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PEOPLE v. BOOTH
People v. Booth, Michigan Court of Appeals, Docket No. 18872 (Dec. 11, 1975)
Factual and Procedural Background
On September 12, 1972, shortly after 11 p.m., the complainant saw defendant looking through her bedroom window. Defendant kicked the front door open, entered her home, grabbed the complainant under the arms, slammed her against a bedroom wall, threw her to the floor, beat her, pinned her shoulders with his knees, fondled her breasts and vagina, felt her "privates," struck her in the face repeatedly, and bit her arm. The complainant ran, retrieved her sleeping seven-year-old son from the couch, broke a window, and screamed for help. A neighbor, Gene Barker, hearing the screams, armed himself and entered the home, whereupon he shot defendant six times.
Defendant Leroy Booth was tried by jury and convicted of assault with intent to commit rape (MCLA 750.85; MSA 28.280). He was sentenced to 2 to 10 years' imprisonment, with credit for 27 days of pre‑sentence confinement, and appealed.
Legal Issues Presented
- Whether the evidence was sufficient to support a conviction of assault with intent to commit rape.
- Whether the trial court committed reversible error by, in the voir dire of the complainant's 7-year-old son, asking whether he attended Sunday School and knew about God, in light of MCLA 600.1436; MSA 27A.1436, Const 1963, art 1, § 18, and People v. Hall.
Arguments of the Parties
Appellant's Arguments
- Evidence was insufficient to support the conviction of assault with intent to commit rape; specifically, defendant argued that because he had not unzipped or removed his trousers or attempted to lie on top of the complainant, he lacked the specific intent to commit rape.
- The trial court's questioning of the victim's seven‑year‑old son—asking whether he went to Sunday School and whether he knew about God—violated MCLA 600.1436; MSA 27A.1436, the Michigan Constitution (art 1, § 18), and People v. Hall, and thus was reversible error.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| People v. Brown, 42 Mich. App. 608, 614 (202 N.W.2d 493) (1972) | Standard of appellate review for sufficiency: examine record in the light most favorable to the prosecution and defer to the factfinder's assessment of credibility. | Cited to state and apply the sufficiency‑of‑evidence standard on review of defendant's claim. |
| People v. Barry, 53 Mich. App. 670, 676 (220 N.W.2d 39) (1974) | Support for the appellate sufficiency review standard. | Used as an additional authority reinforcing the standard for reviewing sufficiency of evidence. |
| People v. Phillips, 385 Mich. 30, 36-37 (187 N.W.2d 211) (1971) | Principle that the "gist" of assault with intent to commit rape is intent, and intent may be inferred from surrounding facts and circumstances. | Applied to hold that intent could be inferred from defendant's actions toward the complainant. |
| People v. Toutant, 133 Mich. 520, 521; 95 N.W. 541 (1903) | Analogous factual situation relevant to inferring intent to rape. | Characterized the instant facts as similar, supporting the inference of intent. |
| People v. Szczytko, 40 Mich. App. 161, 169-170 (198 N.W.2d 740) (1972); affirmed 390 Mich. 278 (212 N.W.2d 211) (1973) | Analogous authority on inferring intent from conduct in sexual assault contexts. | Relied on as a similar case supporting the sufficiency of victim testimony to establish intent. |
| People v. Grace, 50 Mich. App. 604, 608 (213 N.W.2d 853) (1973) | Authority rejecting the notion that lack of certain acts (e.g., unzipping trousers) negates intent to commit rape. | Used to rebut defendant's argument that absence of specific acts showed lack of intent. |
| People v. Bell Williams, 50 Mich. App. 763, 769 (213 N.W.2d 754) (1973) | Similar to Grace regarding inference of intent from conduct despite absence of certain acts. | Applied to support the court's conclusion that the jury could infer intent. |
| McCurdy v. Ashley, 259 N.C. 619, 622; 131 S.E.2d 321, 323 (1963) | Permissible exercise of trial court discretion in finding a 6‑year‑old witness competent where the child showed religious instruction and a sense of obligation to tell the truth. | Cited as analogous out‑of‑state authority supporting the trial court's competency inquiry of the 7‑year‑old witness. |
| Beausoliel v. United States, 71 App. D.C. 111; 107 F.2d 292, 293-294 (1939) | Upheld trial court discretion as to competency of a 6‑year‑old witness who indicated attendance at Sunday School and belief that liars are punished after death; referred to Wigmore's requirement of a sense of moral responsibility. | Relied upon to support the proposition that inquiry into a child's sense of obligation (as distinct from religious belief per se) is appropriate to determine competency. |
| Hughes v. Detroit, G. H. & M. R. Co., 65 Mich. 10, 16; 31 N.W. 603 (1887) | Statement that trial court must be satisfied a child witness is disposed to tell the truth under some sense of obligation. | Quoted as an historic Michigan articulation of the requirement codified in MCLA 600.2163; MSA 27A.2163. |
| People v. Hall, 391 Mich. 175; 215 N.W.2d 166 (1974) | Prohibition on cross‑examination of a defendant or witness as to belief in a Supreme Being (religious belief questioning barred in that context). | Distinguished: the court held Hall prohibits cross‑examination as to belief in a Supreme Being, but found the trial judge's voir dire of the child was aimed at the child's sense of obligation to tell truth under the statutory competency inquiry (MCLA 600.2163), not to elicit religious belief in contravention of Hall. |
| People v. Brocato, 17 Mich. App. 277, 298 (169 N.W.2d 483) (1969) | Support for the rule that a defendant or witness cannot be cross‑examined about belief in a Supreme Being. | Cited to reinforce the limitation recognized in Hall and to distinguish the present voir dire as not falling within that prohibition. |
| People v. Frank Williams, 39 Mich. App. 458, 461-462 (1972) | Additional authority supporting the rule barring questioning about belief in a Supreme Being. | Used to support the distinction between prohibited religious‑belief questioning of parties/witnesses and permissible competency inquiry of a child under MCLA 600.2163. |
| Hill v. Skinner, 81 Ohio App. 375, 377; 79 N.E.2d 787, 789 (1947) | Holding that the source of a child's sense of obligation to tell the truth (e.g., belief in God or something revered) is of little importance if the child shows duty to speak truthfully and has intellectual capacity. | Cited as an illustrative authority of the "more modern approach" and as supportive of permitting the trial judge's questions to determine the child's obligation to tell the truth. |
| McCormick, Evidence (2d ed), § 62 (treatise) | Noted Hill as an illustration of the modern approach to child witness competency. | Cited to place Hill in doctrinal context and support the court's acceptance of the trial court's competency inquiry. |
Court's Reasoning and Analysis
The court's analysis proceeded in two major parts corresponding to the issues raised on appeal.
1. Sufficiency of the Evidence
The court first articulated the governing standard of appellate review for sufficiency claims: the record must be viewed in the light most favorable to the prosecution and appellate courts must defer to the jury's opportunity to observe witness demeanor and assess credibility (citing People v. Brown and People v. Barry). Applying that standard, the court reviewed the complainant's testimony in detail — including defendant's forcible entry, the physical assault, the sexual touching, the victim's statements describing physical injuries and sexual fondling, and the interruption of the assault only upon Gene Barker's entry and shooting of the defendant. Relying on authorities establishing that intent (the "gist" of the offense of assault with intent to commit rape) may be inferred from the facts and circumstances (People v. Phillips; People v. Toutant; People v. Szczytko), and on cases holding that the absence of specific acts (e.g., unzipping trousers) does not preclude an inference of intent (People v. Grace; People v. Bell Williams), the court concluded that the victim's testimony was sufficient to permit a jury to find beyond a reasonable doubt that defendant had the requisite intent to commit rape.
2. Voir Dire of the Seven‑Year‑Old Witness and Religious‑Belief Prohibition
The court then addressed whether the trial judge's voir dire of the victim's seven‑year‑old son — specifically asking whether he went to Sunday School and knew about God and reminding him that God would know if he lied — violated the statutory prohibition against questioning a witness about religious opinions (MCLA 600.1436; MSA 27A.1436) and the constitutional protection (Const 1963, art 1, § 18), as implicated by People v. Hall.
The court observed that MCLA 600.2163; MSA 27A.2163 requires the trial court to determine the competency of a witness under age ten, specifically whether the child has the intelligence and "sense of obligation to tell the truth." The court characterized its task as determining whether the trial judge's questions were directed at establishing that statutory competency (the child’s sense of obligation), rather than impermissibly probing his religious beliefs in the manner condemned in Hall.
The opinion surveyed analogous decisions (McCurdy; Beausoliel) and cited authoritative commentary (Wigmore and McCormick) and an historical Michigan case (Hughes) which emphasize that a child witness must display a sense of moral responsibility or duty to speak truthfully. The court concluded the judge's questions were properly aimed at the "framework within which the witness felt bound to tell the truth" (i.e., the basis of the child's sense of obligation), not at eliciting or attacking religious belief in the prohibited manner. Accordingly, the court distinguished People v. Hall and similar authorities that bar cross‑examination of a defendant or witness as to belief in a Supreme Being, and held the voir dire did not constitute reversible error.
Holding and Implications
AFFIRMED
Holding (core ruling): The Court of Appeals affirmed the conviction. It found (1) the evidence was sufficient, when viewed in the light most favorable to the prosecution, to support a jury finding beyond a reasonable doubt that defendant had the intent necessary for assault with intent to commit rape; and (2) the trial court did not commit reversible error by asking the seven‑year‑old witness whether he attended Sunday School and knew about God, because those questions were directed to establishing the child's statutory competency and sense of obligation to tell the truth, not to elicit religious belief in contravention of MCLA 600.1436; MSA 27A.1436 and People v. Hall.
Direct consequences: Defendant's conviction for assault with intent to commit rape and his sentence of 2 to 10 years' imprisonment (with credit for 27 days) were upheld on appeal.
ALLEN, P.J.
On August 9, 1973, a jury found defendant guilty of assault with intent to commit rape. MCLA 750.85; MSA 28.280. Defendant received a sentence of 2 to 10 years in prison, with credit for 27 days spent in confinement prior to sentencing, and has exercised his right to appeal.
Defendant claims that the evidence was insufficient to support a conviction of assault with intent to commit rape. It is also claimed that the trial court committed reversible error by asking the victim's 7-year-old son whether he went to Sunday School and believed in God, contrary to MCLA 600.1436; MSA 27A.1436. We affirm the trial court.
When faced with the assertion that the evidence was insufficient to support one's conviction, the Court must examine the record in a light most favorable to the prosecution, and must determine whether sufficient proofs were presented which, if believed by the fact finder, could support a finding of guilty beyond a reasonable doubt. The Court must also defer to the fact finder's opportunity to observe and evaluate the demeanor of the witnesses and their credibility. People v Brown, 42 Mich. App. 608, 614; 202 N.W.2d 493 (1972). See also People v Barry, 53 Mich. App. 670, 676; 220 N.W.2d 39 (1974).
Having examined the evidence in a light most favorable to the prosecution, we find that the evidence was sufficient to support defendant's conviction for assault with intent to commit rape. The complainant testified that on the night of September 12, 1972, shortly after 11 p.m., she heard a car door slam, looked out her bedroom window, and saw defendant looking through the window at her. Defendant then kicked the front door open, and entered complainant's home. She was wearing a long flowery gown at this time. Complainant ran, grabbed her sleeping son from the couch, broke a window and screamed for help.
Defendant then grabbed his victim under the arms, slammed her against a bedroom wall, and threw her to the floor. He began to beat her, and pinned her shoulders to the floor with his knees. She testified that defendant began "feeling around on my body", and repeatedly struck her in the face. She also testified that defendant bit her on an arm.
Complainant testified that defendant was feeling her "privates", and said to her, "shut up, you white bitch" and "baby, you sure feel good". Defendant fondled the victim's breasts and vagina, and continued his attack until Gene Barker, a visitor at a neighbor's home, entered the front door. Barker, having heard screaming and loud noises, grabbed a pistol from his girlfriend, who had preceded him out the door, and ran into the victim's home. He met defendant in the hallway, and shot him six times.
The "gist" of assault with intent to commit rape is intent, and this element may be inferred from the facts and circumstances present. People v Phillips, 385 Mich. 30, 36-37; 187 N.W.2d 211 (1971). This situation is similar to that in People v Toutant, 133 Mich. 520, 521; 95 N.W. 541 (1903), and People v Szczytko, 40 Mich. App. 161, 169-170; 198 N.W.2d 740 (1972), affirmed, 390 Mich. 278; 212 N.W.2d 211 (1973). The victim's testimony was sufficient to establish defendant's guilt, and defendant's main argument that because he had not unzipped or removed his trousers or attempted to lie on top of complainant he had no specific intent to commit rape is without merit. See People v Grace, 50 Mich. App. 604, 608; 213 N.W.2d 853 (1973), and People v Bell Williams, 50 Mich. App. 763, 769; 213 N.W.2d 754 (1973). Certainly, there was sufficient evidence to entitle the jury to find that but for the timely intervention of Gene Barker, rape would have occurred.
Allen Grabowski, the victim's 7-year-old son, was called to testify. Pursuant to MCLA 600.2163; MSA 27A.2163, the following exchange took place between the trial judge and the witness:
"The Court: You know the difference between a lie and the truth, what it is to tell a lie?
"Mr. Grabowski: Yes.
"The Court: Do you go to Sunday School?
"Mr. Grabowski: Yes.
"The Court: You know about God, don't you?
"(Witness nodded head.) "The Court: You know if you take this witness stand questions are going to be asked you, and they want you to tell the truth. You know what that means, don't you?
"Mr. Grabowski: Yes.
"The Court: And you know that if you don't tell the truth we may not know it, but you know that God will know it, don't you?
"Mr. Grabowski: Yes, sir."
The trial judge found the witness to be sufficiently qualified to know the difference between truth and falsehood, and said that the witness did not have to be sworn. Defense counsel failed to voice an objection to this proceeding, and did not dispute the competency of the witness. The witness's competency to testify was not challenged on appeal. Rather, it is argued that the above questions violate the provisions of MCLA 600.1436; MSA 27A.1436, Const 1963, art 1, § 18, and People v Hall, 391 Mich. 175; 215 N.W.2d 166 (1974).
"No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief." Const 1963, art 1, § 18.
"No person may be deemed incompetent as a witness, in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn." MCLA 600.1436; MSA 27A.1436.
This case is one of first impression in our jurisdiction. Our research has failed to unearth a case from another state strictly on point, although McCurdy v Ashley, 259 N.C. 619, 622; 131 S.E.2d 321, 323 (1963), found that the trial court did not abuse its discretion in finding a 6-year-old witness competent to testify where that witness stated during the voir dire that his mother had taught him to say his prayers, he repeated part of his prayers, said that "bad boys go down in the ground to the `boogerman'", that Jesus did not like boys who tell lies, and that he was a good boy, told the truth and went to church on Sundays.
In a related situation in which the instant problem was not specifically involved, Beausoliel v United States, 71 App DC 111; 107 F.2d 292, 293-294 (1939), refused to disturb the discretion of the trial court as to the competency of a 6-year-old witness who said that although she did not believe in hell or the devil and that untruthful people will be punished after death, said that she attended Sunday School and believed that people who lied would receive some sort of punishment. Beausoliel referred to a rule in 1 Wigmore, Evidence (2d ed), § 506, that "[t]here must be a sense of moral responsibility, — a consciousness of the duty to speak the truth" — on the part of the child witness. 107 F.2d 292, 294. The Michigan Supreme Court has noted that it is necessary for the trial court "to be satisfied that the child will be disposed to tell the truth under some sense of obligation." Hughes v Detroit, G H M R Co, 65 Mich. 10, 16; 31 N.W. 603 (1887). That requirement is codified in MCLA 600.2163; MSA 27A.2163.
Hall, supra, upon which defendant relies, is distinguishable. In that case, defendant was asked on cross-examination "whether or not you [defendant] believe in the Supreme Being" and whether or not he would tell a falsehood to avoid a conviction. 391 Mich. 175, 180. It is clear that the defendant or a witness cannot be cross-examined as to his belief in a Supreme Being. People v Brocato, 17 Mich. App. 277, 298; 169 N.W.2d 483 (1969), and People v Frank Williams, 39 Mich. App. 458, 461-462; 197 N.W.2d 858 (1972). Our case involves the trial court complying with its statutorily prescribed duty to determine whether the witness, under 10 years of age, had the intelligence and "sense of obligation to tell the truth * * * ". MCLA 600.2163; MSA 27A.2163. The trial court's inquiry was not directed to whether the witness believed in God or a Supreme Being. Rather it was directed at the basis of the witness's sense of obligation to tell the truth. The judge was merely exploring the framework within which the witness felt bound to tell the truth, and this proceeding did not come within the prohibition decided in Hall, supra.
In Hill v Skinner, 81 Ohio App. 375, 377; 79 N.E.2d 787, 789 (1947), a 4-year old witness said that God would not love him if he failed to tell the truth. The court stated that the nature of the witness's obligation to tell the truth was:
"of little importance if he shows that he will fulfill the obligation to speak truthfully as a duty which he owes a Deity or something held in reverence or regard, and if he has the intellectual capacity to communicate his observations and experiences."
Hill has been noted as an illustration of the "more modern approach", McCormick, Evidence (2d ed), § 62, p 140, fn 7, and we find that the trial court properly questioned Allen Grabowski to determine his sense of obligation to tell the truth and did not commit reversible error.
Affirmed.
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