COA to consider admission of PTSD evidence in case of wife charged with murder

A Wadesville woman charged with murdering her husband is taking her claim of self-defense to the Court of Appeals of Indiana, arguing the Posey Circuit Court erred when it excluded testimony from a doctor who diagnosed her as having PTSD due to battery.

The case of Peggy Sue Higginson v. State of Indiana, 21A-CR-1169, will be heard at 1:30 p.m. Monday.

The case against Peggy Higginson started in June 2018, when Posey County Sheriff’s Deputy Bryan Hicks was dispatched to Wade Road in Wadesville in response to a report that Peggy had shot and possibly killed her husband, Troy Higginson.

When the deputy arrived, Hicks saw Peggy sitting on the side of the road near a black BMW. Meanwhile, Troy was seated in the driver’s seat of the BMW and appeared to be deceased.

Hicks cut Troy’s seatbelt and removed him from the car. The deputy then saw that Troy had been shot in the right side of his chest, and Peggy told Hicks that the handgun she had used was on the passenger floorboard of the BMW.

Hicks placed Peggy in handcuffs and attempted to speak with her about what had happened. However, she appeared to be under the influence of narcotics “given the manner of her speech.” When asked if she had taken anything, she replied that she had taken 25 Seroquel pills shortly before the police had arrived, according to court documents.

Based on her medical condition, Peggy was transported to Deaconess Hospital in Evansville for treatment.

The state charged Peggy with murder in October 2018. She filed her notice of intent to raise a claim of self-defense and to introduce “effects of battery” evidence pursuant to Indiana Code § 35-41-3-11(b)(2).

Peggy retained Polly Westcott, a clinical psychologist, as her expert witness. Westcott interviewed her at the Posey County Jail in August 2020 and administered a variety of tests. The doctor ultimately diagnosed Peggy with PTSD and noted she had suffered from a major depressive disorder in the past.

During a deposition in April 2021, Westcott explained Peggy Sue’s PTSD had “shaped her perception of imminent harm” such that she was unable to appreciate the wrongfulness of her conduct when she shot and killed Troy.

But the state moved to exclude Westcott’s testimony and argued that her anticipated testimony was inadmissible to support a claim of self-defense. The trial court agreed with the state and concluded that Westcott’s testimony was inadmissible under the current posture of the case.

The trial court advised Peggy that she “must proceed under an insanity defense and comply with the insanity statute if she intends to utilize Dr. Westcott’s testimony regarding the effects of battery and her state of mind at the time of the shooting.”

On interlocutory appeal, Peggy is arguing the trial court erred in excluding Westcott’s testimony concerning her PTSD, as it should be admissible effects-of-battery evidence to support a claim of self-defense.

But in its appellee brief, the state argued, “In this case, the trial court found that Dr. Westcott’s testimony was in the nature of opinions in support of an insanity defense — not self-defense. … Defendant’s attempt to use Dr. Westcott’s testimony to support a hybrid self-defense/insanity theory is precisely what the legislature sought to exclude by passing Indiana Code Section 35-41-3-11.”

The arguments will be held in the Court of Appeals courtroom at the Indiana Statehouse, but in-person attendance will be limited to the judges — Chief Judge Cale Bradford and Judges Margret Robb and Robert Altice — court personnel and no more than two attorneys per arguing party. A live webcast will be available outside the courtroom and online.