ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
JULIE MARLEY, )
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0009-CR-521
) Indiana Court of Appeals
STATE OF INDIANA, ) Cause No. 49A02-9908-CR-617
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Ruth D. Reichard, Judge
Cause No. 49G02-9706-CF-085105
ON PETITION FOR TRANSFER
May 30, 2001
We grant transfer in this criminal appeal to discuss the application of the
effects of battery statute.
Factual and Procedural Background
Julie Marley, aged thirty-one, and her boyfriend, Gary Williams, were charged with murder,
attempted murder, criminal deviate conduct, and two counts of criminal confinement, all in
connection with the death of Donald Marley, Marleys uncle, aged seventy-one. According
to Marley, on the evening of June 10, 1997, Marley, Williams, and Donald
drank beer and wine for approximately sixteen hours at Donalds house. Gloria
Smalling, a neighbor of Donalds, joined this marathon at some point before Marley
and Donald began to argue. After Donald threw a plate at Marleys
head, Marley left Donalds house, spoke with her mother by telephone, and returned.
The fighting resumed when Marley demanded an apology from Donald, who had
been convicted of molesting Marley when she was fourteen years old. During
the course of the argument, Donald cut Marleys finger and leg with a
knife, and she stabbed him in the chest. The argument appeared to
subside when Marley drank a beer and gave another to Donald. However,
when Marley renewed her demand for an apology for Donalds past behavior, he
replied, You little bitch, you wanted it, and, according to Williams, Marley went
Marley then forced Donald and Smalling at knifepoint to an upstairs bedroom and
tied up Smalling. Marley compelled Smalling to perform oral sex on Donald,
then tortured, stabbed, and strangled Donald and beat both Donald and Smalling with
a hammer. Donald was killed, but Smalling managed to escape and call
the police. When the police found Marley, she confessed to killing Donald,
but stated that she did not recall most of the attack, which Smalling
said lasted between six and eight hours. Smalling believed Williams was present
for the entire attack, but was unable to recall where he was for
the majority of the incident. According to Smalling, at one point, Williams
beat and choked her.
Defense counsel hired a clinical psychologist, Dr. Bart Ferraro, who diagnosed Marley with
dysthymia, post-traumatic stress disorder, polysubstance abuse, and mixed personality disorder. He concluded
that her problems stemmed largely from early childhood molestation by Donald. In
his opinion, at the time of the crimes, she was not conscious of
her actions due to post-traumatic stress disorder and dissociation. In his view,
she met the criteria for an insanity defense. Marley did not file
a notice of insanity defense as required by the Indiana Code.
On January 7, 1999, the State filed a motion in limine to exclude
a videotape of Marley and Donald engaged in various sexual acts. The
motion also sought to exclude Ferarros testimony because Marley had not given notice
of an insanity defense. Marley responded that the videotape established her dissociative
state and that the doctors testimony was admissible, not to support an insanity
defense, but to rebut the mens rea element of murder. The trial
court conducted hearings on the motions and denied the States motion with respect
to Ferarros testimony, but determined that because Ferarros testimony related to mental disorders,
in order to present it, Marley had to comply with the effects of
battery statute, Indiana Code sections 35-41-1-3.3 and 35-41-3-11, which the trial court concluded
requires a notice of an insanity defense. The trial court ruled that
it would allow Marley to file her notice belatedly. The trial court
also indicated that the videotape was inadmissible, but agreed to a continuance and
took the motion under advisement.
On January 22, Marley filed her notice of intent to proceed with both
self-defense and insanity as well as the defense of reasonable doubt with respect
to mens rea and voluntariness. As required by the insanity defense statute,
the trial court appointed two experts to evaluate Marleys mental condition. Both
diagnosed Marley as suffering from a variety of mental disorders. On June
4, Marley filed a second notice of defense and argued that the trial
court was violating her due process, Sixth Amendment, and Fourteenth Amendment rights by
prohibiting her from admitting evidence of her relationship with Donald and her mental
status to show lack of mens rea and voluntariness without complying with the
insanity defense. On July 1, the trial court held another evidentiary hearing
on the States motion in limine, reaffirmed its earlier ruling with respect to
Ferarros testimony, and ruled the videotape inadmissible.
Marley requested that the trial court certify the order for interlocutory appeal, which
it did. The Court of Appeals affirmed the trial courts rulings.
Marley v. State, 729 N.E.2d 1011 (Ind. Ct. App. 2000). Judge Brook,
in dissent, found that the effects of battery statute did not apply to
this case because Marley and Donald were not cohabitants as that term is
used in the statute. Id. at 1017-19.
I. Effects of Battery Statute
Marley first claims that, for a variety of reasons, she should be allowed
to present her medical evidence as a defense to the mens rea or
the voluntariness elements of the charged crimes. The trial court ruled that
the evidence, including Ferraros testimony, would be admissible only under the effects of
battery statute, and that the statute incorporated the requirements for maintaining an insanity
defense. This is an issue of first impression.
The effects of battery statute is found among the defenses relating to culpability.
It applies to a defendant who either (1) raises the issue [of]
not responsible as a result of mental disease or defect (for convenience we
refer to this as an insanity defense)
or (2) claims to have used
justifiable reasonable force (self-defense), and, in conjunction with either, raises the issue that
the defendant was at the time of the alleged crime suffering from the
effects of battery as a result of the past course of conduct of
the individual who is the victim of the alleged crime. Ind.Code §
Although not limited by its terms to battered women, the statute typically comes
into play with respect to efforts to introduce evidence of battered womens syndrome
in defense of a charge against the mistreated victim. It is far
from clear from the language of this statute what it is intended to
do. It does not explicitly limit the use of battered womens syndrome
evidence to the self-defense and insanity theories. It imposes notice requirements on
a defendant claiming self-defense, but has no comparable provision with respect to insanity.
Presumably the absence of any notice requirement with respect to insanity is
because the insanity defense statute has its own notice requirement. Id. §
35-36-2-1. Self-defense has no similar provision. The sum of this is
that, although the statute states that it applies to an insanity defense, it
has no substantive or procedural provisions with respect to insanity. Read literally,
the statute does nothing with respect to insanity, and the reference to the
insanity defense is surplusage.
The State contends that the statute was a legislative response to Barrett v.
State, 675 N.E.2d 1112, 1116 (Ind. Ct. App. 1996), trans. denied, and is
intended to impose notice requirements where battered womens syndrome is asserted as the
basis of a defense. In Barrett, the Court of Appeals held that
evidence of battered womens syndrome was admissible to negate the defendants mens rea
in a charge of neglect of her child who died at the hands
of her boyfriend. In determining that battered womens syndrome evidence was not
limited to cases of self-defense, the court noted that Indiana courts have considered
the admissibility of BWS based on the facts of each particular case, id.,
and that our supreme court held that evidence of BWS was admissible so
long as it is relevant, id. at 1117 (quoting Isaacs v. State, 659
N.E.2d 1036, 1041 (Ind. 1995)). Barrett did not address the question whether,
assuming this evidence was relevant, it was relevant because it bore on a
species of insanity that triggered the procedural requirements of the insanity statute, or
was relevant for some other reason.
The inability to form a subjective appreciation of the effect of neglect of
a dependant is within the literal terms of the insanity defense because it
is a severally abnormal mental condition that impairs [the defendants] perception. As
already observed, if the purpose of the 1997 legislation was to require that
battered womens syndrome evidence be limited to self-defense and insanity, the language chosen
is less than clear. Nevertheless, we agree with the trial court that
the statute is intended to have that effect, if for no other reason
than it would otherwise be meaningless as to insanity. More importantly, the
legislative response to Barrett suggests that the General Assembly considered the Barrett defense
to be in the nature of an insanity defense as that is defined
in the Indiana Code. Marleys claim is of the same sort, and
was therefore properly held subject to the insanity statute.
Marleys claim of a dissociative state as a result of battered womens syndrome,
like Barretts claim, is a claim that an abnormal condition has impaired the
defendants perception of the action taken. If the lack of knowledge or
intent is attributable to a mental disease or defect, which is the nature
of Marleys evidence, it falls within the legislatures definition of the insanity defense
and must be asserted accordingly. In this respect, Barrett is to be
distinguished from McClain v. State, 678 N.E.2d 104, 105, 108 (Ind. 1997), where
we held that evidence establishing automatism to negate voluntariness is not subject to
the insanity defense statute if it is not the product of a mental
disease or defect. However, as we noted in McClain, the definition of
insanity if read broadly could embrace a wide variety of mental conditions that
are not properly held subject to the insanity statute. Id. at 108.
McClain staked out a small area of mental states, e.g., sleepwalking, epilepsy,
and metabolic disorders, that are not attributable to any mental disease or defect
but nevertheless negate the voluntariness requirement. See also Reed v. State, 693
N.E.2d 988, 991-92 (Ind. Ct. App. 1998) (defendant need not give notice of
transient ischemic attack (TIA) evidence under insanity statute because the impairment is not
the result of a diseased mind). In contrast, we conclude that the
legislature has determined that, where the defendant claims that battered womens syndrome has
affected her ability to appreciate the wrongfulness of her conduct, she must proceed
under the insanity defense. Barrett predated the statute. To the extent
that Barrett suggests that battered womens syndrome evidence is admissible on the issue
of lack of intent or knowledge without compliance with the insanity statute, it
is superseded by the 1997 legislation.
Limiting the admissibility of battered womens syndrome evidence in this manner is consistent
with well established principles of Indiana law. Over one hundred years ago,
Sage v. State, 91 Ind. 141, 145 (1883), this Court held that
the current statutory scheme did not recognize a middle ground between sanity and
insanity. Thus, insanity was recognizable as a defense, but not as a
mitigating circumstance. Similarly, our current statutory scheme recognizes no middle ground between
insanity and sanity. More recently, this Court summarized this principle, stating that,
[i]n Indiana we do not recognize degrees of insanity. Cardine v. State,
475 N.E.2d 696, 698 (Ind. 1985) (quoting Cowell v. State, 263 Ind. 344,
348-49, 331 N.E.2d 21, 24 (1975)); accord Holmes v. State, 671 N.E.2d 841,
857-58 (Ind. 1996) (instruction to jury that evidence of mental state was properly
offered to negate defendants capacity to form requisite intent was erroneous). Rather,
within the ambit of the terms comprising the definition of legal insanity[,] complete
mental incapacity must be demonstrated before criminal responsibility can be relieved. Cowell,
263 Ind. at 349, 331 N.E.2d at 24 (citations omitted). In short,
as a general proposition Indiana has long held that a defendant may not
submit evidence relating to mental disease or defect except through an insanity defense.
The effects of battery statute, Marley contends, has the effect of impermissibly shifting
the burden of proof to her as to an element of the crime.
Marley correctly points out that federal due process requires the State to
bear the burden of proof on every element of a criminal offense.
In re Winship, 397 U.S. 358, 364 (1970). We do not agree
that the statute violates the principles of In re Winship. Rather, the
burden remains on the State to demonstrate the elements of the crime, namely
that Marley knowingly or intentionally killed Donald. Ind.Code § 35-42-1-1. Whether
Marley knowingly or intentionally killed Donald is an inquiry distinct from the defense
raised under the insanity statute, which provides that a person is not responsible
if, as a result of mental disease or defect, [s]he was unable to
appreciate the wrongfulness of the conduct at the time of the offense. Id.
§ 35-41-3-6. The federal due process constitutionality of placing the burden on
the defendant to establish that defense by a preponderance of the evidence is
Price v. State, 274 Ind. 479, 483, 412 N.E.2d 783,
785 (1980); accord Leland v. Oregon, 343 U.S. 790, 798 (1952) (upholding Oregon
statute that required defendant to prove insanity beyond a reasonable doubt); Rivera v.
State, 351 A.2d 561, 562-63 (Del. 1976) (upholding federal constitutionality of Delaware statute
that required defendant to prove mental illness by a preponderance of the evidence).
Barring battered womens syndrome evidence as to a defendants state of mind where
the defendant has not complied with the insanity statute does not affect its
admissibility for other purposes. For example, in
Barrett, the Court of Appeals
concluded that the defendant was denied the opportunity to present evidence essential to
her defense when she was prevented from responding to prosecutors questioning during opening
and closing arguments as to why she remained with her abusive boyfriend.
Barrett, 675 N.E.2d at 1117. We agree with the Court of Appeals
that evidence of battered womens syndrome, in the form of her lay testimony
and expert testimony, would have been relevant to explain Barretts motive for remaining
with her boyfriend. See also Isaacs, 659 N.E.2d at 1040-41 (evidence of
battered womens syndrome admissible to refute defendants claim that relationship with former wife
he was accused of murdering was friendly); Dausch v. State, 616 N.E.2d 13,
15 (Ind. 1993) (evidence of battered womens syndrome admitted to explain alleged rape
victims recanting of story of abuse at hands of defendant); Carnahan v. State,
681 N.E.2d 1164, 1166-67 (Ind. Ct. App. 1997) (evidence of battered womens syndrome
relevant to credibility of wife who claimed husband had abused her but then
recanted at trial); Allen v. State, 566 N.E.2d 1047, 1053 (Ind. Ct. App.
1991) (evidence was admitted at sentencing that woman convicted of criminal recklessness had
been abused by the victim husband).
Bar Against Ex Post Facto Laws
Marley claims that the statute cannot apply to her without violating the United
States and Indiana constitutional prohibitions against ex post facto laws.
Section 24 of the Indiana Constitution provides that, No ex post facto law
. . . shall ever be passed. The United States Constitution contains
a similar provision in Article I, Section 10, clause 1.
An ex post facto law is retroactive in application.
Weaver v. Graham,
450 U.S. 24, 29 (1981). In this case, the charged offenses occurred
on June 11, 1997 and the effects of battery statute became effective on
July 1, 1997. The law is clearly retroactive as applied to this
case. However, to run afoul of the constitutional bar to ex post
facto laws, the law must increase [the defendants] punishment, change the elements of
or ultimate facts necessary to prove the offense, or deprive defendant of some
defense or lesser punishment that was available at the time of the crime.
Crawford v. State, 669 N.E.2d 141, 150 (Ind. 1996). In Calder
v. Bull, 3 U.S. (3 Dall.) 386, 390-91 (1798), the United States Supreme
Court made it clear that changes to a rule of evidence may implicate
the prohibition against ex post facto laws. However, as that Court has
since articulated it:
[A]lterations [to rules of evidence] which do not increase the punishment, nor change
the ingredients of the offence, or the ultimate facts necessary to establish guilt,
butleaving untouched the nature of the crime and the amount or degree of
proof essential to convictiononly remove existing restrictions upon the competency of certain classes
of persons as witnesses, relate to modes of procedure only, in which no
one can be said to have a vested right, and which the State,
upon grounds of public policy, may regulate at pleasure.
Thompson v. Missouri, 171 U.S. 380, 385-86 (1898).
Marley argues that the effects of battery statute deprives her of a battered
womens defense that was recognized in
Barrett,675 N.E.2d at 1116. The Court
of Appeals in Marelys case expressed the view that Barrett did not recognize
a defense based on battered womens syndrome. Rather, Barrett held that battered
womens syndrome evidence can be admissible to show lack of mens rea, an
otherwise recognized defense. To the extent the statute changed Indiana law, all
it did was make explicit that this form of evidence must come in,
if at all, through the procedures that govern proof of other types of
insanity. To the extent that the Court of Appeals decision in Barrett
could be read to establish an intermediate insanity defense, there is no ex
post facto implication because the Court of Appeals was not free to change
the law of the state contrary to precedent of the Court. Thus,
this statute does not raise the ex post facto concern that the legislature
deprived the defendant of a defense or lesser punishment.
The Application of the Statute to Marley and Donald as Cohabitants
The effects of battery statute requires the victim to be the abused individuals
(1) spouse or former spouse, (2) parent, (3) guardian or former guardian, (4)
custodian or former custodian, or (5) cohabitant or former cohabitant. Ind.Code §
35-41-1-3.3(2). Because it is clear that the relationship between Marley and Donald
was not among the first four criteria, the issue becomes whether they were
cohabitants or former cohabitants. Marley claims that the effects of battery statute
does not apply to her because she and Donald were not cohabitants or
former cohabitants. The majority opinion in the Court of Appeals disagreed stating,
the legislature did not intend cohabitant to necessarily mean a sexual partner, and,
thus, Donald was a cohabitant as to Marley. Marley, 729 N.E.2d at
1016. The dissent argued that both the plain meaning of cohabitation and
the use of the term cohabitant in other contexts lead to the conclusion
that the term cohabitant appears to be one of limited application, meaning .
. . a person who lives with another as husband and wife or
in a comparable sexual relationship. Id. at 1019. We agree with
the dissent that the term cohabitant requires not only living together under one
roof, but also has an element of an ongoing relationship of at least
Cohabit means to live together as or as if a married couple.
Merriam Wesbsters Collegiate Dictionary 223 (10th ed. 1993). Blacks Law Dictionary defines
cohabitation as [t]he fact or state of living together, especially as partners in
life, usually with the suggestion of sexual relations. Blacks 254 (7th ed. 1999).
The usual meaning of the term cohabitation thus implies at least a
temporary life partner arrangement of some sort. This interpretation is further supported
by the use of the terms cohabit and cohabitation in other contexts.
See Ind.Code § 31-11-10-2; Ind.Code § 31-16-14-1; Graves v. Graves, 123 Ind. App.
618, 621, 112 N.E.2d 869, 870 (1953) (We use the terms cohabit and
cohabitation as implying sexual intercourse.) (quoting Burns v. Burns, 60 Ind. 259, 260
At the time Donald was killed, the record does not support a cohabitation
between Marley and her uncle. Under some circumstances an adult and a
fourteen year old might be viewed as cohabitants, but we need not address
that question here. In this case, the trial court was confronted with
evidence that a sexual relationship between Marley and Donald resumed when Marley was
twenty-one years old and living with Donald. This is sufficient to support
a relationship of former cohabitants as provided in the statute.
II. Admission of Videotape
Marley also claims that the trial court erred in ruling that a videotape
containing over one hundred minutes of her and Donald engaged in a variety
of sexual activities was inadmissible. The trial courts order stated:
The Court granted the Motion in Limine with respect to the video tape
because of the following Rule 403 analysis: the defense could not lay
a foundation for it; the defense could not authenticate it; we do not
know the date the video tape was made, or the circumstances of the
sexual encounter; it would be distracting to the jury; and, it would cause
an undue consumption of time.
Marley claims that the probative value of the tape is not substantially outweighed
by the danger of unfair prejudice, and by not allowing her to present
this evidence, the trial court is violating her Sixth and Fourteenth Amendment right
to present a defense. The State counters that the trial court was
acting within its discretion when it ruled that the videotape was inadmissible.
Trial courts are given wide latitude in Rule 403 rulings, and we review
those determinations for an abuse of discretion.
Ingram v. State, 715 N.E.2d
405, 408 (Ind. 1999). The trial court held two hearings on the
admissibility of the tape and heard extensive argument and evidence, including three expert
witnesses on Marleys mental status. Marley argues that the tape is relevant
and probative because it depicts the relationship between Marley and Donald, illustrates the
doctors testimony, corroborates Marleys testimony, and helps the jury understand dissociation. The
State responds that doctors will be testifying at length about these concepts at
trial, and the sexually explicit tape would add very little to the jurys
understanding of these issues. As the trial court pointed out, the circumstances
of the tapes creation are not established, so it is speculative whether it
in fact demonstrates a dissociative state. Defense counsel also argues that the
danger of unfair prejudice is little because the jury already knows about the
abuse. In response, the State notes that the probative value is minimal
because this information will be presented to the jury in a much less
circus-like atmosphere. Given that there will be testimony from expert witnesses on
this point, we cannot conclude that the probative value of a videotape containing
over one and a half hours of explicit sexual footage would necessarily outweigh
the potential juror distraction. In striking this balance under Indiana Evidence Rule
403, the trial court did not abuse its discretion when it ruled that
the videotape was inadmissible.
We also find unpersuasive Marleys argument that her Sixth and Fourteenth Amendment right
to present a defense is violated by the trial courts ruling on the
videotape issue. Marley may present her self-defense and insanity defenses, bolstered by
her battered womens syndrome evidence. This may include testimony from doctors concerning
her claimed dissociation and other mental problems. Although the right to present
a defense is of the utmost importance, it is not absolute.
v. State, 695 N.E.2d 934, 939 (Ind. 1998). [T]he accused, as is
required of the State, must comply with established rules of procedure and evidence
designed to assure both fairness and reliability in the ascertainment of guilt and
innocence. Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).
The trial court was within its discretion in concluding that the videotape does
not pass the Evidence Rule 403 test and is therefore not admissible.
The judgment of the trial court is affirmed. This case is remanded
for proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The defense we refer to in short as insanity is more precisely
defined as being unable to appreciate the wrongfulness of the conduct as a
result of a severely abnormal mental condition that grossly and demonstrably impairs [the
defendants] perception. Ind.Code § 35-41-3-6 (1998). If such a defense is
asserted the statute requires notice to the trial court, id. § 35-36-2-1, and
places the burden of establishing the defense on the defendant by a preponderance
of the evidence, id. § 35-41-4-1(b).
No separate claim is raised under the Indiana constitution and we express
no opinion on any state constitutional issue.
Although Marley did not raise this issue in the trial court, both
she and the State agree that ex post facto violations constitute fundamental error
that may be raised for the first time on appeal. Nuerge v.
State, 677 N.E.2d 1043, 1045-47 (Ind. Ct. App. 1997), trans. denied.