People v. Burton
| Decision Date | 08 October 1996 |
| Docket Number | Docket No. 165983 |
| Citation | 556 N.W.2d 201,219 Mich.App. 278 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael James BURTON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Michael H. Dzialowski, Assistant Prosecuting Attorney, for People.
Martin J. Beres, St. Clair Shores, for defendant-appellant on appeal.
Before NEFF, P.J., and SAAD and MARKEY, JJ.
Defendant was convicted by a jury of one count of assault with intent to commit murder, M.C.L. § 750.83; M.S.A. § 28.278, two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(f); M.S.A. § 28.788(2)(1)(f), and one count of breaking and entering with intent to commit a felony in an occupied dwelling, M.C.L. § 750.110; M.S.A. § 28.305. Defendant was sentenced to concurrent terms of forty-two to one hundred years for the assault conviction, seventy to one hundred years for each of the criminal sexual conduct convictions, and ten to fifteen years for the breaking and entering conviction. Defendant appeals as of right and we affirm.
The facts of this case are particularly horrific. Defendant's girl friend, Pearlie Jean Acer, rented an upstairs apartment from the victim. As a result, the victim was well acquainted with defendant before the events in question transpired. Because Acer failed to make timely rent payments, the victim evicted her. In one of the last meetings between Acer and the victim, Acer threatened the victim, indicating that a sexual assault would follow, and that if the victim were sexually attractive to the attacker, "he would remove [her] eye and not kill [her]." After this threat, defendant approached the victim twice looking for Acer, and threatened her. The second time defendant went so far as to break into the victim's house and physically grab her.
On the night in question, a few weeks after Acer's threat, the victim noticed defendant around her house on her return home from work, and shortly thereafter she was struck in the back of the head and knocked unconscious. When she regained consciousness, she was aware of a fork in her breast. After the victim told defendant that she would do what he asked, he stabbed her in the breast one more time. She was knocked unconscious again when she screamed. The victim was stabbed about six times with one of her kitchen forks. Although the victim testified that at this time her field of vision was limited because of the blow to her head and pain in her eye, she knew defendant was her attacker because she recognized his voice.
After the victim regained consciousness in her upstairs bedroom, she felt blood and became aware that her body was in the motion of sexual intercourse; she also felt a great pain in her eye. Defendant then beat her on her neck, chest, and head. She heard defendant ask if she liked it and taunt her about stopping it before he knocked her unconscious again.
When she regained consciousness, the victim felt painful anal intercourse and was aware of being hit. Defendant then forced her to "model" a white nightgown. The victim testified that during this episode of the attack, her vision cleared and she could see clearly that defendant was her attacker. Shortly after forcing the victim to model the clothing, defendant again knocked her unconscious.
When she regained consciousness, she heard defendant smashing objects, breaking glass, and ripping things, and heard him leave the house. After the victim went downstairs to use the telephone to call her brother, defendant returned and accused her of calling the police. Whereupon defendant grabbed one of her eyes and, after asking her which was her bad eye, began pulling on it. The victim again lost consciousness as a result of the severe pain.
When the victim regained consciousness, defendant took a knife and cut her face from the side of her nose all the way through her lip. Again, the victim lost consciousness. When she regained consciousness, the victim was bleeding from her eye. After struggling to get out of the house, the victim went into the yard where defendant caught her and covered her eye with her denim jacket. Once more, the victim lost consciousness. When she regained consciousness, the victim was inside her house attempting to climb up the stairs when defendant struck her in the head with a brass lamp. As a result, the victim lost consciousness. The victim recalled that defendant cut one of her eyes with a knife and also cut one of her fingers.
Dr. John Collins, a trauma surgeon at Bronson Hospital, testified that he saw the victim when she arrived at the hospital. The victim, who was caked in dried and fresh blood, had lost about half her blood volume, which indicated a life-threatening injury. She had multiple bruises to her face as well as lacerations caused by blunt objects striking her head and face. Her left eye was gone and the cavity for her right eye was broken, with the eyeball driven into her skull. There was a large laceration on the victim's upper lip, as well as strangulation-type injuries to her neck caused by rope or twine. In addition, the doctors found abrasions on her wrists and puncture wounds on her left breast. Evidence also existed of abrasions on the victim's vagina caused by a sharp-edged object. The victim had been struck many times and suffered a "closed head injury" or cerebral edema, the effects of which are potentially permanent. The victim's injuries were life-threatening and her survival was "quite remarkable."
Don Allen Boyd, a psychologist with Hope Network, testified as an expert that the victim suffered a brain injury and head trauma and opined that the victim's memory would be more accurate after she underwent a healing process.
Defendant presented two witnesses, who testified that he was at their home on the night in question. Defendant testified consistently with his two witnesses and claimed that he was not involved in the incident.
Defendant's defense notwithstanding, the jury convicted him and he was sentenced as described. This appeal followed.
We first address defendant's contention that his Sixth Amendment right to confrontation was violated when the trial court allowed part of the victim's examination to take place by way of closed-circuit television out of the physical presence of both defendant and the jury. U.S. Const., Am. VI; Const.1963, art 1, § 20. We find no error on the facts of this case.
At trial, the victim began testifying regarding some of the background facts of this case. Shortly after beginning her testimony, the record indicates that the victim was experiencing difficulties, and she admitted that she was having trouble testifying about the events in question. Accordingly, the prosecutor moved to allow the victim to testify by way of closed-circuit television in the judge's chambers. In order to decide the motion, the court ordered an evidentiary hearing to be held outside the presence of the jury.
At the evidentiary hearing, the victim stated that, in addition to the pressure of the jury and the media coverage, the presence of defendant frightened her. Barbara Barton, a member of the victim's rehabilitation team, testified that the thirty-six-year-old victim had dyslexia and long-standing emotional problems and that she was the emotional equivalent of a five-year-old child. Barton also testified that, in her opinion, the victim was suffering from severe stress partly as a result of defendant's presence and that, if the victim was required to testify without special provisions being afforded, the court risked the complete loss of the victim's testimony, as well as causing severe permanent damage to the victim's mental and emotional states. On the basis of this testimony, the trial court ordered the victim to testify by way of closed-circuit television.
The trial court relied, in part, on M.C.L. § 600.2163a; M.S.A. § 27A.2163(1) in support of its ruling. That statute, in essence, allows the special arrangements made in this case for witnesses who have a developmental disability. M.C.L. § 600.2163a(1)(b)(ii), (11); M.S.A. § 27A.2163(1)(1)(b)(ii), (11).
The primary issue with regard to the application of this statute in this case is whether the victim suffered from a developmental disability. That condition is defined as follows:
(1) As used in this section:
(a) "Developmental disability" means an impairment of general intellectual functioning or adaptive behavior which meets the following criteria:
(i) It originated before the person became 18 years of age.
(ii) It has continued since its origination or can be expected to continue indefinitely.
(iii) It constitutes a substantial burden to the impaired person's ability to perform normally in society.
(iv) It is attributable to mental retardation, autism, or any other condition of a person related to mental retardation because it produces a similar impairment or requires treatment and services similar to those required for a person who is mentally retarded. [M.C.L. § 600.2163a(1); M.S.A. § 27A.2163(1)(1) ].
Although this issue presents a close question, we conclude that the trial court misapplied the statute because the victim does not fit within the statutory definition of developmental disability. Our focus in reaching this conclusion is on the statute's requirement that the disability be either directly attributable to, or closely associated with, mental retardation and that the disability must have existed before the victim's eighteenth birthday.
Our goal in interpreting statutes is to ascertain the intent of the Legislature. People v. Stanaway, 446 Mich. 643, 658, 521 N.W.2d 557 (1994). One of the basic tenets of statutory construction is that words are to be given their plain and...
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