State v. Allery

Decision Date17 May 1984
Docket NumberNo. 49674-9,49674-9
PartiesSTATE of Washington, Respondent, v. Sherry Lynn ALLERY, Appellant.
CourtWashington Supreme Court

Gibbs, Douglas, Theiler, Yaroshefsky & Drachler, Ellen Yaroshefsky, Seattle, for appellant.

William Griffies, Pierce County Prosecutor, Chris Quinn-Brintnall, Deputy Pros. Atty., Tacoma, for respondent.

DORE, Justice.

Defendant Sherry Allery appeals her conviction for the second degree murder of her husband, Wayne Allery. She assigns error to the trial court's instruction on self-defense and evidentiary rulings excluding expert testimony on the battered woman syndrome. She further contends the trial court erred in failing to instruct the jury on the defendant's duty to retreat.

We hold the trial court's instructions were defective in explaining the law of self-defense. We also hold expert testimony on the battered woman syndrome is admissible to show the defendant's fear of imminent danger at the time of the shooting. We reverse and remand for a new trial.

I

The defendant married Wayne Allery in 1975. Shortly after the marriage, she began to experience what was to become a consistent pattern of physical abuse at the hands of her husband. She suffered periodic pistol whippings, assaults with knives, and numerous beatings from her husband's fists throughout the marriage. In 1978, Mrs. Allery was hospitalized after her husband struck her on the head with a tire iron. During the last year of their marriage, the beatings increased in frequency and severity. Finally, on October 24, 1980, Mrs. Allery initiated divorce proceedings and served her husband with restraining orders.

The shooting occurred early in the morning of November 1, 1980. The defendant testified that she entered her house late at night not expecting to find her husband there because of the restraining orders. She bolted the door locked when she entered. As she moved through the house and into the kitchen, a light came on by the couch. Mr. Allery was lying there and said to her, "I guess I'm just going to have to kill you sonofabitch. Did you hear me that time?" Report of Proceedings, at 611.

The defendant went into the bedroom and tried unsuccessfully to open the window to escape. She heard a metallic noise from the kitchen and thought Mr. Allery was getting a knife. While in the bedroom, the defendant loaded one shell into a shotgun. She moved from the bedroom to the kitchen area and fired the shot that killed her husband while he remained lying on the couch.

II

The trial court gave only one instruction on self-defense:

Homicide is justifiable when committed in the lawful defense of the slayer when the slayer, even though mistaken, has reasonable ground to believe that the person slain intends to inflict death or great bodily harm and there appears to the slayer to be imminent danger of such harm being accomplished.

The slayer may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the slayer at the time.

It is a complete defense to a charge of homicide that it was justifiable.

If, after considering all of the evidence in the case, you have a reasonable doubt as to whether the killing was done in self defense, you must return a verdict of not guilty.

Report of Proceedings, at 765-66.

Defendant contends this instruction did not adequately convey the subjective standard applied to self-defense. The jury was not instructed to evaluate self-defense in the light of all circumstances known to the defendant, including those known before the homicide. State v. Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977). 1 We agree.

The justification of self-defense must be evaluated from the defendant's point of view as conditions appeared to her at the time of the act. State v. McCullum, 98 Wash.2d 484, 656 P.2d 1064 (1983). The jurors must understand that, in considering the issue of self-defense, they must place themselves in the shoes of the defendant and judge the legitimacy of her act in light of all that she knew at the time.

All of these facts and circumstances should have been placed before the jury, to the end that they could put themselves in the place of the appellant, get the point of view which he had at the time of the tragedy, and view the conduct of the [deceased] with all its pertinent sidelights as the appellant was warranted in viewing it. In no other way could the jury safely say what a reasonably prudent man similarly situated would have done.

State v. Wanrow, supra 88 Wash.2d at 235-36, 559 P.2d 548, quoting from State v. Tribett, 74 Wash. 125, 130, 132 P. 875 (1913).

In the instant case, the jury was instructed to consider the self-defense issue in terms of the defendant's reasonable apprehension of danger as circumstances appeared to her at the time of the incident. On its face, the instruction adequately conveys the subjective self-defense standard. See WPIC 16.02 (1977). However, standing by itself, without additional instructions from the trial court, this instruction does not make the subjective self-defense standard " 'manifestly apparent to the average juror.' " State v. Painter, 27 Wash.App. 708, 713, 620 P.2d 1001 (1980), quoting State v. Fischer, 23 Wash.App. 756, 759, 598 P.2d 742, (1979). The instruction is inadequate because it does not instruct the jury to consider the conditions as they appeared to the slayer, taking into consideration all the facts and circumstances known to the slayer at the time and prior to the incident. State v. Wanrow, supra.

Defendant's theory of the case was that her intimate familiarity with her husband's history of violence convinced her that she was in serious danger at the time the shooting occurred. There was substantial evidence of the history of violence throughout the marriage between defendant and the victim. The jury should have been instructed to consider the self-defense issue from the defendant's perspective in light of all that she knew and had experienced with the victim. State v. Wanrow, supra.

III

At trial, defendant offered the expert testimony of Karil Klingbeil to explain the battered woman syndrome. Ms. Klingbeil was the founder of the sexual assault unit at Harborview Hospital in Seattle and has done extensive research in the areas of sexual assault and battered women. After extensive voir dire conducted out of the presence of the jury, the trial judge refused Klingbeil's testimony.

The record shows that Klingbeil would have described her professional analysis of the behavior and emotional patterns of women suffering from repeated physical abuse by their husbands and lovers. She would have testified that in her opinion defendant Allery displayed the behavioral and emotional characteristics of a battered woman. Defense counsel was very specific in explaining the purpose of Klingbeil's testimony. It was offered to (1) explain the mentality and behavior of battered women generally, (2) to provide a basis from which the jury could understand why defendant perceived herself in imminent danger at the time of the shooting, and (3) to explain why a battered woman remains in a relationship that is both psychologically and physically dangerous.

ER 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The admissibility of expert testimony under this rule depends upon whether (1) the witness qualifies as an expert, (2) the opinion is based upon an explanatory theory generally accepted in the scientific community, and (3) the expert testimony would be helpful to the trier of fact. State v. Canaday, 90 Wash.2d 808, 585 P.2d 1185 (1978). See generally 5A Tegland, Wash.Prac., Evidence § 288, at 25 (2d ed. 1982).

The qualifications of Klingbeil were well established at trial and are not an issue here. The particular issue before us is whether the scientific understanding of the battered woman syndrome is sufficiently developed so that expert testimony on the syndrome is admissible.

Klingbeil testified 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. The syndrome is comprised of three distinct phases. In the first phase, tension mounts between the woman and her partner and minor abuse occurs. More serious violence follows and the woman experiences a sense of powerlessness to do anything to stop her husband. Psychologists describe a phenomenon known as "learned helplessness," a condition in which the woman is psychologically locked into her situation due to economic dependence on the man, an abiding attachment to him, and the failure of the legal system to adequately respond to the problem. Finally, there is a temporary lull in the physical abuse inflicted on the battered woman, and she forgives her assailant, hoping that the abuse will not reoccur. See generally Eber, The Battered Wife's Dilemma: To Kill or To Be Killed, 32 Hastings L.J. 895 (1981).

We join with those courts which hold expert testimony on the battered woman syndrome admissible. Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); Hawthorne v. State, 408 So.2d 801 (Fla.Dist.Ct.App.1982); Ibn-Tamas v. United States, 407 A.2d 626 (D.C.197...

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