author: R. B. Burns, J.

text:
    PEOPLE v CRAWFORD
    Docket No. 77-170.
    Submitted January 4, 1979, at Grand Rapids.—
    Decided March 19, 1979.
    Wendell Crawford was convicted of second-degree murder in the Cass Circuit Court, James E. Hoff, J. Defendant appeals. Held:

    1. The trial court did not err in ruling that the defendant’s confession was voluntarily made after a valid waiver of Miranda rights.
    2. The trial judge did not err in informing the jury, in answer to defendant’s objections concerning questions to a police officer about the defendant’s confession, that the matter was admissible and that it was the jury’s responsibility to determine the weight to be given to the confession.
    3. The failure of the trial court to instruct as to the disposition of the defendant if found not guilty by reason of insanity was not error since no request for such an instruction was made.
    4. The trial court gave a correct definition of legal insanity and an erroneous instruction for legal sanity.
    5. The erroneous instruction regarding legal sanity does not require reversal since there was no objection to the instruction at trial and no showing of manifest injustice.
    6. The trial court’s erroneous instruction on insanity could only come into play if defendant was mentally ill. Since the jury determined that defendant was not mentally ill the error was harmless.
    7. The trial court’s instructions on insanity and voluntary intoxication were adequate.
    8. The defendant does not have standing to attack the constitutionality of the statute defining legal insanity, since the jury determined that he was not legally insane nor mentally ill.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 582.

       29 Am Jur 2d, Evidence § 590.

       21 Am Jur 2d, Criminal Law § 45.

       21 Am Jur 2d, Criminal Law § 31.

       21 Am Jur 2d, Criminal Law § 53.

       5 Am Jur 2d, Appeal and Error § 891.

      Affirmed.
    , 1. Witnesses — Criminal Law — Confessions — Voluntariness — Walker Hearings — Totality of Circumstances.
    A Walker hearing is designed to determine the voluntariness of a defendant’s confession from the totality of the circumstances surrounding such confession.
    2. Witnesses — Criminal Law — Confessions — Voluntariness — Appeal and Error.
    The Court of Appeals, in reviewing a trial court’s determination regarding the voluntariness of a defendant’s confession, will affirm such determination unless it is left with a definite and firm conviction, after it examines the entire record and makes an independent determination of voluntariness, that the trial judge erred; deference will be given to the findings of the trial court where there is conflicting evidence and the determination of voluntariness depends on the witnesses at the hearing.
    3. Criminal Law — Punishment — Instructions — Insanity — POSTVERDICT STATUS.
    In all criminal trials where the defense of insanity is present and that issue is made submissible by the proofs, the defendant, upon his own timely request, or upon request of the jury, shall be entitled to an instruction as to the disposition of the defendant if found not guilty by reason of insanity; a failure to so instruct is not error where no such request is made.
    4. Criminal Law — Mental Health — Legal Insanity — Statutes.
    A mentally ill person may be legally insane when he lacks the substantial capacity to appreciate the wrongfulness of his conduct or lacks the ability to conform his conduct to the requirements of law (MCL 768.21a[l]; MSA 28.1044[1][1]).
    5. Appeal and Error — Criminal Law — Jury Instructions — Second-Degree Murder — Legal Sanity.
    A trial judge’s instruction to the jury, in a trial for second-degree murder, that a person is legally sane if, despite his mental illness, that person possesses substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law, was erroneous since an instruction defining legal sanity requires a showing that the mentally ill person possesses both the substantial capacity to appreciate the wrongfulness of his conduct and the ability to conform his conduct to the requirements of law.

      6. Appeal and Error — Criminal Law — Instructions to Jury — Failure to Object — Manifest Injustice.
    An erroneous instruction to a jury will not warrant reversal absent a showing of manifest injustice where there has been no objection made to the instruction at trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William T. Grimmer, Prosecuting Attorney, for the people.
    P. E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J. and R. B. Burns and M. J. Kelly, JJ.
   R. B. Burns, J.

Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549. He appeals and we affirm.

Evidence presented at trial indicates that defendant went to the home of his estranged wife and shot her with a rifle. The evidence included a tape-recorded confession given by defendant to the police. Defendant presented an insanity defense at trial.

Defendant argues that his confession was improperly admitted as evidence at trial. Prior to trial, a Walker hearing was held, at the conclusion of which the trial judge ruled that the confession was voluntarily made after a valid waiver of Miranda rights.

A Walker hearing is designed to determine the voluntariness of a defendant’s statement. Voluntariness is determined from the totality of the circumstances. When reviewing a trial court’s ruling, an appellate court will examine the entire record and reach an independent determination of voluntariness. However, absent a definite and firm conviction that the trial court erred, the decision will be affirmed. People v Sparks, 82 Mich App 44; 266 NW2d 661 (1978). An examination of the record does not convince us that the trial court erred.

Two police officers testified that they did not think the defendant was intoxicated, that he stated he understood his rights and that he would talk to the officers. He appeared alert and responsive.

A psychiatrist testified for the defense and he concluded that the defendant was incapable of asserting his rights at the time he spoke to the police.

In arriving at his decision the trial judge set forth two statements of law concerning the admissibility of an intoxicated person’s confession. The first was taken from 69 ALR2d 361, § 1, p 362.

"[P]roof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements, then the confession is inadmissible.” (Footnotes omitted.)

The second formulation of the rule is found at 23 CJS, Criminal Law, § 838, p 299.

"It is a rule of general application that a confession otherwise voluntary, is not to be excluded because accused was intoxicated at the time of making it, provided he had sufficient mental capacity to know what he was saying, since intoxication at the time of making a confession does not deprive the confession of the required spontaneity to make it free and voluntary. A substantial impairment of the will and mind must be shown before intoxication will render a confession inadmissible, and the rule is stated by some authorities to be that intoxication, less than mania, does not exclude a confession made during its continuance, but should the intoxication of the confessor produce actual mania, or render him unconscious of what he is saying, the confession will be inadmissible as a result thereof.” (Footnotes omitted.)

Finally the trial judge stated, "I find that defendant had developed a tremendous capacity and tolerance for alcohol that permitted him, with only brief rest, to function effectively and understand and comprehend the Miranda warnings given to him and that he did in fact make a knowing, intelligent, understanding and voluntary waiver of his right to remain silent and of his right to counsel and that his subsequent statement was given freely, willingly, understandingly and voluntarily”.

When there is conflicting evidence and the determination of voluntariness depends on the witnesses at the hearing, deference will be given to the findings of the trial court. There was sufficient evidence to substantiate the finding of the trial judge.

Next, defendant claims that the police officers knew that defendant was represented by an attorney in a divorce case, and therefore, the police officers should not have talked to him without notifying his attorney. Defendant claims that such conduct by the officers rendered the confession inadmissible.

People v Moore, 51 Mich App 48; 214 NW2d 548 (1974), holds contrary to defendant’s position.

Defendant also claims the trial judge erred when he informed the jury that the trial judge had determined that defendant’s statement was voluntary.

The record does not substantiate defendant’s contention. The trial judge, in answer to defendant’s objections concerning questions to a police officer about the confession, informed the jury that the matter was admissible and that it was the jury’s responsibility to determine the weight to be given to the confession. No error.

No request having been made, the failure of the trial court to instruct as to the disposition of defendant if found not guilty by reason of insanity was not error. People v Cole, 382 Mich 695; 172 NW2d 354 (1969).

The trial judge did err when he instructed the jury "A person is legally sane, if, despite his mental illness, that person possesses substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law”.

Legal insanity is defined in MCL 768.21a(1); MSA 28.1044(1)(1):

"A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

The people and defendant both agree that mental retardation was not an issue and consequently references to it were left out of the instructions.

The court gave a correct definition of legal insanity and then gave the erroneous instruction for legal sanity.

There are two ways in which a person who is mentally ill may be legally insane: (1) he may lack the "substantial capacity * * * to appreciate the wrongfulness of his conduct”, or (2) he may lack the ability "to conform his conduct to the requirements of law”.

However, when a court chooses to define legal sanity, instead of legal insanity, then the mentally ill person must be shown to possess both "substantial capacity * * * to appreciate the wrongfulness of his conduct” and the ability "to conform his conduct to the requirements of law”. Therefore, the trial judge’s instruction as to legal sanity was erroneous.

This erroneous instruction does not require reversal. Defendant did not object to the instruction. Where no objection to erroneous instructions is made at trial, this Court will not reverse absent a showing of manifest injustice. People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978). The evidence that defendant killed his wife was overwhelming. Also, before defendant could be found legally insane he had to have first been found mentally ill. MCL 768.21a(1); MSA 28.1044(1)(1). The trial court instructed the jury that if they found defendant was mentally ill, they could only return a verdict of guilty but mentally ill, not guilty by reason of insanity or not guilty. The trial court’s erroneous instruction on insanity could only come into play if defendant was mentally ill. Since the jury determined that defendant was not mentally ill, the error was harmless.

Defendant’s contention that the court erred by admitting testimony of a psychiatrist that defendant "did not have a disease of the mind that incapacitated him to the extent that it would not permit him to make a decision between right and wrong” is refuted by People v Livingston, 57 Mich App 726; 226 NW2d 704 (1975).

The trial court’s instructions on insanity and voluntary intoxication were adequate and in addition no objections were made by defendant.

The jury determined that defendant was not legally insane nor mentally ill, therefore, he does not have standing to attack the constitutionality of MCL 768.21a; MSA 28.1044(1).

Lastly, defendant claims that he should have a Tucker hearing. The trial judge has already conducted a hearing and defendant has been resentenced by a different judge.

Affirmed.

        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).

        United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972).


source: Caselaw Access Project

author: D. C. Riley, J.

license: Public Domain

text:
    BERLIN v SNYDER
    Docket No. 77-2005.
    Submitted October 4, 1978, at Detroit.
    Decided March 19, 1979.
    Leave to appeal applied for.
    Murray Berlin brought an action against his landlord, Esther Snyder, for damages for injuries he received when he was robbed by unknown assailants in the lobby of the building in which he lived. Defendant’s answer alleged contributory negligence and stated that the facts supporting that defense would subsequently be provided. No additional information on this issue was presented at pretrial and no evidence was presented on this issue at trial. The Wayne Circuit Court, Yale L. Kerby, J., refused to give one of plaintiffs requested jury instructions on the defendant’s liability for the actions of third persons, instead giving several standard jury instructions, and gave an instruction on contributory negligence. A judgment of no cause of action was entered, and plaintiff appeals. Held:

    1. The trial court’s refusal to give the requested instruction was not error where the standard jury instructions which were given sufficiently apprised the jury that the defendant could be found liable despite the fact that the harm resulted from the wrongful acts of third parties.
    2. The defendant, by failing to pursue the affirmative defense of contributory negligence by pleading, motion, pretrial statement or opening statement, waived the defense, and the trial court’s instruction on contributory negligence was therefore erroneous.
    Reversed and remanded.
    1. Appeal and Error — Instructions to Jury — Theories of Parties.
    A jury instruction must be considered in its entirety and if, on' balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury, the Court of Appeals will not find reversible error.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error § 893.

       75 Am Jur 2d, Trial §§ 576, 594.

       75 Am Jur 2d, Trial § 610.

       62 Am Jur 2d, Pretrial Conference §§ 37-40.

       57 Am Jur 2d, Negligence § 303.
    61 Am Jur 2d, Pleading §§ 158, 159.

      2. Trial — Instructions to Jury — Requests for Instructions.
    A trial judge is not obliged to give a jury instruction in the manner requested by a party so long as the jury is fully and properly apprised of the applicable law.
    3. Trial — Instructions to Jury — Standard Jury Instructions.
    Standard jury instructions must be given in civil proceedings if they are requested, accurate and applicable.
    4. Trial — Pretrial Summary — Manifest Injustice — Negligence — Contributory Negligence.
    A trial judge has the discretion to modify a pretrial summary at or before trial to prevent manifest injustice; however, mere allegations of manifest injustice do not necessarily operate to allow a defendant to raise an issue of contributory negligence after all the proofs are in.
    5. Pleading — Negligence — Defenses — Contributory Negligence — Waiver.
    A defendant who raises an affirmative defense of contributory negligence in a pleading that promises to furnish a factual basis after discovery is deemed to have waived that affirmative defense if his pretrial statement and the court’s pretrial summary are silent as to the defense.
    6. Negligence — Defenses — Contributory Negligence — Pleading — Trial — Instructions to Jury.
    An instruction to the jury which apparently informed the jury that, although the defendant offered no factual theory of contributory negligence by pleading, motion, pretrial statement or opening statement, and although the defendant presented no independent proofs on contributory negligence, the jury could infer from the plaintiffs own testimony that he was contributorily negligent was erroneous; an affirmative defense should not be allowed to be reserved to the point where a party has the option of claiming it even after all the proofs are in without complying with the rules of pleading and pretrial procedure; it cannot be assumed that the jury disregarded the court’s instructions.

      Karbel, Eiges, Rothstein & Karbel, for plaintiff.

      Harvey, Kruse & Western, P.C. (by James N. Martin), for defendant.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   D. C. Riley, J.

Plaintiff appeals a jury verdict of no cause of action following a six-day trial in which he claimed his landlord was liable for injuries he sustained when he was robbed by unknown assailants in the lobby of the building in which he lived. Specifically, plaintiff alleged that the cause of his injuries was defendant’s failure to provide and maintain a rear door that closed and locked properly. Defendant’s answer asserted contributory negligence as an affirmative defense, stating that the facts supporting that defense would be subsequently provided. It is conceded by the defendant that she did not offer any evidence on this issue at trial.

In plaintiff’s application for jury instructions he requested that the trial judge charge that "[t]he action or inaction of the defendant may be negligent if she realized or should have realized that her action or inaction involved an unreasonable risk of harm to her tenants, even through the criminal conduct of other persons”. The trial judge refused to give this instruction and, over objection, gave instead several Standard Jury Instructions concerning negligence. The court also instructed the jury on the defense of contributory negligence, over plaintiff’s objection. The trial judge found the general statement of contributory negligence contained in defendant’s answer to be sufficient and also found that there was sufficient evidence of contributory negligence at trial to support the giving of the charge.

In asserting that the trial court erred in refusing to give the first requested instruction, plaintiff does not argue that the instruction given by the judge was legally erroneous, but rather, claims that the charge was incomplete in that it did not inform the jury that, according to the rule in Michigan, defendant could be liable in negligence even though the harm suffered by the plaintiff was the result of criminal acts of third parties. Our review of the record does not support this claim of error.

A jury charge must be considered in its entirety and if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury, we will not find reversible error. Jones v Morgan, 58 Mich App 455, 465; 228 NW2d 419 (1975), lv den 394 Mich 775 (1975). A trial judge is not obliged to give a jury charge in the manner requested so long as the jury is fully and properly apprised of the applicable law. Coon v Williams, 4 Mich App 325, 338; 144 NW2d 821 (1966). Standard Jury Instructions must be given in civil proceedings if they are requested, accurate and applicable. GCR 1963, 516.6(2), Javis v Ypsilanti Board of Education, 393 Mich 689, 697; 227 NW2d 543 (1975), Poplawski v Huron Clinton Metropolitan Authority, 78 Mich App 644, 648; 260 NW2d 890 (1977), lv den 402 Mich 882; 262 NW2d 299 (1978).

Using the Standard Jury Instructions requested by defendant, the trial judge instructed the jury that "in connection with this occurrence” defendant was under a duty to use ordinary care for the safety of the plaintiff, and defined ordinary care as that which a reasonable, careful person would use under the circumstances of the case. The court further charged on the definitions of negligence and proximate cause, and also advised the jury of plaintiff’s burden of proof. Considering these instructions as a whole against the factual context of the present case, we are persuaded that they sufficiently apprised the jury that defendant could be liable despite the fact that the harm suffered by plaintiff resulted from the wrongful acts of third persons. The instant lawsuit arose out of a criminal attack on the plaintiff in the building in which he lived. His entire case was premised upon an allegation of negligent maintenance of an apartment building door. The jury was well aware of these factors when it received the court’s instructions that they could find defendant liable if she did not exercise ordinary care for the safety of the plaintiff.

Plaintiff urges us to consider the requested charge even more exigent in light of defense counsel’s affirmations to the jury during voir dire and closing argument that his client could not control crime and therefore should not be held responsible for the acts of third persons. We note, however, that plaintiff’s attorney had ample opportunity to object to these statements during trial but did not. We note, also, that he directly addressed the jury on this issue in his closing argument.

We find, therefore, that the court’s refusal to give the requested instruction was not error where the Standard Jury Instructions given by the court did apprise the jury of the substance of the proposed charge.

Plaintiffs second allegation of error regarding the trial court’s instruction on the defense of contributory negligence is two-fold: first, defendant’s answer did not plead sufficient facts in support of the defense; second, defendant’s failure to present evidence of contributory negligence at trial constituted a waiver of the defense.

This case was filed in October, 1974, and in December defendant filed her answer using pro forma language to preserve a potential affirmative defense of contributory negligence: "the particulars of which will be spelled out after the completion of discovery.” Defendant also appended the following language under her special and/or affirmative defenses:.

"Further, that the acts of a third person or third persons not parties hereto constituted an efficient intervening cause resulting in the injury complained of, and that none of the acts and/or omissions as alleged in the complaint heretofore filed, all of which have been specifically denied by this defendant, were or could have been in any part a proximate cause of the losses set forth by the plaintiff.”

Extensive discovery was undertaken, numerous depositions filed and batteries of interrogatories exchanged before the case was set for a pretrial conference on January 11, 1977, which the pretrial summary indicates actually took place on Tuesday, February 15, 1977. Ostensibly contributory negligence was not perceived by the defendant’s counsel to be a viable defense at the time of pretrial. Contributory negligence was never mentioned from the date of the filing of the original answer on December 30, 1974, until the instructions were taken up at the close of proofs on May 10, 1977. Admittedly, it is a very close question because the trial judge apparently allowed the injection of the issue as being within his discretionary power under GCR 1963, 118.3. The court ruled:

"Now, procedurally the Court would say that in the Complaint, or at least in the answer, rather, or in the affirmative defense, the Court does not recall which, which is really not material, there is a general statement of contributory negligence by Counsel, by Defense Counsel, and he suggests that he is going to elaborate on that. Well, the Court would say from the testimony offered, and the nature of the case, really elaboration was not necessary in this case. It did not bring about any surprise for the Plaintiff and, as a matter of fact; the testimony flowed very naturally from the witnesses as to what happened. Really the Complaint [sic] should be amended to conform with the proofs as they were produced by the witnesses and without objection.”

Apparently what the trial judge was saying was that although the defendant offered no factual theory of contributory negligence by pleading, motion, pretrial statement or opening statement, and although she presented no independent proofs on contributory negligence, the jury could infer from the plaintiff’s own testimony that he was contributorily negligent. Therefore the failure to plead by amendment, motion or otherwise was not critical. We do not agree. The proofs were closed. The posture of the litigated issues from the viewpoint of the jury involved a factual dispute as to whether or not the defendant was negligent and whether or not that negligence, if any, was the proximate cause of plaintiff’s damages. These were the issues described in the pretrial summary and, on the form requesting the outline of defendant’s claims and affirmative defenses, no affirmative defense was mentioned.

The trial court founded his ruling under the amended and supplemental pleadings rule, GCR 1963, 118.3.

However, in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 415, the authors’ comments describe two different situations and we do not believe that this situation fits in either one. The authors say:

"There may be problems in deciding whether an issue has been tried by implied consent. In many circumstances, the conduct of the parties in presenting evidence, cross-examination, rebuttal and argument will plainly show that they have recognized an unpleaded issue as being in the case. On the other hand, one party may offer evidence which his opponent recognizes as outside the pleadings but for tactical reasons does not object to it because he reasonably believes it to be of no consequence. Should his failure to object be construed as implied consent to trial of the issue if it subsequently develops to be a matter of consequence? If so, he has been deprived of any effective opportunity to defend against an unpleaded issue, but it may be argued this is simply the consequence of his failure to object to evidence on the issue in the first place. If objection had been made, the consequence of the unpleaded issue and whether to permit an amendment to allow it in the case would have been posed for decision under the second facet of this rule.”

We perceive this to mean that the authors believe the party requesting the amendment has a hill to climb. The petitioner has to satisfy the court that the objecting party is not being hurt and if the court allows the evidence it should decide whether or not to give additional time to the objecting party to meet the evidence. So the court’s comment that: "Really the Complaint [sic— should be answer] should be amended to conform with the proofs as they were produced by the witnesses and without objection”, is inapropos. We hold that this issue should have been decided within the framework of the pretrial rule, GCR 1963, 301, and not the amended and supplemental pleadings rule, supra. Rule 301 contemplates a narrowing of the issues and mandates a meaningful summary which should control the subsequent proceedings. The authors’ comments in 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 6, say:

"The primary goals of the pretrial conference are to facilitate the settlement of pending suits and to illuminate and narrow the issues, thereby to shorten trial proceedings.”

At 7-8:

"The court’s pretrial summary is an important document, which will control the future course of the trial insofar as it contains admissions or limitations of issues to be presented for trial.
"When the pretrial summary is received by counsel, it is imperative that it be studied closely so that the attention of the court may be called to any discrepancies and, if necessary, objections to the summary may be raised with the pretrial judge immediately.”

There is no question but that the trial judge has discretion to modify the pretrial summary at or before trial to prevent manifest injustice. Bednarsh v Winshall, 374 Mich 667; 133 NW2d 202 (1965). But it does not follow that the manifest injustice argument operates to allow defendant to raise an issue of contributory negligence after all the proofs are in.

A defendant who raises an affirmative defense of contributory negligence in a "boilerplate” pleading that promises to furnish a factual basis after discovery is deemed to have waived any such affirmative defense if his pretrial statement and the court’s pretrial summary are silent as to same.

The applicable portions of the defendant’s pretrial statements follow:

“1. Factual statement of plaintiff’s claims or defendant’s claims, including counter claims, cross claims and affirmative defenses. * * * This defendant denies any and all claims of negligence, and avers that the door, the door closer, and the lock all operated properly and did not malfunction.
"This defendant further avers that the acts of third persons, not parties hereto, constituted an efficient, intervening cause resulting in the injury complained of, and none of the acts and/or ommissions [sic] as alleged by the plaintiff, all of which have been denied, were or could have been in any part a proximate cause of the accident complained of.
"Defendant avers that unknown assailants attacked the plaintiff, and there is no knowledge or testimony as to how those individuals entered the building or when they entered.
"2. What, briefly, are the factual and legal issues TO BE LITIGATED?
"Liability; damages.
"Proximate cause.
"Intervening, superseding acts of unlawful conduct and criminal actions of third parties.”

The applicable portions of the plaintiff’s pretrial statement follow:

"1. Factual statement of plaintiff’s claims or defendnat’s claims, including counter claims, cross CLAIMS AND AFFIRMATIVE DEFENSES. * * *
"Defendant owned an apartment building at which plaintiff was a tenant. On January 24, 1974, after entering through the rear door of the apartment building and while walking down a hallway, plaintiff was robbed, beaten and stabbed by intruders who also had been able to enter through the rear door because the defendant was negligent in permitting use of and in failing to repair or replace a defective automatic door closer device and a defective door and lock. As a result of the stab wound, plaintiff went into shock and suffered a stroke and complications therefrom which have left him totally and permanently disabled.
"2. What, briefly, are the factual and legal issues TO BE LITIGATED?
"Negligence of defendant.”

Neither party called for amendment to the pleadings. Both parties left blank questions 3, 4, and 5 on the pretrial form which were:

"3. If pleadings are not satisfactory at this time, WHAT FORMAL AMENDMENTS WILL YOU REQUEST AT PRETRIAL?
"4. Why is such amendment necessary?
"5. Why was it not sought prior to pre-trial?”

We consider it significant that defendant did not list contributory negligence as an issue and that defendant contested the fact that the assailants entered the building through the door in question. It is likely that the defense considered it the better part of strategy not to be caught on the horns of a dilemma saying the assailants didn’t get in the back door, but if they did it was plaintiffs fault.

Further, we consider it significant that the thrust of defense counsel’s opening statement was to the effect that defendant could not be held responsible for the horrendous crime problem in the area; it was a disease of the times. No mention at all was made of any claim of contributory negligence.

It seems fundamentally unfair to allow an affirmative defense to be reserved to a point where a party has the option of claiming it, not only after investigation, discovery and pretrial, but after all the proofs are in without ever complying with the rules of pleadings and pretrial procedure. We cannot presume the jury disregarded the instruction.

Reversed and remanded for retrial consistent with this opinion.

No costs, neither party having prevailed in full.

       The question of whether a landlord is under a duty to protect tenants against foreseeable criminal activity of third persons within the area of a multiple dwelling was first addressed in Johnston v Harris, 387 Mich 569; 198 NW2d 409 (1972), where the Michigan Supreme Court adopted the view expressed in 2 Restatement Torts, 2d, § 302B, p 88.
      "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”
      The Johnston case was followed in Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975). The issue is not without debate. See Anno: Landlord’s obligation to protect tenant against criminal activities of third persons, 43 ALR3d 331.


author: Bronson, J. Bashara, P.J.,

text:
    PEOPLE v WEBB
    Docket No. 77-2052.
    Submitted June 5, 1978, at Detroit.
    Decided March 19, 1979.
    Leave to appeal applied for.
    Homer G. Webb was charged with the crime of breaking and entering an occupied dwelling. At the time of the offense, the defendant was 17 years old. Prior to trial the defendant was placed on probation and given youthful trainee status pursuant to the Holmes Youthful Trainee Act. Less than one year later, the probation department alleged that the defendant had violated the terms of probation and petitioned the court for an order terminating the defendant’s trainee status. The trial court granted the petition, revoked the defendant’s trainee status and reinstated the criminal case against him. No hearing was held prior to the revocation of the trainee status. Subsequently, the defendant was convicted, on his plea of guilty, of the crime charged, Wayne Circuit Court, William Leo Cahalan, J. The defendant appeals, raising the issue of whether his subsequent guilty plea waived his objection to the failure to hold a revocation hearing. Held:

    1. A hearing must be held before a defendant’s probation status under the Holmes Youthful Trainee Act can be revoked.
    2. The defect of failing to hold the hearing was totally irrelevant to the question of defendant’s factual guilt on the underlying charge to which the defendant pled guilty and was not a nonjurisdictional defect. The defect was not waived by the guilty plea and the defendant was free to challenge the defect.
    Reversed and remanded for a hearing on the revocation of the defendant’s trainee status.
    Bashara, P.J., dissented. He would hold that the defect was nonjurisdictional and was waived by the defendant’s plea of guilty. He would affirm.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.

       21 Am Jur 2d, Criminal Law §§ 484, 495.

       21 Am Jur 2d, Criminal Law § 495.

      Opinion op the Court
    1. Criminal Law — Probation — Holmes Youthful Trainee Act — Revocation of Probation — Hearings — Statutes.
    A hearing must be. held before a defendant’s probation status under the Holmes Youthful Trainee Act can be revoked (MCL 762.11 et seq.; MSA 28.853[11] et seq.).

    2. Criminal Law — Pleas of Guilty — Factual Guilt — Constitutional Defects — Waiver of Defects.
    A guilty plea is a reliable admission of factual guilt and removes from subsequent attack the issue of guilt and alleged constitutional defects concerning factual guilt; however, a guilty plea does not constitute a waiver for those constitutional defects which are irrelevant to a defendant’s factual guilt of the crime charged.
    3. Criminal Law — Holmes Youthful Trainee Act — Youthful Trainee Status — Hearings — Revocation of Trainee Status — Pleas of Guilty — Waiver of Defects — Statutes.
    A defendant, who has heen given youthful trainee status under the Holmes Youthful Trainee Act, has a constitutional right to a hearing prior to the termination of his trainee status and reinstatement of criminal charges against him; in the absence of a hearing, the criminal charges against him cannot be reinstated; therefore, where such a defendant has entered a plea of guilty to charges which were reinstated after the revocation of his youthful trainee status, the guilty plea does not preclude him from attacking the conviction based on the failure to afford him a hearing on the revocation of his trainee status (MCL 762.11 et seq.; MSA 28.853[11] et seq.).

    4. Criminal Law — Holmes Youthful Trainee Act — Youthful Trainee Status — Revocation of Trainee Status — Pleas of Guilty — Waiver of Defects — Statutes.
    The defect of failing to hold a hearing prior to the revocation of a defendant’s status as a youthful trainee under the Holmes Youthful Trainee Act is totally irrelevant to the question of the defendant’s guilt on the underlying charge which was reinstated upon the revocation of the defendant’s youthful trainee status and to which the defendant pled guilty; therefore, the defect is not waived by the guilty plea (MCL 762.11 et seq.; MSA 28.853[11] et seq.).

      Dissent by Bashara, P.J.
    5. Criminal Law — Holmes Youthful Trainee Act — Youthful Trainee Status — Revocation of Trainee Status — Guilty Pleas — Waiver of Defects — Statutes.

      The revocation of a defendant’s status as a youthful trainee under the Holmes Youthful Trainee Act is purely procedural and, as such, is clearly not jurisdictional; therefore, where a defendant entered a plea of guilty to a charge which was reinstated when his youthful trainee status was revoked, the defendant may not later challenge any defects in the revocation procedure because nonjurisdictional defects are waived by a guilty plea (MCL 762.11 et seq.; MSA 28.853[11] et seq.).

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

      Carl Ziemba, for defendant on appeal.
    Before: Bashara, P.J., and Bronson and C. W. Simon, Jr., JJ.

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

   Bronson, J.

Defendant pled guilty to the crime of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and was sentenced to a prison term of 4 to 15 years. He now appeals as of right.

Defendant was 17 years old at the time of the offense. Prior to trial, he was placed on two-years probation pursuant to the Holmes Youthful Trainee Act, MCL 762.11 et seq.; MSA 28.853(11) et seq. Less than one year later, the probation department alleged that defendant had violated the terms of his probation and petitioned the court for an order terminating defendant’s trainee status. The trial court granted the petition, revoked defendant’s trainee status and reinstated the criminal case against him. No hearing was held prior to the time defendant’s probation was revoked. Three months later, defendant pled guilty.

The prosecution rightfully concedes that before a defendant’s probation status under the Holmes Youthful Trainee Act can be revoked a hearing must be held. People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The sole question on appeal is whether defendant’s subsequent guilty plea waived his objection to the failure to hold the revocation hearing.

The question of what constitutional defects are waived by a guilty plea has undergone considerable revision in recent years. In Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973) , defendant sought to have his plea-based conviction overturned because he pled guilty to an indictment returned by an illegally constituted grand jury. The Supreme Court reaffirmed the traditional test set forth in the Brady trilogy and denied defendant relief stating that a guilty plea could only be attacked on the grounds that it was not voluntarily and intelligently made, thus precluding attacks based on constitutional defects not related to this issue.

The rather narrow test set forth in Tollett was broadened, however, in the case of Blackledge v Perry, 417 US 21; 94 S Ct 2098; 40 L Ed 2d 628 (1974) . In this case defendant challenged his plea-based conviction on the ground that the offense to which he pled guilty was barred by the double jeopardy clause. The Supreme Court reversed his conviction holding that a guilty plea did not waive defects which "went to the very power of the State to bring the defendant into court to answer the charge brought against him”. Blackledge at 20. Since a defendant could no more be brought into court on an invalid indictment (as in Tollett) than on an indictment barred by double jeopardy, the Court distinguished Tollett by stating the defect in that case could have been cured by a properly selected grand jury, while the constitutional defect in Blackledge was incurable.

The Blackledge incurable jurisdictional defect test, however, has not been the final word from the Supreme Court on this issue. In Menna v New York, 423 US 61; 96 S Ct 241; 46 L Ed 2d 195 (1975), the Supreme Court further expounded upon the meaning of Blackledge. The Court stated that a guilty plea was a reliable admission of factual guilt and removes this issue and alleged constitutional defects concerning factual guilt from subsequent attack. A guilty plea does not, however, constitute a waiver for those constitutional defects which are irrelevant to defendant’s factual guilt of the crime charged. Accord, Journigan v Duffy, 552 F2d 283 (CA 9, 1977).

Applying this test to the present case it would seem that defendant’s guilty plea did not preclude him from attacking his conviction based on the failure to afford him a revocation hearing. A defendant has a constitutional right to a hearing prior to the termination of his trainee status and in the absence of a hearing, the criminal case against him cannot be reinstated. See People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970). The purpose for the revocation hearing is to give the defendant notice of the charges against him and make a determination, based on reliable information, of whether he has committed a probation violation. See Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972). The hearing has nothing to do with determining defendant’s guilt on the underlying charge. Since the defect in failing to hold the hearing is totally irrelevant to the question of defendant’s factual guilt on the underlying charge to which he pled guilty, it was not waived by the guilty plea.

Defendant’s conviction is reversed, and the case is remanded to the trial court for a hearing on the revocation of defendant’s trainee status.

C. W. Simon, Jr., J., concurred.

Bashara, P.J.,

(dissenting). I respectfully dissent. The majority rationalizes its decision by analogizing a revocation of placement under the Holmes Youthful Trainee Act to a probation revocation hearing. I cannot agree.

The Holmes Youthful Trainee Act is a strict creation of the Legislature. It provides that the trial judge may, with the consent of a youth between the ages of 17 and 20, assign that person to the status of youthful offender. It further provides that the court may terminate the status at any time. The effect of such termination is simply to reinstate the criminal charges, with no information divulged pursuant to the Youthful Trainee Act to be considered as evidence. In other words, the defendant is placed in the same position as he was prior to trial.

A person deemed guilty of violating probation has already been found guilty of a principal crime. Probation violation assures a penalty. To the contrary, one whose youthful trainee status is revoked is clothed with every presumption of innocence.

There is nothing in the statute which appears to violate due process, nor does the majority question its constitutionality. The revocation of status as a youthful trainee is purely procedural and, as such, is clearly not jurisdictional. In the case at bar, the defendant pled guilty to the principal charge. People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976), mandates that a plea of guilty waives all nonjurisdictional defects.

People v Roberson, 22 Mich App 664; 177 NW2d 712 (1970), cited by the majority, can be distinguished. There, the defendant pled guilty and was then assigned under the Youthful Trainee Act. The revocation left defendant as having been found guilty, a fact not present in the instant case. A review of the other cases cited by the majority convinces me that they are not applicable to the matter at hand.

I would affirm defendant’s conviction.

        Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), Parker v North Carolina, 397 US 790; 90 S Ct 1458; 25 L Ed 2d 785 (1970).

       This same result could probably have been reached by using the Michigan Supreme Court’s decision in People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). However, since the Federal cases concisely show the progression of the law in this area and Alvin Johnson contains much dicta which is unnecessary to the decision of this case and which we feel no need to address at this time, it was not used as the basis for this decision.

       MCL 762.12; MSA 28.853 (12).

       MCL 762.11; MSA 28.853(11).


author: M. B. Breighner, J. Cynar, P.J.

text:
    PEOPLE v GOLOCHOWICZ
    Docket No. 77-2319.
    Submitted November 13, 1978, at Lansing.
    Decided March 19, 1979.
    Jerome J. Golochowicz was convicted in Oakland Circuit Court, Frederick C. Ziem, J., of first-degree murder. The case against defendant was circumstantial. The evidence tended to show that he was in possession of several items of personal property taken from the decedent’s home (site of the murder), that his fingerprints had been found in the decedent’s home, and that he had committed a subsequent murder. Defendant’s appeal as of right raises a single meritorious issue: did the trial court err in admitting evidence of the other murder under the similar acts statute? Held:

    Evidence that defendant had committed another murder was clearly material to a matter in issue and there was substantial evidence of its commission by the defendant. The circumstances surrounding the other alleged murder were sufficiently special and similar to the circumstances surrounding the charged murder to be probative of the identity of its perpetrator and the defendant disputed his identity as the murderer. The trial judge properly admitted testimony concerning the second murder. It was material, its probative value outweighed its prejudicial effect, and the record was sufficient to show that the judge exercised his discretion in ruling on the admissibility of this evidence as required by statute and case precedent.
    Affirmed.
    Cynar, P.J., concurred separately.
    Opinion of the Court
    1. Criminal Law — Evidence — Similar Acts — Probative Value — Prejudicial Effect — Judge’s Discretion — Appeal and Error.
    The Court of Appeals, in reviewing a trial court’s decision to allow evidence of similar bad acts, is required to determine three issues: (1) was the evidence material to a matter in issue; (2) did the trial court, balancing many factors, determine whether the prejudicial effect of the evidence would not substantially outweigh its probative value; and (3) did the trial court abuse its discretion in determining that the evidence was substantially more probative than prejudicial.

      References for Points in Headnotes

       29 Am Jur 2d, Evidence § 333.

       29 Am Jur 2d, Evidence § 320 et seq.

       29 Am Jur 2d, Evidence § 321.

      2. Criminal Law — Evidence — Similar Acts — Discretion.
    A trial court is not required to identify and indicate its exercise of discretion in determining whether evidence of similar bad acts is admissible.
    3. Criminal Law — Evidence — Similar Acts — Probative Value — Prejudicial Effect —■ Judge’s Discretion — Abuse.
    A trial judge did not abuse his discretion in allowing similar acts testimony into a trial where the record was sufficient to show that he exercised his discretion in determining the materiality of such evidence and that the probative value outweighed its prejudicial effect.
    4. Criminal Law — Evidence — Similar Acts — Admissibility — Judge’s Discretion — Statutes.
    Generally, evidence of other crimes is not admissible at trial because it precludes an objective assessment by the jury; however, the similar acts statute creates an exception to this general rule and where the statute is applicable, a trial judge, in the proper use of his discretion, may admit evidence of other similar acts or crimes.
    Concurrence by Cynar, P.J.
    5. Criminal Law — Evidence —■ Similar Acts —• Probative Value — Prejudicial Effect —• Judge’s Discretion.

      Evidence of other similar acts was properly admitted at trial where the evidence clearly falls within the similar acts statute, the probative value of the evidence outweighed its prejudicial effect and the record supports the conclusion that the trial judge recognized his discretion in ruling on the admissibility of the similar acts evidence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Michael J. Modelski, Assistant Prosecuting Attorney, for the people.

      Denison, Porter & Bartush, for defendant on appeal.
    Before: Cynar, P.J., and R. B. Burns and M. B. Breighner, JJ.

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

   M. B. Breighner, J.

Defendant was jury convicted of first-degree murder. MCL 750.316; MSA 28.548. The trial judge sentenced him to life imprisonment.

The case against defendant was circumstantial. The evidence against him tended to show that he was in possession of several items of personal property taken from the decedent’s home (site of the murder), that his fingerprints had been found in the decedent’s home, and that he had committed a subsequent and separate murder. The defense primarily attacked the credibility of testimony establishing these circumstantial facts. Defense counsel rested on the argument that the state had not shown beyond a reasonable doubt that defendant had committed the murder with which he was charged.

Defendant’s appeal as of right raises a single meritorious issue. Did the trial court err in allowing evidence of another murder under the "similar acts” statute, MCL 768.27; MSA 28.1050, as refined by the Supreme Court in People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976), and by this Court in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978)?

In reviewing a trial court’s decision to allow evidence of similar bad acts, Oliphant and Wilkins require us to determine three issues: (1) was the evidence material to a matter in issue; (2) did the trial court, balancing many factors, determine whether the prejudicial effect of the evidence would not substantially outweigh its probative value; and (3) did the trial court abuse its discretion in determining that the evidence was substantially more probative than prejudicial?

In the present case the evidence that defendant had committed another murder was clearly material to a matter in issue. There was substantial evidence of its commission by the defendant. The circumstances surrounding the other alleged murder were sufficiently special and similar to the circumstances surrounding the charged murder to be probative of the identity of its perpetrator. The defendant disputed his identity as the murderer. See also People v Wilkins, supra at 269; 266 NW2d at 786 (identity always in dispute).

It is not clear whether the trial court determined that the prejudicial effect of the evidence would not substantially outweigh its probative value.

In a closely analogous case, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), the Supreme Court has held that a trial court commits reversible error if it does not recognize that it has discretion to admit or preclude evidence of a witness’s prior convictions even if they are relevant and material to the issue of the defendant’s credibility as a witness. In People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), the Supreme Court ruled that "In order to comply with Jackson the trial court must positively indicate and identify its exercise of discretion”.

No reported appellate decision in this state has expressly applied the Cherry order to Oliphant In Oliphant itself, the Court did find that the trial judge had recognized that the similar acts statute is cast in permissive language and undertook to balance probative value against prejudicial impact. The Wilkins panel did not reach the issue of whether the trial court in fact had exercised its discretion under Oliphant. The trial court’s admission of evidence of other bad acts in that case was found to be erroneous because the evidence was immaterial under the Oliphant standards. In People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), three justices found that a trial judge had not abused his discretion in admitting evidence of other bad acts, noting that the trial judge had "carefully considered the matter”. Id. at 14; 260 NW2d at 61. Justice Williams concurred in the result. Justice Levin dissented. Citing People v Cherry, he argued that the record did not support the conclusion that the trial judge had carefully considered the matter.

We fail to discern a distinction between Oli phant and Jackson that reasonably would preclude us from applying the Cherry order to Oliphant. However, we believe it would be inexpedient for us to so extend Cherry in light of the Supreme Court’s opportunity and neglect to do so in Duncan. It would be especially inexpedient for us to extend Cherry in view of Justice Levin’s dissent in Duncan which suggested that a different result would have obtained in that case had Cherry been applicable. Thus, we do not hold that in order to comply with Oliphant a trial court must positively identify and indicate its exercise of discretion.

Nonetheless, it is still our duty to determine whether the trial judge in this case properly exercised his discretion under Oliphant. People v Jackson, supra.

The record reveals that there was extensive argument on the issue of admissibility. Mainly, the prosecutor and defense counsel debated whether the other murder would be probative of any of the statutorily authorized matters and whether the proof of its occurrence would be substantial. One point made by defense counsel did relate to the balancing prong of the Oliphant test. "The last thing”, he contended, "is that my client is standing trial for the [other murder], strictly on evidence produced in this trial by this witness about to take the stand. He has to go on May 18 and defend that all over again.” This intimates most strongly the possibility of confusion, unfairness and undue delay.

After hearing this debate the trial judge stated, "In view of the Oliphant case, it seems like almost anything is admissible”. He then pointed to several factors that made the state’s position in this case weaker than its position in Oliphant. The judge noted that there was less substantial evidence that the present defendant had committed the other bad act. In addition he pointed out that there was going to be a great deal of evidence in this case that the other murder was dissimilar to the one for which defendant was on trial. (There was going to be evidence that the cause of death was different.) Nonetheless, the trial judge concluded, "In view of the Statute, and in view of the People versus Oliphant, this Court’s opinion is that this testimony is permissible”.

Three aspects of this record are central to our determination of whether the trial judge complied with Oliphant.

First of all, the transcript does not reveal any formal recognition and exercise of discretion. Compare People v Strickland, 78 Mich App 40, 53; 259 NW2d 232, 238 (1977). However, the judge’s recognition of Oliphant as controlling authority is some indication that he knew of his duty to balance. Also, by concluding that the evidence was "permissible” the trial judge seemed to acknowledge that the similar acts statute is cast in permissive language. Cf., People v Burse, 62 Mich App 204, 211-212; 233 NW2d 232, 235-236 (1975) (applying Cherry).

Secondly, the tone of the ruling suggests that this trial judge would allow evidence of similar bad acts in almost all cases. Yet, in the Jackson-Cherry line of cases this Court has said, "[B]y allowing trial judges discretion in these matters, the Supreme Court must have accepted the fact that some judges would lean to allow impeachment in most cases, whereas others would usually prohibit it”. People v Strickland, supra.

Thirdly, there is no on-the-record balancing of the factors enumerated in Oliphant and Wilkins that weigh in the determination of probative value and prejudice. Moreover, the factors articulated by the court to distinguish this case from Oliphant were factors indicative of materiality only. This suggests that the trial judge was primarily concerned with the materiality prong of the Oliphant test. As related above, while there was extensive argument on the issue of admissibility, there was no extensive argument on the point of probative value versus prejudice. Compare People v Oliphant, supra at 493; 250 NW2d at 451. In this context, the court’s statement that nearly all things are admissible under Oliphant may be read as a statement that nearly anything is material under Oliphant. That of course only states half the test. On the other hand, this Court has held that even under the Cherry standard, a trial court need not make a record of its balancing. People v Strickland, supra. But see People v Florida, 61 Mich App 653, 665 fn 2; 233 NW2d 127, 134 fn 2 (1975). Also, as related above, defense counsel did make at least one point that related to the second part of the Oliphant test.

We find that this record is sufficient to show the trial judge exercised his discretion under Oliphant. While recognizing the highly inflammatory impact of testimony linking an accused murderer to another murder, we further hold that the trial court did not abuse its discretion in allowing the similar acts testimony in this case. See People v Duncan, supra at 14-15; 260 NW2d at 61.

For guidance in future trials, however, we note our disagreement with the trial court’s assertion that almost anything is admissible under Oliphant. Our Supreme Court has repeatedly announced as a general rule that evidence of other crimes is not admissible, because it precludes an objective assessment of the evidence by the jury. That is the norm. The similar acts statute creates an exception. People v Oliphant confines that exception. Most importantly, it emphasizes that such evidence may be excluded even if it is relevant and material. The Oliphant Court held that in determining admissibility a trial judge must balance many factors to determine whether the probative value of the evidence is outweighed by its prejudice. The matter remains discretionary with the trial court, but the presupposition is against admissibility.

Affirmed.

R. B. Burns, J., concurred.

Cynar, P.J.

(concurring). I agree that no reversible error occurred in this case. The evidence regarding the other murder clearly falls within the similar acts statute, MCL 768.27; MSA 28.1050, People v Oliphant, 399 Mich 472; 250 NW2d 443 (1976). Although the record is not as clear as it should be, I believe it sufficiently supports the conclusion that the trial judge recognized his discretion in ruling on the admissibility of the "similar acts” evidence. As the majority properly concludes, the probative value of this evidence outweighed its prejudicial effect. Therefore, the evidence was properly admitted at trial.

      A witness testified that he accompanied the defendant to a home on Muirland Street in Detroit. Inside he discovered a corpse. According to the witness he accompanied the defendant to the Muirland home to purchade a television defendant has offered to sell. They entered the home without a key. After discovering the body they removed several items of personal property including a television similar to the one defendant had offered to sell. The next day on the way to pawn some of the items taken from the house, defendant confessed to the Muirland Street murder and described how he accomplished it. Immediately thereafter he withdrew the confession. Compare People v Duncan, 402 Mich 1; 260 NW2d 58 (1977) with People v Roeder, 79 Mich App 595; 262 NW2d 872 (1977).

       Both victims were strangled with household items which were left on the necks of the victims. Neither residence showed signs of forced entry or disarray. Both killings occurred within a relatively short time, the principal one on or about October 29, the one on Muirland Street in Detroit on or about November 1. In both cases the defendant was shown to have taken or been in possession of personal property of the decedent. The victims were similar in that at the time of or shortly before their deaths they resided with male roommates. Compare People v Padgett, 306 Mich 545; 11 NW2d 235 (1943), with People v Kelly, 386 Mich 330; 192 NW2d 494 (1971).


author: R. M. Maher, J.

text:
    LEWIS v YELLOW FREIGHT SYSTEM, INC.
    Docket No. 77-2614.
    Submitted January 10, 1979, at Detroit.
    Decided March 19, 1979.
    Jimmy Lewis and five other employees of Yellow Freight System, Inc., were injured in separate accidents involving trucks they were operating or alighting from. All of their injuries were suffered in the course of their employment and the accidents were within the scope of the no-fault insurance act. The employees brought an action against Yellow Freight, as the self-insured owner of the vehicles involved, for personal protection benefits under the no-fault act. Alternatively, recovery was sought from Detroit Automobile Inter-Insurance Exchange, Allstate Insurance Company, and Aetna Casualty and Surety Company, the insurers of plaintiffs’ personal automobiles. The Wayne Circuit Court, Richard D. Dunn, J., granted summary judgment in favor of the defendants, and plaintiffs appeal. Held:

    1. The plaintiffs are not barred by the exclusive remedy provision of the workmen’s compensation law from recovery of no-fault benefits.
    2. Yellow Freight, as owner and self-insurer of the vehicles involved, must pay the plaintiffs personal protection benefits. It is entitled to deduct from those benefits any amount that it has paid in workmen’s compensation benefits as a self-insurer under the Worker’s Disability Compensation Act.
    Reversed and remanded.
    1. Automobiles — Insurance — Employees — Statutes — Legislative Intent.
    The legislative intent in the no-fault automobile insurance act was to allow an employee to sue the employer’s no-fault carrier in situations where the employee was injured while occupying a vehicle owned by the employer (MCL 500.3114[3]; MSA 24.13114[3]).
    References for Points in Headnotes

       New Topic Service Am Jur 2d, No-Fault Insurance § 18.

       New Topic Service Am Jur 2d, No-Fault Insurance § 22.

      2. Automobiles — Insurance — Self-Insurers — Personal Protection Benefits — Workmen’s Compensation.
    The liabilities of insurers and self-insurers under the no-fault automobile insurance act are coextensive; therefore, an employee who is entitled to recover personal protection benefits as the result of an injury received while occupying a vehicle owned by his employer is entitled to receive those benefits from the employer where the employer is a self-insurer, less any amounts the employer has paid in worker’s compensation benefits as a self-insurer under the Worker’s Disability Compensation Act.

      Peter R. Barbara & Associates, P.C. (by Peter R. Barbara and Frank G. Becker), for plaintiffs.

      Kerr, Wattles & Russell (by Patrick McLain), for Yellow Freight System, Inc.

      Selby, Dickinson, Pike, Mourad & Brandt, for Detroit Automobile Inter-Insurance Exchange.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C. (by James L. Borin), for Allstate Insurance Company.

      Collins & Einhorn, P.C., for Aetna Casualty & Surety Company.
    Before: Bronson, P.J., and R. M. Maher and J. T. Letts, JJ.

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

   R. M. Maher, J.

Plaintiffs bring this appeal as of right from the trial court’s order granting defendants’ motion for summary judgment.

The six named plaintiffs are all employees of defendant Yellow Freight System, Inc. Plaintiffs Lewis, Ammon, Judd and Stewart were injured in separate truck collisions in 1976. Plaintiffs Bianchi and Daugherty were injured while alighting from their trucks in 1975 and 1976 respectively. It is undisputed that all plaintiffs’ injuries were suffered in the course of their employment; nor is it disputed that plaintiffs’ accidents were within the scope of the no-fault insurance act. Plaintiffs brought this action to recover personal protection benefits under the no-fault auto insurance act from Yellow Freight as the self-insured pwner of the vehicles which plaintiffs were operating or from which they were alighting when injured. Alternatively, plaintiffs sought recovery of personal protection benefits from defendant insurance companies under policies of no-fault insurance covering plaintiffs’ personal automobiles.

On appeal, plaintiffs claim that they are entitled to personal protection benefits from either Yellow Freight or their own insurance companies. Yellow Freight reiterates its claim, successful in the trial court, that plaintiffs are barred from seeking personal protection benefits by the exclusive remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA 17.237(131). Defendant insurance companies argue that plaintiffs, if they are entitled to benefits at all, must seek such benefits from Yellow Freight under the priority provision of the no-fault act, MCL 500.3114; MSA 24.13114.

The issue of an employee’s right to recover personal protection benefits for injuries suffered in an auto accident occurring in the course of his employment has been raised in other cases, with varying success. In Mathis v Interstate Motor Freight System, 73 Mich App 602; 252 NW2d 842 (1977), a panel of this Court held in a brief per curiam opinion that worker’s compensation benefits were plaintiff’s exclusive remedy against his employer. In Hawkins v Auto-Owners Ins Co, 83 Mich App 225; 268 NW2d 534 (1978), Chief Judge Danhof, distinguishing Mathis, held that an employee was entitled to recover personal protection benefits from his employer’s no-fault insurance carrier, on grounds that MCL 418.131 barred recovery only from the employer, not from the employer’s insurer. Judge Kelly concurred in the result only, while Judge T. M. Burns concurred on different grounds.

Subsequently, in Ottenwess v Hawkeye Security Ins Co, 84 Mich App 292; 269 NW2d 570 (1978), two members of the Mathis panel expressly rejected Chief Judge Danhof’s reasoning in Hawkins, supra, and held that the liabilities of insurers and self-insurers under the no-fault act are coextensive. The Ottenwess panel based its conclusion on MCL 500.3101(4); MSA 24.13101(4), which provides that a self-insurer "has all the obligations and rights of an insurer” under the no-fault act. Noting that the no-fault insurer "must be considered the alter ego of the employer”, the Court held that the exclusive remedy provision of the Worker’s Disability Compensation Act barred recovery from the insurer as well as from the employer, Ottenwess, supra, 296.

Judge Allen agreed with the conclusion of the majority in Ottenwess that the liabilities of insurers and self-insurers under the no-fault act are coextensive. He disagreed, however, that the exclusive remedy provision barred recovery of personal protection benefits under no-fault. Citing the legislative history of the no-fault act and relying on "a common sense reading” of MCL 500.3114(3); MSA 24.13114(3), he concluded that "the Legislature intended to allow an employee to sue the employer’s no-fault carrier in situations where the employee was injured while occupying a vehicle owned by the employer”. Ottenwess, supra, 302 (dissent by Allen, J.).

We find the reasoning of Judge Allen’s dissent persuasive, and expressly adopt it. Accord, Hubert v Citizens Ins Co of America, 88 Mich App 710; 279 NW2d 48 (1979). Plaintiffs are entitled to personal protection benefits as authorized by the no-fault insurance act. Yellow Freight, as owner and self-insurer of the vehicles involved, is required to pay those benefits, MCL 500.3114; MSA 24.13114. We note that Yellow Freight is entitled to deduct from no-fault personal protection benefits any amounts it has paid in worker’s compensation benefits as self-insurer under the Worker’s Disability Compensation Act, O’Donnell v State Farm Mutual Automobile Ins Co, 404 Mich 524; 273 NW2d 829 (1979). Greene v State Farm Mutual Automobile Ins Co, 83 Mich App 505; 268 NW2d 703 (1978).

Because of our disposition of this issue, we do not reach the question of the liability of defendant insurance companies to pay benefits under policies issued to plaintiffs.

Reversed and remanded for proceedings consistent with this opinion. No costs, a public question being involved.

       That section provides:
      "The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer. As used in this section and section 827 'employee’ includes the person injured, his personal representatives and any other person to whom a claim accrues by reason of the injury to or death of the employee, and 'employer’ includes his insurer, a service agent to a self-insured employer, and the accident fund insofar as they furnish, or fail to furnish, safety inspections or safety advisory services incident to providing workmen’s compensation insurance or incident to a self-insured employer’s liability servicing contract.”

       Defendants rely on subsections (3) and (4), which provide:
      "(3) An employee, his spouse, or a relative of either domiciled in the same household, who suffers accidental bodily injury while an occupant of a motor vehicle owned or registered by the employer shall receive personal protection insurance benefits to which the employee is entitled from the insurer of the furnished vehicle.
      "(4) Except as provided in subsections (1) to (3), a person suffering accidental bodily injury while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
      "(a) The insurer of the owner or registrant of the vehicle occupied.
      "(b) The insurer of the operator of the vehicle occupied.”

       See also Arnold v Auto-Owners Ins Co, 84 Mich App 75; 269 NW2d 311 (1978), where Chief Judge Danhof, writing for the Court, reversed a summary judgment denying recovery of no-fault benefits to an employee injured while loading a truck, without discussing the exclusivity of remedies issue. The lower court had granted summary judgment on grounds that the injury did not arise out of the ownership, operation, maintenance or use of a motor vehicle.

         Judge Burns rested his opinion on the grounds that the exclusive remedies provision bars only those suits against insurance companies which are based on furnishing or failing to furnish safety services or inspections.

       The Court, however, held that Ottenwess was entitled to recover from the insurer of his own automobile.