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

text:
    SOUTHLAND CORPORATION v LIQUOR CONTROL COMMISSION
    Docket No. 78-4343.
    Submitted November 13, 1979, at Lansing.
    Decided February 20, 1980.
    Plaintiff, Southland Corporation, is in the business of establishing, operating and franchising a chain of convenience food stores. In states where it is permitted to do so, plaintiff also sells gasoline. Administrative rules promulgated by the defendant, Liquor Control Commission, originally prohibited merchants from selling both gasoline and liquor on the same premises. An amended rule allowed the sale of gasoline by merchants holding "specially designated merchants” (SDM) licenses, provided that the outlet store maintained an inventory of over $10,000 exclusive of alcohol inventory. The final form of the rules also prohibits the issuance of a SDM license to a merchant who sells gasoline unless the merchant’s store is located in a municipality with a population of 3,000 or less. Southland Corporation brought an action in Ingham Circuit Court against the Liquor Control Commission alleging that the rules had been improperly promulgated because provisions of the Administrative Procedures Act and the Open Meetings Act had not been complied with and that the rules were invalid because they discriminated against SDM licensees located in municipalities with population exceeding 3,000 and, therefore, were invalid as a violation of equal protection. The plaintiff sought a declaratory judgment holding the rules invalid and an injunction against their enforcement. Ingham Circuit Court, James T. Kallman, J., granted the defendant’s motion for summary judgment. The plaintiff appeals. Held:

    1. Summary judgment based on the plaintiff’s failure to state a claim upon which relief could be granted was improper as to count I. The plaintiff’s action was a challenge, under a provision of the Administrative Procedures Act, to the validity of the defendant’s administrative rules. Because the plaintiff sought to enjoin the defendant’s enforcement of the rules, the action was properly brought against the defendant. Also, the plaintiffs naming of the Liquor Control Commission as a defendant in the allegation of a violation of the Open Meetings Act was proper since any defect in the proceedings by the Joint Committee on Administrative Rules would invalidate the commission’s applicable administrative rules. Taking plaintiffs allegations as true, the plaintiffs claims were not so unenforceable that no factual development could possibly justify a right to recovery.

      References for Points in Headnotes
    [1] 61 Am Jur 2d, Pleading § 229.
    [2] 61 Am Jur 2d, Pleading §§ 231, 232.
    [3] 61 Am Jur 2d, Pleading § 233.
    [4] 61 Am Jur 2d, Pleading §§ 229, 230, 231.

      2. Summary judgment on count II was improper. The fact that the plaintiff has the burden of meeting a strict standard in attempting to establish that it has been denied equal protection of the law does not justify summary judgment based on the plaintiffs pleadings.
    3. Plaintiffs request for summary judgment, asked for in its answer to the defendant’s motion for summary judgment, was properly denied. A court rule provides that a trial court may render summary judgment for an opposing party without a motion therefor; however, this provision relates only to motions for summary judgment where there is no genuine issue as to any material fact. It is inapplicable to the instant case where the defendant’s motion for summary judgment alleged that the plaintiff had failed to state a claim upon which relief could be granted.
    4. There is no evidence in the record suggesting that the plaintiff sought an administrative ruling prior to filing an action for declaratory relief in circuit court. If so, the circuit court has no jurisdiction over that portion of the plaintiff’s claim which is covered by the declaratory judgment provision of the Administrative Procedures Act. However, dismissal of the plaintiffs claim under the Administrative Procedures Act would not affect that portion of the plaintiffs complaint concerning violation of equal protection of the laws or that portion seeking a declaratory judgment for the alleged violation of the Open Meetings Act.
    Reversed and remanded.
    1. Motions — Summary Judgment — Assumption of Truth — Court Rules.
    A motion for summary judgment on the ground that the opposing party has failed to state a claim upon which relief can be granted tests the legal sufficiency of a claim as determined from the pleadings alone; for the purposes of such a motion, both at the trial and appellate levels, every well-pled allegation in the complaint is assumed to be true (GCR 1963, 117.2[1]).
    2. Motions — Summary Judgment — Tests — Court Rules.
    The test for a motion for summary judgment on the ground that the opposing party has failed to state a claim upon which relief can be granted is whether the plaintiff’s claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery (GCR 1963, 117.2[1]).
    3. Judgment — Summary Judgment — Denial of Equal Protection — Failure to State Claim.
    The fact that a plaintiff has the burden of meeting a strict standard in attempting to establish that it has been denied equal protection of the law does not justify summary judgment in favor of the defendant based on the plaintiff’s failure to state a claim upon which relief can be granted.
    4. Judgment — Summary Judgment — No Issue of Material Fact — Failure to State Claim — Court Rules.
    A procedure whereby a trial judge may render summary judgment in favor of a party opposing another party’s motion for summary judgment, without the opposing party filing a motion for summary judgment, relates only to motions for summary judgment alleging that there is no issue as to any material fact and is inapplicable where the motion for summary judgment alleges that the opposing party has failed to state a claim upon which relief can be granted (GCR 1963, 117.2[1], [3]).
    5. Administrative Law — Circuit Courts — Jurisdiction — Declaratory Judgment — Exhaustion of Administrative Remedies — Statutes.
    An action in circuit court against an administrative agency may not be commenced unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously; circuit court jurisdiction to hear declaratory judgment actions against administrative agencies is dependent upon the exhaustion of administrative remedies (MCL 24.264; MSA 3.560[164])'.

      Meyer & Kirk (by George H. Meyer and Ralph R. Salford), for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and A. C. Stoddard
      and Richard I. Rubin, Assistants Attorney General, for defendant.
    Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

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

   T. M. Burns, P.J.

Plaintiff appeals of right an October 4, 1978, lower court order granting summary judgment in favor of defendant. We reverse.

Plaintiff is in the business of establishing, operating and franchising a chain of convenience food stores. In states that permit it to do so, plaintiff sells gasoline to motorists. On March 14, 1978, administrative rules promulgated by the defendant Liquor Control Commission became effective. Although the prior rules of the defendant agency had prohibited merchants from selling both gasoline and liquor on the same premises, the new rules allowed the sale of gasoline by merchants holding a "specially designated merchants” (SDM) license, provided that the outlet store maintained an inventory of over $10,000 exclusive of alcohol inventory. On June 22, 1978, the rules were again amended. In their final form, the administrative rules prohibit the issuance of a SDM license to a merchant who sells gasoline unless the merchant’s store is located in a municipality with a population of 3,000 or less.

On June 16, 1978, plaintiff filed a two count complaint in Ingham County Circuit Court alleging that the promulgation of the amended rules violated the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., the Open Meetings Act, MCL 15.261 et seq.; MSA 4.1800(11) et seq., and Rule 28 of the Standing Rules of the House of Representatives.

Specifically, plaintiff complained that the vote of the joint committee to approve the amended rules did not occur in the presence of a quorum of the committee; that some of the members’ votes were counted although they were not present at the meeting; that some of the members’ votes were counted although they had not heard or considered all of the public testimony on the proposed rules; that the chairman of the committee, a member of the Senate, voted in favor of the amended rules for absent committee members of the House and Senate; and that two committee members voted to approve the rules conditionally, yet their votes were counted as unconditional approval of the amendments.

In count II of its complaint, plaintiff alleged that the amended rules were invalid because they discriminate against SDM licensees located in municipalities with populations exceeding 3,000 and that the amended rules were invalid under the equal protection clauses of both the United States and the Michigan Constitutions. Plaintiff sought a declaratory judgment holding the rules invalid and an injunction against their enforcement.

Subsequently, defendant filed a motion for summary judgment and in an opinion dated August 15, 1978, the lower court granted defendant’s motion. The lower court found that the classification established by the amended rules had a rational basis and did not violate equal protection and that there was no evidence that the amended rules were improperly promulgated. Plaintiff now appeals.

Defendant brought its motion for summary judgment under GCR 1963, 117.2(1) alleging that plaintiff had failed to state a claim upon which relief could be granted. In Stewart v Troutt, 73 Mich App 378, 383-384; 251 NW2d 594 (1977), this Court stated the test for the granting of a motion brought under this subsection of the court rule:

"A motion for summary judgment brought under GCR 1963, 117.2(1), merely tests the legal sufficiency of the claim as determined from the pleadings alone. * * * For the purposes of that motion, both at the trial and appellate levels, every well-pled allegation in the complaint is assumed to be true. * * * The test is whether the plaintiffs claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify the right to recovery.”

Defendant argues that no claim was stated by-plaintiff because plaintiff’s complaint alleges wrongdoing by the Legislature’s Joint Committee on Administrative Rules and not the Liquor Control Commission. However, it is clear that plaintiff’s action is a challenge to the validity of defendant’s administrative rules under § 64 of the Administrative Procedures Act. MCL 24.264; MSA 3.560(164). Because plaintiff seeks to enjoin defendant’s enforcement of the rules the action was brought properly against defendant.

We also hold that plaintiff did not err in naming defendant as a party in its action under the Open Meetings Act. The legislative joint committee is not a necessary party under GCR 1963, 205, and any defect in the committee proceeding would invalidate defendant’s applicable administrative rules.

Taking plaintiff’s allegations as true, we hold that plaintiff’s claim is not so clearly unenforceable that no factual development could possibly justify a right to recovery. Section 45 of the Administrative Procedures Act, MCL 24.245; MSA 3.560(145), requires that proposed administrative rules be approved by the Joint Committee on Administrative Rules. Section 35 of the act, MCL 24.235; MSA 3.560(135), requires that proposed committee action be pursuant to concurring majorities of the members of each house.

Plaintiff alleged in its complaint that the committee vote did not occur in the presence of a quorum of the committee; that some of the members’ votes were counted although they were not present at the meeting; that some of the members’ votes were cast although they had not heard or considered all of the public testimony on the proposed rule amendments; that the chairman of the committee, a member of the Senate, cast votes in favor of the amendments in place of absent members of the committee; and that two members voted to approve the rules only conditionally. Factual development of these claims at trial might well demonstrate that concurring majorities favoring the amended rules did not exist.

Plaintiff also claims that the committee violated § 3 of the Open Meetings Act, MCL 15.263; MSA 4.1800[13] in that certain members’ votes were counted, although those members were neither present for the open meeting deliberations of the committee nor present when the final vote was taken on the rules. These allegations are sufficient to avoid summary judgment for failure to state a claim and, if proven, would show that the rules were not properly promulgated.

We also hold that the lower court erred in granting summary judgment on count II of plaintiff’s complaint. The fact that plaintiff has the burden of meeting a strict standard in attempting to establish that it has been denied equal protection of the law does not justify summary judgment on plaintiff’s pleadings. Plaintiff is entitled to its day in court unless no factual development could possibly justify a right to recovery. Factual development of plaintiffs case on this count may demonstrate that the classifications in the amended rules are unreasonable and without a rational basis. If so, they would be unconstitutional. Anderson v Detroit, 54 Mich App 496, 499; 221 NW2d 168 (1974).

Plaintiff also argues on appeal that the lower court erred when it failed to grant plaintiff summary judgment. Plaintiff requested this relief in its answer to defendant’s motion for summary judgment. GCR 1963, 117.2(3) provides that a trial judge may render summary judgment for an opposing party without a motion therefor. However, this provision in the court rule relates only to motions for summary judgment where there is no genuine issue as to any material fact. There is no comparable provision for subsection 117.2(1) of the court rule. Thus, we find that plaintiff was not entitled to such relief.

In light of the fact that we are remanding this case for trial, we raise one issue not addressed by the parties in their briefs. We perceive that the lower court may have lacked jurisdiction to adjudicate plaintiffs claim for declaratory relief under the Administrative Procedures Act. Section 64 of the act, MCL 24.264; MSA 3.560(164), states, in pertinent part:

"An action for declaratory judgment may not be commenced under this section unless the plaintiff has first requested the agency for a declaratory ruling and the agency has denied the request or failed to act upon it expeditiously.”

In International Business Machines Corp v Dep’t of Treasury, 75 Mich App 604; 255 NW2d 702 (1977), lv den 401 Mich 816 (1977), this Court held that circuit court jurisdiction under § 64 of the Administrative Procedures Act was dependent upon exhaustion of administrative remedies. We find no evidence in the record suggesting that plaintiff sought an administrative ruling prior to filing this action in circuit court. If so, the circuit court has no jurisdiction over plaintiff’s claim under the Administrative Procedures Act. Of course, dismissal of this portion of plaintiff’s complaint would in no way affect that portion of plaintiff’s complaint concerning violation of equal protection of the laws or that portion seeking declaratory judgment under GCR 1963, 521 for the alleged violation of the Open Meeting Act.

Reversed and remanded.


source: Caselaw Access Project

author: Bashara, J.

license: Public Domain

text:
    FREEMAN v MEIJER, INC
    Docket No. 78-5183.
    Submitted December 13, 1979, at Lansing.
    Decided February 20, 1980.
    Beatrice Freeman brought an action on behalf of herself and Kimberly Freeman in District Court against Meijer, Inc. (Meijer), for unlawful arrest, false imprisonment and assault and battery as a result of being arrested by Meijer’s employees when they tried to depart from defendant’s self-service store. This resulted in a jury verdict of no cause of action. Plaintiffs appealed to the Washtenaw Circuit Court, which affirmed, Ross W. Campbell, J. Plaintiffs appeal by leave granted. Held:

    1. The elements of larceny in a building are 1) an actual or constructive taking of goods or property, 2) a carrying away or asportation, 3) the carrying away must be with a felonious intent, 4) the subject matter must be the goods or personal property of another, 5) the taking must be without the consent and against the will of the owners, and 6) the taking must be done within the confines of the building. Asportation with criminal intent as an element of larceny must be shown by some conduct which demonstrates possession by the defendant adverse to the store. In a self-service store, the mere taking up of goods in the sales area does not constitute asportation with felonious intent, and concealment is not the only conduct demonstrating asportation with felonious intent. The acts of removing the price tags from jackets and attempting to soil the ' jackets coupled with movement of the jackets constitutes sufficient evidence of asportation with felonious intent. There was evidence sufficient for the jury to believe that plaintiffs had committed a felony, justifying their arrest by Meijer’s employees.

      References for Points in Headnotes
    [1] 50 Am Jur 2d, Larceny § 9.
    [2] 50 Am Jur 2d, Larceny §§ 50, 143.
    Changing of price tags by patron in self-service store as criminal offense. 60 ALR3d 1293.
    What conduct amounts to overt act or acts done toward commission of larceny so as to sustain charge of attempt to commit larceny. 76 ALR3d 842.
    [3] 61 Am Jur 2d, Pleading §§ 15, 17, 174 et seq.

    [4] 5 Am Jur 2d, Appeal and Error § 810.
    22 Am Jur 2d, Damages § 345.

      2. Defendant is not bound to its pleading of a conclusion of law, i.e., that plaintiffs had committed attempted larceny, a misdemeanor, and the trial court did not err in ordering an amendment of the pleading to conform to the facts proven. A pleading party is only ’bound to facts pled.
    3. A plaintiff must establish a claim for relief before an alleged error by the trial judge regarding damages may be a cause for reversal on appeal.
    Affirmed.
    1. Larceny — Elements op Larceny in a Building.
    The elements of larceny in a building are 1) an actual or constructive taking of goods or property, 2) a carrying away or asportation, 3) the carrying away must be with a felonious intent, 4) the subject matter must be the goods or personal property of another, 5) the taking must be without the consent and against the will of the owner, and 6) the taking must be done within the confines of the building.
    2. Larceny — Asportation with Felonious Intent — Evidence.
    Asportation with criminal intent as an element of larceny must be shown by some conduct which demonstrates possession by the defendant adverse to the store; in a self-service store, the mere taking up of goods in the sales area does not constitute asportation with felonious intent, but concealment is not the only conduct demonstrating asportation with felonious intent; the acts of removing the price tags from jackets and attempting to soil the jackets coupled with movement of the jackets constitutes sufficient evidence of asportation with felonious intent.
    3. Pleading — Court Rules — Admissions.
    The court rule allowing facts pleaded by a party to be considered by an opposing party as admissions does not operate to bind a party to its pleadings of conclusions of law (GCR 1963, 604).
    4. Appeal and Error — Instructions to Jury — Damages.
    A plaintiff must establish a claim for relief before an alleged error by the trial judge regarding damages may be a cause for reversal on appeal.

      Burgoyne & Pratt, for plaintiff.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by Alfred J. Alteri), for defendant.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   Bashara, J.

Plaintiffs, Beatrice and Kimberly Freeman, appeal by leave granted from a decision of the circuit court affirming a district court verdict of no cause of action in favor of defendant, Meijer, Incorporated. Plaintiffs’ action for unlawful arrest, false imprisonment and assault and battery resulted when plaintiffs were arrested by defendant’s employees as they attempted to depart from defendant’s self-service store.

Defendant’s employees, being private citizens, have the power to arrest only when a felony has been committed. MCL 764.16; MSA 28.875. Larceny in a building is a felony. MCL 750.360; MSA 28.592.

Plaintiffs sought a directed verdict on the grounds that there was insufficient evidence to support a finding of larceny in a building. They contended that no criminal acts had been performed or, alternatively, that the evidence only established a misdemeanor of attempted larceny. MCL 750.92; MSA 28.287. The trial judge denied the motion. When charging the jury, the court instructed that they could only find for defendant if it was determined that larceny in a building had been committed. The jury returned a verdict of no cause of action. Plaintiffs’ motion for a judgment notwithstanding the verdict was denied.

Plaintiffs first contend that the trial judge erred in denying their motions for a directed verdict and judgment notwithstanding the verdict. This requires us to determine if there was sufficient evidence, when viewed in a light most favorable to defendant, to support a finding of larceny in a building.

The record reveals that on June 5, 1973, plaintiffs, mother and daughter, were shopping at defendant’s store. They stopped to try on some nylon jackets. Mrs. Freeman was observed by a security guard removing a price tag from one of the jackets and dropping it on the floor. The jackets were then placed in a shopping cart and taken to another department. The plaintiffs donned the jackets a second time and were seen rubbing the collars of the jackets on the back of their necks. Plaintiffs became aware of surveillance by store security personnel and again moved to another department where they left the jackets. A third jacket was taken to the check-out counter, but was not purchased after the cashier called for a price check on the jacket. When plaintiffs attempted to leave the store, they were arrested by store security personnel.

The essential elements of larceny in a building were set forth in People v Wilbourne, 44 Mich App 376, 378; 205 NW2d 250 (1973), as follows:

"(1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or the personal property of another, (5) the taking must be without the consent and against the will of the owner, * * * [and] (6) the taking must be done within the confines of the building.”

The elements of asportation and felonious intent are disputed in the present case. In a self-service store, the mere taking up of goods in the sales area does not constitute asportation with felonious intent. Durphy v United States, 235 A2d 326 (DC App, 1967). There must be some conduct by the customer which makes his possession clearly adverse to the store. Id. An asportation with criminal intent may be found where goods have been concealed. People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943). Plaintiffs argue that larceny in a building in a self-service store cannot occur without concealment. We disagree.

Concealment is merely one way of expressing criminal intent. As soon as criminal intent is present, the slightest movement of goods within a self-service store constitutes asportation and the crime is complete. A later abandonment of the attempt to remove the goods from the store is no defense. People v Patricia Williams, 63 Mich App 531; 234 NW2d 689 (1975).

We find that the acts of removing the price tags from the jackets and attempting to soil the jackets provide sufficient evidence to find a felonious intent. Thereafter, the movement of the goods provided the asportation which completed the crime of larceny in a building.

Plaintiffs next contend that a directed verdict should have been granted because defendant was bound by statements contained in its pleadings, interrogatories and pretrial statements, that it had arrested plaintiffs for attempted larceny, a misdemeanor.

Plaintiffs rely on GCR 1963, 604, incorporated into the District Court Rules by DCR 601, which provides:

"Any statement of fact set forth in any pleading shall be treated as an admission by the pleader and need not be proved by the opposite party.”

We find plaintiffs’ reliance on GCR 604 is misplaced because the court rule refers only to admissions of fact. Whether a series of acts amounts to larceny in a building or attempted larceny is a conclusion of law. Certainly, the court is not bound as to a party’s characterization of an offense. People v Taylor, 96 Mich 576; 56 NW 27 (1893).

Moreover, the plaintiff was not prejudiced by the trial judge allowing the defendant to argue that larceny in a building had occurred. The pretrial statement was not incorporated into the pretrial summary. See Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976).

The transcript of the pretrial conference reveals that the threshold question to be resolved at trial was the classification of plaintiffs’ acts as either a felony or misdemeanor. The pretrial conference occurred more than four months prior to trial. We conclude that the trial judge did not err by denying the motion for a directed verdict.

Plaintiffs maintain that, notwithstanding the issue of whether defendant was bound by its pleadings, the circuit court erred by ordering defendant’s pleadings amended. The record indicates that while defendant was given an opportunity to amend its pleadings by the trial judge, it failed to do so.

The power of the circuit court to order the pleadings amended is expressly found in MCL 600.2311; MSA 27A.2311, which provides in part:

"Sec. 2311. After judgment rendered in any cause, any defect or imperfections in matter or form, contained in the record, pleadings, proless, entries, returns, or other proceedings, may be rectified and amended by the court in affirmance of the judgment, so that such judgment shall not be reversed or annulled * * (Emphasis added.)

This section reflects the intention of the Legislature that the technical forms of pleadings should not obstruct the ends of justice. See also GCR 1963, 118.3. We conclude that plaintiffs’ argument is without merit.

Plaintiffs’ final allegation of error is that the trial judge should not have instructed the jury-regarding the limitation of damages statute, MCL 600.2917; MSA 27A.2917.

Plaintiffs must first establish a claim for relief before any possible error relating to this statute could cause reversal. As the jury returned a verdict of no cause of action, the argument is without foundation.

Affirmed, costs to appellee.

       In Berlin v Snyder, 89 Mich App 38; 279 NW2d 322 (1979), this Court, quoting 2 Honigman and Hawkins, Michigan Court Rules Annotated, (2d ed) pp 7-8, stated, "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.”


author: D. S. DeWitt, J.

text:
    REGENTS OF THE UNIVERSITY OF MICHIGAN v MICHIGAN EMPLOYMENT RELATIONS COMMISSION
    Docket No. 78-5478.
    Submitted October 15, 1979, at Detroit.
    Decided February 20, 1980.
    Leave to appeal applied for.
    The Organizing Committee for Clericals, a committee attempting to organize clerical workers at the University of Michigan, posted a notice that a clerical union meeting would be held in a room designated for exclusive use as a lounge for staff members of the business school. University officials, upon becoming aware of the proposed use of that room by the committee, informed the committee that they could not use that room for a meeting, since the use of that room for any meeting was prohibited so as to provide a place of relaxation for business school staff members. The committee filed charges with the Michigan Employment Relations Commission alleging that the university infringed upon the rights guaranteed by the Public Employees Relation Act. The commission, contrary to the recommendation of the administrative law judge, found that the University had infringed upon the employees’ rights and ordered the university to cease and desist from prohibiting the use of the staff lounge for union activity purposes. The university seeks review, pursuant to statute, of that finding and order. Held:

    1. The Employment Relations Commission erred as a matter of law by failing to recognize the critical distinction between a union "meeting” and union "solicitation”. The university’s refusal to permit a union meeting in a room specifically designated for the use of staff members during off duty periods and in which no meetings of any kind were knowingly permitted did not infringe upon the solicitation rights of the union. Since other space was available for a union meeting, the university’s refusal to permit the union meeting in the staff lounge did not constitute an unfair labor practice.
    2. Findings of fact by the Employment Relations Committee are binding on the Court of Appeals if supported by competent, material and substantial evidence in the record when considered as a whole. The Court of Appeals is not bound, however, by findings of fact made by the commission when such evidentiary support is not found in the record.

      References for Points in Headnotes
    [1] 48 Am Jur 2d, Labor and Labor Relations § 887.
    48A Am Jur 2d, Labor and Labor Relations § 1570.
    [2] 48A Am Jur 2d, Labor and Labor Relations § 1761.

      Affirmed.
    1. Labor Relations — Public Employees — Union Meetings — Use of Employer’s Property — Employer Interference — Statutes.
    It is an error of law for the Michigan Employment Relations Commission to hold that a state university employer infringed upon the organizational rights of the university employees where the university prohibited the use of a room designated as a private employee lounge for the purpose of a union meeting, since there is a critical distinction between a union "meeting” and union "solicitation” (MCL 423.210[a]-[b]; MSA 17.455[10][a]-[b])-
    2. Labor Relations — Employment Relations Commission — Findings of Fact — Appeal and Error.
    Findings of fact made by the Michigan Employment Relations Commission which are not supported by competent, material and substantial evidence in the record when considered as a whole are not binding upon the Court of Appeals.

      Butzel, Long, Gust, Klein & VanZile (by Robert M. Vercruysse and Virginia Metz) (William P. Lemmer, of counsel), for the Regents of the University of Michigan.

      Donald B. Greenspon, for the Organizing Committee for Clericals.
    Before: M. F. Cavanagh, P.J., and M. J. Kelly and D. S. DeWitt, JJ.

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

   D. S. DeWitt, J.

The Regents of the University of Michigan (hereinafter University) appeal from an order of the Michigan Employment Relations Commission (MERC) finding the University in violation of § 10.1(a) and (b) of the Public Employee Relations Act (PERA), MCL 423,210; MSA 17.455(10), contrary to the recommendation of the administrative law judge, who had advised MERC that the charges against the University should be dismissed. The University filed a motion for reconsideration, which was denied, and subsequently took this appeal as of right pursuant to MCL 423.216(e); MSA 17.455(16)(e).

The Organizing Committee for Clericals (hereinafter OCC), a committee attempting to organize University clerical workers, charged that on October 11, 1977, the University, acting through administrative assistant Karen Carrier, cancelled a union organizing meeting which had been scheduled for the noon hour that day in Room 816 of the University’s Business Administration Building.

Since 1973, Room 816 has been designated exclusively as a staff lounge for the use of all business school staff members, consisting of approximately 50 clerical workers, supervisors and professional and administrative employees. The lounge is a private room reserved exclusively for use by employees of the Business Administration Building. People other than business school staff members are permitted in the staff lounge only as invited guests of staff members. The evidence was uncontroverted that this rule had been enforced prior to October 11, 1977.

The staff lounge is a small room and was described as having a capacity of approximately 20 to 25 people. The room contains two couches, a table, and at least four chairs and is designated by the University as a place where the business school staff may rest and relax away from work. For example, during the lunch period, staff employees talk, read books, knit or crochet, play cards, and the like. During non-lunchtime hours, the lounge is used for coffee break time.

The undisputed testimony revealed that the staff lounge was a private room and had never been utilized by the business school for meetings. According to the uncontroverted testimony of Karen Carrier, an administrative assistant at the University who supervises ten secretaries, the University would never permit a meeting of any type in the lounge if it were aware that one was scheduled. While the OCC offered testimony that it had held meetings in the lounge previous to October 11, 1977, it was nevertheless undisputed that the University had no knowledge of these meetings.

On October 11, 1977, University administrative assistant Karen Carrier observed the following notice posted in the Business Administration Building:

“Organizing Committee for Clericals

Clerical Union Meeting

Date: Tues Oct 11

Time: 12:00-1:00

Place: 8th Floor Lounge

Clericals: come and discuss why U-M clericals NEED A UNION AND WHAT WE CAN DO ABOUT IT, FIND OUT ABOUT THE ORGANIZING DRIVE.

OCC Labor Donated”

Ms. Carrier testified that all she knew about the proposed union meeting was derived from the posted notice. She did not know how many people would attend the meeting or from what buildings they would come. After consultation with the University’s personnel office, Ms. Carrier telephoned Sue Hansen of the OCC. Ms. Carrier explained to her that the staff lounge was a private room and that the meeting could not be held there. She also informed Ms. Hansen that other rooms in the business school were available for meetings and could be reserved.

Just before noon on October 11, 1977, Ms. Carrier observed a woman she did not recognize in the staff lounge of the Business Administration Building. Ms. Carrier asked the woman if she could help her and the woman replied that she was there to conduct a clerical meeting. Ms. Carrier then explained to the woman that the room was a private lounge for use by business school employees only and that she could apply for a room elsewhere in the business school to hold the meeting. The University’s offer of alternate space for a union meeting has been available continuously from October 11, 1977, to the present, but no request for use of that space has been made by the OCC. The business justification offered by the University for cancelling the union meeting was explained by Ms. Carrier: the staff lounge is not a conference room for meeting purposes, but rather is a room exclusively reserved by business school staff for eating lunch, playing cards, resting, and the like.

The University allows business school employees to discuss anything they want, including union matters, in the staff lounge. "Meetings” in the staff lounge, on the other hand, are prohibited.

Based on the above, and contrary to the administrative law judge’s recommendation, MERC ruled that the University’s "rule prohibiting organization meetings in the staff lounge without prior permission unlawfully infringes upon the protected concerted activities of the employees guaranteed in the Public Employment Relations Act and we find that Respondent has violated both § 10(l)(a) and (b) of PERA”. The University was ordered to "[c]ease and desist from requiring prior notification or reservation of rooms which are reserved for employees [sic] use during non-working time, including the staff lounge.”

The question raised by this appeal is whether an employer commits an unfair labor practice by preventing a union or union organizing committee from holding a noon meeting in a private staff lounge designated exclusively as a room for eating and relaxation by business school employees. For the reasons set forth below, we reverse the decision and order of MERC and find, as the administrative law judge found, that as a matter of law the University did not commit an unfair labor practice by refusing to allow a union meeting in a private staff lounge.

The section of PERA which the University was found to have violated provides:

"Sec. 10. (1) It shall be unlawful for a public employer or an officer or agent of a public employer (a) to interfere with, restrain or coerce public employees in the exercise of their rights guaranteed in section 9; (b) to initiate, create, dominate, contribute to, or interfere with the formation or administration of any labor organization: * * *” MCL 423.210; MSA 17.455(10).

In finding a violation, of § 10 of PERA, the Commission drew the following conclusions:

"The Employer’s unilateral requirement of prior management permission for employees to meet to discuss union affairs in the staff lounge is a violation of employees rights. Accordingly, in Utica Community Schools, 1966 MERC Lab Op 210, the Commission held that prohibition of the use of facility mailboxes for distributing election materials constituted interference with employees rights. A stronger case for a protected right is present here, where the employer facility has been set aside for exclusive use by the University of Michigan staff and the same activity has been permitted on numerous previous occasions.”

The above conclusion was based in part on the commission’s factual finding that the University had a rule requiring "all meetings in the lounge to be scheduled through the Administration in advance”. The commission further observed that the record was "unclear as to the extent the rule is enforced”. Further support for MERC’s decision was offered in the statement that the employer "may not restrict employees’ right to meet to discuss union affairs unless a sufficient business justification is shown”. MERC found that the University showed no special circumstances that would justify banning union meetings from the staff lounge during lunch breaks. Moreover, according to MERC, an employer may not bar employees from union solicitation during nonwork hours in nonwork areas.

It is clear from the above conclusions of fact and law that the commission has failed to recognize the critical distinction between a union "meeting” and union "solicitation”. A meeting is typically an assemblage of persons gathered for a common purpose. Solicitation, on the other land, involves little more than an appeal for something by one to another. The difference is significant, particularly in the context of this case where a notice was posted advising of a formal "clerical union meeting”. See Livingston Shirt Corp, 107 NLRB 400 (1953), Hicks Ponder Co, 168 NLRB 806 (1967).

Nowhere in the record is it shown or even suggested that the University prohibited employees from meeting in the lounge on nonwork time to discuss union matters. Nor is it shown that employees were required to seek prior permission before discussing union affairs. Thus, the matter of the solicitation rights of the OCC is not at issue here.

What is at issue is the scope of the union’s right to schedule a meeting in a portion of the employer’s premises during nonworking hours. The only objectionable conduct charged by the OCC was the University’s refusal to allow a formal union meeting at lunchtime in the University business school’s private staff lounge.

In construing § 10 of PERA we are permitted to consider Federal cases interpreting the National Labor Relations Act. Employment Relations Comm v Reeths-Puffer School Dist, 391 Mich 253, 260; 215 NW2d 672 (1974), Detroit Police Officers Ass’n v Detroit, 391 Mich 44; 214 NW2d 803 (1974). Accordingly, a resolution of the issue presented involves accommodating an employee’s organizational rights with an employer’s private property rights with as little impairment of one as is consistent with the maintenance of the other. National Labor Relations Board v Babcock & Wilcox Co, 351 US 105, 112; 76 S Ct 679; 100 L Ed 975 (1956), Central Hardware Co v National Labor Relations Board, 407 US 539; 92 S Ct 2238; 33 L Ed 2d 122 (1972). We agree with the administrative law judge’s determination that a policy of permitting organizational activity in nonwork areas on nonwork time does not confer on the union the unqualified right to reserve any portion of the employer’s premises for an organizational meeting. Specifically, the union has no right to schedule a meeting in a portion of the University’s property already designated by the University for another use.

The University designated the staff lounge as a private place for eating and relaxing during the noon hour and break time. It was reasonable to expect that a formal union meeting would substantially interfere with that designated use due to the limited capacity of the small room. The University had no way of knowing how many people would attend the meeting, but were justified in assuming that the number, when combined with the number of staff members desiring to use the lounge for lunch and relaxation from work, would be sufficient to overtax the small room. Solicitation, on the other hand, would not so interfere and was, accordingly, permitted by the University. Nor does the University’s rule against permitting any meetings in the staff lounge significantly infringe upon the union’s right to meet. The uncontroverted evidence established that alternate space was available and is currently available for use by the union.

Moreover, in addition to our disagreement with MERC’s conclusions of law, we rule that the factual findings upon which the commission’s conclusions were based are likewise erroneous. The proper standard by which the Court of Appeals reviews MERC decisions and orders is whether the record considered as a whole contains competent, material, and substantial evidence to support the decision. Kalamazoo City Education Ass’n v Kalamazoo Public Schools, 406 Mich 579, 607; 281 NW2d 454 (1979), Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974). See MCL 423.216(e); MSA 17.455(16)(e). On the record before us, we cannot find sufficient evidence to support MERC’s finding that the University had a rule requiring all meetings in the lounge to be scheduled through the administration in advance. The sole witness competent to testify as to University policy, Karen Carrier, indicated unequivocally that no meetings whatever were permitted in the staff lounge. Nor is there any shred of evidence in the record to support MERC’s finding that the University imposed a requirement of seeking permission before employees were allowed to "discuss union affairs” in the staff lounge.

The most significant of the commission’s unsupported findings, however, is that the University had permitted meetings in the staff lounge on numerous previous occasions. The evidence was uncontroverted that University officials had no knowledge of any prior union meetings conducted in the staff lounge and would have cancelled any such meeting had they so known. In fact, the only people permitted to use the staff lounge other than business school employees were invitees of staff members; the evidence was undisputed that all other nonstaff employees would be asked to leave the lounge.

In the absence of any knowledge of past meetings on the part of the University, and in light of the fact that the University reasonably expected a substantial number of people would attend the publicized "clerical union meeting”, sufficient to interfere with that room’s designated use, we reverse the commission’s decision and order and find that the University committed no unfair labor practice in cancelling OCC’s union meeting scheduled in the employer’s private staff lounge.

Reversed.


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

text:
    PEOPLE v SMITH
    Docket No. 43243.
    Submitted December 11, 1979, at Lansing.
    Decided February 20, 1980.
    Arthur L. Smith was convicted of armed robbery, Macomb Circuit Court, Raymond R. Cashen, J. Defendant took the stand during the trial and asserted an alibi defense. He called a co-worker to substantiate that defense. After direct examination by defense counsel and cross-examination by the prosecutor, the trial judge examined the co-worker regarding his ability to recall the day of the robbery which occurred three years prior to trial. The only portion of the transcript requested by the jury during their deliberations was that part in which the trial judge asked these credibility-testing questions. Defendant’s trial counsel raised no objection to the trial judge’s interrogation until the jury had returned a verdict of guilty. Defendant appeals. On appeal the only issues center around the trial judge’s interrogation of defendant’s alibi witness. Held:

    Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. Defendant admits that no objection and motion for a new trial were made in compliance with a court rule. Failure timely to object precludes appellate review, especially where perusal of the transcript reveals that the trial judge’s examination did not denigrate the credibility of the witness so as to create manifest injustice.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the trial judge’s conduct was improper and prejudicial. The thrust of the court’s questioning of defendant’s alibi witness was to impeach his credibility and not to clarify conflicting testimony or elicit missing facts. The jury found in these questions an unjustified importance. Therefore, although defendant did not object to the judge’s questions at the next available opportunity when the jury was not present, it is obvious that manifest injustice has resulted and that defendant has been denied a fair trial. He would reverse and remand for a new trial.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 553 et seq.

    [1, 3] 81 Am Jur 2d, Witnesses §§ 3, 419 - 421.
    [2, 3] 75 Am Jur 2d, Trial § 87.
    [3] 75 Am Jur 2d, Trial § 88.

      Opinion of the Court
    1. Courts — Trial — Witnesses — Judicial Questioning — Objections — Prejudice — Credibility — Manifest Injustice — Appeal and Error — Rules of Evidence.
    A court may interrogate witnesses called by itself or by a party and any objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present; failure timely to object in compliance with a court rule until after a verdict when it becomes apparent that the court’s questions may have had a prejudicial effect on the jury precludes appellate review; counsel cannot sit back and harbor error to be used as an appellate parachute in the event of a jury failure, especially where perusal of the transcript reveals that the trial judge’s interrogation did not denigrate the credibility of a witness so as to create manifest injustice (MRE 614).
    Dissent by T. M. Burns, P.J.
    2. Courts — Trial — Judge’s Improper Conduct — Jury — Prejudice — Fair Trial.

      Improper conduct by a trial judge during the course of a trial can prejudice a jury and deny a defendant a fair trial.

    3. Courts — Trial ■— Judge’s Improper Conduct — Manifest Injustice — Fair Trial.

      A trial judge has great power and wide discretion, and he has the right to question a witness where the obvious and sole purpose of such questioning is to clarify testimony, but where the sole purpose of the trial judge’s questions was not to resolve conñicting testimony but to challenge the credibility of an important witness for a defendant and the jury in their deliberations placed unjusti&ed importance on the judge’s credibility-testing questions, it becomes obvious that manifest injustice has resulted and that the defendant has been denied a fair trial.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Assistant Prosecuting Attorney, for the people.

      Donald Z. Ricard, P.C. (by John C. Foster), for defendant on appeal.
    Before: T. M. Burns, P.J., and J. H. Gillis and Bashara, JJ.
   Bashara, J.

Defendant appeals from his conviction by a jury of armed robbery, MCL 750.529; MSA 28.797. The only issues raised on appeal center around the trial judge’s interrogation of an alibi witness.

Defendant took the stand during the trial and asserted an alibi defense. He called a co-worker to substantiate that defense. After direct examination by defense counsel and cross-examination by the prosecutor, the trial judge examined the coworker rather extensively. The court questioned the witness regarding his ability to recall the day of the robbery, which occurred three years prior to the trial.

Defendant’s trial counsel raised no objection to the trial judge’s interrogation until the jury had returned a verdict of guilty. We must, therefore, question whether defendant has precluded appellate review of the issue.

MRE 614 provides:

"(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

"(b) Interrogation by court. The Court may interrogate witnesses, whether called by itself or by a party.

"(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.”

MRE 614 is identical with Rule 614 of the Federal Rules of Evidence. The Advisory Committee’s Note to FRE 614(c) states:

"The provision relating to objections is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures.”

Defense counsel should have made objection directly after the court’s questioning of the witness, or at the next available opportunity when the jury was not present. Certainly, an appropriate motion or request for a limiting instruction could have been made prior to the jury’s deliberation. The opportunity could have been made available to take corrective measures, if any were necessary.

Defendant admits that the objection and motion for a new trial were not made in compliance with the court rule. However, he argues that they were made after the verdict, when it became apparent that the court’s examination had a prejudicial effect on the jury. This reasoning is not only strained, but flies directly in the face of the admonition of People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969):

"Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of a jury failure.” See also, People v Williams, 84 Mich App 226; 269 NW2d 535 (1978).

We conclude that the failure to object timely in compliance with the court rule precludes appellate review. Perusal of the transcript reveals that the trial judge’s examination, while lengthy, did not denigrate the credibility of the witness so as to create manifest injustice. The instant case can be distinguished on its facts from People v Redfern, 71 Mich App 452; 248 NW2d 582 (1976). See People v Smith, 64 Mich App 263; 235 NW2d 754 (1975), and People v Gray, 57 Mich App 289; 225 NW2d 733 (1975).

Affirmed.

J. H. Gillis, J., concurred.

T. M. Burns, P.J.

(dissenting).

"A trial judge should respect and observe the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Michigan Code of Judicial Conduct, Canon 2B.

Without question, improper conduct by a trial judge during the course of trial can prejudice the jury and deny a defendant a fair trial. This happened, for example, in People v London, 40 Mich App 124; 198 NW2d 723 (1972), where a trial judge repeatedly commented on his lack of time and instructed the jury, after they had deliberated for nearly 14 hours, to continue their deliberation until they reached a verdict even if it took until 4 a.m., and in People v Roby, 38 Mich App 387; 196 NW2d 346 (1972), where a trial judge’s comments and questions to witnesses filled nearly 55 pages of a 300 page trial transcript and added credibility to the witnesses of the prosecution.

I recognize the "great power and wide discretion” of a trial judge in controlling the course of a trial. People v Gray, 57 Mich App 289, 294; 225 NW2d 733 (1975). Further, I do not challenge a trial judge’s right to question a witness where the obvious and sole purpose of such questioning is to clarify conflicting testimony. People v Hooper, 50 Mich App 186; 212 NW2d 786 (1973), lv den 391 Mich 808 (1974), People v Saunders, 25 Mich App 149; 181 NW2d 4 (1970), lv den 384 Mich 798 (1971). However, unlike the majority, I am unable to distinguish the factual situation of People v Redfern, 71 Mich App 452, 456-457; 248 NW2d 582 (1976), from the instant one.

In Redfern, as here, the sole purpose of the trial judge’s questions was not to resolve conflicting testimony but to challenge the credibility of the defendant or an important witness for the defendant. In fact, the instant case presents a better case for reversal than did Redfern. Here, the only portion of the transcript requested by the jury during their deliberations was that part in which the trial judge asked these credibility-testing questions. It is clear then, that the jury found a significance in these questions far beyond that found in the majority opinion.

I fully recognize that defendant did not object to the trial judge’s questions "at the next available opportunity” when the jury was not present. MRE 614(c). However, because the thrust of the trial judge’s 23 questions to defendant’s alibi witness was to impeach his credibility and not to clarify conflicting testimony or elicit missing facts, and because the jury found in these questions an unjustified importance, I believe that manifest injustice has resulted and that defendant has been denied a fair trial. Therefore, I would reverse and remand for a new trial.

       The alleged crime occurred on September 11, 1975. Defendant’s first trial, on October 27, 1977, resulted in a mistrial. The second one began on October 3, 1978.

       The error complained of by defendant concerns the trial judge’s questioning of Mr. Bobby Bowie, a co-worker of defendant who testified at trial in support of defendant’s alibi defense. The questioning occurred after the prosecutor had concluded cross-examination of this witness:
      "THE COURT: All the testimony you have given, Mr. Bowie, was what day?
      "A. This testimony was the 11th.
      "THE COURT: The 11th of what?
      "THE WITNESS: September, '75.
      "THE COURT: 1975. Do you know what day of the week that was?
      "THE WITNESS: It was on Thursday, pay day.
      "THE COURT: You remember everything you are talking about occurring three years ago?
      "THE WITNESS: It was pay day.
      "THE COURT: And you remember all these incidents you are talking about?
      "THE WITNESS: Yes, Sir.
      "THE COURT: You remember them specifically and not just because you know the meaning of working every day of the week?
      "THE WITNESS: No. It was just one of those days where they had said a dope man or something got stuck up in the main building.
      "THE COURT: Why did you remember each and every one of these details three years ago?
      "THE WITNESS: Because I had been through this before.
      "THE COURT: What happened on Friday, the next day? What happened on the 12th? What did he do on the 12th?
      "THE WITNESS: You are asking me what he do on the next day on the 12th?

        "THE COURT: Yes, if you were even at work on the 12th.
      "THE WITNESS: He was at work on that Friday.
      "THE COURT: How do you know that?
      "THE WITNESS: I was at work.
      "THE COURT: You remember he was at work on that following day?
      "THE COURT: How about the following Monday?
      "THE WITNESS: Yes.
      "THE WITNESS: Yes. Yes.
      "THE COURT: When did he first not come in? Do you know which day he didn’t come in after the 11th?
      "THE WITNESS: No.
      "THE COURT: You don’t remember that?
      "THE WITNESS: No.
      "THE COURT: But you do remember all these details?
      "THE WITNESS: I remember that he left. I remember that Thursday night.
      "THE COURT: When was the first time you were asked to talk about the 11th, about September 11th? How long after it occurred did anyone say to you, 'Hey, what happened to you on September 11, 1975?’
      "THE WITNESS: When somebody said * * *
      "THE COURT: (Interposing) September 11 came and went, 1975, right?
      "THE WITNESS: Yes.
      "THE COURT: How many days later did someone ask you what happened on the 11th?
      "THE WITNESS: That was the next day. The next day is when everybody was talking about what happened.
      "THE COURT: Who asked you about what happened?
      “THE WITNESS: Oh * * *
      “THE COURT: Anybody?
      "THE WITNESS: I remember Michaels asking me had I heard about something.
      "THE COURT: Michaels who?
      "THE WITNESS: Michael Harris.
      "THE COURT: Anybody ask you what Mr. Smith was doing on the 11th?
      "THE WITNESS: No, not the next day.
      "THE COURT: When was the first time anybody asked you what Mr. Smith was doing on September 11?
      “THE WITNESS: Oh, about a year and a half or something.
      "THE COURT: Alright, anything else of this witness?
      “MR. NOEL: No, Your Honor.
      "THE COURT: You may step down, sir”


author: P. C. Elliott, J.

text:
    PEOPLE v BOOKS
    Docket No. 43279.
    Submitted December 13, 1979, at Detroit.
    Decided February 20, 1980.
    George D. Books was convicted, on his plea of guilty, of grand larceny, Tuscola Circuit Court, Norman A. Baguley, J. The defendant appeals, alleging that the presentence report considered by the trial judge prior to sentencing improperly contained hearsay and referred to arrests which did not result in conviction and for which there is no charge pending and requesting that the sentence be vacated and that he be resentenced by a different judge. Held:

    Presentence reports are not governed by the rules of evidence. Hearsay may be included as it is unlikely that an investigator will have personal knowledge of a defendant’s "antecedents, character and circumstances”. So long as the defendant has an opportunity to challenge the accuracy of the report and tell the court about any additional facts which might clarify or explain the information in the report, due process has been satisfied.
    Affirmed.
    1. Criminal Law — Presentence Reports — Hearsay — Statutes — Court Rules.
    Presentence reports are not governed by the rules of evidence; the report will necessarily contain hearsay for it is unlikely that the investigator will have personal knowledge of a defendant’s "antecedents, character and circumstances”; so long as the defendant has an opportunity to challenge the accuracy of the report and tell the court any additional facts which might clarify or explain the information in the report, due process has been satisfied (MCL 771.14; MSA 28.1144, GCR 1963, 785.12).
    2. Criminal Law — Presentence Reports — Contents.
    A presentence report, in addition to containing a defendant’s prior convictions, other charges pending against the defendant or dismissed as a result of a plea bargain and juvenile dispositions, may include other arrests or statements that the defendant has admitted, or was engaged in, other crimes; convictions known to be constitutionally invalid cannot be considered.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 303.
    [2] 21 Am Jur 2d, Criminal Law § 585.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Artis M. Noel, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Leonard J. Malinowski, Assistant Attorney General, of counsel), for the people.

      Martin W. Hable, for defendant on appeal.
    Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   P. C. Elliott, J.

While on probation for simple larceny, defendant entered a plea of guilty to grand larceny, pursuant to a plea-bargain. MCL 750.356; MSA 28.588. The plea bargain was that two other pending cases involving thefts would be dismissed.

When defendant appeared for sentence the following occurred:

"Mr. House [defense counsel]: If the Court please, I have examined the presentence investigation report. And I object to the report, I would move to quash the presentence report and have the case reassigned to another judge for sentencing.

"Would draw the Court’s attention to page two, page four, relating to the presentation of arrest records, the comments in the report that Books has many arrests, extensive involvement in drugs, been arrested at least 12 times, though approximately half of those arrests amounted to dismissal, the charges remained open for further investigation.

"Some of these charges go back years and years, '73, '74. And I submit that if he had been arrested and charges pending, they wouldn’t be pending for a period of four or five years time.

"I object to the comments in page 10, thereafter in the report leading to hearsay information from Genesee County office of Substance Abuse Services, and other hearsay comments in the report.

"I just cannot see how the Court can separate the material that should not be in the report from others. And I feel there is prejudice done to Mr. Books in sentencing. I have nothing further.

"The Court: Do you have a case you want to cite in support of your argument?

"Mr. House: No I don’t.

"The Court: Mr. Books, do you have anything you wish to say?

"Defendant Books: No.

"The Court: The Court does take note of the objections that were raised to the matters contained in the presentence investigation report, and the Court does not deem that there is anything in there which is unduly contained therein.

"The Court takes note of the matters that have not reached final disposition, or which have been dismissed as being such, and if they have, they are not evidence of conviction of any crime. Hearsay matters are taken for what they are.

"Mr. Books, I have to agree with the comments of the probation agent who did the report, and that is that you apparently have adopted a life style of stealing. And that you have had an opportunity to prove yourself through the criminal jurisprudence system, and you just won’t accept it. Won’t accept your responsibilities, and you did not live up to the conditions that were imposed upon you.

"There’s nothing here that would indicate that you have changed your attitude at all. The Court determines that you are not a suitable candidate for probation.”

The Court then sentenced defendant to a term of not less than three nor more than five years in a state prison and advised him of his right to appeal as provided in GCR 1963, 785.11.

Defendant appeals requesting that his sentence be vacated and that he be resentenced by a different judge to be furnished a presentence report without hearsay and without reference to arrests as a result of which there was no conviction and there is no charge pending.

His request is denied.

Presentence reports are not governed by the rules of evidence. MRE 1101(b)(3). GCR 1963, 785.12 contemplates that hearsay will be included because it permits nondisclosure of confidential sources. Neither the rule or the statute place limits on the content of the report.

Our Court has said:

"[T]here are no formal limitations on the contents of the presentence report, but there are limitations dictated by due process.”

"We do not believe it would be a wise policy to restrict the sentencing judge to the information admissible in open court alone.”

The report will necessarily contain hearsay for it is unlikely that the investigator will have personal knowledge of the defendant’s "antecedents, character and circumstances”. Information from agencies, including the police, with whom defendant has had contact in the past will be of assistance to the judge in determining the appropriate sentence to fit the individual offender as well as the offense. So long as a defendant has an opportunity to challenge the accuracy of the report and tell the court about any additional facts which might clarify or explain the information in the report, due process has been satisfied.

"GCR 1963, 785.12 is consistent with the procedure in other states permitting consideration of any pertinent facts in the presentence report if the defendant has an opportunity to explain or controvert such facts. We are of the conclusion that a reasonable view of Grimmett, in the light of Lee and Martin, is that reference tp other criminal activity, for which no conviction has resulted, may be included in the, presentence report and considered by the Court, provided the defendant does have the opportunity for refutation provided by GCR 1963, 785.12. This is consistent with the Federal standards of due process set forth in Williams v New York * * * and the decisions from other states.”

Decisions of other states are collected in Anno: Court’s right, in imposing sentence, to hear evidence of, or to consider, other offenses committed by defendant, 96 ALR2d 768 and ALR2d Later Case Service for 92-100 ALR2d, 333.

It may be better practice to limit the reported

previous record to convictions, other charges pending against the defendant or dismissed as a result of the plea bargain, and juvenile dispositions. However, the cases cited above are persuasive authority that the report may also include other arrests or statements that the defendant has admitted, or was engaged in, other crimes. A sentencing judge is capable of disregarding such matters if they are disputed or of conducting a hearing to determine their accuracy, if he deems a hearing to be appropriate.

Moreover, if a judge knows that the presentence report will contain the complete criminal and juvenile record of every offender, the absence of a significant record is of considerable value to a first offender who has not been arrested before. On the other hand, if the judge knows that only convictions, pending charges and juvenile dispositions are reported, the report may be considered to be less valuable.

In the case before us, neither Mr. Books nor his counsel disputed the "hearsay” information from the Genesee County Office of Substance Abuse, or from others, although they had the opportunity to "explain or controvert” such information. The judge noted that arrests that were dismissed or otherwise did not result in conviction were not "evidence of conviction of any crime”. The fact that the defendant was being sentenced for one of three thefts while on probation for another theft was enough for the conclusion that he had adopted a "life style of stealing” and justified the sentence of imprisonment imposed. He was not entitled to the relief he asked for in the trial court and is not entitled to that relief in this court.

Affirmed.

       MCL 771.14; MSA 28.1144.

        People v Lee, 391 Mich 618, 636-639; 218 NW2d 655 (1974).

       See fn 1, supra.

         People v McIntosh, 62 Mich App 422, 445-446; 234 NW2d 157 (1975). Cases cited in the quotation are People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), People v Lee, fn 2, supra, People v Martin, 393 Mich 145; 224 NW2d 36 (1974), and Williams v New York, 337 US 241; 69 S Ct 1079; 93 L Ed 1337 (1949).

       Department of Corrections Rule 910(1), 1977 AACS R 791.9910, which provides:
      "Rule 910. (1) A presentence report shall contain at least the following information:
      (a) An objective description of the offense, based on all the relevant information acquired by the probation agent during the presentence investigation.
      (b) The offender’s description of the current offense and the circumstances surrounding it.
      (c) A full description of the prior criminal convictions and juvenile dispositions of the offender.

      (d) A description and status of all criminal charges pending against the offender at the time of the presentence investigation.

      (e) A personal profile of the offender, including:

        (i) Educational background.
      (ii) Employment qualifications, background, and status, including any military record.
      (iii) Social history, including family relationships, marital status, personal habits, interests, activities, and residence history.
      (iv) Medical history, including a psychiatric or psychological report when available and appropriate or when requested by the sentencing court.
      (v) Economic situation.
      (vi) Other information relevant to the offender’s character and circumstances.

      (f) A proposed plan, which shall include:
      (i) An evaluation of the offender in terms of strengths, weaknesses, abilities, established behavior patterns, and readiness for change.
      (ii) Information about resources available, including, but not limited to, treatment centers, residential facilities, vocational training services, special educational facilities, rehabilitative programs of various institutions to which the offender might be committed, special programs in the probation department, and other similar programs relevant to the particular offender’s situation.
      (iii) A probation plan, as defined in rule 901(g), if probation is a possible disposition.
      (g) Recommended disposition, unless prohibited by the sentencing court.” (Emphasis added.)

       Convictions known to be constitutionally invalid cannot be considered. People v Moore, 391 Mich 426; 216 NW2d 770 (1974).

        People v Lee, fn 2, supra.

        People v McFarlin, 389 Mich 557; 208 NW2d 504 (1973).

       GCR 1963, 785.12.


author: M. J. Kelly, P.J.

text:
    PEOPLE v HARRIS
    Docket No. 43722.
    Submitted December 13, 1979, at Detroit.
    Decided February 20, 1980.
    Charles B. Harris was convicted of possession of heroin with intent to deliver, Wayne Circuit Court, John H. Hausner, J. The defendant appeals, alleging that a search and the seizure of the heroin and his arrest were improperly conducted without warrants. Held:

    1. The defendant raises for the first time on appeal the issue of the search, seizure and arrest without warrants. Since an important constitutional issue is raised and the question of the admissibility of the evidence produced by the search is decisive of the outcome of the case, appellate review is appropriate.
    2. Under the circumstance of this case there was probable cause for the search of the defendant and seizure of the heroin without a warrant. The search was valid.
    3. The arrest without a warrant was also proper. The information supplied to the police came from a known informant who was an ordinary citizen. Such information was sufficient to establish probable cause without satisfying requirements which are applicable to instances when the information comes from an unnamed informant, the professional criminal stool pigeon or the criminally disposed type of informant, all of whom are considered inherently unreliable.
    4. The trial court did not err in its decision to allow the admission of evidence of two prior convictions of the defendant if he elected to testify.
    5. The defendant neither objected to the admission of testimony of a prosecution witness that the witness knew the defendant through arrests nor requested a cautionary instruction regarding that testimony. There was no manifest injustice as a result of this and appellate review is precluded.
    Affirmed.
    References for Points in Headnotes
    [1] 4 Am Jur 2d, Appeal and Error § 517.
    5 Am Jur 2d, Appeal and Error §§ 797, 801.
    [2] 68 Am Jur 2d, Searches and Seizure § 41 et seq.

    [3] 5 Am Jur 2d, Arrest §§ 16, 46, 48.

      1. Appeal and Error — Criminal Law — Evidence — Constitutional Law — Admissibility of Evidence.
    The Court of Appeals must determine whether evidence which a defendant alleges was erroneously admitted was decisive to the outcome of the case where the defendant raises, for the first time on appeal, a constitutional question regarding the propriety of the search by which the evidence was obtained; the defendant may be allowed to raise the issue on appeal where the challenged evidence was totally decisive of the defendant’s conviction.
    2. Searches and Seizures — Without Warrant — Probable Cause — Reasonableness.
    A policeman searching without a warrant must have probable cause to believe that a search of the person or place in question will result in the finding of evidence of a crime and probable cause to believe that he must search immediately without taking the time to seek and obtain a warrant in order to protect himself or in order to avoid the loss of evidence or in order to prevent the escape of the accused or for any other reason which outweighs the need for judicial surveillance over police activity which the search warrant provides.
    3. Arrest — Probable Cause — Case Precedent — Informants — Reliability of Informants.
    United States Supreme Court case precedent holds that in order for evidence obtained from an informant to constitute probable cause for an arrest it must satisfy the following requirements: 1) the police must have reason to believe the informant is reliable, and 2) the police must be informed of the underlying circumstances upon which the informant based his conclusion; this test applies to the unnamed informant, the professional criminal stool pigeon or the criminally disposed type of informant, all of whom are considered inherently unreliable; the test is inapplicable where the information is provided by known informants who are ordinary citizens.

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

      Anthony C. Penta, Jr., for defendant on appeal.

      Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   M. J. Kelly, P.J.

Defendant was charged with possession of heroin, with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). Following a jury trial defendant was convicted and sentenced to a term of 6 to 20 years imprisonment. Defendant appeals as of right.

The defendant was arrested on May 3, 1978, in Ecorse, Michigan, as he was about to leave the Homespun Restaurant. The proprietor, Mr. Kelly Wright, called the Ecorse Police Department to report a disturbance involving the defendant. The police officer who received the call and the responding officers who reported to the scene testified that the caller indicated the disturbance was narcotics related. Mr. Wright testified that he reported a disturbance of the peace and that he "might have told them that they had some drugs”.

Upon arrival of the police, Mr. Wright singled out the defendant whereupon Officer Alvin Demings prevented the defendant from leaving the restaurant, ordered him to a table, and directed him to empty his pockets. The proprietor and several customers were present during this procedure. Four white bundles were thrown to the floor containing 39 packets filled with a substance subsequently analyzed as heroin.

Defendant raises for the first time on appeal the legality of the warrantless search, seizure and arrest. Since an important constitutional issue is raised and the question of the admissibility of the evidence produced by the search is decisive of the outcome of the case, appellate review is appropriate. People v Merchant, 86 Mich App 355; 272 NW2d 656 (1978), People v Hoerl, 88 Mich App 693; 278 NW2d 721 (1979).

Defendant contends that the warrantless search and seizure and subsequent arrest were invalid for lack of probable cause. Under the facts presented in this case it appears that probable cause existed and the warrantless search was valid. In People v Frank Smith, 43 Mich App 400; 204 NW2d 308 (1972), this Court discussed a specific test to be applied in determining the propriety of a warrant-less search. The officer must have probable cause to believe that a crime has been committed and probable cause to believe that his search will produce evidence of that crime. Further, the officer must have probable cause to believe that an immediate, warrantless search is necessary in order to (1) protect himself or others, (2) prevent the destruction or loss of evidence or (3) prevent the escape of the accused.

The case at bar fits squarely within the above description and leads to the conclusion that probable cause existed. According to police testimony Mr. Wright reported that drug dealing was transpiring in his establishment and that fact was radio-transmitted to the responding officers. Mr. Wright subsequently identified the defendant as the subject of the call. Consideration may also be given to the information possessed by the officers at the time of the search. People v White, 392 Mich 404; 221 NW2d 357 (1974), People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978). Mr. Wright was already known to the police due to the fact that he had reported similar incidents in the past. At the time of the incident reported here, four cases were pending related to similar disturbances at the Homespun Restaurant. The area in general was known to police as a site of substantial drug trafficking. The defendant himself was a suspected narcotics user, though he had not been previously arrested. Defendant was attempting to flee from the scene at the time he was pointed out to police as the subject of the alleged disturbance.

The officer also had probable cause to believe a warrantless search was necessary in order to prevent the destruction or loss of the evidence or the escape of the accused. Defendant was in the process of exiting from the restaurant with the heroin on his person when the police arrived and detained him.

Defendant’s major contention is that the warrantless arrest was invalid in that the requisite probable cause, based on the informant’s tip, was lacking. Defendant argues that in order to constitute probable cause for arrest, the evidence obtained from an informant must satisfy the following requirements: (1) the police must have reason to believe the information is reliable, and (2) the police must be informed of the underlying circumstances upon which the informant based his conclusion. Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), People v Hoerl, supra. However, in the instant case, defendant’s reliance on the Aguilar standards is misplaced. Aguilar applies to the unnamed informant, the professional criminal stool pigeon, or the criminally disposed type of informant who are considered inherently unreliable. People v Emmert, 76 Mich App 26; 255 NW2d 757 (1977). This Court has held that the Aguilar test is inapplicable when, as here, the information is provided by known informants who are ordinary citizens. People v Rodriguez, 83 Mich App 606; 269 NW2d 199 (1978), cf. People v Tooks, 403 Mich 568; 271 NW2d 503 (1978).

Defendant also argues that the trial court erred in its decision to admit evidence of two prior convictions of the defendant if he elected to testify. We find no error in the court’s application of MRE 609 or the standards set out in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978), and People v Baldwin, 405 Mich 550; 275 NW2d 253 (1979).

Lastly, defendant assigns error to the admission of testimony of a prosecution witness that he knew defendant through arrests. No objection was made at trial nor was a cautionary instruction requested. It does not appear that the prosecution intentionally elicited this reference to arrests other than the one involved here. Consequently, in the absence of manifest injustice, appellate review is precluded.

Affirmed.


author: R. B. Burns, J.

text:
    PEOPLE v LEWIS
    Docket No. 43825.
    Submitted January 3, 1980, at Grand Rapids.
    Decided February 20, 1980.
    Defendant; A1 Junior Lewis, was convicted of Second-degree murder in the Recorder’s Court of Detroit, Patricia J. Boyle, J. Defendant appeals by leave granted, alleging numerous errors. Held:

    1. Evidence establishing premeditation may be entirely circumstantial. Prior threats or ill feelings between the defeiidant and the deceased, as well as evidence that the defendant procured a weapon to effectuate the crime, are indicia of premeditation.
    2. The Court of Appeals will not reversé a trial judge’s dénial of a change of venue absent an abuse of discretion.
    3. Factors which should be used in determining whether an independent basis exists for an identification include; (a) prior relationship with or knowledge Of the defendant; (b) the opportunity to observé the offense; (C)' length Of time between the offense and the disputed identification; (d) accuracy of of discrepancies in the pré-lineup or shoWUp description given by the witness compared with the defendant’s actual appearance; (e) any previous proper identification or failure to identify the defendant; (f) any identification .prior to lirieup or showup of another person as the defendant; (g) the nature of the offense, the physical and psychological state of the witness, and factors sUch as fatigue, iiervous exhaustion, alcohol ahd drugs, and the age and intelligence of the witness; (h) any idiosyncratic or special features of the defendant.
    4. Voluntary manslaughter is not a necessarily lesser included offehse of murder. Where the evidence adduced at trial would not support a conviction Of voluntary manslaughter, the trial judge errs in instructing on voluntary manslaughter and in allowing defendant’s counsel to prove it to the jury. However, such error inures to the advantage of the defendant and is not reversible where defendant was convicted of second-degree murder.

      References foé Points in HEAdnoteS
    [1] 40 Am Jur 2d, Homicide §§ 275, 283, 316, 439,
    [2] 21 Am Jur 2d, Criminal Law § 417 et seq.

    [3] 29 Am Jur 2d, Evidence §§ 367, 371, 372.
    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449,
    [4] 40 Am Jur 2d, Homicide §§ 55, 56.

      Affirmed.
    1. Homicide — Premeditation — Evidence — Circumstantial Evidence.
    Evidence establishing premeditation may be entirely circumstantial; prior threats or ill feelings between the defendant and the deceased, as well as evidence that the defendant procured a weapon to effectuate the crime, are indicia of premeditation.
    2. Venue — Change op Venue — Criminal Law — Discretion — Statutes.
    A trial judge may grant either party in a criminal proceeding a change of venue upon good cause shown or may deny the motion in his discretion; to set aside such a decision, there must be a clear showing of abuse of discretion on the part of the court.
    3. Criminal Law — Evidence — Identification Evidence — Eyewitnesses.
    Factors which would be used in determining whether an independent basis exists for an identification include: (a) prior relationship with or knowledge of the defendant; (b) the opportunity to observe the offense; (c) length of time between the offense and the disputed identification; (d) accuracy of or discrepancies in the pre-lineup or showup description given by the witness compared with the defendant’s actual appearance; (e) any previous proper identification or failure to identify the defendant; (f) any identification prior to lineup or showup of another ' person as the defendant; (g) the nature of the offense, the physical and psychological state of the witness, and factors such as fatigue, nervous exhaustion, alcohol and drugs, and the age and intelligence of the witness; (h) any idiosyncratic or special features of the defendant.
    4. Homicide — Lesser Included Offenses — Murder — Voluntary Manslaughter.
    Voluntary manslaughter is not a necessarily lesser included offense of murder.

      Gerald J. Surowiec, for defendant on appeal.

      Before: D. F. Walsh, P.J., and R. B. Burns and J. H. Gillis, JJ.
   R. B. Burns, J.

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

It was alleged that the defendant came into the school room where the decedent was teaching, spoke briefly with her, and then shot her in the presence of the students in the room. Defendant asserts that the magistrate abused his discretion in binding defendant over on the charge of first-degree murder because there was no evidence of premeditation or deliberation.

Evidence was offered at the preliminary examination that defendant was carrying a gun when he went to the school where the victim was teaching. The victim was married to defendant and she had moved from their house and was divorcing him. A social worker who had discussed the divorce with defendant testified that defendant told her that he would not let his wife get away with taking everything and that he was going to "get” his wife.

Evidence establishing premeditation may be entirely circumstantial. People v Hoffmeister, 394 Mich 155, 158-159; 229 NW2d 305 (1975). It has been held that prior threats or ill feelings between the defendant and the deceased, as well as evidence that the defendant procured a weapon to effectuate the crime, are indicia of premeditation. People v Wells, 87 Mich App 402, 409-410; 274 NW2d 797 (1978). We find in the present case sufficient evidence to support the magistrate’s decision to bind the defendant over on the charge of first-degree murder.

Because he claimed that the case had received public notice from the initial moments after the shooting, defendant made a motion for change of venue. This motion was denied by the trial court after a jury was successfully chosen. Only three jurors in the panel were excused for a cause related to their knowledge of the case and the trial court found that defendant’s objections to the panel were without merit.

This Court will not reverse a trial court’s denial of a motion for change of venue absent an abuse of discretion. People v Gerald Hughes, 85 Mich App 8, 14; 270 NW2d 692 (1978). Applying the factors set forth in Hughes we find no abuse of discretion. Defendant’s argument rests primarily on his assertion that the jury’s answers, when they were questioned about their ability to be impartial despite having read newspaper articles on the case, cannot be trusted. We do not share defendant’s view of the jury selection process, especially in light of the vigorous voir dire that defendant’s counsel Was permitted to conduct.

Defendant contends also that the trial court erred in denying defendant’s motions for suppression of evidence. Defendant moved to suppress his address book which was seized when the police searched defendant’s house pursuant to a search warrant, and the testimony of Colleen Scott whose address defendant claims was illegally discovered in the book. Defendant claims that he was prejudiced by the admission of Ms. Scott’s testimony. The trial court held the evidence admissible under the 'inevitable discovery rule’ oil the theory that there was an independent basis upon which the police could have discovered the witness’s address. We find no error in that ruling.

Ms. Scott testified that she was with the defendant in the early morning hours of the day of the shooting, at which time the defendant had a gun and bullets and stated to the witness that he was going to kill someone. Prior to the seizure of the address book, the police interviewed Jesse Hodges, Jr., a neighbor of defendant, who told the police that he had driven the defendant to a house on Wadsworth in the early morning hours on the day of the shooting. Though Mr. Hodges did not give the police an exact address of the Wadsworth home of Ms. Scott, he did describe the location of the house in great detail.

In ruling on this matter, we note the recent direction of the United States Supreme Court in United States v Ceccolini, 435 US 268, 280; 98 S Ct 1054; 55 L Ed 2d 268 (1978), on the application of the exclusionary rule to witness testimony. In Ceccolini, supra, the Court stated:

"* * * the exclusionary' rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object.”

Because we find that the police would have located the witness Scott independently of their having found her address in defendant’s address book we affirm the ruling of the trial court.

The trial court also denied defendapt’s motion to suppress the identification testimony of Robin Klein. Ms. Klein, a speech pathologist at the school, testified that on the day of the shooting, the defendant, whom she identified in court, very politely asked her for directions to the decedent’s classroom. Prior to seeing defendant in the courtroom, Ms. Klein was shown a picture of the defendant. Ms. Klein stated that the picture resembled the man at the school but she would not identify the person in the picture as that person since she believed that the picture looked like a much younger man with more hair. In fact, the police photograph of defendant was ten years old. At the hearing Ms. Klein testified that her identification of defendant was based exclusively on her memory from the school.

In determining whether the trial court correctly concluded that the witness’s identification of defendant was independent of the police photograph display we apply the factors stated in People v Kachar, 400 Mich 78, 95-96; 252 NW2d 807 (1977). We note that the witness saw the defendant from a very close distance, that she never failed to identify defendant nor had she identified anybody other than defendant. She did not blindly accept the proffered photograph but reserved her judgment until seeing the defendant and her identification was made shortly after the shooting. Moreover, the witness’s observation of the defendant was not in an excited situation and there is no reason to believe that her emotional state would have impaired her ability to observe and remember the defendant.

Defendant’s final contention is that the trial court committed reversible error in misstating defendant’s closing argument in its instructions to the jury. The trial court instructed on the lesser included offense of manslaughter but in summarizing defendant’s claim did not specifically state that defendant was asking the jury to return this verdict.

The Michigan Supreme Court has held that manslaughter is not a necessarily included offense of the crime of murder. People v Van Wyck, 402 Mich 266, 269-270; 262 NW2d 638 (1978). The trial court, thus, should not have instructed the jury on the crime of manslaughter nor allowed the defense attorney to argue this verdict to the jury unless the evidence adduced at trial would have been sufficient to support such a verdict. Van Wyck, supra. We have carefully reviewed the record in the present case and find no evidence which would support manslaughter as a potential verdict. Accordingly, if the trial court committed error it was in instructing the jury on manslaughter and permitting the defense counsel to argue manslaughter to the jury. As this error inured to defendant’s advantage we find no reversible error.

Affirmed.