Com. v. Rose, s. 86-SC-507-D

• Decision Date: 22 January 1987
• Docket Number: Nos. 86-SC-507-D,86-SC-717-DG,s. 86-SC-507-D
• Citation: 725 S.W.2d 588
• Parties: COMMONWEALTH of Kentucky, Movant, v. Mary Jane Keffer ROSE, Respondent. Mary Jane Keffer ROSE, Cross/Movant, v. COMMONWEALTH of Kentucky, Cross/Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 588

725 S.W.2d 588

COMMONWEALTH of Kentucky, Movant, v. Mary Jane Keffer ROSE, Respondent.

Mary Jane Keffer ROSE, Cross/Movant, v. COMMONWEALTH of Kentucky, Cross/Respondent.

Nos. 86-SC-507-DG, 86-SC-717-DG

Supreme Court of Kentucky.

Jan. 22, 1987.

Rehearing Denied April 2, 1987.

David L. Armstrong, Atty. Gen., Joseph R. Johnson, Asst. Atty. Gen., Frankfort, Ian Sonego, Asst. Atty. Gen., Pikeville, for movant, cross/respondent.

Armand I. Judah, Frockt & Klingman, Louisville, for respondent, cross/movant.

LEIBSON, Justice.

Respondent, Mary Jane Keffer Rose, was convicted in Pike Circuit Court of Manslaughter II, "wantonly caus[ing] the death of another person," and sentenced to five years. At trial her defense was that she had killed in self-protection, bolstered by evidence that she was a battered wife suffering from a so-called "Battered Wife Syndrome."

The shooting occurred in a house trailer occupied by the respondent, her husband, and two young children. The shooting terminated a stormy seven year marriage during which the wife had been beaten, threatened with death, and otherwise abused on numerous occasions. The respondent testified that on this particular occasion, shortly before the shooting occurred, her husband had kicked her and threatened to kill her. She then went into the trailer's bathroom where she retrieved a loaded gun, came out and fired at her husband who was standing in or near the kitchen. Her husband was unarmed at the time, and from the evidence taken as a whole the jury could have reasonably concluded that the respondent was not in imminent danger of death or serious physical injury that made it necessary to kill her husband at that particular moment.

The evidence of the respondent's mental state at the time of the shooting is, to say the least, confused. Although she shot him right between the eyes, she testified in her defense that she didn't intend to shoot him, that "I didn't plan it or anything, it just happened," and that she does "not really" remember shooting the victim. At one point she stated that "all that was going through my mind was all the things he had done to me in the past and him threatening us," and the vision of him stabbing her "all over my chest," which was imaginary because at the time he had no knife and was not stabbing at her.

In this state of facts the trial court instructed the jury on murder, intentional or wanton, first-degree manslaughter, second-degree manslaughter, and self-defense with the qualification that the respondent had "the right to use deadly physical force in so doing only if she believed it to be necessary in order to protect herself or her children from death or serious physical injury ... and subject to this qualification:

Regardless of what the defendant then believed, if you believe from the evidence beyond a reasonable doubt the following:

(a) that it was not in fact necessary for her to use any physical force against [her husband] in order to protect herself and her children or, if it was, she used more than was actually necessary; and

(b) that her belief to the contrary and the actions she took against [her husband] in reliance upon that belief amounted to wanton conduct, then she was not so privileged, and you will find her guilty of second-degree manslaughter...."

Defense counsel objected to qualifying the self-defense instruction as quoted above and objected to the court giving an instruction on second-degree manslaughter, on the grounds that self-defense is an intentional act, and that a shooting that is characterized as intentional can never be considered as wanton. The argument is that in any case where the accused's mental state (subjective belief) fits into the pigeonhole of self-defense, no matter how "wanton" her belief, she must be acquitted.

At the trial the respondent utilized as an "expert" witness a registered nurse with extensive experience in cases involving family violence in general and women who had been beaten by their husbands in particular. She was permitted to testify at length regarding the characteristics and consequences of the spouse abuse (battered wife) syndrome, presenting testimony explaining (1) why a wife stays with her husband despite the battering and (2) the reaction that follows. But she was not permitted to answer specifically as to whether in her opinion the accused was suffering from and reacting to that syndrome when she shot her husband. The trial court ruled, "that is for the jury to determine."

The Court of Appeals held that the trial court erred in refusing to permit the expert witness to express her ultimate conclusions as to this particular accused.

However, the Court of Appeals rejected the respondent's second argument, which was that no second-degree manslaughter instruction was authorized because the theory of the defense was self-protection. The defense claims that the only proper options that should have been presented to the jury were intentional homicide (Murder or Manslaughter I) or acquittal, and that the conviction for wanton murder must result in an acquittal.

The Commonwealth asked for discretionary review of the Court of Appeals' decision that the trial court erred in refusing evidence that the accused was suffering from the spouse abuse syndrome. The respondent cross-appealed, claiming the Court of Appeals erred in remanding for a new trial since she should have been acquitted if not found guilty of Intentional Murder or Manslaughter I. The respondent claims that she cannot be retried for Wanton Homicide (Manslaughter II).

For reasons that will be stated we: (1) uphold that the trial court's decision to exclude the opinion offered by the registered nurse that the respondent was suffering from and reacting to the spouse abuse syndrome when she shot her husband, and (2) uphold the trial court's decision to qualify the self-defense instruction to allow for a finding of wanton conduct and Manslaughter II. Therefore, we reverse the Court of Appeals and affirm the verdict and judgment of the trial court.

I. EXPERT TESTIMONY ON THE BATTERED WIFE SYNDROME

It is important to keep in mind that the trial court permitted the registered nurse who was offered as an expert witness to testify for the defense about the battered wife syndrome to explain and discuss the syndrome. This evidence was presented to the jury. The witness was not permitted to testify (1) that the accused was suffering from this syndrome, (2) that this syndrome would explain why she would not leave her mate and (3) why (in the witness' opinion) the accused believed that it was then necessary for her to kill in self-protection.

Thus the court permitted a limited use of expert testimony, but drew the line at permitting the witness to diagnose the accused's mental condition and to offer the conclusion that the accused believed that it was then necessary for her to kill her husband in self-defense.

In Ford v. Commonwealth, Ky., 665 S.W.2d 304, 309 (1984), we stated:

"On the question of experts, it has long been the law of this jurisdiction that the decision as to the qualifications of an expert rests in the discretion of the trial court."

Thus the trial judge's decision as to whether a proposed witness is qualified to testify as an expert should not be disturbed unless it is "clearly erroneous." United States v. Barker, 553 F.2d 1013, 1024 (6th Cir.1977). This is the standard of review for both the decision permitting the witness to testify as an expert and the decision on the limits of the witness' expertise.

Inherent in the trial court's decision to permit the expert to testify as to the existence and nature of the battered wife (or spouse abuse) syndrome was a finding that this syndrome represents "scientific, technical, or other specialized knowledge [which] will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. In this case the witness provided background information sufficient to demonstrate the scientific acceptability of the battered wife (or spouse abuse) syndrome as a mental condition or entity generally recognized in the medical community. Thus, the case is distinguished from Lantrip v. Commonwealth, Ky., 713 S.W.2d 816 (1986), wherein expert testimony regarding the so-called "sexual abuse accommodation syndrome" was excluded because there was no evidence that the syndrome had obtained scientific acceptance or credibility among clinical psychologists or psychiatrists.

Further, it was reasonable for the trial court to conclude that evidence regarding this battered wife syndrome might be of assistance to the jury as trier of fact because it tends to explain why a person suffering from the syndrome would not leave her mate and would be driven by fear of continuing episodes of increased aggression against herself to perceive certain conduct was necessary in her self-defense, even though another person not suffering from such a condition might believe or behave differently. It was for this reason that the Georgia Supreme Court held that evidence of the "battered woman's syndrome" should be admitted in Smith v. State, 247 Ga. 612, 277 S.E.2d 678, 18 A.L.R.4th 1144 (1981). See also, Annot., 18 A.L.R.4th 1153-59 (1982), and supplemental ALR citations. We agree that, as a general proposition, evidence of this nature is admissible after a proper foundation has been provided by evidence that this is a mental condition constituting a recognized scientific entity and that the witness is qualified to testify about it.

Nevertheless, the principal issue...