This is аn appeal by leave from defendant’s nonjury conviction of first-degree murder. 1 MCLA 750.316; MSA 28.548.
He initially argues that the trial judge committed reversible error in finding him guilty of first-degree murdеr because he was too intoxicated to form the requisite specific intent. He contends that since the trial judge stated that he was convincéd 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 circumstаnces 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 susрect for various reasons, he concluded that the people had met their burden of proving defendant had the requisite intent by more than adequate rеcord 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,
Further it is impermissible to simply take excerpts from his findings. Thеy 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 questiоn 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 thе 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,
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,
Defendant argues that it is clearly reversible error under
People v Ramsey,
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 рrovided by MCLA 768.26; MSA 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 *114 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,
The defendant next argues on appeal that the failure of defense counsel to object to the reading of the transcript constituted such prejudicial error that this Court should automatically reverse.
People v Degraffenreid,
In
People v Lawrence,
"From the time this Court enunciated the so-called Degraffenreid rule’, it has become one of the most frequently cited and most misunderstood of our decisions. Degraffenreid should not be read by the bar to mean that because аn objection could have been made or that some right was waived that this necessarily indicates incompetence of counsel or prejudicе to the defendant. As the ones to whom the conduct of the trial and the choice of strategy have been entrusted, trial counsel may reasonably believe it advantageous, at times, to forego exercising certain rights for tactical reasons. On appeal it behooves us not to play the párt of the Sunday morning quarterback and to second-guess him.
*116 "Usually omitted from appellants’ quotations of Degraffenreid is the limiting and cautionary language that is often repeated in the opinion.
" 'Most post-conviction claims оf disgruntled clients are indeed insubstantial.’ Degraffenreid, supra [p 711;173 NW2d at 321 ].
"We would not be understood by what we have said here to dilute the Degraffenreid doctrine. We mean rather that it should be carefully read before reversible error is claimed on the grounds of the incompetence of counsel. Such incompetence must be grave indeed to be raisеd to the constitutional level of no assistance of counsel.”
Based upon our review of thei record we conclude defendant was afforded the effective assistance of counsel.
For the reasons herein stated, we affirm.
Notes
Defendant appealed previously and his conviction was affirmed.
See People v Garcia,
People v Guillett,
People v Acosta,
This Court has held it neither was reversible error nor a violation of
Ramsey
for the trial judge in a bench trial to examine the transcript of an evidence suppression hearing when conducting a mid-trial
Walker
hearing since the testimony was introduced for entirely different purposes and the attorneys both stated they had no objections to the trial judge examining the transcript.
See People v Boyd,