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| Wyoming Supreme Court Cases |
TRENT BREON DEAN V. THE STATE OF WYOMING
2008 WY 124
194 P.3d 299
Case Number: S-08-0017
Decided: 10/10/2008
OCTOBER
TERM, A.D. 2008
TRENT BREON
DEAN,
Appellant
(Defendant),
v.
THE STATE OF
Appellee
(Plaintiff).
Appeal from the
The Honorable Peter G.
Arnold, Judge
Representing
Appellant:
Diane M. Lozano,
Representing
Appellee:
Bruce A. Salzburg,
Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael
Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant
Attorney General. Argument by Ms.
Craig.
Before VOIGT, C.J.,
and GOLDEN, HILL, KITE, and BURKE, JJ.
HILL,
Justice.
[¶1] Appellant, Trent
Breon Dean (Mr. Dean), was convicted of committing a third or subsequent battery
against a household member, in violation of Wyo. Stat. Ann. § 6-2-501(b) and
(f)(ii) (LexisNexis 2007).1 This battery was committed upon his wife
and it was a third or subsequent offense of such a crime by Mr. Dean (although
the prior offenses included victims other than his wife, Mrs. Dean was subjected
to at least 5 documented prior domestic violence incidents). By Judgment and Sentence entered on
November 9, 2007, and amended on December 4, 2007, Dean was sentenced to serve a
term of imprisonment of 36 to 50 months.
[¶2] Dean contends
that the district court erred in permitting an expert witness to vouch for the
credibility and truthfulness (or lack thereof) of witnesses who have been
victims of domestic violence (and, thus, also Mrs. Dean), as well as in
permitting that same expert witness to provide improper character evidence
concerning Mr. Dean. We will
affirm.
ISSUES
[¶3] Dean raises these
issues:
1. Did the
trial court err in allowing the State’s expert witness, Carla Thurin, to testify
to the credibility and truthfulness of witnesses who have been victims of
domestic violence?
2. Did the
trial court err in allowing the State’s expert witness, Carla Thurin, to testify
to the “cycle of violence” associated with domestic violence as said testimony
was used by the State as improper character evidence against
[Dean]?
The State rephrases
the issues like this:
I.
Did the district court abuse its discretion when it allowed the State’s
expert witness, Carla Thurin, to testify about typical victim behavior in
domestic violence cases?
II.
Did the district court abuse its discretion when it allowed the State’s
expert witness, Carla Thurin, to testify about the “cycle of violence” in
domestic violence cases?
FACTS AND
PROCEEDINGS
[¶4] On February 1,
2007, a neighbor of Mrs. Dean called 911 to report a disturbance at the Dean
household. The neighbor initially
just heard the disturbance (yelling and screaming), but then went to his front
door and looked out to see what was going on. He started to walk over to observe the
commotion and noted that Mr. Dean had a hold on Mrs. Dean’s “hair and she had
her hands behind her back like this (indicating) on his hands to prevent her
from being pulled.” The neighbor
started to go over to say something like, “knock it off,” but when he saw two
men in a car in front of the Dean house, he went back inside and called
911. He was motivated to do so
because he did not think “any man or any woman for that matter has the right to
physically abuse another human being whether they are married or not.” His perception was that Mr. Dean was
abusing his wife. He perceived Mr.
Dean to be “very angry,” and Mrs. Dean appeared to be afraid and was
crying.
[¶5] The police
arrived at the Dean household after being summoned by the neighbor’s call and
they investigated the incident.
Cheyenne Police Officer Andy Gutierrez was the principal
investigator. Beginning in 2003,
Officer Gutierrez’s area of investigative expertise was domestic violence calls
(Community Advocacy Response Initiative -- CARI). He had special training for that
assignment and did 12 to 13 such calls a week. Officer Gutierrez was assisted by a
volunteer “advocate.” Mrs. Dean
reported having her hair pulled and that she had a knot on the back of her head,
probably from being thrown up against the wall.2 Mrs. Dean also reported that Mr. Dean
threw a cordless telephone at her.
She had picked up the phone to call for help and Mr. Dean took it from
her and threw it at her as she walked away from him. Testimony from Officer Gutierrez, as
well as photographic evidence, documented that the phone had imprinted a
telltale red mark (in the shape of a phone) on her left side. A second Cheyenne Police Officer, Dave
Padilla, was sent out to the Dean household the day of this battery incident
because Officer Gutierrez forgot to take pictures of the bruising left on Mrs.
Dean’s back by the cordless phone.
His testimony also tended to corroborate Mrs. Dean’s initial report to
the police.
[¶6] We will not set
out the details of the circumstances that led up to this altercation, other than
to note that Mr. Dean had sent his wife flowers and a box of chocolates with a
card that said, “I love you.” Mrs.
Dean was not at work because she had stayed home sick, so Mr. Dean had to have
the candy and flowers redirected to her home. At this particular time, Mr. Dean was
living with his sister and Mr. and Mrs. Dean had mutually agreed to live apart
for a while because they were having marital problems.
[¶7] Officer Gutierrez
testified that Mrs. Dean reported that shortly after the delivery (between 10:00
a.m. and noon), Mr. Dean arrived and an argument ensued almost immediately. He shoved Mrs. Dean into a chair. When she got up, he slapped her in the
head. The argument moved into the
kitchen where she was pushed into the kitchen stove. She grabbed a knife, but he took it away
from her. She then grabbed the
phone to call for help and he took the phone from her and then threw it at her a
few minutes later. At this
point she ran outside the house and was yelling for help, which is about the
time the neighbor mentioned above came onto the scene. After Mr. Dean left the scene, the
neighbor went over to Mrs. Dean’s house and he was still there comforting her
when the police arrived. Officer
Gutierrez had Mrs. Dean prepare a written statement and she signed it and it was
witnessed by the victim advocate who accompanied Officer
Gutierrez.
[¶8] Officer Gutierrez
looked at the booking log and testified that it indicated that Mr. Dean had no
injuries when he came to the jail.
This incident occurred on Thursday, February 1, 2007, and on the
following Monday, Mrs. Dean called Officer Gutierrez and recanted her story,
saying that she started the fight.
The officer further testified that such recantations occur in “darn near
90 percent” of such cases. Defense
counsel followed up on that line of questioning on cross-examination and Officer
Gutierrez indicated that in his experience such recantations were never
true. With respect to such
recantations, Officer Gutierrez explained that: “The stories are very inconsistent with
the initial story that is provided.
Most of the time they just don’t want to lose the relationship. They know if they recant the story they
won’t be in any trouble.” Upon
being asked, Officer Gutierrez reported that Mrs. Dean had visited her husband
in the jail between February 1, 2007, and the day of her
recantation.
[¶9] At trial, Mrs.
Dean testified and shifted responsibility for the incident from Mr. Dean to
herself, saying that she had goaded him into an argument (because he was drunk)
and that she was physically abusive to him, but he was not physically abusive to
her. She related that she initially
told the police what she did because she wanted to get her husband into trouble
and because she was afraid she might be arrested if she told the truth because
she had been the aggressor.
[¶10] No issue is raised with respect to
the sufficiency of the evidence to sustain Mr. Dean’s conviction, but we note
here that the jury was presented:
(1) with the testimony of Mrs. Dean’s neighbor, (2) Officer
Gutierrez’s description of the scene, (4) the photographs which were taken
at the scene, and (5) Officer Padilla’s corroborative testimony. All of that evidence was pertinent to
the finding of guilt the jury made in this case. Mrs. Dean’s recantation of her written
statement served to exonerate Mr. Dean.
Per the Court’s instructions to the jury, the core of Officer Gutierrez’s
testimony, i.e., what Mrs. Dean told him the day of the incident, could only be
considered by the jury in judging her credibility. That was also true of Mrs. Dean’s
written statement which went like this:
On February
1st around 12 noon Trent [Mr. Dean] came to my house drunk and rang
the doorbell. I opened it and he
started yelling at me. He hit me in
my head and threw several objects at me.
I picked up a knife to stab him but he took the knife away. I kept screaming and begging for him to
leave. Our 3 yr. old daughter was
screaming and asking for him to stop and leave. He grabbed the phone when I tried to get
it and he broke it. I tried to run
to the neighbors to call the police.
He ran after me and grabbed me by the hair and pulled me back into the
house. He threw me into the chair
and the wall. His cousins ran into the house & grabbed him &
left.
[¶11] The jury was instructed as follows
with regard to Officer Gutierrez’s testimony and Mrs. Dean’s written
statement:
Prior inconsistent
statements made by Tricia Dean can be considered only for the limited purpose of
impeachment of her credibility and may not be considered as substantive evidence
of the crime.
You must not consider
this evidence for any purpose except the limited purpose for which it was
admitted.
[¶12] This instruction became the law of
the case here, but we question whether it is a correct statement of the law that
should have been applied, i.e., Officer Gutierrez’s testimony and Mrs. Dean’s
prior sworn statement could have been considered as substantive evidence of the
crime charged under these circumstances.
[¶13] The only issue raised in this
appeal is whether or not the district court erred in allowing the admission of
Carla Thurin’s testimony. She was
called and was qualified as an expert witness with respect to matters involving
victims of domestic violence and that they are often motivated to shift blame
from the abuser to themselves and to recant when the batterer is facing criminal
prosecution.
DISCUSSION
[¶14] Standard of
Review
A decision to admit or reject expert testimony rests solely within the
discretion of the district court and is not disturbed on appeal absent a clear
showing of an abuse of discretion.
Williams v. State, 2002 WY
184, ¶ 5, 60 P.3d 151, 153-154 (Wyo. 2002).
When reviewing matters pertaining to the admission of testimony of expert
witnesses, we look to the standard this Court adopted in Bunting v. Jamieson, 984 P.2d 467
(
The trial court must
have the same kind of latitude in deciding how to test an expert's reliability,
and to decide whether or when special briefing or other proceedings are needed
to investigate reliability, as it enjoys when it decides whether or not that
expert's relevant testimony is reliable.
Our opinion in Joiner [General
Electric Co. v. Joiner, 522
Kumho Tire Company,
Ltd. v. Carmichael, 526
“ ‘[D]ecisions of the
trial court with respect to the admissibility of evidence are entitled to
considerable deference and, as long as there exists a legitimate basis for the
trial court's ruling, that ruling will not be reversed on appeal.’ ” It is also well established that a
district court judgment may be affirmed on any proper legal grounds supported by
the record. However, where the law
imposes a duty on the district court to make findings on the record, we will not
speculate as to the reasons for the decision.
Bunting, 984 P.2d at 470
(quoting English v. State, 982 P.2d
139, 143 (
A qualified expert witness may testify about scientific, technical, or
specialized knowledge if such testimony will help the jury understand the
case. W.R.E. 702. This court has adopted the federal Daubert model imposing gatekeeping
responsibilities on trial courts deciding whether scientific or technical expert
testimony is admissible. See Bunting v. Jamieson, 984 P.2d 467, 471
(
Cooper v.
State, 2008 WY 5,
¶¶ 9-10, 174 P.3d 726, 728-29 (Wyo. 2008) (quoting Williams v. State, 2002 WY 184,
¶ 5, 60 P.3d 151, 153-54 (Wyo. 2002)).
[¶15] In addition to this general
standard of review, we must also consult our long-standing rule that an expert
may not vouch for the truthfulness or credibility of an alleged victim or of any
other witness. Seward v. State, 2003 WY 116, ¶ 19,
76 P.3d 805, 814 (Wyo. 2003).
Thurin’s Testimony Was
Not Directed at Mrs. Dean’s Truthfulness and It Was Not Improper Character
Evidence against Mr. Dean
[¶16] No issue is raised as to whether or
not Carla Thurin was qualified as an expert in her field or whether or not her
testimony was based on her specialized knowledge in an area we have long
recognized as appropriate for expert testimony. See Kenyon v. State, 2004 WY 100,
¶¶ 21-23, 96 P.3d 1016, 1025 (Wyo. 2004); Skinner v. State, 2001 WY 102,
¶¶ 17-20, 33 P.3d 758, 764-65 (Wyo. 2001); Ryan v. State, 988 P.2d 46, 64-66
(dissenting opinions) (Wyo. 1999); Trujillo v. State, 953 P.2d 1182,
1186-87 (Wyo. 1998); and Wyo. Stat. Ann. § 6-1-203 (LexisNexis 2007) (enacted in
1993) and compare Duran v. State, 990
P.2d 1005, 1009-10 (Wyo. 1999); Buhrle v.
State, 627 P.2d 1374, 1377 (Wyo. 1981); Frenzel v. State, 849 P.2d 741, 746-50
(Wyo. 1993).
[¶17] W.R.E. 702 provides that: “If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise.” However, the
application of that rule must be tempered by W.R.E. 403 (“Although relevant,
evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”), W.R.E. 404(a) (“Evidence of a person’s character or a
trait of his character is not admissible for the purpose of proving that he
acted in conformity therewith on a particular occasion[.]”), and W.R.E. 404(b)
(“Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity
therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.”).
[¶18] Thurin’s testimony was preceded by
this admonition from the trial judge:
Ladies and gentlemen, I need to give you a little bit [of
[¶19] Prior to their deliberations, the
jury was instructed:
A person is qualified to testify as an expert if that person has special
knowledge, skill, experience, training, or education sufficient to qualify as an
expert on the subject to which the testimony relates.
Duly qualified experts may give their opinions on questions in
controversy at a trial. To assist
you in deciding such questions, you may consider the opinion with the reasons
given for it, if any, by the expert who gives the opinion. You may also consider the qualifications
and credibility of the expert.
You are not bound to accept an expert opinion as conclusive, but should
give to it the weight to which you find it to be entitled. You may disregard any such opinion if
you find it to be unreasonable.
[¶20] Thurin’s testimony was relatively
brief. It began with an
acknowledgement that she did not know Mrs. Dean and that she was not familiar
with any part of the instant case.
She opined that victims of domestic abuse frequently suffer from low
self-esteem and believe they need the abuser to function in their day-to-day
life. Many victims who seek help
from professionals will not necessarily leave the abuser. Some victims will leave the abuser after
a single event, but on average they will be abused seven times before they leave
for good.
[¶21] Not all domestic abuse consists of
beatings and bruising. Instead,
many victims are kept isolated and economically deprived and are told that they
cannot live without the abuser.
They are sometimes threatened with losing their children or
finances. Many victims will not go
to the police. They will seek
social services and they are encouraged to report, but many do not. Many victims grow up seeing abuse
between their parents. Alcohol and
drugs are often involved in domestic abuse. Infidelity or suspicion of infidelity
may be a factor. Ms. Thurin opined
that about one in four or five victims will recant a report of abuse. There are many reasons behind
recantations (loss of children, finances, a home) but fear is the number one
reason – i.e., that the abuser will get them somehow even if the abuser is in
custody. Often abusers can “guilt”
the victim into visiting the abuser while he (or she, but usually he) is in
custody and then convince the victim that the whole thing is really her
fault. Victims come to believe that
if they had not done “x,” “y,” or “z” (whatever it might be), then none of this
would have happened – I deserved it.
[¶22] Ms. Thurin spoke in generalities
about the “cycle of violence” but the scenarios she described were not directly
pertinent to the facts and circumstances of this case and she qualified her
descriptions with the caveat that “every relationship is
different.”
[¶23] Near the end of her testimony, the
prosecutor asked Ms. Thurin some questions about “truth telling” by victims of
abuse and over Mr. Dean’s objections they were answered. Thurin opined that once victims get to a
point where they want out of the relationship they will tell the truth. If the victim has a good support system
(family, friends, etc.) they are more likely to tell the truth. The primary reason for not telling the
truth is fear, and that fear is heightened when the victim must appear in the
courtroom with the abuser. In
cross-examination, the defense attorney re
[¶24] Much of the pertinent case law is
summarized by Cynthia Lynn Barnes, Annotation, Admissibility of Expert Testimony Concerning
Domestic-Violence Syndromes to Assist Jury in Evaluating Victim’s Testimony or
Behavior, 57 A.L.R.5th 315 (1998 and Supp.2008). At its outset, that annotation
recognizes that the cluster of syndromes associated with domestic violence has
expanded greatly since it first gained a foothold in the early 1980’s.
[¶25] In § 7 of the annotation several
cases are discussed which relate directly to the circumstances at hand. We intend to quote from those cases
quite liberally because, although the issues raised in this case are quite
narrow, they are better understood if those issues are discussed in the broader
scope of the subject matter at hand.
Moreover, although not raised in this appeal, many of those “other”
issues are implicated in this appeal.
[¶26] For instance, in the case State v. Yusuf, 800 A.2d 590, 613-21
(
Our Supreme Court has
held that expert testimony concerning battered woman syndrome is relevant “to
describe the behavior patterns typically ascribed to battered [woman]
syndrome.” State v.
Borrelli, 227
In the present case,
Stark [the expert] testified at length with respect to battered woman syndrome
on the basis of his experience with battered women and research into domestic
violence. Stark defined “woman battering” as
“involv[ing] a course of conduct that includes, but is not limited to, multiple
instances of physical abuse or assault and the pattern of isolation,
intimidation, mental abuse and control.”
He indicated that there is a subgroup of battered women, which, as a
result of repeated abuse, suffers what he termed a “learned helplessness,” which
is exhibited “after they [experience] frustration in trying to extricate
themselves from the situation or, for whatever reason, they simply [give] up for
a period of time, at least, and [believe] that they [cannot] escape from the
situation even when there [are] opportunities for them to do
so.”
.…
Stark then described
the second part of the syndrome, the “cycle of violence,” which “feeds into” the
learned helplessness. He explained
that in abusive situations, “there [is] a buildup of tension, which [creates]
tremendous anxiety and fear on the part of the victim, and then there [is] an
episode of physical abuse....”
Thereafter, he continued, there occurs what is called “the honeymoon
phase” in which the abusive partner apologizes. Stark indicated that it is during that
honeymoon phase that a battered woman often is drawn into the relationship
because she “desperately [wants] to believe things [will] change, [and she
hopes] they might change during this period where the apology or the promises
dominate, [and] the battered woman in a sense [gets] sucked into the
relationship more deeply than she would have otherwise been; common sense should
have told her to leave, but now she's confused ... [a]nd the result is ... that
she is there when the second episode occurs and possibly the third.” Stark testified that at that point, the
abuser “may no longer apologize, he may no longer be promising change, but
because of the cycle of violence, she’s in some sense entrapped in the
relationship and, because of the ongoing abuse, that entrapment leads to ...
learn[ed] helplessness and then, at least for a period of time, [she] is unable
to seek help ... even when it’s offered.”
Such women, Stark explained, “shift their focus from escape, from getting
out of the relationship, to merely surviving in the relationship, and they may
identify exposing the facts in the relationship to friends or authorities as
counter to their interest in surviving either because [the abuser] threatened
them with punishment if they report or because they believe at that point,
because of the isolation and intimidation, that he has powers which he does not
have, in her mind.”
During his testimony,
Stark also was asked a number of hypothetical questions that tracked the facts
that gave rise to the charges against the defendant.
Generally, with respect to each hypothetical question, Stark was asked to
give his expert opinion whether the hypothetical victim’s conduct was consistent
with that of a woman suffering from battered woman syndrome. In each case, Stark concluded that the
victim’s conduct as set out in the hypothetical question was indeed consistent
with a woman suffering from battered woman syndrome.
As previously stated,
before expert testimony about battered woman syndrome becomes relevant, an
evidentiary foundation must first be established that the victim is a battered
woman and that her conduct is such that the jury would be aided by expert
testimony providing an explanation therefor. See id. Here, contrary to the defendant’s
assertions, we conclude that the state presented sufficient evidence of an
abusive relationship warranting the testimony on battered woman
syndrome.
The state presented
evidence that the defendant battered LeJeune on a number of occasions during the
course of their relationship.
Stark’s testimony was offered to assist the jury in understanding whether
LeJeune’s conduct was consistent with the pattern and profile of a battered
woman. His expert testimony
provided the jury with a relevant insight into LeJeune’s behavior that it might
not otherwise bring to its evaluation of her credibility. That insight was made more significant
in light of the defendant’s extensive cross-examination of LeJeune, which
focused on her failure to escape from the defendant when she had the opportunity
to do so.
Moreover, Stark’s
testimony was particularly crucial to the jury’s determination because although
battered woman syndrome has become known to the public more widely than it was
in the past, much of the subject still remains beyond the ken of the average
juror. Indeed, “[c]ommentators have
noted that the research data indicates that potential jurors may hold beliefs
and attitudes about abused women at variance with the views of experts who have
studied or had experience with abused women. In particular, males are likely to be
skeptical about the fear the woman feels in an abusive relationship and about
her inability to leave a setting in which abuse is threatened.” (Internal quotation marks omitted.)
We conclude therefore
that the court properly determined that Stark’s testimony concerning battered
woman syndrome was relevant to assist the jury in understanding whether
LeJeune’s conduct was consistent with the pattern and profile of a battered
woman and to the issue of her credibility.
B
The defendant also
claims that the prejudicial effect of Stark's testimony outweighed its probative
value. We disagree.
“There are situations
where the potential prejudicial effect of relevant evidence would suggest its
exclusion. These are: (1) where the
facts offered may unduly arouse the jury's emotions, hostility or sympathy, (2)
where the proof and answering evidence it provokes may create a side issue that
will unduly distract the jury from the main issues, (3) where the evidence
offered and the counterproof will consume an undue amount of time, and (4) where
the defendant, having no reasonable ground to anticipate the evidence, is
unfairly surprised and unprepared to meet it.” (Internal quotation marks
omitted.) State v. Battista,
supra, 31 Conn.App. at 515-16, 626 A.2d 769. “The primary responsibility for
conducting the prejudicial-probative balancing test rests with the trial court,
and its conclusion will be disturbed only for a manifest abuse of
discretion.... We note that
[b]ecause of the difficulties inherent in this balancing process ... every
reasonable presumption should be given in favor of the trial court's
ruling.” (Internal quotation marks
omitted.) State v. Servello,
59 Conn.App. 362, 377, 757 A.2d 36, cert. denied, 254
As we already have
concluded, Stark’s testimony could have assisted the jury substantially in
understanding whether LeJeune's conduct was consistent with the pattern and
profile of a battered woman. The
court reasonably could have concluded that the probative value of that evidence
outweighed its prejudicial effect.
We therefore are not persuaded that the court abused its discretion in
admitting Stark’s testimony, especially in light of the court’s limiting
instruction to the jury.FN13
FN13.
In its final charge to the jury, the court instructed in relevant
part: “Dr. Stark’s testimony
presented a general description of battered woman syndrome, and he then
testified as to certain characteristics that are commonly found in relationships
involving domestic violence and on general or typical behavior patterns of
victims of domestic violence. Dr.
Stark, however, did not testify about whether Carissa LeJeune was in fact
battered or whether her testimony here in court was truthful and accurate. His testimony was offered instead to
help you understand whether Ms. LeJeune’s conduct was consistent with the
pattern and profile of a battered woman to help explain her conduct and thus to
aid you in evaluating the credibility of her testimony.
“Expert testimony is
presented to you to assist you in your deliberations. No such testimony is
binding upon you, however, and you may disregard such testimony either in whole
or in part. It's up to you as triers of the facts to determine whether such
testimony was credible and whether and how it applies to the case. It’s for you to consider the testimony
with the other circumstances in the case and using your best judgment determine
whether you will give it any weight and, if so, what weight you will give to
it.”
C
The defendant’s last
claim relative to Stark’s testimony is that it improperly bolstered LeJeune’s
credibility and, thus, invaded the province of the jury. We are not
persuaded.
There is a “critical
distinction between admissible expert testimony on general or typical behavior
patterns of ... victims and inadmissible testimony directly concerning the
particular victim’s credibility.”
State v. Spigarolo, 210
In the present case,
Stark did not give his opinion as to whether LeJeune testified truthfully or
whether she in fact suffered from battered woman syndrome. His expert testimony could have assisted
the jury substantially in understanding whether LeJeune’s conduct was consistent
with the pattern and profile of a battered woman. Moreover, Stark provided the jury with a
framework within which it could place and possibly explain the victim’s
behavior, which is within the accepted role of an expert witness. See State v. Vega, supra, 259
Our review of the
record leads us to conclude, therefore, that Stark’s testimony did not invade
the province of the jury in assessing LeJeune’s credibility, especially in light
of the court’s limiting instruction to the jury.
Accordingly, the court did not abuse its discretion in admitting Stark’s
testimony. [Some footnotes
omitted.]
[¶27] In the case State v. Borelli, 629 A.2d 1105, 1112-16
(Conn. 1993), which is cited several times in the case immediately above, the
appellate court dealt with a case quite similar to the instant
case:
In the present case,
Stark presented a general description of battered woman’s syndrome, based on his
experience with battered women and research and study in the area of domestic
violence. Stark defined the term
“battered woman's syndrome” as referring “to the behavioral and psychological
consequences that many victims, but by no means all victims, experience as a
consequence of living in domestic violence situations.”
Stark explained that
there are certain characteristics that are commonly found in relationships
involving domestic violence. First,
there is the “cycle of violence,” in which “there’s a period of tension build up
in the relationship and then there’s what we call the abusive episode where the
batter [er] explodes and there's violence maybe combined with other forms of
force and harassment ... and it’s at that point or soon after that point that
the battered woman may be quite clear about her danger and quite forthright in
seeking help. But the next phase is
what we call the honeymoon phase or where the batter[er] either says he'll never
do it again or ... enters some kind of treatment program.... And she doesn’t want the relationship to
end, she wants violence to end. And
she believes maybe this time it will be different. So at that point she's likely to believe
that, in fact, it won't happen again.
And she may at that point then either change her story or try to ... do
what she needs to do ... in order to survive and to feel safe in the
relationship.”
Stark testified that
some battered women develop a “learned helplessness” from repeated failures to
take control of the relationship.
The result of such learned helplessness is that battered women fail to
take advantage of subsequent opportunities to seek help and escape the battering
situation.
Stark also testified:
“Now, the battered woman’s syndrome includes a lot of behaviors which don't make
any sense when you understand them as an outsider, but only make sense when you
understand them from the standpoint of survival and safety.” Stark testified that battered women may
stay in a relationship with an abuser despite the abuse. Battered women commonly fail to report
their problems or delay reporting them to the authorities or others. Such women, who have suffered
extraordinary harm, commonly minimize or even deny the harm that they have
suffered. Finally, there is the “paradoxical situation ... where a woman will
come in on one occasion and present a very clear and concise picture of danger
that she's in, either explaining it to her health provider or to a police
officer, and then a week later completely change her story.” Stark testified that this last pattern
“is one of the most common things that we see in the
field.”
Stark’s testimony was
consistent with the theory of battered woman’s syndrome as it has been presented
and discussed in scholarly commentary.
See L. Walker, The Battered Woman Syndrome (1984) pp. 86-94, pp. 95-104;
R. Schuller & N. Vidmar, “Battered Women Syndrome Evidence in the Courtroom:
A Review of the Literature,”16 Law & Human Behavior 273, 274-77 (1992); C.
Ewing, Battered Women Who Kill: Psychological Self-Defense as Legal
Justification (1987) pp. 7-21; see generally L. Walker, The Battered Woman
(1979).FN13
FN13. The defendant also argues that expert
testimony concerning battered woman's syndrome should not be admitted because
the American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (3d Ed.1987), an important diagnostic treatise in the medical,
psychiatric, and psychological fields, does not contain any reference to the
syndrome. Stark specifically
disclaimed, however, that the “syndrome” is an illness or mental disorder, but
instead testified that battered women are “focusing on survival and safety ...
[which] leads to these paradoxical behaviors and attitudes.” See Bechtel v. State, 840 P.2d 1,
7 (Okl.Crim.App.1992) (rejecting a similar argument and stating that the
syndrome is a mixture of both psychological and physiological symptoms but is
not a mental disease); Commonwealth v. Craig, 783 S.W.2d 387, 389
(Ky.1990) (syndrome was not mental condition and expert could qualify to testify
about it although not a psychiatrist or clinical psychologist); R. Schuller
& N. Vidmar, “Battered Women Syndrome Evidence in the Courtroom: A Review of
the Literature,”16 Law & Human Behavior 273, 281 (1992) (despite the label,
battered woman’s syndrome is not a diagnosable mental disorder, but is rather a
descriptive term that refers to the effects of abuse on a
woman).
Moreover, expert
testimony concerning battered woman’s syndrome has been accepted by many courts
when the testimony was offered by a criminal defendant to bolster a claim of
self-defense. See, e.g., People
v. Minnis, 118 Ill.App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983);
State v. Hundley, 236
FN14. “[P]rosecuting a batterer poses special
problems. The battered woman is likely to hide the fact that she is being
abused, which results in mate abuse remaining largely unreported.... If charges are filed, the battered woman
may change her mind about prosecuting the batterer and withdraw her complaint,
refuse to testify as a witness, or recant.” J. Schroeder, “Using Battered Woman
Syndrome Evidence in the Prosecution of a Batterer,”76
Finally, Stark’s
expert testimony in this case was helpful to the jury. The most important issue in this case
was the credibility of the victim.
Her written, signed statement alleged that she had been the victim of
egregious abuse. Before the jury,
the victim testified that she had not been abused and that indeed it was she who
had tied up the defendant and abused him.
The defendant, through cross-examination of Olofson, questioned the
credibility of the victim’s written statement in view of her eighteen hour delay
in making the complaint. The victim
testified that she had made up the statement in order to get her husband into
drug treatment. The state offered a
different explanation, one beyond the knowledge and understanding of the average
juror-that the statement was true, and the victim’s recantation was a pattern of
typical behavior consistent with battered woman's
syndrome.
In a case directly on
point, the Eighth Circuit Court of Appeals upheld the admission of expert
testimony on battered woman’s syndrome to impeach an abuse victim’s recantation
at the criminal prosecution of the abuser.
Arcoren v. United States, supra, 1241. In Arcoren, a victim of rape and
assault described the defendant’s violent sexual and physical assaults to a
criminal investigator with the Bureau of Indian Affairs.
On the basis of the
foregoing, we conclude that Stark was qualified to testify as an expert witness,
that his testimony focused on a subject not familiar to the average person and
that his testimony was helpful to the jury. Accordingly, his expert testimony
was properly admitted.FN15
FN15. Of course, expert testimony, like all
other evidence, must be relevant to be admitted. State v. Wade, 96
C
The defendant’s final
claim is that the expert testimony in this case was actually opinion testimony
as to the credibility of a witness, and therefore should have been excluded
because it improperly invaded the province of the jury. The defendant relies on two recently
decided cases; United States v. Whitted, 994 F.2d 444 (8th Cir.1993);
State v. Cheeks, 253 Kan. 93, 853 P.2d 655 (1993); in which convictions
were reversed because physician experts testified that, in their opinions, the
child victims were in fact sexually abused by the respective defendants. In Whitted, the court concluded
that the expert testimony, which was based on the victim's subjective version of
events, “significantly enhanced [the victim's] believability and unfairly tilted
the scales in her favor.” United
States v. Whitted, supra, 447.
In Cheeks, the expert witness identified a child's crying and
defecating as the two forms of behavior most likely to trigger an assault or
abuse of a child, and then testified that such behavior was present and was a
likely trigger of the abuse in that case.
State v. Cheeks, 253
Certainly, the jury
had the right to consider Stark’s testimony in determining whether to believe
the victim’s prior statement or her testimony at trial. Stark did not testify, however, that the
victim was in fact battered and therefore did not comment, directly or
indirectly, on her credibility.FN16
Rather, this case is similar to State v. Spigarolo, supra, 210
FN16.
By noting that Stark did not testify that the victim was a battered
spouse, we do not imply that such testimony would have implicitly commented on
her credibility. Rather, in the
context of this case, we need not decide whether an expert witness may offer his
or her opinion as to whether a spouse is a battered spouse, nor decide whether
such an opinion would implicitly comment on the credibility of the
spouse.
Under the
circumstances of this case, Stark’s expert testimony was properly admitted “to
assist the jury in understanding, not whether [the victim] was a credible
witness on the witness stand, but whether her conduct ... was consistent with
the pattern and profile of a battered woman.” State v. Frost, supra, 242
N.J.Super. at 614, 577 A.2d 1282.
We conclude that the expert testimony did not invade the province of the
jury in determining the credibility of witnesses.
[¶28] In the case Arcoren v. United States, 929 F.2d 1235,
1238-43 (8th Cir. 1991), the appellate court
considered a related issue that again involved a recantation by a
victim:
A. As noted, at trial
Brave Bird recanted her grand jury testimony. She denied Arcoren raped her,
denied that she had seen Arcoren and
The government then
called an expert witness, Carol Maicky, to testify regarding “battered woman
syndrome.” She was a psychologist who had worked with battered women for
10 years and with rape victims for 14 years. The government gave the following
reasons for offering the evidence:
Your Honor, there are
certain facts which the jury has before it from the testimony which we contend
will go unnoticed by a lay jury unless put into a perspective by an expert.
We're offering her opinion under Rule 702 to show that these particular facts,
while [they] may seem insignificant by themselves when put together against a
battered women syndrome would allow the jury to determine the credibility of her
in court testimony ... and help them determine which of the two diametrically
opposed sworn statements of Brenda Brave Bird to believe.
After hearing Maicky’s
proffered testimony in chambers, the court, over defense counsel's objection,
admitted the evidence. The court
ruled that the evidence was admissible under Rule 702 of the Federal Rules of
Evidence because it was “scientific, technical or other specialized knowledge
[that] will assist the [jury] to understand the evidence or to determine a fact
in issue” and that “the evidence would be more probative than prejudicial.” The court, however, warned that Maicky
could not “testify as to the ultimate fact that a particular party in this case,
not the defendant, the party actually suffers from battered women syndrome. This determination must be left to the
trier of fact.”
In her testimony
before the jury, Maicky generally described the battered woman syndrome.
According to her testimony, which was based on her knowledge of the literature
dealing with the subject and her professional experience, a “battered woman” is
one who assumes responsibility for a cycle of violence occurring in a
relationship, where the abuser (a husband or boyfriend) has told her that the
first violent episode was her fault.
Maicky described the syndrome's general characteristics to include (1)
the belief that violence to the woman is her fault; (2) an inability to place
responsibility for the violence elsewhere; (3) a fear for her life and the lives
of her children; and (4) an irrational belief that the abuser is omnipresent and
omniscient. According to Ms.
Maicky, a battered woman develops coping mechanisms to deal with the
ever-present violence, believing that by doing just one more thing she can stop
the violence.
In accordance with the
court's direction, Maicky expressed no opinion whether Brave Bird suffered from
or displayed symptoms of the syndrome.
B. The district court admitted Maicky’s
testimony pursuant to Rule 702 of the Federal Rules of Evidence which
provides:
If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
Rule 702 reflects an
attempt to liberalize the rules governing the admission of expert
testimony. See J. Weinstein
& M. Berger, Weinstein’s Evidence, ¶ 702[02] at 702-30 (1988). The Advisory Notes to the Rule comment
that “[t]he rule is broadly phrased. The fields of knowledge which may be drawn
upon are not limited merely to the ‘scientific’ and ‘technical’ but extend to
all ‘specialized’ knowledge. Similarly, the expert is viewed, not in a narrow
sense, but as a person qualified by ‘knowledge, skill, experience, training or
education.’ ” Fed.R.Evid. 702,
Advisory Note.
Rule 702 is one of
admissibility rather than exclusion.
See, e.g., Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir.1990)
(“Rule 702 was intended to function as a broad rule of admissibility.”);
Hurst v. United States, 882 F.2d 306, 311 (8th Cir.1989) (“A trial court
should exclude an expert opinion only if it is so fundamentally unsupported that
it cannot help the factfinder.”).
“[T]he concept expressed by the Rules is sufficiently broad to embrace
psychiatric and psychological testimony from those who possess specialized
knowledge concerning mental aberrations in human behavior, when such knowledge
will help the jury to understand relevant issues in the case.”
The jury in the
present case was faced with a bizarre situation. Immediately after the rapes and
assaults, Brave Bird had described them to the police officer whose car she
flagged down, to the nurse and the doctor at the hospital where she had gone for
treatment, and to a criminal investigator from the Bureau of Indian Affairs.
Three days later, she described the rapes and assaults in detail in sworn
testimony before the grand jury.
Four months later, at
Arcoren’s trial, she recanted her grand jury testimony. There she stated that
she either did not remember statements to the grand jury or that, if she did
remember them, the statements were incorrect and that some of them were things
she had “made up”. At trial, she
also changed her explanation for the injuries to her leg she had suffered on
September 18, 1989. Although she
told the police officer, the nurse and doctors at the hospital, and the criminal
investigator that Arcoren had inflicted those injuries when he beat her, at
trial she testified that the injuries resulted from a motorbike wreck. She also testified that the reason she
stopped the police officer after leaving Arcoren’s apartment was because she had
been driving 70 miles per hour.
A jury naturally would
be puzzled at the complete about-face she made, and would have great difficulty
in determining which version of Brave Bird’s testimony it should believe. If
there were some explanation for Brave Bird’s changed statements, such
explanation would aid the jury in deciding which statements were
credible.
Maicky’s expert
testimony regarding the battered woman syndrome provided that explanation to the
jury. As the witness told the jury,
the syndrome is a psychological condition, which leads a female victim of
physical abuse to accept her beatings because she believes that she is
responsible for them, and hopes that by accepting one more beating, the pattern
will stop. Maicky’s testimony provided the jury with
Maicky’s testimony
thus met the requirement of Rule 702 that “a witness qualified as an expert by
knowledge, skill, experience, training or education” may testify with respect to
“scientific, technical or other specialized knowledge” that “will assist the
trier of fact to understand the evidence or to determine a fact in issue.” In permitting Maicky to testify, the
district court ruled that she was qualified as an expert based on “a degree in
psychology from the University of Michigan which is judicially noticed as a
respected university plus the length of time of actual experience that she has
had in this general field,” and that the evidence would be “relevant and
probative for the fact finders, the jury,” to aid the jury in “pass[ing] upon
the veracity or lack of veracity of the wife.”
….
Arcoren does not here
challenge either the reliability or the general admissibility of battered woman
syndrome evidence. Instead, he
urges that introduction of such evidence should be limited to cases in which it
is offered to bolster a claim of self-defense. There is no persuasive reason, however,
for thus limiting it. The standard
under Rule 702 for the admissibility of expert testimony is whether the
“evidence will assist the trier of fact to understand the evidence or determine
a fact in issue.” If the expert
testimony serves that end, it is immaterial whether the testimony is presented
by the prosecution or by the defense. As a New Jersey appellate court stated, in
affirming the admission of battered woman syndrome evidence offered by the
prosecution, in a case where the wife was the complainant against her husband,
“It would seem anomalous to allow a battered woman, where she is a criminal
defendant, to offer this type of expert testimony in order to help the jury
understand the actions she took, yet deny her that same opportunity when she is
the complaining witness and/or victim and her abuser is the criminal
defendant.”
This court has held
expert testimony admissible under Rule 702 in other circumstances where the
expert’s specialized knowledge would assist the jury to understand the
evidence. See, e.g., United
States v. Scavo, 593 F.2d 837, 844 (8th Cir.1979) (bookmaker’s statements
“virtually incomprehensible to the layman, are fraught with meaning to a person
familiar with gambling enterprises”); United States v. Barletta, 565 F.2d
985, 991-92 (8th Cir.1977) (conversations conducted in the “peculiar argot of
bookmakers” require expert testimony “to be intelligible to the district
court”); see also United States v. Brown, 776 F.2d 397, 400 (2d
Cir.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339
(1986) (jury assisted by expert's description of “terms and practices” generally
used in street narcotics deals); United States v. Dawson, 556 F.Supp.
418, 423 (E.D.Pa.1982), aff'd, 727 F.2d 1101 (3d Cir.1984) (“[E]xpert
testimony is readily admissible to interpret and explain the use of code words
and the meaning of certain language used in drug trafficking.”). This principle is equally applicable to
a situation where a psychologist testifies to “mental aberrations in human
behavior, when such knowledge will help the jury to understand relevant issues
in the case.”
Arcoren also
challenges the admission of Maicky’s testimony on the ground that “the jury was
in a better position than the government's expert to judge the credibility of
Brave Bird.” Maicky, however,
expressed no opinion on whether Brave Bird suffered from battered woman syndrome
or which of her conflicting statements were more credible. Maicky merely provided expert
The decision whether
to admit expert testimony ordinarily lies within the discretion of the trial
court and will not be reversed unless there has been an abuse of
discretion. United States v.
Rose, 731 F.2d 1337, 1345 (8th Cir.), cert. denied, 469 U.S. 931, 105
S.Ct. 326, 83 L.Ed.2d 263 (1984).
In the unusual circumstances of this case, the district court did not
abuse its discretion in admitting Maicky’s expert testimony regarding battered
woman syndrome.
.…
In her grand jury
testimony, Brave Bird stated that a year before, on September 22, 1988, Arcoren
had hit her with a baseball bat and broken her arm. At trial, she stated that she had not
been afraid of Arcoren while she was in the bedroom with him and when she
flagged down the policeman. She was then asked whether Arcoren had beaten her
with a baseball bat on September 22, 1988.
The district court overruled Arcoren’s objection to the testimony. When she answered “no,” she was
confronted with her grand jury testimony that “he broke my arm with a bat back
in September of ’88,” and acknowledged that she “must have” given “that
testimony under oath” “if you've got it down.”
Arcoren challenges the
admission of this evidence as inconsistent with Rule 404(b) of the Federal Rules
of Evidence. Rule 404(b) provides that, although “[e]vidence of other crimes,
wrongs or acts” is inadmissible to prove a person’s character to show action in
conformity therewith, it may be “admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.”
In this circuit, for
other act evidence to be admissible under Rule 404(b):
(1) the evidence of
the other act must be relevant to a material issue; (2) the other act must be
similar in kind and reasonably close in time to the crime charged; (3) the
evidence of the other act must be clear and convincing; and (4) the probative
value of the evidence must not be outweighed by its
prejudice.
Rule 404(b) is one of
inclusion rather than exclusion, permitting the admission of other act evidence,
unless the evidence tends to prove only the defendant’s criminal disposition.
United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert.
denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984); United States
v. Wagoner, 713 F.2d 1371, 1375 (8th Cir.1983). The district court has broad discretion
in determining whether to admit other act evidence, and its determination will
be upheld unless there is an abuse of discretion. Wagoner, 713 F.2d at
1375.
One of Arcoren’s
defenses to the charges relating to Brave Bird was that she consented to sexual
intercourse. Evidence that Arcoren
hit her with a baseball bat a year before was relevant to that issue, since it
suggested that any apparent consent by Brave Bird might have resulted from fear
of bodily injury if she resisted.
Moreover, since Brave Bird initially denied at trial that Arcoren had hit
her, but had testified to the contrary before the grand jury, the evidence also
was relevant to the credibility of her trial testimony generally. Arcoren has not shown that the evidence
tended to prove only his criminal disposition. The district court did not abuse its
discretion in admitting the evidence.
See
[¶29] We have considered these cases in
the light of the facts and circumstances of the instant case and we conclude
that the district court did not abuse its discretion in admitting the testimony
in controversy.
CONCLUSION
[¶30] Because Ms. Thurin’s expert
testimony did not purport to vouch for the credibility of Mrs. Dean, nor did it
impugn the character of Mr. Dean, we find no error requiring reversal of Mr.
Dean’s conviction. The judgment and
sentence is affirmed.
FOOTNOTES
1§ 6-2-501. Simple assault; battery;
penalties.
(a) A person is guilty of simple assault if, having the
present ability to do so, he unlawfully attempts to cause bodily injury to
another.
(b) A person is guilty
of battery if he unlawfully touches another in a rude, insolent or angry manner
or intentionally, knowingly or recklessly causes bodily injury to
another.
(c) Except as provided by subsection (e) of this section,
simple assault is a misdemeanor punishable by a fine of not more than seven
hundred fifty dollars ($750.00).
(d) Except as provided by subsection (f) of this section,
battery is a misdemeanor punishable by imprisonment for not more than six (6)
months, a fine of not more than seven hundred fifty dollars ($750.00), or
both. Notwithstanding any other
provision of law, the term of probation imposed by a judge under this subsection
may exceed the maximum term of imprisonment established for the offense under
this subsection provided the term of probation, together with any extension
thereof, shall in no case exceed one (1) year.
(e) A household member as defined by W.S. 35-21-102 who is
convicted upon a plea of guilty or no contest or found guilty of simple assault
against any other household member, after having been convicted upon a plea of
guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e)
or (f), 6-2-502, 6-2-503, 6-2-504 or other substantially similar law of this or
any other state, tribe or territory against any other household member, is
guilty of a misdemeanor punishable by imprisonment for not more than six (6)
months, a fine of not more than seven hundred fifty dollars ($750.00), or
both.
(f) A household member
as defined by W.S. 35-21-102 who commits a second or subsequent battery against
any other household member shall be punished as
follows:
(i) A person convicted upon a plea of guilty or no contest or
found guilty of a second offense under this subsection against any other
household member, after having been convicted upon a plea of guilty or no
contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) or (f),
6-2-502, 6-2-503, 6-2-504 or other substantially similar law of this or any
other state, tribe or territory against any other household member within the
previous five (5) years is guilty of a misdemeanor punishable by imprisonment
for not more than one (1) year, a fine of not more than one thousand dollars
($1,000.00), or both.
Notwithstanding any other provision of law, the term of probation imposed
by a court under this paragraph may exceed the maximum term of imprisonment
established for this offense under this paragraph provided the term of
probation, together with any extension thereof, shall in no case exceed two (2)
years;
(ii) A person
convicted upon a plea of guilty or no contest or found guilty of a third or
subsequent offense under this subsection against any other household member,
after having been convicted upon a plea of guilty or no contest or found guilty
of a violation of W.S. 6-2-501(a), (b), (e) or (f), 6-2-502, 6-2-503, 6-2-504 or
other substantially similar law of this or any other state, tribe or territory
against any other household member within the previous ten (10) years is guilty
of a felony punishable by imprisonment for not more than five (5) years, a fine
of not more than two thousand dollars ($2,000.00), or
both.
§ 35-21-102.
Definitions.
(a) As used in this
act:
(i) “Adult” means a person who is sixteen (16) years of age or
older, or legally married;
(ii) “Court” means the circuit court or, if the county does
not have a circuit court, the district court in the county where an alleged
victim of domestic abuse resides or is found;
(iii) “Domestic abuse” means the occurrence of one (1) or more
of the following acts by a household member but does not include acts of self
defense:
(A) Physically abusing, threatening to physically abuse,
attempting to cause or causing physical harm or acts which unreasonably restrain
the personal liberty of any household member;
(B) Placing a household member in reasonable fear of imminent
physical harm;
or
(C) Causing a household member to engage involuntarily in
sexual activity by force, threat of force or
duress.
(iv) “Household member”
includes:
(A) Persons married to each
other;
(B) Persons living with each
other as if married;
(C) Persons formerly married to each
other;
(D) Persons formerly living with each other as if
married;
(E) Parents and their adult
children;
(F) Other adults sharing common living
quarters;
(G) Persons who are the parents of a child but who are not
living with each other; and
(H) Persons who are in, or have been in, a dating
relationship.
2On cross-examination, Officer Gutierrez testified that he felt Mrs. Dean’s head but did not note a bump or any abrasions.
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