People v. Dykhouse

• Decision Date: 02 March 1984
• Docket Number: Docket No. 68246,No. 8,8
• Citation: 418 Mich. 488,345 N.W.2d 150
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Garrnit DYKHOUSE, Defendant-Appellee. Calendar418 Mich. 488, 345 N.W.2d 150
• Court: Michigan Supreme Court

Page 150

345 N.W.2d 150

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard Garrnit DYKHOUSE, Defendant-Appellee.

Docket No. 68246.

Calendar No. 8.

418 Mich. 488, 345 N.W.2d 150

Supreme Court of Michigan.

Argued May 4, 1983.

Decided March 2, 1984.

David H. Sawyer, Kent County Pros. Atty., Carol S. Irons, Chief Appellate Atty., Barbara J. Crozier, Asst. Pros. Atty., Grand Rapids, for plaintiff-appellant.

Varnum, Riddering, Wierengo & Christenson by Dennis C. Kolenda, Grand Rapids, for defendant-appellee.

BRICKLEY, Justice.

This case requires us to review the propriety of the first-degree murder instructions in CJI 16:2:01. ¹ We hold that those instructions, although somewhat imprecise, do not contain error prejudicial to the defendant.

Defendant was convicted of first-degree premeditated murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. He was sentenced to terms of life imprisonment and thirty to sixty years imprisonment, respectively. These convictions arose out of events on February 25, 1979, when defendant, after an evening of heavy drinking, returned home to find that his wife was not there. Armed with a rifle, he went to the home of his wife's paramour. He found his wife crouching in a closet and killed her with a single shot through the neck. He seriously wounded his wife's paramour with a shot in the back.

In the Court of Appeals, defendant, inter alia, argued that the trial court's jury instructions failed to adequately apprise the jury that the defendant must have had a specific intent to kill to be found guilty of first-degree murder. On the authority of People v. Milton, 81 Mich.App. 515, 265 N.W.2d 397 (1978), modified 403 Mich. 821, 282 N.W.2d 926 (1978), the Court of Appeals agreed with the defendant and reduced his conviction of first-degree murder to second-degree murder. We granted the prosecutor's application for leave to appeal. Defendant's cross-application for leave to appeal was ordered held in abeyance pending decision on the issue raised by the prosecutor. 414 Mich. 867 (1982).

What was known at common law as the crime of murder, and what is now known under our statutory scheme as the crime of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, is committed only if the actor entertains one of three possible intents: the intent to kill, the intent to inflict great bodily harm, or the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result. People v. Aaron, 409 Mich. 672, 713-714, 299 N.W.2d 304 (1980). In contrast, the statutory crime of first-degree premeditated murder is committed only if the defendant entertains the intent to kill. People v. Garcia, 398 Mich. 250, 259, 247 N.W.2d 547 (1976). In addition, the intent to kill in first-degree premeditated murder must be deliberate and premeditated. People v. Hansen, 368 Mich. 344, 351, 118 N.W.2d 422 (1962). ²

In Milton, supra, 81 Mich.App. p. 518, 282 N.W.2d 926, the defendant's conviction of first-degree premeditated murder was reversed because the trial court instructed that first-degree premeditated murder could be committed if the defendant "either intended to kill the deceased or * * * consciously created a very high degree of risk of death to another with knowledge of its probable consequences". Of course, such an instruction is clearly erroneous. A "very high risk of death" intent is insufficient for first-degree premeditated murder. The defendant must have an actual intent to kill.

In the present case, defendant contends, and the Court of Appeals found, that an error similar to that in Milton occurred. ³ Here, the trial court's instruction included the phrases, "[f]irst-degree and second-degree murder are the same crime, except that first-degree murder has the additional elements of premeditation and deliberation, that is, the defendant must have premeditated and deliberated his intent to kill" and "[k]eep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder". Defendant argues that because these phrases were included in the instructions the jury could have concluded that a "very high risk of death" intent was sufficient to convict the defendant of first-degree premeditated murder. Viewing the instructions to the jury in their entirety, as we must, People v. Dye, 356 Mich. 271, 279, 96 N.W.2d 788 (1959), cert. den. 361 U.S. 935, 80 S.Ct. 367, 4 L.Ed.2d 355 (1960), we disagree.

The trial court's instructions were taken substantially from CJI 16:2:01: ⁴ "The defendant is charged in Count I with the crime of murder in the first degree. The law as it applies to this case states that all wilful, deliberate, and premeditated murder shall be murder of the first degree. The defendant pleads not guilty.

"There are two kinds of murder, first-degree and second-degree, and you will be instructed as to both. Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not lessen the crime.

"First-degree and second-degree murder are the same crime, except that first-degree murder has the additional elements of premeditation and deliberation, that is, defendant must have premeditated and deliberated his intent to kill.

"You will be instructed on murder of the second degree. Keep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder.

"To establish second-degree murder, the prosecution must prove each of the following elements beyond a reasonable doubt:

"First, that the deceased, Judy Ann Dykhouse, died on or about February 25, 1979, within the County of Kent and City of Grand Rapids.

"Second, that her death was caused by an act of the defendant, that is, that Judy Ann Dykhouse died as the result of the defendant shooting her with a rifle.

"Third, if you find that the death was caused by the defendant, you must determine whether the defendant is guilty of any crime. The killing of a human being by another may be entirely innocent. It is not the act of killing in itself which makes it a crime, but the state of mind with which it is done.

"A killing is not murder if it occurs under circumstances which make the killing the lesser crime of manslaughter.

"Fourth, for murder you must find that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.

"The degree of risk for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person's life, and the defendant must have been conscious of that risk.

"For murder of the first degree, the prosecutor must prove beyond a reasonable doubt the four elements of second-degree murder which have been described to you. In addition, he must prove beyond a reasonable doubt the fifth element, which raises the crime to first-degree murder. That fifth element is that the death was the wilful result of a premeditated, deliberate intent to kill.

"Premeditated means thought out beforehand or designed or planned. The killing must be the result of real and substantial reflection.

"Deliberate means that the defendant must have considered the pros and cons of that design and have measured and chosen his actions. The intent must be formed by a mind that is free from undue excitement. This excludes acts done on a sudden impulse without reflection.

"Wilful means the intent to take a life.

"For first-degree murder, there must be such a lapse of time as would give the mind time to think about the purpose and intent of the killing. The law does not specify the length of that period, and it will vary with individuals and circumstances. The test is not the duration of time, but the extent of the reflection. There must be sufficient time to afford a reasonable man time to subject his actions to a second look.

"If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder of the first degree or guilty of the lesser offense of murder of the second degree.

"Now, when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. Intent is a decision of the mind to knowingly do an act with a conscious, fully-formed objective of accomplishing a certain specific result. There can be no crime of first-degree murder under our law where there is no intent to kill, and the burden rests upon the prosecution to show beyond a reasonable doubt that the defendant, at the time of doing the alleged act, had that wrongful intent." ⁵ (Emphasis added.)

Viewing the above instructions as a whole, we find no error. The jury was specifically instructed that only an intent to kill would suffice to convict the defendant of first-degree premeditated murder. The jury was so instructed four times. Even a very literal view of the precise language complained of reveals no error harmful to the defendant. Unlike the instructions in Milton, the instructions here did not tell the jury that the defendant could be found guilty of first-degree premeditated murder merely on finding a "very high risk of death" intent. The instructions in the present case did inform the jury that a "very high risk of death" intent sufficed for second-degree murder and that second-degree murder and first-degree premeditated murder "are the same crime, except that first-degree...