Ibn-Tamas v. United States

NEBEKER, Associate Judge,

dissenting:

The judgment of the trial court should be affirmed. First, the trial judge acted in accordance with the law in rejecting the testimony. Second, regardless of the trial judge’s ruling or the basis of his ruling, the proffered expert testimony was inadmissible because as a matter of law, (1) it was irrelevant to any material issue in the case and (2) it did not meet two of the three Dyas tests for the admissibility of expert testimony. Therefore, assuming, arguendo, that the trial judge failed to rule in accord- *647 anee with the law, the harmless error doctrine bars any remand. See D.C.Code 1973, § 11-721(e); S.E.C. v. Chenery Corp., 318 U.S. 80, 88 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943).

I BACKGROUND

An understanding of the substance of the expert’s testimony, the law, and the theories of the parties, provides the foundation for understanding my position. Therefore, I will review them briefly. A clinical psychologist, testifying out of the presence of the jury, rendered four opinions: (1) some husbands pass through a three-phase cycle in the manner they act towards their wives; (2) where husbands pass through this cycle, their wives “tend to” exhibit certain personality and character traits; (3) the appellant exhibited some of these character traits specifying particular characteristics; 1 and (4) therefore the appellant’s husband had passed through the cycle. As a matter of law, the testimony must be relevant to a material fact 2 and must meet the three tests for expert testimony. 3 In addition, the probative value of the testimony must outweigh its prejudicial impact. 4 The theories presented were quite simple. The govemment contended that the abuse by appellant’s husband caused emotional pressures to build within her. This emotional crescendo climaxed when he ordered her out of the house. Rather than leave and as a means of revenge, the government contended, she severely wounded him and then, despite his pleas for mercy, shot him between the eyes at close range, and killed him. The appellant claims that her husband lunged at her so she shot him in the stomach; and shortly thereafter, thinking her husband had a gun, she shot the wounded man, killing him. Expert testimony established that the fatal bullet was fired from a distance of twelve to eighteen inches and entered directly between the eyes. With this background, I turn to the propriety of the judge’s ruling and the impropriety of the majority’s decision to remand.

II

The trial judge’s decision not to admit the expert testimony is supported by the record and, therefore, the decision should be affirmed. Preliminarily, the majority misper-ceives the gist of the trial court’s ruling and understates his awareness of the proffered *648 testimony and the law governing its admission in order to reach the desired result. More importantly, however, the majority misstates the issue regarding Chenery 5 and by misapplying the command of the Chen-ery doctrine erroneously decides to remand rather than to affirm. Thus, even assuming that the majority correctly ruled on the Dyas tests, we must nevertheless affirm.

A. The Trial Court’s Rulings

Contrary to the representations in the majority opinion, the record illustrates that the trial court demonstrated an understanding of the principles of law involved and ruled in accordance with them. I regret the use of this long quotation, but I feel compelled to put the real facts before the reader since the majority has taken liberties with the characterization of the record to reach the desired result. Following the direct examination of the expert, the court inquired of the witness:

THE COURT: When you concluded that Mrs. Ibn-Tamas falls into this category, is this a medical diagnosis on your part of Mrs. Ibn-Tamas? [6]

A. No, it is not an acceptable medical diagnosis. It is a diagnosis, though, that is now beginning to be used in some of the mental health centers. It is also being used by — by the National Institute of Mental Health, and they really have not decided what category they are going to place it in.

It is much like rape. It is now — there is now funding being available. There are now — Congress has a bill before it to appropriate money for it, so it is considered a classification, if you will.

THE COURT: How were the 110 women located and interviewed in connection with this research? What source was there for that? [7]

THE WITNESS: I began the research when I was still on the medical school faculty, so many of my medical school faculty referred women to me when I was there. It also came from community people who knew I was doing the research. When I travel aground the country people who I have made contact with those who are doing work in their field will recruit volunteers for the research.

When I got to Denver, the women came from college referrals, from other local psychologists and medical professionalists, and I often visit women in hospitals if they be hospitalized.

They came from newspaper articles; I have been on television; done some radio shows, so there has been a number of self-referrals, as well. Police have referred, different agencies have referred, so it is a varied source.

THE COURT: Well, then those referred by either physicians or psychologists or persons familiar with the fact that you are engaged in this type of research have been given information by the person, the battered woman, as to her plight?

THE WITNESS: I would imagine that most of those would be in the 60 percent we have talked to.

THE COURT: That sort of disproves the — one of your statements that this is not usually disclosed by a person fitting in this category; doesn’t it?

THE WITNESS: No, for many of these women who came through as self-referrals, there were — the statistics that I have, 40 percent have not, in our data, which means that they either saw some information or heard some information someplace else.

For example, one woman came when I gave a workshop at a mental health center. *649 Nobody at the center knew she was being battered. She was on the staff, and so that is how she came through.

Some read it in the newspaper. Every-time I go on TV or make radio calls, radio program, I get numerous calls coming through for some of the research.

So, in some cases, yes, they certainly did. But in others they did not.

THE COURT:' Well, in concluding as you do, based on your studies, Mrs. Ibn-Tamas falls into this category of battered women, you are of necessity concluding, are you not, that Dr. Tamas was a batterer; isn’t that so? [8]

THE WITNESS: Based on her testimony, and in the same way that I would do it with other battered women; yes.

THE COURT: [Defense Counsel] do you want to tell me why this testimony would not invade the province of the jury? [9]

[DEFENSE COUNSEL]: Yes, Your Hon- or. It would not invade the province of the jury, Your Honor, because, first of all, the doctor would not be issuing an opinion on the ultimate question here, which is the end of this, February 28, 1976.

What she would be doing is offering testimony in an area not necessarily known to the average person, if you will, of modus operandi, and the type of situation that exists, the syndrome that exists which has a number of facets about it which may be of question to the jury.

And in evaluating the reasonableness of the situation in which Mrs. Ibn-Tamas found herself, I think a jury would be instructed to learn that this is a phenomena that exists elsewhere, that others reactions to it can be the same in very many respects, and so for that purpose, falls into the category of modus operandi type of information supplied with an expert who has the source and wherewithal to provide the information, and giving the jury the basis to make the ultimate conclusion on the question before the trial.

THE COURT: Does the Government wish to be heard?

[PROSECUTION]: Your Honor, number one, I am sitting here and I am still a little puzzled as to exactly what the relevance of this testimony is. It seems to me that what [Defense Counsel] wants to do is to, in this witness, assuming you believe everything that Mrs. Ibn-Tamas has testified to about her relationship with her husband, was she a battered wife. The answer is yes.

I suppose that is — I am not sure that that is not an obvious thing, but the trouble, what strikes me is it seems to me the issue of the exact relationship between Dr. Ibn-Tamas and his wife, which is a credibility determination, which the jury is to make, and that it lends — I don’t want to say a false error [air?] because I don’t mean to impugn the witness, but it lends a misleading error [air?] to have a witness come up and testify under the assumption that everything she said is true, and give the opinion, I suppose — and I am groping here because I am really not quite sure what the relevancy of this testimony is — would give the opinion that yes, she is a battered wife; yes, she has a battering husband.

*650 Furthermore, if I understand what she said in answer to Your Honor’s question, this is not a generally accepted — I don’t know whether you call it medical field, or medical specialty, or what, and so if it is not generally accepted, of course, it is generally inadmissible. [10]

And I think it is totally inadmissible.

[DEFENSE COUNSEL]: If I may be heard just briefly.

THE COURT: Yes.

[DEFENSE COUNSEL]: I don’t see Dr. Walker as making a medical diagnosis in the situation. I see no more than providing background data that the trier of fact can use in making the ultimate determination.

[The prosecutor] certainly can argue that the validity of her background data rests on information contained in statements by Mrs. Ibn-Tamas. I am not sure how what he said varies from what he said earlier today as to what part of Mrs. Ibn-Tamas’ testimony he accepted or didn’t. I am not sure he is accepting what happened between the marriage.

But I am not sure she is giving a medical diagnosis, as such. It is important in the nature of background material and identifying attributes for the situation.

THE COURT: Well, in this case, as in any case involving a felony charge and a crime of violence, where self-defense is raised, the law permits evidence of prior violent acts. But this goes beyond those acts which a jury is entitled to hear about, sift, and try to understand the circumstances under which they arose, and draw conclusions therefrom. [11]

With all due respect to the doctor, and undoubtedly, the need for the work which she is engaged in, so that all of us will have a better understanding of the subject, I do not believe the doctor’s testimony is admissible. I feel it invades the province of the jury, [12] who are the sole judges of the facts and triers of the credibility of the witnesses, including the defendant, and as I understand it, as an additional reason, the doctor, of necessity, concludes that the decedent was a batterer. And that is not being tried in this case. It is the defendant who is on trial. [13]

I will not permit the witness to testify.

The trial judge thus demonstrated an understanding of the law and of its application. To require him again to go through this exercise and use words more to the liking of the majority does violence to the rule of law.

The majority errs in characterizing the trial court’s phrase “invades the province of the jury” as relating only to the first Dyas test. Ante at 632. Especially in view of the questions that the trial judge posed, it is inescapable that the phrase embraced a summary conclusion regarding all three of the Dyas tests. 14 Compare Lewis v. Firestone, D.C.Mun.App., 130 A.2d 317, 319 (1957) (expert testimony would “invade the province of the trier of the facts” because it was “wholly conjectural and uncertain”) with Dyas v. United States, supra at 832 (second test is that expert’s “opinion or inference will probably aid the trier” of fact (emphasis in original). On the premise that the court’s ruling was directed at more than the first Dyas test, the trial court’s decision must be upheld, even assuming ar-guendo that the majority’s holding on the first test is correct.

B. The Majority’s Misinterpretation of Chenery

The majority properly acknowledges that S.E.C. v. Chenery Corp., supra, bears upon *651 the issue of whether to affirm or remand. 15 The Supreme Court there recognized

the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct “although the lower court relied upon a wrong ground or gave a wrong reason.” Helvering v. Gowran, 302 U.S. 238 , 58 S.Ct. 154 , 82 L.Ed. 224 [(1937)]. The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate. But it is also familiar appellate procedure that where the correctness of the lower court’s decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury. [Id 318 U.S. at 88 , 63 S.Ct. at 459 .]

The District of Columbia expressly adopted this rule shortly after Chenery was decided, see Simpkins v. Brooks, D.C.Mun.App., 49 A.2d 549 (1946), and has reaffirmed its dedication to the doctrine in the recent past. See, e. g., Capitol Hill Restoration Society v. Zoning Commission, D.C.App., 380 A.2d 174, 185 (1977); Silverstone v. District of Columbia Board of Zoning Adjustment, D.C.App., 372 A.2d 1286, 1287-88 (1977) (quoting much of the above excerpt); Morris v. Capitol Furniture & Appliance Co., D.C.App., 280 A.2d 775 (1971) (trial court’s holding that interest was not usurious upheld although trial court’s reason for so holding was erroneous). In other cases we have also adopted the essence of the Chenery rule, although not citing Chenery. See, e. g., Duddles v. United States, D.C.App., 399 A.2d 59, 64-65 (1979); Randall v. United States, D.C.App., 353 A.2d 12, 13 (1976) (“court can, of course, affirm the denial of a motion to suppress if, for any reason, the ruling is correct”). Thus, the Chenery doctrine is well entrenched in the law of the District.

The Chenery rules is fairly simple and straightforward, but has nevertheless been misapplied by the majority. The rule relates to the issue of whether to remand or to affirm in a given situation, depending upon whether the decision-maker is a judge or is a jury. If the decision-maker is a judge, then regardless of the reasoning employed or the law applied to reach the decision, it will be affirmed so long as a plausible ground for affirmance exists. However, where the decision-maker is a jury, then the appellate court must remand for the jury to make the decision, even if a conceivably correct ground for the decision exists. Acting contrary to the simple “well settled” rule of appellate procedure, the majority chooses to proceed as if the decision-maker below were a jury rather than the trial judge.

To the majority, Chenery stands for the proposition that it cannot affirm the trial court’s decision unless it must affirm the decision as a matter of law. If this interpretation were correct, then it would have been a meaningless exercise for the Supreme Court to outline a different procedure for a court than for a jury because if any decision is required as a matter of law, then it will be made by the appellate court regardless of who the decision-maker would otherwise be.

The clear error of the majority’s interpretation may also be seen in its departure from our past decisions. For example, in Karath v. Generalis, D.C.App., 277 A.2d 650 (1971), we considered the effect of the trial judge’s possibly having improperly failed to consider a union rule in holding for the plaintiff-appellee. In that case we held:

Under the doctrine of Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943), it is not necessary for a trial court to make findings, and if the record discloses some valid ground for supporting its judgment, it should not be disturbed on appeal. Our review of the record impels the conclusion that the trial judge on the evidence before him could *652 have determined that, assuming the rule was proper, proof of appellee’s violation of the rule was lacking.

******

Accordingly, although it might have been within the province of the trial judge to have found otherwise, we cannot say that on this evidence, the trial judge erred . . [Id. at 653 (emphasis added).]

Thus, by employing the correct rule of law, we held that the trial court “could” have reached the decision that it did. We also held that the decision reached was not required as a matter of law. Nevertheless, because a plausible reason existed to sustain the trial court’s decision to hold for the appellee, his decision must be affirmed. Under the rule now advanced by the majority, of course, we would remand in such a situation.

Whereas in Karath the decision of the trial court was to hold for the plaintiff, the decision of the trial court in Harper v. Wyatt, D.C.App., 281 A.2d 442 (1971), was to allow certain counterclaims. Citing Chenery, we held that “if the record discloses some valid ground for supporting [the trial judge’s] conclusion, an appellate court should allow it to stand.” Id. at 444 n. 2. Applying Chenery, we found that there was testimony on the record to “[support] the action of the court in granting the counterclaim . . . .” Id. at 444 . It is important to note that we did not hold that the testimony compelled granting the counterclaim as a matter of law, but only that it “[supported]” the counterclaim. 16

The correct interpretation of Chenery applied to this case compels affirmance rather than remand. The majority concedes that the trial court’s decision to exclude the testimony could be sustained under either the second or third of the Dyas tests. By its decision to remand, the majority is holding that the decision to exclude the testimony is “within the province of the trial judge.” Karath v. Generalis, supra at 653 . Therefore, because the decision was for the trial court, rather than for the jury, and because all agree that either of the last two Dyas tests would provide a basis to support the decision to exclude the expert testimony, the decision of the trial court should be affirmed under Chenery and its progeny, especially Karath and Harper. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971).

Specifically applied to the law of evidence, the Chenery rule has been advocated by the leading authorities in the field. Professor Wigmore states:

[ W]hen a general objection is sustained [emphasis in original] by the trial court, it may be presumed that some valid ground was apparent to the judge without express statement; and as the exception is here to be taken by the proponent of the evidence, it is fair to insist that he should have asked for the specific ground of objection, if he did not perceive it; or should have made an offer to obviate it, if he did perceive it; or should have stated clearly the precise basis of his claim for admissibility, if he had rested on any specific ground. Hence, the general objection will suffice, on appeal by the proponent of the evidence, if on the face of the evidence and the rest of the case there appears to be any ground of objection which might have been valid (or, otherwise stated, if there is any purpose for which the evidence would conceivably be inadmissible) . . . . [Emphasis added.]

******

So, too, a specific objection sustained [emphasis in original] (like a general objection) is sufficient, though naming an untenable ground, if. some other tenable one existed. [Emphasis added.] [1 J. Wigmore, Evidence 338, 342 (3rd ed. 1940) (footnotes omitted).] 17

*653 Particularly the emphasized portions of the quotation illustrate the fault of the majority’s ruling. By remanding for the trial court to rule again on the proffer, the majority concedes that both the second or third Dyas tests are “[grounds] of objection which might have been valid.” Id. The evidence might “conceivably be inadmissible” under either ground and either test is a “tenable one” for excluding the testimony. Id. Moreover, casting a distinction on “discretionary judgment” grounds as the majority does, ante at 636 n. 17, is bootless since the proffered testimony was otherwise correctly excluded as irrelevant to any material issue in the case. See Part III, infra. Accordingly, we are bound to affirm the decision to exclude the evidence.

Ill

Contrary to the majority’s holding, the proffered testimony is inadmissible as a matter of law. The evidence was irrelevant and failed to meet two of the tests for expert testimony.

The majority concludes that the testimony was relevant as a matter of law because it rebutted the government’s argument that “a woman who was truly frightened by her husband . . . would have call[ed] the police ... or [left] him.” Ante at 633-634. The meager support of two questions from the record quoted by the majority belies the majority’s conclusion that the government made this argument. Id. n. 14. I will assume for the moment that the “argument” was made, if the majority contends (and it is not at all clear) that the expert should have been allowed for credibility purposes to bolster the appellant’s impeached testimony, then it errs because rehabilitation on such an obscure point should not be allowed by extrinsic evidence. See, e. g, McCormick, Law of Evidence 97-100 (2d ed. 1972, E. Cleary). On the other hand, if the majority asserts that this testimony should have been allowed as substantive proof, on the issue of whether a woman “truly frightened” of her husband would call the police or leave him, then it is mistaken because that issue is immaterial. Indeed, in examining the entire proffer, no portion of the testimony tends to make the existence of any material fact more or less likely; none is probative of whether the appellant reasonably believed herself in danger of imminent serious bodily injury at the time she shot her husband. 18 For example, the expert’s opinion — that the appellant had “a lower self esteem . . . and a lack of confidence,” felt “maybe he would stop,” “did not go out much alone,” “was passive and compliant,” “did what he told her” and “let him be the boss” 19 — had no bearing on whether the appellant perceived herself in imminent danger when she shot her wounded husband. The testimony which comes the closest to being relevant was that “she felt she was powerless . . . . She felt he could do anything.” This could arguably *654 have been interpreted to mean: “She always felt that he was capable of killing her.” While arguably relevant, however, this is an improper subject for expert testimony, given the facts and the theories of this case.

To be proper for expert testimony, the subject must be “beyond the ken of the average layman.” Ante at 633. The only arguably relevant portion of the testimony fails the test. One need not be an expert to conclude that if all the appellant’s recited events actually occurred, she would believe that her husband was capable of causing her further serious bodily injury or death. In addition to the appellant’s testimony regarding her husband’s physical abuse, she testified that her husband had actually threatened to kill her on at least two occasions. Consequently, the only arguably relevant portion of the testimony should be excluded as not being beyond lay understanding.

The majority relies solely on Hearst I for the proposition that the “beyond the ken” test is met as a matter of law. Hearst I, a trial court decision, does not stand for this proposition. In Hearst I, the trial court expressly relied upon its discretion to exclude or allow the testimony: “While the [trial] Court is mindful that the Ninth Circuit has generally upheld trial court decisions rejecting psychiatric testimony [in cases such as the present], see e. g., United States v. Haseltine, 419 F.2d 579, 581 (9th Cir. 1969), it is equally aware of its discretionary authority to allow such testimony . . . .” 412 F.Supp. at 891. Haseltine , which was cited in Hearst I, is more closely aligned with this case than is Hearst I. 20 Charged with willfully failing to file federal income tax returns, Haseltine contended “that his failure to file was the product of psychological and emotional pressures rather than of a purpose to avoid payment of the tax.” 419 F.2d at 580 . His proffer of expert testimony was very similar to that of appellant’s. 21 Although the appellant’s expert was a psychologist who therefore did not offer a medical diagnosis, and Hasel-tine’s witness was a psychiatrist, numerous factors square the testimony proffered by Mr. Haseltine and the appellant. Each expert had a “buzz word” for the accused person: Haseltine was termed a “compulsive neurotic;” the appellant was described as a “battered wife.” Each expert was to testify concerning the state of mind of the defendant. Both experts would state that the state of mind was caused, at least in part, by serious marital discord. In each *655 case the trial court, exercising its discretion, rejected the testimony. In Haseltine , the circuit court affirmed, as we should here, notwithstanding the trial court’s exercise of discretion in permitting testimony in Hearst I.

The appellant, as the proponent of the testimony, also failed as a matter of law to establish the acceptance required by Frye v. United States, 54 App.D.C. 46 , 293 F. 1013 (1923). Employing the government’s contention regarding Frye as a smokescreen, the majority concludes that the appellant must show that there is “general acceptance of [the expert’s] particular methodology,” ante at 638, yet curiously fails to indicate that there is any evidence in the record concerning the “general acceptance” of the expert’s “methodology for identifying and studying battered women.” Ante at 638. As the record is utterly devoid of evidence concerning the “general acceptance” of the “methodology” Dyas’ third test was not met and the testimony was inadmissible as a matter of law.

As to her method for examining or interviewing Mrs. Ibn-Tamas and analyzing her situation, the record reveals only that the expert “had contact” with her. No other indication is made. We learned from the witness that her opinion was going to be based upon a paltry universe of 110 other women who were “researched” by her. We know nothing of these few women other than their apparent claim of being abused. Nothing was said of the techniques for “interviewing,” the duration of the interview, the number of times each woman was interviewed or any follow-up. The expert interviewed only the abused women and not their husbands, physicians or family. She even testified that “we have talked to” some 60 percent of the abused women referred by others (emphasis added). When questioned by the court, the witness candidly acknowledged that 40 percent of the women apparently were prompted to seek an interview by newspapers, television or radio. No estimated potential margin for error was expressed. The foundation for the testimony is patently inadequate, as there was no indication in the record of what method the expert employed or that the expert’s method was generally accepted in the field. See Brown v. United States, D.C.App., 384 A.2d 647, 649-50 (1978).

I would affirm the conviction and leave to another day and an appropriate case the decision whether a clinical psychologist can reliably aid the average layman in understanding specific behavior by categorizing the person as abused, whether physically, economically or culturally. 22

. Prompted by the defense attorney, the expert addressed those characteristics of a “battered woman” that the defendant exhibited. She said that the defendant saw her husband “as having two different personalities [and believed] that his nice side [was] going to win out.” Further, the expert explained that the defendant had “a lower self-esteem and a lack of confidence,” felt that “maybe he would stop,” “if she could be a little bit better” in her work for him, “was isolated from friends after her marriage,” “did not go out much alone,” “was passive and compliant” “did what he told her,” “let him be the boss” “was not overtly angry,” “felt that she was powerless,” and “felt he could do anything.” The defense counsel interrupted the expert and asked what effect the defendant’s pregnancy had upon her. The expert replied that “for any pregnant woman, that is a particularly crucial time.” (Emphasis added.) From this point, the expert did not testify concerning the defendant specifically, but only as to abused women in general.

. E. g., Reavis v. United States, D.C.App., 395 A.2d 75, 78 (1978).

. The tests are listed at page 632 of the majority opinion. See Dyas v. United States, D.C.App., 376 A.2d 827, 832 (1977), quoting McCormick, Law of Evidence 29-31 (2d ed. 1972, E. Cleary). McCormick explains that unlike other witnesses, experts have no “firsthand knowledge of the situation or transaction at issue.” McCormick, supra at 29. Only the jury may normally draw inferences from the facts presented at trial. This is the jury’s province. An expert, however, may “draw inferences from the facts which a jury would not be competent to draw.” Id. The three tests demarcate the province of the jury and that of the expert.

. E. g., United States v. Green, 548 F.2d 1261, 1268 (6th Cir. 1977) (“delicate balance between the probative value of [expert] testimony and its capacity to engender vindicative passions within the jury or to confuse the issues”); Alcorn v. Erasmus, 484 P.2d 813, 819 (Colo.App.1971) (error to admit photograph which was probative of material issue because it depicted a disfigured body, which depiction “could have aroused the passions and prejudice of the jury and caused [it] to be distracted from the true issues” of the case). See notes 8 and 13 infra, for instances in which the trial judge treated undue prejudicial impact.

. S.E.C. v. Chenery Corp., supra. See ante at 634-635.

6. The trial judge appears to have been addressing the first test of Dyas , by inquiring as to what profession the subject matter is related. It also might have been a step towards the second test, regarding the witness’ “skill, knowledge or experience,” because the expert was not a physician.

7.By this question and the next two questions, the judge addressed the third test: “the state of the art” or, as the majority phrases it, “[the expert’s] methodology for identifying and studying battered women.” Ante at 638.

8. As a final inquiry of the witness, the judge inquired concerning a highly inflammatory conclusion and thereby expressed concern over whether the probative value of the proffered evidence would outweigh the prejudicial impact it would have upon the jury. See note 4, supra and accompanying text. Called as the last defense witness, the expert would rehash the husband’s actions and brand them with a professional label. This could not help but rankle the jury and incline its sympathy towards the wife. The jury’s natural inclination would be to shift its inquiry from the proper issue, of whether the wife reasonably perceived herself in danger of imminent serious bodily harm, to the irrelevant issue of whether the wife should be faulted for killing such an overbearing, cruel and physically abusive husband. The judge must strike a “delicate balance between the probative value of this testimony and its capacity to engender vindictive passions within the jury or to confuse the issues.” United States v. Green, supra. See note 4, supra.

9. By inquiring as to this invasion, the court employed a shorthand term to ask counsel to explain why the testimony passed the three Dyas test. See note 3, supra.

10. Compare the government’s comments with Frye v. United States, 54 App.D.C. 46 , 293 F. 1013 (1923).

11. The court here ruled that the evidence was irrelevant.

12.See notes 3 and 9, supra.

13. The third ground for the court’s ruling was that the prejudicial impact of the testimony would outweigh its probative value. See notes 4 and 8, supra.

. See notes 3 and 9, supra.

. All agree that there is no basis in the record to reverse.

. By contrast, we held with regard to another issue in the same case that the court’s decision would be reversed because “[t]here [was] no testimony ... to support” it. Harper v. Wyatt, supra at 444 .

. This rudimentary principle has also been stated thus:

And if the trial judge sustains a general objection, the upper court is charita *653 ble toward his ruling. “When evidence is excluded upon a mere general objection, the ruling will be upheld, if any ground in fact existed for the exclusion. It will be assumed, in the absence of any request by the opposing party or the court to make the objection definite, that it was understood, and that the ruling was placed upon the right ground.

* * * * * *

However, if a specific objection is made on an untenable ground and sustained, it seems that if there were another valid ground for exclusion, the ruling should be upheld . . . [McCormick, Law of Evidence 116 & n. 61, supra, (emphasis in original).]

. See generally note 1, supra. The portion of the transcript quoted by the majority, related to events in Miami two to four years before the shooting. Further, the majority states that relevant portions of the expert’s testimony include opinions that women in the appellant’s situation “typically are low in self esteem, feel powerless, and have few close friends.” Ante at 634. I fail to understand how these opinions make it more or less likely that the appellant reasonably perceived herself in danger of imminent serious bodily injury. By comparing the expert’s opinions, see note 1, supra, with the facts and the defense the appellant sought to establish, it is readily seen that expert testimony is not probative. The trial court should use extreme care “to screen ‘background’ evidence which may be capable of subliminally inciting or confusing the jury.” United States v. Green, supra at 1270 n. 4.

. See notes 1 and 15, supra.

. Contrary to the majority’s claim, the appellant’s proffered expert testimony is not analogous to the testimony in United States v. Hearst, 412 F.Supp. 889, 890 (N.D.Cal.1976) (Hearst I). The issue in Hearst I was whether “the effects of kidnapping, prolonged incarceration, and psychological and physical abuse” deprived the defendant of a general intent to commit the alleged crimes, i. e., whether the defendant was coerced. 412 F.Supp. at 890 . Two aspects distinguish this issue from that of the present case. The average layman is far better positioned to determine whether a defendant did or did not fear for her safety than whether a defendant did or did not act of her own free will. Furthermore, whereas laymen are generally . acquainted with inter-spousal conflicts and the effect of these conflicts upon the persons involved, they are not generally acquainted with kidnapping followed by prolonged incarceration coupled with psychological and physical abuse and their resultant effect on the victim.

. The proffer was:

He [the psychiatrist] is personally aware of the tempestuous divorce and he is personally aware of Mr. Haseltine’s business failure. He is able, on the basis of his professional observation, to form an opinion. That opinion is that Mr. Haseltine is a compulsive neurotic. His own observations — which were not disclosed to him by Mr. Haseltine— are that Mr. Haseltine is punctilious and meticulous to an excessive degree in any of his behavior patterns, and that as a consequence it was extremely difficult for this man to surmount the psychological obstacle of not having all of his records, and that this coupled with the state of total distraction occasioned by the divorce and the state of depression caused by the loss of his formerly flourishing business provided a stumbling block which this man was unable to overcome until certain problems had been resolved, such as the reavailability to him of records, the cessation of the divorce.” . . . The doctor would further testify that it was not “mentally possible for Mr. Haseltine to complete and file tax returns for the years [in question].” [ 419 F.2d at 580 -81 n. 2.]

. In my view, the impeachment issue does not rise to the level of reversible error.