Jahnke v. State

carefully guarded the The courts and case parents. Our statutes

rights if heavy on the state place a burden

law State rights to be terminated.

parental are ferret out not in business to

agencies are the end have deficiencies to

parents who away. To the be taken

that their children agencies are business

contrary, state children, and dependent

protect and assist deficient parents who have

to rehabilitate only in extreme skills. It

parenting agencies to terminate that state seek

cases appellee did

parental rights, such as justified County.

Campbell in ter- returning that resulted a verdict rights. appellant’s parental

minating

Affirmed. JAHNKE, Appellant

Richard John

(Defendant), Wyoming, Appellee STATE (Plaintiff).

No. 83-70. Wyoming.

Supreme Court of

June Trierweiler, Bayless,

James H. Barrett of McCartney, appel- Cheyenne, Barrett & for lant. McClintock, Gen., Atty. Gerald

A.G. A. Stack, Atty. Gen., Cook, Deputy Dennis C. Carroll, Gen., Atty. Asst. Thomas J. Dist. Johnson, Atty. Atty., Allen Asst. C. Sr. Gen., Forwood, Deputy and John Dist. Atty., Dist., appellee. First Judicial ROONEY, C.J., THOMAS, Before and ROSE, CARDINE, BROWN and JJ. THOMAS, Justice. questions presented

The essential this case arise out of a notion that a victim of special pa- justification abuse has some specific posed questions tricide. The relate imposed judge trial to limitations members upon voir dire examination of panel of jurors the selected admis- psychi- forensic sibility of from a theory support intended to atrist espoused appellant, by the self-defense there Richard John Jahnke. In addition judge a claim that district abused his upon a imposing sentence con- discretion voluntary manslaughter which viction of jury’s deliberations. was the result judge permit coun- The district refused inquire of for the defendant to members sel jurors panel their attitudes about specific respect to conduct of de- in disciplining father his children ceased physically psychologically both inquire whether member justification felt that there was no panel taking life. The for the of a human ever also ruled that the forensic district court testify state- psychiatrist could not about him by appellant. made to After ments returned, an ap- jury’s verdict was investigation presentence was propriate judge completed and reviewed the district appellant to a term not sentenced the years nor more than fifteen less than five Penitentiary. Wyoming in the years State imposed though appellant, including This sentence even a Motion to Transfer to age appellant years sixteen at the System Juvenile Court and a motion to time the was committed. We have arraignment offense continue the until after the there concluded that was no error with court had ruled the transfer motion. respective respect rulings made appellant arraigned December 3, 1982, district court connection scheduled, plea and he entered a case, the court did abuse its and that guilty charges of not both Infor- imposition discretion in the of sentence. Wyo- mation. At that the State time We shall affirm conviction the ming advised the that it would not judgment sentence thereon. entered case, the death penalty seek and a hearing on the transfer motion filed far The case is not remarkable so as the appellant January was set for procedural appel- steps are concerned. appellant peremptorily After chal- Jahnke, father, lant’s Richard Chester died lenged judge the district to whom the case 16, 1982, gun- on as of November a result assigned, hearing pend- had been on the his gunshot shot Those wounds. wounds were 17, ing January motions was reset for 1983. appellant, inflicted the and that fact has Ultimately hearing the the on motions was issue in On never been an this case. No- 21, 1983, until January continued at the 1982, 18, complaint a criminal vember was appellant. behest County filed in Court Laramie the for County charging appellant the with first two-day hearing A was conducted with degree conspiring murder1 with respect appellant’s motions, to the and at sister, Jahnke, to his Ann commit Deborah hearing presented he evidence and degree first murder.2 On the same date psychiatric testimony demonstrating that appellant complaint the was filed the suffered physical he had from mental and arrested; given he appropriate was was at the abuse hands of father over a respect advice with to his constitutional long of period Following his life. the hear- rights; was charges and he informed of the however, ing, appel- denied court 1982, against 22, him. On November an motion to juve- lant’s transfer case to appearance bond was set in the of amount court, nile and it for trial was set on Febru- $50,000, appellant and the was released the 14, began ary 1983. The trial as scheduled following day. right He waived his to a 14, 1983, February on and the case was preliminary hearing which had been earlier 19,1983. February submitted on 29, 1982, set for and an Informa- November jury, by verdict, appellant The its found the encompassed charges tion which the same guilty charge conspiracy complaint in the criminal was filed murder, degree first commit and found him District Court of the First Judicial District guilty degree the first murder count of 1, in County and for Laramie on December voluntary lesser included offense of 1982. manslaughter. appellant The then filed a 3,

Arraignment Judgment Acquittal set for was for December Motion and New 2, 1982, together Applica- but on December number Trial with a Motion and Sentence, Pending motions were filed on behalf tion Bail and both of 6-1-101, W.S.1977, "(b) person 1. Section at the A effect convicted murder in the first committed, provided: degree punished time this shall offense be death or life imprisonment according to law." "(a) purposely premeditat- Whoever and with of, malice, perpetration ed in the or at- or 6-l-203(a), (1982 2. Section W.S.1977 Cum. assault, tempt any rape, perpetrate sexual Supp.), in effect at the time this offense was arson, robbery burglary, administer- committed, provided: done, ing causing poison or same to person conspiracy guilty "A to commit a being, purposely kills human or whoever (1) agrees per- if crime he one or more premeditated any peace and with officer, malice kills to commit and he sons a crime or another employee corrections or fireman act- person object does an overt act effect the ing duty, guilty line of murder in agreement." degree. the first meeting. appellant Earlier the presen- The had been motions were denied. these ordered, investigation sen- involved in a violent tence altercation with his set March tencing father, 1983. he had been warned not to be imposed judge the sentence of a term trial at the home when father and mother years less than five nor more than of not During par- returned. absence of his years penitentiary, the state fifteen appellant prepara- ents the made elaborate Judgment and Sentence of the written tion for the final confrontation with his It is was entered on March court changed clothing into dark father. He judgment and sentence that weapons prepared which he a number appeal. has taken this appellant positioned places throughout at various appellant appeal In his brief in this family home that he selected to serve as he three issues which asks articulates “backup” positions case he was not suc- to resolve. These are stated cessful in his first effort kill his father. as follows: brief shotguns, These included weapons two ERR IN RE- “I. DID THE COURT rifles, pistol Ma- three a .38 caliber and a DEFENDANT’S VOIR STRICTING addition, sister, rine knife. armed his DIRE, THEREBY DENYING DEFEND- Deborah, with a .30 caliber M-l carbine THE TO EFFECTIVE AS- ANT RIGHT taught operate her how so that COUNSEL, DUE OF PRO- SISTANCE protect could herself event that she CESS, A AND IMPARTIAL JURY FAIR appellant he failed in efforts. re- AND A FAIR TRIAL? family pets garage moved the the ERR IN “II. DID THE DENY- COURT protect injury the basement to them from DEFENDANT THE RIGHT TO ING exchange gunfire potential in a between EXPERT PSYCHIATRIC PRESENT father, ga- him and and he the his closed DEFENSE? TESTIMONY IN HIS dark- rage door. He then waited inside the DID AND “HI. THE COURT ERR garage position ened in a where he could IN ITS SEN- ABUSE DISCRETION permitted which him to not be seen but TENCING?” driveway on the other side lighted view the appellee, Wyoming, sub- The State garage Shortly 6:30 of the door. before appellant stantially agrees with the as to returned, appel- parents the and the p.m. issues, but it attaches a different em- the and got lant’s out the vehicle father stating them in the issues in its phasis to appellant garage door. The came the as follows: brief 12-gauge shotgun loaded was armed with a “I. DID THE TRIAL COURT ACT head slugs, and when could see the THE ITS SCOPE OF DISCRE- WITHIN through his father the and shoulders of TO WHEN IT REFUSED ALLOW TION covering the spacing of the slats of shade ASK CERTAIN APPELLANT TO door, garage of the blew the windows QUESTIONS DIRE? DURING VOIR command-sergeant-major’s his R.O.T.C. “II. DID THE TRIAL COURT ACT opened fire. courage, and he whistle for THE OF ITS DISCRE- WITHIN SCOPE ex- cartridges shotgun All six in the were IT REFUSED TO ALLOW TION WHEN way or pended, four of them in one and DR. PSYCHIATRIC TES- MCDONALD’S father. most seri- another the The struck TIMONY? by slug caused which ous wound was APPEL- “III. WAS THE SENTENCE right just the chest entered the father on HIS LANT RECEIVED FOR KILLING nipple, right inside of the above and to the FATHER EXCESSIVE?” through which it trajectory followed a took right cage right and the lobe rib relating to material the death facts liver, right tearing bruising lung briefly appellant’s can be father the mid- diaphragm along way, into his death the fa- night On stated. cavity passed it where dinner, dle of the chest appar- the mother out to ther took aorta, severing nearly anniversary behind the heart of their ently to celebrate esophagus, inferior vena cava and the then identify “We can several articulations of through lung, the lower lobe of the left self-defense, the rule of may and it finally lodging just under the skin are not definitive. “ ‘ * * * mid-part of the victim’s back. About one justify Self-defense will a homi- shooting hour after the incident the father cide when a person reasonable deems it pronounced dead from the wounds in- necessary in order to avoid infliction of appellant. flicted great death bodily harm upon his or person. her justify To shooting,

After the and while the mother homicide on this ground, appear it screaming driveway, still was must that the defend- appellant great peril ant was family sister exited the death or serious harm, through bodily grounds home a window in the mother’s or had reasonable bedroom, believing. which was at the far end for so appear It must garage. appellant house killing from the was a necessary and reasonable separate ways, his sister then went avoiding harm, means of the threatened appellant was arrested at the home of his and the facts and circumstances sur- girl friend. Prior to the arrival of authori- rounding the event must be such as to appellant girl ties the told his friend’s fa- grounds afford such for that belief.’ revenge. ther that he had shot his dad for Leeper v. supra [Wyo., 589 P.2d Subsequently, after advised of his (1979)], 589 P.2d at 382. “ rights, appellant constitutional made a ‘It has been said several times in this explained statement in which he he had jurisdiction justify that to a homicide on past things.” shot his “for father ground self-defense, ap- it must pear dealing specific great

Prior to with the the defendant was in peril issues appellant harm, raised death or theory bodily of de- serious or had rea- put perspective. ground fense should be sonable Appel- believing and did be- lant has us peril, cited to the case of lieve he was in Buhrle v. such killing State, Wyo., 627 P.2d 1374 necessary peril, avert such and no involved a homicide a wife who claimed other reasonable means avoiding * * * ’ abe victim of abuse. The open cases which to him. Nunez v. State, in supra, are cited Buhrle v. State, lead supra [Wyo., (1963)], 383 P.2d 726 into a involving series of cases homicides 383 P.2d at 727. “ committed perceived women who were ‘The law of self defense is founded victims of the syn- “battered-wife upon necessity. homicide, justify To drome.” While those cases deal with wives appear slayer must great that the inwas abuse, conceptually as victims of there is peril harm, of death bodily or serious distinguish no reason to a child who is a ground had believing reasonable perusal victim of A abuse. of those cases believe, did that peril he was in such leads to a conclusion that the effort which killing necessary to avert is made on behalf of the defendants is to peril, such and that no other reasonable recognition special secure the of a defense avoiding open means of it was to him. * s * ’ in a family homicide case for victims State, supra Durham v. [29 stated, Succinctly attempt abuse. that 85, (1922) Wyo. ], 210 P. Wyo. 934 29 at is made is concept to establish the that one 96, 210 P. at 938. * * n family who is a victim of “ ‘ justified abuse is justify That taking killing in the abuser. self-defense, life in appear human it must departure theory of this from the evidence that the defendant not requirements the usual faith, only really, good self-defense is in endeavored patent. State, In Wyo., Garcia v. any deceased, 667 P.2d to decline conflict with the prior 1148 escape assailant, decisions this court and to from his if he respect with do, defense of self-defense opportunity had the so to if he assailed, were collected. There we said: ques before he fired the shot

997 tion, People White, appear it must v. but also supra, and Thomas, supra, State v. were circumstances such as to excite the suggest courts any the true role of person fears of a reasonable evidence with respect family abuse is to life, assist the jury deceased intended to take his or to to determine whether the defendant’s great harm, be bodily inflict him danger lief that he was of his life or really that the defendant acted under the bodily injury serious was reasonable under fears, influence of such and not in a * * n ’ the circumstances. In those cases the State, Ross v. spirit revenge. expert courts indicate that 351, supra (1899) Wyo. ], 57 P. 924 8 [8 respect to such an issue is neither neces Wyo. 383, 57 P. at 931.” sary nor relevant and for that reason is It is clear self-defense is circumscribed best eschewed. It is clear that if such confrontation, involving circumstances evidence has role at all it in assisting is usually encompassing some overt act or to evaluate the reasonableness of deceased, acts which would induce a involving defendant’s fear in a case person reasonable to fear that his life was recognized circumstances of self-defense danger or that at least he was threat- which include a confrontation or conflict great ened with bodily harm. with the deceased not of the defendant’s This same circumstantial instigation. circum scription is discernible in the line of cases It is in the context of the defendant’s involving abused battered wives. See theory of self-defense as it should be con- States, D.C.App.,

Ibn-Tamas v. United 407 trasted theory with the self-defense Smith v. (1979); A.2d 626 247 Ga. supported by precedent that we examine 612, 678, 277 S.E.2d 18 A.L.R.4th 1144 specific claims of error made with re- (1981); Griffiths, State v. 163, 101 Idaho spect to the voir dire examination of the Adams, (1980); People v. 610 P.2d 522 102 jury panel admissibility and the of the ex- 1129, 325, Ill.App.3d 58 Ill.Dec. 430 N.E.2d pert testimony. White, (1981); People v. Ill.App.3d 474, (1980); 46 Ill.Dec. 414 N.E.2d 196 THE DIRE VOIR EXAMINATION OF Thomas, State Ohio St.2d THE PANEL JURY (1981). Op.3d Ohio 423 N.E.2d 137 A Wyoming brief review of the law in surrounding killing circumstances respect voir dire examinations of are opinion not set forth either jury panel appropriate members of a Hawthorne v. Appellate Florida Court grounds here. The chal- substantive State, Fla.App., (1979) 377 So.2d 780 or in lenging juror for cause in a criminal case State, Fla.App., Hawthorne v. 408 So.2d § 7-11-105, encompassed are W.S.1977: (1982). Although people, many and the “(a) following good The shall be cause media, public prepared seem to be to es challenge any person for called as a pouse the notion a victim of abuse is juror any on indictment: special to kill the justi entitled abuser that “(i) grand That he was a member fication defense is antethetical to the mores indictment; which found society. of modern civilized It is difficult enough “(ii) justify capital punishment expressed an That he has formed or as an opinion guilt appropriate response society as to the or innocence of the to criminal accused, prejudiced or is biased or for or acts even after the circumstances have accused; against carefully been evaluated a number of people. permit capital punishment To to be “(iii) offense, In indictments for an imposed upon subjective conclusion of punishment capital, whereof is that his prior individual acts and conduct opinions preclude him are such as to justified killing of the deceased finding guilty of an accused death; leap abyss anarchy. punishable amount to a into the offense reading newspaper the fifth accounts of the “(iv) he is a relation within That subject in- matter before the court person alleged to be shall not degree to the injured, by disqualify juror attempted to be either for bias or jured, or person on charged opinion; or offense was in- complaint prosecution whose “(vii) The existence of a state of inmind defendant; stituted, or to evincing enmity juror or bias for “(v) petit jury he has served on a party.” That either in the same cause which was sworn respect procedure selec- defendant, and which against the same 25, W.R.Cr.P., in Rule tion now is found a which was jury either rendered verdict part provides pertinent as follows: which aside, discharged after hear- or was set “(a) par- jurors. Examination of —The evidence; ing the ties, attorneys, may or their conduct the “(vi) juror in a That he has served as a prospective jurors, examination of but against the defendant brought case civil such examination shall be under the su- act; for the same court, pervision and control of the “(vii) subpoenaed as a That he has been may the court itself conduct such further in the case. witness (See proper. as it deems examination “(b) challenges cause shall The same 17, D.Ct.) Rule prosecutions that in criminal be allowed “(b) every Peremptory challenges.—In parties in civil cases.” are allowed to case, including the selection of alternate civil case challenges for cause a jurors, the state be entitled to the shall §in 1—11— adopted by reference are found aggregate peremptory number of chal- W.S.1977, provides: lenges to which the defendant or defend- “(a) may be taken Challenges charged for cause ants are entitled. If the offense (1) following death, on one or more of punishable is each defendant grounds: peremptory be entitled to 12 chal- shall charged punish- If lenges. the offense “(i) any qualifications A lack of by imprisonment for more than one able prescribed by per- which render a statute (1) year, each defendant shall be entitled competent juror; a son peremptory challenges. If the of- to 8 “(ii) consanguinity af- Relationship by or misdemeanor, charged is a each fense degree either finity within the third perempto- to 4 defendant shall be entitled party; ry challenges.” “(iii) Standing in the relation of debtor or ward, creditor, master or guardian supplemented by or rule is Rule 17 of the This servant, agent to either principal or or Uniform Rules for the District Courts united in busi- party, partner or Wyoming, which was invoked State being security party, case, ness with either judge provides in this the trial obligation par- either bond or as follows: ty; only proper purpose “The of voir dire of “(iv) juror or a Having served as a wit- (6) panel jurors six jurors is to select previous ness in a trial between the same case, (12)jurors specif- in civil twelve if action, parties for the same cause (12) made, jurors ic and twelve demand therein; being then a witness case, fairly in a criminal who will “(v) part juror presented impartially Interest on the hear the evidence question just the event or involved a and to deter- and render verdict action, juror challenge but not an interest of the ground any mine the for for §§ municipal corpo- (civil) a member or citizen of a prescribed by 1-121 or cause ration; (criminal), 7-224 W.S.1957 1-11-203 [§ § (civil) (criminal)], or 7-11-105 as modi- “(vi) Having expressed formed or an un- by judicial Counsel will fied decision. qualified opinion or as to the mer- belief question its or the of the action. The not:

999 questions juror appropriate “1. of an individual of this mental attitude of Ask indif ference, col- the susceptible lays par that are of asked down no Constitution lectively; procedure ticular tests and is not chained ” to ancient and artificial formula.’ questions by “2. covered and an- Ask States, supra, Dennis v. United 339 U.S. at questionnaire except to juror swered 172, 523, quoting from United 70 S.Ct. at explore questionnaire answer some Wood, 123, 145-146, States v. 299 U.S. 57 greater depth; 177, (1936). 185, S.Ct. L.Ed. 87 81 question “3. asked Repeat and answer- counsel; ed, by though opposing asked appellee The appellant and the ac “4. for the purpose voir dire of Use knowledge that the trial court is vested attempting to instruct the on the concerning ques broad the with discretion law; function; the that is court’s tioning potential jurors during voir dire. the purpose “5. voir dire for Use State, W.R.Cr.P.; Hopkinson v. 25(a), Rule case; arguing the Wyo., (1981), 632 79 cert. denied P.2d 455 juror might “6. what his verdict Ask 922, 1280, U.S. 102 71 L.Ed.2d 463 S.Ct. any hypothetical be under situation State, Lopez (1982); v. supra; and Gerard expected upon any based evidence or oth- State, Wyo., v. (1973), P.2d 99 511 cert. erwise. 585, 1072, 414 denied 94 S.Ct. U.S. 38 “Upon to failure of counsel abide this (1973). L.Ed.2d 478 inhibition re rule, may assume voir dire of the garding the discretion of the trial court is may the jury. The court such case subject it must to be exercised require in writing, spe- counsel to submit Aldridge v. essential of fairness. demands questions cific to be asked the court.” States, 308, 470, United 283 U.S. 51 S.Ct. (1931). L.Ed. In deference to 75 1054 dire object of voir examination court, appellate discretion trial jury panel explore is members of to prescribe inclined to courts not been prospective possibility juror that a is rigid respect rules conduct subject challenge to a for cause under our Rosales-Lopez v. voir dire examinations. State, Lopez v. quoted statutes above. States, 451 U.S. 182, 101 1629, United S.Ct. (1976). Wyo., Voir 544 P.2d 855 dire exam State, v. (1981); Gerard L.Ed.2d 22 68 designed right ination to insure to a supra. It is the trial court assumes impartial affording fair responsibility the selection primary parties poten to opportunity discover jurors who to follow its instruc will be able tial and biases which in prejudices tions on the and evaluate evidence law potential ability jurors terfere with side, prejudice without bias to either case, fairly preserva decide the and the pragmatic proposition necessary it is as a prove actual right tion of that bias is an rely upon of the trial court in discretion integral right portion of defendant Supreme performing task. As the Dennis v. United impartial jury. to an Rosales-Lopez v. United Court said in States, 162, 164, 519, 521, 70 339 U.S. S.Ct. States, 188, supra, at 101 451 U.S. S.Ct. at 734, reh. 94 737 denied 339 L.Ed. : 1634 (1950); L.Ed. U.S. 1364 S.Ct. Lopez “Despite importance, adequacy supra. statutory Of the its dire voir isl easily subject appel- not grounds challenge for cause re judge’s jurors in late review. The trial function spect prospective a criminal point in the trial is not unlike that- of significant may case most well “bias jurors Both against later on the trial. prejudice for or accused.” 11—105(a)(ii), impartiality The en must reach conclusions as Section W.S.1977. 7 — their own impartial credibility by relying jury, is to a fair and titlement “ and of ‘Im evaluations of demeanor evidence sympathetic one to the defendant. questions. See Ristaino v. responses partiality conception. a technical It is not Ross, 589, 595, S.Ct. mind. For ascertainment U.S. state of 1000 permit- quoting Ri dren if had children. He was

1020, 258 47 L.Ed.2d 723, 733, Louisiana, question, 83 ted to ask that but he also indi- 373 U.S. v. deau (1963) 1422, 1417, inquire L.Ed.2d 663 that he wanted to 10 cated S.Ct. in J., dissenting). jurors they thought In neither it would (Clark, whether be easily age sec appellate proper discipline an court to strike a child of the can stance two; proper of the decision- ond-guess the conclusions whether it would be disci- the wit pline heard and observed lie on proper parental maker who conduct to top nesses.” is eleven your daughter when she pants; years put your old and hands her question jurors is a impartiality your proper whether it would be to strike upon the trial court to decided of fact be back; children with a on the closed fist proper questioning. the basis of and, psychological in the area of mental or Further, party contesting the abuse, proper put to whether it would be respect to the rulings the trial court with very young, children who are swear down content of voir dire examination scope and court, at them and cuss at them. The trial obligated to establish not jurors noted, permitted question with re- as proper trial court’s discre an abuse of the discipline spect to the manner of of their tion, substantial but he must demonstrate children, permit to counsel to but refused rights a result of that prejudice to his questions, stating that it con- ask the other v. Rob abuse of discretion. United States asking their indirectly stituted them for 265, inson, 376 U.S.App.D.C. 475 F.2d 154 expected evidence which the reaction to State, (1973). Hopkinson also v. su See judge perceived contrary to to district State, Wyo., P.2d 1283 pra; 589 Collins v. 17 provisions of Rule of the Uniform State, (1979); supra; Loy v. Lopez v. quoted the District Courts above. Rules of 381, (1919); State, P. Wyo. 26 185 796 request inquire In connection with the State, P. Wyo. 556 v. Keffer abuse, psychological about mental or (1903). perceive While in this case we can judgment court ruled that its appellant prejudice rights no appel- attempting try amounted rulings in respect to the court’s con during examina- lant’s case the voir dire dire examination of the nection with voir tion. question in jurors, we do not reach that light of our conclusion that this instance In the context of this case there of discretion was demonstrated. no abuse in the refusal of was no abuse of discretion the trial appellant contends specific ques permit the trial court (1) its discretion two areas: abused raise with appellant desired to tions limited judge improperly the district jury panel. the. v. the members of Gerard relating discipline questioning areas of is not re supra. The trial court perceived as of children which could be questioning of quired permit improper abusive; (2) court im- that the district party jury panel simply because a re permit question him to properly refused to questions, ask such quests permission to respect to jurors about their attitudes with specific questioning method of and no taking human life. justification for the of a examinations. prescribed for voir dire corollary argu- presented There is also Carolina, 409 U.S. Ham v. South appellant ment to the effect (1973); Aldridge L.Ed.2d 46 S.Ct. questioning inhibited restrictions States, questions supra.- The United challenges peremptory the exercise of his sought were not appellant to ask jury panel. of members of the preju any hidden bias or designed to reveal part of members of relating to dice on respect to his first claim With patent requests to ob examination, panel. They were ap- for the voir dire counsel potential jurors to tain the reaction of pellant prior the court to the be- informed in the case appellant’s theory of defense he wanted to ginning selection that trial anticipated evidence. The and to jurors they disciplined their chil- ask how 1001 Witherspoon Illinois, v. State of court was well within the limits of its dis- States. refusing permit 510, cretion in to questions such 1770, 88 391 U.S. S.Ct. 20 L.Ed.2d 776 to be asked. (1968), 898, reh. denied 393 67, U.S. 89 S.Ct. (1968); Hopkinson State, 21 186 v. L.Ed.2d inquire respect request With to the of to State, supra; Pixley v. Wyo., 406 P.2d 662 panel any the whether of them felt (1965); Aragon, Wyo. 308, and State v. 41 justification taking there is no ever for the (1930). life, appellant’s position 285 P. 803 It is of a human counsel appellant for the capital punishment question advised the district court that the reason he like the question wanted to ascer- ask that was to determine, he should have been to allowed panel tain whether the members of the potential by asking jurors during dire, voir would be able follow the instruc- to court’s what might their attitudes toward self- concerning tion self-defense if an in- such order defense in to whether they discover given. particular struction were At that respect particu had closed minds with to a pending time there was before court a the lar outcome. regard this we find the by motion in limine filed the State following language from Commonwealth sought ruling a that an on self- instruction Fisher, v. 405, 262, 447 Pa. 290 A.2d 264- improper defense the cir- would be under (1972), 265 to apt: be instructive and court, cumstances of this case. The trial “Appellant’s first contention is that it however, rely upon position did not the was an abuse of for the discretion trial the but ruled that be im- deny court to him opportunity the to proper permit question potential to on prospective jurors examine as to their questioning that such instructions and de- apply to ability the law of self-defense. purpose feated the of the rule of uniform attempts analogy He to create an be- the Appellant District Courts. relies right tween the Commonwealth’s to ask Brown, Mo., State v. 797 S.W.2d prospective jurors under whether certain all respect but with due to our they impose circumstances could the Supreme brothers on the Court Missouri penalty death and this defendant’s we decline to follow that rule. Prior right jur- claimed whether ascertain voir by dire examination dis- counsel the apply or could the law of self-defense. judge trict in inquired this case had Illinois, Witherspoon Cf. 391 U.S. jury if any of could the accept them law (1968). S.Ct. L.Ed.2d 776 in court, the given case as them the specifically inquired “The trial though they might even disagree with instructed, every prospective juror if law as whether select- were and no one juror ed any difficulty following indicated as a individual could abide Consequently court’s instructions of court. instructions as to the law approach every aspect Appellant’s taken the court re- on of the case. spect questions limiting legal about theo- symmetry permit- asserted between might ries which later be incorporated dire involving ted voir examination proper instructions was exercise of the penalty requested death and his voir dire court’s discretion this case. subject self-defense has no legal factual has basis. There been no however, appellant, also seeks showing widespread of a public concern analogy capi structure an to cases in which juror’s ability impartially with a punishment sought right tal o fairly apply the law of self-defense simi- during inquire State to voir dire wheth involving imposition lar to that any prospective er jurors could not Witherspoon v. Illi- penalty. death Cf. impose a penalty any death under circum nois, at 391 U.S. 88 S.Ct. 1775- statutory stances. We note that that is a showing 1776. Absent such a subject challenge Wyoming. for cause in 11—105(a)(iii), requested Section in reasonable basis for the exten- W.S.1977. The 7— quiry specifically approved present permissible has been sion limits jurisprudence say state and United voir we dire cannot trial inquire respect to refusing appellant sought its discretion

court abused self-defense, the issue of the court did not probe into this counsel to allow defense justify know whether the evidence would Lopinson, v. area. See Commonwealth By issue. of (1967); an instruction on that virtue 284, A.2d ABA 234 552 427 Pa. its motion limine and otherwise the State Standards for Crimi- Project Minimum on it would The trial contending that not. Justice, Relating to Trial nal' Standards § court also had the benefit of Draft, 1968) (Approved 2.4 Jury, hearing at the directed at the issue taken put (‘The then voir judge should dire] [on juvenile transfer case to the of of the jurors any questions the prospective court. We held that the trial court have necessary....’)” thinks which he theory need instruct on a defendant’s error in that there was no We conclude of the case where there is evidence which in appellant refusing to the permission State, supports theory. that Grable v. re jurors’ attitudes with quire about the (1982); Wyo., 649 P.2d 663 and Goodman theory of self-defense. There spect to his State, Wyo., (1977). 573 P.2d 400 Here v. ample authority proposition for the that give trial did an on the instruction of discretion to refuse it is an abuse of at the of defense self-defense conclusion in law or questioning propositions on of State, As noted in the trial. we Garcia v. might be at the con given structions supra, reading our of the leaves us record v. Gil clusion of the trial. United States validity skeptical respect with to the (2nd Cir.1967); lette, 383 F.2d 843 Stone v. under circum- defense self-defense these (5th Cir.1963), States, F.2d 324 804 United stances, appellant but 793, 938, S.Ct. 11 cert. denied 376 U.S. 84 acted that he in self-defense sufficient (1964); v. L.Ed.2d United States Craw 649 justify the We been af- instruction. Cir.1971), (10th cert. ford, 444 F.2d 1404 however, forded, speculate no reason to 855, 98, 30 denied 404 92 S.Ct. L.Ed.2d U.S. jurors violated their and in oaths State, 644, (1971); Ga.App. 137 95 Hart v. way some refused to follow the court’s Clark, (1976); La., 224 S.E.2d 755 State v. theory on instruction self-defense. (1976); State, 325 802 Carder v. 5 So.2d contrary If appears. In this instance the 531, (1968); Md.App. A.2d v. 248 495 Oliver jurors anything verdict of demon- (1969); 418, Nev. 456 P.2d 431 85 respect sympathy appel- with to the strates Fisher, supra. v. Commonwealth justification. perceive claim We lant’s showing made of Here there was no prejudice appellant arising out of no required special circumstances which dire examination. the inhibition of voir is respect with questions be asked however, argument, corollary In a self-defense, i.e., question that such sue appellant argues right that his to make reasonably to discover ing was calculated intelligent peremptory chal use of likely prejudice. source of an actual and Although the Su lenges inhibited. Ross, 589, 424 96 S.Ct. v. U.S. See Ristaino has rec preme Court of the United States 1017, (1976); 47 258 States L.Ed.2d United ognized right no there is constitutional Robinson, supra; and v. Commonwealth challenges peremptory an accused (6) (4) Fisher, supra. v. Subsections respect potential jurors in criminal with 17, Rules for the District Rule Uniform cases, States, 250 U.S. Stilson v. United for the Wyoming, of the State of Courts 583, 28, (1919), if L.Ed. 40 S.Ct. guidance courts of counsel challenges are peremptory made available attempts jurisdiction, specifically prohibit important most they become “one of the purpose of instruct to use voir dire for rights secured to accused.” Point respect applicable ing law 396, States, v. 151 U.S. S.Ct. er United might determining juror’s verdict what Accord, 410, (1894). 38 L.Ed. 208 Swain hypothetical under situation. Alabama, 202, 85 S.Ct. 380 U.S. State of (1965); 824, 13 L.Ed.2d 759 and Lewis v. In this instance we also ascribe States, 146 U.S. 13 S.Ct. significance to the fact that at the time the United (1892). peremptory challenges. As the said in exercised his 36 L.Ed. 1011 Court His Alabama, argument is not that he supra, 380 was denied his v. State Swain respect to the 219-220, right peremp- use of the 85 S.Ct. at U.S. at “[The simply tory challenges, but that he challenges] al could availability peremptory way have better some utilized chal- possibility of to ascertain the lows counsel lenges if the trial court had not exercised questions the voir through probing bias respect to the its discretion with conduct of the exercise of chal dire and facilitates voir dire in the manner which it did. by removing the fear of lenges for cause There no error to be found in this claim. through incurring juror’s hostility a exami appellant The was entitled to a fair and challenge for cause.” The nation impartial jury, perceived not one which he also noted in v. State Ala Court Swain of sympathetic. regard to be In this we note bama, peremptory chal supra, that the following appear that the matter does very nature one which is lenge by its appeal: the record on reason, stated without exercised without a parties “THE subject and without to the COURT: Are the satisfied inquiry twelve, though plus a of the court. Even the that of two alter- control nates, challenge qualified facil has drawn and availability peremptory of a been the selection of an this matter? Mr. Carroll? process itates the full, free, impartial jury by encouraging satisfied, “MR. CARROLL: The State is comprehensive voir dire examination of Your Honor. bias, prej prospective jurors regard with And, “THE COURT: Mr. Barrett? grounds challenge any udice or other satisfied, “MR. BARRETT: Defense is affording 3 for cause while at the same time Your Honor.” antagonism that party protection the from summary, appear there does not dire, may developed by still be such voir any by abuse of discretion the trial court dire is not to ex purpose the of the voir respect with to the conduct of the voir dire for the exercise of the plore for a reason jury panel in in examination of the this challenge. Supreme The peremptory Court appreciate stance. We the desire of coun quite recently has held of the United States the voir dire try sel to their case at time of juror failure of a to answer a court, examination, if the trial in the but justify question on voir dire would a new discretion, permit of its does not exercise only if answer would have trial a correct parties legal have no basis for challenge furnished a basis for a for cause. passing complaint. might We note McDonough Equipment, Power Inc. v. expressed respect dismay sometimes with — Greenwood, U.S. -, 845, 104 78 S.Ct. lengthy process selection in (1984). prejudicial If no error L.Ed.2d 663 country. around this See Peo some courts surely an instance can be found such 815, Crowe, Cal.Rptr. 106 ple v. 8 Cal.3d prejudicial there could no error attach 369, (1973). Obviously that is 506 P.2d 193 ruling ing by to a the trial court that a given if are free rein what occurs counsel pertain not to a question which does theories, present imaginative conten ground challenge a for cause cannot be tions, potential evidence course asked. jurors the examination of the for chal

Furthermore, lenge for cause. We conclude that appellant has not by Rule argument policy represented Uniform any showing by made brief Courts, prac and the arising any out of Rules for the District respect prejudice courts, here, exemplified in our trial peremptory his exercise of tice inhibition of parties are is silent as to is sound. furnished challenges. The record proper inquiry, make appellant opportunity but or in what manner whether Cross, acceptance jury. proposition precedent State v. 72 3. There is for the Rose, (1900); by appellant People A. Conn. errors such as those claimed (1934). by relating are waived Mich. 256 N.W. 536 to voir dire examination trying physician examining their cases held that a who was they are foreclosed testify child victim abuse could the time of dire. voir

respect by to statements made the child permissible victim. We held this was THE EXPERT WITNESS PSYCHIATRIC engaged in making the doctor was because appellant’s second issue involves diagnosis syn- “battered-child attempt elicit from a forensic no drome.” We had occasion to consider by appellant had psychiatrist whom physician as it might request examined at the of defense been apply to a case self-defense. aspects ruling Two counsel. The record discloses that State’s ob- complained appellant. court are jection sought information by the ruling The first is the district question be elicited rele- objection the State which sustained an argument lengthy vant. There followed question psychiatrist of the forensic appellant between counsel for the psy- had appellant about what the told the encompassed counsel for State which family home life and his chiatrist about his reaching aspect matters the second up. experiences growing in The second appellant’s position respect to the tes- upon the aspect questions involves which timony psychiatrist. of the forensic Ulti- rule which deal with district did not articulated, mately ruling the trial court its pertinency expert testimony the as it of way: in this assessing the rea- might assist the “Well, the court convinced isn’t that appellant’s of conclusion sonableness the by what was stated Dr. McDonald the or that his life was threatened that he clearly here falls into the defendant hear- bodily danger injury of in con- serious say exception. killing the of his nection with father. I state that the reasons I “And that aspect the of this As to first contention previously expressed counsel. by appellant question the asked was: appear primary “It would reason “Q you did What he tell about his fami- Dr. the defendant consulted Mc- growing experi- life ly up home and his provide was to Dr. Donald later Mc- ences?” court, testimony Donald’s as appellant’s is that position such testi- presented today. here mony exception is admissible under presented any “I haven’t been evidence 803(4), hearsay Rule rule contained any acceptance of court’s science W.R.E., provides: child, pre- of what can be the battered “The following are not excluded child. I dicted from battered don’t rule, hearsay though the even declarant that Dr. believe McDonald’s is available as a witness: against as being offered an admission interest, although may there be an ad- “(4) against purposes medi- mission interest contained in Statements for things alleged to him or diagnosis cal or treatment. —State- some of the told ments made di- to have been told him the defend- purposes medical describing agnosis or ant. treatment present symp-

medical or history, past or Mr. can’t cross-examine the “And Carroll sensations, toms, pain, inception or or defendant as to what he has told the general cause or ex- character doctor, Iso don’t see where cross-exami- insofar ternal source thereof as reason- great protector in this in- nation is ably pertinent diagnosis treat- stance.

ment.” “I and the believe opinions Dr. recently with this and conclusions of Mc- particular We have dealt counsel, Donald, suggested by exception hearsay rule v. Goldade (1983). State, Wyo., province jury. 674 P.2d 721 We there invade

1005 believe, jury, “The is to determine the When an abuse discretion is relied fears, ruling we should examine the in light reasonableness of before the of a situation trial court should determine evidence at the facts, time it ruled. We have said: person who testifies as to the situation, and draw their conclusions. “In of evidentiary rulings the context trial, long this court has adhered to the sustaining objections “The court is proof doctrine that a sufficient offer of testimony.” the state to this These comments v. as follows: applied sibility of Goldade v. the sound discretion of the trial court turbed. clear abuse of discretion.” and will be materiality, and remoteness are within discretion of the clear mission of evidence is omitted.) “It State, has been foundation, relevance, competency, abuse Wyo., evidence is articulated It is The rule which this court has Wyo., State, supra. respect upheld 642 held also discretion will not be dis- trial sufficiently distinguish P.2d generally rulings court and absent a 1294, general within the appeal as to admis 1295 (Footnotes in Taylor rule that absent a the ad- sound Pack v. State v. State, Wyo., quately apprised of the nature of the necessary kins v. excluded (1913); ^[58] court to be of its discretion of reh. denied tez v. 53 P. 158 P.2d 865 evidence, Wyo. 31 P. requirement State, Wyo., 601 P.2d 189 State, Wyo., Goettina, supra Wyo. 420, testimony. 468, so that this court (1893). fully McGinness and to [22 600 P.2d 1044 134 P.2d 1116 (1945)]; 22 Wyo. reh. denied [4 regarding Wyo. 34], advised in the exercise is to enable the trial The dual enable the 573 P.2d 34 571 P.2d 241 (1979); Padilla v. State v. [61 State, Wyo. the admission (1979); may (1943); 134 P. purpose Wyo. 115], Elliott v. reviewing be ade P. Rouse, (1977); (1977); Stale, Mon Jen 260, prejudicial court to determine if error establishing The burden of the clear abuse prof resulted from the exclusion of the of by party discretion must be assumed State, testimony.” fered Garcia v. ruling who attacks the of the trial court. 1148, (1983). State, Wyo., 667 P.2d 1155 supra; State, Buhrle v. Nimmo v. (1979). Wyo., 603 P.2d party 386 That argument In the course of the with re- ruling must establish that the the trial of spect objection to this various statements court was erroneous and that it did affect appellant were made on behalf which rights party. substantial The trial can considered as at in the nature least in the exercise of its discretion can proof. say of an offer of We will more exclude even relevant evidence when there later, about those comments but at this countervailing are considerations such as recognize point it is sufficient to that the probative substantially “if its value is out- suggestion made to court was that the weighed by danger prejudice, of unfair testimony psychiatrist the forensic of was issues, misleading confusion of the or leading up showing to a of the reasonable- jury, by delay, considerations of undue appellant’s ness of the conduct and actions presentation of time or waste needless of night on the of his father’s death. The 403, cumulative evidence.” Rule W.R.E. however, appellant, did not demonstrate in proof this the offer of how information The definition that this court has would relate to a claim of self-defense. espoused an of of abuse discretion is found State, 831, Wyo., in Martinez v. 611 P.2d significant It also is the time the stated as 838 where is follows: psychiatrist of the forensic was “* * * showing no made in An abuse of discretion has been offered there had been appellant in acting said to mean an error of law committed the record that the was Velsir, by Wyo. 61 the court under the circumstances. self-defense. See State v. ^{[*] [*] [*]} )> 159 P.2d 371, 161 A.L.R. 220 (1945); 1006 State, Wyo. might history that a be said of child abuse v.

and Mortimore permitting the usual (1916). point by is made com- comes within rule evi- P. part of prior circumstances in this dence acts violence on the paring the factual of Supreme in Mortimore v. Court case with those the deceased. State, supra, v. supra. put perspective In Mortimore Ohio the matter in State manslaughter Thomas, was convicted of supra, defendant when it said at 66 Ohio of his father. The shooting death N.E.2d St.2d 137: as a served defense was justification which one, “In a trial such as this where the had acted the defendant defense self-defense, raises an issue of evidence being violently who assault- a brother was pertaining the only admissible evidence point ap- by the father. The raised on ed is that defense evidence estab- by the the exclusion trial court peal was a bona-fide be- lishes that defendant had specific relating to acts proffered evidence danger lief of death imminent she upon the de- violence the deceased harm, bodily that the great family members of the fendant and other escape danger from such means of * * * ” by the deceased and threats made deadly through the use of force. at the time of presence of the defendant (Footnote omitted.) this shooting. In that case court said: respect If purpose recognized is rea are convinced that better "We sought to be elicited from soning the rule such evi sustained psychiatrist propriety the forensic admissible, under claim dence the trial court’s refusal to invoke the hear- self-defense, where there evidence say exception upon recog- relied must be it, when facts tending support nized. appre might have affected defendant’s At the time of the trial court’s case, in this not hensions. There was by the rulings the facts manifested record by the de merely impending an assault significantly contrast this case brother, upon but ceased the defendant’s State, supra. those in Mortimore v. This assault one of an actual and violent ap no contained evidence record greater strength advantage and with the pellant under either actual or threat immediately following a position, ened at the time assault father which, threat, anger, seemingly made shooting. justifica Reliance result, out, only in might if carried showing requires tion assailed, of self-defense bodily to the one great harm attack by an actual or threatened imminent That taking the his life. he was but State, supra; the v. bodily appar harm deceased. See Garcia danger of some was Velsir, supra; cases question probabil then was State and the cited ent. The the v. continuing ity involving of the and the ex In a case a defense of assault therein. n danger; by tent of the and we think it clear a self-defense abused wife Su apprehension Illinois, that the defendant’s preme addressing Court of facts reasonably might that matter have been these, said: similar to “ * * * by knowledge previ affected his that, law It is true under the himself, mother, upon assaults ous self-defense, deliberately one who is as opinion, there and sister. We are of in a manner make him reason saulted fore, that evidence to show such acts ably apprehensive great death bodi admissible, its exclusion right assailant, ly harm has the to kill his prejudicial; preju error and the reasonably appears if him that it such by the conflict in the dice was enhanced necessary to save himself from action general reputa respecting evidence great bodily (People harm. death or v. n n ”J;: P. at tion of the deceased. 161 614; Motuzas, 340, 352 Ill. N.E. 185 see Strader, 13, v. 23 Ill.2d 177 People 126.) However, of self- Analytically, right N.E.2d upon what was said based right it of at by imply this court in Mortimore v. defense does

1007 permit action was psychiatrist’s tack in the first instance or made to the testimony at revenge. (People done in retaliation or hearing the time of the appellant’s on the 83, 628; Gibbs, N.E. 349 Ill. Peo motion juvenile to transfer the case to the Andrews, 162, Ill. N.E. ple v. psychiatrist court. On that occasion the 462.) testimony much in While there is had testified opinion appel that in his dicating frequently had that defendant youth lant was a suffering battered from a physically by mistreated her been hus mental disorder which was not defined or band, question that is not the here. The recognized accepted under the standards of rather, is, question whether the evidence diagnosis of mental and personality disor that, instant, particular shows at this her expertise. ders in his field of At that hear unprovoked husband had made an as ing history he related the appellant’s of the put upon sault her which her in reason abuse at the hands of his father as the great able fear of imminent death or appellant given had it to him. He said that bodily harm which could be avoided appellant very much afraid of his n i: * ” by stabbing People him. v. Dil father. lon, 503, 24 Ill.2d 180 N.E.2d support admissibility further of the (1962). testimony psychiatrist from the forensic showing in- Absent of the circumstances counsel advised the court: volving by an actual or threatened assault “We would submit that Dr. McDonald’s upon appellant, the deceased the rea- go to the fact that the appellant’s sonableness of conduct at the defendant Richard Jahnke was brutalized case, time was not an issue and the by May father in that he was court, ruling, time trial at the it made its brutalized his father on November properly hearsay testimony excluded the 16th of that he had been brutalized sought psy- to be elicited from the forensic many years past. his father for chiatrist. aspect appellant’s posi The second of the

tion is far broader than the record will “We would also submit to the court that support. As noted in connection with the necessary if the court feels that argument surrounding objection Dr. McDonald should not be allowed respect specific question State with any opinion diagnosis, render of or above, quoted appellant counsel for the defense could abide that statement. purpose touched the overall “However, we would make an offer of psychiatrist. of the forensic It is that, testify, proof if allowed to he would psychiatrist clear that the had interviewed testify that he believes that Richie appellant separate on seven occasions emotionally impaired, Jahnke is preparation for a total twelve hours that Richie is a believes Jahnke battered for the trial. He also had visited with child. people appellant. At other about issues, as to his “We believe those appellant’s trial counsel advised the court diagnosis opinions, separate are psychiatrist express opin that the an testimony distinct as to his and state- appellant’s to the mental or emotion ion as concerning that ments the other factors condition, the made al assertion was him.” Richie Jahnke told right appellant that the had a to establish response In to a concern of the trial the facts which formed the for that basis respect sufficiency the court with to the counter-argument opinion. The knowledge regarding the state of scientific upon State, premised State was v. Smith syndrome,” counsel for the “battered-child Wyo., 564 P.2d 1194 judge they if appellant asked the trial opinion an effect that such was not admis might problems correct some of the con- plea guilty sible the absence of of not testimony if psychiatrist’s nected with the by deficiency. reason of mental illness or § 7-11-304(a), testimony they provided See W.S.1977. Reference evidence or 1008 charge. knowledge day Later in the his counsel ad-

regard to of scientific the state the pertained appellant it the effect of the vised the court that did not as battered- dialogue that, syndrome. following The wish and a further recess was child to do granted Ultimately by then occurred: the court. counsel that appellant the informed the court you to make—If “THE COURT: If want appellant the desired to with the that, continue the will you attempt want psychiatrist trial. The forensic was not always you you. and hear listen to court, by released the and the record dis- court, then, the rul- “MR. BARRETT: Is Cheyenne during closes he was in the that present us ing acceptable is day the morning of this of the trial. When on matter evidence out of order first afternoon, however, trial resumed battering and the effect of that new was called. these cir- witness Under type battering upon prior Mr. Jahnke support the record cumstances does mind submitting evidence of state of respect of error with to the al- claim 16th and fear on November of 1982? leged permit refusal of the trial court to Well, saying “THE COURT: the court is expert testimony designed justify the objections that it will on the as rule appel- reasonableness of the actions of the presented.” are assuming lant that a context self-defense noted, appellant As invokes the developed. were State, theory supra, v. discussed Buhrle involving and the other cases the “bat OF IN ABUSE DISCRETION syndrome.” perceive tered-wife We do not SENTENCING proof presented by how offer of appel by other issue crite raised appellant satisfy sufficient to expert lant his contention that the trial court admissibility testimony ria for State, impermissibly its in im supra, P.2d abused discretion quoted Buhrle v. 627 1376, States, posing of not than five nor v. 376 A.2d a sentence less Dyas United (D.C.C.A.1977), 827, years peni 832 cert. denied 434 more than fifteen in the state tentiary. U.S. 98 54 L.Ed.2d 464 The rule of law which this court S.Ct. (1977). note there particularly We has in a earlier hold articulated number of prove was no offer to state of the ings if a sentence is within per pertinent knowledge art or scientific limits it will disturbed statutory not be opinion mitted a be asserted reasonable appeal absent clear abuse of discre expert, suggestion and the of his State, Wyo., tion. P.2d 803 Eaton v. 660 State, earlier occasion (1983); P.2d Wyo., v. 658 Taylor hearing contrary. motion is to the State, (1983); Wyo., 1297 Daniel v. 644 (1982); State, Cyrus Wyo., v. 639 P.2d 172 may, the Be that as it effort State, (1982); P.2d v. Scheikofsky 900 psy from the produce forensic State, (1981); Wyo., P.2d 1107 v. 636 Jones appellant. chiatrist abandoned State, (1979); Wyo., P.2d 378 v. 602 Smith argument concerning objection oc (1977); Wyo., v. 564 P.2d 1194 Daellenbach day. trial curred at the close of on one (1977); P.2d Wyo., 562 679 Cav Despite the it would court’s statement that (1973); State, Wyo., anagh 505 P.2d 311 v. willing to to further matter listen (1927); State, Wyo. 532, Bird 257 P. area, psychiatrist never was recalled to Sorrentino, Wyo. State v. speculate to what the stand. We cannot (1927). 14P. appel may have led to that decision appellant recognizes following day argument lant. We do know to agreed plead pursuant the rule of this court appellant initially historic the sentencing is left sound exer- voluntary manslaugh which guilty charge to a of He by cise the trial court. in for a reduction of the of discretion exchange ter however, urges, man that the absence charge degree murder to first fairness of a slaughter conspiracy of the standards under which the and dismissal

1009 possi- against probation.” can be measured there is no the court has decided sentence demonstrating of The then bility of either an abuse court entered its sentence. discretion, or circumstances which manifest This sentence is within the statuto injustice, and or conduct which unfairness limits, ry in light and of the record of the public play. the sense offends of fair sentencing proceedings arewe unable to State, supra. Scheikofsky appellant v. The imposed that by conclude the sentence the urges adopted that there for State be the trial an court amounted to error of law Wyoming objectives the and standards under perceive the circumstances. We no by Supreme for review set forth Court agree abuse of discretion and with and Alaska, Chaney, Alaska in v. 477 State by affirm the imposed sentence the trial (1970)4 applied Ripley P.2d and court. We believe that same result (1979). Alaska, P.2d 48 reached if case were before applica- position appellant of the is that the Supreme Court of Alaska. objectives of these and tion standards there is proceed- Since no error in these to a this case must lead conclusion ings by such as that appellant, claimed there was an of the trial court’s abuse Judgment and Sentence of the district sentencing. discretion court is affirmed. imposed At the time sentence was had judge the record discloses trial BROWN, Justice, specially concurring. presentence report read and considered a totally agree I majority’s with the excel- Department prepared by the of Probation I opinion. emphasize lent wish to by report prepared and Parole as as a well appellant every at trial received considera- Al- the National and Center Institutions to, tion he was entitled more. and options ternatives. He had considered the I philosophical At the outset confess to a and, sentencing available to him in in addi- people against bias who take the law into tion, he had he reviewed communications suppos- their own hands and execute their public had received from members of the particularly opposed ed tormentors. am concerning the sentence. The trial court considering news, patricide. After fully aware of all the circumstances editor, particularly letters to the I conclude surrounding this crime and the character represent contrary that I must a view appellant im- at the time sentence was public. that of the posed. The trial court found that the ver- handsome, Appellant personable, intel- jury properly entered dict reflected ligent ready tongue. and He is an all compassion appellant also their for and boy, except predi- American has a rejection theory their of his of self-defense. Appellant patricide. lection toward expounded on the factors various story caught imagination incredible had reaching considered in its sentence public. the media and purposes and concluded that “for the law, recognizing supporting society’s thought killing Richard his father about protection, many for its for other 16. discouraging times before November On the persons committing plans 16th he made for the acts similar elaborate execu- satisfy lay yours, and tion. He in wait an hour and one need to trust half, public justice opposed private justice, blew his whistle to freeze then ROTC Alaska In State v. in offense, protection "(i) To "(ii) fender sentencing length, P.2d — To facilitate court articulated correct the by affording the character of the having Chaney, review: public regard sentence which is excessive supra, rehabilitation of him an interest; to the nature following 477 P.2d at offender, and the opportunity objectives the of- both rational "(iv) cess; and "(iii) assert sentence; ing cation increasing abuses To To grievances of criteria for promote promote the fairness of of the just.” respect sentencing may development sentencing law sentencing pro- power regarding which are correct- appli- years beatings. She repeatedly, propelling fired teen ruthless was He his victim. body. going His first com- into father’s afraid that the deceased was to kill lead his slaying he did it hand, after was that ment her son. a few On other hours case of revenge. This a textbook for slaying, dispute had minor before the she first-degree murder. with Richard and told her husband that her her, knowing son had sassed that her son killing appellant of his jury The convicted punished. informing After on would be voluntarily upon a sudden heat of father Richard, evening she went out for the for one and one- passion. lying If wait the tender mo- her husband celebrate passion,” a “sudden heat half hours is they going ment first met. Before out frozen in appellant must have been then longest Mrs. Jahnke threw her arms around her This must have been time. husband, him, history. hugged kissed him “sudden” and told good him that he to her. she loved and was appellant employed the his defense Yet, was the man she feared would kill this oldest, most successful most common and her child. put de- He tactic homicide cases. largely strategy was on trial. His ceased gunning for Richard’s avowed motives a lesser he was convicted of successful as changed during down his father have this offense when the uncontradicted evidence depending upon his forum. ordeal While pointed only to appellant’s admission he in an excited state he told his murder. he girlfriend’s father that did for re- appellant charac- produced by Evidence venge. While still exhilarated he told Offi- cruel, as a sa- terized the deceased father Hildago past things. killed cer he for Experience, com- distic and abusive man. expressed briefly changed Then reason his of Mrs. Jahnke mon sense and conduct and he claimed self-defense at trial. sup- to me that the indicated says did it his Richard now for mother port greatly of this characterization was He at a later trial he killed and sister. said no one at trial exaggerated. There was him from “stop his father to further abuse All wit- speak for the deceased. defense family.” they liberty say anything were at nesses society Many in our are fascinated deceased, knowing that wanted about the folk out of our violence. We make heroes Defense they could not be contradicted. written criminals. Ballads and odes are de- to make the witnesses had a motive more murders. The bizarre or un- about man; they wanted to ceased look like a bad murder, prolifera- greater usual appellant’s fa- make the believe songs, poems pub- The tion books. By no deserved to be executed. ther lic’s sort of literature will not thirst this imagination was a case stretch of the If a person be stilled. wants become barricading Arming of self-defense. wealthy, just even famous and needs one- lying in wait for one and himself grotesque commit a crime. return is not half hours for father’s self-defense under law. Alphonse Dillinger and Ca- John Herbert history more pone will live our than eminently trial fair with judge men, years. contempo- hundred Good one in his ahy doubt appellant and resolved Capone Dillinger already are raries of Appellant not entitled to an favor. forgotten. “The evil that men do lives self-defense, nor was he enti- instruction them; interred good is oft after included to an on the lesser tled instruction Shakespeare, Julius their bones.” Wm. manslaughter there was offense of because of), (The 3,Act Scene 2. Tragedy Caesar instruction. justifying evidence either no However, being abundantly cau- judge was entitled to Perhaps Richard Jahnke gave tious these instructions. compassion age. of his because compassion when sus- meted out Jahnke’s at trial is

Mrs. guilty manslaughter, despite four- found him pect. she On the one hand describes the fact pointed Appellant’s that the evidence mur- proof offer of indicated Dr. McDonald, judge’s der. The sentence psychiatrist, evidences fur- a forensic compassion. ther testify He could that: have sentenced Richard to not years, less than nineteen diagnosed 1. The doctor had Richard eleven months and twenty-nine days. The child, Jahnke as a battered based on inter- judge jury commended, and deserve to be views with Jahnke and other information. harangued rather than public. They 2. Battered children differently behave intelligence, demonstrated good judgment children, from other perceive and things compassion. differently from other children. 3. child, Because he was a battered ROSE, Justice, dissenting, with whom Richard reasonably Jahnke believed him- CARDINE, Justice, joins. self to be in danger night immediate on the dissent, join will in Justice Cardine’s father, he shot his perceived himself as separate dissenting and herewith offer a acting in self-defense. opinion. in, When the evidence gave was court following self-defense instruc- An Introduction To Dissent respect tion—an instruction with to which I exception: take no This hap- case concerns itself with what pens happen can happen did —or —and “INSTRUCTION NO. 8 cruel, ill-tempered, when a insensitive man roams, gun hand, through years “If the defendant had reasonable family life battering bully bully as a grounds —a to believe and actually did be- who, babies, since his two children were danger lieve he was imminent beat both of them and his regularly wife death bodily or serious harm from which unmercifully. Particularly, appeal this only by he could save using himself dead- 16-year-old has to do with a boy who could ly assailant, against force he had the longer stand his father’s abuse no right —who deadly to use force in order to could not friendship find solace or ‘Deadly defend himself. force’ means public services which had been established likely force which is to cause death or aid, purpose providing for the comfort bodily serious harm. and advice to family abused members—and “The circumstances under which he place go who had help no or friends to pro- acted must have been such as to either him protec- or his sister for whose reasonably pru- duce in the mind aof responsible tion he felt and so—in fear and situated, person, dent similarly fright, fragmented emotion, and with Rich- person reasonable other belief ard Jahnke shot and killed his father one kill him him was about to or do serious night in November of In these bodily danger harm. The must have courts, and, pleads Richard self-defense apparent, present been and imminent given since the a self-defense appeared or must have to be so under instruction, it must be conceded that the the circumstances. judge recognized trial this as a viable de- believed “If defendant theory fense under the evidence adduced at danger in imminent death or serious trial. harm, bodily deadly and that force dissenting opinion, agree- necessary repel danger, besides such aif ing with Justice Cardine that voir person dire was reasonable in a similar situa- limited, erroneously I find error in the ma- seeing knowing tion the same facts jority opinion’s conclusion that the trial justified believing would be himself properly proffered excluded danger, justified ex- in similar he would be pert psychiatric witness’ using deadly force self-defense. jury’s consideration. justified though He would be even question here, place in were those of the danger proved later

appearance of similarly actually person neither situated for and there was reasonable befalse person part provides the other purpose the law of self-defense com- whom bodily him serious kill or do to him fort.2 danger it nor imminent harm explanatory assistance of a Denied the done, necessity nor would be actual witness, qualified though it as expert is deadly be used self-de- force permitted Richard Jahnke had not been to person so acts the fense. If confronted necessity at Since the defend himself all. upon appearances such in self-defense perceived to or from defend oneself others belief, right his danger honest of danger subjective is considera- imminent a is same whether the the of self-defense but one which is an tion for the defendant3 merely apparent. is or On danger real how objective jury,4 concern of the could hand, a fear of death or the other bare boy an young this structure understanda- not to bodily harm is sufficient serious though the record ble defense when—even 1 killing person.” another justify the of had age that since two he discloses been added.) (Emphasis battered, bullied, frightened and emotional- that, of my since the issue position It is was, nevertheless, ly de- traumatized —he cir- self-defense in the unusual behavioral explained opportunity the to have to nied subject a which this case is cumstances of reasonably people how abused han- mysteries pro- of is cloaked in the abstract dle their fears and anxieties —what their jury, deprived knowledge, the fessional how, in the dark mo- apprehensions are— an of how battered expert’s explanation aloneness, perceive they ments of their the people perceive respond to the immi- how, danger imminence of in re- —and expected danger, could not be nence sponse, they right undertake to assert their quantify did understand and not of self-defense? years years impact residuals my conception that Richard Jahnke It is lifelong battering which had been Wyoming could, -properly came the courts of Jahnke. The fate of Richard who, asking judged as one therefore, expected be be not know—or —not acts, place question, at time the time and know—whether " * * * Wyoming The assault must be of such character 1. instruction is identical to the This self-defense, Jury on Pattern Instruction as to create in the mind defendant is pattern danger carries "Comment": instruction belief imminent reasonable necessary life must that the threaten- it is to take the of his "The defendant believe and that imminent, danger danger ing protect but does is in order to himself from assailant harm; v. be imminent in fact. Parker not State, great bodily death but is not 491, 552, (1916). Wyo. 24 161 P. 555 necessary danger be in imminent. fact self-defense, the defendant’s belief “To claim such as to create in the circumstances are If necessity defending himself must as to mind man an honest reasonable belief grounds. reasonable A have been based on and, danger, that he then in such imminent is subjective itself entitle de- belief does not assailant, believing, he is so he kills his excus- justification of self-defense. fendant to use added.) (Emphasis able.” 381, 796, State, Loy Wyo. P. 799 v. 26 185 given rule reflects the sense of The Parker (1919). case, supra. in this It is self-defense instruction presents theory "When the evidence apparent Radon, Wyo. v. 45 also consistent 383, State (1933), danger, which limits 'an instruction 177, P.2d 182 which is discussed 19 right to actual or real dan- of self-defense in detail infra. Radon, ger v. 45 alone is erroneous.' State 383, 177, (1933).” Wyo. P.2d 182 19 381, 390, State, Loy Wyo. 26 185 P. 4. In States, D.C.App., 2. infra v. United See Ibn-Tamas (1919), this court said: (1979) "beyond ken " 407 A.2d 626 for a * * * he is Defendant must not believe average layman” discussion. danger, be but the circumstances must such grounds for be- reasonable afford Wyo. 161 P. In Parker v. lief.” (1916), we said: receptive his 14 be insanely unreasonable5 —but that such a defense an on in- years beatings formed if and uncivilized emotional basis its members are be permitted explained by qualified expert to hear abuse be from those under- who passed people stand judgment ques- order that how brutalized —otherwise respects in all “reasonable” tion which asks whether not his behavior —entertain what, them, is might a belief that are in sanely won- reasonable. One danger imminent from which expert there no why der our courts admit —since escape they, and how their embattled regularity with commendable psyche, responsively behave? sanity the issue of when that is the plea insanity ultimate fact—and the —it of Reasonableness Self-Defense acceptable psychiatrist testify a is not about behavior such that with whether as As can be seen from the instruction which this ease is concerned and which is gave which jury, the court the supra, and lay jurors unlike that which would under- contrary holding of majority,6 the is, nevertheless, expected, stand to be the requires the law that Richard Jahnke must sanely typical of a reason- the behavior of “reasonably have acted as a prudent per- person able in the or acting same similar son, similarly situated” would act—before not, however, circumstances. Richard was not, self-defense is It available. is how- permitted impact years to have 14 the of of ever, necessary perceived danger that the alleged upon abuse his self-defensive be- present must in fact be and imminent—it explained jury through havior the the to appeared need “have to to be so under testimony though of psychiatrist a even case, the circumstances.” In this there- only way this is the fallout from brutal- fore, the appearance danger the of imminent ity can be communicated. present in must have been the mind of the defendant, court not the trial or this court. opportunity, appellant

Denied this the jury was forced to submit his case to the that, ordinary concede self-de- consequently presents with what itself as a necessary not fense fact situation it is to ridiculous, unbelievable, outrageous de- expert rely upon testimony explain the input, possi- Without fense. medical what perception the at the of accused moment of juror lay ble sense could it make to a or he or use crisis when she resorts to the nonprofessional person other for the deadly Particularly true force. is this urge citizen accused to self-defense where past where victim’s acts the of violence that, recipi- the the though evidence even which are are known to the defendant battering brutalizing by ent of untold jury’s made available the consideration.7 victim, because, surrounding the defendant nevertheless con- given This is so templated possibility past the use dead- facts and the victim’s acts of violence wait, hand, aware, ly lay gun force as he for of which the accused it is usual- lay any jury ly juror How within ken of the that there father’s return? could infra, prosecution issue 5. As will be seen insisted a self-defense issue. See discussion of this psychiatric supra. that the defendant’s offer testimo- ny plea was irrelevant since there had no been 3, State, supra In v. n. held it Parker insanity capacity or of defense, diminished latter given judge —which to be error for the trial to have argued, acknowledged it was is not instruction did not into self-defense which take Wyoming. judge prosecutor's shared the fact that the the dan- account the imminence of misconception grounds one of for because ger only exist in the mind of the defendant must purpose was that refusal the court believed the danger and we held that it is not law that the psychiatric was an effort to be See v. must in imminent. also State fact deficiency." "some mental establish sort of 3; Radon, supra Loy supra n. n. v. 4. case, second-degree Contrary held it rule of 7.In murder we the historic self-defense all error court to refuse consideration this and other courts which I have knowl- for the past edge, majority violence were must acts victim’s which hold defendant State, 24 be under “an threatened assault” be- known to the defendant. Mortimore v. actual or (1916), Wyo. P. infra. fore of his will raise 766 discussed the reasonableness conduct an in re- decision the trial court. Especially or was not assault either was either sponse which the defendant was this true in this case when the court’s justified in him- believing not justified grounds rejecting or erroneous the offer danger (discussion imminent and that self to proof taken into account are did not behave as a reasonable infra). Therefore, either did or my it is view that it was similarly when resorted person situated expert error not make testi- available cir- deadly force. In these use mony in such as those with circumstances cumstances, lay can juror call we here. are concerned experiences her to structure life’s State, Fla.App., v. Hawthorne words, In other when reasonableness test. court said: So.2d aware of is allowed to be made expressed by agree “We with the view assail- what the defendant knew about the Georgia Supreme Court Smith violence, evi- propensity ant’s and the Ga. 277 S.E.2d 678 State [247 the defendant’s dence is that back (1981) jur- insofar it concluded that ] against he looked down the wall as ordinarily ‘why ors understand is, course, gun, no need barrel of a there person suffering from battered-wom- expert explain up to call mate, syndrome leave an’s would not her deadly the resort to force was whether friends, police would not inform or and per- a not the of reasonable was behavior against aggression would fear increased situation, lay juror In this is able son. herself at ....’ S.E.2d 683.”8 place or at the scene and to him herself addition, prof- the exclusion and wheth- the shoes of the accused decide expert testimony fered in the case bar er or it was reasonable the defend- not policy runs afoul of the announced to killed or ant believe he be qualified courts of this state which allows a bodily harm he re- receive serious unless testify expert specialized to whenever the deadly In these sorted to the use of force. knowledge will situations, jury capable judging is “ n n * the trier of fact to under assist danger imminence of and reasonableness a fact stand the evidence or to determine It is response help anyone. without * * n .” 702, W.R.E. issue Rule like to in these circumstances that courts say composed are juries of reasonable expert may testify by opinion The “or oth- people people know who how reasonable erwise,” may “opinion and he base his or and, course, is this so. facts at or inference” on that were known behave— Further, 703, if Rule W.R.E. before trial. however, Since, a are involved with we upon facts data he or bases battering brutalizing factor in this case and reasonably re- opinion are those which are urges causally is con- which the defense field, experts upon by they lied need Richard nected the reasonableness of 703, Rule not be admissible evidence. conduct, appellant contends Jahnke’s W.R.E. confronted with an unusual proffered or not the self-defense fact situation characterized Whether so, the trier to psychiatric overlay. a This assist the of fact understand will expe- question Are life’s the evidence or determine the fact in issue becomes this: in- juror adequate to be resolved a common-sense lay riences of the to enable quiry or reason- which asks whether the untrained him her to make an informed qualified case, layman do the would be to determine ableness decision in this or possible degree facts of an area issue to the best without describe kind where having lay enlightenment special- juror requires assistance from an those understanding subject expert judgment, it was so ized matter. my witness? In F.R.E., 702, Advisory help necessary have the of an Rule Committee discretionary explanatory rules con- expert Note. These that was not even 2, States, Expert testimony supra infra. v. n. discussed essential in Ibn-Tamas United

1Q15 cepts comport position with the historical but I’m going get you, how you rid bastard.” Big In Long court. Horn Con- Wyo. 276, Company, P.2d struction boy protect felt he had to his sister we said: hysterical who was when the mother and left father for dinner. He did not believe general “The rule is that witnesses must place that there or anyone where knowledge testify to facts within their go to whom safety. could may opinions, not state their such mother testified that the elder Jahnke al- opinions being deemed irrelevant. There ways carried gun, and Richard believed rule, course, exceptions are to this he one night. had with him that Mrs. possess such peculiar as witnesses who Jahnke said that when the father said to knowledge, opinions may skill or whose Richard, going get “I’m you”— rid of be when the are received facts such was trying frighten “He him and presumptively the court without such maybe something do just else besides knowledge likely skill in- prove throwing him out of the house.” capable forming judgment a correct When Richard was in garage after relative the matter in hand without having guns stationed his father’s around opinion.” aid of such “backup,” the house for he reflected will, however, my purpose It here past confrontations with his father and he show that the considerations of Rules was afraid the father would kill him when infra) (discussed 703 and W.R.E.9 he returned and found what Richard had were, by large, even into taken guns. done with the Even contem- expert account the court when testi- plated these things, the drove father or, mony was if offered these rules were driveway. car into the said Richard considered, rulings the exclusion run con- go hug him tell wanted him he provisions Wyo- tra of the aforesaid him, loved but he remembered when he had ming Rules of Evidence. before, beating done this he had a received past experi- for his efforts. He knew from In contemplating problem overall the “stomped” ence that when his father after dissent, brings my initially which on it is him he in beating. that was for a He necessary be to aware of least these approached about his testified how father following facts: garage night: the door that Jahnke, boy Richard a sensitive who had “A. Yes. I remember he stomping. was life, any never been in sort in of trouble his stomped he down When the hall when he regularly had been beaten and unmerciful- really really and prepared was mad to ly years his father since he two old. was someone beat up, beat on one us. the night On the homicide he re- had kid, remember a little just sitting beating, fa- ceived severe and when his my My stomping in room. dad after me go ther and mother left the house to to me, stop hit I could to that never him. night, dinner that his father said: stopped “This time I him.” “I’m disgusted you with the shit turned hearing,10 In the doctor transfer the was you out to I don’t be. want to be here following to the effect: cross-examined get when I back.” “Q. you Did his father —Did he tell his The father said: also aggressive any father made acts toward do, “I don’t what I have I’m family care to him his return to the home going get you. evening? to rid of I don’t know that hearing Rule the W.R.E. calls for admission 10. A "transfer” was held to decide juve- expert opinion testimony whether or not Richard would be tried in it will the where assist transcript adult of this nile or ing court. hear- though opinion trier of even fact would part appeal record to this embrace the ultimate issue be decided. part court and was made a of the defendant’s proof. offer nor No, judge’s make sentence of not less than two didn’t

“A. he didn’t—He peniten- three in way years he more than the state other than the aggressive acts tiary. con- as Richard was So far walked. cerned, way he walked when this was defendant, his While the who shot father place. He beating about to take was process in appeared to be father’s him of his stomped. It reminded brother, choking permitted older his was But that was beatings.

behavior before introduce a limited amount of interpretation, sir. character of the pertaining violent pro- you that’s what “Q. Did he tell deceased, much of this kind of evidence shooting his father him into voked evidence of the de- was excluded. The garage door? through closed that acts offered to past ceased’s violent was that, thing I think was the knowledge “A. that show the defendant’s shooting.” provoked factor for violence and character of deceased brutality upon young Mortimore’s based is to be Since the defendant’s behavior We held personal observation. that such according to how judged by the fact-finders specific acts of evidence of violence which ap- facts the confrontation understand defendant and tend to are known peared to the self-defense defendant that the acted self-de- show defendant respon- perception whether case, or, as in in de- fense the Mortimore of ut- was reasonable—it is sive behavior another, admissible, 1 fense of Whar- importance possessed be most § ton, (10th Ed.), 63A, Criminal Evidence facts and circumstances of all the relevant the trial court’s exclusion of this either aware of which defendant evidence was reversible error. influenced his crisis behav- which otherwise required in order that past ior. This is spe- said that the Mortimore we qualified made decide fact-finders be cific acts of violence of deceased should justified in be- whether the defendant was explain the defendant’s mo- be admitted danger present lieving reasonably might what tive and way in a which excuse his danger.11 imminent apprehended as We referred deadly It neces- use of force. is therefore 16 Okl. 86 P. Territory, Sneed sary jury, the usual self-de- the Oklaho- where Ann.Case prosecution, fense be aware the victim’s held kind of ma court propensities violence of the de- knowledge that it showed admissible knowledge, un- temper fendant had the defendant the violent impor- equally liability case it is usual self-defense deceased—and his to attack with- important— jury tant that the also be informed about This said was out cause. we may standpoint have of the de- psychological the factors which from the accused—in apprehended him impacted upon termining danger of defend- the the behavior the ‘ * * “ * an(j falls into ant. case of Jahnke v. State the defendant from which the of category; the latter case Mortimore might of the de- estimate the conduct 452, (1916), State, P. Wyo. 24 161 766 ceased, v. of the attack made the character category. the might expect falls into former upon him and one what that from his as well as which assailant State, supra 17- the In Mortimore v. necessary at moment deem might he the charged mur- year-old defendant was ” guard against.’ 161 P. at himself degree, first dering his father the charge pled self-defense. State, Boyle en- 97 Ind. appealed judgment quoted the We from v. defendant from (1884), Supreme where the Indiana upon guilty-of-manslaughter verdict 322 tered rely is forced to from the Court said whoever that he be relieved order underlying of case the for the offer at bar. 11. This is reason battered-person testimony the psychiatric

1017 appearance ought upon pose permitting of his assailant of to decide prove every allowed to of which not the to be fact whether or behavior of the accused knowledge, including past he had vio- reasonable self-defense of sense acts, permitting But there proof, singular lent this said the word. is a differ- court, ence between Mortimore and upon bears Jahnke. In “reasonableness Mortimore, the apprehension danger assailant was in very the defendant’s act choking his son P. when the defendant the time of the homicide.” at 773. shot 161 father, and, killed once the State, supra, ap- In Mortimore v. we past with the became familiar violent acts Harris, the decision in proved People v. 95 of the deceased which were known 87, (1893), Mich. 54 N.W. 648 where the Mortimore, young presented case Michigan competent court held that it was usual, ordinary and understandable self-de- past to show acts of were violence which fense situation. The scenario one became to affect the accused likely mind of the readily comprehended by which could be apprehension danger. to warrant his lay jurors they because were then confront- quoted Michigan as We follows: ed with a fact situation which was within “ ‘Suppose that the could have defense according their understanding realm of been in- shown accused had experiences. to their life’s fact, personal formed or had had however, appeal, this we do not have fact, knowledge of the tin another lay juror defensive behavior which the brutally encounter deceased had familiar, naturally yet a doctor stamped or bitten or kicked choked or psychiatric medicine was oppor- denied the antagonist, upon his can it said that be testify tunity to that Richard be- Jahnke’s knowledge such or information havior was of a battered individual materially apprehen- increased his * * * consequent perception whose of the immi- danger? guilt sion of must His danger per- nence of is different than the depend circumstances ception person of the nonbrutalized him, appeared and his mental condition explained who would have how the bat- necessarily materially must affected Here, responds person danger. tered any knowledge possessed young Mortimore, unlike with the father physical strength temper or violent process engaged appar- was not deceased, or his violence when in Here, ently choking being. another human ” anger.’ 161 P. at 773. driveway “stomping” up the victim was Goettina, 420, Wyo. v. See also State 61 familiarly menacing way in into the face 158 P.2d 875 Vel State the fears and anxieties of his son whom sir, Wyo. 161 A.L.R. P.2d years recog- he had beaten for and who (1945),to the same effect. “stomping” preface vio- nized the as a as in Even Mortimore v. where we Here, who, boy long we have a lence. 17-year-old boy shooting find a brutaliz- ex- experience, had come to know what to ing choking who was in father the act pect from this confrontation —who believed brother, in case a 16- the defendant’s beaten or he would be would be killed boy year-old shot and father as he killed his gun try escape not to he did because —who “stomped” up driveway the in a familiar go any place did not that he had to believe which the he be- manner accused testified not feel that he and who did could leave prelude beating.12 lieved was a to another taught unprotected sister his sister —who instance, Wyoming the each courts in case his father kill gun to fire the should permitted jury past the the to know about in he believed him—all what to be his acts against savagery violent of the victim of which the further defense which pur- past experience surely were the defendants aware—this for knew from would trial, preparation supra by belief the 12. This is corroborated transfer- this dissent. Such 803(4) hearing testimony of Dr. McDonald as told to medical falls within the Rule diagnosis during hearsay exception. the accused in See discussion infra. him medical necessity admissibility expert psy- jury this behav- and understand come. Could the chiatric to show whether requirements of falling ior as within the Richard physical mental and mistreatment help without the self-defense instruction it suffered made reasonable Jahnke The expert psychiatric witness? from an circumstances—to him—under all relevant asking question is to it. answer as he did. behave Therefore, ordinary in the self-defense Testimony Trial Mother The of Richard’s psychiatric are no situation where there record) (Summarized from the permit- implications and where Jahnke, knew about ted to know what the accused of the deceased Maria wife victim, there of his father and mother of Richard and Deborah the violent character Jahnke, testimony touching testified that on November expert need be no father, night Richard shot his she be- the defendant’s the reasonableness of argued. and Richard had The father came circumstances, these are havior. In normal home, it heard about and started “to beat things jurors fathom for them- can my to up begged on She father son.” However, beatings selves. when crying, leave Richard alone. She was the ac- years may have—or have—caused the father told Richard that fear, types anxiety and cused to harbor * " * * get he wanted him to out of apprehension with which nonbrutalized get him.” going house or he was to rid of in the juror is and which result unfamiliar taking unusual defensive measures 15-year-old Richard’s sister Deborah came circumstances, which, might ordinary and the elder Jahnke called defense premature, excessive thought about as “pimple-face” told her her “bitch” and escape who lacking in efforts those or go to father her room. The then went anxiety the fear and are uninformed about got gun out of his room and the holster. permeate the world of brutalized— going out for Maria and her husband were necessary ex- testimony is expert then dinner, they left elder but before battered-person syndrome and the plain the pinned on floor Jahnke Richard down they way people respond to what these “he punched him.” danger to be the imminence of understand The had the father mother observed employ explain propensity and to their slapping boy punching and since deadly conduct. force their self-defensive years old— child two “ * * * information, is then Given this sjap him on the pyngjj qualified decide reasonableness of back, punch head and him in the slam time defendant’s acts at the self-defense against him was around.” whatever place question. question, father night On the Richard’s and said “he wasn’t called him a “bastard” Beating Evidence He anything, he was useless.” worth beatings administered the elder saying ever had been this to children family are not against his members Jahnke name-calling they were little. The since opinion in the majority described but might day for striking happen every describing presence need because their period then there would be a awhile and viability central to the of Richard Jahnke’s physically confront the when would This is because plea of self-defense. so the same children. He treated Mrs. Jahnke asks they speak question He way usually front of the children. — Richard, place the time and “spick, whether kinds of call her a a slut—all father, and killed his reason- fa- when he shot When Richard found his bad names.” deadly necessary occa- ably beating upon use his mother one believed ther Arizona, danger great his mother’s prevent imminent he came to force to sion got up It is where bodily and his the father harm to himself sister. defense and floor, beating pinned testi- had mother necessary he also recount Richard, up “very him caught evaluating the beat mony purpose badly.” pinned kept office, He him they down and where met with an officer and head, punching him worker, “on the on the back.” a social after they all went primary Richard had been the focus of her home. The father said he would never husband’s assaults ever he since was a forgive reporting Richard for him to the boy. boy little sheriff. cry “would and scream and run into his cross-examination, On describing room.” remarks made her to her husband son Sometimes the elder Jahnke would chase night killed, her husband was Maria him pin him down him. and beat As Jahnke testified: older, got Richard punch the father would “Q. Is that you you what meant when

him harder. He would hit him with a saying Richard, are going said to ‘I’m closed fist get you,’ to, rid of going meant he was “ * * * as n Could kar(j |-ajg possibly hit going told Richard that he was to find * ** him. On his back and his head.” place another for him to if live he didn’t living like you home? Is that what report- There came a time when Richard are— ed to his mother that the father was “fon-

dling my daughter, already and told him I “A. No. He going him throw daughter knew about it.” The already house, had out of the and when he said— reported it to Mrs. Jahnke and she had “Q. Well, now— spoken to her husband about it. “A. get Meant rid of him. try- He was boy ing frighten

The Jahnke maybe had trouble with him and to do grades reported something to his mother else just throwing that he besides him could not concentrate because of what was out of the house.” going on at home. referring He was to Mrs. Jahnke testified that she was afraid

“[m]y husband’s violence toward him.” go to the beatings authorities about the gave her husband her and the November children be- 1982 was “ * * * cause he telling threatened her with usual, day, a violent my authorities what a bad mother she was and beating up my husband was on son. that the authorities would take her children my daughter punched And came and she from her. The witness testified that one of her father the shoulder and said to beatings the worst the elder Jahnke had alone, leave her brother that she was given ever Richard inwas Arizona when he seeing tired of him be so cruel to him.” him body beat all over the with a belt occasion, On this strength.” “all of day May “He punching him with both of his office, when Richard went to the sheriff’s hands, and he had him pinned down in beating he had received just which was family really room and he was hurt- as bad as that which he had received in ing him very.badly.” Arizona, was, occasion, and he on this tak- being punched Richard was in the back and pictures en to a doctor where were taken of in the head. his bruises. 2,May day 1982 was a memorable Mrs. Jahnke was not sure whether her family, Jahnke because her husband was carrying gun night husband was on the son,” “beating up my go and told him to However, shooting. she testified: to clean the basement. Then Mr. Jahnke always gun. “He carried a When he went down to the basement and beat the badge, govern- carried his he carried his boy again. cry- The witness heard Richard gun; ment and when he wasn’t—off ing, boy and then the left. called He later duty, then he would take one of his to tell his mother he could not stand it guns.” going more and that he go report death, sheriff. Richard did night they the father to the On of his when sheriff, dinner, went to the sheriff’s were out to Mr. Jahnke told her “ * * * throwing up against furni- For the first her he hated the kids. how much ture, ground putting her on the down life, Mr. discussed time his Jahnke pounding her.” counseling for his seeking possibility of family his relations. problem occasions, with in the he would hide On these he was under the because closet or bed Testimony Richard Jahnke The Trial he he became afraid. When was 10 or record) (Summarized thought he disgusted with himself because picture The witness identified Rich- protecting his mother. he should be picture of May It was a taken was testified that on one occasion ard it as a result of with bruises over his back my watching “I him. He had remember father first beating him. The father his down, pinned mother her face he ac- him a few times because slapped her head. floor. He had his knees on lying his homework— him of about cused pinned. just punch- her He had He was dragged by the hair and then he him ing punching her and her. She was up clean pushed him and told him to slobbering pleading and she was because The father came down basement. crying. pleading was she was She stairs, “goddamn he called him a where her, stop. telling He ‘Shut him to doing him of not his and accused bastard” guess up,’ say loud as he it. ‘I could whereupon Richard to job right, he threw like you don’t this?’ down, floor, pinning him and started I too much “And couldn’t take it. It hurt back, face and head. pounding him the just watch that. hitting open with hand and fist He was his hurt, “Q. Tell us how Richard. it boy he It hurt “as hard as could.” “A. It hurt so much. “inside”— hurt, “Q. how Richard. He Tell us it me he hated mentally “It hurt because beating your Why would mother. me so much.” you? that hurt thing all his life. happened This sort had reason, be- “A. Because was for no boy, he was a little his father would When hurt her. cause—to leaving dripping. All him for the tub beat “Q. Why you, would that hurt Richard? him life the father would hit “whenever my “A. loved mother.” “because, said, could,” I was Richard time, six, when five or One Richard was so ashamed of such a he was bastard toy father came boat and the broke me.” screaming after him. “Where is bas- leather belt to The father would use a yelled, the father and the mother tard?” child for whip Richard when he was a small in front of the closet door where she stood “walking my like mouth doing things this, boy. husband had hidden the For open.” “slut,” up, calling a “fat beat her her anyplace just hitting “He loved me spick,” saying was a “terrible she face, it, arms, legs, back.” beating, boy’s After fa- mother.” this him out closet and beat ther took the father to boy pleaded When him. “he hit me The elder stop, harder.” beatings these stop would Jahnke sister the He saw the father beat his a no- high pressure blood caused experi- when Saturday before the November pound. put and his heart to sebleed time he his father ence. One observed pants. “He was his hands down Deborah’s other members Mr. Jahnke beat feeling boy her out.” The described Once, family, including Mrs. Jahnke. way: part on the his father this conduct little, it made his father when Richard “Q. you your sister? Could see his mother asked him to drive mad when Yes. "A. store, grabbing the and he him saw “Q. looked? you Did see how she mother sister, my “No,” A. looked was tell She so scared. She ‘Just Dad tell him you.’ And was to touch shaking. stiff. She was Mom not pretending anything. like it wasn’t even my “And sister did. mean,

“Q. you What do Richard? “Q. your She told father not touch her? just going “A. saw it on She but was cooking.

and “A. Yeah. I not in the—” of things. “Dad would do a lot Like asthma, Richard had and his father shower, taking would he’d when she get would mad because the had child always have walk in bathroom cough, and on these would occasions hit see His running. how the shower was him in the mouth. father would hit there excuse would be—or was some- boy and at him if scream he did not eat wrong pipes, thing with the see if it’s all of his food at the dinner He also table. okay. plastic made children eat with table her, disciplined “And he when he would ordinary utensils because he said that the up doors, push against her her rub knife and fork too made much noise. breasts, grope her breasts. to May Richard testified 1982 inci- “And would to me it. Deborah talk about again. dent He had been beaten his She me she told was scared. basement, father whereupon he told “Q. Richard, you did anything see else? go hunting his father that he would “A. One time— they planned. He had said: going hunting trip

“I’m not on a you. a crazy you’d You’re such lunatic “Q. you What else did see between probably kill me.” sister, your your father and Richard? then, And father returned where nights, time, period my “A. At for a Richard was and beat him more. some He dad tuck I would Deborah into bed. then him he way told that if did not like the remember one time I looked into being he was treated leave home: my laying top my room. I saw dad on you the hell If “Get out house. sister. here, don’t like it leave.” “Q. you you did think when What saw grabbed Richard ran shoes and bare- that, Richard? footed out of the house to ROTC in- oh, “A. I thought just play- At first he’s structor’s home. He consulted with the ing game, playing around. and and instructor called mother told going her he the sheriff. The “Q. you you How did feel when saw boy called sheriff then went down you you that and how did feel when saw they office to his said would call things you those other testified to? objected, the elder Jahnke. Richard be- disgusted. I “A. I felt knew it was cause, said, he was afraid his father my wrong for father to stick his hands kill him. why I pants. thought down her At first father, mother and sister came to doing my is he that. I remember when office, family where sheriff’s I sister and talked. said— She presence shown to a room out of the “Q. Richard, you try stop did ever officers, boy and the testified that his fa- you anyone? that? ever Did tell yelled, ruin- ther was furious and “You’re mother it. my “A. I talked to about ing marriage, you Richard my bastard.” “Q. stop? And did it testified: sister, said, angry up I not the My got my

“A. mother “And stood ‘I’m wearing marriage like your told her that it was fault for cause of this. her your marriage my my all those shorts. She said it was Was fault —when on me I was a you beating fault for all that. And she told were when sister’s It’s sister, you’ve done to me. my beating you all beating baby, on little become friends. going to too late. We’ll never you are my Now mother? ” you are enemies now.’ marriage We forever me for the blame have.’ Saturday shooting, On the before hap- said, T don’t care whatever “And slapped pushed had Debo- elder Jahnke get hell out of pens you. Just to down, fall heard her where- rah. Richard ” here.’ his and saw his upon he came out of room hair,” he “grab by her dad Deborah day because returned home Richard my yelled, “Leave “hitting her.” He jail was put him would he was afraid alone, bastard,” whereupon fa- home, if sister afraid that and he was a detention Richard felt punish, ther started to chase Richard. to not there for his father he were his proud help he was able to sister. on his out his frustrations” he “take would thought of that he had often mother. He admitted and his sister shooting father after beaten his incident, worker a social after this Soon evil.” “[bjecause he was so and, according to Rich- came to house All he was “He hated us so much. had ard, him but he told lies about his father hate.” he them was to correct because was afraid again. him would beat

afraid his father leave, he why just didn’t When asked he answered, on a hunt- related conversation Richard place I to no to go? “Where am There’s ing trip when his father said: “ go.” what, Richard, my job I ‘You know ass-holes, a a lot of lot have to handle tell teachers or He was afraid to his ass-holes, just it fine. When I handle but beatings that his father friends about family, I know. It’s it don’t comes to was gave family his and he afraid members said, just of these lose it.’ He ‘One him. they would not believe —I Richard, just to hit going I’m some- days, shooting, Richard night On to goddamn going it’s kill one so hard ride fought. He wanted a and his mother And then they’ll deserve it.’ them mad, got open an house. She to school me, if he glared, as was he looked at marriage. ruining him for her blamed person, Richard.’ saying, ‘You are that I telling that was a bastard.” me “She felt, “Q. you what Richard? Is that table and Suddenly, Richard struck the go I didn’t Yes. After that was—I “A. “really an- said, up.” got she “Shut Then trips him anymore shooting be- on him, dog food at gry” and threw can I afraid. cause was her, she hugged hit but him. He I everytime was before I noticed “Once her exploding.” When husband “kept something he shooting pistol him, home, it got said “I can’t take she to pistol ready, he would have it his have Richard, bastards,” they’re any more such loaded, I standing aside. hand and crying, telling him then started she going he always that was worried her, saying that really nasty to “I was hated me so much.” me because he shoot my then “came fault.” The father it’s all Richard’s room and stomping down” to occasion, Richard was beaten On one hitting him. started the incident at the sheriff’s his father after office, to his father went attend responded to the then' Richard Jahnke nosebleed, when Richard said: way: following in this examination “ “ much, really me so it you ‘If didn’t hate ‘Being my wife?’ disrespectful great, We could have been Dad. could hitting says, He ‘You ass- me. Started been friends.’ here, get like you If don’t hole. Speak

“Q. up, me, Richard. T care what hell out.’ He told don’t Said, I T care what friends, do.’ don’t I have to said, I could have been “A. ‘We you. rid going get I’m have to do. forgive I it’s too late now. will never but how, get going hugged my goes, I but I’m “A. don’t know She father. She ‘Oh, good are I you you.’ so to me. love you, you rid of bastard.’ said, go And ‘Let’s I he to dinner. can’t my sister my “That’s when mother and sight stand the of these bastards.’ said, ‘Where my came to room and she they got they got “So their coats and going, going, he’s I’m too.’ together, got their shoes them on. And her, said, “And he went screamed at Dad, Mom out just walked the door. slut,’ her up, you ‘Shut and came after going leave, he before he came got way. hit her. I I don’t know up against back and shoved me just stomped I He down how did it. off me, disgusted wall and told ‘I’m get the hall. I her to room told you the shit turned out to be. I don’t my and lock door. I went in room get you want to be here when back.’ and locked door. “They left.” while, “Then he back in a little came left, After the mother and father he door, pounded up my on told me to clean thought being trapped about in a brutalized goddamn mess’ I kitch- ‘that made in the escape— situation from which no there was en. away how his was get sister unable to this treatment —how Deborah had been hitting again. “He wasn’t started me I planning college way as “her out” but going pushing hit. So I him to be was going permitted was not to be to leave fists, dodging. away, grabbing his I was college. parents left, home for After his to hit couple He was able me a times. crying shaking, was Deborah and he came my “And mother into the room and said: stop ready looked like Dad was worry, Deborah, going “Don’t he’s never said, ‘Oh,

hitting me. and he called She you again.” to hurt pleas- martyr, taking me a too.’ She was protect He he felt testified he had his watching ure in me hit. beatings, his sister and mother from told go “And then Dad me to into the go, go he could not that he had nowhere to up grape juice. kitchen He and clean “[tjhey because didn’t believe sheriff way, door— stood stood in the time,” me the first and he felt his dad “Q. you, way hear What? able to talk out of it if he Couldn’t Richard. would be his go went there. He could not to his ROTC doorway “A. He I would stood so instructor, once and because he went there go through have him hit so he could this individual had couple me a more times. “ * * * everybody t0ld what had about my hit gathered courage. got “I I very pomp- happened to me and he was kitchen, couple I times. went me. At time we were ous towards cleaning up the started mess. enemies.” other house. “He was on the side of the Richard therefore felt he could not trust argument my fa- There was an between instructor. ROTC exactly I my ther and sister. don’t know just why just what I he did not run happened, what was said. When asked away, said he could saying, filthy not: up, remember Dad ‘Shut “ * * * woui(j slut.’ i probably have starved to place. I death some didn’t have “My there. I down mother was had been go. place There one out there. was no cleaning the mess. And was all she my grandparents would Not even smelling got that he her. It the flowers helped me. No one.” anniversary they was their 20th since pleased looked so and so first met. She Jahnke then described the sce- Richard she peaceful. he came back When place saw him his father’s nario which hugged him— He guns backup. around the house for one or “Q. taught Deborah how to use two Hugged who? “A. put dogs all the and cats in the Yes. them. He get hurt. He basement so would not “Q. happened you What while were kill him if he thought garage? his father would time because he missed him the first garage, thinking “A. I I was gun. thought carrying He his father happened of all that had to me. garage door. He described what closed “Q. Speak up, please, Richard. thinking doing he was about while was thinking hap- “A. I all that had feelings He things these were. Volkswagon I pened —what to me and saw the thought about up. driveway drive Dad turned into the my pain “All the he had caused me all lights and he turned off all the to his car motor, life. just park and the coasted into his place. “Q. you How did feel? said, ‘Oh, my “I saw—I God. Am I hurt, angry. I felt I felt “A. felt said, really going to do it? I can’t.’ I T

scared. I can’t do it. No. can’t do it.’ But as “Q. of what? Scared my garage dad toward the door I walked it, if I doing happen “A. what would Of it, thought, ‘If I don’t do he’ll see all the it. didn’t do guns thought, I around the house.’ First “Q. you happen? did think would What 'Well, drop just guns, I’ll all the us, Tell Richard. opens garage just when he door I’ll me, maybe thought he would kill “A. him, ‘Dad, hug him I’ll tell we need might mentally physical- kill he me — help. help.’ I need mentally. me ly. He would have killed “Q. that, Why you didn’t Richard? do “Q. by you What do mean that? Why you just didn’t do that? times, pain “A. All these all that he I hugged “A. I remembered when him me, gave everytime just forgive I would beating I him I when he was me. told forget. him and him, got stop loved that we have to that. us, “Q. pain Describe that for Richard. just hitting beating kept He me and me Helplessness, pain disgust “A. of thought, going for it. And I ‘He’s to see yourself. My towards father’s son was guns.’ get me with these He to all used first time in his going to be a man for the really anyone anyone if mad even would life. guns. got his ‘Here I’ve them laid touch “My always taught up me to stand dad over the house. He’ll us for all beat myself. I remember times he would for sure.’ me, hit me and tell ‘Go ahead. You even said, going “Then I ‘No. He’s never get open. Look. I’m can the first shot. any again.’ touch of us yourself.’ me. Defend I Go ahead. Hit whistle, my I “I remember had this com- always laugh at never would. He would sergeant major’s mand whistle. Used me. courage. At the last second I be- “Q. Why you yourself, defend wouldn’t sergeant ma- came a battalion command Richard? tough. tough per- I jor. It was was a “A. I was scared. anybody. son. Don’t take shit from I I that from “Q. remember learned ROTC. Scared of what? bad, opened “I blew that whistle. I fire and really “A. That he’d hurt me he every that I hurt me so much. shot fired huge man would kill me. He was a getting if I It hurt almost as was shot angry he compared to me. When he was also. temper he strong. was When he lost his mercy. “Q. walking up you your

showed no Did see father garage? “Q. thinking you Was this what were garage, stomping. “A. he was you about while were Yes. remember stomped the hall he Richard? When he down when really making really prepared proof explain mad and his offer of that to up, on one of us. I which Dr. testify, someone beat McDonald would beat the de- kid, just being sitting attorney represented a little fense remember to the court my My stomping after that the testimony room. dad me offered me, stop prove disprove hit that I could him. never “ * * n stopped time I him.” “This the reasonableness appre hension Richard Jahnke on the night Testimony Proffered question.” (Emphasis added.) Psychiatrist Forensic “reasonableness,” issue of argued McDonald, psychiatrist, Dr. a forensic counsel, the defense * n * “ * * * by pur- was offered the defendant go would to the fact that testifying the behavior pose about Richard Jahnke was brutalized his Richard was a battered children—that bat- May father in he was bru child—all as an to the triers tered aid talized his father on November 16th respect obligation to de- fact their had been brutalized whether or not this defendant —as cide many years past.” father for person reasonably on battered —behaved offer, At point another defendant’s 16, 1982, night but the November attorney submitted that the doctor would jury to permit court would not hear the testify opinion that it testimony. “ * * * emotionally that Richie Jahnke is suggests that The defendant his offer of impaired, that believes that Richie proof represented Dr. McDonald Jahnke ais battered child.” testify that: would attorney explained The defendant’s diagnosed 1. The doctor had Richard the doctor testify should be allowed to con- child, Jahnke as a battered based on in- cerning what Richard Jahnke told him dur- with him other terviews infor- ing the of the doctor’s course examination mation. for the Richard’s reason that statements differently 2. Battered children behave go “ * * * children, perceive things from other and the reasonableness of Richard differently from other children. of harm on apprehension Jahnke’s that * * child, Because he a battered 3. evening *.” reasonably believed himself to Jahnke be says This offer to me that the doctor’s danger night in immediate on he shot testimony supplied would have such under father, perceived his and himself as act- lying psychiatric information as have would ing in self-defense. permitted to resolve the issue of way majority In view of the intelligent in an and in reasonableness opinion psychiatric-testimony resolves the formed if the offer is Even read manner. (infra), necessary it is to examine the issue say testimony would have proof offer of and the trial defendant’s touched on the ultimate issue of the reason response. judge’s ableness of the defendant’s behavior place time question, longer this is no Attorneys’ The Defense Offer of Proof prohibited within the least context of —at trial, attorneys At the for Richard law of this case. See “The Ultimate testimony Invading Jury,” offered the of Dr. Mc- the Province of the Jahnke Issue— Donald, pur- opinion, particularly infra Rule psychiatrist, forensic for the 704, W.R.E., providing backdrop jury’s for the infra. In Ibn-Tamas v. pose Unit States, 407 A.2d D.C.App., as to the of Rich- ed decision reasonableness case, night battered-person ard Jahnke’s behavior on the of No- self-defense the court vember when he shot his father. In said: As law of 13. "reasonableness" self-defense. contemplated

“ * * * was, fight he he when ‘ultimate but would back As to the first —the picked rule—Dr. Walk him. he ‘ultimate issue’ other children on When facts’ or express opinion Arizona, going poor an er was not was a child received Mrs. question school, whether improved on the ultimate when grades in but these reasonably be actually and Ibn-Tamas His Wyoming. he moved to self-esteem danger when she shot lieved she was in improved an interest when found Rather, this would expert her husband. leadership in this roles ROTC and assumed background merely supplied data school, not program. high In Richard did help that crucial determi make illegal marijuana drugs use or other —did Hearst, 412 nation. See United States drink, history had not smoke or and he no I). (N.D.Cal.1976) F.Supp. {Hearst juvenile delinquency. has, event, the rule ultimate issue The described an extensive doctor back- time, prohibition to a over been reduced receiving physical ground of Richard abuse expert questions an against memory his from father. His earliest effect, case ‘which, whole submit him, beating his his father mother decision.’[14] Id. expert to an witness ages Between the of four and his sister. such here.” There is no risk day there was seldom a without some punishment by his The sort father. Transfer-Hearing Testimony punishment frequent became less between the court proof In his offer —which every day, but 12 and 15—more like other included doctor’s rejected attorney —the beatings there were more when his father rep- hearing transfer He was beaten with used fists him. kind that it was the resented couple every his father’s fists of weeks jury. be offered would between 15 and He be beaten may transfer-hearing testimony proffered cleaning things as the base- for such not summarized follows: be way along right walking ment the —for McDonald, highly Dr. an eminent and open spending too mouth —for qualified psychiatrist, forensic examined polishing his ROTC uniform. much time times De- seven between Richard Jahnke juncture, At one the doctor testified 23, 1982, for a cember 13 and December plastic to eat with the children were forced Background information total of 12 hours. did spoons forks because their father by Dr. McDonald was also obtained eating like noise made while mother, sister and others the defendant’s ordinary Dr. tes- utensils. McDonald staff of him. This included the who knew tified that Richard related that he would Home, Rich- where the Denver Children’s defending things his sister. beaten for like Rich- stayed, ard instructor at ROTC by If Richard would react to verbal abuse school, of his high ard’s and another one changing expression, facial the father also high The doctor school instructors. him. Rich- physically would abuse When reports materi- the sheriff’s and considered argument, an she ard and his mother had psy- by counsel. al furnished defense him report him a and would call “bastard” to be not Richard Jahnke chiatrist did find would beat him. to his father who spite of this one act of person, a violent 1982, beating a severe May On after violence, he not a threat and was father, in his he ran of the house his out shy community. As a child he feet, ran put then his sneakers on and bare lonely, neurotic traits. When but no home. five miles to his ROTC instructor’s he very young, he entertained house, sat the instructor’s thoughts was He outside of suicide his father because in, finally stupid discovered telling go afraid constantly ugly him how " ** * 14. was this the whole case question [submitted] ‘in effect It kind an intent a ” psy- second-degree expert A.2d at murder case that we held an witness for decision.' answer, in Smith v. chiatrist could (1977). Wyo., would have 564 P.2d 1194 It there the instructor. The doctor ex- times when the father would beat plained that children mother. who are victims of abuse are often report reluctant their Another reason for Richard’s fear of his

problems ease, to others. he Richard’s father was his father’s keeping habit of many years beatings believed for that child gun at his side constantly. He would take were the normal behavior for a father. He gun when he went to answer the door— was humiliated the abuse and even had would even gun take a to the bathroom. reporting trouble it to the ROTC instructor When he sat down on the couch he would relationship. gun with whom he had a close On have a thigh, alongside under his occasion, however, when he sat on the night the instructor and floor. One when Richard was he go Richard awoke to report went to the sheriff to some refrigerator. food He did not turn family abuse. The was then interviewed lights, on the because he did not wish to together, and Richard chose to return home family members, awaken the lights but the home, go rather than principally a foster suddenly came on and he found his father he protector because saw himself as the pistol eight with a about inches from his his mother and sister. face. One time when were hunting May Richard believed the visit to the rabbits, the father shot a rifle between two sheriffs office was though useless even his other up hunters who held a white handker- father him did not beat for a week or more. chief, whereupon the Jahnkes fled the reporting When he returned from his beat- scene. Richard knew the elder Jahnke had sheriff, ing put against a chair weapons throughout loaded the house and night every get door so his father could not very he was afraid of his father and what in. A week and a half after the sheriffs might do to him either with his fists incident, exclaimed, the father “That bas- guns. with his reported Sheriff,” tard me to the and would hearing, In his transfer the doctor took say things like other factors into account to reach his eval- “I’ll give something him that he can real- uation example, conclusion. For the beat- about, ly talk,” complain if is he can ings and verbal abuse had an adverse ef- implication being that he would in a fect psychological on Richard’s develop- condition that prevent boy him ment. He testified that the from talk- does not ability ing anything. about have the to handle stress that other young people age of his have and Then the again, abuse commenced ability regard he does have in this has shoving against father Richard developed come about as a defensive mech- wall, punching slapping him and him against brutality anism of his father. every day. around —almost On one occa- problem That was the on November sion, the father said he could handle the is, 1982—-that when mother turned on people difficult at the Internal Revenue him, blaming him for all the trouble with (where employed) Service he was but at marriage her generally, the home home he day could not and some he was kept calling and when she him a bastard going to hit someone so hard he would kill throwing things at him it was too much Richard, spoke, them. As he he looked at for him to He stand. felt victimized when talking who believed his father was about reported his mother him to his father that him. night reported things because she that he fondling Richard had seen his father had never said her. This about series in way, reported Deborah a sexual and had repercussions, together events and its mother, it responded to his who that she beating night his father’s him that and the already knew it. When she was home, father’s threat that he should leave abused, boy also came to the rescue of more was than Richard Jahnke could han- weapon addition, his mother with a according bat— In dle. to Dr. Mc- —baseball Donald, and he reducing beating was successful he was afraid of another he take a firearm with him when mother returned would his father and when went out. Therefore, taking of these all dinner. account, arm- he was under unusual “He was afraid that his father was

things into ed, he father was fearful that his and, him, pressure on the unbearable again got thump him when he evening of November up And he made his mind that back. so cross-examination: On happen again. let this going he wasn’t that Richard The doctor testified when “Q. you tell his Did his father —Did he and sister from protected his mother agressive any father made acts toward Jahnke, beat- and after some of the elder family him to the home his return attacking him, thought against he ings evening? that say he intended father but he did his No, didn’t make “A. he didn’t—He night question, weapon. use a On aggressive way than he acts other however, his fa- angry was Richard con- walked. So far as Richard was ther, doctor that he intend- and he told the cerned, way this he when was the walked father’s con- something do about his ed to beating place. He was about take He how he loaded duct. told'about him stomped. It reminded of his father’s fa- guns preparation for his arranged beatings. before But that was behavior plans were to de- return —that his ther’s interpretation, his sir. dialog like this: went fend himself. “Q. pro- you Did what he tell that’s words, Carroll) “Q. shooting him into his father (By In other voked Mr. through garage that closed door? you plans his and how he told what were that, plans expectation thing I he effected his “A. think that was provoked shooting.” factor that the return his father? to defend plans “A. Yes. His were that he was not The witness testified thought He against himself his father. retreating position two from his between up again him that his would beat garage father when he fired the shots cars sister, all so that first of up “stomping” and beat his the father came toward really he door. garage he said he didn’t know what through the doing he went when night his to also It was intention guns places. putting house various protect beatings his sister—the received fantasy that he was But then he had grew were severe as he old- Richard more reminded, it was of Konan think it often young he was was more er—when he’d something, I think Barbarian or open it was the closed fist. hand—later protecting man seen a film of this He his father. both loved hated home, weapons in I take it he had where go hug he father night That wanted to he, sense, every in a room. And so get say forget let’s about this—let’s wrong thinking something that if went arguments, together and not have these weapon protect that then there’d be done fights, beatings Richard had —but he it— particular room or saw just had received a that before and he (cid:127) “Q. something went When he said beating for at his efforts reconciliation. might go wrong, what did he think “fleeting magical He had this belief” wrong, you? did tell by saying to his fa- could all be resolved friends,” ther, you”— “I love him, it. If fired I take “A. his father “[LJet’s remem- response, sort of but then he “Q. me? Pardon beating just that he had received bered know, a, you If acted in “A. his father he had tried this on other occasions. when way rampage, went on the that’s Response to The The State’s Defendant’s put thought it. that his father He Offer of Proof restaurant. armed when he went (which response proof offer I don’t think he knew whether he was not, proceeding), the State father included the transfer but he knew often his (e)The psychiatric testimony that is argued able determine intent following not be received for these should and should aided in process not be reasons: by a psychiatrist according to our hold- (a) plea of mental There had been no ing Wyo., in Smith 564 P.2d § 7-11-304, deficiency or under

illness for reason that such W.S.1977; testimony province invade the would of (b) in testimony hearsay The would the jury. of is view the fact that it the evaluation psychiatrist prep- a of who interviewed The Trial Court’s Reasons For Refusal treating for trial is not the aration With respect proffered testimony to the testifying; physician who is psychiatrist, forensic judge trial (c) proffered testimony is irrelevant ’ ruled: to the issues before the court because “Well, the court isn’t convinced that actually urging defendant is dimin- what capacity recognized not was stated Dr.

ished which is to McDonald Wyoming been plea and there has no of clearly defendant here falls into the hear- insanity; say exception. (d) prior testimony Based on his at the “And I state that for the I reasons that hearing, doctor could transfer not counsel.[15] expressed have previously

testify deficiency to a or mental disorder plea insanity, if the even since he did presented, “I any haven’t been evidence establish

not his evaluation as acceptance standard; any recognized court’s the science based of of here, dialogue judge to which the refers is this: Federal Rules of Evidence which the Wyoming Rules Evidence were drawn Honor, I “MR. EPPS: Your believe that under they from. But under the Federal Rules deal Evidence], 803, Wyoming says, Rules it [of raised, specifically you've with the issue that following ‘The are not excluded the hear- and under the Federal Rules it makes no rule, say though even the declarant is avail- person gone difference not the whether or has specific exception as a able 803(5) witness.’ A is physician psychiatrist to a or a after me, 803(4), ‘statements —excuse for charged been with a crime. That is diagnosis purposes medical treatment.’ hearsay exceptions. still admissible under “Dr. McDonald that he has testified inter- Well, be, might "THE COURT: it but it I think pur- viewed defendant Richie Jahnke for probably proper plea would be under a poses diagnosis of medical evaluation but, guilty by any- reason mental illness things or— treatment. And that one that he admissible, way, I not be feel that it should get needed in order to do that was to a read- you guar- because I don’t think have the same ing family history. of his guarantee of antees. The that is that when "We would submit court that under to the person goes for treatment tells the doctor hearsay exceptions clearly admissible truth, bothering what’s him. Under these testify and he is allowed to that. guar- concede, think we have circumstances I don’t “MR. CARROLL: J would Your Hon- or, antee. exception hearsay that there is to the rate, “At think —I I don’t think it is hear- rule if the be relevant and say regard you matter. I think permissible to this what under of Law and the Rules stat- trying present are is some sort mental utes this state. Well, deficiency. you gentlemen, And I haven’t "THE COURT: know don’t think followed regard. exception it is admissible statutes in that under the rule, Honor, hearsay "MR. we because I think that the rule EPPS: Your have made no contemplates cian, somebody goes deficiency. physi- claim to a mental whatever, psychiatrist, doing indirectly. doctor or "THE COURT: You are for Now, something, just given my ruling. you “I’ve treatment he is involved I think before clearly go charged regard, and that he cannot are out of bounds in that after going a crime and then be and consulted I’m not to this. treated listen purpose having give you hearing presence examined “I will out of the the sole testify jury, you go this doctor in a trial. if want into an examina- you you doing indirectly depth you "I think are what tion in of this doctor as to what are directly. going not do all on the record. I will could do so it’s Honor, might argument.” “MR. EPPS: if we listen hear further Your have a to it and I’ll added.) my (Emphasis copy brief recess—I do not have n pre- child, admissible or not what can be is whether the defendant the battered I battered don’t pled insanity dicted the child. has the defense. Fulcher from testimony is believe that Dr. McDonald’s Wyo., P.2d the against an offered as admission court said: interest, may there be an ad- although trial properly “We hold that interest contained against mission received and considered evidence of un- alleged things told him or some of the plea a guilty consciousness absent of ‘not him by told to the defend- been by reason of mental illness or deficien- ” ant. cy.’ “And Mr. can’t cross-examine Carroll automatism, While that dealt case what he has told the defendant as to reasoning appropriate the bat- is doctor, so I see where cross-exami- don’t tered-person syndrome. noted We protector in- great in this nation Fulcher that manifest it- automatism could stance. person healthy in a perfectly self with a and the testimony “I believe that mind. 633 The P.2d at 145. defense in this opinions Dr. Mc- and conclusions of represented Dr. case that McDonald’stesti- Donald, by counsel, suggested as would mony would have shown that Richard jury. province invade the possessed per- Jahnke the mental or status believe, jury, is to “The I determine sonality youth of a not battered but did any fears, reasonableness kind. suffer a mental disorder of should determine that evidence of offer, According to witness would facts, the person who as to the testified that, group, have testified as a battered situation, their and draw conclusions. perceive things children behave and in a sustaining objections of “The court is predictable way, and that fear Jahnke’s (Emphasis testimony.” the state this apprehension night typical were added.) child, thereby leaving for battered say I read the trial court’s comments to jury re- reasonableness of his behavior for testimony proffered that the is refused for solve. following reasons: contrary Wyoming It was thus law for testimony

1. The is irrelevant because judge the trial exclude McDonald’s Dr. plead insanity or the defendant did not testimony express kind this basis. Both the capacity; some of diminished policy Wyoming statements and the hearsay; 2. It is concerning Supreme testimony Court allow 3. No evidence of the court’s foundation defendant’s mental or condition emotional acceptance of the science the battered regardless of whether or he has en- not introduced; child had been plea tered a mental To exclude illness. testimony prov- The 4. would invade the was, therefore, erroneous. such of the jury; ince case, Under facts of the is- theory of Richard Jahnke’s defense jury and sue of is for the reasonableness prosecuting at- was misunderstood subject expert not a testi- proper submit, now, torney, the trial court and mony. proper this court. This was indeed a case self-defense, proof and the offer Insanity Misconception grounds the recognized made on that bat- Both the and the trial court believed State oth- differently tered children behave than insanity urging an defendant was conditioning children—their er brutalized diminished-capacity defense they perceive danger mandates differ- opinion prof- thus were of the believed, ently that this defendant —and irrelevant fered boy expect- 16-year-old an abused to believe in these and similar circum- This court held that evidence of ed has stances, danger condition he was imminent defendant’s mental emotional per- when his father and that he Jahnke he shot did offer Dr. McDonald’s testi- acting ceived himself to be in self-defense. mony to insanity establish or form of so, county attorney objected Even the to capacity; diminished his defense was testimony the offer for the reason that this i.e., sanity, the reasonableness of the be- plea would be relevant to a insani- havior being of a brutalized human where ty plea no such had lodged that been —and plea Furthermore, the is self-defense. the testimony here—that the would be irrele- proof of the intent defendant’s at the time vant in case the at bar because the defend- place question purpose in was not the actually urging capacity ant is diminished offer, nor was the defendant’s intent pled defense when this had neither been ever in issue this It case. was conceded recognized Wyo- nor is such defense throughout the appellate trial and ming testimony the transfer made —that that proceedings the defendant intended to testify clear that the doctor could not that deadly against use force his father because suffering the accused was a “mental defi- he he danger. believed was in imminent disorder,” plea ciency or even if the had Whether that belief was the reasonable insanity. attorney been The fur- State’s 16-year-old, belief of a battered sane hu- objected ther the reason offer for man being was the his intent. issue—not testimony tendered It appears objections clear from these and, question argued, the of intent that rulings the the State and court misun- jury’s intent matter the is a resolution. theory derstood the of Jahnke’s defense supported argument by He this ref- latter and, thus, objections the to the offer which State, supra, erence to where we Smith hinged insanity misconceptions on the prosecu- second-degree held in murder the irrelevantly intent issue addressed the jury expert tion that the not the does need admissibility proffered testimony the opinion psychiatrist testify of a intent. were, consequently, erroneous. See n. 14. In proceedings, these mental state of The record reveals the trial court Richard Jahnke was not offered as a de- agreed concepts. these As has been (see supra), judge insanity noted n. fense as would be the case with an said that plea. the purpose psychiat- capacity understood Neither his mental nor his testimony ric was to establish “some sort intent to commit the crime was in issue.16 deficiency” mental and that the offer Rather, self-defense, specific defense might pled be relevant had defendant showing requires rea- Jahnke insanity but was not relevant where the sonably necessary believed it was to use plea guilty by was not reason self-de- deadly prevent death force imminent fense. great harm In bodily to himself. this situa- tion, offered, expert when objections rulings

These describe a self-defense, pleads the battered defendant misconception total of the defendant’s theo- interpreting as an aid ry applicable of his and the defense rules respect surrounding they of law thereto. Richard as affect- circumstances 14th, distinguishes 16. This ber had to kill or Mrs. factor offer in case no intent harm State, supra at 2, bar from offer in Smith v. n. Fancher. “ There, 564 P.2d at 1199. the defendant was ‘MR. TSCHIRGI: Well— " charged second-degree guilty and found mur- ‘THE Just a moment. He is in the COURT: psychologist der. The was asked about the in- his offer. I don’t if he is middle of know accused, dialogue tent of and the went like yet. finished “ this: Smith) you '(By explain the basis Mr. Will " doctor, ‘Q your opinion, could she have your opinion? intent, she, necessary formed the or could my opin- "'A I have used as the basis for attempt did she form an to shoot [sic intent] go perceive back and what Mrs. Smith ion—to Dorothy and kill Fancher at that time? * * has told me tests, my opinion, upon the "'A It is based proceeded then "The doctor outline her, she, personal interviews with jury.” same evidence before morning questioning, of what Novem- we are bodily The her of his belief. harm herself or children. ed the reasonableness secondary expert testimony would have been expert offered opportuni- order to asserted. Given aid the in- the defense offered terpreting surrounding seek to show circum- ty, the defendant would testimony that expert the men- stances as the reasonable- through the affected factor upon which he suf- her physical tal and mistreatment ness belief. expert testimony his mental state so that he which the of- fered affected actions; secondary fered was to the defense as- responsible for his not be could Appellant seek to rather, serted. did not show testimony the was offered to show expert through testimony the the that, 14 years he suffered from of because physical mental of her and mistreatment for him to brutalizing, it reasonable was mental affected her state so she pre- in remained the home—to have have actions; responsible not for her could be pared respond beating had that he rather, the be testimony would surely come promised would and been offered to show that because she place and that he at that time have believed suffered syndrome, the it reasonable her was danger. imminent was in for and, remained home have at State, supra, In 408 So.2d Hawthorne v. time, pertinent the have believed court concerned the at the that her and lives her the chil- life of of a battered woman’s be- reasonableness danger. dren were in imminent It is plea where the was self-defense. havior a precisely jury because would not un- the in argued as did The State State —even appellant why would derstand remain at the case bar—that expert in the environment that the tes- * “ * * the ‘testimony regarding mental in timony would aided them eval- in a criminal is state of a defendant case added.) (Emphasis uating the case.” a plea of inadmissible the absence 408 So.2d at 806-807. ” insanity.’ guilty not reason of jury It a not is because under- State, Fla., Quoting from Zeigler v. expected stand and would be under- (1981). So.2d why Richard remain in stand Jahnke would authority rulings cited as the The State and that he environment believe Supreme where the Florida Court the de- danger expert in imminent testimo- capacity had fense of diminished been held ny is to aid them in critical and assist and, insanity rise to the level of not to conditions, evaluating these circumstances court, testimony had psychiatric the trial patterns. and behavior court, The held to be been inadmissible. capacity distinguishing diminished and self- Expert’s Testimony Necessary Was defense, said: testimony necessary expert’s for “ * * * a We think there is difference and jury’s the court’s the under- offering expert testimony as to between theory standing of Richard Jahnke’s mental state of an accused in order the defense directly ‘explain justify criminal bar, In the case at the court denied the conduct,’ Fla. 4th [Tremain offer to introduce the testimo- defendant’s D.C.A., (1976)], 336 So.2d ny expert when he the said: expert purpose the testimo- which believe, jury, I “The is to determine the ny was offered in the instant case. fears, any reasonableness case, a this defective mental state on by evidence of a should determine that part of the is not offered as a accused facts, person who testifies as to Rather, specific as defense such. situation, and draw conclusions.” their requires defense self-defense ruling had the of not showing reasonably that the accused be- This effect at necessary deadly rejecting proof it was to use the offer of this lieved scientific prevent stage precluded trial but the offer great force to imminent death or junc- While it is any majority other conceded—as the of scientific points up question opinion had held that the ex- ture. trial court Once —that admissibility usually pert-testimony testimony in not need scientific did judge, matter discretion with trial decision-making process, aid in order to cannot be excluded for erro- final that became the practical as matter types neous reasons because these type of this word on this other offer bring faulty judgments would not testimony. play. of discretion into court’s exercise court my judgment It is that both the Todorovich, Chrysler Corporation v. See explanatory were in need of we Wyo., 580 P.2d 1123 where in- testimony by psychiatrist and that holding prevent voked rule error to reversible error not ad- court committed cross-examination where court’s reason county attorney mitting it. Since both the Here, at law. has or will was erroneous judge trying the presiding were seen, precluded the trial has ex- misconcep- laboring under the case while pert testimony for such erroneous reasons urging some tion that Richard Jahnke was expert explanation need as: There is no insanity mental-incapacity theo- kind of or circumstances; these there is in fact no explained only to ry, it needed to be —not insanity capacity or plea of diminished and attorney the county and but to the court irrelevant; testimony the the thus testi- the behavior of Richard jury that, while — mony province jury; will invade of the the ordinary the self-de- present Jahnke did exception fall the and it does not within situation, theory his of defense fense fact Assuming rule. that these are hearsay the his intent to was not concerned with either excluding reasons for the testi- erroneous deficiency. his the act or mental commit McDonald, it mony of Dr. cannot be said State, supra, In this court said: Smith that the court has exercised its discretion question, including the one relevant testimony appropriate when “Expert testimony will whether the which asks be subject inquiry jurors the of is one which the of assistance to trier fact. would qualifications experience of normal and this issue urge that the court’s decision on laymen as would not be able decide law, error a matter of amounted to the assistance of one without technical it out the realm of the which takes subject having knowledge unusual least, very At the rule. abuse-of-discretion skill, experience by or educa- reason testimony amounted to rejection particular 564 P.2d at tion in the field." discretion. an abuse of per- applicable rules of evidence case, necessary explain In it was battered-per- say case law tinent that, Richard because Jahnke “beyond syndrome subject is a that is son recipient battering had been the must lay juror ken” of the be brutalizing this record reveals this through expert explained the use testi- boy experienced had at the hands of young States, supra. mony. Ibn-Tamas v. United father, psy- his was—from a behavior Wyoming Rules of Evi- Rule 702 of expectable con- point of view—the chiatric dence, “Testimony by experts,” entitled There- comitant of that kind treatment. provides: fore, necessary explanation was scientific scientific, technical, specializ- or other “If of fact to understand the to assist trier knowledge will assist trier fact fact in ed and determine the essential evidence evidence or deter- namely, cause- to understand the whether there was a issue— issue, qualified a witness relationship boy’s mine fact and-effect between the skill, experi- was, by knowledge, and, expert as an if there abuse and behavior education, ence, may testify training, or of a reason- his conduct was that whether or oth- opinion the form of an or thereto in person behaving the same similar able erwise.” circumstances. W.R.E., 703, self-defense,

Rule entitled “Bases of inducement. entrap As in opinion testimony experts,” provides: requires guilt ment admission of elements, crime particular charged and all of its in “The facts data or case upon opinion cluding expert required which an bases an mental state. United perceived those may Watson, (3d inference be or States v. 489 F.2d 504 Cir. made him at or 1973). known to before the hearing. type reasonably If of a relied error, it to Hill court held under upon by particular experts in field (which Rule F.R.E. is identical to Rule forming opinions inferences 702, W.R.E.), judge for the trial to exclude subject, the or data need facts not be expert expert because testi admissible in evidence.” mony concerning susceptibili a defendant’s expert’s Doubts an about whether testi- ty to may influence be relevant to an en mony in a helpful gen- will be case should trapment defense. United States v. Ben erally favor admissibility be resolved in veniste, (9th 1977). 564 F.2d Cir. strong compelling unless there exist Hill, the court said: favoring reasons exclusion such as time or «* n n opinion, expert’s An based on ob surprise. Evidence, 3 Weinstein’s servation, psychological profiles, intelli ¶ 702[01], so, This is 702-6. because the gence tests, data, and other assorted central concern of rule is: Will the may aid its determination of expert testimony the crucial pre “* * * issues of inducement and trier of ‘assist the fact to under- disposition. purpose This is ascribed stand the or to evidence determine a fact expert Federal Rules of in issue’ ”? appears appli Evidence most It has been said: jury may cable to the instant case. A “* * * There more is no certain test for not be- properly able to evaluate the ef determining experts may whether be appellant’s fect of intelligence subnormal used than the inquiry common sense psychological and characteristics on the layman whether the untrained predisposition existence of inducement qualify intelligently to determine and to opinion without the considered of an ex possible degree the best particular pert. enlightenment issue without from those expert “Accordingly, if the can reach a having specialized a understanding of the conclusion, adequate an based on factual subject Ladd, dispute.” involved in the foundation, appellant, because Expert 5 Testimony, Vanderbilt L.Rev. alleged intelligence of his subnormal and 414, (1952). 418 psychological profile, susceptible is more instances, In numerous courts have held easily by the urgings influenced it error expert testimony to have excluded persons, inducements of other such testi- proffered cases of this nature where the mony must be as admitted relevant to testimony goes very to the essence of de- predisposi- the issues of inducement theory fendant's of defense. tion.” 655 F.2d at 516. Hill, 512, In v. United States 655 F.2d The Hill type court held of — (3d Cir.1981), denied, 516 cert. U.S. testimony be would also admissible under

-, 699, 165, 104 79 S.Ct. L.Ed.2d 405(a), (the Rule F.R.E. same as Rule appealed defendant from a criminal convic 405(a), W.R.E.), provides: tion on five counts of distribution of narcot “Reputation all urged opinion. ics. He cases by was induced —In government which evidence of character or a trait agents arrange sales admissible, appeal question person proof narcotics. The raises character of a admissibility psychological may by testimony reputa- as to expert tes made timony by testimony tion or form entrapment an defense to estab of an cross-examination, unique lish the susceptibility opinion. inquiry defendant’s On

1035 specific relevant States, is allowable into instanc- defense.’ Ibn-Tamas v. United es of conduct.” 626, (D.C.1979). 407 A.2d 639 Since we say beyond cannot the reasonable doubt testimony permitted has Expert been required to make the error harmless that subjects variety a related to the this evidence would not have affected the type testimony nature offered here. jury’s consideration self-defense Mathews, 628, Cal.Rptr. People In v. 154 91 claim, True, Me., State v. 438 A.2d 460 1018, 1022(1979), Cal.App.3d expert an (1981), defendant is entitled to a new permitted testify upon subject trial.” 438 A.2d at 894. rape-trauma syndrome. The admission of deputy expert sheriffs testi In wrongful-death action the de mony subject street-gang on the cus daughter, ceased’s the defense introduced McDaniels, approved People toms v. of a psychologist who was 898, Cal.Rptr. Cal.App.3d 107 904- testify allowed to in considerable detail as (1980). emotional state of the defendant and Me., Anaya, 438 A.2d 892 State condition, the causes of her on his based (1981), Supreme the Maine Court found interpretations of the facts that she had the trial court committed reversible testify related to him. He was allowed to excluding testimony error in related to the battering role of the man in a situa syndrome. battered-woman The court said: tion to demonstrate that the defendant was appeal, “On we will reverse a decision an abused woman whose actions were based on M.R.Evid. 403 to exclude evi- long episodes caused series of of her justice dence if trial abused his beaten the victim. Morrison v. deciding, Hinds, discretion in so State v. (1980), Bradley, Colo.App., 622 P.2d Me., (1981). Interpreting 437 A.2d 191 (Colo. grounds, rev’d on other 655 P.2d 385 the decision below as one based on Rule 1982). 403, we find such an abuse of discretion. Baker, In State v. 120 N.H. Bishop’s Krueger’s Both Dr. and Dr. tes- charged A.2d 171 the defendant was highly probative

timonies were and more attempted first-degree murder of his helpful confusing jury. than wife, pled guilty by to which he reason Bishop record shows that Dr. would have insanity. Both the defendant’s wife testified that abused women often contin- daughter physical- testified that he had though ue to live with their abusers even ly them occasions. abused on numerous continue, beatings and that a certain sub- psychiatrists The defense called two who perceive strata of women suicide abused was, in testified that the defendant their and/or homicide to be the solutions opinion, legally time of the insane at the problems. to their This evidence would rebuttal, crime. In the State called an ex- given jury have reason to believe pert on domestic violence who testified that was, the defendant’s conduct con- did not indicate that mental illness research assertions, trary to the State’s consistent wife-beating, important was an cause of theory with her of self-defense. We that, opinion, marriage and in his such as agree the District of with Columbia probably the defendant’s would fall within Appeals, and Court of various commenta- syn- the contours of the battered-woman tors, psychologist quali- that where the is Hampshire Supreme drome. The New testify fied to about the battered wife testimony regarding Court held that syndrome, defendant establishes the battered woman was admissible to re- woman, identity expert her as a battered insanity, but the defendant’s evidence of syndrome evidence on the battered wife noting many courts have held that it ‘may must be admitted since have ... testimony concerning the battered-child bearing perceptions on her substantial Baker, syndrome is admissible. killing, and behavior at the time of the State supra, central to her 424 A.2d at 173. ... claim of self [and is] States, supra, fact, In Ibn-Tamas v. United will assist the trier of purpose and the permit expert refused testimony trial court an of such give will be to testify pled where a battered woman had basis for considering whether the defend- reversing In remanding, self-defense. ant battered-person suffered from the syn- drome, Appeals the District of Columbia Court of not in order “special to establish a expert testimony properly justification observed that patricide” but it re- as excluded if it will subject be addressed to a lates to his or her claim of self-defense. respect just to which the as The Invading Ultimate Issue competent Lampkins to consider. v. Unit- Province the Jury States, D.C.App., ed 401 A.2d (1979). According to the deci- Ibn-Tamas “Testimony in opinion the form of an sion, expert testimony is if it admissible inference otherwise admissible is not subject treats matter which is “be- objectionable because it embraces an yond ken average layman.” of the ultimate issue to be decided case, court reviewed the facts of the ana- trier of fact.” Rule W.R.E. lyzed proof, pointed the offer of out the In rejecting the expert’s offer of the difference between the battered-woman’s testimony, the trial court said: plea ordinary plea and the of self-defense “I believe that the testimony and the expert and concluded that opinions and conclusions of Dr. Mc- would have Donald, suggested counsel, would “* * * enhanced Mrs. gener- Ibn-Tamas’ province invade jury.” credibility responding al to cross-exam- Comments, Wyoming Rules Evi- designed ination to show that her testi- 701-706, Opinion dence Expert Testi- mony relationship about with her mony, Land and Water * * * L.Rev. 975 implausible; husband was points the author out that the ulti- supported her rejected mate-facts rule has been and criti- day on the shooting her husband’s uniformly by cized all commentators. The provoked actions had a state of fear says: author which led her to believe she was in immi- “However, commentators have been uni- (T danger just nent going knew he was formly outspoken in their criticism of the me’), to kill responded thus in self- ultimate Wigmore facts rule. called it defense.” 407 A.2d at 634. empty imprac- rhetoric and ‘one of those testimony, court, said the would have ticable and misconceived utterances supplied an any justification which lack in principle’. “* * * interpretation of the facts which McCormick said it ‘unfairly obstruc- ordinary lay differed from the perception illogical. tive’ and Weinstein called it (‘she gotten out, know’) you could have ‘the many cause of foolish reversals and government. advocated The sub- appeals.’ still more Morgan foolish And Dyas stantive element of the test [infra] termed it ‘sheer specifi- nonsense.’ More —‘beyond the ken of the average lay- cally, the rationale for the rule was often accordingly man’—is met here.” 407 questioned. As more than one commen- A.2d at 635. out, pointed tator has there can be no The court then concluded that the exclusion province jury, invasion of the for proffered of expert testimony the was re- power the duty has and the error. versible witnesses, judge credibility of all

Thus, readily it can weight given be seen that this kind opinion, to be each and to expert of testimony in the reject outright any opinion form of either which is inad- scientific or specialized knowledge equately other supported.” majority suggest “patricide.” 17. The that Richard Jahnke for urge "special justification” seeks to some kind of

1037 pert may opinion state his an ulti- For the reason that ultimate-facts failure, fact, has proved to this court provided require- rule be that all mate other completely, providing the rule expert abolished opinion ments for admission of * * * helpful is to the trier of opinion are met. subject expert. and a for the fact suitable 704 of Federal “Rule Rules of Evi- also, v. & Tabatchnick G.D. Searle See dence which into effect in 1975 went (1975). D.N.J., Company, 67 F.R.D. 49 ‘Testimony in provides that the form of 612, State, 247 277 Ga. opinion Smith v. an or inference otherwise admis- 678, 18 A.L.R.4th objectionable S.E.2d sible is not because it em- question had under consideration the by braces an ultimate issue be decided expert’s opinion an asked whether which However, of rule the trier fact.’ this syn- regarding the “battered woman’s exclusion, a ground eliminates for does where was admissible the defend- drome” provide in and of not itself the admis- pled properly or was ex- ant self-defense opinion testimony, and qualified sion of is opin- the expert’s on the cluded basis by including Rule other rules 702 which as to fear a battered woman and this ion scientific, technical, provides that: ‘If or in particular was the ultimate defendant specialized knowledge other will assist to be decided and hence invaded fact the trier fact to understand the evi- jury. Concerning this is- province issue, a fact dence or determine sue, opinion experts noting qualified expert by an knowl- witness had battered-woman-syndrome cases skill, edge, experience, training, or educa- argument, received the court been without tion, may testify thereto the form of said: Thus, opinion or an otherwise.’ under “Concerning opinion the rule that an opinion testimony as to the federal rules not allowed which would should be the ultimate issue is admissible if it will ‘usurp jury’, Wig- the functions of the assist the trier of fact understand wrote that it more in 1940 is so mislead- or a fact in issue. evidence determine ing and that it should be entire- unsound Scavo, F.2d United States ly repudiated, concerning the rule (8th Cir.1979); Moore’s Prac- Federal opinion that an should not be allowed ‘on Evidence, 1981, tice, Federal Rules of very Wigmore the jury’, issue before 2, pp. at 680- Part 204-205.” S.E.2d test, said that is another erroneous misconceived, impracticable, lacking issue, Following a full discussion any justification principle. Wig- VII judgment the trial the court reversed the §§ Evidence, ed., more on 3rd court which excluded (1940). pp. 17-19 holding: criticism, “Following rule Wigmore’s correct rule is as fol- “We hold that the Rule 409 the Model was reexamined. Expert opinion testimony on issues lows: proposed by the Ameri- Code Evidence jury, even the ulti- to be decided in 1942 as fol- can Law Institute reads issue, con- is admissible where the mate may ‘An expert lows: witness state jurors one expert clusion per- relevant inferences matters ordinarily able not to draw intro- ceived him or from evidence themselves; i.e., beyond the conclusion is seen heard duced at the trial and layman. average the ken of the [Cita- skill, knowledge, special him or from his §§ 38-1708, Ann. See also Code tions.] training, experience whether or holding accord 38-1710. This ultimate any such inference embraces an exemplified Rules by as the modern view by the trier of issue be decided of Evi- 704 of the Federal Rules fact....’ dence, supra. has a trend to “Since 1942 there been applied this case “The trial court in result reject or the rule with the abandon jurors draw ex- found that the could majority now of states an rule but in a 1038 whether history, past present symp- own conclusions as to medical or or

their toms, sensations, pain, inception her life. or or defendant acted fear of We expert’s general or character of the or ex- disagree and find testi- cause that the ternal source thereof insofar as reason- mony explaining why person suffering ably pertinent diagnosis or treat- syndrome battered woman’s would from ment.” mate, leave not inform not her would friends, or fear in- police and would The trial concluded that statements herself, aggression against creased by prepa- made Jahnke to Dr. McDonald jurors be such conclusions excep- trial did ration for not fall within the ordinarily themselves. could draw for hearsay tion to rule in Rule embodied opinion we find expert’s Hence 803(4). in this case improperly excluded 803(4) clearly Rule encompasses state- jury’s consideration.” to a purposes ments made doctor for at S.E.2d diagnosis,” even though “medical the doc- Wyoming the ulti- Since has abolished diagnosis tor’s solely, was obtained for use mate-facts rule and the issue in controver- Advisory The trial. Committee’s Note sy opinion was one where the would have to the federal identical rule indicates that helpful imperative fact to sensible been F.R.E., 803(4), changes prior Rule doctrine —in

jury resolution—it was for the court error contrary: to the rejected opinion “Conventional doctrine has excluded of Dr. McDonald for the reason hearsay exception, from the within as not embraces an ultimate to be decided issue truthfulness, guarantee its statements trier of fact. physician only pur- to a consulted for pose enabling him testify. While Hearsay The Error these statements were not admissible as evidence, substantive expert was al- rejecting In the course of the doctor’s opinion, state the lowed to basis of his testimony, the court said: including statements of this kind. The Well, gentlemen, “THE COURT: I don’t thus called distinction for was one most exception think it is admissible under the unlikely by juries. to be made The rule rule, hearsay because think that accordingly rejects the limitation.” contemplates somebody rule 803(4) scope of Rule was em broad physician, to a goes psychia- doctor or is available as a witness: Rule hearsay trist, sulted crime and then is involved cannot “The having ^[*] 803(4),W.R.E., provides: whatever, following and examined go rule, this doctor ^[*] after he is in something, even are not excluded for treatment be treated for # though for the sole testify ^[*] charged the declarant and that he in a trial.” ^[*] before purpose with a Jfc con- but called four said: phasized not call consulted Rules such Dr. mitted “Prior Dobbs (2nd Cir.1978), years after as Houses, Inc., treating physicians to recite his to the adoption for instead the Evidence, non-treating the Court of litigation Koven would have been the accident. The court where the doctor whom patient’s purposes Appeals F.2d as plaintiff statements more than witnesses, in O ’Gee plaintiff Federal doctor 1088- per- did “(4) purposes him, stated, Statements medi- proof not as of the facts diagnosis cal opinion. treatment. —State- but show the basis of his * * * purposes made Rules, however, ments of medical di- The Federal re- agnosis describing jected treatment this distinction as esoter- too (since prose- 18. It to be remembered that it that even ment was was not relevant there cuting attorney plea insanity) conceded this fell was no did not that it —not hearsay exception. argu- hearsay qualify exception. within State's

1039 citations, that, F.2d at recognize.” 570 merous since the battered- ic for person syndrome does not fall within the 1089. experience average juror, life’s of the the may judge that the in the instant It be kind testimony exclusion of this is erro- admitting a case held reservations about law, rejection neous as a matter of and its self-serving possibly defendant’s criminal not subject should therefore be to an However, psychiatrist. to a statements If, abuse-of-discretion consideration. how- held that generally courts modern ever, applicable, this rule is said I to be by psychiatrist the to a statements accused would hold the court abused its to have purposes Rule hired for trial come within event, bar, at discretion. the case Sims, 803(4). F.2d v. 514 United States not actually the trial court did exercise its Cir.1975), (9th denied 423 U.S. cert. its made rulings discretion because were 66; Kibert v. 96 S.Ct. L.Ed.2d i.e., reasons, legally hearsay, erroneous Cir.1967); (4th An 383 F.2d 566 Peyton, only in an insanity proceeding relevant —in- § not., 689, 5; A.L.R.Fed. 4 Louisell & province of the the vasion —the § Mueller, 444, pp. 610- Federal Evidence subject understanding of was within the Any concerns the lack of can about professional the fact-finders without assist- relating the defendant in informa dor of ance, Chrysler etc. Corporation See specu psychiatrist the or about the tion to Todorovich, supra. diagnosis psychiatrist’s lative nature of the disposed propo- Having these various developed through may be cross-examina my least turn sitions—-at satisfaction —I ultimately jury. the tion and resolved majority opinion that section of the reasons, and under cited For above upholds treats with the trial prof- authority, reject it was error to rejection proffered expert court’s coming as not within fered ground testimony on the that there was no 803(4), hear- exception Rule W.R.E. to the self-defense before the say rule. rejected. majority the offer was The when that this is so because there was no reason Majority Opinion The “actual or threatened assault” evidence outlined, previously it is For the reasons the record therefore the reasonable- opinion is in my majority view that of Richard Jahnke’s was ness behavior holding with the trial court that error in issue. proffered testimony inad- the doctor’s puts this majority proposition 803(4) exception a Rule missible as way: Furthermore, hearsay rule. and for all of “ * * * This record contained no evi- indicated, opinion faulty the reasons appellant that the under either dence supporting holding the trial court’s by his fa- assault actual threatened testimony not to be relevant to the defense shooting. time Re- ther at the pertinent self-defense and would justification liance self-de- plea insanity or diminished where requires showing an actual fense position I capacity, explained my and have threatened imminent attack point in detail. Given Rule added.) P.2d deceased(Emphasis W.R.E., it is supra, cited authorities at 1006. majority acquiesce for the error goes on opinion say: reason rejection of the offer for the court’s “ * * * showing the circum province Absent opinion would invade involving majori- or threat jury. I take stances an actual issue with upon the holding the ef- the deceased ty’s abuse-of-discretion ened assault appel appellant, its the reasonableness fect that the trial court did not abuse not an expert at time was proffered when it held lant’s conduct discretion case, court, re- the trial testimony In this issue be inadmissible. ex- show, ruling, properly made its nu- the time it gard, have undertaken to home, hearsay19 testimony sought protecting man his I it eluded the where take psychia elicited from the forensic weapons every to be he had room. And so added.) 682 P.2d at (Emphasis he, sense, thinking trist.” if was that some- 1007. thing wrong went then there’d be a weapon protect particular room conclusions, assumptions and be- These or he saw it— (discussed containing sides errors of law “Q. infra),20 something either overlook the fact that the When he said went testimony transfer-hearing was made a wrong, might go what did he think proof part the defendant’s offer of wrong, you? did he tell testimony they do not conceive that the him, “A. If his father fired at I take it. hearing Dr. in the transfer con- McDonald “Q. Pardon me? threat or as tains such evidence of assault a, know, you “A. If his father acted question would call into the reasonableness rampage, way went on the that’s the he Certainly defendant’s behavior. thought it. He that his was put father testimony transfer contains evidence of armed when he went to the restaurant. person what Richard Jahnke as battered I don’t think he knew whether he was reasonably could have believed was an not, but he knew that his often fa- imminent assault thus actual or threatened ther would take a with him firearm into the reasonableness of calling issue his when he went out. and, proof the offer of would conduct— “He was that his afraid father shown, he did believe himself to have armed, and he was that his fearful fa- process and in the as- threatened thump again ther would him when he saulted the shots were fired. when got up back. And so he made mind his example percep- As an of the defendant’s going happen he that wasn’t to let this dan- tion of the assault and imminence of again. ger him and his sister—even to both “Q. Did his you father —Did he tell his though repetitive is to be remembered —it any aggressive made toward acts father following was elicited on cross-ex- family him his return to the hearing: amination at the transfer evening? home that “Q. Carroll) words, (By Mr. In other he “A. he didn’t—He No, didn’t make you plans told what his were and how he aggressive way acts other than the plans expectation effected his walked. So as Richard was con- far return of his father? cerned, way this was he walked -plans Yes. His [By “A. Dr. McDonald] beating place. to take when a about against were to his defend himself fa- stomped. He It reminded him his thought ther. He that his father beatings. behavior But father’s before up again up beat beat him interpretation, that was his sir. sister, so that first of all he said he didn’t you pro- Did he tell that’s what “Q. really doing know what he was when shooting voked him into father through putting guns went the house through garage door? closed places. in various But then he had this that, thing “A. I think that was the reminded, fantasy I think that he was it provoked shooting.” was of Konan the or some- Barbarian factor added.)21 I thing, (Emphasis think he’d seen a film of this 6; Radon, “hearsay” previously supra 19. I have discussed the 3 and State v. n. discussed 803(4), detail, question. Rule W.R.E. and rele- Under infra in and the law of the case as con- authority, instruction, vant cited of Dr. Mc- given supra. tained in the hearsay Donald was not excluded rule. incorporated in 21.This transfer necessary It is not to mount a viable in order proof excep- offer of and it falls within the response self-defense that there be “an actual or 803(4), hearsay tion to the rule under Rule threatened assault the deceased" as the ma- W.R.E. jority opinion supra holds. Parker v. nn. noted, Referring As seems clear to me first of these instruc- majority Wyoming tions, misstate the the court said: “ * * * law of self-defense and the law of this case part The first of the instruction opinion on self-defense when the assumes refers to declarations of the deceased at that, protec- to be a self-defense viable shooting. the time of the The defendant prosecution state, tion in a criminal in this did not claim any deceased made the defendant must be under actual “an such declarations at time of the homi- threatened assault” before the reasonable- cide and reference thereto was not in of his conduct will a ness raise self-defense accordance with the evidence. The rule 3, 4 issue. As has been mentioned nn. and court, perhaps, which the in had mind in 6, assault, the threat the immi- and giving the in instruction that stated 30 danger only nence of must be of such a 64 C.J. as follows: “ create, character as to of mind (the necessary ‘But it is that he de- defendant, a reasonable belief that the dan- ceased) shall have indicated some ger necessary is imminent and that it is overt act or hostile demonstration at deadly against use force his assailant in killing appar- time of the a real or protect order to himself from death or ent great intention to kill or inflict great State, bodily harm. Parker v. 24 bodily thereby harm accused and 491, 552, (1916); Wyo. 161 P. nn. 555 3 and induced the latter to believe on reason- 6, supra; given and the instruction on self- grounds able that he was in imminent defense, supra. danger and that it necessary Perhaps concept exemplified is best kill and save himself.’ opinion in our which reverses the trial Radon, 383, Wyo. court in v. State 45 19 act, course, place “Some had to take of (1933). case, P.2d 177 In that following give appearance and danger, of given: instruction was give the ground defendant reasonable “ ‘The is instructed that in order to therefor. But an actual assault or at- ground excuse the defendant on the of tack on the was not neces- defendant self-defense, there must be some act or sary, gave the circumstances reason- if declaration at the time killing apprehension ground able immi- person part on the the deceased 64. In the danger. nent C.J. case at great to kill him or to do him bodily the deceased walked toward the bar de- harm. To constitute self-defense the be- hands, package fendant. He had apprehension danger lief or enter- That, wrapped paper. apparently, tained the defendant must founded Still, pair gloves. turned out to be on sufficient circumstances to authorize specific while there is no evidence of the opinion, mind, in a reasonable gloves, size of the how the deceased held deadly purpose entertained package, gave and whether it existed, deceased then and the fear that appearance gun it contained a ” (Em- it will at the time be executed.’ dangerous weapon, other the defendant added.) phasis 19 P.2d at 181. put says that the attitude deceased The court found this instruction and anoth- evidently intending fear, him in to con- er instruction held: idea, accent, vey the in his broken “ danger justify ‘The which will the kill- thought carry- that the deceased was actual, ing of a human must be weapon, ing deadly and we are not present urgent, appear to a rea- that, prepared to hold as a matter of actual, present sonable mind to be law, previous view of difficulties ” added), urgent’ (emphasis 19 P.2d at threats, might not have had reason- ground able to believe that he was in error, according to be danger, though reversible imminent even the de- following analysis: guilty ceased was not actual given by exemplified supra But the instruction Parker v.

assault leaving Radon, of consideration supra, sup- out State v. undertake to court— ‘declaration,’ seems to the reference to a port theory “actual or their threatened assault, say require for to such actual quotation assault” with a State some that the deceased must done Thomas, 66 Ohio St.2d N.E.2d [emphasis act to kill the Supreme where the defendant Ohio Court nothing than that original] can mean else said: which, engaged in an attack he was then one, “In a trial such as this where the out, if have resulted in carried self-defense, evidence raises an issue of great bodily harm. The second death or pertaining evidence admissible the instruction does not mod- sentence of to that defense is evidence which estab- first, ify the treats of circumstances but lishes that had a defendant bona-fide danger creating apprehension an danger she was in imminent belief separate This is also true of matter. harm, great bodily death or and that 16, in No. which the court instruction only escape the means of from such dan- said: ger through deadly the was use “ justify will danger ‘The the added.) (Emphasis force.” killing of a human must be actu- Indeed, I the Thomas rule is that for which al, present urgent, appear to a contend and it is the rule which is the law actual, present reasonable mind to be according of this case to the uncontested urgent.’ instruction, i.e., self-defense the defendant told, “Here the were without “a must have had bona-fide belief that misinterpretation, [he] possibility that danger.” inwas imminent This is different only apparent dan- there must be not saying than that an there must be “actual ger, danger, also in order to but actual justify killing ground on the or threatened assault” before the fact-find- may There was no actual dan- er consider the reasonableness of the self-defense. ger in the case at bar. The deceased purported accused’s self-defensive behav- gun dangerous weapon had no or other ior. question Hence the of self-de- with him. therefore, would, my It conclusion substantially away fense was taken from that, for all the reasons set out in the That, jury by these instructions. we battered-person citations contained this think, prejudicial theory was error. The dissenting opinion, majority opinion in the case at bar was that there was an no errs when assumes there was apparent danger. not actual danger, evidence in the record at the self-defense presents the evidence that theo- Where made, time the offer and I would also bar, ry, as in the case at an instruction urge majority Wyoming’s that the misstate right which limits the of self-defense law of self-defense as well as the law of danger actual or real alone is errone- point. the case on Parker v. added.) (Emphasis ous. 30 C.J. 377.” Radon, supra; supra; and the State 19 P.2d at 181-182. case, given instruction in this self-defense say parenthetically I must that I admit to supra. respect majori- some confusion Lastly, majority opinion takes issue ty’s position on the law of self-defense proof with the fact that the offer of does noted, case, because, as has been not meet the state-of-the-art criteria for opinion says that there must be evidence of reception battered-person expert testi an “actual or threatened assault” before States, mony in Dyas as set out v. United of defendant’s reasonableness behavior D.C.App., A.2d 832 cert. may become an issue for the fact-finder denied 434 U.S. S.Ct. urges where the accused self-defense. (1977) adopted by our However, refusing L.Ed.2d 464 majority, while State, Wyo., 627 P.2d 1374 embrace our historic self-defense rule as Buhrle v. purposes, the (1981). urged by majority that it these court denied the offer It is following these reasons: by Dr. McDonald’s testimo was not shown battered-person theory pro (1) had ny insanity Irrelevant since was not place pled; gressed to that the scientific things opin where a reasonable (2)

scheme exception Did not fall within the expert 803(4), can be asserted an as to how hearsay W.R.E.; ion Rule person perceives the imminence a battered (3) testimony would prov- invade the responds The ma danger and thereto. jury;22 ince of the proof that once the offer of jority hold (4) No has been submitted de rejected whatever reason—the acceptance “the of the science of —for the doctor fense team should have recalled child”; the battered point proceedings in a some future (5) subject requires is not one which to establish the state-of-the- further effort explanation expert.23 of an failing which the offer requirements, art judicial game-playing suggest I that it is having fatally defective for not shown that, though say even the court had battered-person syn the court already held the doctor’s acceptance in adequate reached drome had hearsay— was inadmissible because it was community. psychiatric medical that it be admissible in an in- defense, province that it sanity invades following: response, suggest subject jury, and that the was not of opinion pointed This has out explanation, requires expert a nature which proof purpose of the defense offer of was nevertheless, was, necessary prove it explain battered-person syndrome— acceptability scientific battered-child per- was a battered Richard Jahnke syndrome in a state-of-the- order to avoid explain people how battered son—and art error. respond the imminence of perceive and I can good What would it have done? ques- then have danger. It would been judge saying hear the to defense counsel tion for the to determine whether proffered of such reof- the occasion not, person, the defendant as a battered fer: reasonably in the self-defense con- behaved Why you taking up the court’s time are thought repeated this on text. Counsel I ruled for proof? with this kind of during the numerous occasions offer-of- testimony of reasons that this number grounded He his offer proof proceedings. admitted, no matter what the will not be that the doctor would representation on the syn- state of the art of the battered-child child, testify Richard battered evi- might drome be shown be—the differently people behave that battered counsel, is, for the dence inadmissible with the who have not lived than those stated, any and I will not hear reasons ex- battering experience and that he would testimony subject. this further on complex anxiety and plain the fear practical mat- my judgment, In and as a respect to their people have battered ter, exercise in futili- it would have been an leaves the battering This offer assailants. subject further. ty to have belabored introduction of impression that clear for the to the state-of-the- Lastly, respect evidence would be submitted this issue, testimony determining in hold that the aiding art I purpose of would recognized and admit- question acts on the in the reasonableness of Jahnke’s jurisdictions in this though majority in a Even the offer ted night question. it is central to the defense testimony country for because incorporated the transfer believe, jury, is to determine the rea- appropriate “The I spite and of Rule W.R.E. 22. fears, they should sonableness supra. citations evidence, person of a who determine that situation, facts, draw testifies as to the The court said: their conclusions.” person pleads description of the battered who self-de- There is no beatings majority fense—as is the numerous cita- and abuse in the opinion. shown For authority opinion they in this necessary tions of that reason and because are —and understanding dissent, error as a matter of therefore was law to to an of this Appellant have excluded the the reason are set forth now. testified to inadequate proof that there foundation specific beatings instances of and abuse remember, subject. on this beginning approxi- that he could mately years when he or six was five old. assign if were to the same Even we Some of the instances he recounted were: importance majority to this issue24 that the If scraped he made noise at dinner or does, my obligated, opinion, this court is plate, fork on his he was hit and knocked trial to remand the case to the court for the Once, six, age off his chair. five or purpose supplementing the record in this given a rubber boat which broke when States, regard. su- Ibn-Tamas United playing he was with it. His father was pra. enraged, searching him, threatening stated, For the reasons I have held him, beat and his mother hid him in a closet that the defendant did not commit error protected punished him. He was al- reoffering Dr. McDonald’s daily. most If the faucet the washtub battered-per- the state of the art of the leaking, beating. was found he received a syndrome. son face, arms, He was beaten in legs, For the reasons set out Justice Car- things walking back with a belt for such as join, dine’s dissent—in which I and for the around open; with his mouth Rich- dissenting opinion— reasons set out testified, ard Jahnke joins, in which he I would have reversed pleaded stop. for him to He told “[a]nd and remanded for a new trial. me, up, you crying ‘Shut baby. really I’ll give you something cry about.’ And CARDINE, Justice, dissenting, with he hit me harder.” ROSE, Justice, joins. whom young, When he was he had asthma and I join dissent and in the dissent of Justice necessarily coughed frequently. fa- His Rose to the extent that it holds that the ther would hit him for coughing and he perceives manner which a battered child hold cough long would back the as his situation as that relates to self-defense could. When his father felt his teeth were appropriate subject expert is an testi- enough, toothbrush, not white he took a mony and that such should have brush, him he told him show how to been received. his gums brushed teeth until his bled. In appellant, sixteen-year-old this case He and his sister were subjected both boy, killing claiming only brushing; admitted the the teeth and when his sister mind, resulting his state of maturing out, from a lifetime was and her face broke she abuse, beatings physical and mental rough rag was scrubbed with a until her caused him to in a state of fear and face would bleed. Richard Jahnke was apprehension mentally being under which he acted self- tortured and humiliated defense. Self-defense a victim of called lips, sissy, abuse names such as leather lawfully “worthless,” is as as a defense in told good,” available he was “no patricide any as in homicide. frequently. other and cursed 24. At n. 23 States, supra, United of Ibn-Tamas v. at the 1972 edition of McCormick on says: Evidence, courts, the court supra, encourages in con- evidence, "Although adopted by sidering ignore the third criterion scientific test, Dyas, supra, requires disagreement court in the trial court relegating any third in the proffered expert's to evaluate the methodolo- weight, community scientific not ad- gy by 'general degree reference to the ac- missibility testimony. See id. at ceptance particular field in it § 203.” 407 A.2d at 638. belongs,’ Frye, supra, App.D.C. at 293 F. appellant’s weekly daughter beat combing One of chores was to his Deborah for not mop He testified Then, 16, 1983, clean basement. her hair. on November that his father would make a mess in the family argument there described in deliberately so that he would basement majority opinion. Richard Jahnke was 2, 1982, Sunday, May have to clean it. On threatened, again, beaten and told not to be him, him, yelled slapped father at his in the house when the father returned from dragged pushed him the hair and him home, dinner. When his father returned down the basement stairs with orders to later, an hour and a half his homicide re- begin cleaning. His father then came to sulted. him, basement, began beating hit- advised, prior The court was to com- fists, him, ting shouting him with his trial, appellant mencement of contend- finally telling get him to out of the ed he killing acted self-defense in house; grabbed to leave. Richard dire, father and wished voir shoes, began running from the house bare- “ * * * way, panel foot. His father stood in the as he to ask the whether or not did, him couple often so he could hit more any there are individuals seated on the times as he left. Richard ran barefoot to a panel justifica- who feel that there’s no house, neighbor’s but was too embar- tion taking ever for the of a human life.” rassed, confused, and humiliated to even chambers, before commencement of neighbor’s knock on his door. He sat on a trial, following transpired between neighbor’s crying curb in front of his house the court and counsel: neigh- approximately three hours. The n * n the court “[THE COURT:] [A]nd house, bor then came out of his noted Rich- has instructed counsel that is the crying, ard had been asked what was opinion during court’s the selection wrong, story. and was told the entire He that defense of self-defense bruises and marks on Richard’s observed men other defense need not be beating, and arms from the took him back * * tioned reports to the sheriff’s office where were family made out. Richard’s was called and Appellant’s counsel then advised the they all came to the sheriffs office where explore court of area he another wished put together were in a room to discuss stated, on voir dire and happened. what had He then went back regard “There an area in this case with thereafter, family. Shortly home with his physical abuse mental but a social worker called at the house. He abuse, the lati- and would like to have group, family talked to the as a but not * * inquire of the 1. We do tude to separately with Richard as was standard have an element of mental abuse where procedure agency. When Richard it and our assertion that is our evidence happened, his was asked about what had very age put young the children are— — him; always present glaring father was down, will, at, if sworn cussed at. you finally everything alright. and he said I to know and like to be “And need would worker, house, he left The social as inquire peo- as to whether or not able to walked out on the front lawn with the * * * ple panel feel that sort of on that privately and talked to him father conduct or treatment is beneficial ten the father came about minutes. When harmful. house, smiling as back into the he was won; though he had and Richard felt he nothing

had failed and there was he could impact other “There is an from conduct do. abuse, I like to physical than and would Things were better for a short time and inquire be able to into that area beatings then the and the started abuse panel. again. Saturday On the this inci- before dent, father, Jahnke, Richard Chester Well, through unruled-upon I would not allow State motions

“THE COURT: opens I in limine. asked the you inquire they because think that The court if to given by court, wants to would the law as everything follow up the State during the voir dire. informed them that carried the exclude Appellant’s counsel lows: jury that that there’s no they have that bias we eas. udice due of a able nation is qualified jurors they did The court “Well, how “I will allow “Gentlemen, can other, respect, it would be our contention trial portrayal they * * V’ Your question discipline not to discipline their children or how but then an Honor, you purpose I’m rather to insure the way to determine whether of the case of one side or impartial jury, who have no bias or make an advised counsel as fol- to ask them specifically in their going to responded as follows: it would of voir children. prejudice advance, instruct be, individually dire exami- these ^[*] parties unless favor- is, ^[*] prej- ar- * ” all juror mation never be their name and furnish certain basic infor- follow the But result knowing mation at all. The propounded For the asked were innocuous and of a kind that innocent each asked burden of yond a specific, The court next asked each juror. felt jury, if reasonable doubt. concerning employment, most answer the same general they unless any specifics, he will follow justified. law proving not calculated to the For should part, they taking relative to convinced of might questions and statements one-syllable example, jury panel the defendant Perhaps assume the questions of human life he will were self-defense. These different if if develop juror he could not law, answer from instructions say that were defendant were non- guilt juror to state without marital guilty, group. “yes.” infor- could be- status, ages background of children record, ruling I understand the “For then information. Voir dire was turned record, For the I would like of the court. respective attorneys. over to the objection enter an that restriction attorney’s prosecuting voir dire cov- impairs it and interferes because I feel pages the transcript ered one hundred ability our to determine that in this testimony. The dire of defense coun- voir particular there case where is a consider- sel, extreme because of the limitations underlying im- emotional able amount upon him, just placed reported six- pact, people who have even pages transcript. Appellant’s teen coun- they im- fairly can consider whether permitted just sel was to ask on voir dire case, partially judge this takes i.e., question jury, one how soul-searching part. on their some disciplined jurors their children. When re- only way effectively I “I can believe them, sponded they spanked the voir dire specifically inquire. do that is permitted was not finished. Counsel ruling. “But I understand the court’s concerning juror’s feelings make inquiry would like to enter an disagree, do but self-defense, whether there about objection at this time. killing a justification ever be for another It’s on the “THE COURT: record.” juror, human in the mind a their abuse, feelings began proceeding by physical in- about mental and The court might and how one’s state of structing purpose and that affect fear, conducting apprehension At this mind or method of voir dire. reasonable time, might have a seeking any jurors in limine to restrict and whether of the a motion by prejudice any bias or in of these areas that voir dire filed the State and had been prevent receiving filing appellant of would a fair upon by not ruled the court. The judge impar- juror being failure to no trial or the able motion and rule is of effect, tially. surely voir dire is for not controlled

1047 * * * right The protected of a defendant in a criminal dire works to [and] [v]oir case a prejudice free of bias and is protect right only by not providing §1, 10, guaranteed by Wyoming Art. Con- challenges the basis for for cause but provides: stitution which by also providing a basis to a ‘enable “In prosecutions all criminal the accused litigant and his counsel to exercise rea n * * * * right shall have the toa* trial judgment utilizing sonable in peremptory n n ‡ * * ” impartial jury an challenges.’ Peacher, State v. right guaranteed The same is to the de- W.Va., (1981). 280 559 S.E.2d fendant the Sixth Amendment to the A litigant stage at the voir dire of the Constitution of the United States. This proceeding has the burden of demonstrat- accepted court has princi- as a fundamental ing prejudice bias or or establishing ple proposition parties to an action grounds for the exercise of challenges. are impartial jury. entitled to a fair and Thus, Lopez State, in supra, v. we said: State, Lopez Wyo., (1976). v. 544 P.2d 855 “ * * * obligation It is the of the defend- accomplish To purpose, it is essential jurors ant to examine on voir dire and litigant permitted develop a all by proper discover investigation might relevant and material matters facts af- basis, only fecting qualifications, form a for their challenge for and then to permit cause but also such as would him to seasonably objection raise that with re- ** ” intelligently challenge peremptorily. State spect any panel. member Brown, Mo., (1977); v. 547 S.W.2d 797 544 P.2d at 861. § Am.Jur.2d Juries Lopez State, In supra, v. unlike the case challenges pro- addition to for cause bar, at opportunity defendant had the statute, vided appellant was entitled to panel respect voir dire the signifi- eight peremptory challenges pur- exercise cant issues of the case but failed to do so. 25(b), suant to recog- Rule It W.R.Cr.PJ is Similarly, Wyo. Keffer nized that partiality may bias and exist that P. 556 defendant chose to withhold do not meet the statutory requirements of the character of his defense on voir dire challenge peremptory cause. The and we held: challenge then covers an area that is not « n n * aceuse¿[ un(jer obliga- no encompassed by cause, challenge tion to disclose the character of his de- exercised for reasons known to coun- stage fense at proceedings this client, sel and his and is not under control examination]; but, dire if he chose [voir of the court. reserve, to hold it in complain he cannot Common sense tells us that peremptory * * * that the examination did not dis- challenges provide were intended to an ad- jury] close whether had [of safeguard required ditional fair trial. * ”* any opinion regard formed to it. They cannot be exercised a vacuum or Wyo. 73 P. at 559. by guess conjecture accomplish purpose. therefore, litigants, presents This case the same issue but knowledge should have full possible as perspective. from different Defendant prospective jurors permit an intelli- here did not choose to withhold his defense gent process. decision in the selection requested fact of the court on sever-

Therefore, I opportunity am convinced that the al occasions an to voir better dire the as, rule is stated jury concerning specific matters of his de- “* * * court, although fully fense. The informed purpose of voir dire is to defense, appellant’s scope assure that as to limited the right defendant’s to a interest, jury free of prejudice bias or of voir dire to such an extent that was 25(b), W.R.Cr.P., provides (1) part: imprisonment year, 1. Rule for more than one "(b) peremp- each Peremptory challenges. every defendant shall be entitled to 8 case —In " * * * * * * tory challenges. charged punishable by [i]f offense is happen for to their cause. That cannot was an abuse of discre- meaningless. This for, then ex- jurors are drawn random and tion “ * * * peremptorily qual- or for cause if not restriction cused a trial court’s [w]here dire undermines the scope experienced, competent of voir With trial ified. sought protected the voir rights to be surely prosecution will chal- counsel held to be an abuse it will be process dire jurors those lenge and strike favorable error.” and reversible of discretion prosecution. jurors left who will Peacher, supra, S.E.2d at State try hear and the case should those with bias, opinions prejudice or about the least majority in facts of the case and what the result agree with the Neither do broad, sterile, general holding ought system to be. But this can jury by the court counsel, to the questions directed though questioning if work they could “follow the inquiring whether dire, gain sufficient jurors on voir able Again in error. State v. law” cured this challenges be exercised knowledge that can Brown, stated: supra, it was requires latitude intelligently. That some “ * * * general question did not [The] permitting an effective and reasonable inquiry proposed about cover defendant’s develop the atti- voir dire structured the state’s burden to critical issue of tudes, feelings panel opinions and disprove self-defense. jurors jury whom the trial will be “ * * * counsel made is clear defense [I]t selected. court he wanted to known to the trial questions appellant’s Some of the coun- open were minds learn if the veniremen’s propound jury to the were sel wished burden principle or closed to proper. improper were and the court Some the state to dis- proof would be on properly objections sustained to them. For vital to the prove This was self-defense. instance, appellant’s counsel advised right to have an unbiased defendant’s jury inquire that he wished to barring erred jury. The trial court lay on proper if felt it for a father to exercising right.” defendant from breasts, her top daughter, of his feel at 800. 547 S.W.2d panties. her What was put his hands into probably the least under- Voir dire is question? If it were purpose developed of all the poorly and most stood allowed, response what would the be? feel that it is Judges trial often skills. what his Surely every juror, no matter time; that counsel and wasteful of misused feelings, have answered personal would rap- attempt upon voir dire to establish just way question one —with case, argue their port jury, with the already If knew what the “No.” counsel damaging prepare jury condition or ques- to that juror of each must be answer concepts. Perhaps difficult evidence and tion, why did he wish to ask it? It reveals even in a cannot be avoided some of this Clearly it nothing prejudice. bias or about examination, surely it proper voir dire jury, argu- intended to incense the during the course of the anyway occurs mentative, sought a commitment from event, know that voir dire trial. we improper It was an legitimate purpose that them beforehand. has an honest and dispute. question It person question. no fair-minded When a directed part of all the desire on the those should be all of that must be answered is one selected should be involved that usually way, in the same is not jurors bias, precon- prejudice, little one with as develop any informa- question that will princi- opinions about the ceived notions bias, ascertaining whether helpful in tion particular concepts ples and involved preconceived notions about prejudice or humanly possible. case as is jurors. The may case exist with those one that seeks a com- question generally im- that counsel suggested It has been in the nature juror from the or is jurors favorable mitment properly attempt to select is, therefore, objectiona- jurors would, I as' have outlined. there- argument fore, reverse and remand for a new trial. ble. hand, appellant the other when On jurors any of them

sought to ask whether any justification is no under cir-

felt there taking ever for the of human

cumstance

life, proper. question it was This was differently jurors might be- answer religious personal or beliefs or

cause taking the feelings they might have about PATTERSON, Frank James William might those who (Defendant), life of another. There are Appellant any justification there is never under feel taking for the of human circumstance Wyoming, Appellee The STATE of Appellant equally entitled to life. (Plaintiff). jurors physical felt know how about might effect No. 83-190. mental abuse and the age of five until on a child from the Supreme Wyoming. Court Appellant years age. reached sixteen he acted in self-defense. His state 1984. claimed June apprehension of fear under of mind and his Rehearing July Denied important all of the circumstances was an defense; jurors of his and how element

might feel about that defense whether it accept could it or even consider was jury

vital in selection. If there were those personal jury,

on this who because of feel- belief,

ings, religious upbringing or train-

ing accept self-de- could not or consider homicide, justification

fense as a for this appellant did receive a fair trial.

then not jury on the

The trial instructed

law of self-defense. This then became

law of the case. The could have found the instructions of the court that

under

appellant reasonably he was de- believed

fending killing himself occurred. when know if there were those on

We can never held beliefs that

appellant’s who finding permit them to make this accept this defense. appellant the trial asserts limiting scope of in-

court’s action impossible

quiry on voir dire made per-

effectively adequately exercise violating challenges thereby

emptory

right process of law and effective to due ap- I find merit

assistance of counsel.

pellant’s argument. It was an abuse of deny appel-

discretion for the trial court to prospective opportunity to voir dire

lant

Case Details

Case Name: Jahnke v. State

Court Name: Wyoming Supreme Court

Date Published: Jun 6, 1984

Citation: 682 P.2d 991

Docket Number: 83-70

Court Abbreviation: Wyo.