State v. Sallie

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 673

.]




             THE STATE OF OHIO, APPELLEE, v. SALLIE, APPELLANT.
                       [Cite as State v. Sallie, 

1998-Ohio-343

.]
Appellate procedure—Appeal of conviction of voluntary manslaughter on ground
         of ineffective assistance of counsel who did not present expert witness
         testimony concerning battered woman syndrome—Counsel not ineffective
         in failing to present expert witness testimony on battered woman syndrome,
         when—Strickland v. Washington standard, applied.
        (No. 97-19—Submitted February 3, 1998—Decided May 13, 1998.)
       APPEAL from the Court of Appeals for Lucas County, No. L-95-263.
                                  __________________
         {¶ 1} Craig L. Brown died on December 26, 1994, the victim of a single
gunshot wound to the head. From her initial contact with the police, appellant,
Shaconda M. Sallie, consistently maintained she did not intend to shoot Brown. At
trial, Sallie testified she and her boyfriend, Brown, quarreled throughout Christmas
day. Upon returning home from a family Christmas dinner, Sallie and Brown
argued again. According to Sallie, the verbal altercation turned physical.
         {¶ 2} Sallie testified Brown grabbed her by the neck, forced her onto the
couch, and began to choke her. Sallie further testified Brown “was telling [her] he
didn’t care if [she] could breathe and he was going to kill [her][.]” Sallie claims the
two struggled until she was able to break free and run down a hallway into a storage
closet. Sallie retrieved a .38 caliber revolver from the closet and, cocking the
hammer, pointed it at Brown. According to Sallie, she is uncertain what happened
next: Brown may have lunged at her in an attempt to gain control of the gun,
causing the weapon to discharge, or Sallie may have inadvertently placed too much
pressure on the trigger. What is certain, however, is that Sallie shot and killed
Brown.
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       {¶ 3} Despite Sallie’s testimony that Brown physically abused her on
several occasions during their five-year relationship, Sallie consistently claimed she
did not intend to shoot Brown. The testimony of several investigating police
officers supported Sallie’s claim of accidental shooting, as each heard Sallie
repeatedly state she did not intend to shoot Brown. In fact, Sallie said she did not
know if the gun was loaded. Sallie testified she turned the gun on Brown hoping
“to get out of the house. I was trying to scare him.”
       {¶ 4} A jury convicted Sallie of voluntary manslaughter with a firearm
specification, and the trial court sentenced her to an eight to twenty-eight year
period of incarceration. After Sallie’s motion for a new trial was denied, she
appealed her conviction to the Lucas County Court of Appeals. The court of
appeals affirmed Sallie’s conviction, holding she was neither denied the effective
assistance of counsel, nor prejudiced by the other trial court rulings about which
she complained.
       {¶ 5} Sallie then appealed to this court, claiming that her trial counsel
rendered ineffective assistance in failing to present expert witness testimony
concerning battered woman syndrome.
       {¶ 6} The cause is now before this court upon the allowance of a
discretionary appeal.
                               __________________
       Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson,
Assistant Prosecuting Attorney, for appellee.
       Jeffrey M. Gamso, for appellant.
                               __________________
       COOK, J.
       {¶ 7} This court has stated on numerous occasions that trial counsel’s
performance will be examined according to the standard set forth in Strickland v.
Washington (1984), 

466 U.S. 668

, 

104 S.Ct. 2052

, 

80 L.Ed.2d 674

. Applying the



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                                January Term, 1998




Strickland standard to the case at bar, we hold Sallie’s counsel was not ineffective
in failing to present expert witness testimony on battered woman syndrome.
       {¶ 8} “In order to prevail on a claim of ineffective assistance of counsel,
[Sallie] must show that counsel’s performance fell below an objective standard of
reasonableness and that prejudice arose from counsel’s performance.” State v.
Reynolds (1998), 

80 Ohio St.3d 670, 674

, 

687 N.E.2d 1358, 1365

, citing Strickland.
To demonstrate she has met the first prong of the Strickland test, Sallie must show
counsel’s conduct was objectively deficient by producing evidence that counsel
acted unreasonably. State v. Keith (1997), 

79 Ohio St.3d 514, 534

, 

684 N.E.2d 47, 65

. In order to meet Strickland’s second prong, Sallie must prove that but for
counsel’s errors, there exists a reasonable probability the result of the trial would
be different. 

Id.

       {¶ 9} As we explained in State v. Carter (1995), 

72 Ohio St.3d 545, 558

,

651 N.E.2d 965

, 977:
       “Judicial scrutiny of counsel’s performance is to be highly deferential, and
reviewing courts must refrain from second-guessing the strategic decisions of trial
counsel. To justify a finding of ineffective assistance of counsel, the appellant must
overcome a strong presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” (Citation omitted.)
       {¶ 10} As a result, trial counsel is entitled to a strong presumption that all
decisions fall within the wide range of reasonable professional assistance. State v.
Thompson (1987), 

33 Ohio St.3d 1, 10

, 

514 N.E.2d 407, 417

. In the instant case,
we believe counsel’s failure to present expert testimony on battered woman
syndrome was a reasonably sound trial strategy. Moreover, review of the record
does not indicate a reasonable probability that presentation of such expert testimony
would have changed the outcome of Sallie’s trial.




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       {¶ 11} In State v. Koss (1990), 

49 Ohio St.3d 213

, 

551 N.E.2d 970

, this
court recognized for the first time the admissibility of testimony on battered woman
syndrome. Discussing the admissibility of evidence of the syndrome, we stated:
       “[A]dmission of expert testimony regarding the battered woman syndrome
does not establish a new defense or justification. Rather, it is to assist the trier of
fact in determining whether the defendant acted out of an honest belief that she was
in imminent danger of death or great bodily harm and that the use of such force was
her only means of escape. * * * ‘A history of physical abuse alone does not justify
the killing of the abuser. Having been physically assaulted by the abuser in the past
is pertinent to such cases only as it contributes to the defendant’s state of mind at
the time the killing occurred; e.g., in that it formed the basis for the woman’s
perception of being in imminent danger of severe bodily harm or death at the hands
of her partner.’ (Emphasis sic.)” (Citations omitted.) 

Id. at 217

, 

551 N.E.2d at 974

.
       {¶ 12} Expert testimony explaining battered woman syndrome, and opining
that the defendant suffered from the syndrome, may be admitted to establish the
requisite mental state in proving self-defense. R.C. 2901.06. Ohio has adopted a
subjective test to determine whether a defendant properly acted in self-defense. If
the defendant honestly believes that death or great bodily harm is imminent and
that the only means of escape from such danger is in the use of deadly force, then
the defendant has acted in self-defense. Koss, 

49 Ohio St.3d at 215

, 

551 N.E.2d at 973

.
       {¶ 13} Expert testimony is admissible where it will assist the trier of fact in
understanding matters “beyond the knowledge or experience possessed by lay
persons or [it] dispels a misconception common among lay persons[.]” Evid.R.
702(A). Thus where the accused claims self-defense, expert evidence concerning
battered woman syndrome is most often necessary and provides the greatest
assistance to a jury, in those situations where the facts of the case indicate that the



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                                January Term, 1998




average, reasonable person not suffering from the syndrome, would not have
believed the danger of death or great bodily harm was imminent. Koss, 

49 Ohio St.3d at 221

, 

551 N.E.2d at 977

 (Holmes, J., concurring). Evidence of the syndrome
is most commonly admitted in those cases where the defendant mistakenly believed
that the circumstances warranted the use of deadly force in self-defense, but such
mistaken belief proved reasonable in light of her suffering from the syndrome. 

Id.

        {¶ 14} In Sallie’s case, trial counsel could have reasonably concluded
expert testimony about battered woman syndrome was unnecessary and irrelevant.
Sallie consistently maintained the shooting was accidental—that she did not
intentionally pull the trigger. Testimony by the state’s witnesses supported this
position. Because Sallie did not claim she shot Brown in self-defense, evidence
that she may have suffered from battered woman syndrome was immaterial. We
agree with the court of appeals that trial counsel might reasonably have determined
evidence explaining and rationalizing why Sallie might intentionally shoot Brown
would appear inconsistent with the theory of accident, thereby diminishing Sallie’s
credibility.
        {¶ 15} Sallie, however, while maintaining she never intended to use the
gun, contends self-defense was an alternative theory of defense that also explained
why she initially armed herself. Therefore, Sallie asserts, expert testimony on
battered woman syndrome was essential to explain to the jury why she retrieved
the gun in the first instance. Considering Sallie’s account of the shooting, including
her testimony that Brown physically attacked her and, as he was choking her,
threatened to kill her, expert testimony on battered woman syndrome was
unnecessary to show an honest belief in the imminent danger of death or great
bodily harm.
        {¶ 16} The real issue in Sallie’s case was not whether she suffered from
battered woman syndrome, but whether Sallie’s version of the facts was credible.
If the jury believed events occurred as Sallie claims, it could have properly




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determined she reasonably believed she was in imminent danger of death or great
bodily harm and thus acted in self-defense.
       {¶ 17} On the facts as Sallie related them, the jury could make the
determination Sallie acted in self-defense regardless of whether Brown had
previously abused her, or whether the night Brown was killed was the first time he
attacked Sallie. Sallie’s trial counsel might reasonably have concluded testimony
on battered woman syndrome was simply not relevant under the facts of this case.
       {¶ 18} Moreover, expert testimony is inadmissible if it concerns matters
“within the ken of the jury[.]” State v. Koss, 

49 Ohio St.3d at 216

, 

551 N.E.2d at 973

, citing Bostic v. Connor (1988), 

37 Ohio St.3d 144

, 

524 N.E.2d 881

, paragraph
three of the syllabus. Assuming Sallie’s version of events is true, expert testimony
would be unnecessary to aid the jury in determining whether a woman being choked
and threatened with death believed she was in imminent danger necessitating the
use of force in self-defense. Trial counsel is under no duty to attempt to present
inadmissible evidence.
       {¶ 19} Therefore, we hold in this instance that the lack of expert testimony
on battered woman syndrome can be considered a sound, reasonable trial strategy.
Affording trial counsel the presumption of reasonable professional assistance to
which all licensed attorneys are entitled, we find no merit to Sallie’s argument that
counsel’s representation fell below an objectively reasonable standard or that, but
for the lack of expert testimony on battered woman syndrome, the result of her trial
would have been different. Accordingly, we affirm the judgment of the court of
appeals.
                                                                Judgment affirmed.
       MOYER, C.J., DOUGLAS, CHRISTLEY, F.E. SWEENEY, PFEIFER and
LUNDBERG STRATTON, JJ., concur.
       JUDITH A. CHRISTLEY, J., of the Eleventh Appellate District, sitting for
RESNICK, J.



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January Term, 1998




__________________




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