*1 56,244 No. Betty Appellee, Appellant. v. Kansas, Hundley, State (693 475) P.2d Opinion filed 11, January 1985. Harris, Topeka, argued L. Michael the cause and was on the brief Randy Hendershot, attorney, argued cause, M. assistant district and Gene Olander, attorney, Stephan, attorney general, M. district T. Robert were appellee. him on brief for opinion of the court was delivered Betty Hundley was convicted a jury involuntary Herd, J.: manslaughter, 21-3404, Supp. K.S.A. 1983 as a lesser included murder, second-degree offense of with which she charged. charge arose shooting out of the death of hus-
band, Hundley, 13, January Carl B. on 1983. Betty Hundley
The married life of Carl and had been a They tumultuous one. had approximately been married ten years. During subjected that time Carl had Betty to much abuse. teeth, He had knocked out several of her her broken nose at least times, eyeballs five and threatened to cut her out and her head off. Carl had kicked down the stairs on numerous occasions repeatedly and had broken her ribs. Hundley and,
Mrs. part abuse, suffered from diabetes of his prevented Betty taking required Carl dosage her of insulin by hiding on diluting numerous occasions insulin with say, Betty Hundley water. Needless to went diabetic into comas approximately those occasions. In November six weeks prior death, Betty hospital to Carl’s had been in the for unknown discharged causes. When she was she went to live with Carl. He by knocking down, reacted in kicking his usual manner her This all Carl’s vio- choking unconsciousness. her into Jayhawk *2 She to the Motel. Betty could take. moved lence Junior cases, moving wife-beating her did not eliminate in typical As pattern a constant harassment. then started problem. Carl day life threaten her and those of night call her and He would carrying gun. she frightened so started family. She was her Betty had 13, 1983, day shooting, of the seen January On day, Betty going Carl he was early in at which time told Carl night thumping she heard a kill her. That to come over and By Betty was in the bathroom. the time motel door while she her door lock and got Carl had broken the out of the bathroom Betty entry by was followed violence. was entered the room. His again her life was threatened. Carl then hit and choked and him, Betty during with which time he forced to shower shaved fashion, nicking cutting pubic rough in a and violent and her hair episode, Betty to submit that crude Carl forced her. After with him. sexual intercourse Betty. that, to threaten She was Carl continued
Even after night stand sobbing pounded He a beer bottle on and afraid. window, she demanding get and threw a dollar bill toward the Betty Carl had her with cigarettes. testified hit beer him some Therefore, many past. feeling times in the threatened bottles bottle, purse, pulled gun her the beer she went to out laughed gun, he saw the Carl leave. When Carl demanded said, dead, bitch, now!” As he reached tauntingly and “You are bottle, Betty eyes gun. her She shut and fired beer again. spent gun five again it were shells in fired There shooting seized. the time of the the deceased had when was At paying She his back to attention to the beer bottle. was physically going door. not blocked body autopsy gunshot wounds in the of the revealed two gun fired appeared It also had been from dis- deceased. greater body victim. A feet from the blood tance two body had .17 content. sample the deceased’s alcohol revealed weighed pounds. Appellant testified he deceased 160 weighed pounds. ap- occupied the motel room next that of
Charles Tabor pellant. p.m. time after he heard testified that some 7:00 He say, a succession of “You of a bitch” followed someone son managers, Bill and Louise gunshots. He then notified motel They police. Shortly thereafter, called the Underwood. appellant came to the motel office and told Louise Underwood to call the police, that her husband had Appellant made her shoot him.
crying walking difficulty. Louise Underwood testified appellant body had come motel office with her battered and her prior face bruised on occasions. police opened key, testified the door to the room without a though properly
even prior evening. lock worked to that This appellant’s testimony corroborated that the deceased broke his way into her room. A number of additional witnesses called were by appellant to corroborate the deceased was that violent and abusive toward and had severely beaten her on innu- merable occasions.
Lilly Moffett, mother, testified pres- she had been ent on numerous *3 Hundley occasions when Carl had threatened daughter. recalled, kill her particular, She night one when visiting Hundley she was in the home and Carl started beating Betty. Betty begged stop, him to but he would not.
Gary Emery, a appellant’s, brother-in-law of testified Carl Hundley just did not restrict his Betty, threats to but threatened family other members of the and that his threats were taken seriously. Patterson, sister, appellant’s testified she had observed June
Betty Betty after had been point beaten Carl to the where her profusely face wounds required bled stitches. She also Carl, contrition, testified that in a moment of told her he was going quit beating to have to appellant because if he did not he would end up killing her. Bond,
Angela appellant’s niece, present testified she was when Carl, came home to hide from who was on thereafter, a rampage. shortly Carl arrived came in uninvited and dragged Betty by the hair out of the bedroom where she was hiding. He threw her the ground down on and kicked her repeatedly police finally until arrived and jail. took him to Wilhite,
Troy appellant’s nephew, Betty lived with Carl and Hundley. slap every He stated Carl hit would time he became put intoxicated. Wilhite also testified he observed Carl Betty’s water explain into insulin bottle. When he asked Carl to doing, replied what he was trying Betty. Carl he was to kill appellant’s None was evidence controverted. The State’s believing dependent upon the was
case immediate threat there was no evidence involuntary by jury man- guilty appellant was found was sentenced to a Supp. 21-3404. She slaughter, K.S.A. years nor than than two more period of not less of incarceration appeal is appeals. The sole issue on years prison. She five correctly given by the court whether the self-defense instruction self-defense. states Kansas law on given the trial court Appellant argues the the standard Pattern Instructions The trial court used incorrect. which reads: for Kansas on self-defense justified (self-defense)(the has claimed his conduct “The defendant person). defense of another aggressor person justified against an when and to the “A is in the use of force reasonably appears that such conduct extent to him and he believes against aggressor’s necessary such immediate use of to defend himself or another justification requires part a belief on the of defendant unlawful force. Such both person persuade that belief.” facts that would a reasonable existence of added.) (Emphasis Crim. PIK 2d 54.17. 21-3211, K.S.A. This instruction was derived from ' states: aggressor person justified against an when and to the “A in the use of force reasonably appears him he believes that such conduct extent it against necessary aggressor’s such imminent use of to defend himself or another added.) (Emphasis unlawful force.” in the PIK of the word “immediate” Appellant argues the use statute, “imminent,” instruction, rather as stated *4 considering prevented jury the the error since it constitutes long-term victim toward concerning the violence of the evidence appellant. witnesses, appellant, other defense called fifteen and the nature of the deceased
who testified about
the violent
is
he brutalized
It well
numerous occasions on which
asserted,
is
evidence of
in Kansas that when self-defense
settled
the
of the deceased toward
defend-
the cruel and violent nature
in this case. See State v.
admissible,
Gray, 179
is
ant
as it was
133,
(1956).
question is
instruction
what
Kan.
The State’s instructed by the trial court’s 13, consider the evidence use of Instruction which stated: part “You consider evidence whatever is admitted in the trial as
record, testimony witnesses, it whether an article or document marked exhibit, . as an other matter . . admitted argues The State further changing the self-defense instruction explicitly testimony direct consideration of the abuse give emphasis would undue to that evidence. We have held jury’s unduly instructions are not direct attention to one Blocker, of evidence. State v. piece isolated fact or 211 Kan. Blocker was not com- (1973). argues
The State attempting to return to the old Simon, State v. concerning PIK instruction In self-defense. 572, 575, (1982),
231 Kan.
It is not the required use of the standard as this Simon that the Rather, court in appellant complains of. it is the substitution in of the word “immediate” the PIK for instruction “imminent,” Simon as well as word was used legislature explained 21-3211. K.S.A. The PIK committee “immediate” was inserted in the self-defense
466 Crim. understood term.” PIK it is a “better because
“imminent” 54.17, Comment. 2d by noted, be prior abuse considered previously
As by the use of self-defense determining the reasonable jury in Thus, allows whether question is the use of the evidence” or “all the whether to consider precludes jury’s “imminent” rather than “immediate” word “Immediate” is defined in prior of the abuse. consideration (1961): Dictionary “Occur- New International Webster’s Third p. of time.” 1129. accomplished without loss ring, acting or “Ready ... place to take as: “Imminent” defined Therefore, time limitations use p. impending.” 1130. much stricter than those with the “immediate” are word “imminent.” use word by the nature of. this case. This is is dramatized issue wife, psychologically case of battered
textbook Betty Hundley had hostage prisoner of war cases. similar to and years. beatings ten Her bones husband’s brutal survived her repeated broken, her teeth knocked out bruises had been police leave him. She called the inflicted, but she did not stay Hundley. with Carl occasionally would continue but cases, why remained after mystery, all wife she as in battered question only gleaned can beatings. The answer to that malady. It of this is not new compiled case histories justified since Old phenomenon, having recognized and been unreported, largely It but is well docu- goes Testament times. extremely widespread, affect It is estimated to between mented. The Battered Note, forty million women. See four Wife’s Killed, Dilemma: Kill or To Be (1981); To Hastings 895 32 L.J. Abuse, Spouse Health and and Treatment of Identification Mental Health Boles, (Conference proceedings, Long Agency Center; York; York, New New Medical Island Jewish-Hillside Overview: The Hilberman, 21, 1980); November “Wife-Beater’s Beconsidered, Psychiatry, American Journal Wife” (1980); Fleming, Stopping Wife A Abuse: No. 11:1336-1347 Emotional, Implications Psychological, Legal Guide to the (1979); Helping Dobash Abused and Those Her for the Woman Dobash, Wives, Against A the Patri- Against Case Violence Beating: Levy, The Silent Crisis archy (1979); Langley and Wife Martin, (1976). (1977); Battered Wives *6 beating steeped concept privacy, in the of marital Wife and personal property the belief wives are the of the husband. In theory Blackstone’s Commentaries the of coverture was ad- vanced, making punishment a impossi- for mistreatment of wife Blackstone, ble since husband and wife were considered one. England (3rd
Commentaries on the Laws of 442-44 ed. 1884). though beating recognized Even wife is now as a in crime states, all fifty legal all the traditional attitudes have made beating’s recognition actual wife criminal of nature slow in crime, coming. recognized Even after it is it a is difficult obtain misconceptions even-handed enforcement. The have af- the perception fected battered woman’s of herself and reduced the options to her. available
Thus, synopsis we can see from this brief easy that there is no why stay answer battered women with their abusive hus- Quite likely bands. emotional and dependency financial and fear primary are remaining the They reasons for in the household. incapable feel reaching help of justifiably out for repri- fear they sals angry police. from'their if call husbands leave or severe, time, a long abuse is so for so great the threat of constant, bodily harm so a creates standard mental attitude in its victims. people Battered women are terror-stricken whose mental state is a distorted and bears marked resemblance to that of a hostage prisoner a beatings they of war. The horrible are subjected believing nothing they to brainwash them into there They can do. live in fear eruption constant of another of violence.
They persons become disturbed from the torture. case, years abuse,
Under the facts of this after ten of finally desperate became so in her terror of Carl fled. she Her escape avail; no he followed her. Her fear justified. through
He broke door of her motel locked room and started again. his abuse Carl’s threat was no less life-threatening with sitting playing him tauntingly motel room with his beer advancing objective bottle than if he were toward her. The test is reasonably how prudent perceive battered wife would Carl’s Expert testimony demeanor. prove admissible the nature just effect wife-beating prove of as it is admissible prisoners war, hostages, standard mental state of of and others long-term Thus, under life-threatening can conditions. we see in use the word “immediate” the instruction on self- emphasis on the immediate action of places undue
defense deceased, buildup nature of terror and and obliterates period systematically long created over fear which had been accurately. the situation more “Imminent” describes time. following analogy under a more aptly Appellant makes further demonstrates difference normal situation which aggressor and “immediate.” An of “imminent” definitions fight may gets in a customarily armed and involved who is danger, justifying the use of force self- present an imminent defense, though aggressor is unarmed on the occasion. even danger, aggressor since is in fact no There immediate *7 unarmed, apprehension danger. In is a reasonable of but there words, recognizes the law of self-defense one reason- other Reed, v. 767, State See 53 Kan. ably danger fear but be mistaken. (1894). 37 174 Pac. the of the “immediate” was question as to use word
The
in State v.
Supreme Court
by
Washington
the
addressed
Wanrow,
(1977).
221,
In error in Appeals the California Court of found reversible give telling refusal an additional con- by defendant, previous threats made the victim to the sider coupled with the use of the word “immediate” self- instruction, together since these detracted defense from the history jury’s relationship consideration of the of the between victim. the defendant The California court ruled that the relationship evaluating be considered in the perception must response the situation and the thereto. The court that noted person who had been threatened or beaten an individual justified acting quickly taking more and in harsher measures protection than would another who had not received such threats.
We trial 54.17, conclude the court’s use of PIK Crim. 2d departed statutory language, impermissibly from the excluded jury’s from the the effect consideration
history toward violence decedent. This considera- tion was critical to the perception of the need to thereby defend herself in this case and caused reversible error. judgment of the trial court is reversed and this case remanded for a new trial. J., dissenting: There can be no
McFarland, doubt violent, evidence that the was a deceased brutal man who had repeatedly injured years. attacked and his wife over number of concerned, however, majority opinion I am that an ex- *8 ample adage facts old that harsh make bad law. (5th 1979) Dictionary
Black’s Law 675-76 ed. contains following definitions: Present; once; delay; by any “IMMEDIATE. at without not deferred interval sense, word, any very precise signification, time. In this of without denotes instantly any that action is or be taken must either or without considerable loss of
time.” hand; immediate; “IMMINENT. at rather Near mediate close rather than touching; impending; point happening; threatening; menacing; peril- on the of ous.” self-defense, DANGER. In “IMMINENT relation homicide in this term met, danger, instantly means immediate such as must be such as cannot against by calling guarded protection the assistance of others or the law. of Or, defined, appearance impending such otherwise an of threatened and injury prudent put as would a his reasonable and man to instant defense.” There is a fine distinction between “immediate” and “immi- statutory term Probably be better to utilize
nent.” it would in a self-defense instruc- than “immediate” “imminent” rather involving matters of seconds In a factual situation tion. the use of “immediate” significant distinction could be example An of such situation reversible error. constitute could parking One in the middle of a lot. arguing men would be two while for the door of his automobile man sees the other reach gun man kill him and he knows the has stating going he is danger in such circumstances be im- a knife therein. But the facts before us do not show immediate. minent but not danger harm. immediate imminent or only persons in the motel room. One admits There were two transpired only of what is that of killing the other. The version true, Taking this as the deceased told the the defendant herein. money buy ciga- premises, giving her defendant to leave shorts, then sat the bed in his not even rettes. The deceased direction. defendant reached for looking in the defendant’s door, gun therefrom and fired five shots at purse took busy part in a parties were in a motel room the deceased. early evening They were city Topeka in the hours. not At help where would be difficult to obtain. some remote area least, very have had a five-minute head start on defendant would cigarettes. I fail had she failed to return the defendant situation, how, in this factual it could be reversible error to see than “imminent” in the self-defense use “immediate” rather instruction as it would not have altered outcome. affirm the trial court.
I would