*1 MICHIGAN, STATE ex rel OF WAYNE PROSECUTING ATTORNEY,v MOCERI Testifying 1. Trial —Tactics—Civil Action —Defendant —Self-In- crimination. compel attorney Good trial tactics would often an to advise his client not to at all in a civil suit because of the self-incrimination, discovery, subsequent impeachment at a criminal trial. Testifying 2. Nuisance —Public Nuisance —Defendant —Self-In- crimination —Continuance. protect statutory right One solution will which both the state’s property illegal purposes public seize used for certain as a protect nuisance defendant who does not wish to the. by testifying risk himself defense a civil suit property delay to seize the is to the civil suit a continuance proceedings until after criminal which arose from the same (MCLA 503.1). completed 600.3825; facts are GCR — — — — 3. Nuisance Public Nuisance Abatement Continuance Equity. proceed The decision to with or a civil suit to abate as a public illegal purposes nuisance the use of for certain completed until after a criminal trial on the same facts is must equity necessity be tested with (MCLA the civil action under the circumstances of a case etseq.). 600.3801 — — — — 4. Nuisance Public Nuisance Automobiles Evidence Gambling.. finding public A trial court an automobile was a nuisance activities, gambling because used for and an order abatement directing auction, public supported by that it be sold at was not [2, ^[4] ^[1] 58 Am Jur 21 Am Jur 5] 21 Am Jur 2d, 2d, References Nuisances 195 et Criminal 2d, Criminal Law for Points § §Law §§ 257, 267, seq. 342. in Headnotes 449. State preponderance evidence where there was no credible connecting vehicle record evidence remand, activities; trial court was directed to order the vehicle sale gross proceeds *2 day, owner, the lienholder on the sale due amount less unpaid; due the lienholder on the the amount which remains lienholder; to the and the day of the vehicle sale remaining of action shall have cause further owner gross proceeds from the vehicle between for the difference the vehicle on the sale value of market sale and the 600.3825). (MCLA by O’Hara, J.

Concurrence 5. Constitutional Suit —Criminal Law —Self-Incrimination—Civil Proceedings Stay.— compelled provision that a shall not be

The constitutional against extended as far as himself has not been to be a witness stayed against require until a a defendant be that a civil suit the defendant based on the same Michigan, (Sternberg v State Bar of facts is concluded [1971]). Foley, Appeal Wayne, J. J. Sub- Thomas January 11, 1973, at Detroit. Division mitted (Docket 11663.) May 22, 1973. Decided No. Michigan, Complaint by of the State Prosecuting Cahalan, Attor- L. of relation William County, Moceri, ney Wayne Salvatore Joseph Viviano, Nicolo Loia- Moceri, A. Sandra cano, Ganey, Smith, Jenio, Quillan Emma David S. Harris, Thompkins, Batch, Matthew Lilia Barbara Ventimiglia, Ventimiglia, M. Lucille C. Sebastian Company, National Trust Bank and Detroit Union, Detroit, Credit and Servitor Bank plaintiff. Judgment Defend- nuisance. abate a Company, except and Trust the Detroit Bank ants Detroit, Credit and Servitor National Bank appeal. and Loiacano to Nicolo Reversed as Union others, remanded as affirmed instructions. Opinion op the Court

Frank Kelley, Attorney J. General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovalé, Chief, Appellate Department, and Leonard Mey- ers, Prosecuting Assistant Attorney, for the people.

Armand D. Bove and Philip Caruso, J. for de- except fendants the Detroit Bank and Trust Com- pany, Detroit, National Bank of and Servitor Credit Union. J.,

Before: C. and T. M. Burns Lesinski, O’Hara,* JJ. C. J. Defendants were arrested on Feb- Lesinski,

ruary 1971 on gambling charges. Their automo- biles were subsequently confiscated as nuisances auction, public sold at pursuant to MCLA *3 600.3825; MSA 27A.3825. They appeal by right the , abatement, order of under which their automobiles were sold. allege

Defendants that the proceedings confiscat- ing their automobiles amounted to a deprivation of due of law in defendants, that the exercising certain rights, constitutional such as the privilege against self-incrimination, could not properly defend in this civil suit. In prelimi- the argument nary prior to the taking of proofs, de- fendants’ attorney advised the court that defend- ants could not take the stand to refute the state’s allegations because of charges pending them arising out of the same set of facts involved in the matter then before the court. Defendants therefore faced a choice of possible the loss of their automobiles or a cross-examination prosecution the on some of the same facts to be * Supreme Justice, sitting Former Court Appeals by on the Court of assignment pursuant 1963, 6, to Const art 23 as amended in 1968. § State Moceri v the trials. at their criminal Defendants’

proven testi- suit would have mony prose- this civil aided the discovery for pretrial pending the cutor crimi- suit. characterize depriva- nal Defendants this as process. tion due ex People rel Moll Danziger,

The state cites dispositive 238 Mich 39 as of the at issue bar. In that the state filed under case the same act a alleging to abate nuisance that premises being for prostitution. were used The trial court grounds dismissed suit that the statute was unconstitutional under these facts because forced defendant either allegations, answer him, might which tend to incriminate or to suffer Michigan Court, a forfeiture. explic- itly denying provisions of the Federal Constitution compulsory self-incrimination had applicability state court proceedings, re- versed the trial court at saying page 48: rights "The constitutional of the defendant must be protected, rights but plaintiff the constitutional protected.”1 to his in court must be likewise The Court stated that to require dismissal here deprive the equity court of powers it had had for to grant centuries civil relief when the same facts amounted a crime. The defendant’s remedy was to assert his state constitutional rights Michigan provision 1 The Constitution a contained similar to provided that contained in the Federal Constitution. Const art 16§ compelled that no shall be in a criminal case to *4 against himself, deprived life, liberty, witness property nor be or People Danziger, without due of law. ex rel Moll v light 39 provision. Michigan was decided in the of the this The provision Constitution of 1963 contains a similar under Const decided, art 17.§ Since Moll was the Fifth Amendment has been applicable found held that Amendment Ed 2d 574 to the states. The United States Court has penalized exercising cannot be for his Fifth rights. Spevack Klein, 511; 625; 385 US 87 S Ct 17 L (1967). App 116 the appropriate where self-incrimination against consequences. the civil suffer process argu- the due disposes Moll case necessarily is not so position ment, but defendants’ approach is that this problem The obvious narrow. both the civil and commence the state allows based on the a defendant against action in the case at bar. The done was facts —as same the to choose between forced is then defendant and the of self- property his loss of possible to defend his If he chooses incrimination. suit, gains discovery2 valuable the state the in civil could defendant which and statements trial, at at the criminal him against later be used If he testifies on purposes. impeáchment least for privilege his claims examination direct cross-examination, self-incrimination testimony. his entire strike most courts 483; 62; 298 P2d Annest, 2d 49 Wash Annest v (1956). chooses not If defendant ALR3d suit, attorneys would as most in the civil testify his do, possible loss of he faces the him to advise position. in a difficult is thus Defendant property. vehicles, defendants who were The owners of case, exercise specifically not did in the criminal case; they right this Fifth Amendment their suit. of the civil testify not defense merely did like in a situation strongest defense reality In to take stand is for a defendant this operation in a he was not involved He operation. in this not use his car or that he did thorough cross-examina- opens himself thereby prosecutor the same prosecutor tion —here action conducting the criminal who was defendant, to risk wanting A the defendants. himself, remains silent._ discovery purposes, brought solely If the civil suit were however, prove. Moll, is, supra. difficult to This dismissed. would be *5 State v prosecution argues proper place that the objection raise the Fifth Amendment is not in during proceeding, civil suit but criminal when during a statement the civil suit is intro- agree. duced do into evidence. We Good trial compel attorney tactics would often an to advise his client not to at all in the civil suit discovery, because self-incrimina- subsequent impeachment tion and at a criminal trial. question

We do not the state’s constitutional right to maintain this civil action. Moll settled this protecting concerned, however, issue. We are a defendant in such a situation. One solution protect statutory right which will both the state’s protect to seize as a nuisance and to defendant who does not wish to risk himself is to the civil suit until after the proceedings completed. criminal are analogous In an factual situation the United Supreme suggested States a similar solution. In Kordel, United States 8, 9; 397 US 90 S Ct 763, 768; 1, 8, 25 L Ed 2d defendant interrogatories being pur- answered in a civil suit Drug sued the Food and Administration corporation. objected defendant’s Defendant subsequent use of these answers in the prosecution against him. The Court re- jected arguments ground defendant’s defendant had not ever exercised Fifth his Amend- privilege Additionally, ment to remain silent. government did not violate due for prosecute both the civil and criminal suits obtaining defendant discovery. for the same actions—thus reaching In this decision the Court said: respondents press upon "The us the situation where App 116 op the Court interrogatories addressed to no one can answer subjecting himself to a corporation without 'real and present pur- For appreciable’ risk of self-incrimination. poses may assume appropri- that in such a case the we protective order remedy be a under ate 30(b), Rule *6 until discovery termination of postponing civil action.” here was to seek a remedy Defendants’ continu- matter until the criminal ance of the civil matter However, defendants did specifi- was resolved. not pursuant request a continuance to GCR cally attorney’s 503.1. defendants’ statement prior proofs court to commencement the suit faced; however, problems revealed the the defense no made for continuance. motion was please, attorney]: "Mr. If the court Caruso [defense proofs before are taken I would like to state this. In stated, previously prepara- addition to what I have tion for this case we haven’t devoted the time we misunderstanding. If should have due to a the court Bove, please, me, extremely it would be difficult for Mr. for matter, lawyer, or other for that properly defend this matter for this reason: that the criminal only proceeded matter has these defendants stage complaint of a and warrant. An examination have, hasn’t been conducted. Now we as the court has indicated, matter couldn’t Now, a factual situation. there is a criminal defendants, pending they in reference to the possibly get at this time on' the stand and and, Honor, testify, the reason for it. It is Your it is needless for me to state

very apparent. put "So we are in a situation here are where we helpless absolutely this. Had the criminad legalistically speaking to defend disposed matter been we might well, have a different situation. The doctrine — Amendment, Fifth perhaps, apply, the being assume we will ther that we but does not situation, we, say a factual us should let üs —let time, proceed fur- at this and assume question it wish to as to whether facts not, paraphernalia was or whether one of the State not, or the automobile would be used defendants get of these defendants to to one highly prejudicial the stand tion subjected to testify and be cross examina- Mr. Nolan.” not did abuse its discretion find that the court We sponte sua continuance based on granting in not made counsel. the statement that a trial court must in every We do not hold suit a civil abatement under MCLA delay instance seq. seq.; et 27A.3801, et 600.3801, MSA until after completed.3 trial on the same facts is the criminal proceed with or a civil The decision must be tested the equity abatement suit with the necessity civil action under the circumstances of a case. argue findings

Defendants next that court the seven vehicles "public trial were supported preponderance aby nuisances” is *7 the evidence. We have examined the record of evidence this cause and conclude that is adequate findings support the trial court respect to six of the seven vehicles involved. vehicle, 1968 respect With seventh a Olds- Loiacano, by mobile owned Nicolo we conclude findings sup- of the trial court are not ported by the evidence. There is no credible evi- dence on the connecting record this vehicle with gambling activities. this For reason we reverse the decision of the trial court as to the Oldsmo- bile, vehicle 384-398-M-258790 registered number in the name of Nicolo Loiacano. gross

On remand the trial court shall order proceeds from the paid sale of this vehicle to the owner, less amount due the lien- sale, holder on the day of the which remains unpaid. The amount due the lienholder on the (1971). Sternberg Michigan, See v State Bar of 384 Mich 588 O’Hara, by Concurrence J. sale of the vehicle shall shall lienholder. The registered owner further have a remaining cause of action for the difference gross between the proceeds from the sale of the vehicle and the market value of said vehicle on the day of sale.

Affirmed in part and reversed in part. costs, No public question being involved. Burns, J., T. M. concurred. result).

O’Hara, J. (concurring in I concur in the result reached the Chief Judge.

I rest my concurrence upon the holding in Sternberg v State Bar of Michigan, 384 Mich 588 Judge cited the Chief in footnote 3 of his opinion.