People v. Rushlow

• Decision Date: 22 September 1989
• Docket Number: Docket No. 102130
• Citation: 179 Mich.App. 172,445 N.W.2d 222
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John RUSHLOW, Defendant-Appellant. 179 Mich.App. 172, 445 N.W.2d 222
• Court: Court of Appeal of Michigan — District of US

Page 222

445 N.W.2d 222

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John RUSHLOW, Defendant-Appellant.

Docket No. 102130.

179 Mich.App. 172, 445 N.W.2d 222

Court of Appeals of Michigan.

Submitted Feb. 13, 1989.

Decided Aug. 8, 1989.

Released for Publication Sept. 22, 1989.

[179 MICHAPP 173] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Carolyn Schmidt, Asst. Pros. Atty., for the People.

Craig A. Daly, Detroit, for defendant-appellant.

Before SAWYER, P.J., and MAHER and BRENNAN, JJ.

[179 MICHAPP 174] SAWYER, Presiding Judge.

Defendant was convicted, following a bench trial, of murder in the second degree. M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. He was thereafter sentenced to serve a term of 75 to 150 years in prison. He now appeals and we affirm.

Defendant's conviction arises out of the killing of Kathleen Kingsbury, a topless dancer at Legs Lounge. On the day in question, Kingsbury was working and defendant was a patron at the bar. The killing occurred in what was referred to as the "record room" in which a buffet had been set up for the patrons. The record room was separated from the other areas of the bar by a wall and a curtain. A number of people in the establishment heard a scream and a thud, followed by defendant running out of the record room. Some witnesses had seen the victim performing an oral sex act on defendant shortly before the killing and at least one witness saw defendant drop a knife from his hand. Another witness entered the record room after hearing a scream or scuffle in the record room and saw defendant with a knife, stabbing the victim with an upward swing and striking her in the sternum area. According to the autopsy report, the victim had several stab wounds to the chest which penetrated the heart as well as a wound to the left thigh and a wound to the right lower leg. The stab wounds to the heart with the subsequent bleeding were listed as the cause of death. According to the medical examiner, the deceased would have lived seconds to minutes at the most.

Defendant first argues that the trial court committed error requiring reversal by admitting the testimony of another dancer in the bar, Stephanie Kinzel, concerning two prior incidents between defendant and Kinzel at the Legs Lounge. Specifically, Kinzel testified that she had encountered defendant in the bar three days before the stabbing[179 MICHAPP 175] when he assaulted her and threw her across three tables. Second, Kinzel testified that on the night of the stabbing she had a conversation with defendant approximately forty-five minutes before the killing wherein defendant told Kinzel that if she did not go home with him he would wait there and kill her.

With respect to the first statement, concerning the incident three days prior to the killing, it appears that Kinzel's statement came in the form of an unresponsive answer with Kinzel volunteering the information on the prior incident. Specifically, the prosecutor had inquired when Kinzel had seen defendant prior to the night of the killing and she responded that it had been three days before when he was in there and he threw her across three tables. First, we note that, while defendant objected to this testimony on the basis of relevancy, defendant requested no specific curative action by the trial court, such as requesting a mistrial. Moreover, as a general rule, an unresponsive, volunteered answer is not cause for granting a mistrial. People v. Lumsden, 168 Mich.App. 286, 299, 423 N.W.2d 645 (1988). Additionally, the prosecutor voluntarily abandoned any further inquiry into the prior incident. Finally, we note that matters which constitute error requiring reversal when a case is tried before a jury do not necessarily require reversal when they occur in a bench trial. People v. Jones, 168 Mich.App. 191, 194, 423 N.W.2d 614 (1988). Accordingly, in light of the fact that this was a relatively brief comment made as an unresponsive answer by a witness, that no specific curative action was requested by defendant at trial, and that this was a bench trial rather than a jury trial, we conclude that any error in admitting that testimony does not require reversal in the context of this case.

[179 MICHAPP 176] Defendant also complains that the trial court erroneously admitted Kinzel's testimony that defendant had threatened to kill her forty-five minutes before the stabbing. We disagree. As the Supreme Court recently noted, a prior statement does not constitute a prior bad act coming under MRE 404(b) because it is just that, a prior statement and not a prior bad act. People v. Goddard, 429 Mich. 505, 518, 418 N.W.2d 881 (1988). See also the concurring opinion of Chief Justice Riley in Goddard. Rather, the relevant inquiry is whether the admitted statement is relevant. Goddard, supra at 518, 418 N.W.2d 881. ¹

Turning to the issue of relevancy, we believe that defendant's threat to Kinzel forty-five minutes before the stabbing was relevant. Specifically, it showed defendant's state of mind or predisposition to commit the crime. Specifically, defendant's statements to Kinzel tended to establish that he was in a state of mind whereby he was willing to kill if denied sexual favors. Forty-five minutes later, defendant killed another dancer at the club, apparently after receiving a sexual favor. We believe this evidence was relevant to an element of the offense, specifically malice or defendant's intent in committing the stabbing, and directly tended to disprove his defense theories of self-defense or accident.

For the above reasons, we conclude that there was no error requiring reversal in the trial court's admission of the complained-of statements.

[179 MICHAPP 177] Defendant next argues that the trial court failed to make the proper findings to support a guilty verdict of murder in the second degree. We disagree. The requirements for the specific findings of fact by the trial court in a criminal bench trial were recently discussed by this Court in People v. Porter, 169 Mich.App. 190, 193-194, 425 N.W.2d 514 (1988):

As to the required specificity of factual findings at a bench trial, MCR 2.517(A)(1) provides:

"In actions tried on the facts without a jury or with an advisory jury, the court shall find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment."

That rule applies equally to both criminal and civil cases. People v. Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973); People v. Robinson, 145 Mich App 562, 565; 378 NW2d 551 (1985). The purpose of making factual findings is to reveal the law applied by the factfinder. Jackson, supra, p 627 . The sufficiency of factual findings cannot be judged on their face alone; the findings must be reviewed in the context of the specific legal and factual issues raised by the parties and the evidence. People v. Melvin Davis, 146 Mich App 537, 549-550; 381 NW2d 759 (1985). The appropriate remedy for insufficient findings of fact is to remand the case for additional fact-finding. Jackson, supra, p 628; Melvin Davis, supra, p 549.

There is currently a split among panels of this Court regarding the degree of specificity necessary to satisfy MCR 2.517(A). In People v. Davis, 126 Mich App 66, 70-71; 337 NW2d 315 (1983), it was held that the trial court must make specific findings of fact on each element of the charged offense. Numerous cases decided subsequent to Davis have declined to impose such a rigid standard. Instead, those cases have held that the court rule has been satisfied where it is manifest that the trial court was aware of the factual issues and correctly applied the law, and where appellate review would [179 MICHAPP 178] not be facilitated by requiring further explanation. People v. Fair, 165 Mich App 294, 295-298; 418 NW2d 438 [1987]; People v. Eggleston, 149 Mich App 665, 671; 386 NW2d 637 (1986), lv den 425 Mich 862 (1986); People v. Robinson, supra, pp 565-566; People v Taylor, 133 Mich App 762, 766; 350 NW2d 318 (1984), rev'd and remanded on other grounds 422 Mich 554, 568 (1985). See also Jackson, supra. For the reasons discussed in Fair and Taylor, we believe the latter cases express the better view on this issue.

We believe that Porter represents the better view of this issue.

Turning to the case at bar, while the trial court did not make a specific finding on the issue of malice under second-degree murder, we do not believe that a remand is necessary as we believe the trial court's findings are sufficient to support a conviction for second-degree murder. Specifically, in its findings, the trial court found that the victim died of stab wounds at the hands of defendant and that there was no justification or excuse for the killing. The trial court further considered the original charge of first-degree murder, concluding that the requirement of premeditation had not been proven beyond a reasonable doubt. The court then went on to conclude that the elements of manslaughter were not present. Finally, the trial court rejected defendant's theory of accident or self-defense. ² The court specifically noted that while defendant's theory might be consistent with the victim's suffering a single wound, it was not consistent with the fact that the victim suffered multiple stab wounds and that there was never any assailant discovered who received any wound. [179 MICHAPP 179] Finally, the court concluded that the elements of second-degree murder had been established beyond a reasonable doubt. Given these findings, we conclude that the trial court specifically found on the record defendant's guilt of murder in the second degree.

Moreover, we believe that the record itself supports such a finding, inasmuch as the trial court observed that the multiple wounds to the victim are more consistent with murder than self-defense or accident....