oath of office before the presiding judge upon reappointment constituted a technical defect, protected from challenge by §§ 13 and 14. We agree with the circuit court.

Case law interpreting the quoted statutes evidences a long history of prohibiting challenges such as defendants seek to assert in the present case. In People v Lauder, 82 Mich 109; 46 NW 956 (1890), defendant was indicted by a grand jury and contended that defects in the selection process necessitated that the indictment be quashed. The Court rejected defendant’s contention, citing the above statutes and stating, at pages 134-135:

"It was evidently intended by the Legislature that no mere technicalities or irregularities should be permitted to quash the grand-jury panel, and that only in case of a prosecutor or complaining witness being summoned could the accused person successfully complain and exercise the right of challenge.
"I am satisfied that the Legislature has wisely ordained that no inquiry for the purpose of quashing an indictment shall be made into the composition of a grand jury, or as to the competency of the individual jurors, except in cases where some member has been the prosecutor of, or the complaining witness against, the person indicted. It must be remembered that the grand jury does not settle the guilt or innocence of the accused, but acts something the same as does an examining magistrate. No irregularities in the examination of an accused person before a magistrate are permitted to quash an information filed in the circuit court against him, and based upon such examination. The admission of incompetent evidence, or the rejection of proper testimony, by the justice of the peace, or other person holding such examination, has no effect upon the information. This proceeding to find an indictment before a grand jury, or to bind an accused person over to the circuit court by a justice of the peace, is but the presentment of a case to be tried before a petit jury, and the proceeding is not to be governed by any mere technicalities, as long as the substantial rights of the accused to a speedy and fair trial before a jury of his peers is preserved and remain to him.”

The Lauder rationale was affirmed in People v Smith, 118 Mich 73; 76 NW 124 (1898), where the Court stated:

"The statute is conclusive of the first question. The objections relate to irregularities in the drawing of the jury. The statute specifies what shall be a ground of challenge, viz., that a juror is prosecutor or complainant. It expressly prohibits a challenge on any other ground. 2 How. Stat. §§ 9496, 9497. The question is discussed by Mr. Justice Morse in People v Lauder, 82 Mich [109] 133, authorities cited, and statute quoted. An objection prohibited by the statute when the grand jury is impaneled cannot be valid when the party is put to trial under the indictment found. There was no fraud or willful disregard of the law, or even an indication that competent jurors were not secured, or that respondent was prejudiced.”

The Smith and Lauder holdings have been consistently interpreted to bar challenges to the selection of grand juries. People v Reigel, 120 Mich 78; 78 NW 1017 (1899), People v Thompson, 122 Mich 411; 81 NW 344 (1899), People v Morgan, 133 Mich 550; 95 NW 542 (1903), People v Lay, 193 Mich 476; 160 NW 467 (1916).

Defendants in argument and briefs below relied on People v Gratz, 35 Mich App 42; 192 NW2d 304 (1971), for the proposition that failure to comply with statutory provisions concerning the selection of juries constitutes reversible error without any necessity for proving prejudice. We believe Gratz to be distinguishable as involving petit jury selection and we agree with its holding. The grand jury, however, is primarily an investigative tool and since the right to preliminary examination was afforded in People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), the potential for constitutional due process violation in grand jury selection fades and the legislative intention to insulate the investigative aspects of the criminal justice system becomes a paramount principle.

In the present case, both board members had taken the oath of office before a deputy clerk; there is no allegation that they violated the oath. In light of the case law interpreting these sections, we are inclined to agree with the circuit court that the failure of two Board members to take the oath of office before the presiding judge upon reappointment was of a technical rather than fundamental due process nature, and accordingly, is protected from challenge by §§ 13 and 14.

Source of Grand Jury Array

The next issue raised by the defendants is more troublesome. The defendants argued in circuit court that § 1326 requires that the names of prospective grand jurors be "drawn in the same manner and from the same source as petit jurors”; thus, requiring random selection of the grand jury array. The circuit court, however, did not go so far; it held only that § 1326 required that a separate list of prospective grand jurors be drawn by the Board, but that the failure to do so and the consequent use of the petit jury panel for the grand jury array was also a technical defect shielded by §§ 13 and 14. Although we agree with the circuit court’s result, we interpret § 1326 differently, thus obviating resort to §§ 13 and 14.

A review of the statutes providing for the drawing of jurors from the voter registration lists indicates that the Legislature intended that randomly selected panels of prospective jurors, regardless of their designation, be viewed as a "fungible” quantity to be used for either grand or petit jury purposes. We note that neither MCL 600.1308; MSA 27A.1308, which requires that the presiding judge estimate the court’s anticipated juror needs, nor MCL 600.1311; MSA 27A.1311, which provides for the computation of the "key number” on the basis of the judge’s estimate, nor MCL 600.1313; MSA 27A. 1313, which provides for the use of questionnaires in determining juror qualifications, makes any distinction between grand and petit jurors in the performance of these functions. Indeed, § 1311(c) specifically states that the key number so derived be used throughout the entire period for which jurors are selected and it is unlikely that the Legislature intended that a key number based solely on petit juror needs be used to compile a separate list of prospective grand jurors. Furthermore, MCL 600.1312(f); MSA 27A.1312(f), which provides for the exclusion of persons who have served on either petit or grand juries within the preceding year, treats those two categories identically, which may be some indication of a collective mental concept by the Legislature. We note further that as the panel used here was randomly selected from the voter registration lists, a grand jury array drawn from that panel would satisfy the mandate of § 1326, that it "be drawn in the same manner and from the same source as petit jurors”.

Thus, the circuit court erred in interpreting § 1326 as requiring the compilation of a separate list of prospective grand jurors. We hold that MCL 600.1326; MSA 27A.1326 contemplates the use of randomly selected petit jury candidates as the source of the grand jury array.

Disqualification of Juror No. 7

Finally, defendants challenge the grand jury proceedings on the grounds that the supervising judge failed to exclude juror No. 7.

During the course of the grand jury proceedings, it was learned that juror No. 7, the only black juror, is a cousin to four of the witnesses testifying before the grand jury. Furthermore, all are related to an Assistant Ingham County Prosecutor. Although Judge Harrison and all the members of the grand jury were informed of this relationship, grand juror No. 7 was not excluded add participated in discussions and voting leading to the indictment challenged herein.

In considering this challenge, Judge Hotchkiss stated that the relationship was suggestive of bias and that juror No. 7 should have been excluded. However, he held that, as only nine of the 17 grand jurors need concur on issuing an indictment, his participation would not have affected the outcome and, by itself, was not grounds for quashing the indictments. We agree with the result but for a different reason.

As we stated earlier, we believe the purpose of §§ 13 and 14 to be that no interest, except those defined by statute, will disqualify a member of a grand jury or vitiate an indictment returned. Accordingly, the fact that juror No. 7 was a cousin to four of the witnesses, by itself, should not operate as a disqualification. Cruce v State, 87 Fla 406; 100 So 264 (1924), People v Briggs, 50 Misc 2d 1062; 272 NYS2d 211 (1966), Tyson v State, 146 Tex Cr App 128; 171 SW2d 496 (1943).

The decision of the trial court quashing the defendants’ indictment is reversed.

Appendix A.

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM

People of The State of Michigan,

Plaintiff, Docket No. 77-28261-FY

v

Percy Edmond, et al,

Defendants.

STATEMENT OF FACTS

(1) On August 3, 1977, the Ingham County Prosecutor petitioned the Ingham County Circuit Court for the creation of Ingham County Citizens Grand Jury.

(2) On August 5, 1977, the Honorable Jack W. Warren, issued an Order for the summoning of a Grand Jury.

(3) The Honorable Michael G. Harrison was selected by a blind draw to be the supervising judge of the grand jury (Tr. p 152) and was assigned to select the grand jury. (Tr. p 105).

(4) The Ingham County Jury Board was never served with a copy of either of the above described Orders, nor ever notified or informed of their existence. (Tr. p 11, pp 44-45, pp 76-79). The Citizens Grand Jury was never summoned according to the Orders of the Court.

(5) The Ingham County Jury Board was formed in 1969. The first members of the Board were Mr. Raymond Totte, Jr., Mr. Frank Perrin and Mrs. Margaret Holmes. (Tr. p 9). These persons were each reappointed to the Board when their original terms expired and they comprise the current Ingham County Jury Board. (Tr. p 75).

(6) Mr. Perrin was first appointed to the Jury Board in 1969 and was reappointed to a six year term in 1975. (Tr. p 75). Mr. Perrin took a constitutional oath of office before the presiding circuit judge each time he was appointed. (Tr. pp 75-76).

(7) Mrs. Margaret Holmes was first appointed to the Jury Board in 1969 and was reappointed in 1973. (Tr. pp 42-43). Mr. Totte was first appointed to the Jury Board for a four year term in 1969. (Tr, pp 8, 21). Mr. Totte was reappointed to the Jury Board for a six year term in 1971 and in May, 1977. (Tr. p 21). Both stated that they had not taken a constitutional oath before the presiding circuit court judge, but had signed an oath before a Deputy Clerk.

(8) The minutes of the Board meetings were not attested to by the secretary. (Tr. p 17, pp 48-49). Minutes of the Board’s meeting have been kept in this fashion since 1969, being signed by the Board members. (Tr. p 66).

(9) The Jury Board held their annual meeting in May, 1977. (T. pp 26-27, p 51). The Board compiled the First Jury List by applying the "key number” to the voter registration lists supplied by the County Clerk. Questionnaires were sent to the persons on the First Jury List. (Tr. p 30, p 49). The Board then reviewed the questionnaires and excused those people who were exempted by statute or otherwise unqualified. (Tr. pp 30-34, p 56). A Second Jury List, comprised of those qualified to serve as jurors, was then prepared by the Board in the same manner as the First Jury List. (Tr. p 85).

(10) The Jury Board, pursuant to an order of the presiding judge drew a list of prospective jurors to serve as petit jurors for the September, October, November and December 1977 terms of the court. (Tr. pp 80-81). No separate list of persons to serve as prospective grand jurors was ever prepared by the Jury Board.

(11) On September 6, 1977, a group of approximately 50 persons were removed from the September 1977 petit jury panel (Tr. pp 99-102) and transported to Mason, Michigan, and appeared before Honorable Michael G. Harrison, Ingham County Circuit Judge, who was selected to handle the Grand Jury by the blind draw system (Tr. p 152) and to select the jurors. (Tr. pp 105-106).

(12) Over the course of the next several days (Tr. p 153) Judge Harrison personally and privately voir dired each of the 50 petit jurors. (Tr. p 154). This procedure was carried out without a court-reporter or stenographer (Tr. p 154) or any other person present. No record of these individual voir dires was made.

(13) Judge Harrison, after personally examining the 50 or so petit jurors, personally selected, without a random or blind draw, the 17 persons who even now compose the Ingham County Citizens Grand Jury. (Tr. pp 154-155).

(14) Of the 17 petit jurors personally selected by Judge Harrison, one was of the Black race. Two other Black petit jurors (Tr. p 153, p 159, p 160) were excluded.

(15) On September 23, 1977, it was learned that juror number seven (7), the only black juror selected to sit on the Ingham County Citizens Grand Jury (Tr. p 213) was related to George Andrew Thomas, Jr., "Junebug”, a witness before the Ingham County Citizens Grand Jury. (Tr. p 208, p 209, p 216). After so learning the Prosecutor and assistant prosecutor John E. Steele met with Judge Harrison and advised him of the relationship. (Tr. p 217). The Black grand juror was not excused. (Tr. p 160).

(16) All of the four persons named Thomas are related to each other as brother and sister (Tr. p 228), each is therefore related to Grand Juror number seven (7) as a cousin, and it would appear are all related to an assistant Ingham County Prosecutor. (Tr. p 232).

(17) Additionally, Grand Juror number seven (7), although being absent during the testimony of George A. Thomas, Jr., and Claude Sterling Thomas, not only read the transcripts of their testimony, but also participated in the discussions leading to the indictment of December 15, 1977, and the vote taken thereon. (Tr. p 193). George A. Thomas, Jr., "Junebug”, and Claude Sterling Thomas, "May May”, were vound to be co-conspirators but were not indicted; Pearl Thomas and Terri Thomas were not found to be co-conspirators. (See Indictment).

(18) All members of the Ingham County Citizens Grand Jury who were present at the September 28, 1977 session at which the testimony of George A. Thomas, Jr., and Claude Sterling Thomas was taken, were advised on the record of the relationship between the aforenamed parties. (Tr. p 207, p 208).

       The California Grand Jury system, for example, not only allows the court to interview and select grand jurors, but compels it. The California Penal Code, § 895 provides:
      "During the month preceding the beginning of the fiscal year of the county, the superior court of each county shall make an order designating the estimated number of grand jurors that will, in the opinion of the court, be required for the transaction of the business of the court during the ensuing fiscal year as provided in Section 905.5.”
      § 896 then states:
      "(a) Immediately after such order is made, the court shall select the grand jurors required by personal interview for the purpose of ascertaining whether they possess the qualiScations prescribed by subdivision (a) of Section 893. If a person so interviewed, in the opinion of the court, possesses such qualifications, in order for his name to be listed he shall sign a statement declaring that he will be available for jury service for the number of hours usually required of a member of the grand jury in that county.” (Emphasis added.)

       While the quoted portion is taken from the dissent, all the justices concurred in it. See People v Reigel, 120 Mich 78, 86; 78 NW 1017 (1899).


source: Caselaw Access Project

author: Beasley, J.

license: Public Domain

text:
    DETROIT BANK & TRUST COMPANY v DICKSON (AFTER REMAND)
    Docket No. 27519.
    Submitted May 11, 1977, at Detroit.
    Decided October 17, 1978.
    Leave to appeal denied, 406 Mich —.
    Plaintiff, Detroit Bank & Trust Company, is the executor of the estate of Stanley E. Krol. Mr. Krol, prior to his death, was a business partner of defendant, Stanley G. Dickson. Plaintiff sued defendant to compel dissolution of the Dickson-Krol partnership and sale of the partnership assets, consisting of several parcels of real estate as well as personal property, including cash assets. Defendant counterclaimed to compel enforcement of a buy-sell agreement. The Livingston Circuit Court, Halford I. Streeter, J., denied defendant’s counterclaim and ordered a sale of the partnership property. Defendant’s attorney prepared the final order to that effect. A notice of sale was posted prior to the sale, at which only plaintiff and defendant tendered bids. The notice listed as the subject of the sale only the several parcels of real property. Plaintiff became the high bidder at the sale and moved the court for approval and confirmation of sale, execution of sheriff’s deeds and transfer of possession to plaintiff, including the partnership cash assets and other personal property. Defendant objected. The court granted plaintiff’s motion and denied defendant’s subsequent request to make a separate record to preserve certain testimony. Defendant appealed and the Court of Appeals remanded for further proceedings and retained jurisdiction, 78 Mich App 12; 259 NW2d 228 (1978). After further hearings the trial court, over defendant’s objection, made further findings of fact and the case was again before the Court of Appeals. Held:

    Defendant and his attorney knew or should have known that there was a discrepancy between the judgment and the notice of sale and such an error may not serve as a basis for setting aside the sale.
    Affirmed.
    References for Points in Headnotes
    76 Am Jur 2d, Trial § 1244.
    Construction of provision of Rule 43(c) of the Federal rules of civil procedure, and similar state provisions, providing for entry into record of evidence excluded by trial court. 9 ALR3d 508.

      Trial — Separate Record — Denial of Record — Sufficient Reasons.
    A request to place testimony on a separate record made after objection to its admission at trial is sustained is improperly denied where there is given no sufficient or good reason for denying the request.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Ted T. Amsden), for plaintiff.

      William B. Elmer (Feiler & Glass, P.C., of counsel), for defendant.
    Before: Bashara, P.J., and Quinn and Beasley, JJ.
   After Remand

Beasley, J.

This matter was previously remanded to the trial court to give defendant opportunity to offer proof on a separate record relating to defendant’s motion to set aside a sale of partnership assets and to set aside the order confirming the sale. Extensive hearings have been held pursuant to the order of remand, after which both sides filed briefs with the trial court. Pursuant to request of plaintiff-appellee, the trial court then made further findings of fact over the objection of defendant-appellant, and the matter has now been returned to this Court, which retained jurisdiction.

The issue which gives rise to this portion of defendant-appellant’s appeal relates to whether the sale of partnership assets ordered by the trial court after trial included only the real property in which the partnership had an interest, or included all of the assets of the partnership, including cash and bank accounts.

The record indicates that, after trial on the merits, «both sides prepared proposed judgments purporting to give effect to the trial court’s rulings and findings. Notice was fully given to both sides, and a hearing or hearings were held after which the trial court entered a judgment. Paragraph two of that judgment, which was dated November 24, 1975, provides as follows:

"2. The partnership property shall be sold at public auction within two weeks from the date hereof and either party shall have the right to bid on said property at said auction, each being credited on the purchase price thereof with their aliquot share of the property; the proceeds thereof shall be first applied to the expenses of sale, if any; then, to the satisfaction of any creditors of said partnership and the remainder divided equally between the parties; terms of sale shall be cash or certified check provided that the bidders shall have (60) days from the date of sale to obtain any necessary financing and, in default thereof, the property shall be awarded to the next highest bidder; and the sale shall be consummated by the payment of cash or certified check * * * .”

This judgment was prepared by counsel for defendant on his stationery after the hearings heretofore referred to. The trial court was, and is, satisfied that the reference in the judgment to "partnership property” was intended to mean and to include all partnership assets and not only the real property in which the partnership had an interest. Our review of the record indicates that there was sufficient evidence to support the trial court’s conclusion in this regard.

The record, including the separate record, indicates that the notice of sale which had been requested by the sheriff or his deputy and posted by him or his deputy, described only three parcels of real property in which the partnership had an interest. For whatever the reason, the record indicates that neither plaintiff nor its counsel objected to the failure to describe properly the partnership assets to be sold in the notice of sale. Defendant-appellant claims that a third party, or possibly other strangers to the transaction, might have bid a higher amount than that bid by plaintiff as the successful bidder if they had, in fact, known that there were to be other assets included in the public auction sale. From our review of the record, this possibility seems highly unlikely. Although the trial court ordered a public auction sale, it is clear that the parties were primarily bidding against each other as the price rose from the first bid of $850,000 to the $1,150,000, which was the ultimately successful bid of plaintiff.

We find that defendant and his attorney knew, or should have known, that there was a discrepancy between the judgment entered by the court after trial and the notice of sale. We, therefore, decline to permit the error in the notice of sale which, in any event, was apparently prepared by counsel for defendant, to serve as a basis for setting aside the sale.

Defendant also claims that it was error for the trial court to deny him an opportunity to take an opinion from his expert witness, David Bredernitz, on the separate record. Objection was made to the inquiry made of the expert, and the trial court sustained the objection on the ground that it was not relevant.

As we previously indicated, where request is made to place testimony on a separate record after objection is successfully made to admission of the testimony, there must be a sufficient reason for denial of the request. There was not any sufficient or good reason for this denial by the trial jduge; again, it was error for him to deny defendant this opportunity. However, in view of the findings that we now make, this error is harmless under the circumstances of this case.

Consistent with these findings, we, after full consideration of the testimony placed on the separate record, find that defendant’s claims of error with respect to the sale of the partnership assets are without merit.

We note the further findings of fact and conclusions of law made by the trial court and give consideration to them. We find that the findings of the trial judge were not clearly erroneous.

Affirmed, with costs.

Quinn, J., did not participate.


author: D. R. Freeman, J.

text:
    LANZO CONSTRUCTION COMPANY, INC. v DEPARTMENT OF LABOR
    Docket No. 77-95.
    Submitted June 6, 1978, at Lansing.
    Decided October 17, 1978.
    Leave to appeal applied for.
    Plaintiff Lanzo Construction ■ Company, Inc., was served with a civil citation by defendant Michigan Department of Labor alleging a willful violation of the Michigan Occupational Safety and Health Act (OSHA) and fixing a proposed penalty of $10,000. Plaintiff did not petition the Department of Labor for modification or dismissal of the citation within 15 working days as required to prevent the proposed penalty from becoming a final order. Subsequently, plaintiff petitioned defendant to permit late filing of such a petition, alleging excusable neglect. Defendant denied plaintiff’s request and plaintiff sought review in circuit court. The Macomb Circuit Court, Hunter D. Stair, J., vacated defendant’s denial of the request and ordered defendant to afford plaintiff a full evidentiary hearing on the citation. Defendant appeals. Held:

    1. The Michigan Occupational Safety and Health Act vests the Board of Health and Safety Compliance and Appeals with discretion to hear an employer’s petition for modification or dismissal of a citation and penalty filed after the 15-working-day time period has expired where the employer shows good cause for having failed to meet the 15-working-day deadline and a meritorious defense.
    2. It is for the Board of Health and Safety Compliance and Appeals to determine how strict the good cause standard needs to be and whether plaintiff’s allegations, if proven, constitute good cause.
    Reversed and remanded to the Board of Health and Safety Compliance and Appeals for further proceedings.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 145, 146.
    [2] 73 Am Jur 2d, Statutes §§ 146, 155.
    [3] 73 Am Jur 2d, Statutes §§ 155, 156.
    [4] 73 Am Jur 2d, Statutes § 156.
    [5] 2 Am Jur 2d, Administrative Law § 234.
    [6] [No Reference]

      1. Constitutional Law — Statutes—Statutory Construction.
    While courts may not usurp the law-making function of the Legislature, the proper construction of a statute is a judicial function and the court is required to discover the legislative intent.
    2. Statutes — Construction—Doubtful Meaning.
    Where the language of a statute is of doubtful meaning a reasonable construction must be given, looking to the purpose sub-served thereby.
    3. Statutes — Statutory Construction — Statutory Purpose.
    The occasion and necessity of a statute are matters of judicial concern, and its purpose should be effected if possible.
    4. Statutes — Statutory Construction.
    In construing a statute, its spirit and purpose should prevail over its strict letter, injustice in its application should be prevented and absurd consequences avoided.
    5. Statutes — Statutory Construction — Ambiguity—Administrative Interpretation of Statutes.
    An administrative interpretation of a statute, while entitled to respectful consideration, is not binding on the courts and must be rejected where it is not in accord with the intent of the Legislature.
    6. Administrative Law — OSHA—Civil Citations — Petition to Modify or Dismiss — Late Filing.
    The Michigan Occupational Safety and Health Act vests the Board of Health and Safety Compliance and Appeals with discretion to hear an employer’s petition for modification or dismissal of a citation and penalty filed after the 15-working-day time period has expired where the employer shows good cause for having failed to meet the 15-working-day deadline and shows a meritorious defense (MCL 408.1001 et seq.; MSA 17. 50[1] et seq.).

      Ivan E. Barris and Michael H. Golob, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Patrick E. Kowaleski, Assistant Attorney General, for defendant.

      Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   D. R. Freeman, J.

On May 14, 1976, plaintiff was served by defendant with a civil citation alleging a wilful violation of the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.; MSA 17.50(1) et seq. (hereinafter OSHA). The citation fixed a proposed penalty of $10,000. Section 41 of the OSHA provides that if an employer does not petition the Department of Labor (hereinafter the Department) for modification or dismissal within 15 working days of receipt of the citation and proposed penalty, the citation and proposed penalty shall be deemed a final order of the Board of Health and Safety Compliance and Appeals (hereinafter the Board). On June 16, 1976, plaintiff petitioned the Department to permit tardy filing of a petition. By way of excuse for its failure to timely contest the citation, plaintiff alleged that a criminal complaint had also been issued against it on May 6, 1976, as a result of the alleged wilful violation of OSHA; that the criminal complaint, like the civil citation, called for a $10,000 fine; that the president of plaintiff corporation mistakenly believed that the civil citation related solely to the pending criminal action; that, because the president of plaintiff corporation had already retained legal counsel to handle the criminal proceeding, he mistakenly believed that he need take no additional action with regard to the civil citation; that the president of plaintiff corporation did not notify his counsel of the civil citation until June 10, 1976; and that plaintiff had a meritorious defense to the civil citation involving whether the Department would be able to prove that the violation was wilful.

On the basis of § 41 of OSHA, the Department rejected plaintiffs petition ruling that it was not timely and that neither the Department nor the Board had authority to extend or waive the 15-working-day time period. Plaintiff sought review of this decision in circuit court pursuant to § 44 of OSHA and the Administrative Procedures Act of 1969, MCL 24.201 et seq.; MSA 3.560(101) et seq. (hereinafter the APA). The circuit court vacated defendant’s decision rejecting plaintiffs untimely petition and ordered the Department to afford plaintiff a full evidentiary hearing on the citation. Defendant appeals as of right.

Both the civil and the criminal proceeding arose out of an accident that occurred at plaintiffs construction site. The wall of a trench collapsed killing one of plaintiffs employees. The Department alleged in both the civil and the criminal proceeding that plaintiff had wilfully failed to shore and slope the trench as required by OSHA and regulations promulgated pursuant thereto. On appeal to the circuit court, plaintiff asserted that, on June 14, 1976, following a preliminary examination, the criminal complaint had been dismissed because the prosecution had failed to establish the element of wilfulness.

Section 41 of OSHA provides:

"Within 15 working days after receipt of a citation and proposed penalty, if any, an employer may petition the appropriate department for a grant of additional time for compliance modiñcation, or dismissal of the citation and any proposed penalty. Within 15 working days after the employer has received a citation, an employee or employee representative may petition the appropriate department, alleging the period of time fixed in the citation for the abatement of the violation is unreasonable. When a petition is submitted to the department by the employer, the employer shall transmit a copy immediately to the affected employees or the employee representative. When a petition is submitted to the department by an employee or employee representative, the department shall submit a copy of the petition immediately to the employer after, if so requested by the employee or employee representative, deleting the name of the employee or employee representative. If the employer, employee or employee representative does not petition the department within the 15 working days after receipt of the citation and proposed penalty if any, the citation or proposed penalty shall be deemed a ñnal order of the board. Upon receipt of a petition, the appropriate department may modify the time schedule for compliance, may modify or dismiss the citation and any proposed penalty and shall notify the employer of its decision within 15 working days after receipt of the petition. The employer shall promptly post the notice of the department’s decision together with the appropriate citation. The decision of the department shall become final 15 working days after receipt of the decision. Within 15 working days after receipt of the department’s decision an employer may appeal the decision to the board. Within 15 working days after the employer has received the director’s decision, an employee or employee representative may appeal the decision to the board with respect to the violation abatement period.” (Emphasis added.) MCL 408.1041; MSA 17.50(41).

Section 42 provides that, where an employer timely petitions for review, the Board shall afford an opportunity for an evidentiary hearing before a hearing officer; that the hearing officer shall report his final decision to the Board; and that if, within 30 days, no board member directs that the hearing officer’s decision be reviewed by the Board, it shall become a final order of the Board. Section 44 of OSHA provides that the person aggrieved by an order of the Board may obtain judicial review pursuant to the APA.

We perceive the underlying issue in this case to be whether OSHA vests the Board with discretion to entertain an employer’s petition for modification or dismissal of a citation and penalty filed after the 15-working-day time period has expired. We hold that it does.

Certain well established rules of statutory construction were succinctly stated in Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948):

"Although we may not usurp the law-making function of the legislature, the proper construction of a statute is a judicial function,* * * and we are required to discover the legislative intent. * * * .
"Where, however, the language is of doubtful meaning, a reasonable construction must be given, looking to the purpose subserved thereby. * * * Its occasion and necessity are matters of judicial concern, * * * and its purpose should prevail over its strict letter * * * . Injustice in its application should be prevented, * * * and absurd consequences avoided * * * .” (Citations omitted; emphasis added.)

The clear purpose of the 15-working-day/final order provision is to assure that employers who have been cited for violations of OSHA will promptly respond. However, while §41 of OSHA provides that if an employer does not petition the Department within 15 working days, the citation and proposed penalty shall be deemed a final order of the Board, OSHA does not contain language expressly empowering the Board to set aside such a final order and entertain an untimely petition, or language prohibiting it from doing so. The statute is ambiguous in this regard. .

We note that the Board, in the past, has construed § 41 as fixing a jurisdictional time limit of 15 working days for administrative review of a citation and proposed penalty. Department of Health v Detroit Diamond, Inc, Board of Health and Safety Compliance & Appeals Docket No. NOA 75-64AA (1976). While the construction given a statute by those charged with the duty of administering it is entitled to respectful consideration, especially when the statute is ambiguous, such an administrative interpretation is not binding on the Courts and must be rejected if not in accord with the intent of the Legislature. Howard Pore, Inc v State Comm’r of Revenue, 322 Mich 49, 66; 33 NW2d 657 (1948).

A statute should be construed with an eye toward the result. Cronin v Minster Press, 56 Mich App 471, 476; 224 NW2d 336 (1974). The result of the Board’s construction would be that every employer who petitioned after the 15-working-day time limit would be denied review of the citation and penalty by the Department, would be denied an evidentiary hearing before a hearing officer and would be denied review by the Board, all without regard to the reason it failed to timely petition and without regard to whether it had a meritorious defense. Even were the employer able to show that it was impossible for it to meet the 15-work-ing-day deadline, and that it had an absolute defense, its belated petition would be dismissed, the citation and proposed penalty would be deemed the final order of the Board and the employer’s opportunity to contest the citation in an evidentiary hearing would have been irretrievably lost. Such a construction works an injustice and should be avoided. Stanley v Hinchliffe & Kenner, 395 Mich 645, 657; 238 NW2d 13 (1976); Webster v Rotary Electric Steel Co, supra; Zawacki v Detroit Harvester Co, 310 Mich 415, 420; 17 NW2d 234 (1945). We do not believe that the Legislature intended this result. Accordingly, we reject the Board’s construction and hold that it does have jurisdiction to entertain an untimely petition.

The scheme of administrative review provided for in §§ 41 and 42 of OSHA indicates the Legislature’s solicitude for the rights of employers cited for violations. Further, although the present Michigan statute in many ways parallels the earlier enacted Federal occupational safety & health act, 29 USC 651 et seq., it does not include the Federal provision expressly stating that a final order entered by virtue of an employer’s failure to timely contest a citation shall not be reviewable by any court or agency. 29 USC 659(a). We interpret the 15-working-day/final order provision in our statute to mean that an employer waives administrative review as of right when he fails to timely contest a citation. By implication, however, the Board is vested with discretion to review such a final order and to determine whether it should be set aside and an untimely petition accepted.

The general similarity between this situation and a motion to set aside a default judgment entered in an ordinary civil suit is obvious. See Frank Irey, Jr., Inc v Occupational Safety & Health Review Comm, 519 F2d 1200, 1205-1206 (1975). We hold, therefore, that the Board, in its discretion, may set aside a final order such as was entered here and grant a belated petition for review where an employer shows "good cause” for having failed to meet the 15-working-day deadline and that it has a meritorious defense. Without suggesting that it is directly applicable here, we refer the Board for general guidance in this matter to GCR 1963, 520.4.

It should be made crystal clear that we do not intend by our construction of § 41 of OSHA to appreciably diminish the incentive created by the 15-working-day/final order provision for an employer to promptly respond to a civil citation issued by the department. We hasten to add, therefore, that the "good cause” standard in this context is not necessarily identical to that developed in cases involving motions to set aside default judgments in ordinary civil suits. We leave it to the wisdom of the Board to determine whether the effective enforcement of OSHA dictates that it apply a stricter standard, and we express no opinion at this time as to whether the allegations made by this plaintiff, if established as true to the satisfaction of the Board, constitute "good cause”.

The circuit court’s order is hereby vacated and the matter is remanded to the Board for further proceedings not inconsistent with this opinion.

       We are cognizant that § 44 of OSHA affords a right to judicial review of the Board’s orders; and that § 106 of the APA provides that the reviewing court shall set aside an agency decision if substantial rights of the petitioner have been prejudiced because the decision is not supported by competent, material and substantial evidence on the whole record, or because it was arbitrary, capricious or clearly an abuse of discretion. However, in our view, plaintiff would not be entitled to have this order set aside and the matter remanded for an evidentiary hearing on either of these grounds.
      In this case, the citation became a final order of the Board solely by virtue of the fact that plaintiff did not timely contest it; no adversarial hearing was had, no evidentiary record was made. If plaintiff were entitled to have the Board’s order set aside for lack of evidentiary support, every employer who, with or without justifiable excuse, failed to meet the 15-working-day deadline would be entitled to have the resulting order set aside. The 15-working-day/final order provision would be rendered nugatory. We note that § 78 of the APA expressly provides that disposition may be made of a contested case by waiver or default, and conclude that the competent, material and substantial evidence requirement is inapplicable to an order such as is involved here.
      Again, if the 15-working-day/final order provision were jurisdictional, the Board would be without discretion to set aside an order entered pursuant thereto. This is precisely the position the Department took in this case. If neither the Department nor the Board exercised discretion, on appeal, the circuit court could not reverse for abuse of discretion.

       We deem it appropriate, at this time, to leave for the Board the delineation of the procedure by which it will afford an employer an opportunity to establish "good cause” and a meritorious defense, subject, of course, to judicial review pursuant to § 106(l)(c) of the APA. In any case, however, an order denying an untimely petition for review would be a final order governed by the requirements of § 85 of the APA, and the Board’s findings of fact and conclusions of law as to the absence of "good cause” or a meritorious defense must be set forth with sufficient clarity to permit judicial review.


author: V. J. Brennan, J.

text:
    PEOPLE v CARMICHAEL
    Docket Nos. 77-235, 77-236.
    Submitted April 5, 1978, at Lansing.
    Decided October 17, 1978.
    Leave to appeal applied for.
    Frederick Carmichael was convicted, on his pleas of guilty, of two counts of larceny in a building and of being a third-time felony offender, Bay Circuit Court, John X. Theiler, J. The defendant’s motion to withdraw his guilty pleas, made prior to sentencing, was denied. The defendant appeals. Held:

    The trial court was in error in denying the defendant’s motion where the defendant’s alcohol withdrawal was obvious at the plea-taking session and where the withdrawal may well have made the defendant’s pleas involuntary.
    Reversed and remanded.
    1. Criminal Law — Pleas op Guilty — Withdrawal op Plea op Guilty — Motion.
    Defendants who move to withdraw guilty pleas in Michigan have no absolute right to do so; nonetheless, requests for withdrawal of guilty pleas based upon claims not patently frivolous which are made prior to sentencing and accompanied by an assertion of innocence should be viewed with great liberality by the trial court.
    2. Larceny — Statutes—Legislative Intent — Shoplifting.
    It was not the intent of tb/s Legislature to have the larceny in a building statute applicable in shoplifting cases.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 504.
    [2] 50 Am Jur 2d, Larceny §§ 49, 50.
    Validity, construction, and effect of statutes establishing shoplifting as specific criminal offense. 90 ALR2d 811.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.

      Before: Allen, P.J., and V. J. Brennan and M. F. Cavanagh, JJ.
   V. J. Brennan, J.

On October 27, 1975, defendant Frederick Carmichael pled guilty before Bay County Circuit Judge John X. Theiler to two counts of larceny in a building, contrary to MCL 750. 360; MSA 28.592. Defendant was also convicted of being a third-time felony offender, contrary to MCL 769.12; MSA 28.1084. Defendant was sentenced to 7 to 16 years in prison. He appeals as of right under GCR 1963, 806.1.

The factual circumstances leading to the present convictions bear statement. Defendant was originally charged with four counts of larceny in a building. Three counts arose from thefts or attempted thefts of meat from local grocery stores. The fourth count was brought when defendant was found sleeping in a neighborhood garage. The supplemental information charging defendant as a fifth felony offender was also filed at the same time. Pursuant to plea bargain, prosecution agreed to dismiss two of the four larceny charges in exchange for defendant’s plea of guilty to the other two charges. Defendant would plead guilty as well to the supplemental information, though only as a third felony offender.

After defendant’s pleas of guilty were entered but before sentencing, motion was made to withdraw the pleas on four principal grounds. Defendant alleged that he was intoxicated at the time of the larceny committed on Saturday, October 25, 1975. Further claim was made that defendant’s pleas were coerced by comments of his attorney to the effect he would leave prison "in a pine box”. Defendant claimed he was incapacitated by alcoholic withdrawal at the point he was forced to plead guilty on Monday, October 27, 1975. Finally, defendant claims invalid charges brought in the supplemental information charging him as a fifth felony offender made his plea bargain illusory.

Pursuant to a careful and exhaustive discussion of each claim supporting withdrawal, Judge Theiler found none of defendant’s allegations persuasive and denied his motion. The principal claim of appeal which we will discuss results from this denial. We need address only this claim at any length.

We recognize that defendants moving to withdraw guilty pleas in Michigan have no absolute right to do so. People v Flanagan, 72 Mich App 613, 614; 249 NW2d 872 (1976). Nonetheless, both decisions of the Michigan Supreme Court and this Court clearly indicate that requests for withdrawal of guilty pleas based upon claims not patently frivolous which are made prior to sentencing and accompanied by an assertion of innocence should be viewed with great liberality by the trial court. People v Hayes, 70 Mich App 580; 246 NW2d 154 (1976), People v Thomas, 66 Mich App 594, 596; 239 NW2d 427 (1976), People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975), People v Bencheck, 360 Mich 430, 433; 104 NW2d 191 (1960).

In reviewing existing decisions, we find much similarity with the present case. The most recent communication from the Supreme Court is Lewandowski. The major claim made by defendant in that case parallels closely defendant’s claim in this case that withdrawal symptoms so affected him as to make his plea involuntary. In Lewandowski, where defendant pled guilty to second-degree murder in the shooting death of his wife and wounding of a subsequent pursuer, defendant later attempted to withdraw his pleas claiming he suffered amnesia at the time the pleas were taken. People v Lewandowski, 58 Mich App 18; 226 NW2d 843 (1975), on reh, 60 Mich App 455; 231 NW2d 392 (1975). In the first appeal, we required that defendant demonstrate an abuse of discretion before denial of his motion for withdrawal would be disturbed. On rehearing, we found that though defendant’s claims were not frivolous he had failed to produce the necessary evidentiary support for his allegations of amnesia. The Supreme Court reversed in a simple one page opinion, citing People v Bencheck, supra, and People v Zaleski, 375 Mich 71; 133 NW2d 175 (1965).

We see much to compare between the facts presented in Lewandowski and the claim asserted by defendant here. Defendant in Lewandowski asserted his innocence and contended that his guilty plea was not entered voluntarily. In the present case, we find defendant sufficiently asserted his innocence in the written motion to withdraw his guilty plea. In Lewandowski, defendant’s claim was made before sentencing. We find the same true here. However, whereas in Lewandowski defendant offered no factual evidentiary support for his claim of amnesia, defendant in the present matter submitted much record testimony to the effect that his plea was tainted by the effects of his withdrawal. In this regard, we find defendant’s position much stronger than that of Lewandowski. See also People v Hayes, 70 Mich App 580; 246 NW2d 154 (1976).

Consequently, we are forced to find the trial court in error for denying defendant’s motion where alcohol withdrawal was obvious and may well have made his pleas involuntary.

We will not address defendant’s other allegations of error regarding the denial of his motion. However, we will comment upon the practice which gave rise to many of defendant’s other claims. What we refer to is the Bay County Prosecutor’s penchant for overcharging defendant. We see problems in this case both as to the prosecutor’s (1) charging of this defendant under the habitual offender statute and (2) his original charging on the larceny incidents where they should have been simple larceny charges. It was not the intent of the Legislature to have the larceny in a building statute applicable in shoplifting cases.

This Court recognizes fully the intent of the Legislature regarding use of the habitual offender statute. We also recognize fully the deterrent effect the statute has on released felons. This defendant’s record goes back to 1936.

What became of charges for simple larceny with a maximum of 90 days county jail time? Why the compelling need in a case such as the present for charges involving four years maximum imprisonment for shoplifting against a person whose record clearly indicates acute alcoholism and mental problems? This Court suspects an abuse of process, and an abuse of discretion, on the part of the Bay County Prosecutor in this matter. The fact that on several occasions defendant sought to personally defend himself no doubt helped aggravate the prosecutor into these obvious overcharges. Certainly, defendant has pursued his legal options to the extreme. The record shows defendant a calculating person who has used the legal system as a vehicle and expression for his instability. However, we do not believe the prosecutor’s response to defendant’s behavior is a fair use of his office or a proper solution to remove defendant from taking undue advantage of the legal system. In fact, we are convinced the approach used by the prosecutor merely provided defendant with legitimate opportunity to imbed himself more securely in the legal machinery of this state.

The position the Bay County Prosecutor holds requires of him not only patience with defendants of this nature and their demands for certain rights, but even requires him to take certain abuses upon occasion. When we see the prosecutor becoming angry and oversensitive to such behavior to the extent that he uses his office to "teach a lesson”, subjecting defendants to four years imprisonment for offenses that should only require minimum county jail time, we perceive a need to explore the practices of that office in order to determine if this kind of abuse is common.

Consequently, we remand this case to Bay County Circuit Court with instruction that defendant’s motion to withdraw be granted and the trial court re-examine the nature of the charges in this matter.

We retain no further jurisdiction.


author: D. C. Riley, P.J. M. F. Cavanagh, J.

text:
    PEOPLE v KNOLTON
    Docket No. 77-1103.
    Submitted June 21, 1978, at Detroit.
    Decided October 17, 1978.
    Leave to appeal denied, 406 Mich —.
    Moses Knolton was convicted of assault with intent to do great bodily harm less than murder, Recorder’s Court of Detroit, Joseph A. Gillis, J. Defendant appeals. Held:

    The prosecutor in his opening and closing arguments argued facts not supported by trial evidence. A prosecutor may not argue or refer to facts not of record. Despite defendant’s failure to object, a new trial should be granted on the basis of a miscarriage of justice where the prosecutor’s remarks, in addition to being outside of the record, were misleading, of questionable accuracy and could have significantly diverted the jury’s attention from the actual issues of the case.
    Reversed and remanded.
    M. F. Cavanagh, J., dissents. He would hold defendant’s conviction should be affirmed on the ground that any error resulting from the prosecutor’s remarks, when considered with the court’s instructions concerning arguments of counsel, created no manifest injustice.
    References for Points in Headnotes
    [1, 3] 4 Am Jur 2d, Appeal and Error § 541.
    5 Am Jur 2d, Appeal and Error § 896.
    58 Am Jur 2d, New Trial § 71.
    63 Am Jur 2d, Prosecuting Attorneys § 27.
    75 Am Jur 2d, Trial §§ 257-259.
    [2] 4 Am Jur 2d, Appeal and Error § 541.
    5 Am Jur 2d, Appeal and Error § 896.
    58 Am Jur 2d, New Trial §§ 16, 71.
    63 Am Jur 2d, Prosecuting Attorneys § 27.
    75 Am Jur 2d, Trial §§ 257-259, 315-318.
    [4] 29 Am Jur 2d, Evidence §§ 493-507
    [5] 5 Am Jur 2d, Appeal and Error § 896.
    58 Am Jur 2d, New Trial § 16.
    75 Am Jur 2d, Trial §§ 315-318.

      Opinion of the Court
    1. Criminal Law — Prosecutor—Evidence—Prosecutor’s Improper Argument — Facts Not in Record.
    A prosecutor’s argument to a jury must be supported by the evidence presented; he may not argue or refer to facts not of record.
    2. Criminal Law — Comments of Prosecutor — Failure to Object— Fair Trial — Miscarriage of Justice.
    A prosecutor’s unobjected-to trial comments may be cause for reversal where the result of those comments is a denial of the defendant’s right to a fair trial; a miscarriage of justice occurs where the prosecutor’s unobjected-to comments were of questionable accuracy and where they could have significantly diverted the jury’s attention from the actual issues of the case.
    3. Criminal Law — Comments of Prosecutor — Jury—Prejudice— New Trial.
    A defendant should be granted a new trial where, as a result of a prosecutor’s trial comments, the jury was not only prejudiced by considerations outside of the evidence presented in the case but also was misled as to the evidentiary value of those considerations.
    4. Evidence — Hearsay Statements — Admissibility.
    Statements of individuals made to police officers, which prompted their investigation of a defendant’s activities, are admissible over defendant’s objections that they were hearsay where the statements were not presented to show their truth but only to show their effect on the officers’ course of conduct.
    Dissent by M. F. Cavanagh, J.
    5. Criminal Law — Prosecutor’s Remarks — Instructions to Jury— Manifest Injustice — Appeal and Error.

      A defendant’s conviction should stand where any error resulting from a prosecutor’s remarks, when considered with the court’s instructions concerning the arguments of counsel, created no manifest injustice.

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

      Gerald S. Surowiec, for defendant on appeal.
    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.

   D. C. Riley, P.J.

Defendant Moses Knolton was convicted at a jury trial of assault with intent to do great bodily harm less than murder, contrary to MCL 750.84; MSA 28.279, and sentenced to a prison term of two to ten years.

The incident in question occurred when a crew of plain clothes Detroit police officers, driving an unmarked police car, responded to the requests of several people, including relatives of defendant, to investigate a disturbance at defendant’s house. According to the officers, they spoke to defendant on his front porch, but took no immediate action. While they were then observing the house, defendant drove away at a high rate of speed. After a chase through the city streets, the cars stopped at a red light. One officer stated that as he approached defendant’s vehicle, with his gun drawn, and identified himself as a police officer, he was shot in the chest by defendant.

Defendant Knolton testified in his own behalf. He admitted having been in an argument at his house, but denied having spoken to any police officers on his porch. He stated that he did not notice anyone following him when he drove away from his house, but that a man approached his car with a gun drawn when he was stopped at the light. Defendant denied that the man identified himself as a police officer, instead maintaining that he thought the man was one of several young men who allegedly had been harassing him earlier in the day. He stated that he did fire shots in the man’s direction but only after he had first been fired upon.

Obviously one key area of dispute in regard to defendant’s claim of self-defense was whether defendant in fact knew that the man approaching his car was a police officer. In this context, the identifiability of the unmarked police car was quite relevant. In opening argument, the prosecutor stated:

"Of course, the unmarked car is a Plymouth four door sedan with no radio antenna, and anybody with brains and eyes know[s] that’s a police car specially in the city of Detroit.”

During closing argument, the prosecutor again spoke to the issue of the appearance of the unmarked car:

"And that will become important because the car was unmarked, and they were in civilian clothes.
"My friend Mr. Parzen [defense counsel] will probably say [']how would he know they were police officers[?’].
"Ladies and gentlemen, all you have to do is walk out of this building and take a look at that parking lot across the street, and there you see a whole Pythian of unmarked Detroit police cars, all being Plymouths, all being four door, all having blackwalls, all having no radio antenna.
"So the only thing it doesn’t have is a big P-O-L-I-C-E printed on the side of the car.”

Defendant asserts on appeal that the comments made in the prosecutor’s argument were improper because they relied upon evidence not on the record. We see merit in this contention. The only testimony at trial related to these comments were the police officers’ descriptions of the car. There was no real evidence of the general public’s ability to recognize such a car as an unmarked police vehicle and, more importantly, defendant testified that he never saw the car, either at his house or during the subsequent chase.

It is a long-standing rule of law that an attorney may not argue or refer to facts not of the record. People v McCain, 84 Mich App 210; 269 NW2d 528 (1978), People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969), People v Dane, 59 Mich 550; 26 NW 781 (1886), People v Quick, 58 Mich 321; 25 NW 302 (1885). In the case at bar, there was no record evidence to support the prosecutor’s argument that defendant knew that the unmarked car was a police vehicle.

It is true, as raised by the prosecution here, that defendant did not object to these comments at trial. However, even unobjected-to comments may be cause for reversal where the result of those comments is a denial of the defendant’s right to a fair trial. People v McCain, supra, People v Auer, 393 Mich 667; 227 NW2d 528 (1975). We find a miscarriage of justice in the present case since the comments could have significantly diverted the jury’s attention from the actual issues of the case. We also note that the comments themselves, while phrased in a form that resembles judicial notice of a recognized fact, were of questionable accuracy. Thus, the jury was not only prejudiced by considerations outside of the evidence presented in the case but also misled as to the evidentiary value of the considerations. Defendant should be granted a new trial absent this prejudicial argument.

In order to avoid a recurrence should a retrial be commenced, we will briefly comment on a few other points raised in this appeal. Certain statements made to the police officers, which prompted their investigation of defendant’s activities, were admitted over defendant’s hearsay objections. We find that the objections were properly overruled, since the statements were not presented to show their truth but only to show their effect on the officers’ course of conduct. MRE 801(c), People v Garcia, 31 Mich App 447; 187 NW2d 711 (1971). However, on retrial, the court should limit this testimony solely to the fact that several statements were made that induced the investigation, without reference to the irrelevant and prejudicial substance of those statements. Also, the status and availability of witness Betty Watts should be decided outside of the presence of the jury.

Reversed and remanded.

B. M. Hensick, J., concurred.

M. F. Cavanagh, J.

(dissenting). I would affirm defendant’s conviction. There was testimony that at least two individuals recognized and hailed the police vehicle. While this may not justify the prosecution’s assertion that identifiability of these vehicles was "common knowledge”, it does create at least an inference that some people recognized them. In any event, I am persuaded that any error in these remarks, especially when considered with the court’s instructions concerning the arguments of counsel, created no manifest injustice. People v Auer, 393 Mich 667, 675; 227 NW2d 528 (1975).

       We would assume that one of the basic reasons for the use of unmarked police cars is to avoid citizen recognition, for purposes of surveillance and undercover work. While it is undoubtably true that some members of the populace have learned to identify the unmarked cars, we seriously doubt whether there exists the universal recognition perceived by the prosecutor in this case.