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Donna YAKLICH

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide - Murder for hire
Number of victims: 1
Date of murder: December 12, 1985
Date of birth: 1955
Victim profile: Dennis Yaklich, 39 (her police detective husband)
Method of murder: Shooting
Location: Arapahoe County, Colorado, USA
Status: Sentenced to 40 years in prison. Released in October 2005
 
 

 
 
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Donna Yaklich: At 31, Donna Yaklich was married to a Pueblo Colorado narcotics detective, and raising a son and four stepchildren on the family's farm. One December evening in 1985, shots rang out, killing her husband Dennis.

The authorities struggled to find clues to the execution style shooting. They suspected it was linked to Dennis' work as a narcotics detective. After months of dead ends, a tip led them to two teenage gunmen... and eventually back to Donna Yaklich, herself. But Donna had another surprise for the authorities. Her attorneys argued she was a battered woman and the murder was her last desperate attempt to end the abuse. It was a controversial legal move, claiming that she hired the hit men in self-defense.

After one mistrial, and a grueling second trial, Donna Yaklich was acquitted of first-degree murder. But she was convicted on the charge of conspiracy. She was sentenced to forty years in prison. She is currently on parole,


Donna Yaklich To Be Released After 18-Year Prison Term

Woman Convicted Of Conspiracy In Police Husband's Death

TheDenverChannel.com

October 20, 2005

ARAPAHOE COUNTY, Colo. -- The Pueblo woman convicted of hiring two teens to kill her police detective husband is heading to a halfway house after spending almost 18 years in prison.

Donna Yaklich, 50, was ordered released from the Colorado Women's Correctional Facility in Canon City in the next 10 days and will be moving to a halfway house in Arapahoe County. The decision was made Thursday afternoon by the Arapahoe County Community Corrections Board. Yaklich was not at the hearing and learned of the decision by phone.

She was arrested after Dennis Yaklich was gunned down in the driveway of their home in 1985 and eventually convicted of conspiracy to commit murder in the death. She was sentenced to 40 years in prison.

Two brothers, Charles and Edward Greenwell, were also arrested and sentenced to prison terms for killing Yaklich. Charles Greenwell, who was 16 at the time of the crime, received a 20-year prison sentence; Eddie, then 25, received 30 years.

Donna Yaklich maintained she was abused by her husband, who was a weightlifter and took steroids. She said she was afraid he would kill her.

A state task force has reopened the investigation into the 1977 death of Dennis Yaklich's first wife. The original investigation concluded that Barbara Yaklich died of a diet drug overdose. Donna Yaklich has said she thinks her husband was involved in the death.

The story of Donna Yaklich and her conviction was used in a 1994 made-for-TV movie, starring Jaclyn Smith of "Charlie's Angels" fame.


Death Investigation Of Police Officer's Wife Inconclusive

Homicide Can't Be Ruled Out, Probe Determines

TheDenverChannel.com

May 13, 2006

PUEBLO, Colo. -- Homicide cannot be ruled out in the 1977 death of the wife of a prominent police detective partly because an investigation at the time was incomplete, a cold case team announced Friday.

"This case needed some good, basic and old-fashioned police work," said Steve Johnson of the Colorado Bureau of Investigation and head of the team. "In my opinion, I have seen better documented traffic accidents."

The case was reopened eight months ago after discrepancies were found in Barbara Yaklich's autopsy report. Questions about the case have swirled since Donna Yaklich, Dennis Yaklich's second wife, claimed her husband abused her and implied he had a part in Barbara Yaklich's death and could make her death look like an accident, too.

Dennis Yaklich was killed in 1985 by two teenagers hired by Donna Yaklich, which inspired a 1994 made-for-TV movie. Donna Yaklich served 18 years of a 40-year sentence before being released last year. She is now living the Denver metro area.

Cold case team members, which included detectives from the Denver police department and Pueblo sheriff's office, found no evidence of a cover up or conclusive evidence to rule Yaklich's death a homicide.

The original autopsy said Yaklich fainted from taking diet pills and suffered bleeding in the abdomen when her husband, who was also a bodybuilder, tried to "energetically" resuscitate her.

However, Denver-area pathologist Michael Dobersen found that the coroner's conclusions were "very unusual" and the "entire scenario is simply not credible," he wrote in a 2005 letter to Johnson.

More likely, Dobersen wrote, Yaklich's internal damage was caused by a blow to the abdomen. A second forensic pathologist agreed.

The cold case investigation into Barbara Yaklich's death is complete, but the case remains open. Her death is now listed as suspicious with the cause of death as blunt force trauma.


A Summary by Donna 

Dennis and I met in April 1977.  I was 22 and he was 30.  I moved in with him a few months later to help him with his 3-year-old daughter and his three step-children, ages 9, 11, and 12.  My plan was to stay that summer, get Dennis’ kids back in the home because they were living at his mother’s house, and then go back to Tulsa.  I had not expected to fall in love with the children who so desperately needed someone.  Their mother, Barbara Yaklich, had passed away unexpectedly on February 14, 1977.  They were grieving for their mother, so I couldn’t bear to leave them.  Dennis had become abusive about a month after I moved in and I left a few times but like most battered women, I went back.  I feared Dennis, but at the same time I felt at home with him because I had grown up in an abusive environment.  I fell into the trap of thinking if I could make everything perfect for him he wouldn’t get mad at me or at the kids.  Dennis’ threats to kill me or kill someone I loved if I ever left again, kept me there.  Eventually, I lost myself.  I lost hope.  Because Dennis was a police officer I knew that I would not, I could not be protected from him.  Dennis’ fellow officers knew he was out of control, but they also knew when they needed him he would be the first to go through the door.  No one who worked with him would go against him.   Dennis’ narcotic operations gave him access to federal law enforcement agents with the capabilities of finding anyone, anywhere.  He warned me I would never get away from him; he could always find me.  I believed him.  I became very depressed and mad at myself because I had not trusted my instincts about leaving the relationship when the abuse started.  Suicidal thoughts became an answer.  Then came homicidal thoughts.  Looking back I wish I would have listened to my instincts, but there came a point when I just stopped listening.  Suicide or homicide is definitely NOT the answer.  As for my life now, being in prison is similar to the prison I put myself in while I was married to Dennis.  However, prison is also what you make of it so I’ve enrolled in educational programs, had therapy, and also taken care of myself.  Things I should have done in society.

THE TOTALITY OF THE CIRCUMSTANCES

A Suspicious Death

Barbara Yaklich died on Valentine’s Day, 1977.  She appeared fine to her adolescent daughter before she left for school that morning.  About an hour later Barbara was dead.  Dennis was the only one known to be with her at the time.  The cause of death was determined to be internal bleeding as a result of a lacerated liver.  Dennis told the coroner Barbara passed out and when he attempted to administer CPR in a hyper state of panic he must have accidentally caused the injury.   An ambulance company owned by Dennis’ supervisor’s brother transported Barbara’s body from the Yaklich home to Parkview Hospital.  The investigating agency, the Pueblo Sheriff’s Department, was not notified until two hours later.  The lead detective acquiesces there was no examination of a possible crime scene, and he can offer no explanation for what he coined to be “so many holes in this case, it’s like Swiss cheese.”  Dennis was eventually asked to take a polygraph, which he refused.  No charges were ever filed.  Many questions remain unanswered.

Some people in the community, including at least one of Dennis’ former co-workers, believe Dennis murdered Barbara and got away with it.  Whether Barbara’s death was in fact intentional or not, Dennis threatened Donna that she would end up like his first wife.  Notwithstanding the paramount importance of Donna’s well-founded belief that Dennis had killed Barbara, and the impact that belief had on her state of mind, she was prohibited from making any reference to that during her testimony at trial.

Evidence of Abuse:  Professionally and Personally

The incidents of Dennis’ brutality to the public in Pueblo are numerous.  However, even to this day police administrators deny the validity of citizens’ complaints against Dennis Yaklich, calling them myths ascribed to the Yaklich legend.  This, in spite of the statements by his closest colleagues who readily admit to Dennis’ abusive tactics on the job.  Some even said they dreaded working with him because of the way he conducted himself.  One former partner explained that he always had to “clean up after Dennis.”  But, his fellow officers conceded, when you needed someone to knock down a door and clear a room, Dennis was the guy to go to. 

At 6’5” and 280 pounds, Dennis’ size alone was menacing.  Combined with his continuous use of steroids to enhance his competitive weight-lifting edge, his aggressive tendencies were terrorizing.  Other officers and even a supervisor admitted that at times when Dennis became confrontational with them, they threatened to shoot him because they knew they couldn’t defend themselves any other way.  These were big, tough, specially trained law officers.  Their reactions to Dennis beg the question:  How was Donna, a 5’7” 130 pound wife and mother supposed to defend herself?

Dennis’ violence against Donna included, but is not limited to:

Slapping, kicking, choking, and pushing her down stairs; putting his firearm to her head and threatening to kill her; taunting her by making his hand in the form of a gun, pointing it at her then lifting it to his lips and blowing on it as if he had actually shot her; torturing her by using the cover of darkness in the bedroom to keep her from gauging from what direction the blows would come; as well as repeatedly and sadistically sexually assaulting her.  Dennis’ psychological abuse of Donna was nothing short of domestic terrorism, and it was more disabling than the physical attacks.  The constant threat of death loomed over her every single day. Not knowing where or when the fatal act would come was more debilitating than having no doubt it would. 

Independent witnesses have corroborated Donna’s accounts about the physical abuse.  One such witness was the Yaklich’s mailman who said he had seen bruises on Donna’s face.  Another was the telephone repairman who was called twice to their residence to fix phones Dennis had yanked out of the wall.  He made the following statements to the lead detective overseeing Dennis’ death investigation immediately following Donna’s arrest:

The telephone repairman told the detective he observed “very visible bruises on Donna’s neck and cheek.”  He said they were so prominent they were noticeable “at a glance.”  When the detective asked how he could remember so vividly, the repairman explained that in his business he sees, “a lot of things like that in the low income areas and the projects, but I was shocked to see a cop’s wife all bruised up like she was.”

Donna’s Cries for Help

In 1982, Donna called Dennis’ partner and told him Dennis was out of control and had thrown her down the stairs and was threatening to kill her.  The Pueblo detective told her to leave immediately.  Donna explained Dennis had threatened to kill her family, starting with her father, if she left him so she was afraid to leave the house.  Dennis’ partner has reported that at the time he believed Donna was in fear for her life and so he immediately went to his and Dennis’ supervisor to inform him about Donna’s call.  According to the detective, the supervisor was unsympathetic, and gestured as if to tell his subordinate to leave it alone, it was none of their business.  The report went no further.  Donna realized going to the police was an exercise in futility.

In November 1983 she went to see a psychologist. The visit was short and traumatic with Donna sobbing uncontrollably during the entire session.  The psychologist told her to leave Dennis, but provided little assistance as to how she was to muster the courage to do so and how she was to do so safely.  Dennis forced Donna to account for all of her time, so she couldn’t imagine trying to explain repeated appointments to see a therapist.  After one visit, she never went back. 

In February 1984, Donna fled to a battered women’s shelter in Denver, but as is common she returned when Dennis begged her to come home and promised he would try to change.  Donna was so ashamed of her decision to return to him and so plagued by self blame, not knowing her behavior was indicative of most abused women, she told the counselors at the shelter she was moving out of state rather than admit she was going back.

In early 1985, Donna began reaching out to several people telling them she believed Dennis was going to kill her and seeking their advice.  No one took her seriously.  So she went to one of Dennis’ friends and asked if he knew anyone that could get rid of Dennis before he killed her as he had threatened to do.  Having come to believe her own life had no value in the eyes of others, she thought perhaps they would place a higher value on Dennis’ and intervene.  Or they would tell Dennis what she had said resulting in the expedited conclusion of her misery. One way or another, the torture had to end.  Once again, her cries fell on deaf ears and the abuse continued to escalate as Dennis’ larger than life persona crumbled around him. 

Hopeless, Donna tried to kill herself to escape but was unable to carry it out when thoughts of leaving her young son without a mother filled her conscience.  Recalling the pain she witnessed in the lives of Barbara’s children, she could not imagine her son enduring those circumstances. 

In May, 1985, Pueblo Sheriff Department Officers responded to a 911 call made by Donna’s mother when one of the step-children called Donna’s father reporting that he heard Dennis push Donna through the plate glass window.  The officers who responded talked with Dennis, who took them on a tour of the gym he had built on the property, and after barely acknowledging Donna, they left.  Even though the incident was a false alarm because the crash that was heard was a bowl hitting the floor rather than Donna being thrown through a window, much can be derived from the incident.  None of the law enforcement officers who responded seemed interested in exploring the inferences.  Donna’s position on the wrong side of the blue wall was reiterated again. 

On December 12, 1985, one of the people to whom Donna had expressed her desperation, a neighbor, Edward Greenwell, went to the Yaklich residence with his younger brother, Charles.  They shot and killed Dennis Yaklich when he arrived home from work in the early morning hours.

Both Edward and Charles Greenwell made a deal with District Attorney Gus Sandstrom in exchange for their testimony against Donna.  They pled to 2nd degree murder with Edward receiving a sentence of 30 years and Charles a sentence of 20 years. 

Why Didn’t She Do It Herself

One of the most perplexing aspects of Donna’s case is the number of people, INCLUDING THE DISTRICT ATTORNEY, who have said, “If she had just done it herself, she would have walked.”  Many of these are the same people who deny the validity of her testimony that Dennis was abusive, INCLUDING THE DISTRICT ATTORNEY.  If the DA and others did not believe Dennis was abusing Donna to the point that she feared for her life, what is their justification for saying it would have been all right if she had just killed him herself?  The DA claimed Donna conspired to have Dennis murdered for insurance money not in self-defense.  That being the case, on what basis would he make the statement, “If she had shot him herself there would be no issue.”   Considering that then, according to Pueblo’s District Attorney, money as a motive for murder is perfectly acceptable as long as you commit the act yourself.  It would seem DA Sandstrom occasionally confused the actual truth with his version of the truth prompting him to make comments inconsistent with his own argument.

Donna did not believe she could kill Dennis.  She did not believe she could physically carry out the act of pointing a gun at him, pulling the trigger and ending his life.  Like most battered women, she was ambivalent toward her abusive husband.  She loved him and hated him at the same time.  She was terrified that at the moment she raised the gun on him in order to protect herself, her love for him would override her fear of him and cause her to hesitate.  The ferocity of the ramifications of that was unimaginable.  Also impossible to overcome was the image of invincibility that Dennis had carved out over the years, personally and professionally.  He had instilled in Donna the belief that he was unbeatable, unstoppable and invulnerable.  The persona Dennis had created was one of superhuman strength and supremacy.  Donna never believed he would succumb to anything.  Not even death. 

A Prejudiced Prosecution

The death of Dennis Yaklich took place in the jurisdiction of the Pueblo Sheriff’s Office.  However, a review of the investigation reveals the unconscionable fact that not only did Dennis’ employer, the Pueblo Police Department, encroach upon the county’s lawful jurisdiction and take over the case, but Dennis’ narcotic detective partners were given lead roles in the inquiry.  To suggest these officers could carry on an investigation into the circumstances of their co-worker’s death without compromising the integrity of such an investigation is flagrantly ignorant and undeniably irresponsible. 

As if that was not enough of a deficit in objectivity, the District Attorney in charge of Donna’s prosecution was also a friend of Dennis’.  In fact, by his own admission, he was a material witness in his own case.  Additionally, DA Sandstrom was involved in a highly contested election at the time Donna’s case came to trial.  The police department’s priority to conceal its own degree of responsibility for Donna’s years of abuse and ultimately Dennis’ death, as well as the clear political agenda of the prosecutor ensured gross prejudice against Donna from the beginning of the judicial process to the end. 

The Conviction

Donna’s jury acquitted her of the first-degree murder charge against her.  They convicted her of the conspiracy to commit murder, however.  Several jurors believed Donna should be acquitted of all charges, but were fearful of retaliation from the Pueblo Police Department.  Confused by a complicated process, intimidated by a system about which they lacked understanding, and feeling enormous pressure to quickly reach a verdict, they voted guilty placing their faith in the fair-mindedness of the judge.  They believed, based on the plethora of evidence of the brutal and continuous abuse Donna suffered at the hands of her police husband, the judge would not sentence her above the minimum, which was eight years.  They were mistaken.

The Sentence

In addition to Donna’s own remorseful plea for mercy at her sentencing hearing, the probation supervisor who had conducted the pre-sentencing investigation also testified.  He recommended the minimum sentence, and suggested Donna was an excellent candidate for sentencing alternatives outside of the Department of Corrections.  He made the following statement in supporting his recommendation:  “I really felt that whether they did what she wanted done, to have Dennis killed, or whether Dennis found out and killed her, it didn’t matter.  She was at a point in her life where either was satisfactory.” 

The late Judge Seavy disregarded the recommendation and clearly ignored the mitigating circumstances of Donna’s case.  He remanded her to the Department of Corrections for 40 years.  His justification for issuing a sentence above the presumptive range was that in his mind Donna, “started this whole scenario.”   Therefore, he proclaimed, “A sentence in excess of the longest Greenwell’s sentence is also thoroughly justified.”

Dr. Lenore Walker, who evaluated and counseled Donna, and whose expert testimony was offered at trial said that when the judge sentenced Donna Yaklich he was “using the court and a woman’s life to express his own ignorance of a battered women’s plight.” 

Clearly, Donna’s case is a tragic example of how dangerously hopeless that plight can be when it is the product of abuse by a police husband.

The Jurors

The jurors were horrified by Judge Seavy’s unduly harsh sentence and more than half of them wrote letters expressing their revulsion to the judge who presided over the sentencing reconsideration a few years later.  That judge referred to the jurors’ outrage as their disregard of Judge Seavy’s instructions, “that they must not allow personal sympathy to influence their decision.”  In his written denial of the motion for reconsideration of sentencing, Judge Halaas said, “Under these circumstances, the opinion of former jurors is not useful.”  One cannot help but wonder if their opinions would have been considered valuable if they had held the belief that Donna had gotten what she deserved.  That seems a reasonable conclusion to draw, “under the circumstances.”  Several of the jurors who served during Donna’s trial are among those diligently seeking her early release. 

Life in Prison

Prior to her incarceration, Donna’s record was without blemish.   True to her character, her years in prison have produced the same kind of record.  She is vigilant in striving to avoid conflicts and tirelessly adhering to the numerous rules of the lifestyle.  Serious consideration should be given to the fact that she has successfully kept out of trouble in an environment where trouble abounds.

Donna has obtained an associate’s degree, and is currently just a few courses away from completing her Bachelors in psychology.  She has worked in several programs to help victims of abuse, and to aid in diverting others headed down the wrong path in their lives.   Department of Corrections supervisors and volunteers have had high praise for the effectiveness of Donna’s work with young people, especially those who have been victims of abuse.

Formerly assigned to maintenance, Donna is currently participating in a computer-refurbishing program, continuing to demonstrate her commitment to being a responsible and industrious worker, whatever the task may be.  Donna is always ready to take on a new challenge and for several years she was a member of the Fire Response Team, a small group of volunteers trained in first aid and firefighting.

Despite the difficulties in her life, Donna’s attitude remains buoyed by hope.  Not just the hope of being free, but the hope of touching the lives of other victims and of taking down the blue wall of silence one police family at a time.

Parting comments from Donna…

If you are in an abusive relationship, please seek help.

Participating in support/therapy groups will give you the strength within to emotionally break away from your abusive partner.  If you have gone back to your abuser, please know that it is “normal” to go back.  In time you will learn how to stay away from him emotionally and physically.  Don’t give up.

If you are a family member or friend of a victim that makes excuses and goes back to the batterer, please know that your support is vital. 

Educating ourselves about the issues and statistics relative to domestic violence will help us pass this information on to the next generation.  Our children need to learn that they have the right to safe and abusive free lives. 

My address:
Donna Yaklich #58751
Colorado Womens Correctional Facility
PO Box 500
Canon City, CO  81215-0500 

Let me know if you would like for me to write you back. If so, please be sure to provide a legible return address.


Colorado Supreme Court

PEOPLE v. YAKLICH

833 P.2d 758 (1991)

The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Donna YAKLICH, Defendant-Appellee.

No. 88CA1369.

Colorado Court of Appeals, Div. IV.

November 21, 1991.
Rehearing Denied January 9, 1992.
Certiorari Denied August 10, 1992.

G.F. Sandstrom, Jr., Dist. Atty., James S. Whitmire, Asst. Dist. Atty., Pueblo, for plaintiff-appellant.

Law Office of Stanley H. Marks & Richard A. Hostetler, Richard A. Hostetler, Denver, for defendant-appellee.

Opinion by Judge ROTHENBERG.

In this appeal, the People challenge the propriety of several rulings made by the trial court during the jury trial of defendant, Donna Yaklich, for the murder of her husband. We disapprove two of the trial court's rulings and, in view of this, we find the People's other arguments moot.

On December 12, 1985, Charles and Eddie Greenwell shot and killed Yaklich's husband in the driveway of his home as he stepped out of his truck. Yaklich was inside the house asleep.

After her husband's death, Yaklich received payment under his three life insurance policies, and she admitted that she paid the Greenwells $4,200 in several installments for murdering her husband. Consequently, she was brought to trial on a charge of first degree murder and conspiracy to murder under a theory that she had been motivated to arrange her husband's death in order to obtain the insurance money.

The defense, however, maintained that Yaklich suffered from the "battered woman syndrome" and that her actions were justifiable acts of self-defense and were committed under duress resulting from years of physical and psychological battering by her husband.

According to the defense, Yaklich lived in a constant state of fear of her husband, and, at the time of his death, she believed she was in imminent danger of being killed by him or receiving great bodily injury from him. The defense also contended that Yaklich believed and had reasonable grounds to believe that there was a real or apparent necessity to act to avoid the imminent danger of death or great bodily injury.

The defense presented expert and other testimony in support of its battered woman theory. In contrast, the People's expert witness gave her opinion that Donna Yaklich did not fit the profile of a battered woman.

[ 833 P.2d 760 ]

At the close of the evidence, over the People's objections, the trial court instructed the jury on Yaklich's affirmative defenses of self-defense and duress. It also gave the jury definitions of "imminent danger," "apparent necessity," and "reasonable belief." The jury acquitted Yaklich of murder in the first degree. However, it convicted her of conspiracy to commit murder in the first degree, and the court sentenced her to forty years in prison.

The central issue on appeal is whether a woman who has hired a third party to kill her abuser but who presents evidence that she suffered from the battered woman syndrome is entitled to a self-defense instruction. We hold that a self-defense instruction is not available in a contract-for-hire situation, even though the accused presents credible evidence that she is a victim of the battered woman syndrome. Accordingly, we disapprove the trial court's ruling on that issue.

I.

The General Assembly has codified the law of self-defense at § 18-1-704, C.R.S. (1986 Repl.Vol. 8B). That statute permits an individual to use deadly physical force against another if the individual using deadly force reasonably believes that the other individual has used or imminently will use unlawful life-threatening force. See Hare v. People,800 P.2d 1317 (Colo. 1990).

"Imminent" has not been expressly defined by statute or by Colorado case law in the context of self-defense. Cf. People v. Brandyberry,812 P.2d 674 (Colo.App.1990) (in choice of evils context, "imminent" means "near at hand, impending or on the point of happening"). However, self-defense instructions are usually allowed when an accused has been faced with a threat of great bodily injury or death contemporaneously with the killing. See Hare v. People, supra (instruction on self-defense proper where victim shot while he and defendant struggled over gun); Beckett v. People,800 P.2d 74 (Colo.1990) (self-defense instruction proper where victim followed defendant to defendant's car after an argument, and the defendant reached into his car and pulled out a gun because he was afraid the victim would harm him); People v. Jones,675 P.2d 9 (Colo.1984) (self-defense instruction proper where victim hit defendant first).
Yaklich contends that in the context of a battered woman situation in which the woman kills her abuser, "imminent" should be defined as: "likely to happen without delay, threatening, menacing, or impending, not immediate." Thus, according to Yaklich, a woman who kills her abuser or, as here, who hires another to kill her abuser is nevertheless entitled to a self-defense instruction even though she was not threatened with harm contemporaneously with the killing.

This is a case of first impression in Colorado, and in order to analyze and evaluate Yaklich's contention properly, it is necessary to examine briefly the battered woman syndrome as it relates to the issue of self-defense in Colorado.

II.

The "battered woman syndrome" constitutes a series of common characteristics that appear in women who are physically and psychologically abused over an extended period of time by the dominant male figure in their lives. (Although in rare circumstances, the victim of "battered woman syndrome" may be a male, the literature suggests that the vast majority of victims are women). See L. Walker, The Battered Woman (1979) (The phrase "battered woman syndrome" was originated by Dr. Walker). See also Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings L.J. 895 (1981); D. Martin, Battered Wives (1976); State v. Kelly,97 N.J. 178, 478 A.2d 364 (1984).

Numerous cases across the country have held that the battered woman syndrome is "a recognized phenomenon in the psychiatric profession and is defined as a technical term of art in professional diagnostic textbooks." State v. Allery,101 Wn.2d 591, 682 P.2d 312 (1984); see State v. Norman,324 N.C. 253, 378 S.E.2d 8 (1989).

[ 833 P.2d 761 ]

Studies in this area have revealed that in a battering relationship, violence does not occur all the time. Rather, there is a "cycle of violence" which has three phases: (1) a tension building phase; (2) an acute battering phase; and (3) a tranquil and loving phase. The cycle of violence is continually repeated until the victim becomes unable to predict her own safety or the effect that her behavior will have on the abuser. As a result, the woman is reduced to a state of learned helplessness. L. Walker, The Battered Woman (1979); L. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds (1989).

According to the testimony, one very important and often misunderstood aspect of the battered woman syndrome is the fact that many battered women cannot safely leave their abusive mates. See Eber, The Battered Wife's Dilemma: To Kill or To Be Killed, supra. In fact, abuse often escalates at the time of separation, and it is then that battered women face the greatest danger of being murdered. Many abusers have been known to pursue the women who leave them and subject them to brutal attacks.

Additionally, battered women may not psychologically or emotionally have the alternative of leaving the abuser because of their low self-esteem, their emotional and economic dependency, the absence of another place to go, and the woman's legitimate fear of the abuser's response to her leaving. Thus, according to the expert testimony, battered women become trapped in their own fear and often feel that their only recourse is to kill the batterer or be killed. See Brewer, Missouri's New Law on Battered Spouse Syndrome: A Moral Victory, A Partial Solution, 33 St. Louis U.L.J. 227 at 231 (1988). See also State v. Hundley,236 Kan. 461, 693 P.2d 475 (1985) ("This is a textbook case of the battered wife, which is psychologically similar to hostage and prisoner of war cases.").

The battered woman syndrome is not in itself a defense to the charge of assault or murder, that is, the existence of the syndrome does not of itself establish the legal right of a woman to kill her abuser. Rather, evidence of the battered woman syndrome may, in certain circumstances, be considered in the context of self-defense. See State v. Leidholm,334 N.W.2d 811 (N.D.1983). In Crocker, The Meaning Of Equality for Battered Women Who Kill Men In Self Defense, 8 Harv. Women's L.J. 121, 132-33 (1985), the author explains:

Lay witnesses may establish the history of threats and physical abuse experienced by the defendant. In situations where the uninformed juror would not see any threat or impending danger, expert witnesses help elucidate how a battering relationship generates different perspectives of danger, imminence, and necessary force.

Expert testimony also attacks unstated stereotypic assumptions by explaining why the defendant stayed in the relationship, why she never sought help from police or friends, or why she feared increased violence.... [J]urors on their own or encouraged by the prosecution, may assume that the defendant stayed in the abusive relationship because the abuse was not serious or because she enjoyed it. Expert testimony demonstrates that women stay most often because they cannot or are afraid to leave.

III.

In the reported cases where battered women have killed their abusers and have contended that they acted in self-defense, one of three scenarios is generally present: (1) the battered woman has killed her abuser at the time he was attacking her; (2) the battered woman has killed her abuser during a lull in the violence (such as while the abuser was sleeping); and (3) the battered woman has hired a third party to kill her abuser.

A.

In situations in which the battered woman has killed her abuser at the moment of attack, virtually all jurisdictions have held that the woman is entitled to a self-defense instruction. See, e.g., State v. Hundley, supra.

[ 833 P.2d 762 ]

B.

In situations in which the woman has killed her abuser during a lull in the violence, there is a split of authority on whether she is entitled to a self-defense instruction. A key factor in the resolution of the issue has been the manner in which the particular jurisdiction defines "imminent danger."

Jurisdictions which define imminent danger as immediate danger have generally refused to allow a self-defense instruction to a defendant in this battered woman situation. See People v. Aris, 215 Cal.App.3d. 1178, 264 Cal.Rptr. 167 (1989) (self-defense instruction not justified because battered wife was not facing immediate peril when she shot and killed sleeping husband); State v. Norman, supra (self-defense instruction refused where wife shot and killed sleeping husband because, at the time of the killing, wife was not confronted with an instantaneous choice between killing husband and being killed); State v. Stewart, 243 Kan. 639, 763 P.2d 572 (1988) (self-defense instruction refused where wife shot sleeping husband because there was no lethal threat to wife contemporaneous with the killing).

Other jurisdictions have defined "imminent danger" to mean something other than immediate danger and have held that a battered woman who kills her abuser during a lull in the violence is entitled to a self-defense instruction. See State v. Gallegos,104 N.M. 247, 719 P.2d 1268 (1986) (woman who shot and stabbed husband while he was lying in bed was entitled to self-defense instruction); State v. Allery, supra (self-defense instruction proper where battered wife shot husband while he was lying on couch, despite absence of any violent act immediately preceding shooting); State v. Leidholm, supra (self-defense instruction justified where battered woman stabbed husband while he slept).

No Colorado case has yet decided this issue.

C.

We are aware of only three reported cases that discuss the issue of whether to give a self-defense instruction under circumstances in which the battered women have hired third parties to kill their abusers. Two arose in the state of Missouri and one arose in the state of Tennessee.

In State v. Anderson,785 S.W.2d 596 (Mo.App.1990), a wife hired several men to kill her abusive husband. At her trial for murder, the court refused to allow her expert to testify that she suffered from the battered woman syndrome. On appeal, she contended that the trial court erred in refusing to allow her to present expert testimony supporting her self-defense claim and in refusing to instruct the jury on self-defense.

The Missouri Court of Appeals rejected her arguments and stated:

[T]he facts of the killing here do not support a self-defense claim or use of the battered spouse syndrome. [Defendant] hired or lured the killers into the crime. There was no evidence of self-defense of assaults of the husband when he was shot. [Defendant] had been talking for over three months prior to the murder about how to have her husband killed, with payment to the assailants out of his insurance proceeds. (emphasis added)

The Missouri court concluded that the woman did not prove she was in immediate danger at the time her husband was killed and, thus, failed to make a prima facie showing of self-defense. See also State v. Martin,666 S.W.2d 895 (Mo.App.1984) (no error in excluding evidence of battered spouse syndrome where wife hired hit man to kill her abusive husband but failed to show she was in immediate danger at the time he was killed); Mo.Rev.Stat. § 563.033 (Supp.1988); State v. Leaphart,673 S.W.2d 870 (Tenn.Crim.App.1983) (no error in trial court's failure to give a self-defense instruction where wife was not in immediate danger at time husband was killed by hired killers). See generally Brewer, 33 St. Louis L.J., supra.

IV.

In summary, Yaklich contends that when a murder defendant presents evidence

[ 833 P.2d 763 ]

that she meets the criteria of being a battered woman and raises self-defense as her theory of the case, she is then entitled to a self-defense instruction. She further contends that "imminent" danger is not limited to immediate danger but should be defined more broadly as: "likely to happen without delay, impending, [but] not immediate." Thus, according to Yaklich, the trial court properly instructed the jury.

However, even if we were to adopt Yaklich's definition of imminent, we still would not agree that a self-defense instruction is available in a contract-for-hire case for three reasons. First, to our knowledge, no jurisdiction in the country has held that a battered woman is entitled to a self-defense instruction in a murder-for-hire case, no matter how the jurisdiction has defined imminent.

Secondly, a self-defense instruction in a murder-for-hire situation would undermine ancient notions of self-defense which originated in the common law and were later codified in Colorado law. See § 18-1-704. As the North Carolina Supreme Court has stated: "The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent...." State v. Norman, supra.

Finally, we cannot overlook the fact that Yaklich's participation in the death of her husband was not merely peripheral. Had it not been for Yaklich, the Greenwells would not have been involved in this murder. Thus, in our view, we would be establishing poor public policy if Yaklich were to escape punishment by virtue of an unprecedented application of self-defense while the Greenwells were convicted of murder.

We recognize that the alternatives available to battered women have proven "tragically inadequate" in many cases, People v. Aris, supra, and in reaching this conclusion, we do not minimize the dangers that battered women face. Nevertheless, we conclude that the result reached reasonably balances an individual's inherent and time honored right of self-preservation with the great value our society places on human life.

Here, the uncontroverted evidence was that Yaklich approached several people about having her husband killed and that she met with Eddie Greenwell several times over an eight-month period. She paid the Greenwells after they killed her husband, and, at the time the contract killing was performed by the Greenwells, she was in her house sleeping.

We therefore hold that under either the People's or Yaklich's definition of "imminent," Yaklich's evidence, even if taken as true, was insufficient as a matter of law to support her theory that she was in imminent danger at the time her husband was killed. Therefore, the trial court erred in giving a self-defense instruction to the jury. See People v. Banks,804 P.2d 203 (Colo.App.1990) (a defendant is entitled to an instruction embodying her theory of the case only if there is some evidence to support it). See also People v. Garcia,690 P.2d 869 (Colo.App.1984).

In light of this conclusion, we need not address the People's additional contention that the trial court improperly instructed the jury on the definitions of "imminent danger," "apparent necessity," or "reasonable belief."

V.

The People next contend that the trial court erred in submitting an instruction to the jury on the affirmative defense of duress because Yaklich did not act "at the direction of another person" when she hired the Greenwells to kill her husband. Again we agree.

At the time Yaklich's husband was killed, the duress statute did not require a person to act "at the direction of another person" in order to establish the defense of duress. See § 18-1-708, C.R.S. (1986 Repl.Vol. 8B). Nevertheless, the case law required such a condition to exist. See People v. Maes, 41 Colo.App. 75, 583 P.2d 942 (1978).

Here, since there was no testimony that Yaklich acted "at the direction of another person," we disapprove the trial court's ruling giving a duress instruction.

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VI.

Finally, the People contend that the trial court erred by allowing defense counsel in his opening statement to refer to evidence relating to the battered woman syndrome, to self-defense, to Yaklich's husband's reputation for violence, and to his use of steroids; and that the court further erred in allowing the cross-examination of prosecution witnesses and the presentation of defense witnesses regarding these matters. However, in view of our rulings above, these contentions are moot.

The trial court's rulings allowing a self-defense instruction and a duress instruction are disapproved.

STERNBERG, C.J., and HUME, J., concur.

 

 

 
 
 
 
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