People v. Garcia

247 N.W.2d 547, 398 Mich. 250, 1976 Mich. LEXIS 182

Opinions

Lindemer, J.

In the early morning hours of December 15, 1969, Mrs. Eileen Garcia and Mr. Blevins Rinehart were shot to death outside the Peerless Gear Company in Clinton, Michigan. The slayings took place in the factory parking lot as the employees reported for the day shift. Both victims died of gunshot wounds to the head. Later that same day defendant was apprehended by the police and charged with the murder of his wife. In May of 1970, defendant was bench-tried before Lenawee County Circuit Judge Rex B. Martin. Defendant was convicted of first-degree murder. MCLA 750.316; MSA 28.548. In his appeal of right, the Court of Appeals affirmed his conviction. 33 Mich App 598; 190 NW2d 347 (1971). Leave to appeal that decision to this Court was denied. 386 Mich 766 (1971). Defendant then filed a motion for a new trial with the trial court. Defendant appealed the denial of that motion to the Court of Appeals which again upheld the conviction. 51 Mich App 109; 214 NW2d 544 (1974). This Court granted defendant’s application for leave to appeal. 392 Mich 803 (1974). We affirm.

Initially, we consider defendant’s claim that the trial court improperly refused to direct a verdict of acquittal at the close of the prosecution’s proofs. An appellate court tests the correctness of the denial of such motion by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty of murder in the first degree. People v Vail, 393 Mich 460; 227 NW2d 535 (1975). People v Abernathy, 253 Mich 583; 235 NW 261 (1931). To the extent that the case of People v Qualls, 9 Mich App 689; 158 NW2d 60 (1968), holds to the contrary, it is expressly overruled.

When moving for acquittal, defense counsel argued that there was no evidence linking defendant to the perpetration of the crime. We disagree. A number of persons who witnessed the slayings testified but were unable to positively identify defendant as the assailant. However, it was established that defendant had made several recent threats to kill his wife and anyone found with her; the assailant escaped in the defendant’s car; and a police officer testified that when apprehended the defendant admitted being in sole possession of his car during the time of the slayings. Defendant was known to have been in possession of a .22-caliber revolver and some ammunition. A police expert testified that the bullet recovered from the wife’s body is of the type which could have been fired from such a pistol. The murder weapon was never recovered so a match between the bullet and the pistol could not be accomplished.

Witnesses testified that the slayings took place between 6:30 and 6:45 a.m. One witness observed that the assailant was wearing a dark topcoat. After the shooting, the assailant entered defendant’s car and calmly drove from the parking lot (in Clinton) towards Tecumseh, approximately four miles south. Defendant was observed driving his car in Adrian, 15 miles south of Clinton, sometime between 7:00 and 7:30 a.m. Defendant, wearing a dark trench coat, arrived at James McClarren’s house, about ten miles from the prior sighting, sometime between 7 and 8 a.m. We believe this chain of circumstantial evidence was sufficient to allow the trial judge to deny the motion. In our opinion these proofs contained some relevant evidence on each of the elements of the crime charged and that defendant was the perpetrator of that crime. The trial judge properly denied the motion for a directed verdict of acquittal at the close of the prosecution’s case.

The next of defendant’s four raised issues concerns the defense of voluntary intoxication. Defendant argues that the crime of first-degree murder requires the specific intent to kill. Defendant then argues that the law of this state is such that voluntary intoxication can be a defense to crimes which require a specific intent. Defendant concludes by arguing that the trial judge erroneously concluded that defendant was not so intoxicated that he did not form the specific intent to kill. In related subarguments, the defendant alleges that the trial court failed to find all of the necessary elements of first-degree murder; that the defendant was acting under diminished mental responsibility sufficient to negate the elements of specific intent and premeditation and deliberation; and that the evidence was insufficient for a finding of guilt of any crime greater than the crime of voluntary manslaughter. MCLA 750.321; MSA 28.553. We find these related issues to be without merit.

Murder is homicide committed with malice aforethought. At the common law, the crime of murder was not divided into degrees. The present statutory scheme providing for the separation of murder into degrees was "for the purpose of graduating the punishment”. People v Doe, 1 Mich 451, 457 (1850). This classification of murder by degree was first enacted by the State of Pennsylvania in 1794. In 1838, motivated by a concern that the more culpable forms of murder should be punished more severely, this state adopted a similar statutory scheme. People v Potter, 5 Mich 1, 6 (1858); People v Morrin, 31 Mich App 301, 325; 187 NW2d 434 (1971).

Courts in Pennsylvania have consistently held that their first-degree murder statute requires a specific intent to kill. Commonwealth v Murray, 2 Ashm (Pa) 41 (Phila O & T, 1834); Commonwealth v Fostar, 455 Pa 216; 317 A2d 188 (1974).

Michigan courts have not been so consistent. In People v Scott, 6 Mich 287, 294 (1859), this Court stated:

"Except in cases expressly named in the statute, murder in the ñrst degree requires the existence of a deliberate intention to take life; and any slaying in which a jury should find either the absence of deliberation, or that the intent was to commit another and a lesser injury, must be either murder in the second degree or one of the lighter grades of homicide.” (Emphasis supplied.)

However, confusion began when this Court, on policy grounds, rejected the defense of voluntary intoxication in a prosecution of first-degree murder. People v Garbutt, 17 Mich 9 (1868). Broad statements from cases involving second-degree murder convictions added to the confusion. Wellar v People, 30 Mich 16 (1874).

Another problem with some of the cases is that the crime charged was not a homicide. An example is Roberts v People, 19 Mich 401 (1870), which involved an assault with intent to commit murder. In hopes of ending the confusion and on the authority in Potter and Scott, we hold that nonfelony first-degree murder is a specific intent crime requiring an intention to take life.

Our holding is supported by the language of the first-degree murder statute.

"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing * * * shall be murder of the first degree”. MCLA 750.316; MSA 28.548.

A reading of the statute mandates the construction that "wilful * * * killing” means the intent to accomplish the result of death.

Voluntary intoxication can be a defense to crimes which require a specific intent.

"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.” People v Walker, 38 Mich 156, 158 (1878).

In the case at bar, however, the trial judge rejected the defense of voluntary intoxication. We believe he did so properly. In his finding of facts, the trial judge stated:

"I think he formed an intent to do away with her [his wife] if he caught her with someone else. I think he went to Clinton early Monday morning with his pistol to kill her if the occasion arose and he thought he should.”

These findings of fact support the conclusion that the murder was premeditated and deliberated upon. The record also supports the trial judge’s conclusion the defendant acted with wilfulness. The trial judge found the killing to be intentional rather than accidental:

"The physical facts themselves, the place where the bullet went in each person, the fact there were no powder burns, the path of the bullet, the type of gun, the fact that it had to be cocked every time it was fired would completely belie this story, so there wasn’t any accidental killing.”

Defendant argues that certain remarks of the trial judge indicate that defendant was found to have been operating under a diminished mental capacity due to consumption of alcohol and lack of sleep. Specifically defendant points to these statements:

"I am convinced his ability to form a proper judgment was impaired by his voluntary consumption of intoxicants. * * * I am convinced he wouldn’t have killed them, either one of them, if he had been sober.” However, the entire passage from which those comments were excised evidences an entirely different conclusion. Our review of the transcript leads us to believe that the trial judge was properly convinced that, in spite of his drinking spree, the defendant had the ability to and did actually premeditate and deliberate over his wife’s death.

"Now, the people must convince the court beyond a reasonable doubt of premeditation and malice to have first-degree murder. Dr. DuKay stated very emphatically among some of his other testimony that when you take the total picture of the alcoholism, the lack of sleep, the lack of food, etc., the defendant didn’t have the ability to specifically form an intent to murder, and he was pretty definite about this. He also said another thing, and frankly, I looked at my notes, and I wasn’t too sure that probably I got it down right, so I asked the reporter to type out this particular question and answer just to make sure I had heard Dr. DuKay correctly, and on cross-examination, Mr. Koselka asked him, 'Again, I want to be sure I understand this, doctor. You are saying then, doctor, that he did in your opinion have the intent to murder, but his ability to form this intent was impaired by the use of alcohol?’ And the answer was, 'I think that that’s what it really can be summarized.’ So Dr. DuKay, in effect, has said he could have this intent and did have it and yet on another occasion he said he didn’t think he had the intent. Now, I think Dr. DuKay also said again it wasn’t his responsibility to make that determination, and, of course, he was correct in this. I am convinced that the defendant had the ability to form a proper judgment — pardon me. I am convinced his ability to form a proper judgment was impaired by his voluntary consumption of intoxicants. I believe his inhibitions were released by intoxicants. His basic subconscious hatred of his wife, because of her failure to be the mother, the housekeeper, and the wife he had wanted her to be, came to the forefront. Now, he knew that this dislike of his wife came to the forefront when he drank. He’d been told this. He testified himself that he knew about this. I think he formed an intent to do away with her if he caught her with somebody else. I think he went to Clinton early Monday morning with his pistol to kill her if the occasion arose and he thought he should. I don’t think he went there to give her the pistol at all. This doesn’t make sense. He found her with Mr. Blevins [Rinehart]. It was an innocent meeting between the two of them. I think she went to Mr. Blevins to see if he had brought her work clothes so she could go into work. He killed them both. I am convinced he wouldn’t have killed them, either one of them, if he’d been sober. I don’t think there’s any question in my mind about that. I am convinced he was not so drunk as to have lost the ability to have malice, that malice arose in his heart and his mind. In fact, I think the drinking released the controls on the suppressed malice. That the court is convinced that he was not so drunk as to be unable to plan ahead to do what he did. I am satisfied beyond a reasonable doubt that all the elements of first-degree murder have been proved. The court would find him guilty of that offense.”

The nature of defendant’s impairment was described as (1) his inhibitions were released, (2) his subconscious hatred of his wife came to the forefront, and (3) drinking released his controls on suppressed malice. Judged in light of his other comments about defendant’s ability to form a proper judgment and entertain malice, we believe the trial judge must have concluded these "impairments” were of a minimal nature. Such a conclusion is supported by the trial judge’s finding that defendant had exaggerated his testimony concerning consumption of intoxicants and lack of sleep. We find nothing in this record to indicate that defendant’s consumption of intoxicants so clouded his ability to reason that he was unable to premeditate or deliberate over his actions at the time of the slayings.

In a bench trial, it is the role of the trial judge sitting as the trier of fact to observe the witnesses and decide the weight and credibility to be given to their testimony. Where sufficient evidence exists to sustain a verdict of guilty beyond a reasonable doubt, the decision of the judge should not be disturbed by an appellate court. The task of the reviewing court must be to examine the record to determine whether the evidence was ample to warrant a verdict of guilty beyond a reasonable doubt of the crime charged. Our review of this record leads us to conclude that there was sufficient evidence on each and every element of the crime of first-degree murder to sustain the decision of the trial judge.

Next the defendant alleges that reversible error was committed when the trial judge, sitting as a trier of fact, read the entire transcript of the preliminary examination. To support his contention defendant cites the case of People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971). In Ramsey, this Court considered MCLA 768.26; MSA 28.1049, and held that:

"[A]s an absolute rule it is reversible error for the trial court sitting without a jury to refer to the transcript of testimony taken at the preliminary examination except under the exceptions provided by [the above] statute.” Ramsey, supra at 225.

The policy behind Ramsey was to "assure that an accused has a right to confront all of the witnesses against him in open court, and to have all of the evidence against him placed in the record at the trial”. Ramsey, supra at 224-225. However, we find defendant’s reliance upon Ramsey misplaced.

The rule fashioned by this Court in Ramsey was not announced until one year after the trial of this case had concluded. Prior to Ramsey, review of the preliminary examination transcript was a generally accepted practice for the trial judge sitting as a trier of fact. We cannot fault the trial judge’s reliance on this long standing practice especially in light of defense counsel’s consent to it. Upon consideration of the standards enunciated in Link-letter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), and People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), we hold the rule announced in Ramsey is not to be accorded retroactive effect.

Finally defendant contends that he was denied a fair trial by the defense counsel’s failure to object to the trial court’s reading of the entire preliminary examination transcript. Defendant argues that this constituted the serious mistake and but for this mistake there was a great likelihood that he would not have been convicted. This is the two-prong test set forth in People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969). Defendant also contends that he is entitled to a new trial under the doctrine established in Beasley v United States, 491 F2d 687, 696 (CA 6, 1974). Beasley held that:

"Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests, undeflected by conflicting considerations.”

We do not believe the alleged error amounts to reversible error under either Beasley or Degraffenreid. In his findings of fact, the trial judge remarked:

"I think we had a well tried lawsuit here. The witnesses were brought in and examined and cross-examined well, and it was well argued. * * * I wondered at first why defense counsel and his client had waived a jury in this case, and as I got to thinking about it, I could probably understand best after we heard Dr. DuKay’s testimony, because this particular type of defense has been offered many times in this court, and frankly, I don’t think that we’ve ever had an occasion where a jury has accepted it as a defense. I don’t think that we have ever had the case as a defense as well presented as we had it by Dr. DuKay.”

The trial judge read the preliminary transcript to help him to evaluate the testimony of Dr. DuKay. Considering the importance of Dr. DuKay’s testimony in this trial, it is likely that defense counsel perceived the trial judge’s reading of the preliminary examination transcript would be beneficial to the defense. Apparently the trial judge thought otherwise:

"Now, I went through the preliminary examination yesterday, and frankly, I don’t think the preliminary examination set forth the defendant’s case as strongly as the trial itself did. I think the testimony brought out at trial was much stronger * * * .”

People v Degraffenreid, supra, adopts a strict standard for the review of claims of effective assistance of counsel.

"The constitutional right to counsel does not guarantee an accused person that his lawyer will not make a big mistake. The Constitution guarantees only that the accused person will enjoy representation by an attorney adequately equipped by his training in the law to undertake the case and who will diligently, conscientiously and honestly represent the accused person.” Degraffenreid, supra at 712 (footnotes deleted).

Degraffenreid goes on to state that:

"A claim that an adequate lawyer made a serious mistake does not raise the constitutional issue of right to counsel; it does not involve the concept of 'effective assistance of counsel’, it should not be measured against the sham trial standard which circumscribes the constitutional right.” Degraffenreid, supra at 717.

However, even where assistance of counsel satisfies the constitutional requirements, defendant is still entitled to a fair trial. Defendant can be denied this right if his attorney makes a serious mistake. But a court should not grant a new trial unless it finds that but for this mistake defendant would have had a reasonably likely chance of acquittal. Degraffenreid, supra at 718.

In Beasley, supra at 696, the Sixth Circuit rejects the farce or mockery standard as a meaningful test of the Sixth Amendment right to effective assistance of counsel.

We agree with the Sixth Circuit that the time has come for this Court to reject the "sham test”. However, in adopting Beasley and applying it to this case, we fail to find reversible error has been committed. We believe the decision of defense counsel not to object to the trial judge’s reading of the preliminary examination transcript to be a conscious choice of trial strategy. Under Beasley, if such "action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective”. The alleged mistake is of this caliber. We conclude that defendant was deprived of neither a fair trial or effective assistance of counsel.

The Court of Appeals is affirmed.

Williams and Coleman, JJ., concurred with Lindemer, J. Fitzgerald and Ryan, JJ., took no part in the decision of this case.