Nixon v. US, 96-CF-760.

• Decision Date: 11 March 1999
• Docket Number: No. 96-CF-760.,96-CF-760.
• Citation: 728 A.2d 582
• Parties: Gregory E. NIXON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

728 A.2d 582

Gregory E. NIXON, Appellant, v. UNITED STATES, Appellee.

No. 96-CF-760.

District of Columbia Court of Appeals.

Argued September 10, 1998.

Decided March 11, 1999.

Andrew Phillip McGuire, for appellant.

Megan E. Hills, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, and John R. Fisher, Elizabeth Trosman, and Shanlon Wu, Assistant United States Attorneys, were on the brief, for appellee.

Before WAGNER, Chief Judge. SCHWELB, Associate Judge, and BELSON, Senior Judge.

SCHWELB, Associate Judge:

The principal question presented in this domestic violence case is whether the trial judge committed reversible error by permitting the prosecution to introduce expert testimony on the subject of the battered woman syndrome¹ in order to explain, inter alia, the conduct of the complaining witness in response to the alleged battering. We hold that the judge did not abuse his discretion by admitting the challenged evidence.

I.

Following a lengthy jury trial which began on February 23, 1996 and concluded on March 12 of that year, Gregory E. Nixon was convicted of assault with a dangerous weapon (ADW),² possession of a firearm during a crime of violence (PFCV),³ simple assault,⁴ and three additional weapons offenses.⁵ Nixon was acquitted of twelve other counts of the eighteen-count indictment. On appeal, Nixon effectively concedes his guilt of the offenses arising from his possession of a pistol and ammunition, and he challenges only his convictions for ADW, PFCV, and simple assault.

Nixon's prosecution arose from his relationship with the complainant, Kelita Boyd, who was his live-in girlfriend, and who became the mother of his son, Amore. The evidence against Nixon consisted primarily of the testimony of Ms. Boyd (which was corroborated in part by Ms. Boyd's mother and by several other witnesses) and the expert evidence of Dr. Mary Ann Dutton, a board-certified clinical psychologist. Nixon appeared as a witness on his own behalf and generally denied Ms. Boyd's allegations.⁶

A. The evidence of abuse.

Ms. Boyd testified that she began to live with Nixon in December 1994. She related that soon thereafter, Nixon began to isolate and intimidate her, and that he attempted to exercise control over her and dominate her with respect to virtually every facet of her life. According to Ms. Boyd, Nixon sought to prevent her from having any meaningful contact with her family or friends, and he enforced this regime with threats and abuse and, eventually, with acts of violence.

Ms. Boyd testified that on one occasion, when her mother called on the telephone, Nixon pulled the telephone cord out of the socket.⁷ On other occasions, Nixon turned up the stereo when members of Ms. Boyd's family called, and the music became so loud that the caller was compelled to hang up. Ms. Boyd's aunt testified that she had to use a "code" in order to leave a message for her niece.

Ms. Boyd related that Nixon repeatedly accused her of having affairs with other men and threatened her with retribution. In February 1995, Ms. Boyd discovered that she was pregnant with Amore. After she disclosed her pregnancy to Nixon, the intimidation intensified, and Nixon began to abuse her physically. On at least two occasions, Nixon struck or punched Ms. Boyd in the face; he then told her that he had not hit her, but that she had turned her head into his hand. According to Ms. Boyd, Nixon also pushed her against the wall, sliced her T-shirt with a knife, and engaged in other assaultive or threatening behavior.

In March 1995, after Nixon had pulled the telephone out of the socket, Ms. Boyd's mother and uncle visited the apartment in the company of two police officers. Ms. Boyd had the opportunity to talk to the officers privately, but she told them that Nixon had not harmed her. Ms. Boyd explained at trial that she did not tell the police or her family about the abuse because she was afraid and embarrassed, and because she believed that disclosure would be futile.

In April 1995, following an argument, Nixon punched Ms. Boyd in the face and made her nose and mouth bleed. A few days later, Ms. Boyd encountered her mother at a metro station, and the two women had lunch. On this occasion, Ms. Boyd admitted to her mother that, as her mother had suspected, Nixon had been beating Ms. Boyd. Ms. Boyd then moved in with her mother.

On May 28, 1995, Amore was born prematurely and was placed in intensive care. Nixon importuned Ms. Boyd to return to him and to reunite the family. In late June, Ms. Boyd, apparently believing Nixon's assurances that he would not abuse her any more, moved in with him again. She testified, however, that by the following month, Nixon was again battering her, now more violently than before the baby was born. In July, Nixon choked Ms. Boyd, making her nose bleed and causing her to lose consciousness. Nixon also threatened to kill Ms. Boyd's mother if the mother ever brought the police to his home again. Subsequently, Nixon purchased a handgun, and in November 1995, according to Ms. Boyd, he threatened Ms. Boyd with the gun and with a knife. Soon thereafter, Ms. Boyd sought and secured a civil protection order against Nixon, and she moved to a transitional home for battered women.

B. The expert testimony.

Following an in limine hearing outside the presence of the jury, the trial judge ruled that Dr. Dutton, the government's expert witness, would be permitted to testify regarding the following topics:

1. myths about domestic violence;

2. common patterns of battering; and

3. common behavior of victims of battering.

At trial, Dr. Dutton addressed these subjects in some detail.⁸ She described as a "common myth" regarding domestic violence the widespread belief that the victim can easily leave her abuser. This belief is unfounded, according to Dr. Dutton, because a battered woman will often fear that the battered will use violence against her or her family if she does attempt to leave. Dr. Dutton also explained that many battered women are economically dependent on their abusers and lack the financial resources to set up households of their own. Moreover, women are often inhibited by personal shame or embarrassment. Dr. Dutton also testified that there is no empirical basis for the notion that battered women stay in abusive relationships because they "enjoy" the abuse.⁹

Focusing on the batterer, Dr. Dutton identified several common patterns of domestic abuse, including, inter alia:

1. coercion and threats;

2. emotional abuse, such as degrading or humiliating the victim;

3. intimidation;

4. isolation (e.g., restricting the victim's access to the telephone or to the car, or monitoring her comings and goings); and

5. minimizing the injury, or blaming the victim for being hit.

Dr. Dutton testified that by downplaying the victim's injuries and by isolating her from friends and family, the batterer often reinforces her feelings of helplessness and her tendency to blame herself for her situation.

Dr. Dutton then addressed common patterns of behavior on the part of victims of abuse. According to Dr. Dutton, the relevant studies show that approximately fifty percent of battered women do not report the abuse to the police, and that "[t]here are many women who unfortunately put on one front or one view for the world, even their family and friends, and in private experience the violence." Dr. Dutton stated that the term "cycle of violence" is used to describe the three stages of domestic violence — attention building, acute battering, and contrition. When the abuser appears to be contrite — when there are "apologies, flowers, I'm sorry, it was a mistake, it won't happen again" — and when he pleads for forgiveness, his victim often allows herself to be persuaded that the abuse will not recur. Moreover, abuse is not necessarily constant, for "most abusers aren't battering and mean and abusive one hundred percent of the time." Therefore, according to Dr. Dutton, it is more common than uncommon for a victim to leave the relationship, only to return. In particular, pregnancy and children can intensify the victim's attachment to the abuser and her reluctance to leave or to stay away.

Finally, Dr. Dutton testified that she had not examined either Nixon or Ms. Boyd. She did not know whether Ms. Boyd had been abused at all, or whether Nixon had abused her. Dr. Dutton therefore made it clear that she was not rendering an opinion as to the guilt or innocence of the defendant.

II. LEGAL DISCUSSION

On appeal from his convictions, Nixon challenges the admission of Dr. Dutton's testimony on several grounds, some of which his appellate counsel has raised for the first time on appeal. Before addressing each of Nixon's specific contentions, we first identify the applicable legal standard and the scope of appellate review.

A. The standard of review.

The criteria for the admission of expert testimony in the District of Columbia are set forth in a three-part test which was adopted by this court in 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):

(1) the subject matter must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average [juror], (2) the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth, and (3) expert testimony is inadmissible if the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert

Id. at 832 (quoting EDWARD W. CLEARY, MCCORMICK ON EVIDENCE § 13, at 29-31 (2d ed.1972) (emphasis deleted; internal quotation marks omitted)). "The trial judge has wide latitude in the admission or exclusion of expert testimony, and his [or her] decision with respect thereto should be sustained unless it is...