State v. Niemeyer, (AC 18590)
| Decision Date | 26 October 1999 |
| Docket Number | (AC 18590) |
| Citation | 55 Conn. App. 447,740 A.2d 416 |
| Court | Connecticut Court of Appeals |
| Parties | STATE OF CONNECTICUT v. TONY NIEMEYER |
Lavery, Spear and Sullivan, Js. Pamela S. Nagy, assistant public defender, for the appellant (defendant).
Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and Paul Gaetano, assistant state's attorney, for the appellee (state).
The defendant, Tony Niemeyer, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (C). He claims that the trial court improperly (1) admitted the testimony of the state's expert witness on battered woman's syndrome without a proper foundation, (2) committed plain error by not giving a limiting instruction, sua sponte, as to the expert's testimony, (3) denied his motion for judgment of acquittal as to the kidnapping charge and (4) failed to instruct the jury on the specific intent required for kidnapping in the first degree. We affirm the conviction of assault in the first degree and reverse the conviction of kidnapping in the first degree.
The jury reasonably could have found the following facts. The defendant shared an apartment in Derby with his girlfriend, Dawn Siok, and her three children. On February 9, 1996, the defendant left the apartment to go to work on the 3:30 to 11 p.m. shift at Synthetic Products in Stratford. At approximately 11 p.m., Siok observed two individuals, known to her as Wayne and Joel, in her backyard. She invited them in and offered them a beer. The three then smoked a marijuana cigarette, and Joel left soon after. Shortly after midnight, the defendant returned and met Wayne, who was in the process of leaving.
The defendant believed that Wayne and Siok had been having an affair and demanded to know what Wayne was doing in the apartment. Siok started backing into the master bedroom. The defendant began hitting her in the stomach with a closed fist and calling her names. For the next two to three hours, the defendant repeated the cycle of assaulting Siok, leaving the room for a short time and then returning to assault her again. At approximately 3 a.m., the defendant stopped beating Siok and told her to take a shower. Siok showered and then went to sleep in her daughters' bedroom.
Siok remained in bed for most of that day. She told the defendant in the morning that she needed to see a doctor and asked him in the afternoon to bring her to a hospital. At approximately 10:30 p.m., the defendant called an ambulance to take Siok to a hospital, but only on the condition that she promise not to have him arrested.
Winston Reed, an emergency room physician, examined Siok. He observed bruising on her left arm, and on the upper third of her chest and left ear. Siok's eyes were black and blue, and she complained of severe pain in the upper portion of her abdomen. Reed contacted Guy Nicastri, chief surgeon at the hospital, and asked him to examine Siok. Nicastri decided to operate and found that Siok was bleeding internally from a severed artery to her liver.
The defendant remained with Siok during most of her time at the hospital. A few days after being admitted, however, Siok was alone with her mother and sisters and told them that the defendant had assaulted her. On February 15, 1996, she told the police of the assault, and the defendant was subsequently arrested. Following a jury trial, the defendant was convicted of one count of assault in the first degree and one count of kidnapping in the first degree. This appeal followed.
The defendant first claims that the trial court improperly allowed the state to present expert testimony about battered woman's syndrome. He asserts that (1) because there was no evidence that Siok was a battered woman, the testimony was irrelevant, (2) the testimony bolstered Siok's credibility and, thus, invaded the province of the jury and (3) the prejudicial effect of the evidence outweighed its probative value. We disagree.
We first consider the defendant's claim that the admission of expert testimony on battered woman's syndrome was improper because there was no evidence that Siok was a battered woman and, therefore, the testimony was irrelevant.
Certain additional facts are necessary to our resolution of this claim. During cross-examination, defense counsel questioned Siok about several inconsistencies between her testimony and her conduct. Siok had testified that she was "deathly afraid" of the defendant, but on cross-examination revealed that she had moved in with him despite this fear and also had contacted him despite the existence of a protective order. Following the cross-examination, the state disclosed that it would present the expert testimony of Evan Stark, a sociologist, on the subject of battered woman's syndrome.
The defendant filed a motion in limine to preclude Stark's testimony. After conducting a hearing outside of the presence of the jury, the trial court allowed the state to present Stark's testimony solely for the purpose of rehabilitation with respect to matters that were raised on cross-examination of Siok.
(Citations omitted; internal quotation marks omitted.) State v. Battista, 31 Conn. App. 497, 513, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993). Our Supreme Court has held that expert testimony concerning battered woman's syndrome is relevant "to describe the behavior patterns typically ascribed to battered women's syndrome." State v. Borrelli, 227 Conn. 153, 174, 629 A.2d 1105 (1993). State v. Borrelli, supra, 172 n.15. Therefore, the claims that the expert testimony should not have been admitted because there was no evidence that Siok was a battered woman and because the testimony was irrelevant are one and the same.
Here, the defendant claims that the state must present evidence that Siok had been battered at least twice before she can be classified as a battered woman. In support of this proposition, the defendant cites several cases from other jurisdictions and a book by Lenore Walker, a psychologist and researcher who has written extensively on battered woman's syndrome. The defendant fails, however, to cite any Connecticut case law establishing such a proposition as the law in this jurisdiction and we decline to adopt one now. While Walker writes that at least two cycles of abuse are required for the victim to be classified as a battered woman, Stark asserts that one cycle can be sufficient. In essence, the defendant is asking us to settle a dispute between two experts in the field of battered woman's syndrome. As stated in Borrelli, before testimony about battered woman's syndrome can be relevant, an evidentiary foundation must first be established that the victim is a battered woman. Id. The state clearly presented evidence that Siok was battered at least once by the defendant. Whether sufficient abuse occurred to constitute battered woman's syndrome in the victim is not an evidentiary foundation question, but rather is a question of evidentiary weight.
It is important to note that the expert may testify only as to the general behavior of victims of domestic abuse. He may not give an opinion as to whether this particular victim told the truth or whether this particular victim in fact suffered from domestic abuse. See id., 173. These questions are solely within the province of the jury. See State v. Ramos, 53 Conn. App. 720, 724, 732 A.2d 197 (1999). Stark's testimony was offered to assist the jury in understanding whether Siok's conduct was consistent with the pattern and profile of a battered woman. See State v. Borrelli, supra, 227 Conn. 174.
Our Supreme Court's decision in State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), controls the defendant's claim that Stark's testimony bolstered Siok's credibility and therefore invaded the province of the jury when he responded to hypothetical questions posed by the state. In Freeney, our Supreme Court held that it was not impermissible for an expert witness to respond to hypothetical questions about the behavior of sexual assault victims for the purpose of establishing that the victim's behavior was generally consistent with that of such victims. Id., 592-93.
In Freeney, Barbara Moynahan, a psychotherapist, was allowed to answer hypothetical questions that tracked the testimony of the victim. She was ...
To continue reading
Request your trial
-
State v. Dews
...Izzo, supra, 82 Conn.App. at 298, 843 A.2d 661, citing State v. Cator, 256 Conn. 785, 801, 781 A.2d 285 (2001); State v. Niemeyer, 55 Conn.App. 447, 458, 740 A.2d 416 (1999), rev'd in part on other grounds, 258 Conn. 510, 782 A.2d 658 (2001). "The failure by the trial court to give, sua spo......
-
People v. Brown
...227 Conn. 153, 172, fn. 15, 629 A.2d 1105, 1115; Fennell v. Goolsby (E.D.Pa.1985) 630 F.Supp. 451, 459; see State v. Niemeyer (1999) 55 Conn.App. 447, 452, 740 A.2d 416, 419-420; State v. Stringer (1995) 271 Mont. 367, 378, 897 P.2d 1063, 1070; State v. Koss (1990) 49 Ohio St.3d 213, 218, 5......
-
State v. Cator
...proceedings." (Internal quotation marks omitted.) State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999); see State v. Niemeyer, 55 Conn. App. 447, 457-58, 740 A.2d 416, cert. granted on other grounds, 252 Conn. 916, 747 A.2d 517, cert. granted on other grounds, 252 Conn. 917, 744 A.2d ......
-
State v. Carpenter
...an adequate foundation had been laid to admit the expert testimony. Id., at 617-18, 800 A.2d 590. Similarly, in State v. Niemeyer, 55 Conn.App. 447, 452-53, 740 A.2d 416 (1999), rev'd in part on other grounds, 258 Conn. 510, 782 A.2d 658 (2001), evidence of one cycle of abuse, rather than t......