MacMichael Kelechi Nwaiwu v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00053-CR
MACMICHAEL KELECHI NWAIWU APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 5 OF TARRANT COUNTY
TRIAL COURT NO. 1401341
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant MacMichael Kelechi Nwaiwu appeals his conviction for assault
causing bodily injury to a family member for which the trial court placed him on
two years’ community supervision. In two points, Nwaiwu argues that the trial
court abused its discretion by denying one of his challenges for cause and by
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See Tex. R. App. P. 47.4.
allowing the State’s domestic-violence expert to testify about domestic violence
in general and typical behaviors of victims of such violence. Because we
conclude that the trial court did not abuse its discretion by denying Nwaiwu’s
challenge for cause and because we conclude that the trial court properly
determined that the State’s witness qualified as an expert and that her testimony
would aid the jury, we will affirm the trial court’s judgment.
II. BACKGROUND
Aaron and Valerie Kreag were driving to Southlake Town Center to see a
movie when they saw a car stopped along Highway 1709. They also observed
something flying out of that car’s window. The couple decided to stop because
they thought that someone in the car might need medical attention. When the
Kreags pulled up parallel to the car, both Aaron and Valerie could see Nwaiwu on
top of a slumped-over woman, striking her face, head, and neck with both of his
hands. The woman was later identified as Nwaiwu’s girlfriend (Girlfriend).
According to Aaron, Girlfriend was screaming, “Help me, help me,” while
also attempting to avoid Nwaiwu’s strikes. Aaron immediately parked his vehicle,
walked over to the driver’s side of Nwaiwu’s car, and drew his gun—ordering
Nwaiwu to stop hitting Girlfriend and to get out of the car. Another passing
witness saw Aaron holding the gun toward Nwaiwu and, believing that a road-
rage incident was occurring, called 911.
Multiple officers were dispatched. Southlake Police Officer Nathaniel
Anderson arrived on the scene and ordered both men to lie on the ground.
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Because Aaron was armed, Anderson said that he initially focused on him but
that Aaron showed no signs of aggression and was immediately disarmed.
According to Anderson, he saw scratches on Girlfriend’s face. He said she also
demonstrated how Nwaiwu had hit her with an open hand but denied being hit
with his fists.
Southlake Police Corporal Jeff Paul said that when he arrived, he spoke
with Girlfriend. According to Paul, Girlfriend was emotionally upset and crying.
Paul said that Girlfriend had a cut on the inside of her lip. Southlake Police
Detective Weston Wood testified that Girlfriend was very distraught and
repeatedly said, “He beat me.” Southlake Police Officer Kevin Diehl also arrived
on the scene, handcuffed Nwaiwu, and searched him for weapons. Diehl
described Nwaiwu as being angry and agitated. Diehl also said that he could see
Girlfriend crouched toward the passenger side door clearly in distress, breathing
heavily and sniffling. Diehl believed that she was injured or hurt.
At trial, Girlfriend denied that Nwaiwu had physically assaulted her. She
explained that Nwaiwu had grabbed her soda and that when she went to grab it
back, it spilled on both of them. Girlfriend said that they both took clothing from
the back of the car, wiped themselves, and then flung the clothing out of the
window. She also said that their struggle was mutual and that anything she had
said to the contrary was coerced by the police or was due to her lack of
experience in being questioned by police.
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During its case in chief, the State called Beth Hollingsworth, a licensed
marriage and family therapist who works with domestic violence victims at One
Safe Place and in private practice. Over Nwaiwu’s objection, Hollingsworth
explained that there are three phases in a cycle of violence. First, there is a
“tension building” phase where the abuser ensures that he has power and control
over the victim and the victim feels that she is “walking on eggshells.” Second,
there is the “abusive incident” where the abuser, through force, makes the victim
understand that the abuser has power over her. And third, there is the
“honeymoon” phase where the abuser apologizes and either promises to seek
help or promises that the abuse will never happen again.
Hollingsworth further explained the power-and-control wheel, wherein an
abuser uses coercion, threats, intimidation, and even financial abuse to assert
control over the victim. She also discussed the concepts of minimization and
denial and why sometimes a victim will feel safer by minimizing or denying the
abuse. Finally, Hollingsworth discussed “lethality” assessments—that is, when
the abuse is most dangerous for a victim.
A jury found Nwaiwu guilty of assault causing bodily injury to a family
member. After hearing punishment-phase evidence, the trial court assessed
punishment at 180 days in jail, suspended the imposition of the sentence, and
placed Nwaiwu on community supervision for two years. This appeal followed.
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III. DISCUSSION
A. The Trial Court’s Denial of Nwaiwu’s Challenge for Cause
In his first point, Nwaiwu argues that the trial court abused its discretion by
denying his challenge for cause to Veniremember 8, ostensibly because she had
demonstrated bias or prejudice against him and the law of the case. The State
counters that Veniremember 8 repeatedly stated that she would afford Nwaiwu
the presumption of innocence and require the State to prove his guilt beyond a
reasonable doubt and that thus the trial court did not abuse its discretion. We
agree with the State.
During voir dire, as the prosecutor was asking the venire panel whether
there was anyone who presumed that Nwaiwu was guilty simply based on his
being the defendant in this case, a few veniremembers suggested that they
would automatically believe that Nwaiwu had done something wrong. When the
prosecutor asked Veniremember 8 how she felt, Veniremember 8 said, “I do. I
feel like either -- I don’t look at him and think he’s -- anything happened, but
either somebody had it out for him or something happened.” But after further
questioning, Veniremember 8 said that she thought she could start with a “clean
slate” and “would give [Nwaiwu] a fair trial.”
Later, while being questioned by the prosecutor in individual voir dire
examination, Veniremember 8 said that she understood that the State had to
prove its case beyond a reasonable doubt, that she would afford Nwaiwu the
presumption of innocence, and that she would not hold the fact that he was the
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defendant against him. In response to defense counsel’s question,
Veniremember 8 explained her initial response in voir dire: “Well, I said there’s
some reason he’s here. I don’t know if it’s what he did or somebody had
something against him like in anger or something like that. I don’t know.” When
defense counsel questioned her further, Veniremember 8 said again that she
thought she could give Nwaiwu a fair trial and also said, “I don’t think [Nwaiwu is]
guilty until he’s proven guilty.”
We review a trial court’s ruling on a challenge for cause for an abuse of
discretion. Ladd v. State, 3 S.W.3d 547, 559 (Tex. Crim. App. 1999), cert.
denied, 529 U.S. 1070 (2000). When reviewing a trial court’s decision to grant or
to deny a challenge for cause, we look at the entire record. Feldman v. State, 71
S.W.3d 738, 744 (Tex. Crim. App. 2002). We give great deference to the trial
court’s decision because the trial judge is present to observe the demeanor of
the veniremember and to listen to her tone of voice. Id. Particular deference is
given when the potential juror’s answers are vacillating, unclear, or contradictory.
Id.; King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000).
Here, even assuming that Veniremember 8’s initial response was unclear,
she nonetheless repeatedly said that she would afford Nwaiwu a fair trial, that
she would presume he was innocent until proven guilty, and that she would hold
the State to its burden of proof (beyond a reasonable doubt). Based on the
entire record, we hold that the trial court did not abuse its discretion by denying
Nwaiwu’s challenge for cause to Veniremember 8. See Strahan v. State, 306
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S.W.3d 342, 346–47 (Tex. App.—Fort Worth 2010, pet ref’d) (holding that trial
court did not abuse discretion by denying defendant’s challenge for cause when
veniremember said she felt “uncomfortable” with the subject matter of the case,
would try to hold the State to its burden, and had not unequivocally stated one
way or the other that she could not be fair). We overrule Nwaiwu’s first point.
B. Expert-Witness Testimony
In his second point, Nwaiwu argues that the trial court abused its discretion
by allowing Hollingsworth to testify as a domestic-violence expert. Specifically,
Nwaiwu argues that Hollingsworth’s testimony was not relevant because there is
no evidence in the record that the couple had a history of domestic violence,
Hollingsworth had no personal knowledge about Nwaiwu and Girlfriend’s
relationship, and Girlfriend testified for the defense that no assault had occurred.
It is not clear from Nwaiwu’s brief whether he is challenging Hollingsworth’s
qualifications to testify as an expert. The State counters that Hollingsworth’s
testimony was reliable given Hollingsworth’s qualifications and that it was
relevant because Girlfriend had told officers that Nwaiwu had assaulted her but
at trial she testified for the defense that no assault had occurred. We agree with
the State.
We review the trial court’s determination as to the admissibility of expert
testimony for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh’g). Expert testimony is admissible when
scientific, technical, or other specialized knowledge will assist the factfinder in
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understanding the evidence or in determining a fact issue. Tex. R. Evid. 702;
Cohn v. State, 804 S.W.2d 572, 575 (Tex. App.—Houston [14th Dist.] 1991),
aff’d, 849 S.W.2d 817 (1993). Evidence admissible under Rule 702 may include
testimony which compares general or classical behavioral characteristics of a
certain type of victim with the specific victim’s behavior patterns. See Duckett v.
State, 797 S.W.2d 906, 917 (Tex. Crim. App. 1990) (holding testimony of expert
on whether the reaction of complaining child was similar to the reaction of most
victims of child abuse was helpful to the jury in determining if an assault
occurred); Fielder v. State, 756 S.W.2d 309, 321 (Tex. Crim. App. 1988) (holding
that expert testimony aided factfinder where expert explained inconsistency in
appellant’s behavior consistent with that of typical battered women).
Because the average juror will not typically be familiar with the effect of
domestic violence on victims and the dynamics of the relationship between
abuser and victim, expert testimony has generally been held to be admissible to
explain recantations, delays in reporting, lies to the police, and why a
complainant would continue living with a family member after an alleged assault.
See Salinas v. State, 426 S.W.3d 318, 323 (Tex. App.—Houston [14th Dist.]
2014) (op. on reh’g), rev’d on unrelated grounds, 464 S.W.3d 363 (Tex. Crim.
App. 2015); Dixon v. State, 244 S.W.3d 472, 480 (Tex. App.—Houston [14th
Dist.] 2007, pet. ref’d); Scugoza v. State, 949 S.W.2d 360, 363 (Tex. App.—San
Antonio 1997, no pet.).
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Specifically as it relates to this case, multiple courts have held that a trial
court does not abuse its discretion by allowing an expert witness to testify
regarding the cycle of violence in a domestic setting when the victim testifies for
the defendant or recants an earlier claim of abuse. See Mendoza v. State,
No. 08-13-00293-CR, 2015 WL 5999596, at *2, *4–5 (Tex. App.—El Paso
Oct. 14, 2015, pet. ref’d) (not designated for publication) (holding testimony
regarding cycle of family violence relevant when assault was witnessed by third
party but victim refused to cooperate with police and testified for defense);
Capello v. State, No. 03-05-00553-CR, 2006 WL 2453021, at *4 (Tex. App.—
Austin Aug. 25, 2006, pet. ref’d) (mem. op., not designated for publication)
(determining that expert testimony on cycle of abuse was relevant because it
assisted jury in understanding why victim of domestic violence might lie to
police). Furthermore, a trial court does not abuse its discretion by allowing an
expert witness to testify about domestic violence in general and the typical
behaviors of victims of abuse even though the witness has no personal
knowledge of the defendant and victim. See Scugoza, 949 S.W.2d at 363
(holding that trial court did not abuse its discretion by allowing witness to testify to
general domestic violence behaviors despite having no personal knowledge of
defendant and victim).
Here, Hollingsworth testified regarding domestic violence in general and
typical behaviors of victims of domestic violence. Hollingsworth did not purport to
have any direct or personal knowledge of Nwaiwu and Girlfriend’s relationship,
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nor did she express a direct opinion regarding Girlfriend’s credibility.
Hollingsworth’s testimony described the cycle of violence in domestic-violence
situations, “a topic with which the average lay person could not be expected to be
familiar.” Id. And her testimony was relevant to explain why a victim of abuse
would change her story regarding an abusive incident and why a victim might
testify on behalf of her alleged abuser. Indeed, Girlfriend told police on the scene
that Nwaiwu had assaulted her, but at trial she testified for the defense and said
that no assault had occurred. See id. (holding that trial court did not abuse its
discretion by allowing expert testimony describing domestic violence in general
and typical behaviors of victims when victim’s testimony at trial was inconsistent
with her previous report to police). Thus, the trial court did not abuse its
discretion by allowing Hollingsworth to testify.
To the extent that Nwaiwu is arguing that Hollingsworth was not qualified
to testify regarding domestic violence in general terms, we conclude that the trial
court did not abuse its discretion by finding her qualified to testify. The record
reflects that Hollingsworth has a master’s degree in marriage and family therapy.
She has worked with approximately 1500 domestic violence victims over the past
eleven years at One Safe Place or in private practice. She also co-wrote a family
therapy book entitled Marriage and Family Therapy: A Practice-Oriented
Approach, and she has taught classes on the dynamics of family violence
relationships at both Texas Christian University and Texas Wesleyan University.
Furthermore, she has testified as a domestic-violence expert before. Given her
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training and experience, we conclude that the trial court did not abuse its
discretion by finding that Hollingsworth was qualified to offer her expert
assessment of issues relating to domestic violence, including the cycle of
violence. See Lessner v. State, No. 02-15-00400-CR, 2016 WL 4473263, at *1–
3 (Tex. App.—Fort Worth Aug. 25, 2016, no pet.) (mem. op., not designated for
publication) (holding that licensed master social worker and executive director of
family crisis center was qualified to give expert testimony on the dynamics of
family violence and typical behavior of domestic violence victims in relation to
their abuser); see also Brewer v. State, 370 S.W.3d 471, 473–74 (Tex. App.—
Amarillo 2012, no pet.) (holding that master social worker with specialized
training employed by police to work with domestic violence victims qualified to
give expert testimony regarding the dynamics of domestic violence); Scugoza,
949 S.W.2d at 363 (holding that program services director of county women’s
shelter qualified to give expert testimony describing cycles of spousal abuse).
We overrule Nwaiwu’s second point.
IV. CONCLUSION
Having overruled both of Nwaiwu’s points on appeal, we affirm the trial
court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
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PANEL: MEIER, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 9, 2018
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