People v. Brannon

• Decision Date: 04 May 1992
• Docket Number: Docket No. 119185
• Citation: 486 N.W.2d 83,194 Mich.App. 121
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Calvin Dexter BRANNON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 83

486 N.W.2d 83

194 Mich.App. 121

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Calvin Dexter BRANNON, Defendant-Appellant.

Docket No. 119185.

Court of Appeals of Michigan.

Submitted April 15, 1992, at Lansing.

Decided May 4, 1992, at 9:40 a.m.

Released for Publication Aug. 3, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Donald E. Martin, Pros. Atty., and Susan L. LeDuc, Deputy Chief Asst., for the People.

State Appellate Defender by Fred E. Bell, for the defendant-appellant on appeal.

Before MARK J. CAVANAGH, P.J., and CONNOR and SNOW, ^* JJ.

CONNOR, Judge.

Defendant appeals as of right his judgment of sentence of April 19, 1989. A jury convicted defendant of one count of first-degree felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and he received a mandatory sentence of life imprisonment without possibility of parole. We affirm.

The victim in this case was found dead in her home on October 8, 1987. The cause of death was established as multiple stab wounds to the chest area. The front screen door had a cut in it, apparently made by a knife. Inside the victim's home, the contents of her purse were strewn about the area where it was believed a struggle occurred. Many items thought to have been inside the purse were covered with blood, including the victim's driver's license and her wallet. The wallet was found to contain one folded-up dollar bill in the change section along with some change. The victim's live-in boyfriend testified that he saw the victim place at least $4 inside the wallet the evening before her death.

I

Defendant first argues that there was insufficient evidence presented by the prosecution to bind him over to the circuit court on the charge of first-degree felony murder. The examining magistrate originally agreed with defendant and only found probable cause to charge defendant with second-degree murder. The prosecutor appealed that ruling to the circuit court, which reversed the magistrate's decision and charged defendant with first-degree felony murder.

In order for a defendant to be bound over for trial, the magistrate must find that there is evidence amounting to probable cause to believe that a felony has been committed. People v. Hill, 433 Mich. 464, 469, 446 N.W.2d 140 (1989); M.C.L. Sec. 766.13; M.S.A. Sec. 28.931. Although a finding of guilt beyond a reasonable doubt is not necessary, there must be evidence regarding each element of the crime charged or evidence from which the elements may be inferred. Hill, supra.

In reviewing a decision to bind a defendant over for trial, the circuit court may not substitute its judgment for that of the examining magistrate, and may reverse only if it appears on the record that the magistrate abused his discretion. People v. Cotton, 191 Mich.App. 377, 384, 478 N.W.2d 681 (1991). This Court also reviews the record to determine if the examining magistrate committed an abuse of discretion. People v. Lopez, 187 Mich.App. 305, 308, 466 N.W.2d 397 (1991).

For felony murder, the following elements of the crime must be established:

(1) [T]he killing of a human being (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. [People v. Bush, 187 Mich.App. 316, 327, 466 N.W.2d 736 (1991).]

See also People v. Flowers, 191 Mich.App. 169, 174-176, 477 N.W.2d 473 (1991).

The enumerated felony relied upon in this case was larceny. The statute, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, provides that murder is of the first degree if "committed in the perpetration, or attempt to perpetrate ... larceny of any kind." Because the intent to commit the enumerated felony of larceny was an element of the crime of felony murder, the prosecution had to produce some evidence with regard to this element or evidence from which this element could be inferred. Hill, supra, 433 Mich. at 469, 446 N.W.2d 140.

It is not necessary that the murder be contemporaneous with the enumerated felony. The statute requires only that the defendant intended to commit the underlying felony at the time the homicide occurred. People v. Goddard, 135 Mich.App. 128, 136, 352 N.W.2d 367 (1984), rev'd on other grounds 429 Mich. 505, 418 N.W.2d 881 (1988); People v. Vaughn, 128 Mich.App. 270, 273-274, 340 N.W.2d 310 (1983). However, the felony-murder doctrine will not apply if the intent to steal property of the victim was not formed until after the homicide. People v. David Wells, 102 Mich.App. 122, 133, 302 N.W.2d 196 (1980). Where evidence conflicts or raises a reasonable doubt regarding the defendant's guilt, it is not for the examining magistrate to discharge the defendant; such questions are for the trier of fact to resolve. People v. Doss, 406 Mich. 90, 103, 276 N.W.2d 9 (1979).

In this case, the examining magistrate in the district court bound the defendant over on a charge of second-degree murder because the magistrate found that the evidence that money was removed from the victim's wallet merely established that a larceny was committed. The magistrate felt the larceny could have been an afterthought to the homicide and noted that the wallet was covered with blood. The prosecution appealed this decision to the circuit court. The circuit court found that the examining magistrate had abused his discretion by unduly focusing on the timing of the larceny rather than the timing of the intent. The court also found that a jury could infer that the defendant intended to commit the larceny at the time of the killing and ordered the defendant bound over on a charge of first-degree felony murder. The court specifically referred to medical testimony regarding the presence of defensive wounds on the victim's hands, indicating a struggle, and police testimony that placed the strewn contents of the victim's purse 1 1/2 to 2 feet from where the struggle began.

Although it is a close question, we agree with the circuit court that the decision to bind defendant over for trial on the reduced charge of second-degree murder was an abuse of discretion. The trier of fact could infer from the evidence that the killing and the underlying felony were so closely connected in point of time, place, and causal relation that the homicide was incident to the felony and associated with it as one of its hazards. Goddard, supra, 135 Mich.App. at 136, 352 N.W.2d 367. Considering all the facts and circumstances in evidence, we believe the trier of fact could infer that the wounds were inflicted during a struggle for the purse. We find in this case that the question regarding precisely when the defendant's larcenous intent was first formed was for the jury to decide, not the examining magistrate. Flowers, supra, 191 Mich.App. at 178-179, 477 N.W.2d 473.

II

Defendant's next issue on appeal concerns his challenge of statements made to the police that were ruled admissible by the trial court. The challenge of the admissibility of these statements is based on the Deaf Persons' Interpreters Act, M.C.L. Sec. 393.501 et seq.; M.S.A. Sec. 17.55(101) et seq. Section 5 of that act, M.C.L. Sec. 393.505; M.S.A. Sec. 17.55(105), provides as follows:

(1) If a deaf person is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and the officer's supervisor shall procure a certified interpreter or qualified interpreter in order to properly interrogate the deaf person and to interpret the deaf person's statements.

(2) A statement taken from a deaf person before a certified interpreter or qualified interpreter is present shall not be admissible in court.

The act defines a "deaf person" as

a person whose hearing is totally impaired or whose hearing, with or without amplification, is so seriously impaired that the primary means of receiving spoken language is through other sensory input; including, but not limited to, lip reading, sign language, finger spelling, or reading. [M.C.L. Sec. 393.502(e); M.S.A. Sec. 17.55(102)(e).]

The purpose of the act is to provide a way for deaf individuals to meaningfully participate in judicial (or investigative) proceedings. Bednarski v. Bednarski, 141 Mich.App. 15, 19-20, 366 N.W.2d 69 (1985). Our research has not disclosed a published criminal case where this act has been applied.

A

A trial court's decision regarding whether an individual is a deaf person is based upon factual findings, and we review that decision for clear error. MCR 2.613(C). An evidentiary hearing should be conducted when there is a challenge of the admissibility of a statement from a defendant who asserts he should have been provided with an interpreter under M.C.L. Sec. 393.505; M.S.A. Sec. 17.55(105).

We believe the preliminary focus of the hearing is sufficiently stated in M.C.L. Sec. 393.502(e); M.S.A. Sec. 17.55(102)(e) by the definition of a "deaf person." The testimony should center on whether the individual lacked the necessary communication skills to make a statement without the aid of an interpreter.

In this case, there was conflicting testimony from experts and laypersons regarding defendant's hearing ability. There was no question that defendant has had some form of hearing impairment for years and has even worn a hearing aid in the past. However, he apparently did not require the use of the hearing aid in his day-to-day activities, and refused to wear it for unknown reasons. Nonetheless, the experts testified that although defendant could hear some conversation, particularly at elevated levels, he still relied on visual cues to receive communications. Defendant was believed to be proficient at lip reading, but was never tested for this skill.

Other witnesses who either worked with defendant or engaged in high...