Smith v. State

• Decision Date: 03 February 1981
• Docket Number: No. 60869,60869
• Citation: 156 Ga.App. 419,274 S.E.2d 703
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 703

274 S.E.2d 703

156 Ga.App. 419

SMITH v. The STATE.

No. 60869.

Court of Appeals of Georgia.

Submitted Oct. 9, 1980.

Decided Oct. 31, 1980.

Rehearing Denied Nov. 13, 1980.

Certiorari Granted Feb. 3, 1981.

Donald J. Stein, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Margaret V. Lines, Asst. Dist. Attys., for appellee. BANKE, Judge.

The appellant was tried upon a murder indictment in the shooting death of her boyfriend. The fact that appellant shot the victim three times causing his death was not disputed at trial. The defense was generally that of justification; and evidence was offered by both sides tending to indicate a stormy off-and-on relationship between the two, with the appellant and other witnesses testifying at length concerning appellant's fear of the victim and his propensity for violence toward her. On instructions, not assailed here, including the self-defense theory, appellant was convicted of voluntary manslaughter and sentenced to 15 years in prison.

The principal error enumerated on appeal concerns the refusal of the trial court to allow the testimony of a clinical psychologist concerning what is referred to as the "battered woman syndrome." The predicate for this witness' proffered testimony and opinions consisted of a 50-minute conversation with appellant, a group interview with members of appellant's family and her friends, and the witness' own experience in studying the problems of the so-called "battered woman." Held :

1. "The opinion 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." Code § 38-1710. "Nevertheless, expert opinion, like lay opinion is received only in instances where it is helpful or necessary. Allison v. Wall, 121 Ga. 822(1), 49 S.E. 831 (1904). As a general rule the witness is not allowed to express on the stand an opinion of ultimate fact or the very fact to be decided by the jury because to do so would invade the province of the jury. Green, Georgia Law of Evidence, p. 283, § 113; 20 ALR3d 698, § 13." Jones v. State, 232 Ga. 762, 764, 208 S.E.2d 850 (1974).

In essence, the proffered testimony would have sought to establish through expert opinion that the appellant was motivated by fear at the time she shot the victim. This was not a proper subject for expert opinion testimony. Furthermore, the information on which the opinion was based was available directly from the appellant's friends and relatives.

In a very similar setting involving the shooting of a husband by his wife, the Supreme Court of Idaho held that "(f)ear...