Tourlakis v. Morris

• Court: U.S. District Court — Southern District of Ohio
• Writing for the Court: John A. Bay, Ohio Public Defender Com'n, Columbus, Ohio, for petitioner
• Citation: Tourlakis v. Morris, 738 F.Supp. 1128 (S.D. Ohio 1990)
• Decision Date: 30 May 1990
• Docket Number: No. C-2-89-314,C-2-89-955.,C-2-89-314
• Parties: Andrea TOURLAKIS, Petitioner, v. H.L. MORRIS, Respondent.

738 F. Supp. 1128

Andrea TOURLAKIS, Petitioner, v. H.L. MORRIS, Respondent.

Nos. C-2-89-314, C-2-89-955.

United States District Court, S.D. Ohio, E.D.

May 30, 1990.

John A. Bay, Ohio Public Defender Com'n, Columbus, Ohio, for petitioner.

Suzanne E. Mohr, Asst. Atty. Gen., Columbus, Ohio, for respondent.

OPINION AND ORDER

GRAHAM, District Judge.

Petitioner, a state prisoner, brings this action for a writ of habeas corpus under the provisions of 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent's return of writ, the trial transcripts in State of Ohio v. Tourlakis, No. CR-2-01520 (Cuyahoga Cty. Com.Pl.), petitioner's traverse¹ and the briefs and exhibits of the parties. The issue presented in this case is whether petitioner's constitutional rights were violated as a result of the trial court's refusal to admit expert testimony on the battered woman syndrome.

I. FACTS

The May, 1985 term of the Cuyahoga County, Ohio Grand Jury indicted petitioner on one count of attempted murder and two counts of felonious assault, with all three counts containing a gun specification. Petitioner initially entered a plea of not guilty but later withdrew her not guilty plea and entered a plea of not guilty by reason of insanity. After a psychiatric examination, petitioner withdrew her plea of not guilty by reason of insanity and reinstated her not guilty plea.

Prior to trial, the state made a motion in limine seeking to exclude any expert testimony on the "battered woman syndrome." The trial court granted the motion. Petitioner then waived her right to a trial to a jury and proceeded to trial before the judge. Petitioner asserted the defense of self-defense at trial, attempting to establish the victim's reputation and propensity for violence, including specific prior violent acts against petitioner, over prosecutor Ester Harbor's numerous objections. The trial judge found petitioner guilty of the count of attempted murder with the gun specification, but not guilty of the two counts of felonious assault. The trial court sentenced petitioner on April 10, 1986 to a term of five to twenty-five years imprisonment for attempted murder and a consecutive term of three years actual incarceration for the gun specification.

Petitioner appealed the judgment of the trial court to the Court of Appeals for the First Appellate District of Ohio, raising the following assignments of error:

1. The trial judge erred by excluding lay testimony on the victim's treatment of the defendant in the months preceding the incident in violation of defendant's right to a fair trial and due process of law as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article One, Sections Ten and Sixteen of the Ohio Constitution.

2. The trial court erred in excluding expert testimony on the defendant's state of mind at the time of the shooting.

3. The trial court erred by granting appellee's pretrial motion in limine to exclude all testimony on battered woman syndrome, expert testimony essential for the fact-finder to accurately determine defendant's state of mind.

4. The trial judge's repeated exclusion of lay and expert testimony on defendant's state of mind denied the defendant her right to a fair trial and due process of law as provided by article one section ten of the Ohio Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

5. The trial court's refusal to reduce the charge of attempted murder to voluntary manslaughter at the close of the state's case and at the close of the defendant's case was against the manifest weight of the evidence.

6. Ohio's concept of self-defense placing the burden of proof of this affirmative defense upon the defendant is in violation of Article One, Section Ten of the Ohio Constitution and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

The American Civil Liberties Union filed an amicus brief joining petitioner on her fourth assignment of error. In an opinion written by Judge Ann McManamon, the Court of Appeals overruled each assignment of error and affirmed the judgment of the trial court. State of Ohio v. Tourlakis, No. 52035 (Cuyahoga Cty. App. Apr. 25, 1987). The Court of Appeals' decision accurately summarizes the evidence adduced at trial as follows:

On the afternoon of July 20, 1985, the defendant, Andrea Tourlakis, shot and wounded her boyfriend, Murray Sparks. The state charged Tourlakis with attempted murder of Sparks and two counts of felonious assault against the paramedics who assisted Sparks. All three counts included firearm specifications. Tourlakis tried her case to the bench, arguing that she acted in self-defense in shooting Sparks. She further denied firing at the paramedics. The court acquitted Tourlakis of the felonious assault charges but found her guilty of attempted murder. In a timely appeal, she raises six assignments of error. footnote omitted Since none of her assignments are meritorious we affirm her conviction.

The record discloses that Tourlakis and Sparks engaged in a sexual relationship for approximately one and one-half years before the shooting. They maintained separate residences, although Sparks picked the defendant up everynight sic after her shift at a local bar and typically stayed with her until the early morning hours. Both Tourlakis and Sparks described a deterioration in their relationship in the months before the shooting. According to Sparks, he stayed with Tourlakis until 12:30 A.M. on the day of the shooting. Although Sparks claimed he wished to break off with the defendant, he entertained a suspicion that she intended to go out after he left. Sparks returned to her residence shortly thereafter. Finding the house empty, Sparks threw a basket of clothes on the floor and knocked the phone off its receiver. Sparks testified that he repeatedly telephoned the defendant to determine when she returned home.

Sparks further averred that Tourlakis telephoned him at 9:00 A.M. and 1:00 P.M. the following day, demanding that he return to her house. Sparks claimed that upon arriving there, she requested that he embrace her. According to Sparks, he spurned her advances, accused her of spending the night with another man and informed her that their relationship was over. However, Sparks told Tourlakis they could continue their joint efforts to purchase the bar where she worked if she so desired. Sparks testified that while he waited for her reply, Tourlakis secured a gun from her bedroom and shot him three times. The defendant continued to fire at Sparks as he ran into a nearby Convenience Store and finally into a parked Emergency Medical Service Ambulance.

In response to questions about the nature of their relationship, Sparks averred that he had never threatened or beaten Tourlakis. He also testified that on July 12th, one week before he was wounded, the defendant fired a gun in his direction when he attempted to leave for the evening. He denied that any argument provoked that shooting.

On her part, Tourlakis described a series of beatings and threats in the months before she wounded Sparks. Her testimony portrays Sparks as an intensely jealous and violent individual, always armed with a straight razor. For example, she testified that in March of 1985, while she was working, Sparks placed his razor on the bar and announced to her customers "you don't touch her." (Tr. 340). Tourlakis told the court that, in April of 1985, Sparks called her into the kitchen of the bar, put his hands around her throat and threatened to kill her. (Tr. 341). According to the defendant, Sparks also threatened her at home later that same month by holding his razor to her throat and telling her that "he was going to cut my body so no one else could look at me and he would break my legs." (Tr. 343).

Tourlakis's version of the July 12th shooting differed from Sparks. sic She claimed that, following an argument, Sparks "... tore my whole body up ...", "... slammed me around, beat me up, my arms were totally bleeding." (Tr. 321-3). According to the defendant, she shot at the wall and begged him to leave because she did not want to hurt him. She averred they argued every night the following week about her desire to end the relationship.

Tourlakis also testified to the events of July 19th and 20th which culminated in the wounding of Sparks. According to the defendant, she and Sparks argued about a man who had touched her shoulder at the bar. The defendant explained that after Sparks left her home, she went for a drive to get something to eat. Knowing Sparks would return, she called him the next morning to find out when to expect him. Tourlakis averred that when he arrived he stated that he loved her. According to Tourlakis, she shot Sparks as he stepped toward her. She testified that Sparks then threw a clothes basket at her and she wounded him two more times. She admitted chasing him from her home and firing as he entered the ambulance.

In a statement to the police, Tourlakis claimed that Sparks did not strike her that afternoon. She also acknowledged that she reloaded the gun as she chased him from her home. When questioned at trial about seeking help from others, she claimed she had nowhere to go.

The defense also presented the testimony of four patrons from the bar at which Tourlakis worked. Two of these witnesses testified to Spark's sic general reputation for violence and jealousy. Malcolm Leggon told the court that he witnessed Sparks hold a knife to Tourlakis in the spring of 1985. Carol Thompson averred that the defendant often wore turtlenecks to cover her bruises. The witness also was present in April of 1985 when Sparks allegedly told the defendant he was going to kill her. Clarence McAdams told the court that he broke up a fight at the bar when Sparks tried to choke Tourlakis.

. . . . .

In the instant case, Tourlakis proffered the testimony of Dr. Rosewater for

...