People v. Szczytko

• Decision Date: 26 April 1972
• Docket Number: No. 3,Docket No. 10895,3
• Citation: 40 Mich.App. 161,198 N.W.2d 740
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis R. SZCZYTKO, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 740

198 N.W.2d 740

40 Mich.App. 161

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dennis R. SZCZYTKO, Defendant-Appellant.

Docket No. 10895.

Court of Appeals of Michigan, Division No. 3.

April 26, 1972.

Released for Publication July 3, 1972.

Leave to Appeal Granted Aug. 1, 1972.

George E. Pawlowski, Vander Veen, Freihofer & Cook, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and R. B. BURNS and HOLBROOK, JJ.

HOLBROOK, Judge.

Defendant was convicted before a jury of the crimes of assault with intent to rape, M.C.L.A. § 750.85; M.S.A. § 28.280, and assault with a dangerous weapon with intent to commit great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279.

On appeal defendant raises four issues which we restate and consider in proper order.

I.

Whether there was sufficient evidence presented at the preliminary examination to bind defendant over to the circuit court on the charge of assault with intent to rape; and whether there was sufficient evidence presented to the jury to support a verdict of guilty beyond a reasonable doubt on the same charge?

The complaining witness, Miss Fortuna, a 15-year-old babysitter, testified on direct examination at the preliminary examination in part as follows:

'Q. Approximately what time did you arrive at her home that day?

'A. About 6:30.

'Q. How long were you to baby sit for her?

'A. I usually baby sit for her 'til about 3 o'clock.

'Q. I see. And, do you ordinarily leave after completing your job for an evening, or do you stay the rest of the night?

'A. I leave.

'Q. How far do you live from this address?

'A. Four blocks.

'Q. Now then, while you were there January--on January 11th, what, if anything, occurred?

'A. Well, first, I just watched TV, and then the little boy from downstairs came upstairs to watch TV too. So, he left about 9 o'clock. Then I sat down and watched TV until the television set went off. And, then I read for a little while. Then there was a knock on the door. And then I asked who it was and he said he was a friend of Peggy's, that Peggy was downstairs in the car and she had car trouble. Then he--and he asked--

'Q. What did you do then? He asked something?

'A. He asked to use the phone.

'Q. I see.

'A. So I let him in and he sat down for a little while and asked where the bathroom was and he went in to use the bathroom. Then he came back in and he used the phone. Then after--he dialed the number, but nobody answered. Then he sat down for a little while again and he turned off the lights and he started beating me up.

'Q. Is that person in court here this morning?

'A. Yes.

'Q. Would you point him out if you can?

'A. Right there.

'Q. Which one? Describe him for the record so we'll know who you're talking about, or who you're referring to.

'A. The one with the black and red on.

'Mr. Kamm (assistant prosecuting attorney): May the record show the witness has indicated the defendant in this case?

'The Court: It may be so indicated.

'Q. Could you describe now what happened?

'A. He started to choke me and started to beat me up, and then I don't think he used his hands for a little while, but I don't think he used his hands all the time because it started to hurt more. Then I blacked out.

'Q. I see. Were you dressed at this time?

'A. Yes.

'Q. What were you wearing?

'A. I was wearing a pair of lavender slacks and I had a white reffled blouse on and I had my coat on and my scarf and a pair of boots.

'Q. You had your coat on?

'A. Mmm hmm.

'Q. How did it happen that you were so dressed at this hour of the morning?

'A. I was waitin' to go outside to see Peggy.

'Q. Oh, I see. Then you say you blacked out?

'A. Uh huh.

'Q. Did you regain conciousness (sic) at any time while you were still at the apartment?

'A. When the police came.

'Q. What was your condition of dress at that time? Do you remember?

'A. I didn't have my pants on or my underpants and my blouse was pushed up and my bra was pushed up.

'Q. What about the coat?

'A. The coat was off.

'Q. And the boots?

'A. One of them was off and one was on.'

On cross-examination she testified in part as follows:

'Q. (By Mr. Pawlowski, defense attorney): Now, you've testified that when you awoke, your clothes were in disarray, is that correct?

'A. Most of them were off.

'Q. Is there any indication to you that you'd been molested in any way?

'A. I don't know.

'Q. You were unconcious (sic) at that time, is that right?

'A. Yes.

'Q. Can you recall to the best of your recollection at what point you did become come unconcious (sic)? At what point during the activity?

'A. I don't really know.

'Q. Well, you said on direct that you--the man was striking you with the telephone and started choking you, is that right?

'A. I didn't say it was a telephone. I said that it was something other than his hand or his fist.

'Q. And there was choking going on?

'A. Yes.

'Q. Was he still in this act when you passed out? Were you still being assaulted?

'A. Yes.'

The partial contents of a statement made by the defendant to officers of the Grand Rapids Police Department after proper Miranda ¹ warnings had been given to him were related in the testimony by Captain Edward T. Glynn at the preliminary examination as follows:

'Q. (By Mr. Kamm, Prosecuting Attorney): I show you what has been marked for identification as Exhibit 1. Do you recognize it or can you identify it?

'A. Yes sir, this is the statement of Dennis Szczytko given on the 13th day of January, 1970.

'Q. Now sir, how did you--what--what is the content of this without going into it word for word. Just what is it concerned with?

'A. That Dennis Szczytko went to a residence on Sixth Street. The residence is rented by Mrs. Peggy Siedlicki. He went up to this apartment which is located on the second floor and there was a young white female there. He rapped on the door and he talked to her, and after a period of time, he assaulted this girl. He began beating on this girl and then after a period of time, he heard, or saw some lights and he ran to the kitchen and he jumped out a second story window.

'Q. Sir, how did it happen that this was the content of this particular statement of this alleged offense, when in fact you had first gone to the New Mertens and arrested him for a hotel violation? In other words, what led you to Mr. Szczytko?

'A. Well, under normal police investigation, we eliminated the possible suspects down to Dennis Szczytko.

'Q. I see.

'A. We began to check the bus depot, the railway depot, and at the airport, we received information that a young man matching the description of Dennis Szczytko was there and left in a taxi cab. After--

'Q. What time was he there?

'A. Approximately, I would say about 2 o'clock, sir; I'm not sure.'

Defendant's statement also contained information to the effect that he saw a flash-light at the door or window at which time he left the apartment. He then went home where his mother was waiting up for him, and that he washed some of his clothes and threw his shirt in the trash barrel.

Defendant asserts that the evidence presented was insufficient to justify the order of the examining magistrate binding him over to the circuit court for trial on the charge of assault with intent to commit the crime of rape.

The applicable rule of law on this issue is stated in the case of People v. Ogg, 26 Mich.App. 372, 377--378, 379--380, 182 N.W.2d 570, 573 (1970), as follows:

'Defendant contends that, upon the basis of the transcript of proceedings had before the examining magistrate, the prosecution failed to establish that a crime had been committed or that defendant committed it.

'The People counter by asserting that in order to establish error by the examining magistrate in binding a defendant over for trial, defendant has the burden of establishing a clear abuse of discretion; that absent a clear abuse of discretion an appellate court will not disturb the findings of the magistrate, People v. Dellabonda (1933), 265 Mich. 486, 251 N.W. 594; and that no such abuse of discretion has been alleged or shown by defendant.

'A finding of probable cause at a preliminary examination does not require that the guilt of a defendant be established beyond a reasonable doubt. People v. Ray (1966), 2 Mich.App. 623, 141 N.W.2d 320. This Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause. People v. Dellabonda, Supra; People v. Davis (1955), 343 Mich. 348, 72 N.W.2d 269; People v. Marklein (1960), 358 Mich. 471, 101 N.W.2d 348; People v. O'Leary (1967), 6 Mich.App. 115, 120, 148 N.W.2d 516. No such abuse has been alleged or shown. This Court is of the opinion that, upon a thorough review of the record of the proceedings had before the examining magistrate, the evidence was sufficient to uphold the magistrate's action in binding the defendant over for trial in circuit court.'

Under the foregoing rule, this Court may not substitute its judgment for that of the magistrate unless there has been a clear abuse of discretion in his determination of probable cause. No such abuse has been alleged or shown in the instant case.

The evidence produced by the people at the preliminary examination showed that defendant gained entrance to the apartment by misrepresentations made to the babysitter; that he was in the apartment for several minutes attempting to make telephone calls and using the bathroom before he turned off the lights and proceeded to assault the complaining witness at which time he tore off most of her clothes from her body. His assault was interrupted by someone with a flashlight at the door or window which caused him to leave the apartment. The turning off of the lights by the defendant and proceeding to assault the young girl, ripping off her clothes...