State v. Moore , 1985 Ore. App. LEXIS 2525 ( 1985 )

RICHARDSON, P. J.

Defendant was indicted for attempted murder and assault in the first degree for shooting her husband. She was convicted by a jury of assault in the second degree and sentenced to seven years imprisonment with a minimum term of five years pursuant to ORS 161.610. On appeal, she contends that the court erred in (1) striking the testimony of a defense witness, (2) excluding the testimony of a defense witness on the ground that the witness was not an expert and (3) limiting cross-examination of the victim. She also contends that the minimum sentence was unlawful.

The shooting occurred on July 19, 1982. That day defendant had purchased a pistol that she had previously put on layaway. She shot her husband while he was in the living room of their home. She does not contest the fact that she shot him but contends she did so in self-defense. The couple had been married for two and one-half years but had cohabited approximately one and one-half years before their marriage. In essence, defendant contends that, due to long-standing physical, sexual and psychological abuse by her husband, she was afraid he would harm her and shot in self-defense. That theory of self-defense has recently become known as the battered spouse syndrome. See Comment, 26 Vill L Rev 105 (1980-81); Gisenberg and Seymour, “The Self-Defense Plea and Battered Women,” 14 Trial 34-42 (1978).

The accounts of the shooting from the victim and the defendant vary. The victim testified that he and defendant had had arguments over the two or three days before the shooting. He was lying on the davenport when defendant came into the house, pointed the gun and shot him in the shoulder. She fired two other shots which missed, and he ran into the bathroom. She then shot through the bathroom door and hit him in the other shoulder. The victim ran out of the house to a next door neighbor for help. Defendant followed and fired two more shots at him and the neighbor.

Defendant testified that she had placed the gun on layaway in a sporting goods store, because there had been a rape and an assault in the neighborhood and she needed some protection. On the day of the shooting, she testified, she picked up the gun with the intent of committing suicide, because she could no longer stand the abusive treatment she was receiving from her husband. She changed her mind about suicide and decided to obtain her belongings and leave. She took the gun with her to protect herself from her husband while she was packing. When she entered the house, the victim was lying on the davenport. He got up and moved toward her with his hand inside his coat. She was afraid that he had a knife and would harm her, so she shot at him. She knew he usually kept a knife in the bathroom and, when he ran into the bathroom, she fired into the door to scare him. She then ran out of the house. When the victim followed her out, she fired two shots into the air to keep him at bay.

In a tape-recorded statement given to the police, which was played for the jury, and in her testimony, defendant detailed many incidents of sexual, physical and psychological abuse allegedly committed by her husband over the term of their relationship. She testified that he was an illicit drug dealer, used unlawful drugs and had on many occasions injected her with drugs against her will. He had threatened to sell her into prostitution in Mexico or compel her to make pornographic movies. She testified also that he had theatened to kill her if she left and had beaten her on many occasions. Defense witnesses testified to some threats and abuse that they had observed.

The first assignment of error concerns testimony the court struck after a witness began testifying. The witness had been a counselor at a local women’s crisis center. She testified that the center had received approximately 100 calls from defendant between October, 1981, and December, 1981. She was prepared to testify concerning the substance of those contacts as reflected in the log book of the center. The court sustained the state’s objection on the ground that the testimony concerned incidents that were too remote to be material to issues in the trial.

Defendant argues that the evidence is relevant to show her state of mind at the time of the shooting, which, she argues, was directly affected by the abusive behavior of the victim. She also contends that evidence of numerous reports to the crisis center would tend to corroborate her testimony of past abuses.

Defendant appears to present the issue as one of relevance to her basic defense and argues that the evidence is probative of the battered spouse syndrome construct. The trial court allowed defendant considerable leeway in presenting evidence of alleged abuse by her husband. The court, on a number of occasions, expressed concern that the proceeding was degenerating into a trial of the defendant’s and the victim’s relationship. The court did not reject defendant’s defense based on the battered spouse syndrome but ruled that the evidence offered through the counselor’s testimony was too remote in relationship to the shooting to be probative of the defense. Evidence having some relevance may nevertheless be rejected if its probative value is outweighed by other considerations including undue prejudice, introduction of collateral issues, consumption of undue time or a tendency to confuse or lead the jury into collateral issues. OEC 403; Carter v. Moberly, 263 Or 193, 200, 501 P2d 1276 (1972).

A trial court is given discretion in analyzing and balancing the various considerations necessary to an evidentiary ruling. In this case the evidence would apparently have been that the last contact defendant had with the crisis center was approximately seven months before the shooting. The testimony would simply have disclosed the number of complaints that defendant had made to the crisis center personnel. It would have been cumulative of defendant’s description of past abuses and certainly would have prolonged the trial. We conclude that the court did not abuse its discretion in rejecting the testimony.

Defendant next claims that the trial court erred in excluding the testimony of defendant’s proffered expert, who was called to testify concerning the battered spouse syndrome. In an offer of proof she described her qualifications and then discussed in detail the various aspects of the syndrome and related it to defendant and the facts of the case. She testified that, in her opinion, defendant was in a certain stage of the syndrome and was acting in self-defense. As disclosed in the offer of proof, the battered spouse syndrome is a descriptive phrase denoting a rather complex psychological phenomenon. The writings on the subject, as testified to in the offer of proof, are a result of extensive studies of spousal abuse cases. The studies conclude that spousal abuse follows a certain form and that there are predictable behavior patterns, often leading to defensive responses by the abused victim, including attempts to harm or kill the abusive spouse. Authorities on the syndrome conclude that the victim’s response should be considered a defensive action to a predictable resumption of the abuse, even if there is no overt conduct from the abusive spouse at the time the victim takes action.

The particular aspects of this complex defense require that the expert be qualified to evaluate the literature and the various phases of the syndrome and to apply the syndrome to the particular facts of the case before an opinion can be rendered whether the defendant was responding in self-defense. The witness here had been employed as a crisis center counselor and as a private counselor to abused women. She had taken college courses and was in the process of obtaining a Bachelor’s degree and a Master’s degree concurrently. She had no degrees. The trial court ruled that she did not have the requisite qualifications to testify as an expert witness or to give an opinion on the self-defense issue. We are not faced here with the availability of the defense, but only with the qualifications of the witness as an expert.

Whether a witness is qualified to testify as an expert is initially a matter for the court. In assessing the qualifications in relation to the subject of the proffered testimony, the court has a measure of discretion. State v. Middleton, 294 Or 427, 657 P2d 1215 (1983). The trial court acted within the range of its discretion in its determination of the witness’ qualifications and rejection of the testimony.

In the third assignment, defendant contends that the court unfairly limited cross-examination of the victim. Defendant sought to cross-examine the victim by inquiring into specific acts of alleged abuse of the defendant by him during their four-year relationship. The court ruled that the questions were beyond the scope of direct examination and would unduly lengthen the trial. In addition, the court expressed concern that the questions propounded to the victim would raise collateral matters not appropriate for impeachment and would result in a trial of the couples’ marital history. The offer of proof demonstrates that the questions defendant wished to ask were not appropriate cross-examination.

In a supplemental brief, defendant contends that the minimum sentence imposed pursuant to ORS 161.610 violates Article I, section 16, of the Oregon Constitution, the Eighth Amendment to the United States Constitution and ORS 161.025(1)(f). We rejected an identical contention in State v. Prock, 68 Or App 391, 681 P2d 1186 (1984).

Affirmed.