Barbara Ann Peterson is an American woman sentenced to life in prison in Maryland for the murder of her husband, Loren Peterson, on November 17, 1991.

Just Desserts

By Mark Gribben

Just before Barbara Ann Peterson shot and killed her husband, Loren, in 1991, she went into the bathroom and had the experience of feeling “a large jar sitting on her head” and “saw all of the terrible things that her husband had done to her go into the jar.”

This dissociative experience must have taken a long time, because Loren’s history of abuse spanned some 25 years. Barbara met Loren in 1964. Despite his chronic alcoholism and his temper, she fell in love with him, and thought she could “be a Florence Nightingale,” and get him to change. This hope is not unusual for women who are attracted to troubled men, but invariably, it is unsuccessful unless the man wants to get better.

For most of their marriage, Loren obviously didn’t.

After her experience in the bathroom, Barbara emerged and shot Loren as he sat in a living room chair. She was convicted of murder after the jury found her mentally ill, but still legally responsible for the killing. During the trial, her public defender failed to broach the subject of battered women’s syndrome and as a result, a Maryland appeals court last year overturned her conviction and ordered a new trial.

Barbara was unable to explain what happened when she shot Loren.

“I didn’t know I had the gun in my hand let alone shoot him. There was none of that. I did not know I had the gun in my hand,” she said at a post-conviction evidentiary hearing. “All I did was see him and he disappeared and I heard my voice. I didn’t know it was me. It was coming out, you’re not going to kill me, you ‘re not going to kill me, over and over again. And then he disappeared and that’s when I heard a gunshot. And then I seen him again. And then he disappeared again. And ten feet away on my right side I heard more than one gunshot. So it was like I was watching television in slow motion, like that wasn’t me that was doing it. And I didn’t even know I had a gun in my hand or nothing.”

The ruling is remarkable because Loren reportedly had not physically abused Barbara in 10 years, but that could not erase the years of mental and physical abuse she suffered, beginning even before they were married.

Before they wed, there was an incident in which Loren, a career Navy SEAL who served in Vietnam, threw her on the hood of a car and beat her up in front of her sister.

Testimony at her post-conviction hearing revealed that after they married, Loren became very possessive and jealous.

• When she was pregnant with their first child, he kicked her in the stomach, “as hard as a football,” and she was afraid she was going to lose the baby.
   

• Another time, he told her he wanted to “mess [her] face up . . . [so] nobody would look at [her].” After that, she would cover her face when he beat her up, to try to protect it. He would kick her, pull her hair, and smack her.
   

• Loren would “play with her head,” using tactics he had been taught in the military to “pick on her” and on their children.
   

• He would beat her or pick on her for no reason — “if the moon was full,” “if it rained and he was going someplace,” “if his job wasn’t going good.” During their 26 1/2 year marriage, this happened on average two or three times a week.
   

• Once, a week after a judge in Virginia said he “don’t want to see us back in his court for a year,” Loren knocked her off a barstool and left her unconscious.
   

• About two months before the shooting, despite having quit drinking in 1983, Loren “was very angry.” He would intimidate Barbara by giving her looks: “If looks could kill, I would have been dead.” Then he threatened to kill her by “taking [her] head off.” She was so frightened that she had diarrhea for 20 straight days. When Barbara complained that she was physically ill from Loren’s threats, he responded that they were not threats, they were promises, and the children should make her funeral arrangements.
   

• Six days before the shooting, Loren threatened to rape Barbara because she would not sleep with him.

The abuse had taken its toll on Barbara, a psychiatrist testified at her trial.

“Her children described her as someone who would flip out of control and lose control very easily and then later not remember what she had said or what she had done,” the shrink said. “They described her as being a very strange person who would say and do strange things and would report strange experiences like these out-of-body experiences or seeing visions of God, of Jesus, or seeing her aunt and grandmother seated at the foot of God.

“They said that she’s seen ghosts in the past and reported that. She would have these experiences of ESP, extra sensory perception, where she would feel that she could predict something before it happened. Like she knew an uncle was going to die before she was told that he was dead. And there were a number of instances like that.”

A telephone repairman working at the house witnessed the situation between the couple. When he returned to work later that day, he told his fellow employees: “You can remember this name because you’ll read about this. Something’s going to happen here. It was just a time bomb.”

The psychiatrist concluded that Barbara “had some psychiatric problems” that had been “exacerbated by this very abusive relationship and had colored the way she experienced her interactions with her husband.” Specifically, she formed the opinion that the Barbara was experiencing the symptoms of battered spouse syndrome, which “affected her thinking at the time that she shot her husband.”

The appeals court spent much of its opinion recounting the years of abuse Barbara received from Loren before moving on to discuss the battered woman’s syndrome defense, and whether the failure to raise it at her trial constituted ineffective assistance of counsel.

Before the trial, Barbara’s attorney decided to pursue “Not Criminally Responsible” as the primary defense, with imperfect self-defense as a “back up,” to reduce the charge to manslaughter if the appellee did not meet the “hard burden of insanity.” Trial counsel believed that, at the time of the shooting, Barbara thought her husband was going to kill her.

At the post-conviction relief hearing, “trial counsel was asked, but could not explain, how he intended to present proof in support of imperfect self-defense other than by presenting evidence that the appellee had been experiencing battered spouse syndrome at the time of the shooting,” the appeals court wrote.

On August 14, 2003, the court issued a memorandum opinion and order granting post-conviction relief in the form of a new trial. The court explained that there was factual evidence showing that Barbara had endured twenty-seven years of extreme physical and psychological abuse by Loren. Her family could corroborate the history of abuse and “recent incidents of spousal abuse.” Additionally, trial counsel’s investigation was “grossly deficient” if it did not reveal these facts, most of which were disclosed by Barbara and her children to the defense psychiatrist in interviews.

The court found that if trial counsel’s investigation did reveal these facts, he performed unreasonably by abandoning a defense based on battered spouse syndrome. The court observed that evidence of battered spouse syndrome would have provided the foundation for the defense of imperfect self-defense, and the doctor would have expressed an opinion that Barbara was suffering from battered spouse syndrome, had she been asked.

Finally, the court found that trial counsel’s deficient performance had prejudiced Barbara “to a degree that undermined the Court’s confidence in the fundamental fairness of her trial,” and, but for those errors, the result of the trial would have been different.

When the State of Maryland appealed the court’s order, the appellate court upheld the lower court ruling.

MalefactorsRegister.com

COURT OF SPECIAL APPEALS OF MARYLAND

Filed: July 1, 1994.

BARBARA ANN PETERSON
v.
STATE OF MARYLAND

APPEAL FROM THE Circuit Court for Caroline County. J. Owen Wise, JUDGE

Submitted Before Garrity, Murphy, and Getty (James S. Retired, specially assigned), JJ.

Opinion by Murphy, J.

In the Circuit Court for Caroline County, a jury (the Honorable J. Owen Wise, presiding) convicted Barbara Peterson, appellant, of first degree murder and use of a handgun in a crime of violence. Appellant's husband, Loren Peterson, died of multiple gunshot wounds inflicted by appellant, who killed him as he sat in a reclining chair while watching television.

Appellant made a voluntary statement to T.F.C. John Bollinger of the Maryland State Police. According to Trooper Bollinger:

She advised that at approximately 8:30 her husband went to church and stayed at services until approximately 10:45. It was at the Immaculate Conception in Marydel, the church he attended. Said he returned home approximately 11:30 or Noon. The victim changed clothes and went outside to feed his animals. Came back in the residence for a short period of time. Then went back outside to do more yard work. The victim had started a fire in the backyard near the animals. Mrs. Peterson asked him through the window to put the fire out. It was disturbing the animals. The victim stated it was not bothering the animals and kept it burning. Approximately 1:00 P.M., the victim came into the residence and turned on the television in the living room and began watching football. Sat in the recliner located in the left rear corner of the living room. Mrs. Peterson stated she had a revolver on her. She had the extra rounds in her pocket. She went into the bathroom just off of the living room. Took the gun into her hand. Mrs. Peterson stated she don't know what happened to her in the bathroom, but she came out with the gun in her hand, pointed the gun at her husband and repeated you're not going to kill me. . . .

Mrs. Peterson advised that she fired on (sic) at her husband. He attempted to get out of the chair and stated, "No, honey." Mrs. Peterson stated she got very scared and fired several more shots at her husband and he fell back into the chair. She further stated that her husband had a pained look on his face and she thought he was suffering from the wounds. Mrs. Peterson unloaded the weapon from where she had fired the shots and reloaded the weapon.

Appellant did not contest the issue of criminal agency. Although the jurors heard evidence that she had on occasion been physically abused by the victim, appellant's defense made no reference to the "battered spouse syndrome." Appellant did not testify. She did, however, assert the defense of not criminally responsible by reason of insanity.*fn1 In the words of her trial counsel, appellant was suffering from a mental disorder, ... was not in control of her actions. Her delusions had convinced her that she had to take action against her husband. She could not control herself and unfortunately she took these actions.

Appellant presents but one question for our review:

"Did the trial court err in refusing to propound an instruction regarding voluntary manslaughter?"

The State concedes that the defense presented evidence from which the jury could conclude that, at the time she shot her husband, appellant harbored a subjectively honest but objectively unreasonable belief that she was in peril of death or serious bodily harm. The jurors heard the following testimony*fn2 from Dr. Carole Kleinman, a psychiatrist called as an expert for the defense:

Q. Dr. Kleinman, with the mental condition of Barbara Peterson, may I give you a hypothetical. A person with the mental condition of Barbara Peterson on the date in question exactly one year ago. Could that person have a delusion of illogical but honest belief that they would have to use force to protect themselves from imminent or bodily harm?

A. Definitely. I mean that is the whole point. She was convinced that her life was in imminent danger. There was no question in her mind.

Q. This means even if a person was not even attacking her or anything that they could . . . a person in that state could believe that?

A. Yes. She was convinced that her life was in danger.

Q. Imminent danger?

A. Imminent danger. That she was going to be killed. There was no question in her mind.

Appellant concedes that she was not entitled to a jury instruction on "perfect" self-defense because the jury heard no evidence from which it could conclude that the victim's words or conduct created an objectively reasonable fear of death or serious bodily harm. She contends, however, that the issue of imperfect self-defense was generated in this case because that defense "requires no more than a subjective honest belief on the part of the killer that his actions were necessary for his safety . . ." State v. Faulkner, 301 Md. 482, 500, 483 A.2d 759 (1984) aff'g. Faulkner v. State, 54 Md. App. 113, 458 A.2d 81 (1983). We disagree.

In Cunningham v. State, 58 Md. App. 249, 473 A.2d 40 (1984), the appellant "took the stand in his own defense and testified unequivocally that he shot the victim . . . because he feared that if he did not kill in self-defense, he would be killed or grievously wounded himself." Id. at 259. He also testified, however, that he had initiated the fatal encounter by drawing a loaded gun as he approached the victim. We therefore held that appellant's "strained and implausible assertion" was insufficient "to generate a genuine jury issue as to self-defense, perfect or imperfect." Id. at 257. The Court of Appeals denied cert. 300 Md. 316 (1984).

Appellant contends that Cunningham has been displaced by Faulkner, in which the Court of Appeals did state that an imperfect self-defense instruction should be given "when evidence is presented showing the defendant's subjective belief that the use of force was necessary to prevent imminent death or serious bodily harm . . ." 301 Md. at 500. In that case, however, the victim testified that what began as an argument had "escalated into a fight," and that after he had "swung and kicked Faulkner, Faulkner produced a handgun . . . and pulled the trigger." 301 Md. at 505.

Faulkner does indeed hold that if the issue of "perfect" self-defense has been generated the issue of "imperfect" self-defense has been generated as well. The Faulkner Court explained why an imperfect self-defense instruction is necessary:

A proper instruction when such evidence is present would enable the jury to reach one of several verdicts: (1) if the jury concluded the defendant did not have a subjective belief that the use of deadly force was necessary, its verdict would be murder; (2) if the jury concluded that the defendant had a reasonable subjective belief, its verdict would be not guilty; and (3) if the jury concluded that the defendant honestly believed that the use of force was necessary but that this subjective belief was unreasonable under the circumstances, then its verdict would be guilty of voluntary manslaughter.

301 Md. at 500-501.

From that explanation and our review of the cases, we conclude that the imperfect self-defense instruction should not be given unless the evidence generates the issue of whether, under the circumstances, the defendant was entitled to take some action against the victim.

As was the situation in Faulkner, every case holding that the issue of imperfect self-defense had been generated involved a situation in which the evidence was sufficient to support a reasonable conclusion that the defendant was entitled to take some action against the victim. In Shuck v. State, 29 Md. App. 33, 349 A.2d 378 (1975), the jurors could have concluded that, even though a murder defendant should not have resorted to the use of deadly force, he was nonetheless entitled to use non-deadly force against the person who had wrestled his companion to the ground. 29 Md. App. at 37-40. In Law v. State, 29 Md. App. 457 (1975), the trial judge could have concluded that, even though the murder defendant should not have resorted to the use of deadly force, he was nonetheless entitled to use non-deadly force against the persons who were about to enter his home. 29 Md. App. at 462-463. In Watkins v. State, 79 Md. App. 136, 555 A.2d 1087 (1989), the jurors could have concluded that, even though the defendant was the initial aggressor, because he had not employed deadly force, he was nonetheless entitled to protect himself from the victim when the victim "escalated" the fight to a higher level of violence. 79 Md. App. at 139. In Dykes v. State, 319 Md. 206, 571 A.2d 1251 (1990), the jurors could have concluded that, even though the defendant should not have resorted to the use of deadly force, he was nonetheless entitled to use non-deadly force while protecting himself against a sexual assault. 319 Md. at 223.

On the other hand, in every case holding that the issue of imperfect self-defense had not been generated, the evidence was insufficient to support a reasonable conclusion that the defendant was entitled to take any action against the victim. Cunningham, supra, 58 Md. App. at 257, Lambert v. State, 70 Md. App. 83, 99 (1987), State v. Martin, 329 Md. 351, 366-368, 619 A.2d 992 (1993).

In this case, the jurors heard no evidence that, when appellant shot the victim, the victim was saying or doing anything which could have led a reasonable person to believe that the victim posed an imminent danger of any injury serious or otherwise. Indeed, the defense conceded at trial that no sane person in appellant's position on the occasion of the fatal encounter would conclude that appellant was in any danger. The jury heard Dr. Kleinman's testimony only because appellant entered a plea of not criminally responsible by reason of insanity. This testimony would generate the issue of imperfect self-defense only if the defense of "diminished capacity" were recognized in Maryland. Maryland, however, does not recognize that defense. Johnson v. State, 292 Md. 405, 418, 439 A.2d 542(1982). Appellant was not entitled to an instruction on imperfect self-defense.

JUDGMENT AFFIRMED; APPELLANT TO PAY COSTS

Disposition

JUDGMENT AFFIRMED; APPELLANT TO PAY COSTS