Parrish v. State, A98A1796.
| Decision Date | 11 March 1999 |
| Docket Number | No. A98A1796.,A98A1796. |
| Citation | 514 S.E.2d 458,237 Ga. App. 274 |
| Parties | PARRISH v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Earl Parrish, pro se.
Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee. RUFFIN, Judge.
A jury found Earl Parrish guilty of rape and Parrish appeals, asserting numerous errors. Since Parrish's assertions lack merit, we affirm.
1. In claiming that the prosecution failed to carry its burden of proof, Parrish essentially challenges the sufficiency of the evidence. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. (Punctuation omitted.) Griffis v. State, 222 Ga.App. 322(1), 474 S.E.2d 119 (1996).
So viewed, the evidence shows that in December 1995, the victim broke off her engagement with Parrish, but continued to see him. On May 27, 1996, after spending Memorial Day weekend with Parrish, the victim informed him that she needed to leave to pick up her children from her ex-husband. According to the victim, Parrish became tearful and angry when she attempted to leave, took her keys, and threatened to kill her.
Without the keys to her truck, the victim started to leave on foot, but Parrish followed her in her truck, screaming obscenities. After the victim made it to her house, she called Parrish and asked him to leave her truck for her in a field by her house. Parrish complied with her request and the victim retrieved her truck from the field and drove to a gas station. The victim testified that while she was at the gas station, Parrish approached her with a knife, forced her into the truck, and drove her to his parents' house where he punched and kicked her in the face, back and ribs, and slammed her head into the stove. Thereafter, Parrish drove the victim to a deserted area where he stabbed her numerous times on her hands, arms, shoulders and back. Parrish told the victim to run and when she did not, he began throwing rocks at her and pushed her off of a bridge. The victim also testified that Parrish whipped her with a fishing rod and forced her to swim through a snake-filled swamp while he continued to throw rocks at her. According to the victim, Parrish then put sleeping pills in her mouth and made her drink some beer, and the next thing she knew she woke up in Parrish's house.
Parrish later drove the victim to a hotel in Savannah where, without her consent, he had intercourse with her. The victim testified that when she cried out "no, no, get off," Parrish "head butted" her on her right temple. The next day, Parrish took the victim to a hospital in Savannah. According to the victim, Parrish threatened to kill her if she told anyone what he had done. Parrish instructed her to tell the hospital staff that she had fallen on an oyster bed. The hospital staff, realizing that the victim's injuries were not consistent with such a fall, asked her what happened. After the victim attributed her injuries to Parrish, a nurse called the police. One of the emergency room nurses testified that the victim had "numerous bruises everywhere." The State introduced photographs into evidence that showed extensive bruises and numerous stab wounds and whip marks on the victim's body.
OCGA § 16-6-1(a) provides that Since the victim's testimony established every element of rape, her testimony alone is sufficient to support a finding of guilt beyond a reasonable doubt. See Thompson v. State, 203 Ga.App. 339(1), 416 S.E.2d 755 (1992).
2. In six enumerations of error, Parrish contends the trial court erred in admitting the testimony of Dr. Nagleberg, an expert witness who testified regarding "battered woman syndrome." Specifically, Parrish claims that the expert's testimony: (i) was neither necessary nor scientifically valid; (ii) placed his character into evidence; (iii) lacked the proper foundation; (iv) was premised upon a hypothetical that was not supported by the facts in evidence; (v) was improperly admitted because the expert never examined the victim; and (vi) impermissibly bolstered the victim's credibility.
During the trial, Parrish's attorney cross-examined the victim regarding her failure to seek help while she was being held by Parrish. Parrish's attorney pointed out that the victim had ample opportunity to seek help on the drive between Parrish's parents' house and the hotel in Savannah, since Parrish and the victim stopped at a restaurant, a gas station and a store. Thus, although Parrish did not testify or put up any witnesses, it is clear that part of his defense was to undermine the credibility of the victim based on the fact that she did not initiate an outcry for help.
Dr. Nagleberg, who had not examined either Parrish or the victim, testified generally about the profile of a typical abuser and the effects such abuse has on its victims. In questioning Dr. Nagleberg, the State asked Dr. Nagleberg whether the victim's failure to "make an outcry" made "any sense." Dr. Nagleberg responded that "even people who have been kidnapped and are exposed to public situations will frequently not ask for help." Dr. Nagleberg also testified about the characteristics of an abuser, stating that abusers "typically grow up in a home that has some sort of physical violence" and that "these men frequently have been in trouble with the police in past occasions." According to Dr. Nagleberg, "[f]requently, there is a history of alcohol or drug abuse" with batterers.
(i) With regard to Parrish's claim that the expert testimony was neither necessary nor scientifically valid, we note that "[e]xpert opinion testimony on issues to be decided by the jury ... is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e. the conclusion is beyond the ken of the average layman." Smith v. State, 247 Ga. 612, 619, 277 S.E.2d 678 (1981). In Smith, the Supreme Court concluded that testimony regarding battered woman's syndrome is admissible because the reasons why a battered woman "would not leave her mate, would not inform police or friends, and would fear increased aggression against herself, would be such conclusions that jurors could not ordinarily draw for themselves." (Punctuation omitted.) Id.
However, we recognize that expert testimony regarding " battered woman's syndrome" typically is introduced by a defendant who claims to be a victim of abuse in connection with establishing a defense of self-defense. See Smith, supra; Smith v. State, 268 Ga. 196, 486 S.E.2d 819 (1997); Chapman v. State, 259 Ga. 706, 386 S.E.2d 129 (1989); Cox v. State, 216 Ga.App. 86, 87(2), 453 S.E.2d 471 (1995); Pugh v. State, 191 Ga.App. 394, 382 S.E.2d 143 (1989). In this case, however, the State used Dr. Nagleberg's testimony as an "affirmative weapon" against Parrish. See Sanders v. State, 251 Ga. 70, 75(3), 303 S.E.2d 13 (1983).
Dr. Nagleberg's testimony served to create a "profile" of both the typical victim and abuser. Such a "profile" suggests to the jurors that the defendant shares the characteristics of the typical abuser and, as such, places the character of the defendant in issue. Sanders, supra at 76, 303 S.E.2d 13. Therefore, Georgia courts have limited the State's ability to use profile testimony against a defendant. See Penson v. State, 222 Ga.App. 253, 255(1), 474 S.E.2d 104 (1996).
Unless a defendant has placed his character in issue or has raised some defense which the profile is relevant to rebut, the state may not introduce evidence of the profile, nor may the state introduce character evidence showing a defendant's personality traits and personal history as its foundation for demonstrating the defendant has the characteristics of a typical profilist.
(Punctuation omitted.) Id.
In this case, Parrish's attorney sought to defend his client by undermining the victim's credibility through illustrating her failure to seek help. Accordingly, Dr. Nagleberg's testimony regarding the "learned helplessness" of women in abusive relationships was relevant to explain the victim's behavior. See Hall v. State, 196 Ga. App. 523, 526(3), 396 S.E.2d 271 (1990) ().
(ii) Nevertheless, we agree with Parrish that Dr. Nagleberg's testimony regarding the typical characteristics of an abuser improperly placed Parrish's character in issue. Specifically, Dr. Nagleberg's testimony regarding the typical batterer's drug and alcohol use was not necessary to rebut any defense or issue raised by Parrish. Thus, the trial court erred in failing to limit Dr. Nagleberg's testimony in this regard. Given the overwhelming evidence of Parrish's guilt, however, "we find that it is highly probable that the error did not contribute to the verdict." See Sanders, supra at 76, 303 S.E.2d 13.
(iii) & (iv) Parrish also claims that the State failed to lay the proper foundation for Dr. Nagleberg's testimony since the doctor never examined either the victim or Parrish. This contention lacks merit.
The opinions of experts, on any question of science, skill, trade, or like questions, shall always be admissible; and such opinions may be given on the facts as proved by other witnesses. The proper mode of examining a[n] expert, where he is not testifying from his own knowledge, is to ask him hypothetical questions.
(Punctuation omitted.) Kimball v. State, 63 Ga.App. 183, 185-186(2), 10 S.E.2d 240 (1940).
(v) According to Parrish, he is entitled to a new...
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