State v. Hickson

• Decision Date: 21 October 1993
• Docket Number: No. 79222,79222
• Citation: 630 So.2d 172
• Parties: 18 Fla. L. Weekly S549 STATE of Florida, Petitioner, v. Michelle L. HICKSON, Respondent.
• Court: Florida Supreme Court

Page 172

630 So.2d 172

18 Fla. L. Weekly S549

STATE of Florida, Petitioner, v. Michelle L. HICKSON, Respondent.

No. 79222.

Supreme Court of Florida.

Oct. 21, 1993.

Rehearing Denied Jan. 5, 1994.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief, Criminal Appeals, Asst. Atty. Gen. and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for petitioner.

Thomas G. Fallis of Elia & Fallis, P.A., Jacksonville, for respondent.

James T. Miller, Jacksonville, amicus curiae for Florida Ass'n of Criminal Defense.

CORRECTED OPINION

McDONALD, Justice.

In Hickson v. State, 589 So.2d 1366, 1369-70 (Fla. 1st DCA 1991), the district court certified the following question as being of great public importance:

Is the defendant's constitutional privilege against testimonial examination waived when a defense psychologist testifies "about the circumstances giving rise to the alleged battered-spouse syndrome" based in part on the defendant's statements to such witness which have been fully disclosed to the prosecution before trial.

We have jurisdiction, article V, section 3(b)(4), Florida Constitution. After studying this issue, we restate the question as follows:

What can an expert testify to when a defendant relies on battered-spouse syndrome evidence to support a claim of self-defense?

We answer the restated question by holding that an expert can generally describe the syndrome and the characteristics of a person suffering from the syndrome and can express an opinion in response to hypothetical questions predicated on facts in evidence, but cannot give an opinion based on an interview of the defendant as to the applicability of the syndrome to that defendant unless notice of reliance on such testimony is given and the state has the opportunity to have its expert examine the defendant. We quash the opinion under review.

Hickson and the victim lived together for several months and married on July 1, 1990. Four days later she stabbed him to death, and the state charged her with second-degree murder. She informed the state that her defense would be self-defense, based on the battered-spouse syndrome, and that she would offer the testimony of Dr. Harry Krop, a psychologist who had examined her, to support that defense. The state deposed Krop and learned of his conclusion that Hickson suffered from the battered-spouse syndrome when she killed her husband. Thereafter, the state filed a motion to compel Hickson to submit to an examination by its expert so that it could develop evidence to rebut Krop's testimony. The trial court found that such an examination would not violate Hickson's rights against self-incrimination because the state could use any information gained through the examination only in rebuttal, not in its case in chief, and granted the motion to compel.

Hickson petitioned the district court for a writ of prohibition, asking that the trial court be directed to rescind its order. The district court treated the petition as one for writ of certiorari and granted the writ. The trial court relied on Henry v. State, 574 So.2d 66, 70 (Fla.1991), where we stated that when "a defendant seeks to pursue an insanity defense, the state should have an equal opportunity to obtain evidence relevant to that issue." The district court, however, distinguished Henry and held that "denial of the motion to compel would not preclude or prejudice the prosecution's use of its psychiatric testimony as to the viability of appellant's asserted defense based on her disclosed statements to Dr. Krop." 589 So.2d at 1369. After certifying its question, the court concluded that the trial court should not have ordered that Hickson be compelled to submit to a state-sponsored examination.

Before this Court the state argued that allowing Hickson to testify through Krop's testimony would unduly prejudice the state and that the only way to level the playing field would be to require that Hickson be examined by a state expert. Hickson, on the other hand, again argued that her being examined by a state expert would violate her right not to incriminate herself. The Florida Association of Criminal Defense Lawyers argued on Hickson's behalf that the district court's decision should be approved, that overturning that decision would amount to an amendment to the rules of criminal procedure and that the state could rebut the proposed defense testimony without a compelled examination of Hickson. After oral argument, we directed the parties to submit supplemental briefs comparing State v. Hennum, 441 N.W.2d 793 (Minn.1989), with State v. Briand, 130 N.H. 650, 547 A.2d 235 (1988).

All fifty states have statutes making spousal abuse a crime. Rick Brown, Note, Limitations on Expert Testimony on the Battered Woman Syndrome in Homicide Cases: The Return of the Ultimate Issue Rule, 32 Ariz.L.Rev. 665 (1990). Courts in more than thirty states ¹ have addressed the admissibility through expert testimony of evidence of the battered-spouse syndrome, with all but two ² deciding that such evidence is admissible. ³ Most cases that have found expert testimony on battered-spouse syndrome evidence admissible have used the test derived from Dyas v. United States, 376 A.2d 827 (D.C.), cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977), i.e., whether "(1) the expert is qualified to give an opinion on the subject matter; (2) the state of the art or scientific knowledge permits a reasonable opinion to be given by the expert; and (3) the subject matter of the expert opinion is so related to some science, profession, business, or occupation as to be beyond the understanding of the average layman." ⁴ Hawthorne v. State, 408 So.2d 801, 805 (Fla. 1st DCA), review denied, 415 So.2d 1361 (Fla.1982), and cases cited therein. The New Jersey Supreme Court, for instance, found an expert's testimony on the subject "essential to rebut the general misconceptions regarding battered women" because such testimony

is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge.

State v. Kelly, 97 N.J. 178, 478 A.2d 364, 378 (1984); State v. Koss, 49 Ohio St.3d 213, 551 N.E.2d 970 (1990).

This Court has never considered the admissibility of expert testimony on the battered-spouse syndrome. Several district courts of appeal have, however, and they, like the New Jersey and Ohio courts, have concluded that such testimony is admissible: "It is precisely because a jury would not understand why appellant would remain in the environment that the expert testimony would have aided them in evaluating the case." Hawthorne, 408 So.2d at 807; see also Rogers v. State, 616 So.2d 1098 (Fla. 1st DCA 1993); Terry v. State, 467 So.2d 761 (Fla. 4th DCA), review denied, 476 So.2d 675 (Fla.1985); Borders v. State, 433 So.2d 1325 (Fla. 3d DCA 1983). In Hawthorne v. State, 470 So.2d 770, 774 (Fla. 1st DCA 1985) the district court held that the trial court did not abuse its discretion in determining "the qualifications of the expert and whether the subject can support an expert's opinion." Since this second Hawthorne opinion, the battered-spouse syndrome "has gained substantial scientific acceptance to warrant admissibility." Koss, 551 N.E.2d at 974. Indeed, in Rogers the district court stated:

Because the scientific principles underlying expert testimony relative to the battered woman's syndrome are now firmly established and widely accepted in the psychological community, we conclude that the syndrome has now gained general acceptance in the relevant scientific community as a matter of law.

616 So.2d at 1100 (emphasis in original). We agree and approve Rogers on this point. ⁵ Therefore, we hold that the battered-spouse syndrome meets the second and third parts of the Dyas test and that expert testimony on it is admissible. ⁶

Although many courts have considered the admissibility of expert testimony about the battered-spouse syndrome, few have confronted the situation presented in the instant case. Even some courts that have held that experts can testify to the ultimate fact that a defendant suffers from the syndrome have not addressed whether a defendant must submit to an adverse examination. E.g., People v. Aris, 215 Cal.App.3d 1178, 264 Cal.Rptr. 167 (1989), review denied (Mar. 1, 1990); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); Commonwealth v. Craig, 783 S.W.2d 387 (Ky.1990); State v. Wilkins, 305 S.C. 272, 407 S.E.2d 670 (Ct.App.), cert. denied (Nov. 21, 1991); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (1984). In fact, our research has disclosed only five cases directly on point with the instant case, two of which are Briand and Hennum.

In Briand the New Hampshire Supreme Court held "that a criminal defendant [who raises the battered-spouse syndrome in support of a claim of self-defense] waives her right to resist the State's request that she submit to court-ordered psychiatric examination when she (1) submits to psychiatric examination by defense experts; and (2) evinces the intention to rely on that testimony at trial." 547 A.2d at 240. Two other state courts have followed Briand. State v. Hess, 252 Mont. 205, 828 P.2d 382 (1992); State v. Myers, 239 N.J.Super. 158, 570 A.2d 1260 (Ct.App.Div.), certification denied, 127 N.J. 323, 604 A.2d 598 (1990). The Supreme Court of Minnesota, on the other hand, held in Hennum that

expert testimony regarding battered woman syndrome will be limited to a description of the general syndrome and the characteristics which are present in an individual suffering from the syndrome. The expert should not be allowed to testify as to the ultimate fact that the particular defendant actually suffers from battered woman syndrome. This determination must be left to...