author: J. E. Townsend, J.

text:
    PEOPLE v IRVING
    Docket No. 46763.
    Submitted June 16, 1980, at Detroit.
    Decided August 12, 1980.
    Redell S. Irving was convicted, on his plea of guilty, of armed robbery in Recorder’s Court of Detroit, Samuel C. Gardner, J., while on probation to the same court. The court advised the defendant prior to taking the plea that whatever term the judge would impose for probation violation would run concurrently with the sentence imposed for armed robbery. Subsequently, the defendant, represented by the same attorney, appeared before the same judge and entered a plea of guilty to probation violation based on his armed robbery conviction. In addition, the record reflects a notice of probation violation served upon the defendant and an acknowledgement of rights, signed by the defendant. The defendant appeals, alleging that he was not given reasonable notice of the probation violation nor advised of his right to a contested hearing thereon. Held:

    1. The purpose of providing notice and opportunity for a hearing on a probation violation charge is to afford a defendant a reasonable opportunity to dispute with evidence the fact of a claimed violation. Such purpose and due process requirements are controlling whenever the fact of violation is or may be disputed by a defendant.
    2. A written notice of probation violation document and acknowledged receipt of such notice are sufficient notice to a defendant of his right to a hearing on the probation violation.
    Affirmed.
    1. Criminal Law — Probation Violation — Notice — Hearing.
    The purpose of providing notice and opportunity for a hearing on a probation violation charge is to afford a defendant a reasonable opportunity to dispute with evidence the fact of a claimed violation; such purpose and due process requirements are controlling whenever the fact of violation is or may be disputed by a defendant.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional parole, or probation. 29 ALR2d 1074.

      2. Criminal Law — Probation Violation — Notice — Hearing.
    A written notice of probation violation document and acknowledged receipt of such notice are sufficient notice to a defendant of his right to a hearing on the probation violation.

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

      Susan J. Smith, Assistant State Appellate Defender, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and Cynar and J. E. Townsend, JJ.

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

   J. E. Townsend, J.

Defendant appeals from an order revoking probation and imposing sentence.

Defendant claims he was not given reasonable notice of the probation violation charged nor advised of his right to a contested hearing thereon.

On August 23, 1977, defendant was convicted in Detroit Recorder’s Court of attempted breaking and entering and was placed on two years probation. On May 23, 1979, while being represented by attorney Robert Elsey, defendant entered a plea of guilty before Recorder’s Court Judge Samuel C. Gardner to two counts of armed robbery upon the following stated sentence agreement:

"I’ve advised your attorney that if you do plead guilty to the charges of robbery armed that the maximum penalty that I will give you would be a term of three to seven years in the state’s prison. The prosecutor has indicated that he will not seek a supplemental criminal warrant for being an habitual criminal if you do plead guilty, if that is applicable. And, in addition to that, in the case where you’re on probation, whatever term I would give you for violating that probation by pleading guilty would be less than the three to seven years. And, the terms would run together, or at the same time. And, I would give you credit for any time that you have served in the county jail awaiting trial.”

On May 25, 1979, defendant, represented by the same attorney, appeared before the same judge in probation violation proceedings and through his attorney entered a plea of guilty to probation violation based upon his May 23, 1979, guilty plea to two counts of armed robbery. Defendant was sentenced to three to five years in prison for the attempted breaking and entering following the revocation of probation.

The record discloses service upon defendant on May 25, 1979, of a notice of probation violation by proof of service and by an acknowledgment of rights admittedly signed by defendant.

Such notice contains the following language on its face:

"The probationer is entitled to a hearing on the charges contained in this violation notice.”

Defendant’s signature, conceded by appellate counsel at oral argument to be authentic, appears below the following statements contained on the reverse side of the notice of probation violation:

"I have received a copy of the notice of probation violation. I understand that I am entitled to an attorney if I was on probation for a felony conviction. I understand that I may request the Court to appoint an attorney for me if I cannot afford to hire a lawyer. I understand that I am not required to make a statement. I understand that I may have a hearing before a judge on the charges contained in the notice of violation of probation and that I may present witnesses on my behalf.”

Defendant was sentenced in conformity with the stated sentence bargain.

The purpose of providing notice and opportunity for a hearing on a probation violation charge is to afford a defendant a reasonable opportunity to dispute with evidence the fact of a claimed violation. Such purpose and due process requirements are controlling whenever the fact of violation is or may be disputed by defendant. To entertain a due process challenge on the facts of this case, however, would exalt form over substance.

Defendant’s probation violation was established by his guilty plea convictions received two days earlier by the same judge and was part and parcel of a plea and sentence bargain encompassing the armed robbery convictions and the probation violation. To require that the trial court judge directly advise defendant on the record that he could have a probation violation hearing, the sole object of which would have been to permit defendant to repudiate the factual basis of the guilty plea convictions just received, constitutes a useless exercise in legal semantics. There could be no meaningful contest as to such convictions. See People v Johnson, 87 Mich App 544; 274 NW2d 68 (1978).

Defendant received the fruits of his plea and sentence bargain. Defendant’s rights were not prejudiced by the procedure followed.

Furthermore, defendant received notice of his right to a hearing through the medium of the notice of probation violation document and acknowledged receipt of such notice over his signature. Similar notice of right to hearing procedures were sustained as sufficient on similar facts by other panels of this Court in People v Darrell, 72 Mich App 710; 250 NW2d 751 (1976), and People v Hooks, 89 Mich App 124; 279 NW2d 598 (1979).

On the facts and circumstances of this case we conclude that defendant’s due process procedural rights were adequately safeguarded.

Affirmed.


source: Caselaw Access Project

author: R. M. Maher, J. Cynar, J.

license: Public Domain

text:
    PEOPLE v THALACKER
    Docket No. 46843.
    Submitted March 6, 1980, at Detroit.
    Decided August 12, 1980.
    Defendant, Chris Thalacker, was convicted on his plea of guilty of armed robbery in Wayne Circuit Court, Thomas J. Brennan, J., and was sentenced to a term of 8 to 13 years in prison. Defendant appeals, contending that the trial court failed to comply with the requirement of GCR 1963, 785.7(l)(f), in that the trial court did not advise the defendant that the offense to which he was entering a piea was nonprobationable, nor that he would definitely go to prison, and that such failure to so advise requires reversal. Held:

    The clear import of GCR 1963, 785.7(l)(f)is that a defendant must be told that he will serve some time in prison if he enters a plea of guilty or nolo contendere to a charge of murder, armed robbery, or treason. The only exception to this requirement is where there has been a sentence bargain and the defendant knows, prior to entering his plea, that he will be sent to prison. The trial record in this case is silent as to whether defendant knew he would be sent to jail. To allow the conviction to stand under such circumstances would be to render the court rule nugatory.
    Reversed and remanded.
    Cynar, J., concurs in the result reached by the majority but disagrees with the majority that a previous case was incorrectly decided. He would hold that noncompliance with GCR 1963, 785.7(l)(f) is not reversible error where the court accepts the plea if the defendant is informed that the maximum sentence is life and the defendant states that he understands the maximum penalty, defendant is a previous felony offender and is familiar with the criminal justice system, he is in violation of his parole and is aware of the consequences therefor, and the crime is a grievous one and defendant has no expectation of being placed on parole.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 487, 491.5.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [2] 20 Am Jur 2d, Courts § 85.

      Opinion of the Court
    1. Criminal Law — Criminal Procedure — Guilty Pleas — Minimum Sentences — Court Rules.
    A defendant must be told that he will serve some time in prison before he is allowed to enter a plea of guilty or nolo contendere to a charge of murder, armed robbery, or treason; however, this requirement is excused where there has been a sentence bargain because the defendant will already know his prison term before entering his plea (GCR 1963, 785.7[l][f]).
    Concurrence by Cynar, J.
    2. Criminal Law — Criminal Procedure — Guilty Pleas — Court Rules — Noncompliance with Court Rule.

      Noncompliance with a court rule requiring that a defendant be informed that he will be sentenced to prison if he tenders a plea of guilty or nolo contendere to the crime of murder, armed robbery, or treason is not reversible error where the court accepts the plea if the defendant is informed that the maximum sentence is life and the defendant states that he understands the maximum penalty, defendant is a previous felony offender and is familiar with the criminal justice system, he is in violation of his parole and is aware of the consequences therefor, and the crime is a grievous one and the defendant has no expectation of being placed on parole (GCR 1963, 785.7[l][fj).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

      Lawrence B. MacDonald, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. M. Maher and Cynar, JJ.
   R. M. Maher, J.

The defendant appeals as of right from his plea-based conviction for armed robbery, MCL 750.529; MSA 28.797. The defendant was sentenced to a term of 8 to 13 years in prison.

On appeal, the defendant contends that the trial court failed to comply with the requirement of GCR 1963, 785.7. More specifically, defendant alleges that the trial court did not advise the defendant that the offense to which he was entering a plea was nonprobationable, as required by GCR 1963, 785.7(l)(f). The transcript of the guilty plea reveals that defendant was told that the maximum sentence for armed robbery was life, but he was not advised that the offense was not probationable nor that he would definitely go to prison.

In People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), this Court said that it was error not to advise defendant of his ineligibility for probation. However, because of the sentence bargain in that case, the defendant knew before he pleaded that he would go to prison, and so the Court concluded that the error was harmless. In his concurring opinion in Freeman, Judge T. M. Burns indicated that had there been no sentencing agreement, reversal would have been mandated by Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975).

In People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977), the defendant pleaded guilty to armed robbery and was not informed that he could not be placed on probation. He was told the maximum sentence but not the minimum. There was no sentence agreement. Although the Court cited People v Freeman, supra, it concluded with little reasoning that despite the absence of a sentencing agreement, there was no reversible error. In a. more recent case, People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979), the defendant entered a plea of second-degree murder and was not told that this was a nonprobationary offense. Defendant was informed of a possible maximum life sentence. The Court declined to reverse the conviction, citing People v Lendzian, supra, and said the error was harmless for the following reasons: the defendant was told and understood that there was a maximum life sentence; as a previous felony offender, he was familiar with the criminal justice system; defendant was in violation of his parole and was apprised of the possible consequences therefor; and finally, defendant was charged with a grievous crime and had no expectation of being placed on probation.

We are forced to conclude that both Lendzian and Jones, supra, were wrongly decided. The clear import of GCR 1963, 785.7(l)(f) is that a defendant must be told that he will serve some time in prison if he chooses to enter a plea. Under Freeman, that requirement is excused where there has been a sentence bargain, for defendant then knows of his prison term prior to entering his plea. Despite the gravity of a defendant’s crime or his prior experience with the judicial system, we cannot infer from a silent record that defendant knew he would serve time in jail and thus render the court rule nugatory.

Reversed and remanded to the trial court.

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

Cynar, J.

(concurring in result only). Although I concur in the result reached by the majority, I feel compelled to comment further on People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979), lv den 409 Mich 854 (1980). Defendant Jones had been charged in a three-count information: count I, first-degree murder; count II, assault with intent to commit murder; and count III, possession of a firearm at the time of the commission of a felony. The plea bargain in that case involved dismissal of counts I, II, and III in exchange for defendant’s plea of guilty to an added count of second-degree murder. On August 21, 1978, the date defendant tendered his plea, he was advised that he was pleading guilty to a felony with a maximum penalty of life imprisonment. He was further advised that the prosecution would forbear from filing a habitual offender information and that by pleading guilty to second-degree murder defendant would be admitting to being in violation of the terms of his parole on a previous armed robbery conviction and could be punished therefor. Just prior to accepting defendant’s plea, the court stated:

"For this record, the court has not agreed upon the possibility of a plea, but as [sic] indicated to the defense counsel prior to this date that the possible sentence would be life imprisonment.”

Subsequently, defendant was sentenced to life imprisonment. It is my conviction that People v Earl Jones, supra, was correctly decided.


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

text:
    PEOPLE v RICHARD JOHNSON
    Docket No. 47338.
    Submitted June 16, 1980, at Lansing.
    Decided August 12, 1980.
    Defendant, Richard P. Johnson, was convicted of attempted armed robbery in the Tuscola Circuit Court, Patrick R. Joslyn, J. He appeals, alleging error in allowing admission of evidence of a breaking and entering by defendant which was committed subsequent to the charged offense. Held:

    Evidence of similar acts, to be admissible, requires the following foundation: 1) substantial evidence that the defendant actually perpetrated the bad act; 2) the bad act is probative of defendant’s motive, intent, absence of mistake, design, scheme, plan or system in committing the charged offense; and 3) the evidence is material to the determination of defendant’s guilt of the charged offense. All three foundation requirements were met. He confessed to the commission of the act. The evidence was probative of intent and lack of mistake and was material, since defendant raised the issue of capacity to form the requisite specific intent.
    Affirmed.
    Evidence — Similar Acts Evidence — Criminal Law.
    Evidence of similar acts, to be admissible, requires the following foundation: 1) substantial evidence that the defendant actually perpetrated the bad act; 2) the bad act is probative of defendant’s motive, intent, absence of mistake, design, scheme, plan or system in committing the charged offense; and 3) the evidence is material to the determination of defendant’s guilt of the charged offense.
    Reference for Points in Headnote
    [1] 29 Am Jur 2d, Evidence § 320 et seq.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Artis M. Noel, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people._

      Clinton C. House, for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and J. H. Pierce y, JJ.

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

   D. E. Holbrook, Jr., J.

Defendant and two confederates, Donald Miller and Victor Radecki, consumed three 12-packs of beer. After deciding to rob a store, they got a Halloween mask from Miller’s trailer and a sawed-off shotgun from a friend. Radecki entered the building to find out if there were any customers inside. Finding none, he returned to the car and waited with Miller. Defendant detached the telephone wire and entered the store wearing the Halloween mask. He pointed the gun at the shopkeeper and said, "This is a holdup”. The shopkeeper pulled a gun from her jacket pocket and began shooting. She continued shooting over his head as he fled the store.

After some discussion between themselves regarding the danger inherent in an armed confrontation and the advantage of avoiding same, the three men went to the house of an acquaintance who was hospitalized. They broke into the home and took guns, an antique clock and other personal property which they later sold.

Defendant was convicted by a jury of assault with intent to commit robbery being armed. MCL 750.89; MSA 28.284. Thereafter sentenced to 1-1/2 to 5 years in prison, he appeals as of right.

The lower court allowed the introduction of evidence of the subsequent breaking and entering only for the limited purpose of showing defendant’s capacity to form the specific intent to rob and steal, as defendant’s defense was that he was so intoxicated that he had lost the ability to distinguish right from wrong. Defendant claims such evidence was not admissible. We disagree.

MRE 404(b) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrong, or acts are contemporaneous with, or prior or subsequent to the crime charged.”

People v Worden, 91 Mich App 666, 682; 284 NW2d 159 (1979), required the following foundation for admission of similar acts evidence:

(1) substantial evidence that the defendant actually perpetrated the bad act;

(2) the bad act must be probative of defendant’s motive, intent, absence of mistake, design, scheme, plan or system in committing the charged offense; and

(3) the evidence must be material to the determination of defendant’s guilt of the charged offense.

First, in the instant case there was substantial evidence that defendant perpetrated the bad act. He has not denied his actions of that day; in fact, his confession was admitted into evidence.

Second, the evidence was probative of intent and absence of mistake in committing the charged offense. Both crimes are specific intent crimes requiring a common mental state. The same individuals were involved in a time frame of less than 1-1/2 hours. There was no lapse in the continuity of the criminal episode which' was fueled by a single objective and intent — the intent to deprive another of his property.

Third, the evidence of intent was material to the determination of defendant’s guilt of the charged offense. It was not offered to prove the bad character of the defendant in order to raise the inference of a possibility that he committed the crime charged. It was offered to show that he had the ability to reason and thereby form a specific larcenous intent, thereby countering his defense of incapacity to form such an intent.

The evidence was properly admitted even though, generally, testimony showing that a defendant committed other crimes or bad acts is inadmissible because of the likelihood of impermissible prejudice, preventing an objective determination of the disputed factual issue. People v Flynn, 93 Mich App 713; 287 NW2d 329 (1979). See also People v McCarver, 72 Mich App 311, 318; 249 NW2d 403 (1976), rev’d 403 Mich 376; 269 NW2d 186 (1978). Potential prejudice to the defendant was minimized as the trial court gave the jury a cautionary instruction to consider the subsequent act only in determining whether or not defendant could formulate an intent to rob and steal.

In People v Cramer, 97 Mich App 148; 293 NW2d 744 (1980), the defendant’s mental capacity was also at issue. In addressing the relevance of a similar act occurring the same night as the crime, the Court held:

"Evidence of defendant’s actions just prior to, during and subsequent to the crime charged was 'helpful in throwing light’ upon defendant’s state of mind at the time of the offense.
"As such, the evidence rendered the fact of defendant’s sanity and mental capacity at the time of the charged offense more probable than it would be without the evidence.”

As in Cramer, supra, the combined effect of the evidence was helpful in throwing light upon defendant’s state of mind at the time of the offense. Defendant put his capacity to form a specific intent at issue. The lower court recognized its discretion in its ruling that the evidence had more probative value than prejudicial effect.

Having examined defendant’s remaining allegations of error, we find them to be without merit.

Affirmed.


author: Beasley, J.

text:
    PEOPLE v ORNELAS
    Docket No. 47418.
    Submitted June 11, 1980, at Lansing.
    Decided August 12, 1980.
    Abel Ornelas pled guilty to breaking and entering an unoccupied building with intent to commit larceny, and sentence was imposed, Saginaw Circuit Court, Joseph R. McDonald, J. He appeals, alleging his plea made an insufficient factual showing of guilt with respect to the proof of breaking and that the court abused its discretion in binding him over for trial absent proof of his intent to commit larceny, and such defect is not waived by a plea of guilty. Held:

    It is unnecessary to decide whether or not an alleged error in binding over defendant for trial is waived by a plea of guilty since there was no abuse of discretion by the magistrate. The proofs presented by the prosecution were sufficient to infer both breaking and an intent to commit larceny, which evidence supported binding over defendant for trial.
    Affirmed.
    1. Criminal Law — Pleas of Guilty — Waiver of Error — Appeal.
    An error committed during a hearing on a criminal charge to determine whether or not a defendant Should be bound over for trial can be waived by a plea of guilty where no effort is made on the record to preserve for appeal the alleged abuse of discretion of the magistrate.
    2. Appeal — Criminal Law — Waiver of Issues — Failure to Raise Issues.
    The issue of the sufficiency of the proof of the corpus delicti is waived for appeal where the defendant has waived preliminary examination and has never raised the issue in the court below, and failure to raise the issue of the sufficiency of the evidence against a defendant in the court below also waives the issue for appeal.

      References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 271.
    21 Am Jur 2d, Criminal Law § 447.
    [2] 5 Am Jur 2d, Appeal and Error § 545.
    [3] 21 Am Jur 2d, Criminal Law §§ 446, 447, 495.

      3. Criminal Law — Courts — Jurisdiction — Waiver by Pleadings.
    A circuit court has jurisdiction to entertain a defendant’s plea to a criminal charge where there has not been a valid preliminary examination since the right to such examination is waived by the plea.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda B. Wright, Appellate Prosecuting Attorney, for the people.

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J., and Beasley and G. R. Deneweth, JJ.

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

   Beasley, J.

Defendant, Abel Ornelas, pled guilty to breaking and entering an unoccupied building with intent to commit larceny in violation of MCL 750.110; MSA 28.305. After defendant was sentenced to not less than two and one-half years nor more than 10 years in prison, he appeals as of right.

Defendant claims that he made an insufficient factual showing of guilt, specifically with respect to proof of breaking. The claim is without merit. Defendant said:

"On January 30th, Monday, Joe Vargas and me and my brother broke into a dry cleaners on Hess Street. We gained entrance through a door and then through a screen up on top of the building.”

Defendant also claims that the district judge abused his discretion in binding defendant over for trial because there was no proof that defendant intended to commit larceny. Defendant then reasons that insufficient evidence to bind over is a defect that is not waived by a plea of guilty, citing People v Alvin Johnson,

While some of the dicta in Johnson might indicate otherwise, we do not agree that an error on the bind-over can never be waived by a plea of guilty where no effort is made on the record to preserve for appeal an alleged abuse of discretion on the bind-over. As noted in People v McIntyre, any contrary rule would lead to one of two results:

"(1) Prior to accepting every plea of guilty each trial judge would have to review the magistrate’s decision to bind the defendant over, or;
"(2) This Court would be placed in the position of the circuit court in reviewing preliminary examination findings despite the defendant’s failure to raise the issue below.”

Seeking to avoid these results, this Court has held that the issue of the sufficiency of the evidence to bind over is waived by failure to raise it below and, similarly, that the issue of the sufficiency of the proof of the corpus delicti is waived where the defendant has waived preliminary examination and never raised the issue below.

The question of whether a circuit court has jurisdiction to entertain a defendant’s plea where there had not been a valid preliminary examination has also been found to have been waived by the defendant’s plea.

However, in this case, it is unnecessary to decide whether or not an alleged error on the bind-over is waived by a plea of guilty because we find no abuse of discretion in the bind-over. The proofs show defendant was apprehended inside of the cleaning establishment, that entry had been made through a shaft in the ceiling by pushing a screen, that defendant was hiding under a pile of clothes, and that clothing had been bagged up near the shaft. From these proofs, there was no abuse of discretion in inferring an intent to commit larceny. This evidence supported binding defendant over for trial.

Affirmed._

       396 Mich 424; 240 NW2d 729 (1976).

       74 Mich App 661, 665; 254 NW2d 603 (1977).

        People v McIntyre, supra, People v Hill, 86 Mich App 706, 712-713; 273 NW2d 532 (1978).

        People v Peterson, 90 Mich App 345, 347-348; 282 NW2d 315 (1979).

        People v Hall, 97 Mich App 143; 293 NW2d 742 (1980).

        People v Lambo, 8 Mich App 320; 154 NW2d 583 (1967), People v Dale Wilson, 27 Mich App 395; 183 NW2d 626 (1970), People v Thompson, 41 Mich App 272; 199 NW2d 859 (1972).


author: R. B. Burns, P.J.

text:
    SCHUTZ v MURPHY
    Docket No. 47856.
    Submitted June 5, 1980, at Grand Rapids.
    Decided August 12, 1980.
    George J. Schütz was allegedly injured after he stumbled and fell, those injuries allegedly having been proximately caused by his drunken state which resulted from the consumption of alcoholic beverages sold in violation of the dramshop act. George Schütz and his wife, Janet, commenced an action against Kenneth Murphy, d/b/a Mosquito Inn, claiming, in count I of their complaint, damages under the dramshop act and, in count II, damages under the common law. The action against Murphy was later dismissed. An amended complaint naming Arthur D. Schieber and David A. Schieber, d/b/a Mosquito Inn, as defendants was filed, with the new count I, the dramshop count, being brought on behalf of plaintiff Janet Schütz only. Defendants Schieber filed a motion for summary judgment as to count I of the complaint. The Houghton Circuit Court, Stephen D. Condon, J., granted the motion for summary judgment as to count I on the basis that plaintiff Janet Schütz failed to name and retain as a party defendant the intoxicated person, i.e., her husband, plaintiff George Schütz, as required by the dramshop act. The order granting summary judgment was entered as a final judgment. Plaintiff Janet Schütz appeals. Held:

    1. The name and retain provision of the dramshop act does not apply where the party bringing an action under that act cannot, because of the absence of any right by the plaintiff to bring an action against the intoxicated person, name and retain the intoxicated person as a party defendant.
    2. A wife, during the pendency of her marriage, may not maintain a suit against her husband for damages arising out of her husband’s negligent infliction of injury upon himself. Since plaintiff had no cause of action against her husband, plaintiff did not need to name and retain her intoxicated husband as a party defendant in her dramshop act action. The absence of any cause of action by her husband against the dramshop defendants does not affect plaintiff wife’s cause of action under the dramshop act, because the dramshop act creates an independent rather than a derivative cause of action in the wife of the injured person.

      References for Points in Headnotes
    [1-3] 45 Am Jur 2d, Intoxicating Liquors § 596.
    [3] 45 Am Jur 2d, Intoxicating Liquors § 594.

      3. Since plaintiff wife’s cause of action under the dramshop act was in no way dependent upon the existence of a viable cause of action by her husband, the injured intoxicated person, and since she, having no cause of action against her husband, had no need to name and retain her husband as a party defendant in her dramshop act action, the granting of summary judgment dismissing the dramshop act action was improper.
    Reversed and remanded.
    1. Intoxicating Liquors — Dramshop Action — Name and Retain — Cause of Action — Statutes.
    The name and retain provision of the dramshop act does not apply where the plaintiff cannot name the intoxicated person or cannot retain the intoxicated person as a party defendant because the plaintiff has no cause of action against the intoxicated person (MCL 436.22; MSA 18.933).
    2. Torts — Cause of Action — Married Persons — Dramshop Act . — Name and Retain.
    A wife does not have a cause of action against her husband, while they are still married, for damages arising out of the husband’s negligent infliction of injury upon himself; accordingly, a wife need not name and retain her intoxicated husband as a party defendant in her dramshop act action.
    3. Intoxicating Liquors — Dramshop Act — Parties — Actions — Married Persons — Statutes.
    An action commenced under the dramshop act may be brought in the name of the wife, husband, child or parent of the injured person and is not a derivative action flowing from any right of action by the injured person; accordingly, a wife may maintain a dramshop action for damages resulting from an injury to her husband even if the husband, being the one intoxicated, cannot recover damages for his own injuries under the dramshop act (MCL 436.22; MSA 18.933).

      Wisti & Jaaskelainen (by Michael E. Makinen), for plaintiffs.

      Bridges & Collins (by Dennis Shafer), for Arthur D. and David A. Schieber.
    Before: R. B. Burns, P.J., and Mackenzie and J. T. KALLMAN, JJ.

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

   R. B. Burns, P.J.

Plaintiffs filed suit for damages arising out of defendants’ alleged violation of the dramshop act and of their common law duty to maintain safe business premises. Defendant Murphy was dismissed as a defendant. Thereafter, the trial court granted defendants Schieber’s motion for summary judgment as to count I. It was alleged in count I that plaintiff George Schütz was served alcoholic beverages by the defendants in violation of the dramshop act, MCL 436.22; MSA 18.993, and that said violation was a proximate cause of injuries suffered by George Schütz when he was pushed by another bar patron and was caused to stumble and fall to the floor. The only claim for damages in count I was made by plaintiff Janet Schütz, as the wife of George Schütz, who alleged that she suffered a loss of consortium, support, services and other pecuniary damages as a result of her husband’s injuries. The trial court’s order of summary judgment entered in favor of defendants Schieber on count I is appealed.

The dramshop act, which gives to a wife, husband, child, parent, guardian or other person injured as a result of the unlawful selling of alcoholic beverages to a visibly intoxicated person the right to seek damages from a dramshop owner, was amended in 1972. The amendment provides:

"No action against a retailer * * * shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement”.

The purpose of tl|p "name and retain” amendment was to:

" 'eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provision will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act, which has now been recognized by the Legislature and corrected through this amendment.’ 57 Mich App 367, 372; 226 NW2d 101 (1975).” Salas v Clements, 399 Mich 103, 108-109; 247 NW2d 889 (1976).

In Salas, supra, 109, the Supreme Court stated that the amendment would not be applied in a case where its application would produce "an unreasonable, unjust result, a result which is inconsistent with the purpose of the 'name and retain’ amendment and the dramshop act itself’. Pursuant to this rule of statutory construction the Court held that the amendment did not apply when the injured person did not know the indentity of the alleged intoxicated person, as it would be "patently absurd” to suggest that collusion would occur between the injured person and an alleged intoxicated person whose identity was unknown.

In Scholten v Rhoades, 67 Mich App 736, 743-744; 242 NW2d 509 (1976), this Court held that the amendment did not apply where a father had brought a dramshop action to recover damages he incurred when his minor son injured himself after consuming beer allegedly sold to him in violation of the dramshop act. The Court stated:

"A parent is legally responsible for the medical bills of his minor child and to secure a judgment for such sums against the child is meaningless. Furthermore, * * * a child has no cause of action against his father or father’s estate for injuries or death of the father due to the father’s voluntary intoxication. Nor does a parent have a cause of action against his minor child for expenses incurred by the father on behalf of the child due to the child’s voluntary intoxication. While it makes good sense to name and retain a party defendant where there is a cause of action against the defendant it makes no sense at all to do so where recovery is impossible because no cause of action exists. Additionally, we more than faintly suspect that were we to hold that the plaintiff father must name and retain the minor child as a party defendant the effect would be to confuse a jury and thus deny to the parent a right of recovery which existed prior to the amendment”. (Emphasis added.)

Similarly, the name and retain amendment was not applied where the plaintiffs could not retain the alleged intoxicated person because the only cause of action which could have been asserted against the intoxicated person was an action under the wrongful death act, MCL 600.2922; MSA 27A.2922, and plaintiffs were precluded from bringing a wrongful death action because they were not the decedent’s personal representative. Dickerson v Heide, 69 Mich App 303; 244 NW2d 459 (1976).

Thus, the courts of this state have not applied the name and retain amendment where the plaintiff either cannot name the alleged intoxicated person or cannot retain the intoxicated person as a party defendant because the plaintiff has no cause of action against him.

In the present case, though plaintiff could name the intoxicated person, she could not retain him as a party defendant, because there is no precedent for allowing a suit by a wife against her husband, where the parties’ marriage is intact, for damages arising out of the husband’s negligent infliction of injury upon himself.

Accordingly, we hold that under the circumstances of this case a wife may maintain a cause of action pursuant to the dramshop act without naming her husband as a party defendant.

Furthermore, we find that, because the dram-shop act gives a wife, husband, child or parent an action in their own name and the action is not a derivative suit, this action is not precluded by the fact that plaintiff George Schütz cannot recover damages for his own injuries under the dramshop act. Scholten, supra, 742.

Reversed and remanded for trial. Costs to plaintiff.

       See also Farmers Ins Group v Clear, 94 Mich App 655; 290 NW2d 51 (1980).


text:
    WEEKS v FELTNER
    Docket No. 48613.
    Submitted June 18, 1980, at Lansing.
    Decided August 12, 1980.
    Leave to appeal applied for.
    Mary Weeks sought monetary damages resulting from a sexual assault committed by defendant Albert Feltner. Plaintiff alleged that the sexual assault was proximately caused by the negligence of the defendants, individual owners of the property and East Michigan Realty and Flying Dutchman Association, agents of the owners, in failing to repair and maintain the lock on one of her windows which permitted Feltner to gain entry. The suit, brought in Washtenaw Circuit Court, after a motion for a directed verdict in favor of the defendants was denied, resulted in a verdict for the plaintiff. The jury determined damages and that the recovery should be reduced by 15 percent for plaintiff’s comparative negligence. Henry T. Conlin, J., entered a judgment on the verdict. Defendant property owners and their agents appeal. Held:

    1. A trial court must view the testimony and all legitimate inferences in a light most favorable to the nonmoving party when considering a motion for a directed verdict. Viewing the testimony of plaintiff and other proofs in a light most favorable to plaintiff, a prima facie case was established. The trial court did not err in denying defendants’ motion for a directed verdict.
    2. The doctrine of comparative negligence does not require an abandonment of joint and several liability among codefendants. Here, the acts of Albert Feltner were foreseeable by the other defendants, and there is nothing inherently inequitable in holding them liable for the resulting injury.
    Affirmed.
    1. Courts — Motions and Orders — Directed Verdicts.
    A trial court must view the testimony and all legitimate inferenees in a light most favorable to the nonmoving party when considering a motion for a directed verdict; if the evidence establishes a prima facie case, the motion by a defendant must be denied.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 463.
    [2] 57 Am Jur 2d, Negligence § 438.
    [3] 57 Am Jur 2d, Negligence § 153 et seq.

    Landlord’s obligation to protect tenant against criminal activities of third persons. 43 ALR3d 331.

      2. Negligence — Comparative Negligence — Joint and Several Liability.
    The doctrine of comparative negligence does not require an abandonment of joint and several liability among codefendants.
    3. Rape — Landlord and Tenant — Foreseeability.
    The acts of a rapist, committing sexual crimes, who enters an apartment through a window with a defective latch are foreseeable by the landlord of the apartment.

      Edward J. Schwartz (Mark G. Rogow, of counsel), for plaintiff.

      Harvey, Kruse & Westen, P.C. (by P. J. Collins), for defendants.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and J. H. Piercey, JJ.

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

   D. E. Holbrook, Jr., J.

In this suit, plaintiff sought monetary damages resulting from a sexual assault committed by defendant Albert Feltner. Same took place in the apartment plaintiff was occupying and she alleged that it was proximately caused by the negligence of the owners of the complex and Flying Dutchman Associates and East Michigan Realty, agents of the owners. Specifically, plaintiff claimed that defendants’ failure to repair and maintain the lock on one of her windows permitted Feltner to gain entry. On October 30, 1979, a jury verdict was returned in favor of plaintiff in the amount of $200,000 to be reduced by 15 percent for her own comparative negligence. Defendants appeal as of right.

During redirect examination of plaintiff, she was permitted to state, over objection, that she "believed” that the window in question was closed on the night of the assault. Defendants argued that the testimony should have been excluded, since plaintiff had not checked the window before retiring and could not be certain that it was actually closed.

MRE 701 prohibits opinion testimony by a non-expert unless it is "rationally based on the perception of the witness”. Here, the record reveals sufficient foundational facts to provide a rational basis for plaintiff’s belief. Plaintiff testified that: (1) the day in question was cold and that she had the heat on; (2) the window had not been opened all day, and (3) when she locked the door adjacent to the window she felt no draft. These observations provided her with ample basis to conclude that the window was closed. While she could not be absolutely certain, this fact should only affect the weight given her testimony and not its admissibility.

At the close of plaintiff’s proofs, defendants moved for a directed verdict, arguing that plaintiff had failed to establish proximate causation. This contention was based on a claim that plaintiff had not shown by a preponderance of the evidence that the window was closed and that, therefore, any negligence in maintaining the lock had no relation to Feltner’s entry.

In considering a motion for directed verdict, a trial court must view the testimony and all legitimate inferences in a light most favorable to the nonmoving party. If the evidence establishes a prima facie case, the motion must be denied. Caldwell v Fox, 394 Mich 401, 407; 231 NW2d 46 (1975). Here, plaintiff presented credible testimony that the window had been closed. Viewing this testimony and plaintiffs other proofs in a light most favorable to plaintiff, we must conclude that a prima facie case was established. The trial court did not err in denying defendants’ motion.

Defendants also claim that the doctrine of comparative negligence mandates an abandonment of the concept of joint and several liability. Defendants requested, and were denied, an instruction requiring the jury to apportion damages between the various defendants. Defendants contend that comparative negligence requires that a defendant only be liable to the extent of his own wrongdoing, not only in relation to the plaintiff, but in relation to other defendants as well. See Placek v City of Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).

This argument ignores the fact that the comparative negligence doctrine also seeks to assure fair and adequate compensation for injured plaintiffs. Unlike the concept of contributory negligence, it avoids unduly penalizing a plaintiff for his own fault. While some unfairness exists when one defendant is held liable for the fault of his codefendants, this is equally true of cases where the plaintiff is not at fault. The acts of Albert Feltner were foreseeable by the other defendants, and there is nothing inherently inequitable in holding them liable for the resulting injury. The doctrine of comparative negligence does not mandate abandonment of joint and several liability. In fact, a majority of other jurisdictions considering the issue have retained joint and several liability. See, Schwartz, Comparative Negligence, Sec 16.4, p 93, (Supp 1978).

Affirmed. Costs to appellee.


text:
    PEOPLE v YATES
    Docket No. 48877.
    Submitted June 19, 1980, at Lansing.
    Decided August 12, 1980.
    Leave to appeal applied for.
    David A. Yates pled guilty to a charge of armed robbery, and sentence was imposed, Lenawee Circuit Court, Rex B. Martin, J. Defendant appeals, alleging that because the trial judge did not impose sentence in accordance with the prosecutor’s recommendation, he should have been permitted to withdraw his plea. Held:

    The defendant should not be permitted to withdraw his plea of guilty since the trial judge, at the plea-taking proceeding, specifically informed the defendant that the court would not be bound by the recommendations of the prosecutor pursuant to the plea-bargain agreement between the prosecutor and the defendant, that the sentence imposed would be determined by the court, and the defendant stated that he understood this.
    Affirmed.
    1. Criminal Law — Pleas of Guilty — Plea Bargaining.
    A defendant should not be permitted to withdraw his plea of guilty after sentencing because the trial judge did not impose sentence in accordance with a prosecutor’s recommendation pursuant to a plea bargain between the prosecutor and the defendant where, at the plea-taking proceeding, the trial judge specifically informed the defendant that the court is not bound by such recommendations and that the sentence imposed is to be determined by the court, and the defendant stated that he understood.
    2. Criminal Law — Sentencing — Reasonable Expectation — Pleas of Guilty.
    A defendant’s reasonable expectation as to what sentence shall be imposed following his plea of guilty can come only from the court.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 487, 491.5, 504.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [2, 3] 21 Am Jur 2d, Criminal Law § 487.

      3. Criminal Law — Plea Bargaining — Courts.
    A trial judge, during a plea-taking proceeding, should inform a defendant that the recommendation of a prosecutor pursuant to a plea-bargain agreement with the defendant is not binding on the court, so that the defendant knows the precise extent of the benefit received in the bargain.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and J. H. Piercey, JJ.

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

   D. E. Holbrook, Jr., J.

Defendant pled guilty to a charge of armed robbery, MCL 750.529; MSA 28.797. Thereafter, sentenced to a prison term of not less than 5-1/2 nor more than 30 years, defendant appeals as of right.

It is defendant’s contention that he should be permitted to withdraw his plea because as a part of the plea bargain the prosecutor agreed to recommend minimum prison time, which he did by recommending two years. The trial judge chose not to follow this recommendation. Because the trial judge did not sentence in accordance with the prosecutor’s recommendation, defendant claims he should have been permitted to withdraw his plea. We disagree.

For Michigan authority defendant relies, primarily, on the recent case of People v Briggs, 94 Mich App 723, 726; 290 NW2d 66 (1980). In that case, at the sentencing hearing, the trial judge advised the defendant that he had not agreed to the prosecutor’s sentence recommendation of 12 to 25 years and proceeded to sentence defendant to a prison term of 20 to 40 years. This Court reversed saying:

"We see no significant distinction between the instant situation and a case in which the judge specifically indicates to the defendant at the plea-taking proceeding that he will follow the sentence recommendation only if the presentence report does not convince him otherwise.”

At the plea-taking proceeding, in the instant case, the following colloquy took place between the trial judge and the defendant:

"The Court: Now, David, lets make sure we understand this. The prosecutor can make a recommendation, but its still up to the court after we see a pre-sentence report, as to what kind of prison term we’ll sentence you to, do you understand that?
"The Respondent: Yes, sir.
"The Court: In other words, they can’t guarantee a minimum sentence. It might be, and it might not. That’s up to the Court, you understand that?
"The Respondent: Yes, sir.”

Hence there was no specific indication by the judge to the defendant that he would follow the sentence recommendation only if the presentence report did not convince him otherwise — quite to the contrary. Here the trial judge specifically told the defendant that he was not bound by any recommendation of the prosecutor and that defendant’s sentence was up to the court. In addition, defendant stated that he understood. Moreover, in Briggs, supra, the trial judge was silent as to sentence after hearing that the prosecutor would recommend 12 to 25 years. There the trial judge said nothing. Here the trial judge was specifically clear that he was not bound by any such recommendation. Additionally the defendant stated he understood.

In our opinion, a defendant’s reasonable expectation as to sentence can come only from the court. While such an expectation might properly be inferred by the trial court’s silence, as it was in Briggs, such is not the situation here. We are in full accord with Judge Cynar’s concurring opinion in People v Hagewood, 88 Mich App 35, 39; 276 NW2d 585 (1979), wherein he stated:

"* * * it appears the judge in such a situation should inform the defendant that the recommendation is not binding. In this way, a defendant knows the precise extent of the benefit received in the bargain.”

This is precisely what the trial judge did in the. case at bar. Nor do we feel that the procedure followed in the instant case, as argued by the defendant, is violative of ABA Project on Standards for Criminal Justice, Standards Relating to the Administration of Criminal Justice, Pleas of Guilty, § 3.3(b) (1968), p 311.

Affirmed.


text:
    DUNLAP v EMPLOYMENT SECURITY COMMISSION
    Docket No. 49195.
    Submitted June 13, 1980, at Lansing.
    Decided August 12, 1980.
    Leave to appeal applied for.
    James W. Dunlap was employed by Walker Manufacturing Company, a division of Tenneco, Inc. He took medical leave because of a back problem and was later discharged from his employment on the ground that in his initial employment application ■ he had indicated no prior back trouble or injury when, in fact, he had suffered a minor back injury some six years before. Dunlap applied to the Employment Security Commission for unemployment benefits, which were denied for the reason that Dunlap’s discharge was for misconduct connected with his work. Dunlap appealed to the Jackson Circuit Court, which reversed and awarded benefits, finding that the pre-employment statement was not misconduct within the meaning of the statutory provision for disqualification from benefits, Charles J. Falahee, J. Walker appeals. Held:

    The failure to characterize the minor injury as back trouble or as a back injury was not misconduct of such a character as to justify the denial of benefits. The decision of the circuit court was not clearly erroneous.
    Affirmed.
    Unemployment Compensation — Disqualification for Benefits — Misconduct — Statutes.
    A person may be disqualified for unemployment compensation benefits where he has been discharged from employment for misconduct connected with his work; an employee’s failure to indicate on an employment application that he had had a minor back injury six years previously which did not require medical treatment did not constitute such misconduct as to disqualify him from benefits (MCL 421.29[l][b]; MSA 17.531[l][b]).
    Reference for Points in Headnote
    [1] 76 Am Jur 2d, Unemployment Compensation § 52.

      Marston, Sachs, Nunn, Kates, Kadushin & O’Hare, P.C. (by Charles Looman), for plaintiff.

      Best, Arnold, Gleeson & Best, P.C. (by Chad C. Schmucker), for defendant Walker Manufacturing Company.
    Before: T. M. Burns, P.J., and Beasley and G. R. Deneweth, JJ.

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

   Beasley, J.

Defendant-appellant, Walker Manufacturing Company, a division of Tenneco, Inc., appeals as of right from a circuit court judgment awarding plaintiff unemployment benefits. We affirm for the following reasons.

On August 29, 1974, plaintiff was hired by appellant after answering the following question on an employment application form and medical history questionnaire in the negative: "Have you ever had any back trouble or back injury?”

In October, 1975, plaintiff went on medical leave for approximately three months due to a back problem. In a medical report to defendant Walker Manufacturing Company, plaintiff’s own doctor indicated plaintiff told him he had suffered a previous back injury in a swimming accident. As a result, on May 12, 1976, plaintiff was discharged by Walker Manufacturing on the basis of the answers he gave in the initial employment application and medical history questionnaire.

Plaintiff’s application for unemployment compensation was denied for the reason that his discharge was for misconduct connected with his work under MCL 421.29(l)(b); MSA 17.531(l)(b), so as to disqualify him from benefits. The basis for the finding of misconduct was the misrepresentation in the personnel records. In a two-to-one decision, the MESC Board of Review affirmed the referee’s decision. However, in a carefully prepared opinion, the circuit judge reversed and awarded benefits, finding that plaintiffs pre-employment statements were not, as a matter of law, misconduct within the meaning of MCL 421.29(l)(b); MSA 17.531(l)(b).

The evidentiary record indicates that while a swimming incident did, in fact, occur in 1968, plaintiff was not treated medically at that time for any medically determinable back injury, and any problem disappeared within a couple of months.

Plaintiff also testified that in spite of the swimming accident, he made many jumps while a paratrooper in the military, although shortly before the end of his hitch he removed himself from jump status because of some muscle problem in his general back area. However, subsequent to that, plaintiff was hired by another employer after passing a pre-employment physical examination that included back x-rays.

Plaintiff said that the reason that he gave the answers that he did on the employment application and medical questionnaire was that he was not experiencing any difficulty with his back at the time he sought employment and that he had never really been medically treated for any back problem.

It also should be noted that plaintiff was subsequently reinstated by Walker Manufacturing after he underwent a complete physical examination, including a complete set of back x-rays which, apparently, turned out normal.

The statute provides:

"Sec. 29. (1) An individual shall be disqualified for benefits in all cases in which he: * * *
"(b) Has been discharged for misconduct connected with his work, whether or not the discharge has subsequently been reduced to a disciplinary layoff or suspension, or for intoxication while at work.”

In this case, the act upon which the conclusion of misconduct was based occurred prior to employment. Every minor misstatement on an employment application does not constitute statutory misconduct of a level to justify denial of payment of unemployment compensation benefits.

At the time plaintiff was first employed, defendant did not choose to require him to submit to a physical examination and x-rays of his back. If they had known of the slight swimming accident, it does not seem that it would have prevented his being employed.

Before rehiring plaintiff, defendant gave him a complete physical, including what they refer to as "pre-employment” x-rays, the results of which were normal. Since defendant then reinstated plaintiff, it seems likely defendant would not have initially denied employment to plaintiff if they had ascertained all the facts.

We would believe that plaintiff’s failure to characterize his minor swimming accident of six years earlier as "back trouble” or "back injury” was more an error of judgment than a deliberate and intentional falsification of his medical history. Under these circumstances, we decline to find that the trial judge was clearly in error in holding that, on the facts of this case, the so-called misrepresentation on the job application did not constitute such misconduct as to disqualify plaintiff from unemployment compensation benefits.

Affirmed.

       The facts do not appear to be in dispute.

        Carter v Employment Security Comm, 364 Mich 538; 111 NW2d 817 (1961).


author: J. X. Theiler, J.

text:
    ROFE v ROBINSON (ON REMAND)
    Docket No. 51131.
    Submitted June 20, 1979, at Detroit.
    Decided August 12, 1980.
    Leave to appeal applied for.
    Plaintiffs, Edward Rofe, Jim Brooks, Harry A. Law, and Alex Avram brought suit seeking an injunction to stop defendant, David Robinson, Marvin L. Robinson, and Robinson Brothers Realty Company, a partnership, from furthering construction of an office structure in Hickory Knolls subdivision in Bloomfield Township. All the lots in the subdivision were subject to deed restrictions limiting property usage to residential uses. Bloomfield Township had rezoned 12 lots in the subdivision for commercial use for office structures only. Defendants had purchased 2 of the 12 lots and had started to construct an office building thereon. Oakland Circuit Court, Frederick C. Ziem, J., granted the injunction. On appeal, the trial court’s decision was reversed and remanded, 93 Mich App 749; 286 NW2d 914 (1979), on the grounds that the surrounding area and circumstances had changed such that residential use of the property in question was no longer desirable, practical or legal and that the use restriction was no longer valid. Leave to appeal was granted, and the Supreme Court, 408 Mich 899 (1980), remanded to the Court of Appeals for reconsideration in light of Redfern Lawns Civic Ass’n v Carrie Pontiac Co, 328 Mich 463; 44 NW2d 8 (1950). Held:

    1. Redfern is to be distinguished and is not controlling, either upon the facts or upon the law.
    2. There are two primary considerations in the establishment of boundaries between use districts: (1) the relation of each use district to its neighbor; and (2) the appropriate place for the boundary line separating one district from the other. These determinations are better left to city planning boards and private developers than to courts of equity.
    3. The usage permitted by the rezoning in question accomplished a use of the property and still protected the dominant property owners. Such accomplishment is consistent with court-enforced equitable principles.

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Covenants, Conditions, and Restrictions § 26.
    [2] 82 Am Jur 2d, Zoning and Planning § 79 et seq.

      Remanded.
    1. Deeds — Deed Restrictions — Equity.
    As long as a dominant estate benefits from land use restrictions, material violations of the restrictions will be enjoined to the extent necessary to insure that the restrictions remain beneficial; at the same time, however, building restriction cases present such wide differences in facts that few equity rules can be applied generally, therefore, each case must normally be determined on its own facts.
    2. Zoning — Land Use Districts — Boundaries.
    There are two primary considerations in the establishment of boundaries between use districts; (1) the relation of each use district to its neighbor; and (2) the appropriate place for the boundary line separating one district from the other; and the appropriate bodies to make these decisions are city planning boards and private developers, not the judiciary.

      Eggenberger, Eggenberger, McKinney & Weber, P.C., for plaintiffs.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by W. A. Steiner, Jr., and Dennis M. Haffey), for defendants on appeal.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

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

   (On Remand)

J. X. Theiler, J.

On remand from the Supreme Court, 408 Mich 899 (1980), we are to reconsider Rofe v Robinson, 93 Mich App 749; 286 NW2d 914 (1979), in light of Redfern Lawns Civic Ass’n v Currie Pontiac Co, 328 Mich 463; 44 NW2d 8 (1950). Redfern was cited and relied upon by the trial judge in his well-developed opinion, and, in passing, he noted, as do we, that the Supreme Court in Redfern reversed the trial court which had found that a subdivision’s restriction as to use was not enforceable.

We determine upon reconsideration, as upon first consideration, that Redfern is to be distinguished and it is not controlling, either upon the facts or upon the law. Appellees argued as follows:

"In Redfern, the municipality had changed the zoning ordinance from residential to commercial; Grand River Avenue was a major thoroughfare; no commercial buildings had been constructed on any of the lots in question; the lots were vacant; business and commercial buildings were not immediately contiguous to the subdivision; and the desirability of using the vacant lots for residential purposes was small.”

Admittedly, there are similarities. Telegraph Rd., like Grand River Ave., is a major thoroughfare and being separated from Telegraph is a continuing benefit to the association, and a residential use is the most desirable "buffer strip”.

There are also, however, many dissimilarities. The rezoning at issue in the present case does not authorize commercial uses including, as in Red-fern, the business of an automobile sales and service company, but rather a commercial use specifically restricted to an office building. The plaintiffs also had permitted, without objection, the alteration of an existing residential structure to an office structure in the disputed area. The plaintiffs did not institute suit until the defendants had started construction and expended approximately $30,000. The use of the area in question for residential purposes is not just undesirable but is also impractical and illegal.

The material change of circumstances in the surrounding area is the reason for the rezoning. In Redfern, a pyramid use ordinance merely added commercial to residential as a permitted use. Here, the amended zoning ordinance creates an exclusive zone where the property may only be used for offices; it cannot be used for residential purposes.

Justice Sharpe in Redfern quoted very broad language from Putnam v Ernst, 232 Mich 682; 206 NW 527 (1925), in stating:

"While the restrictions remain beneficial to the dominant estate, material violations of them will be enjoined to the extent that the restrictions remain beneficial.” Redfern, supra, 468.

On the other hand, he also quoted:

"These building restriction cases present such wide difference[s] in facts that, in equity, but few rules can be applied generally. In the main, each case must be determined on its own facts.” Id., 467.

The touchstone of the Redfern decision is this statement at 470:

"The only equitable consideration in the case at bar appears to be the undesirability of using the lots in question for residential purposes”.

Cases seeking specific enforcement of restrictive covenants are brought in equity, and the chancellor should not be required to abandon his conscience or to wear too small shoes.

In Cooper v Kovan, 349 Mich 520; 84 NW2d 859 (1957), Justice Edwards cited Redfern. The trial judge in Cooper had attempted to apply equitable principles in refusing to grant specific enforcement of a reciprocal negative easement and had issued only a limited injunction by requiring the creation of a green belt as a buffer zone. Stated at page 530 of Cooper is the following:

"The obvious purpose, of course, was to provide a buffer strip or green belt of residences or lawn between plaintiffs and the proposed shopping center, in accordance with present-day city planning principles. Desirable as such a plan may be in general city planning terms, we must answer the question here as to whether the circuit judge sitting in equity had power to effect such a compromise in the face of and at the expense of existing and valid residential restrictions, or whether such planning must be left to planning boards and private developers.
"We are unable to find that this power lies in judicial hands.”

In the present case, equity is not being accomplished in a court of equity but rather by placing the matter in the good hands of planning boards and private developers referred to by Justice Edwards. The planning boards have reestablished the buffer zone in another form.

Good zoning gives recognition to the same principles and concepts that are deemed important to owners of property. The abutting edges of uses are everywhere recognized as difficult areas. As Justice Sharpe recognized in Redfern, movement of dividing lines can, in effect, shift the location of a buffer zone.

"There are two primary considerations in the establishment of boundaries between use districts:
"(1) The relation of each use district to its Neighbor. "(2) The appropriate place for the boundary line separating one district from the other.
"Where each zone is to be in relation to the other zones will depend upon the care with which the legislative body has formulated its zoning plan and the reasonableness with which it has established the various uses and classifications. The most desirable arrangement would be one in which each zone is adjacent on one side to a little less, and on the other to a little more, restricted district. Where this can be done, each zone acts as a 'buffer’ between higher and lower uses”.

The restrictions imposed on the use of the lots did not contemplate that the lots were to be vacant forever. There was no specific reference to a buffer strip and certainly no wording indicating a weedy green belt.

The municipality has determined that a proper buffer strip can accomplish a use of the property and still protect the dominant property owners. We determine that such planning is consistent with court-enforced equitable principles.

It is our continued opinion that the restriction of use to residential purposes only is inequitable and that the office use is to be permitted. We expressed then and express now no opinion as to how the balance of the restrictions should be enforced or what other equitable remedies might be available to the plaintiff. We would reverse, but remand for further proceedings consistent with this opinion.

       It is to be noted in the subject area that an existing residential structure has L an modified to permit an office use. The trial judge, in his opinion, in referring to this existing office stated:
      "The use by Bing Construction Company is not so obvious or offensive that it immediately calls for action since it does not violate the structure restrictions and the use violation does not substantially alter the character of the neighborhood.”

       Rathkopf, The Law of Zoning and Planning, page 16-6, § 16.02, Buffer Zones and Transitional Zoning.


author: Per Curiam.

text:
    PEOPLE v INGRAM
    Docket No. 78-1920.
    Submitted May 12, 1980, at Lansing.
    Decided August 13, 1980.
    Leave to appeal applied for.
    Roscoe Ingram was charged with carrying a concealed weapon and was bound over for trial. He moved to dismiss the charge, claiming that he had a sufficient possessory interest in the street abutting his property to bring him within the scope of the exemption to the concealed weapons statute, that the police officer who arrested him had no authority to ask for his driver’s license, and that he was not given a Miranda warning prior to questioning by police. Recorder’s Court of Detroit, George W. Crockett, III, J., treated defendant’s motion as a motion to suppress evidence, granting the motion and dismissing the case. The people appeal. Held:

    1. An abutting landowner does not retain a sufficient possessory interest in a street to bring him within the scope of the statutory exemption to the concealed weapons statute as contemplated by the Legislature. The trial court’s reliance on this exception in ordering suppression of evidence constituted error.
    2. The police officer who arrested the defendant had no reasonable cause nor even a mere inkling to believe that a criminal activity had been or was about to be committed by the defendant upon observing defendant unlocking an illegally parked automobile. Thus, an investigative stop was not justified. This illegal stop tainted the subsequent search and arrest of the defendant, and there was no error by the trial court in suppressing the evidence against the defendant and dismissing the case. In view of this conclusion, the issue concerning the necessity of a Miranda warning need not be addressed.

      References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 145, 146.
    [2-5] 79 Am Jur 2d, Weapons and Firearms § 18.
    Scope and effect of exceptions in statute forbidding carrying of weapons as to person on his own premises or at his own place of business. 57 ALR3d 938.
    [6, 7] 5 Am Jur 2d, Arrest § 38.
    68 Am Jur 2d, Searches and Seizures § 37.
    [7] 29 Am Jur 2d, Evidence § 412.
    [8] 68 Am Jur 2d, Searches and Seizures §§ 39, 40.

      Affirmed.
    1. Statutes — Construction of Statutes — Legislative Intent.
    The cardinal rule of statutory construction is to ascertain and give effect to legislative intent.
    2. Weapons — Concealed Weapons — Exemptions — Legislative Intent — Statutes.
    The basic intent of the Legislature as indicated in the concealed weapons statute is that weapons should not be carried where they might be used to take lives, and, in light of this intent, the purpose of the statutory exemptions for a dwelling house or place of business or other lands possessed by a person is to allow persons to defend those areas in which they have a possessory interest (MCL 750.227; MSA 28.424).
    3. Weapons — Concealed Weapons — Exemptions — Statutes.
    A person does not have a sufficient possessory interest in his place of employment, in an area of a prison in which he is incarcerated, or in a taxi of which he is the driver, but he does have such an interest in a leasehold, even though it is being used for an illegal purpose, to bring him within the scope of the statutory exemptions to the concealed weapons statute (MCL 750.227; MSA 28.424).
    4. Weapons — Concealed Weapons — Landowners.
    A street which abuts a person’s property does not deserve the special status wherein a citizen may rightfully carry a concealed weapon, since it is public domain, the landowner having no right to restrict passage on the street in front of his land to his own invitees.
    5. Weapons — Concealed Weapons — Legislative Intent — Real Property Law — Statutes.
    A person does not retain the type of possessory interest in protecting and defending the street which was contemplated by the Legislature when it created such an exemption to the concealed weapons statute, whether or not he retains title to the midpoint of the street which abuts his property according to property law (MCL 750.227; MSA 28.424).
    6. Criminal Law — Criminal Conduct — Searches and Seizures — Arrest — Unconstitutional Ordinance.
    A questioning and subsequent search by a police officer who had probable cause to arrest a person on the basis of conduct which violated an ordinance later found to be unconstitutional is not rendered illegal by such a ruling.
    7. Criminal Law — Criminal Conduct — Searches and Seizures — Investigative Stop — Suppression of Evidence.
    An investigative stop by a police officer is not justified where a person merely walks up to and unlocks and attempts to enter an illegally parked motor vehicle, and a search and arrest subsequent to such an illegal stop is tainted, requiring suppression of any evidence then seized.
    8. Criminal Law — Criminal Conduct — Investigative Stop — Motor Vehicles.
    A police officer has no reason to require a person who merely attempts to enter an illegally parked motor vehicle to show his driver’s license since a parking citation is issued to the owner of a vehicle, not the driver.

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

      Angela R. Sims, for defendant on appeal.
    Before: T. M. Burns, P.J., and R. M. Maher and M. E. Clements, JJ.

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

   Per Curiam.

The defendant was charged with carrying a concealed weapon, MCL 750.227; MSA 28.424. Defendant was bound over for trial by an examining magistrate on October 25, 1977. On December 1, 1977, the defendant filed a motion to dismiss the charge. A hearing was held on December 9, 1977, before a judge of the Detroit Recorder’s Court, who treated it as a motion to suppress the evidence of the gun. The trial court granted defendant’s motion to suppress and dismissed the case upon the prosecutor’s indication that he could not proceed without evidence of the gun. From this dismissal, the people appeal as of right.

The facts of this case are not in dispute. Officer Wood of the Detroit Police Department testified at the preliminary examination that on October 17, 1977, he observed a vehicle double parked in front of 3551 Second Street in Detroit. The car was unoccupied. As his partner began to write a citation for the traffic violation, Officer Wood observed the defendant walk up to the vehicle, unlock it, and begin to get inside. Officer Wood approached the defendant and asked him whether it was his car. Defendant responded in the affirmative. The officer then asked to see defendant’s driver’s license. As the defendant reached for the wallet which was in his back pocket, the officer observed a large bulge underneath the front of his waist area. Officer Wood asked the defendant if he had a gun, and the defendant answered, "Yes.” Officer Wood asked the defendant whether he had a permit to carry the gun, and the defendant answered, "No.” At that time, the officer seized the gun and placed the defendant under arrest. Defendant had not been informed of his Miranda rights prior to his arrest.

The first issue to be resolved in this appeal involves the interpretation of the exemption contained in MCL 750.227; MSA 28.424 with respect to persons who carry a weapon on land in which they have a possessory interest. The concealed weapons statute provides in pertinent part:

"Sec. 227. A person who shall carry a dagger, dirk, stiletto, or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; * * (Emphasis added.)

The defendant contends that he had a possessory interest in the street abutting his property, and he, therefore, comes within the exception enumerated above. The trial court agreed with defendant’s argument in its ruling on suppression of the weapon. As there is no previous case law in Michigan on this precise point, we treat the issue as a matter of first impression.

We begin our analysis by noting that the cardinal rule of statutory construction is to ascertain and give effect to legislative intent. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956), Kizer v Livingston County Board of Comm’rs, 38 Mich App 239, 246; 195 NW2d 884 (1972).

Various cases, which have discussed the exemptions to the concealed weapons statute, have stated the legislative purpose in its enactment. In People v Clark, 21 Mich App 712, 715-716; 176 NW2d 427 (1970), this Court said:

"It is hornbook law that statutes must be read so as to facilitate the intent of the legislature. People v Bailey (1968), 10 Mich App 636. The purpose of the concealed weapons statute was to prevent men in sudden quarrel * * * from drawing concealed weapons and using them without prior notice to their victims that they were armed,’ People v Jones [12 Mich App 293; 162 NW2d 847 (1968)], supra, 295. And in People v Bailey, supra, beginning at p 639, we stated: 'the basic intent of the legislature as indicated in the concealed weapons statute was that weapons should not be carried where they might be used to take lives.’
"It is within the light of this legislative intent that we read the statutory exemptions for 'his dwelling house or place of business or other lands possessed by him.’ The purpose of the exemptions was to allow persons to defend those areas in which they have a possessory interest. This is the clear import of the phrase 'possessed by him’ which modifies the three areas set forth in the statute. United States v Waters (D DC, 1947), 73 F Supp 72.”

In Clark, the Court held that the defendant, an employee of a corporation, did not have a sufficient possessory interest in his place of employment to bring him within the scope of the statutory exemption.

In People v Gatt, 77 Mich App 310; 258 NW2d 212 (1977), the police raided a "blind pig” being conducted on premises leased by the defendant. The defendant was convicted of carrying a concealed weapon on these premises. This Court reversed, finding that defendant’s valid possessory interest in the property brought him within the ambit of the exception, despite the fact that the property was being used for an illegal purpose.

In People v John Alexander, 82 Mich App 486; 266 NW2d 489 (1978), the Court found that the exception to the concealed weapons statute was inapplicable to an inmate who was arrested at Jackson State Prison. The Court held that a prison inmate does not have a possessory interest in any area of a prison which he has the right to defend with a weapon. The final Michigan case which interprets the exception to the concealed weapons statute is People v Brooks, 87 Mich App 515; 275 NW2d 26 (1978), where the Court strictly construed the statute and held that a taxi driver who carries a concealed weapon in his taxi does not come within the exception, because the words "or on other land possessed by him” modified "place of business”, and a taxicab is not "land”.

Defendant relies on property law in arguing that he was on "other land possessed by him” at the time of his arrest. Defendant alleges that an owner of property retains actual title to the middle of the street which abuts his property, and the public only has an easement in that land.

In Gunn v Delhi Twp, 8 Mich App 278, 282; 154 NW2d 598 (1967), this Court summarized the effect of public dedication of land on the title to that land as follows:

"Generically, a dedication is 'an appropriation of land to some public use, accepted for such use by or in behalf of the public.’ Clark v City of Grand Rapids (1952), 334 Mich 646, 656, 657. Two types of dedications have been specifically recognized in this State, statutory dedication and common-law dedication; the distinction was explicitly approved by the Supreme Court prior to the turn of the century. Alton v Meeuwenberg (1896), 108 Mich 629. Statutory dedication may result from compliance with the plat act of 1929, CL 1948, §§ 560.1-560.80, as amended (Stat Ann 1953 Rev and Stat Ann 1965 Cum Supp §§26.431-26.511). The definition of common-law dedication was given in Alton v Meeuwenberg, supra, at p 636, and has been incorporated without substantial change into CL 1948, § 221.20, supra, * * *.
"The distinction must be stated because of the difference in result hinging on the type of dedication. The traditional position was stated in Village of Grandville v Jenison (1890), 84 Mich 54, 65:
" 'The effect of a dedication under the statute has been to vest the fee in the county, in trust for the municipality intended to be benefited, whereas, at common law, the act of dedication created only an easement in the public.’ ”

We note that MCL 221.20; MSA 9.21 states generally that all streets which are used as public streets for more than 10 years shall be deemed public highways. See also, MCL 560.253; MSA 26.430(253), which provides that land dedicated for public streets conveys fee title to the municipality to hold in trust for this use.

The record does not indicate whether the defendant’s street was dedicated to the public under common law or under statutory law. However, we do not deem the distinction to be critical for the purpose of interpreting the exception to the concealed weapons statute. The Legislature created this exception in recognition of the special rights of a property owner while he remains within his own domain, where no one may intrude unless invited. We do not deem that the street which abuts this property is an area which deserves the special status wherein a citizen may rightfully carry a concealed weapon. This is because the street is public domain which may be used by all. The abutting landowner has no right to restrict passage on the street in front of his land to his own invitees. Whether or not he retains the title to the midpoint of the street in property law, he does not retain the type of possessory interest in protecting and defending the street which was contemplated by the Legislature when it created the exemption. We therefore find that the trial court erred in relying on the exception to MCL 750.227; MSA 28.424, in ordering suppression of the gun.

The second issue raised by the people for our consideration is whether the police officer had the authority to ask the defendant for his driver’s license where the defendant was observed unlocking an illegally parked automobile. The trial court ruled that there was no basis for the police to ask for a driver’s license on a parking violation and that "but for” defendant’s attempt to produce the license, the officer would not have observed the gun in question. The trial court ruled further that the city ordinance authorizing police officers to require persons to identify themselves was unconstitutional.

The ordinance in question is Detroit Municipal Code § 39-1-52.3, which authorizes police officers to stop and question a person where the officer has reasonable cause to believe that the person’s behavior indicates that there is criminal activity afoot. The ordinance makes the person’s refusal or inability to identify himself unlawful. This Court held that the ordinance was void for vagueness in People v DeFillippo, 80 Mich App 197; 262 NW2d 921 (1977), which was issued several days before the trial court’s decision in the instant case. However, at the time of the arrest in question, the statute had not yet been found unconstitutional, so a police officer would have had probable cause to arrest on the basis of conduct which violated the then-valid ordinance. The search would not be rendered illegal by the Court’s later ruling that the ordinance was unconstitutional. Michigan v DeFillippo, 443 US 31; 99 S Ct 2627; 61 L Ed 2d 343 (1979).

However, we could not uphold the police officer’s request to see defendant’s driver’s license in the instant case even if the ordinance were valid, because there was no "reasonable cause” nor even a "mere inkling” to believe that a criminal activity had been, or was about to be, committed by the defendant. At the time of his arrest, defendant had merely walked up to, and had unlocked, an illegally parked vehicle. These facts do not justify an investigative stop. See, Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), People v Tebedo, 81 Mich App 535; 265 NW2d 406 (1978). A parking citation is issued to the owner of a vehicle, not to the driver. Defendant was not driving the car and had merely attempted to enter it when stopped by the officer. Thus, there was no reason to require him to show his driver’s license.

We find, therefore, that the illegal stop by Officer Wood tainted his subsequent search and arrest, since the officer would not have been in a position to observe the suspicious bulge if defendant had not been reaching for his wallet. The trial court ruled correctly on this issue, and, on this basis, we uphold its decision to suppress evidence of the pistol and dismiss the case against the defendant. In view of our conclusion, we need not address the people’s final issue concerning the necessity of a Miranda warning prior to questioning the defendant.

Affirmed.

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