In addition to being educated about the patterns intrinsic to a battered spouse relationship, courts have recognized the need to apprise the jury of “all of the circumstances surrounding the incident.” State v. Wanrow, 559 P.2d 548, 556 (Wash. 1977) (quoting State v. Lewis, 491 P.2d 1062, 1064 (1971)); accord Bechtel v. State, 840 P.2d 1, 12 (Okla. Crim. App. 1992) (stating that “the meaning of imminent must necessarily envelope [sic] the battered woman's perceptions based on all the facts and circumstances of his or her relationship with the victim”). Only when the jury has been permitted to hear and consider all of the factual information surrounding the incident, which includes a full history of prior threats and past beatings, can it properly evaluate whether the defendant had reasonable grounds to believe that she was in immediate danger. See Eber, supra, 32 Hastings L.R. at 920-23; see also State v. Steele, 178 W.Va. 330, 336, 359 S.E.2d 558, 564 (1987) (stating that “[t]he reason evidence of prior acts of violence . . . is relevant is because it relates to the reasonableness of the defendant's belief that the deceased intended to inflict serious bodily injury or death and, as a consequence, the defendant was justified in the killing”). Without the introduction of pertinent evidence that fully explores the history of violence and threatened violence, the jury cannot attempt to discern the battered individual's perception of danger and imminent harm. As a result, the battered spouse is necessarily hampered in her ability to prove that she acted in self defense. Eber, supra, 32 Hastings L.R. at 920.
The majority essentially dismisses Appellant's contention that her theory of
self-defense was hindered by the trial court's exclusion of testimony from three of her named
defense witnesses. Because Appellant was permitted to testify about prior instances of
abuse, the majority downplays the significance of statements that she made to others
contemporaneous to those previous incidents. What the majority overlooks, however, is that
by preventing the jury from hearing these statements, the jury was denied information that
was relevant to Appellant's mental state _ evidence which was offered to explain her actions
and tended to support her theory that she acted in self-defense. See State v. Pettrey, 209
W.Va. 449, 456, 549 S.E.2d 323, 330 (2001) (recognizing that out-of-court statements
offered to prove state of mind are not excluded under the hearsay rule); see also State v.
Haines, 860 N.E.2d 91, 101 (Ohio 2006) (recognizing that testimony on battered woman
syndrome is offered as background for understanding behavior of abused individual);
People v. Coffman, 96 P.3d 30, 92 (Cal. 2004) (upholding admissibility of expert testimony
offered to establish defendant's state of mind that did not directly relate to pending criminal
offenses but concerned abused defendant's relationship with victim).
The Oklahoma Supreme Court wisely recognized in Bechtel that
[a] defendant, in a self-defense case involving the
[battered women's] syndrome, in order to establish her “fear”
at the time of the commission of the offense and to establish the
deceased as the aggressor, must be entitled to produce past
violent encounters with the deceased and to introduce evidence
of the turbulent and dangerous character or reputation of the
deceased. This is an established method of proof in self-
defense cases, because the law recognizes the fact that future
conduct may be reasonably inferred from past conduct. Justice
would not be served to hold that a defendant is limited to
relating the physical act of past conduct without its
accompanying words.
840 P.2d at 13-14 (citation omitted and emphasis supplied).
Having recognized the need to introduce statements voiced by the defendant in connection with prior instances of abuse in Bechtel, the court addressed whether such statements fall within the prohibited area of hearsay and concluded that they did not. The court reasoned:
Inherent in self-defense cases involving the Battered
Woman Syndrome, are issues involving both the state of mind
of the deceased and the defendant. An out-of-court statement,
regardless of its truth, may imply intention, knowledge, physical
or emotional feeling, or other state of mind . . . . If offered to
prove such state of mind, the statement is not hearsay. An out-
of-court statement, regardless of the truth, which elicits a state
of mind in another person in consequence of the utterance is
not hearsay. Such statements are circumstantial evidence and
are recognized by the courts as such. We do not imply that said
statements are to be admitted automatically. The trial judge
may exercise his discretion to determine whether the inference
sought to be drawn from the particular statement is reasonable
and relevant. If not, the statement may be excluded for the lack
of relevance, not on the ground of hearsay.
Id. at 14 (footnote omitted).
Rather than engaging in an earnest analysis of this evidentiary issue, the
majority quickly dismissed the state of mind ground proffered by Appellant for admission
of the banned evidence. According to the majority, “the only purpose which Ms. Hudgins'
excluded statements could have served would have been to prove the truth of the matter
asserted: that Ms. Whittaker had been abused and that Mr. Mills was the abuser.” By
preventing the jury from hearing what Appellant told Ms. Hudgins, Ms. Fowler, and Ms.
Brinkley about prior instances of abuse, Appellant was denied the right to lay the proper
foundation for establishing her state of mind on the day she shot Mr. Mills. Rather than
being offered to prove the truth of the matter asserted, as the majority concludes, those
statements were clearly offered for state of mind purposes _ to demonstrate the
reasonableness of Appellant's state of fear at the time of the shooting. By denying
testimonial evidence from Appellant's defense witnesses regarding Mr. Mills' prior threats
and abusive acts, the jury was given an incomplete narrative. Consequently, the jury was
forced to decide whether Appellant acted in self-defense without the benefit of all relevant
circumstances bearing on her state of mind.
Many lay people have difficulty comprehending why an act of violence was
committed by a battered woman at a time when she may have seemingly had the opportunity
to extricate herself from the situation. This societal misapprehension stems from an inability
to fully grasp that “from the perspective of the battered wife, the danger is constantly
'immediate.'” Eber, supra, 26 Hastings L.J. at 929. In an emotional state that is the result
of a longstanding pattern of threats followed by violence, the abused individual is acutely
aware that her abuser is fully capable of carrying out the violence that he is currently
threatening to commit. Because of the cumulative pattern of abuse, the abused person
processes the threat of violence as an eventuality, rather than a possibility. In Appellant's
case, just prior to the shooting incident, Mr. Mills had threatened to kill both Appellant and
her daughter _ and this threat came immediately after he had rolled Appellant's daughter like
a bowling ball across the floor. Like many long-term victims of abuse, Appellant chose to
commit an act of violence as a means of protecting herself and her loved one.
To a victim of abuse such as Appellant, the majority's offer of sympathy and
its recitation of a “continuing commitment to ensuring the safety, security, and dignity of
victims of domestic abuse” can only be perceived as an empty gesture. As to the unserved
domestic violence petitions, Appellant's previously unsuccessful experiences with the legal
system may have convinced her she had no choice but to defend herself. Despite the
widespread recognition of domestic abuse and the legal system's efforts to protect the
abused, the discomforting reality is that victims of abuse continue to find themselves in that
proverbial setting of being between a rock and a hard spot. Until both the courts and society
fully appreciate the realities of domestic abuse and all its consequences, it seems unlikely
that in the context of criminal prosecutions our laws will adequately and fairly address the
ramifications of such abuse.
Accordingly, I must respectfully dissent.