Marley v. State

ATTORNEY FOR APPELLANT

John Pinnow
Greenwood, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Randi E. Froug
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

JULIE MARLEY, )
)
Appellant (Defendant Below), ) Indiana Supreme Court
) Cause No. 49S02-0009-CR-521
v. )
) 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

BOEHM, Justice.
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, Marley’s 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 Donald’s house. Gloria Smalling, a
neighbor of Donald’s, joined this marathon at some point before Marley and
Donald began to argue. After Donald threw a plate at Marley’s head, Marley
left Donald’s 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 Marley’s 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 Donald’s past behavior, he replied,
“You little bitch, you wanted it,” and, according to Williams, Marley “went
ballistic.”
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 Ferarro’s testimony because Marley had not given
notice of an insanity defense. Marley responded that the videotape
established her dissociative state and that the doctor’s 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 State’s motion with respect to Ferarro’s testimony, but
determined that because Ferarro’s 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 Marley’s 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 State’s motion in
limine, reaffirmed its earlier ruling with respect to Ferarro’s 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 court’s 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

A. Exclusivity
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 Ferraro’s 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)[1] 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 § 35-41-3-11 (1998).
Although not limited by its terms to battered women, the statute
typically comes into play with respect to efforts to introduce evidence of
battered women’s 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 women’s
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
women’s syndrome is asserted as the basis of a defense. In Barrett, the
Court of Appeals held that evidence of battered women’s syndrome was
admissible to negate the defendant’s mens rea in a charge of neglect of her
child who died at the hands of her boyfriend. In determining that battered
women’s 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
defendant’s] perception.” As already observed, if the purpose of the 1997
legislation was to require that battered women’s 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. Marley’s claim is of the same sort, and was
therefore properly held subject to the insanity statute.
Marley’s claim of a “dissociative state” as a result of battered
women’s syndrome, like Barrett’s claim, is a claim that an abnormal
condition has impaired the defendant’s 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 Marley’s evidence, it falls within the
legislature’s 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 women’s 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 women’s 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 women’s syndrome evidence in
this manner is consistent with well established principles of Indiana law.
Over one hundred years ago, in 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 defendant’s 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 well settled.[2] 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 women’s syndrome evidence as to a defendant’s 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 prosecutor’s 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 women’s syndrome, in the form of her lay testimony and
expert testimony, would have been relevant to explain Barrett’s motive for
remaining with her boyfriend. See also Isaacs, 659 N.E.2d at 1040-41
(evidence of battered women’s syndrome admissible to refute defendant’s
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 women’s syndrome admitted to explain alleged rape victim’s
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 women’s
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).
B. 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.[3] Article I, 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 defendant’s] 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, but—leaving untouched the nature
of the crime and the amount or degree of proof essential to
conviction—only 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 women’s defense that was recognized in Barrett,675 N.E.2d at 1116.
The Court of Appeals in Marely’s case expressed the view that Barrett did
not “recognize a defense” based on battered women’s syndrome. Rather,
Barrett held that battered women’s 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.
C. The Application of the Statute to Marley and Donald as
“Cohabitants”
The effects of battery statute requires the victim to be the abused
individual’s (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 lovers.
“Cohabit” means “to live together as or as if a married couple.”
Merriam Wesbster’s Collegiate Dictionary 223 (10th ed. 1993). Black’s 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.” Black’s 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 (1877)).
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 court’s 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 Marley’s 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
Marley’s 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 jury’s
understanding of these issues. As the trial court pointed out, the
circumstances of the tape’s 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 Marley’s argument that her Sixth and
Fourteenth Amendment right to present a defense is violated by the trial
court’s ruling on the videotape issue. Marley may present her self-defense
and insanity defenses, bolstered by her battered women’s 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.” Roach 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.

Conclusion

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.
-----------------------
[1] 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 defendant’s] 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).

[2] No separate claim is raised under the Indiana constitution and we
express no opinion on any state constitutional issue.
[3] 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.