Smith v. State

Citation277 S.E.2d 678,247 Ga. 612
Decision Date13 May 1981
Docket NumberNo. 37071,37071
Parties, 18 A.L.R.4th 1144 SMITH v. STATE.
CourtSupreme Court of Georgia

Donald J. Stein, Atlanta, for Josephine M. Smith.

Lewis R. Slaton, Dist. Atty., Margaret Lines, Asst. Dist. Atty., Atlanta, for the State.

HILL, Presiding Justice.

The defendant was charged with murdering her live-in boyfriend. Her defense was that she shot him in self-defense. The case is before us to consider whether an expert's opinion regarding the "battered woman syndrome" was admissible at trial, or was properly excluded on the basis that the expert's opinion as to the fear of a battered woman and this defendant in particular was the ultimate fact to be decided and hence invaded the province of the jury. We granted certiorari to review the holding of the Court of Appeals that the expert's opinion was properly excluded as an ultimate fact invading the province of the jury. Smith v. State, 156 Ga.App. 419, 274 S.E.2d 703 (1980).

The testimony of the defendant showed the following: The defendant, Josephine Smith, returned to her apartment about 11 p. m. and was met outside by her boyfriend, who lived with her off and on most of the time and was the father of her second child. The defendant washed some clothes and then went upstairs to go to bed. The boyfriend started rubbing her and she told him to stop because she was tired. He shook her and said: "You don't tell me when to touch you."

The defendant got out of bed, put on some pants and started to go back downstairs when the boyfriend balled his fist and told her she was not going anywhere. She then sat on the foot of the bed and started to roll her hair. The boyfriend kicked her in the back. When he started to kick her again the defendant put her hair pick behind her and the boyfriend kicked it. As the defendant stood up, the boyfriend hit her in the head with his fist. He then grabbed her by the throat, choked her and threw her against a door.

When the defendant got loose, she ran to the chest of drawers, grabbed her gun and ran downstairs to call her mother. She was unable to use the telephone because the boyfriend had taken the phone off the hook upstairs and ran downstairs and took the phone away from her. The defendant tried to go back upstairs but the boyfriend grabbed her. The defendant then ran to get out of the apartment. As she was running out, the boyfriend slammed the door on her foot. The defendant then fired the gun three times with her eyes closed. She went to a neighbor's house and called the police.

When the police arrived, they found the victim with wounds in the head, neck and abdomen. No officer noticed any blood or bruises on the defendant. Although she said that she could not wear shoes other than flip flops because her foot had swollen, no one noticed her limping.

The medical examiner testified that the victim was in his early twenties, was 5 feet 4 inches tall and weighed 144 pounds. The examiner testified that any one of the three wounds inflicted on the victim could have been fatal, and that he died as a result of those wounds.

The defendant also testified that she was 23 years old, weighed 135 pounds, and the apartment was in her name. She testified that she met the victim her junior year in high school when she was 17 and had a child by him but never married him or gave the child his name. She stated that he hit her in the eye with his fist about a month after they met, that he had beaten her periodically, particularly when she dated so she quit seeing other men, that she was scared to quit seeing the victim because he threatened her, that the beatings increased in frequency when she moved from her mother's house to the apartment, that after he beat her he would apologize and say he loved her, that she didn't call the police or tell her friends because she believed him when he said he wouldn't do it anymore, and that earlier on the day of the shooting the victim threatened her and she gave him ten dollars after asking him not to do that in the presence of her sister. She testified that on the night of the shooting the victim said he was going to do something to her and call her mother to come get her, that she was scared he was going to hurt her more than before, and that she shot the victim in fear of her life.

The defense called a clinical psychologist whose testimony (except for preliminary questions as to the psychologist's qualifications as an expert) was ruled inadmissible on the basis that the jurors were able to draw their own conclusions as to whether the defendant acted in fear.

The defendant was found guilty by the jury of voluntary manslaughter and was sentenced to serve 15 years. She appealed, enumerating as error the exclusion of the psychologist's testimony during the guilt phase of the trial and the exclusion of the psychologist's report during the sentencing hearing.

The clinical psychologist testified that she received her B.S. degree from Emory University and her Ph.D. from the University of Connecticut, that she had been a clinical psychologist for five years, that she was on the faculty at Emory School of Medicine and also in private practice, that she had served as the clinical supervisor at the battered woman's shelter in the City of Atlanta for the past two and one-half years in which capacity she was responsible for counseling battered women, that she had made case histories of interviews with battered women, and that she was prepared to testify as to whether the defendant's situation was similar or dissimilar to the situations of other battered women. The state did not urge that the witness was not an expert. Out of the presence of the jury the witness testified that she had interviewed the defendant for approximately 50 minutes, that she had spent an hour and a half talking with 13 of her family and friends, that there are well documented reasons why women suffering from the battered woman's syndrome fail to report physical abuse to police or their families, that a battered woman does not report the abuse to members of her family or friends out of fear that they might take action into their own hands and be injured and she would rather be hurt than endanger somebody else, that it is not unusual for a battered woman who has been abused over a long period of time to remain in such a situation, that a battered woman's self-respect is usually very low and she believes she is a worthless person, that a battered woman typically believes that the man is not going to repeat the abuse when he promises not to do it again, that the battered woman becomes increasingly afraid for her own well-being, and that the primary emotion of a battered woman is fear. The witness testified further that the history she took from the defendant revealed a four year relationship with her boyfriend in which abuse began very early and escalated over the course of that relationship, that the defendant continued the relationship for three basic reasons she loved him, she believed him each time he said that he loved her and that he was never going to repeat the abuse, and she was afraid that if she tried to leave she would be endangering her life. The witness concluded that in her professional opinion the defendant fell within the battered woman profile and had the typical battered woman's syndrome.

The Court of Appeals affirmed the trial court's exclusion of the expert's testimony on the basis that a witness is not allowed to express an opinion as to the ultimate fact to be decided by the jury because to do so would invade the province of the jury. Smith v. State, supra. We granted certiorari to consider two questions: (1) Whether the expert testimony concerning the "battered woman's syndrome" should have been admitted, and (2) whether Federal Rule 704 should be the rule in Georgia.

Concerning the rule that an opinion should not be allowed which would "usurp the functions of the jury", Wigmore wrote in 1940 that it is so misleading and unsound that it should be entirely repudiated, and concerning the rule that an opinion should not be allowed "on the very issue before the jury", Wigmore said that it is another erroneous test, impracticable, misconceived, and lacking any justification in principle. VII Wigmore on Evidence, 3rd ed., §§ 1920, 1921, pp. 17-19 (1940).

Following Wigmore's criticism, the rule was reexamined. Rule 409 of the Model Code of Evidence proposed by the American Law Institute in 1942 read as follows: "An expert witness may state his relevant inferences from matters perceived by him or from evidence introduced at the trial and seen or heard by him or from his special knowledge, skill, experience or training, whether or not any such inference embraces an ultimate issue to be decided by the trier of fact...."

Since 1942 there has been a trend to abandon or reject the rule with the result that now in a majority of states an expert may state his opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion are met. McCormick on Evidence, 2nd ed., § 12, p. 27 (1972). McCormick cites Grismore v. Consolidated Products, 232 Iowa 328, 5 N.W.2d 646 (1942), as having begun the trend. Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 5 S.E.2d 214 (1939), discussed below, was cited with approval along with other cases collected in Grismore v. Consolidated Products, supra, 5 N.W.2d at 663.

Rule 704 of the Federal Rules of Evidence which went into effect in 1975 provides that "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." However, this rule eliminates a ground for exclusion, does not in and of itself provide for the admission of opinion testimony, and is qualified by other rules including Rule 702 which provides that: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the...

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