Pickle v. State, No. A06A0502.

• Decision Date: 14 July 2006
• Docket Number: No. A06A0502.
• Citation: 635 S.E.2d 197
• Parties: PICKLE v. The STATE.
• Court: Georgia Court of Appeals

635 S.E.2d 197

PICKLE v. The STATE.

No. A06A0502.

Court of Appeals of Georgia.

July 14, 2006.

Reconsideration Denied July 31, 2006.

COPYRIGHT MATERIAL OMITTED

Steven H. Sadow, Atlanta, for appellant.

Herbert E. Franklin, Jr., District Attorney, John L. O'Dell, Assistant District Attorney, for appellee.

BARNES, Judge.

Selena Pickle was found guilty of thirteen counts of cruelty to children in the first degree, eleven counts of aggravated battery, and four counts of aggravated assault for crimes committed against her nine-year-old daughter. Pickle had filed a notice of intent to introduce the defenses of battered person syndrome and coercion through an expert witness, Dr. Marti Loring. The State moved to exclude the evidence, arguing that Pickle could not use the battered person syndrome as an affirmative defense, and the trial court granted the motion. Thereafter, Pickle made a proffer of Dr. Loring's testimony, who essentially concluded that Pickle was a victim of battered person syndrome.

In her appeal, Pickle argues that the trial court erred by excluding her expert testimony relating to battered person syndrome, and in admitting evidence barred by the Child Hearsay Statute.

The facts, viewed in the light most favorable to the verdict, show that Pickle is married to Jerome Pickle, the victim's stepfather. The couple married in 1997, divorced three years later, and remarried the next year.

The events leading up to the Pickles' arrest occurred from March 9, 2003 until March 13, 2003, the date Pickle arrived at a local hospital's emergency room with her nine-year-old daughter who was so badly bruised that her race could not be initially determined. The facts demonstrate that on March 9, Pickle's husband became enraged with his stepdaughter when she wet the bed and pushed the child so violently that her head hit the bedroom window and broke it. He then kicked the child in her vagina, causing a tear that bled until Pickle's husband sewed the wound shut with fishing line.

The next day, Pickle and the victim went with her husband to his psychiatrist's office, but Pickle said that she was unable to escape because she and her daughter were locked in the car, and the cell phone keys were also locked. Later that same day when her husband went out to get beer, she called her brother-in-law who lived next door and told him she was afraid of her husband, but recanted her statement when he came over. On March 13, after her husband went to the store, Pickle went next door to her brother-in-law's because she was worried about her daughter. He convinced her to take the child to the hospital. The injuries to the child were extensive. Including the vaginal injury, she had serious lacerations, bruises and burns over a significant portion of her body, was severely malnourished, and addicted to Xanax.

The victim reported that she had been tied to the bed on several previous occasions, dragged through the house, hit in the head with different objects, and made to lie in the sun until her face blistered. She said that sometimes she was not fed for days, then she would be forced to eat and then kicked until she threw up the food. She said that her mother would "whoop me in the chest with a belt or fly swatter about every day. She would whoop me all over with a hickory stick about twice a week. She would shake me and hit me about every day," and that on some occasions her mother abused her, and other times her stepfather did. The child also said that her mother had duct taped her eyes, mouth, and hands and laid her in the hallway for hours, day or night.

The victim also said that her mother sometimes begged her stepfather not to hurt her, but that her mother would participate in the beatings to protect the family. She also said that her stepfather had put a gun to her mother's head and threatened to shoot her, and hit her mother "a lot." She said that on the night she was taken to the hospital, her mother told her to say that this was the first time her stepfather had ever hurt her. The victim also said that when her stepfather was asleep, she would beg her mother to leave and take her, and then said, "I don't know why she wouldn't leave."

Jerome and Selena Pickle were both arrested and charged with these crimes, but Selena Pickle successfully moved to sever her trial from her husband's.

1. Pickle contends that the trial court erred by excluding expert testimony regarding the battered person syndrome. She contends that the evidence was relevant to explain her conduct and mental state, and also relevant to her defense of coercion. "The decision to exclude expert testimony lies within the trial court's sound discretion, and this court will not disturb it absent a clear abuse of discretion." Viau v. State, 260 Ga.App. 96, 98(2), 579 S.E.2d 52 (2003) citing Mimms v. State, 254 Ga.App. 483, 486(2), 562 S.E.2d 754 (2002).

(a). Pickle first argues that she was not using the syndrome as an affirmative defense as in Graham v. State, 239 Ga.App. 429, 521 S.E.2d 249 (1999), but as probative evidence of her mental state and to explain her conduct and negate any criminal intent on her part. She maintained that without the expert's testimony regarding battered person syndrome and the dynamics of domestic abuse, the jury had no way of understanding why she did not leave the situation, call the police or attempt to stop her husband's cruelty to the victim. At trial she contended that,

the court said specifically [in Alvarado v. State, 257 Ga.App. 746, 572 S.E.2d 18 (2002)] that it has held that expert testimony is admissible to explain the behavior of a domestic violence victim who does not report abuse or leave the abuser.... Ours is the reverse. We are seeking to put the expert testimony in to explain the behavior of the defendant, which is a victim of domestic violence who does not leave the abuser and scientific terms to explain that all of which is admissible. The only thing that is not admissible in this state in light of Graham is I cannot and will not argue to the jury that they can find her not guilty of justification because she's battered, they can use the evidence that they receive along with all other evidence to understand what acts were taken by her or not taken by her and they can apply that as they do every other piece of evidence to the other instructions of the Court dealing with reasonable doubt and coercion. That's why it's admissible. Our expert does not intend, nor will we seek to elicit, any testimony specifically as to whether or not Mrs. Pickle is a victim in [the expert's] eyes of battered wife's syndrome because I think that might go too far.

(Emphasis supplied).

She further argued that,

we are ready to be able to take specific evidence that is in this case, admitted before this jury, and the expert is prepared, based on the evidence in the record, to testify as to specific acts and explain within her expertise and scientific foundation how those acts fit within the cycle of violence, how they are to be explained in terms of the abuser, the abused, the victim and the relationship between them.

The State complained that the expert would be testifying as to facts in the jury's province, and the trial court agreed. The trial court opined that "[i]t sounds like ... you're not going to call your client a battered wife or a battered person because that's going too far, but you're going to pick up instances that occurred and say this is battered." The trial court noted that battered person syndrome is not a separate affirmative defense, but information admitted to assist the jury in evaluating the issue of imminent danger in a self-defense claim. It further noted that the defense had "been able to introduce every threat through every witness, hearsay or not, of the acts of violence perpetrated upon Mrs. Pickle by Mr. Pickle and no objection has been made to any of that."

Pickle claims that the trial court committed reversible error in applying Graham to exclude the expert testimony that she suffered from battered person syndrome. In Graham, the mother challenged her conviction for three counts of aggravated child molestation perpetrated against her children. She maintained that the trial court erred in excluding evidence of prior domestic violence. She argued that she should have been able to present a justification defense in the form of a battered person defense, and present evidence that her acts against her children were justified because she had previously been beaten and threatened by her husband.

In affirming the trial court's exclusion of this evidence, this court held that

under OCGA § 16-3-20, a defendant is entitled to raise a justification defense for, inter alia, acts of self-defense, defense of property, entrapment, coercion, and in all other instances which stand upon the same footing of reason and justice as those enumerated in this article. In this state, the battered person syndrome is not a separate defense and evidence supporting this syndrome is admissible only to assist the jury in evaluating a defendant's claim of self-defense under OCGA § 16-3-21. However, self-defense is not an issue in this trial, where the criminal acts were directed toward non-aggressor victims.

(Citations and punctuation omitted.) Graham v. State, supra, 239 Ga.App. at 431, 521 S.E.2d 249. Graham is not controlling in this case, however, because Pickle did not seek to have evidence of battered person syndrome admitted to establish a justification defense, but rather to show she lacked the requisite intent to commit these crimes.

The battered person syndrome describes a series of common characteristics that appear in persons who are abused physically and psychologically over an extended period of time by a dominant figure in their lives. Mobley v. State, 269 Ga. 738, 739, 505 S.E.2d 722 (1998). The syndrome is not a separate defense and is admissible only to assist the jury in evaluating a defendant's...