APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALTER TOWNSEND,
Defendant-Appellant.
_______________________________
Argued: November 17, 2004 - Decided: 1/3/05
Before Judges King, R.B. Coleman and Holston, Jr.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County,
Ind. No. 02-01-0137I.
Jay L. Wilensky, Assistant Deputy Public Defender, argued for the appellant (Yvonne Smith
Segars, Public Defender of New Jersey, attorney; Mr. Wilensky, of counsel and on
the brief).
Debra A. Owens, Deputy Attorney General, argued the cause for respondent (Peter C.
Harvey, Attorney General of New Jersey, attorney; Ms. Owens, of counsel and on
the brief).
The opinion of the court was delivered by
KING, P.J.A.D. (retired and temporarily assigned on recall)
On October 23, 2002 Walter Townsend, now age sixty, was convicted of degree
murder in violation of N.J.S.A. 2C:11-3a(2). The homicide occurred in 1981. The victim
was Townsend's girlfriend, Norma Williams. In March 2003 Townsend was sentenced to a
custodial term of thirty years to life. He now appeals his conviction and
sentence. We reverse the conviction because of error in the admission of expert
testimony on Battered Women's Syndrome (BWS) and in the jury instruction on expert
testimony.
On January 30, 2002 a Mercer County Grand Jury returned an indictment charging defendant with the knowing or purposeful murder of his girlfriend, Williams, also known as "Nicky," in violation of N.J.S.A. 2C:11-3a(2). The alleged murder occurred on December 12, 1981.
The trial judge held extensive pretrial evidentiary hearings over four different days between October 1 and October 8, 2002. The hearings involved the legality of the twenty-year delay between the crime charged and the indictment; the adequacy of the victim's dying declaration, in which she declared, through her head motions, that a car, not a truck, hit her and that defendant did not beat her; the admissibility of BWS expert testimony used to attack the credibility of the victim's dying declaration; and the admissibility of statements the defendant and other witnesses made to the police.
The trial was held between October 9 and October 23, 2002. At trial, the State sought to prove that around 6 p.m. on December 11, 1981 defendant drove to 64 Bond Street in Trenton where he and Williams lived together. He came into the house and told Williams's sons, Jason Williams, age seven, and Brian Williams, age three, to go upstairs. The sons said they only went up the stairs part-way and watched as defendant proceeded to beat Williams, sitting on a couch, with a two-by-four with a nail in it. Defendant beat Williams until she was motionless and groaning. He then picked her up to take her to the hospital; he told the two boys to come with him.
Defendant took Williams and the two boys to the hospital in his blue truck. Upon leaving, defendant crashed through a gate to the front yard of the house. When they arrived at the hospital, Williams was examined in the emergency room by a Dr. Abud. The doctor's notes indicated she was drowsy, with low blood pressure, alcohol on her breath, and no damage to her brain stem. Williams had a cut over her right eye, a compound fracture of her left femur, a fracture of her left tibia, and a fracture of the right femur. Her left upper thigh was grossly swollen and externally rotated. Williams had indications of internal injuries, and fractures of her right humerus and left humerus. The doctor also noted possible fractures of her left wrist and hand. The doctor prescribed 100-per-cent oxygen and intravenous fluids. Around 9:15 p.m., Williams received blood transfusions. At 11:45 p.m., her eyes were rolled back and she was moaning. At 11:50 p.m. she went into respiratory arrest and at 12:10 a.m. Williams was pronounced dead. The Mercer County medical examiner, Dr. Raafat Ahmad, performed an autopsy and identified shock and massive hemorrhage from multiple traumatic injuries as the cause of her death.
The State produced evidence that while Williams was at the hospital, various members of the Trenton police were dispatched to investigate the incident. Patrolman Joseph Salvatore arrived at the hospital and spoke to Williams around 6:45 p.m. She told him she had been struck by a car. Patrolman Salvatore then went to the waiting room to talk to defendant and the two children. Jason told the officer that a red truck hit his mother on Bond Street and then three white men got out and beat her with sticks. Defendant said he got home and saw Williams bleeding against the gate outside 64 Bond Street. He then took her to the hospital.
Another Trenton police officer, Detective Theodore Pogorzelski, arrived at the hospital around 9:30 p.m. He met with defendant and the two boys. Jason told the detective that a red tow truck ran over his mom but he did not see any white men. At around 11:30 p.m., Dr. Abud permitted Detective Pogorzelski to speak with Williams, although he warned communication would be difficult. The detective told Williams that things did not look good and he needed a statement from her. The detective asked her if defendant beat her, and she shook her head side-to-side indicating "no." Again she shook her head indicating "no" when the detective asked if she was hit by a truck. She nodded a "yes" when the detective asked if she was hit by a car.
While Detective Pogorzelski was at the hospital, Detectives Taylor and Paccillo investigated the area of 64 Bond Street for evidence of a hit-and-run accident. They found one of the gates by the driveway smashed; the damaged parts contained specks of blue paint, not red paint. The officers found no automobile debris or blood. Tire tracks went to the back of the house. When these officers looked for witnesses, all refused to speak. Two other officers, Officers Hoffman and Rowland, searched for defendant's blue pickup truck and found it in the hospital parking lot with damage to the left rear.
A few hours after Williams died, defendant and the two children were taken to Trenton police headquarters. At headquarters, defendant was separated from the two boys. Jason, the older boy, told Officer Hoffman and a Sergeant Golden that defendant and Williams got into a fight and defendant beat her with a stick. Detectives Pogorzelski and Taylor then interviewed Jason, and he again said defendant beat his mother with a stick. Jason said he told the story about the white men at the defendant's direction.
Detectives Pogorzelski and Taylor then interviewed defendant. Defendant told them he was at a bar when Jason came to tell him Williams was hit by a truck. Defendant said he found Williams in the driveway moaning that a red car smashed through the gate. At around 11:30 a.m. on December 12 defendant gave a written statement but in this recitation he said Williams was leaning against the house, not the gate. Around 1 p.m., Detective Pogorzelski obtained a formal statement from Jason. Defendant was not formally charged as a result of this investigation.
After Williams' death, Jason and Brian lived with Willilams' brother and his wife in Browns Mills. When Brian, the younger boy, turned eighteen, he moved to Trenton and sought to contact defendant, who was also living in Trenton. At one point, Brian visited defendant, and defendant asked what Brian thought happened to his mother. Brian said that defendant murdered her and defendant became hysterical.
In May 2001, Brian heard about a newspaper article discussing numerous unsolved homicides, including his mother's. He contacted Jason, who asked the Mercer County Prosecutor's Office to reopen the investigation, which it did on August 2, 2001. On August 10, 2001 Brian gave a formal statement detailing what he saw on the night his mother died. On the same day defendant was arrested for the murder. After defendant was arrested, he was placed in a cell and later was found naked hanging from the cell door with his pants around his neck. The police revived defendant after this apparent suicide attempt.
In addition to the testimony at trial of Jason, Brian, the several police officers, and the hospital personnel, the State produced the testimony of Freddie Williams, the brother of Jason and Brian, age fifteen at the time of Williams's death. Freddie had not been living with his mother at the time of her death. He testified to prior acts of violence by defendant against Williams. Annissa Gaines, who lived on Bond Street and was age thirteen when Williams died, testified that on the night of Williams' death she saw defendant ram through the front gate. Patricia Brevard, Williams' best friend, testified that defendant spoke to her after Williams died, and on one occasion said he beat Willilams and ran over her with the truck before he took her to the hospital. Brevard did not tell police because of her fear of the defendant. The State also presented testimony from a Battered Women's Syndrome (BWS) expert, Dr. Judith Kabus, in an effort to discredit Williams' putative dying declaration that she was hit by a car. Dr. Kabus could not conclude Williams had BWS.
Defendant's main trial strategies were to discredit the State's case by cross-examining its witnesses, to rely upon Williams' dying declaration, and to counter Dr. Kabus' BWS testimony. For this latter purpose defendant presented the testimony of Dr. Richard Coughlin, a licensed psychologist, who testified about BWS as part of Post-Traumatic Stress Disorder (PTSD). Dr. Coughlin was the only defense witness.
The jury found defendant guilty of murder. On March 28, 2003 the trial judge sentenced him to a term of thirty years to life. This appeal ensued.
Defendant raises these four points on this appeal.
POINT I
THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY PERMITTING TESTIMONY CONCERNING BATTERED WOMEN'S SYNDROME WHEN THE STATE'S OWN EXPERT DECLINED TO IDENTIFY THE PURPORTED VICTIM AS SUFFERING FROM THE SYNDROME, AS WELL AS BY FAILING TO DELIVER AN APPROPRIATE LIMITING INSTRUCTION (Partially Raised Below)
A. The Trial Court Erred Grievously by Permitting Testimony Concerning Battered Women's Syndrome When the State's Own Expert would Not State that the Purported Victim Suffered From the Syndrome
B. The Trial Court Failed to Deliver An Appropriate Limiting Instruction As To the
Use of the Expert Testimony. (Not Raised Below)
POINT II
THE DEFENDANT'S RIGHT TO DUE PROCESS WAS VIOLATED BY THE STATE'S DELAY OF
NEARLY TWENTY YEARS IN PROSECUTING THIS MATTER. U.S. Const., Amend XIV; N.J. Const.
(1947), Art. 1, par. 10
POINT III
THE TRIAL COURT ERRED TO DEFENDANT'S GREAT PREJUDICE BY ADMITTING TESTIMONY CONCERNING ALLEGED
PRIOR INSTANCES OF VIOLENCE BY THE DEFENDANT
POINT IV
THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE, NECESSITATING REDUCTION
As noted, we reverse and remand for a new trial on defendant's first
point. We also consider the claims raised in Points II and III because
of their implications for a new trial.
We first consider whether the defendant's right to due process was violated because of the lapse of almost twenty years in prosecuting the case. U.S. Const., amend XIV; N.J. Const. art. I, ¶ 10. There is no time bar to a murder prosecution. See N.J.S.A. 2C:1-6a ("[a] prosecution for any offense set forth in N.J.S.A. 2C:11-3 . . . may be commenced at any time.") The 1971 Commission Commentary to N.J.S.A. 2C:1-6 explains why there is no time bar for murder:
The Code provides for limitation for all offenses except for murder (§2C:1-6a), the view being that it is desirable to maintain the common police practice never to close the files on an unsolved murder case. Granting the fact that there are other crimes of comparable gravity, we believe that they are less likely to present equal obstacles to prompt discovery of evidence or to have comparably long continued impact on the sense of general security of the community.
[See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:1-6 (quoting
1971 Commission Commentary).]
Defendant presents the rare question of whether other principles, namely due process protections,
may still bar a murder prosecution where a statutory time-bar does not exist.
The indictment charges Townsend with the murder of Williams on December 12, 1981.
The date of the indictment was January 30, 2002. The time from the
alleged murder to the indictment was just over twenty years. Because of this
period, Defendant moved to dismiss the indictment under R. 3:25-3 which states:
If there is an unreasonable delay in presenting the charge to a grand
jury or in filing an accusation against a defendant who has been held
to answer upon a complaint, the Assignment Judge, or the Assignment Judge's designee,
may dismiss the matter sua sponte or on motion of the defendant. If
there is unreasonable delay in the disposition of an indictment or accusation, the
judge to whom the case has been assigned may dismiss the matter sua
sponte or on motion of the defendant.
The Law Division judge heard arguments on defendant's motion and denied defendant's request.
The judge remarked that the relevant "delay" was from the date of the
incident to the date of indictment, not from the date of indictment to
the date of trial. As for the proper test to apply, the judge
cited to State v. Cappadona,
127 N.J. Super. 555 (App. Div.), certif. denied,
65 N.J. 574, cert. denied,
419 U.S. 1034,
95 S. Ct. 518,
42 L. Ed.2d 310 (1974). The judge acknowledged Cappadona was not directly on
point; it dealt with the delay between indictment and trial. Still, the judge
observed that the four factors Cappadona deemed relevant – length of delay, reason for
delay, defendant's assertion of his right, and the prejudice from the delay – might
be relevant to defendant Townsend's situation.
The judge then discussed State v. Alexander,
310 N.J. Super. 348 (App. Div.),
certif. denied,
156 N.J. 408 (1998). In that case, the defendant faced many
charges including attempted murder and armed robbery. This pre-indictment delay was nearly two-and-one-half
years. Id. at 350-353. We there observed that the Sixth Amendment Speedy Trial
Clause does not apply to pre-indictment delay because the Sixth Amendment is not
triggered until arrest or indictment. Alexander, 310 N.J. Super. at 352-53 (citing United
States v. Lovasco,
431 U.S. 783, 788-89,
97 S. Ct. 2044, 2048,
52 L. Ed.2d 752, 758 (1977); United States v. Marion,
404 U.S. 307, 313-23,
92 S. Ct. 455, 463-64,
30 L. Ed.2d 468, 474-80 (1971)). Alexander found
the validity of a pre-indictment delay is better measured by the due process
clauses of the federal and state constitutions. For that analysis, Alexander quoted State
v. Aguirre,
287 N.J. Super. 128, 132 (App. Div.), certif. denied,
144 N.J. 585 (1996):
The due process inquiry focuses on whether the delay "violates those 'fundamental conceptions
of justice which lie at the base of our sense of fair play
and decency.' " United States v. Lovasco, [supra,] 431 U.S. at 790, 97
S. Ct. at 2049, 52 L. Ed.
2d at 759 (citations omitted). Unlike analysis
under the Sixth Amendment's Speedy Trial Clause, which involves a four-factor balancing test
and under which prejudice to the defense is presumed from an unusually long
delay between indictment and trial, [citations omitted], claims under the Due Process Clause
arising from undue preindictment or pre-arrest delay are measured by a far more
rigorous standard. In order to prevail, a defendant must demonstrate "both that (1)
there was no legitimate reason for the delay and (2) [defendant] was prejudiced
thereby." State v. Rodriguez,
112 N.J. Super. 513, 515,
271 A.2d 905 (App.
Div. 1970).
[Alexander, 310 N.J. Super. at 353 (quoting Aguirre, 287 N.J. Super. at 132).]
As for the first prong, the Alexander court noted a split in the
federal circuits as to whether a defendant must show the delay was the
"product of intentional governmental action to gain some tactical advantage over the accused
or for some other impermissible, bad faith purpose." Id. at 353-355. Rather than
determining whether the defendant Alexander met the first prong, the court assumed that
prong was met and rested the decision on Alexander's failure to meet the
second prong on actual prejudice. Judge Skillman there said:
"The law is well-settled that actual prejudice, not possible or presumed prejudice, is
required to support a due process claim." State v. Aguirre, supra, 287 N.J.
Super. at 133,
670 A.2d 583. "[T]he defendant must show 'the delay caused
"actual and substantial prejudice' " endangering his right to a fair trial and
'must present concrete evidence showing material harm.' " Id. at 134,
670 A.2d 583 (quoting United States v. Anagnostou,
974 F.2d 939, 941-42 (7th Cir. 1992),
cert. denied,
507 U.S. 1050,
113 S. Ct. 1943,
123 L. Ed.2d 649
(1993)). "Vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient
to establish a due process violation from pre-indictment delay." United States v. Beszborn,
21 F.3d 62, 67 (5th Cir.), cert. denied,
513 U.S. 934,
115 S.
Ct. 330,
130 L. Ed.2d 288 (1994). "A mere loss of potential witnesses
is insufficient absent a showing that their testimony 'would have actually aided the
defense." [United States v. Crouch,
84 F.3d 1497, 1515 (5th Cir. 1996) (en
banc), cert. denied,
519 U.S. 1076,
117 S. Ct. 736,
136 L. Ed.2d 676 (1997)] (quoting Beszborn, supra, 21 F.
3d at 66). In fact, one federal
circuit court has noted that "[t]he task of establishing the requisite prejudice for
a possible due process violation is 'so heavy' that we have found only
two cases since 1975 in which any circuit has upheld a due process
claim [based on pre-indictment delay]." United States v. Huntley,
976 F.2d 1287, 1290
(9th Cir. 1992) (citing United States v. Barket,
530 F.2d 189 (8th Cir.
1976) and [Howell v. Barker,
904 F.2d 889 (4th Cir.), cert. denied,
498 U.S. 1016,
111 S. Ct. 590,
112 L. Ed.2d 595 (1990)]). Thus, in
United States v. McGough,
510 F.2d 598, 604-05 (5th Cir. 1975), the court
held that "the death of some six potential defense witnesses" failed to "meet
the clear requirement of [United States v. Marion, supra,
404 U.S. 307,
92 S. Ct. 455,
30 L. Ed.2d 468] that actual prejudice be shown" because
defendant's assertions concerning the testimony these witnesses could have given was "speculative." Similarly,
in Beszborn, supra, 21 F.
3d at 66, the court concluded that the death
of "five potentially material witnesses" as well as the loss of alleged exculpatory
documents was insufficient to establish actual prejudice. See also United States v. Lovasco,
supra, 431 U.S. at 789-90, 97 S. Ct. at 2048,
52 L. Ed 2d
at 759; United States v. West,
58 F.3d 133, 136 (5th Cir. 1995).
[Alexander, 310 N.J. Super. at 355-56.]
The Alexander court applied this "stringent standard" for actual prejudice to the facts.
310 N.J. Super. at 356. Defendant said he was prejudiced because he could
not call his brother as a witness. Defendant claimed he was with his
brother at the time of the crimes and his brother had died. Defendant
also said that on numerous prior occasions he had used the phone on
which critical fingerprints were found, but the phone company only maintained phone records
for up to eighteen months. We said there was no actual prejudice because
even if defendant had been indicted promptly, his brother still could not have
testified because he died shortly after the offense occurred. We also said defendant's
brother likely would not have remembered defendant's prior calls from the fingerprinted phone,
and there was no "direct evidence" the phone records would have shown the
prior calls. Id. at 356-57.
Alexander makes several important points. First, pre-indictment delays are not subject to the
Sixth Amendment speedy trial standards, since those are only implicated post-arrest. Second, the
relevant test is a two-pronged analysis from Aguirre, which requires a defendant to
show (1) there was no legitimate reason for the delay and (2) defendant
was prejudiced. Third, assuming defendant had established the first prong, there was no
actual prejudice established in a two-year delay. One witness' death would not have
affected an undelayed trial and there was no real proof that the telephone
records, if available, would have supported defendant's theory.
In this case now before us, the judge essentially applied Alexander. The judge
said he was "not prepared to make a determination that no prejudice exists."
The judge's hesitation was rather on the first prong of whether there was
a legitimate reason for the delay. As the judge phrased it, his concern
was "whether [the State] was irresponsible or if it contributed to the delay
in an unreasonable sense." On this issue the judge concluded that an indictment
could have been returned against Townsend in 1981. Still, "the evidence at that
time was such that the [State] could not reasonably anticipate conviction given the
evidence it had."
The judge observed that two of the State's main witnesses, Jason and Brian
Williams, were seven and three, respectively, when the crime occurred. In the judge's
view, these witnesses "are now in a much better position to verbalize what
they did and did not experience." The judge also said "the so-called dying
declaration was such in 1981 as to permit a reasonably informed determination to
be made by the prosecutor then, that it would be unwise for the
prosecutor to move the case with the state of the evidence that then
existed . . . that declaration converted what would otherwise be a case
more ripe for conviction to one less ripe for conviction, although in any
circumstance, might have been sufficient to produce an indictment now." The judge recognized
that there was no statute of limitations for murder. He stated:
I am moved by the fact that no indictment was delivered in '81
or '82, and this matter was allowed to languish this far, but the
fact of the matter is that discretionary efforts were made by the prosecutor
at that time, and this time, are, I think under all of the
circumstances laudable. They are not a great example of what, and I should
say they are not what we would like to see under due process,
but there are times when that can't be helped. This is one of
those times. This is one of the times that for purposes of this
decision and assuming that delay, that the reason for the delay is reasonable,
and therefore . . . the application of the defendant must fail.
The judge also cited State v. Cichetto,
144 N.J. Super. 236 (App. Div.
1976). There, the defendant was not indicted until 1974 on charges of bribery,
extortion, and other crimes that allegedly occurred in 1969. The trial judge dismissed
the indictment based on federal speedy trial standards. We reversed. We held federal
speedy trial standards did not apply because the case involved pre-arrest delay. 144
N.J. Super. at 237-38. Rather, we said:
The paramount issue in this case is whether there was a denial of
defendant's right to due process under the Fourteenth Amendment because of an unreasonable
delay between the commission of the crimes and presentment of the charges to
a grand jury where there had been no prior criminal complaint or arrest.
At a hearing on a motion to dismiss an indictment on that ground,
a defendant has the burden of establishing both that there was no legitimate
reason for the delay and that he was prejudiced thereby. State v. Rodriguez,
112 N.J. Super. 513,
271 A.2d 905 (App. Div. 1970). While the ultimate
burden of persuasion on both issues rests upon defendant, the State is obligated
to show that there was a legitimate reason for the delay once the
defendant has shown prejudice to his case. State v. Roundtree,
118 N.J. Super. 22, 29,
285 A.2d 564 (App. Div. 1971).
[Cichetto, 144 N.J. Super. at 238-39.]
We held defendant did not meet his burden of persuasion.
We must here determine (1) whether the trial judge used the proper test
for a claim of undue delay between the criminal event and the leveling
of the charges; and (2) whether the facts supported denial of the motion.
We conclude that the trial judge used the right test and applied it
correctly.
On the first issue, case law adequately supports Alexander as the proper test
for a delay between the criminal event and arrest. The other two possible
tests – the Cappadona four-part test and R. 3:25-3 – do not fit the mold.
As discussed in Alexander and Cichetto, the federal standards that form the basis
of Cappadona's four-part test do not deal with pre-arrest delays. Alexander, 310 N.J.
Super. at 352-53 (citing Levasco, 431 U.S. at 788-89, 97 S. Ct. at
2048, 52 L. Ed.
2d at 758). R. 3:25-3, which requires a judge
to ask whether "there is an unreasonable delay in presenting the charge to
a grand jury or in filing an accusation against a defendant who has
been held to answer upon a complaint," does not work either. The language
of R. 3:25-3 suggests it applies to delays after the defendant is detained.
It applies to "an unreasonable delay in presenting the charge to a grand
jury or in filing an accusation against a defendant who has been held
to answer upon a complaint[.]" Id. (emphasis added). The use of "defendant" implies
the person has already been arrested and charged, and the use of "has
been held" suggests the delay occurred while the person was in custody.
As noted, the trial judge turned his decision on the first prong. The
State contended it had more mature witnesses. The State said it now had
the testimony of a woman, then age thirteen in 1981, who would not
testify because her mother would forbid her cooperation. The witness stated she saw
defendant in his truck and he crashed through a gate, weakening the defense
theory that Williams was killed by another vehicle, not a truck, coming through
the gate. The State also said it now had the helpful statement of
a neighbor whose residence adjoined Williams' residence. There also were additional statements of
relatives detailing prior acts of domestic violence that would show motive under N.J.R.E.
404(b). The State demonstrated that this additional evidence was not a mere refinement
of its available 1981 evidence, but included both additional relevant witnesses and corroborative
testimony. To the State "the investigation needed to remain open to develop other
witnesses" in part because "everyone was so petrified of defendant."
The State further argues persuasively there was no proven actual prejudice to defendant,
but only vague assertions of lost witnesses, faded memories, and misplaced documents. Defendant
argues there were lost witnesses, including police officers and a nurse, who might
have heard Williams say she was hit by a car. Defendant also claimed
other lost witnesses could have testified about the relationship between himself and Williams.
Defendant also lamented the lack of N.J.R.E. 404(b) rebuttal evidence. Still, defendant did
not explain persuasively why the State's conduct lacked legitimate justification, especially when this
was a murder case.
In his appellate brief, defendant restates his arguments below on actual prejudice. He
emphasizes that unlike other pre-arrest delay cases, the extenuating delay here was twenty
years. He argues the State had all the evidence it needed in 1981
and the only reason for the delay was the State's inattention and lethargy.
Defendant argues the only reason the State took action in 2001 was because
the Williams brothers came forward on their own initiative. Defendant urges the State
did not need to wait until 2001 for the case to develop, but
could have indicted at some point between 1981 and 2001. Against the State's
argument that witnesses were afraid to testify, defendant submits the State could have
avoided that by arresting him and detaining him pending his indictment and trial.
Defendant also observes the BWS evidence to combat the dying declaration was available
in 1984 after State v. Kelly,
97 N.J. 178 (1984).
We agree with the State assertion that defendant's claims of actual prejudice with
regard to the inability to call helpful witnesses are vague, if not fanciful
and very speculative. As for Alexander's first prong, the State notes that no
New Jersey court has explained whether "legitimate reason for delay" requires the defendant
show the delay was intentional, a strategic maneuver. The State argues it could
still satisfy the first prong if it were so defined. The State asserts
convincingly that although it could have indicted in 1981, it could not reasonably
have anticipated a conviction.
We agree that there might be extreme cases where due process could bar
a long-delayed murder prosecution. For example, if a defendant showed that the State
had sufficient evidence to indict for murder, but did not indict until the
potential defendant's main exculpatory witness died, due process might be triggered. In such
a situation, the defense could be entirely eviscerated by the passage of time.
However, that is not the case here. Although the State probably could have
indicted defendant earlier, its delay did not violate the rigorous standards of Alexander.
Defendant asserts the judge erred by admitting testimony concerning the alleged prior instances of violence by defendant directed against the victim. The scope of review of a trial judge's determination on the admissibility of other "bad conduct" evidence is narrow and deferential, limited to an "abuse of discretion" standard. State v. Marrero, 148 N.J. 469, 483 (1997) (citing, inter alia State v. Ramseur, 106 N.J. 123, 266 (1987) ("The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.")).
N.J.R.E. 404 states:
Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Evidence
***
b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts
is not admissible to prove the disposition of a person in order to
show that he acted in conformity therewith. Such evidence may be admitted for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident when such matters are relevant to a
material issue in dispute.
In State v. Cofield,
127 N.J. 328, 338 (1992), the Supreme Court placed
additional constraints on the admission of character evidence against an accused. Such evidence:
(1) must be relevant to a material issue which is genuinely disputed; (2)
the other conduct must be similar in kind to that which is charged
currently and must have occurred reasonably close in time to the events at
issue in the criminal trial; (3) evidence of the other conduct must be
clear and convincing; and (4) its probative value must not be outweighed by
prejudice to the defendant. See Biunno, Current N.J. Rules of Evidence, Comment 8
to N.J.R.E. 404(b) (Gann 2004) (citing Cofield; State v. Bakka,
176 N.J. 533,
547 (2003); State v. Darby,
174 N.J. 509, 519 (2002); State v. Hernandez,
170 N.J. 106, 119 (2001); State v. Covell,
157 N.J. 554, 564 (1999);
Marrerro, 148 N.J. at 483).
Jason Williams, Brian Williams, and Freddie Williams all testified for the State. As
noted, at the time of Williams' death, Jason was seven, Brian was three,
and Freddie was fifteen. At that time, Brian and Jason lived with Williams
and defendant (also nicknamed "Poncho") at 64 Bond Street in Trenton. Each said
they saw defendant beat Williams on various earlier occasions. Jason and Brian testified
that they saw the beating incident they said led to Williams' death.
Defendant argues that "other crimes, wrongs or bad acts" testimony from Jason, Brian,
and Freddie violated N.J.R.E. 404(b). Jason talked about how defendant "would always beat
on her." He said that once defendant pushed Williams through a glass window
and allowed the broken glass to cut her. He said defendant would beat
Williams with anything, including a two-by-four. He testified to another specific act of
violence that occurred when defendant and Williams lived at a different location. Brian,
four years Jason's junior, testified to an incident when defendant threw Williams through
a Christmas tree.
Freddie, age fifteen at Williams' death, gave more extensive bad acts testimony occurring
when he lived with Williams in Trenton when defendant first dated her. Freddie
said defendant hit his mother in the knee with a glass baby bottle,
and another time hit her in the head with a new stereo. After
this latter testimony the judge gave a N.J.R.E. 404(b) limiting instruction. The judge
said the jury could only use the evidence "for a specific purpose, such
as motive, or such as lack of mistake, or such as in this
case, the allusion to the identity of who did and did not commit
the offense." Freddie continued to testify that defendant would beat Williams "once or
twice a week." He said defendant once tried to throw a TV at
Williams and on another occasion tried to throw her out a window. He
said on one Christmas defendant threw gifts out a window. Freddie testified about
another instance when defendant punched his mother which led to a fight between
himself and defendant. The trial judge gave another limiting instruction on Freddie's bad
acts testimony at the end of his direct examination.
The scope of the bad acts testimony was decided at a pretrial hearing.
After considering the expected testimony of Jason, Brian, and Freddie, and another witness
Patricia Brevard, the trial judge said the first three could testify to prior
bad acts but that Brevard, who offered to testify to defendant's slap of
Williams while bowling in 1976, could not. The judge fully explained his reasoning
in his pretrial ruling on October 3, 2002.
We agree with the judge's ruling on this point. The bad acts evidence
was "highly probative of several issues in dispute – defendant's intent or purpose, his
state of mind, his motive, the absence of mistake or accident, . .
. " The State properly relies on State v. Long,
173 N.J. 138,
162 (2002), for the proposition that evidence of a defendant's prior assaults on
his victim is so highly probative of these issues that it is seldom
excluded because of undue prejudice.
Our courts have frequently allowed other crimes evidence as a permissible evidence of
motive, intent and state of mind. See e.g., State v. Ramseur,
106 N.J. 123, 266 (1987) (evidence of defendant's prior threats and violence towards victim admissible
to show defendant's state of mind); State v. Baluch,
341 N.J. Super. 141,
191-92 (App. Div. 2001) (prior physical abuse of victim); State v. Donohue,
2 N.J. 381, 388 (1949) (evidence of defendant's prior beatings of murder victim admissible
to show defendant's state of mind); State v. Eatman,
340 N.J. Super. 295,
299-302 (App. Div. 2001) (evidence of defendant's prior assaults of girlfriends, including homicide
victim, admissible to show state of mind); State v. Angoy,
329 N.J. Super. 79, 85-88 (App. Div.), certif. denied,
165 N.J. 138 (2000) (evidence of defendant's
prior choking of homicide victim admissible to show motive); State v. Ellis,
280 N.J. Super. 533, 546-47 (App. Div. 1995) (evidence of history of defendant's abusive
relationship with victim properly admitted to show motive, common plan, and intent); State
v. T.C.,
347 N.J. Super. 219, 231-36 (App. Div. 2002) (evidence of defendant's
earlier abuse of victim admissible to show intent); State v. M.L.,
253 N.J.
Super. 13, 22-25 (App. Div. 1991), certif. denied,
127 N.J. 560 (1992) (permitting
testimony about other instances of abuse not charged in the indictment); State v.
Frost,
242 N.J. Super. 601, 619-21 (App. Div. 1990) (prior assaults on victim).
In her closing argument the prosecutor did not rely on the evidence of
the prior bad acts at all; she certainly did not try to improperly
arouse the jurors' emotions on this score. A limiting instruction, as given here,
"helps to insure that the prosecutor does not use the motive evidence improperly
during summation." State v. Long, 173 N.J. at 165.
The heart of the defense was the putative dying declaration that Williams made while in the intensive care unit. In the so-called declaration, Williams allegedly nodded to a detective that defendant did not cause her injuries but rather a car struck her.
Defendant argues that the trial judge should not have allowed the State to introduce BWS testimony to discredit Williams' dying declaration. Defendant asserts the judge's articulated basis for admitting the BWS evidence – to compensate the State because he admitted the dying declaration that, in his opinion, did not have a strong or even adequate foundation – was erroneous. In a subpoint, not raised below, defendant argues that the judge should have provided a special BWS instruction, especially because the State's expert, Dr. Kabus, could not conclusively testify Williams had BWS.
N.J.R.E. 804(b)(2) authorizes the introduction of a "dying declaration" as admissible hearsay. The rule states:
Statement under belief of imminent death. In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible, if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.
N.J.R.E. 804(a)(4) deems a declarant an "unavailable" witness when the declarant "is absent from the hearing because of death[.]" The rationale for admissibility is that a person in such circumstances would have no reason to lie. See Biunno, New Jersey Rules of Evidence, Comment 3 to N.J.R.E. 804 (Gann 2004). As described in 1789 in one of the earliest cases to apply the rule:
[T]hey are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.
[Desmond Manderson, Et Lex Perpetua: Dying Declarations & Mozart's Requiem, 20 Cardozo L. Rev. 1621, 1622 (1999) (citing The King v. Woodcock 168 Eng. Rep. 352, 353 (Cr. Cas. Res. 1789) (footnote omitted in article)).]
In this case, the testimony on the dying declaration came from Detective Pogorzelski. He started with the Trenton Police Department in April 1968 and retired in June 1994. When he arrived at the hospital, a doctor informed him that "it would be very hard for [Williams] to understand any of [Detective Pogorzelski's] questions, that because of her being in an intoxicated condition and being under medication." The detective approached Williams as she lay in the intensive care unit. He "told her she was in a very bad condition, things did not look good for her, and that she would have to talk to me." Williams "just laid there and kind of moaned."
Detective Pogorzelski then asked Williams if defendant beat her. She moved her head from side-to-side. The officer interpreted this as a "no." When he asked her if she was hit by a truck, she made the same motion. When he asked her if she was hit by a car, "she went up and down with her head, [a] kind of motion telling me yes, that she was hit by a car." She could not verbalize her answers; she then became unresponsive. Detective Pogorzelski's testimony was consistent with his testimony at a pretrial evidentiary hearing on the declaration's admissibility.
During the evidentiary hearings, the parties debated whether Williams' responses to Detective Pogorzelski satisfied N.J.R.E. 804(b)(2). Defendant argued that Williams was aware of her impending death, and that her responses were voluntary and in good faith. Defendant said that since Williams knew to shake her head "no" to two questions and then nodded a "yes" to another question she understood the questions asked of her. The State argued Williams did not realize she was dying, and that her answers lacked credibility because she feared further abuse.
The judge observed this was an unusual situation because the defense sought to use a dying declaration as exculpatory evidence, not the State using it as incriminating evidence. The judge's initial impressions were:
This is a very close question because there is on one part-one-half the broader question of judicial fairness seems to require that that dying declaration be permitted, and on the other half, there are some structural weaknesses in the application of the rules which must be met to permit the declaration to be allowed.
The statements that are made are susceptible of at least three interpretations.
One, they were the truth, and this defendant is, of course, thereby wrongly
charged.
Two, they were an effort to protect Walter Townsend, notwithstanding the fact that
Walter Townsend applied the beating and eventually physical injuries that resulted in the
death.
And three, the victim had no notion of what she was saying or
doing, and we're interpreting Pogorzelski's interpretation of what he saw as what I
called verbal acts. Each one of those three is almost susceptible under the
circumstances to that conclusion, however, as I said, inasmuch as this evidence underpins
so many things that happened in this case, the original redirecting of the
ship of investigation piloted by the police department.
Two, the reaction to what he considered to be the legal consequence of
a dying declaration by the defendant.
And three, the ultimate equities involved. [It] is this Court's opinion that it
will side with the ultimate equities involved and permit the evidence of what
is called the dying declaration despite the manifest interpretations that can be made
. . . I will permit the discussion relating to [BWS] as it
had been described by the prosecutor in Court and what I understand the
[BWS] to be permitted, to prove respecting the acts of a battered woman.
In response to the ruling, defendant's counsel expressed concern about the admission of
the BWS testimony in conjunction with the dying declaration. After an N.J.R.E. 104
hearing on the testimony proposed from Dr. Kabus, the State's BWS expert, and
Dr. Coughlin, the defendant's BWS expert, the judge ruled that if defendant wanted
to introduce the dying declaration, he would allow the State to introduce BWS
testimony.
During trial, but before Dr. Kabus testified, defense counsel requested an offer of
proof from the State as to what the expert would say. Even though
under the earlier ruling any BWS testimony was admissible, both the judge and
the prosecutor began to express reservations about the admissibility of the BWS evidence
where Dr. Kabus could not conclude Williams actually had the BWS syndrome.
The State said it would introduce the "generalities of [BWS], without having [Dr.
Kabus] opine as to Mrs. Williams herself." Defense counsel objected "because [the expert
testimony] has to have some relationship to this case. If she is going
to have Dr. Kabus get up there and talk about [BWS] and not
in some way relate it to this case, I don't see the value
of that. I see extreme prejudice because in effect what the prosecutor is
asking the jury to do is . . . to come to that
conclusion." The judge found the prosecutor's proffer of BWS "generalities" a "little bit
troublesome because you're going to argue to the jury, I would presume, that
a connection should be made." The prosecutor admitted she was "concerned."
The judge suggested that the presentation of BWS testimony without an expert conclusion
that Williams had BWS was like having one Christmas tree bulb on a
Christmas tree. The prosecutor analogized the testimony to the use of a drug
expert in a drug-distribution case. Near the end of the colloquy, the judge
said:
I looked at the cases, and my concern is a general philosophical discussion
about the [BWS] would be more problematic because if you're just saying you're
going to lay those questions out and say what is a battered woman,
what is [BWS] and then just leave it there, that strikes me as
being more, shall we say, reviewable negatively by an . . . Appellate
Division court who probably never got deeply ensconced in the issue in the
first place, and here we are, deeply ensconced in the issue.
In response to defense counsel's question, the judge stated the substance of his
ruling:
MR. SOMERS [Defense counsel]: . . . Your Honor, that is why I
asked for this offer of proof, because . . . if the prosecutor
is going to talk about the generalities or her expert is going to
talk about the generalities of the [BWS] and not make a connection to
this case, then I don't see . . .
THE COURT: You've already had the benefit of the fruit of the dying declaration.
I mean, that was – remember, just for purposes of review, of the reviewing
court, this could have been shaved either way as well.
Here is what . . . I believed just so the Appellate Division,
should it ever get to them, or the Supreme Court so they have
a better understanding of my thinking; the dying declaration was a little bit
short of being a dying declaration for a number of reasons, whether you
have to infer that Nicky Williams was . . . of a belief
that she was going to die is the foundation upon which dying declarations
are . . . founded. Is the foundation of that, the permissibility of
hearing a dying declaration because it is the feeling that if someone is
going to die, they are not going to die with a lie on
their lips.
Now, you take that one step further and you get into the sticky
area of the [BWS] and you have a battered woman defending her assailant
because, one, she is fearful of further assaults, she is depended upon the
assaulter, her assailant, and reasons that speak to the . . . motives
of Nicky Williams to look into the future, under whatever delirium she might
have been exposed to at that period in time, if she should happen
to end up, and Poncho did do it, and she is going to
live with Poncho with anticipation of another beating, that is why . .
. the argument is a circular one with respect to the balance of
the two, of the two issues.
I could have very easily [have] said there is insufficient proof that Nicky
Williams believed that she was going to die, and cut out the dying
declaration. But, I thought in fairness to Walter Townsend that that declaration was
important, not only for the defense, but critical to the defense. That was
my reasoning, and I believed, without being able to assess, as the prosecutor's
often noted, a dead victim, we can't assess what her motives were. We
can't get a full development as to whether she was a battered woman
and whether she – whether the dying declaration was, at all was an appropriate
circumstance if she should have survived.
There are a number of reasons that you might be able to argue
that the dying declaration would still be permissible because it would still be
with the anticipation of dying. You could argue either way on the dying
declaration; anticipation of death or anticipation of life.
But, as I asked you earlier in the trial, when we weighed this
the first time, went through the argument, you indicated, Mr. Somers, you wanted,
you wanted it to be offered to the jury, and I think your
decision was a correct one. In other words, you could have said you
didn't want it in and it would foreclose other avenues, but it certainly
operates in all fairness to Poncho, and that is why I permitted that
to be let in.
Now, giving a little on that end, I thought it balances by permitting
discussion about the [BWS] because that gives a subsidiary explanation to why, why
a woman might do that. So, it is trying to give you both
fairness.
And what I am encouraged by, shall I say, is that I'm obliged,
as are all of the judges, to go to what we call the
New Jersey Judicial College, and I've received the curriculum after I made this
ruling earlier on in this case and now I'm being revisited, but there
is a little course that I have indicated a desire to take and
that would be trial evidence, artistry and advocacy in the courtroom. And it
is given by somebody from Arizona. What they know about New Jersey law,
whatever, I'm not sure. But this gentleman figures that there are three Rs
for filtering evidence, to quickly scrutinize its admissibility, and he says, he asks
three questions, is it relevant, is it reliable, and the last question is
what compels me, is it right. Now, we can't tell whether it is
right until ultimately another reviewing court makes the determination. It is like the
umpire saying, is it a ball or a strike, and it is nothing
until he calls it.
So whether we know that this is right, we won't know if, in
fact, it ever goes to the Appellate Division and is considered, but I
think the Appellate Division should understand that the motivation behind this was a
balancing of the two equities of complicated evidentiary rulings that have, in my
view, no foundation in the books. All the books, all the green books
and all the cream books I have in my office I found nothing
that really makes it clear that this is admissible or not admissible. Consequently,
I have to rely on my experience as a trial lawyer, my experience
as a trial judge, and the feeling that I have that it's right
to do this. It is right to give it to the jury. I
can't make that decision.
The judge added:
In other words, there is [a] rationale that the jury is entitled to
consider in light of her testimony, there is a rationale in the broadest
sense for a statement that otherwise defies our credulity. Well, normally we would
say, well, damn, the woman is on her death bed and she is
exonerating the guy. Poncho didn't do it. She was hit by a car.
She was hit by a truck. Well, this gives you a rational motivation
to lie, and which apparently has been approved and accepted by a number
of courts in New Jersey; one that seems to be within legitimate reasons,
the bounds of reason.
So the jury is not going to make an expert opinion, they going
to draw facts from, and draw inferences as circumstantial evidence oft times does,
permit them to draw inference as to what facts existed. They can determine
that that was a characteristic of a battered woman, whether it was – whether
she was or not declared a battered woman, that is one of the
characteristics that are out there, and that is the rationale behind this reasoning.
The next day, the judge amplified his ruling, citing N.J.R.E. 702. He said,
It seems to me that a jury can appropriately benefit by the testimony,
it will be helpful to the trier of fact, it will assist the
trier of fact to understand the evidence or determine a fact in issue,
and therefore, the testimony of a – of the proposed expert who has been
deemed an expert by other courts in this state, seems to be appropriate,
that they can take what has been a relatively new field of expertise
but that has received a lot of attention because of a variety of
reasons that we need not go into, but that battered women and [BWS]
are a more – a higher focal point in the panorama of specialized circumstances
that afflict the variety of victims that we have in this day and
age.
Accordingly, it would seem to me that it is appropriate that the jury
should be assisted in understanding the concept that has been, I believe, dealt
with approbation by our Supreme Court and that provides yet another foundation for
the testimony I've permitted, and I just wanted to make it a little
more, a little more clear, although it was not referred to by anybody
in particular in this court, it seems to me to be quite, quite
clear that that could be offered and assessed by the jury.
It is not unlike the analogy that the prosecutor brought in about a
broad assessment of drug circumstances that are not necessarily directly applicable to the
case wherein such testimony is heard, but nevertheless, it is testimony that is
helpful to a jury, and for that reason, I can agree with what
the prosecutor has said and the testimony again, will be admitted for the
purposes described by this Court.
Immediately before Dr. Kabus testified for the State, defense counsel renewed his objection,
stating:
I object to Dr. Kabus coming in and testifying. I learned from the
Prosecutor that Dr. Kabus is going to come in and testify to characteristics
of the [BWS] in general, and, your Honor, what I'm saying is that
her mere presence talking about [BWS], she in effect, even if she doesn't
talk about this particular case, she is in fact rendering a net opinion,
because this jury will wonder why in the world is she here. I
mean why she's giving this opinion about battered women, and by implication, that
must apply to Norma Williams.
To this the judge responded, in part:
[I]t should be made clear that there are a number of competing concerns,
and those concerns include the fact that there is testimony which suggests that
the victim was the subject of a number of attacks by the defendant,
and that is our 404(b) testimony. That testimony is related in my view
to an appropriate introduction under 404(b), but also relates to the declaration that
Nicky Williams made on a prior dying, half an hour before she died
or 20 minutes before she died, which effectually exonerated the defendant, if we
can determine as a matter of fact that that testimony does do that.
We have relatively abstruse testimony, I would say with respect to Detective Pogorzelski's
final confrontation with the victim. And as I said, in my view, within
this Court's discretion, I could have discounted that as a dying declaration because
there was not any evidence necessarily that could be determined to suggest an
awareness on the part of Nicky Williams that she was about to die,
thereby making the dying declaration, meeting one of the elements of a dying
declaration.
However, and as a matter of fact, if one is going to understand
her comments in the context in which they were given, and I say
comments as loosely as I possibly can, because they involve a groan, whether
it was conscious or unconscious, it involves questions of whether she understood what
she was saying, what she was doing, what she was hearing, whether the
shakes of the head and the nods of the head were interpreted correctly
by the detective are all matters that ultimately have to be resolved by
this jury. That was introduced, despite the fact that I felt that it
could have easily been declared to fall short of those requirements needed to
involve a dying declaration, but I figured further, this Court figured that in
the interest of fairness to the defendant, and in interest and response to
your request and Mr. Townsend's request, that they be introduced, and obviously, you
have to argue that those are important considerations for the jury to respond
to, they are appropriately counter-balanced by the introduction of what, if it is
determined to be exculpation in a dying declaration, there – as equally it can
be determined that it is part of what would normally be considered or
a characteristic of what may normally be considered a dying – a [BWS] or
battered women's response to years of battery, and that would be the protection
of the person who is her batterer and assailant. And that, once again,
is compounded by the fact that it goes to the dying declaration as
to whether, if she exonerated the defendant inappropriately, again, the question for the
jury, that that goes against the declaration of an – that the declaration can
be considered dying declaration for purposes of the hearsay rules and the testimony
disallowing such hearsay.
Consequently, it comes down to a question of what is the most right
under all of the considerations, and those considerations this Court has balanced, and
any reviewer of these decisions should understand that in the broadest sense it
was felt by this Court that it would be – although without any prior
guidance from any courts, it was felt that it was the right thing
to do, given the interpretation that could be accorded the dying declaration, taken
into account with what could effect that dying declaration.
Consequently, the Court denies the application to once again disallow it, because it
seems to this Court to be most correct under all of the circumstances,
of the totality of the circumstances that it be permitted under 702, which
permits testimony that is helpful to the trier of fact.
In sum, the trial judge adopted an equitable balancing justification for admitting the
BWS testimony, despite the fact that Dr. Kabus could not say Williams had
a BWS diagnosis. The first justification was that he was previously indulgent to
the defense when he admitted the dying declaration testimony. A second justification was
that it was useful "general information" evidence, and thus helpful to the trier
of fact under N.J.R.E. 702. A third was that this testimony combined with
N.J.R.E. 404(b) testimony on defendant's prior acts of abuse to give added context
to the dying declaration.
After this ruling, Dr. Kabus and the defense's expert, Dr. Coughlin, testified about
BWS. Dr. Kabus was qualified as an expert "in battered women and [BWS]"
and "to testify with respect to [BWS] as an adjunct to or part
of Post Traumatic Stress Disorder." Both experts distinguished between a battered woman and
a woman with BWS. To have BWS, a woman must exhibit five of
eight BWS characteristics. But a woman who does not meet five of the
eight BWS characteristics might still be "battered." Dr. Kabus agreed that the difference
is a matter of degree. Dr. Coughlin did not fully agree.
Dr. Kabus testified that a common trait of women with BWS – lying to
protect the abuser for fear of future abuse – can also be present in
women who are battered but who do not have BWS. By contrast, Dr.
Coughlin said that just because a woman is battered does not mean an
expert can predict what her behavior will be. Instead, "'predict behavior' has more
to do with me for what kind of treatment I need to provide
for the person, what's likely to happen in our treatment, what supports do
I need to provide for the person." Although Dr. Coughlin agreed there are
commonalities in behavior between battered women and women with BWS, he said there
was no extant research to support the presence of lying as a protective
device in both BWS women and non-BWS battered women. While clinically he had
seen both BWS women and non-BWS battered women who lie to protect abusers,
no research supported this as a characteristic in both.
On appeal, defendant contests the use of Dr. Kabus to testify on BWS.
Defendant argues tha