author: L. B. Bebeau, J. Cynar, P.J.

text:
    FRANK STOCKDALE v JAMISON DOROTHY STOCKDALE v JAMISON CORBETT v JAMISON
    Docket Nos. 78-4398, 78-4399, 78-4400.
    Submitted October 4, 1979, at Grand Rapids
    Decided August 25, 1980.
    Leave to appeal applied for.
    Defendant Farm Bureau Insurance Group appeals from a judgment of Montmorency Circuit Court, P. J. Glennie, J., notwithstanding the verdicts, which were granted in favor of plaintiffs, Frank Stockdale, Dorothy Stockdale, and Donald L. Corbett. Plaintiffs’ actions were for injuries sustained in an automobile accident involving the motor vehicle plaintiffs were riding in and another vehicle owned and operated by defendant Wayne Jamison and allegedly insured by defendant Farm Bureau Insurance Group. Farm Bureau denied coverage. Plaintiffs brought suit in Montmorency Circuit Court against Jamison and Jamison forwarded the process papers, which had been served on him, to Farm Bureau. Farm Bureau failed to file an appearance and a default judgment was entered against Jami-son, P. J. Glennie, J. Plaintiffs, prior to the default judgment, had also filed suit in Wayne Circuit Court for a declaratory judgment to determine the insurance coverage of Jamison. This action resulted in a summary judgment holding that Farm Bureau owed coverage to Jamison, N. J. Kaufman, J. Farm Bureau appealed this decision and the Court of Appeals reversed. The Supreme Court then reversed the Court of Appeals and upheld the decision of the circuit court, Corbett v Allstate Ins Co, 396 Mich 103; 238 NW2d 30 (1976). Following the Wayne Circuit Court’s summary judgment against Farm Bureau, plaintiffs filed their motions for default judgments in the Montmorency Circuit Court cases and the judgments were entered in favor of the plaintiffs in amounts exceeding the policy limit. Plaintiffs then took assignments from Jamison and filed garnishments against Farm Bureau in Montmorency Circuit Court. Farm Bureau offered to tender the policy amount and filed motions to set aside the default judgments. These motions were denied, P. J. Glennie, J. Farm Bureau contended in the garnishment proceedings that its liability should be restricted to the policy limits. Plaintiffs argued that when an insurer breaches its duty to defend an action against one of its insureds, it is liable for the entire amounts of the judgments without limitation to the policy amount. The court instructed the jury that unless the Farm Bureau decision not to defend Jamison was made in bad faith, Farm Bureau would only be liable for the policy amount. The jury returned a verdict in favor of Farm Bureau. The court subsequently entered a judgment notwithstanding the verdicts and reinstated the verdicts previously entered, holding that the question of good faith or bad faith was not to be considered because Farm Bureau, as a matter of law, had a duty to defend Jamison, and, by failing to defend, is liable for the entire amount of the previously entered verdicts. On appeal, the issue presented is whether an insurer, obligated under its insurance contract to defend the insured in a lawsuit wherein damages are alleged in excess of the policy limits, is liable for a judgment in excess of the policy limits when it refuses to defend, and whether an insured must first prove a bad faith state of mind on the part of the insurer in refusing to defend. Held:

      References for Points in Headnotes
    [1-3] 44 Am Jur 2d, Insurance § 1544 et seq.

    Consequences of liability insurer’s refusal to assume defense of suit against insured upon ground that claim upon which action is based is not within coverage of policy. 49 ALR2d 694.

      1. An express contractual obligation to defend an insured is not dependent upon the good or bad faith of the insurer.
    2. Farm Bureau had an absolute duty to defend Jamison and the trial judge was correct in stating the question of good faith on the part of Farm Bureau is not a matter to be considered. Having had an absolute duty to defend, Farm Bureau is responsible for the excess judgment.
    Affirmed.
    Cynar, P.J., concurred in the result reached by the court but would distinguish an insurer’s duty to defend an insured and its duty to pay a judgment. These are distinct and severable duties and the existence of one does not necessarily mean the existence of the other. The duty to defend is in some ways broader than the duty to indemnify, and, if there is any doubt whether a claim comes within the coverage of the policy, the insurer has an absolute duty to defend although it may reserve the right to refuse to pay under the policy. If Farm Bureau had undertaken to defend Jamison against this claim, as it was contractually bound to do, Farm Bureau’s liability would have then been limited to the policy amount. Farm Bureau, however, chose not to defend, and, by breaching its contractual duty, is liable for the entire amounts.
    Opinion op the Court
    1. Insurance — Duty to Defend — Breach of Duty — Excess Judgment — Liability.
    An insurer obligated under its insurance contract to defend an insured in a lawsuit wherein damages are alleged in excess of the policy limits is liable for a judgment in excess thereof if it refuses to defend.
    2. Insurance — Refusal to Defend — State of Mind.
    The question of whether an insurer’s refusal to defend an action against one of its insureds is made in good faith or bad faith is irrelevant where the insurer is under an express contractual duty to defend.
    Concurrence by Cynar, P.J.
    3. Insurance — Duty to Defend — Duty to Pay.

      An insurer's duty to defend an insured and its duty to pay a judgment are distinct and severable duties and the existence of one does not necessarily mean the existence of the other; the duty to defend is broader, and, if there is any doubt whether a claim comes within the coverage of the policy, the insurer has an absolute duty to defend although it may reserve the right to refuse to pay under the policy.

      George Menendez and Ripple, Chambers & Steiner, P.C., for plaintiffs.

      Williams, Coulter, Cunningham, Davison & Read, for defendant.
    Before: Cynar, P.J., and D. F. Walsh and L. B. Bebeau, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   L. B. Bebeau, J.

The instant appeals are brought by the garnishee defendant-appellant, Farm Bureau Insurance Group (hereinafter Farm Bureau) seeking a review of the trial court’s granting of judgment notwithstanding the verdict in favor of the plaintiffs-appellees, Frank Stockdale, Dorothy Stockdale and Donald L. Corbett.

The plaintiffs-appellees obtained an assignment of actions from principal defendant Wayne Jami-son, an insured of Farm Bureau, and through garnishment proceedings sought to recover the amounts of their judgments against Wayne Jami-son, which judgments exceeded the insurance policy limits issued by Farm Bureau.

The plaintiffs’ actions stem from injuries sustained when the motor vehicle in which they were riding collided with a 1960 Chevrolet automobile owned and operated by principal defendant Wayne Jamison. On the date of the accident, November 9, 1969, Jamison owned a policy of automobile insurance with Farm Bureau in effect affording liability coverage up to $20,000.

After conducting its investigation of the accident, Farm Bureau concluded that its policy covered a 1959 Chevrolet truck and not the 1960 Chevrolet automobile owned and operated by Jamison.

Farm Bureau by a letter dated July 8, 1971, informed Jamison regarding the matter of policy coverage as follows:

"Dear Mr. Jamison:
We have now completed our investigation into the facts and circumstances surrounding the accident of November 9, 1969, with Mr. Frank Stockdale. Please be advised that there was no coverage available to give any consideration to claims presented by anyone regarding this accident and no claims can be paid by this company.
If you have any questions regarding this matter, please feel free to contact this office.
Sincerely yours,
L. A. Straka, Manager
Saginaw Branch Claims.”

Thereafter, on October 7, 1972, separate lawsuits were commenced in Montmorency County Circuit Court by each plaintiff against Jamison for damages. He was served with process on October 25, 1972, and he forwarded the papers served on him to Farm Bureau, which did not file an appearance. As a result, a default was filed on November 15, 1972.

It is noted that the Farm Bureau communication to Jamison denying insurance coverage did not state Farm Bureau would not defend Jamison. It advised there was no coverage available and that no claims against Jamison would be paid.

Shortly after denial of coverage by Farm Bureau and the filing of actions against Jamison in Montmorency County Circuit Court on October 7, 1972, the plaintiffs commenced an action in Wayne County Circuit Court for a declaratory judgment determining the insurance coverage of Jamison. That action resulted in an opinion entered on January 30, 1974, granting summary judgment holding Farm Bureau owed coverage to defendant Jamison. This judgment was entered March 14, 1974. Defendant Farm Bureau could have, but did not, make an effort to enter the cases against its insured, Jamison, in Montmorency County Circuit Court. Farm Bureau appealed the Wayne County Circuit Court decision to this Court which reversed the circuit court decision. The Michigan Supreme Court then reversed the decision of this Court and upheld the decision of the circuit court. Corbett v Allstate Ins Co, 396 Mich 103; 238 NW2d 30 (1976).

After the Wayne County circuit judge’s opinion was filed on January 30, 1974, the plaintiffs filed motions for default judgments in the Montmorency County cases, and judgments were entered after hearings on March 11, 1974, in the following amounts: in favor of Dorothy Stockdale, $53,941.25; Frank Stockdale, $21,396.50; and Donald Corbett, $85,586.

After the default judgments were entered, and following the Supreme Court decision, the plaintiffs took assignments from Jamison and filed garnishment actions against Farm Bureau. Up to this time the plaintiffs’ actions in Montmorency County lay dormant until June 3, 1976, when Farm Bureau took its first action in the matter of the litigation involving its insured, Jamison, by filing motions to set aside the default judgments therein entered. The motions were denied in a well-reasoned opinion of the circuit judge, who noted that Farm Bureau had been aware of the actions and judgments and failed to respond to its insured for a period of about 27 months. It was then the contention of Farm Bureau that it would be unfairly prejudiced in not having an opportunity to tender a defense on behalf of its insured, Jamison.

Plaintiffs asserted throughout the garnishment proceedings and in moving for a directed verdict and in support of their motion for a judgment n.o.v. that recent law of the state indicates that when the insurer breaches its duty to defend, as did Farm Bureau, it is liable for the entire amounts of the judgments.

The trial court instructed the jury that, unless the Farm Bureau decision not to defend Jamison was made in bad faith, Farm Bureau would not be liable for damages over the policy limit of $20,000.

The jury returned a verdict in favor of Farm Bureau and assessed damages at $20,000, being the policy limit. Thereafter, the plaintiffs’ renewed motion for a judgment notwithstanding the verdict was granted by the circuit judge in his opinion which reinstated the verdicts previously entered.

The court stated in that opinion that it found that Farm Bureau, as a matter of law, had a duty to defend Jamison and the question of good faith or bad faith was not to be considered. Having had a duty to defend, Farm Bureau is responsible for the excess judgment.

The issue before us is whether an insurer, obligated under its insurance contract to defend the insured in a lawsuit wherein damages are alleged in excess of the policy limits, is liable for a judgment in excess of the policy limits when it refuses to defend.

Farm Bureau contends that it is not liable unless the insured proves a state of mind of Farm Bureau indicating bad faith in refusing to defend the policy holder as it is required to do under its policy. Plaintiffs-appellees contend they are not required to prove a state of mind of the agents of the insurer indicating bad faith of the insurer when the insurer breached its contract to defend the insured and, when the duty and obligation was breached, Farm Bureau was liable for the consequences and the total amount of the judgments.

There is some lack of harmony in Michigan and elsewhere in resolving the issues in the case. Fifty years ago the Michigan Supreme Court decided the question of the right of an insurer to refuse to settle a claim against its insured, which claim resulted in a judgment against the insured for a sum exceeding the policy limits. Cited by Farm Bureau as authority is City of Wakefield v Globe Indemnity Co, 246 Mich 645; 225 NW 643 (1929), involving one issue, the right reserved in the insurance policy of the insurer to settle a claim against the insured which right also excludes the insured from making the claim settlement. The Supreme Court guarded and protected that policy right up to the point where the good faith of the insurer could be questioned by the insured when the successful claim results in a judgment exceeding the policy limits. The burden rests upon the contesting insured to show bad faith upon the insurer in failing to settle.

Wakefield was sued by a third party. Globe Indemnity Co. carried the automobile insurance coverage on Wakefield with limits of $10,000. Globe assumed the defense of Wakefield through an attorney and an adjuster, with the Wakefield city attorney cooperating in the defense. A judgment was returned against the city for over $15,-000 and the city sought the amount in excess of the policy limits, claiming bad faith by Globe in refusing a settlement. During trial, counsel for the claimant, for the city, and for the defendant Globe reached a compromise settlement of $4,325, subject to Globe’s approval. The attorney for insurer Globe concluded "the case was hopeless” and he so notified the Globe representative in Minneapolis and strongly recommended settlement, which Globe refused. The cause was submitted to the jury on the ground of ordinary negligence. Verdict and judgment was for plaintiff. The Supreme Court reversed and ordered a new trial. The basis for the reversal was that the insurance policy provided that the insurer alone had the right to compromise or settle the claim, and this was clearly stated in the policy. The Supreme Court indicated that this right is subject to the good faith of the insurer in evaluating whether or not to settle, and the Court in discussing faith, good or bad, as the state of mind of the corporate agents, suggested a mistake of judgment is not an indication of bad faith.

This case may be cited to support the provisions of the contract of insurance that the power to control settlements is in the insurer. The insurer may settle or may not settle but it must act with good faith in resolving any conflict of interest with its insured.

The matter we have before us involves a contract to defend the insured. That contract obligation is not dependent upon the good or bad faith of the insurer.

Myers v Farm Bureau Mutual Ins Co of Michigan, 14 Mich App 277; 165 NW2d 308 (1968), is cited by Farm Bureau to support its position that it acted in good faith in refusing to conform to its contract with Jamison.

This Court cannot maintain support for the principles adopted in Myers wherein the Wakefield conclusions were misapplied and did not involve an express contractual obligation to defend.

Subsequent to Myers, this Court in Palmer v Pacific Indemnity Co, 74 Mich App 259; 254 NW2d 52 (1977), resolved some of the issues here considered without reference to Wakefield or Myers.

In Palmer the issue was whether the promise to defend provision in the insurance policy included the duty to appeal an adverse decision where the verdict exceeded the limits of the policy and the insurer believed there were no reasonable grounds upon which to base an appeal. This Court held the insurer did not limit its duty to defend, as it could, and the insured could reasonably expect the insurer to take an appeal from an adverse judgment. The insured is entitled to be defended at both the trial level and the appellate level unless otherwise specifically set forth in the insurance contract. This Court further held in Palmer that the insurer was liable for any consequential damages due to its breach of duty to defend on appeal and this would include the cost of appeal and attorney fees.

The matter of faith, good or bad, on the part of the insurer, in its determination not to appeal, was not considered. However, this Court did not consider, as a justification for failure to appeal, the insurer’s asserted belief that there were no reasonable grounds to appeal.

Failure of Farm Bureau to take action and enter the cases pending in Montmorency County Circuit Court against Jamison, after the Wayne County Circuit Court decision ordering insurance coverage on Jamison, was inexcusable, and if good or bad faith could be an issue or an excuse for the breach of the contract obligation, the inaction would strongly indicate a lack of good faith.

In Jones v National Emblem Ins Co, 436 F Supp 1119, 1124-1125 (ED Mich, 1977), Judge Charles Joiner set forth, in situations where bad faith may be an issue, certain standards which insurance companies should heed:

"[I]t is clear that the insurer has a duty promptly and clearly to inform the insured of: (1) the possibility of a judgment in excess of the policy limits; (2) the insured’s right to retain independent counsel; (3) the limits of the insurer’s interest in the lawsuit; and (4) all settlement offers, including the insurer’s response to such offers and the legal significance of those responses expressed in terms of the insured’s liability. The extent and clarity of such notice by the insurer to the insured is a substantial factor to be weighed in determining whether the insurer handled settlement negotiations in good faith.”

None of these standards were a part of Farm Bureau’s transactions with its insured.

Farm Bureau had an absolute duty to defend Jamison and the trial judge was correct in stating the question of good faith or bad faith on the part of Farm Bureau is not a matter to be considered.

The judgment of the trial court is affirmed. Costs to plaintiffs.

D. F. Walsh, J., concurred.

Cynar, P.J.

(concurring). In concurring in the decision to affirm, I deem it necessary to write separately. While the trial court, as well as my brother, opine that the contract to defend the insured is not dependent upon the good or bad faith of the insurer, they stray toward well-founded, although not applicable, decisions concerned with acts of bad faith by an insurer in failing to settle. The issue in Jones v National Emblem Ins Co, 436 F Supp 1119, 1124-1125 (ED Mich, 1977), concerned bad faith in failing to settle. The court gave heed to follow standards which have long been recognized and followed after insurers assume the defense of their insured. All the same, the insurer in this case owed something more to Jamison, its insured, than the barren letter which was sent to him on July 8, 1971.

Was the defendant under obligation to defend the suit against Jamison? The contract of insurance states:

"* * * and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent”.

In City Poultry & Egg Co v Hawkeye Casualty Co, 297 Mich 509, 512; 298 NW 114 (1941), the Court said in answer to the question of whether defendant was under an obligation to defend the suit:

"The answer to this question depends upon whether the undertaking to defend suits against the insured alleging personal injuries is independent and severable from the obligation to pay a judgment — or independent from the exception stipulating that the insurance company was not obliged to pay a judgment if the injured person was being transported at the time by the truck.
"We are of the opinion that the undertaking to defend and the undertaking for payment of damages were severable and independent.”

To the same effect see Zurich Ins Co v Rombough, 384 Mich 228; 180 NW2d 775 (1970), and Dochod v Central Mutual Ins Co, 81 Mich App 63; 264 NW2d 122 (1978).

The duty to defend is distinguishable from, and in some ways broader than, the duty to indemnify. Ins Co of North America v Forty-Eight Insulations, Inc, 451 F Supp 1230 (ED Mich, 1978), citing Sprayregen v American Indemnity Co, 105 Ill App 2d 318; 245 NE2d 556 (1969), McFadyen v North River Ins Co, 62 Ill App 2d 164; 209 NE2d 833 (1965).

In Maryland Casualty Co v Peppers, 64 Ill 2d 187; 355 NE2d 24 (1976), the Illinois Supreme Court stated:

"In determining whether the insurer owes a duty to the insured to defend an action brought against him, it is the general rule that the allegations of the complaint determine the duty. If the complaint alleges facts within the coverage of the policy or potentially within the coverage of the policy the duty to defend has been established. (Citations omitted.)
"This duty to defend extends to cases where the complaint alleges several causes of action or theories of recovery against an insured, one of which is within the coverage of a policy while others may not be.”

Faced with a similar situation, the Federal Court of Appeals for the Seventh Circuit forcefully stated:

"[I]t has been universally recognized that an insurer has a duty to defend under a defense clause if there is doubt whether the claim comes within the coverage of the policy.” Carboline Co v Home Indemnity Co, 522 F2d 363 (CA 7, 1975).

In this case, as it ultimately turned out, the Wayne County Circuit Court determined that Jamison was entitled to coverage under the insurance contract. The Michigan Supreme Court affirmed the circuit court. However, even prior to the circuit court judgment, there was at least a doubtful or potential claim against Jamison, to which he was entitled to a defense. The letter written to Jamison, dated July 8, 1971, was insufficient to negate the insurer’s duty to defend its insured. The insured as well as the insurer would have been protected had the insurer undertaken to defend the insured, while reserving the right to refuse to pay under the policy.

Based on the facts in this case, because there was an absolute duty to defend, I agree to affirm the judgment of the trial court.


source: Caselaw Access Project

author: Mackenzie, J.

license: Public Domain

text:
    PEOPLE v CARL JOHNSON
    Docket No. 43427.
    Submitted February 7, 1980, at Grand Rapids.
    Decided August 25, 1980.
    Carl Johnson was convicted of first-degree premeditated murder and felony murder-rape in the VanBuren Circuit Court, Robert E. A. Boyle, J. The defendant appeals alleging that (1) his signed written waiver of jury trial was ineffective because it was not executed in open court, (2) the magistrate erred in binding the defendant over on an open charge of murder, (3) the trial court erred in admitting evidence of certain statements the defendant made to the police which were allegedly involuntary, (4) the seizure of certain evidence at his apartment violated his Fourth Amendment right to remain free from unreasonable searchs and seizures, (5) the trial court erred in refusing to grant his motion for a directed verdict of acquittal on the charge of first-degree murder, and (6) his conviction of first-degree felony murder was violative of the due process clause since the underlying felony, rape, had been abolished and replaced with the criminal sexual conduct act. Held:

    1. The Michigan jury waiver statute is to be strictly con- ■ strued to the extent that a written waiver is ineffective where the defendant does not waive his right in open court. A valid waiver does not require an oral acknowledgement where it is apparent that the waiver was made in open court. Here, there was no reversible error.
    2. Absent a showing of clear abuse of discretion, the Court of Appeals will not reverse a magistrate’s determination of probable cause.
    3. The Court of Appeals is required to examine the entire record and make an independent determination of voluntariness when a defendant alleges that the trial court erred in admitting evidence of certain statements the defendant made to the police which were allegedly involuntary, and the relevant factors to be considered in such a determination are: (a) the duration and conditions of detention; (b) the manifest attitude of the police toward the accused; (c) the physical and mental state of the accused; and (d) diverse pressures which sap or sustain the accused’s powers of resistance or self control, with the ultimate consideration being whether the confession is the product of an essentially free and unconstrained choice by its maker. Here, the Court of Appeals declines to disturb the trial judge’s findings on voluntariness.

      References for Points in Headnotes
    [1] 47 Am Jur 2d, Jury § 83.
    [2] 21 Am Jur 2d, Criminal Law § 443.
    [3] 29 Am Jur 2d, Evidence § 612.
    [4] 75 Am Jur 2d, Trial §§ 548-558.
    [5} 40 Am Jur 2d, Homicide § 45.
    [63 40 Am Jur 2d, Homicide § 72.
    [73 40 Am Jur 2d, Homicide §§ 183-185.

      4. A trial judge must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in the light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt when ruling on a motion for a directed verdict of acquittal. Here, there was no error by the trial judge.
    5. The following factors are relevant in a determination of whether a defendant accused of murder acted with premeditation: (1) the previous relationship of the parties; (2) the defendant’s actions prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the homicide.
    6. The Michigan criminal sexual conduct statute, although it enlarges the scope of criminal sexual conduct over that proscribed by the former carnal knowledge statute, continues the historic prohibition of rape and there is no violation of a defendant’s due process where a defendant is charged with felony murder and the jury is instructed on the definition of rape under the former Michigan carnal knowledge statute.
    7. The defendant’s conviction of both first-degree premeditated murder and first-degree felony murder violates double jeopardy protection where only one murder occurred. Therefore, the defendant’s felony murder conviction is vacated.
    8. The defendant’s right to remain free from unreasonable searches and seizures was not violated.
    Affirmed in part, reversed in part.
    1. Criminal Law — Jury Waiver — Requirements.
    The jury waiver statute is to be strictly construed to the extent that a written waiver is ineffective where a defendant does not waive his right in open court; and a valid waiver does not require an acknowledgement where it is apparent that the waiver was made in open court (MCL 763.3; MSA 28.856).
    2. Appeal — Criminal Law — Magistrates — Probable Cause.
    The Court of Appeals will not reverse a magistrate’s determination of probable cause, absent a showing of clear abuse of discretion.
    3. Appeal — Criminal Law — Courts — Statements — Voluntariness.
    The Court of Appeals is required to examine the entire record and make an independent determination of voluntariness when a defendant alleges that the trial court erred in admitting evidence of certain statements the defendant made to the police which were allegedly involuntary, and the relevant factors to be considered in such a determination are: (a) the duration and conditions of detention; (b) the manifest attitude of the police toward the accused; (c) the physical and mental state of the accused; and (d) diverse pressures which sap or sustain the accused’s powers of resistance or self control, with the ultimate consideration being whether the confession is the product of an essentially free and unconstrained choice by its maker.
    4. Criminal Law — Judges — Directed Verdict — Acquittal.
    A trial judge must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in the light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt when ruling on a motion for a directed verdict of acquittal.
    5. Homicide — Premeditated Murder — Factors.
    The following factors are relevant in a determination of whether a defendant accused of murder acted with premeditation: (1) the previous relationship of the parties; (2) the defendant’s actions prior to the actual killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the homicide.
    6. Rape — Felony Murder — Statutes.
    The Michigan criminal sexual conduct statute, although it enlarges the scope of criminal sexual conduct over that proscribed by the former carnal knowledge statute, continues the historic prohibition of rape and there is no violation of a defendant’s due process where a defendant is charged with felony murder and the jury is instructed on the definition of rape under the former Michigan carnal knowledge statute (MCL 750.316, 750.520, 750.520a et seq.; MSA 28.548, 28.788, 28.788[1] et seq.).

    7. Homicide — First-Degree Murder — Felony Murder — Double Jeopardy.
    A defendant’s conviction of both first-degree premeditated murder and first-degree felony murder violates double jeopardy protection where only one murder occurred.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ward S. Hamlin, Jr., Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      DeVries & Lamb, P.C., for defendant on appeal.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Mackenzie, J.

Defendant Carl Johnson was charged with first-degree premeditated murder and felony murder-rape, contrary to MCL 750.316; MSA 28.548, arising out of the death of Terry Lynn Wilson in Bangor, Michigan, on July 4, 1977.

The evidence at trial indicated that defendant and the victim had known each other during high school and that defendant was seen dancing with her in a South Haven bar a few hours before her death. Three witnesses testified that they saw defendant standing beside a cream-colored Pontiac, similar to the. one the victim had been driving, between 2 a.m. and 3 a.m. the morning of July 4th. They heard several muffled screams coming from the car, but left when defendant requested them to leave after stating "Go away, I fucked up bad, go away”. Several hours later, the victim’s body was found in the trunk of her car at a different location. She was nude from the waist down and had been stabbed numerous times, but the cause of death was determined to be a blow to the back of her head most likely from a tire iron. The tire iron was found at the location where the three witnesses had seen defendant. The pathologist was unable to determine whether the victim had been raped.

Defendant was convicted of both first-degree premeditated murder and felony murder-rape in a bench trial before Judge Robert E. A. Boyle sitting by special assignment of the Michigan Supreme Court. On May 26, 1978, defendant was sentenced to life imprisonment in solitary confinement. He appeals as of right.

Defendant raises several issues on appeal. He initially contends that his signed, written waiver of jury trial filed March 30, 1978, was ineffective because it was not executed in open court in compliance with MCL 763.3; MSA 28.856. The statute requires that a waiver of jury trial be in writing, signed by the defendant, filed and made part of the record, and that ”[s]uch waiver of trial by jury must be made in open court after the said defendant has been arraigned and has had opportunity to consult with counsel”.

It is true that the jury waiver statute is to be strictly construed to the extent that a written waiver is ineffective where defendant does not waive his right in open court. People v Rimmer, 59 Mich App 645; 230 NW2d 170 (1975). In the case at bar, the following colloquy occurred between the trial judge, defense counsel, and the prosecutor in open court on the first day of trial:

’’THE COURT: Very well. Now, at this time I want to check — and do I understand that there is no question but what the Defendant has signed a written waiver of jury trial and filed it?
"MR. SEAMAN: That’s correct, Your Honor.
"THE COURT: You agree on that?
"MR. HAMLIN: Yes, Your Honor.
"THE COURT: Very well. Thank you. You may now proceed with your opening statement, Mr. Hamlin.”

Although the statute does not expressly require an oral waiver, such a requirement has been imposed previously. People v Word, 67 Mich App 663; 242 NW2d 471 (1976).

However, we agree with the Court in People v McKaig, 89 Mich App 746, 750; 282 NW2d 209 (1979), that there should not be a hard and fast rule in every case. There it was held that a valid waiver does not require an oral acknowledgment where it is apparent that the waiver was made in open court. Similarly, in People v Little, 87 Mich App 50, 55; 273 NW2d 583 (1978), it was held that defendant need not orally waive jury trial himself, but it was sufficient if defendant was present when defense counsel did so. See also People v Braxton, 91 Mich App 689; 283 NW2d 829 (1979).

From the testimony of defendant and trial counsel at the motion for a new trial held December 15, 1978, it is apparent that defendant was informed several times before signing the written waiver of the advantages and disadvantages of a jury trial as opposed to a bench trial. Because of pretrial publicity and the complicated nature of defendant’s insanity defense, a bench trial was chosen as a matter of trial strategy. Defense counsel anticipated a bench trial well in advance of trial when he moved to disqualify Judge Warshawsky, initially assigned to the case, because he had been exposed to evidence ruled inadmissible. Defendant had been informed by defense counsel that he would be asked about his waiver by the trial judge; in fact, defendant was present when his counsel told the trial court that defendant had waived trial by jury.

Visiting Judge Boyle, who presided at defendant’s trial, indicated in his opinion and decision denying a new trial dated November 3, 1978, that he had been informed that the reason he was assigned to the case was that defendant had waived jury trial. In that opinion, Judge Boyle stated that when defense counsel stated that defendant had waived jury trial, defendant nodded his head in agreement.

Although we perceive the better practice to include an express waiver of jury trial by the defendant in court we find no reversible error here. The close relation between defendant and trial counsel, the many pre-trial motions to disqualify Judge Warshawsky, and defendant’s nodding agreement that he had waived jury trial all lead to our conclusion that his rights were adequately protected. For the same reasons, we believe his waiver was knowing and voluntary.

Defendant secondly argues that due to the lack of evidence of premeditation or deliberation at the preliminary examination, the magistrate erred in binding defendant over on an open charge of murder. We disagree.

Absent a showing of clear abuse of discretion, this Court will not reverse a magistrate’s determination of probable cause. People v Johnson, 93 Mich App 667, 675; 287 NW2d 311 (1979), People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975). The corpus delicti of first-degree murder must be demonstrated at the preliminary examination. Johnson, supra. The evidence at the preliminary examination that defendant had previously known the victim and had danced with her shortly before she was murdered, and that hours later, at the scene of the crime, a witness testified to hearing screams and was told by defendant to leave because he (defendant) had “fucked up”, was sufficient to establish probable cause of premeditation and deliberation. We will not discuss defendant’s argument that the magistrate abused his discretion in binding defendant over on a charge of felony murder-rape, due to our treatment of defendant’s felony murder conviction, infra.

Defendant also alleges that the trial court erred in admitting evidence of certain statements defendant made to the police which were allegedly involuntary. An extensive Walker hearing was conducted, after which Judge Warshawsky ruled inadmissible several statements made by defendant before being apprised of his Miranda rights and one taped statement of defendant determined to be incomplete. Judge Warshawsky ruled that several other statements that defendant made after being given his Miranda warnings were voluntary and admissible.

On appeal from a trial court’s determination of voluntariness, this Court is required to examine the entire record and make an independent determination of voluntariness. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), People v Germain, 91 Mich App 154, 161; 284 NW2d 260 (1979), People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978).

Relevant factors to be considered in this determination are “(a) the duration and conditions of detention; (b) the manifest attitude of the policé toward the accused; (c) the physical and mental state of the accused; and (d) diverse pressures which sap or sustain the accused’s powers of resistance or self control”. People v Allen, 8 Mich App 408, 412; 154 NW2d 570 (1967), citing Culombe v Connecticut, 367 US 568; 81 S Ct 1860; 6 L Ed 2d 1037 (1961). The ultimate consideration is whether "the confession [is] the product of an essentially free and unconstrained choice by its maker”. Id.

In the case at bar, defendant, barefoot and clad only in a pair of blue jeans, was arrested and taken to the Bangor state police post between 5:30 and 6 a.m. on July 4, 1977. There he was handcuffed to a bar about shoulder height. After 25 minutes, one of defendant’s hands was released and he was allowed to sit in a chair. Defendant stayed in this position for two to three hours and did manage to sleep, though he was aroused several times when his hand slipped off the bar and the handcuffs caught his wrist.

At approximately 11 a.m. that day, the handcuffs were taken off and defendant was questioned for one hour and 15 minutes by Detective Robert Rank. Both defendant and Detective Rank testified that at this time defendant was seated in Rank’s office and was offered food and drink. Detective Rank described defendant as fatigued and confused, in the sense that he changed details of his story, but coherent. Defendant signed a waiver of his Miranda rights at that time. It does not appear that any coercive tactics were employed.

After this interview, defendant was seated in a padded chair with one hand cuffed to a wooden table. He was able to rest the restrained hand in his lap and the upper half of his body on the table. At approximately 4 p.m., Detective Rank removed defendant’s handcuff and defendant gave another statement after being advised of his Miranda rights. The questioning lasted 30 to 45 minutes.

After thoroughly examining the record, we agree with the trial judge that the conditions and duration of confinement did not render defendant’s statements involuntary. Although we do not condone the practice of the state police of handcuffing prisoners to "the rack”, defendant was able to sleep off and on, was offered and received food. Defendant claims on appeal that he was cold; however, he did not once mention this to the police and, as the trial court noted, it was July. Defendant also argues that even though informed of his right to be provided counsel if indigent, he thought he would have to take out a loan to pay back an appointed attorney. Defendant testified that in any event he did not believe then that he needed an attorney. Here, we are inclined to give deference to the trial judge’s determination of defendant’s credibility. Dixon, supra, 681. In summary, as we are not left with a definite and firm conviction that a mistake has been made, we decline to disturb the trial judge’s findings. See Dixon, supra.

Defendant claims that certain evidence seized at his apartment violated his Fourth Amendment right to remain free from unreasonable searches and seizures. We disagree. Defendant admitted signing a consent form. Although defendant claims his consent was generated by the threat of an impending search warrant, there was evidence presented that no such threat occurred. To reiterate, where conflicting evidence is presented, the trial judge is in a better position to judge the credibility of witnesses. Under all the circumstances, we find defendant’s consent to search was voluntarily given.

Further, the officers searching defendant’s residence had duly executed search warrants. Defendant’s contention that the warrants were based on the illegally obtained statements of defendant is without merit as we have determined those statements were voluntary and admissible. Moreover, according to the trend of recent Federal and Michigan decisions, it does not appear that application of the exclusionary rule is mandatory where a Miranda violation is concerned. Michigan v Tucker, 417 US 433, 438; 94 S Ct 2357; 41 L Ed 2d 182 (1974), People v Kusowski, 403 Mich 653; 272 NW2d 503 (1978).

Defendant next contends that the trial court erred in refusing to grant his motion for a directed verdict of acquittal on the charge of first-degree murder because of the lack of evidence at trial of premeditation or deliberation. When ruling on a motion for a directed verdict of acquittal, the trial judge must consider the evidence presented by the prosecution up to the time the motion is made, view that evidence in the light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).

In People v Morrin, 31 Mich App 301, 329-330; 187 NW2d 434 (1971), Judge, now Justice, Levin formulated the following definitions of premeditation and deliberation:

"To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem. As a number of courts have pointed out, premeditation and deliberation characterize a thought process undisturbed by hot blood. While the minimum time necessary to exercise this process is incapable of exact determination, the interval between initial thought and ultimate action should be long enough to afford a reasonable man time to subject the nature of his response to a 'second look’ (Footnotes omitted.)

See also People v Tilley, 405 Mich 38; 273 NW2d 471 (1979), People v Walker, 93 Mich App 189, 196; 285 NW2d 812 (1979).

In Walker, supra, this Court relied on People v Meadows, 80 Mich App 680, 691; 263 NW2d 903 (1977), wherein we held the following factors relevant to a determination of whether the accused had an opportunity to subject his actions to a second look: " '(1) the previous relationship of the parties, (2) the defendant’s actions prior to the actual killing, (3) the circumstances of the killing itself, and (4) the defendant’s conduct after the homicide.’ ” 93 Mich App, 189-190.

We agree with the trial court that the evidence in the case at bar supports its finding of premeditation and deliberation necessary for a first-degree murder conviction. Richard Abbott testified that he, Michael Hills, and Anthony Marr came upon a trailer and a cream-colored Pontiac while on their way to drive their jeep through the sand dunes at approximately 2 a.m. on July 4, 1977. He said he heard a girl scream in a high-pitched voice three or four times and that the screams sounded muffled like they were coming from the car. Defendant, who was the only person to be seen, told Abbott and his friends to just leave because he had "fucked up” and would explain tomorrow what the problem was. Abbott’s testimony was corroborated in detail by the testimony of Hills and Marr.

Merely because the three were unable to testify that the screams were made by Terri Wilson does not require reversal. There was sufficient circumstantial evidence to lead to the reasonable, permissible inference that she was in the trunk of her car screaming for help. The pathologist testified that it would have been highly unlikely that she would have been able to scream after receiving the blow on the back of the head which eventually caused her death. This supports the trial judge’s conclusion that she was alive at the time the three men encountered defendant. We also agree that this gave defendant sufficient time to reconsider his actions but that he failed to do so. Regardless of whether defendant had formulated the intent to rape and murder Terri Wilson earlier in the evening, there was sufficient evidence on the elements of premeditation and deliberation.

Defendant next contends his conviction of first-degree felony murder was violative of the due process clause since the underlying felony, rape, had been abolished and replaced with the criminal sexual conduct act, MCL 750.520a, et seq.; MSA 28.788(1) et seq. This argument was recently rejected by the Michigan Supreme Court in People v McDonald, 409 Mich 110; 293 NW2d 588 (1980). In McDonald, the Court found that the Legislature intended that the repealed carnal knowledge statute continue to define "rape” for purposes of the felony murder statute and that the latter statute was unaffected by the passage of the criminal sexual conduct act.

However, under Michigan law, where only one murder occurred, defendant’s conviction of both first-degree premeditated murder and first-degree felony murder violates double jeopardy protection. People v Densmore, 87 Mich App 434, 440-441; 274 NW2d 811 (1978), People v Sparks, 82 Mich App 44, 52-53; 266 NW2d 661 (1978). Therefore, defendant’s felony murder conviction must be vacated. Since there was ample evidence of premeditation and deliberation and as defendant received only one punishment, his first-degree murder conviction is affirmed.

Affirmed as modified.

       His testimony indicated that she had sustained a wound at the opening of her vagina which could have been caused by an erect penis. However, no sperm or other evidence of sexual intercourse was found.

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

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


author: N. J. Kaufman, P.J.

text:
    PEOPLE v CURRELLEY
    Docket No. 43469.
    Submitted June 16, 1980, at Detroit.
    Decided August 25, 1980.
    Leave to appeal applied for.
    Roy Currelley was convicted of first-degree criminal sexual conduct and second-degree criminal sexual conduct in the Wayne Circuit Court, Joseph B. Sullivan, J. The complainant, a five-year-old girl, was the only eyewitness and described her attacker as a six-foot black male, 25 years of age, wearing a blue jacket, blue jeans and no shirt. Eighteen days later she saw a man she recognized as her assailant. Several days later, defendant was arrested. An attorney was appointed to represent him at pretrial identification procedures. Pursuant to a police request, defendant’s counsel agreed to the holding of a photographic display rather than a corporeal lineup. When complainant failed to make a positive identification from the photographs but stated that she would know her assailant if she saw him, a corporeal lineup was held. Complainant immediately identified defendant as her attacker. The trial court allowed the complainant to identify defendant in court as her attacker. Defendant appeals, alleging that the photographic display while defendant was in custody was improper and that it tainted the subsequent identifications. Held:

    1. The avoidance of additional trauma to a child of tender years is a compelling reason for holding a photographic display in lieu of a corporeal lineup. The procedure was proper, and, even if it was impermissible, there was an independent basis for the in-court identification.
    2. A corporeal lineup is not unduly suggestive merely because a defendant appeared in the clothing he was wearing when apprehended where there is no evidence that the identification was based on the clothing worn. Nor was the lineup suggestive merely because defendant was the only person to appear both there and in the photographic display or because he appeared in the middle of the lineup.

      References for Points in Headnotes
    [1, 3, 4] 21 Am Jur 2d, Criminal Law § 368.
    Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedures. 39 ALR3d 487.
    [2] 29 Am Jur 2d, Evidence §§ 371, 372.
    [3] 21 Am Jur 2d, Criminal Law § 361.
    [5] 58 Am Jur 2d, New Trial § 161.

      3. Defendant asserts ineffective assistance of counsel for acquiescing in the photographic display, for failure to object to the holding of the corporeal lineup and for failure to object to the suggestiveness of the lineup. No "serious error” was committed by counsel.
    Affirmed.
    1. Criminal Law — Lineups — Photographic Displays.
    The avoidance of additional trauma to a witness who is a child of tender years is a compelling reason for holding a photographic display in lieu of a corporeal lineup for identification purposes even where the suspected perpetrator is in police custody.
    2. Criminal Law — Lineups — In-Court Identification.
    In-court identification by an eyewitness who has participated in improper pretrial identification procedures must be suppressed unless there is a showing by clear and convincing evidence that the in-court identification was made on some other basis.
    3. Criminal Law — Pretrial Identification Procedures — In-Court Identifications.
    A corporeal lineup is not unduly suggestive merely because a defendant appeared in the clothing he was wearing when apprehended where there is no evidence that the identification was based on the clothing worn.
    4. Criminal Law — Pretrial Identification Procedures — Photographic Displays — Lineups.
    The fact that a defendant whose photograph had been shown in a previous photographic display is the only participant in a subsequent lineup does not render the lineup procedure improper.
    5. Criminal Law — Assistance of Counsel — Serious Mistake — New Trial.
    A court may grant a new trial, despite failure to have preserved the error by timely objection, where the lawyer’s mistake is of such serious proportion that it may have been decisive, that is, where, but for the lawyer’s mistake, the defendant might not have been convicted.

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

      Richard B. Ginsberg, 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.

   N. J. Kaufman, P.J.

On October 25, 1978, defendant was convicted of one count of criminal sexual conduct, first degree, MCL 750.520b; MSA 28.788(2), and one count of criminal sexual conduct, second degree, MCL 750.520c; MSA 28.788(3), after a nonjury trial in Wayne County Circuit Court. On November 8, 1978, defendant was sentenced to a term of 7-15 years on each count, the sentences to run concurrently. Defendant appeals as of right, GCR 1963, 806(1).

The complainant, a five-year-old girl, claimed that she was sexually assaulted on May 12, 1978. She described her assailant as a six-foot black male, 25 years of age, wearing a blue jacket, blue jeans and no shirt. Eighteen days later, while walking in the neighborhood with her aunt, complainant saw a man she recognized as her assailant. At this point, she hid behind her aunt. She later informed her mother of this encounter and the mother called the police.

Several days later, defendant was arrested. An attorney was appointed to represent him at pretrial identification procedures. Pursuant to a police request, defendant’s counsel agreed to the holding of a photographic display rather than a corporeal lineup. When complainant failed to make a positive identification from the photographs but stated that she would know her assailant if she saw him, a corporeal lineup was held. Complainant immediately identified defendant as her attacker.

At trial, defendant moved to suppress complainant’s in-court identification of defendant. The motion was based upon the holding of an improper photographic display. The parties agreed to incorporate a hearing on this issue into the prosecution’s case in chief. At trial, after hearing testimony concerning the witness’s opportunity to observe her assailant during the incident itself, the photographic display and the corporeal lineup, the court allowed the in-court identification based on the street identification and the identification made at the corporeal lineup.

Among the issues raised by defendant on appeal, we feel only one merits our detailed consideration. Defendant contends that the holding of a photographic identification while defendant was in custody was improper and tainted both the subsequent corporeal lineup and the in-court identification. Defendant cites as his authority for this proposition People v Anderson, 389 Mich 155; 205 NW2d 461 (1973). This Court acknowledges that Anderson provides the general rule that identification by photograph should not be used where the accused is in custody. However, Anderson prefaces this rule with the words, "Subject to certain exceptions”. Id., 186. While none of the exceptions explicitly mentioned in Anderson, supra, exist in the case before us, we do not find exclusivity in the listed exceptions and find that there was a legitimate reason to use photographs for identification of an in-custody accused in. the instant situation.

This Court does not operate in a vacuum. We have before us the briefs and records, which we have carefully studied. We also sit equipped with our knowledge of the world about us. As we view the circumstances of the instant case, we find a five-year-old child as complainant in a very delicate matter. In order to avoid further trauma to this child, the prosecution preferred to use a photographic identification rather than submit the complainant to the stress of a corporeal lineup. Defendant’s attorney agreed to this procedure. However, when the witness failed to select any pictures from the photographic display but stated that she was sure she would know her assailant if she were to see him, the police were forced to resort to the corporeal lineup. At this second procedure, the complainant did, in fact, immediately recognize defendant. We find the avoidance of additional trauma to a child of tender years at least as compelling a reason for resorting to a photographic identification — in lieu of a corporeal lineup — as any of the recognized exceptions of Anderson, supra. We, therefore, hold that the photographic identification procedure was proper.

Assuming arguendo that the photographic identification was impermissible, we believe that the trial court was correct in holding that there was an independent basis for the subsequent in-court identification. In-court identification by an eyewitness who has participated in improper pretrial procedures must be suppressed unless there is a showing by clear and convincing evidence that the in-court identification was made on some other

basis than the pretrial identification procedure. It is not enough that the eyewitness reiterate her ability to recognize, or certainty of recognition, but facts and circumstances of conditions under which the initial identification was made must be considered. People v Kachar, 400 Mich 78; 252 NW2d 807 (1977). When we consider the failure of complainant to identify defendant coupled with her assertion that she would know him if she saw him in a corporeal lineup and her subsequent positive identification of him as well as her identification of him on the street, we find that the standards for an independent basis enunciated in Kachar were sufficiently met. Additionally, we note that among the factors considered relevant in Kachar are age and intelligence of a witness. Kachar, supra, 96. In view of the facts noted above, we find that the trial court did not err in finding a sufficient independent basis for the in-court identification.

We will briefly discuss two other contentions of error by defendant. First, we find no merit in defendant’s contention that the corporeal lineup was unduly suggestive. This issue was not raised by defendant at trial. It is raised on appeal to attack the trial court’s consideration of the lineup as an independent basis and to assert ineffective assistance of counsel in failing to raise the issue. The fact that defendant was one of two shirtless men is not sufficient to taint an identification. It is not necessarily impermissibly suggestive when a defendant wears the same clothing in the lineup as he wore when apprehended. People v Morton, 77 Mich App 240, 244; 258 NW2d 193 (1977), People v Jones, 44 Mich App 633, 637-638; 205 NW2d 611 (1973), People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977). Gunter, supra, also supports the conclusion that no suggestiveness will be found where there is no record evidence that identification of the defendant depended substantially on the clothing worn at the time of the offense and where the witness had sufficient time to observe the defendant. Gunter, supra, 490. In the case at bar, there is no evidence that the assailant’s being shirtless at the time of the attack was a substantial part of complainant’s identification.

Defendant further contends that the fact that defendant was the only individual to appear both in the photographic display and the lineup made the lineup suggestive. The fact that a defendant whose photograph had been shown in a previous photographic show-up is the only participant in a subsequent lineup does not render the lineup procedure improper. People v Solomon, 82 Mich App 502; 266 NW2d 453 (1978).

Other objections by defendant concerning defendant’s relative height and his location in the middle of the lineup do not represent the kind of disparity that would make the lineup impermissibly suggestive.

Another ground for error raised by defendant is his contention that he was denied effective assistance of counsel. Defendant contends that counsel’s acquiescence to a photographic identification without first consulting defendant constituted ineffective assistance of counsel. We feel that counsel’s failure to object to this procedure was entirely reasonable in light of the age of complainant and the probable trauma to her. Defendant also asserts that counsel’s failure to object to the subsequent corporeal lineup was error and rendered his assistance ineffective. As to this allegation, it seems that defense counsel’s failure to object at this point, especially when complainant had failed to make a positive identification at the photographic showup, was good trial strategy, rather than ineffective assistance of counsel. That this strategy backfired at the later corporeal lineup does not render counsel’s actions unsupportable. Defendant further cites counsel’s failure to object to the alleged suggestive corporeal lineup as ineffective assistance of counsel. As we have previously stated, we do not find that lineup suggestive and thus counsel’s failure to object to same was justified. To all defendant’s other contentions of ineffective assistance of counsel, we hold that the test enunciated in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977), which rejected the "sham” test and adopted the standard of Beasley v United States, 491 F2d 687 (CA 6, 1974), for effective assistance of counsel has been met.

"Defense counsel must perform at least as well'as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests * * Garcia, supra, 264.

The Court in Garcia also accepted the "serious error” test as set forth in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969):

"Where the lawyer’s mistake is of such serious proportion that it may have been decisive, where but for the lawyer’s mistake the defendant might not have been convicted, the court may, despite failure to have preserved the error by timely objection grant a new trial.” Id., 716.

In the case at bar, we find that defense counsel fulfilled the standards of Garcia and that there was sufficient evidence against defendant, so that no "serious error” was committed in any omission by counsel.

We affirm defendant’s conviction.

       Among the exceptions for using identification by photograph when the accused is in custody listed in People v Anderson, 389 Mich 155; 205 NW2d 461 (1973), are where it is not possible to arrange a proper lineup, where there are insufficient numbers of persons available with the defendant’s physical characteristics, where the nature of the case requires immediate identification, where witnesses are at a place far distant from location of an in-custody accused, and where the subject refuses to participate in a lineup and by his actions would seek to destroy the value of the identification.

       The Court in People v Kachar, 400 Mich 78, 95-97; 252 NW2d 807 (1977) stated:
      "Thus, factors which the court should use in determining whether an independent basis exists should include:
      "1. Prior relationship with or knowledge of the defendant.
      "2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.
      "3. Length of time between the offense and the disputed identification. See Anderson, 389 Mich 214, for analysis for the curve of forgetting.
      "4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.
      "5. Any previous proper identification or failure to identify the defendant.
      "6. Any identification prior to lineup or showup of another person as defendant.
      "7. Still another consideration, not mentioned in Wade, [United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)], but essential to a determination of judging the reliability of the witness’s perceptions is the nature of the alleged offense and the physical and psychological state of the victim. 'In critical situations perception will become distorted and any strong emotion (as opposed to mildly emotional experiences) will affect not only what and how much we perceive, but also will affect our memory of what occurred.’ 389 Mich 211. (Emphasis in original.)
      "Factors such as 'fatigue, nervous exhaustion, alcohol and drugs’, 389 Mich 213 (emphasis in briginal), and age and intelligence of the witness are obviously relevant. Levine and Tapp, The Psychology of Criminal Identiñcation: The Gap from Wade to Kirby, 121 U Pa L Rev 1079, 1102-1103 (1973).
      "8. Any idiosyncratic or special features of defendant.
      "Further, the court should refer to the actual lineup or showup to determine whether the witness’s testimony that the identification was due to perceptions received at the time of the alleged offenses is credible in view of the witness’s performance at, and the conduct of, the disputed lineup or showup.” (Footnote omitted.)


author: A. C. Miller, J.

text:
    PEOPLE v MARTIN
    Docket No. 43943.
    Submitted June 27, 1980, at Detroit.
    Decided August 25, 1980.
    Lee E. Martin, Jr., was convicted of two counts of armed robbery and was sentenced to prison on both counts, St. Joseph Circuit Court, Robert E. A. Boyle, J. He. appeals, alleging that the initial stop of his automobile violated his Fourth Amendment right against unreasonable searches and seizures, that the trial court erred in concluding, following a hearing to determine the voluntariness of certain statements made by defendant, that he was properly advised of and subsequently waived his rights against self-incrimination, that he was coerced during interrogation into making an inculpatory statement, and that the trial court erred in denying his motion for disqualification of the trial judge. Held:

    1. The initial investigatory stop of defendant’s automobile without probable cause was reasonable in light of the time, location, and general physical attributes of the defendant. Defendant consented to a search of his car after being advised of his rights, and the subsequent search revealed evidence which provided probable cause for his arrest.
    2. The trial record indicates that the defendant was advised of his rights prior to his arrest and each interrogation session, and his assertion that he did not understand those rights is not supported by the record. Thus, the trial court was justified in concluding that his confession was voluntary, and, absent a showing that its ruling was clearly erroneous, its finding will not be reversed.
    3. The trial record does not support defendant’s contention that he was coerced into making an inculpatory statement.
    4. The trial court did not abuse its discretion in denying defendant’s motion for disqualification of the trial judge since it was not timely made, and defendant demonstrated no prejudice-in-fact by the trial court’s decision to sit as the trier of fact.

      References for Points in Headnotes
    [1-4] 68 Am Jur 2d, Searches and Seizures §§ 43, 45, 99.
    [5] 29 Am Jur 2d, Evidence § 590.
    [6] 46 Am Jur 2d, Judges § 202.

      Affirmed.
    1. Criminal Law — Investigatory Stops — Probable Cause.
    A police officer may make an initial investigatory stop of a suspect with less than probable cause where he observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be taking place.
    2. Criminal Law — Investigatory Stops — Searches — Test.
    Reasonableness determined from the facts and circumstances of a case is the test that is to be applied for both the stop of and search of moving motor vehicles, and fewer foundation facts are necessary to support a finding of reasonableness where moving vehicles are involved than a house or a home, and a stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and search are conducted by the police.
    3. Criminal Law — Investigatory Stops — Standard.
    The reasonableness of an investigatory stop of an automobile is judged on an objective standard which hinges upon whether specific, articulable facts, together with rational inferences from those facts, reasonably warrant the stop.
    4. Criminal Law — Investigatory Stops — Probable Cause.
    Probable cause is not the predicate for an investigatory stop of an automobile.
    5. Criminal Law — Confessions — Voluntariness — Error.
    Great deference will be given on appeal to a trial court’s finding of voluntariness of a defendant’s confession following a Walker hearing, since the trial court is in the best position to judge the relative credibility of witnesses; the Court of Appeals will not upset the trial court’s ruling unless it is clearly erroneous.
    6. Motions and Orders — Disqualification of a Trial Judge — Error.
    A trial court, in deciding a motion for disqualification of a trial judge, must carefully balance the logistical problems in the production of witnesses, preparation for trial, and court time lost against a defendant’s diligence in bringing forward the motion and its merits, and a denial of an untimely motion does not constitute error, where a defendant demonstrates no prejudice-in-fact resulting from the court’s decision to sit as the trier of fact.

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

      William D. Weltz, for defendant on appeal.
    Before: J. H. Gillis, P.J. and V. J. Brennan and A. C. Miller, JJ.

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

   A. C. Miller, J.

Defendant was convicted in a bench trial of two counts of armed robbery, MCL 750.529; MSA 28.797, and was sentenced to 9 to 18 years imprisonment on each count. Defendant appeals as of right.

On March 24, 1978, at about 3:30 p.m., a man wearing a hard-hat helmet and glasses and armed with a sawed-off shotgun robbed the Mendon, Michigan branch of the American National Bank and Trust Company. The manager of the bank identified the defendant as the robber and stated that, as defendant gathered money from two teller cages, he also took some bait money and a "Security-Pac” from a teller’s drawer which activated a surveillance system of cameras and an alarm at the sheriffs department. The manager looked out the front window and saw defendant fleeing in a tan car, going north. Identification was made by the bank manager and by ten-year-old Sheli Weinberg, whose mother’s car was taken by defendant —with Sheli and her brother in it — to drive from the post office to the bank. Sheli said defendant went into the bank and came out with a white bag containing a red, smoke-like substance and a bad odor. He then drove them to the corner and got out. Sheli’s mother had left the car running in front of the post office and, upon emerging, saw it in front of the bank. She arrived at the car just after defendant and futilely grabbed the door handle as he drove off. She recruited another car and driver to pursue and saw defendant walking across the street, but as they approached, he put the gun to her head, told the occupants to get out, and drove away with this car. It was found two miles away with its engine running.

A detective with the Three Rivers Police Department had been listening to the radio traffic with regard to the bank robbery in Mendon. He positioned his squad car at the intersection of Buck-horn and Moorepark roads, since he knew this intersection covered the most direct route between the rural communities of Mendon and Three Rivers. The perpetrator of the robbery had been described as a Negro male who was slim in build and short, 5'2" to 5'3". The perpetrator was also reported possibly to be wearing an olive drab military jacket and glasses. The detective had heard two different automobile descriptions but was later informed that the suspect was either on foot or in a third car. Four or five minutes later, the detective observed a light-colored Cadillac coming from the direction of Mendon, heading toward Three Rivers. He identified the defendant as the driver of the automobile. The detective recognized the defendant, although he could not remember from where. Defendant was not wearing glasses or an army jacket and was accompanied by another young black male. The detective pulled his squad car in front of defendant’s automobile, and defendant stopped. The detective ordered the defendant out of his car, and he complied. The detective noticed a red stain on defendant’s pants. The defendant was read his rights, signed a rights form, and, according to the detective, consented to a search of his automobile. The rights form was signed and dated 4:09 p.m., March 24, 1978. Defendant stated that he was coming from Three Rivers and had just cashed a check. A search of defendant’s automobile revealed a napkin and several bills stained with a red dye. The defendant was then arrested. The detective conceded that he did not have "probable cause” to stop the defendant’s car.

Defendant was taken into custody and was questioned by two FBI agents, who also advised him of his rights. The interrogation by the FBI ended at 7:48 p.m. Defendant was questioned again on March 25, 1978, advised of his rights, and, after being shown photographs of himself taken by the bank cameras, told the questioning officers that he had committed the robbery. He led the officers to the robbery money and the shotgun used in the robbery. The money taken from the robbery was found to be heavily stained with a red dye.

On appeal, defendant contends that the initial stop of his vehicle violated his right to be free of unreasonable searches and seizures as guaranteed by the Fourth Amendment to the United States Constitution. If every such stop had to be predicated upon probable cause, we would agree with defendant and reverse his conviction. However, the Supreme Court in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), held that when an officer observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be taking place, he may make an initial investigatory stop of the suspect. The Supreme Court in Adams v Williams, 407 US 143, 145; 92 S Ct 1921; 32 L Ed 2d 612 (1972), expanded upon the principle that an investigatory stop may take place with less than probable cause. The Supreme Court stated:

"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.”

The requirements for an investigatory stop of an automobile were outlined by Michigan’s Supreme Court in People v Whalen, 390 Mich 672, 682; 213 NW2d 116 (1973). The Supreme Court adopted the following four rules:

"1. Reasonableness is the test that is to be applied for both the stop of, and the search of moving motor vehicles.
"2. Said reasonableness will be determined from the facts and circumstances of each case.
"3. Fewer foundation facts are necessary to support a finding of reasonableness when moving vehicles are involved, than if a house or a home were involved.
"4. A stop of a motor vehicle for investigatory purposes may be based upon fewer facts than those necessary to support a finding of reasonableness where both a stop and a search is conducted by the police.”

The rules adopted by the Supreme Court must, of their nature, be applied on a case-by-case basis. People v Lillis, 64 Mich App 64; 235 NW2d 65 (1975). Reasonableness of the stop is judged on an objective standard which hinges upon whether specific, articulable facts, together with rational inferences from those facts, reasonably warrant the stop. Lillis, supra, People v Hunter, 72 Mich App 191; 249 NW2d 351 (1976). A review of other cases where automobile stops were made on less than probable cause is in order.

In Whalen, supra, the police were advised of a robbery and were directed to watch for a large white car with three dark-complected occupants, one of whom was wearing a tan jacket. Two Michigan State Policemen observed a white Continental traveling toward the Ohio border. Pulling alongside the vehicle, they observed the driver to be dark-complected and wearing a tan jacket. Applying their own rules, the Supreme Court held that the subsequent stop was reasonable since the driver, his apparel, and the car matched the given descriptions. The car was traveling on a freeway frequently used by criminals fleeing to another state.

In People v Parisi, 393 Mich 31; 222 NW2d 757 (1974), the Supreme Court reached the opposite conclusion where the officer’s reasons for stopping the car were the slow speed of the automobile and the apparent youth or illness of the driver.

In Lillis, supra, this Court held that an investigatory stop of an automobile was reasonable. The police believed that an escapee was riding in the stopped automobile. The police could not positively identify the escapee, but an occupant of the automobile met his general description. The car stopped was known by the police to be used by a motorcycle club of which the escapee was a member. The stop was made in the city where the club was based. This Court held the limited intrusion outweighed by the reasonableness of police activity in stopping the car.

In Hunter, supra, this Court again held that a stop was reasonable in a situation where the police knew that a motel robbery occurred and that two black males were involved. The defendant’s car was stopped a short time after the robbery and a short distance from the motel. The defendants were traveling in a direction opposite the scene of the crime. The passenger in the automobile turned around in his seat to watch the police after the defendant’s car had passed by. This Court stated:

"In stopping the defendants, the officers were seeking to maintain the status quo. Their intrusion upon the liberty of the defendants was tapered to the circumstances of the case. Only a brief detention and questioning was originally intended.” 72 Mich App 191, 199.

Finally, in People v Bloyd, 96 Mich App 264; 292 NW2d 546 (1980), this Court again upheld the stop of an automobile where the police observed defendant’s automobile leaving a parking lot of a closed business in the early morning hours. This Court held that the police acted reasonably in stopping defendant to question him concerning his "oddly timed departure”. See also, People v Carter, 96 Mich App 694; 293 NW2d 681 (1980), People v Grimmett, 97 Mich App 212; 293 NW2d 768 (1980).

Under the circumstances of this case, we find the stop of defendant’s automobile reasonable in balance with the limited intrusion the stop entailed. The detective of the Three Rivers Police Department who stopped defendant’s automobile was aware that a Mendon bank had just been robbed. He positioned his squad car in a rural area at an intersection through which one leaving the Mendon vicinity was likely to pass. After a very short time, he observed the defendant’s car approach and recognized him. While the defendant was no longer wearing glasses, a hard-hat, or an army jacket, he did match the physical description given of the perpetrator, i.e. a black male, small in Stature. We find that these specific, articulated facts, when coupled with the inferences they fostered, made the detective’s acts reasonable for purposes of an investigatory stop.

We note that the detective testified that he did not have "probable cause” for the stop. As previously mentioned, probable cause is not the predicate for an investigatory stop. Additionally, the standard used to assess the specific, articulated facts in any particular factual situation is an objective standard. Lillis, supra. In the case at bar, the time, location, and general physical attributes of the defendant made the investigatory stop of his vehicle reasonable.

We further note that once defendant stopped and exited from his vehicle, the red dye stain left by the bank "Security-Pac” was clearly visible. The defendant was advised of his rights and consented to a search of his car. The subsequent search revealed both a paper napkin and paper currency stained with the same red dye. At this point, probable cause to arrest defendant existed.

Defendant contends that the trial court erred by concluding, following a Walker hearing, that defendant was properly advised of, and subsequently waived, his Miranda rights. This Court gives great deference to a trial court’s finding of voluntariness following a Walker hearing since the trial court is in the best position to judge the relative credibility of witnesses. People v Smith, 80 Mich App 106; 263 NW2d 306 (1977). This Court will not upset the lower court’s ruling unless it is clearly erroneous. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), People v Arthur Burton, 74 Mich App 150; 253 NW2d 691 (1977).

Upon reviewing the record as a whole, we remain unconvinced that the lower court clearly erred in its holding. The record indicates that the defendant was advised of his rights prior to his arrest and prior to each interrogation session. The defendant’s assertion that he did not understand those rights is not supported on the record. The trial court was justified in concluding that the defendant was "selective” concerning what he remembered regarding being informed of his rights.

Defendant also asserts that the county sheriff who was present during defendant’s interrogation made false promises to defendant to induce an inculpatory statement. We disagree. The sheriff told defendant that it would be of benefit to him to cooperate. This can hardly be considered a coercive promise. Furthermore, this occurred after his initial confession to the FBI. See People v Morgan Clark, 68 Mich App 674; 243 NW2d 914 (1976).

Defendant lastly argues that the trial judge should have disqualified himself pursuant to the motion filed by the defendant on the day of defendant’s trial. We disagree. GCR 1963, 912.3(a) provides:

"To avoid delaying trial and inconveniencing the witnesses, a motion to disqualify must be filed within 10 days after a case has been assigned to a judge for trial or at least 10 days before the trial date, whichever is earlier. If a motion is not timely filed, untimeliness, including delay in waiving jury trial, is a factor in deciding whether the motion should be granted.”

The trial court correctly found defendant’s motion untimely under the above rule. Defendant argues that his motion for disqualification was not untimely since a jury trial was waived only a week before trial was scheduled to commence. Still, defendant does not offer a satisfactory reason for delaying his motion until the morning of trial.

In deciding a motion for disqualification, a trial court must carefully balance the logistical problems in the production of witnesses, the preparation for trial, and the court time lost against the defendant’s diligence in bringing forward his motion for disqualification and the merits for that motion. In the case at bar, the trial court did not abuse its discretion in denying the motion for disqualification and proceeding to trial. Defendant’s motion came exceedingly late. Defendant demonstrated no prejudice-in-fact by the trial court’s decision to sit as the trier of fact. People v Lobsinger, 64 Mich App 284; 235 NW2d 761 (1975), People v Gibson (On Remand), 90 Mich App 792; 282 NW2d 483 (1979). While the trial court had been exposed to certain portions of the preliminary examination during defendant’s pre-trial motion to dismiss, the trial court did not consult the preliminary examination while sitting as the trier of fact. Thus, the "absolute rule” of People v Ramsey, 385 Mich 221, 225; 187 NW2d 887 (1971), was not violated. Rather, he did so pursuant to the defendant’s motion to dismiss and with defense counsel’s full acquiescence. Defendant waived his right to a jury trial after the trial court ruled on defendant’s motion to dismiss. People v Dixson, 403 Mich 106; 267 NW2d 423 (1978).

Defendant additionally argues that the trial judge should have been disqualified since the judge was privy to a pre-trial conference at which defendant offered to plead guilty to certain charged offenses. Defendant does not demonstrate how he was prejudiced by this fact. See People v Koss, 86 Mich App 557; 272 NW2d 724 (1978), People v Rider, 93 Mich App 383; 286 NW2d 881 (1979). Under these circumstances, the trial court did not err in refusing defendant’s untimely motion for disqualification.

Affirmed.

       A "Security-Pae” apparently is a device that emits red dye and pungent red gas when triggered.

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

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


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

text:
    PEOPLE v McDANIEL
    Docket No. 44734.
    Submitted June 9, 1980, at Lansing.
    Decided August 25, 1980.
    Bobbie McDaniel was charged with taking possession and driving away a motor vehicle, and receiving or concealing stolen property of value in excess of $100. He was convicted on the former charge, Genesee Circuit Court, Harry B. McAra, J. He appeals, alleging the trial court erred in admitting a videotape of his selling an automobile to an undercover operation into evidence without viewing it to determine whether its contents were more probative than prejudicial. Held:

    The videotape was very probative of defendant’s guilt of the charged offense, and it was no more prejudicial than any evidence linking a defendant to a crime. Moreover, it was part of the res gestae and was not rendered inadmissible by the fact that it might have tended to show that defendant had been involved in other criminal transactions. Defendant did not claim on appeal that any unfair prejudice actually resulted from its admission. The trial court did not err in admitting the videotape into evidence.
    Affirmed.
    T. M. Burns, P.J., dissented. He would hold that a viewing by the trial court of a videotape prior to its admission into evidence in a criminal case in order to determine its probative value relative to its prejudicial effect is necessary for a proper exercise of discretion and that the admission of the videotape without such a viewing was clearly erroneous.
    Opinion of the Court
    1. Criminal Law — Evidence — Res Gestae — Admissibility.
    An item of evidence which is part of the res gestae is not rendered inadmissible by the fact that it might have tended to show that the defendant had been involved in other criminal transactions, and while prejudicial, its admission is not clearly erroneous unless it is shown that unfair prejudice actually resulted from its admission.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 253, 260.
    [2] 29 Am Jur 2d, Evidence § 785.
    [3] 29 Am Jur 2d, Evidence § 787.

      Dissent by T. M. Burns, P.J.
    2. Criminal Law — Evidence — Videotapes — Admissibility.

      Admission into evidence at criminal trials of photographs or videotapes is within the sound discretion of the trial judge.

    3. Criminal Law — Evidence — Videotapes — Judicial Discretion.

      A viewing by a trial court of a videotape prior to its admission into evidence in a criminal case in order to determine its probative value relative to its prejudicial effect is necessary for a proper exercise of discretion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

      Peter C. Payette, P.C., 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 was charged with taking possession and driving away a motor vehicle, contrary to MCL 750.413; MSA 28.645, and receiving or concealing stolen property of value in excess of $100, contrary to MCL 750.535; MSA 28.803. He was convicted of the former charge by a jury and sentenced to not less than 40 months nor more than 60 months in prison. Defendant now appeals as of right.

Defendant claims that the trial court committed an abuse of discretion by permitting the jury to view a videotape of defendant selling an automobile to an undercover storefront operation conducted by the United States Bureau of Alcohol, Tobacco, and Firearms. Defendant had objected to the admission of the tape in evidence because it included conversations mentioning other criminal transactions in which he might have been involved. The trial court admitted the tape without viewing it. Defendant says that since the trial court had not viewed the tape prior to ruling on its admission, it could not properly determine whether its contents were more probative than prejudicial.

The videotape of the defendant selling an automobile to the undercover storefront operation was very probative of defendant’s guilt of the charged offenses. While this evidence was prejudicial in the sense that any direct evidence linking a defendant to a crime is prejudicial, no claim is made on appeal that any unfair prejudice actually resulted from the showing of the tape to the jury. Moreover, the videotape was a recording of part of the res gestae. As such, it was not rendered inadmissible by the fact that it might have tended to show that defendant had been involved in other criminal transactions.

We find the trial court was not clearly erroneous in admitting the videotape in evidence.

Affirmed.

G. R. Deneweth, J., concurred.

T. M. Burns, P.J.

(dissenting). I dissent.

I don’t question the fact that the videotape was "relevant evidence” within the meaning of the applicable rule of evidence. MRE 401. That is, the evidence did have a tendency to make defendant’s complicity in the charged offenses either more probable or less probable than it would have been without the evidence. However, not all relevant evidence is admissible at trial. MRE 402.

In accordance with the provisions of MRE 403:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Although this rule of evidence did not take effect until March 1, 1978, it is consistent with prior Michigan law on this point. See, People v DerMartzex, 390 Mich 410, 415; 213 NW2d 97 (1973).

Defendant argued against the admission of the videotape into evidence on several grounds. He contended that the probative value of the tape was greatly outweighed by the prejudicial harm that it would create towards him, that it implicated him in other crimes that were irrelevant at his present trial, and that the evidence in it was merely cumulative and, thereby, not essential to the prosecutor’s case. Notwithstanding the prima facie validity of defendant’s argument that the videotape should have been excluded at trial, and the lower court’s admission that the tape probably was prejudicial to defendant, the lower court held it to be admissible apparently for the reason that defendant waived the issue of its admissibility by not raising it in a pre-trial Walker hearing;

"No, I think I am going to allow it in. I think it should be brought up at the Walker hearing. This is the way I interpret that. That is the reason I granted the Walker hearing at that time. * * * And, whatever the jury can have in a way of facts to make common sense —without greatly exciting the conscience of an individual, I think — and I, as long as I am a Circuit Judge, the jury is going to have the necessary tools to decide the facts of the case.”

Although the admission into evidence at criminal trials of photographs, wrhich are analogous to videotapes, is within the sound discretion of the trial judge, People v Nard, 78 Mich App 365; 260 NW2d 98 (1977), People v Ernest Green, 74 Mich App 351; 253 NW2d 763 (1977), I fail to see how a judge can properly exercise his discretion in this matter without viewing the evidence sought to be admitted. Much less can I understand how this Court can hold the videotape admissible because, like the trial judge, we did not view it to determine its probative value relative to its prejudicial effect. Further, to the extent that the majority affirms defendant’s conviction because "no claim is made on appeal that any unfair prejudice actually resulted from the showing of the tape to the jury”, I believe that the majority has misstated the test for admissibility under MRE 403. In view of this, I cannot concur in the conclusion of the majority that the trial judge did not clearly err in admitting the videotape into evidence.

        People v Castillo, 82 Mich App 476, 479-480; 266 NW2d 460 (1978).

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