COA: Wife charged with murder may use effects-of-battery evidence in self-defense claim

The Court of Appeals of Indiana has reversed an interlocutory appeal for a woman charged with murdering her husband, finding that she may use effects-of-battery evidence in her self-defense claim.

In June 2018, Posey County law enforcement was dispatched in response to a report that Peggy Sue Higginson had shot and possibly killed her husband, Troy Higginson.

When law enforcement arrived, Peggy was found sitting on the side of the road near a black BMW where Troy was dead in the driver’s seat.

Troy’s seatbelt was cut off to remove him from the vehicle and law enforcement confirmed he had been shot in the right side of his chest. Peggy then verbalized that the handgun she had used was on the passenger floorboard of the BMW.

Peggy couldn’t answer questions, however, because she appeared to be under the influence of narcotics “given her manner of speech” and because, upon questioning, she admitted that she had taken 25 Seroquel pills shortly before the police had arrived.

Peggy was charged with murder and filed her notice of intent to raise a claim of self-defense and to introduce effects-of-battery evidence pursuant to Indiana Code section 35-41-3-11(b)(2). She retained Dr. Polly Westcott as her expert witness.

After administering a variety of tests, Westcott diagnosed Peggy with PTSD and noted that she had suffered from a major depressive disorder in the past. When deposed by the state, Westcott answered “No” when asked whether Peggy’s PTSD had prevented her from understanding the wrongfulness of her conduct when she killed her husband.

The Posey Superior Court granted the state’s subsequent motion to exclude Westcott’s testimony on the basis that her anticipated testimony, specifically that Peggy’s PTSD “affected her ability to appreciate the wrongfulness of her conduct,” was inadmissible to support a claim of self-defense.

In an interlocutory appeal, Peggy argued, “[Indiana Code section 35-31.5-2-109] contemplates the use of psychological evidence to establish that a person is suffering from the effects of battery. In fact, there is no other way to prove a psychological condition without the testimony of a professional. This is the only application of the Effects of Battery Statute in a self-defense case that makes any sense. Otherwise, the statute is meaningless.”

The Court of Appeals of Indiana reversed after holding oral arguments.

The appellate court noted that while it is cognizant of the duty to follow Indiana Supreme Court precedent and that it doesn’t believe that Indiana Code section 35-41-3-11 provides a middle ground between sanity and insanity, the COA agreed with much of Peggy’s argument.

“It would make very little sense for Indiana Code section 35-41-3-11 to state that it allows the use of effects-of-battery evidence, which, again, ‘refers to a psychological condition of an individual who has suffered repeated physical or sexual abuse inflicted by another individual,’ in self-defense claims while actually limiting the use of that evidence to insanity defenses,” Chief Judge Cale Bradford wrote for the COA. “To entirely forbid the use of effects-of-battery evidence, or psychological trauma, in self-defense cases that fall under Indiana Code section 35-41-3-11, would render the self-defense portion of the statute superfluous.”

The COA also concluded that Peggy may use effects-of-battery evidence in her self-defense claim despite the clear limits to what defendants may do in using effects-of-battery evidence when arguing self-defense.

“In essence, Dr. Westcott may testify as to the objective component of a person’s reasonable belief that they were under threat of imminent harm, given their PTSD, but not Peggy’s specific subjective belief,” Bradford wrote. “We take special care in outlining the appropriate use of effects-of-battery evidence in self-defense cases under Indiana Code section 35-41-3-11 because an opposite ruling would effectively make the self defense portion of the statute useless, which we strive to avoid.”

The case is Peggy Sue Higginson v. State of Indiana, 21A-CR-1169.