Cox v. State

Pope, Presiding Judge,

concurring specially.

I agree with the majority’s conclusion in Division 2, but write separately to explain my reasons.

An act which would otherwise be a crime is justified (and therefore not a crime) if the actor reasonably believes the act is necessary to prevent harm to himself or another. The applicable standard is ob*89jective rather than subjective: are the circumstances sufficient to arouse the fears of a reasonable man that he or another is in danger? See Moore v. State, 228 Ga. 662 (6) (187 SE2d 277) (1972); McDonald v. State, 182 Ga. App. 509 (1) (356 SE2d 264) (1987); Coppola v. State, 161 Ga. App. 517 (2) (288 SE2d 744) (1982). The external circumstance that the victim had attacked the actor on prior occasions is relevant to show the reasonableness of the actor’s fears, see Daniels v. State, 248 Ga. 591 (1) (285 SE2d 516) (1981); but personal characteristics of the actor which may make him act unreasonably are not.

Decided January 6, 1995 Reconsideration denied January 17, 1995 Rosemary E. Myers, for appellant. Kenneth W. Mauldin, Solicitor, Ralph W. Powell, Jr., Assistant Solicitor, for appellee.

The defenses addressed by Uniform Superior Court Rule 31.4 — insanity, mental illness and mental incompetency — form a separate category of defenses based on diminished capacity rather than justification. In these situations an unjustified, criminal act has occurred, but the actor argues he should not be deemed fully culpable due to his mental disabilities. Evidence of mental capacity is clearly relevant in such cases, but notice pursuant to USCR 31.4 is required.

Even though evidence of “battered woman syndrome” includes testimony from mental health experts, it is a defense of justification rather than diminished capacity because it is based on prior attacks upon the actor by the victim and is thus relevant to the reasonableness of her fears. Pugh v. State, 191 Ga. App. 394 (382 SE2d 143) (1989). We therefore held in Pugh that the expert testimony was admissible as relevant to the justification defense, even though it would not have been admissible in support of a diminished responsibility defense due to failure to comply with USCR 31.4.

The Pugh analysis does not help defendant in this case, however. As the reasonableness standard for justification is purely objective and defendant’s mental disability is not a circumstance which may be considered, evidence of defendant’s disability is simply not relevant to a justification defense. It could have been relevant only to a defense based on diminished responsibility, but its use for this purpose is precluded by defendant’s failure to comply with USCR 31.4. Accordingly, I agree that the trial court did not err in granting the State’s motion in limine.