*1 public Additionally, injustice. causing where and confusion date, legal requirements state, action is at stake interest may City of LaGrange Co., parties. Ins. v. USAA not be waived supra at 20 statutory requirements Accordingly, were not that the I conclude timely provide notice the state with failed to waived, that Norris and Benham that Chief Justice to state I am authorized his claims. of Presiding join this dissent. Justice Fletcher July 14, 1997. Decided III, McCalley Fore- Forehand, L. Kirbo Jon V. Kirbo, Thomas & appellants. Herndon, hand, for David S. Shingler, Deputy Gеorge Attorney General, P. Baker, Thurbert E. Cathy Kell, Attorney Latain Senior C. General, Cox-Brakefield, A. Attorneys Roorbach, Attor- Assistant General, D. Assistant Jennifer appellee. Spurlin, Fleming Spurlin, ney Sims, & John C. General, Angela Emerson, amicus curiae. Buice, Waddell, & E. Emerson THE STATE. SMITH v. S96G1914.
Thompson, Justice. charged murder, was convicted of malice Smith, with Vernita shooting voluntary manslaughter death of her husband. in the Appeals rejected that the trial court assertion defendant’s Court of requested jury refusing give her error in reversible committed instructions Smith woman on granted certiorari to con- We Ga. sider circumstances, a defendant is enti- whether, and under what separate apart person syndrome, on the battered tled to a justification. general charge on from the during repeatedly her that her husband beat Defendant testified gun marriage. frequently held a He course of their 18-month her child. On kill and abscond with threatened to her her head and and had her until she lost consciousness occasion he choked one tightly lamp wrapped around her cord time he revived. Another neck and pulled appeared choking stopped her her when brother police away. a dozen occa- him Defendant summoned She returned of the abuse. sions, and left her husband twice because promised expressed he would remorse and time after he each repeat about testified Several other witnesses the misconduct. relationship husband, conduct her his abusive with defendant’s her, toward and the beatings and threats he inflicted her. upon On day of the shooting, defendant’s husband became enraged with her he because had observed her out visiting with friends. When home, her, she returned he confronted they argued and he struck her face, in the bloodying mouth. After he continued to hit her and held a metal can over her head in a manner, threatening grabbed she *2 a pistol and fired one shot which entered his arm and in lodged his chest. The ran house, victim out of the and she followed. When she offered to him help get attention, medical he responded, “Bitch, you’re dead.” The victim died sometime later as a result of the gun- shot.
An in the expert field of domestic violence testified on behalf of the defense concerning the group of symptoms comprising bat- tered syndrome. woman This had expert conducted a lengthy assess- defendant, ment of the determined that she exhibited each of the symptoms, and reached the conclusion that she suffered from the woman
Smith requested three separate jury charges pertaining battered woman syndrome. At the conclusion of the charge confer- ence, the court ruled that it would allow defense counsel to explain closing argument how defendant’s experiences as a battered woman affected her state of mind at the time of But, shooting. reliance on precedent Court, from this defendant’s proposed jury instructions were rejected.1 jury
The charge included instructions on both murder and volun- tary manslaughter. The pattern instruction on justification was (a). tracking the languаge of OCGA 16-3-21 The jury was charged that a is person justified in using force another “when person and to the extent that she reasonably believes that such . . . force is defend herself or a third person against the other’s imminent force; use of [and unlawful that] a is person justified in using force which is intended or likely to cause death great or bodily harm if only that person reasonably believes that such force is neces- sary to death prevent great or bodily injury to herself or a third per- son or to prevent the commission of a forcible As for felony.” self- defense, was instructed that “a defendant kill justified to use force another others,” defense of self or the “standard is whether the circumstances were such that they 1 requested charges Defendant’s three were drawn from this Court in (277 678) State, (3) (401 (1981); Smith Pugh State, v. 247 Ga. 619 SE2d v. 260 874 270) (1991); Chapman SE2d SE2d While portion requested charges arguably may of these argumentative, have been others con appropriate tained neutral and previously espoused by statements of law this Court. We are reject requested charges argumentative. unable to in toto as defendant, the fears of a fears of merely excite not
would person.” reasonable homicide self-defense justifiable the defense of
Traditionally,
in circumstances where
reasonable
available
—death
a defendant’s
great bodily harm or
fear imminent
in deter-
not taken into consideration
were
characteristics
particular
Bivins
if
reasonable.
mining
his or
actions were
(38
not consider
actual
could
instead,
danger
of imminent
had
id.;
fear
fears
Moore v.
person.
to be that of a reasonable
juries
to consider
permitted
were
Subsequently,
particular
in defendant’s
how reasonable
516) (1981),
In Daniels v.
would react.
attacked
the victim was
previously
that defendant was
had a reasonable
relevant
determined
whether
deadly
need
force.
honest belief
In Smith v.
(1981),
Ga. 612
Court
scientifically
as a
estab-
recognized the battered woman
testimony
rule
an expert’s
lished
We announced the
theоry.2
evaluating
assist
battered woman’s
admissible to
“an interpretation
since the
expert provided
defense
self-defense
*3
lay
facts
differed from the
. . .”3Id.
ordinary
perception.
the
which
suf-
Expert
testimony
explain “why person
at 619.
was admitted to
a
mate,
from
not
her
fering
syndrome
battered woman’s
would
leave
friends,
not
or
and
fear
police
aggres-
would
inform
would
increased
herself,”
such
are those which
sion
because
conclusions
for
The rule
ordinarily
pro-
could not
draw
themselves.” Id.
“jurоrs
Smith
in
resulted from “the need to treat a
and
unique
nounced
mysterious
almost
area
human
and behavior
. . . the
response
of
State,
v.
Sinns
248
syndrome.”
of battered wife
Ga.
complex subject
479)
(283
(1981).
385, 387
SE2d
As we
in
subsequently explained
(386
129)
State,
v.
Chapman
706,
(1989),
259
708
SE2d
Ga.
evidence
2
syndrome
appear
The
has been defined as a series of common characteristics
that
in
physically
psychologically
period
by
who are
and
over an
of time
women
abused
extended
(2)
State,
624,
figure
mate or a
male
in their lives.
626
their
dоminant
Johnson v.
266 Ga.
152)
(469
198,
(1996);
State,
v.
SE2d
Selman
200
SE2d
3 Although
present
subjected
the
case involves a woman who has been
to continuous
(471
836)
mate,
State,
(1996),
by
recog
her
in Chester v.
199 syndrome woman to show “that defend- of battered admissible the justification mental ant had a although state for the defense of immediately precede actual threat of hаrm does past physical is, of homicide.” That evidence abuse is admissible purpose illustrating of the limited that defendant had a reasonable physical in imminence of additional abuse at hands of acting belief the victim presently justified therefore, she self-defense. concept person syndrome with this of the
Consistent battered evidentiary component, legisla- justification, of the defense of (Ga. 2), p. by § § ture OCGA 1993 L. amended 16-3-21 (d). (d), of a the addition new subsection Under OCGA 16-3-21 if a prosecution manslaughter in а for murder or raises a justification, “in order defense of to establish defendant’s reason- deadly immediately able belief the use of force or force was nec- “(1) may essary,” the defendant offer: Relevant evidence that family had been of acts defendant abuse committed the victim of violence or child “(2) expert deceased,” Relevant testi- mony regarding the of condition the mind defendant at the including offense, time of the those relevant facts and family relating or violenсe child abuse that are the bases prior expert’s opinion.” “family Thus, a defendant who victim may person syndrome abuse,” child violence or offer battered evi- dence illustrate his reasonable belief the imminence of (471 use of victim’s unlawful force. Chester v. (1996). 836) long position SE2d It been has this Court that the separate defense, is not a but that evi- person syndrome proper dence of battered is relevant as a case justifiable component homicide self-defense. Smith v. (458 (3) (1995); Pugh Ga. 495 270) (1991); Chester, Sеlman See also Motes v. today. principal do And we not deviate from that that a We reiterate defendant suffered from battered person syndrome which, another circumstance if believed jury, finding person, authorize that a reasonable who *4 experienced prior physical by had abuse such as was the endured reasonably against defendant, would use of the believe that the force necessary, though may fact, victim that in been, was even belief have erroneous. chargе theory explaining a defense,
Because defendant is entitled to a the specific especially defense, it of the if is the sole instructions by person syndrome appropriate on the the are when battered warranted requested present pattern defendant. the Under jury person apply instructions, is the directed to reasonable in the And, charged pres- in as was assessing self-defense.4 standard excite not case, merely the must be such as would ent defendant, the of a reаsonable person. fears of the but fears the in danger “is not whether the was in a battered defense issue person whether, the defend- imminent, given [the circumstances as fact them, was that the defendant’s reasonable perceived ant] belief (Okla. 840 P2d Crim. was imminent” Bechtel danger 1992). charge self-defense is justification by Modification of the (d), per- to 16-3-21 and “to thus both with OCGA necessary comport § consider the reasonableness of defendant’s belief juries mit to both circum- necessary [her] force in light usе of was force, any [she] at time used condition psychological stances (Sears, Chester, J., resulting supra from such circumstances.” at 17 concurring specially). to the rule that opportunity
We take this announce when bat- claim has been estab- person syndrome properly tered self-defense lished, the instructions give specific jury justification court should on to how self-defense are tailored the defendant’s explain which as a battered affected that defendant’s state of еxperiences person mind at the time of the killing.5
In that a modified foregoing, require accordance with the we now syn- justification instruction on in all battered person cases, requested by drome when authorized evidence and in evaluating person’s to assist to defense self-defense. In addition instruction pattern (a), it is suggested OCGA 16-3-21 that such modified read as instruction follows: you the evidence that the defendant suffers
from battered admitted for con- person syndrome your sideration connection with dеfendant’s claim of self- defense and that such evidence relates to the issue force reasonableness defendant’s belief that use of no force immediately necessary, though use of been, fact, may the defendant imminent. when, using person justified threatening person A or is force another reasonably and to the extent he/she that such threat or force is neces believes sary person against the other’s use of defend himself/herself or a third imminent justified using likely unlawful force. A force which intended or great bodily person reasonably death cause or harm if that believes that such great prevent bodily injury force is to himself/herself or death prevent felony. third of a or to commission forcible 1991). (2nd ed.), Suggested Jury Instructions, (July p. Pattern Vol. II: Criminal Cases Chester, Smith, 495; Chapman, supra, Pugh, supra; supra; To the extent Motes, any authority suggest separate jury supra, other that a instruction bat authorized, longer tered is never such no be followed. cases will *5 The standard is whether the circumstances were such as would excite the fears of a reasonable person possessing the same or similar psychological and physical characteristics as and faced with the same circumstances sur- rounding defendant at the time the defendant used force.
This rule is to be applied all cases i.e., now “the pipeline,” those on direct or in review which a judgment has not yet been ren- dered. Taylor An application pending case depend will upon proper preservatiоn of the issue for appellate Id. review.
Because the evidence established that Smith suffered from bat- tered person syndrome, she was entitled to a requested jury instruc- tion to to the explain jury the relevancy of such evidence as it related to the reasonableness of her belief that the use of deadly force was immediately necessary to defend herself against her immi- husband’s nent use of unlawful force.
Judgment concur, reversed. All the J, Justices except Carley, who dissents. Justice, dissenting.
Cаrley, I agree with the majority to the extent that, it holds in a case, proper the trial court should give a on the battered per- son I also with the agree majority to the phraseology of the charge which should given. However, I cannot agree with the majority the judgment in this case should be and, reversed accordingly, must respectfully dissent.
As majority acknowledges, the “battered person syndrome” is “defense,” itself a but refers to a certain of evidence type which has some limited relevancy elucidating justification In state, defense. a person is justified in threatening or using force another “when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force (a). . . . .” (Emphasis supplied.) OCGA 16-3-21 As our § cases prior hold, clearly battered person syndrome evidence is admissible for the limited purpose of illustrating the defendant’s reasonable belief that the victim’s use of imminent, unlawful force wаs though the vic- tim’s use of not, fact, unlawful force was imminent. See also OCGA (d). 16-3-21 The battered person syndrome cannot constitute a sep- “defense,” arate since no one is justified ever in committing a present homicide because of past physical abuse. The law acknowledges self- defense as justification, but not revenge. However, evidence of past physical abuse can be relevant to show that the defendant had a rea- physical
sonable, incorrect, in the imminenсe of additional but belief pres- therefore, she was the victim and abuse at hands of ently acting justified in in self-defense. Battered separate defense, in connection admissible, not as evidence is [the defendant] “as of whether with a self-defense claim [his or] her life. . . .”Sanders v. acted in fear (3) (1983). Any who claims self-defense is previously prove him to the crimes committed entitled “to defending Daniels intent motive in himself.” show his *6 516) (1981). (1) any Likewise, defendant 593 upon syndrome based the battered is claims self-defense who thereof to show the reasonableness of the entitled to offer evidence to the belief that the use of force was tim’s use of imminent unlawful force. defend vic- “[t]he jury event,
In either can surrounding decide, of all the circumstances the when informed person] [reasonable attack, actions meet the whether the defendant’s supra at 593 Evidence that the standard.” Daniels v. defendant suffered from battered “circumstance” syndrome is another by jury, which, if believed the would authorize a find- ing expеrienced prior person, physical a had that reasonable who by reasonably abuse such as was endured the necessary, that the use of force the victim was believe though fact, was, belief erroneous. a
Because battered evidence has limited evi- dentiary relevancy, agree majority upon filing that, I the with the proper request, a entitled to the the is instructed (2) regard. generally in that See Harrell 890) (1978). agree charge proposed Moreover, that the given. majority opinion appropriate charge the is an to be This relevancy charge properly highlights person syn- the of the battered impartial evidence, drome not the itself. Such an and non- evidence by argumentative charge given coupled argu- court, trial with the parties weight counsel for to the the ment both to be to person syndrome evidence, allows to make an the objective, informed, as to determination the claim self-defense. proper request made, however, a never error fail Unless it is to relevancy to limited of evidence. Harrell v. supra. Accordingly, case a must be resolved on basis of requests If the review of refused made defendant. defend- request proposed by majority ant to made similar the one request charged principles the trial were otherwise jury. charging In the court, then the trial court erred in not so request, however, no absence of such refused there was error. requests majority notes, the refused all As the defendant’s three prior opinions However, from of this Court. were drawn in an language employed appellate court’s opinion may embody sound statement of and still argumentative law be too to qualify as (4) instruction. Stull v. appropriate The first of the defendant’s refused requests was:
Expert testimony regarding the battered woman’s syndrome a jury authorizes notwithstanding any lapse of find assault, time since the husband’s last the defendant hon- estly trying defend herself although her husband was not at the moment physically attacking her.
(Emphasis suрplied.) Assuming this is a correct statement of the law, it nevertheless also is a highly argumentative assertion that battered person syndrome evidence “authorizes” a finding favor of the defendant. Unlike the charge now proposed by majority, defendant’s refused request argumentatively focuses upon bat- tered person syndrome itself, rather than upon the neutral legal principle of the limited of that relevancy evidence to the claim of self-defense. trial court “[A] is not ‘even after requirеd, request, specifically point out particular evidence behalf of the defendants which the jury [Cit.]” Chester v. should consider.’ specially 9,Ga. “It is not error to refuse to charge where the request argumentative, summing facts up favorable to *7 State, Johnson v. the defendant’s of theory [Cit.]” innocence. 235 Ga. (1) (220 448) (1975). 486, 490 SE2d “It is not give error to refuse to requested charge argumentative which or favors one party’s posi- State, v. tion facts as Camp applying legal [Cit.]” principles. (2) (353 832) (1987). What the evidence “authоrizes” a to jury find is for proper subject argument by coun- sel, confined whereas the trial court’s should charge to neutral principles law. might
While it form a properly portion argument counsel, many and contains reasons and suggestions which might weight jury, going with the it would be outside of the proper limits for the to use such judge instructing jury upon the law of the case. State,
Miles v. SE The second of the defendant’s three refused requests was the fol- lowing:
You are authorized to consider the of an testimony expert witness аs to whether or not the defendant suffered from the syndrome battered woman to assist her you evaluating consider regard, you may In this self-defense. [of] defense on the battered woman witness testimony expert from the why suffering help explain person to syndrome mate, would not leave syndrome battered woman friends of her mate’s abusive family police, not inform herself. aggression against fear and would treatment statement of the is a correct request of this refused The first sentence argu- is an requеst sentence of this refused However, the second law. “help[s] evidence person as to what the battered mentative statement of that relevancy statement as to rather than a neutral explain,” Although the battered the claim of self-defense. evidence to circumstances, those the enumerated explain” may “help themselves relevant because are enumerated credibility of defendant’s contention evaluate the they jury “help that she shot danger herself in such imminent that she had perceived State, 612, 618 v. in self-defense.” Smith her husband charge proposed consistent with the Accordingly, court, if should instruct requested, a trial majority, admitted to assist evidence was syndrome the battered person reasonableness of the defendant’s belief evaluating However, assertions as to how the necessary. specific use of force was claim illustrates the defendant’s syndrome evidence counsel. Chester v. argument by should be a topic of self-defense State, v. supra; Camp Miles v. supra; Johnson v. “ correct, and should in itself be charge ‘A to supra. request cause for a the refusal to it will not be give otherwise perfect; (2) [Cit.]” new trial.’ Kessel (4) (1976). See also Freeman Since, out, requested the second sentence pointed refuse to it not error for the trial court to was improper, give request. testimony “Expert third refused was: request
]The defendant’s authorizes a the battered woman regarding find in imminent danger her life was honestly that the defendant believed discussed, kill As going previously and that her her.” husband therefore, refused. was, argumentative properly request the battered evi- argue Counsel was free to what *8 find, trial court should not instruct dence authorized it to but the claim of self- admitted to illustrate the defendant’s jury that evidence of that claim. acceptance as “authorizes” an defense is such evidence supra; Miles v. supra; Chester v. Johnson v. State, supra. Camp defendant’s three refused
Therefore, none of the my opinion, were, therefоre, refused. properly and all requests perfect charge, actually given, trial court’s as was a correct statement of the Indeed, the trial law of self-defense. court even specifically charged the “evidence of difficulties prior between the defendant and the alleged victim” had been admitted for the limited purpose of illus- “the state of trating feeling between the defendant and the alleged victim and the bent of mind and course of conduct on the part I defendant.” dо believe that a more elaborative on the rele- vancy person syndrome evidence, such the one pro- posed by majority, should be case in any which it is authorized 28, on or 1997. See Renner v. requested August after (3) (b) (397 Unlike the however, I majority, do not believe that there is reversible error in case, since the defendant did not make a proper request charge. Accordingly, respectfully dissent to the majority’s reversal of the defendant’s conviction. July 14, 1997.
Decided Lane, L. Elizabeth for appellant.
Fredric D. District Bright, Attorney, A. Stephen Bradley, Assis- Attorney, tant District for appellee. Bonner, Jr., Davis,
James C. Zipperman, Lotito, Kirschenbaum & Lotito, Nicholas A. amici curiae.
S97A0353. THE LIVINGSTON v. STATE.
Benham, Chief Justice. After hearing evidence concerning surround- ing Evans, the death of Keith a jury concluded that appellant How- Kelley murder, ard Livingston guilty of malice kidnapping with motor bodily injury, by taking, arson, vehicle theft concealing a death, of a firearm possession during the commission of a felony, and influencing witness.1 April initially sought imposition The crimes occurred on 1991. The State penalty, death and this Court conducted an interim review of this casе and the cases co-indictees, rendering 27,1994. Livingston
his a decision on June 748) (1994). Thereafter, pen the State withdrew its notice of intent to seek the death alty 11, 1995, appellant’s Appellant’s September case. trial commenced on after both his convicted, separately jury’s co-indictees had been tried and concluded with the return of guilty day, imposed all verdicts on counts on October 1995. That same the trial court imprisonment kidnapping convictions, consecutive life sentences for the murder and