People v. Barker

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

• Court: Michigan Supreme Court
• Decided: April 22, 1991
• Docket: 87039, (Calendar No. 9)
• Status: Published

Opinions

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 NW2d 10] (1990).” 435 Mich 867 (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. MCL 750.316; MSA 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 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 NW2d 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 NW2d 10 (1990), reh den 435 Mich 1203 (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 Id., pp 502-503, 509-515, 527-530, 551-567. 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 710-711. 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 (Kelly, J., concurring).]

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

Cavanagh, C.J., and Brickley, Boyle, Riley, and Griffin, JJ., concurred.

1 The term "sexual assault” may mean a variety of things, including sexual activity which contemplates something less than forcible sexual penetration. Here, the defendant testified concerning actions of the deceased, and stated that these actions caused her to fear that he would rape her, i.e., that he would force her to engage in sexual penetration. Defense counsel’s generalized request was grounded in that evidentiary basis.

2 As with any use of deadly force, defendant’s belief must be both honest and reasonable.