NIXON v. U.S., 728 A.2d 582 (D.C. 1999)
Gregory E. Nixon, Appellant, v. United States, Appellee.
No. 96-CF-760.
District of Columbia Court of Appeals.
Argued September 10, 1998.
Decided March 11, 1999.
Appeal from the Superior Court of the District of Columbia,
Hon. Rafael Diaz, Trial Judge.
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Andrew Phillip McGuire for appellant.
Megan E. Hills, Assistant United States Attorney, with whom
Wilma A. Lewis, United States Attorney, and John R. Fisher,
Elizabeth Trosman, and Shanlon Wu, Assistant United States
Attorneys, were on the brief, for appellee.
Before WAGNER, Chief Judge, SCHWELB, Associate Judge, and
BELSON, Senior Judge.
SCHWELB, Associate Judge:
The principal question presented
in this domestic violence case is whether the trial judge
committed reversible error by permitting the prosecution to
introduce expert testimony on the subject of the battered woman
syndrome[fn1] in order to explain, inter alia, the conduct of
the complaining witness in response to the alleged battering. We
hold that the judge did not abuse his discretion by admitting the
challenged evidence.
I.
Following a lengthy jury trial which began on February 23,
1996 and concluded on March 12 of that year, Gregory E. Nixon was
convicted of assault with a dangerous weapon (ADW),[fn2]
possession of a firearm during a crime of violence (PFCV),[fn3]
simple assault,[fn4]
Page 585
and three additional weapons offenses.[fn5] Nixon was acquitted
of twelve other counts of the eighteen-count indictment. On appeal, Nixon
effectively concedes his guilt of the offenses arising from his possession
of a pistol and ammunition, and he challenges only his convictions
for ADW, PFCV, and simple assault.
Nixon's prosecution arose from his relationship with the
complainant, Kelita Boyd, who was his live-in girlfriend, and who
became the mother of his son, Amore. The evidence against Nixon
consisted primarily of the testimony of Ms. Boyd (which was
corroborated in part by Ms. Boyd's mother and by several other
witnesses) and the expert evidence of Dr. Mary Ann Dutton, a
board-certified clinical psychologist. Nixon appeared as a
witness on his own behalf and generally denied Ms. Boyd's
allegations.[fn6]
A. The evidence of abuse.
Ms. Boyd testified that she began to live with Nixon in
December 1994. She related that soon thereafter, Nixon began to
isolate and intimidate her, and that he attempted to exercise
control over her and dominate her with respect to virtually every
facet of her life. According to Ms. Boyd, Nixon sought to prevent
her from having any meaningful contact with her family or friends,
and he enforced this regime with threats and abuse and,
eventually, with acts of violence.
Ms. Boyd testified that on one occasion, when her mother
called on the telephone, Nixon pulled the telephone cord out of
the socket.[fn7] On other occasions, Nixon turned up the stereo
when members of Ms. Boyd's family called, and the music became so
loud that the caller was compelled to hang up. Ms. Boyd's aunt
testified that she had to use a "code" in order to leave a message
for her niece.
Ms. Boyd related that Nixon repeatedly accused her of having
affairs with other men and threatened her with retribution. In
February 1995, Ms. Boyd discovered that she was pregnant with
Amore. After she disclosed her pregnancy to Nixon, the
intimidation intensified, and Nixon began to abuse her physically.
On at least two occasions, Nixon struck or punched Ms. Boyd in the
face; he then told her that he had not hit her, but that she had
turned her head into his hand. According to Ms. Boyd, Nixon also
pushed her against the wall, sliced her T-shirt with a knife, and
engaged in other assaultive or threatening behavior.
In March 1995, after Nixon had pulled the telephone out of
the socket, Ms. Boyd's mother and uncle visited the apartment in
the company of two police officers. Ms. Boyd had the opportunity
to talk to the officers privately, but she told them that Nixon
had not harmed her. Ms. Boyd explained at trial that she did not
tell the police or her family about the abuse because she was
afraid and embarrassed, and because she believed that disclosure
would be futile.
In April 1995, following an argument, Nixon punched Ms. Boyd
in the face and made her nose and mouth bleed. A few days later,
Ms. Boyd encountered her mother at a metro station, and the two
women had lunch. On this occasion, Ms. Boyd admitted to her
mother that, as her mother had suspected, Nixon had been beating
Ms. Boyd. Ms. Boyd then moved in with her mother.
On May 28, 1995, Amore was born prematurely and was placed in
intensive care. Nixon importuned Ms. Boyd to return to him and to
reunite the family. In late June, Ms. Boyd, apparently believing
Nixon's assurances that he would not abuse her any more, moved in
with him again. She testified, however, that by the following
month, Nixon was again battering her, now more violently than
before the baby was born. In July, Nixon choked Ms. Boyd, making
her nose bleed and causing her to lose consciousness. Nixon also
threatened to kill Ms. Boyd's mother if
Page 586
the mother ever brought the police to his home again. Subsequently,
Nixon purchased a handgun, and in November 1995, according to Ms.
Boyd, he threatened Ms. Boyd with the gun and with a knife. Soon
thereafter, Ms. Boyd sought and secured a civil protection order
against Nixon, and she moved to a transitional home for battered
women.
B. The expert testimony.
Following an in limine hearing outside the presence of the
jury, the trial judge ruled that Dr. Dutton, the government's
expert witness, would be permitted to testify regarding the
following topics:
1. myths about domestic violence;
2. common patterns of battering; and
3. common behavior of victims of battering.
At trial, Dr. Dutton addressed these subjects in some
detail.[fn8] She described as a "common myth" regarding domestic
violence the widespread belief that the victim can easily leave
her abuser. This belief is unfounded, according to Dr. Dutton,
because a battered woman will often fear that the batterer will
use violence against her or her family if she does attempt to
leave. Dr. Dutton also explained that many battered women are
economically dependent on their abusers and lack the financial
resources to set up households of their own. Moreover, women are
often inhibited by personal shame or embarrassment. Dr. Dutton
also testified that there is no empirical basis for the notion
that battered women stay in abusive relationships because they
"enjoy" the abuse.[fn9]
Focusing on the batterer, Dr. Dutton identified several
common patterns of domestic abuse, including, inter alia:
1. coercion and threats;
2. emotional abuse, such as degrading or humiliating the
victim;
3. intimidation;
4. isolation (e.g., restricting the victim's access to the
telephone or to the car, or monitoring her comings and
goings); and
5. minimizing the injury, or blaming the victim for being
hit.
Dr. Dutton testified that by downplaying the victim's injuries and
by isolating her from friends and family, the batterer often
reinforces her feelings of helplessness and her tendency to blame
herself for her situation.
Dr. Dutton then addressed common patterns of behavior on the
part of victims of abuse. According to Dr. Dutton, the relevant
studies show that approximately fifty percent of battered women do
not report the abuse to the police, and that "[t]here are many
women who unfortunately put on one front or one view for the
world, even their family and friends, and in private experience
the violence." Dr. Dutton stated that the term "cycle of
violence" is used to describe the three stages of domestic
violence — attention building, acute battering, and contrition.
When the abuser appears to be contrite — when there are
"apologies, flowers, I'm sorry, it was a mistake, it won't happen
again" — and when he pleads for forgiveness, his victim often
allows herself to be persuaded that the abuse will not recur.
Moreover, abuse is not necessarily constant, for "most abusers
aren't battering and mean and abusive one hundred percent of the
time." Therefore, according to Dr. Dutton, it is more common than
uncommon for a victim to leave the relationship, only to return.
In particular, pregnancy and children can intensify the victim's
attachment to the abuser and her reluctance to leave or to stay
away.
Finally, Dr. Dutton testified that she had not examined
either Nixon or Ms. Boyd. She did not know whether Ms. Boyd had
been abused at all, or whether Nixon had abused her. Dr. Dutton
therefore made it clear that
Page 587
she was not rendering an opinion as to the guilt or innocence of
the defendant.
II.
LEGAL DISCUSSION
On appeal from his convictions, Nixon challenges the
admission of Dr. Dutton's testimony on several grounds, some of
which his appellate counsel has raised for the first time on
appeal. Before addressing each of Nixon's specific contentions,
we first identify the applicable legal standard and the scope of
appellate review.
A. The standard of review.
The criteria for the admission of expert testimony in the
District of Columbia are set forth in a three-part test which was
adopted by this court in Dyas v. United States, 376 A.2d 827
(D.C.), cert. denied, 434 U.S. 973 (1977):
(1) the subject matter must be so distinctively
related to some science, profession, business or
occupation as to be beyond the ken of the average
[juror], (2) the witness must have sufficient
skill, knowledge, or experience in that field or
calling as to make it appear that his opinion or
inference will probably aid the trier in his search
for truth, and (3) expert testimony is inadmissible
if the state of the pertinent art or scientific
knowledge does not permit a reasonable opinion to
be asserted even by an expert.
Id. at 832 (quoting Edward W. Cleary, McCormick on Evidence § 13,
at 29-31 (2d ed. 1972) (emphasis deleted; internal quotation
marks omitted). "The trial judge has wide latitude in the
admission or exclusion of expert testimony, and his [or her]
decision with respect thereto should be sustained unless it is
manifestly erroneous." In re Melton, 597 A.2d 892, 897 (D.C.
1991) (en banc) (quoting Coates v. United States, 558 A.2d 1148,
1152 (D.C. 1989)); see also Ibn-Tamas v. United States,
455 A.2d 893, 894 (D.C. 1983) (Ibn-Tamas II) (recognizing discretion of
trial court regarding whether to admit expert testimony on BWS and
holding that "this court should not substitute its judgment [for]
such a discretionary ruling") (citation and internal quotation
marks omitted). "Reversals for abuse are rare." Melton, supra,
597 A.2d at 897 (citation omitted; emphasis deleted).
Where an issue is raised for the first time on appeal, we
review only for plain error. See Super. Ct. Crim. R. 52 (b). In
order to satisfy this exacting standard, the defendant must
demonstrate both that the error was "plain," in the sense of
"clear" or "obvious," and that the challenged ruling undermined
the fairness, integrity, or public reputation of the proceedings
and resulted in a clear miscarriage of justice. Johnson v. United
States, 520 U.S. 461, 465-70 (1997).
B. The sufficiency of the Dyas hearing.
Nixon's first contention is that the trial judge did not make
a sufficient inquiry to determine whether Dr. Dutton's proposed
testimony satisfied the requirements of Dyas. Although Nixon, who
is represented by new counsel on appeal, now claims that his trial
attorney requested a more extensive hearing, he has failed to
refer us to any place in the record in which counsel objected to
the basic procedure utilized by the trial judge in determining
whether Dr. Dutton should be permitted to testify. See, e.g.,
Hunter v. United States, 606 A.2d 139, 144 (D.C.), cert. denied,
506 U.S. 911 (1992) ("points not asserted with sufficient
precision to indicate distinctly the party's thesis will normally
be spurned on appeal") (quoting Miller v. Avirom, 127 U.S. App.
D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967)).[fn10] In order
to prevail on this claim, Nixon must therefore demonstrate plain
error.
In the present case, the trial judge held a proceeding in
limine with respect to Dr.
Page 588
Dutton's proposed testimony[fn11]
and, as we have seen, concluded that Dr. Dutton would be permitted
to testify with respect to three specific subjects. The judge did
not hold an evidentiary hearing on the issue, but Nixon concedes
in his brief that "a trial court is not required to hold an
evidentiary hearing in every case where an expert is proffered."
See, e.g., Ibn-Tamas II, 455 A.2d at 893 n.1. The judge also
took judicial notice of, and adopted, the transcript of a Dyas
hearing held by Judge A. Franklin Burgess, Jr. in United States v.
Darryl Drew, Crim. No. F-4440-95. In that case, Judge Burgess
examined in detail the question whether Dr. Dutton's proposed
testimony on BWS and related subjects satisfied the Dyas
standard.[fn12] Although Nixon's attorney argued that the facts
of this case were different from those in Darryl Drew, he did not
object to the consideration of the Darryl Drew transcript.
Under these circumstances, Nixon has not shown that the judge
committed "obvious" error or that a miscarriage of justice
occurred. We discern no plain error, or error at all.
C. "General acceptance."
Nixon next contends that "the admission of Dr. Dutton's
expert testimony was reversible error because the methodology
behind 'battered woman syndrome' is not generally accepted." He
relies on United States v. Porter, 618 A.2d 629 (D.C. 1992), in
which this court reiterated and expanded upon the seminal decision
in Frye v. United States, 54 App.D.C. 46,
293 F. 1013 (1923):
[U]nder Frye, the proponent of a new technology
must demonstrate by a preponderance of the evidence
that th[e] technology has been generally accepted
in the relevant scientific community . . . . Given
the requirement in Frye of general acceptance,
[t]he issue is consensus versus controversy over a
particular technique, not its validity . . . . If
scientists significant either in number or
expertise publicly oppose [a new technique] as
unreliable, then that technique does not pass
muster under Frye.
Porter, 618 A.2d at 633-34 (citations and internal quotation marks
omitted).
According to Nixon's appellate counsel, "battered woman
syndrome is nothing more than radical political feminism wrapped
in the veneer of science, and as such, fails to satisfy the Frye
test." Counsel cites a number of articles criticizing the
methodology used by Dr. Lenore Walker, the author of The Battered
Woman Syndrome, see note 1, supra,[fn13] and by other proponents
of BWS, and contends that the consensus contemplated by Frye and
Porter therefore does not exist.
Assuming, without deciding, that Dr. Dutton's testimony is
subject to the Frye standard,[fn14] Nixon cannot demonstrate the
lack of the requisite consensus on the present record. Nixon's attorney
made no claim in the trial court that there are scientists who
Page 589
dissent from BWS methodology, and the theory on
which Nixon now relies is being presented for the first time on
appeal.[fn15] If, under these circumstances, we may consider
the contention at all, our review must be for plain error.
The trial judge was not "obviously" wrong in concluding that
Dr. Dutton's testimony satisfied the third prong of Dyas.
Contrary to Nixon's thesis, Dr. Dutton's testimony was not "junk
science." See State v. Clark, 926 P.2d 194, 203 (Haw. 1996). A
decade ago, the Supreme Court of Washington held that the
methodology in the diagnosis and treatment of battered women
utilized by an expert witness who relied primarily on Dr. Lenore
Walker's work "has received general acceptance in the community of
mental health experts." State v. Ciskie, 751 P.2d 1165, 1170
(Wash. 1988). As of 1992, the courts of thirty-two states had
allowed the use of expert testimony on the subject of BWS. See
Bechtel, supra note 1, 840 P.2d at 7 & n.5. "The American
Psychological Association, representing more than 55,000
psychologists, endorsed expert testimony on the syndrome in its
amicus brief [in] Hawthorne v. State, 408 So.2d 801 (Fla. Dist.
Ct. App. 1982). . . ." Id. n.4.[fn16]
More recently, the Supreme Court of Michigan has recognized
that "the majority of jurisdictions favor the admissibility of
expert testimony regarding the battered woman syndrome." People
v. Christel, 537 N.W.2d 194, 202 n.26 (Mich. 1995) (citations and
internal quotation marks omitted).[fn17] The court further
stated that "Dr. Walker's premise and understanding of a battering
relationship has been widely accepted throughout the United
States, and we now join the majority of jurisdictions recognizing
the discipline." Id. The Supreme Court of Minnesota has likewise
stated that "battered woman syndrome has gained sufficient
scientific acceptance to warrant admissibility as expert
testimony." State v. Grecinger, 569 N.W.2d 189, 194 (Minn. 1997)
(citation omitted). In Darryl Drew, supra, Judge Burgess
concluded, on the basis of "ample authority," that Dr. Dutton's
proposed testimony in that case "meets the Frye test." At the
very least, in light of the decisions in Grecinger, Christel,
Bechtel, Ciskie, and Darryl Drew,[fn18] and the authorities
relied on by the courts in those cases, the admission of Dr.
Dutton's testimony was not plainly wrong and did not result in or
threaten a miscarriage of justice.
D. Dr. Dutton's qualifications.
Nixon next contends that "[t]he admission of Dr. Dutton's
expert testimony was reversible error because she was incapable of
offering a reasonable opinion." He claims, inter alia, that "Dr.
Dutton's feminist bias, as described above, is so severe as to
disqualify her from testifying as an expert." A reading of Dr.
Dutton's comparatively low-key testimony does not, in our view,
reveal the prejudice or other shortcomings that counsel attributes
to her.[fn19]
Page 590
Dr. Dutton, as we have noted, is an experienced psychologist.
She has written and lectured widely on the subject of domestic
violence. She testified that she had previously been qualified as
an expert witness approximately seventy-five times. On their
face, her qualifications appear unassailable.
At trial, after the prosecutor had questioned Dr. Dutton
regarding her background and experience, he tendered her as an
expert witness, and Nixon's attorney explicitly conceded her
expertise:
MR. WU:[fn20] Your Honor, at this time, the
United States would proffer Dr. Dutton as an expert
in the field of domestic violence and the effects
of battering.
THE COURT: Mr. Tun, any objection?
MR. TUN:[fn21] No, thank you, Your Honor.
THE COURT: The Court will accept Mary Ann Dutton
as an expert in the field of domestic violence and
the effects of battering.
Moments later, while reiterating other objections, Nixon's
attorney again stated that he was not challenging Dr. Dutton's
qualifications. Under these circumstances, we view as patently
frivolous the notion that the judge plainly erred by failing, sua
sponte, to reject Dr. Dutton as an expert witness.
E. "Beyond the ken."
Nixon next contends that "the admission of Dr. Dutton's
expert testimony was reversible error because battered woman
syndrome is not beyond the ken of the average layperson." Nixon
made essentially the same claim in the trial court, and the issue
has been preserved for appeal.
During the course of the trial, the defense repeatedly
attempted to persuade the jury that Ms. Boyd's testimony was not
credible. Nixon's counsel argued that for a long period, Ms. Boyd
did not report, and even denied, the alleged abuse, and that her
allegations were therefore belied by her own conduct. In his
opening statement, Nixon's attorney told the jurors that there
would be "no medical records . . . no pictures . . . no police
reports of my client beating up Miss Boyd." Counsel asked the
jurors to ponder why. During his cross-examination of the
complainant, Nixon's attorney focused on her failure to report or
disclose the abuse. Subsequently, in closing argument, counsel
suggested that the failure of Ms. Boyd (or her family) to report
the alleged battering to the police "doesn't make sense."
Actions sometimes speak louder than words, and a lay juror
might well wonder whether Ms. Boyd's actions (and inaction) at the
time of the alleged abuse were consistent with the narrative which
she provided in the courtroom long after the events occurred. Dr.
Dutton's testimony was designed to apprise the jurors of certain
repeated patterns of behavior on the part of many battered women.
With that information, the jurors were in a better position to
determine whether these patterns of behavior might explain any
perceived discrepancy between Ms. Boyd's words and her deeds.
This court and other courts have held that testimony of the
type provided by Dr. Dutton may assist the jury in understanding
the evidence and is "beyond the ken" of the average lay juror
within the meaning of Dyas. See, e.g., Ibn-Tamas I, supra, 407
A.2d at 635 ("[t]he substantive element of the Dyas . . .
test — `beyond the ken of the average layman' — is accordingly met
here"); Arcoren v. United States, 929 F.2d 1235, 1240 (8th Cir.),
cert. denied, 502 U.S. 913 (1991); Grecinger, supra, 569 N.W.2d
at 193-94; Christel, supra, 537 N.W.2d at 203-04; Borrelli, supra,
629 A.2d at 1112; Ciskie, supra, 751 P.2d at 1166, 1170-74.
In Borrelli, the Supreme Court of Connecticut held that the
testimony of the prosecution's expert on battered woman syndrome
was "beyond the knowledge and experience of the average juror."
629 A.2d at 1112 (citation omitted). The court relied on
empirical research indicating that
potential jurors may hold beliefs and attitudes
about abused women at variance with the views of
experts who have studied
Page 591
or had experience with
abused women. In particular, males are likely to
be skeptical about the fear the woman feels in an
abusive relationship and about her inability to
leave a setting in which abuse is threatened.
Id. (quoting N. Vidmar & R. Schuller, Juries and Expert Evidence:
Social Framework Testimony, 52 Law & Contemp. Probs. 133, 154
(1989)).
In Ciskie the defendant challenged the complainant's claims
of abuse, arguing that she failed to seek medical attention, call
the police, or leave the defendant, and that her behavior cast
doubt upon her allegations. The Supreme Court of Washington
sustained the trial judge's admission of testimony regarding the
battered woman syndrome, reasoning that "[n]either logic nor law
requires us to deny victims an opportunity to explain to a jury,
through a qualified expert, the reasons for conduct which would
otherwise be beyond the average juror's understanding." 751 P.2d
at 1166. Accord, Commonwealth v. Goetzendanner, 679 N.E.2d 240,
244 (Mass. App. Ct. 1997) ("[t]estimony concerning BWS could
assist jurors in overcoming the common myth or stereotype that the
victims of assaultive partners or spouses would naturally choose
to end the relationship") (citations omitted).
It is true, as Nixon contends, that a great deal of
information about battered women is reported by the media and has
found its way into the public domain. In that respect, however,
this case is not unlike Irick v. United States, 565 A.2d 26 (D.C.
1989). In Irick, the trial judge had admitted, over objection,
testimony regarding the association between drugs and firearms.
On appeal, the defendant contended that the evidence was not
beyond the ken of the average juror and should therefore have been
excluded. This court disagreed:
Although the average reader of the daily press
might well surmise, to quote Detective [Johnny St.
Valentine] Brown,[fn22] that "when you relate to
drugs and guns it's like a marriage," it was surely
reasonable for the trial judge to conclude that an
expert's explication of the background of this
melancholy proposition would be helpful to the
jury.
Id. at 31. In this case, too, the judge could reasonably
conclude, without abusing his discretion, that Dr. Dutton's
testimony was beyond the ken of a lay trier of fact and would be
helpful to the jurors in their consideration of the evidence.
F. Relevance.
Nixon also asserts on appeal, as he did in the trial court,
that because "Dr. Dutton failed to examine or specifically
diagnose Miss Boyd, her opinion regarding 'battered women'
generally was irrelevant." The authorities on this issue,
however, are uniformly to the contrary.
For expert testimony regarding BWS to be admissible, its
proponent must, of course, lay an evidentiary foundation for his
or her claim that the alleged victim is a battered woman.
Borrelli, supra, 629 A.2d at 1115 n.15; Ellis, supra, 650
N YS.2d at 508-09. But if the jury credited Ms. Boyd, then there
was ample evidence in the record that Nixon abused her, both
physically and emotionally. Contrary to Nixon's assertion, the
evidence that Ms. Boyd was a battered woman need not, and indeed
ordinarily should not, come from the expert witness.
In State v. Clark, supra, the complaining witness had
recanted her allegations of abuse. Over defense objection, the
trial judge admitted testimony of an expert witness regarding
domestic violence. The prosecution's expert described, inter
alia, how such violence may explain a victim's recantation of her
prior charges. At the time of her testimony, the expert had not
met or examined the complainant. The defendant was convicted, and
on appeal, he contended, as Nixon does in this case, that the
expert testimony was irrelevant and lacked foundation. The
Supreme Court of Hawaii disagreed:
Clark's contention that [the expert's] testimony
regarding the recantation phenomenon of domestic
violence was irrelevant, absent a determination by
an expert that
Page 592
[the complainant] was in fact
suffering from symptoms associated with domestic
violence, is similarly without merit. Expert
testimony regarding the effects of domestic
violence and how it may explain a victim's
recantation of abuse
is not evidence that the victim
suffers from a specific medical or psychological
condition — or even that the victim's behavior as
observed by the experts was consistent with the
behavior of women suffering from such a condition.
It is simply testimony, based on the witnesses'
experience in cases of domestic violence, that
women with a history of domestic abuse often
exhibit common traits, among them denial and a
tendency to recant accusations of abuse.
State v. Schaller, 544 N.W.2d 247, 253 (Wis. Ct.
App. 1995), review denied by, State v. Schaller,
546 N.W.2d 469 (Wis. 1996). In the present case,
therefore, it was appropriately left to the jury to
determine [whether the complainant's] behavior was
consistent with the behavior described by [the
expert].
926 P.2d at 204.
Numerous other courts have likewise held that expert
testimony regarding BWS and other aspects of domestic violence is
admissible where the expert has not examined the complaining
witness and has not testified that she is a battered woman or
suffers from BWS. See, e.g., Arcoren, supra, 929 F.2d at 1241;
Grecinger, supra, 569 N.W.2d at 194; Goetzendanner, supra, 679
N.E.2d at 245; Scugoza v. State, 949 S.W.2d 360, 363 (Tex. Ct.
App. 1997); Christel, supra, 537 N.W.2d at 201; Borrelli, supra,
629 A.2d at 1111; Ellis, supra, 650 N.Y.S.2d at 504, 507-08;
Cynthia Lynn Barnes, J.D., Annotation, Admissibility of Expert
Testimony Concerning Domestic-Violence Syndromes to Assist Jury in
Evaluating Victim's Testimony or Behavior, 57 A.L.R.5th 315 (1998)
(hereinafter "Admissibility of Expert Testimony").[fn23]
Indeed, in most of these cases, the courts have held or suggested
that testimony by the expert to the effect that the complainant
was a battered woman should be excluded as unduly prejudicial and
because it would invade the province of the jury. See, e.g.,
Arcoren, supra, 929 F.2d at 1241 (because the expert witness
expressed no opinion as to whether complainant suffered from BWS
or as to which of the complainant's conflicting versions of the
facts was more credible, the testimony did not impinge upon the
jury's role in determining credibility); Grecinger, supra, 569
N.W.2d at 194 ("the expert should not be permitted to testify on
the ultimate fact of whether the particular [victim] actually
suffers from battered woman syndrome"); Christel, supra, 537
N.W.2d at 201 ("the expert cannot opine that complainant was a
battered woman, may not testify that defendant was a batterer or
that he is guilty of the crime, and cannot comment on whether
complainant was being truthful"); Borrelli, supra, 629 A.2d at
1115 (expert did not testify "that the victim was in fact battered
and therefore did not comment, directly or indirectly, on her
credibility"); State v. Griffin, 564 N.W.2d 370, 374 (Iowa 1997)
(citation and internal quotation marks omitted) ("[i]f the effect
of the expert opinions in a case is the equivalent of opining on
the truthfulness of the complaining witness, the testimony is not
admissible"); Goetzendanner, supra, 679 N.E.2d at 245 (citations
omitted) ("[t]he evidence may not relate directly to the symptoms
exhibited by an individual victim or victim witness, nor may it
include an opinion or diagnosis that the person suffers from the
described condition"). In light of these decisions, any attempt
by the prosecution to adduce expert testimony to the effect that
Ms. Boyd was a battered woman would have injected into the record
a significant possibility of undue prejudice.[fn24]
Page 593
This case is not unlike Hinnant v. United States,
520 A.2d 292, 293-94 (D.C. 1987), in which this court affirmed the
admission of expert testimony regarding the practices of drug
traffickers although the expert did not state any opinion as to
whether the defendant engaged in these practices. See also United
States v. Johnson, 174 U.S. App. D.C. 72, 75, 527 F.2d 1381, 1384
(1976) (per curiam) ("the detective expressed an opinion as to the
habits of narcotics dealers and users in general. He did not
state any opinion as to whether appellant was a dealer.").
Indeed, in sustaining the admission of BWS testimony, the United
States Court of Appeals for the Eighth Circuit relied, in part, on
federal decisions admitting expert evidence regarding the street
practices of narcotics dealers. Arcoren, supra, 929 F.2d at 1241
(citations omitted). In this case, we conclude, as did the trial
judge, that Dr. Dutton's testimony was relevant and that the
prosecution had laid a sufficient foundation for its admission.
G. Limiting instruction.
Nixon claims that reversal is required because the trial
court failed to give the jury a limiting instruction regarding the
purpose for which Dr. Dutton's testimony was received in evidence.
Noting the trial judge's instruction on the subject in a
Connecticut case,[fn25] Nixon argues that in the absence of such
an instruction, "the jury may easily mistake the expert's
'general' case-specific testimony as a case-specific diagnosis or
as substantive evidence that the defendant is a 'batterer.'"
Although a limiting instruction might have been appropriate,
Nixon's claim of reversible error is without merit.
"No party may assign as error any portion of the charge or
omission therefrom unless the party objects thereto before the
jury retires to consider its verdict, stating distinctly the
matter to which that party objects and the grounds of that
objection." Super Ct. Crim. R. 30 (emphasis added). At trial,
Nixon's attorney made no request for the kind of instruction which
he now claims to have been necessary. "A party's failure to
object to an instruction before the jury begins deliberations as
required by Super. Ct. Crim. R. 30, results in severe consequences
on appeal [even] if that party might have been entitled to a
different instruction." Powell v. United States, 684 A.2d 373, 379
n.9 (D.C. 1996). Rule 30 therefore bars Nixon's claim, at least
in the absence of plain error and a clear miscarriage of justice.
Nixon has not made the requisite showing. In the present
case, as we have noted, Dr. Dutton testified on direct examination
that she had met neither the defendant nor Ms. Boyd and that she
therefore had no opinion regarding Nixon's guilt. On
cross-examination, Nixon's attorney elicited from Dr. Dutton, even more
forcefully, exactly what testimony she did not give:
Q. Dr. Dutton, you don't know whether Ms. Kelita
Boyd is an abused person, do you?
A. No, I do not.
Q. And, Dr. Dutton, you don't know that my client
has ever abused or threatened Ms. Kelita Boyd, do
you?
A. No, I do not.
* * * *
Q. So, just to conclude, you don't know anything
about the specifics of this case; is that correct?
A. That's correct.
Q. Thank you. I have no further questions.
In light of these unequivocal statements on the part of the
witness, the jury could not reasonably have understood Dr. Dutton
to be testifying that Ms. Boyd was a battered woman or that Nixon
was her batterer.
Nixon relies on State v. Ellis, 656 A.2d 25 (N.J. Super. Ct.
App. Div. 1995), but that case is plainly distinguishable and lends no
Page 594
support to Nixon's thesis. In Ellis, prior to
testifying, the prosecution's expert witness had interviewed the
victim for two and one-half hours. Id. at 29. Based on that
interview and on documents relating to the case, the expert opined
that "the victim's actions were consistent with those of someone
suffering from Battered Woman's Syndrome." Id. Under New Jersey
law, expert testimony concerning BWS had long been admissible, but
"its application [was] limited to explaining a victim's reactions
or late reporting of the events and not as evidence that the crime
occurred." Id. at 30 (citations omitted). Nevertheless, and in
spite of the expert's characterization of the victim's conduct,
the judge failed to instruct the jury regarding the limited
purpose for which the evidence could properly be considered. On
these somewhat unusual facts, the appellate court concluded that
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 expert] testimony. The omission of
limiting instructions was plain error since the
jury certainly could have taken her 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.
Id. at 31 (footnote omitted).
The critical difference between Ellis and the present case is
readily apparent. In Ellis, the expert had effectively described
the victim, whom she had interviewed and evaluated, as a battered
woman. Without guidance from the judge, the jurors might readily
believe, on the basis of the expert's testimony, that if the
victim had been battered, then the defendant must have been her
batterer. In the present case, on the other hand, Dr. Dutton's own
words conclusively refuted any comparable interpretation of her
evidence, and there was no appreciable danger of confusion. Cf.
Battle v. United States, 630 A.2d 211, 224 (D.C. 1993) (although
the trial judge should have instructed jury as to the limited
purpose for which rape victim's out-of-court complaint of rape had
been admitted, the defendant was not substantially prejudiced, and
there was no plain error).
H. Probative value and prejudice.
Finally, Nixon claims that Dr. Dutton's testimony was more
prejudicial than probative, and that it should have been excluded
on that ground. In the trial court, he contended that her
evidence was lacking in relevance and that it invaded the province
of the jury, and we will treat the issue as having been preserved.
"[T]he evaluation and weighing of evidence for relevance and
potential prejudice is quintessentially a discretionary function
of the trial court, and we owe a great degree of deference to its
decision." Johnson v. United States, 683 A.2d 1087, 1095 (D.C.
1996) (en banc) (citations omitted); cert. denied, 520 U.S. 1110
(1997). Moreover, a party seeking to override the trial judge's
exercise of discretion must show that the probative value of the
evidence is substantially outweighed by its potential prejudicial
effect. Id. at 1098-1101. Particularly where expert testimony is
concerned, reversals on this ground do not abound. Melton, supra,
597 A.2d at 897.
In Ibn-Tamas I, this court recognized the centrality of Dr.
Lenore Walker's testimony regarding BWS when such evidence was
offered by a homicide defendant who claimed to have been battered
by her late husband, the decedent, whom she was alleged to have
murdered. 407 A.2d at 639. The court held, as a matter of law,
that the probative value of the proposed testimony outweighed its
potential prejudice. Id. The issue in the present case is
somewhat different, for Ms. Boyd was a prosecution witness, and
not the accused. Nevertheless, as the court explained in Arcoren,
supra,
[i]t would seem anomalous to allow a battered
woman, where she is a criminal defendant, to offer
this type of expert testimony in order to help the
jury understand the actions she took, yet deny her
that same opportunity when she is the complaining
witness and/or victim and her abuser is the
criminal defendant.
929 F.2d at 1241 (quoting State v. Frost, 577 A.2d 1282, 1287
(N.J.Super.Ct.App. Div. 1990)).
Moreover, in those cases in which the courts have admitted
(or sustained the admission of) expert testimony regarding
Page 595
BWS at the behest of the prosecution, they have necessarily held,
expressly or implicitly,[fn26] that the probative value of the
evidence is not substantially outweighed by its prejudicial
effect. In Christel, supra, the Supreme Court of Michigan held
that the expert "cannot opine that complainant was a battered
woman, may not testify that defendant was a batterer or that he is
guilty of the crime, and cannot comment on whether complainant was
being truthful." 537 N.W.2d at 201. The court then stated that
"[i]n most cases, these limitations dispel any fear of unfair
prejudice." Id. n.24. With virtual unanimity, other courts have
agreed, see Admissibility of Expert Testimony, supra, 57 A.L.R.5th
at 354-59 (collecting authorities), and so do we.
III. CONCLUSION
For the foregoing reasons, Nixon's convictions are hereby
Affirmed.[fn27]
[fn1] The "battered woman syndrome" (BWS) has been described as
"a series of common characteristics found in women who are abused
both physically and emotionally by the dominant male figures in
their lives over a prolonged [period] of time." People v. Ellis,
650 N.Y.S.2d 503, 505 (Sup. Ct. N.Y. County 1996) (quoting
Christine Emerson, United States v. Willis: No Room for the
Battered Woman Syndrome in the Fifth Circuit ?, 48 Baylor L. Rev.
317, 320 (1996)). For a more comprehensive definition of this
condition, see Lenore Walker, Ph.D, The Battered Woman Syndrome XV
(1979), quoted in Bechtel v. State, 840 P.2d 1, 8 (Okla. Crim.
App. 1992).
[fn2] D.C. Code § 22-504 (1996).
[fn3] D.C. Code § 22-3204 (b).
[fn4] D.C. Code § 22-504.
[fn5] Carrying a pistol without a license (CPWOL), D.C. Code §
22-3204 (a); possession of an unregistered firearm (UF), D.C. Code
§ 6-2311 (a) (1995); and possession of ammunition for an
unregistered firearm (UA), D.C. Code § 6-2361 (3).
[fn6] Several defense witnesses provided a measure of
corroboration of some of Nixon's testimony.
[fn7] Nixon acknowledged that this incident occurred, but stated
that he did not want Ms. Boyd to continue the conversation because
her relatives were being rude to him.
[fn8] In this opinion, we summarize only those parts of her
testimony most relevant to the issues presented by this appeal.
[fn9] See also Joan M. Schroeder, Using Battered Woman Syndrome
Evidence in the Prosecution of a Batterer, 76 Iowa L. Rev. 553,
556, n.25 (1991), in which the author opines that this perception
may be prevalent: ("A common reaction to a battered woman's
situation is [that] if she stays, she must like it . . . . The
prevailing belief is that good wives would stop the beatings by
changing their behavior to please men . . . . This myth blames
the battered woman for the abusive relationship."). (Citations and
internal quotation marks omitted.)
[fn10] Nixon's attorney did state that if Dr. Dutton was
permitted to testify, then he would request an in limine hearing
outside the presence of the jury with respect to any hypothetical
questions, based on the facts of the present case, that the
prosecutor might wish to ask. The prosecutor propounded no such
hypotheticals.
[fn11] The government states in its brief that the hearing
lasted two hours.
[fn12] In Darryl Drew, the judge held that the evidence
satisfied Dyas, but deferred ruling with respect to its probative
value and prejudicial effect until after the complainant had
testified. The defendant subsequently entered a guilty plea, and
the case never went to trial.
[fn13] See also Ibn-Tamas II, supra, 455 A.2d at 894 (concurring
opinion), in which Judge Gallagher quotes Dr. Walker's words in
The Battered Woman at p. XVII:
[I] view women as victims in order to understand
what the toll of such domestic violence is like for
them. Unfortunately, in doing so I tend to place
all men in an especially negative light, instead of
just those men who do commit such crimes.
(Emphasis added by Judge Gallagher.)
[fn14] The correctness of this assumption is debatable. See
Ibn-Tamas v. United States, 407 A.2d 626, 638-39 (D.C. 1979)
(Ibn-Tamas I) (third Dyas criterion, based on Frye, "is directed
to the general acceptance of generic categories of scientific
inquiry," and not to whether there is "a general acceptance of the
battered woman concept derived from [an accepted] methodology");
State v. Borrelli, 629 A.2d 1105, 1111 (Conn. 1993) ("[w]e
conclude that satisfaction of the Frye test is not a necessary
precondition for the admission of expert testimony on battered
woman's syndrome."); but cf. Ibn-Tamas II, supra, 455 A.2d at
894-96 (Gallagher, J., concurring) (Dr. Lenore Walker's proffered
testimony on battered women "falls within the underlying [Frye]
doctrine.").
[fn15] Rather than argue that there was no scientific consensus
recognizing BWS, Nixon's trial counsel asserted that the syndrome
was common knowledge: "With regard to batter[ed] woman syndrome
. . . the average laymen in the real world have [been] inundate[d]
with a person getting beat up, a person . . . not being able to
leave, they read about [it] every day, they hear about and they
know about it." Because the defense never suggested that the
existence of a consensus was at issue, the prosecution never had
any occasion to gird for battle on the point.
[fn16] The American Psychological Association also filed an
amicus brief to the same effect in the Superior Court in the
Darryl Drew case.
[fn17] The court cited James O. Pearson, Jr., J.D., Annotation,
Admissibility of Expert or Opinion Testimony on Battered Wife or
Battered Woman Syndrome, 18 A.L.R.4th 1153 (1982).
[fn18] But cf. Ibn-Tamas II, supra, 455 A.2d at 893-94
(discerning no "manifest error" in the trial judge's
determination, on remand from this court's 1979 decision in
Ibn-Tamas I, that defendant had failed to establish "general
acceptance" of BWS); Fowler v. State, 958 S.W.2d 853, 860-64 (Tex.
Ct. App. 1997) (prosecution failed to present sufficient evidence
of the validity of methodology and scientific theories expounded
by prosecution's expert; error was harmless), review granted,
___ S.W.2d ___ (1998).
[fn19] Nixon's attorney also apparently wants this court to make
what amounts to an appellate finding to the effect that Dr.
Dutton's testimony was untruthful, that she violated ethical
standards by giving her evidence, and that she should therefore
have been barred from testifying. Our examination of the record
does not support these most unfortunate and ill-advised ad hominem
allegations.
[fn20] Shanlon Wu, Esq., the prosecutor.
[fn21] Harry Tun, Esq., Nixon's trial attorney.
[fn22] Detective Brown was the prosecution's "drug expert."
[fn23] Judge Burgess ruled to the same effect in Darryl Drew,
supra.
[fn24] We need not and do not decide whether expert testimony
that the victim was a battered woman may ever be admissible. See
Ibn-Tamas I, supra, 407 A.2d at 632-33 & n.13 (proffered expert
testimony of Dr. Lenore Walker, who had examined a homicide
defendant, and who proposed to testify as to the effects on the
defendant of alleged battering by the defendant's decedent
husband, would not violate "ultimate issue" rule or invade the
province of the jury); cf. Ibn-Tamas II, supra, 455 A.2d at 893
(sustaining exclusion of Dr. Walker's evidence).
[fn25] In that case, the judge charged the jury as follows:
You recall there were two witnesses who described
in general terms the operation of the battered
women's syndrome. This testimony that was offered
by the witnesses was limited to that description.
These individuals offered no opinion in this court
and are not to be understood by you as having
offered any opinion as to whether, in fact, [the
victim] was suffering from the battered women's
syndrome at any time relevant to this case.
State v. Battista, 626 A.2d 769, 779 n.13 (Conn. App. Ct. 1993).
[fn26] We have, however, encouraged courts to be explicit in
this area. Cf. Ibn-Tamas I, supra, 407 A.2d at 635.
[fn27] Nixon's remaining contentions are without merit.
First, Nixon claims on appeal that his convictions for ADW
and assault violate the Double Jeopardy Clause of the Fifth
Amendment because a civil protection order (CPO) was previously
issued against him. Nixon failed to raise this defense in the
trial court, however, and he has therefore waived it. See, e.g.,
In re J.A.H., 315 A.2d 825, 827 (D.C. 1974). Moreover, a civil
protection order is quintessentially remedial, see Cruz-Foster v.
Foster, 597 A.2d 927, 929 (D.C. 1991), and thus does not implicate
double jeopardy protections. See, e.g., Hudson v. United States,
118 S.Ct. 488, 493 (1997) (criminal prosecution that follows
imposition of civil fines is not barred by the Double Jeopardy
Clause). Nixon also makes a related statutory argument, but the
relevant statute plainly contemplates that criminal charges may be
instituted by the government, and a civil suit for a CPO may be
brought by the complainant, all on the basis of the same conduct.
See D.C. Code § 16-1002(c) (1997).
Second, Nixon contends that the trial judge "coerced" the
jury by accepting three successive partial verdicts and by then
directing the jurors to continue to deliberate in spite of an
indication of deadlock. We discern neither evidence of coercion
nor abuse of discretion. See Jackson v. United States,
683 A.2d 1379, 1383-84 (D.C. 1996); Chavarria v. United States,
505 A.2d 59, 65 (D.C. 1986); Blango v. United States, 335 A.2d 230, 234
(D.C. 1975). Nixon's related complaint on appeal regarding the
judge's phrasing of the "partial verdict" instruction comes too
late, see Super.Ct.Crim.R. 30, and is without merit in any
event.
Finally, Nixon asserts that the trial judge abused his
discretion by denying Nixon's motion for a new trial, which was
based on "newly discovered evidence." This motion was
precipitated by Ms. Boyd's disclosure, at the time of Nixon's
sentencing, that she had contemplated suicide and that she had
dreamed about being beaten by Nixon. The trial judge did not
abuse his discretion by concluding, inter alia, that at any new
trial, this evidence was unlikely to produce an acquittal. See,
e.g., Payne v. United States, 697 A.2d 1229, 1234 (D.C. 1997).
Indeed, competent defense counsel would surely have objected to
the evidence in question if the prosecution had sought to
introduce it.
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