Summary
holding that subject was not sufficiently established as a matter of scientific expertise
Summary of this case from State v. KellyOpinion
No. 80-1292
Decided June 24, 1981.
Criminal law — Murder — Self-defense claim — Proffered evidence — "Battered wife syndrome" — Admissibility.
Expert testimony on the "battered wife syndrome" proffered to support a defendant's claims of self-defense to killing her husband is inadmissible in evidence where (1) it is irrelevant and immaterial to the issue of whether defendant acted in self-defense at the time of the shooting; (2) the subject of the expert testimony is within the understanding of the jury; (3) the "battered wife syndrome" is not sufficiently developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under the guise of expertise; and (4) its prejudicial impact outweighs its probative value.
APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County.
Defendant-appellee, Kathy H. Thomas, was indicted and found guilty by a jury of murdering Reuben Daniels, her common law husband, on January 12, 1978. They had lived together in a stormy relationship for about three years before the killing. It is undisputed that defendant, at their apartment, shot Daniels once in the forehead and once in the left arm. The shot to the forehead, fired at a distance greater than two feet, killed Daniels. However, defendant gave three different versions of the killing to the police.
In one version, the couple had an argument about cooking and burning fish. As a result, Daniels became angry, slapped defendant and pushed her down onto the couch where she picked up the gun. She then walked to the chair where Daniels was sitting and shot him.
In her second story, defendant stated that they argued over a pawn ticket for her watch; and that Daniels pushed her down on the couch and further arguments ensued. As Daniels was rising from the chair to attack her, defendant reached for the gun on the couch and shot him.
The third version, like the first, involved the argument about burned fish in the kitchen. Daniels pushed defendant into the living room and onto the couch. Defendant stated she picked up the gun and Daniels walked away from her. Thereupon she stood up, walked around the coffee table and said, "I've had enough." She pointed the gun at Daniels and shot him two times so that he fell back into the chair.
Defendant is a woman who suffered repeated physical abuse and beatings over a period of more than three years at the hands of her common law husband. Claiming self-defense, she testified to shooting Daniels because she feared for her life, that he had made a move towards her, and that she knew he would take the gun and kill her for daring to pick it up. Before the defense rested, counsel asked to call Gerald Buckley, as an expert witness on battered wives. This was to aid the jury in weighing the evidence concerning defendant's subjective state of mind at the time of the shooting. The expert would have testified on the subject of the "battered wife syndrome" (also referred to as the "battered woman"). The trial court refused to permit the admission of such testimony.
On appeal of the murder conviction and sentence, the Court of Appeals, in a split decision, reversed the conviction and ordered a new trial solely because the trial court erred by refusing to admit, at the request of the defense, this expert testimony on battered wives and the peculiar state of mind which might prompt the shooting of the "battering husband."
The cogent dissenting opinion in the Court of Appeals of Judge Blanche Krupansky in this case succinctly sets forth eight reasons for the proper exclusion of such expert testimony about the "battered wife syndrome" as follows:
"1. There was no proper proffer of expert testimony.
"2. Appellant's [Defendant's] expert had no personal contact with appellant.
"3. No hypothetical question was propounded to appellant's expert witness.
"4. There was no determination that appellant was in fact a battered woman.
"5. Analysis of the issues raised was within the realm of the jury.
"6. The trial court's jury charge more than adequately covered the situation.
"7. There was no prejudice to appellant.
"8. The trial court did not abuse its discretion."
This cause is now before this court pursuant to the allowance of a motion and cross-motion for leave to appeal.
Mr. John T. Corrigan, prosecuting attorney, and Mr. Jack H. Hudson, for appellant and cross-appellee. Mr. Christopher D. Stanley, for appellee and cross-appellant.
The sole issue raised by the state in its appeal to this court is whether the trial court committed reversible error by excluding testimony on the subject of the "battered wife syndrome" by an expert on battered wives, where defendant pleaded self-defense to killing her husband. We hold the common pleas court did not commit error in excluding such expert testimony. Therefore, we reverse the Court of Appeals, and affirm the conviction and sentence of defendant.
There are at least eight separate reasons to exclude this proffered expert testimony. See footnote 1, supra. Our conclusion would remain the same even if defendant's expert had personally interviewed defendant before being offered as a witness, even if defendant had conclusively established that defendant was, in fact, a battered wife, and even if defense counsel had propounded a hypothetical question to defendant's expert witness.
In a trial such as this one, where the evidence raises an issue of self-defense, the only admissible evidence pertaining to that defense is evidence which establishes that defendant had a bona-fide belief she was in imminent danger of death or great bodily harm, and that the only means of escape from such danger was through the use of deadly force. State v. Robbins (1979), 58 Ohio St.2d 74.
The trial judge fully and correctly instructed the jury on self-defense as follows:
"To constitute self-defense, ladies and gentlemen, there must have been on the part of Kathy Thomas a careful use of her faculties and reasonable grounds to honestly believe that she was in an immediate danger to her person or to her life. There must have been a sufficient act by the deceased, Reuben Daniels, coupled with the apparent present ability to carry it out, to cause the Defendant, Kathy Thomas, to reasonably believe that the other party, that is Reuben Daniels, intended to kill her or do great bodily harm, and that the killing or shooting was necessary to save herself from death or great bodily harm.
"* * *
"In determining whether a Defendant such as Kathy Thomas had reasonable grounds for an honest belief that she was in imminent danger, you must put yourself in the position of the Defendant, Kathy Thomas, with her characteristics, with her feelings, with the disparity of size between Daniels and the defendant, Kathy Thomas, with her knowledge or lack of knowledge, and under the same circumstances and conditions that surrounded her at the time the act was done. You must consider also the conduct of Reuben Daniels and determine if his act or words or whatever you find in the evidence caused the Defendant to reasonably and honestly believe that she was about to be killed or to receive great bodily harm."
This full and fair instruction on self-defense prevented any error that could have occurred by the trial court's exclusion of expert testimony on the "battered wife syndrome."
The jury is well able to understand and determine whether self-defense has been proven in a murder case without expert testimony such as that offered here. The jury will base its decision upon the material and relevant evidence concerning the participants' words and actions before, at, and following the murder, including defendant's explanation of the surrounding circumstances.
Also, such expert testimony is inadmissible because it is not distinctly related to some science, profession or occupation so as to be beyond the ken of the average lay person. Furthermore, no general acceptance of the expert's particular methodology has been established. McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77; Dyas v. United States (App.D.C. 1977), 376 A.2d 827, certiorari denied 434 U.S. 973; Frye v. United States (1923), 54 App. D.C. 46, 293 F. 1013. Finally, we believe the expert testimony offered here would tend to stereotype defendant, causing the jury to become prejudiced. It could decide the facts based on typical, and not the actual, facts.
In support of her proffer of expert testimony about the "battered wife syndrome," defendant cites Ibn-Tamas v. United States (App.D.C. 1979), 407 A.2d 626. There, the District of Columbia Court of Appeals reversed and remanded that case back to the trial court for further consideration of its prior ruling on the admissibility of expert opinion testimony about the "battered wife syndrome." However, in that case, defense counsel proffered an unequivocal expert opinion, based on personal counseling with the defendant, a showing that the defendant was a "classic case" of the battered wife and did in fact perceive herself to be in imminent danger at the time of the shooting. We lack this kind of evidence in the case sub judice. Moreover, even if the facts in Ibn-Tamas, supra, were similar to the case at bar, we reject its rationale and decline to follow it.
Expert testimony on the "battered wife syndrome" by a psychiatric social worker to support defendant's claim of self-defense is inadmissible herein because (1) it is irrelevant and immaterial to the issue of whether defendant acted in self-defense at the time of the shooting; (2) the subject of the expert testimony is within the understanding of the jury; (3) the "battered wife syndrome" is not sufficiently developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under the guise of expertise; and (4) its prejudicial impact outweighs its probative value.
There is one claimed error defendant raises as cross-appellant herein which deserves comment. She asserts denial of a fair trial because the trial court failed to instruct the jury concerning the lesser-included offense of voluntary manslaughter.
At the close of the evidence the trial judge informed counsel for both parties that he intended to instruct the jury on murder, voluntary manslaughter and self-defense. The defendant, however, objected to any instruction on voluntary manslaughter. That objection of defense counsel constitutes a waiver of the instruction and precludes consideration on appeal. Crim. R. 30; State v. Williams (1977), 51 Ohio St.2d 112. Defendant now argues that the proposed instruction was improper based on a reading of State v. Toth (1977), 52 Ohio St.2d 206. However, in a case decided nearly a full year before the challenged jury instruction, the Eighth District Court of Appeals in State v. Muscatello (1977), 57 Ohio App. 231, affirmed 55 Ohio St.2d 201, held an instruction on voluntary manslaughter to be proper in an aggravated murder prosecution in which defendant elicited some evidence of the mitigating circumstance of extreme emotional stress. Given this prior decision, it is apparent that defense counsel in the instant case could have requested and framed an appropriate jury instruction on voluntary manslaughter if he had wanted it.
All the remaining propositions of law on other claimed errors advanced by defendant-cross-appellant are without merit.
For the foregoing reasons the judgment of the Court of Appeals is reversed.
Judgment reversed.
W. BROWN and SWEENEY, JJ., concur.
HOLMES, J., concurs in the syllabus and judgment.
CELEBREZZE, C.J., P. BROWN and LOCHER, JJ., concur in the judgment.