LITIGATING THE “BATTERED SPOUSE SYNDROME” DEFENSE
AN EVIDENTIARY ROADMAP
By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
On November 2, 2017, in Wallace-Bey v. State, 2017 WL 4996781, (No. 476, Sept. Term, 2016) the Court of Special Appeals provided to criminal law practitioners an evidentiary roadmap as to what acts and statements of the decedent and what prior life experiences of a defendant are admissible to support a battered spouse syndrome defense in a homicide trial.
Procedural History & Factual Background
Tania Wallace-Bey (“Wallace-Bey”) had been convicted in 2006 of first degree murder in the shooting death of her boyfriend, Julius Whaley (“Whaley”). Post-conviction relief was subsequently granted on the basis that her prior counsel failed to investigate and pursue a battered spouse syndrome defense.
At her second trial in 2009 she was again convicted of first degree murder. On appeal the Court of Special Appeals reviewed two issues raised in Wallace-Bey’s appeal.
Did the Circuit Court impermissibly limit the testimony of Wallace-Bey and Dr. PatriciaMcGraw (“McGraw), her forensic expert?
Did the Circuit Court err in permitting the State to question Wallace-Bey about the credibility of another witness?
The Court of Special Appeals answered yes to both questions and reversed Wallace-Bey’s conviction for the second time.
Wallace-Bey testified that she shot Whaley after he had raped her. She also testified that she had been preparing to commit suicide in the days before the shooting and that Whaley had repeatedly abused her in the months leading up to the shooting.
Wallace-Bey purchased the revolver used in the shooting approximately six months before the shooting and she purchased sleeping pills from a nearby drug store at 8:30 a.m. on the morning of the shooting.
Wallace-Bey described how, after being forcibly raped, that “somehow after that I managed to roll off the bed and crawl across the floor where my bag was. That is where I had the gun. I shot him one time then he pushed me out of the bedroom and into the hall way. As he was pushing me he said ‘What are you doing’ and then he collapsed to the floor.”
A forensic sexual assault exam found left and right side abrasions inside Wallace-Bey’s vaginal cavity that Wallace-Bey said were painful to the touch. The forensic nurse testified that it was “possible” for a person to sustain those kinds of abrasions during sexual intercourse.
The State’s Motions In Limine
Prior to the trial the State made two motions in limine, both of which were granted by the trial court.
In the first motion in limine the State asked the trial court to “exclude any testimony as to prior abuse by anyone other than the victim.” Wallace-Bey argued that the evidence of her past abuse would assist the jury in evaluating her overall mental state and assess her perception of a threat “through her eyes and in light of her experiences”.
In the second motion the State asked the trial court to exclude “as hearsay” any statements that Wallace-Bey would testify to as statements that Whaley made to her. Wallace-Bey told the trial court that the statements were being offered “not for the truth of the statements but for the statements effect on her”. Defense counsel argued that such testimony would be offered to show how those statements affected Wallace-Bey’s mental state and her decision-making process.
During the defense case Wallace-Bey testified about the abuse she had suffered during her relationship with Whaley and described the events on the day of the shooting. Complying with the trial court’s ruling, defense counsel did not ask Wallace-Bey about any abuse by anyone other than Whaley. During Wallace-Bey’s testimony she testified about the abuse she had suffered over the period of her relationship with Whaley. The trial court the repeatedly sustained objections and granted motions to strike whenever Wallace-Bey testified about statements made by Whaley and texts messages and emails sent by Whaley to her during their relationship.
During the trial, Wallace-Bey complained that the restrictions on her testimony by the trial court impaired her constitutional right to present evidence in her defense and prevented her from presenting evidence of psychological abuse that was relevant to the issue of her battered spouse syndrome defense. She also made clear that the trial court’s rulings affected her ability to fully respond on cross-examination to the prosecutor’s challenges to her statements about the effect of her long-suffering abuse had on her at the time of the shooting.
The Court of Special Appeals noted that Wallace-Bey, based upon the repeated rulings by the trial court limiting evidence relevant to her battered spouse defense, “had now become conditioned to avoid mentioning words spoken to her by Whaley” and often gave vague responses and, on one occasion, noted that “because I am barred from saying what he said, I will say that he said things that lead me to believe that he would harm me if I moved”. McGraw, the defense clinical and forensic psychologist, was also restricted in her ability to testify as a defense witness and to offer specific information that she had received and relied upon to support her opinion as an expert in forensic psychology that Wallace-Bey suffered from “battered spouse syndrome” as defined under Maryland law as “the psychological condition of a victim of repeated physical and psychological abuse” by a current or former spouse or cohabitant. Although McGraw was able to testify as to her opinion that “but for the battered spouse syndrome at the time of the incident and the cumulative effects of the abuse by Mr. Whaley over the many years of their relationship… the events in question would never have occurred” the trial court’s rulings limited her ability to present to the jury all of the information, including the information provided to her by Wallace-Bey, to support her opinion. The trial court sustained numerous objections when the McGraw attempted to describe the abuse by Whaley with respect to his controlling behavior during the course of which he “insisted” that Wallace-Bey do certain things and “claimed” that he was divinely ordained or the police of God.
Wallace-Bey, on appeal, persisted in her position that the trial court impermissibly limited her own testimony and that of McGraw in presenting evidence relevant to her battered spouse syndrome defense asserting that the trial court deprived the jury of critical information it needed to meaningfully consider McGraw’s testimony and Wallace-Bey’s self-defense claim. Wallace-Bey identified the three specific categories of evidentiary rulings at issue:
The in limine ruling and subsequent rulings that barred Wallace-Bey and McGraw from mentioning any words spoken by Whaley;
The in limine ruling precluding Wallace-Bey and McGraw from testifying about Wallace-Bey’s history of abuse by persons other than Whaley; and
Various other rulings precluding those Wallace-Bey and McGraw from testifying about other matters related to her battered spouse syndrome defense.
The Court of Special Appeals reminded that Maryland law recognizes that evidence of the psychological condition known as “battered spouse syndrome” may be relevant to the state of mind elements of perfect and imperfect self-defense.
CJP10-916(a)(2) defines “battered spouse syndrome” as “the psychological condition of a victim of repeated physical and psychological abuse by a spouse, former spouse, cohabitant or former cohabitant which is also recognized in the medical and scientific community as the “battered women’s syndrome.”
The Court of Special Appeals pointed out that the statute permits (1) evidence of repeated physical and psychological abuse of the defendant perpetrated by an individual who is the victim of a crime for which the defendant has been charged; and (2) expert testimony on the battered spouse syndrome.
The Court of Special Appeals underscored that the statute does not create a new defense to murder but rather it permits a defendant to introduce certain evidence of battered spouse syndrome “in support of the state of mind element of perfect or imperfect self-defense i.e…. to prove the honesty and reasonableness of the defendant’s belief that he or she was in eminent danger at the time of the offense.”
The Court of Special Appeals reviewed phases recognized as being present in those with a history that may support a battered spouse syndrome defense.
First, there is the tension building phase that involves minor incidents of physical, sexual or emotional abuse where the batterer begins to express hostility towards a woman.
The second phase occurs when the batterer unleashes a barrage of verbal and physical aggression that can leave a woman severely shaken and injured. The cycle repeats often becoming more intense, frequent and violent over time.
Where a defendant kills an abusive partner in self-defense, the first phenomenon has been described as learned helplessness or a situation where, after repeated abuse, women come to believe they cannot control the situation and thus become passive and submissive.
The second aspect of the condition is the defendant’s heightened sensitivity to the abusers’ behavior. The repeated abuse by the batterer can cause a defendant to recognize a threat of eminent danger from conduct that would not appear eminently threatening to someone who had not been subject to that repetitive cycle of violence.
Summarizing this issue the Court of Special Appeals noted that “when a defendant claiming self-defense offers foundational evidence which, if believed, would establish the requisite pattern of abuse sufficient to provide a base for an expert opinion as to the battered spouse syndrome it should be admitted so that it can be followed by the expert testimony” stating that such evidence would explain why and how, in light of that pattern of abuse, a defendant could honestly and, perhaps reasonably, perceive an eminent threat of immediate danger.
In the Wallace-Bey opinion, the Court criticized the position taken by the State in its motion in limine noting that it did not come anywhere close to meeting its burden on its motion in limine which was based upon the State’s position that the statements uttered by Whaley were hearsay. The Court of Special Appeals further observed that the trial court’s categorical ruling barring the proffered evidence vastly exceeded the scope of the rule against hearsay and the State’s position should have been summarily denied by the trial court.
Closing the door on the State’s position, the Court of Special Appeals said that the statements at issue were not hearsay and that, in general, orders and commands are not factual assertions. Statements made by Whaley toward Wallace-Bey were not hearsay and were probative to explain how Whaley’s words affected Wallace-Bey. Words spoken by Whaley were important in evaluating Wallace-Bey’s perception that Whaley would continue to assault her when she shot him minutes later.
The Court of Specials, continuing its disagreement with the rulings of the trial court, instructed that testimony about words spoken by a victim to a defendant can be particularly probative in cases where the defendant’s raises the issue of battered spouse syndrome. The Court of Special Appeals recognized that all phases of the cycle of violence at the center of the syndrome may involve words in addition to actions: expressions of hostility during the tension building phase; verbal aggression during acute battering incidents; and apologies, requests for forgiveness and promises to change in the contrition phase. The Court of Special Appeals emphasized that the statute specifically allows the defendant to introduce not only evidence of physical abuse but also evidence of psychological abuse of the defendant by the victim and that the evidence barred by the trial court may be evidence of psychological abuse.
During her testimony, McGraw opined that the abuse suffered by Wallace-Bey may have been psychological during the first period of Wallace-Bey’s relationship with Whaley. When McGraw attempted to describe that abuse the trial court consistently barred her from mentioning Wallace-Bey’s reports to her of any words spoken by Whaley.
Perhaps sensing the weakness of its position, on appeal the State alternatively argued that any error in the granting of the motions in limine was harmless error. The Court of Special Appeals flatly rejected the State’s harmless error position, emphasizing that the record of the trial proceedings established the there was an exclusion of an entire category of evidence which substantially impaired the presentation of Wallace-Bey’s defense. The Court of Special Appeals made clear that “we agree with Wallace-Bey that the excluded evidence would have provided the jury a much fuller picture of the basis for McGraw’s opinion and the trial court’s restrictions made it easier for the State to promote the conclusions of the States expert.”
The trial court also granted the State’s motion to exclude any evidence as to any prior abuse of Wallace-Bey by persons other than Whaley. Specifically the trial court barred any evidence about abuse that Wallace-Bey suffered during her childhood during which her mother was verbally and physically abusive to her and that her mother’s boyfriend was physically verbally and sexually abusive to her. The Court of Special Appeals rejected the State’s interpretation of the statute that such evidence was not admissible. The Court of Specials Appeals made clear that while the battered spouse syndrome statute makes certain evidence admissible it does not bar the introduction of evidence of any kind and that the statute is silent as to whether a trial court may admit evidence of the abuse of a defendant by persons other than the decedent.
In the instant case, Wallace- Bey’s argument focused on the portion of the statute which permits the introduction of “expert testimony on the battered spouse syndrome.” McGraw’s report made it clear that Wallace-Bey’s exposure to traumatic experiences, including childhood sexual abuse, was a cornerstone of McGraw’s conclusion as to how battered spouse syndrome affected Wallace- Bey’s actions during the shooting.
Sufficiently established relevance of that evidence and information about that prior abuse could have assisted the jury in evaluating the validity and probative value of McGraw’s opinion. The Court of Special Appeals noted that the proffer of evidence at trial failed to connect the cause (the history of abuse) with its effect on Wallace-Bey’s mental state at the time of the killing, however, the Court of Special Appeals also suggested that if, on remand, Wallace-Bey offers evidence that she was abused by persons other than Whaley as the foundation of an expert opinion about how that abuse affected her psychological condition and mental state and, if the defense articulates the theory of relevance that was advanced on the appeal (but not advanced before the trial court), then the trial court should admit the evidence for that purpose, over the State’s relevancy objections. Wallace-Bey’s testimony should then be followed by expert testimony which the trial court should also admit over any relevancy objection.
The Court of Special Appeals provided guidance with respect to this issue at the new trial noting that the trial court can consider whether the probative value is substantially outweighed by the danger of unfair prejudice. If, on remand the State objects, the trial court must weigh the probative value of the evidence against the countervailing concerns to decide, in the first instance, how much testimony of prior abuse to admit, further noting that the probative value of the evidence of prior abuse largely depends on how important (or unimportant) those facts were in the expert’s ultimate conclusion. The Court of Special Appeals made clear that, if McGraw’s earlier report is any indication, it would appear that Wallace-Bey’s history of abuse during her childhood heavily informed McGraw’s conclusions.
Wallace-Bey further contended on appeal that the trial court impermissibly limited further testimony from McGraw and from Wallace-Bey based upon a “narrow understanding” of what evidence is relevant in a case involving battered spouse syndrome. While the Court of Special Appeals noted that it would not discuss each of the grounds and objections with respect to this issue it did note that some of the objected to testimony was relevant including testimony regarding a brief account of some of the foundational research and history of the syndrome. The Court of Special Appeals agreed that a properly qualified expert would be permitted to testify about the relationship between battered spouse syndrome and post-traumatic stress disorder where the association (if any) between battered spouse syndrome and depressions is evidence that the defendant experienced depression. The Court of Special Appeals stated that because Wallace-Bey’s depression was a prominent feature in the two expert opinions it agreed with Wallace-Bey that the background testimony about her history of treatment for depression should not have been excluded as irrelevant. More generally, the Court of Special Appeals noted that it was unclear as to whether testimony about “other psychological conditions” could be relevant but further advised that, generally speaking, testimony about other psychological conditions observed in Wallace-Bey would be relevant to the extent that it informed the expert opinions about whether and how the alleged abuse by Whaley affected Wallace-Bey.
Summarizing, the Court of Special Appeals concluded that where a witness has been properly qualified to give expert testimony about battered spouse syndrome, the trial court should generally permit counsel to inquire about the connection (if any) between battered spouse syndrome and any related psychological condition, such as post-traumatic stress disorder and depression. Such testimony may address those connections in general and then in relation to the conditions observed in a specific defendant.
Cross-examination About Credibility of Another Witness
The final topic discussed by the Court of Special Appeals was an argument by Wallace-Bey that the trial court erred by permitting the State to question Wallace-Bey about her opinion regarding the credibility of the lead investigator. After Wallace-Bey denied making certain statements that the investigator said she had made the following occurred:
STATE: Ok, so if Det. Lanier testified as such you say that he is lying?
WALLACE-BEY: That is correct
The Court of Special Appeals has specifically held questions of that type are “overly argumentative” and held that he trial court should have sustained the defense objection on that ground.
The Court of Special Appeals rejected the State’s position that any error in the trial court’s ruling was harmless noting that the sequence of events immediately before the shooting was critical to evaluating whether the killing was justified or mitigated. In its closing the State emphasized the inconsistencies between Wallace-Bey’s trial testimony and the investigator’s account of her statement and encouraged the jury to reject all of Wallace-Bey’s testimony about abuse. The Court of Special Appeals did not reach the issue of whether the error was harmless because of its decision to reverse the conviction on other grounds. The Court of Special Appeals did caution that during the re-trial that prosecutors should not ask Wallace-Bey or any other witness whether they believe that the investigator or any other witness was lying.
The Wallace-Bey Conclusions
Wallace-Bey is entitled to a new trial at which she may present evidence in accordance with the reasoning of the Court of Special Appeal’s opinion.
The trial court committed reversible error through its rulings that required Wallace-Bey to present her entire defense case, including evidence of abuse by Whaley, without mentioning anything that he allegedly said to her. On remand, Wallace-Bey may testify about the actual words spoken to her by Whaley to show how those words affected her. Moreover, a properly qualified expert on battered spouse syndrome may disclose Wallace-Bey’s reports of words that Whaley said to her if those reports formed the basis for the expert’s opinion.
Evidence that Wallace-Bey suffered abuse by persons other than Whaley is not barred by CJP§10-916, nor is that evidence irrelevant. Evidence about abuse that Wallace-Bey suffered by persons other than Whaley is admissible to the extent that it forms the basis of an expert opinion about how that abuse affected her physiological condition during her relationship with Whaley and how that abuse affected her mental state at the time of the killing.
Testimony about how battered spouse syndrome relates to other psychological conditions, including post-traumatic stress disorder and depression, and about whether and how Wallace-Bey experienced those related conditions, should not be excluded as irrelevant.
Finally, upon timely objection, the trial court should not permit any witness to be questioned about the credibility of any other witness.