People v. Compian

• Decision Date: 22 February 1972
• Docket Number: 8382,Docket Nos. 8568,No. 1,1
• Citation: 196 N.W.2d 353,38 Mich.App. 289
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan COMPIAN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph J. KONDAKOR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 353

196 N.W.2d 353

38 Mich.App. 289

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Juan COMPIAN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph J. KONDAKOR, Defendant-Appellant.

Docket Nos. 8568, 8382.

Court of Appeals of Michigan, Division No. 1.

Feb. 22, 1972.

Released for Publication April 24, 1972.

Leave to Appeal Denied June 1, 1972.

John F. Gilhool, Southgate, for Joseph J. Kondakor.

Lawrence E. Weinberg, Southfield, for Juan Compian.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Boyle, Asst. Pros. Atty., for appellee.

Before LESINSKI, C.J., and V. J. BRENNAN and O'HARA, ^* JJ.

LESINSKI, Chief Judge.

Defendant, Juan Compian was convicted by a jury of assault with intent to commit unarmed robbery, M.C.L.A. § 750.88, M.S.A. § 28.283, as was defendant Joseph Kondakor. Defendant Kondakor was also convicted of assault with intent to do great bodily harm less than the crime of murder, M.C.L.A. § 750.84; M.S.A. § 28.279. Both defendants appeal as of right.

The record reveals that on the night of November 12, 1966, two Detroit policemen were on patrol in an unmarked car when they saw a vehicle with its lights out and the engine running in a parking lot in Patton Park. When the two officers reached the parked car, they saw three men, including defendant Kondakor, approaching the vehicle which contained four additional men. One of the men volunteered information that a man who had been beaten or in an accident was lying in the parking lot. Subsequently, one of the police officers found a wallet and a pair of gloves in the parking lot. The wallet belonged to the victim, and he had also been carrying the gloves. The police officers took all seven of the men which they had found at the scene to the police station. Of the four men ultimately tried on the charge, defendants Compian and Kondakor were the only two found guilty.

On appeal defendant Compian urges two errors. He alleges that the trial court committed error in failing to direct a verdict for defendant at the close of the people's case, and that the combined influence of drugs and alcohol rendered him incapable of possessing the intent required to be guilty of assault with intent to commit unarmed robbery.

As this Court stated in People v. Compton, 23 Mich.App. 42, 44, 178 N.W.2d 133, 134 (1970), 'the question presented by a motion for directed verdict of not guilty is whether there is evidence from which the jury can reasonably infer all the elements of the crime charged.' See, also, People v. Qualls, 9 Mich.App. 689, 158 N.W.2d 60 (1968).

The complaining witness in this case, who suffered severe head injuries from the beating, was unable to recall any details of the incident. Two of the men who accompanied defendants on the night in question, but were not defendants in this case, Jerry Parker and Jose Salas, testified. Jerry Parker testified that he, defendant Compian, and defendant Kondakor exited from the car and approached the complaining witness, after defendant Kondakor had stated, 'Let's go see if he's got some money.' On cross-examination, witness Parker testified that no indication was given that anyone was going to attack or rob the complaining witness when the three left the car. Parker further testified that when defendant Kondakor struck the complaining witness, both Parker and defendant Compian went back to the car. Parker said that defendant Compian did not strike the complaining witness, and that defendant Compian attempted to give artificial respiration to the injured man when the men accompanied the police back to the point where he lay. On redirect examination, the witness related that there had been previous talk about robbing a hitchhiker, before the men had reached Patton Park.

Jose Salas testified that defendants Kondakor and Compian, along with Parker, got out of the car when they arrived at Patton Park. Witness Salas said that Kondakor, Parker and Compian started 'banging around' the complaining witness. Salas further stated that the complaining witness attempted to get away and all three of them hit him. On cross-examination, in response to the question whether he saw defendant Compian hit the complaining witness, Salas responded, 'Well, I am not too sure.'

On the basis of this testimony, evidence existed, under the Compton holding, from which the jury could infer all the elements of assault with intent to commit unarmed robbery.

Defendant Compian's second allegation of error is also without merit. Defendant argues that he could not have held the requisite intent necessary to commit the crime of assault with intent to commit unarmed robbery when he had drunk one-half of a 'jumbo' of beer and two shots of whiskey, taken two Seconal and three Dexedrine tablets, and smoked marijuana before the crime occurred.

It is law in this State that intoxication can negative the existence of the specific intent necessary to be guilty of certain crimes. People v. Guillett, 342 Mich. 1, 69 N.W.2d 140 (1955). Under the authority of People v. Kelley, 21 Mich.App. 612, 176 N.W.2d 435 (1970), unarmed robbery is a specific intent crime, since 'robbery is larceny committed by assault or putting in fear and * * * larceny is a specific intent crime.' Kelley, supra, at 619, 176 N.W.2d at 438. However, not every degree of intoxication is sufficient to serve at a defense to a specific intent crime. To the contrary, defendant's mental capacities must be so impaired by intoxication 'that he was not conscious of what he was doing, or he did not know what he was doing.' Kelly, supra, at 623, 176 N.W.2d at 440. See, also, People v. Berryhill, 8 Mich.App. 497, 154 N.W.2d 593 (1967).

Defendant Compian's argument on this issue is properly regarded as a sufficiency of the evidence question. He alleges no error in the trial court's instructions on intoxication, or in any rulings regarding evidence introduced on that issue. The standard employed by this Court in determining sufficiency of the evidence questions is 'whether the evidence warrants a finding of guilty beyond a reasonable doubt of the crime charged.' People v. Schram, 1 Mich.App. 279, 282, 136 N.W.2d 44, 45 (1965). The evidence in this case does warrant a finding of guilty beyond a reasonable doubt.

Defendant Kondakor, on appeal, in addition to other errors, also cites the trial court's denial of his motion for directed verdict at the close of the people's case.

The record reveals that witnesses Parker and Salas testified that defendant Kondakor hit and kicked this complaining witness. There was testimony by Parker and Salas that, after the attack had commenced, Parker and defendant Compian returned to the car, but defendant Kondakor remained behind kicking the complaining witness.

There was also evidence offered that Kondakor had been drinking extensively. Indeed, his defense at trial was based on intoxication. On direct examination, witness Parker testified that none of the boys were staggering, speaking with slurred speech, or giving an indication that they were drunk. On cross-examination, Parker stated that defendant Kondakor's eyes were glassy, and he wasn't walking straight. Witness Salas testified defendant Kondakor was staggering 'a little bit.'

It was properly a matter left to the jury to determine from the evidence whether defendant was intoxicated to a degree sufficient to negate his specific intent.

Defendant Kondakor also complains of the prosecutor's reference to institutional psychosis and the personality changes that men experience after being incarcerated for three years. The prosecutor made the reference in a hypothetical question put to defendant's expert witness, a psychiatrist. Defendant moved for a mistrial at that point, and the trial court denied the motion. It has long been the law in this State that reference to a defendant's prior incarceration is inadmissible, and grounds for reversal, unless such reference is material and relevant to the issue being raised. People v. Fleish, 321 Mich. 443, 32 N.W.2d 700 (1948); People v. Sullivan, 32 Mich.App. 181, 188 N.W.2d 247 (1971); People v. McPherson, 21 Mich.App. 385, 175 N.W.2d 828 (1970).

The issue being raised in the instant case is whether defendant was intoxicated and unable to form the specific intent necessary to be guilty of assault with intent to commit unarmed robbery and assault with intent to do great bodily harm less than murder. Defendant's expert witness interviewed him some three years after the incident had occurred. He testified that defendant Kondakor was a 'rather impulsive person' who 'had difficulty controlling his anger impulses.' Drugs, the psychiatrist stated, would lessen defendant's ability to maintain control of himself. Given such testimony and the fact that the psychiatrist was testifying as to defendant's personality when almost three years had elapsed between the robbery and the psychiatrist's first contract with defendant, it was proper for the prosecutor, in a hypothetical question on cross-examination, to inquire into any circumstances occurring between November 12, 1966 and the interview which might have altered defendant's personality.

In People v. Woody, 380 Mich. 332, 157 N.W.2d 201 (1968), where defendant's major defense at trial was insanity, the Michigan Supreme Court held admissible the prosecutor's questioning of defendant's expert witness, a psychiatrist, concerning prior arrests and convictions of defendant. As the Court there stated:

'Testimony of prior arrests, convictions, assaultive and antisocial conduct, ordinarily completely inadmissible as bearing on the general guilt or innocence of the accused of the offense charged, became material and admissible as bearing on the issue of his sanity.' 380 Mich. 332, 338, 157 N.W.2d 201, 203.

In the instant case, defendant's sanity was not in issue, but the...