People v. Garcia

• Decision Date: 14 January 1974
• Docket Number: Docket No. 14586,No. 2,2
• Citation: 51 Mich.App. 109,214 N.W.2d 544
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry GARCIA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 544

214 N.W.2d 544

51 Mich.App. 109

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry GARCIA, Defendant-Appellant.

Docket No. 14586.

Court of Appeals of Michigan, Division No. 2.

Jan. 14, 1974.

Released for Publication Feb. 11, 1974.

Rehearing Denied March 5, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Harvey A. Koselka, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and O'HARA,* JJ.

O'HARA, Judge.

This is an appeal by leave from defendant's nonjury conviction of first-degree murder. ¹ M.C.L.A. § 750.316; M.S.A. § 28.548.

He initially argues that the trial judge committed reversible error in finding him guilty of first-degree murder because he was too intoxicated to form the requisite specific intent. He contends that since the trial judge stated that he was convinced that defendant would not have committed the act if he had been sober his verdict of first-degree murder was contrary to his finding of fact.

Upon a careful reading of the able and experienced trial judge's opinion dictated from the bench we note the meticulous care with which he examined testimony as to the circumstances surrounding the double homicide. After stating why he found particular testimony credible and worthy of belief and the statements of certain witnesses, including defendant, highly suspect for various reasons, he concluded that the people had met their burden of proving defendant had the requisite intent by more than adequate record support.

We note also that there have been contradictory holdings with respect to the necessity of trial judges making findings of fact in nonjury criminal cases. Cf. People v. Thomas, 387 Mich. 368, 197 N.W.2d 51 (1972) and People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973). The definitive controlling holding at present is that the trial judge is obliged to state such findings so that it is possible to ascertain the law applied by the fact finder. Jackson, supra.

Further it is impermissible to simply take excerpts from his findings. They should be considered in their complete context:

'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.'

Additionally in unswerving holdings since People v. Garbutt, 17 Mich. 9 (1868), the Supreme Court, ² followed in the main by this Court, ³ has made clear that murder is not a specific intent crime in the sense that the formulation and entertainment of that Specific intent is an essential ingredient of the corpus delicti of the charged crime.

This Court has long expressed its reluctance to interfere with the determination of the trier of fact in nonjury cases unless the evidence clearly preponderates to the contrary. People v. Ritzema, 3 Mich.App. 637, 143 N.W.2d 129 (1966); People v. Jeter, 21 Mich.App. 158, 175 N.W.2d 39 (1970). Nor will we substitute our judgment of the credibility of witnesses for that of the trial judge or weigh conflicting evidence. People v. Szymanski, 321 Mich. 248, 32 N.W.2d 451 (1948); People v. Bennett, 3 Mich.App. 326, 142 N.W.2d 465 (1966); People v. Williams, 3 Mich.App. 272, 142 N.W.2d 43 (1966). His rejection or the according of little weight to defendant's testimony was properly within his province as trier of fact. Our examination of the entire record demonstrates that there was sufficient evidence, if believed, to support the judgment of conviction beyond a reasonable doubt.

Defendant argues that it is clearly reversible error under People v. Ramsey, 385 Mich. 221, 187 N.W.2d 887 (1971), and People v. King, 385 Mich. 274, 188 N.W.2d 538 (1971), for the trial judge, sitting as trier of fact to read the preliminary examination transcript. He argues that this error is not mitigated by stipulation of the parties and that such stipulation by counsel effectively deprived defendant of his right to a fair trial. Plaintiff argues that the rule pronounced in Ramsey and King does not apply here because the parties agreed to allow the trial judge to look at the preliminary examination transcript for the sole purpose of aiding his evaluation of the psychiatrist's testimony.

The Supreme Court held in Ramsey, supra, that as 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 M.C.L.A. § 768.26; M.S.A. § 28.1049 which states:

'Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.'

It should be noted, however, that an additional fact appears in this case which was not raised nor considered by the Court deciding Ramsey and King, and that is the matter of Stipulation by the parties that the transcript be read for a limited purpose. The trial judge below stated that he was reading the transcript for the sole purpose of assisting him in evaluating the psychiatrist's testimony. This testimony was read to shed some light on defendant's mental condition with reference to his intoxication defense. On no less than two occasions did defense counsel expressly state he had no objections to the trial judge perusing the involved transcript. In People v. Walter, 41 Mich.App. 109, 199 N.W.2d 651 (1972), this Court reaffirmed the Supreme Court's holding that the 'indiscriminate perusal' of the transcript by the trial judge denied defendant his right of confrontation. Under the facts in Walter, though this Court found no such violation since the trial judge examined only that portion of the transcript introduced in evidence by the defendant himself for impeachment purposes. Examination of the preliminary examination transcript by the judge sitting as trier of fact has been upheld where the examination was limited to impeachment purposes and the parties had stipulated that such examination be made. People v. Dorsey, 45 Mich.App. 230, 206 N.W.2d 459 (1973). Similarly, since the statute limiting the use of testimony taken at a former hearing is designed to protect defendant's right to confrontation, and this right may be waived, People v. Murray, 52 Mich. 288, 17 N.W. 843 (1883), it inexorably follows that the stipulation by def...