STATE of Kansas, Appellant,
v.
Peggy STEWART, Appellee.
No. 60896.
Oct. 21, 1988.
Defendant was charged with murder in the
first degree of her husband. The Butler District Court, John M. Jaworsky, J.,
entered verdict of not guilty. The prosecution appealed with a question
reserved. The Supreme Court, Lockett, J., held that statutory justification for
use of deadly force in self- defense did not excuse homicide committed by
battered wife where there was no evidence of deadly threat or imminent danger
contemporaneous with killing.
Appeal sustained.
Prager, C.J., dissented.
Herd, J., filed a dissenting opinion.
Syllabus by the Court
1. Under the common law, the excuse for
killing in self-defense is founded upon necessity, be it real or apparent.
2. Where self-defense is asserted, evidence
of the deceased's long-term cruelty and violence towards the defendant is
admissible. In cases involving battered spouses, expert evidence of the
battered woman syndrome is relevant to a determination of the reasonableness of
the defendant's perception of danger.
3. The existence of the battered woman
syndrome in and of itself does not operate as a defense to murder.
4. In order to instruct a jury on
self-defense, there must be some showing of an imminent threat or a
confrontational circumstance involving an overt act by an aggressor. There is
no exception to this requirement where the defendant has suffered long-term
domestic abuse and the victim is the abuser. In such cases, the issue is not
whether the defendant believes homicide is the solution to past or future
problems with the batterer, but rather whether circumstances surrounding the
killing were sufficient to create a reasonable belief in the defendant that the
use of deadly force was necessary.
5. Our test for self-defense is a two-pronged
one. We first use a subjective standard to determine whether the defendant
sincerely and honestly believed it necessary
to kill in order to defend. We then use an objective standard to determine
whether defendant's belief was reasonable--specifically, whether a reasonable
person in defendant's circumstances would have perceived self- defense as
necessary.
6. When a battered woman kills her sleeping
spouse when she is in no imminent danger, the killing is not reasonably
necessary and a self-defense instruction may not be given.
Michael E. Ward, Deputy Co. Atty., argued the
cause, and Morgan Metcalf, County Atty., and Robert T. Stephan, Atty. Gen.,
were with him on the brief for appellant.
Jessica R. Kunen, Deputy Appellate Defender,
argued the cause and was on the brief for appellee.
James W. Clark, Executive Director, Kansas
County and Dist. Atty. Assn., Topeka, and Geary N. Gorup of Moore & Rapp, **574
P.A., Wichita, *640 were on the amicus curiae brief for the Kansas
County and Dist. Atty. Assn.
LOCKETT, Justice.
A direct appeal by the prosecution upon a
question reserved (K.S.A.1987 Supp. 22-3602[b][3] ) asks whether the statutory
justification for the use of deadly force in self-defense provided by K.S.A.
21-3211 excuses a homicide committed by a battered wife where there is no
evidence of a deadly threat or imminent danger contemporaneous with the
killing. An amicus curiae brief has been filed by the Kansas County and
District Attorney Association.
Facts
Peggy Stewart fatally shot her husband, Mike
Stewart, while he was sleeping. She was charged with murder in the first
degree, K.S.A.
21-3401. Defendant pled not guilty, contending
that she shot her husband in self-defense. Expert evidence showed that Peggy
Stewart suffered from the battered woman syndrome. Based upon the battered
woman syndrome, the trial judge instructed the jury on self-defense. The jury
found Peggy Stewart not guilty.
The State stipulates that Stewart
"suffered considerable abuse at the hands of her husband," but
contends that the trial court erred in giving a self-defense instruction since
Peggy Stewart was in no imminent danger when she shot her sleeping husband. We
agree that under the facts of this case the giving of the self-defense
instruction was erroneous. We further hold that the trial judge's self-defense
instruction improperly allowed the jury to determine the reasonableness of
defendant's belief that she was in imminent danger from her individual
subjective viewpoint rather than the viewpoint of a reasonable person in her
circumstances.
Following an annulment from her first husband
and two subsequent divorces in which she was the petitioner, Peggy Stewart
married Mike Stewart in 1974. Evidence at trial disclosed a long history of
abuse by Mike against Peggy and her two
daughters from one of her prior marriages. Laura, one of Peggy's daughters,
testified that early in the marriage Mike hit and kicked Peggy, and that after
the first year of the marriage Peggy exhibited signs of severe psychological
problems. Subsequently, Peggy was hospitalized and diagnosed as having symptoms
of paranoid schizophrenia; she responded to treatment and was soon released. *641
It appeared to Laura, however, that Mike was encouraging Peggy to take more
than her prescribed dosage of medication.
In 1977, two social workers informed Peggy
that they had received reports that Mike was taking indecent liberties with her
daughters. Because the social workers did not want Mike to be left alone with the
girls, Peggy quit her job. In 1978, Mike began to taunt Peggy by stating that
Carla, her 12-year-old daughter, was "more of a wife" to him than
Peggy.
Later, Carla was placed in a detention
center, and Mike forbade Peggy and Laura to visit her. When Mike finally
allowed Carla to return home in the middle of summer, he forced her to sleep in
an un-air conditioned room with the windows nailed shut, to wear a heavy
flannel nightgown, and to cover herself with heavy blankets. Mike would then
wake Carla at 5:30 a.m. and force her to do all the housework. Peggy and Laura
were not allowed to help Carla or speak to her.
When Peggy confronted Mike and demanded that
the situation cease, Mike responded by holding a shotgun to Peggy's head and
threatening to kill her. Mike once kicked
Peggy so violently in the chest and ribs that she required hospitalization.
Finally, when Mike ordered Peggy to kill and bury Carla, she filed for divorce.
Peggy's attorney in the divorce action testified in the murder trial that Peggy
was afraid for both her and her children's lives.
One night, in a fit of anger, Mike threw
Carla out of the house. Carla, who was not yet in her teens, was forced out of
the home with no money, no coat, and no place to go. When the family heard that
Carla was in Colorado, Mike refused to allow Peggy to contact or even talk
about Carla.
**575 Mike's intimidation of Peggy
continued to escalate. One morning, Laura found her mother hiding on the school
bus, terrified and begging the driver to take her to a neighbor's home. That
Christmas, Mike threw the turkey dinner to the floor, chased Peggy outside,
grabbed her by the hair, rubbed her face in the dirt, and then kicked and beat
her.
After Laura moved away, Peggy's life became
even more isolated. Once, when Peggy was working at a cafe, Mike came in and
ran all the customers off with a gun because he wanted Peggy to go home and
have sex with him right that minute. He *642 abused both drugs and
alcohol, and amused himself by terrifying Peggy, once waking her from a sound
sleep by beating her with a baseball bat. He shot one of Peggy's pet cats, and
then held the gun against her head and threatened to pull the trigger. Peggy
told friends that Mike would hold a shotgun to her head and threaten to blow it
off, and indicated that one day he would
probably do it.
In May 1986, Peggy left Mike and ran away to
Laura's home in Oklahoma. It was the first time Peggy had left Mike without
telling him. Because Peggy was suicidal, Laura had her admitted to a hospital.
There, she was diagnosed as having toxic psychosis as a result of an overdose
of her medication. On May 30, 1986, Mike called to say he was coming to get
her. Peggy agreed to return to Kansas. Peggy told a nurse she felt like she
wanted to shoot her husband. At trial, she testified that she decided to return
with Mike because she was not able to get the medical help she needed in
Oklahoma.
When Mike arrived at the hospital, he told
the staff that he "needed his housekeeper." The hospital released
Peggy to Mike's care, and he immediately drove her back to Kansas. Mike told
Peggy that all her problems were in her head and he would be the one to tell
her what was good for her, not the doctors. Peggy testified that Mike
threatened to kill her if she ever ran away again. As soon as they arrived at
the house, Mike forced Peggy into the house and forced her to have oral sex
several times.
The next morning, Peggy discovered a loaded
.357 magnum. She testified she was afraid of the gun. She hid the gun under the
mattress of the bed in a spare room. Later that morning, as she cleaned house,
Mike kept making remarks that she should not bother because she would not be
there long, or that she should not bother with her things because she could not
take them with her. She testified she was
afraid Mike was going to kill her.
Mike's parents visited Mike and Peggy that
afternoon. Mike's father testified that Peggy and Mike were affectionate with
each other during the visit. Later, after Mike's parents had left, Mike forced
Peggy to perform oral sex. After watching television, Mike and Peggy went to
bed at 8:00 p.m. As Mike slept, Peggy thought about suicide and heard voices in
her head repeating over and over, "kill or be killed." At this time,
there were two vehicles in *643 the driveway and Peggy had access to the
car keys. About 10:00 p.m., Peggy went to the spare bedroom and removed the gun
from under the mattress, walked back to the bedroom, and killed her husband
while he slept. She then ran to the home of a neighbor, who called the police.
When the police questioned Peggy regarding
the events leading up to the shooting, Peggy stated that things had not gone
quite right that day, and that when she got the chance she hid the gun under
the mattress. She stated that she shot Mike to "get this over with, this
misery and this torment." When asked why she got the gun out, Peggy stated
to the police:
"I'm
not sure exactly what ... led up to it ... and my head started playing games
with me and I got to thinking about things and I said I didn't want to be by
myself again.... I got the gun out because there had been remarks made about me
being out there alone. It was as if Mike was going to do something again like
had been done before. He had gotten me down here from McPherson one time and he went and told them
that I had done something and **576 he had me put out of the house and
was taking everything I had. And it was like he was going to pull the same
thing over again."
Two expert witnesses testified during the
trial. The expert for the defense, psychologist Marilyn Hutchinson, diagnosed
Peggy as suffering from "battered woman syndrome," or post-traumatic
stress syndrome. Dr. Hutchinson testified that Mike was preparing to escalate
the violence in retaliation for Peggy's running away. She testified that loaded
guns, veiled threats, and increased sexual demands are indicators of the
escalation of the cycle. Dr. Hutchinson believed Peggy had a repressed
knowledge that she was in a "really grave lethal situation."
The State's expert, psychiatrist Herbert
Modlin, neither subscribed to a belief in the battered woman syndrome nor to a
theory of learned helplessness as an explanation for why women do not leave an
abusive relationship. Dr. Modlin testified that abuse such as repeated forced
oral sex would not be trauma sufficient to trigger a post-traumatic stress
disorder. He also believed Peggy was erroneously diagnosed as suffering from
toxic psychosis. He stated that Peggy was unable to escape the abuse because
she suffered from schizophrenia, rather than the battered woman syndrome.
At defense counsel's request, the trial judge
gave an instruction on self- defense to the jury. The jury found Peggy not
guilty.
Opinion
The first issue is whether we have jurisdiction to hear this
appeal. K.S.A.1987 Supp. 22-3602(b) provides:
*644 "Appeals to the supreme court may be
taken by the prosecution from cases before a district judge as a matter of
right in the following cases, and no others:
"(1)
From an order dismissing a complaint, information or indictment;
"(2)
from an order arresting judgment;
"(3)
upon a question reserved by the prosecution; or
"(4)
upon an order granting a new trial in any case involving a class A or B
felony."
[1][2][3] Although the State may not appeal an acquittal, it may
reserve questions for appeal. State
v. Martin,
232 Kan. 778, 779, 658 P.2d 1024 (1983). We will
not entertain an appeal by the prosecution merely to determine whether the
trial court committed error. State
v. Lamkin,
229 Kan. 104, Syl. § 2, 621 P.2d 995 (1981). The
appeal by the prosecution must raise a question of statewide interest, the
answer to which is essential to the just administration of criminal law. State
v. Martin,
232 Kan. at 780, 658 P.2d 1024.
[4] The question reserved is whether the trial judge erred in
instructing on self-defense when there was no imminent threat to the defendant
and no evidence of any argument or altercation between the defendant and the victim contemporaneous with the killing. We
find this question and the related question of the extent to which evidence of
the battered woman syndrome will be allowed to expand the statutory
justification for the use of deadly force in self defense are questions of
statewide importance.
The State claims that under the facts the
instruction should not have been given because there was no lethal threat to
defendant contemporaneous with the killing. The State points out that Peggy's
annulment and divorces from former husbands, and her filing for divorce after
leaving Mike, proved that Peggy knew there were non-lethal methods by which she
could extricate herself from the abusive relationship.
[5] Under the common law, the excuse for killing in
self-defense is founded upon necessity, be it real or apparent. 40 Am.Jur.2d,
Homicide § 151, p. 439. Early Kansas cases held that killing in self-defense
was justifiable when the defendant had reasonable grounds to believe that an
aggressor (1) had a design to take the defendant's life, (2) attempted to execute
the design or was in an apparent situation to do so, and (3) induced in the
defendant a reasonable belief that he intended to do so immediately. State
v. Horne,
9 Kan. * 119, * 129 (1872), overruled on other
grounds 15 Kan. 547, 554 (1875).
**577 *645 In State
v. Rose,
30 Kan. 501, 1 Pac. 817 (1883), we approved an
instruction on self-defense which stated in part: "[B]efore a person can take the life of another, it must
reasonably appear that his own life must have been in imminent danger, or that
he was in imminent danger of some great bodily injury from the hands of the
person killed. No one can attack and kill another because he may fear injury at
some future time." 30
Kan. at 503, 1 Pac. 817. The perceived imminent
danger had to occur in the present time, specifically during the time in which
the defendant and the deceased were engaged in their final conflict. 30
Kan. at 506, 1 Pac. 817.
These common-law principles were codified in K.S.A.
21-3211, which provides:
"A
person is justified in the use of force against an aggressor when and to the
extent it appears to him and he reasonably believes that such conduct is
necessary to defend himself or another against such aggressor's imminent use of
unlawful force."
[6] The traditional concept of self-defense has posited
one-time conflicts between persons of somewhat equal size and strength. When
the defendant claiming self-defense is a victim of long-term domestic violence,
such as a battered spouse, such traditional concepts may not apply. Because of
the prior history of abuse, and the difference in strength and size between the
abused and the abuser, the accused in such cases may choose to defend during a momentary
lull in the abuse, rather than during a conflict. See Comment, Criminal Law:
The Kansas Approach to the Battered Woman's Use of Self-Defense [State
v. Hundley,
236 Kan. 461, 693 P.2d 475 (1985) ], 25 Washburn
L.J. 174 (1985). However, in order to warrant the giving of a self-defense
instruction, the facts of the case must still show that the spouse was in
imminent danger close to the time of the killing.
[7][8][9] A person is justified in using force against an aggressor
when it appears to that person and he or she reasonably believes such force to
be necessary. A reasonable belief implies both an honest belief and the
existence of facts which would persuade a reasonable person to that belief. K.S.A.
21-3211; State
v. Childers,
222 Kan. 32, 48, 563 P.2d 999 (1977). A
self-defense instruction must be given if there is any evidence to support a
claim of self-defense, even if that evidence consists solely of the defendant's
testimony. State
v. Hill,
242 Kan. 68, 78, 744 P.2d 1228 (1987).
*646 [10][11][12] Where self-defense is asserted, evidence of the deceased's
long-term cruelty and violence towards the defendant is admissible. State
v. Hundley,
236 Kan. 461, 464, 693 P.2d 475 (1985); State
v. Gray,
179 Kan. 133, 292 P.2d 698 (1956). In cases
involving battered spouses, expert evidence of the battered woman syndrome is
relevant to a determination of the reasonableness of the defendant's perception
of danger. State
v. Hodges,
239 Kan. 63, 716 P.2d 563 (1986). Other courts
which have allowed such evidence to be introduced include those in Florida, Georgia, Illinois, Maine, New Jersey, New York,
Pennsylvania, Washington, and Wisconsin. See Johann & Osanka, "I
Didn't Mean to Kill Him!," 14 Barrister 19, 20 (Fall 1987). However, no
jurisdictions have held that the existence of the battered woman syndrome in
and of itself operates as a defense to murder.
[13] In order to instruct a jury on self-defense, there must be
some showing of an imminent threat or a confrontational circumstance involving
an overt act by an aggressor. There is no exception to this requirement where
the defendant has suffered long-term domestic abuse and the victim is the
abuser. In such cases, the issue is not whether the defendant believes homicide
is the solution to past or future problems with the batterer, but rather
whether circumstances surrounding the killing were sufficient to create a
reasonable belief in the defendant that the use of deadly force was necessary.
In three recent Kansas cases where battered
women shot their husbands, the women were clearly threatened in the moments
prior to the shootings. **578State
v. Hundley,
236 Kan. 461, 693 P.2d 475, involved a severely
abused wife, Betty Hundley, who shot her husband, Carl, when he threatened her
and reached for a beer bottle. Several weeks prior to the shooting, Betty had
moved to a motel. Carl continued to harass her and threaten her life. On the
day of the shooting, Carl threatened to kill her. That night he forcibly broke
into Betty's motel room, beat and choked her, painfully shaved her pubic hair, and forced her to have intercourse with
him. Thereafter, he pounded a beer bottle on the night stand and demanded that
Betty get him some cigarettes. Betty testified that he had attacked her with
beer bottles before. She pulled a gun from her purse and demanded that Carl
leave. When Carl saw *647 the gun he stated: "You are dead, bitch,
now." Betty fired the gun and killed Carl.
In State
v. Osbey,
238 Kan. 280, 710 P.2d 676 (1985), Osbey was
convicted of first-degree murder of her husband. On the day of the shooting,
the husband had a gun and had communicated threats to kill Osbey both to her
and others. He had shown the gun to a friend of Osbey's who warned Osbey. After
an argument, when the husband was moving out, Osbey threw his chair towards his
van. Osbey's husband said, "I'm sick of this shit," picked up some
record albums from inside the van, and started towards the house. Osbey ran
inside, loaded a gun, and told her husband to stay back because she did not
want to hurt him. Her husband said he did not want to hurt her, either, and
reached behind the albums he was carrying. Fearing he was reaching for his gun,
Osbey shot him.
In State
v. Hodges,
239 Kan. 63, 716 P.2d 563 (1986), on the night of
the shooting, the husband attacked Hodges and beat her head against a doorjamb
twenty times. He then said he was going to kill her. Hodges was then kicked and
beaten before making her way into another room. When her husband said, "God damn you. Get in here now!" she
grabbed a gun, ran to the doorway, and shot him.
On appeal, none of these cases raised the
issue of the propriety of the self- defense instruction. Each case involved a
threat of death to the wife and a violent confrontation between husband and
wife, contemporaneous with the shooting. Here, however, there is an absence of
imminent danger to defendant: Peggy told a nurse at the Oklahoma hospital of
her desire to kill Mike. She later voluntarily agreed to return home with Mike
when he telephoned her. She stated that after leaving the hospital Mike
threatened to kill her if she left him again. Peggy showed no inclination to
leave. In fact, immediately after the shooting, Peggy told the police that she
was upset because she thought Mike would leave her. Prior to the shooting,
Peggy hid the loaded gun. The cars were in the driveway and Peggy had access to
the car keys. After being abused, Peggy went to bed with Mike at 8 p.m. Peggy
lay there for two hours, then retrieved the gun from where she had hidden it
and shot Mike while he slept.
Under these facts, the giving of the
self-defense instruction was erroneous. Under such circumstances, a battered
woman *648 cannot reasonably fear imminent life-threatening danger from
her sleeping spouse. We note that other courts have held that the sole fact
that the victim was asleep does not preclude a self-defense instruction. In State
v. Norman,
89 N.C.App. 384, 366
S.E.2d 586 (1988), cited by defendant, the
defendant's evidence disclosed a long history of abuse. Each time defendant
attempted to escape, her husband found and beat her. On the day of the
shooting, the husband beat defendant continually throughout the day, and
threatened either to cut her throat, kill her, or cut off her breast. In the
afternoon, defendant shot her husband while he napped. The North Carolina Court
of Appeals held it was reversible error to fail to instruct on self-defense.
The court found that, although decedent was napping at the time defendant shot
him, defendant's unlawful act was closely related in time to an assault and
threat of death by decedent against defendant and that the decedent's nap was
"but a momentary hiatus in a continuous reign of terror." 89
N.C.App. at 394, 366 S.E.2d 586.
[14] There is no doubt that the North Carolina court determined
that the sleeping **579 husband was an evil man who deserved the justice
he received from his battered wife. Here, similar comparable and compelling
facts exist. But, as one court has stated: "To permit capital punishment
to be imposed upon the subjective conclusion of the [abused] individual that
prior acts and conduct of the deceased justified the killing would amount to a
leap into the abyss of anarchy." Jahnke
v. State,
682 P.2d 991, 997 (Wyo.1984). Finally, our
legislature has not provided for capital punishment for even the most heinous
crimes. We must, therefore, hold that when a battered woman kills her sleeping
spouse when there is no imminent danger, the killing is not reasonably necessary and a self-defense
instruction may not be given. To hold otherwise in this case would in effect
allow the execution of the abuser for past or future acts and conduct.
One additional issue must be addressed. In
its amicus curiae brief, the Kansas County and District Attorney
Association contends the instruction given by the trial court improperly
modified the law of self-defense to be more generous to one suffering from the
battered woman syndrome than to any other defendant relying on self-defense. We
agree and believe it is necessary to clarify certain portions of our opinion in
State
v. Hodges,
239 Kan. 63, 716 P.2d 563.
*649 Here, the trial judge gave the
instruction approved in State
v. Simon,
231 Kan. 572, 575, 646 P.2d 1119 (1982), stating:
"The
defendant has claimed her conduct was justified as self-defense.
"A
person is justified in the use of force against an aggressor when and to the
extent it appears to him and he reasonably believes that such conduct is
necessary to defend himself or another against such aggressor's imminent use of
unlawful force. Such justification requires both a belief on the part of the
defendant and the existence of facts that would persuade a reasonable person to
that belief."
The trial judge then added the following:
"You
must determine, from the viewpoint of the defendant's mental state, whether the defendant's belief in the need to
defend herself was reasonable in light of her subjective impressions and the
facts and circumstances known to her."
This addition was apparently encouraged by
the following language in State
v. Hodges,
239 Kan. 63, Syl. § 4, 716 P.2d 563:
"Where
the battered woman syndrome is an issue in the case, the standard for
reasonableness concerning an accused's belief in asserting self-defense is not
an objective, but a subjective standard. The jury must determine, from the
viewpoint of defendant's mental state, whether defendant's belief in the need
to defend herself was reasonable."
[15] The statement that the reasonableness of defendant's belief
in asserting self-defense should be measured from the defendant's own
individual subjective viewpoint conflicts with prior law. Our test for
self-defense is a two-pronged one. We first use a subjective standard to
determine whether the defendant sincerely and honestly believed it necessary to
kill in order to defend. We then use an objective standard to determine whether
defendant's belief was reasonable--specifically, whether a reasonable person in
defendant's circumstances would have perceived self-defense as necessary. See State
v. Simon,
231 Kan. at 573-74, 646 P.2d 1119. In State
v. Hundley,
236 Kan. at 467, 693 P.2d 475, we stated that, in
cases involving battered spouses, "[t]he objective test is how a
reasonably prudent battered wife would perceive [the aggressor's] demeanor."
[16] Hundley makes clear that it was error for the trial
court to instruct the jury to employ solely a subjective test in determining
the reasonableness of defendant's actions. Insofar as the above-quoted language
in State
v. Hodges can be read to sanction a
subjective test, this language is disapproved.
The appeal is sustained.
*650 PRAGER, C.J., dissents.
Dissent
**580 HERD, Justice, dissenting:
The sole issue before us on the question
reserved is whether the trial court erred in giving a jury instruction on
self-defense. We have a well- established rule that a defendant is entitled to
a self-defense instruction if there is any evidence to support it, even though
the evidence consists solely of the defendant's testimony. State
v. Hill,
242 Kan. 68, 78, 744 P.2d 1228 (1987). It is for
the jury to determine the sincerity of the defendant's belief she needed to act
in self-defense, and the reasonableness of that belief in light of all the
circumstances.
It is not within the scope of appellate
review to weigh the evidence. An appellate
court's function is to merely examine the record and determine if there is any
evidence to support the theory of self-defense. If the record discloses any
competent evidence upon which self-defense could be based, then the instruction
must be given. In judging the evidence for this purpose, all inferences should
be resolved in favor of the defendant. State
v. Hill,
242 Kan. at 79, 744 P.2d 1228.
To illustrate our adherence to these rules, a
discussion of cases in which self-defense was claimed is in order. In Hill, we held the trial court erred in refusing to instruct on
self-defense although the only evidence supporting defendant's theory was
testimony that the deceased, a stranger to the defendant, pushed and hit the
defendant in a crowded entrance hall and then raised her hand with an unknown
object in it.
In State
v. Simon,
231 Kan. 572, 646 P.2d 1119 (1982), the defendant
assumed the victim, who was of Oriental extraction, was proficient in the
martial arts. The two had previously had a verbal argument, and the defendant
testified he was afraid of the victim. He testified the victim had walked
toward him, cursing, on the day of the shooting, but the defendant did not
shoot him then. Instead, he waited until the victim innocently tried to enter
his own duplex. We disapproved the giving of PIK Crim.2d 54.17 as not
containing an objective standard of whether the facts were such as would persuade a reasonable person self-defense was
necessary. We did not, however, conclude that no self-defense instruction
should have been given; instead, we formulated a self-defense instruction which
properly instructed on the law. 231
Kan. at 575, 646 P.2d 1119.
In State
v. Kelly,
131 Kan. 357, 291 Pac. 945 (1930), the *651
defendant sought out his wife's unarmed lover, shot him, and told his neighbor
he did it "because of family trouble." At trial, however, the
defendant said the victim gave him "a mean look" and withdrew his
hand from his pocket; defendant then shot him from over 15 feet away. We noted
that, because "self-defense was woven into" the defendant's testimony
and a self-defense instruction was requested, the trial court was required to
give it. 131
Kan. at 359-61, 291 Pac. 945.
In State
v. Childers,
222 Kan. 32, 563 P.2d 999 (1977), we noted the
failure to give a self-defense instruction when warranted by the evidence is reversible
error, even when the defendant fails to request the instruction. We held there
was not reversible error in Childers, however, because, although the defendant testified he shot
the victim because he "didn't know what [the victim] had in his
hands," he gave no testimony which would support a reasonable belief he
was in danger. We noted the defendant testified he had never had trouble with
the deceased before, and that the deceased had not threatened him. 222
Kan. at 35, 49, 563 P.2d 999.
It is evident from prior case law appellee
met her burden of showing some competent evidence that she acted in
self-defense, thus making her defense a jury question. She testified she acted
in fear for her life, and Dr. Hutchinson corroborated this testimony. The
evidence of Mike's past abuse, the escalation of violence, his threat of
killing her should she attempt to leave him, and Dr. Hutchinson's testimony
that appellee was indeed in a "lethal situation" more than met the
minimal standard of "any evidence" to allow an instruction to be given
to the jury. See State
v. Hill,
242 Kan. at 78, 744 P.2d 1228.
Appellee introduced much uncontroverted
evidence of the violent nature of the **581 deceased and how he had
brutalized her throughout their married life. It is well settled in Kansas that
when self-defense is asserted, evidence of the cruel and violent nature of the
deceased toward the defendant is admissible. State
v. Hundley,
236 Kan. 461, 464, 693 P.2d 475 (1985); State
v. Gray,
179 Kan. 133, 292 P.2d 698 (1956). The evidence
showed Mike had a "Dr. Jekyll and Mr. Hyde" personality. He was
usually very friendly and ingratiating when non-family persons were around, but
was belligerent and domineering to family members. He had a violent temper and
would blow up without *652 reason. Mike was cruel to his two
stepdaughters, Carla and Laura, as well as
to the appellee. He took pride in hurting them or anything they held dear, such
as their pets. Mike's violence toward appellee and her daughters caused
appellee to have emotional problems with symptoms of paranoid schizophrenia. He
would overdose appellee on her medication and then cut her off it altogether.
Mike's cruelty would culminate in an outburst of violence, and then he would
suddenly become very loving and considerate. This was very confusing to
appellee. She lived in constant dread of the next outburst.
Appellee became progressively more passive
and helpless during the marriage but finally became desperate enough to
confront Mike and tell him the cruelty to her daughters had to stop. Mike
responded by holding a shotgun to her head and threatening to kill her in front
of the girls. The violence escalated. At one point, Mike kicked appellee so
violently in the chest and ribs that she required hospitalization.
Mike threw twelve-year-old Carla out of the
house without resources, and Laura left home as soon as she could. Mike would
not let appellee see her daughters and ran Laura off with a shotgun when she
tried to visit. Appellee's life became even more isolated. Towards the end,
both the phone and utilities were disconnected from the house.
Appellee finally took the car and ran away to
Laura's home in Oklahoma. It was the first time she had ever left Mike without
telling him. She was suicidal and again
hearing voices, and Laura had her admitted to a hospital. She was diagnosed as
having toxic psychosis from a bad reaction to her medication. She soon felt
better, but was not fully recovered, when Mike found out where she was and
called her to say he was coming to get her. She told a nurse she felt like she
wanted toshoot him, but the nurse noted her major emotion was one of
hopelessness.
The hospital nevertheless released appellee
to Mike's care, and he immediately drove her back to Kansas, telling her on the
way she was going to have to "settle down now" and listen to him
because he was the boss. He said if she ever ran away again, he would kill
her.
When they reached the house, Mike would not
let appellee bring in her suitcases and forced her to have oral sex four or
five times in the next 36 hours, with such violence that the inside of *653
her mouth was bruised. The next morning, appellee found a box of bullets in the
car that had not been there before. She then discovered a loaded .357 magnum.
This frightened her, because Mike had promised to keep his guns unloaded. She
did not know how to unload the gun, so she hid it under the mattress of the bed
in a spare room. As she cleaned house, Mike remarked she should not bother,
because she would not be there long. He told her she should not bother with her
things, because she could not take them with her. She took these statements to
mean she would soon be dead and she grew
progressively more terrified. Throughout the day Mike continued to force her to
have oral sex, while telling her how he preferred sex with other women.
The sexual abuse stopped when Mike's parents
came to visit. Mike's father testified everything seemed normal during their
stay. After the visit, Mike again forced appellee to perform oral sex and then
demanded at 8:00 p.m. she come to bed with him. The cumulative effect of Mike's
past history, coupled with his current abusive conduct, justified appellee's
belief that a violent explosion was imminent. As he slept, appellee was
terrified and thought **582 about suicide and heard voices in her head
repeating over and over, "kill or be killed." The voices warned her
there was going to be killing and to get away.
She went to the spare bedroom and removed the
gun from under the mattress, walked back to the bedroom, and fatally shot Mike.
After the first shot, she thought he was coming after her so she shot again and
fled wildly outside, barefoot, wearing only her underwear. Ignoring the truck
and car outside, although she had the keys in her purse inside, she ran over a
mile to the neighbors' house and pled with them to keep Mike from killing her.
She thought she had heard him chasing her. The neighbor woman took the gun from
appellee's hand and gave her a robe while her husband called the sheriff. The neighbor testified appellee appeared frightened
for her life and was certain Mike was alive and looking for her.
Psychologist Marilyn Hutchinson qualified as
an expert on the battered woman syndrome and analyzed the uncontroverted facts
for the jury. She concluded appellee was a victim of the syndrome and
reasonably believed she was in imminent danger. In State
v. Hodges,
239 Kan. 63, Syl. § 3, 716 P.2d 563 (1986), we
held it appropriate to permit expert testimony on the battered *654 woman
syndrome to prove the reasonableness of the defendant's belief she was in
imminent danger. Most courts which have addressed the issue are in accord. See,
e.g., Hawthorne
v. State,
408 So.2d 801 (Fla.Dist.App.), rev. denied
415
So.2d 1361 (Fla.1982); Com.
v. Rose,
725 S.W.2d 588 (Ky.1987); State
v. Anaya,
438 A.2d 892 (Me.1981); State
v. Gallegos,
104 N.M. 247, 719 P.2d 1268 (App.1986); People
v. Torres,
128 Misc.2d 129, 488 N.Y.S.2d 358 (1985); State
v. Leidholm,
334 N.W.2d 811 (N.D.1983); State
v. Middleton,
294 Or. 427, 657 P.2d 1215 (1983); State
v. Kelly,
102 Wash.2d 188, 685 P.2d 564 (1984); State
v. Allery,
101 Wash.2d 591, 682 P.2d 312 (1984); and Annot.,
18
A.L.R. 4th 1153.
The majority implies its decision is necessary
to keep the battered woman syndrome from operating as a defense in and of
itself. It has always been clear the syndrome is not a defense itself. Evidence
of the syndrome is admissible only because
of its relevance to the issue of self-defense. See Rodwan, The Defense of
Those Who Defend Themselves, 65 Mich.B.J. 64 (1986). The majority of
jurisdictions have held it beyond the ordinary jury's understanding why a
battered woman may feel she cannot escape, and have held evidence of the
battered woman syndrome proper to explain it. See, e.g., Hawthorne
v. State,
408 So.2d 801; State
v. Anaya,
438 A.2d 892; State
v. Baker,
120 N.H. 773, 424 A.2d 171 (1980); State
v. Dozier,
163 W.Va. 192, 255 S.E.2d 552 (1979). The expert
testimony explains how people react to circumstances in which the average juror
has not been involved. It assists the jury in evaluating the sincerity of the
defendant's belief she was in imminent danger requiring self-defense and
whether she was in fact in imminent danger.
Dr. Hutchinson explained to the jury at
appellee's trial the "cycle of violence" which induces a state of
"learned helplessness" and keeps a battered woman in the
relationship. She testified appellee was caught in such a cycle. The cycle
begins with an initial building of tension and violence, culminates in an
explosion, and ends with a "honeymoon." The woman becomes conditioned
to trying to make it through one more violent explosion with its battering in
order to be rewarded by the "honeymoon phase," with its expressions
of remorse and eternal love and the standard promise of "never again." After all promises are broken time
after time and she is beaten again and again, the *655 battered woman
falls into a state of learned helplessness where she gives up trying to extract
herself from the cycle of violence. She learns fighting back only delays the
honeymoon and escalates the violence. If she tries to leave the relationship,
she is located and returned and the violence increases. She is a captive. She
begins to believe her husband is omnipotent, and resistance will be futile at
best. See 65 Mich.B.J. at 66-67.
It is a jury question to determine if the
battered woman who kills her husband as he sleeps fears he will find and kill
her if she leaves, as is usually claimed. Under **583 such circumstances
the battered woman is not under actual physical attack when she kills but such
attack is imminent, and as a result she believes her life is in imminent
danger. She may kill during the tension-building stage when the abuse is
apparently not as severe as it sometimes has been, but nevertheless has
escalated so that she is afraid the acute stage to come will be fatal to her.
She only acts on such fear if she has some survival instinct remaining after
the husband-induced "learned helplessness." See generally Buda and
Butler, The
Battered Wife Syndrome: A Backdoor Assault on Domestic Violence,
23 J.Fam.L. 359 (1984-85).
Dr. Hutchinson testified the typical batterer
has a dichotomous personality, in which he
only shows his violent side to his wife or his family. A batterer's major
characteristic is the need to blame all frustration on someone else. In a
typical battering relationship, she said, the husband and wife are in
traditional sex roles, the wife has low self-esteem, and the husband abuses
drugs or alcohol. The husband believes the wife is his property and what he
does to her is no one's business. There is usually a sense of isolation, with
the woman not allowed to speak with friends or children. Overlying the violence
is the intimation of death, often created by threats with weapons.
It was Dr. Hutchinson's opinion Mike was
planning to escalate his violence in retaliation against appellee for running
away. She testified that Mike's threats against appellee's life, his brutal
sexual acts, and appellee's discovery of the loaded gun were all indicators to
appellee the violence had escalated and she was in danger. Dr. Hutchinson
believed appellee had a repressed knowledge she was in what was really a
gravely lethal situation. She testified appellee was convinced she must
"kill or be killed." For a discussion of the objective validity of
appellee's *656 belief, see, e.g., 18 Crim.Just.Newsletter No.
15, p. 6 (Aug. 3, 1987).
The majority claims permitting a jury to consider
self-defense under these facts would permit anarchy. This underestimates the
jury's ability to recognize an invalid claim of self-defense. Although this is
a case of first impression where an appeal
by the State has been allowed, there have been several similar cases in which
the defendant appealed on other grounds. In each of these cases where a
battered woman killed the sleeping batterer, a self-defense instruction has
been given when requested by the defendant. See e.g., People
v. Emick,
103 App.Div.2d 643, 481 N.Y.S.2d 552 (1984); People
v. Powell,
102 Misc.2d 775, 424 N.Y.S.2d 626, aff'd 83
App.Div.2d 719, 442 N.Y.S.2d 645 (1981); State
v. Leidholm,
334 N.W.2d 811.
The most recent case on this issue is State
v. Norman,
89 N.C.App. 384, 393, 366 S.E.2d 586 (1988),
which held the trial court erred in refusing to instruct on self-defense where
a battered wife shot her husband as he slept. The court stated:
"[W]ith
the battered spouse there can be, under certain circumstances, an unlawful
killing of a passive victim that does not preclude the defense of perfect
self-defense. Given the characteristics of battered spouse syndrome, we do not
believe that a battered person must wait until a deadly attack occurs or that
the victim must in all cases be actually attacking or threatening to attack at
the very moment defendant commits the unlawful act for the battered person to
act in self-defense. Such a standard, in our view, would ignore the realities
of the condition. This position is in accord with other jurisdictions that have
addressed the issue."
There are other cases in which the defendant has been held to have
the right to a jury instruction on self-defense where the victim, although not
sleeping, was not directly attacking the defendant.
In People
v. Scott,
97 Ill.App.3d 899, 53 Ill.Dec. 657, 424 N.E.2d 70 (1981), the victim tapped his wrist as he was talking on the
telephone as a signal to his battered companion that she was to bring handcuffs
to him, which he often used on her before beating her. She instead got a gun
and shot him. She testified at trial she was afraid the beating might kill her.
The **584 court held it was error for the trial court to refuse to
instruct on self-defense.
In State
v. Allery,
101 Wash.2d 591, 682 P.2d 312, the battering
husband broke into the couple's house despite a restraining order issued
against him after initiation of divorce proceedings by the defendant, *657
who had suffered a consistent pattern of physical abuse at the hands of her
husband during the marriage. The defendant found him lying on the couch waiting
for her to come home. When he told her, "I guess I'm just going to have to
kill you," she shot him before he moved. The court ruled the trial court's
self- defense instruction was incomplete in failing to instruct that the
defendant's claim of self-defense should be evaluated in light of all
circumstances known to her.
In
State
v. Gallegos,
104 N.M. 247, 719 P.2d 1268, the battering
ex-husband had sexually abused his ex-wife and physically abused their son
hours before he angrily called her into the bedroom. She testified she did not
know whether he meant to rape, beat, or kill her. She picked up his loaded
rifle and shot him. The appellate court found it was error for the trial court
to refuse to give the defendant's proposed self-defense instruction, stating:
"To require the battered person to await a blatant, deadly assault before
she can act in defense of herself would not only ignore unpleasant reality, but
would amount to sentencing her to 'murder by installment.' " 104
N.M. at 250, 719 P.2d 1268. See discussion in
Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings
L.J. 895, 928 (1981).
The majority bases its opinion on its
conclusion appellee was not in imminent danger, usurping the right of the jury
to make that determination of fact. The majority believes a person could not be
in imminent danger from an aggressor merely because the aggressor dropped off
to sleep. This is a fallacious conclusion. For instance, picture a hostage
situation where the armed guard inadvertently drops off to sleep and the
hostage grabs his gun and shoots him. The majority opinion would preclude the
use of self-defense in such a case.
The majority attempts to buttress its
conclusion appellee was not in imminent danger
by citing 19th Century law. The old requirement of "immediate" danger
is not in accord with our statute on self-defense, K.S.A.
21-3211, and has been emphatically overruled by
case law. Yet this standard permeates the majority's reasoning. A review of the
law in this state on the requirement of imminent rather than immediate danger
to justify self-defense is therefore required. I will limit my discussion to
those cases involving battered wives.
The first case, *658State
v. Hundley,
236 Kan. 461, 693 P.2d 475 (1985), involved a
battered wife who shot her husband when he threatened her and reached for a
beer bottle. Hundley pled self-defense. We held it was error for the trial
court to instruct that self-defense was justified if a defendant reasonably
believed his conduct was necessary to defend himself against an aggressor'simmediate
use of force. We held this instruction improperly excluded from the jury's
consideration the effect that Hundley's many years as a battered wife had upon
her perception of the dangerousness of her husband's actions. We held the
statutory word "imminent" should be used, rather than
"immediate." See K.S.A.
21-3211.
The next case in which a battered wife
claimed self-defense was State
v. Osbey,
238 Kan. 280, 710 P.2d 676 (1985). The husband
had a gun and had threatened to kill Osbey. After an argument while the husband
was moving out, Osbey threw a chair towards his van. She shot him when he
walked towards her and reached behind some
record albums he was carrying. We again held the trial court erred in using the
word "immediate" rather than "imminent" in the self-defense
instruction to the jury.
In the most recent case, State
v. Hodges,
239 Kan. 63, 716 P.2d 563 (1986), the battered
wife was kicked and beaten before making her way into another room. When her
husband ordered her to return to him, she shot him. When her first trial
resulted in a hung jury, she was retried and convicted **585 of
voluntary manslaughter. K.S.A.
21-3403.
On appeal, we again held the trial court's
use of "immediate" in instructing the jury on self-defense was
reversible error. Such usage "places undue emphasis on the decedent's
immediate conduct and obliterates the build-up of terror and fear the decedent
systematically injected into the relationship over a long period of time."
239
Kan. at 74, 716 P.2d 563. We also held the trial
court erred in not permitting expert testimony on the battered woman syndrome.
We found it appropriate that the testimony be offered to prove the
reasonableness of the defendant's belief she was in imminent danger.
Upon remand, the trial court refused to allow
Dr. Modlin to testify for the State as an expert witness regarding evidence
against the existence of the battered woman syndrome. The jury was again unable
to reach a verdict, a mistrial was ordered, and *659 the court granted
the defense's motion for acquittal pursuant
to K.S.A.
22-3419.
The State appealed on questions reserved, and
we held the trial court erred in excluding expert testimony, based on accepted
methodology, against the battered woman syndrome. We found the jury may
properly decide how much weight each side's expert testimony should receive. State
v. Hodges,
241 Kan. 183, 734 P.2d 1161 (1987).
This ruling was in accord with our
longstanding policy in this state of letting the defendant present his or her
defense where supported by the slightest evidence, even if consisting only of
the defendant's own testimony, and in giving the jury that expert testimony on
either side which assists it in understanding the circumstances of the crime.
We then trust the jury to weigh the evidence and apply the law to reach the
proper verdict.
The majority disapproves State
v. Hodges,
239 Kan. 63, 716 P.2d 563, where we adopted the
subjective test for self-defense in battered wife cases. We adopted the subjective
test because there is a contradiction in the terms "reasonably prudent
battered wife." One battered into "learned helplessness" cannot
be characterized as reasonably prudent. Hence, the Hodges modification of State
v. Hundley,
236 Kan. 461, 693 P.2d 475, was necessary and
properly states the law.
In State v. Hundley, we joined other
enlightened jurisdictions in recognizing
that the jury in homicide cases where a battered woman ultimately kills her
batterer is entitled to all the facts about the battering relationship in
rendering its verdict. The jury also needs to know about the nature of the
cumulative terror under which a battered woman exists and that a batterer's
threats and brutality can make life-threatening danger imminent to the victim
of that brutality even though, at the moment, the batterer is passive. Where a
person believes she must kill or be killed, and there is the slightest basis in
fact for this belief, it is a question for the jury as to whether the danger
was imminent. I confess I am an advocate for the constitutional principle that
in a criminal prosecution determination of the facts is a function of the jury,
not the appellate court.
I would deny this appeal.