|
COURT OF
APPEALS DECISION DATED AND
RELEASED Augut
29, 1996 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1778-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
CONNELL
MARSHALL,
Defendant-Appellant.
APPEAL
from a judgment and an order of the circuit court for La Crosse County: DENNIS G. MONTABON, Judge. Reversed.
EICH,
C.J.[1] Connell Marshall appeals from a judgment
finding him guilty of misdemeanor battery and disorderly conduct, and from an
order denying his motion for a new trial on grounds of newly discovered
evidence.
The
offense with which Marshall was charged was committed against his wife, the
original complainant in the case. His
challenge to the judgment is based on an argument that the trial court erred in
allowing the prosecutor to argue to the jury—without supporting evidence in the
record—that the victim recanted her accusations because she was a victim of
domestic violence. We conclude this was
error and reverse the judgment and order.
Prior
to trial—and after the deadline for naming witnesses expired—the State sought
permission to call an expert witness, explaining to the court that Marshall's
wife had at some point recanted her initial accusations against him. The prosecutor stated that, in her
experience, "[neither] the general population [n]or the jury would ...
know without an expert ... why it is that domestic [abuse] victims recant
almost all the time ... so I would like to call an expert to explain the
dynamics of relationships like this and why it is that victims would recant
...." The trial court, noting that
expert testimony on the subject might be appropriate, denied the request as
untimely.
The
trial proceeded without such evidence, and in her closing argument to the jury
the prosecutor stated:
For whatever reason victims of abuse ... are
not able to make the decision themselves to leave. We know, however, they go back into the situation and I can't
explain now why that is, but we know it happens all the time. We know it happens after ... an incident of
violence that the victim recants the incident, says it didn't happen, minimizes
incidents that more often than that in most of these cases they do not want it
to go forward, and I wish I could explain that dynamic to you. The fact is that when a victim reports an
incident of abuse at that time she is scared, she is afraid, she is upset with
the conduct that has occurred, and when the police respond ... she is ready to
give them the information .... [B]ut unfortunately when she moves away from the
situation and is no longer in the heat of it that changes....
....
... I would like
to be able to explain to you why that is.
You don't have the experience and I don't have the experience to
understand it, but a victim of a situation like that down the road needs the
person for whatever reason.
It is these comments to which Marshall objects.
In
State v. Bednarz, 179 Wis.2d 460, 507 N.W.2d 168 (Ct. App. 1993),
we considered a challenge to expert testimony on the same subject: the tendency
for victims of domestic abuse to recant initial accusations against their
husbands or companions. Specifically,
the expert testified on the "cycle of violence," a three-stage
syndrome involving: a "`tension building' stage in which the victim seeks
to please the perpetrator; an "`explosion' stage" when the battery
occurs; and finally, a "`honeymoon' stage," when the victim, feeling
guilty and at fault for what happened, "may change her story in an attempt
to exonerate the abuser." Id.
at 463-64, 507 N.W.2d at 170.
Holding
such testimony proper because it did not violate the rule against expert
testimony on the truthfulness of the victim's accusations and, further, because
it was an appropriate subject for expert testimony, we have specifically stated
our disagreement with the defendant's assertions that the victim's recantation
could be explained without expert testimony:
We
disagree with Bednarz that the reasons behind [the victim's] recantation must
be determined solely by use of common sense inquiry on the part of untrained
lay people.... An untrained lay person
does not know that recantation can be suggestive of posttraumatic stress in the
form of the battered woman's syndrome.
The expert opinion was thus permissible to enlighten the jury and allow
it to intelligently consider the syndrome as one possible explanation for [the
victim's] behavior.
... It may be
common knowledge that parties to a relationship may say things about the other
party which are untrue, especially in the heat of a domestic quarrel, only to
tell the truth later. Yet, it is not
common knowledge that one reason for a recantation may be the existence of
battered woman's syndrome.
Bednarz, 179 Wis.2d at 467-68, 507 N.W.2d at 172 (emphasis added) (citations
omitted).
We
are sympathetic with the trial court's view that we may soon approach the time
when psychological interrelationships and reactions such as those argued by the
prosecutor in this case (and as testified to by the expert witness in Bednarz)
may be so commonly known and accepted that they become a subject of lay
testimony, but as Bednarz suggests quite strongly, that time is
not yet upon us. Moreover, the State
has not pointed us to any testimony in the record on the subject, lay or
expert. It appears the prosecutor
simply sought to establish the fact—in the State's own words, "to provide
the jury with reasons why [the victim] changed her story"—in her closing
argument to the jury.
In
effect, the prosecutor was offering her own testimony, based on her own
experience in prosecuting similar cases, that in fact, women in abusive
relationships, for reasons she herself could not explain (as she conceded),
often recant accusations of abuse. And
while it is possible that such testimony by an experienced prosecutor might be
admissible on the subject under certain conditions—a point we do not here
decide—the State has not persuaded us that the fact could be established in
counsel's closing argument in the manner in which it was done in this
case.
By
the Court.—Judgment and order
reversed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.