State v. Kelly

685 P.2d 564, 102 Wash. 2d 188, 1984 Wash. LEXIS 1758

• Court: Washington Supreme Court
• Decided: June 28, 1984
• Docket: 49584-0
• Status: Published

Opinions

Stafford, J.

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. Pen-hollow, 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 Wn. 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. 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 Wn. App. 625, 662 P.2d 872, aff'd on other grounds sub nom. State v. Koloske, 100 Wn.2d 889, 676 P.2d 456 (1984) and State v. Wilson, 29 Wn. App. 895 (1981) (ruling on motion in limine is tentative; error is not preserved absent objection in the course of trial) with State v. Moore, 33 Wn. 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 Wn. App. 776, 780, 638 P.2d 592 (1981), aff'd on other grounds, 100 Wn.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 Wn.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 Wn.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 at 123. 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 cross examination of character witnesses, inquiry may be made into specific instances of conduct. Where character witnesses are cross-examined as to their personal knowledge of acts of misconduct of the accused, the primary purpose of such cross examination must be to impeach the testimony of the character witnesses, not to discredit the person on trial. State v. Styles, 93 Wn.2d 173, 606 P.2d 1233 (1980); State v. Donaldson, 76 Wn.2d 513, 458 P.2d 21 (1969); State v. Cyr, 40 Wn.2d 840, 246 P.2d 480 (1952). The same method of proof is applicable when the prosecution seeks to rebut the accused's evidence of a pertinent trait of character.

Assuming, for the purpose of discussion, the expert's testimony constituted evidence of a pertinent trait of character, the expert's opinion thereon would not have been admissible. Unlike the federal Rules of Evidence, Washington's evidentiary rules do not permit proof of character by opinion testimony. Comment, ER 405, 91 Wn.2d 1135 (1979); State v. Woodard, 26 Wn. App. 735, 617 P.2d 1039 (1980). Further, even assuming petitioner could have offered evidence of a pertinent trait of character by means of the expert testimony, the State's evidence of prior acts was not proper rebuttal. When an accused offers evidence of a pertinent trait of character, it may be rebutted by cross examination of character witnesses or contrary proof of reputation in the community, not by evidence of specific instances of misconduct. ER 405(a). See State v. Putzell, 40 Wn.2d 174, 182, 242 P.2d 180 (1952).

Our finding of error does not rest on the improper method of proof alone. We also find the expert testimony did not in fact constitute evidence of a pertinent trait of character within the meaning of ER 404(a)(1). We do not attempt to formulate a general definition of the amorphous concept of "character". Our focus is considerably narrower. We are concerned with whether the expert testimony offered by petitioner Kelly was evidence of her character at all as the term is used in ER 404(a)(1).

A defendant offers evidence of a pertinent trait of character to show that he or she acted in conformity with that character. Character witnesses offered by an accused typically testify that the defendant has a reputation for being a good, honest, law-abiding and/or peaceful person. E.g., State v. Riggs, 32 Wn.2d 281, 283, 201 P.2d 219 (1949); United States v. Angelini, 678 F.2d 380 (1st Cir. 1982); Darland v. United States, 626 F.2d 1235 (5th Cir. 1980). From such testimony, the defendant generally seeks to have the jury conclude that one of such character would not have committed the crime charged. See Michelson v. United States, 335 U.S. 469, 475-76, 93 L. Ed. 168, 69 S. Ct. 213 (1948).

Mrs. Kelly did not introduce the expert testimony to show that at the time she shot her husband, she acted in conformity with behavioral characteristics which were said to comprise the "battered woman syndrome". Rather, the expert testimony was offered to aid the jury in understanding the reasonableness of Mrs. Kelly's apprehension of imminent death or bodily injury.² See State v. Allery, 101 Wn.2d 591, 682 P.2d 312 (1984). The "battered woman syndrome" testimony was therefore not offered as evidence of a pertinent trait of character. Rather the expert testimony was offered to aid the trier of fact in understanding the evidence and determining a fact in issue (i.e., self-defense). ER 702.

B

Character as an Essential Element

When character is itself an essential element of the charge, claim or defense, it may be proved by evidence of specific instances of conduct. ER 405(b). The State argues petitioner testified that when her husband was shot, she was neither the aggressor nor a mutual combatant. Thus, it is urged, petitioner injected her character into the case and made her prior aggressive acts admissible under ER 405(b). While the Court of Appeals found the prior acts admissible under this evidentiary rule it is not clear whether the appellate court believed character was an essential element in the case or merely confused the proper method of rebutting a pertinent trait of character. We hold the rebuttal evidence was not admissible under ER 405(b).

Character is an "essential element" in comparatively few cases. 22 C. Wright & K. Graham, Federal Practice § 5235 (1978). In criminal cases, character is rarely an essential element of the charge, claim, or defense. 5 K. Tegland, Wash. Prac., Evidence § 126, at 312 (1982). For character to be an essential element, character must itself determine the rights and liabilities of the parties. 2 J. Weinstein & M. Berger, Evidence ¶ 404[02] (1979). See, e.g., Getchell v. Auto Bar Sys. Northwest, Inc., 73 Wn.2d 831, 839, 440 P.2d 843 (1968) (defamation); Thompson-Cadillac Co. v. Matthews, 173 Wash. 353, 358, 23 P.2d 399 (1933) (negligent employment).

The expert's testimony was part of the presentation of petitioner's self-defense theory. Where self-defense is asserted, "the defendant's actions are to be judged against her own subjective impressions and not those which a detached jury might determine to be objectively reasonable." State v. Wanrow, 88 Wn.2d 221, 240, 559 P.2d 548 (1977). The jury is to consider whether the petitioner reasonably believed that she was in imminent danger of death or great bodily harm, in light of all the facts and circumstances known to her. Wanrow, at 234. This standard may conceivably involve some very minor consideration of the petitioner's character but character is not itself an essential element of a self-defense claim as is required by ER 405(b). See Weissenberger, Character Evidence Under the Federal Rules: A Puzzle With Missing Pieces, 48 U. Cin. L. Rev. 1, 5 (1979). Since character is not an essential element of a self-defense claim, petitioner's character was irrelevant, and evidence of her prior aggressive acts was inadmissible to show her character.

Ill

The State raises several additional arguments in support of the admissibility of its rebuttal evidence. We reject each of them.

The State asserts the rebuttal testimony was admissible by analogizing this case to one in which a defendant offers a plea of not guilty by reason of insanity. It contends that in an insanity defense, any prior conduct of a defendant that bears on his mental condition is admissible. Wide latitude in the admission of evidence is appropriate because if a specific act does not indicate insanity, it may indicate sanity. State v. Odell, 38 Wn.2d 4, 19-21, 227 P.2d 710 (1951). The State argues that petitioner put her mental state in issue thereby making relevant any evidence bearing thereon.

Self-defense and insanity raise very different concepts. In an insanity defense, the relevant inquiry is whether the mind of the accused was so affected or diseased at the time of the crime charged that he could not tell right from wrong and perceive the moral qualities of his act. State v. Reece, 79 Wn.2d 453, 454, 486 P.2d 1088 (1971). In contrast, in a self-defense claim the appropriate inquiry is whether the defendant reasonably apprehended imminent death or bodily injury. See State v. Wanrow, supra. Cf. Hawthorne v. State, 408 So. 2d 801 (Fla. Dist. Ct. App. 1982). The expert's testimony was not offered to show that the batterings so affected defendant's mental state that she could not tell right from wrong and perceive the moral qualities of the act. It was offered to explain the reasonableness of her fear of imminent danger. Thus, we are not persuaded by the State's analogy.

The State also asserts that the rebuttal evidence was admissible under ER 404(b) to show motive, intent, or absence of mistake or accident. Before evidence of prior crimes, wrongs, or acts can be admitted, it must be shown to be logically relevant to a material issue before the jury and its probative value must be shown to outweigh its potential for prejudice. State v. Saltarelli, 98 Wn.2d 358, 361-62, 655 P.2d 697 (1982); State v. Robtoy, 98 Wn.2d 30, 653 P.2d 284 (1982). We have reviewed the record and are convinced none of the rebuttal evidence logically supports an inference of motive, intent, or absence of mistake or accident. Further, petitioner's theory was one of self-defense, not absence of mistake or accident.

Finally, the State maintains the rebuttal testimony was properly admitted in response to the defense expert's testimony that petitioner suffered from "learned helplessness" and "isolation". The rebuttal testimony, however, was irrelevant and collateral with respect to both. See State v. Putzell, 40 Wn.2d 174, 183, 242 P.2d 180 (1952); State v. Johnson, 192 Wash. 467, 73 P.2d 1342 (1937). Learned helplessness is a term used to explain why a battered woman remains in a relationship that is both psychologically and physically harmful. Testimony that petitioner once beat on her door with a shovel has no bearing upon her inability to extricate herself from the marital relationship. Similarly, testimony that she had poor relations with her neighbors at some time in the past is not relevant to rebut evidence explaining her gradual loss of contact with her family and friends.

IV

Having concluded that the State's rebuttal evidence was improperly admitted, we must next decide whether the error was prejudicial and hence, reversible. The evidentiary error was not of constitutional magnitude; therefore we must apply the rule that error is prejudicial only if, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981); State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

The Rules of Evidence strictly confine the use of a defendant's prior bad acts because such evidence has a great capacity to arouse prejudice. See ER 404, 405, 608, Fed. R. Evid. 405 advisory committee note. As was eloquently expressed by Justice Jackson in Michelson v. United States, 335 U.S. 469, 475-76, 93 L. Ed. 168, 69 S. Ct. 213 (1948):

The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

(Footnotes omitted.) Cf. State v. Saltarelli, supra. The restrictions on the use of extrinsic evidence of prior specific instances of conduct are thus a recognition of the axiom that a defendant should be tried only for the offense charged. State v. Mack, 80 Wn.2d 19, 21, 490 P.2d 1303 (1971); State v. Emmanuel, 42 Wn.2d 1, 253 P.2d 386 (1953).

Petitioner was on trial for the murder of her husband. She was not on trial for yelling at her neighbors or for beating on her own door with a shovel. The admission of evidence of these irrelevant prior specific acts of conduct could only distort the true issues at trial. The admission of this evidence would be prejudicial and hence constitutes reversible error.

V

Finally, petitioner has assigned error to the trial court's refusal to authorize funds for travel expenses of a physician who treated her after a beating by her husband. She argues that failure to provide funds deprived her of her constitutional right to a fair trial, effective assistance of counsel, and compulsory process. We disagree.

CrR 3.1(f) controls the authorizations of funds for services other than counsel and provides, in pertinent part:

Counsel for a defendant who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense in his case may request them by a motion. Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant.

This rule incorporates constitutional requirements by recognizing that funds must be provided where necessary to an adequate defense. See Mason v. Arizona, 504 F.2d 1345, (9th Cir. 1974), cert. denied, 420 U.S. 936 (1975). Thus, denial of funds is proper where the witness's testimony is not a necessity. See State v. Mines, 35 Wn. App. 932, 671 P.2d 273 (1983); State v. Anderson, 33 Wn. App. 517, 655 P.2d 1196 (1982); State v. Niemczyk, 31 Wn. App. 803, 644 P.2d 759 (1982); State v. Dickamore, 22 Wn. App. 851, 592 P.2d 681 (1979).

Since other evidence substantiating the genuineness of petitioner's injuries, including the physician's medical report, was admitted, the physician's testimony, while relevant, was not necessary. In light of the corroborating evidence, the trial court did not abuse its discretion in refusing to authorize funds.

We reverse the Court of Appeals and remand for a new trial.

Williams, C.J., and Utter, Brachtenbach, Dolliver, Dimmick, and Pearson, JJ., concur.

Rosellini, J., concurs in the result.

1 A third function of character evidence, impeachment of the credibility of a witness, is not involved here.

2 In considering a self-defense claim, an evaluation of the defendant's actions in light of her subjective impressions and all the facts and circumstances known to her is required under State v. Wanrow, 88 Wn.2d 221, 240, 559 P.2d 548 (1977). Expert testimony on the "battered woman syndrome" may assist the trier of fact in making this evaluation. Of course, the presence of the "battered woman syndrome” in a marriage does not provide justification for killing one's husband. Petitioner Kelly has never argued nor even intimated, however, that because she suffered from the "battered woman syndrome", she had a legal right to shoot her husband.