text:
    PEOPLE v WRIGHT (ON REMAND) PEOPLE v PEREZ (ON REMAND)
    Docket Nos. 52325, 52326.
    Submitted June 27, 1980, at Detroit.
    Decided September 2, 1980.
    Leave to appeal denied, 410 Mich 854.
    Arnold Wright and Salvadore Perez were charged with conspiracy to deliver heroin and delivery of heroin and were convicted following a joint trial with another codefendant. Recorder’s Court of Detroit, George W. Crockett, Jr., J., imposed sentences, and defendants filed separate appeals, which were consolidated by the Court of Appeals on its own motion. The Court of Appeals reversed and remanded for a new trial. People v Wright, 78 Mich App 246 (1977). The Supreme Court affirmed the Court of Appeals decision as to defendant Perez, but reinstated defendant Wright’s conviction, 408 Mich 1 (1980), and remanded the case to the Court of Appeals where the appeals were again consolidated to consider claims of error raised by defendants but not previously discussed by the Court of Appeals, viz., 1) whether the prosecutor’s remarks in closing argument, objected to by defendants, deprived them of a fair and impartial trial, requiring reversal of their convictions, 2) whether the admission into evidence by the trial court of two tape recordings obtained without a warrant by means of participant monitoring constituted error where defendants made no objection at trial on the ground of illegal search and seizure, 3) whether the trial court erred in imposing both a fine and imprisonment as authorized by statute on defendant Wright with the proviso that he pay the fine to qualify for an early parole, 4) whether the trial court erred in failing to conduct an evidentiary hearing on the issue of the entrapment of defendant Wright, sua sponte, where he had previously testified and denied any participation in the alleged offense, 5) whether the trial court erred in denying defendant Perez’s motion to dismiss the charge of conspiracy to deliver heroin on the basis of insufficient evidence, 6) whether the trial court erred in denying defendant Perez’s motion to dismiss the charge of aiding and abetting the delivery of heroin on the basis of insufficient evidence, 7) whether the trial court erred in denying defendant Perez’s pretrial motion for a separate trial, and 8) whether the trial court abused its discretion in denying defendant Perez’s attempt to enter a plea of guilty to a lesser included offense during the course of the trial. Held:

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial § 225.
    [2, 3] 5 Am Jur 2d, Appeal and Error § 783 et seq.

    [4-6] 68 Am Jur 2d, Searches and Seizures § 31.
    Admissibility in criminal prosecution of evidence secured by mechanical or electronic eavesdropping device. 97 ALR2d 1283.
    [6] 20 Am Jur 2d, Courts §§ 233, 236.
    Prospective or retroactive operation of overruling decision. 10 ALR3d 1371.
    [7, 9, 10] 21 Am Jur 2d, Criminal Law § 540.
    [8, 9] 21 Am Jur 2d, Criminal Law §§ 565, 567.
    Indigency of offender as affecting validity of imprisonment as alternative to payment of fine. 31 ALR3d 926.
    [11,13] 21 Am Jur 2d, Criminal Law § 143.
    [12] 5 Am Jur 2d, Arrest § 45.
    [13] 21 Am Jur 2d, Criminal Law § 443.
    [14] 5 Am Jur 2d, Appeal and Error § 774.
    21 Am Jur 2d, Criminal Law § 449.
    [15] 75 Am Jur 2d, Trial §§ 550-552.
    [16] 16 Am Jur 2d, Conspiracy § 2.
    [17] 16 Am Jur 2d, Conspiracy § 42.
    [18] 21 Am Jur 2d, Criminal Law § 119.
    [19-21] 75 Am Jur 2d, Trial § 17.
    [20, 21] 75 Am Jur 2d, Trial § 21.
    Antagonistic defenses as ground for separate trials of codefendants in criminal case. 82 ALR3d 245.
    [22, 23] 21 Am Jur 2d, Criminal Law § 491.5.

      1. The trial court’s overruling of the defendants’ objection to the civic duty arguments of the prosecutor constituted error, since the remarks injected issues broader than the defendants’ guilt or innocence of the charges into the trial and cannot be viewed as harmless.
    2. Admission of the recordings obtained without a warrant did not constitute reversible error under Michigan law at the time the recordings were made.
    3. The trial court’s additional requirement in its sentencing of defendant Wright that he first pay the fine imposed to qualify for an early parole violates the indeterminate sentence act whether or not he is financially able to pay the fine and, thus, constitutes error.
    4. Defendant Wright failed to allege anything which would constitute a prima facie showing that he had a valid defense of entrapment, and, thus, the trial court had no reason to conduct an evidentiary hearing on the issue of entrapment.
    5. The facts on record leading up to the heroin sale reasonably imply that defendant Perez provided the heroin, thereby participating in the essential element necessary to the continuance of the conspiracy. Viewing this evidence in the light most favorable to the prosecution, it cannot be said that the trial court erred in refusing to dismiss the conspiracy count against him or abused its discretion in binding him over for trial.
    6. The magistrate did not abuse his discretion, nor did the court err in refusing to dismiss the charge of aiding and abetting the delivery of heroin against defendant Perez, since his actions provided circumstantial evidence which, when viewed in the light most favorable to the prosecutor, established that the defendant committed the crime with which he was charged.
    7. The trial court did not abuse its discretion in refusing to grant defendant Perez a separate trial since there was no affirmative showing of prejudice to his substantial rights.
    8. The trial court did not abuse its discretion in refusing to accept the prosecutor’s recommendation that the court accept defendant Perez’s offer to plead guilty to a lesser included offense during trial, since it took into consideration the offense charged and the surrounding circumstances in arriving at its decision.
    Reversed and remanded.
    1. Prosecuting Attorneys — Civic Duty Arguments — Error — Criminal Law.
    Civic duty arguments by prosecutors to a jury inject issues broader than a particular defendant’s guilt or innocence of the charges into a trial, encouraging jurors to suspend their power of judgment, and generally the refusal of a trial court to sustain a defendant’s objection to such remarks constitutes reversible error.
    2. Criminal Law — Appeal — Harmless Error — Reversible Error.
    The standard for determining whether error committed during a criminal trial is reversible on appeal or is merely harmless involves an inquiry as to whether the error is so offensive to the maintenance of a sound judicial system as to require reversal and, if not, whether it is harmless beyond a reasonable doubt.

      3. Criminal Law — Harmless Error — Decisional Process.
    Error is not harmless and a new trial is necessary where, in a criminal trial free of the error complained of, it is reasonably possible that even one member of the jury might have voted to acquit a defendant.
    4. Searches and Seizures — Constitutional Law — Participant Recording — Criminal Law.
    Federal law does not require a search warrant for participant recording or monitoring with respect to Fourth Amendment protection against unreasonable searches and seizures (US Const, Am IV).
    5. Searches and Seizures — Constitutional Law — Participant Monitoring and Recordings — Criminal Law.
    The Michigan constitutional provision governing searches and seizures has been interpreted to require a search warrant for participant monitoring and participant recordings (Const 1963, art 1, § 11).
    6. Searches and Seizures — Participant Monitoring and Recordings — Prospective Application — Criminal Law.
    The rule which requires a search warrant for participant monitoring and participant recordings is to be applied prospectively, and recordings made prior to its annunciation without a warrant are admissible.
    7. Criminal Law — Indeterminate Sentences — Statutes.
    Any sentence which provides for a minimum sentence exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence statute (MCL 769.8; MSA 28.1080).
    8. Criminal Law — Revocation of Probation — Failure to Pay Fines or Costs — Constitutional Law.
    Revocation of probation for failure to pay a fine or costs by one who is unable to pay constitutes a denial of equal protection as guaranteed by the Fourteenth Amendment.
    9. Criminal Law — Indeterminate Sentence Statute — Inability to Pay Fines or Costs — Constitutional Law.
    Preclusion of an indigent defendant from serving anything less than the maximum sentence imposed upon his conviction of a crime due to his inability to pay fines and costs imposed would thwart the legislative intent embodied in the indeterminate sentence statute and would constitute an invidious discrimination on the basis of economic status (MCL 769.8; MSA 28.1080).

      10. Criminal Law — Indeterminate Sentence Statute — Ability to Pay Fines and Costs — Parole Board.
    A trial court would be in violation of the provisions of the indeterminate sentence statute if the minimum sentence were made conditional on payment of a fine, whether or not a defendant were financially able to pay the fine, since the trial court cannot deprive the parole board of its legislatively mandated discretion in determining a defendant’s sentence once the defendant has served the minimum term which was imposed (MCL 769.8; MSA 28.1080).
    11. Criminal Law — Entrapment — Test.
    The objective test of entrapment is whether police conduct induced or instigated the commission of a crime by one not ready or willing to commit the crime.
    12. Criminal Law — Probable Cause — Investigations.
    Police do not need probable cause prior to beginning an investigation.
    13. Criminal Law — Entrapment — Evidentiary Hearings.
    A trial court has no reason to conduct an evidentiary hearing on the issue of entrapment where a defendant fails to allege anything which would constitute a prima facie showing of a valid defense of entrapment.
    14. Criminal Law — Probable Cause — Determination by Magistrate.
    A magistrate’s determination of probable cause to believe a defendant committed a crime will not be upset on appeal unless a clear abuse of discretion is shown.
    15. Criminal Law — Motions to Dismiss or Direct a Verdict — Sufficiency of Evidence.
    A trial court, in considering a motion to dismiss or direct a verdict, must first decide if the evidence introduced at the time the motion was made, viewed in the light most favorable to the prosecution, is insufficient to justify a reasonable man in concluding that all the elements of the crime were established beyond a reasonable doubt.
    16. Conspiracy — Criminal Law — Definition.
    Criminal conspiracy is a mutual understanding or agreement between two or more persons, express or implied, to do or accomplish some criminal or unlawful act.

      17. Conspiracy — Criminal Law — Necessary Proof.
    The gist of a criminal conspiracy lies in the unlawful agreement among the parties, and direct proof of an agreement is unnecessary, nor must the agreement be formal; it is sufficient if circumstances, acts, and conduct of the parties establish an agreement in fact and the conspiracy may be established by circumstantial evidence and may be based on inferences.
    18. Criminal Law — Aiding and Abetting — Definitions.
    One aids and abets another to commit a crime where the former takes conscious action seeking to make the criminal venture succeed.
    19. Criminal Law — Joint Trials — Judicial Discretion — Statutes.
    The decision whether to hold a joint or separate trial in a criminal case is discretionary with the trial court (MCL 768.5; MSA 28.1028).
    20. Criminal Law — Joint Trials — Grounds for Severance.
    A defendant does not have a right to a separate trial, but a severance should be granted where the defenses of several defendants jointly indicted are antagonistic to each other, and, in moving a court for a separate trial, a defendant must show that his substantial rights will be prejudiced by a joint trial.
    21. Criminal Law — Joint Trials — Motions for Severance — Supporting Affidavits.
    A motion for a separate trial must include a supporting affidavit defining the inconsistencies between the defenses of defendants to be jointly tried before an abuse of discretion will be found in the refusal of a trial court to grant a separate trial, and, in the absence of an affirmative showing of prejudice to a defendant’s substantial rights, such a refusal is not an abuse of discretion.
    22. Criminal Law — Plea Bargains — Prosecutor’s Recommendations — Abuse of Judicial Discretion.
    A trial court, in deciding whether to accept a prosecutor’s recommendation and a defendant’s offer to plead guilty to a lesser included offense, should take into consideration such factors as the offense with which the defendant was charged, the surrounding factual circumstances, the lesser included offenses of the plea bargain, and the opinions of other interested parties, and, following such considerations, a refusal of a trial court to accept the recommendations of a prosecutor may only be disturbed for an abuse of discretion.

      23. Criminal Law — Plea Bargains — Abuse of Prosecutorial Discretion.
    A trial court can refuse a prosecutor’s recommendation to accept a plea bargain if it finds that the prosecutor has abused his discretion.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Raymond P. Walsh, Assistant Prosecuting Attorney, for the people.

      Joel S. Brown (Carl Ziemba, of counsel), and P. E. Bennett, Assistant State Appellate Defender, for defendants on appeal.
    Before: R. M. Maher, P.J., and N. J. Kaufman and F. J. Borchard, JJ.
    On Remand

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

   Per Curiam.

Defendants Arnold Wright and Salvadore Perez were charged with conspiracy to deliver heroin and delivery of heroin. MCL 750.157a; MSA 28.354(1), MCL 335.341(1)(a); MSA 18.1070(41)(l)(a). Wright was charged with three counts of delivery and one count of conspiracy, while Perez was charged with one count of delivery and one count of conspiracy. Following a joint trial with another codefendant, Carol McCuin, who is riot involved in this appeal, the defendants were convicted as charged. Wright was sentenced to four concurrent terms of 13 years, 4 months to 20 years of imprisonment. Perez was sentenced to five years of probation on condition that he leave the country under a deportation order within two days of sentencing, after which his probation would be suspended.

The defendants appealed their convictions. We reversed and remanded for a new trial on the basis of an improper jury instruction on intent. People v Wright, 78 Mich App 246; 259 NW2d 443 (1977). The Supreme Court reinstated Wright’s conviction, finding the error to be harmless based on the strength of the prosecution’s case against him. The Supreme Court agreed that Perez was entitled to reversal and a new trial. People v Wright, 408 Mich 1; 289 NW2d 1 (1980). The case was remanded to this Court in order that we might consider the other claims of error raised by the defendants but not previously discussed by us. For a full statement of the facts, see the Supreme Court opinion, 408 Mich 1, 12-18.

Issues raised by both defendants:

I. Did the prosecutor’s improper remarks in closing argument, to which the defendants objected, deprive the defendants of a fair and impartial trial so as to require reversal of their convictions?

In his rebuttal summation, the prosecutor made the following remarks to the jury:

"I don’t think counsel has given you any basis for reasonable doubt in this case. And with respect to his lawyer’s reward — with respect to his lawyer’s reward, I guess counsel indicated it is particularly refreshing when you know you are protecting an innocent man. I suggest it is also particularly refreshing when you know you are protecting the community in which you live.
"These defendants here, ladies and gentlemen, — these three defendants are the drug traffickers. They are those that supply the heroin to junkies in the city. And the cost of that, I think, ladies and gentlemen, is known to us all.
"It’s measured in the cost of the loss of personal property that these junkies have to steal in order to support their habits. It’s measured by the loss of human life by people who no longer can live decent lives. That’s the cost. Not just $11,000. Not just $48,000 or $46,000 that we are talking about here. The cost is much greater than that.
"I suggest to you, ladies and gentlemen, that there is only one verdict in accordance with fairness, justice, and honesty, and that is guilty as charged with respect to all three of these defendants.”

In general, "civic duty” arguments are condemned because they inject into the trial issues broader than a particular defendant’s guilt or innocence of the charges and encourage the jurors to suspend their own powers of judgment.

In People v Farrar, 36 Mich App 294, 298-299; 193 NW2d 363 (1971), this Court adopted the language of the ABA Project on Standards for Criminal Justice, The Prosecution Function, Std. 5.8(d), as applicable to the issue:

"The prosecutor may not subtly convert the presumption of innocence into a presumption of guilt by appealing to the jurors to perform a civic duty to support the police:
" 'The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.’ ”

In People v Gloria Williams, 65 Mich App 753, 756; 238 NW2d 186 (1975), this Court reversed the conviction after the prosecutor had argued to the jury that they could affect the drug traffic in the City of Detroit by finding the defendant guilty. The Court stated:

"We recognize, too, that jurors share the average citizen’s desire to eliminate the narcotics traffic. In such an emotion-laden situation, sensibilities are easily inflamed. Because emotional reaction to social problems should play no role in the evaluation of an individual’s guilt or innocence, prosecutors must exercise special care to avoid arousing jurors’ emotions concerning such issues.
"In the instant case, by arguing that the jurors had an 'opportunity to effect [sic] the drug traffic in this city’, the prosecutor appealed to the jurors’ fears and encouraged them to go outside the evidence and decide the case on the basis of their desire to alleviate the drug problem. This type of prosecutorial argument does not comport with the mandate of Farrar, supra, and it will not be allowed by this Court. Consequently, defendant’s conviction must be reversed.”

In People v Biondo, 76 Mich App 155; 256 NW2d 60 (1977), the defendant was charged with breaking and entering a business establishment. In his closing argument, the prosecutor discussed the fact that businessmen were worried about crime and that if they left the city, its tax base would become depleted and the city would die. The prosecutor reminded the jurors about their responsibility to the city and stressed the fact that the complainant was a businessman who paid taxes. This Court reversed defendant’s conviction, saying that the appeal to the jury’s social fears was irrelevant to the sole issue at trial, that being Mr. Biondo’s guilt or innocence.

The standard for harmless error involves a dual inquiry: (1) was the error so offensive to the maintenance of a sound judicial system as to require reversal, and (2), if not, was the error harmless beyond a reasonable doubt? People v Sherman Hall, 77 Mich App 456; 258 NW2d 517 (1977). The purpose of the first criterion is to deter prosecutorial and police misconduct. People v Swan, 56 Mich App 22; 223 NW2d 346 (1974), People v Reese, 86 Mich App 50; 272 NW2d 192 (1978). The purpose of the second criterion is to safeguard the decisional process. Thus, if it is reasonably possible that, in a trial free of the error complained of, even one such jury member might have voted to acquit the defendant, the error was not harmless, and the defendant must be retried. Swan, supra, 33.

We conclude that the prosecutor in the instant case stepped over permissible bounds and' injected reversible error into the proceedings. We cannot view the error as harmless under the first prong of the test, for unless we enforce the rules, we encourage their violation. Farrar, supra, 299. This is especially true because defendants objected to the improper remarks and were overruled by the trial court. Thus, the error was compounded. See People v Brocato, 17 Mich App 277, 304-305; 169 NW2d 483 (1969). We would, therefore, reverse the convictions of Wright and Perez and would remand the case for a new trial.

II. Did the trial court err in admitting into evidence two tape recordings obtained without a warrant by means of participant monitoring where there was no objection made at trial on the ground of an illegal search and seizure?

At issue is the admission of Exhibit #6, a cassette tape made of an alleged drug transaction on September 18, 1974, which was obtained by means of a transmitting microphone attached to undercover officer Fleming. Defense counsel objected on the basis that the tape was unintelligible, that its contents were inadmissible hearsay, and that the prosecutor had said he would not use it in his case in chief. The trial court admitted Exhibit #6, the tape, and Exhibit #10, which was a transcript of the tape. The prosecutor then sought to admit Exhibit #7, a cassette tape of a telephone conversation on September 28, 1974, made from a telephone in the apartment of the informant, Moss, of a telephone conversation between defendant Wright and Moss. Defendant objected on the basis that the tape was hearsay, but was overruled. This exhibit was admitted along with Exhibit #9, a transcript of the tape.

With respect to the Fourth Amendment protection against unreasonable search and seizure, Federal law does not require a search warrant for participant recording, Lopez v United States, 373 US 427; 83 S Ct 1381; 10 L Ed 2d 462 (1963), or participant monitoring, United States v White, 401 US 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971). However, in People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), the Michigan Supreme Court interpreted the Michigan constitutional provision governing searches and seizures, Const 1963, art 1, §11, to apply the search warrant requirement to participant monitoring. This rule was given prospective application only. Subsequently, in People v Hall, 88 Mich App 324; 276 NW2d 897 (1979), this Court extended the Beavers rationale to include participant recordings. See also, People v Taylor, 93 Mich App 292; 287 NW2d 210 (1979).

Since the recordings in question occurred prior to the decision in Beavers, that decision is not applicable, and we are constrained to hold that admission of the recordings in the absence of a warrant did not constitute reversible error under then-existing Michigan law. People v Amison, 70 Mich App 70, 75-76; 245 NW2d 405 (1976), People v Pulley, 66 Mich App 321, 326-327; 239 NW2d 366 (1976).

Issues raised by Wright only:

III. Where a statute authorizes both a fine and imprisonment, did the trial court err in imposing such a sentence with the additional requirement that defendant must first pay the fine in order to qualify for an early parole?

The defendant Wright was convicted of one count of conspiracy to deliver heroin and of three counts of delivery of heroin. He was sentenced to serve 13 years, 4 months to 20 years on each count, the sentences to run concurrently. In addition, defendant was fined $151,000, which included $25,000 for each count, $10,500 in court costs, and $40,500 for his maintenance while in prison. Furthermore, the trial court ordered the $151,000 to be paid prior to any early release or parole from prison, provided, however, that under no circumstances was he to be detained longer than the maximum of 20 years.

The defendant contends that this sentence violates the indeterminate sentence statute, MCL 769.8; MSA 28.1080, because, in the face of his inability to pay the fine, there was in reality no minimum sentence, but only a maximum sentence.

Defendant was convicted of delivery of heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), which carries penalty of imprisonment for not more than 20 years, or a fine of not more than $25,000, or both. MCL 769.5; MSA 28.1077 provides as follows:

"Sec. 5. Whenever it is provided that an offender shall be punished by imprisonment and a fine, such offender may at the discretion of the court, be sentenced to be punished by such imprisonment without the fine or by such fine without the imprisonment; and whenever it is provided that an offense shall be punished by fine or imprisonment, the court may impose both such fine and imprisonment in its discretion. If the court shall impose both a fíne, costs and imprisonment in any state prison or reformatory the offender shall be detained in said prison or reformatory until said fíne and costs are paid, not exceeding however, the additional time expressed in said sentence for the non-payment of the same. ” (Emphasis added.)

The indeterminate sentence statute, MCL 769.8; MSA 28.1080, at the time in question, provided in pertinent part:

"Sec. 8. When any person shall hereafter be convicted for the first * * * time of crime committed after this act takes effect, the punishment for which prescribed by law may be imprisonment in the state prison at Jackson, the Michigan reformatory at Ionia, the state house of correction and branch of the state prison in the upper peninsula, the Detroit house of correction, or any other prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term except as hereinafter provided. The maximum penalty provided by law shall be the maximum sentence in all cases except as herein provided and shall be stated by the judge in passing sentence.” (Emphasis added.)

The Supreme Court explained in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972), that the purpose of the Legislature in enacting the indeterminate sentence statute was to give correction authorities some discretion in the length of a prisoner’s sentence. It held, therefore, that any sentence which provides for a minimum exceeding two-thirds of the maximum is improper as failing to comply with the indeterminate sentence statute.

In his motion for a new trial, defendant argued his inability to pay the fines and costs and stated that the imposition of these fines violated the constitutional guarantee of equal protection regardless of economic status. The trial court said that since defendant would not be obliged to serve beyond the maximum statutory limit, there was no violation of constitutional law.

In Williams v Illinois, 399 US 235, 242; 90 S Ct 2018; 26 L Ed 2d 586 (1970), the United States Supreme Court considered a statutory scheme whereby defendants who did not pay their fines were able to "work off” the fines at the rate of $5 per day, resulting in imprisonment beyond the statutory maximum. The Court said:

"It is clear, of course, that the sentence was not imposed upon appellant because of his indigency but because he had committed a crime. And the Illinois statutory scheme does not distinguish between defendants on the basis of ability to pay fines. But, as we said in Griffin v Illinois [351 US 12; 76 S Ct 585; 100 L Ed 891 (1956)], 'a law nondiscriminatory in its face may be grossly discriminatory in its operation.’ Id., at 17 n 11. Here the Illinois statute as applied to Williams works an invidious discrimination solely because he is unable to pay the fine. On its face the statute extends to all defendants an apparently equal opportunity for limiting confinement to the statutory maximum simply by satisfying a money judgment. In fact, this is an illusory choice for Williams or any indigent who, by definition, is without funds. Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effective exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.” (Footnotes omitted.)

The Court noted that its decision did not apply to a defendant’s willful refusal to pay a fine or court costs. See also, Tate v Short, 401 US 395; 91 S Ct 668; 28 L Ed 2d 130 (1971), where the Supreme Court held that imprisonment of an indigent without means to pay accumulated traffic fines in a state with a "fines only” policy for traffic offenses constitutes impermissible discrimination on the basis of economic status.

This Court has previously held that revocation of probation for failure to pay a fine or costs by one who is unable to pay constitutes a denial of equal protection as guaranteed by the Fourteenth Amendment. People v Terminelli, 68 Mich App 635; 243 NW2d 703 (1976), People v Billy Williams, 66 Mich App 67; 238 NW2d 407 (1975).

We would find, by analogy, that the legislative intent, as embodied in the indeterminate sentence statute, would be thwarted if an indigent defendant were precluded from serving anything less than the maximum sentence due to his inability to pay the fines and costs imposed. This situation would render the minimum sentence illusory and would constitute an invidious discrimination on the basis of economic status.

We would go further and say that even if defendant were financially able to pay the fine, the trial court would be in violation of the indeterminate sentence statute as it is interpreted in Tanner, supra, if the minimum sentence were made conditional on payment of the fine. The trial judge cannot deprive the parole board of its legislatively mandated discretion in determining a defendant’s sentence once the defendant has served the minimum term which was imposed.

We have previously indicated that defendant Wright is entitled to reversal and a new trial based on Issue I. Should the defendant be convicted anew, we caution the trial court that it cannot condition defendant’s early release, subsequent to serving the minimum sentence, on the payment of any fine which may be imposed.

IV. Did the trial court err reversibly in failing to conduct an evidentiary hearing on the issue of entrapment, sua sponte, where defendant had previously testified and denied any participation in the alleged offense?

Defendant bases his entrapment issue on the fact that the police contacted Thomas Moss, the informant, and asked him to help develop a case against defendant Wright. Moss claimed to be related to the defendant by marriage. The defendant alleges further that "the investigation commenced without any showing that there was a basis for suspecting any wrongdoing by defendant Wright”.

Defendant has failed to allege anything which ould constitute a prima facie showing that he had a valid defense of entrapment. Michigan has adopted an objective test of entrapment in People v Turner, 390 Mich 7; 210 NW2d 336 (1973), which condemns improper police conduct that could induce or instigate the commission of a crime by one not ready or willing to commit it. There was no indication that Moss instigated the alleged criminal act, nor is there any impropriety in the fact that Moss was tangentially related to defendant. In any event, the police need not have "probable cause” prior to beginning an investigation. Thus, defendant’s issue is without merit, as the trial court had no reason to conduct an evidentiary hearing on the issue of entrapment.

Issues raised by defendant Perez:

V. Did the trial court err in denying defendant Perez’s motion to dismiss the charge of conspiracy to deliver heroin on the basis of insufficient evidence?

A magistrate’s determination of probable cause to believe defendant committed the crime will not be upset on appeal unless a clear abuse of discretion is shown. People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975), People v Oster, 67 Mich App 490; 241 NW2d 260 (1976). Further, a trial court, in considering a motion to dismiss or direct a verdict, must first decide if the evidence introduced at the time the motion was made, viewed in the light most favorable to the prosecution, is insufficient to justify a reasonable man in concluding that all the elements of the crime were established beyond a reasonable doubt. People v John Earl Scott, 72 Mich App 16; 248 NW2d 693 (1976), People v Benevides, 71 Mich App 168; 247 NW2d 341 (1976), People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

Criminal conspiracy is a mutual understanding or agreement between two or more persons, express or implied, to do or accomplish some criminal or unlawful act. People v Atley, 392 Mich 298, 311; 220 NW2d 465 (1974). To prove conspiracy in the instant case, it must be established that the defendants intended to deliver heroin, and to establish that intent, there must be knowledge of the unlawful purpose of delivery of heroin. The gist of the offense lies in the unlawful agreement. Direct proof of agreement is not required, nor is it necessary that a formal agreement be proven. It is sufficient if circumstances, acts, and conduct of the parties establish an agreement in fact. Also, the conspiracy may be established by circumstantial evidence and may be based on inferences. People v Thomas Hintz, 69 Mich App 207, 217-218; 244 NW2d 414 (1976).

Defendant submits that both at preliminary examination and at trial there was sufficient evidence to establish a conspiracy between defendant Wright and McCuin to deliver heroin. Defendant only challenges the sufficiency of the. evidence regarding his participation.

The testimony indicates the extent of defendant’s participation in the alleged conspiracy as follows: on September 27, 1974, at 5:30 p.m., Mr. Moss and Police Officer Fleming went to Carol McCuin’s home with the intention of purchasing 1/8 of a kilogram of heroin. Mr. Wright arrived shortly thereafter, but the sale did not take place. Mr. Moss and Arnold Wright left the house and drove around for the next six hours. Police Officer Fleming remained at the house with Carol Mc-Cuin. Shortly after midnight, a Mexican male and a Mexican female arrived at Ms. McCuin’s home. The man, later identified as Salvadore Perez, was directed upstairs, while the female waited downstairs with Officer Fleming. Mr. Moss and Mr. Wright arrived, and Arnold Wright immediately went upstairs. Wright and Perez came downstairs and, after a short introduction of Perez to Fleming and Moss, Perez and his female companion left. Immediately after Mr. Perez had departed, Arnold Wright pointed upstairs, Carol McCuin retrieved the heroin, and the sale was completed.

The foregoing facts leading up to the heroin sale reasonably infer that Mr. Perez participated in and provided the essential element necessary to the continuance of the conspiracy, that is, the heroin itself. Thus, viewing this evidence in the light most favorable to the prosecution, it cannot be said that the trial court erred in refusing to dismiss the conspiracy count against the defendant Perez or abused its discretion in binding him over for trial.

VI. Did the trial court err in denying defendant’s motion to dismiss the charge of aiding and abetting the delivery of heroin on the basis of insufficient evidence?

As we have previously stated, the standard of review of a motion to dismiss or direct a verdict is whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to justify a reasonable man in concluding that all the elements of the crime were established beyond a reasonable doubt. Hampton, supra, 368. With respect to a magistrate’s decision to bind over, the review test to be applied is whether there is an abuse of discretion. Juniel, supra.

Defendant contends that there is no evidence showing he aided or abetted in the delivery of heroin.

It has been held that one aids and abets another to commit a crime where the former takes conscious action seeking to make the criminal venture succeed. People v Gordon, 60 Mich App 412, 418; 231 NW2d 409 (1975). Although defendant was not present when the actual delivery took place, the timing of defendant’s arrival after a six-hour wait and the delivery of the heroin after defendant’s departure reasonably leads to the conclusion that the defendant delivered the heroin to the house and, thus, aided the delivery of heroin. The magistrate did not abuse his discretion in binding over, nor did the court err in refusing to dismiss the charges, as the evidence, admittedly circumstantial, when viewed in the light most favorable to the prosecutor, established that the defendant committed the crime for which he was charged.

VII. Did the trial court err in denying defendant Perez’s pretrial motion for a separate trial?

Defendant Perez moved for a separate trial from the other defendants, merely alleging that otherwise he would "be prejudiced substantially in his rights”. There was no showing that the three defendants had antagonistic defenses. The trial court denied the motion.

In People v Hurst, 396 Mich 1, 6-9; 238 NW2d 6 (1976), the Michigan Supreme Court held that the decision whether to hold a joint or separate trial is discretionary with the trial court, citing MCL 768.5; MSA 28.1028. The Court also stated that a defendant does not have a right to a separate trial, but that a severance should be granted where the defenses of several defendants jointly indicted are antagonistic to each other. Further, in moving the court for separate trial, the defendant must show that his "substantial rights” will be prejudiced by a joint trial. See also, People v Carroll, 396 Mich 408; 240 NW2d 722 (1976). A supporting affidavit defining the inconsistencies between the defenses of the parties is required before an abuse of discretion is found. People v Mullane, 256 Mich 54, 56; 239 NW 282 (1931).

In the absence of an affirmative showing of prejudice to the defendant’s substantial rights, the refusal of a trial court to grant a separate trial is not an abuse of discretion. We find no reversible error. People v Schram, 378 Mich 145, 156; 142 NW2d 662 (1966), People v Scott, 61 Mich App 91, 94; 232 NW2d 315 (1975).

VIII. Did the trial court abuse its discretion in denying defendant Perez’s attempt to enter a plea of guilty to a lesser included offense during the course of the trial?

Prior to trial, the prosecutor conducted plea negotiations with the three defendants and their counsel. Mr. Perez was to be allowed to plead to a reduced charge of attempted delivery of heroin. This offer was contingent upon the other defendants also pleading to a reduced charge. The other defendants refused to accept the offer, and the prosecutor rescinded the negotiated offer with respect to all the defendants.

Midway through the trial, counsel for Mr. Perez discussed with the prosecutor the possibility of Mr. Perez pleading to the reduced charge of attempted delivery of heroin. The prosecutor indicated that he would not object to such a plea, but that it would be within the trial court’s discretion whether or not to accept it. The trial court refused to accept the offered plea, stating:

"I think if this had been the posture of the situation before trial before I heard any of the testimony and before I came to the conclusion that basically all you have here is a question of credibility, and that if the jury believes the testimony that they have heard, in all likelihood they will return a verdict of guilty, I think I might have been disposed to permit not only this defendant, but anyone of the other defendants to accept the prosecutor’s offer of a plea to a lesser, included charge, notwithstanding it came on the day of trial.
"But when I listen to the testimony now and I realize that if these witnesses are to be believed, this is not just a little penny-ante case of pushing ten-dollar and twenty-dollar packs. This is approaching the nature of big business. And when I realize that prior to trial each defendant had been — his counsel, at least, had been given access to practically everything that has come out here in trial, still their position was that no remorse, no desire to cooperate. And I can’t see at this late stage, after three days of tying up this jury and tying up this Court, giving breaks to any defendant. And that really is what it amounts to.”

In People v Matulonis, 60 Mich App 143, 148-149; 230 NW2d 347 (1975), this Court stated:

"We do not hold that in no circumstances outside of the ambit of the court rules can a trial court refuse to accept the prosecutor’s recommendation and the defendant’s offer to plead guilty to a lesser included offense. Indeed, there may well be situations in which the public interest and the proper administration of justice justify such a decision.”

Further, the Court stated that the trial court should take into consideration such factors as the offense with which the defendant was charged, the surrounding factual circumstances, the lesser included offenses of the plea bargain, and the opinions of other interested parties in deciding whether to accept a prosecutor’s recommendation. The trial court can refuse to accept a prosecutor’s recommendation in a plea bargain if it finds that the prosecuting attorney has abused his prosecutorial discretion.

In the case at bar, the trial court took into consideration the factors enunciated in Matulonis, supra, and it cannot be said that the trial court abused its discretion in refusing to accept the prosecutor’s recommendation.

Conclusion

We find that the prosecutor’s improper "civic duty” remarks in his closing argument constituted reversible error and would entitle both defendants to a new trial. Additionally, we find that defendant Wright’s sentence was improper. A trial court cannot deprive the parole board of its discretion to release a defendant once he has served the minimum sentence imposed simply because he has not paid the fine. We find no other errors which would require reversal.

Borchard, J., did not participate.


source: Caselaw Access Project

author: A. C. Miller, J.

license: Public Domain

text:
    PEOPLE v DOSS
    Docket No. 30350.
    Submitted June 24, 1980, at Detroit.
    Decided September 3, 1980.
    Leave to appeal applied for.
    Edward Doss was convicted of armed robbery, Wayne Circuit Court, Roland L. Olzark, J. Defendant appeals, alleging that the trial court erred in denying an adjournment which defense counsel requested in order to obtain a transcript of the first trial, in permitting unindorsed prosecution witnesses to testify in rebuttal, and in coercing a jury verdict. Held:

    1. There was no abuse of discretion in the denial of an adjournment. Defense counsel’s request for a transcript was tardy and there was no showing that the defendant was prejudiced by the lack of a transcript.
    2. The prosecutor sought to indorse two witnesses at the close of his proofs. The request was denied. After the defendant testified to his absence from the scene of the crime the witnesses were allowed to testify that they had seen the defendant leave the scene of the crime. This was proper rebuttal, and, in this case, admission of the testimony was not a cause for reversal.
    3. The tried court’s instruction which informed the jury that they should listen to each other with open minds and that their verdict should be unanimous was not coercive.
    Affirmed.
    1. Trial — Criminal Law — Adjournment — Judge’s Discretion.
    A request for an adjournment is addressed to the sound discretion of the trial court and the trial court’s determination will not be reversed unless there was an abuse of discretion.
    2. Trial — Criminal Law — Adjournment.
    Factors to be considered by a trial court when faced with a defendant’s request for an adjournment are: (1) the origin and nature of the right asserted; (2) the defendant’s reasons for asserting the right; (3) the defendant’s negligence or untimely assertion of the right; and (4) the extent to which previous delays or disruptions are attributable to the defendant.

      References for Points in Headnotes
    [1] 17 Am Jur 2d, Continuance § 3.
    [2] 17 Am Jur 2d, Continuance §§ 5 et seq., 43 et seq.

    [3] 29 Am Jur 2d, Evidence §§ 250, 269.
    [4] 75 Am Jur 2d, Trial § 884.
    76 Am Jur 2d, Trial §§ 1059-1061.

      3. Evidence — Criminal Law — Rebuttal Evidence.
    The determination as to whether evidence which could have been offered in a party’s case in chief may be given in rebuttal is within the discretion of the trial court; generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness.
    4. Jury — Jury Instructions — Criminal Law.
    A jury instruction which informs the jury that they should listen to each other with open minds and that their verdict should be unanimous is not coercive.

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

      Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and A. C. Miller, JJ.

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

   A. C. Miller, J.

Defendant appeals his conviction of armed robbery, MCL 750.529; MSA 28.797, claiming error in denial of adjournment, permitting unendorsed witnesses to testify on rebuttal and instructional coercion. Defendant was first brought to trial in September of 1975. His trial resulted in a mistrial. On the day defendant’s second trial was scheduled to commence, defendant’s newly retained counsel requested an adjournment so that a transcript of the first trial could be made. The trial court denied counsel’s request. We find no error.

A request for an adjournment is addressed to the sound discretion of the trial court, which will not be reversed unless that discretion is abused. People v Shuey, 63 Mich App 666; 234 NW2d 754 (1975), People v Parker, 76 Mich App 432; 257 NW2d 109 (1977). Those factors which must be carefully balanced by the trial court are: (1) the origin and nature of the right asserted; (2) the defendant’s reasons for asserting the right; (3) the defendant’s negligence or untimely assertion of the right; and (4) the extent to which previous delays or disruptions are attributable to the defendant. People v Eddington, 77 Mich App 177; 258 NW2d 183 (1977), lv den 402 Mich 944 (1978).

In considering these factors in the case at bar, there is no indication that the trial court abused its discretion. Defense counsel was tardy in requesting a transcript of the mistrial. Moreover, defendant has not established that any prejudice resulted from not having a transcript of this mistrial. People v Hill, 88 Mich App 50; 276 NW2d 512 (1979). In slightly different terms, there was no "good cause” to justify the expense and inconvenience of an adjournment. See MCL 768.2; MSA 28.1025 and GCR 1963, 503.1. Once all of the component pieces of a trial finally come together, adjournment of the trial is no trivial matter.

Defendant next alleges that the prosecuting attorney improperly split his case before the jury and that the trial court erred in permitting the prosecutor to introduce certain testimony during rebuttal. The prosecutor sought to endorse at the close of his proofs two witnesses who had been in a hallway adjacent to the apartment in which the robbery took place. These witnesses observed the defendant depart from the scene. The witnesses were present at the trial and were offered to the defense for side bar interviews. The trial court denied the prosecutor’s request as untimely. Defendant took the stand in his own behalf and testified that he was not present in the area where the robbery occurred. The trial court then allowed the prosecutor to admit the testimony of the two witnesses to rebut defendant’s assertion that he was not in the area. We find no error.

In People v Ejeber, 66 Mich App 333, 340-341; 239 NW2d 604 (1976), this Court aptly summarized the law in this area:

"Legitimate rebuttal testimony is limited to the refutation or impeachment of relevant and material evidence properly raised by the opposing party. People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), 1 Gillespie, Michigan Criminal Law & Procedure, 2d ed, ¶ 407, pp 493-494. Ordinarily a prosecutor is prohibited from calling a rebuttal witness to offer testimony which should have been received in his case in chief. People v Quick, 58 Mich 321; 25 NW 302 (1885). It is still the rule, however, that the decision as to 'whether evidence which could have been offered before resting may be given in rebuttal is a matter within the discretion of the trial court’. People v Utter, 217 Mich 74; 185 NW 830 (1921).”

In People v McGillen #1, 392 Mich 251, 268; 220 NW2d 677 (1974), the Supreme Court stated:

"Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness.”

In this case, the testimony of the prosecutor’s rebuttal witnesses tended to disprove the defendant’s assertion that he was not at the scene of the robbery. Moreover, the prosecutor had attempted to endorse these witnesses so that they might testify in the prosecutor’s case in chief. Contra, People v Beck, 96 Mich App 633; 293 NW2d 657 (1980). In the circumstances of this case, we conclude that no reversible error occurred. People v Tocco, 60 Mich App 130; 230 NW2d 341 (1975), lv den 395 Mich 822 (1975).

Defendant lastly alleges that the jury’s verdict was coerced by the following part of the original instruction:

"And in your deliberations you should listen to each other with an open mind and your final verdict should be unanimous; that is, it will have to be agreed upon by all of you.”

We do not view this instruction as coercive. It is informational and not designed to cause a juror "to abandon his conscientious dissent and defer to the majority”. People v Goldsmith, 94 Mich App 155, 159; 288 NW2d 372 (1979). See also, People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974).

Affirmed.


author: Mackenzie, P.J.

text:
    PEOPLE v McKIM
    Docket No. 44305.
    Submitted May 14, 1980, at Marquette.
    Decided September 3, 1980.
    Donald K. McKim was convicted of failing to return a rented automobile, Gogebic Circuit Court, Donald L. Munro, J. At the trial the defendant moved for a directed verdict on the basis that the statute under which the defendant was charged required notice to the defendant that he would be guilty of larceny if he failed to return the vehicle by a date certain and that the notice which was sent to the defendant was insufficient in that it only requested return of the vehicle as soon as possible. The motion for directed verdict was denied. Defendant appeals. Held:

    The statute requires that the defendant be notified of a definite time by which the vehicle was to be returned. The use of the phrase "as soon as possible” was insufficient to satisfy the statute. Therefore, the prosecution failed to prove an element of the crime: the failure to return the vehicle by the date specified in a notice to the defendant.
    Reversed, and case dismissed.
    1. Criminal Law — Act to be Punished.
    No one can be punished for doing an act unless it clearly appears that the act sought to be punished comes clearly within both the spirit and the letter of the law prohibiting it.
    2. Criminal Law — Penal Code — Construction — Statutes.
    All provisions of the Penal Code are to be construed according to the fair import of their terms in order to promote justice and to effect the object of the law (MCL 750.2; MSA 28.192).
    3. Criminal Law — Statutes — Due Process — Vagueness.
    A penal statute, in order to meet due process requirements, must not be so vague that people of common intelligence must guess at its meaning and differ as to its application.
    References for Points in Headnotes
    [1, 3, 4] 21 Am Jur 2d, Criminal Law § 17.
    [2] 73 Am Jur 2d, Statutes §§ 293, 295.

      4. Criminal Law — Statutes — Failure to Return Vehicle — Notice.
    The statute which provides criminal sanctions for failure to return a rented vehicle requires the lessor to notify the lessee of a stated time by which the vehicle is to be returned before the statute applies; use of the phrase "as soon as possible” does not satisfy the statutory notice requirement (MCL 750.362a; MSA 28.594[1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Anders B. Tingstad, Jr., Prosecuting Attorney, for the people.

      Gail Rodwan, Assistant State Appellate Defender, for defendant on appeal.
    Before: Mackenzie, P.J., and Bronson and Allen, JJ.
   Mackenzie, P.J.

On December 8, 1978, defendant was convicted by a jury of failing to return a rented automobile, contrary to MCL 750.362a; MSA 28.594(1). He was sentenced on January 18, 1979, to serve a prison term of 15 months to 2 years. Defendant appeals as of right.

At trial, Alvin Nieme, an employee of Bessemer Auto Company, Bessemer, Michigan, testified that he had rented a station wagon to the defendant on April 28, 1978. The rental contract was for a period of two to three days or until April 30, 1978.

John Racovitis, the general manager of Bessemer Auto Company, testified that, in accordance with two separate telephone calls from someone named "McKim” who stated that the car could not be returned, the rental agreement was extended first to May 8, and then to May 19. When the car was not returned on May 19, Mr. Racovitis attempted unsuccessfully to reach the defendant by telephone and, finally, on May 22, he contacted both the police and the prosecutor regarding the automobile. On May 30, Mr. Racovitis sent a certified letter to the defendant at his last known address, requesting return of the automobile; a signed receipt indicated that defendant received the letter on June 5, 1978. The letter contained the following language:

"The Rent-a-Car was to be returned on 5-19-78 it hasn’t been returned, [sic] Please return as soon as possible.”

Ontonagon County Deputy Sheriff Edward Balcomb testified that he arrested defendant Donald McKim on June 15, 1978, and transported him to the Ontonagon County Sheriff’s Department. Undersheriff Robert Botkin testified that he went to the McKim residence in Ewen on June 28 and picked up the car.

The applicable statute, MCL 750.362a; MSA 28.594(1), provides:

"Any person to whom a motor vehicle, trailer or other tangible property is delivered on a rental or lease basis under any agreement in writing providing for its return to a particular place at a particular time who refuses or wilfully neglects to return such vehicle, trailer or other tangible property, after the expiration of the time stated in a notice in writing proved to have been duly mailed by registered or certiñed mail addressed to the last known address of the person who rented or leased the motor vehicle, trailer or other tangible property, and with intent to defraud the lessor, is guilty of larceny. If the vehicle, trailer or other tangible property exceeds the value of $100.00 he shall be guilty of a felony punishable by imprisonment for not more than 2 years or by a fine of not more than $1,000.00, or both. If the vehicle, trailer or other tangible property is of the value of $100.00 or less, he shall be guilty of a misdemeanor”. (Emphasis added.)

Defense counsel moved for a directed verdict at the close of the prosecutor’s proofs on two bases: (1) that the statute in question required that the defendant be placed on notice that he would be guilty of larceny if he failed to return the vehicle by a certain date and (2) that the language in the letter which was intended to serve as the notice was so vague it did not reasonably place the defendant on notice as to what was expected of him; it required him to return the car not by a date certain, but "as soon as possible”. The trial judge denied the motion for a directed verdict stating that while he was inclined to admonish the lessor on the ground that the notice sent by the lessor did not state a specific date, he would deny the motion for a directed verdict since in most fields the law operates "on the basis of reasonable time”.

When the trial judge denied defendant’s motion for a directed verdict, he was apparently relying on the principle of contract law that if the time of performance of a contract is not specified, the contract must be performed within a reasonable time, McCune v Grimaldi Buick-Opel, Inc, 45 Mich App 472, 476; 206 NW2d 742 (1973).

The question raised here does not primarily involve the time of performance for a contract — it involves an essential element of a crime: failure to return a motor vehicle after expiration of the date stated in a written notice. One of the essential elements of the crime charged is missing because the defendant was never notified of a specific date for the return of the automobile.

"It is a well-settled rule of law that no one can be punished for doing an act unless it clearly appears the act sought to be punished comes clearly within both the spirit and letter of the law prohibiting it. * * *
"Defendant ought not to be convicted unless he is clearly and unequivocally within the language of a statute which by its terms covers his case.” People v Goulding, 275 Mich 353, 359; 266 NW 378 (1936).

See also People v Kirstein, 6 Mich App 107, 114; 148 NW2d 539 (1967).

All provisions of the Penal Code are to be construed according to the fair import of their terms in order to promote justice and to effect the objects of the law. MCL 750.2; MSA 28.192. In order for a penal statute to meet due process requirements, it must not be so vague that people of common intelligence must guess at its meaning and differ as to its application. People v Posner, 79 Mich App 63, 71; 261 NW2d 209 (1977).

We find that the statute required the rental company to state a definite period of time within which defendant was to return their vehicle. The use of the term "as soon as possible” was insufficient in this regard. For this reason alone, plaintiff failed to prove every element of this crime. Furthermore, even if "as soon as possible” were considered by this Court to be a suitable statement of time for the purposes of the statute, such a construction would violate defendant’s right to due process because it leaves persons of common intelligence in the position where they must guess at its meaning.

For these reasons, the trial court must be reversed and this case dismissed.


author: J. T. Kallman, J.

text:
    PEOPLE v GARROW
    Docket No. 46343.
    Submitted June 2, 1980, at Grand Rapids.
    Decided September 3, 1980.
    Defendant, Gregg Owen Garrow, was charged with first-degree criminal sexual conduct in Kent Circuit Court. The court ruled that first-degree criminal sexual conduct requires that sexual penetration be for the purpose of arousal, stimulation, or gratification of sexual emotions and directed a verdict of not guilty as a result of the prosecutor’s inability to submit proof as to the sexual nature of the attack, George V. Boucher, J. On appeal, the prosecution argues that the first-degree criminal sexual conduct statute does not require that penetration be for the purpose of arousal, stimulation, or gratification of sexual emotions, that the Michigan Criminal Jury Instruction which does require those elements is not the proper standard to apply, and that the trial court erred by following the jury instruction criteria rather than the statute. In support of the trial court’s ruling, defendant contends that second-degree criminal sexual conduct requires arousal or gratification of sexual emotions and that second-degree sexual conduct is a necessarily lesser included offense of first-degree criminal sexual conduct and that, therefore, first-degree criminal sexual conduct also requires arousal or gratification of sexual emotions. Held:

    1. An act of criminal sexual conduct in the first degree is committed when there is an intrusion into the genital or anal opening of another person under one of the enumerated circumstances in the statute, regardless of the sexual purpose of the actor. The Michigan Criminal Jury Instruction is erroneous to the extent that it conflicts with the statutory elements of first-degree criminal sexual conduct. The trial court erred in following the jury instruction criteria rather than the statutory criteria.
    2. Second-degree criminal sexual conduct is not a necessarily lesser included offense of first-degree criminal sexual conduct because it is possible to commit the greater offense without committing the lesser offense. Although second-degree criminal sexual conduct requires arousal or gratification of sexual emotions, first-degree criminal sexual conduct does not.

      References for Points in Headnotes
    [1] 65 Am Jur 2d, Rape §§ 1, 2.
    [2] 21 Am Jur 2d, Criminal Law § 182 et seq.

    [3] 21 Am Jur 2d, Criminal Law §§ 65, 169, 170.

      3. The trial court ruled that the evidence against the defendant was insufficient to support a conviction of the offense charged, and, even though the trial court’s ruling regarding the elements of first-degree criminal sexual conduct was erroneous, double jeopardy bars remand for a second trial.
    Appeal dismissed.
    1. Rape — First-Degree Criminal Sexual Conduct- — Statutes.
    An act of criminal sexual conduct in the first degree is committed when there is an intrusion into the genital or anal opening of another person under one of the enumerated circumstances, regardless of the sexual purpose of the actor (MCL 750.520a[h], 750.520b[l]; MSA 28.788[l][h], 28.788[2][1]).
    2. Criminal Law — Offenses — Necessarily Lesser Included Offenses.
    For an offense to be a necessarily included lesser offense, the lesser offense must be such that it is impossible to commit the greater offense without first having committed the lesser.
    3. Criminal Law — Constitutional Law — Double Jeopardy — Acquittal — Retrial.
    Double jeopardy bars retrial of a criminal defendant once he has been acquitted even though the underlying legal ruling is erroneous.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      Mema & Pawlowski (by Frank Stanley), for defendant on appeal.
    Before: R. B. Burns, P.J., and Mackenzie and J. T. Kallman, JJ.

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

   J. T. Kallman, J.

The defendant, Gregg Owen Garrow, was charged with criminal sexual conduct in the first degree, contrary to MCL 750.520b(l)(f); MSA 28.788(2)(l)(f). The charge arose from an alleged sexual attack on Valerie Werkema. A jury trial began on June 12, 1979, and the trial judge directed a verdict of not guilty on June 13, 1979, stating that the prosecutor’s inability to submit proof as to the sexual nature of the alleged attack required the case to be dismissed. The people appeal as of right.

At trial, Werkema testified that she and defendant had lived together but she had asked him to leave and had resisted his attempts at reconciliation. She said that on the morning of October 29, 1978, she was in bed with another man, James Vlasich, when she heard a loud noise in her living room. She said she put on her robe, went into the living room, and was met there by the defendant, who yelled, started to push and shove, and then hit her in the face. Vlasich came out to see what was going on, but left the house when defendant pulled a knife and told him to leave. Defendant told Werkema that if she took him back he would stop, but Werkema told him she would not take him back. Kathryn Mahar, a mutual friend of Werkema and defendant, came in, attempted to break up the fight, then left after Werkema asked her to telephone the police. During the scuffle, defendant slashed Werkema’s waterbed.

Werkema said defendant knocked her down and inserted his fingers into her vagina. She said he caught his fingers on her IUD and pulled it, which caused her severe pain. Werkema indicated that their friend returned and that the three continued to struggle until defendant and Mahar left.

During direct questioning of Mahar, the court excused the jury to hear arguments on the admissibility of a tape recording. During that conference, the court asked the prosecutor what proofs had been shown or would be shown regarding the sexual nature of the defendant’s act. The prosecutor argued that a conviction for criminal sexual conduct in the first degree does not require proof as to the sexual nature of the act. When the prosecutor told the judge he would introduce no further proof as to the sexual nature of the act, the court called back the jury and directed a verdict of not guilty.

The prosecution argues on appeal that the court erred in ruling that to convict of first-degree criminal sexual conduct, the prosecution must establish that the sexual penetration was for the purpose of arousing, stimulating or gratifying sexual emotions.

MCL 750.520b; MSA 28.788(2) states, in pertinent part:

"A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: * * MCL 750.520b(l); MSA 28.788(2)(1).

"Sexual penetration” is defined within the statute:

" 'Sexual penetration’ means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” MCL 750.520a(h); MSA 28.788(l)(h).

The plain meaning of this statute is that an act of criminal sexual conduct in the first degree is committed when there is an intrusion into the genital or anal opening of another person under one of the enumerated circumstances, regardless of the sexual purpose of the actor. People v Hernandez, 80 Mich App 465, 474; 264 NW2d 343 (1978).

Nevertheless, CJI 20:2:04 suggests that sexual purpose is an element of first-degree criminal sexual conduct. The standard instruction states:

"If you find that any act occurred, it must have been a sexual act. It must have had as its purpose the arousing, stimulating or gratifying of the sexual emotions [or it must have been done with some other sexually improper intent or purpose].”

The use note to this instruction states that it must be given "where there is any question about the sexual nature of the act”.

We agree with the majority in Hernandez, supra, that CJI 20:2:04 is erroneous as it conflicts with the statutory elements of first-degree criminal sexual conduct. Because the trial' court in the instant case based its directed verdict of acquittal on the opinion that first-degree criminal sexual conduct requires proof of sexual purpose, that ruling was erroneous.

Defendant nevertheless contends that because this Court has held that second-degree criminal sexual conduct is a lesser included offense of first-degree criminal sexual conduct, the sexual purpose that is an element of second-degree criminal sexual conduct is also an element of first-degree criminal sexual conduct. Second-degree criminal sexual conduct is defined in MCL 750.520(c); MSA 28.788(3):

"A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists: * *
"Sexual contact” is defined within the statute:
" 'Sexual contact’ includes the intentional touching of the victim’s or actor’s intimate parts or the intentional touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.” MCL 750.520a(g); MSA 28.788(l)(g).

It is evident that an element of second-degree criminal sexual conduct is that the touching is for the purpose of sexual arousal or gratification. We note that the definition of "sexual penetration” includes no requirement of intent. We do not find second-degree criminal sexual conduct to be a necessarily lesser included offense of first-degree criminal sexual conduct because, under the clear meaning of the statute as recognized in Hernandez, proof of sexual purpose is not required for a finding of guilty of first-degree criminal sexual conduct. For an offense to be a necessarily lesser included offense, the lesser must be such that it is impossible to commit the greater without having committed the lesser. People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975).

We recognize that in most cases, second-degree criminal sexual conduct is a factually included offense within first-degree criminal sexual conduct, for sexual penetration is usually for a sexual purpose. Where the additional element of sexual intent is mandated for a finding of guilty of second-degree criminal sexual conduct, however, that offense cannot be considered a necessarily lesser included offense of first-degree criminal sexual conduct.

We recognize that other panels of this Court have held otherwise. In People v Thompson, 76 Mich App 705, 708; 257 NW2d 268 (1977), this Court held that second-degree criminal sexual conduct was a necessarily lesser included offense of first-degree criminal sexual conduct. The Court reasoned: "Obviously, if there is a penetration there is contact.” This reasoning has been followed in People v Green, 86 Mich App 142; 272 NW2d 216 (1978), and People v Secreto, 81 Mich App 1; 264 NW2d 99 (1978). We believe these cases have failed to consider the differences in the plain language of the statutory definitions of sexual penetration and sexual contact.

While we find the trial court’s ruling regarding the elements of first-degree criminal sexual conduct to be erroneous, double jeopardy bars us from remanding for a second trial on the same offense. The trial court evaluated the prosecution’s evidence and determined that it was legally insufficient to support conviction on the charged offense. When a criminal defendant has been acquitted, retrial on the same offense is barred even if the legal ruling underlying the acquittal was erroneous. Sanabria v United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978).

In People v Jakiel, 92 Mich App 754; 285 NW2d 448 (1979), this Court dismissed a prosecution’s appeal on facts similar to those presented here. In Jakiel, the trial court erroneously excluded evidence, then directed a verdict of acquittal based on the insufficiency of the evidence. This Court held that even though the trial court’s ruling was erroneous, the prosecution’s appeal was barred because the trial court had made its determination based on the sufficiency of the evidence. In the instant case, the trial court similarly ruled that the evidence against the defendant was insufficient to support a conviction of the offense' charged. While this ruling was based on an erroneous legal standard, double jeopardy bars retrial.

The prosecution’s appeal must be and hereby is dismissed.


text:
    DeMARS v ROADWAY EXPRESS, INC
    Docket No. 47045.
    Submitted June 26, 1980, at Detroit.
    Decided September 3, 1980.
    Leave to appeal applied for.
    Alfred J. DeMars, plaintiff, became disabled as a result of a series of injuries he sustained to his back and knee while he was employed by Roadway Express, Inc., defendant. The defendant voluntarily paid benefits to the plaintiff following his injury until learning that the plaintiff, subsequent to his last day of work, was convicted of receiving and concealing goods stolen from the defendant. The plaintiff was thereupon discharged, and the defendant ceased paying benefits. The plaintiff filed a petition for a hearing and was awarded disability compensation. A unanimous appeal board affirmed. The defendant appeals by leave granted. Held:

    1. The Court of Appeals is charged with the responsibility of reviewing questions of law involved in any final order of the Worker’s Compensation Appeal Board.
    2. A disabled employee, receiving worker’s compensation benefits, who subsequently is convicted of receiving and concealing goods stolen from his employer who was voluntarily paying benefits, is entitled to continued disability compensation.
    Affirmed.
    1. Worker’s Compensation — Appeal Board — Courts.
    The Court of Appeals is charged with the responsibility of reviewing questions of law involved in any final order of the Worker’s Compensation Appeal Board.
    2. Worker’s Compensation — Employees — Crimes.
    A disabled employee receiving worker’s compensation benefits who subsequently is convicted of receiving and concealing goods stolen from his employer who was voluntarily paying benefits is entitled to continued disability compensation.
    References for Points in Headnotes
    [1] 82 Am Jur 2d, Workmen’s Compensation §§ 630-637.
    [2] 82 Am jur 2d, Workmen’s Compensation § 400.

      Goodman, Eden, Millender & Bedrosian (by Morton A. Eden), for plaintiff.

      Conklin, Benham, McLeod, Ducey & Ottaway, P.C. (by Martin L. Critchell), for defendant.
    Before: J. H. Gillis, P.J., and Brennan and A. C. Miller, JJ.

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

   A. C. Miller, J.

Defendant, Roadway Express, Inc., appeals an August 8, 1979, order of the Worker’s Compensation Appeal Board affirming an administrative law judge’s decision to award total disability compensation to plaintiff, Alfred J. DeMars despite a Federal District Court conviction of receiving and concealing goods stolen from defendant. We affirm.

Plaintiff became disabled as a result of a series of 11 injuries he sustained to his back and knee while he was employed by Roadway between 1970 and 1975. May 27, 1975, was the date of his last work-connected injury and he has not worked since that date. Roadway voluntarily paid benefits following this injury until learning of the August 9, 1975, felony conviction. He was then discharged and the payment of benefits was terminated.

Plaintiff filed a petition for a hearing and was awarded disability compensation at the rate of $112 per week. The judge stated:

"[P]laintifFs job loss due to a criminal conviction has no effect herein since it appears that the disability both preceded and anteceded [sic] the conviction.”

A unanimous appeal board affirmed, agreeing that plaintiff was not disqualified from benefits because of his conviction. Defendant appeals by leave granted.

This Court is charged with the responsibility of reviewing questions of law involved in any final order of the Worker’s Compensation Appeal Board. Aquilina v General Motors Corp, 403 Mich 206; 267 NW2d 923 (1978). It is not claimed that a conviction unrelated to his employer would bar recovery of benefits. This was resolved in Sims v RD Brooks, Inc, 389 Mich 91; 204 NW2d 139 (1973), where claimant was convicted of rape while out on bond pending appeal before taking employment with defendant. He was injured at work. His subsequent prison term made it impossible for him to be available for work. However, plaintiff was not disqualified from benefits:

"Defendants initially argue that plaintiffs incarceration subsequent to his injury terminates the obligation to pay compensation. This is not correct for plaintiff was found to be totally disabled. Under the Workmen’s Compensation Act it is loss of wage earning capacity— not actual loss of wages — which is compensable. The award of compensation, based as it was on a finding of total disability, is not affected by plaintiffs later imprisonment.” Sims, supra, 93.

Defendant claims that where the victim of the crime is the employer the right to benefits ceases, relying upon Todd v Hudson Motor Car Co, 328 Mich 283; 43 NW2d 854 (1950), and Garrett v Chrysler Corp, 337 Mich 192; 59 NW2d 259 (1953). In Todd, claimant was back at favored work after his injury, but was discharged for gambling. In Garrett, claimant was also back at favored work and was discharged for habitual drunkenness which resulted in excessive absenteeism. The cause for the loss of employment was the claimant’s conduct in both cases. In Todd, the Court relied on Pigue v General Motors Corp, 317 Mich 311; 26 NW2d 900 (1947), where an employee on favored work went on strike and was held not entitled to compensation. In Todd, the Court said at 289:

"In the case at bar, lighter work at earnings equal to or greater than received at the date of injury was made available to plaintiff. It was not through physical inability to perform the work, arbitrary caprice of the employer, or some ordinary cause for dismissal that this employment was terminated. Plaintiff was discharged for gambling activities forbidden by law, which were in no wise in furtherance of the duties of his employment.”

In Garrett, supra, the Todd doctrine was extended beyond criminal activity wherein the employer was the "victim”. Garrett made it clear that the basis of the disqualification was not so much the criminality against the employer as the cause for the loss of employment.

"The commission distinguished the instant case from the Todd Case because Todd was engaged in criminal activity (i.e., gambling) in the plant.” Garrett, supra, 194.

But the Supreme Court reversed the commission’s grant of compensation, ruling:

"We consider that the instant case falls within the reasoning in the Todd Case. Plaintiff Garrett was being furnished with suitable employment at no wage loss. His voluntary drunkenness was the reason for his discharge, and not his physical condition * * *” Id.

In the present case, the plaintiff was not working, but rather was receiving compensation at the time of the conviction. There is testimony that he was capable of sedentary work and that he was performing wood work at the State Rehabilitation Center, but these factors are not material to the issue any more than whether he was offered favored work. The reason he was not working was his compensable injury.

Despite the fact that the board erroneously relied upon the fact that favored work had not been offered, it achieved the correct result. It may be that the board was bidding for some legislative relief in this and other similar situations, but such is not the province of the board or the judicial branch.

Affirmed.


author: Per Curiam.

text:
    PEOPLE v DIXON
    Docket No. 45428.
    Submitted June 13, 1980, at Detroit.
    Decided September 3, 1980.
    Leave to appeal applied for.
    James Dixon was convicted of assault with intent to rob while being armed, Recorder’s Court of Detroit, Michael J. Connor, J. He appeals, alleging the trial court erred in permitting the prosecution to impeach him by reference to two prior convictions, by refusing to suppress evidence of a toy gun taken from him at the time of his arrest, and in finding that the prosecution exercised due diligence in attempting to locate several res gestae witnesses. Held:

    1. The trial court’s ruling that evidence of defendant’s two prior convictions could be shown constituted reversible error since it did not comply with the requirement of the appropriate rule of evidence that the trial court articulate on the record the factors it considered in making the determination that the probative value of admitting such evidence outweighed its prejudicial effect.
    2. Evidence of the toy gun taken from the defendant at the time of his arrest was relevant and admissible as reflective of his specific intent and as part of the res gestae of the crime, even though it was not actually used in the assault.
    3. The prosecutor’s failure to produce res gestae witnesses was excusable since due diligence was exercised in attempting to locate them. Determination of due diligence is entrusted to the discretion of the trial court and, absent a clear showing of an abuse of discretion, will not be overturned.
    Reversed and remanded.
    1. Criminal Law — Impeachment of a Witness — Previous Convictions — Determination by Court — Rules of Evidence.
    For the purpose of attacking the credibility of a witness, evidence that he has been convicted of . a crime may be admitted if elicited from him or established by public record during cross-examination, but only if the trial court determines that the probative value of admitting this evidence on the issue of credibility outweighs its prejudicial effect and articulates on the record the factors considered in making the determination (MRE 609[a][2]).

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 320 et seq.

    [2] 75 Am Jur 2d, Trial §§ 573, 575.
    [3] 81 Am Jur 2d, Witnesses §§ 434, 473.
    [4] 29 Am Jur 2d, Evidence § 355.
    [5] 63 Am Jur 2d, Prosecuting Attorneys § 27.

      2. Trial — Jury Instructions — Care in Framing — Criminal Law.
    A trial court should be scrupulously careful in framing its instructions to a jury in a criminal case to refrain from giving the impression that one of the elements of the offense charged has been established as a matter of law.
    3. Prosecuting Attorneys — Testimony of Witnesses — Right to. Remain Silent — Criminal Law.
    A prosecutor should carefully instruct his witnesses to refrain from giving any testimony as to a defendant’s assertion of his right to remain silent, since deliberate eliciting of such an assertion is offensive to the maintenance of a sound judicial process and constitutes reversible error.
    4. Criminal Law — Suppression of Evidence — Relevancy — Admissibility.
    A refusal by a trial court to suppress a toy gun taken from a defendant at the time of his arrest does not constitute reversible error where, although not actually used in the commission of the crime charged, it is relevant and admissible as reflective of his specific intent and as part of the res gestae of the crime.
    5. Witnesses — Criminal Law — Res Gestae Witnesses — Failure to Produce — Due Diligence — Judicial Discretion.
    A failure to produce a res gestae witness at a criminal trial may be excused where the prosecutor makes a showing of due diligence in searching for the witness; the determination of due diligence is entrusted to the discretion of the trial court and will be overturned on appeal only where a clear abuse of discretion is shown.

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

      Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Bashara, P.J., and D. C. Riley and E. A. Quinnell, JJ.

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

   Per Curiam.

Defendant was convicted by a jury of assault with intent to rob while being armed, MCL 750.89; MSA 28.284, and appeals of right.

Prior to trial, the defendant moved to suppress evidence of two prior convictions. The court ultimately ruled that evidence of the two prior convictions could be shown if defendant testified, but only as unspecified felonies for impeachment purposes. The ruling was erroneous, People v Jones, 92 Mich App 100; 284 NW2d 501 (1979), People v Garth, 93 Mich App 308; 287 NW2d 216 (1979).

Accordingly, we reverse the defendant’s conviction and remand for a new trial. We note the recent amendment to MRE 609(a)(2), which requires that the trial court place on the record its consideration of the Crawford factors.

We suggest to the trial court that, on retrial, it confine its definition of dangerous weapon to CJI 17:4:03, deleting the word "knives”. Given the somewhat equivocal character of the pocket knife involved in this incident, and with the abundant (albeit disputed) proof as to the use of the pocket knife, there can be no harm in being scrupulously careful in framing the instructions to refrain from giving the jury the impression that one of the elements of the offense had been established as a matter of law.

We also suggest that the prosecutor carefully instruct his witnesses to refrain from giving any testimony as to the defendant’s assertion of his right to remain silent in order to avoid any reversible error, People v Parks, 57 Mich App 738; 226 NW2d 710 (1975). Parks remains as an accurate statement of applicable Michigan law, unless our Supreme Court reexamines principles enunciated in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), in light of Jenkins v Anderson, — US —; 100 S Ct 2124; 65 L Ed 2d 86 (1980).

Defendant also contends that the court reversibly erred by refusing to suppress a toy gun seized from the defendant at the time of arrest. We disagree. Although the gun was not actually used in the assault, it was relevant and admissible as reflective of defendant’s specific intent and as part of the res gestae of the crime. People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978). Finally, defendant claims the court erred in finding that the prosecution exercised due diligence in attempting to locate several res gestae witnesses. Failure to produce the unknown bystanders was excusable. People v Carter, 87 Mich App 778, 785; 276 NW2d 493 (1979). However, the trial testimony was such that, following remand, the police should make additional efforts to procure the attendance of Manny Wright.

Reversed and remanded for new trial.

        People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978).