People v. Yaklich, 88CA1369

• Decision Date: 21 November 1991
• Docket Number: No. 88CA1369,88CA1369
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Donna YAKLICH, Defendant-Appellee. . IV
• Court: Colorado Court of Appeals

Page 758

833 P.2d 758

60 USLW 2419

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Donna YAKLICH, Defendant-Appellee.

No. 88CA1369.

Colorado Court of Appeals,

Div. IV.

Nov. 21, 1991.

Rehearing Denied Jan. 9, 1992.

Certiorari Denied Aug. 10, 1992.

G.F. Sandstrom, Jr., Dist. Atty., James S. Whitmire, Asst. Dist. Atty., Pueblo, for plaintiff-appellant.

Law Office of Stanley H. Marks & Richard A. Hostetler, Richard A. Hostetler, Denver, for defendant-appellee.

Opinion by Judge ROTHENBERG.

In this appeal, the People challenge the propriety of several rulings made by the trial court during the jury trial of defendant, Donna Yaklich, for the murder of her husband. We disapprove two of the trial court's rulings and, in view of this, we find the People's other arguments moot.

On December 12, 1985, Charles and Eddie Greenwell shot and killed Yaklich's husband in the driveway of his home as he stepped out of his truck. Yaklich was inside the house asleep.

After her husband's death, Yaklich received payment under his three life insurance policies, and she admitted that she paid the Greenwells $4,200 in several installments for murdering her husband. Consequently, she was brought to trial on a charge of first degree murder and conspiracy to murder under a theory that she had been motivated to arrange her husband's death in order to obtain the insurance money.

The defense, however, maintained that Yaklich suffered from the "battered woman syndrome" and that her actions were justifiable acts of self-defense and were committed under duress resulting from years of physical and psychological battering by her husband.

According to the defense, Yaklich lived in a constant state of fear of her husband, and, at the time of his death, she believed she was in imminent danger of being killed by him or receiving great bodily injury from him. The defense also contended that Yaklich believed and had reasonable grounds to believe that there was a real or apparent necessity to act to avoid the imminent danger of death or great bodily injury.

The defense presented expert and other testimony in support of its battered woman theory. In contrast, the People's expert witness gave her opinion that Donna Yaklich did not fit the profile of a battered woman.

At the close of the evidence, over the People's objections, the trial court instructed the jury on Yaklich's affirmative defenses of self-defense and duress. It also gave the jury definitions of "imminent danger," "apparent necessity," and "reasonable belief." The jury acquitted Yaklich of murder in the first degree. However, it convicted her of conspiracy to commit murder in the first degree, and the court sentenced her to forty years in prison.

The central issue on appeal is whether a woman who has hired a third party to kill her abuser but who presents evidence that she suffered from the battered woman syndrome is entitled to a self-defense instruction. We hold that a self-defense instruction is not available in a contract-for-hire situation, even though the accused presents credible evidence that she is a victim of the battered woman syndrome. Accordingly, we disapprove the trial court's ruling on that issue.

I.

The General Assembly has codified the law of self-defense at § 18-1-704, C.R.S. (1986 Repl.Vol. 8B). That statute permits an individual to use deadly physical force against another if the individual using deadly force reasonably believes that the other individual has used or imminently will use unlawful life-threatening force. See Hare v. People, 800 P.2d 1317 (Colo.1990).

"Imminent" has not been expressly defined by statute or by Colorado case law in the context of self-defense. Cf. People v. Brandyberry, 812 P.2d 674 (Colo.App.1990) (in choice of evils context, "imminent" means "near at hand, impending or on the point of happening"). However, self-defense instructions are usually allowed when an accused has been faced with a threat of great bodily injury or death contemporaneously with the killing. See Hare v. People, supra (instruction on self-defense proper where victim shot while he and defendant struggled over gun); Beckett v. People, 800 P.2d 74 (Colo.1990) (self-defense instruction proper where victim followed defendant to defendant's car after an argument, and the defendant reached into his car and pulled out a gun because he was afraid the victim would harm him); People v. Jones, 675 P.2d 9 (Colo.1984) (self-defense instruction proper where victim hit defendant first).

Yaklich contends that in the context of a battered woman situation in which the woman kills her abuser, "imminent" should be defined as: "likely to happen without delay, threatening, menacing, or impending, not immediate." Thus, according to Yaklich, a woman who kills her abuser or, as here, who hires another to kill her abuser is nevertheless entitled to a self-defense instruction even though she was not threatened with harm contemporaneously with the killing.

This is a case of first impression in Colorado, and in order to analyze and evaluate Yaklich's contention properly, it is necessary to examine briefly the battered woman syndrome as it relates to the issue of self-defense in Colorado.

II.

The "battered woman syndrome" constitutes a series of common characteristics that appear in women who are physically and psychologically abused over an extended period of time by the dominant male figure in their lives. (Although in rare circumstances, the victim of "battered woman syndrome" may be a male, the literature suggests that the vast majority of victims are women). See L. Walker, The Battered Woman (1979) (The phrase "battered woman syndrome" was originated by Dr. Walker). See also Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings L.J. 895 (1981); D. Martin, Battered Wives (1976); State v. Kelly, 97 N.J. 178, 478 A.2d 364 (1984).

Numerous cases across the country have held that the battered woman syndrome is "a recognized phenomenon in the psychiatric profession and is defined as a technical term of art in professional diagnostic textbooks." State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (1984); see State v. Norman, 324 N.C. 253, 378 S.E.2d 8 (1989).

Studies in this area have revealed that in a battering relationship, violence does not occur all the time. Rather, there is a "cycle of violence" which has three phases: (1) a tension building phase; (2) an acute battering phase; and (3) a tranquil and loving phase. The cycle of violence is continually repeated until the victim becomes unable to predict her own safety or the effect that her behavior will have on the abuser. As a result, the woman is reduced to a state of learned helplessness. L. Walker, The Battered Woman (1979); L. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (1989).

According to the testimony, one very important and often misunderstood aspect of the battered woman syndrome is the fact that many battered women cannot safely leave their abusive mates. See Eber, The Battered Wife's Dilemma: To Kill or To Be Killed, supra. In fact, abuse often escalates at the time of separation, and it is then that battered women face the greatest danger of being murdered. Many abusers have been known to pursue the women who leave them and subject them to brutal attacks.

Additionally, battered women may not psychologically or emotionally have the alternative of leaving the abuser because of their low self-esteem, their emotional and economic dependency, the absence of another place to go, and the woman's legitimate fear of the abuser's response to her leaving. Thus, according to the expert testimony, battered women become trapped in their own fear and often feel that their only recourse is to kill the batterer or be killed. See Brewer, Missouri's New Law on Battered Spouse Syndrome: A Moral Victory, A Partial Solution, 33 St. Louis U.L.J. 227 at 231 (1988). See also State v. Hundley, 236 Kan. 461, 693 P.2d 475 (1985) ("This is a textbook case of the battered wife, which is psychologically similar to hostage and prisoner of war cases.").

The battered woman syndrome is not in itself a defense to the charge of assault or murder, that is, the existence of the syndrome does not of itself establish the legal right of a woman to kill her abuser. Rather, evidence of the battered woman syndrome may, in certain circumstances, be considered in the context of self-defense. See State v. Leidholm, 334 N.W.2d 811 (N.D.1983). In Crocker, The Meaning Of Equality for Battered Women Who Kill Men In Self Defense, 8 Harv. Women's L.J. 121, 132-33 (1985), the author explains:

Lay witnesses may establish the history of threats and physical abuse experienced by the defendant. In situations where the uninformed juror would not see any threat or impending danger, expert witnesses help elucidate how a battering relationship generates different perspectives of danger, imminence, and necessary force.

Expert testimony also attacks unstated stereotypic assumptions by explaining why the defendant stayed in the relationship, why she never sought help from police or friends, or why she feared increased violence.... [J]urors on their own or encouraged by the prosecution, may assume that the defendant stayed in the abusive relationship because the abuse was not serious or because she enjoyed it. Expert testimony demonstrates that women stay most often because they cannot or are afraid to leave.

III.

In the reported cases where battered women have killed their abusers and have contended that they acted in self-defense, one of three scenarios is generally present: (1) the battered woman has killed her abuser at the time he was attacking her; (2) the battered woman has killed her abuser during a lull in the violence (such as while the abuser was sleeping); and (3) the battered woman has hired a third party to kill her abuser.

A.

In situations in which the battered woman has killed her abuser at the moment...