State v. Townsend

JUSTICE RIVERA-SOTO,

concurring in part and dissenting in part.

I concur with the majority’s holding that “the twenty-year delay between the date of the crime and the date defendant was indicted did not violate defendant’s due process rights.” Ante, 186 N.J. at 480, 897 A.2d at 320 (2006). However, because the majority holds that “the trial court properly admitted expert testimony concerning the common characteristics of battered women and battered woman’s syndrome, and that the failure of the trial court to give a limiting instruction on the use of the expert’s testimony was harmless error[,]” ibid., a conclusion with which I strongly disagree, I respectfully dissent.

*501 I.

At defendant’s trial for the murder of his girlfriend, Norma Williams, the prosecution elicited Williams’s dying declarations. 1 Those dying declarations exculpated defendant; as the majority notes:

At some point, Detective Pogorzelski was informed that he could try to speak to Williams. He told Williams the reason he was there and that her prognosis did not look good. Williams’s only response was to moan. When the detective asked if defendant had hit her, Williams shook her head from side-to-side indicating “no.” Then he asked her if a truck had hit her, and she replied by shaking her head “no.” When the detective asked if a ear struck her, she moved her head up and down indicating “yes.” Williams did not respond when asked the color of the ear. She died at 12:10 a.m., shortly after the questioning.

[Id. at 481, 897 A.2d at 321]

The prosecution sought to blunt the exculpatory effect of these dying declarations. Instead of collaterally impeaching its own witness, 2 the State sought to mutate Williams’s denials into affirmative responses by applying interpretive principles recognized as valid when dealing with battered woman’s syndrome testimony. That mutation, which the majority condones both in its application as well as in the trial court’s failure to provide a limiting instruction as to its use, is a gross misapplication of the battered woman’s syndrome. Those considerations—the admissibility of battered *502 woman’s syndrome testimony in the first instance and, assuming its admissibility, the trial court’s failure to issue a limiting jury instruction—are addressed separately.

II.

A.

The majority rightly explains that the genesis of the battered woman’s syndrome in our jurisprudence lies in State v. Kelly, 97 N.J. 178 , 478 A.2d 364 (1984). More recently, in State v. B.H., 183 N.J. 171 , 870 A.2d 273 (2005), we explained that, consistent with Kelly’s limitations, battered woman’s syndrome expert testimony is circumscribed to those instances that support a claim of self-defense. Id. at 184-85 . B.H. places the utility of battered woman’s syndrome expert testimony in its proper context: “the testimony would clarify and refute myths associated with battered women, and, in the context of that case, would assist the jury in its determination of the honesty of a defendant’s belief that deadly force was necessary to protect herself against her abuser.” Id. at 185 , 870 A.2d 273 (citations omitted). We recognized that, “[i]n the wake of Kelly , battered woman syndrome evidence has been admitted to support a claim of self-defense and to assist juries in related credibility determinations by explaining why an abused woman would continue to live with an abuser.” Ibid. (citations omitted).

What the majority ignores is the import of what B.H. and its companion case, State v. Brennan, 183 N.J. 202 , 870 A.2d 292 (2005), clearly hold: battered woman’s syndrome testimony has no application other than to assist the jury in understanding mental state. For that reason, in B.H., we “discern[ed] no place for battered woman syndrome evidence in [the] assessment” of whether a defendant claiming battered woman status can interpose the affirmative defense of duress available under N.J.S.A. 2C:2-9(a). State v. B.H., supra, 183 N.J. at 199, 870 A.2d 273 .

*503 Here, Williams’s mental state was relevant for one purpose and only one purpose: to determine whether she was under the belief of the imminence of her death when she made her dying declarations. See N.J.R.E. 804(b)(2). Those proofs were provided without contradiction by the prosecution’s own witness, Detective Pogorzelski. Once the predicate for the admissibility of Williams’s dying declarations was established, her statements exculpating defendant were admissible.

The vice here lies in what followed. Recognizing the exculpatory nature of Williams’s dying declarations, the State sought to interpret Williams’s dying declarations as those of a battered woman’s who, for the reasons explained in Kelly and its progeny, would lie to protect her abuser. Regrettably, as the majority is forced to acknowledge, there was no proof presented to the jury upon which to predicate any expert proofs concerning battered woman syndrome, a point underscored by the refusal of both the State’s and defendant’s expert to “opine[ ] that the victim suffered from battered woman’s syndrome or that she was a battered woman.” Ante, 186 N.J. at 499, 897 A.2d at 332 (2006). Given the glaring absence of any proof that Williams’s dying declarations were even eligible for consideration as testimony provided as a result of battered woman’s syndrome or that Williams herself was a battered woman, the admission of any expert testimony that sought to interpret Williams’s dying declarations was error clearly capable of producing an unjust result.

We are not confronted with a circumstance where Williams’s dying declarations required expert testimony to interpret them: Williams did not speak in a language foreign to the jurors and her clear exculpations of defendant did not trigger a need to “assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. To be sure, the State needed to defuse Williams’s exculpations of defendant’s liability for her death. The State’s needs, however, are not the jury’s needs. The issue here is whether the jury—and not the State—needed expert testimony concerning battered woman’s syndrome in order to understand *504 Williams’s unequivocal dying declaration. Based on this record, with its stark absence of any conclusive proof that Williams was a battered woman or that she suffered from battered woman’s syndrome, the jury did not need expert testimony to understand what we expect of toddlers: that “ ‘no’ means ‘no’.”

Nor are we confronted with the use of battered woman’s syndrome evidence as an explanation for a later inconsistency arising from a prior statement, a recantation, or the minimization of harm inflicted. In that respect, the consistency asserted by the majority in “the decisions of other jurisdictions that have examined this issue[,]” ante, 186 N.J. at 495, 897 A.2d at 329 (2006), does not withstand close scrutiny. All but one of those decisions address the now almost generally permitted but limited use of battered woman’s syndrome evidence in the context of assorted assault claims: to explain why battered women either recant or minimize their description of the violence done to them, or why they remain in a relationship with their batterer. Ante, 186 N.J. at 495-98, 897 A.2d at 329-31 (2006). Indeed, the better, and more relevant, view lies in the only ease cited by the majority where the victim died and hence was unavailable to testify at trial. Isaacs v. State, 659 N.E.2d 1036 (Ind.), cert. denied, 519 U.S. 879 , 117 S.Ct. 205 , 136 L.Ed.2d 140 (1996). In Isaacs , the defendant was charged with murder and alleged self-defense during a fight with the victim. Id. at 1037-38 . The defendant sought to offer the statements he claimed his victim made to him during the course of the altercation that resulted in the victim’s death. Id. at 1038 . The trial court refused to allow the defendant to testify as to those statements, agreeing with the prosecution that they were “inherently unreliable, self-serving hearsay[,]” ibid., a conclusion sustained by the Supreme Court of Indiana as harmless error. Id. at 1039 . 3 However, once the defendant testified and laid out his self-defense claim, the prosecution in rebuttal was permitted to *505 offer expert proofs concerning battered woman’s syndrome for the following reasons:

During his direct examination, [the defendant] characterized his relationship with [the victim] as “daytime friends and nighttime lovers.” R. at 2071. The State’s purpose for introducing [the battered woman’s syndrome expert] testimony was to refute the notion that [the defendant] and [the victim] had a friendly relationship prior to her death. This testimony could have reasonably discredited [the defendant’s] attempt to bolster his aecident/self-defense theory by allowing the jury to conclude that their relationship was not rosy, thereby casting doubt on [the defendant’s] assertion that he would not have intended to kill [the victim].

We therefore conclude that the trial court was within the range of its discretion to decide that this testimony was relevant and that its prejudicial effect did not outweigh its probative value.

[Id. at 1041.]

The overarching lesson of the cases tendered by the majority is thus different from the support the majority seeks from them. That lesson is that battered woman’s syndrome expert testimony is permitted to explain those behaviors that are unique to that syndrome: outright recantations or any lesser inconsistencies with prior statements; minimization of the violence done to the victim; explanations why the victim remained in a relationship with her batterer; or, as in Isaacs , to rebut a claim of self-defense. None of those considerations are relevant here.

The illogic of the majority’s view is underscored further by its inapplicability in other settings. If one assumes that Williams did not ultimately die but instead survived and testified at trial consistent with the exculpatory tone of her dying declarations, there can be no doubt that this Court would soundly condemn any attempt by the State to collaterally attack Williams’s trial testimony with the same battered woman’s syndrome expert testimony the majority permits here. Alive, Williams would have been subject to impeachment under N.J.R.E. 607 by extrinsic evidence relevant to her credibility. As our jurisprudence makes patent, battered woman’s syndrome evidence does not address a witness’ credibility but, instead, her reasons for protecting her abuser. Thus, it simply is not relevant for impeachment purposes. State v. Burris, 145 N.J. 509, 534-35 , 679 A.2d 121 (1996) (citations omitted) (“Evidence introduced under the impeachment exception *506 often poses a significant danger because the information directly relates to the offense but the jury can consider it only for the purpose of evaluating the [witness’] credibility. Trial courts should be especially cautious when considering whether to permit such evidence.”). Its admission by the trial court was reversible error.

B.

Even if one were to assume that battered woman’s syndrome expert testimony was relevant and, hence, admissible, the trial court’s failure to give the jury a limiting instruction as to its use forbids sustaining defendant’s conviction. In the specific context of battered woman’s syndrome expert testimony, we have made abundantly clear that “[t]he jury charge must properly and completely explain how battered woman syndrome evidence may be considered in this matter. The charge here did not fulfill its obligation to be a complete and clear ‘road map’ for the jury.” State v. B.H., 183 N.J. 171, 201 , 870 A.2d 273 (2005) (citation omitted). In contrast with the “narrow” and “inadequate” jury charge we condemned in B.H., ibid., here there was no charge at all. If a “narrow” and “inadequate” instruction concerning the proper use of battered woman’s syndrome expert testimony is grounds for reversing a conviction, plain reason demands that the same result obtain with even greater force when, as here, no instruction at all is given. As the Appellate Division made clear in State v. Ellis, 280 N.J.Super. 533, 545 , 656 A.2d 25 (App.Div.1995),

the trial court erred in this case by failing to give the jury limiting instructions on the difference between substantive use and limited use of [the battered woman syndrome expert] testimony. The omission of limiting instructions was plain error since the jury certainly could have taken [the expert’s 4 ] testimony as evidence of defendant’s guilt rather than the victim’s credibility. Accordingly, this error was “clearly capable of producing an unjust result,” and reversal and remand is warranted.

*507 For that reason and that reason alone, I cannot join in the majority’s conclusion that it was harmless error when, in its instructions to the jury, the trial court failed to cabin the use of the battered woman’s syndrome expert testimony solely to matters relating to whether Williams’s statements were to be interpreted in a manner counterintuitive to the facial import of those statements.

III.

For the foregoing reasons, I respectfully dissent from the Court’s conclusion that “the trial court properly admitted expert testimony concerning the common characteristics of battered women and battered woman’s syndrome, and that the failure of the trial court to give a limiting instruction on the use of the expert’s testimony was harmless error.” Ante, 186 N.J. at 479, 897 A.2d at 320 (2006). Instead, in the circumstances presented here, I would hold the battered woman’s syndrome expert testimony offered by the State to be inadmissible, I would find the trial court’s admission of that evidence and its use without a proper limiting instruction to be reversible error, I would order defendant’s conviction reversed, and I would remand this case to the Law Division for a re-trial.

For affirmance in part/reversal in part/remandment—Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE—6.

Concur in part/reverse in part—Justice RIVERA-SOTO—1.

N.J.R.E. 801(c) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.J.R.E. 802 specifically provides that "[Hearsay is not admissible except as provided by these rules or by other law." N.J.R.E. 804(b)(2) exempts dying declarations, also referred to as statements made under the belief of imminent death, from the hearsay rule’s proscription against statements offered to prove the truth of the matter asserted: "In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death." This was a criminal proceeding against defendant, the declarant was the alleged murder victim, and the prerequisite of the declarant's belief in the imminence of her death was amply demonstrated at trial.

N.J.R.E. 607 specifically provides that "any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility....”

Here, in. contrast, both the majority and I agree that the trial court properly ruled Williams's statements admissible as dying declarations. See supra, 186 N.J. at 490, 897 A.2d at 326 (2006).

Coincidentally, the same battered woman's syndrome expert, Dr. Kabus, testified in both State v. Ellis and in this case.