State v. Hodges

• Decision Date: 27 March 1987
• Docket Number: No. 59805,59805
• Citation: 734 P.2d 1161,241 Kan. 183
• Parties: STATE of Kansas, Appellant, v. Joan E. HODGES, Appellee.
• Court: Kansas Supreme Court

Page 1161

734 P.2d 1161

241 Kan. 183

STATE of Kansas, Appellant, v. Joan E. HODGES, Appellee.

No. 59805.

Supreme Court of Kansas.

March 27, 1987.

Syllabus by the Court

1. Appeals on questions reserved by the prosecution in criminal actions will not be entertained merely to demonstrate whether or not errors have been committed by the trial court in its rulings adverse to the State. Such questions must be of statewide interest and answers thereto must be vital to a correct and uniform administration of the criminal law.

2. Where expert opinion testimony on the battered woman syndrome is admitted into evidence, after a finding that the basis of that opinion is generally accepted as reliable within the expert's particular field, it is error not to admit expert testimony attacking the reliability of the battered woman syndrome.

3. Where the trial court rules that expert testimony is inadmissible, it is error to refuse a proffer of that testimony into the record.

4. The record on appeal is examined and it is held that the district court erred (1) in not permitting the State's expert witness to testify in rebuttal; and (2) in not allowing the State to proffer evidence which the trial court ruled was inadmissible.

Catherine Foster Baird, Asst. Dist. Atty., argued, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on brief, for appellant.

No appearance by appellee.

ALLEGRUCCI, Justice:

The State appeals pursuant to K.S.A. 1986 Supp. 22-3602(b)(3) on three questions reserved. The defendant was charged with voluntary manslaughter (K.S.A. 21-3403) and was acquitted, and the innocence or guilt of the defendant is no longer in issue.

Defendant Joan E. Hodges shot and killed her husband on July 19, 1983. She was tried on a charge of second-degree murder under K.S.A. 21-3402. The court declared a mistrial after the jury was unable to reach a unanimous verdict. The defendant was tried a second time for second-degree murder but was convicted of the lesser included offense of voluntary manslaughter. She appealed, and the conviction was overturned by this court in State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986). We held that the trial court had erred in its instructions to the jury regarding self-defense (239 Kan. at 73-74, 716 P.2d 563), and further erred in not allowing defendant's expert testimony on the battered woman syndrome. 239 Kan. at 73, 716 P.2d 563.

Upon remand, the defendant was tried for a third time in a trial beginning July 21, 1986. An integral part of her defense was that she had shot her husband in self-defense while suffering from the battered woman syndrome. Prior to trial, the State moved for an order permitting the psychological examination of the defendant. The court ordered the examination, finding that the defendant had previously proffered expert evidence concerning the battered woman syndrome and that the examination would provide expert testimony on whether or not the defendant suffered from the syndrome. The psychiatric examination was conducted for the State by Dr. Herbert C. Modlin.

During the trial, the defendant called Dr. Ann Bristow, who presented two theories which may be used to help understand the battered woman syndrome: the learned helplessness theory and the cycle of violence theory. Dr. Bristow presented the results of her interviews with the defendant and described the history of violence in the relationship between the defendant and her husband. Dr. Bristow noted that the experiences of the defendant were consistent with both the cycle of violence theory and the learned helplessness theory. Dr. Bristow also testified as to the state of mind of the defendant and how it was affected by the battered woman syndrome.

The State attempted to rebut Dr. Bristow's testimony by calling Dr. Herbert Modlin. The State's announced purpose in calling Dr. Modlin was to prove that not all experts in psychology agree on the existence of the battered woman syndrome. Counsel for the defense stated that he had spoken with Dr. Modlin, who reportedly told the defense counsel that he did not believe in the existence of the battered woman syndrome. The trial court refused to permit the testimony of Dr. Modlin. The court stated that the testimony was "an indirect attempt to get into evidence a complete refutation of what the Supreme Court already said should be admitted. The State was arguing, not with this Court, but with the Supreme Court of Kansas."

The State then sought to impeach defendant's testimony by calling Dr. Modlin to testify concerning statements the defendant made to him which were inconsistent with her testimony at trial. The court excluded the testimony of Dr. Modlin altogether, finding that, since the main purpose for which Dr. Modlin interviewed the defendant was to determine whether she was suffering from the battered woman syndrome, his testimony on the limited subject of any inconsistent statements would mislead the jury. The court denied the State's request to proffer Dr. Modlin's testimony. During the closing arguments in the case, defendant's counsel stated, "There is no question that she suffered from the battered woman syndrome. You have no evidence to the contrary."

The case was submitted to a jury which was unable to reach a verdict, and the court ordered a mistrial under K.S.A. 22-3423(1)(d). On August 18, 1986, the court granted the defense's motion for acquittal under K.S.A. 22-3419, finding that there was reasonable doubt any jury could fairly conclude the guilt of the defendant.

The State timely appeals on questions reserved.

The State first contends the trial court erred in excluding the expert testimony of Dr. Modlin regarding the battered woman syndrome. This issue is appropriate for consideration as a question reserved. The consideration of an issue asserted as a question reserved is much more likely where the issue is a new one before the courts. State v. Holland, 236 Kan. 840, 841, 696 P.2d 401 (1985). The issue here is whether the prosecution in a homicide trial may introduce expert testimony which is contrary to the battered woman syndrome.

This court recently addressed the issue of the battered woman syndrome in this very case. In State v. Hodges, 239 Kan. 63, 73, 716 P.2d 563, the court held that expert testimony on the battered woman syndrome may not be excluded from evidence to prove the reasonableness of a defendant's actions in self-defense. The court did not decide that only evidence in favor of the battered woman syndrome may be admitted, which is the interpretation that the trial court gave to our decision in Hodges.

In argument before the trial bench, counsel for the defendant made the following observation to which the trial court expressly agreed in ruling to exclude the testimony:

"Now, [Dr. Modlin] has every right to hold those beliefs, but seven judges of the Kansas Supreme Court have said, in effect, we don't care what you think about that because we have found from our research and our investigation that [the battered woman syndrome] has been accepted. Whether or not it is in DSM 3 doesn't amount to a hill of beans as far as I am concerned, because when the Supreme Court says it is, it is....

"In our state now they do recognize, they do recognize the battered woman syndrome."

The trial court did permit the State to inquire into Dr. Bristow's ability to identify the battered woman syndrome in given individuals. But, the court stated:

"So far I have not interpreted what [Assistant District Attorney Carr] has been doing is attempting to denigrate the syndrome itself. If I see that occurring, I would stop her, because it is obviously an accepted syndrome by the Supreme Court of Kansas."

The State's announced purpose in calling Dr. Modlin to rebut the testimony of Dr. Bristow was to show that the acceptance of the battered woman syndrome was not unanimous in the field of psychology and that "the post-traumatic stress disorders that Dr. Bristow referred to would not include such a thing as the battered [woman] syndrome." The State added that another reason for Dr. Modlin's testimony would be "to present evidence [that] there are other [personality and behavioral] theories" besides the battered woman syndrome. The State agreed with the court's impression that "all the State is doing is saying they have got another view on the syndrome than what the defendant says."

It should be noted that the State in its brief and in oral argument indicated Dr. Modlin was also prepared to testify that, in his opinion, the post-traumatic stress disorder suffered by the defendant resulted from the shooting rather than the prior domestic violence. The trial court, however, accepted the defendant's contention that evidence contrary to the battered woman syndrome is inadmissible.

Our decision in Hodges addressed itself to two issues. First, the court found that the jury instructions on self-defense were error since they used the term "immediate" instead of "imminent" in reference to the threat of violence facing the defendant. The court found such usage "places undue emphasis on the decedent's immediate conduct and obliterates the build-up of terror and fear the decedent systematically injected into the relationship over a long period of time." Hodges, 239 Kan. at 74, 716 P.2d 563. See State v. Osbey, 238 Kan. 280, Syl. p 2, 710 P.2d 676 (1985); State v. Hundley, 236 Kan. 461, Syl. p 3, 693 P.2d 475 (1985).

Second, we found that it was error to deny the defendant's expert testimony on the battered woman syndrome. We identified two requirements relating to expert testimony of scientific evidence. First, the expert evidence must be helpful to the jury. Hodges, 239 Kan. at 67, 716 P.2d 563 (citing State v. Reed, 226 Kan. 519, 601 P.2d 1125 [1979]. Second, the basis of the scientific opinion must be generally accepted within the expert's particular scientific field. Hodges, 239 Kan. at 67, 716 P.2d 563 (citing ...