State v. Stewart, 60896
| Citation | 243 Kan. 639,763 P.2d 572 |
| Decision Date | 21 October 1988 |
| Docket Number | No. 60896,60896 |
| Parties | , 57 USLW 2285 STATE of Kansas, Appellant, v. Peggy STEWART, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Under the common law, the excuse for killing in self-defense is founded upon necessity, be it real or apparent.
2. Where self-defense is asserted, evidence of the deceased's long-term cruelty and violence towards the defendant is admissible. In cases involving battered spouses, expert evidence of the battered woman syndrome is relevant to a determination of the reasonableness of the defendant's perception of danger.
3. The existence of the battered woman syndrome in and of itself does not operate as a defense to murder.
4. In order to instruct a jury on self-defense, there must be some showing of an imminent threat or a confrontational circumstance involving an overt act by an aggressor. There is no exception to this requirement where the defendant has suffered long-term domestic abuse and the victim is the abuser. In such cases, the issue is not whether the defendant believes homicide is the solution to past or future problems with the batterer, but rather whether circumstances surrounding the killing were sufficient to create a reasonable belief in the defendant that the use of deadly force was necessary.
5. Our test for self-defense is a two-pronged one. We first use a subjective standard to determine whether the defendant sincerely and honestly believed it necessary to kill in order to defend. We then use an objective standard to determine whether defendant's belief was reasonable--specifically, whether a reasonable person in defendant's circumstances would have perceived self-defense as necessary.
6. When a battered woman kills her sleeping spouse when she is in no imminent danger, the killing is not reasonably necessary and a self-defense instruction may not be given.
Michael E. Ward, Deputy Co. Atty., argued the cause, and Morgan Metcalf, County Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellant.
Jessica R. Kunen, Deputy Appellate Defender, argued the cause and was on the brief for appellee.
James W. Clark, Executive Director, Kansas County and Dist. Atty. Assn., Topeka, and Geary N. Gorup of Moore & Rapp P.A., Wichita, were on the amicus curiae brief for the Kansas County and Dist. Atty. Assn.
A direct appeal by the prosecution upon a question reserved (K.S.A.1987 Supp. 22-3602[b] asks whether the statutory justification for the use of deadly force in self-defense provided by K.S.A. 21-3211 excuses a homicide committed by a battered wife where there is no evidence of a deadly threat or imminent danger contemporaneous with the killing. An amicus curiae brief has been filed by the Kansas County and District Attorney Association.
Peggy Stewart fatally shot her husband, Mike Stewart, while he was sleeping. She was charged with murder in the first degree, K.S.A. 21-3401. Defendant pled not guilty, contending that she shot her husband in self-defense. Expert evidence showed that Peggy Stewart suffered from the battered woman syndrome. Based upon the battered woman syndrome, the trial judge instructed the jury on self-defense. The jury found Peggy Stewart not guilty.
The State stipulates that Stewart "suffered considerable abuse at the hands of her husband," but contends that the trial court erred in giving a self-defense instruction since Peggy Stewart was in no imminent danger when she shot her sleeping husband. We agree that under the facts of this case the giving of the self-defense instruction was erroneous. We further hold that the trial judge's self-defense instruction improperly allowed the jury to determine the reasonableness of defendant's belief that she was in imminent danger from her individual subjective viewpoint rather than the viewpoint of a reasonable person in her circumstances.
Following an annulment from her first husband and two subsequent divorces in which she was the petitioner, Peggy Stewart married Mike Stewart in 1974. Evidence at trial disclosed a long history of abuse by Mike against Peggy and her two daughters from one of her prior marriages. Laura, one of Peggy's daughters, testified that early in the marriage Mike hit and kicked Peggy, and that after the first year of the marriage Peggy exhibited signs of severe psychological problems. Subsequently, Peggy was hospitalized and diagnosed as having symptoms of paranoid schizophrenia; she responded to treatment and was soon released. It appeared to Laura, however, that Mike was encouraging Peggy to take more than her prescribed dosage of medication.
In 1977, two social workers informed Peggy that they had received reports that Mike was taking indecent liberties with her daughters. Because the social workers did not want Mike to be left alone with the girls, Peggy quit her job. In 1978, Mike began to taunt Peggy by stating that Carla, her 12-year-old daughter, was "more of a wife" to him than Peggy.
Later, Carla was placed in a detention center, and Mike forbade Peggy and Laura to visit her. When Mike finally allowed Carla to return home in the middle of summer, he forced her to sleep in an un-air conditioned room with the windows nailed shut, to wear a heavy flannel nightgown, and to cover herself with heavy blankets. Mike would then wake Carla at 5:30 a.m. and force her to do all the housework. Peggy and Laura were not allowed to help Carla or speak to her.
When Peggy confronted Mike and demanded that the situation cease, Mike responded by holding a shotgun to Peggy's head and threatening to kill her. Mike once kicked Peggy so violently in the chest and ribs that she required hospitalization. Finally, when Mike ordered Peggy to kill and bury Carla, she filed for divorce. Peggy's attorney in the divorce action testified in the murder trial that Peggy was afraid for both her and her children's lives.
One night, in a fit of anger, Mike threw Carla out of the house. Carla, who was not yet in her teens, was forced out of the home with no money, no coat, and no place to go. When the family heard that Carla was in Colorado, Mike refused to allow Peggy to contact or even talk about Carla.
Mike's intimidation of Peggy continued to escalate. One morning, Laura found her mother hiding on the school bus, terrified and begging the driver to take her to a neighbor's home. That Christmas, Mike threw the turkey dinner to the floor, chased Peggy outside, grabbed her by the hair, rubbed her face in the dirt, and then kicked and beat her.
After Laura moved away, Peggy's life became even more isolated. Once, when Peggy was working at a cafe, Mike came in and ran all the customers off with a gun because he wanted Peggy to go home and have sex with him right that minute. He abused both drugs and alcohol, and amused himself by terrifying Peggy, once waking her from a sound sleep by beating her with a baseball bat. He shot one of Peggy's pet cats, and then held the gun against her head and threatened to pull the trigger. Peggy told friends that Mike would hold a shotgun to her head and threaten to blow it off, and indicated that one day he would probably do it.
In May 1986, Peggy left Mike and ran away to Laura's home in Oklahoma. It was the first time Peggy had left Mike without telling him. Because Peggy was suicidal, Laura had her admitted to a hospital. There, she was diagnosed as having toxic psychosis as a result of an overdose of her medication. On May 30, 1986, Mike called to say he was coming to get her. Peggy agreed to return to Kansas. Peggy told a nurse she felt like she wanted to shoot her husband. At trial, she testified that she decided to return with Mike because she was not able to get the medical help she needed in Oklahoma.
When Mike arrived at the hospital, he told the staff that he "needed his housekeeper." The hospital released Peggy to Mike's care, and he immediately drove her back to Kansas. Mike told Peggy that all her problems were in her head and he would be the one to tell her what was good for her, not the doctors. Peggy testified that Mike threatened to kill her if she ever ran away again. As soon as they arrived at the house, Mike forced Peggy into the house and forced her to have oral sex several times.
The next morning, Peggy discovered a loaded .357 magnum. She testified she was afraid of the gun. She hid the gun under the mattress of the bed in a spare room. Later that morning, as she cleaned house, Mike kept making remarks that she should not bother because she would not be there long, or that she should not bother with her things because she could not take them with her. She testified she was afraid Mike was going to kill her.
Mike's parents visited Mike and Peggy that afternoon. Mike's father testified that Peggy and Mike were affectionate with each other during the visit. Later, after Mike's parents had left, Mike forced Peggy to perform oral sex. After watching television, Mike and Peggy went to bed at 8:00 p.m. As Mike slept, Peggy thought about suicide and heard voices in her head repeating over and over, "kill or be killed." At this time, there were two vehicles in the driveway and Peggy had access to the car keys. About 10:00 p.m., Peggy went to the spare bedroom and removed the gun from under the mattress, walked back to the bedroom, and killed her husband while he slept. She then ran to the home of a neighbor, who called the police.
When the police questioned Peggy regarding the events leading up to the shooting, Peggy stated that things had not gone quite right that day, and that when she got the chance she hid the gun under the mattress. She stated that she shot Mike to "get this over with, this misery and this torment." When asked why she got the gun out, Peggy stated to the police:
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