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State v. Muhammad
Supreme Court of Wisconsin
1968
The Defendant has appealed his rape conviction to the Wisconsin Supreme Court on the grounds of insufficient evidence. There are two versions of events presented: one made by the twenty-two-year-old female, complaining witness, and the other by the male Defendant.
According to the plaintiff's version of the facts, while they were in a pub, the defendant asked if he could go to the plaintiff's apartment and the plaintiff agreed. The defendant then proceeded to prepare and smoke marijuana. The alleged attack took place between 6 and 7 in the morning at the complainant's house.
She testified, at the time, she was scared and afraid because he was going to hit her, and she cried and yelled loud enough.
After they were dressed after the intercourse, he said that he had done wrong. And he asked her to promise not to tell her boyfriend or the police. Then, he left the apartment at about 8:50 am.
On the other hand, the defendant's version of the fact is that, at the pub, she had invited him to her apartment to smoke some marijuana. They made love at about 3:45 and he left her apartment about 4:45 am.
After making love with her in the apartment, he spat in her face three times, called her names several times, and threatened to tell her boyfriend and others about the preceding events.
The only issue was whether the admitted intercourse between the defendant was against her will.
Sec. 944.01 (2), Stats., provides:
'By force and against her will' means either that her utmost resistance is overcome by physical violence, or the resistance is prevented by threats.
In McLain, the term "utmost resistance" is a relative rather than a positive term. What would be "utmost resistance" on a weak and nervous person might be the veriest sham on a robust person in good health. 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.
"Utmost resistance" is measured by a subjective test and the law recognizes useless or impossible resistance.”
The jury rejected the defendant’s testimony and adopted the complainant’s testimony. Accordingly, by the aforementioned Wisconsin standard, the court examined the complainant’s testimony to see if it is a proper degree of resistance.
First, as to the complainant's health and physical strength, there is nothing in the record to indicate that she was anything but normal.
Furthermore, the complainant was a woman of considerable experience. It was proved by her own testimony. The law recognizes that a woman of previous unchaste character is more likely to consent to an act of sexual intercourse.
The fact that she went to the bar and permitted the defendant to come to her apartment at 2:30 and smoke marijuana. She certainly was not "mild, timid, socially inexperienced".
The record does not establish that the complaining witness was lacking in courage. Not only was she courageous enough to invite the defendant to her apartment at such an hour, but she claims to have kicked, struggled, and yelled, and to have told the defendant to leave her alone. There’s no indication that she was so intimidated that she was unable to resist.
The evidence does not show that complainant was hysterical or in a highly emotional state during and following the alleged attack. Although she testified that she was crying and was afraid, her testimony also indicates that she was reasonably well aware of most everything that was going on around her.
She remembers the time of the event, her attempt to call the police, the precise language that the defendant allegedly spoke, and the detailed account of the moments just preceding penetration.
The Hoffman case described the type of fear rendering one incapable of resistance:
"The fear" which renders the utmost resistance unnecessary is a "fear of death or great bodily harm," a fear which renders her mind well-nigh incapable of continuing her resistance.
The Hoffman court stated:
". . . From the testimony of the complaining witness, it appears that she was fully cognizant of everything that was going on, fully able to relate every detail thereof, and that she was in no reasonable sense dominated by that fear which excused the 'utmost resistance."
Certain parts of the complainant's testimony are incredible.
She stated that she was threatened with a brandy bottle, but none was seen by any other witness, and none was produced.
The fact that two sat on the floor and just talked for two and a half hours is implausible.
No clothes were torn or buttons broken.
She yelled and cried out, but no screams or noises were heard by the residents of the apartments, even though these residents had been awakened.
Also, her bedroom struggle testimony appears to contain some inconsistencies.
She stated,
She started walking away from him, but he was blocking the door, and he came up from behind and put his arm around her neck.
It is difficult to understand how the defendant could be both in front and behind the complainant at the same time.
In conclusion, the evidence is insufficient to sustain the conviction, that no jury could find the defendant guilty of this charge beyond a reasonable doubt.
The Doctor’s testimony.
Crosby, the complainant’s physician, stated that he found a tear in the mucous membrane of the introitus.
When a woman is sexually excited, she secretes a lubricant. Intercourse without lubrication could result in pain and tear of the mucous membrane. However, the injury does not point conclusively to rape.
Staudenmaier testified that the tear would not indicate that the complainant must have been raped.
Spindler testified that, together with his finger examples, he explained that forcing any instrument in there without lubrication could easily result in pain and tear in the mucous membrane.
Even though the expert's opinion was not exactly requested with a reasonable degree of medical standard, it did not render a prejudicial effect on the jury.
The defendant relied on Noonan, to support his argument that the question and the answer of the doctor were improper and prejudicial.
In that case, the expert witness went far beyond the range of authorized expert testimony, depriving the province of the jury; the doctor testified that the inflammation he discovered was produced by rape.
However, this case is distinguishable, the doctor did not say that the tear was caused by the rape. The implication is that normal relations could not cause the tear, although he did not say this specifically.
Dissent
Both jury and judge found the prosecutrix's testimony credible in that the act of intercourse was against her will.
However, the majority of this court is not impressed by the testimony of the prosecutrix.
for example: "She stated that she was threatened with a brandy bottle.
The majority refused this fact just because there was no witness, or any evidence was produced.
This court finds "incredible" testimony that both the jury and trial judge found credible.
The jury and trial judge who saw and heard the witnesses are in a better position to determine the credibility and weight of evidence than the court which has merely read the transcript of the trial.
At the trial, when the doctor, an osteopath, appearing for the prosecution, was asked about the tear of the mucous membrane.
The majority argues that the questions did not "inadequately phrased" nor met the standard of accuracy.
The trial court erred in overruling this objection.
Because of the significance of the impact of the doctor's testimony in the case, this error should entitle to a reversible error.
(The trial court's decision to allow the medical witness to give an opinion in a different area of expertise than his primary one is deemed free of errors. This is because every doctor who completes medical school has a broad knowledge base.)
If a new trial is ordered, it would eliminate a factor that may have negatively impacted the credibility of the defendant's testimony.
Here, both the prosecutrix and defendant were reprimanded for smoking the illegal cigarette. In midway, only the defendant changed his plea on the marijuana charge from not guilty to guilty. This guilty plea probably caused the jury to disbelieve the defendant.
If the new trial is allowed, removing this midway change would be unjust since credibility is the primary issue in this situation.
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