State v. Koss

Decision Date07 March 1990
Docket NumberNo. 88-1908,88-1908
Citation49 Ohio St.3d 213,551 N.E.2d 970
PartiesThe STATE of Ohio, Appellee, v. KOSS, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. The battered woman syndrome has gained substantial scientific acceptance to warrant admissibility into evidence. (State v. Thomas [1981], 66 Ohio St.2d 518, 20 O.O.3d 424, 423 N.E.2d 137, overruled to the extent inconsistent herewith.)

2. A defendant attempting to admit expert testimony regarding the battered woman syndrome must offer evidence which establishes herself as a "battered woman."

3. Admission of expert testimony regarding the battered woman syndrome does not establish a new defense or justification. It is to assist the trier of fact to determine whether the defendant acted out of an honest belief that she is in imminent danger of death or great bodily harm and that the use of such force was her only means of escape.

4. Negligent homicide is not a lesser included offense of murder.

On May 2, 1986, the body of Michael Koss was found in a front bedroom in the Kosses' house in Cleveland, Ohio. The cause of death was a single gunshot wound to the head with perforations of both the skull and brain. The body was discovered by Arthur Piiparinen, a patrolman in the Cleveland Police Department. Patrolman Piiparinen testified that he had been called to the Kosses' residence upon receiving a radio broadcast of a "male shot" at this residence. Michael Koss was found dressed in his Coast Guard uniform, with his head lying over one edge of the bed and his feet lying over the other edge.

Brenda J. Koss, appellant-defendant, wife of the victim, Michael Koss, was asked to come in for questioning by the Cleveland Police Department on May 3, 1986. During questioning, appellant signed a typewritten statement, wherein she stated, in part, that upon returning home around midnight or 1:00 a.m. on May 2, 1986, she went to the bedroom where her husband was in bed. As she undressed, she stated that her husband "hauled off" and hit her. The next thing she remembered was a "noise or something." At this point she saw a holster on the floor which she retrieved. She then left the house, picked up her son at her daughter's house, and drove to her mother's house in Michigan. During questioning, appellant stated that the first time she saw the gun was in the car, when she put the gun in the holster. When asked if she shot her husband as he slept, she responded, "No."

On May 28, 1986, appellant was indicted for the murder of her husband in a one-count indictment, with a gun specification. Appellant pleaded not guilty.

At trial, appellant presented witnesses who testified that she had been beaten on a number of occasions by her husband, Michael, during their marriage. Various witnesses testified to these alleged beatings including a counselor at the Witness and Victim Services Center.

Appellant took the stand in her own defense at trial. She recounted several instances when her husband had beaten her or threatened to kill her. She also testified that her husband on one occasion had tried to smother her with a pillow, and that on another occasion, when she was taking a bath, her husband put a radio in the bathtub. Appellant testified that her husband had threatened to kill her children if she did not drop a domestic violence charge she had filed against him in December 1983. Because of this threat, appellant dropped the charge. Appellant further testified that in some ways, her marriage had improved in 1985 and 1986 from her first years of the marriage.

When questioned about what happened on May 2, 1986, appellant testified that upon entering the bedroom, she saw a gun on the bedside table. She stated that this frightened her because she previously had never seen the gun out. She testified that she "must have picked" up the gun, afraid that her husband was going to kill her. According to appellant, her husband then hit her. She could not remember anything from the time her husband hit her to the time when she heard a "noise," which she believed was gurgling blood. When asked upon cross-examination if she caused the death of Michael, purposely or not, appellant answered that she had "no idea." She testified that "I purposely did not kill Michael Koss," and "[i]f I killed him, it was an accident."

Appellant sought to introduce evidence of the battered woman syndrome, which the trial court denied. This evidence was proffered evincing that experts on the battered woman syndrome would have testified that there are two components of the syndrome. The first component is met when the woman is established to be a battered woman. The second component is that at the time of the incident, all the prior battering incidents appear in a flashback to the woman, thus triggering an immediate fear of death and causing her to respond almost instinctively in self-defense.

At the close of all the evidence, the trial court instructed the jury on murder, voluntary manslaughter, and self-defense. The court refused to instruct on negligent homicide. The jury found appellant not guilty of murder, but guilty of the lesser included offense of voluntary manslaughter. The jury did not find appellant guilty of the gun specification. Appellant was sentenced to eight to twenty-five years at the Marysville Reformatory for Women.

Appellant appealed to the court of appeals, which affirmed the trial court. This cause is now before this court upon the allowance of a motion for leave to appeal.

John T. Corrigan, Pros. Atty., George J. Sadd and Robert G. Trusiak, Cleveland, for appellee.

David R. Harbarger and Stuart A. Saferin, for appellant.


We shall first address whether the trial court erred in refusing to admit evidence of the battered woman syndrome. The trial court excluded the testimony based on the earlier decision of this court in State v. Thomas (1981) 66 Ohio St.2d 518, 20 O.O.3d 424, 423 N.E.2d 137.

In Thomas, supra, the defendant alleged that she killed her common-law husband in self-defense. The trial court did not allow the defendant to introduce expert testimony on the battered woman syndrome in support of her defense. This court held that expert testimony on the battered woman syndrome was "inadmissible in evidence where (1) it is irrelevant and immaterial to the issue of whether defendant acted in self-defense at the time of the shooting; (2) the subject of the expert testimony is within the understanding of the jury; (3) the 'battered wife syndrome' is not sufficiently developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under the guise of expertise; and (4) its prejudicial impact outweighs its probative value." Id. at syllabus.

In the case before us, appellant urges this court to overrule Thomas, supra, and hold that the trial court incorrectly excluded expert testimony as to the battered woman syndrome.

In Thomas, supra, at 521, 20 O.O.3d at 426, 423 N.E.2d at 139, we stated that "such expert testimony is inadmissible because it is not distinctly related to some science, profession or occupation so as to be beyond the ken of the average lay person. Furthermore, no general acceptance of the expert's particular methodology has been established." However, since 1981, several books and articles have been written on this subject. 1 In jurisdictions which have been confronted with this issue, most have allowed expert testimony on the battered woman syndrome. See People v. Torres (1985), 128 Misc.2d 129, 135, 488 N.Y.S.2d 358, 363; State v. Hodges (1986), 239 Kan. 63, 71, 716 P.2d 563, 567; Smith v. State (1981), 247 Ga. 612, 277 S.E.2d 678; Hawthorne v. State (Fla.App.1982), 408 So.2d 801; State v. Kelly (1984), 97 N.J. 178, 202, 478 A.2d 364, 375-376.

Appellant argues that expert testimony on the battered woman syndrome is essential to her claim of self-defense. In Ohio, to prove self-defense it must be established that the person asserting this defense had " * * * a bona fide belief that he [she] was in imminent danger of death or great bodily harm and that his [her] only means of escape from such danger was in the use of such force." (Emphasis added.) State v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the syllabus.

Thus, Ohio has adopted a subjective test in determining whether a particular defendant properly acted in self-defense. The defendant's state of mind is crucial to this defense. See State v. Smith (1983), 10 Ohio App.3d 99, 101, 10 OBR 122, 125, 460 N.E.2d 693, 696-697; State v. Thomas (1983), 13 Ohio App.3d 211, 213, 13 OBR 261, 262-263, 468 N.E.2d 763, 765.

The trial court in the instant case properly instructed the jury that it must put itself in the position of the appellant in determining whether she acted in self-defense:

"In determining whether the Defendant had reasonable grounds for an honest belief that she was in imminent danger, you must put yourself in the position of the Defendant, with her characteristics, knowledge, or lack of knowledge, and under the same circumstances and conditions that surrounded the Defendant at the time. You must consider the conduct of Michael Koss and determine if such acts and words caused the Defendant to reasonably and honestly believe that she was about to be killed or to receive great bodily harm."

Expert testimony in Ohio is admissible if it will assist the trier of fact in search of the truth. See Kitchens v. McKay (1987), 38 Ohio App.3d 165, 528 N.E.2d 603. However, when such knowledge is within the ken of the jury, expert testimony is inadmissible. See Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881, paragraph three of the syllabus; Lee v. Baldwin (1987), 35 Ohio App.3d 47, 519 N.E.2d 662.

Further, Evid.R. 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or to determine a...

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