PEOPLE OF MI V ANA MARIE SANDOVAL-CERON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 3, 2010
Plaintiff-Appellee,
v
No. 286985
Branch Circuit Court
LC No. 07-028710-FC
ANA MARIE SANDOVAL-CERON,
Defendant-Appellant.
Before: STEPHENS, P.J., and GLEICHER and M.J. KELLY, JJ.
GLEICHER, J. (dissenting).
I respectfully dissent. In my view, the trial court abused its discretion when it refused to
permit the introduction at trial of proposed expert testimony regarding a battered woman
syndrome (BWS) defense. The exclusion of this evidence contravened longstanding Michigan
case law concerning syndrome evidence, violated MRE 702, and denied defendant her
constitutional right to pursue a self-defense theory.
Defendant stabbed the victim, Ricardo Prieto, during the waning hours of a wedding
reception. Defendant and Prieto never married, but had children together and periodically
cohabited. Unrebutted evidence showed that defendant and Prieto had a turbulent relationship.
Prieto had physically abused defendant on multiple occasions, frequently leaving her bruised.
After one beating, defendant obtained a personal protection order. In August 2006, Prieto
learned that defendant’s husband had sexually molested Prieto’s daughter. A social worker
testified that Prieto became enraged when informed of the sexual abuse. Michelle Estrada, a
friend of defendant’s, recalled that Prieto blamed defendant for allowing the abuse to take place.
Within days, Prieto physically abused his wife by pouring beer and salt on her. After Prieto’s
wife told him to leave, he apparently moved back in with defendant. Prieto’s wife advised
defendant of his recent abusive behavior and expressed concern that he would hurt defendant.
On September 9, 2006, defendant and Prieto attended a wedding at the home of Michelle
and Jesus Estrada. As defendant and Prieto sat together on the Estradas’ porch after most of the
other wedding guests had departed the reception, defendant and Prieto began to argue. Jesus
Estrada recalled that Prieto was drunk. Prieto suddenly struck defendant in the face, and within
minutes she fatally stabbed him.
Defense counsel apprised the prosecutor and the trial court that defendant intended to rely
“on a combination of self defense and Battered Women’s Syndrome pursuant to the Michigan
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Self Defense Jury Instruction (CJI2d 7.23),” and planned to support defendant’s self-defense
theory with expert testimony by Firoza VanHorn, Ph.D. The prosecutor moved in limine to
exclude VanHorn’s testimony on the basis that it would violate MRE 702, because it “is not
based upon sufficient facts or data in this case” and “is not the product of a reliable scientific
principle and method.”
The trial court conducted an evidentiary hearing at which VanHorn offered testimony.
VanHorn described the “common characteristics of battered women” identified in the literature
on this subject. VanHorn explained the “cycle of violence” endured by abused women, and
opined that as a result of “being battered and being loved, being battered and being loved,” a
battered woman’s “perception of what is going on around” her is “skewed.” According to
VanHorn, when an abused woman receives a blow, and particularly a blow to the face, “she
believes that she’s in danger. She believes she’s going to die. She believes that this is it for
her.” In a bench opinion, the trial court found VanHorn qualified to express opinions about
BWS, and observed “that in some circumstances” it would find VanHorn’s testimony to be “the
product of reliable principles and methods.” However,
in this particular case, the Court is not satisfied that the witness as she testified
was able to apply the principles and methods reliably to the facts of this particular
case. While she had reviewed police reports and the transcript of the preliminary
examination, interviewed or had summaries of other witnesses’ testimony, that
she relied particularly upon her interview with the defendant. And what the
Court’s fear is that in this—with the facts of this particular case, that the
proffering of Dr. VanHorn as an expert would be unfairly and improperly
prejudicial or confusing to the trier of facts.
Subsequently, the trial court refused to allow the jury to hear the testimony of several witnesses
familiar with defendant’s relationship with Prieto, who would have supplied details concerning
episodes of physical abuse that Prieto inflicted on defendant. After these rulings, the defense
opted not to present a self-defense claim.
The majority reasons that because VanHorn “failed to close the ‘analytical gap’ between
her expertise on battered woman syndrome and the facts of the particular case,” the trial court
did not abuse its discretion by barring her testimony. Ante at 6. The majority further opines,
“Because the facts did not support a claim of self-defense, the proposed testimony would not
have assisted the jury in understanding the evidence or in determining a fact in issue. MRE
702.” Id. I believe that the majority and the trial court have misapprehended the legal standard
governing the admission of syndrome evidence, and that the trial court abused its discretion
when it excluded VanHorn’s testimony under an incorrect legal standard. Furthermore, this error
mandates a new trial because it deprived defendant of a substantial defense and undermined the
reliability of the verdict.
I. ADMISSIBILITY OF SYNDROME EVIDENCE BEFORE 2004
Our Supreme Court first examined the admissibility of expert testimony concerning
syndrome evidence in People v Beckley, 434 Mich 691; 456 NW2d 391 (1990). The evidence at
issue in Beckley concerned “the characteristics and patterns of behavior typically exhibited by
sexually abused children.” Id. at 697. In Beckley and a companion case, the defendants
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challenged the admission of expert testimony describing aspects of behavior exhibited by
sexually abused children on the ground that “the testimony is unreliable because it fails to meet
the Davis/Frye test.”1 Id. at 705. The Davis/Frye test set forth a “general acceptance” standard
of admissibility:
The foundational requirement for admissibility under the Davis/Frye test
is that the proponent of the evidence must show that the scientific principle or
technique has gained such general acceptance within the scientific community as
to render the technique or principle reliable. Further, general scientific
acceptability must be established by disinterested scientists. The Davis/Frye test
restricts the admissibility of relevant evidence on the basis of general scientific
acceptance to ensure that a jury is not relying on unproven and ultimately
unsound scientific methods. [Id. at 718-719 (footnote omitted).]
The plurality opinion in Beckley observed that, “as a general rule, the Davis/Frye test has
not been applied to behavioral sciences,” and that “it is difficult to fit the behavioral professions
within the application and definition of Davis/Frye.” 434 Mich at 719-720. In light of the
inherent differences between “techniques and procedures based on chemical, biological, or other
physical sciences as contrasted with theories and assumptions that are based on the behavioral
sciences,” a plurality of the Supreme Court held that syndrome evidence may be admitted
without application of the Davis/Frye test, “so long as the purpose of the evidence is merely to
offer an explanation for certain behavior.” Id. at 721.
Two years after the Supreme Court decided Beckley, this Court considered the
admissibility of battered spouse syndrome (BSS) evidence.2 In People v Wilson, 194 Mich App
599, 602; 487 NW2d 822 (1992), the defendant contended that “the jury should consider the fact
she suffered from the BSS in evaluating her self-defense claim because it relates to the question
whether she reasonably believed her life was in danger.” Citing Beckley and applying its
reasoning, this Court concluded “that in cases such as this one expert testimony regarding the
BSS will give the trier of fact a ‘better understanding of the evidence or assist in determining a
fact in issue.’” Id. at 604, quoting Beckley, 434 Mich at 711. The Court in Wilson explained that
to be admissible, BSS evidence must remain within the evidentiary confines set forth in Beckley:
In Beckley, the Court found expert testimony regarding the syndrome
useful to the jury because it provided the jury information with which to dispel
some of the common misconceptions regarding a child’s behavior following
abuse. Given this rationale for the introduction of “syndrome” testimony, the
Court limited the testimony to background information or discussion of the traits
or symptoms experienced by victims of the syndrome. Because an expert
regarding the child sexual abuse accommodation syndrome is an expert with
1
See People v Davis, 343 Mich 348; 72 NW2d 269 (1955); Frye v United States, 54 App DC 46;
293 F 1013 (1923).
2
Case law uses the terms battered woman syndrome and battered spouse syndrome
interchangeably.
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regard to the syndrome and not the victim, it is inappropriate for that expert to
render an opinion regarding whether the victim actually suffers from the
syndrome. However, the Court in Beckley held the expert could render an opinion
that the victim’s behavior is common the class of child abuse victims as long as
the symptoms are already established in evidence. The expert may not introduce
new facts about the victim unless those facts are properly admitted under a rule
other than MRE 702. Beckley at 726-727, 729.
We believe the same limitations should apply to experts who testify about
the BSS. As with the child abuse syndrome, the BSS expert is an expert with
regard to the syndrome and not the particular defendant. Thus, the expert is
qualified only to render an opinion regarding the “syndrome” and the symptoms
that manifest it, not whether the individual defendant suffers from the syndrome
or acted pursuant to it. [Id. at 604-605.]
The Supreme Court revisited syndrome evidence in People v Christel, 449 Mich 578; 537
NW2d 194 (1995). The Supreme Court framed the question presented in Christel as “the
admissibility of expert testimony regarding the battered woman syndrome when offered to assist
the jury in understanding the complainant’s testimony and actions.” Id. at 579. In Christel, the
Supreme Court acknowledged that a majority of five justices in Beckley “agreed that where
syndrome evidence is merely offered to explain certain behavior, the Davis/Frye test for
recognizing an admissible science is inapplicable.” Id. at 590. In a footnote, the Supreme Court
observed, “Defendant does not contend that the Davis/Frye rule should apply to battered woman
evidence.” Id. at 590 n 18. Without further discussion of the Davis/Frye test, the Supreme Court
extended the Beckley holding “to expert testimony of the battered woman syndrome so that the
expert may, when appropriate, explain the generalities or characteristics of the syndrome.” Id. at
591. Notably, the Supreme Court in Christel specifically declined to either “express approval or
disapproval” of this Court’s opinion in Wilson, 194 Mich App 599, while nevertheless
recognizing that “a majority of jurisdictions favor the admissibility of expert testimony on the
issue of the battered woman syndrome when offered as a means of self-defense.” Id. at 589.
II. ADMISSIBILITY OF SYNDROME EVIDENCE AFTER 2004
When Beckley, Wilson and Christel were decided, the pertinent rule of evidence
governing expert testimony, MRE 702, read as follows:
If the court determines that recognized scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of an opinion or
otherwise.
Effective January 1, 2004, our Supreme Court amended MRE 702, which currently states:
If the court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise if
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(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
The three numbered criteria added to MRE 702 “require[] trial judges to act as gatekeepers who
must exclude unreliable expert testimony. See Daubert v Merrell Dow Pharmaceuticals, Inc,
509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993), and Kumho Tire Co, Ltd v Carmichael,
526 US 137; 119 S Ct 1167; 143 L Ed 2d 238 (1999).” Staff Comment to 2004 Amendment of
MRE 702. In Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004), the
Supreme Court elaborated that the trial court’s gatekeeper role
applies to all stages of expert analysis. MRE 702 mandates a searching inquiry,
not just of the data underlying expert testimony, but also of the manner in which
the expert interprets and extrapolates from those data. Thus, it is insufficient for
the proponent of expert opinion merely to show that the opinion rests on data
viewed as legitimate in the context of a particular area of expertise (such as
medicine). The proponent must also show that any opinion based on those data
expresses conclusions reached through reliable principles and methodology.
[Emphasis in original.]
Neither this Court nor our Supreme Court has squarely addressed whether the holdings
announced in Beckley, Wilson and Christel survived the 2004 amendment of MRE 702. In
Beckley, 434 Mich at 721, the Supreme Court expressed that “there is a fundamental difference
between techniques and procedures based on chemical, biological, or other physical sciences as
contrasted with theories and assumptions that are based on the behavioral sciences.” If this
statement remains valid, the rationale for refraining from applying Davis/Frye to syndrome
evidence applies equally to the application of Daubert/Gilbert and the amended version of MRE
702. Absent a published decision to the contrary, I believe that Beckley, Wilson and Christel
continue to provide controlling authority regarding the admissibility of syndrome evidence.
III. APPLICATION OF BECKLEY, WILSON AND CHRISTEL
Defendant sought to introduce VanHorn’s expert testimony about BWS to support a selfdefense claim at trial. As in Wilson, 194 Mich App at 602, defendant “argues the jury should
consider the fact that she suffered from the BSS in evaluating her self-defense claim because it
relates to the question whether she reasonably believed her life was in danger.” In Wilson, this
Court affirmed an interlocutory order permitting the defendant to introduce “expert testimony
regarding a description of the general syndrome and that certain behavior of the defendant
already in evidence is characteristic of battered spouse victims generally . . . .” Id. at 605.
However, the Court cautioned that testimony “regarding whether the defendant suffers from the
syndrome and whether the defendant’s act was the result of the syndrome” must be excluded. Id.
The trial court in this case concluded that VanHorn qualified as an expert in BWS, and
that “in some circumstances” her testimony “would be the product of reliable principles and
methods.” But the trial court excluded VanHorn’s testimony on the basis of the court’s
application of MRE 702(3), a provision added in 2004, which requires that the proponent of
expert testimony demonstrate that “the witness has applied the principles and methods reliably to
the facts of the case.” Although the trial court’s reasons for rejecting VanHorn’s testimony on
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this ground are not entirely clear, the court expressed concern about the fact that VanHorn
“relied particularly upon her interview with the defendant,” and opined that “with the facts of
this particular case, . . . the proffering of Dr. VanHorn as an expert would be unfairly and
improperly prejudicial or confusing to the trier of facts.” The trial court failed to elucidate any
specific reason for its determination that BWS evidence would unfairly or improperly prejudice
the prosecutor in this case, and I can discern none. I cannot meaningfully distinguish this case
from Wilson, 194 Mich App 599. In Wilson, the defendant admitted “shooting the victim while
he slept, but claim[ed] she acted in self-defense following forty-eight hours of abuse and death
threats and years of battery.” Id. at 601. This Court concluded that “expert testimony regarding
the BSS will give the trier of fact a ‘better understanding of the evidence or assist in determining
a fact in issue.’” Id. at 604, quoting Beckley, 434 Mich at 711.
IV. APPLICATION OF MRE 702
The majority construes the trial court’s ruling as based on MRE 702, rather than on MRE
403:
The trial court did not rule that evidence of battered woman syndrome was
inherently inadmissible, or that the proposed expert lacked the knowledge, skill,
or experience to qualify as an expert. Rather, the expert failed to close the
‘analytical gap’ between her expertise on battered woman syndrome and the facts
of the particular case. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 783; 685
NW2d 391 (2004). [Ante at 6.]
By the citation to Gilbert, the majority presumably suggests that VanHorn improperly
extrapolated from general data concerning BWS when rendering her opinions in this case.3 As
explained above, I believe that Beckley, Wilson and Christel counsel against a strict application
of MRE 702 when considering the admission of syndrome evidence. But even if MRE 702
applies in full measure to syndrome evidence, I disagree with the majority’s conclusion that an
“analytical gap” separated the data regarding BWS and VanHorn’s testimony in this case.
A. GENERAL PRINCIPLES OF SELF-DEFENSE
“[T]he killing of another person in self-defense is justifiable homicide if the defendant
honestly and reasonably believes that his life is in imminent danger or that there is a threat of
serious bodily harm.” People v Heflin, 434 Mich 482, 502; 456 NW2d 10 (1990).
3
In Gilbert, 470 Mich at 783, the Supreme Court noted that an “analytical gap” may occur
between data and an expert’s opinion, citing General Electric Co v Joiner, 522 US 136, 146; 118
S Ct 512; 139 L Ed 2d 508 (1997). The pertinent language in Joiner reads:
Trained experts commonly extrapolate from existing data. But nothing in
either Daubert or the Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the
expert. A court may conclude that there is simply too great an analytical gap
between the data and the opinion proffered. [Id.]
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As a general rule, the killing of another person in self-defense by one who
is free from fault is justifiable homicide if, under all the circumstances, he
honestly and reasonably believes that he is in imminent danger of death or great
bodily harm and that it is necessary for him to exercise deadly force. [People v
Riddle, 467 Mich 116, 119; 649 NW2d 30 (2002).]
In addition to these general concepts, the Supreme Court emphasized in Riddle that “a person is
never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat
from an attacker who he reasonably believes is about to use a deadly weapon.” Id. (emphasis in
original). “[A]s long as he honestly and reasonably believes that it is necessary to exercise
deadly force in self-defense, the actor’s failure to retreat is never a consideration,” and “he may
stand his ground and meet force with force.” Id. In 2006, our Legislature codified these
holdings by enacting MCL 780.972, which contains the following pertinent portions:
(1)
An individual who has not or is not engaged in the commission of
a crime at the time he or she uses deadly force may use deadly force against
another individual anywhere he or she has the legal right to be with no duty to
retreat if either of the following applies:
(a)
The individual honestly and reasonably believes that the use of
deadly force is necessary to prevent the imminent death of or imminent great
bodily harm to himself or herself or to another individual.
(b)
The individual honestly and reasonably believes that the use of
deadly force is necessary to prevent the imminent sexual assault of himself or
herself or of another individual.
The principles outlined in Heflin, Riddle and MCL 780.972 establish that a defendant
may rely on self-defense if evidence supports that she both reasonably and honestly believed
deadly force necessary to prevent her death or serious bodily harm. Whether a defendant acted
in self-defense is a question of fact for the jury. People v Prather, 121 Mich App 324, 330; 328
NW2d 556 (1982). When a defendant claims self-defense, a jury must resolve whether the
defendant honestly and reasonably believed that she faced imminent danger of death or great
bodily harm. People v George, 213 Mich App 632, 635; 540 NW2d 487 (1995). And “[o]nce
evidence of self-defense is introduced, the prosecutor bears the burden of disproving it beyond a
reasonable doubt.” People v Fortson, 202 Mich App 13, 20; 507 NW2d 763 (1993).
B. SELF-DEFENSE PRINCIPLES APPLIED
Several witnesses testified about the altercation that resulted in Prieto’s death. Michelle
Estrada, at whose home the wedding reception took place, recalled seeing defendant and Prieto
sitting on the back porch, talking and drinking beer. Michelle left her home briefly, and when
she returned she saw defendant and Prieto arguing and asked her husband, Jesus Estrada, to
intercede. Michelle “glanced back up to the porch,” and saw Prieto’s “hand come across
[defendant’s] face, and that’s when I seen the blood on her lip, and that’s when the argument got
heated more, I guess.” Michelle could not specifically recall if Prieto hit defendant with his
“open hand” or his fist; she explained, “I just know it was the back of his hand is what made
contact with her mouth.” The prosecutor does not dispute that Prieto initiated the affray.
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After Prieto struck defendant’s face, Michelle Estrada again urged her husband to step in
and deescalate the situation. Michelle remembered that Prieto left the porch and defendant threw
a beer bottle and a flowerpot at him, but missed. Defendant went inside the house and came out
with a knife in her hand. Prieto and defendant continued fighting in the yard, and Jesus Estrada
attempted to separate them, until Jesus tired and put his hands on his car. When Jesus turned to
find defendant and Prieto, the knife lay on the ground and Prieto had been stabbed. Neither of
the Estradas saw defendant stab Prieto.
VanHorn’s testimony at the evidentiary hearing focused primarily on the general
characteristics of battered women and the “cycle of violence” in which they live:
Q.
typically?
Does—in this cycle of violence, does the violence repeat itself
A. Well, it does, and sometimes . . . the relationship could last for a year
and nothing happen[s] or months and nothing happen[s], so it’s not like it happens
all the time one after another. The person, the woman doesn’t know when it’s
going to happen.
Q. Does the violence always or typically escalate?
A. Yes.
Q. How so?
A. It’s the power and control that the man has. . . . It’s a pattern of
coercion and control that the man has on the woman. And so it’s . . . [a] repeated
number of assault[s], one after another sometimes, but most of the time it’s—you
know, it stay—it’s quiet and then it’s the cycle start[s] again. And the woman
tries all her best not to let this happen. She’s very much attune[d] of the clues of
what will trigger this range [sic] in the men. She is always in constant fear of her
life. She’s always looking out. She’s always feel [sic] that she’s in danger.
VanHorn averred that physical abuse can distort a victim’s perception of harm, and affect “her
ability to make rational decision[s] and use good judgment.”
Expert testimony concerning BWS bore direct relevance to a critical element of selfdefense: the honesty and reasonableness of defendant’s belief that she faced imminent danger of
death or great bodily harm during her fight with Prieto. VanHorn’s explanation of BWS would
have assisted the jury in assessing whether defendant honestly believed that at the time of the
altercation with Prieto she faced imminent death or serious bodily injury, and in assessing the
reasonableness of defendant’s actions after Prieto hit her in the face. VanHorn posited that
physical abuse in a battering relationship alters a victim’s state of mind and her perceptions of
danger. This testimony would have enhanced the jury’s ability to consider whether defendant’s
actions in obtaining and using the knife constituted a reasonable effort at self-defense, derived
from an honest belief in the imminence of life threatening danger.
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The majority rejects that the facts of this case support self-defense, in part because the
majority divides the relevant events of September 9, 2006 into two separate brawls. As the
majority would have it, defendant “became the aggressor” in a second affray when she threw
objects at Prieto, and “decided to physically attack Prieto after the initial altercation had ended.”
Ante at 4. According to the majority, during the second series of events, defendant formed the
intent to “escalate the violence by arming herself with a deadly weapon, running Prieto down,
and stabbing him to death.” Id. (emphasis in original). The majority’s characterization of events
supports that defendant could not have harbored a reasonable belief in the imminence of death or
serious bodily harm. But the majority ignores that a jury must view the events as they appeared
to defendant, rather than to a panel of appellate judges reading a cold record:
For over 100 years Michigan law has acknowledged the right of a person
to act upon a reasonable belief that he is in danger of death or serious bodily
harm. Actual necessity is not the test for self-defense; where circumstances
present a person with reasonable cause to believe he is in danger he may respond,
even if his belief is later shown to have been a mistaken one. Pond v People, 8
Mich 150 (1860). See, also, People v Macard, 73 Mich 15; 40 NW 784 (1888);
People v Giacalone, 242 Mich 16; 217 NW 758 (1928), and People v Cameron,
52 Mich App 463; 217 NW2d 401 (1974).
In People v Burkard, 374 Mich 430; 132 NW2d 106 (1965), the Supreme
Court found error in the part of the trial court’s instruction that required a finding
that an assault was in fact about to be made before the defendant would be
justified in using lethal force to protect his wife. The proper test, stated the Court,
was not necessity in fact but rather an honest belief in the necessity for action.
It is unlikely that Burkard introduced a new determination for self-defense
cases—whether a defendant’s belief in impending harm was honest or dishonest.
The test of ‘honest belief,’ we take it, means only that a defendant’s conduct
should be judged ‘from the circumstances as they appeared to him at the time.’
People v Tubbs, 147 Mich 1, 12; 110 NW 132 (1907).
‘The question to be determined is, did the accused, under all the
circumstances of the assault, as it appeared to him, honestly believe that he was in
danger of his life, or great bodily harm, and that it was necessary to do what he
did in order to save himself from such apparent threatened danger?’ People v
Lennon, 71 Mich 298, 300-301; 38 NW 871 (1888). [People v Shelton, 64 Mich
App 154, 156-157; 235 NW2d 93 (1975).]
Introduction of expert testimony concerning BWS would have permitted the jury to view
the evidence through the lens of defendant’s experience as a victim of Prieto’s violence, and to
determine, on the basis of the circumstances as they presented to defendant following her blow to
the face, whether defendant’s belief in imminent death or serious bodily harm qualified as
reasonable. A jury could reasonably have concluded that defendant did not perceive two
separate, distinct affrays, but one continuous, unrelenting peril in the course of which the threat
of serious bodily injury never abated. “[T]he expert’s testimony might also enable the jury to
find that the battered [woman] … is particularly able to predict accurately the likely extent of
violence in any attack on her. That conclusion could significantly affect the jury’s evaluation of
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the reasonableness of defendant’s fear for her life.” State v Kelly, 97 NJ 178, 207; 478 A2d 364
(1984). See also State v Allery, 101 Wash2d 591, 597; 682 P2d 312 (1984):
We find that expert testimony explaining why a person suffering from the
battered woman syndrome would not leave her mate, would not inform police or
friends, and would fear increased aggression against herself would be helpful to a
jury in understanding a phenomenon not within the competence of an ordinary lay
person. Where the psychologist is qualified to testify about the battered woman
syndrome, and the defendant establishes her identity as a battered woman, expert
testimony on the battered woman syndrome is admissible. This evidence may
have a substantial bearing on the woman’s perceptions and behavior at the time of
the killing and is central to her claim of self-defense. [Citation omitted.]
Had Prieto been the first to draw a knife, defendant would have had no need of testimony
explaining her perception of imminent death or great bodily harm. Here, however, defendant
claimed that the threat Prieto posed could only be fully understood in the context of a battered
woman’s past experience. The notion that an abused woman could reasonably and honestly fear
death or serious bodily harm absent immediate and obvious deadly force directed against her is
hardly new in the annals of Michigan law. In Giacalone, 242 Mich at 19, the defendant shot and
killed her husband at home, and raised a self-defense claim. “To support the defense, evidence
was offered of threats made by deceased to defendant shortly before the shooting, of assaults
made by him upon her, of her physical injuries, and of his brutal and violent treatment of her for
some time prior to the event in question.” Id. At around 7:00 p.m. on the evening of the
shooting, the deceased “became violently enraged, without just cause, and choked defendant,
leaving bruises on her throat.” Id. The deceased threatened to kill the defendant and hung a
loaded pistol on a nail near his bed. Other guns were also present in the bedroom. At
approximately 9:00 p.m., the deceased went to bed. About two or three hours later, when the
defendant believed the decedent to be asleep, the defendant took the pistol and “started to leave
the room to go to the home of a neighbor.” Id. at 19-20. As the defendant left, she heard the
deceased make a noise, thought he had awakened, and feared that he would kill her with another
weapon, prompting her to shoot and kill him. Id. at 20.
The trial court refused to admit evidence supporting the defendant’s self-defense theory,
and charged the jury that the shooting “is neither excusable nor justifiable homicide but … is
felonious homicide.” Giacalone, 242 Mich at 18. The Supreme Court reversed the defendant’s
murder conviction, explaining in pertinent part:
The rule obtaining in this State is:
“That the circumstances must be viewed from the standpoint of the
accused alone, and that if they are sufficient to induce in him an honest and
reasonable belief that he is in danger of great bodily harm or loss of life, he is
justified or excused in killing.” 30 C.J. p 63.
It is said in 1 Michie on Homicide, p 1029:
“Evidence of the conduct of the deceased is admissible to show the
reasonableness of the defendant’s apprehension of danger.”
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and on p 1027:
“Upon the issue of self-defense, any evidence, which, according to the
common experience of mankind, tends to show that the defendant had reasonable
cause to apprehend great bodily harm from the deceased is admissible. [Id. at 21.]
The Supreme Court in Giacalone, 242 Mich at 22, reasoned that the defendant’s version
of events supported self-defense because
[a]fter beating defendant deceased said he would kill her before morning. It was
not yet morning. He had hung the loaded pistol within reach. He had other guns
and ammunition near and in the room. Defendant had suffered his violence and
brutality. She knew him. Her fear would not be lessened by her apprehension of
being discovered in her attempt to leave the home. Viewed from her standpoint
of the time, or from any standpoint, it cannot be said as a matter of law that he had
abandoned his declared purpose to kill her, nor that the circumstances were not
sufficient to induce in defendant an honest and reasonable belief that she was in
danger of great bodily harm or loss of life.
VanHorn’s testimony in this case likewise would have contributed to the jury’s ability to view
the events that occurred in the Estradas’ yard from defendant’s “standpoint of the time.”
Accordingly, VanHorn’s testimony had relevance, probative value and materiality to the honesty
and reasonableness of defendant’s state of mind at the time she wielded the knife and stabbed
Prieto.
At the evidentiary hearing, VanHorn answered affirmatively when asked whether
defendant qualified as a battered woman. Nevertheless, defense counsel acknowledged that at
trial,
the expert cannot testify to whether or not this particular witness or particular
defendant has been battered. The only thing that they can do is offer specific
testimony that would give the trier of fact a better understanding of the evidence,
that the average juror might be misinformed about. The Wilson court limited the
testimony to only explanation of symptoms and general description of the
syndrome.
Given these recognized limitations on the scope of VanHorn’s proffered trial testimony, I submit
that no “analytical gap” could possibly have existed between the data detailing the features of
BWS and VanHorn’s opinions at trial. According to Beckley, Christel and Wilson, an expert
who offers syndrome evidence may not render an opinion on the ultimate issues in the case.
Unlike most cases involving scientific expert opinion, a witness offering syndrome evidence
simply may not “appl[y] the principles and methods … to the facts of the case.” MRE 702(3).
Consequently, neither logic nor law supports the majority’s holding that the trial court properly
excluded VanHorn’s testimony because she “failed to close the ‘analytical gap’ between her
expertise on battered woman syndrome and the facts of the particular case.” Ante at 6.
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In my view, VanHorn’s proposed expert testimony fully satisfied the applicable
requirements of MRE 702. I would hold that the trial court abused its discretion when it
precluded VanHorn from enlightening the jury with evidence about BWS.
V. CONSTITUTIONAL ERROR AND ERROR REQUIRING REVERSAL
The United States and Michigan Constitutions afford a criminal defendant the right to
present a defense. US Const, Ams VI, XIV; Const 1963, art 1, § 13; People v Kurr, 253 Mich
App 317, 326; 654 NW2d 651 (2002). The right of an accused to present a defense “stands on
no lesser footing than the other Sixth Amendment rights” previously held applicable to the states.
Taylor v Illinois, 484 US 400, 409; 108 S Ct 646; 98 L Ed 2d 798 (1988) (internal quotation
omitted). “Few rights are more fundamental than that of an accused to present witnesses in his
own defense.” Id. at 408.
Through the introduction of expert testimony with respect to BWS, defendant sought to
establish that she stabbed Prieto because she honestly and reasonably feared for her life. The
trial court’s improper exclusion of BWS evidence foreclosed defendant from proving the honesty
and reasonableness of her perception of immediate, lethal danger. In my estimation, the trial
court thereby deprived defendant of the ability to present a meaningful self-defense.4
But regardless whether the trial court’s erroneous ruling falls within the category of
constitutional or nonconstitutional error, I believe that defendant has shown prejudice requiring a
new trial. Preserved nonconstitutional error “is harmless unless the defendant demonstrates that
the error was outcome determinative.” People v Schaefer, 473 Mich 418, 443; 703 NW2d 774
(2005), mod in part on other grounds in People v Derror, 475 Mich 316, 320, 334, 341-342; 715
NW2d 822 (2006).5 The defendant must prove that, in light of the entire record, it affirmatively
appears “more probable than not that the error was outcome determinative.” Id. (internal
quotation omitted). “An error is not outcome determinative unless it undermined the reliability
of the verdict.” Id. (internal quotation omitted).
In my judgment, the improper exclusion of BWS evidence undermined the reliability of
the verdict. When a criminal defendant asserts self-defense, “the reasonableness of a defendant’s
belief that his life is in danger must be judged on the basis of the circumstances as they were
perceived by the defendant, and not as they actually existed.” People v Green, 113 Mich App
699, 704; 318 NW2d 547 (1982). VanHorn’s testimony would have afforded a window into
defendant’s mind, permitting the jury to understand and potentially validate her claim that when
4
The majority opines that “[t]he trial court did not err when it refused to give a self-defense
instruction that was not supported by the facts.” Ante at 5. The record reflects that defendant
filed a pretrial request for instructions related to self-defense. At the conclusion of the
testimony, defense counsel raised no objection to the trial court’s proposed instructions, which
did not include self-defense. It appears that in light of the trial court’s exclusion of BWS
evidence and the testimony regarding Prieto’s previous abusive behavior, defendant concluded
that no factual basis existed for a self-defense claim.
5
The Michigan Supreme Court recently overruled Derror in part. People v Feezel, 486 Mich
184, 205, 207-217; 783 NW2d 67 (2010).
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she entered the Estrada home and grabbed a knife, she honestly and reasonably believed that
deadly force was necessary to prevent her death or grave bodily injury. The jury’s decision to
convict defendant of voluntary manslaughter reinforces that the exclusion of VanHorn’s
testimony affected the outcome of defendant’s trial. “The elements of voluntary manslaughter
are (1) the defendant must kill in the heat of passion, (2) the passion must be caused by an
adequate provocation, and (3) there cannot be a lapse of time during which a reasonable person
could control his passions.” People v Sullivan, 231 Mich App 510, 518; 586 NW2d 578 (1998),
aff’d 461 Mich 992 (2000). “The provocation must be adequate, namely, that which would
cause a reasonable person to lose control.” Id. (emphasis in original).
Here, the jury’s verdict embodies its belief that Prieto provoked defendant’s rage, and
that defendant lacked the ability to control her passion. VanHorn would have advised the jury
that a battered woman might honestly fear for her life under these same circumstances. And in
the face of a self-defense claim, the prosecutor would have borne the burden of proving beyond a
reasonable doubt that despite Prieto’s provocation and his history of violence toward defendant,
defendant unreasonably and dishonestly believed Prieto had threatened her life. Had the jury
heard evidence explaining that physical abuse distorts perceptions of the immediacy of danger
and “skews” a woman’s ability to assess threats, I firmly believe that a different result would
have obtained.
/s/ Elizabeth L. Gleicher
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