Opinion
No. 55243
March 28, 2000
APPEAL FROM: THE CIRCUIT COURT OF CALDWELL COUNTY, HONORABLE STEPHEN K. GRIFFIN, JUDGE.
Sean O'Brien, Kansas City, Missouri, for appellant[s].
Shaun Mackelprang, Assistant Attorney General, Jefferson City, Missouri, for respondent[s].
On July 24, 1996, Larna Edwards shot her husband, Bill Edwards, four times with a .38 caliber handgun. Mr. Edwards died from the wounds he received. As a result, the Caldwell County Prosecuting Attorney charged Mrs. Edwards by information with murder in the second degree, § 565.021.1(1).
All statutory references are to RSMo (1994) unless otherwise noted.
Prior to trial, Mrs. Edwards' defense counsel filed a written notice with the court, as required by § 563.033.2, advising that he intended to offer evidence of the battered spouse syndrome. As a result, extensive evidence about battered spouse syndrome in general, as well as its applicability to and impact on Mrs. Edwards in particular, was presented at trial. Moreover, Mrs. Edwards testified in her own defense. This evidence reveals the following.
Section 563.033, in its entirety, provides:
1. Evidence that the actor was suffering from the battered spouse syndrome shall be admissible upon the issue of whether the actor lawfully acted in self-defense or defense of another.
2. If the defendant proposes to offer evidence of the battered spouse syndrome, he shall file written notice thereof with the court in advance of trial. Thereafter, the court, upon motion of the state, shall appoint one or more private psychiatrists or psychologists, as defined in section 632.005, RSMo, or physicians with a minimum of one year training or experience in providing treatment or services to mentally retarded or mentally ill individuals, who are neither employees nor contractors of the department of mental health for the purposes of performing the examination in question, to examine the accused, or shall direct the director of the department of mental health, or his designee, to have the accused so examined by one or more psychiatrists or psychologists, as defined in section 632.005, RSMo, or physicians with a minimum of one year training or experience in providing treatment or services to mentally retarded or mentally ill individuals designated by the director, or his designee, for the purpose of examining the defendant. No private psychiatrist, psychologist, or physician shall be appointed by the court unless he has consented to act. The examinations ordered shall be made at such time and place and under such conditions as the court deems proper; except that if the order directs the director of the department of mental health to have the accused examined, the director, or his designee, shall determine the reasonable time, place and conditions under which the examination shall be conducted. The order may include provisions for the interview of witnesses.
3. No statement made by the accused in the course of any such examination and no information received by any physician or other person in the course thereof, whether such examination was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding then or thereafter pending in any court, state or federal.
Mrs. Edwards dropped out of school to elope with Bill Edwards in 1953, when she was sixteen years old. The marriage produced a daughter and two sons. Mr. Edwards began verbally and physically abusing Mrs. Edwards from the first day of their marriage, often hitting her with his fist, the back of his hand, pieces of furniture, kicking her, or pulling out her hair. He frequently threatened to kill her and their children, and told her that he would track her down and kill her if she tried to run away. He frequently struck the children with either his fists or a belt, held them by the hair and kicked them, and on one occasion kicked their oldest son down a flight of stairs. When Mrs. Edwards was pregnant with their fourth child, Bill struck her in the stomach, causing a miscarriage. Mrs. Edwards left Bill on two occasions, only to return to the family home when he promised that the beatings would not happen again. However, she testified that this "honeymoon" period only lasted two or three days. In 1966, when their daughter Jackie was approximately thirteen years old, Bill held a gun to her head and forced her to have sexual intercourse with him repeatedly, and threatened to kill her if she did not comply or told anyone.
Mrs. Edwards was 61 years old at the time of this incident.
Mrs. Edwards also stated that she returned because Bill controlled all of the family's finances and she had no money with which to live on her own. She told Dr. Marilyn Hutchinson, a psychologist, that Bill kept all of their money in cash, either in a safe or on his person. They did not have a checking account. Mrs. Edwards testified that she stole money from the store to buy her medication because Bill would not give her money for it.
Jackie reported the abuse to her family physician, who referred her to a Clay County social worker. Jackie was temporarily placed in a foster home, but later was returned to the Edwards home.
During the 1960's, Mr. and Mrs. Edwards ran a liquor store in Claycomo, Missouri. Mrs. Edwards also earned a realtor's license. Subsequently, the Edwards were proprietors of The Country Store, a convenience store in Kingston, Missouri. Co-workers, customers, family members and acquaintances testified at trial that they often saw Mrs. Edwards with bruises on her face and arms and black eyes, and an employee of the store testified that he witnessed Bill screaming and swearing at Mrs. Edwards at the store. On one occasion in early 1996, Mrs. Edwards sought help from the Caldwell County Sheriff. Wayne Adkison testified that Mrs. Edwards came to his office to report her husband's violent behavior. At that time, he observed bruises on both of Mrs. Edwards' arms. However, Adkison did not make a report and did not follow up on the complaint. Adkison also testified that he had been contacted by the Edwards' daughter, Jackie about domestic violence in the home and her fear for her mother's safety, at some time in the past, but had made no report.
On July 23, 1996, Mr. and Mrs. Edwards went to a car dealership in Kansas City, Kansas, and entered into an agreement to purchase a truck. As they were driving home, Bill began to argue about the purchase, and the argument continued after they arrived at home, when Bill pushed Mrs. Edwards and struck her with a hard object. Mrs. Edwards then went to bed, where she testified she remained awake all night for fear Bill would kill her in her sleep. She testified that it was her custom to either just sit quietly and not speak, trying not to incite him, or to just go to bed, although she was afraid to go to sleep during such episodes because he would frequently attack her while she was sleeping. Mrs. Edwards testified that she had experienced the same fear innumerable times during the course of her marriage.
On July 24, 1996, at about 6:15 a.m., Bill again struck Mrs. Edwards, stopping her wristwatch and knocking off her glasses. Subsequently, Mrs. Edwards made breakfast for her husband, and they both went to work at the store. Once they arrived at work, Bill continued the argument about the truck, and struck a severe blow to Mrs. Edwards' arm as she raised it in front of her face, possibly with a length of lead pipe, causing her to think her arm might be broken. She testified that it was more painful than any of his prior blows, and judging by the look in Bill's eyes and her past experience, she felt certain that he would try to kill her. Mrs. Edwards testified that Bill's habit was to stare at her continuously just before an attack. Of that morning, she testified, "I knew one of us was not going to walk out of that store." She picked up a .38 caliber handgun which was kept under the front counter in the store for security. At that moment, Bill yelled, "You goddamn son of a bitch" at which point Mrs. Edwards shot him four times from a distance of about five feet. Bill was fatally wounded by the shots, which struck him in the head, upper arm, and back.
In addition to the foregoing, expert testimony was presented. Dr. Gerald Roderick testified that he treated Mrs. Edwards over a period of many years for stress anxiety. He personally observed that Mrs. Edwards was completely dominated by Bill. He observed bruises and black eyes on Mrs. Edwards frequently, but she would not seek treatment for such injuries, telling him "I can't go to the doctor for that. It would be on the record." Dr. Roderick recommended that she leave Bill, but quoted Mrs. Edwards as saying, "If I ever leave him, he will kill me." Dr. Roderick also treated the Edwards' daughter, Jackie. At about age 14, Jackie went to his office and told him she wouldn't go home, that Bill forced her to have sex, and that she would not do it any more.
Dr. John Howell, a psychologist at Northwood Psychiatric Services, testified that he diagnosed Mrs. Edwards as suffering from physical abuse of adult victim, chronic posttraumatic stress disorder, and dissociative disorder. He stated that in his opinion, at the time of the shooting, Mrs. Edwards believed herself to be in imminent danger. Dr. Howell testified that "in her mind she saw a pattern of behavior on the part of her husband, which in sum, threatened serious injury or death."
Dr. Marilyn Hutchinson, a psychologist specializing in treating trauma victims, particularly women, evaluated Mrs. Edwards through the use of interviews and psychological testing. She diagnosed Mrs. Edwards as suffering from post-traumatic stress disorder and dependent personality disorder, and testified that she exhibited battered spouse syndrome. Dr. Hutchinson testified that the cycle of violence and learned helplessness characterized by the Edwards' relationship is a well-established pattern of the syndrome. Moreover, Dr. Hutchinson testified that the effects of posttraumatic stress disorder alter an individual's perception of the threat of harm. The individual feels, due to a stimulus occurring in the present, emotions from past events that threatened him/her. It causes hypervigilance, and quick responses. Repeated incidents of violence rise to the level of being unbearable over time. When the violence reaches a new plateau, the battered individual's response is that it is unbearable and they can't stand one more incident.
As noted, supra, Mrs. Edwards was charged by information with murder in the second degree. On October 24, 1997, a jury found her guilty of the lesser offense of voluntary manslaughter, § 565.023.1(1). Mrs. Edwards' Motion for New Trial was subsequently denied, and on December 8, 1997 she was sentenced to five years in the Missouri Department of Corrections. This appeal followed.
Mrs. Edwards brings five points of error on appeal. In her first point, which is dispositive, she argues dual, but mutually consistent, claims of instructional error. First, she contends the trial court erred, and as a result she was deprived of her right to a fair trial, when the court refused to submit her proffered jury instructions "A," "D" and "E," all relating to the "battered spouse syndrome," after the jury had heard evidence from defense experts that she suffered from the syndrome. Second, Mrs. Edwards contends the trial court erred in giving, over her objection, Instruction No. 7, which was a modified version of MAI-CR 3d 306.06 submitting self-defense, because Instruction No. 7 improperly addressed the effect of battered spouse syndrome as it relates to self-defense and thereby misguided and misled the jury.
Over the last twenty or so years, battered spouse syndrome has gained substantial scientific acceptance and has been recognized in numerous jurisdictions. See State v. Koss , 551 N.E.2d 970 (Ohio 1990); Commonwealth v. Rose , 725 S.W.2d 588 (Tenn. 1987); Burhrle v. State , 627 P.2d 1374 (Wyo. 1981); State v. Williams , 787 S.W.2d 308 (Mo.App.E.D. 1990); State v. Moore , 695 P.2d 985 (Or.App. 1985); Ibn-Tamas v. U.S. , 407 A.2d 626 (D.C.App. 1979). The syndrome is a post-traumatic stress disorder which manifests in a collection of symptoms including a highly fearful state, isolation, withdrawal, and a heightened sensitivity to situations which precede violence and to increasing violence. State v. Hodges , 239 Kan. 63, 66, 716 P.2d 563, 566 (Kan. 1986). The victim rarely discusses the situation with anyone due to a feeling that there is nothing that can be done. Id . The battered spouse attempts to minimize the violence and to live for any positive aspects of the relationship. Id . Victims exhibit a "learned helplessness" in which repeated trauma causes the victim to learn that she has no control and cannot escape, and she therefore stops trying, even when an opportunity to do so is present. Id .; Williams , 787 S.W.2d at 312.
Several factors were common to all cases. First each woman stated that she was convinced the batterer was going to kill her. Violent assaults had taken place previously in all of these cases. In the final incident, however, something different was noted by these women which convinced them that the batterer really was going to kill them this time.
Williams , 787 S.W.2d at 312 ( quoting Lenore Walker, The Battered Woman 220 (1979).
While evidence of the battered spouse syndrome is not a defense to a murder charge, its function is to aid the jury in determining whether a defendant's fear and claim of self-defense are reasonable. State v. Borelli , 629 A.2d 1105, 1112 (Conn. 1993); Dyer v. Commonwealth , 816 S.W.2d 647, 654 (Ky. 1991) ( overruled on other grounds by Baker v. Commonwealth , 973 S.W.2d 54 (Ky. 1998)); Hodges , 239 Kan. at 73, 716 P.2d at 570; State. v. Leidholm , 334 N.W.2d 811, 820 (N.D. 1983); People v. Gomez , 85 Cal.Rptr.2d 101, 108 (Cal.Ct.App. 1999). The battering relationship is otherwise beyond the understanding of the average juror. Hodges , 239 Kan. at 63, 716 P.2d at 564. It is difficult for a lay person to understand why a battered spouse does not escape the situation or notify the police. Id . at 566. A lay person may perceive that a battered woman is free to leave the spouse at any time. Id . Indeed, a juror may otherwise conclude by "common sense" that if the abuse were so bad the woman would have left the relationship. Id .
[T]here is no easy answer to why battered women stay with their abusive husbands. Quite likely emotional and financial dependency and fear are the primary reasons for remaining in the household. They feel incapable of reaching out for help and justifiably fear reprisals from their angry husbands if they leave or call the police. The abuse is so severe, for so long a time, and the threat of great bodily harm so constant, it creates a standard mental attitude in its victims. Battered women are terror-stricken people whose mental state is distorted and bears a marked resemblance to that of a hostage or a prisoner of war. The horrible beatings they are subjected to brainwash them into believing there is nothing they can do. They live in constant fear of another eruption of violence.
Id. at 567.
The "battered spouse syndrome" is recognized by statute in Missouri. § 563.033. Evidence of battered spouse syndrome is admissible in Missouri on the issue of self-defense because it explains what might otherwise be inexplicable — why the defendant chose to use deadly force in a situation where a reasonable person would simply leave the relationship. State v. Pisciotta , 968 S.W.2d 185, 189 (Mo.App.W.D. 1998).
Based on the evidence presented at trial, particularly the expert testimony, supra, defense counsel proffered jury instructions "A," "D" and "E," contending they were authorized by § 563.033 in order to instruct the jury on the application of the legal concepts and principles pertaining to battered spouse syndrome. The instructions read:
Instruction No. A
The defendant has presented the expert testimony of Dr. Marilyn Hutchinson. The purpose of this testimony is to assist you in understanding behavior and perceptions of the defendant and her state of mind at the time of the incident. You may consider the testimony about the affects [sic] of battering on women generally, as well as affects [sic] of battering upon the defendant specifically.
You may also consider the expert testimony in evaluating both parts of the self-defense test, that is, whether the defendant believed that she was in imminent danger of death or serious physical injury, and whether that belief was reasonable.
You may consider how the defendant's experience as a battered woman may have affected her perceptions of danger, how imminent defendant perceived that danger to be, and what the defendant believed she had to do to protect herself.
You may also consider the expert testimony in deciding whether the defendant's belief was reasonable, that is, whether, in light of the defendant's experiences as a battered woman, as Dr. Marilyn Hutchinson testified, a person in the circumstances and from the viewpoint of the defendant would have reasonably believed that she was in imminent danger.
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Instruction No. D.
The defendant has presented evidence that she was psychologically and physically abused by the decedent. You should consider this evidence of the history of abuse and its cumulative affects [sic] in determining whether the defendant had a reasonable belief that she was in imminent danger of death or serious bodily injury at the time of the incident.
You should weigh her actions in light of how a reasonable person in her circumstances would have perceived and reacted to the abuse and threats.
In making this determination, the law requires you to consider the conditions as they appeared to the defendant, taking into consideration all facts and circumstances known to her at the time of or prior to the incident.
In making this determination you should also consider the expert testimony of Dr. Marilyn Hutchinson, the purpose of this testimony is to assist you in understanding the behavior and perceptions of the defendant.
You may also consider the expert testimony on the issue [sic] defendant's state of mind, particularly in assessing her state of belief, that the use of deadly force was necessary to protect her from imminent death or serious bodily injury, and whether under all of the facts and circumstances that belief was reasonable.
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Instruction No. E
On the issue of self-defense in this case, you are instructed as follows:
If the defendant reasonably believed she was in imminent danger of death or serious physical injury from the acts of Bill Edwards, and she reasonably believed the use of deadly force was necessary to defend herself, then she acted in lawful self-defense.
The state has a burden of proving beyond a reasonable doubt, that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty.
As used in this instruction, the term "serious physical injuries" means physical injury that creates a substantial risk of death or that causes serious disfigurement of [sic] protracted loss or impairment of [sic] disfunction of any part of the body.
In making this determination, you should also consider the expert testimony of Dr. Marilyn Hutchinson, the purpose of this testimony is to assist you in understanding the behavior and perceptions of the defendant. You may also consider the expert testimony on the issue of the defendant' [sic] state of mind, particularly in assessing her state of belief, that the use of deadly force was necessary to protect her from imminent death or serious bodily injury, and whether under all of the facts and circumstances that belief was reasonable.
* * *
All three of the proposed defense instructions were rejected by the trial court. The trial court also rejected the state's proffered self defense instruction, which apparently was in the form of MAI-CR3d 306.06 without modification.
Nevertheless, recognizing the applicability of the battered spouse syndrome to the case, the court on its own motion prepared and gave, over defendant's objection, Instruction No. 7, which was a modified version of the MAI-CR3d 306.06 self-defense instruction. Instruction No. 7 provided:
Instruction No. 7 in the legal file recites that it is "MAI-CR 3d 306.06 Modified (Submitted by Defendant )" (emphasis added). The transcript of the Instruction Conference confuses the issue further because the judge states: "Instruction Number 7 is the self defense instruction, 306.06. It indicates it is Plaintiff prepared but probably more accurate would be the Court's submission on that. " (Emphasis added). Mr. Hensley (the Prosecutor) then responds to the Judge's comments, "Correct." Shortly thereafter, the following colloquy occurs:
THE COURT: Does the defendant have any objections to any of those? (Instructions the court had just announced it would give).
MR. MCFADIN (Defense Counsel): As a matter of record, we object to any and all instructions given by the State.
THE COURT: What about the one given by the Court? (emphasis added).
MS. MCFADIN (co-counsel for defendant): We do object. . . .
Thus, a careful review of the record makes clear that Instruction No. 7 was the court's submission.
One of the issues in this case is whether the use of force by the defendant against Bill Edwards was in self-defense. In this state, the use of force (including the use of deadly force) to protect oneself from harm is lawful in certain situations.
In order for a person lawfully to use force in self-defense, she must reasonably believe she is in imminent danger of harm from the other person. She need not be in actual danger, but she must have a reasonable belief she is in such danger.
If she has such a belief, she is then permitted to use that amount of force which she reasonably believes to be necessary to protect herself.
But a person is not permitted to use deadly force, that is, force which she knows will create a substantial risk of causing death of serious physical injury, unless she reasonably believes she is in imminent danger of death or serious physical injury.
And, even then, a person may use deadly force only if she reasonably believes the use of such force is necessary to protect herself.
As used in this instruction, the term "reasonable belief" means a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.
On the issue of self-defense in this case, you are instructed as follows:
If the defendant reasonably believed she was in imminent danger of death or serious physical injury from the acts of Bill Edwards, and she reasonably believed that the use of deadly force was necessary to defend herself, then she acted in lawful self-defense.
The State has a burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense, you must find the defendant not guilty.
As used in this instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.
Evidence has been introduced of the prior relationship between defendant and Bill Edwards, including evidence of acts of violence and that defendant was suffering from Battered Spouse's Syndrome. You may consider this evidence in determining who was the initial aggressor in the encounter, and you may also consider it in determining whether defendant who was suffering from Battered Spouse's Syndrome reasonably believed she was in imminent danger of harm from Bill Edwards.
Evidence has been introduced of acts of violence involving the defendant committed by Bill Edwards, and that the defendant was aware of these acts. You may consider this evidence in determining whether the defendant reasonably believed she was in imminent danger of harm from Bill Edwards. You may not consider this evidence in determining who was the initial aggressor in the encounter or for any other reason.
If any threats against defendant were made by Bill Edwards, and were known by or had been communicated to the defendant, you may consider such in determining whether defendant reasonably believed she was in imminent danger of harm from Bill Edwards.
You, however, should consider all the evidence in the case in determining whether the defendant acted in lawful self-defense (emphasis added).
We first address Mrs. Edwards' contention that the trial court erred in refusing to submit her proffered instructions designated "A," "D," and "E," none of which were in MAI-CR3d. Each of the proposed instructions directed the jury to specifically consider the testimony of Dr. Marilyn Hutchinson and the purpose or effect of her testimony. Rule 28.02(d) provides that non MAI-CR instructions "shall be simple, brief, impartial, and free from argument." We perceive that by specifically directing the jury's attention to Dr. Hutchinson's testimony, the instructions lacked impartiality by creating an inference that her testimony was more significant than other evidence, and as such generally violated Rule 28.02(d). Also, the instructions defy the well-established principle that an instruction should not unduly direct attention to the credibility of a single witness or the manner in which the testimony should be received. State v. Leisure , 810 S.W.2d 560, 574-75 (Mo.App.E.D. 1991); State v. Everett , 448 S.W.2d 873, 878 (Mo. 1970).
More importantly, however, MAI-CR3d 302.01 was given, as required by Rule 27.02(e). It is well settled that MAI-CR3d 302.01 is the only instruction to be given on the weight and value of the evidence and the believability of witnesses. State v. Briscoe , 913 S.W.2d 812, 816 (Mo.App.W.D. 1995); State v. Gilmore , 797 S.W.2d 802, 809-10 (Mo.App.W.D. 1990; Williams v. State , 712 S.W.2d 404, 407 (Mo.App.W.D. 1986) (relating to the predecessor of MAI-CR3d 302.01, MAI-CR2d 2.01). Indeed, the Notes on Use following MAI-CR3d 302.01 specifically direct that except as may be otherwise provided, no other or additional instruction may be given on the believability of witnesses, or the effect, weight or value of their testimony. All three proffered instructions, by directing the jury's attention to the testimony of Dr. Hutchinson and its purpose, constituted an improper attempt to instruct the jury expressly on the effect of her testimony, and indirectly as to the weight and value thereof. Accordingly, the trial court did not err in refusing to submit Larna's Instructions "A," "D," and "E."
We turn next to the trial court's giving of Instruction No. 7 on self defense over Mrs. Edwards' objection. Self defense is a person's right to defend himself or herself against attack. State v. Chambers , 671 S.W.2d 781, 783 (Mo.banc 1984). The right is codified in § 563.031. Four elements generally must be present to permit the use of deadly force in self defense: (1) an absence of provocation or aggression on the part of the defender; (2) a reasonable belief that deadly force is necessary to protect himself or herself against an immediate danger of death, serious physical injury, rape, sodomy, or kidnapping or serious physical injury through robbery, burglary or arson; (3) a reasonable cause for that belief; and (4) an attempt by the defender to do all within his or her power consistent with his or her own personal safety to avoid the danger and the need to take a life. § 563.031 ; State v. Chambers , 671 S.W.2d at 783. Element (3), the reasonable cause for the belief that deadly force is necessary, is viewed as the circumstances appeared to the defendant. State v. Grier , 609 S.W.2d 201, 207 n. 2 (Mo.App.W.D. 1980). The reasonableness of the belief itself, element (2), however, is an objective test. Id . The objective standard measures conduct based on how the hypothetical reasonable and prudent person would have acted. State v. Epperson , 571 S.W.2d 260, 265 (Mo.banc 1978); Hartland Computer Leasing Corp., Inc. v. Insurance Man, Inc. , 770 S.W.2d 525, 527-28 (Mo.App.E.D. 1989). Thus, as to element two, the question is whether the facts available to the defendant at the moment deadly force is used would warrant a hypothetical reasonable and prudent person in the belief that it is necessary to kill in order to save himself or herself from an immediate danger of serious bodily injury or death.
Instruction No. 7 was a modification of MAI-CR3d 306.06. Rule 28.02(d) provides for modification of an existing MAI. The test of any modified MAI instruction is whether it follows substantive law, and can readily be understood by the jury. Smith v. Kovac , 927 S.W.2d 493, 497 (Mo.App.E.D. 1996). The criteria is whether an average juror would correctly understand the applicable rule of law, and whether the jury was or could have been confused or misled, resulting in prejudice. Higgins v. Star Elec., Inc. , 908 S.W.2d 897, 906 (Mo.App.W.D. 1995) ( quoting Stone v. Duffy Distributors, Inc. , 785 S.W.2d 671, 678 (Mo.App.S.D. 1990)). An instruction that misdirects, misleads or confuses the jury is prejudicial and requires reversal. AgriBank FCB v. Cross Timbers Ranch, Inc. , 919 S.W.2d 256, 260 (Mo.App.S.D. 1996).
In State v. Williams , 787 S.W.2d 308 (Mo.App.E.D. 1990), the defendant was charged with first degree murder. Id. at 309. The information alleged that she "'knowingly attempted to cause the death of Louis Teague and in the course thereof actually caused the death of Joel Robinson by striking Joel Robinson with an automobile.'" Id . She filed her notice of intent to offer evidence that she suffered from battered spouse syndrome pursuant to § 563.033. Id. at 310. The state objected to such evidence on the basis that the defendant was not married to Teague, and therefore was not a spouse, and because the admitted conduct of the defendant did not constitute self defense. Id. The trial court refused to allow the evidence, but the matter was preserved through an offer of proof. Williams , 787 S.W.2d at 310. Williams was subsequently convicted of second degree murder. Id. at 309.
On appeal, the court held that evidence of the syndrome applied equally whether the woman was married to the batterer, or merely in a relationship with him. Id . at 312. In addition, the court addressed the effect of the evidence. It noted that battered spouse syndrome is "a specific medical or emotional condition bearing certain identifiable characteristics and arising from a specific source." Id . at 311. The court recognized that in the absence of the syndrome, the defendant in that case established only the first of the four elements of self defense, the absence of aggression or provocation on her part. The court then stated:
[I]f the evidence of the syndrome is to have any meaning under Sec. 563.033 it must be as a modification of the mental state required of the battered woman. More accurately stated it is that the syndrome creates a perception in the battered woman so that as to her the required elements have been met.
Id . at 312 (emphasis added). As a result of this analysis, the court went on to hold that "the evidence is to be weighed by the jury in light of how the reasonable battered woman would have perceived and reacted in view of the prolonged history of physical abuse." Williams , 787 S.W.2d at 312-13 (emphasis in original).
In State v. Stewart , 243 Kan. 639, 763 P.2d 572 (Kan. 1988), the court observed that the traditional concept of self defense is based on one time conflicts between persons of somewhat equal size and strength, and that when the defendant is a victim of long-term domestic violence suffering from battered spouse syndrome, such traditional concept does not apply. Id . at 577. The Williams court implicitly recognized this fact. However, it is not completely accurate to say that the conduct should be evaluated as a reasonable battered woman would have perceived it. We believe the emphasized language to be something of an oxymoron. As noted, supra, battered spouse syndrome is a medically recognized condition with certain identifiable characteristics and arising from a specific source. Williams , 787 S.W.2d at 311. A battered woman is a terror-stricken person whose mental state is distorted. State v. Hundley , 236 Kan. 461, 467, 693 P.2d 475, 479 (Kan. 1985). Thus, we think the more accurate statement is that the evidence should be weighed by the jury in light of how an otherwise reasonable person who is suffering from battered spouse syndrome would have perceived and reacted in view of the prolonged history of physical abuse.
Turning to the case at bar, we note first that the only basis for the submission of a self defense instruction in this case was the evidence of battered spouse syndrome. As a result and applying the foregoing principles to Instruction No. 7, it is readily apparent that it failed to properly instruct the jury. The instruction told the jury it could consider the evidence of acts of violence "and that defendant was suffering from Battered Spouse's Syndrome" in determining who was the initial aggressor in the encounter and in determining whether Mrs. Edwards " reasonably believed she was in imminent danger of harm from Bill Edwards" (emphasis added). However, " reasonable belief " for purposes of the instruction was defined as "a belief based on reasonable grounds, that is, grounds which could lead a reasonable person in the same situation to the same belief ." Thus, the jury was told by the evidence that Mrs. Edwards was terror-stricken and had a distorted mental state based on long years of physical and emotional abuse, which would cause her to perceive and react differently to events than would the average person. But the instruction then told the jurors, in effect, to disregard that evidence and determine whether she had a reasonable belief that she was in imminent danger based on what a hypothetical reasonable and prudent person would think. The hypothetical reasonable and prudent person does not perceive and react in the same way that an otherwise reasonable and prudent person who is suffering from battered spouse syndrome based on a prolonged history of physical abuse would perceive and react.
Moreover, Instruction No. 7 precluded the jury from considering the evidence of battered spouse syndrome in determining whether Mrs. Edwards "reasonably believed that the use of deadly force was necessary to defend herself." It did so by telling the jury it could only consider such evidence "in determining who was the initial aggressor . . . and . . . whether defendant . . . reasonably believed she was in imminent danger of harm from Bill Edwards." By expressly instructing the jury that it could consider the evidence for purposes of those determinations, it effectively informed the jury that such evidence could not be considered for other purposes, in particular, whether Mrs. Edwards "reasonably believed that the use of deadly force was necessary to defend herself."
As the court in State v. Williams said, "if the evidence of the syndrome is to have any meaning under § 563.033 it must be as a modification of the mental state required of the battered woman." Williams , 787 S.W.2d at 312. Instruction No. 7 did not follow existing substantive law as expressed in § 563.033 and construed in Williams . The instruction was contradictory, confusing and misleading. For these reasons, the giving of the instruction was prejudicial and requires reversal.
Discussion of Other Points
Since our resolution of Point I is dispositive of the appeal, we need not address in detail the other points presented by Mrs. Edwards on appeal. However, since the case is being remanded for a new trial, for the sake of judicial economy, we will comment on the remaining issues briefly.
In her second point, Mrs. Edwards contends that the trial court erred in refusing to submit a jury instruction on the lesser-included offense of involuntary manslaughter. She argues that there was evidence from which the jury could conclude that she did not knowingly or purposely cause her husband's death, but rather fired recklessly, without aiming, in a blind hysteria. The state counters by contending that submission of self-defense, which of necessity involves intentional conduct, in a homicide matter, precludes the possibility of an instruction on involuntary manslaughter because such offense requires an accidental act or unintended consequence, citing State v. Albanese , 920 S.W.2d 917, 925 (Mo.App.W.D. 1996) and similar cases. We do not know from the record whether the state's argument was the basis for the trial court's decision not to give the instruction, or whether the court believed there was no factual basis to support the submission. In any event, we need not decide the issue. On remand, the trial court and the parties will be guided by our Supreme Court's recent decision in State v. Beeler , No. SC81975 (Mo.banc Feb. 22, 2000), which overruled Albanese and other cases cited therein to the extent that they stand for the proposition that a claim of self-defense in a homicide case forecloses the possibility of an instruction on involuntary manslaughter. Beeler , slip op. at 6-7.
In her third point, Mrs. Edwards argues that the trial court plainly erred when it failed, sua sponte, to instruct the jury to disregard certain of the prosecutor's comments in his opening statement and closing argument to the jury. During opening statement, the prosecutor stated:
If you think it doesn't matter to me, what you do in your community, you're wrong We're not in California where murder is seemingly not against the law anymore. We're not a society that permits 5,000 other witnesses to come into our community and tell us what life is worth. This is your job. It's your community.
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I respectfully suggest that you send a message about what life is worth. Do we send a message to our young people, perhaps many troubled young people who are married, that the courthouse isn't there for their protection, that Judge Griffin and the sheriff aren't there to help them? Do we send that message?
Do we send a message that the laws the Missouri legislature has enacted that will actually remove an abusive spouse from the home and make it a crime to go back until a hearing is held? Do we say that's all for naught? Do the taxes we pay to pay the sheriff and build this court house go for nothing?
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During closing argument, the prosecutor stated:
The defendant in this case has spent one night in jail. One night in jail, and she has moved freely throughout this community. She has gone throughout the community in her pickup truck that she bought within a week after this death. And if you don't think that has some perception problems for law enforcement in this community, you're wrong. What job are you going to give your young prosecutor if you find the defendant not guilty in this case? What message are you going to send to the young people of this community? That it's okay to shoot a man four times in the back and then come to court with your experts and say, "Oh, it was post-traumatic stress syndrome?" And, bluntly, I'm offended by that.
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What will you say by your verdict? What will we say we've done five years from now, ten years from now, that we all learned to be helpless?
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Mrs. Edwards also calls our attention to numerous other comments and arguments made by the prosecutor that she contends were improper for various reasons, including erroneous statements about the law, personal opinions and argument outside the record.
A prosecutor may not argue to the jury that he has personal opinions about a case, State v. Baller , 949 S.W.2d 269, 272 (Mo.App.E.D. 1997), nor personalize the jury by relating accusations against the defendant to the jurors' own safety. State v. Storey , 901 S.W.2d 886, 902 (Mo. 1995); State v. Heinrich , 492 S.W.2d 109, 114 (Mo.App.W.D. 1973). Furthermore, a prosecutor may not challenge a jury on how it will account to the community for its verdict if it finds a defendant not guilty. State v. Thomas , 780 S.W.2d 128, 135 (Mo.App.E.D. 1989). We think some of the prosecutor's arguments crossed the line. However, since the case is being remanded for a new trial we need not detail each and every item of concern. On retrial, we are confident the prosecutor will refrain from personalizing the argument, avoid erroneous statements of law, and eschew challenging the jury regarding how it will account to the community for its verdict if it finds the defendant not guilty. Moreover, if the prosecutor does engage in argument the defense considers improper, counsel will have an opportunity to object, which was not done here, so as to preserve the issues for review if necessary.
In her fourth point, Mrs. Edwards argues that the trial court erroneously overruled her motion to suppress her statement to police on the date of the incident. Mrs. Edwards was arrested at the scene of the shooting and transported to the Caldwell County sheriff's office. Deputy Roger Porter described Mrs. Edwards was very upset, emotional, and crying when he interviewed her. He stated that he waited approximately twenty minutes for her to compose herself before interrogating her. At that time he asked:
Q: Are you willing to talk to me?
A: Yes, sir. I will have a lawyer. I will have a lawyer. I will have a lawyer, in any case, before talking to you.
Q: You want a lawyer?
A: I will have one. I can afford one. Yes, sir, I will have a lawyer.
Q: Ok, but do you want to talk to me now and let me know what happened?
A: I will have Gene McFaddin from Gallatin.
Q: Okay.
A: He's been a long time family friend.
Q: — Are you willing to talk to me now?
A: I can't tell you any different that I would tell him. And I'm not lying about anything.
Q: Okay, do you want to talk to me?
A: What?
Q: Do you want to tell me what happened?
A: Yes, I'll tell you what happened.
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Following this exchange, Mrs. Edwards signed a Miranda waiver and gave a statement to Deputy Porter. Trial counsel objected to the admission of her statement, the objection was overruled, and the statement was admitted into evidence. On appeal, she contends the statement should be suppressed as it violated her rights under the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Sec. 18(A) of the Missouri Constitution. The state maintains that the interrogation was proper, since Mrs. Edwards signed a waiver, and her statements to Deputy Porter, including "I will have a lawyer before talking to you," were not a request for counsel.
There is no transcript of any pre-trial hearings, and a motion to suppress statements is not included in the legal file. However, the trial court's docket sheets indicate that a "motion to suppress" was "taken under advisement" the day before trial. In addition, there is no ruling on the motion to suppress in the record, although the court did admit the statement over Mrs. Edwards' objection. With an incomplete record, we are reluctant to decide the issue, particularly in light of the fact that the case is being remanded for a new trial. Mrs. Edwards will have an opportunity to again file a motion to suppress the statement, at which time a complete record may be made.
In her fifth and final point, Mrs. Edwards contends the trial court plainly erred when it failed to sua sponte prohibit testimony regarding her ownership and sale of weapons unrelated to the charged offense. She argues that said evidence was irrelevant, immaterial, and was introduced solely to inflame the jury. We decline to address the issue. There was no objection to the testimony at trial. If on retrial the testimony is again offered, defense counsel will have the opportunity to make objections and the trial court will have a chance to decide the question in the first instance.
Conclusion
The judgment of conviction is reversed because Instruction no. 7 erroneously instructed the jury on self-defense and the impact of battered spouse syndrome and the defendant was prejudiced thereby. The case is remanded for further proceedings consistent with this opinion.
All concur.