People v. Barker, 87039

• Decision Date: 22 April 1991
• Docket Number: No. 87039,87039
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacey BARKER, Defendant-Appellant. 437 Mich. 161, 468 N.W.2d 492
• Court: Michigan Supreme Court

Page 492

468 N.W.2d 492

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stacey BARKER, Defendant-Appellant.

No. 87039.

437 Mich. 161, 468 N.W.2d 492

Supreme Court of Michigan.

Argued Dec. 5, 1990.

Decided April 22, 1991.

[437 MICH 161] Frank J. Kelley, Atty. Gen., Gay Secor [437 MICH 162] Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Oakland County, Michael J. Modelski, Chief, Appellate Div. by Richard H. Browne, Asst. Pros. Atty., Pontiac, for plaintiff-appellee.

State Appellate Defender Office by Gail Rodwan, Asst. Defender, Detroit, for defendant-appellant.

Women Lawyers Ass'n of Michigan by Marjory B. Cohen, Mogill, Posner & Cohen, Detroit, amicus curiae of Women Lawyers Ass'n of Michigan.

MEMORANDUM OPINION

In this case we granted leave to appeal to determine "whether the trial judge erred reversibly by refusing to instruct the jury that the defendant was entitled to use deadly force to resist a sexual assault. Cf. People v. [Heflin], 434 Mich. 482 [456 N.W.2d 10] (1990)." 435 Mich. 867, 457 N.W.2d 691 (1990). After considering this matter, we are persuaded that the trial court did err, but that the error was harmless. We therefore affirm the judgments of the Court of Appeals and the Oakland Circuit Court.

This defendant has been convicted of first-degree murder. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548. The Court of Appeals has summarized the facts:

"Briefly, the victim was an eighty-one-year-old white male and retired Lutheran minister. He suffered from various physical ailments and relied on a cane to walk. Defendant is a young, black woman who worked as a companion to another resident in the same apartment complex as the victim. Defendant and the victim were acquainted and defendant was present at the victim's apartment on the evening of his death. Defendant admits to killing the victim, but claims that she did so in self-defense. Specifically, defendant claims that the victim started to make sexual advances [437 MICH 163] towards her and would not stop even when she resisted. According to the medical examiner, the victim suffered ten blows to the head with a blunt instrument and approximately thirty-two stab wounds to the back. In a statement to the police during the investigation, defendant indicated that her reaction and the extent of her conduct in defending herself was in part a result of her having been previously raped and the fear of it happening again." 179 Mich.App. 702, 704-705, 446 N.W.2d 549 (1989).

Using the standard instruction, the trial court instructed the jury that the defendant could defend herself from death or "serious bodily harm" with force, "even to the extent of taking a human life if necessary." See CJI 7:9:01, now CJI2d 7.15. However, the trial court refused the defendant's timely request that the standard self-defense instruction be modified so that the jury would be specifically informed that deadly force may be used to resist a "sexual assault." ¹

We addressed this issue in People v. Heflin, 434 Mich. 482, 456 N.W.2d 10 (1990), reh. den. 435 Mich. 1204 (1990). This Court's opinions contained varying formulations of the precise basis and extent of a court's obligation to give such an instruction. However, a majority of us were in agreement that, upon request and where there is a sufficient evidentiary basis, a court must instruct the jury that force, including deadly force, may be used to repel an imminent forcible sexual penetration. ² Heflin, 434 Mich. [437 MICH 164] 502-503, 509-515, 527-530, 551-567, 456 N.W.2d 10. In the present case, there was both a request and an evidentiary basis for such an instruction, and it should have been given.

Although the trial court erred when it failed to instruct the jury correctly with regard to the use of deadly force, the error was harmless for the reasons stated in the concurring opinion in the Court of Appeals.

179 Mich.App. at 710-711, 446 N.W.2d 549. The decedent was eighty-one years old, walked with a cane, and was described as being unsteady on his feet. The defendant is in her early twenties, five feet, seven inches tall, and weighs 170 pounds

The evidence thoroughly contradicted the defendant's version of how and why she killed the elderly and infirm victim. We agree with Judge Marilyn Kelly's concurring opinion in the Court of Appeals that, on this record, no reasonable juror would have believed the defendant's claim of self-defense.

"Defendant bludgeoned the deceased ten times and stabbed him thirty-two times. Some of the wounds appeared to have been inflicted while he attempted to crawl away.... [N]o reasonable juror could have believed such force was necessary to prevent rape by the enfeebled deceased." People v. Barker, 179 Mich.App. 702, 711, 446 N.W.2d 549 (Kelly, J., concurring).

For these reasons, we affirm the judgments of the Court of Appeals and the Oakland Circuit Court.

MICHAEL F. CAVANAGH, C.J., and RILEY, BRICKLEY, BOYLE and GRIFFIN, JJ., concur.

MALLETT, J., took no part in the decision of this case.

LEVIN, Justice (dissenting).

I concur in the conclusion that the trial court erred in failing to instruct the [437 MICH 165] jury that Stacey Barker was justified in using "force, including deadly force" if she honestly and reasonably believed that it was necessary to use such force "to repel an imminent forcible sexual penetration." ¹

I dissent from the Court's disposition because I do not agree that the error was harmless, either for the reasons stated in the concurring opinion in the Court of Appeals, ² or for the reasons stated in the memorandum opinion.

The evidence suggests that there was, and is consistent with, a sudden affray. Barker assaulted [437 MICH 166] Frank Madsen with impromptu weapons; first with a statuette that she obtained from the top shelf of furniture in the foyer of Madsen's apartment and then, after the struggle continued in the kitchen, with a kitchen knife.

This Court should not lightly assume that an eighty-one-year-old man does not have sexual interests, and is incapable of being aroused by and making a sexual assault on a younger woman:

"In general, there is no reason why healthy older people cannot continue to enjoy sex until almost the very end. A

man, despite a lowered sperm count, is still capable of fathering children even into his eighties...." Rosenfeld, Prolongevity II (New York: Alfred A. Knopf, 1985), p 177

"Although sperm production slows down after age forty, it continues into the eighties and nineties." Masters, Johnson & Kolodny, Human Sexuality (Boston: Little, Brown & Co, 1982), p 170.

It cannot properly be said that no reasonable juror would have believed that Madsen made a sexual assault on Barker. Nor can it properly be said that an instruction that Barker could use deadly force to prevent oral sexual advances--Barker's lawyer spoke of Madsen seeking to lick Barker's body--may not have resulted in acquittal, conviction of a lesser offense, or another mistrial because all twelve jurors were unable to agree on a verdict.

I

As set forth in the memorandum opinion, Barker requested an instruction that deadly force [437 MICH 167] may be used to resist a "sexual assault." ³ The memorandum opinion states that Barker was entitled to an instruction "that force, including deadly force, may be used to repel an imminent forcible sexual penetration." ⁴

The memorandum opinion does not state that a judge should instruct the jury with respect to what the term "sexual penetration" means. Judges may therefore read the memorandum opinion either as not requiring, or not permitting, an instruction in that regard. It should be made clear that the instruction should generally state that "sexual penetration" includes not only vaginal intercourse, but also "cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body," ⁵ and that emission of semen is not required.

[437 MICH 168]

II

The judge who filed the concurring opinion in the Court of Appeals said that Barker "bludgeoned the deceased ten times and stabbed him thirty-two times. Some of the wounds appeared to have been inflicted while he attempted to crawl away." ⁶ The judge said that although the jurors were not told that Barker "was entitled to use deadly force, no reasonable juror could have believed such force was necessary to prevent rape by the enfeebled deceased." Id.

While the prosecutor argued that Frank Madsen was crawling away, the medical examiner testified that he was unable to determine whether the assailant, Barker, was standing behind, in front of, or at the side of Madsen when the wounds were inflicted. Barker testified that, rather than crawling away, Madsen continued to assault her after she struck him on the head with the statuette, and followed her into

the kitchen. And it was for that reason that she picked up a kitchen knife, and, in a frenzy, stabbed him as many times as she did

A woman who cleaned Madsen's apartment every day, and who discovered Madsen's body, described him as "a strong man, a big man."

It was for the jurors, and not for the judges of the Court of Appeals or for the justices of this Court, to decide whether Madsen was attempting to crawl away or was continuing a sexual assault when he was stabbed. It was also the function of the jurors, and neither our function nor that of the Court of Appeals, to decide--if the jurors found that Madsen had initiated and persisted in a sexual assault--the extent to which he was enfeebled,[437 MICH 169] and the force Barker honestly and reasonably believed to be necessary to prevent a continuation of the sexual assault.

If the jurors concluded, in agreement with the concurring Court of Appeals judge, that deadly force was not needed to prevent rape, they might nevertheless, if properly instructed that Barker was entitled to use deadly force if she honestly and reasonably believed...