Opposition Brief — Yukins v. Barker
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- | Supreme C
FILED
MAY 0 5 7900
No. 99-1559)
mT Ts U7
CLERK
In The i
RE AEE ONE OT
United States Supreme Court
OCTOBER TERM, 1999
JOAN YUKINS, Warden,
Petitioner,
STACEY BARKER,
Respondent.
On Petition for Writ of Certiorari to the
United States Court ofAppeals for the Sixth Circuit
RESPONDENT’S BRIEF OPPOSING
PETITION FOR WRIT OF CERTIORARI
STUART G. FRIEDMAN*
Attorney for Petitioner
212 East Huron, #200
Ann Arbor, MI 48104
(734) 662-4070*
*Counsel of Record
II.
QUESTIONS PRESENTED FOR REVIEW
WHERE MICHIGAN PLACES ONLY THE
BURDEN OF PRODUCTION (NOT
PERSUASION) TO SHOW SOME
EVIDENCE OF SELF-DEFENSE, ARE
MICHIGAN COURTS CONSTITUTIONALLY
OBLIGATED TO INSTRUCT A JURY ON
THE DEFENSE WHERE IT IS UNDISPUTED
THAT THE THRESHOLD WAS MET?
DID THE SIXTH CIRCUIT CORRECTLY
DETERMINE THAT THE INSTRUCTIONAL
ERROR WAS HARMFUL TO MS. BARKER
WHERE IT PREVENTED HER VERSION OF
EVENTS FROM BEING CONSIDERED BY
THE JURY AND WHERE THERE WAS
EVIDENCE WHICH (IF BELIEVED) WOULD
CONSTITUTE A FULL AND COMPLETE
DEFENSE?
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ..............005- i
TABLE GP COMTEIGIS.. .....4.4s0 caeasnencaewaaeeieeeees ll
TABLE OF AUTRORSTME oc occ scankccen eee iii
COUNTER-STATEMENT OF CASE... 2... cece ec ec scenes l
A. Trial Court Proceedings. ............... 2
B. Ray POP. 6 eo RES 8
_ Post-Conviction Proceedings. .......... 10
REASONS FOR DENYING WHET 4 asks sksccaaedowssne 13
I. WHERE MICHIGAN PLACES ONLY THE
BURDEN OF PRODUCTION (NOT
PERSUASION) TO SHOW SOME EVIDENCE
OF SELF-DEFENSE, GJLMORE V. TA YLOR,508
U.S. 333 (1993) IS NOT IMPLICATED. ....... 13
Il. THE INSTRUCTIONAL ERROR WAS
CLEARLY HARMFUL TO MS. BARKER
WHERE IT PREVENTED HER VERSION OF
EVENTS FROM BEING CONSIDERED BY
Hh. 8) + Meryem oy 18
RELIEF REQUESTED A ee er ee 26
ii
TABLE OF AUTHORITIES
FEDERAL CASES
Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999) ........ 12
Bollenbach v. United States, 326 U.S. 607 (1946) ...... 24
Brecht v. Abrahamson, 507 U.S. 619 (1993) ........... 18
California v. Trombetta, 467 U.S. 479 (1984) .......... 15
Chambers v. Mississippi, 410 U.S. 284 (1973) ..... wekcae
Chapman v. California, 386 U.S. 18 (1967) ........... 18
Coker v. Georgia, 433 U.S. 584 (1977) ............... 25
Conde v. Henry, 198 F.3d 734 (9th Cir. 1999) ......... 16
Crane v. Kentucky, 476 U.S. 683 (1986) .............. 15
Dunn v. United States, 442 U.S. 100 (1979) ........... 24
Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990)........ 13
Hickory v. United States, 160 U.S. 408 (1896) ......... 16
In re Winship, 397 U.S. 358 (1970) .................. 15
Jones v. United States, 526 U.S. 227, 238 (1999) ....... 13
Kimmelman v. Morrison, 477 U.S. 365 (1986) ......... 21
Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996) ..... 20
iii
Lockhart v. Fretwell, 506 U.S. 364, 369 ........... 21, 23
Martin v. Ohio, 480 U.S. 228 (1987) ................. 13
Morrison v. California, 291 U.S. 82 (1934)............ 13
Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. ), cert
denied, US. ,1198S.Ct.2340(1999)....... 20
Oritz v. Dubois, 19 F.3d 708 (1st Cir. 1994) ........... 24
Rock v. Arkansas, 483 U.S. 44 (1987) ............... 15
Smith v. Horn, 120 F.3d 400, 418-419 (3rd Cir. 1997) ... 19
Sparf & Hansen v. United States, 156 U.S. 51(1895) .... 16
Spurr v. United States, 174 U.S. 728, 735 (1899) ....... 16
Strickland v. Washington, 466 U.S. 668 (1987) ........ 21
Sullivan v. Louisiana, 508 U.S. 275 (1993) ............ 24
Taylor v. Williams, —-*U.S. __—, 2000 U.S. LEXIS 2837
CAINE TU «00 5 oe Fk dasa a 19
Teague v. Lane, 489 U.S. 288 (1989) ................ 14
Thomas v. Peters, 48 F.3d 1000 (7th Cir. 1995) ........ 14
United Brotherhood of Carpenters v. United States, 330
Rh. ON OUED 5065 5 cach 00085 obs ei 16
United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d
Cis, SOF eae seen Se aie oe 16°
iv
United States v. Angiulo, 897 F2d 1169, 1196-97 (ist
Meret ee Cee Te ETT ER EP SOL LESS CEE eTE
2, EEE ECC ETE ee ee Pe ey ee ere eee er ry
United States v. Martin Linen Supply Corp, 430 U.S.
iy ROR Eee PEE eee rE Ty Pr ror rere
United States v. Plaft, 435 F.2d 789, 792 (2d Cir. 1970) . .
United States v. U.S. Gypsum Co., 438 U.S. 422 (1978) .
Washington v. Texas, 388 U.S. 14 ,19 (1967) ..........
Webb v. Texas, 409 U.S. 95, 98 (1972) ...............
Weeks v. Angelone, U.S.__, 120 S. Ct. 727 (2000) .
Zemina v. Solem, 438 F.Supp. 455, 466-470 (D.S.D.
1977), aff'd, 573 F.2d 1027 (8th Cir. 1978) .........
STATE CASES
Miller v. South Dakota, 338 N.W.2d 673 (S.D. 1983) ...
People v Johnson, 181 Cal. 3d 1137, 225 Cal Rptr. 251
COD 086 as Sas hn eee
People v. Barker, 179 Mich App. 702, 446 NW2d 549
Spates bn Aah ore yte iRne Cr
People v. Barker, 435 Mich. 867, 457 N.W.2d 691 (1991)
@* 2 @6-@26G6O.O@C@ ORCC OOCBQHeeOeG OC CADE SB'KCOR_ Qj BGQesesbvo6€24 46 6 0 8&6 6 BS @
People v. Fortson, 202 Mich.App. 13, 507 N.W.2d 763
(TORE) «oss cvacassangeakseeeees bans cee 13
People v. Heflin, 434 Mich 482, 456 NW2d 10(1990). ... 13
People v. Superior Court (Duval), 198 Cal. App. 3d 1121,
244 Cal. Rate. SE2(ISSS is visceunsieseasiie 25
People v. Turong, 218 Mich. App. 325, 553 N.W.2d 692
(19DG) occeccscasccdiengdseis aha eee 13
State v. Miller, 186 Conn 654, 660, 443 A.2d 906 (1982) 17
State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977)7, 26
Williams v Warden, 254 Va. 16, 487 S.E.2d 194 (1997) . 21
FEDERAL STATUTES
46 USL. Giz RG) 0st ieee 19
OTHER AUTHORITIES
S. Brownmiler, AGAINST OUR WILL: MEN, WOMEN, AND
RAPE, Cosmet OCIS TO? x coos sackusicecaussous 25
Burgell and Holstrom, “Rape Trauma Syndrome” in
FORCIBLE RAPE: THE CRIME, THE VICTIM AND THE
OFFENDER, (D. Chappell and R. Geis, G. Geis, ed.
IDTE) 0000s dss eeu bb weeees beetle 25
Comment, Making the Women’s Experience Relevant to
Rape: The Admissibility of Rape Trauma Syndrome in
California, 39 U.C.L.A. L. REV. 251 (1991) ........ 25
Vi
M.J. Hartman and J. Nydern, Habeas Corpus and the
New Federalist After the Anti-Terrorism and Effective
Death Penalty Act of 1996, 30 J. Marshall L. Rev.
PEP IOPED ce aRUeakwe wc beet ies Sa Cs Viva hs 60 20
Vii
No. 99-1559
In The
United States Supreme Court
OCTOBER TERM, 1999
JOAN YUKINS, Warden,
Petitioner,
STACEY BARKER,
Respondent.
On Petition for Writ of Certiorari to the
United States Court ofAppeals for the Sixth Circuit
RESPONDENT’S BRIEF OPPOSING
PETITION FOR WRIT OF CERTIORARI
COUNTER-STATEMENT OF CASE
In a November 1987 jury trial before Judge Fred Mester of
Michigan’s Oakland County Circuit Court, Respondent Stacey
Barker was convicted of first-degree murder, MCL 760.3 16;
MSA 28.548, in the death of a retired Lutheran minister, Frank
Madsen. This was a second trial, the first having resulted in a
\
]
convicted as charged. She is currently serving a nonparolable
life sentence under the custody of the Michigan Department of
Corrections. Petitioner is the warden of the prison where she is
housed.
A. Trial Court Proceedings.
In his opening remarks to the jury, defense counsel stated
that the inferences to be drawn from the facts and not the facts
themselves, were in dispute in this case, and that Ms. Barker
killed Frank Madsen in self-defense after Mr. Madsen made
sexual advances towards her (T II 67).
The first trial witness was the Oakland County medical
examiner, Dr. William Brooks. Dr. Brooks testified that he
performed an autopsy on 81 year old Frank Madsen on
November 7, 1986. He observed ten lacerations to the head
generated by blows with a blunt object. All the head wounds
were shallow (T II 19-22). Two autopsy photographs were
introduced into evidence over previously noted defense
objection (T II 24). Dr. Brooks testified that the deceased was
wearing several items of jewelry, and there was no evidence
that anyone had tried to remove the jewelry (T II 25, 41). There
were abrasive injuries to the bridge of the nose, the eye, the left
cheek and the jaw (T II 26). There was a cluster of 32 stab
wounds in the area of the left arm pit and shoulder blade (T II
27-28). There were three additional surface stab wounds to the
right shoulder and left arm, and there were scratches across Mr.
Madsen’s chest and scrapes on his knuckles (T II 29-30).
Several stab wounds had perforated the lung and rib cage
causing death (T II 32-33). Dr. Brooks speculated that Mr.
Madsen was struck about the head and face before he was
stabbed and that he was not moving when he was stabbed (T II
35, 52). Dr. Brooks placed the time of death as the evening of
November 5, 1986, and stated that he was unable to determine
Janice Davis testified that in November of 1986 she was
working as a housekeeper at the Franklin Club Apartments, a
Southfield senior citizens’complex, where she cleaned Mr.
Madsen’s apartment every day (T III 16). On November 5, she
noticed that several drawers in the apartment were open. and
she closed them as she cleaned. On November 6, she entered
the apartment through the normally unlocked door and found
Mr. Madsen lying dead on the kitchen floor (T III 10-13). Ms.
Davis testified that she knew Defendant Barker worked as a
companion to a woman who lived on the same hallway as Mr.
Madsen, and she had seen Ms. Barker go into the Madsen
apartment a couple of times (T III 15-16, 22). Ms. Davis
testified that Mr. Madsen walked slowly with a cane, smoked
cigarettes and wore glasses (T III 18). She described him as “a
strong man, a big man” (T III 24).
Dr. Marshall Sach, Mr. Madsen’s personal physician,
testified that when he last saw his patient in October of 1986,
Mr. Madsen was six feet tall, weighed 200 pounds, and was
suffering from several medical problems including poor
circulation in one leg and “organic brain syndrome” or senile
dementia, which caused short-term memory loss (T III 28-3 0,
39). Dr. Sach testified that Mr. Madsen had problems with
balance and walked with a cane. On October 29, Mr. Madsen
told him that he had slipped on some wet grass two days earlier
and had bruised his left knee and thigh (T III 31, 34).
Audrey Warren testified that she and Mr. Madsen were
friends for forty years, and that approximately two days before
his death she observed him with $300 in cash (T III 79, 83). On
one unspecified occasion in the past, he asked her to get some
money out of a ledger book which was located in a desk drawer
in his bedroom (T III 86-87). Two and a half years before his
death, Mr. Madsen told Ms. Warren that he was impotent (T III
89-90).
The parties stipulated that Mr. Madsen’s wallet was found
in his apartment at the time his body was discovered. The wallet
contained $61 in cash and a card with Ms. Barker's telephone
number written on it (T III 94-95).
Mr. Madsen’s daughter, Arlayne Lewis, testified that her
father’s last withdrawal from his checking account was $200.00
on October 27, 1986 (T III 115). Ms. Lewis testified that her
father was an affectionate man, and women had called him a
“sreat kisser.” He was able to drive his own car. She did not
believe he was in the habit of keeping large amounts of cash in
his apartment (T IV 11, 16). Mr. Madsen’s son-in-law, Herbert
Lewis, testified that Mr. Madsen walked with a cane for the
year and a half before his death (T IV 27).
Melvin Paunovich, of the Southfield Police Department
crime laboratory, testified that during his investigation of the
scene he found a cane, a knife, a pair of glasses and a cigarette
near the body. He took numerous blood samples, including one
from a bloody towel in the bathroom sink where the water was
still running. He found a partial palm print in blood on the top
of the stove and later determined that the palm print was that of
Stacey Barker (T IV 32-33, 36-37, 40). A desk drawer in the
bedroom was partially open, with a ledger book and $8.00 in
Canadian money inside the drawer in plain view. There was no
blood on the drawer or its contents (T IV 50, 70-71). Mr.
Madsen’s wallet was on a table near the front door of the
apartment. The wallet contained $61 in cash and had no blood
on it (T IV 51). Sergeant Paunovich testified that there was no
total ransacking of the apartment, and that the deceased's belt
buckle was at the side of his pants and not in the belt loop and
that his pants were partially pulled down (T IV 52, 55-56).
Detective Lowell Moore of the Southfield Police
Department testified that he directed a video taping of the
apartment. The video was played for the jury over defense
objection (T IV 66-67). As the tape was played, Detective
Moore described the scene including spots of blood that were
found on the deceased as well as in areas of the kitchen,
bedroom and bathroom (T IV 72-74). Detective Moore testified
that he first interviewed Stacey Barker on February 10, 1987.
She told him that she met Reverend Madsen while working for
another resident. They became friends. He invited her to his
apartment several times, and they went out to lunch and dinner
together. On occasion, he paid her for cleaning his apartment.
She last saw him on October 31, or November 1, 1986 (T IV
78-82), Ms. Barker made a second statement after she was
arrested on May 7, 1987, following police receipt of the palm
print results (T IV 83-84, 94). That statement was read into the
trial record, but was not transcribed. However, the same
statement was transcribed when it was read at the preliminary
examination. In it, Ms. Barker testified that on November 6,
Mr. Madsen telephoned her and asked her to visit him. She did,
and they began the evening by watching television. Masden
called Ms. Barker and asked her to come over and visit him,
which she did. They initially spoke and watched some
television together. He then came to the couth she was sitting
on and started touching her without her consent. Initially, Ms.
Barker had not taken the matter seriously because Mr. Masden
had earlier told Ms. Barker that he was impotent.
Ms. Barker stated that she had been told by her aunt “and a
lot of different ladies at Franklin Club” that she should stay
away from him because he was a “dirty old man,” (PET 87-94).
Ms. Barker did not follow this warning because she thought he
was nice and her instincts believed that “he just needed
company.” The deceased then told her that he had spent money
on Ms. Barker and it was time that she started “being nice to
_ him.” Ms. Barker then testified that the conflict progressed and
Mr. Masden get “pawing all over me and then he came behind
me and he was grabbing me, telling me he wasn’t gonna let me
go and I really got scared because I had been raped before and
I had to see a rape counselor and I just didn’t want it to happen
again.” Ms. Barker then testified in detail to Mr. Masden’s
efforts to forcefully disrobe her. At that point during the
struggle, Ms. Barker grabbed a statue from Mr. Masden’s
counter and hit him with it. Ms. Barker then testified to taking
a knife from someplace in the kitchen and described the
following:
And | started crying and it seemed like everything
was blurry. I just didn’t even know him. I didn’t
even know myself. All I could think about was
when I was being raped and beaten a few years
before that and started stabbing him and he still
wouldn't let me go and he took the knife from me.
He was on top of me. You know, it was like he was
trying to hunch on me, like hump on me, and I just
kept saying -- I just remember I was saying please
stop, don’t do this to me, you don’t have to do this
to me, Frank, please stop. Then he grabbed, he took
the knife from me and for a minute I thought, you
know, after I stabbed him he was going to try to stab
me because I had stabbed him and so I tried to grab
the knife back and that’s when my finger got cult...
Now like when I move this hand and I do like this,
you see how my finger can curve, this finger won't
even curve. I think I might have cut a nerve or
something...
[I]t was really deep, it was wide open. And | said
look what you did to me and he saw it and he was
still smirking and by that time he had dropped the
6
Publisher’s Note:
Page(s) rd missing in original document
the following instruction to the jury on self-defense:
One of the defenses raised in this case is that the
Defendant acted in lawful self-defense. That law
recognizes the right of a person to use force or
even take a life in defense of his own person
under certain circumstances.
When persons act in lawful self defense, such
acts are excused and Defendant is not guilty of
any crime. |
In considering whether or not the Defendant
acted in lawful self-defense, you should
consider all of the evidence in light of the
following rules:
First, at the time of the act, the Defendant must
have believed he was in danger of being killed
or of receiving serious bodily harm. If he so
believes, he may immediately act and defend
himself, even to the extent of taking a human
life if necessary. Although it may turn out that
the appearances were false and that he was
mistaken as to the extent of the real danger, he
is to be judged by circumstances as they
appeared to him at the time of the act.
Second, the degree of danger which must be
feared is serious bodily harm or death. A person
is not justified in killing or inflicting bodily
injury upon another to protect himself from
what appears to be slight or insignificant injury.
Deciding whether at the time the Defendant
feared for his life or safety, you should consider
all the surrounding circumstances, the
conditions of the parties, including their relative
strength, whether the other party was. armed
with any dangerous weapon, or had other means
to injure the Defendant, the nature of the threat
of or attack of the other party, previous acts of
brutality or threats of the other party which the
Defendant was aware.
Third, the act or acts taken by the Defendant
must be apparent to the Defendant at the time,
to be immediately necessary. A person is
justified in using only such amount of force as
may appear necessary at the time to defend
himself from danger. In considering whether the
degree of force appeared to be necessary, you
should consider the excitement of the moment,
what alternatives the Defendant knew existed. A
defendant in a state of excitement is not held to
. fine distinctions of judgment about how much
force is necessary to use to protect himself.
Now, the law requires a person to avoid using
deadly force if he can safely do so. If the
Defendant could have safely retreated but did
not do so, his failure to retreat is a circumstance
which you may consider, together with all other
circumstances, in determining whether he went
further in repelling the danger than he was
justified in doing.
However, if the defendant believed that he was
in danger of death or seriously bodily injuries
and that deadly force was immediately
necessary to repel such danger, he was not
required to retreat or to consider whether he
could safely retreat. He was entitled to stand his
ground and use such force as he believed
immediately necessary to protect his person.
The Defendant is not required to prove that he
acted in self-defense. The prosecution has the
burden of proof beyond a reasonable doubt, and
this includes the responsibility of providing that
| the Defendant was not acting in self-defense.
(TT VI 16-19). After the jury returned a verdict of guilty of
first-degree murder, defense counsel requested a psychiatric
referral for his client (T VI 24, 26-27).
Post-Conviction Proceedings.
On December 4, 1987, the court sentenced Ms. Barker to
the mandatory life term (ST 8).
Ms. Barker appealed her conviction through the Michigan
Courts squarely presenting the question of whether she was
denied her rights to due process of law and the presumption of
innocence when the state court refused to give the jury an
instruction that she had the right to use lethal force to resist a
sexual assault. The Michigan Court of Appeals treated Ms.
Barker's claim as a claim that she was denied a “fair trial”
through the deprivation of this instruction.' Disagreeing with
another Court of Appeals decision, the Court found that there
was no right to a special instruction on this issue, /d. Judge
Kelly dissented from this holding stating that Ms. Barker was
“entitled to have the jury specifically instructed that she had the
‘People v. Barker, 179 Mich App. 702, 446 NW2d 549 (1989)
(Pet.App. 59a).
10
right to defend herself from being raped by using force,
including deadly force.” Pet. App. at 63a.
On the defense appeal to the Michigan Supreme Court, the
Michigan Supreme Court granted leave to appeal limited to the
question of “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.”
On appeal, Ms. Barker briefed the constitutional issue
presented to the federal courts. When the Michigan Supreme
Court handed down its decision, the Court found that the jury
instruction should have been given, but declined to reverse
finding the error harmless based on the belief that the “evidence
thoroughly contradicted the defendant’s version of how and
why she killed the elderly and infirm victim,” (Pet. App. 45a).
Justice Levin dissented from this finding that there was
significant evidence to support the Defendant’s version of the
offense finding that the majority ’s harmless error analysis was
was in error. Justice Levin believed that the majority’s opinion
impermissibly assumed that the deceased’s age standing alone
made him incapable of posing a credible threat to Ms. Barker.
Justice Levin cited several scholarly works for suggesting that
this was not the case.’ Justice Levin proceeded to note that the
evidence at the crime scene was consistent with a sudden affray,
that there was no record support for the assertion that the victim
was crawling away as asserted by the Court of Appeals,
*People v. Barker, 435 Mich. 867, 457 N.W.2d 691, (1991) (Pet.
App. 43 a).
*Pet. App. 46a (citing Rosenfeld Prolongevity I] (New York, Alfred
A. Knopf, /985); and, Masters, Johnson, & Kolodny, Human Sexuality
(Boston: Little, Brown & Co., 1982) p. 170).
1]
Petitioner subsequently brought a habeas corpus action in
the United States District Court for the Eastern District of
Michigan. The action was denied at the lower court level, but
reversed on appeal.
On December 15, 1999, a unanimous panel of the Sixth ~
Circuit reversed the District Court.* The Court found that Ms.
Barker had a constitutional right to have the jury charged with
instructions regarding her defense, and that the Michigan
Supreme Court had acted unreasonably in upholding Ms.
Barker's conviction on the theory that it believed the
prosecution's witnesses and disbelieved the defense witnesses.
The Warden has sought certiorari in this matter. This is Ms.
Barker’s opposition.
REASONS FOR DENYING WRIT
Il. WHERE MICHIGAN PLACES ONLY THE
BURDEN OF PRODUCTION (NOT
PERSUASION) TO SHOW SOME EVIDENCE
OF SELF-DEFENSE, GILMORE V. TAYLOR,
508 U.S. 333 (1993) IS NOT IMPLICATED.
Petitioner contends that the question of whether this Court's
statement in Gilmore v. Taylor, 508 U.S. 333 (1993) that an
instructional error in an affirmative defense cannot implicate
the due process clause is an important question which this
Court should review. While this is an interesting abstract
question, it is not implicated here because self-defense is not a
true affirmative defense in Michigan. Michigan law places the
burden of going forward on a self-defense claim on the defense.
Once some evidence of self-defense is presented, the State is
“Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999).
12
ne ee
required to disprove the defense beyond a reasonable doubt. See
People v. Turong, 218 Mich. App. 325, 553 N.W.2d 692
(1996); People v. Fortson, 202 Mich.App..13, 19-20, 507
N.W.2d 763 (1993); People v. Heflin, 434 Mich 482, 502, 456
NW2d 10(1990).
There is no doubt that a state may normally decide what
factors are substantive element so of an offense and what
factors are affirmative defenses.° A state is then free to allocate
the burden of production and the burden of persuasion
accordingly. Martin v. Ohio, 480 U.S. 228 (1987). While under
Martin, Michigan could shift the burden to the Defendant to
prove self-defense, they did not. Ms. Barker was only required
to come forward with evidence to put the issue in dispute.° The
Michigan Supreme Court has expressly found that she met this
burden. See 437 at 162, 468 N.W.2d at 493, Pet. App. 44a (“in
the present case, there was both a request and an evidentiary
basis for such an instruction, and it should have been given”).
Gilmore v. Lynch, 508 U.S. 333 (1993), does not alter the
argument made in this case. Gilmore specifically says that it
was only deciding the question of whether the lower court had
applied a new rule of law on habeas corpus in violation of the
principles set forth in Teague v. Lane, 489 U.S. 288 (1989).
“[T]he retroactivity of Falconer [v. Lane, 905 F.2d 1129 (7th
Cir. 1990)] is the only question before us in this case.”
Gilmore, 113 5. Ct. at2116 (emphasis added). This Court went
*In Morrison v. California, 291 U.S. 82 (1934), the Court found
that in extreme cases, a state could violate due process by unfairly shifting
a critical element of the case to the defense. See aiso Jones v. United States,
526 U.S. 227, 238 (1999). Respondent does not argue that Morrison is
implicated in this case.
“See, e.g. Gilmore, 508 U.S. at 35t(O’ Connor, J.) (distinguishing
between burden of proof and burden of production).
13
on to note that the State’s argument that the jury instruction
error was only one of staté law was one which the Court “need
not address.” Jd. at 2217 n.4. Similarly, the concurring and
dissenting justices in that case expressly undercut such a
- reading. Justices O’Connor and White concurred specifically
noting that “I do not join in the Court’s opinion. . . because it
could be read (wrongly, in my view) as suggesting that the
Court of Appeal’s decision in this case applied not only a new
rule, but also an incorrect one”). Justices Blackmun and Stevens
criticized the majority for failing to reach the issue of whether
the instructions violated due process. See also Thomas v.
Peters, 48 F.3d 1000 (7th Cir. 1995) (recognizing that Gilmore
did not decide the merits of the question of whether defective
defense instructions are solely a state law issue).
Moreover, in Gilmore the State conceded that the due
process clause was implicated where the jury instructions had
the effect of reducing their burden of proof on an element of the
offense which they were obligated to prove under Jn re
Winship, 397 U.S. 358 (1970). See 508 U.S. at 340 (the state
argues that any error “with respect an affirmative defense,
which does not lessen the State’s Winship burden in proving
_ every element of the offense charged beyond areasonable doubt,
is wholly of state law”).’
The Warden’s argument that the a criminal defendant’s
’This Court has previously criticized such attempts to artificially
_— _ limit the concept of what is an element of an offense. In Jones, this Court
held that such an approach was highly disfavored because it giving the state
“an unlimited choice over characterizing a stated fact as an element would
leave th State substantially free to manipulate its way out of Winship,” Id.
at 241.
14
ea memes rene ee
right to subpoena defense witnesses,* present their testimony,”
and the right of a defendant to testify in his or her own behalf*°
would be reduced to a hollow formality if the state was free to
exclude the defense from the jury. In Washington v. Texas, 388
U.S. 14 ,19 (1967), this Court rejected such a hollow
construction when it noted: “The Framers of the Constitution
did not intend to commit the futile act of giving to a defendant
the right to secure the attendance of witnesses whose testimony
he had no right to use.”'' This Court recognized in Spurr v.
United States, 174 U.S. 728, 735 (1899), when a defendant is
“entitled to the full benefit of [a] defense,” it is “vital” that the
"See Webb v. Texas, 409 U.S. 95, 98 (1972) (reversing conviction
based on state judge’s interference with the defendant's right “to present his
Own witnesses to establish a defense”’).
*Chambers v. Mississippi, 410 U.S. 284 (1973).
‘Rock v. Arkansas, 483 U.S. 44 (1987). See also Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (discussing constitutional guarantee of
a “meaningful opportunity to present a complete defense” and “an
opportunity to be heard”); California v. Trombetta, 467 U.S. 479, 485
(1984).
''As the Ninth Circuit has recognized: “a failure to instruct the jury
regarding the defendant’s theory of the case precludes the jury from
considering the defendant’ defense to the charges against him. Permitting a
defendant to offer a defense is of little value if the jury is not informed that
the defense, if it is believed. . . will entitle the defendant to a judgment of
acquittal.” United States v. Escobar de Bright, 742 F.2d 1196, 1201-1202
(9th Cir. 1984). See also United States v. Plaft, 435 F.2d 789, 792 (2d Cir.
1970) (“[A] defendant is “entitled to have instructions presented relating to
any theory of defense for which there is any foundation in the evidence, no
mafter how weak or incredible. . -”); United States v. Alfonso-Perez, 535
F.2d 1362, 1365 (2d Cir. 1976); United States v. Hicks, 748 F.2d 854, 857-
58 (4th Cir. 1984) (failure to instruct on alibi violated due process); Conde
v. Henry, 198 F.3d 734, 739-740 & n.5 (9th Cir. 1999) (failure to instruct on
defendant's theory violated due process).
15
jury be properly instructed. See also Hickory v. United States,
160 U.S. 408, 423 (1896) (“when there is sufficient evidence
upon a given point to go to a jury, it is the duty of the judge to
submit it calmly and impartially”). Failing to submit a defense
to the jury is the functional equivalent of a direct verdict for the
prosecution in a criminal case, a verdict which has been
squarely rejected by this Court. See United States v. Martin
Linen Supply Corp, 430 U.S. 564, 573 (1977); United
Brotherhood of Carpenters v. United States, 330 U.S. 395, 408
(1947); Sparf & Hansen v. United States, 156 U.S. 51, 105-06
(1895).
This error robbed Ms. Barker of her defense. As the Sixth
Circuit correctly noted:
Barker’s sole defense is that she killed the victim in
order to prevent an imminent rape. The trial court’s
refusal to instruct the jury that a defendant has the
right to use force, even deadly force, to resist a rape
clearly goes to the very essence of Barker’s claim of
self defense. In this case, a juror may have
reasonably interpreted the general self defense
instruction to require Petitioner to demonstrate that:
(1) a rape was imminent; and (2) that rape would
have led to death or serious bodily injury. Michigan
law, however, requires only that a defendant ‘who
used self defense to resist an imminent rape to
demonstrate the former. By adding what is
effectively another element to Petitioner’s burden,
the general self defense instruction undermined
Barker’s defense. Petitioner simply cannot be
considered to have had a meaningful opportunity to
present a complete defense when the jury was so
plainly misinstructed on a matter critical to her
defense. That the self defense instruction at issue is
16
vitally important to a full and vigorous defense is
underscored by the fact that Michigan law itself
requires the instruction be given when there is a
sufficient evidentiary basis to show that the
defendant used self defense to prevent a rape.
Instead of having a meaningful opportunity to
present a full and vigorous defense, then,
Petitioner's claim of self defense was significantly
impeded and her due process rights to present a
defense severely prejudiced.
See also State v. Miller, 186 Conn 654, 660, 443 A.2d 906
(1982) (finding a deprivation of the right to a defense by
refusing to submit a properly supported defense to the jury);
State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548, 559 (1977)
(finding a deprivation of the right to a defense on similar facts
to the instant case); Zemina v. Solem, 438 F.Supp. 455, 466-
470 (D.S.D. 1977), affd, 573 F.2d 1027 (8th Cir. 1978)
(erroneous jury instruction which went to defendant's theory of
defense supported a finding of constitutional error); Miller v.
South Dakota, 338 N.W.2d 673, 676 (S.D. 1983) (although
errors in instructing the jury do not always rise to a
constitutional level, "if the error goes to the heart of a
defendant's theory of defense it can infringe upon defendant's
rights to due process and jury trial.")
The decision below is clearly supported by ample precedent.
Petitioner's request for certiorari should be denied.
Il. THE INSTRUCTIONAL ERROR WAS
CLEARLY HARMFUL TO MS. BARKER
WHERE IT PREVENTED HER VERSION
OF EVENTS FROM BEING CONSIDERED
BY THE JURY.
The Michigan Supreme Court found that Ms. Barker’s
defense should have been submitted to the jury. The Court,
however, found the error in this case harmless because the
Court believed that “no reasonable juror would have believed
the defendant’s claim of self-defense.” The Court's opinion did
_ not offer detailed analysis, but instead adopted Judge Kelly's
concurrence in the Court of Appeals. (Pet. App. 45a). Judge
Kelly’s opinion cited no case law for her analysis and simply
recited that based on the nature of the crime, “no reasonable
juror could have believed such force was necessary to prevent
rape by the enfeebled deceased.” No cases were cited in support
of this analysis and Petitioner has pointed to no Michigan cases
which had previously held that an appellate court may resolve
witness credibility in applying the harmless error analysis
required in constitutional questions under Chapman v.
California, 386 U.S. 18, 23-24 (1967)."°
The Warden believes that this is a state ruling on the merits
entitled to deference under 28 U.S.C. §2254(d)(1). The
Respondent disagrees. While the question of what was the
appropriate standard of deference in petitions for habeas corpus
While Respondent argues that the Michigan Supreme Court
unreasonably applied Chapman, even under the standard set forth in Brecht
v. Abrahamson, 507 U.S. 619 (1993), the appellate credibility
determinations complained of in this brief would be improper. See Smith v.
Horn. 120 F.3d 400, 418-419 (3rd Cir. 1997) (“we cannot assume that the
jury, having found Smith guilty, “believed all properly admitted evidence
against him and disbelieved all evidence in his favor”) (quoting Roger J.
Traynor, THE RIDDLE OF THE HARMLESS ERROR (1970).
18
Oe
Se
that post-dated the Anti-Terrorism and Effective Death Penalty
Act. 28 U.S.C. §2254 (1994 ed., Supp III) (quoted in the
footnote)'* was once an important open question of law. It has
been resolved since the filing of the Petitioner’s petition.
Just two weeks ago, this Court resolved this question in
Taylor v. Williams, __ U.S. ____, 2000 U.S. LEXIS 2837
(April 18, 2000). There, this Court adopted a standard of
review aimed at giving full meaning to the deference provisions
of the Anti-Terrorism Act. The Court held that:
The federal habeas court should not transform the
inquiry into a subjective one by resting its determination
instead on the simple fact that at least one of the
Nation’s jurists has applied the relevant federal law in
the same manner the state court did in the petitioner’ s
habeas case.
The “all reasonable jurists” standard would tend to
mislead the habeas court by focusing their attention on
a subjective inquiry rather than on an objective one.
"The pertinent provision provides:
(a) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a state court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the claim —
(1) resulted in a decision that was contrary
to, or invoked an_ unreasonable
application of, clearly established
Federal law, as determined by the
Supreme Court of the United States.
19
This standard of review is actually more favorable to Ms.
Barker than the standard of review applied by the Sixth Circuit
in this case. The Sixth Circuit had previously utilized the
reasonable jurists standard.'* This Court’s opinion rejects the
this standard in favor of an objective reasonable test.'°
Further, careful review of the Taylor case demonstrates that
the degree of review that the Sixth Circuit applied to the
Michigan Supreme Court did not exceed that mandated by
Taylor. In Taylor, the Virginia Supreme Court wrote a
relatively thoughtful opinion defending its position. Williams
vy Warden, 254 Va. 16, 487 S.E.2d 194 (1997). The Court
examined the facts at some length, 487 S.E.2d at 195-197, 199-
200. The Court, then correctly identified Strickland v.
Washington, 466 U.S. 668 (1987) as the controlling case for
“See Pet. App. 7a (“[tJhus, in the Sixth Circuit, a state court's
application of federal law is unreasonable and a writ may issue only if
reasonable jurists would find it so arbitrary, unsupported or offensive to
existing precedent as to fall outside the realm of plausible credible
outcomes”). See also Nevers v. Killinger, 169 F.3d 352, 362 (6" Cir. ), cert
denied, _U.S.__, 119 S. Ct. 2340 (1999).
‘Sit should also be noted that the Michigan Supreme Court ruling
and that the Michigan Court of Appeals ruling did not apply a careful
application of law to facts in this case. The Court assumed a key question
in this case without discussion or analysis (e.g. that it could resolve disputed
factual questions which were never submitted to the jury). Under these
circumstances, it is unclear whether there was a state interpretation of federal
law to defer to. In Lindh v. Murphy, 96 F.3d 856, 871 (7" Cir. 1996), Judge
Easterbrook writing for the Court held that in determining whether a state
court’s interpretation of federal law was reasonable, the Court should take
into account whether a “reasonable, thoughtful answer [was] reached after
a full opportunity to litigate the issues.” A decision which does not possess
these qualities may not meet this test. See also M.J. Hartman and J. Nydern,
Habeas Corpus and the New Federalist After the Anti-Terrorism and
Effective Death Penalty Act of 1996, 30 J. MARSHALL L. REV. 337, 363
(1997).
20
ineffective assistance of counsel claims. The Court recognized
the basic test under Strickland (e.g. that there must be a
deficiency in representation with actual prejudice resulting).
Relying on additional Supreme Court cases, the Court stated
that the standard was demanding, but “by no means
insurmountable.” Id. at 198 (quoting Kimmelman v. Morrison,
477 U.S. 365 (1986)).
Speaking to the prejudice component, the Court stated that
“an analysis focusing solely on mere outcome determination,
without result of the proceeding was fundamentally unfair or
reliable.” Id. at 198 (quoting Lockhart v. Fretwell, 506 U.S.
364, 369)). Continuing to quote from the Lockhart decision.
the Court stated that a focus solely on outcome determination
without looking at the totality of circumstances would give the
criminal defendant and unnecessary windfall. Id. In reversing,
this Court found that the decision was an overreading of
Lockhart and that the decision had not displaced the Strickland
causation standard. Therefore, the Court reversed. Even
though the Virginia Supreme Court probably spent a great deal
of time drafting its opinion and the decision was certainly the
product of both research and a careful review of the record, the
Court found that the interpretation was unreasonable. Thus. it
is clear under the degree of scrutiny applied under Taylor the
same result would have occured here. In this case, it was clear
that there was a sharp disagreement regarding the facts of this
case. Petitioner makes the mistake of reviewing the evidence
in a light most favorable to the prosecution, even though the
jury probably never considered this highly relevant and disputed
issue.
As the Sixth Circuit correctly recognized:
In this matter, the only thing of which this court is
certain is that the erroneous jury instruction left the
door wide open [for the jury to not consider the
Respondent's defense]. A reasonable juror could
have very well walked through the door and
rejected Barker's claim for self defense because that
juror believed that Madsen's assault would not have
led to death or serious bodily injury, thereby
resulting in a substantial and injurious influence on
the verdict. Since there is grave doubt as to whether
the erroneous jury instruction created a substantial
and injurious influence on the verdict, the error was
not harmless. Accordingly, then, the Michigan
Supreme Court engaged in an unreasonable
application of Chapman's harmless error test, and
under § 2254(d), a writ of habeas corpus should
issue.
We further believe that the Michigan Supreme
Court improperly invaded the province of the jury in
determining that, although the general self defense
instruction was erroneous in Barker's case, the error
was harmless because no reasonable juror could
have believed that the force used by Barker was
necessary to prevent rape by an 8l-year old
"“enfeebled" man. The Sixth Amendment and the
Due Process clause guarantee a defendant's
constitutional right to a trial by jury. As the
Supreme Court has recognized, the Sixth
Amendment protects the defendant's right to trial by
an impartial jury, which includes "as its most
important element, the right to have the jury, rather
than the judge, reach the requisite finding of
‘guilty."". This right is further interpreted as
prohibiting judges from weighing evidence and
making credibility determinations, leaving these
functions for the jury.. However, that is precisely
what the Michigan Supreme Court did by finding
that the erroneous jury instruction was harmless
because no reasonable juror would have believed
Barker's claim of self defense. F irst, the Michigan
Supreme Court asserted that because the victim
received ten blows to the head and was stabbed
thirty two times, no reasonable juror would have
believed that such force was necessary to resist a
sexual assault by an “enfeebled" victim. See id.
However, there was sufficient evidence in the
record which might have supported rational
conclusions to the contrary. In particular, Barker's
testimony might support an inference that she
stabbed the victim in such a frenzy because he
persisted in his attack despite her struggle and
numerous protests. Yet, the Michigan Supreme
Court must have wholly discredited this testimony
in arriving at its conclusion that the amount of force
used was unjustified. Similarly, the court's
conclusion that the victim was "enfeebled" rejects
testimony to the contrary which established that
although the victim walked with a cane. he was "a
Strong man, a big man."
The Michigan Supreme Court’s sorting of evidence in this
matter (e.g. determining what evidence it personally believed)
violated Ms. Barker’s right to a have a jury determine her guilt
under Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). See
also United States v. U.S. Gypsum Co., 438 U.S. 422, 446
(1978). A court is not permitted to affirm a defendant’s
conviction on a theory not presented to the jury. See Dunn v.
United States, 442 U.S. 100 (1979); United States v. Angiulo,
897 F2d 1169, 1196-97 (1" Cir. 1990); Oritz v. Dubois, 19 F.3d
708 (1* Cir. 1994). Ms. Barker had a right to “trial by jury as
opposed to trial by appellate court.” Oritz. supra.
23
Since Bollenbach v. United States, 326 U.S. 607 (1946), the
question in reviewing defective jury instructions has not been
whether a Court personally believes a criminal defendant guilty,
but whether the conviction was arrived at in an appropriate
manner by a jury who was properly instructed. In rejecting a
similar argument by the Court, Justice Frankfurter wrote for the
Court in Bollenbach:
In view of the Government's insistence that there is
abundant evidence to indicate that Bollenbach was
implicated in the criminal enterprise from the
beginning, it may not be amiss to remind that the
question is not whether guilt may be spelt out of a
record, but whether guilt has been found by a jury
according to the procedure and _ standards
appropriate for criminal trials in the federal courts.
326 U.S. at 607. Bollenbach is still good law. See Weeks v.
Angelone, _U.S. ___, 120 S. Ct. 727 (2000).
The jury instructions in this case denied Ms. Barker her
defense. The jury was free to debate how debilitating a given
sexual assault would be to a particular defendant"® rather than
'°The laundry list of the injuries (both physical and psychological)
which a woman faces from a sexual assault are both numerous and well
documented. See, e.g. People v. Superior Court (Duval), 198 Cal. App. 3d
1121, 244 Cal. Rptr. 522 (1988); People v Johnson, 181 Cal. 3d 1137, 225
Cal Rptr. 251 (1986); Burgell and Holstrom, “Rape Trauma Syndrome” in
FORCIBLE RAPE: THE CRIME, THE VICTIM AND THE OFFENDER, (D. Chappell
and R. Geis, G. Geis, ed. 1977); S. Brownmiler, AGAINST OUR WILL: MEN,
WOMEN, AND RAPE, Chapter 10 (1975); Comment, Making the Women’s
Experience Relevant to Rape: The Admissibility of Rape Trauma Syndrome
in California, 39 U.C.L.A. L. REV. 251 (1991).
(continued...)
24
recognizing Ms. Barker’s inherent right to use lethal force to
resist an assault. The error was affirmatively harmful to her.
As the Washington Supreme Court ruled in reversing a similar
conviction:
The respondent was entitled to have the jury
consider actions in light of her own perceptions
of the situation, including the perceptions which
were the product of our nation’s “long and
unfortunate history of sex discrimination.”
Until such time as the effects of that history are
eradicated, care must be taken to assure that our
self-defense instructions afford women the right
ot have their conduct judged in light of the
individual physical handicaps which are the
product of sex discrmination. To fail to do so is
to deny the right of the individual woman
involved to trial by the same rules which are
applicable to male defendants.
State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548, 559 (1977).
The Sixth Circuit’s ruling below was correct. The instructions
given to the jury in this case were such that they were left
guessing whether a sexual assault which “only” resulted in
serious emotional or psychological injury would be adequate to
resist with lethal force. This was error. The error was not
harmless because it permitted her to be convicted without
consideration of her defense. The Michigan Supreme Court
applied an unreasonable definition of Chapman when it
resolved witness credibility in declaring the error harmless.
'*(...continued) -
As this Court recognized in Coker v. Georgia, 433 U.S. 584, 597-98 (1977):
“Short of homicide, [a criminal sexual assault] is the ultimate violation of
self... Rape is very often accompanied by physical injury to the victim and
can also inflict mental and psychological damage.”
25
For these reasons, certiorari should be denied.
RELIEF REQUESTED
For all of the reasons stated above, Respondent urges this
Court to deny the Warden’s petition.
Respectfully submitted,
STUART G. FRIEDMAN*
Attorney for Petitioner
212 East Huron, #200
Ann Arbor, MI 48104
(734) 662-4070*
*Counsel of Record
DATED: May 5, 2000
26
-70a-
testimony of all witnesses and giving a
witness's testimony such weight as you believe
it deserves under all the circumstances you have
found to exist in this case. This includes the
testimony of police witnesses, such testimony is
to be judged by the same standards as any
other testimony.
Now, in this case, Dr. Brooks, forensic
pathologist, Dr. Sack, family physician and
Sergeant Paunovich, fingerprint expert, have
given their opinions in the fields of forensic
pathology, family medicine and fingerprints.
An expert is permitted to give his or her opinion
as to matters of which he or she is expert.
You're not bound to follow the opinion of any
expert, but you have give it whatever weight
you believe it deserves.
In determining whether or not to believe
the opinion of an expert, you should consider
the reasons
Trial Transcript dated 11/17/87 10
and facts upon which he or she bases his or her
opinion; whether or not these facts are true.
You should also consider the qualifications and
believability of the expert in light of all the
evidence in this case.
There have been stipulations of fact in
this case. Stipulations of fact are agreed
statements of attorneys on the facts. You may
regard such stipulated facts as true.
The evidence must convince you beyond
a reasonable doubt that the crime occurred on
or about November 15, 1987, within the County
of Oakland, City of Southfield. The Defendant
is charged with the crime of first degree
premeditated murder. Any person who
|
neti ee
-71la-
commits a willful and deliberate, premeditated
murder is guilty of this charge. The Defendant
pleads not guilty to this charge.
To establish first degree premeditated
murder, the Prosecution must prove each of the
following elements beyond a reasonable doubt:
First, that Frank Peter Madsen died on
November 15, 1986 within the County of
Oakland, the City of Southfield.
Second, that his death was caused by
the Defendant, that is that Frank Peter Madsen
died as a result of a stabbing.
Trial Transcript dated 11/17/87
Third, if you find the death was caused
by the Defendant, you must determine whether
the Defendant is guilty of any crime. The killing
of a human being by another maybe entirely
innocent. It is not the act of killing in and of
itself which makes it a crime, but the state of
mind with which it is done.
A killing is not murder if it is justified,
excused or if it occurred under circumstances
which make the killing the lesser crime of
manslaughter.
Fourth, for first degree premeditated
murder, you must find proof beyond a
reasonable doubt that the Defendant acted
with a certain state of mind in causing the
death. You must find that the Defendant
possessed the following state of mind at the
time of the killing:
That the Defendant intended to kill
Frank Madsen and that the intent to kill was
premeditated.
11
-72a-
What does premeditated mean?
Premeditated means thought out beforehand or
decided or planned, that the killing was
deliberate. Deliberate means the Defendant
must have considered to pros and cons of that
design and chosen her acts. The intent must be
formed by a mind that is free from undue
excitement. This excludes acts done on sudden
impulse, without reflection or as a result of a
sudden fight, and that the killing was the result
of real, substantial reflection.
Trial Transcript dated 11/17/87 12
There must be a sufficient lapse of time
as would give the mind time to think about the
purposes and intent of the killing. The law
does not specify the length of that period. And
it will vary with individuals and circumstances.
The test then, is not the duration of time, but
the extent of the reflection. There must be
sufficient time to afford a reasonable man time
to subject his actions to a second look.
The difference between first degree
premeditated murder and second degree
murder is that for first degree premeditated
murder, the Defendant must have actually
intended to kill and have premeditated the
victim’s death and have deliberately or
substantially reflected upon the killing
beforehand.
Sufficient premeditation and
deliberation is not required for second degree
murder. For second degree murder, the
Defendant must have actually intended to kill
- or have intended to do great bodily harm or
have created a very high risk of death or great
bodily harm, with the knowledge that death or
great bodily harm was a probable result.
a
-73a-
If you find the Defendant guilty of
murder, it is your duty to state the degree in
your verdict. That is that she is guilty of first
degree murder of guilty of second degree
murder,
Trial Transcript dated 11/17/87 13
When a certain intent is a necessary
element in a crime, the crime cannot have been
committed when the intent did not exist. Now,
intent is the decision of the mind to knowingly
do an act with a conscious, fully formed
objective of accomplishing a certain specific
result.
Now,, there can be no crime of murder
where there is no intent to kill or to do great
bodily harm or to intentionally act with a
willful, wanton disregard of the consequences.
The burden rests upon the Prosecutor to
show beyond a reasonable doubt that the
Defendant, at the time of the doing of the
alleged act, had the wrongful intent. The intent
which a person does an act is known by the
way in which he expresses it to others or
indicates by his conduct. The intent to which a
person does an act can sometimes be
determined from the manner in which it is done,
the method used and all other facts and
circumstances, only if that intent is established
by the evidence.
If you find that the Defendant, for any
reason whatsoever, did not consciously and
knowingly act with the intent to kill or do great
bodily harm or to intentionally act with a
willful, wanton disregard of the consequences,
the crime cannot have been committed.
-74a-
Trial Transcript dated 11/17/87 14
You must find the Defendant not guilty of the
crime of murder.
If from all the evidence, you have a
reasonable doubt as to whether or not the
Defendant knowingly and consciously acted
with the intent to kill or do great bodily harm or
to intentionally act with a willful and wanton
disregard of the consequences, then you must
find the Defendant not guilty of the crime of
murder.
Some instruments are dangerous because
they’re specifically designed -- so designed and
are themselves deadly, such as firearms or
bombs. Other instruments, though designed for
peaceful and proper purposes, also may be
dangerous weapons. The manner in which an
instrument is used or intended to be used in an
assault determines whether or not it is a
dangerous weapon. If an instrument is used in
a manner reasonably calculated to produce
serious injury or death, it is a dangerous
weapon.
You may infer the intention to kill from
the use of a dangerous weapon when it is used
in such a manner that the death of the person
was plainly likely. You may infer a person
intended the usual result which follows the use
of a dangerous weapon.
You must consider all the facts and
circumstances in determine the state of mind of
the
Trial Transcript dated 11/17/87 15
Defendant at the time of the act. This may be
inferred from the kind of weapon used, the
-75a-
nature of the wound inflicted, the circumstances
surrounding the killing, the act, the conduct, the
language of the accused, or any other
circumstances in evidence.
In determine whether a person who has
killed another is guilty of murder, the nature
and extent of the injury or wrong which was
actually intended must usually be of controlling
importance. There cannot be a conviction of
murder unless the injury intended was one of a
very serious character which might naturally,
commonly involve the loss of life or grievous
mischief.
If all the evidence does not convince you
beyond a reasonable doubt that the Defendant
either intended to kill or consciously created a
high degree of risk of death, with knowledge of
the probable consequences, then you must find
the Defendant not guilty of the crime of murder.
Now, the crime of murder may be
reduced to voluntary manslaughter if the killing
is committed under the influence of passion or
in the heat of blood produced by adequate
provocation, before a reasonable lapse of time
for the blood to cool. Manslaughter is
distinguished from murder in that with
voluntary manslaughter, when the mind or
reason of the Defendant
Trial Transcript dated 11/17/87 16
at the time of the act, is disturbed or clouded
by mental or emotional excitement to and
extent which might make an ordinary person
likely to act rashly or without due deliberation
or reflection and from passion, rather than
judgment.
Second, the cause of such disturbance
-76a-
must be something which would cause ordinary
persons to act rashly. The law does not state
what things are sufficient to produce such a
reaction. Anything which would naturally tend
to produce such a state of mind in ordinary
persons is sufficient. If the Defendant suffers
from some peculiar weakness of mind of
infirmity of temper, you may take this into
consideration.
Third, the killing must result from such
provocation or passion. That is, the killing
must have occurred before a reasonable time
had elapsed for the blood to cool and for
reason to resume its control. No precise time
can be laid down. The test is whether or not a
reasonable time had elapsed under the
particular circumstances.
One of the defenses raised in this case is
that the Defendant acted in lawful self defense.
That law recognizes the nght of a person to use
force or even take a life in defense of his own
person under certain circumstances.
Trial Transcript dated 11/17/87 17
When persons act in a lawful self
defense, such acts are excused and the
Defendant is not guilty of any crime.
In considering whether or not the
Defendant acted in lawful self defense, you
should consider all the evidence in light of these
tollowing rules:
First, at the time of the act, the
Defendant must have believed he was in danger
of being killed or of receiving serious bodily
harm. If he so believes he may immediately act
and defend himself, even to the extent of taking
a human life if necessary. Although it may now
eee
-77a-
turn out that the appearances were false and
that he was mistaken as to the extent of the real
danger, he is to be judged by the circumstances
as they appeared to him at the time of the act.
Second, the degree of danger which must
be feared is serious bodily harm or death. A
person is not justified in killing or inflicting
great bodily injury upon another in, order to
protect himself from what appears to be slight
or insignificant injury. Deciding whether at the
time the Defendant feared for his life or safety,
you should consider all the surrounding
circumstances, the conditions of the parties,
including their relative strength, whether the
other party was armed with any dangerous
weapon, or had other means
Trial Transcript dated 11/17/87 18
to injure the Defendant,, the nature of the threat
or attack of the other party, previous acts of
brutality or threats of the other party which the
Defendant was aware.
Third, the act or acts taken by the
Defendant must have appeared to the
Defendant at the time, to be immediately
necessary. A person is justified in using only
such amount of force as may appear necessary
at the time to defend himself from danger. In
considering whether the degree of force
appeared to be necessary, you should consider
the excitement of the moment, what alternatives
the Defendant knew existed. A defendant ina
state of excitement is not held to fine
distinctions of judgment about how much force
is necessary for him to use to protect himself.
Now, the law requires a person to avoid
using deadly force if he can safely do so. If the
Defendant could have safely retreated but did
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not do so, his failure to retreat is a circumstance
which you may consider, together with all other
circumstances, in determine whether he went
further in repelling the danger than he was
justified in doing.
However, if the defendant believed that
he was in danger of death or serious bodily
harm and that deadly force was immediately
necessary to repel such danger,
Trial Transcript dated 11/17/87
he was not required to retreat or to consider
whether he could safely retreat. He was
entitled to stand his ground and use such force
as he believed immediately necessary to protect
his person.
The Defendant is not required to prove
that he acted in self defense. The Prosecution
has the burden of proof of guilt beyond a
reasonable doubt, and this includes the
responsibility of proving that the Defendant
was not acting in self defense.
When you begin to deliberate, you
should first consider the offense of murder. If
you are unable to agree on a verdict with regard
to that offense, you may turn to consideration
of the lesser offense of voluntary manslaughter.
It is up to you to decide how long to consider
the offense of murder before turning to
consideration of the offense of voluntary
manslaughter. You may return at any time to
consideration of the greater offense or the lesser
offenses.
When you go to the jury room, your —
deliberations should be conducted in a
businesslike manner. You should first selec: a
foreperson. He or she should see that
19
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discussion goes forward in a sensible and
orderly fashion and that each juror has the
opportunity to discuss the issues fully and
fairly.
A verdict in a criminal case must be
Trial Transcript dated 11/17/87
unanimous. In order to return a verdict, it is
necessary that each of you agree upon that
verdict. In the jury room you will discuss the
case among yourselves, but ultimately each of
you will have to make up your own mind. Any
verdict must represent the individual,
considered judgement of each juror.
It is your duty to consult with
your fellow jurors and to deliberate with a view
to reaching an agreement, if you can do so
without violating your own judgment.
Before deciding the case, give impartial
consideration to the views of your fellow jurors.
This means that you should give respectful
consideration of one another’s views and talk
over differences of opinion in a spirit of fairness
and frankness.
It is natural that difference of opinion
will arise. When they do, each of you should
not only express your opinion, but also the
facts and reasons upon which you base it. By
reasoning the matter out, it is often possible for
all the jurors to agree.
In the course of your deliberations, do
not hesitate to reexamine your own views and
change your opinion if you are convinced that it
is wrong.
However, none of you should surrender
we
20
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your honest conviction as to the weight and
effect of the
Trial Transcript dated 11/17/87 21
evidence or lack of evidence solely because of
the opinion of your fellow jurors or for the mere
purpose of returning a verdict.
Do not concern yourselves during the
trial or in your deliberations with what the
penalty might be if you should find the
Defendant guilty. The question of guilt and the
question of penalty are decided separately. It
is the duty of the Judge to fix the penalty
whenever a defendant is found guilty. Possible
penalties should not influence your decision.
If you wish to communicate with the
Court while you are deliberating, please have
your foreman write a note and deliver it to the
bailiff. It is not proper to talk directly with the
Judge, attorneys, court officers, or other persons
involved in the case, even if the discussion has
nothing to do with the case.
During your deliberations, you must not
disclose the state of your deliberations to others
outside the jury room. Therefore, unless you
reach a verdict, do not disclose this
information, even in the courtroom.
If you wish to examine more closely the
Exhibits which have been admitted into
evidence while you are deliberating, please have
your foreperson write a note and give it to the
bailiff. The Exhibits will then
Trial Transcript dated 11/17/87 22
be given to you, and you may examine them in
the jury room.
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You will be given a verdict form to assist
you in your deliberations. A practice that is not
used throughout the system, one which I
practice, I give the instructions to the jurors.
Each one of you will have your own copy of the
instructions. Those instructions and your notes
should remain in the jury room any time you
leave the jury room.
These instructions, as you’re able to
read them, hopefully will give you an
opportunity to stand back and look at them in
a reasonable fashion.
We do have 13 jurors. As I indicated at
the commencement of this case, one juror will be
drawn off by lot.
Will both Counsel approach the Bench?
(Discussion at the Bench.)
THE COURT: I'll ask my Clerk, our Ms.
Brooks, to go and choose the juror at random.
THE CLERK: Juror 78, Ann Harold.
THE COURT: Would you-go into the
jury room, get your things and wait in my
Chambers and I'll speak to you briefly. Thank
you.
(Juror from seat number 4 excused.)
THE COURT: You may now go into the
jury room.
Trial Transcript Volume IV dated 11/12/87 96 -
QO Other than the statuette?
A _ That is correct.
Q___ The desk we saw in the video tape, that would be
this item?
A - ¥e.
Q __ This would be the side table?
A Yes.
Q This would be the couch where the hat was
located?
A Yes.
O The easy chair?
A Yes.
2) Now, in the video tape, there were recognizable as
almost three distinct pools of blood, would you
| agree with that?
A Yes.
@) Would it be true that he was found with his head
about in the position as the end of my finger, with
a larger pool of blood to his right?
A Yes.
QA trail of blood back to a pool of blood in this
corner?
A Yes.
Q__ Trail of blood back just outside the doorway to the
closet?
A Yes.
Q Is this the closet door that had the circular bloody
-82a-
-83a-
Trial Transcript Volume II dated 11/06/87 20
are taken. Then the autopsy is finally conducted.
Q
A
Q
> QO > >O>
OP>O?>O
Does the autopsy begin with an external
examination?
It does, indeed.
Now, Doctor, after you complete an autopsy, do
you prepare an autopsy report or autopsy
protocol?
Yes, I do.
And you have that with you; is that correct?
Yes, I do.
If, during your testimony, you feel the need to refer
to that, I just would ask you indicate you're
referring to your report.
Certainly.
With regard to the individual you did the autopsy
on November 7th at 10:30, Frank Peter Madsen,
can. you give, first of all, a general description of
the individual, that is as to size, age, weight, et
cetera?
Certainly. This was an average sized, perhaps
slightly above average stature, more or less average
weight, Caucasian male. He appeared the stated
age of 81 years. The bode was 70 inches long.
Seven, zero inches?
Seven, zero inches.
Five foot ten?
Yes.
Please continue.
Trial Transcript Volume II dated 11/06/87 21
A
Q
And the weight was 280 pounds. So you could
vacillate between whether this was the upper limits
of average or slightly obese.
And, any other general observations of the
individual before you began looking for wounds or
what-have-you?
Well, nothing other than this individual appeared
to be the senior age stated of 81 years. The hair
was thinning, there was graying, such things as
-84a-
that. But, other than the trauma which I presume
we'll talk about in a moment, there wasn’t anything
unusual.
Q Let's go to the unusual. Can you describe, first of
all, from your external investigation or
observations, the apparent wounds to the person
of Frank Peter Madsen?
A This man had, basically two aggregates of injury.
One group of injuries were blunt trauma, a blow
generated by a blunt object generating lacerations
of the scalp and the underlying soft tissues about
the left side of the head, about the left ear and over
the back of the skull.
Q = Okay. Did you, in your observations, make a --
count how many there were?
A It was my considered opinion that at least ten
blows were struck. There may have been others.
Okay. Can I assume from that, you saw at least
ten lacerations?
Trial Transcript Volume II dated 11/06/87 22
A Yes.
Q Would you describe what you mean by blunt force
lacerations?
A _ The skin had been pressed inwardly and the edges
pushed apart so that the skin margins were ragged,
they were toin rather than incised or cut. There
was bruising associated with these, opening of the
skin and hemorrhaging so that you would have to
conclude that these were injuries which were
created by an object which did not have
necessarily a particularly sharp surface. Therefore,
blunt. trauma.
Some sort of club: or blunt instrument?
Yes.
The blows were of sufficient force to cause the
skin to split?
Yes.
What were the depth of the injuries?
These were shallow wounds, although they
extended into the fatty tissues beneath the scalp.
>rO>F OF
ee Te ee eT |
Q
A
Q
-85a-
There was extensive underlying trauma. No
fracture of the skull or a significant bleeding
between the brain and the skull.
Was there bruising of the brain?
Yes, there was bruising of the brain, limited.
There were no fractures of the skull, no breaking of
Trial Trariscript Volume II dated 11/06/87 23
OPrO>
the bone?
No, no fractures.
Was there tissue damage down to the skull?
Yes.
Doctor, I have had this marked as People’s
Proposed Exhibit 1.
MR. SPIEKERMAN: I would ask Mr. Campbell if
he has any objection to its admission. If not, I’ll
move --
MR. CAMPBELL: (Interposing) We do not object.
We agree to its admission.
THE COURT: It is so admitted. Proposed Exhibit
what?
MR. SPIEKERMAN: One, Your Honor.
MR. CAMPBELL: We concede this was used by
my client to hit the Reverend Madsen and that she
stabbed him with that knife which we'll agree to
the admittance of now.
MR. SPIEKERMAN: Proposed Exhibit 2, I’ll move
for its admission.
THE COURT: Thank you.
(By Mr. Spiekerman): Let me hand you now,
Exhibit 1. I'll ask you if that implement is
consistent with the blunt trauma injuries that you
saw on or about the skull of Frank Peter Madsen?
Trial Transcript Volume II dated 11/06/87 24
A
Q
They could have been created with such an
instrument.
Thank you very much.
Now, Doctor, let me show you Proposed Exhibit
29 and 30. I'll ask, first of all, if you can identify
-86a-
those?
Yes this bears our case number and our autopsy
number concerning investigation of this deceased
individual.
Are they fair and accurate representations of the
head wounds you have described for us?
Yes.
MR. SPIEKERMAN: At this time, Your Honor, |
do move for their admission. I believe Mr.
Campbell has had the opportunity to see them. I'll
show them to him again, if he so desires.
THE COURT: Mr. Campbell?
MR. CAMPBELL: No objection.
THE COURT: Thank you.
MR. CAMPBELL: My objections were previously
made.
THE COURT: That exception is on the record.
Twenty-nine and thirty, with the exceptions, are
admitted on the record.
MR. SPIEKERMAN: With the Court's permission,
I'll give them to the jury.
THE COURT: Mr. Campbell?
Trial Transcript Volume II dated 11/06/87 25
QO>
MR. CAMPBELL: No objections.
THE COURT: Fine, thank you. They may be
moved among the jurors.
MR. SPIEKERMAN: I'll hand them to the first
juror and ask they pass them down. When you've
completed with them, set them here (indicating).
(Exhibits passed among the jurors.)
(by Mr. Spiekerman): Now, Dr. Brooks, let me
back up just a moment. In doing the external
observations do you categorize any jewelry the
deceased might be wearing?
Yes.
Tell us in regard to Dr. Madsen, what items he had
on him?
I believe I can. The jewelry consisted of a white
metal watch on his left wrist. White metal would
refer to the casing, the outer structure of the watch.
0}
-87a-
A white metal ring with a blue/green stone on the
fourth finger of the right hand and a yellow metal
lodge ring, in quotation marks, on the fourth finger
of the left hand. A yellow metal chain about the
neck.
That would be the jewelry he had on then, watch,
rings and yellow metal chain?
Yes.
Did you make conclusions as to whether these
were gold
Trial Transcript Volume II dated 11/06/87 26
A
>iO >
O > O>
or silver?
We don’t do that. I can't tell you whether these
were aluminum or 14 carat.
Doctor, let’s get back to the wound you observed.
In addition to the wounds about the head, were
there wounds about the face?
Yes.
Describe any injury to the face that you observed?
There were abrasive injuries across the bridge of
the nose and about the eye and toward the side of
the left cheek and jaw.
Okay. Now, Dr. Brooks, let me ask you this: The
abrasive injuries across the bridge of the nose,
could they be caused by a person’s glasses, such as
my glasses, being forced against the nose?
Yes.
Let me show you Proposed Exhibit Number 8 and
ask you, glasses such as these could cause such an
injury?
Yes.
Excuse me, that is Proposed Exhibit 5, I stand
corrected.
Yes, a pair of eye glasses such as this certainly
could create the injury as described.
You also stated, did you not, there were abrasions
to the cheek.
Yes.
Trial Transcript Volume II dated 11/06/87 27
QO >
-88a-
Let me ask you this, if someone were to fall
forward in this manner (indicating), striking their
face and head against the wall, would that be
consistent with the injuries that you saw?
Yes.
Continue, what other injuries did you see about the
person of Frank Madsen?
The other major area of trauma was a cluster of
stab wounds which were in an oval, roughly
circular but not quite, in a regular oval area,
situated between the upper portion of the left »*m
pit or axilla.
Let me ask you to continue. Use me for a model so
the jurors may see.
Very well. These wounds were clustered --
THE COURT: (Interposing) Can you see, Mr.
Campbell
MR. CAMPBELL: Yes.
THE WITNESS: In an oval area that lay between
the upper portion of the arm pit, the left axilla and
the later margin of the left shoulder blade. In here
(indicating). And they they occupied an area of
approximately this (indicating).
(By Mr. Spiekerman): Just for the record, would
you make that?
We’re looking at a ring of about --
Trial Transcript Volume II dated 11/06/87 28
A
O>0
(Interposing):- A circle five inches across?
Four and a half or five- inches. There were a
number of wounds in this area, some 32, 31, 32
such wounds were located in this area.
How would you describe such wounds?
Those were stab wounds. Puncture wounds.
Let me ask you if such wounds would be
consistent with the knife, having been made with
the knife such as Exhibit 2?
Yes, Our measurements of the wounds, we
attempted to average, indicated the weapon or
rO> OF
-89a-
instrument utilized was one which would create --
well, that had one sharp edge, one dull edge blade,
approximately 3/4 of an inch wide and capable of
inflicting a wound approximately five inches in
depth.
Is that knife consistent with that?
It is.
Doctor, can a knife inflict a wound deeper than the
length of its blade?
It can.
Explain that, please.
There are soft tissues which compress and collapse
underneath a thrust of an instrument or weapon
such as this Exhibit. Even the rib cage can fold or
be compressed to a degree. And the force of the
thrust
Trial Transcript Volume II dated 11/06/87 29
>O>
>O
and a number of other things therefore, would
govern a wound that plunged an inch or an inch
and a half deeper than the blade that created it.
In addition to the thirty wounds you found, were
any other stab wounds located on the person of
Dr. Madsen?
Yes, there were.
Where were they?
There were, | believe three other isolated stab
wound entitles, two in the right posterior shoulder
area and one in the left deltoid area.
Demonstrate on your person.
There were two in this area of the right back
(indicating), and one in the left arm, about this
area (indicating). None of these were of any
consequence, they didn’t penetrate the body
cavity.
Were there any marks alongside this area of stab
wounds indicating where the knife -- the major
portion of the body and sliced along the rib cage?
Some of the wounds were deflective, they did
penetrate soft tissue. Not all of the wounds
penetrated the thorascic cavity, only a few of
-90a-
them.
Q_ Any other wounds that you recall on or about -- I forgot
A
to ask, did he have wounds on the front of him?
Yes, there were some scratches across the anterior
chest, scratches, abrasive lacerations, if you will.
One
Trial Transcript Volume II dated 11/06/87 30
linear scratch across the front of the chest on the left,
D> 0 & DH FOPO
about four inches in length. Could have been
caused by anything. I have no idea. There were
some abrasive scratches and contusive or bruised
lesions over the back of the right hand, over the
knuckles.
The knuckles had been scraped?
Yes.
Scraped ~against a wall?
More than scraped, there was underlying soft
tissue bruising and bleeding.
They encountered something hard; is that what
you re saying?
Yes, one would presume some degree of force was
enacted in the creating of these scrapes.
Consistent with being struck with an object such as
Exhibit 1?
Yes, or with a wall or a floor or almost anything.
Just to be complete before we go to the internal
examination, is there anything else you recall or is
that it?
That is, in the main, everything of consequence, sir.
After you make the external observations of the
injuries, what do you do next?
A Once we have this photographed and documented and
described, we open the body in a conventional
manner,
Trial Transcript Volume II dated 11/06/87 31
a surgical procedure, and we expose the body
cavities and we take the organs out one at a time
and look at them to see if we can reconstruct either
>O >
Oro
-9la-
disease process or trauma or whatever occurred.
And we try to document this and insofar as
possible.
Now, Doctor, given the fact the Reverend or Dr.
Madsen was 81 years old, did you see any natural
occurring disease processes occurring in the body?
Well, yes.
Tell us about those, please?
He had arteriosclerotic vascular disease, hardening
of the arteries which was in keeping with his age. I
found nothing accelerated, neither did I find them
unusual for a man of 81 years old.
Do you recall anything else that you found?
No, nothing of consequence, other than the trauma.
Tell me, this would -- did you or would you be able
to find any evidence as to whether or not Reverend
Madsen was a diabetic?
This is extremely difficult on the basis of both
anatomic and chemical or clinical pathologic assay
in a body such as we have to work with in this
instance. All kinds of things happen to blood
glucose after death and that is what you utilize
fundamentally, for a basis of diabetes, is the level
of blood sugar at
Trial Transcript Volume II dated 11/06/87 32
>O
the point in time, if you know the history. I would
say it would be extremely difficult to ascertain
whether this man was or was not a diabetic or how
severe it might have been.
Did you see any past scars on the body that would
indicate any previous surgical history, if you
recall?
I don’t believe I did. I don’t believe we recorded
any. Yes, we did.
Okay.
Referring to my notes, there is a right upper
quadrant subcostal scar utilized in the surgical
approach to the gall bladder which would be here
(indicating). Just under the rib cage on the right
side.
QO >
-92a-
Were there any other prominent marks or scars or
masses on the body?
No.
Would you continue with your internal
examination with regard to the injuries that Dr.
Madsen suffered? What was revealed to you by
your examination?
Well, a number of the stab wounds trom the left
back had penetrated the upper portion of the
thorax and the instrument creating these wounds
had penetrated the thorasic cavity on the left.
Several of the thrusts had perforated the lung
which allowed two things to happen, blood to
exude and air to exude.
Trial Transcript Volume II dated 11/06/87 33
>
DO>O> OY VO
Hemopneumothorax developed on the left side of
the chest. Hemo is blood, pneumo is air. The
combination filled the cavity and collapsed the left
lung.
von testified to over thirty stab wounds to the
back. Do you have an estimation of how many of
them actually penetrated into the lung?
Well, that is very difficult. Inasmuch as these
wounds had become confluent.
What does that mean?
They had merged together. Two or three wounds
had sort of merged to created one penetration. So
an exact estimate was rather difficult. On the
basis of the number of times the lung was
penetrated, this would be three to five times.
How many actually penetrated into the thorascic
cavity there, how many got through the rib cage?
I have no idea.
It would obviously have to be more than three to
five.
Yes.
Do you have any idea how many more?
Eight, perhaps, more or less.
Now, to penetrate the cavity, the knife wound had
to go between the ribs; is that correct?
A
-93a-
Some of them went between the ribs. So some of
them damaged ribs on the way through.
Trial Transcript Volume II dated 11/06/87 34
> OFOD FO
OPO
Actually clipped the ribs?
Incised rib tissue. The bone is surprisingly soft, it
will cut.
This is a rather large portion of the ribs back here.
Yes.
What are the gaps between them? Can you
describe that portion?
The intercostal spaces vary up and down the rib
cage. In this area it is about, well, a little less than
a half an inch apart.
The ribs themselves, how wide are they?
About the same distance.
Any -- did your internal investigation illuminate
anything with regard to the wounds about the head
or the face?
A The wounds about the head and face, I did not construe
rO?>O
to be lethal inasmuch as there was no blood
between the brain and the skull nor was there a
fracture. Therefore, although they might have -- I
don't know, this is speculation, they might have
rendered the deceased unconscious from bruising
of the brain.
There was bruising of the brain; is that correct?
Yes, there was.
In how many areas?
A small area directly underneath the majority of
the trauma which was in the left temple area and a
small
Trial Transcript Volume II dated 11/06/87 35
area on the opposite side on the right which was a
bouncing, if you will, of the brain back and forth in
the bony cavity of the skull.
Doctor based on your examination, did you form
opinions as to which series of injuries occurred
first, the blows to the head or the stab wounds?
rO?rOr OF DO YF HN P
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No, I didn’t draw that conclusion. I could
speculate, but...
I would ask you, based on your expertise, to
speculate.
I would think this man was struck about the head
and face prior to the infliction of the stab wounds.
Is that because the stab wounds, in your opinion,
are the death dealing wounds?
Yes.
So, when struck in the head, there was still
bruising, bleeding?
Yes.
The heart was still pumping.
Yes.
That is your opinion as to the cause of death?
This man died as a result of stab wounds to the
left thorax. The stab wounds caused the
hemorrhage -- the blood and air to escape between
the lungs and chest wall causing the collapse of the
left lung and thereupon created a lethal situation.
Trial Transcript Volume II dated 11/06/87 36
Q
O -rO>
>rO> OP
Doctor, let me ask this: Do you do blood scans
per autopsy with the intent of determining whether
there was drugs or alcohol present in the blood at
the time of death?
Yes.
What was the result?
Nothing, no alcohol, no unusual substances in the
blood.
Did you, based on your full investigation that
included photographs, history, et cetera, in
addition to your inspection of the body; is that
correct?
Yes.
Did you, based on your full investigation, make an
estimation as to the time of death?
Yes.
What was that?
The best we could do was the p.m., the evening
hours of November the 5th, ‘86.
DO > OF
-95a-
Doctor, let me once again hand you Exhibit 1. It is
not all that heavy; is that correct?
No.
Would it be possible to fracture a skull with an
implement such as that?
I think it would be possible, I think it would be
difficult.
Okay.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.