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State v. B.H.

April 13, 2005

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
B.H., DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 364 N.J. Super. 171 (2003).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In this appeal, the Court addresses the appropriate use of battered woman syndrome expert testimony in respect of a duress defense under N.J.S.A. 2C:2-9.

In March 2001, B.H. left her husband, S.H., and took their two daughters to a women's shelter. While at the shelter, B.H. told a counselor that in 1999 her husband had forced her to have sexual intercourse with her then seven-year-old stepson, L.H. At the counselor's urging, B.H. reported the incident to the Division of Youth and Family Services (DYFS). DYFS conducted an investigation of the home and, eventually, B.H. was contacted by an investigator from the Ocean County Prosecutor's Office. She voluntarily came to police headquarters and gave a statement after being administered Miranda rights. B.H. admitted to having engaged in sexual intercourse with her stepson while her husband watched. In her statement, B.H. also told investigators that her husband, S.H., had physically and sexually assaulted her at other times but denied that he threatened her with any violence on the day of the incident with her stepson. B.H. was arrested and charged with first-degree aggravated sexual assault (count I) and second-degree endangering the welfare of a child (count II).

At trial, B.H.'s testimony differed from her prior statement to police. At trial, she claimed S.H. had threatened her during the incident. B.H. stated that she lied in her earlier statement because S.H. told her not to reveal his role in the incident. B.H. also testified about earlier incidents of physical, sexual, and emotional abuse that S.H. inflicted on her almost from the inception of and continuing throughout their relationship.

Defense counsel informed the trial court that B.H. intended to present a duress defense and that she would rely on the testimony of Dr. Roger Raftery, a licensed psychologist with expertise in forensic psychology. Following a Rule 104 hearing, the trial court authorized limited testimony by Dr. Raftery on battered woman syndrome. Dr. Raftery testified before the jury that battered woman syndrome is used in the defense of criminal conduct to explain why a woman stays in an abusive relationship and why she would continue to live with her abuser. He also testified that the syndrome explains why an abused woman may engage in violent behavior towards her abuser and that B.H. was a battered woman. The State's expert testified that he was unaware of any case where a battered woman assaulted a third person; that battered woman syndrome evidence was not useful in such a case; and that he could not conclude that B.H. was a battered woman at the time the incident occurred with L.H.

The issue in this case centers on the limitation the trial court placed in its instruction to the jury on it's consideration of the expert testimony on battered woman syndrome. The court limited the testimony on battered woman syndrome only to clear up any misconceptions concerning the activities of battered women and to understand a battered woman's state of mind. The limitation allowed the jury to determine if B.H. recklessly placed herself in the situation. B.H. objected to this limitation of the evidence but the court declined to alter its charge. The jury eventually convicted B.H. on both counts and she was sentenced to a custodial term of seven years.

On appeal, the Appellate Division reversed, finding that the trial court erred when it limited the battered woman syndrome testimony to the question of whether B.H. acted recklessly by placing herself in a situation in which it was probable that she would be subjected to duress. The panel concluded that when evaluating a claim of duress, the jury must be permitted to consider the battered woman syndrome evidence in order to understand the nature and extent of the threat posed to B.H. by her batterer, whether she had an honest and reasonable fear, and whether she was able to resist the threat. The Appellate Division directed that, on remand, the jury must not be prevented from considering battered woman syndrome evidence when assessing the reasonableness of B.H.'s conduct toward L.H. in response to the alleged coercion.

The Supreme Court granted certification.

HELD: In light of the particular requirements of the duress statute, N.J.S.A. 2C:2-9, courts must apply the standard of a 'person of reasonable firmness" in determining whether duress excuses criminal conduct, and battered woman syndrome expert testimony is not relevant to that analysis. Battered woman syndrome evidence is relevant to a defendant's subjective perception of a threat from her abuser and, in that respect, can be relevant to her credibility. Such evidence also aids the jury in explaining why the defendant would remain with her abuser and, therefore, why she should not be perceived as acting recklessly.

1. Battered woman syndrome describes a collection of common behavioral and psychological characteristics exhibited in women who repeatedly are physically and emotionally abused over a prolonged period of time by a dominant male figure in their lives. Such evidence has been admitted to support a claim of self-defense and to assist juries in related credibility determinations by explaining why an abused woman would continue to live with her abuser. (Pp. 11-15)

2. The statutory defense of duress is an affirmative defense, placing the burden on the defendant to come forward with some evidence of duress and the burden of proof on the State to disprove the affirmative defense beyond a reasonable doubt. Under the duress statute, a defendant is not excused from committing a criminal act affecting an innocent person unless the threat of coercion is sufficient that "a person of reasonable firmness in his situation would have been unable to resist." The idiosyncratic ability of a defendant not to withstand a particular coercive threat does not control nor does the person's subjective psychological incapacity to resist a coercive threat. Rather, the coercive threat must be sufficiently grave and severe as to similarly coerce a non-heroic, but reasonably firm, person into criminal conduct. (Pp. 15-24)

3. A successful duress claim must satisfy two distinct components. First, the defendant must be coerced into the criminal action by asserting an "excusing condition." This condition is subjective because the defendant must actually be influenced by it. Second, a defendant's level of resistance to the particular threat must meet community standards of reasonableness, an objective standard of the "person of reasonable firmness." The defendant is neither held to the standard of heroism nor allowed to rely on his or her idiosyncratic mental and emotional weaknesses. Before satisfying those two components, however, the defendant must satisfy the threshold requirement that she has not recklessly placed herself in a situation in which it was probable that she would be subjected to duress. If the defendant has so acted, the defense of duress is unavailable. (Pp. 24-28)

4. Because battered woman's syndrome evidence is beyond the ken of the average juror, expert witness testimony is appropriate on the issue of the battered woman's subjective fear and her inability to leave her abuser. In this case, battered woman's syndrome evidence was admissible and relevant to assist the jury with its assessment of B.H.'s recklessness. (Pp. 28-31)

5. Expert testimony about battered woman syndrome is relevant to the requirement in the duress statute that the jury be convinced that the defendant honestly believes that there is an imminent threat of danger. Thus, it was error not to have permitted the jury to hear evidence about battered woman's syndrome in connection with that state-of-mind component of B.H.'s claim of duress. Similarly, the jury instruction was flawed because the jury was not told that it could consider battered woman syndrome expert testimony when assessing the sincerity of B.H.'s perception of a coercive threat. (Pp. 31-35)

6. The jury must be convinced that the defendant experienced a coercion that a person of reasonable firmness in that situation would have been unable to withstand. Because this necessitates an objective standard for evaluation of the defendant's conduct, there is no place for battered woman syndrome evidence in that assessment. Therefore, the trial court correctly instructed the jury that the battered woman syndrome evidence was not to be used to determine whether a person of reasonable firmness in B.H.'s situation would have been unable to resist. (Pp. 35-38)

7. In this case, the battered woman syndrome evidence admitted at trial was inappropriately restricted. The trial court's instruction that the expert testimony could be used only for evaluating B.H.'s recklessness was too narrow. Thus, the Court agrees with the Appellate Division that B.H.'s conviction must be reversed. However, to the extent that the Appellate Division further held that the evidence may be used to aid the jury in assessing the objective reasonableness of B.H.'s conduct, the Court disagrees and rejects that portion of the panel's direction to the trial court on remand. (Pp. 38-40)

Judgment of the Appellate Division is AFFIRMED AS MODIFIED and the matter is REMANDED for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES LONG, ZAZZALI, ALBIN, WALLACE and RIVERASOTO join in JUSTICE LaVECCHIA'S opinion.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 28, 2004

A jury convicted defendant, B.H., of first-degree aggravated sexual assault and third-degree endangering the welfare of a child, for having engaged in sexual intercourse with her seven-year-old stepson. Defendant was convicted, notwithstanding her defense that she was a battered wife who participated in the sexual act under duress exerted by her husband.

The trial court permitted defendant to present expert testimony about battered woman syndrome*fn1 but restricted its content and use. On appeal, the Appellate Division disagreed with the limitations placed on that evidence and reversed defendant's conviction. State v. B.H., 364 N.J. Super. 171 (2003). We granted certification, 179 N.J. 311 (2004), to address the appropriate use of battered woman syndrome expert testimony in respect of a duress defense under N.J.S.A. 2C:2-9.

I.

In March of 2001, B.H. left her husband, S.H., and took their two young daughters to a women's shelter. While there, she informed a counselor that in 1999 her husband had forced her to have sexual intercourse with her then seven-year-old stepson, L.H. At the counselor's urging, she reported the incident to the Division of Youth and Family Services (DYFS); however, she reunited with her husband when she left the shelter.

DYFS promptly conducted an investigation of the home, and an investigator from the Ocean County Prosecutor's Office contacted B.H. At the investigator's request, B.H. agreed to be interviewed. She appeared voluntarily at police headquarters and was administered Miranda*fn2 warnings. She then talked with investigators for approximately an hour before making a taped statement in which she admitted to having engaged in sexual intercourse with her stepson while her husband watched.

In her statement, B.H. told the investigators that her husband, S.H., had physically and sexually assaulted her on other occasions but she denied that he had threatened her with any violence on the day that the incident with her stepson took place.

Q: Did he threaten you in any way?

A: At one point when I said that I didn't think it was a good idea, he said that he would leave me if I didn't.

Q: When this happened, when you had sex with [L.H.]... were you, at that point, ever afraid of [S.H.] and what he might do to you if you didn't have sex with [L.H.]?

A: Like I said, he threatened to leave me and I, I love him and I, I don't (inaudible).

Q: Did, what I mean by threatened is did he ever threaten you physically to do physical harm at that point?

A: No.

Q: Did he have any knives on him?

A: No.

According to B.H., S.H. justified the intercourse as something that would be "good" for her to do with L.H., "that it would help [them] get along better." B.H. was arrested and charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count I), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count II).*fn3

At trial it was brought out that in July of 1999, B.H. and S.H. were living in a motel with their infant daughter. S.H.'s son, L.H., was spending the weekend with them, as he frequently did. Sometime during the afternoon, L.H. entered the motel room and discovered his father and B.H. having sexual intercourse on the bed. S.H., having noticed that his son was observing them, told L.H. to lower his pants and placed the child on top of B.H., who lay naked with her legs apart. In accordance with S.H.'s directions, L.H. engaged in sexual intercourse with B.H. for several minutes. B.H. did not protest or attempt to leave, although she claimed that she remained passive during the sexual act. However, in her trial testimony, her description of what had happened that afternoon differed from her prior statement to police. She now claimed that S.H. had threatened her.

He had his hand at my throat. He wouldn't let me off the bed. And I told him that I didn't want to do this, that I was not going to do this. And he said that if I didn't go through with this, that he would make me pay and that I would never see my daughter again.

B.H. said that she lied in her earlier statement about S.H. because "at that point [S.H.] had already gotten into [her] head again," and he had instructed her not to reveal his role in the incident.

B.H. also testified about earlier incidents of physical, sexual, and emotional abuse that S.H. inflicted on her. She described a relationship with S.H. that involved physical violence (she claimed to be beaten about her breasts where bruises would not be visible to others, and choked until she would almost pass out) and sexually violent practices that involved recurrent incidents of rape in various forms (described by one expert who interviewed her as "bizarre" sexual practices). The violence began early in the relationship. B.H. was nineteen years of age when she met S.H. She claimed that the first abusive incident occurred not long thereafter, when the two began to live together. In that encounter, S.H. held an ax to B.H.'s throat and, over an extended period of time, repeatedly raped her and performed other acts of a humiliating nature on her. Other incidents that need not be detailed similarly involved threats, physical ...


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