State v. Kelly

• Decision Date: 28 June 1984
• Docket Number: No. 49584-0,49584-0
• Citation: 685 P.2d 564,102 Wn.2d 188
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Ivy Gail KELLY, Petitioner.

Page 188

102 Wn.2d 188

685 P.2d 564

The STATE of Washington, Respondent, v. Ivy Gail KELLY, Petitioner.

No. 49584-0.

Supreme Court of Washington En Banc.

June 28, 1984.

Browne, Ressler & Foster, David R. Wohl, John H. Browne, Seattle, for petitioner.

Seth Dawson, Snohomish County Prosecutor, Larry McKeeman, S. Aaron Fine, Deputy Pros. Attys., Everett, for respondent.

Ogden, Ogden & Murphy, Rosemary Bordlemay, Seattle, amicus curiae, for petitioner.

STAFFORD, Justice.

Petitioner, Ivy Gail Kelly, appeals her conviction for second degree murder. The State did not object, at trial or on appeal, to expert testimony on the applicability of the "battered woman syndrome" as explanatory of petitioner's actions under a claim of self-defense. The issue before us is whether evidence of petitioner's alleged prior aggressive acts is properly admissible to rebut such expert testimony. We hold it is not. Petitioner also asserts the trial court improperly refused her funds for the transportation of a medical witness. We hold the trial court did not abuse its discretion in this regard.

Petitioner shot and killed her husband Jack Kelly in their home on August 30, 1980. At trial, Mrs. Kelly admitted killing him but asserted she had acted in self-defense. She contended that her husband had physically beaten her during their marriage and at the time of the shooting she feared another episode of physical abuse.

Petitioner called an expert witness to testify about what has been called the "battered woman syndrome". The witness was asked: "What, if any, information did you obtain from Mrs. Kelly which led you to conclude either that she was battered or was not battered, and which behavioral characteristics did she fit?" The expert described behavioral characteristics which Mrs. Kelly exhibited. These included: frustration; stress disorders; depression; economic and emotional dependence on her husband; hopes that the marital relationship would improve; poor self-image; isolation; and learned helplessness. "Isolation" was described as a loss of contact with family and friends. "Learned helplessness" was deemed explanatory of why a battered woman would remain in a harmful relationship. It was said to arise because of the woman's fear and the unpredictability of batterings, which would lead to a feeling of surrender and a failure to realize or know options available to escape the relationship. The behavioral characteristics exhibited by Mr. Kelly and Mrs. Kelly led the expert to conclude they fit the categories of a "batterer" and a "battered woman".

As part of its rebuttal case, the State made an offer of proof that one witness, Mr. Bambrough, would testify Mrs. Kelly accused him of trespass and threatened to injure him. A further offer was made that a second witness, Mrs. Penhollow, would testify she observed Mrs. Kelly pounding on the back door of the Kellys' home with a shovel while Mr. Kelly was inside. Further, it was said Mrs. Penhollow would also testify that, on another occasion, Mrs. Kelly was verbally abusive when Mrs. Penhollow sought to clean an easement between their adjacent properties.

Defense counsel moved in limine to exclude the testimony of both rebuttal witnesses. At the close of the defense case, the trial judge heard argument on the motion and thereafter denied it, stating the proposed evidence would rebut or answer the expert testimony regarding "isolation" and "learned helplessness".

Subsequently, the State's two rebuttal witnesses testified in conformance with the previous offers of proof, without further defense objection. The jury subsequently convicted petitioner of second degree murder.

The Court of Appeals affirmed the conviction. State v. Kelly, 33 Wash.App. 541, 655 P.2d 1202 (1982). It held that "[t]he evidence of the 'battered woman syndrome' was properly offered by the accused to establish a trait of her character. ER 404(a)(1). The evidence of previous specific acts of aggression, particularly those directed at the decedent, was properly admitted in rebuttal under ER 405(b)." State v. Kelly, supra at 544, 655 P.2d 1202. We find the analysis of the Court of Appeals incorrect and reverse.

I.

First, the State contends defense counsel's motion in limine was insufficient to preserve for appeal the issue of admissibility of the rebuttal evidence. We do not agree.

There is some conflict in the Court of Appeals as to whether a motion in limine, standing alone, preserves an evidentiary objection. Compare State v. Austin, 34 Wash.App. 625, 662 P.2d 872, aff'd on other grounds, sub nom State v. Koloske, 100 Wash.2d 889, 676 P.2d 456 (1984) and State v. Wilson, 29 Wash.App. 895, 626 P.2d 998 (1981) (Ruling on motion in limine is tentative; error is not preserved absent objection in the course of trial.) with State v. Moore, 33 Wash.App. 55, 651 P.2d 765 (1982) (Denial of defendant's motion in limine reviewable despite defendant's failure to object in the course of trial.) and State v. Latham, 30 Wash.App. 776, 780, 638 P.2d 592 (1981), aff'd on other grounds, 100 Wash.2d 59, 667 P.2d 56 (1983) (Disposition of some motions in limine can only be determined at trial; other motions in limine are appropriately the subject of final ruling prior to trial.).

In Fenimore v. Donald M. Drake Constr. Co., 87 Wash.2d 85, 91, 549 P.2d 483 (1976), we set forth the rules governing trial court consideration of motions in limine:

[T]he trial court should grant such a motion if it describes the evidence which is sought to be excluded with sufficient specificity to enable the trial court to determine that it is clearly inadmissible under the issues as drawn or which may develop during the trial, and if the evidence is so prejudicial in its nature that the moving party should be spared the necessity of calling attention to it by objecting when it is offered during the trial.

See also State v. Evans, 96 Wash.2d 119, 123, 634 P.2d 845 (1981), 649 P.2d 633 (1982). The trial court in Fenimore denied the motion in limine and directed the moving party to object as the disputed evidence was offered, noting that its relevance could be determined only in the context of trial.

In contrast to Fenimore, the trial court here was able to make a determination as to the admissibility of the questioned testimony prior to its introduction at trial. The motion in limine was argued after the entire defense case had been presented, thus the trial court had an opportunity to evaluate precisely what defense evidence the disputed testimony would rebut. Defense counsel set forth the legal basis of objection to the rebuttal evidence and a complete record of the motion argument was made. Rather than instructing counsel to object as the evidence was offered, the trial judge made a final ruling on the motion in limine.

Under these circumstances, defense counsel was not required to lodge a subsequent objection to the rebuttal evidence at the time of its admission. "The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation." State v. Evans, supra 96 Wash.2d at 123, 634 P.2d 845. Unless the trial court indicates further objections are required when making its ruling, its decision is final, and the party losing the motion in limine has a standing objection. State v. Koloske, supra.

II.

Next we must determine whether the State's rebuttal testimony was properly admitted as character evidence. Insofar as relevant here, character evidence has two distinct functions: (1) to prove a pertinent trait of character and (2) to prove character as an essential element of the case. ¹ Also relevant here are the different methods of proving character set forth in ER 405: (1) by reputation testimony and cross examination of character witnesses as to specific instances of conduct, and; (2) by specific instances of conduct. Our analysis of the propriety of admission of the rebuttal testimony must focus on how the evidence fits within each of these functions and within each of these methods of proof.

A. Pertinent Trait of Character

Character evidence may be used circumstantially to show that a person acted consistently with that character. This use of character evidence to show conformity is generally rejected, however, in the first paragraph of ER 404(a), which provides: "Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion ..." The three subsections of ER 404(a) provide exceptions to this general rule. Thus, under certain circumstances, proof is permitted of the character of an accused, a victim, and a witness. We are here concerned with the character of an accused and hence, with ER 404(a)(1). Under this provision, an accused may offer evidence of a pertinent trait of character which the prosecution may then rebut.

The Court of Appeals found the expert's testimony was properly admitted as evidence of a pertinent trait of character under ER 404(a). Thus, it opined, the State's rebuttal evidence was properly admitted under ER 405(b). This is a misconstruction of the rules which confuses the two separate purposes for which character evidence is admissible. Contrary to the appellate court's analysis, ER 405(b) is inapplicable to evidence offered as rebuttal of a pertinent trait of character. As discussed below, ER 405(b) applies only when character is an essential element of a charge, claim, or defense.

The Court of Appeals also ignored the allowable methods of proving pertinent traits of character. When an accused offers evidence of a pertinent trait of character, ER 405(a) governs the allowable methods of proof. Testimony may be offered as to the reputation of the accused in the community. ER 405(a). See State v. Argentieri, 105 Wash. 7, 10, 177 P. 690 (1919) (proper method of questioning character witnesses). Upon...