People v. Warren

• Decision Date: 19 July 1993
• Docket Number: Docket No. 125104
• Citation: 504 N.W.2d 907,200 Mich. App. 586
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gerald Eugene WARREN, Defendant-Appellant. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 907

504 N.W.2d 907

200 Mich.App. 586

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Gerald Eugene WARREN, Defendant-Appellant. (After Remand)

Docket No. 125104.

Court of Appeals of Michigan.

Submitted Feb. 10, 1993, at Detroit.

Decided July 19, 1993, at 9:00 a.m.

Released for Publication Sept. 23, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol.Gen., John D. O'Hair, Pros.Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Rita H. Lewis, Asst. Pros.Atty., for the People.

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

Gerald E. Warren, in pro. per.

Before HOLBROOK, P.J., and RICHARD ALLENGRIFFIN and REILLY, JJ.

AFTER REMAND

HOLBROOK, Presiding Judge.

This appeal results from the defendant's second trial on charges arising from a robbery.Originally, a jury convicted the defendant of two counts of assault with intent to murder, M.C.L. § 750.83;M.S.A. § 28.278, one count of breaking and entering with intent to commit a felony, M.C.L. § 750.110;M.S.A. § 28.305, and two counts of assault with intent to rob while unarmed, M.C.L. § 750.88;M.S.A. § 28.283.In an unpublished opinion per curiam, decided March 24, 1989(Docket No. 103743), this Court reversed the convictions of assault with intent to murder and remanded the case for further proceedings.A jury subsequently found the defendant guilty of two counts of assault with intent to murder.The trial court sentenced the defendant to concurrent prison terms of twenty-five to fifty years.Defendant appeals as of right from this judgment.We affirm.

Defendant first argues that the trial court erred in denying his motion for a directed verdict, because the prosecution presented insufficient evidence concerning the specific intent to kill.

When ruling on a motion for a directed verdict, the trial court must consider the evidence presented in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.People v. Schollaert, 194 Mich.App. 158, 169-170, 486 N.W.2d 312(1992).This Court applies the same standard when reviewing a ruling on such a motion.People v. Daniels, 192 Mich.App. 658, 665, 482 N.W.2d 176(1992).

The elements of the crime of assault with intent to murder are (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder.People v. Lawton, 196 Mich.App. 341, 350, 492 N.W.2d 810(1992).Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense.Id.The intent to kill may be proven by inference from any facts in evidence.Id.

After reviewing the record, we conclude that the prosecution presented sufficient evidence concerning the intent to kill.In a light most favorable to the prosecution, the evidence shows that the defendant's accomplice bound the two complainants, Janina Pomaska and Peter Bosyk with duct tape.The tape covered their noses and mouths.Both complainants testified that one of the men struck them.When the police arrived at the scene moments later, the complainants were bleeding, appeared to have been beaten, and were blue or purple in their faces.Pomaska's name and address appeared in a notebook found in the defendant's home.The police found at the crime scene a bag containing a screwdriver, wire cutters, plastic ties, handcuffs, and duct tape.Defendant admitted that he brought this bag into the complainants' house, but denied that duct tape was in the bag.After considering these facts, we find no error in submitting the charges of assault with intent to murder to the jury.

Defendant next argues that the prosecutor's closing argument was improper and denied him due process of law and a fair trial.However, because the defendant failed to object to these comments at trial, appellate review is precluded unless any prejudicial effect could not have been cured by a cautionary instruction and failure to consider the issue would result in a miscarriage of justice.People v. Crawford, 187 Mich.App. 344, 354, 467 N.W.2d 818(1991).

We find that the comments that the defendant now objects to did not result in a miscarriage of justice.The prosecutor argued that the defendant deliberately targeted the home of the complainants in part because of their age and frail conditions and in part because the defendant was specifically looking for something there.Defendant claims that the prosecutor's references to the complainants' ages, frailty, and helplessness constituted an appeal to the jury's sympathy that unfairly prejudiced the jury and denied him a fair trial.However, the evidence presented at trial supports the prosecutor's characterization of the complainants as frail and old.Moreover, we find that the prosecutor was relating the facts adduced at trial to his theory of the case when he argued that the defendant tortured Pomaska because he was looking for something in particular.People v. Sharbnow, 174 Mich.App. 94, 100, 435 N.W.2d 772(1989).Defendant admitted writing Pomaska's name and address in his notebook and also planning the break-in.We find no manifest injustice in the prosecutor's relating the fact that the defendant, who lived several miles from the scene of the crime, selected a simple home where two elderly people lived.We also find no merit in the defendant's claim that the prosecutor misled the jury by implying that an acquittal would allow the defendant to "walk away" unpunished.Although the jury knew there had been a prior trial regarding this incident because prior testimony of the complainants was read into the record, it would not have known whether the defendant had been convicted.Further, the trial court suppressed evidence of the defendant's prior convictions following his motion.We conclude that any prejudicial effect of these comments could have been cured by cautionary instructions.Crawford, supra.Thus, we find no error requiring reversal.

Finally, in his appellate brief filed in propria persona, the defendant argues that the trial court abused its discretion in failing to appoint an interpreter for complainant Bosyk, thus denying him his right to effectively cross-examine the witness.This is an issue of first impression.¹

Defendant requested an interpreter for Bosyk.The trial court determined that Bosyk was competent to testify and that he did not require an interpreter.²The court found that Bosyk understood the English language, and noted that Bosyk had "a tremendous hearing problem" and that his advanced age of eighty years had worn upon his mind.The court further found that Bosyk had "some inability to respond to the questioning," but that the problem was based on hearing and not on any problems understanding the English language.The court left open the possibility of reconsidering its decision if there was nothing to be gained from his testimony, if his testimony...