Opinion
No. 106,725.
2013-02-15
STATE of Kansas, Appellee, v. Leroy PREWITT, Jr., Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Defendant Leroy Prewitt, Jr., in Shawnee County District Court of aggravated battery for the beating of L.C, his companion and sometime fiancee. At trial, L.C. testified that Prewitt had not attacked her, recanting her statements to the contrary made immediately after the incident. To counter the change in story, the prosecutor had the investigating police officer testify about the cycle of violence in which a spouse or domestic partner (typically a woman) is physically abused, accuses her companion, then reconciles with him, returns, and recants—only to be beaten again, triggering another sequence of accusations and retrenchment. The prosecutor also made “the cycle of violence” a fulcrum of his closing argument to the jury. But the State never offered any evidence that Prewitt had otherwise abused L.C, negating the essential factual predicate for admitting that testimony and allowing that argument. Given the implications of that testimony and the lack of an evidentiary foundation for it, we conclude Prewitt did not receive a fair trial. We, therefore, reverse and remand for a new trial.
Facts
In the middle of the night on April 10, 2010, L.C. ran from her home in Topeka to a neighbors' house and pleaded for help. The neighbors let her in. They immediately saw she was bleeding heavily and had several wounds to her head. L.C. told them that Prewitt had attacked her. Kara Cox, one of the neighbors, called 911. In a tape of the call, played during the jury trial, L.C. identifies Prewitt. In response to the call, Topeka Police Officer Jason White arrived at Cox's house and spoke with L.C. White found L.C. crying and agitated to the point of being hysterical. She told the officer that Prewitt came home from a bar drunk, accused her of infidelity, and proceeded to attack her with his bare hands and then struck her with a broomstick and wrapped a belt around her neck. L.C. had similarly described the incident to Cox, though in less detail. L.C. also told Officer White that Prewitt had a drinking problem and sometimes turned violent when he drank too much. She insisted that she did not want to press charges against Prewitt.
Officer White then went to L.C.'s house and confronted Prewitt. Based on his observations, Officer White concluded Prewitt was drunk. According to Officer White, Prewitt told him several times, “Look at the scratch on my forehead.” That could be taken as an implicit assertion that Prewitt believed he had been attacked and acted in self-defense. Officer White arrested Prewitt, handcuffed him, and interrogated him in a patrol car. A recording of the interrogation was played for the jury, but it is not part of the record on appeal. We infer from Officer White's preliminary hearing testimony about the questioning that Prewitt admitted he and L.C. exchanged harsh words about his supposed infidelity when he returned from the bar, but he denied any knowledge of or responsibility for her physical injuries. At trial, Officer White testified that he saw no signs of a disturbance when he stepped inside L.C.'s home. Although Officer White described L.C. as bleeding profusely, he saw no blood on Prewitt's clothing. Prewitt had a small amount of blood on one of his thumbs, according to Officer White.
The State charged Prewitt with one count of aggravated battery, a severity level 7 felony, in violation of K.S.A. 21–3414(a)(l)(C). The case went to trial in February 2011, just over 10 months after the incident.
At trial, L.C. testified that she and Prewitt had become engaged to marry. She told the jurors that she remembered being attacked but could not recall talking to the police. The prosecutor played the tape of the 911 call, and L.C. identified her voice. But L.C. explained that she had been “hysterical” and “I wasn't in my right mind” immediately after the attack. When asked to describe how she was injured, L.C. testified that a man came up behind her, put his arms around her neck, and put her in “a choking hold.” L.C. said she saw the complexion of the arms of the man strangling her. Based on that and the distinctive smell of the man, L.C. testified that she believed her attacker to be Alonzo Watson, an acquaintance of hers, despite having identified Prewitt to Cox and the police.
Faced with a recanting victim, the prosecutor called on Officer White to testify about “the cycle of violence” or the recurrent pattern of physical abuse between some domestic partners. Prewitt objected to the testimony, and the district court held several bench conferences during Officer White's testimony on the subject. Prewitt principally objected on the grounds that he and L.C. had no history of domestic violence, so the testimony, even if otherwise proper in some cases, lacked relevance to his case. The district court never directly asked the prosecutor if he intended to prove some history of abuse. The prosecutor generally indicated that he intended to lay a foundation for the testimony without proffering any specific facts that would demonstrate relevance if proven. Ultimately, Officer White testified to his understanding that some couples go through a cycle or pattern of physical violence in which the abuser and the victim quickly reconcile and reunite after an episode of abuse. The victim then recants any allegation of abuse against his or her companion, only to be beaten later—perpetuating the cycle.
Officer White testified that he had been taught about responding to domestic disputes, domestic violence, and the cycle of violence during his police training. The only trainer Officer White specifically identified was an assistant district attorney. The prosecutor also went through an extended discussion with Officer White establishing that on average he responds to one “domestic call” a shift and, therefore, had participated in roughly 1,250 such calls during his career. The prosecutor then asked Officer White if his experience confirmed the training he had received about domestic violence. Officer White responded that it had. But the prosecutor never followed up with any questions specifically related to confirmation of the cycle of violence. Toward the end of the testimony, the prosecutor asked Officer White if he knew of any other incidents in which Prewitt had physically abused L.C. He said he did not. Officer White also agreed that the April 10, 2010, confrontation between the two was not part of a cycle of violence so far as he was aware. The State offered no evidence to show other physical confrontations between Prewitt and L.C. either before or after April 10, 2010.
Notwithstanding that lack of evidence, the prosecutor referred to the cycle of violence in his closing argument to the jury to explain away L.C.'s trial testimony. At the beginning of his rebuttal argument to the jury, the prosecutor stated:
“Cycle of violence, 1250 calls in five years, Officer White tells you it is not uncommon, maybe even routine for a victim to recant or change their story after the emergency is over, after the please help me. After the please come has subsided. It is not uncommon. They are in love, and let's face it, single woman with three kids found someone to raise them that's not a father. That's a heavy incentive right there. Anybody with a step child knows that's a heavy incentive. Escalation, act of violence, honey do phase, oh baby, it is all good. I'm sorry, won't happen again, wasn't me, cycle of violence.”
The jury convicted Prewitt of aggravated battery. Because Prewitt fell in the lowest criminal history category on the sentencing grid, the offense carried a presumptive disposition of probation. The district court, therefore, imposed a guideline sentence of 12 months in prison and placed Prewitt on probation for 24 months. Prewitt has timely appealed.
Analysis
For his only point on appeal, Prewitt argues that the prosecutor's introduction of testimony about the cycle of violence and its use in closing argument deprived him of a fair trial. The issue involves several related forms of prejudice. And in this case, the resulting impact sufficiently undermined the trial process that we cannot conclude the jury verdict should stand.
Before turning to that analysis, we mention two related considerations that really are not in the mix. First, nobody disputes the general recognition of the cycle of violence as a sociological or psychological component of chronic domestic abuse for some couples. See State v. Ankeny, 358 Mont. 32, 41–42, 243 P.3d 391 (2010) (social worker properly allowed to give testimony on battered woman syndrome and cycle of violence to explain why victim recanted allegations against defendant); People v. Bohlman, 30 Misc.3d 313, 318, 913 N.Y.S.2d 497 (2010) (discussing cycle of violence and relying in part on it to deny modification of probation conditions); Brewer v. State, 370 S.W.3d 471, 473–74 (Tex.App.2012) (finding cycle of violence to be sufficiently accepted to allow expert testimony from social worker with master's degree and specialized training and experience in domestic violence counseling). On appeal, Prewitt does not question whether Officer White was properly qualified to give testimony about the cycle of violence. Although this case is being remanded for retrial, we offer no guidance on that point because, in part, it has not been made an issue here and because, in part, even if it had been, the trial record can be fairly characterized as no better than superficial and unenlightening as to Officer White's qualifications.
On appeal, Prewitt argues the cycle-of-violence testimony was irrelevant and should not have been admitted. To be admissible, evidence must be relevant to some material, disputed issue in the case. When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. K.S.A. 60–407(f); State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). Two components combine to make evidence relevant: materiality and probativeness. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). Materiality addresses whether “ ‘a fact ... has a legitimate and effective bearing on the decision of the case and is in dispute.’ “ State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (quoting State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 [2007] ). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. Reid, 286 Kan. at 505 (quoting K.S.A. 60–401[b] ). We review a district court's determination that evidence is probative for abuse of discretion, but we consider its determination of materiality anew and without deference. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
On appeal, the State readily acknowledges the prosecutor offered Officer White's cycle-of-violence testimony to cast doubt on L.C.'s recantation from the witness stand as to who attacked her. L.C.'s credibility plainly was a disputed issue at trial given her about-face. In this case, however, the cycle-of-violence testimony was neither probative of nor material to her veracity. It was, in a word, inapplicable. The whole premise of the cycle is a recurrent pattern of violence and reconciliation, accompanied by the victim's unwillingness to continue placing blame on the abuser—the pattern, of course, is what makes it a cycle. Without a pattern of violence, there can be no cycle. In turn, the unproven (and thus nonexistent) cycle cannot be admitted as an explanation for L.C.'s changed testimony. The prosecutor failed to offer any evidence that Prewitt had repetitively abused L.C. So the necessary factual predicate for introduction of the cycle of violence simply did not exist, and the testimony should not have been allowed. By the State's reasoning, the prosecutor also should have been allowed to introduce evidence that chronic use of methamphetamine or certain hallucinogenic drugs causes cognitive impairment and memory loss. See http://www.drugabuse.gov/dru gs-abuse/commonly-abused-drugs/health-effects (accessed January 20, 2013). There was, of course, no evidence L.C. used illegal drugs. But altered memories resulting from drug abuse could explain why some witness might tell a story at trial different from what he or she had told the police 10 months earlier.
In short, the district court committed error in allowing the testimony. Not surprisingly, other courts have come to the same conclusion. Ankeny, 358 Mont. at 42;State v. Haines, 112 Ohio St.3d 393, 402, 860 N.E.2d 91 (2006). In Ankeny, the State offered expert testimony about the cycle of violence to provide a reason why the victim recanted her accusation against the defendant. The Montana Supreme Court found the testimony proper because the evidence also showed that the victim had been in a long-term abusive relationship and had endured multiple instances of physical harm. Ankeny, 358 Mont. at 42. The Ohio Supreme Court similarly explained that such evidence must show the abuser and the victim have “ ‘ “go[ne] through the battering cycle at least twice” ‘ “ to establish the necessary factual foundation for the admission of opinion testimony about the battered woman syndrome and the effect it may have on the behavior of the victim. Haines, 112 Ohio St.3d at 402. Without evidence demonstrating a history of abuse, a trial court should not admit testimony about the cycle of violence to account for the victim's actions in maintaining a relationship with the alleged abuser or in recanting accusations against him or her.
There are several ramifications to the erroneous admission of Officer White's testimony about the cycle of violence that enhance its prejudicial impact and elevate the need for a remedy. First, this was not a peripheral snippet of inadmissible testimony that snuck into a lengthy trial. It was the centerpiece of the prosecutor's explanation to the jurors as to why the victim had testified under oath that Prewitt didn't commit the crime. A recanting victim or eyewitness—or both rolled into one—can be a serious obstacle for the State in meeting its burden of proving a defendant guilty beyond a reasonable doubt. The prosecutor returned to the cycle-of-violence theme in closing argument to persuade the jurors there was no such doubt. He highlighted the cycle of violence at the start of his response to the defense's closing argument—a point reasonably calculated to have a particularly powerful impact on the jurors.
The cycle-of-violence testimony also likely took on even greater prominence because of the highly contentious way it was admitted. Prewitt's lawyer was required to lodge repeated objections, as the district court allowed the prosecutor to “lay foundation” for Officer White's opinion about the behavior of victims of domestic abuse. Those objections almost certainly piqued the jurors' interest in such controversial stuff. The prosecutor spread the theory out in front of the jurors before he completely failed in establishing the necessary factual link between that theory and the circumstances of this case. He had no evidence of a cycle of violence between Prewitt and L.C., something the district court could have determined at the outset by insisting on a specific proffer of the foundational evidence outside the presence of the jury in response to the initial relevance objection. Even after the lack of foundation became apparent, the district court allowed the prosecutor to ask a last question—whether a victim caught up in the cycle of violence might change her story during a period of reconciliation with her abuser. Officer White assured the jurors that does happen.
Without evidence of a pattern of abuse supporting the cycle-of-violence testimony, the jurors were left adrift in assessing that information and easily might have drawn inferences especially damaging to Prewitt. A cycle of violence, by definition, requires an ongoing course of abuse between the abuser and victim. So the jurors logically might have inferred that sort of history between Prewitt and L.C. even in the absence of any direct evidence. In turn, that inferred history would suggest Prewitt's disposition for abusive conduct directed at L.C.—a stealth form of unproven and otherwise problematic propensity evidence.
In the same vein, the jurors easily might have inverted the actual premise and conclusion to be drawn from properly admitted cycle-of-violence testimony. A demonstrable history of domestic abuse offers a psychologically recognized reason why the victim may remain with the abuser and even recant accusations against the abuser made immediately following a violent episode. Here, there was no evidence of an abusive history. If the jurors otherwise doubted L.C.'s trial testimony about Prewitt, they easily could have inferred that meant she had been caught up in the cycle of violence. And, again, that leads to the wholly unsupported and highly prejudicial conclusion that Prewitt had a propensity to abuse L.C.
In considering the impact of the error, we are guided by recent Kansas Supreme Court authority recognizing that trial defects that do not implicate constitutional rights may be excused as harmless if there is no reasonable probability they affected the outcome of the case. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012) (A nonconstitutional error may be declared harmless if “there is no reasonable probability that such error affected the outcome of the trial in light of the entire record.”); State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). Prewitt had characterized the error here as nonconstitutional. The State, as the party benefitting from the error, has the burden of proving harmlessness by that standard. McCullough, 293 Kan. at 983. If the State fails to do so regarding the improper admission of the cycle-of-violence testimony, Prewitt has demonstrated reversible error. Contrary to the dissent's intimation, we have stated and applied the correct standard for evaluating the effect of the erroneous evidence and related jury argument.
In this case, the State cannot meet the burden outlined in McCullough and Ward. The evidence is not so clear or one-sided as to erase any reasonable probability the cycle-of-violence testimony and the prosecutor's reliance on that testimony in closing argument substantially influenced the jurors to convict. There were no independent eyewitnesses to the assault on L . C. In the immediate aftermath of the attack, L.C. told the neighbors, the 911 dispatcher, and Officer White that Prewitt injured her. The trial evidence corroborated that L.C. made the accusation but not the underlying accuracy of the accusation. At trial, L.C. took an oath to tell the truth and testified she was mistaken in accusing Pruitt. She attributed the mistake to her hysterical state of mind at the time of the attack. That same trial evidence also corroborated L.C.'s extreme emotional upset following the attack. Prewitt's contemporaneous statements to the police were mixed in some respects. He adamantly denied hurting L.C. but at least implied she had injured him, suggesting some sort of justification based on self-defense. There was no compelling physical evidence pointing to Prewitt (as opposed to someone else) as the attacker.
To be sure, there were reasons a jury could favor the statements L.C. made at the time of the attack over her sworn trial testimony. L.C. did not equivocate or suggest any doubt that Prewitt hurt her in speaking with the police. But the State has failed to negate a reasonable possibility the improper cycle-of-violence testimony and the related closing argument influenced the jurors' evaluation of the proper evidence and their verdict to convict. We have already outlined the problems with the cycle-of-violence testimony and the prosecutor's related argument. We needn't repeat them and note only that the testimony was both well developed rather than fleeting and of substantial importance to the prosecutor's theory of the case in light of L.C.'s recantation on the stand. The question for us is not how we might have voted as jurors. Without having seen the witnesses testify, we haven't an adequate frame of reference to venture a conclusion. Nor is the question what we suppose or anticipate a jury would do in a retrial without the cycle-of-violence testimony. We ask whether the State has shown that the jurors hearing the case reasonably could not have been swayed to convict because of that testimony and the prosecutor's argument. That is a much narrower and more challenging question for the State. On the circumstances of this case, the conviction must be reversed.
Reversed and remanded. STANDRIDGE, J., dissenting:
I agree with the majority's conclusion that the necessary factual predicate for introduction of the cycle-of-violence testimony did not exist and that the district court erred in allowing such evidence to be presented to the jury. Nevertheless, I disagree that this error requires us to reverse Leroy Prewitt, Jr.'s conviction and remand the case for a new trial.
As the following excerpts demonstrate, the majority frames and analyzes the issue presented by Prewitt on appeal as one asserting violation of a constitutional right: “Prewitt argues that the prosecutor's introduction of testimony about the cycle of violence and its use in closing argument deprived him of a fair trial .... And in this case, the resulting impact sufficiently undermined the trial process [such] that we cannot conclude the jury verdict should stand.” (Emphasis added.) Slip op. at 5. But Prewitt does not frame the issue on appeal in these terms; instead, he asserts his conviction must be reversed because the district court erroneously admitted irrelevant evidence that was highly prejudicial to his defense. As specifically framed by Prewitt, then, this case involves a violation of evidentiary limitations set forth in K.S.A. 60–407(f) and not a constitutional right ( e.g., deprivation of a fair trial).
Notably, the distinction between a violation of evidentiary rules and a violation of a constitutional right is critical to determining whether the district court's error in this case interfered with Prewitt's substantial rights. Kansas law dictates that an erroneous admission of evidence is deemed harmless if the reviewing court is persuaded that the error did not affect the outcome of the trial. See K.S.A. 60–261. Recently, however, our Supreme Court has held that the degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. See State v. Ward, 292 Kan. 541, 567–70, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). If a constitutional right is implicated, the court must be persuaded, in light of the record as a whole, that there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the Constitution is not implicated—as is the case here—the court must be persuaded, in light of the record as a whole, that there is no reasonable probability that the error affected the outcome of the trial. Ward, 292 Kan. at 565. Given the analysis in Ward, the State bears a more onerous burden (proving a different verdict was not possible ) when a constitutional right is implicated and a more relaxed burden (proving a different verdict was not probable ) in the absence of a constitutional violation. See State v. McCullough, 293 Kan. 970. Syl. ¶ 9,270 P.3d 1142 (2012) (holding the burden of demonstrating harmlessness is on the party benefitting from the error).
In this case, a jury convicted Prewitt of a single count of aggravated battery based on evidence presented at trial that he beat L.C. in the early morning hours of April 10, 2010. At trial, L.C. testified that Prewitt had not attacked her, recanting her statements to the contrary made immediately after the incident. The district court erroneously permitted the State to elicit testimony from Officer Jason White about “the cycle of violence,” notwithstanding the fact that the State never offered evidence that Prewitt abused L.C. on any other occasion. It is against this factual and procedural backdrop that the narrow issue for decision on appeal arises: Is there a reasonable probability that the jury would have acquitted Prewitt on the charge of aggravated battery had Officer White not testified about the cycle of violence? I believe the answer to that question is no.
Significantly, L.C.'s original accusations against Prewitt were corroborated by Kara Cox and at least two responding Topeka police officers, Officer White and Officer Jared Strathman. Moreover, L.C. identified herself as the voice on the 911 recording and as the person in the photographs with the severe injuries. In addition to others recounting L.C.'s statements made immediately after she was battered, when Officer White contacted Prewitt, he observed Prewitt was intoxicated, supporting L.C.'s statement that he had been drinking before the attack. Further, although the audio disc of Prewitt's statements is not in the record on appeal, the preliminary hearing transcript also confirms L.C.'s original statements that the altercation started when Prewitt came home from a bar and one of them accused the other of infidelity and that this occurred shortly before L.C. showed up at Cox's door. Finally, Officer White testified L.C. repeatedly told him at the scene that she did not want to press charges, which supports an inference that she was reluctant to accuse Prewitt of the battery even though she readily acknowledged at the time that he was the attacker. Based on this evidence, I am not persuaded there exists a reasonable probability (as opposed to a possibility ) that Officer White's testimony affected the outcome of the trial and would therefore affirm the conviction.