Defendant appeals as of right his judgment of sentence of April 19, 1989. A jury convicted defendant of one count of first-degree felony murder, MCL 750.316; MSA 28.548, and he received a mandatory sentence of life imprisonment without possibility of parole. We affirm.
The victim in this case was found dead in her. home on October 8, 1987. The cause of death was established as multiple stab wounds to the chest area. The front screen door had a cut in it, apparently made by a knife. Inside the victim’s home, the contents of her purse were strewn about the area where it was believed a struggle occurred. Many items thought to have been insidе the purse were covered with blood, including the victim’s driver’s license and her wallet. The wallet was found to contain one folded-up dollar bill in the change section along with some change. The victim’s live-in boyfriend testified that he saw the victim place at least $4 inside the wallet the evening before her death.
i
Defendant first argues that there was insufficient evidence presented by the prosecution to *124 bind him over to the circuit court on the charge of first-degree felony murder. The examining magistrate originally agreed with defendant and only found probable cause to charge defendant with second-degree murder. The prosecutor appealed that ruling to the circuit court, which reversed the magistrate’s decision and charged defendant with first-degree felony murder.
In order for a defendant to be bound over for trial, the magistrate must find that there is evidence amounting to probable cause to beliеve that a felony has been committed.
People v Hill,
In reviewing a decision to bind a defendant over for trial, the circuit court may not substitute its judgment for that of the examining magistrate, and may reverse only if it appears on the record that the magistrate abused his discretion.
People v Cotton,
For felony murder, the following elements of the сrime must be established:
(1) [T]he killing of a human being (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in *125 MCL 750.316; MSA 28.548. [People v Bush,187 Mich App 316 , 327;466 NW2d 736 (1991).]
See also
People v Flowers,
The enumerated felony relied upon in this case was larceny. The statute, MCL 750.316; MSA 28.548, provides that murder is of the first degree if "committed in the perpetration, or attempt to perpetrate . . . larceny of any kind.” Because the intent to commit the enumerated felony of larceny was an elemеnt of the crime of felony murder, the prosecution had to produce some evidence with regard to this element or evidence from which this element could be inferred. Hill, supra, p 469.
It is not necessary that the murder be contemporaneous with the enumerated felony. The statute requires only that the defendant intеnded to commit the underlying felony at the time the homicide occurred.
People v Goddard,
In this case, the examining magistrate in the district court bound the defendant over on a charge of second-degree murder because the magistrate found that the evidence that money was removed from the victim’s wallet merely estab *126 lished that a larceny was committed. The magistrate felt the larceny could have been an afterthought to the homicide and noted that the wallet was covered with blood. The prosecution appealed this decision to the circuit court. The circuit cоurt found that the examining magistrate had abused his discretion by unduly focusing on the timing of the larceny rather than the timing of the intent. The court also found that a jury could infer that the defendant intended to commit the larceny at the time of the killing and ordered the defendant bound over on a charge of first-degree felony murdеr. The court specifically referred to medical testimony regarding the presence of defensive wounds on the victim’s hands, indicating a struggle, and police testimony that placed the strewn contents of the victim’s purse IV2 to 2 feet from where the struggle began.
Although it is a close question, we agree with the circuit court that the decision to bind dеfendant over for trial on the reduced charge of second-degree murder was an abuse of discretion. The trier of fact could infer from the evidence that the killing and the underlying felony were so closely connected in point of time, place, and causal relation that the homicide was incident to the felony and associated with it as one of its hazards. Goddard, supra, p 136. Considering all the facts and circumstances in evidence, we believe the trier of fact could infer that the wounds were inflicted during a struggle for the purse. We find in this case that the question regarding precisely when the defendant’s larcenоus intent was first formed was for the jury to decide, not the examining magistrate. Flowers, supra, pp 178-179.
11
Defendant’s next issue on appeal concerns his *127 challenge of statements made to the police that were ruled admissible by the trial court. The challenge of the admissibility of these statements is based on the Deaf Persons’ Interpreters Act, MCL 393.501 et seq.; MSA 17.55(101) et seq. Section 5 of that act, MCL 393.505; MSA 17.55(105), provides as fоllows:
(1) If a deaf person is arrested and taken into custody for any alleged violation of a criminal law of this state, the arresting officer and the officer’s supervisor shall procure a certified interpreter or qualified interpreter in order to properly interrogate the deaf person and to interpret the deaf person’s statements.
(2) A statement taken from a deaf person before a certified interpreter or qualified interpreter is present shall not be admissible in court.
The act defines a "deaf person” as
a person whose hearing is totally impaired or whose hearing, with or without amplification, is so seriously imрaired that the primary means of receiving spoken language is through other sensory input; including, but not limited to, lip reading, sign language, finger spelling, or reading. [MCL 393.502(e); MSA 17.55(102)(e).]
The purpose of the act is to provide a way for deaf individuals to meaningfully participate in judicial (or investigative) proceedings.
Bednarski v Bednarski,
A
A trial court’s decision regarding whether an *128 individual is a deaf person is based upon factual findings, and we review that decision for clear error. MCR 2.613(C). An evidentiary hearing should be conducted when there is a challenge of the admissibility of a statement from а defendant who asserts he should have been provided with an interpreter under MCL 393.505; MSA 17.55(105).
We believe the preliminary focus of the hearing is sufficiently stated in MCL 393.502(e); MSA 17.55(102)(e) by the definition of a "deaf person.” The testimony should center on whether the individual lacked the necessary communication skills to make a statement without the aid of an interpreter.
In this case, there was conflicting testimony from experts and laypersons regarding defendant’s hearing ability. There was no question that defendant has had some form of hearing impairment for years and has even worn a hearing aid in the past. However, he apparently did nоt require the use of the hearing aid in his day-to-day activities, and refused to wear it for unknown reasons. Nonetheless, the experts testified that although defendant could hear some conversation, particularly at elevated levels, he still relied on visual cues to receive communications. Defendant was believed to be proficient at lip reading, but was never tested for this skill.
Other witnesses who either worked with defendant or engaged in high school athletics with him offered a different view of his hearing ability. They either were not aware that defendant had any hearing problem or had seen him pretend not to hear in situations where he was being scolded or embarrassed.
Most of the officers who had contact with defendant during his four police interviews noted that he had a speech or hearing problem, and efforts *129 were made to ensure that he could hear and understand. Defendant told the officers that hе had a bad ear, and he would turn so that the officers’ voices were directed at his good ear. At no point did defendant state that he was deaf or required an interpreter. The officers did not inquire if an interpreter was needed. All conversations with the police were conducted with only a few feet, or less, of space separating the conversants. The officers also provided defendant with a copy of an advice-of-rights form to follow along as they explained his rights. Generally, defendant did not appear to have a problem understanding the officers, although some statements had to be repeated, and defendant gave appropriate responses to all questions he was asked.
We have reviewed the findings of fact enunciated by the court after it conducted an evidentiary hearing regarding defendant’s hearing ability. We do not find the findings of fact and conclusions оf law with regard to this issue to be clearly erroneous. The evidence conflicted with regard to the degree of defendant’s hearing disability and whether he was required to rely on means other than hearing to receive spoken communications.
Our analysis does not end here, however. We believe a reviewing court must engage in a two-step analysis when determining whether a defendant’s statement is admissible when he claims he has a hearing deficiency. First, if the court finds the defendant is "deaf,” as defined by the statute, then the Legislature has provided that the defendant cannot be interrogated unless he is provided with an interpreter and that any statement made by a deaf defendant unaided by an interpreter must be automatically excluded. MCL 393.502(e); MSA 17.55(102)(e); MCL 393.505(2); MSA 17.55(105)(2). Second, if the court finds the defen *130 dant is not "deaf,” as provided by the statute, the court must still determine whether the hearing-impaired defendant was able to comprehend his rights and make a knowing and intelligent waiver of his rights.
B
We believe the Deaf Persons’ Interpreters Act is generally based on the same Fifth Amendment concepts associated with the waiver of rights and the voluntariness of statements. Consequently, we find that the basic principles applicable to Walker
1
hearings arе applicable to hearings under the Deaf Persons’ Interpreters Act. Where a defendant does not knowingly and intelligently waive his
Mi
randa
2
rights, the statement is involuntary.
People v Nantelle,
An effective waiver of Miranda rights does not require an oral recitation. Although it is not generally encouraged, a written advice-of-rights form may be sufficient. Nantelle, supra, pp 52-53. The use of a written form becomes more palatable in a case involving a defendant who is hearing-impaired.
Before utilizing a statement made by a hearing-impaired defendant either with or without the assistance of an interpretеr, it must be established that the defendant comprehended his
Miranda
*131
rights and intelligently waived them before making the statement. See
State v Spivey,
When the defendant has challenged the admissibility of his statements, the prosecution has the burden of proving voluntariness by a preponderance of the evidence.
People v DeLisle,
We have considered the totality of the circumstances surrounding the defendant’s statements that were ruled admissible by the trial court,
People v Cipriano,
hi
The third and final issue raised by defendant concerns whether the affidavits presented in support of a search warrant established probable cause. The warrant allowed the police to search defendant’s residence, where they found bloodstained clothing and shoes placed within a suspended ceiling in the basement.
An affidavit for the search warrant was prepared by Officer Michael Debnar. It incorporated by reference two other affidavits.
Probable cause sufficient to support issuing a search warrant exists when all the facts and circumstances would lead a reasonable person, to believe that the evidence of a crime or the contraband sought is in the place requested to be searched.
People v Lucas,
After reviewing the affidavits offered in support of the search warrant, we find no error. The affidavits established probable cause to search defendant’s home, which he shared with his mother, for evidence related to the victim’s homicide. We also find no error in the fact that the affidavit offered in support of the warrant request incorporated two other affidavits related to the homicide. Even if we were to treat the supplemental affidavits аs hearsay, we would still find them adequate because each specifically named the individual supplying the information and alleged that the information was based on personal knowledge. MCL 780.653; MSA 28.1259(3);
People v Harris,
Affirmed._
Notes
People v Walker (On Rehearing),
Miranda v Arizona,
The 1988 amendments of MCL 780.653; MSA 28.1259(3) are not applicable in this case because the search warrant was obtained in 1987.