State v. Muhammad

• Decision Date: 03 December 1968
• Citation: 41 Wis.2d 12,162 N.W.2d 567
• Parties: STATE of Wisconsin, Respondent, v. Omar Abdel Fattah MUHAMMAD, Appellant.
• Court: Wisconsin Supreme Court

Page 567

162 N.W.2d 567

41 Wis.2d 12

STATE of Wisconsin, Respondent, v. Omar Abdel Fattah MUHAMMAD, Appellant.

Supreme Court of Wisconsin.

Dec. 3, 1968.

L. William Staudenmaier, Milwaukee, for appellant.

Bronson C. La Follette, Atty. Gen., Madison, David J. Cannon, Milwaukee County Dist. Atty., Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for respondent.

WILKIE, Justice.

Defendant frontally attacks his conviction as being founded on a jury verdict supported by insufficient evidence.

'* * * On an appeal in a criminal case the test of the sufficiency of the evidence for a conviction is 'whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant's guilt beyond a reasonable doubt. " ¹

The facts as detailed in the testimony of the complaining witness, a twenty-two-year-old single woman, are as follows:

On the evening of Sunday, October 8, 1967, she had gone alone to the 'Attic,' a tavern and nightclub in downtown Milwaukee. While there she saw the defendant who asked her, at about 1 a.m., if he could come up to her apartment. She said that he could. Just before she left the 'Attic,' she again talked to the defendant. She asked him if he still planned to come to her apartment. He said that he did, but wanted to talk to a few friends and would be over later. The complainant then left with some of her friends at about 1:45 a.m., and arrived at her apartment about 2 a.m. The defendant arrived at the apartment about thirty minutes later and was let in by the complainant. No one else was present during the time that the defendant and the complaining witness were together in the apartment.

According to the complainant, the defendant prepared and smoked two marijuana cigarettes in her presence. She testified 'I had one drag off of it.' She admitted that she had smoked marijuana on previous occasions. She further testified that defendant finished smoking the marijuana cigarettes at about 3:30 a.m. and that between that time and 6 a.m. he and she just sat on the floor and talked with one another. According to complainant, her difficulties began at about 6 a.m. when the defendant attempted to kiss her--she backed away, but he tried to kiss her again while they were still on the floor so she moved to the couch which was on the other side of the room. She testified that the defendant followed her to the couch and tried again to kiss her. She continued to refuse at which point the defendant pushed her down on the couch and 'pounced' on top of her. He then started kissing her and unbuttoning her jacket and blouse. After he succeeded in unbuttoning the jacket and part of the blouse he picked her up and started carrying her to the bedroom.

Complainant testified that while they were going through a small hallway on the way to the bedroom, she attempted to kick the defendant, but could not because of the narrowness of the hallway. she claimed that when they arrived in the bedroom the defendant pinned her down on the bed and unbuttoned the rest of her blouse and unsnapped her bra. The bra had been broken before and the elastic was temporarily fastened together with a bent safety pin. She then got off the bed but the defendant came up behind her and put his hand over her mouth and nose so that she couldn't breathe. She stated:

'I finally got his hand away from my face, and I got up and started walking away from him. I thought I'd walk to the other side of the bedroom and into the other room, but he was blocking the door, and he came up from behind me and put his arm around my neck with his inner part of the elbow, right here, (indicating) and started pulling my head back and started choking me and started to remove the rest of my clothes.'

She claimed that he removed her slacks and pantyhose after which he pushed her back on the bed; she tried to push him away but he kept choking her. She testified that at this point defendant picked up an empty brandy bottle from the complainant's night stand and threatened to strike her with it. She testified:

'I was scared. I was afraid he was going to hit me, and I started struggling with him again and in the process of this he started taking off some of his clothes. I don't know how he got them all off, but he did, and eventually he got down to where he had only his undershorts on, and those he took off approximately down to his knees or so, and then he started having sexual intercourse with me.'

Thus both parties were naked during the act.

The complainant testified that during the attack she cried and yelled at the defendant, but did not scream. She also testified that she did not bite the defendant and that she did not know whether she scratched him. She testified:

'I yelled at him. I told him to stop. If that's considered screaming, then I screamed, but as far as screaming out loud like someone would do when you are terrified, I didn't come out to that point, but I yelled at him loud enough that could be interpreted as screaming. It depends on what you interpret as screaming, and I interpreted it as screaming.'

The entire act, from the first kiss attempt to the completion of sexual intercourse, occurred between the hours of 6 and 7 a.m., and lasted about forty-five minutes.

She testified that after the act was completed, the defendant stayed at the complaint's apartment for another hour and forty-five minutes. She claimed that after they were dressed they went into the living room and sat down on the couch at which time the defendant started to explain why he had done what he did. He said that he had done wrong and asked her to phone the police. When she dialed the phone to call the police she claims he took the phone from her and slammed the receiver down. She testified that he still wanted to talk to her at that time and asked her to promise not tell her boyfriend or the police. She claims that he left at about 8:50 a.m.

The complaining witness also testified that she was not of previous chaste character, and was unable to state how many different males (although admitting to 'very few') she had had intercourse with prior to October 9, 1967. Also, according to Dr. Crosby, her regular doctor, she was taking birth-control pills for acne.

Defendant took the stand in his own defense and testified in detail as to his version of the events of the early morning in question. He said he had met complainant at the 'Attic' and that she had invited him to her apartment to smoke some marijuana. He testified to preparing three marijuana cigarettes with marijuana furnished by the complainant. He stated that at about 3:45 a.m. he started to make love to complainant. He described in detail his account of the activities which led up to the act of intercourse, including certain erotic and unnatural acts performed and requested by the complainant. He testified that after having relations with her, he had pushed her off the bed, spit in her face three times, called her a number of names, and threatened to tell her boyfriend and others about the preceding events. He testified that he had left her apartment between 4:30 and 4:45 a.m. He further testified that complainant's entire attitude up to and including the time the parties engaged in intercourse had been one of complete cooperation with him. Thus, the act of intercourse is admitted. The only issue at the trial was and is whether the admitted intercourse between the defendant and complaining witness was or was not forcible and against her will.

Sec. 944.01(2), Stats., provides:

'In this section the phrase 'by force and against her will' means either that her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm.'

Many cases have construed the 'utmost resistance' requirement of the above statute. In several recent cases ² this court has reemphasized that the term 'utmost resistance' is relative, not absolute. This standard was spelled out in McLain v. State. ³

'* * * the term 'utmost resistance' is a relative rather than a positive term. What would be 'utmost resistance' on the part of a weak and nervous person, with a temperament easily frightened, might be the veriest sham on the part of a robust person in good health, whose nerves and courage are normal.'

A further clarification of this principle is found in B_ _ v. State, ⁴ wherein this court stated that:

'* * * In the McLain Case there was an endeavor to make it clear that while the utmost resistance was required in all cases, this requirement was relative, not positive, and that what constitutes the utmost resistance in a particular case must depend largely upon the facts of that case, such as the temperament of the victim, the relations of the parties, her state of health, her physical strength, her age, her experience, her courage, her nervous condition at the time, and perhaps other circumstances naturally affecting her powers of resistance. So reading the McLain Case we do not think it can be said that there is any direct conflict between its doctrine and the doctrine of the Brown Case, but simply that it supplements the Brown Case and removes the erroneous idea which is likely to be gathered therefrom, namely, that the measure of resistance required is absolute and fixed in all cases and must be so great that, while it fails to defeat the purpose of the ravisher, the failure is only by the narrowest possible margin.' (Emphasis added.) ⁵

Thus it appears that 'utmost resistance' is measured by a subjective test of what resistance an individual victim is capable of exerting. In State v. Schmear ⁶ we stated that 'While the law requires the utmost resistance as evidence of the woman's will, the law does not require the useless or the impossible.' ⁷ And in State v. Waters, ⁸ we stated that 'The strict physical-resistance requirement is relaxed somewhat if it would be useless to...