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11/19/80 PEOPLE v. GILBERT

November 19, 1980

PEOPLE
v.
GILBERT



Danhof, C.j., and M. J. Kelly and G. R. Corsiglia,* JJ.

SYLLABUS BY THE COURT

1. -- Courts -- Non-jury Trials -- Findings of Fact -- Court Rules.

A trial court sitting in a non-jury criminal trial must make findings of fact which cover the court's steps in making its findings with the degree of specificity necessary to disclose the basis for each critical determination (GCR 1963, 517.1, 785.1[1]).

2. Homicide -- Courts -- Non-jury Trials -- Findings of Fact -- Premeditation and Deliberation -- Sudden Impulse.

Findings of fact by a trial court sitting in a non-jury murder trial are sufficient with respect to the elements of premeditation and deliberation where the trial court finds that the defendant thought out in advance and consciously reflected on his intent to murder the victims and the means to accomplish the acts; such findings implicitly reject a claim that the acts were the result of a sudden impulse.

3. Homicide -- Courts -- Non-jury Trial -- Findings of Fact -- Premeditated Murder -- Felony Murder.

The failure of a trial court in a non-jury murder trial to make specific findings on an alternative charge of felony murder, the court having found premeditated murder, does not require remand for a more detailed finding of fact, since the finding of premeditated murder necessitates the Conclusion that the trial court considered the felony murder charge and resolved that question in favor of the defendant.

4. Homicide -- First-Degree Murder -- Corpus Delicti -- Evidence -- Confessions -- Premeditation and Deliberation -- Inferences.

The corpus delicti of first-degree murder must be established by evidence independently of the confession of the accused; however, premeditation and deliberation, necessarily, must be inferred from the surrounding facts and circumstances.

5. Homicide -- Evidence -- Premeditation and Deliberation -- Inferences.

Premeditation and deliberation are established by evidence of a lapse of time which is sufficient to permit the defendant an opportunity to take a "second look" at his contemplated actions; factors from which sufficient opportunity for a "second look" may be inferred include: any prior relationship of the defendant and victim indicative of motive, the defendant's actions prior to the murder, the facts and circumstances of the killing, and the defendant's later conduct suggesting a scheme or plan.

6. Homicide -- Evidence -- Premeditation and Deliberation -- Inferences -- Sudden Impulse.

Premeditation and deliberation may be properly inferred from evidence that a defendant indicated a prior sexual interest in one of his victims, that one of the victims was shot, had her throat slit and was sexually assaulted, that other victims were stabbed and had their throats slit, and that the murders took place in a remote area and attempts to conceal the bodies were made; the methodical manner of the murders belies any claim of panic or sudden impulse.

7. -- Evidence -- Diminished Capacity -- Insanity -- Discovery -- Psychiatric Examination -- Statutes.

The defense of diminished capacity comes within the statutory definition of insanity; therefore, the prosecution has the same statutory rights to discovery and psychiatric examination of the defendant when a claim of diminished capacity is made as are available when the defendant's defense is insanity (MCL 768.20a[2], [6], 768.21a[1]; MSA 28.1043[1][2], [6], 28.1044[1][1]).

8. Homicide -- First-Degree Murder -- Rape -- Criminal Sexual Conduct -- Crimes -- Statutes.

A charge of murder "in the perpetration or attempted perpetration of a rape" brought subsequent to the enactment of the criminal sexual conduct law but prior to the amendment of the first-degree murder statute which replaced the reference to rape by a reference to criminal sexual conduct charges a crime cognizable under Michigan law (MCL 750.316, 750.520a et seq.; MSA 28.548, 28.788[1] et seq.).

9. -- Evidence -- Similar Acts -- Admissibility -- Rules of Evidence.

The admission of evidence of similar bad acts by a criminal defendant is proper where: (1) there is substantial evidence showing that the defendant committed the bad act, (2) the bad act tends to prove a purpose permitted under the Michigan Rules of Evidence, (3) the purpose is at issue, and (4) the probative value of the evidence being admitted outweighs its prejudicial effect; accordingly, in a murder trial in which the defendant's defense is diminished capacity, evidence that the defendant killed two dogs prior to the murder is properly admitted since it bears upon the defendant's state of mind in the hours before the murder (MRE 404).

The opinion of the court was delivered by: Kelly

Ralph J. Gilbert was charged with three counts of murder and, following a non-jury trial in Saginaw Circuit Court, Fred J. Borchard, J., was found guilty of three counts of murder in the first degree. While hunting, defendant killed a woman and her two children. The woman had been shot in the head, sexually assaulted and had her throat slashed. The two children had been stabbed and had their throats slashed. An attempt had been made to conceal the bodies. With respect to the woman, defendant was charged in the alternative with premediatated murder and murder during the perpetration or attempted perpetration of a rape. Defendant's defense was diminished capacity, alleging sudden impulse. The prosecution moved for and was granted diagnostic examination of the defendant and discovery of reports by defendant's psychiatric witnesses. At trial, testimony that defendant shot and killed two dogs shortly before the murders was admitted into evidence. The trial Judge found that the defendant had intentionally murdered the three victims, that the murders were premeditated and deliberate, and that the defendant thought out and consciously reflected upon his decision to murder and the means to effect it. The defendant appeals. Held :

1. The findings of fact by a trial court sitting without a jury must be made with the degree of specificity necessary to disclose the basis for each of the court's critical determinations. Since the trial court specifically found that the defendant thought out and consciously reflected on his intent to murder his victims and the means to accomplish the acts, the trial court's findings were sufficient to support the court's finding that the defendant had the necessary premeditation and deliberation.

2. The trial court's finding of premeditation and deliberation implicitly rejected the defendant's claim that his acts were the result of sudden impulse.

3. The trial court's finding of first-degree murder by premeditation and deliberation necessitates the Conclusion that the trial court considered the alternative charge of felony murder during the commission of a rape and resolved that question in favor of the defendant in view of the fact that the trial court expressly recognized the existence of the felony murder charge. Under such circumstances, a remand for further specific findings of fact by the trial court relative to the alternative felony murder charge is not necessary.

4. The corpus delicti of first-degree murder must be established by evidence independently of the confession of the accused. Premeditation and deliberation, necessarily, must be inferred from the surrounding facts and circumstances and are established by evidence of a lapse of time which is sufficient to permit the defendant to take a "second look" at his contemplated actions. Factors from which this "second look" may be inferred include: any prior relationship of the defendant and the victim indicative of motive, the defendant's actions prior to the murder, the facts and circumstances of the killing, and the defendant's later conduct suggesting a scheme or plan.

5. The trial court properly inferred premeditation and deliberation by defendant from the evidence that the defendant indicated a sexual interest in one of his victims, the nature and manner of the sexual assault and the murders, the situs of the murders and the attempts to conceal the bodies. The methodical manner of the murders belies any claim of panic or sudden impulse.

6. The defense of diminished capacity comes within the statutory definition of insanity; therefore, the prosecution has the same statutory rights to discovery and psychiatric examination of the defendant upon the claim of diminished capacity as are available when the defense of insanity is claimed.

7. The charge of murder "in the perpetration or attempted perpetration of a rape" charged a crime cognizable in Michigan, since, although the charge was brought after the enactment of the criminal sexual conduct law, the charge was brought prior to the amendment of the first-degree murder statute which replaced the reference to rape with the reference to criminal sexual conduct.

8. The evidence of the defendant having killed two dogs prior to the murders was properly admitted since it was probative of the question of the defendant's state of mind at the time of the murders. The risk of prejudice by the use of such evidence was minimized by the fact that the trial was before a Judge rather than a jury.

Affirmed.

Defendant appeals as of right from his conviction and sentence on three counts of first-degree murder, contrary to MCL 750.316; MSA 28.548, following a bench trial concluded December 19, 1977. On April 17, 1978, defendant was sentenced to the mandatory three concurrent terms of life imprisonment.

On October 10, 1977, defendant was hunting with a companion, Theodore Kryzaniak, in the Dice Lake area of Saginaw County. Defendant was armed with a Huntmaster .22-caliber pump action rifle and a Puma Werk hunting knife. After entering a wooded area, the two men proceeded to their respective hunting blinds. While seated in his blind, Kryzaniak heard several shots emanating from the direction of defendant's blind. Kryzaniak proceeded to the defendant's blind, where he discovered two dogs which had been shot. The defendant admitted he shot the dogs.

At about 5:30 p.m., Kryzaniak and the defendant took a walk up to Dice Lake, where they observed a woman (later identified as Jeanne Gehrcke) and two small children preparing to fish. Upon finishing the walk, Kryzaniak returned to his blind. Defendant said he preferred to hunt in a different area and proceeded in a northerly direction away from the location of his blind. At about 6 p.m. defendant was seen by three persons, who testified defendant was approaching the small peninsula from which the woman and two children were fishing. Kryzaniak later heard a single gunshot north of the area of his blind. Approximately one hour later, Kryzaniak proceeded to defendant's blind, to which defendant had returned. The two men then went home. At 5 p.m. the next day, the bodies of the woman and her two children were found near a ...


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