Jahnke v. State

¶1specially concurring.

¶2I totally agree with the majority’s excellent opinion. I only wish to emphasize that at trial appellant received every consideration he was entitled to, and more.

¶3At the outset I confess to a philosophical bias against people who take the law into their own hands and execute their supposed tormentors. I am particularly opposed to patricide. After considering the news, particularly letters to the editor, I conclude that I must represent a view contrary to that of the public.

¶4Appellant is handsome, personable, intelligent and ready of tongue. He is an all American boy, except that he has a predilection toward patricide. Appellant and his incredible story caught the imagination of the media and public.

¶5Richard thought about killing his father many times before November 16. On the 16th he made elaborate plans for the execution. He lay in wait for an hour and one half, then blew his ROTC whistle to freeze *1010his victim. He fired repeatedly, propelling lead into his father’s body. His first comment after the slaying was that he did it for revenge. This is a textbook case of first-degree murder.

¶6The jury convicted appellant of killing his father voluntarily upon a sudden heat of passion. If lying in wait for one and one-half hours is a “sudden heat of passion,” then appellant must have been frozen in time. This must have been the longest “sudden” in history.

¶7In his defense appellant employed the oldest, most common and most successful tactic in homicide cases. He put the deceased on trial. His strategy was largely successful as he was convicted of a lesser offense when the uncontradicted evidence and appellant’s admission pointed only to murder.

¶8Evidence produced by appellant characterized the deceased father as a cruel, sadistic and abusive man. Experience, common sense and the conduct of Mrs. Jahnke indicated to me that the testimony in support of this characterization was greatly exaggerated. There was no one at trial to speak for the deceased. All defense witnesses were at liberty to say anything they wanted about the deceased, knowing that they could not be contradicted. Defense witnesses had a motive to make the deceased look like a bad man; they wanted to make the jury believe that appellant’s father deserved to be executed. By no stretch of the imagination was this a case of self-defense. Arming and barricading himself and lying in wait for one and one-half hours for his father’s return is not self-defense under the law.

¶9The trial judge was eminently fair with appellant and resolved ahy doubt in his favor. Appellant was not entitled to an instruction on self-defense, nor was he entitled to an instruction on the lesser included offense of manslaughter because there was no evidence justifying either instruction. However, the judge being abundantly cautious gave these instructions.

¶10Mrs. Jahnke’s testimony at trial is suspect. On the one hand she describes fourteen years of ruthless beatings. She was afraid that the deceased was going to kill her son. On the other hand, a few hours before the slaying, she had a minor dispute with Richard and told her husband that her son had sassed her, knowing that her son would be punished. After informing on Richard, she went out for the evening with her husband to celebrate the tender moment they first met. Before going out Mrs. Jahnke threw her arms around her husband, kissed and hugged him, told him she loved him and that he was good to her. Yet, this was the man she feared would kill her child.

¶11Richard’s avowed motives for gunning down his father have changed during this ordeal depending upon his forum. While he was in an excited state he told his girlfriend’s father that he did it for revenge. While still exhilarated he told Officer Hildago that he killed for past things. Then his expressed reason briefly changed and he claimed self-defense at the trial. Richard now says he did it for his mother and sister. He said at a later trial he killed his father to “stop him from further abuse of his family.”

¶12Many in our society are fascinated by violence. We make folk heroes out of our criminals. Ballads and odes are written about murders. The more bizarre or unusual the murder, the greater the proliferation of songs, poems and books. The public’s thirst for this sort of literature will not be stilled. If a person wants to become famous and even wealthy, he just needs to commit a grotesque crime.

¶13John Herbert Dillinger and Alphonse Capone will live in our history for more than one hundred years. Good men, contemporaries of Dillinger and Capone are already forgotten. “The evil that men do lives after them; the good is oft interred with their bones.” Wm. Shakespeare, Julius Caesar (The Tragedy of), Act 3, Scene 2.

¶14Perhaps Richard Jahnke was entitled to compassion because of his age. The jury meted out that compassion when they found him guilty of manslaughter, despite *1011the fact that the evidence pointed to murder. The judge’s sentence evidences further compassion. He could have sentenced Richard to not less than nineteen years, eleven months and twenty-nine days. The judge and jury deserve to be commended, rather than harangued by the public. They demonstrated intelligence, good judgment and compassion.

¶15dissenting, with whom CARDINE, Justice, joins.

¶16I will join in Justice Cardine’s dissent, and herewith offer a separate dissenting opinion.

¶17An Introduction To Dissent

¶18This case concerns itself with what happens — or can happen — and did happen when a cruel, ill-tempered, insensitive man roams, gun in hand, through his years of family life as a battering bully — a bully who, since his two children were babies, beat both of them and his wife regularly and unmercifully. Particularly, this appeal has to do with a 16-year-old boy who could stand his father’s abuse no longer — who could not find solace or friendship in the public services which had been established for the purpose of providing aid, comfort and advice to abused family members — and who had no place to go or friends to help either him or his sister for whose protection he felt responsible and so — in fear and fright, and with fragmented emotion, Richard Jahnke shot and killed his father one night in November of 1982. In these courts, Richard pleads self-defense and, since the jury was given a self-defense instruction, it must be conceded that the trial judge recognized this as a viable defense theory under the evidence adduced at trial.

¶19In this dissenting opinion, besides agreeing with Justice Cardine that voir dire was erroneously limited, I find error in the majority opinion’s conclusion that the trial court properly excluded the proffered expert psychiatric witness’ testimony from the jury’s consideration.

¶20Appellant’s offer of proof indicated Dr. McDonald, a forensic psychiatrist, would testify that:

1. The doctor had diagnosed Richard Jahnke as a battered child, based on interviews with Jahnke and other information.

2. Battered children behave differently from other children, and perceive things differently from other children.

3. Because he was a battered child, Richard Jahnke reasonably believed himself to be in immediate danger on the night he shot his father, and perceived himself as acting in self-defense.

¶21When the evidence was in, the court gave the jury the following self-defense instruction — an instruction with respect to which I take no exception:

“INSTRUCTION NO. 8

“If the defendant had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to use deadly force in order to defend himself. ‘Deadly force’ means force which is likely to cause death or serious bodily harm.

“The circumstances under which he acted must have been such as to produce in the mind of a reasonably prudent person, similarly situated, the reasonable belief that the other person was about to kill him or do him serious bodily harm. The danger must have been apparent, present and imminent or must have appeared to be so under the circumstances.

“If the defendant believed that he was in imminent danger of death or serious bodily harm, and that deadly force was necessary to repel such danger, and if a reasonable person in a similar situation seeing and knowing the same facts would be justified in believing himself in similar danger, he would be justified in using deadly force in self-defense. He would be justified even though the *1012appearance of danger later proved to be false and there was actually neither purpose on the part of the other person to kill him or do him serious bodily harm nor imminent danger that it would be done, nor actual necessity that deadly force be used in self-defense. If the person so confronted acts in self-defense upon such appearances of danger from honest belief, his right of self-defense is the same whether the danger is real or merely apparent. On the other hand, a bare fear of death or serious bodily harm is not sufficient to justify the killing of another person.” 1(Emphasis added.)

¶22It is my position that, since the issue of self-defense in the unusual behavioral circumstances of this case is a subject which is cloaked in the abstract mysteries of professional knowledge, the jury, deprived of an expert’s explanation of how battered people perceive and respond to the imminence of danger, could not be expected to and did not understand and quantify the impact and residuals of the years and years of battering which had been the lifelong fate of Richard Jahnke. The jury could, therefore, not know — or be expected to know — whether his acts, at the time and place in question here, were those of the reasonable person similarly situated for whom the law of self-defense provides comfort.2

¶23Denied the explanatory assistance of a qualified expert witness, it is as though Richard Jahnke had not been permitted to defend himself at all. Since the necessity to defend oneself or others from perceived imminent danger is a subjective consideration for the defendant3 but one which is an objective concern of the jury,4 how could this young boy structure an understandable defense when — even though the record discloses that since age two he had been bullied, battered, frightened and emotionally traumatized — he was, nevertheless, denied the opportunity to have explained to his jury how abused people reasonably handle their fears and anxieties — what their apprehensions are — how, in the dark moments of their aloneness, they perceive the imminence of danger — and how, in response, they undertake to assert their right of self-defense?

¶24It is my conception that Richard Jahnke -properly came to the courts of Wyoming asking — not that he be judged as one who, at the time and place in question, was *1013insanely unreasonable5— but that his 14 years of beatings and uncivilized emotional abuse be explained by a qualified expert in order that judgment be passed on the question which asks whether or not his behavior was sanely reasonable. One might wonder why — since our courts admit expert testimony with commendable regularity upon the issue of sanity when that is the ultimate fact — and the plea is insanity — it is not acceptable that a psychiatrist testify about whether behavior such as that with which this ease is concerned and which is unlike that which lay jurors would understand to be the expected, is, nevertheless, sanely typical of the behavior of a reasonable person acting in the same or similar circumstances. Richard was not, however, permitted to have the impact of 14 years of abuse upon his alleged self-defensive behavior explained to the jury through the testimony of a psychiatrist even though this is the only way the fallout from brutality can be communicated.

¶25Denied this opportunity, the appellant was forced to submit his case to the jury with what consequently presents itself as a ridiculous, unbelievable, outrageous defense. Without medical input, what possible sense could it make to a lay juror or any other nonprofessional person for the citizen accused to urge self-defense where the evidence is that, even though the recipient of untold battering and brutalizing by the victim, the defendant nevertheless contemplated the possibility of the use of deadly force as he lay in wait, gun in hand, for his father’s return? How could any jury be receptive to such a defense on an informed basis if its members are not to be permitted to hear from those who understand how brutalized people — otherwise “reasonable” in all respects — entertain what, for them, is a belief that they are in imminent danger from which there is no escape and how they, with their embattled psyche, responsively behave?

¶26The Reasonableness of Self-Defense

¶27As can be seen from the instruction which the court gave the jury, supra, and contrary to the holding of the majority,6 the law requires that Richard Jahnke must have acted as a “reasonably prudent person, similarly situated” would act — before self-defense is available. It is not, however, necessary that the perceived danger must in fact be present and imminent — it need only to “have appeared to be so under the circumstances.” In this case, therefore, the appearance of imminent danger must have been present in the mind of the defendant, not the trial court or this court.

¶28I concede that, in the ordinary self-defense fact situation it is not necessary to rely upon expert testimony to explain the perception of the accused at the moment of crisis when he or she resorts to the use of deadly force. Particularly is this true where the victim’s past acts of violence which are known to the defendant are made available to the jury’s consideration.7 This is so because, given the surrounding facts and the victim’s past acts of violence of which the accused was aware, it is usually within the ken of the lay juror that there *1014either was or was not an assault in response to which the defendant was either justified or not justified in believing himself to be in imminent danger and that he either did or did not behave as a reasonable person similarly situated when he resorted to the use of deadly force. In these circumstances, the lay juror can call upon his or her life’s experiences to structure the reasonableness test. In other words, when the jury is allowed to be made aware of what the defendant knew about the assailant’s propensity for violence, and the evidence is that the defendant’s back was against the wall as he looked down the barrel of a gun, there is, of course, no need to call up expert testimony to explain whether the resort to deadly force was or was not the behavior of a reasonable person. In this situation, the lay juror is able to place him or herself at the scene and in the shoes of the accused and decide whether or not it was reasonable for the defendant to believe that he would be killed or receive serious bodily harm unless he resorted to the use of deadly force. In these situations, the jury is capable of judging imminence of danger and reasonableness of response without the help of anyone. It is in these circumstances that courts like to say that juries are composed of reasonable people who know how reasonable people behave — and, of course, this is so.

¶29Since, however, we are involved with a battering and brutalizing factor in this case which the defense urges is causally connected with the reasonableness of Richard Jahnke’s conduct, the appellant contends the jury was confronted with an unusual self-defense fact situation characterized by a psychiatric overlay. This being so, the question becomes this: Are the life’s experiences of the lay juror adequate to enable him or her to make an informed reasonableness decision in this case, or do the facts describe the kind of an area where the lay juror requires assistance from an expert witness? In my judgment, it was so necessary that the jury have the help of an expert that it was not even a discretionary decision with the trial court. Especially is this true in this case when the court’s erroneous grounds for rejecting the offer of proof are taken into account (discussion infra). Therefore, it is my view that it was error not to make available the expert testimony in circumstances such as those with which we are concerned here.

¶30In Hawthorne v. State, Fla.App., 408 So.2d 801, 806 (1982), the court said:

“We agree with the view expressed by the Georgia Supreme Court in Smith v. State [247 Ga. 612, 277 S.E.2d 678 (1981) ] insofar as it concluded that jurors would not ordinarily understand ‘why a person suffering from battered-woman’s syndrome would not leave her mate, would not inform police or friends, and would fear increased aggression against herself ....’ 277 S.E.2d at 683.”8

¶31In addition, the exclusion of the proffered expert testimony in the case at bar runs afoul of the announced policy of the courts of this state which allows a qualified expert to testify whenever the specialized knowledge will

“ ⅝ ⅜ * assist the trier of fact to understand the evidence or to determine a fact in issue … ⅝.” Rule 702, W.R.E.

¶32The expert may testify by opinion “or otherwise,” and he may base his “opinion or inference” on facts that were known at or before trial. Rule 703, W.R.E. Further, if the facts or data upon which he bases his opinion are those which are reasonably relied upon by experts in the field, they need not be admissible in evidence. Rule 703, W.R.E.

¶33Whether or not the proffered testimony will assist the trier of fact to understand the evidence or determine the fact in issue is to be resolved by a common-sense inquiry which asks whether the untrained layman would be qualified to determine the issue to the best possible degree without enlightenment from those having a specialized understanding of the subject matter. Rule 702, F.R.E., Advisory Committee Note. These rules and explanatory con*1015cepts comport with the historical position of this court. In Long v. Big Horn Construction Company, 75 Wyo. 276, 295 P.2d 750, 753 (1956), we said:

“The general rule is that witnesses must testify to facts within their knowledge and may not state their opinions, such opinions being deemed irrelevant. There are exceptions to this rule, of course, such as witnesses who possess peculiar skill or knowledge, whose opinions may be received when the facts are such that the court presumptively without such skill or knowledge is likely to prove incapable of forming a correct judgment relative to the matter in hand without the aid of such opinion.”

¶34It will, however, be my purpose here to show that the considerations of Rules 702, 703 and 704, W.R.E.9 (discussed infra) were, by and large, not even taken into account by the court when the expert testimony was offered or, if these rules were considered, the exclusion rulings run contra to the provisions of the aforesaid Wyoming Rules of Evidence.

¶35In contemplating the overall problem which brings on my dissent, it is initially necessary to be aware of at least these following facts:

¶36Richard Jahnke, a sensitive boy who had never been in any sort of trouble in his life, had been beaten regularly and unmercifully by his father since he was two years old. On the night of the homicide he had received a severe beating, and when his father and mother left the house to go to dinner that night, his father said:

“I’m disgusted with the shit you turned out to be. I don’t want you to be here when I get back.”

¶37The father also said:

“I don’t care what I have to do, I’m going to get rid of you. I don’t know how but I’m going to get rid of you, you bastard.”

¶38The boy felt he had to protect his sister who was hysterical when the mother and father left for dinner. He did not believe that there was any place or anyone where or to whom they could go for safety. The mother testified that the elder Jahnke always carried a gun, and Richard believed he had one with him that night. Mrs. Jahnke said that when the father said to Richard, “I’m going to get rid of you”—

“He was trying to frighten him and maybe do something else besides just throwing him out of the house.”

¶39When Richard was in the garage after having stationed his father’s guns around the house for “backup,” he reflected upon past confrontations with his father and he was afraid the father would kill him when he returned and found what Richard had done with the guns. Even as he contemplated these things, the father drove the car into the driveway. Richard said he wanted to go and hug him and tell him he loved him, but he remembered when he had done this before, he had received a beating for his efforts. He knew from past experience that when his father “stomped” after him that he was in for a beating. He testified about how his father approached the garage door that night:

“A. Yes. I remember he was stomping. When he stomped down the hall when he was really mad and really prepared to beat someone up, beat on one of us. I remember being a little kid, just sitting in my room. My dad stomping after me to hit me, that I could never stop him. “This time I stopped him.”

¶40In the transfer hearing,10 the doctor was cross-examined to the following effect:

“Q. Did his father — Did he tell you his father made any aggressive acts toward him upon his return to the family home that evening?

*1016“A. No, he didn’t — He didn’t make any aggressive acts other than the way he walked. So far as Richard was concerned, this was the way he walked when a beating was about to take place. He stomped. It reminded him of his father’s behavior before beatings. But that was his interpretation, sir.

“Q. Did he tell you that’s what provoked him into shooting his father through that closed garage door?

“A. I think that was the thing that, the factor that provoked the shooting.”

¶41Since the defendant’s behavior is to be judged by the fact-finders according to how they understand the confrontation facts appeared to the self-defense defendant and whether or not his perception and responsive behavior was reasonable — it is of utmost importance that the jury be possessed of all the relevant facts and circumstances of which the defendant was either aware or which otherwise influenced his crisis behavior. This is required in order that the fact-finders be made qualified to decide whether the defendant was justified in believing that the danger was present and imminent in a way which would excuse his use of deadly force. It is therefore necessary that the jury, in the usual self-defense prosecution, be aware of the victim’s propensities for violence of which the defendant had knowledge, and in the unusual self-defense case it is equally important that the jury also be informed about the psychological factors which may have impacted upon the behavior of the defendant. The case of Jahnke v. State falls into the latter category; the case of Mortimore v. State, 24 Wyo. 452, 161 P. 766 (1916), falls into the former category.

¶42In Mortimore v. State, supra the 17-year-old defendant was charged with murdering his father in the first degree, to which charge he pled self-defense. The defendant appealed from the judgment entered upon a guilty-of-manslaughter verdict in order that he be relieved from the judge’s sentence of not less than two nor more than three years in the state penitentiary.

¶43While the defendant, who shot his father as he appeared to be in the process of choking his older brother, was permitted to introduce a limited amount of testimony pertaining to the violent character of the deceased, much of this kind of evidence was excluded. The evidence of the deceased’s past violent acts was offered to show the defendant’s knowledge of the character of the deceased for violence and brutality based upon young Mortimore’s personal observation. We held that such evidence of specific acts of violence which are known to the defendant and tend to show that the defendant acted in self-defense or, as in the Mortimore case, in defense of another, was admissible, 1 Wharton, Criminal Evidence (10th Ed.), § 63A, and that the trial court’s exclusion of this evidence was reversible error.

¶44In Mortimorewe said that the past specific acts of violence of the deceased should be admitted to explain the defendant’s motive and what he might reasonably have apprehended as the danger.11 We referred to Sneed v. Territory, 16 Okl. 641, 86 P. 70, 8 Ann.Case 354 (1906), where the Oklahoma court held this kind of testimony to be admissible in that it showed knowledge in the defendant of the violent temper of the deceased — and his liability to attack without cause. This we said was important— from the standpoint of the accused — in determining the danger apprehended by him

“ ‘ … an(j from which the defendant might estimate the conduct of the deceased, the character of the attack made upon him and what one might expect from his assailant as well as that which he might at the moment deem necessary to guard himself against.’ ” 161 P. at 773.

¶45We quoted from Boyle v. State, 97 Ind. 322 (1884), where the Indiana Supreme Court said that whoever is forced to rely *1017upon the appearance of his assailant ought to be allowed to prove every fact of which he had knowledge, including his past violent acts, for permitting this proof, said the court, bears upon the “reasonableness of the defendant’s apprehension of danger at the time of the homicide.” 161 P. at 773.

¶46In Mortimore v. State, supra, we approved the decision in People v. Harris, 95 Mich. 87, 54 N.W. 648 (1893), where the Michigan court held that it was competent to show past acts of violence which were likely to affect the mind of the accused or to warrant his apprehension of danger. We quoted the Michigan court as follows:

“ ‘Suppose that the defense could have shown that the accused had been informed of the fact, or had had personal knowledge of the fact, that tin another encounter the deceased had brutally kicked or bitten or choked or stamped upon his antagonist, can it be said that such knowledge or information would not have materially increased his apprehension of danger? … His guilt must depend upon the circumstances as they appeared to him, and his mental condition must necessarily be materially affected by any knowledge he possessed of the physical strength or violent temper of the deceased, or his violence when in anger.’ ” 161 P. at 773.

¶47See also State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 875 (1945), and State v. Velsir, 61 Wyo. 476, 159 P.2d 371, 161 A.L.R. 220 (1945), to the same effect.

¶48Even as in Mortimore v. State, where we find a 17-year-old boy shooting a brutalizing father who was in the act of choking the defendant’s brother, in this case a 16-year-old boy shot and killed his father as he “stomped” up the driveway in a familiar manner which the accused testified he believed was a prelude to another beating.12 In each instance, the Wyoming courts have permitted the jury to know about the past violent acts of the victim of which the defendants were aware — this for the purpose of permitting the jury to decide whether or not the behavior of the accused was reasonable in the self-defense sense of the word. But there is a singular difference between Mortimore and Jahnke. In Mortimore, the assailant was in the very act of choking his son when the defendant shot and killed his father, and, once the jury became familiar with the past violent acts of the deceased which were known to young Mortimore, the case presented the usual, ordinary and understandable self-defense situation. The scenario became one which could readily be comprehended by lay jurors because they were then confronted with a fact situation which was within the realm of their understanding according to their life’s experiences.

¶49In this appeal, however, we do not have defensive behavior with which the lay juror is naturally familiar, and yet a doctor of psychiatric medicine was denied the opportunity to testify that Richard Jahnke’s behavior was that of a battered individual whose consequent perception of the imminence of danger is different than the perception of the nonbrutalized person and who would have explained how the battered person responds to danger. Here, unlike with young Mortimore, the father was not engaged in the process of apparently choking another human being. Here, the victim was “stomping” up the driveway in a familiarly menacing way into the face of the fears and anxieties of his son whom he had beaten for 14 years and who recognized the “stomping” as a preface to violence. Here, we have a boy who, from long experience, had come to know what to expect from this confrontation — who believed he would be beaten or would be killed by gun — who did not try to escape because he did not believe that he had any place to go and who did not feel that he could leave his sister unprotected — who taught his sister to fire the gun in case his father should kill him — all in what he believed to be his only defense against further savagery which he knew from past experience would surely *1018come. Could a jury understand this behavior as falling within the requirements of the self-defense instruction without help from an expert psychiatric witness? The asking of the question is to answer it.

¶50Therefore, in the ordinary self-defense situation where there are no psychiatric implications and where the jury is permitted to know what the accused knew about the violent character of his victim, there need be no expert testimony touching upon the reasonableness of the defendant’s behavior. In normal circumstances, these are things that jurors can fathom for themselves. However, when the beatings of 14 years have — or may have — caused the accused to harbor types of fear, anxiety and apprehension with which the nonbrutalized juror is unfamiliar and which result in the taking of unusual defensive measures which, in the ordinary circumstances, might be thought about as premature, excessive or lacking in escape efforts by those who are uninformed about the fear and anxiety that permeate the world of the brutalized— then expert testimony is necessary to explain the battered-person syndrome and the way these people respond to what they understand to be the imminence of danger and to explain their propensity to employ deadly force in their self-defensive conduct. Given this information, the jury is then qualified to decide the reasonableness of a self-defense defendant’s acts at the time and place in question.

¶51The Beating Evidence

¶52The beatings administered by the elder Jahnke against his family members are not described in the majority opinion but they need describing because their presence is central to the viability of Richard Jahnke’s plea of self-defense. This is so because they speak to the question which asks whether Richard, at the time and place when he shot and killed his father, reasonably believed it necessary to use deadly force to prevent imminent danger or great bodily harm to himself and his sister. It is also necessary to recount the beating testimony for the purpose of evaluating the necessity and admissibility of expert psychiatric testimony to show whether the mental and physical mistreatment Richard Jahnke suffered made it reasonable for him — under all relevant circumstances — to behave as he did.

¶53The Trial Testimony of Richard’s Mother (Summarized from the record)

¶54Maria Jahnke, the wife of the deceased father and mother of Richard and Deborah Jahnke, testified that on November 16, 1982, the night Richard shot his father, she and Richard had argued. The father came home, heard about it and started “to beat up on my son.” She begged the father to leave Richard alone. She was crying, and the father told Richard that

" … he wanted him to get out of the house or he was going to get rid of him.” Richard’s 15-year-old sister Deborah came to his defense and the elder Jahnke called her “bitch” and “pimple-face” and told her to go to her room. The father then went to his room and got a gun out of the holster. Maria and her husband were going out for dinner, but before they left the elder Jahnke pinned Richard down on the floor and “he punched him.”

¶55The mother had observed the father punching and slapping the boy since the child was two years old—

“ … pyngjj or sjap him on the head and punch him in the back, slam him against whatever was around.”

¶56On the night in question, Richard’s father called him a “bastard” and said “he wasn’t worth anything, that he was useless.” He had been saying this to the children ever since they were little. The name-calling and striking might happen every day for awhile and then there would be a period when he would not physically confront the children. He treated Mrs. Jahnke the same way — usually in front of the children. He would call her a “spick, a slut — all kinds of bad names.” When Richard found his father beating upon his mother on one occasion in Arizona, he came to his mother’s defense and the father got up from where he had the mother pinned to the floor, caught Richard, and beat him up “very *1019badly.” He pinned him down and kept punching him “on the head, on the back.” Richard had been the primary focus of her husband’s assaults ever since he was a little boy. The boy

“would cry and scream and run into his room.”

¶57Sometimes the elder Jahnke would chase him and pin him down and beat him. As Richard got older, the father would punch him harder. He would hit him with a closed fist

“ … |-ajg kar(j as ⅛ Could possibly hit him. … On his back and his head.”

¶58There came a time when Richard reported to his mother that the father was “fondling my daughter, and I told him I already knew about it.” The daughter had already reported it to Mrs. Jahnke and she had spoken to her husband about it.

¶59The Jahnke boy had trouble with his grades and reported to his mother that he could not concentrate because of what was going on at home. He was referring to

“[m]y husband’s violence toward him.” November 16, 1982 was

“ … a violent day, as usual, and my husband was beating up on my son. And my daughter came and she punched her father in the shoulder and said to leave her brother alone, that she was tired of seeing him be so cruel to him.”

¶60On this occasion,

“He was punching him with both of his hands, and he had him pinned down in the family room and he was really hurting him very.badly.”

¶61Richard was being punched in the back and in the head.

¶62May 2, 1982 was a memorable day in the Jahnke family, because her husband was “beating up on my son,” and told him to go to clean the basement. Then Mr. Jahnke went down to the basement and beat the boy again. The witness heard Richard crying, and then the boy left. He called later to tell his mother he could not stand it any more and that he was going to go to the sheriff. Richard did report the father to the sheriff, and they went to the sheriff’s office, where they met with an officer and a social worker, after which they all went home. The father said he would never forgive Richard for reporting him to the sheriff.

¶63On cross-examination, in describing the remarks made by her husband to her son the night her husband was killed, Maria Jahnke testified:

“Q. Is that what you meant when you are saying he said to Richard, ‘I’m going to get rid of you,’ meant he was going to, he told Richard that he was going to find another place for him to live if he didn’t like living at home? Is that what you are—

“A. No. He was going to throw him out of the house, and when he said—

“Q. Well, now—

“A. Meant get rid of him. He was trying to frighten him and to maybe do something else besides just throwing him out of the house.”

¶64Mrs. Jahnke testified that she was afraid to go to the authorities about the beatings her husband gave her and the children because he threatened her with telling the authorities what a bad mother she was and that the authorities would take her children from her. The witness testified that one of the worst beatings the elder Jahnke had ever given Richard was in Arizona when he beat him all over the body with a belt with “all of his strength.” The day in May when Richard went to the sheriff’s office, he had received a beating which was just as bad as that which he had received in Arizona, and he was, on this occasion, taken to a doctor where pictures were taken of his bruises.

¶65Mrs. Jahnke was not sure whether her husband was carrying a gun on the night of the shooting. However, she testified:

“He always carried a gun. When he carried his badge, he carried his government gun; and when he wasn’t — off duty, then he would take one of his guns.”

¶66On the night of his death, when they were out to dinner, Mr. Jahnke told her *1020how much he hated the kids. For the first time in his life, Mr. Jahnke discussed the possibility of seeking counseling for his problem with his family relations.

¶67The Trial Testimony of Richard Jahnke (Summarized from the record)

¶68The witness identified a picture which was taken May 2, 1982. It was a picture of his back with bruises over it as a result of his father beating him. The father first slapped him a few times because he accused him of lying about his homework— then he dragged him by the hair and pushed him and told him to clean up the basement. The father came down the stairs, where he called him a “goddamn bastard” and accused him of not doing his job right, whereupon he threw Richard to the floor, pinning him down, and started pounding him on the back, face and head. He was hitting with his open hand and fist “as hard as he could.” It hurt the boy “inside”—

“It hurt me mentally because he hated me so much.”

¶69This sort of thing had happened all his life. When he was a little boy, his father would beat him for leaving the tub dripping. All his life the father would hit him “whenever he could,” Richard said, “because, I was such a bastard and he was so ashamed of me.”

¶70The father would use a leather belt to whip Richard when he was a small child for doing things like “walking with my mouth open.”

“He just loved hitting me anyplace with it, in the face, arms, legs, back.”

¶71When the boy pleaded for the father to stop, “he hit me harder.” The elder Jahnke would only stop these beatings when his high blood pressure caused a nosebleed and his heart to pound.

¶72Mr. Jahnke would beat other members of the family, including Mrs. Jahnke. Once, when Richard was little, it made his father mad when his mother asked him to drive to the store, and he saw him grabbing the mother and

“ … throwing her up against furniture, putting her down on the ground and pounding her.”

¶73On these occasions, he would hide in the closet or under the bed because he was afraid. When he was 10 or 11, he became disgusted with himself because he thought he should be protecting his mother. Richard testified that on one occasion

“I remember watching him. He had my mother pinned down, her face to the floor. He had his knees on her head. He had her pinned. He was just punching her and punching her. She was pleading and she was slobbering because she was crying. She was pleading for him to stop. He was telling her, ‘Shut up,’ as loud as he could say it. ‘I guess you don’t like this?’

“And I couldn’t take it. It hurt too much to just watch that.

“Q. Tell us how it hurt, Richard.

“A. It hurt so much.

“Q. Tell us how it hurt, Richard. He was beating your mother. Why would that hurt you?

“A. Because it was for no reason, because — to hurt her.

“Q. Why would that hurt you, Richard?

“A. I loved my mother.”

¶74One time, when Richard was five or six, he broke a toy boat and the father came screaming after him. “Where is that bastard?” the father yelled, and the mother stood in front of the closet door where she had hidden the boy. For this, the husband beat her up, calling her a “slut,” a “fat spick,” and saying she was a “terrible mother.” After this beating, the boy’s father took him out of the closet and beat him.

¶75He saw the father beat his sister the Saturday before the November 16 experience. One time he observed his father put his hands down Deborah’s pants. “He was feeling her out.” The boy described this conduct on the part of his father this way:

“Q. Could you see your sister?

"A. Yes.

“Q. Did you see how she looked?

*1021A. She looked so scared. She was stiff. She was shaking. And Mom was pretending like it wasn’t even anything.

“Q. What do you mean, Richard?

“A. She saw it but was just going on and cooking.

“Dad would do a lot of things. Like when she would be taking a shower, he’d always have to walk in the bathroom to see how the shower was running. His excuse would be — or there was something wrong with the pipes, see if it’s okay.

“And when he disciplined her, he would push her up against the doors, rub her breasts, grope her breasts.

“And Deborah would talk to me about it. She told me she was scared.

“Q. Richard, did you see anything else?

“A. One time—

[[Image here]]

“Q. What else did you see between your father and your sister, Richard?

“A. At nights, for a period of time, my dad would tuck Deborah into bed. I remember one time I looked into the room. I saw my dad laying on top of my sister.

“Q. What did you think when you saw that, Richard?

“A. At first I thought oh, he’s just playing a game, playing around.

[[Image here]]

“Q. How did you feel when you saw that and how did you feel when you saw those other things you testified to?

“A. I felt disgusted. I knew it was wrong for my father to stick his hands down her pants. At first I thought why is he doing that. I remember when my sister and I talked. She said—

“Q. Richard, did you ever try and stop that? Did you ever tell anyone?

“A. I talked to my mother about it.

“Q. And did it stop?

“A. My mother got angry at my sister, told her that it was her fault for wearing all those shorts. She said that it was my sister’s fault for all that. And she told my sister, ‘Just tell Dad “No,” tell him not to touch you.’

“And my sister did.

“Q. She told your father not to touch her?

“A. Yeah. I was not in the — ”

¶76Richard had asthma, and his father would get mad because the child had to cough, and on these occasions would hit him in the mouth. The father would hit the boy and scream at him if he did not eat all of his food at the dinner table. He also made the children eat with plastic table utensils because he said that the ordinary knife and fork made too much noise.

¶77Richard testified to the May 2, 1982 incident again. He had been beaten by his father in the basement, whereupon he told his father that he would not go hunting as they had planned. He said:

“I’m not going on a hunting trip with you. You’re such a crazy lunatic you’d probably kill me.”

¶78And then, the father returned to where Richard was and beat him some more. He then told him that if he did not like the way he was being treated to leave home:

“Get the hell out of the house. If you don’t like it here, leave.”

¶79Richard grabbed his shoes and ran barefooted out of the house to the ROTC instructor’s home. He consulted with the instructor and called his mother and told her that he was going to the sheriff. The boy called the sheriff and then went down to his office and they said they would call the elder Jahnke. Richard objected, because, he said, he was afraid his father would kill him.

¶80The father, mother and sister came to the sheriff’s office, where the family was shown to a room out of the presence of the officers, and the boy testified that his father was furious and yelled, “You’re ruining my marriage, you bastard.” Richard testified:

“And I stood up and I said, ‘I’m not the cause of your marriage being like this. Was it my fault your marriage — when you were beating on me when I was a *1022little baby, beating on my sister, beating on my mother? Now you are going to blame me for the marriage that you have.’

“And he said, T don’t care whatever happens to you. Just get the hell out of here.’ ”

¶81Richard returned home that day because he was afraid they would put him in jail or a detention home, and he was afraid that if he were not there for his father to punish, he would “take out his frustrations” on his sister and his mother.

¶82Soon after this incident, a social worker came to the house and, according to Richard, his father told lies about him but he was afraid to correct them because he was afraid his father would beat him again.

¶83Richard related a conversation on a hunting trip when his father said:

“ ‘You know what, Richard, in my job I have to handle a lot of ass-holes, a lot of ass-holes, but I handle it just fine. When it comes to family, I don’t know. It’s just — I lose it.’ He said, ‘One of these days, Richard, I’m just going to hit someone so goddamn hard it’s going to kill them and they’ll deserve it.’ And then he looked at me, glared, as if he was saying, ‘You are that person, Richard.’

“Q. Is that what you felt, Richard?

“A. Yes. After that I was — I didn’t go on anymore shooting trips with him because I was afraid.

“Once before I noticed everytime I was shooting a pistol or something he would have his pistol ready, he would have it in his hand and loaded, standing aside. I was always worried that he was going to shoot me because he hated me so much.”

¶84On one occasion, Richard was beaten by his father after the incident at the sheriff’s office, and his father went to attend to his nosebleed, when Richard said:

“ ‘If you didn’t hate me so much, it really could have been great, Dad. We could have been friends.’

“Q. Speak up, Richard.

“A. I said, ‘We could have been friends, but it’s too late now. I will never forgive you for all that you’ve done to me. It’s too late. We’ll never become friends. We are forever enemies now.’ ”

¶85On the Saturday before the shooting, the elder Jahnke had slapped and pushed Deborah. Richard heard her fall down, whereupon he came out of his room and saw his dad “grab Deborah by her hair,” and he was “hitting her.” He yelled, “Leave my sister alone, bastard,” whereupon the father started to chase Richard. Richard felt proud that he was able to help his sister. He admitted that he had often thought of shooting his father after being beaten

“[bjecause he was so evil.”

“He hated us so much. All he had was hate.”

¶86When asked why he didn’t just leave, he answered,

“Where am I to go? There’s no place to go.”

¶87He was afraid to tell his teachers or friends about the beatings that his father gave his family members and he was afraid they would not believe him.

¶88On the night of the shooting, Richard and his mother fought. He wanted a ride to school for an open house. She got mad, blamed him for ruining her marriage. “She was telling me that I was a bastard.” Suddenly, Richard struck the table and said, “Shut up.” Then she “really got angry” and threw a can of dog food at him, which hit him. He hugged her, but she “kept on exploding.” When her husband got home, she said to him, “I can’t take it any more Richard, they’re such bastards,” and then she started crying, telling him that “I was really nasty to her, saying that it’s all my fault.” The father then “came stomping down” to Richard’s room and started hitting him.

¶89Richard Jahnke then' responded to the following examination in this way:

“ ‘Being disrespectful to my wife?’ Started hitting me. He says, ‘You asshole. If you don’t like it here, get the hell out.’ He told me, T don’t care what I have to do.’ Said, T don’t care what I have to do. I’m going to get rid of you.

*1023I don’t know how, but I’m going to get rid of you, you bastard.’

“That’s when my mother and my sister came to my room and she said, ‘Where he’s going, I’m going, too.’

“And he went and screamed at her, said, ‘Shut up, you slut,’ and came after her to hit her. I got in the way. I don’t know how I did it. He just stomped off down the hall. I told her to get in the room and lock the door. I went in my room and locked the door.

“Then he came back in a little while, pounded on my door, told me to clean up ‘that goddamn mess’ I made in the kitchen.

[[Image here]]

“He started hitting me again. I wasn’t going to be hit. So I was pushing him away, grabbing his fists, I was dodging. He was able to hit me a couple times. “And my mother came into the room and it looked like Dad was ready to stop hitting me. She said, ‘Oh, and he called me a martyr, too.’ She was taking pleasure in watching me being hit.

“And then Dad told me to go into the kitchen and clean up the grape juice. He stood in the way, stood in the door— “Q. Couldn’t hear you, Richard. What? “A. He stood in the doorway so I would have to go through him so he could hit me a couple more times.

“I gathered my courage. I got hit a couple times. I went to the kitchen, started cleaning up the mess.

“He was on the other side of the house. There was an argument between my father and my sister. I don’t know exactly what happened, what was said. I just remember Dad saying, ‘Shut up, filthy slut.’

“My mother was there. I had been down and cleaning all the mess. And she was smelling the flowers that he got her. It was their 20th anniversary since they first met. She looked so pleased and so peaceful. When he came back she hugged him—

“Q. Hugged who?

“A. She hugged my father. She goes, ‘Oh, you are so good to me. I love you.’ And he said, ‘Let’s go to dinner. I can’t stand the sight of these bastards.’

“So they got their coats and they got their shoes together, got them on. And Mom walked out the door. Dad, just before he was going to leave, he came back and he shoved me up against the wall and he told me, ‘I’m disgusted with the shit you turned out to be. I don’t want you to be here when I get back.’ “They left.”

¶90After the mother and father left, he thought about being trapped in a brutalized situation from which there was no escape— how his sister was unable to get away from this treatment — how Deborah had been planning on college as “her way out” but was not going to be permitted to leave home for college. After his parents left, Deborah was crying and shaking, and he said:

“Don’t worry, Deborah, he’s never going to hurt you again.”

¶91He testified he felt he had to protect his sister and his mother from the beatings, that he had nowhere to go, he could not go to the sheriff because “[tjhey didn’t believe me the first time,” and he felt that his dad would be able to talk his way out of it if he went there. He could not go to his ROTC instructor, because he went there once and this individual had

“ … t0ld everybody about what had happened to me and he was very pompous towards me. At that time we were enemies.”

¶92Richard therefore felt he could not trust his ROTC instructor.

¶93When asked why he just did not run away, he said he could not:

“ … i woui(j have probably starved to death some place. I didn’t have any place to go. There was no one out there. Not even my grandparents would have helped me. No one.”

¶94Richard Jahnke then described the scenario which saw him place his father’s guns around the house for backup. He taught Deborah how to use one or two of *1024them. He put all the dogs and cats in the basement so they would not get hurt. He thought his father would kill him if he missed him the first time because he thought his father was carrying a gun. He closed the garage door. He described what he was thinking about while he was doing these things — what his feelings were. He thought about

“All the pain he had caused me all my life.

“Q. How did you feel?

“A. I felt hurt, felt angry. I felt scared.

“Q. Scared of what?

“A. Of doing it, what would happen if I didn’t do it.

“Q. What did you think would happen? Tell us, Richard.

“A. I thought he would kill me, maybe he might not kill me mentally — physically. He would have killed me mentally. “Q. What do you mean by that?

“A. All these times, all that pain he gave me, everytime I would just forgive him and forget.

“Q. Describe that pain for us, Richard.

“A. Helplessness, the pain of disgust towards yourself. My father’s son was going to be a man for the first time in his life.

“My dad always taught me to stand up for myself. I remember times he would even hit me and tell me, ‘Go ahead. You can get the first shot. Look. I’m open. Go ahead. Hit me. Defend yourself.’ I never would. He would always laugh at me.

“Q. Why wouldn’t you defend yourself,

Richard?

“A. I was scared.

“Q. Scared of what?

“A. That he’d hurt me really bad, he would kill me. He was a huge man compared to me. When he was angry he was strong. When he lost his temper he showed no mercy.

“Q. Was this what you were thinking about while you were in the garage, Richard?

“A. Yes.

“Q. What happened while you were in the garage?

“A. I was in the garage, I was thinking of all that had happened to me.

“Q. Speak up, please, Richard.

“A. I was thinking of all that had happened to me and I saw the Volkswagon drive up. Dad turned into the driveway and he turned off all the lights to his car and the motor, just coasted into his park place.

“I saw — I said, ‘Oh, my God. Am I really going to do it? I can’t.’ I said, T can’t do it. No. I can’t do it.’ But as my dad walked toward the garage door I thought, ‘If I don’t do it, he’ll see all the guns around the house.’ First I thought, 'Well, I’ll just drop all the guns, and when he opens the garage door I’ll just hug him and I’ll tell him, ‘Dad, we need help. I need help.’

“Q. Why didn’t you do that, Richard? Why didn’t you just do that?

“A. I remembered when I hugged him when he was beating me. I told him I loved him, that we have got to stop that. He just kept hitting me and beating me for it. And I thought, ‘He’s going to see me with all these guns.’ He used to get really mad even if anyone anyone would touch his guns. ‘Here I’ve got them laid all over the house. He’ll beat us for sure.’

“Then I said, ‘No. He’s never going to touch any of us again.’

“I remember I had this whistle, my command sergeant major’s whistle. Used it for courage. At the last second I became a battalion command sergeant major. It was tough. I was a tough person. Don’t take any shit from anybody. I remember I learned that from ROTC. “I blew that whistle. I opened fire and every shot that I fired hurt me so much. It hurt almost as if I was getting shot also.

“Q. Did you see your father walking up to the garage?

“A. Yes. I remember he was stomping. When he stomped down the hall when he *1025was really mad and really prepared to beat someone up, beat on one of us. I remember being a little kid, just sitting in my room. My dad stomping after me to hit me, that I could never stop him. “This time I stopped him.”

¶95The Proffered Testimony of the Forensic Psychiatrist

¶96Dr. McDonald, a forensic psychiatrist, was offered by the defendant for the purpose of testifying about the behavior of battered children — that Richard was a battered child — all as an aid to the triers of fact with respect to their obligation to decide whether or not this defendant — as a battered person — behaved reasonably on the night of November 16, 1982, but the court would not permit the jury to hear the testimony.

¶97The defendant suggests that his offer of proof represented that Dr. McDonald would testify that:

1. The doctor had diagnosed Richard Jahnke as a battered child, based on interviews with him and upon other information.

2. Battered children behave differently from other children, and perceive things differently from other children.

3. Because he was a battered child, Jahnke reasonably believed himself to be in immediate danger on the night he shot his father, and perceived himself as acting in self-defense.

¶98In view of the way that the majority opinion resolves the psychiatric-testimony issue (infra), it is necessary to examine the defendant’s offer of proof and the trial judge’s response.

¶99The Defense Attorneys’ Offer of Proof

¶100At the trial, the attorneys for Richard Jahnke offered the testimony of Dr. McDonald, a forensic psychiatrist, for the purpose of providing a backdrop for the jury’s decision as to the reasonableness 13 of Richard Jahnke’s behavior on the night of November 16, when he shot his father. In making his offer of proof to explain that to which Dr. McDonald would testify, the defense attorney represented to the court that the testimony was being offered to prove or disprove

“ … ⅜ the reasonableness of the apprehension of Richard Jahnke on the night in question.” (Emphasis added.)

¶101The issue of “reasonableness,” argued the defense counsel,

“ … would go to the fact that ⅜ … Richard Jahnke was brutalized by his father in May of 1982, that he was brutalized by his father on November 16th of 1982, that he had been brutalized by his father for many years in the past.”

¶102At another point in the offer, defendant’s attorney submitted that the doctor would testify that it was his opinion

“ … that Richie Jahnke is emotionally impaired, that he believes that Richie Jahnke is a battered child.”

¶103The defendant’s attorney explained that the doctor should be allowed to testify concerning what Richard Jahnke told him during the course of the doctor’s examination for the reason that Richard’s statements would go to

“ … the reasonableness of Richard Jahnke’s apprehension of harm on that evening ….”

¶104This offer says to me that the doctor’s testimony would have supplied such underlying psychiatric information as would have permitted the jury to resolve the issue of reasonableness in an intelligent and informed manner. Even if the offer is read to say that the testimony would have touched on the ultimate issue of the reasonableness of the defendant’s behavior at the time and place in question, this is no longer prohibited — at least within the context of the law of this case. See “The Ultimate Issue — Invading the Province of the Jury,” infra this opinion, and particularly Rule 704, W.R.E., infra. In Ibn-Tamas v. United States, D.C.App., 407 A.2d 626, 628 (1979), a battered-person self-defense case, the court said:

*1026“ * * * As to the first — the ‘ultimate facts’ or ‘ultimate issue’ rule — Dr. Walker was not going to express an opinion on the ultimate question whether Mrs. Ibn-Tamas actually and reasonably believed she was in danger when she shot her husband. Rather, this expert would have merely supplied background data to help the jury make that crucial determination. See United States v. Hearst, 412 F.Supp. 889 (N.D.Cal.1976) {Hearst I). In any event, the ultimate issue rule has, over time, been reduced to a prohibition only against questions to an expert ‘which, in effect, submit the whole case to an expert witness for decision.’[14] Id. There is no such risk here.”

¶105The Transfer-Hearing Testimony

¶106In his offer of proof — which the court rejected — the attorney included the doctor’s testimony in the transfer hearing and represented that it was the kind of testimony that would be offered to the jury. The proffered transfer-hearing testimony may be summarized as follows:

¶107Dr. McDonald, an eminent and highly qualified forensic psychiatrist, examined Richard Jahnke seven times between December 13 and December 23, 1982, for a total of 12 hours. Background information was also obtained by Dr. McDonald from the defendant’s mother, sister and others who knew him. This included the staff of the Denver Children’s Home, where Richard stayed, the ROTC instructor at Richard’s high school, and another one of his high school instructors. The doctor also considered the sheriff’s reports and material furnished by defense counsel. The psychiatrist did not find Richard Jahnke to be a violent person, in spite of this one act of violence, and he was not a threat to the community. As a child he was shy and lonely, but with no neurotic traits. When he was very young, he entertained thoughts of suicide because his father was constantly telling him how ugly and stupid he was, but he would fight back when other children picked on him. When he was a child in Arizona, he received poor grades in school, but these improved when he moved to Wyoming. His self-esteem improved when he found an interest in ROTC and assumed leadership roles in this program. In high school, Richard did not use marijuana or other illegal drugs — did not smoke or drink, and he had no history of juvenile delinquency.

¶108The doctor described an extensive background of Richard receiving physical abuse from his father. His earliest memory was of his father beating him, his mother and his sister. Between the ages of four and 12, there was seldom a day without some sort of punishment by his father. The punishment became less frequent between 12 and 15 — more like every other day, but there were more beatings when his father used his fists on him. He was beaten with his father’s fists every couple of weeks between 15 and 16. He would be beaten for such things as not cleaning the basement the right way — for walking along with his mouth open — for spending too much time polishing his ROTC uniform. At one juncture, the doctor testified that the children were forced to eat with plastic spoons and forks because their father did not like the noise they made while eating with ordinary utensils. Dr. McDonald testified that Richard related that he would be beaten for things like defending his sister. If Richard would react to verbal abuse by changing facial expression, the father would physically abuse him. When Richard and his mother had an argument, she would call him a “bastard” and report him to his father who would beat him.

¶109On May 2, 1982, after a severe beating by his father, he ran out of the house in his bare feet, then put his sneakers on and ran five miles to his ROTC instructor’s home. He sat outside the instructor’s house, afraid to go in, and was finally discovered *1027there by the instructor. The doctor explained that children who are victims of abuse are often reluctant to report their problems to others. In Richard’s ease, he believed for many years that child beatings were the normal behavior for a father. He was humiliated by the abuse and even had trouble reporting it to the ROTC instructor with whom he had a close relationship. On this occasion, however, the instructor and Richard went to the sheriff to report the abuse. The family was then interviewed together, and Richard chose to return home rather than go to a foster home, principally because he saw himself as the protector of his mother and sister.

¶110Richard believed the May visit to the sheriffs office was useless even though his father did not beat him for a week or more. When he returned from reporting his beating to the sheriff, he put a chair against his door every night so his father could not get in. A week and a half after the sheriffs incident, the father exclaimed, “That bastard reported me to the Sheriff,” and would say things like

“I’ll give him something that he can really complain about, that is if he can talk,”

¶111the implication being that he would be in a condition that would prevent him from talking about anything.

¶112Then the abuse commenced again, with the father shoving Richard against the wall, punching him and slapping him around — almost every day. On one occasion, the father said he could handle the difficult people at the Internal Revenue Service (where he was employed) but at home he could not and some day he was going to hit someone so hard he would kill them. As he spoke, he looked at Richard, who believed his father was talking about him.

¶113Richard had seen his father fondling Deborah in a sexual way, and had reported it to his mother, who responded that she already knew it. When she was being abused, the boy also came to the rescue of his mother with a weapon — baseball bat— and he was successful in reducing the times when the father would beat the mother.

¶114Another reason for Richard’s fear of his father was his father’s habit of keeping a gun at his side constantly. He would take a gun when he went to answer the door— would even take a gun to the bathroom. When he sat down on the couch he would have a gun under his thigh, or alongside when he sat on the floor. One night when Richard was 10, he awoke to go for some food in the refrigerator. He did not turn on the lights, because he did not wish to awaken the family members, but the lights came on suddenly and he found his father with a pistol about eight inches from his face. One time when they were hunting rabbits, the father shot a rifle between two other hunters who held up a white handkerchief, whereupon the Jahnkes fled the scene. Richard knew the elder Jahnke had loaded weapons throughout the house and he was very afraid of his father and what he might do to him either with his fists or with his guns.

¶115In his transfer hearing, the doctor took other factors into account to reach his evaluation conclusion. For example, the beatings and verbal abuse had an adverse effect on Richard’s psychological development. He testified that the boy does not have the ability to handle stress that other young people of his age have and any ability he does have in this regard has come about as a developed defensive mechanism against the brutality of his father. That was the problem on November 16, 1982 — -that is, when his mother turned on him, blaming him for all the trouble with her marriage and in the home generally, and when she kept calling him a bastard and throwing things at him it was too much for him to stand. He felt victimized when his mother reported him to his father that night because she reported things that he had never said about her. This series of events and its repercussions, together with his father’s beating him that night and the father’s threat that he should leave home, was more than Richard Jahnke could handle. In addition, according to Dr. McDonald, he was afraid of another beating *1028when his father and mother returned from dinner. Therefore, taking all of these things into account, he was under unusual and, for him, unbearable pressure on the evening of November 16, 1982.

¶116On cross-examination:

¶117The doctor testified that when Richard protected his mother and sister from the elder Jahnke, and after some of the beatings against him, he thought of attacking his father but he did not say he intended to use a weapon. On the night in question, however, Richard was angry with his father, and he told the doctor that he intended to do something about his father’s conduct. He told'about how he loaded and arranged guns in preparation for his father’s return — that his plans were to defend himself. The dialog went like this:

“Q. (By Mr. Carroll) In other words, he told you what his plans were and how he effected his plans in expectation of the return of his father?

“A. Yes. His plans were to defend himself against his father. He thought that his father would beat him up again and beat up his sister, so that first of all he said he didn’t really know what he was doing when he went through the house putting the guns in various places. But then he had this fantasy that he was reminded, I think it was of Konan the Barbarian or something, I think he’d seen a film of this man protecting his home, where I take it he had weapons in every room. And so he, in a sense, was thinking that if something went wrong then there’d be a weapon to protect that particular room or he saw it—

“Q. When • he said something went wrong, what did he think might go wrong, did he tell you?

“A. If his father fired at him, I take it.

“Q. Pardon me?

“A. If his father acted in a, you know, went on the rampage, that’s the way he put it. He thought that his father was armed when he went to the restaurant. I don’t think he knew whether he was or not, but he knew that often his father would take a firearm with him when he went out.

“He was afraid that his father was armed, and he was fearful that his father would thump him again when he got back. And so he made up his mind that he wasn’t going to let this happen again.

“Q. Did his father — Did he tell you his father made any agressive acts toward him upon his return to the family home that evening?

“A. No, he didn’t — He didn’t make any aggressive acts other than the way he walked. So far as Richard was concerned, this was the way he walked when a beating was about to take place. He stomped. It reminded him of his father’s behavior before beatings. But that was his interpretation, sir.

“Q. Did he tell you that’s what provoked him into shooting his father through that closed garage door?

“A. I think that was the thing that, the factor that provoked the shooting.”

¶118The witness testified that he was not retreating from his position between two cars in the garage when he fired the shots as the father came “stomping” toward the garage door.

¶119It was his intention that night to also protect his sister — the beatings received by Richard were more severe as he grew older — when he was young it was more often the open hand — later it was the closed fist.

¶120He both loved and hated his father. That night he wanted to go hug his father and say let’s forget about this — let’s get together and not have these arguments, fights, beatings — but Richard had done that before and he had just received a beating for his efforts at reconciliation. He had this “fleeting magical belief” that it could all be resolved by saying to his father, “[LJet’s be friends,” “I love you”— that sort of response, but then he remembered that he had just received a beating when he had tried this on other occasions.

¶121The State’s Response to The Defendant’s Offer of Proof

¶122In response to the offer of proof (which included the transfer proceeding), the State *1029argued that the psychiatric testimony should not be received for these following reasons:

(a) There had been no plea of mental illness or deficiency under § 7-11-304, W.S.1977;

(b) The testimony would be hearsay in view of the fact that it is the evaluation of a psychiatrist who interviewed in preparation for trial and is not the treating physician who is testifying;

(c) The proffered testimony is irrelevant to the issues before ’ the court because the defendant is actually urging diminished capacity which is not recognized in Wyoming and there has been no plea of insanity;

(d) Based on his prior testimony at the transfer hearing, the doctor could not testify to a mental deficiency or disorder even if the plea was insanity, since he did not establish his evaluation as being based upon a recognized standard; (e)The jury is able to determine intent and should not be aided in this process by a psychiatrist according to our holding in Smith v. State, Wyo., 564 P.2d 1194 (1977), for the reason that such testimony would invade the province of the jury.

¶123The Trial Court’s Reasons For Refusal

¶124With respect to the proffered testimony of the forensic psychiatrist, the trial judge ruled:

“Well, the court isn’t convinced that what was stated to Dr. McDonald by the defendant here clearly falls into the hearsay exception.

“And I state that for the reasons that I have previously expressed to counsel.[15]

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“I haven’t been presented, any evidence of any court’s acceptance of the science *1030of the battered child, what can be ■predicted from the battered child. I don’t believe that Dr. McDonald’s testimony is being offered as an admission against interest, although there may be an admission against interest contained in some of the things told to him or alleged to have been told to him by the defendant.

“And Mr. Carroll can’t cross-examine the defendant as to what he has told the doctor, so I don’t see where cross-examination is the great protector in this instance.

“I believe that the testimony and the opinions and conclusions of Dr. McDonald, as suggested by counsel, would invade the province of the jury.

“The jury, I believe, is to determine the reasonableness of any fears, and they should determine that by evidence of a person who testified as to the facts, the situation, and draw their conclusions. “The court is sustaining the objections of the state to this testimony.” (Emphasis added.)

¶125I read the trial court’s comments to say that the proffered testimony is refused for the following reasons:

1. The testimony is irrelevant because the defendant did not plead insanity or some kind of diminished capacity;

2. It is hearsay;

3. No foundation evidence of the court’s acceptance of the science of the battered child had been introduced;

4. The testimony would invade the province of the jury;

5. Under the facts of this case, the issue of reasonableness is for the jury and is not a proper subject for expert testimony.

¶126The Insanity Misconception

¶127Both the State and the trial court believed the defendant was urging an insanity or diminished-capacity defense and thus were of the opinion that the proffered testimony was irrelevant

¶128This court has held that evidence of a defendant’s mental or emotional condition is admissible whether or not the defendant has pled the insanity defense. In Fulcher v. State, Wyo., 633 P.2d 142, 144 (1981), the court said:

“We hold that the trial court properly received and considered evidence of unconsciousness absent a plea of ‘not guilty by reason of mental illness or deficiency.’ ”

¶129While that case dealt with automatism, the reasoning is appropriate to the battered-person syndrome. We noted in Fulcher that automatism could manifest itself in a person with a perfectly healthy mind. 633 P.2d at 145. The defense in this case represented that Dr. McDonald’s testimony would have shown that Richard Jahnke possessed the mental status or personality of a battered youth but did not suffer from a mental disorder of any kind. According to the offer, the witness would have testified that, as a group, battered children behave and perceive things in a predictable way, and that Jahnke’s fear and apprehension that night were typical for a battered child, thereby leaving the reasonableness of his behavior for jury resolve.

¶130It was thus contrary to Wyoming law for the trial judge to exclude Dr. McDonald’s testimony on this basis. Both the express statements and the policy of the Wyoming Supreme Court allow testimony concerning defendant’s mental or emotional condition regardless of whether or not he has entered a plea of mental illness. To exclude such testimony was, therefore, erroneous.

¶131The theory of Richard Jahnke’s defense was misunderstood by the prosecuting attorney, the trial court and now, I submit, this court. This was indeed a proper case for self-defense, and the offer of proof was made on the recognized grounds that battered children behave differently than other children — their brutalized conditioning mandates that they perceive danger differently — and that this defendant believed, as an abused 16-year-old boy would be expected to believe in these and similar circumstances, that he was in imminent danger *1031when he shot his father and that he perceived himself to be acting in self-defense. Even so, the county attorney objected to the offer for the reason that this testimony would only be relevant to a plea of insanity — and that no such plea had been lodged here — that the testimony would be irrelevant in the case at bar because the defendant is actually urging diminished capacity when this defense had neither been pled nor is such a defense recognized in Wyoming — that the transfer testimony made clear that the doctor could not testify that the accused was suffering a “mental deficiency or disorder,” even if the plea had been insanity. The State’s attorney further objected to the offer for the reason that the testimony was being tendered on the question of intent and, he argued, that intent is a matter for the jury’s resolution. He supported this latter argument by reference to Smith v. State, supra, where we held in this second-degree murder prosecution that the jury does not need the expert opinion of a psychiatrist to testify to intent. See n. 14.

¶132The record reveals that the trial court agreed with these concepts. As has been noted (see n. 5, supra), the judge said that he understood the purpose of the psychiatric testimony was to establish “some sort of mental deficiency” and that the offer might be relevant had the defendant pled insanity but was not relevant where the plea was not guilty by reason of self-defense.

¶133These objections and rulings describe a total misconception of the defendant’s theory of his defense and the applicable rules of law with respect thereto. Richard Jahnke did not offer Dr. McDonald’s testimony to establish insanity or any form of a diminished capacity; his defense was sanity, i.e., the reasonableness of the behavior of a brutalized human being where the plea is self-defense. Furthermore, the proof of the defendant’s intent at the time and place in question was not the purpose of the offer, nor was the defendant’s intent ever in issue in this case. It was conceded throughout the trial and appellate court proceedings that the defendant intended to use deadly force against his father because he believed he was in imminent danger. Whether that belief was the reasonable belief of a battered 16-year-old, sane human being was the issue — not his intent. It appears clear from these objections and rulings that the State and the court misunderstood the theory of Jahnke’s defense and, thus, the objections to the offer which hinged on the insanity misconceptions and the intent issue irrelevantly addressed the admissibility of the proffered testimony and were, consequently, erroneous.

¶134In these proceedings, the mental state of Richard Jahnke was not offered as a defense as would be the case with an insanity plea. Neither his mental capacity nor his intent to commit the crime was in issue.16 Rather, the specific defense is self-defense, which requires a showing that Jahnke reasonably believed it was necessary to use deadly force to prevent imminent death or great bodily harm to himself. In this situation, the expert testimony is offered, when the battered defendant pleads self-defense, as an aid to the jury in interpreting the surrounding circumstances as they affect*1032ed the reasonableness of his belief. The expert testimony offered was secondary to the defense asserted. Given the opportunity, the defendant would not seek to show through the expert testimony that the mental and physical mistreatment which he suffered affected his mental state so that he could not be responsible for his actions; rather, the testimony was offered to show that, because he suffered from 14 years of brutalizing, it was reasonable for him to have remained in the home — to have prepared to respond to the beating that he had been promised would surely come and to have believed at that time and place that he was in imminent danger.

¶135In Hawthorne v. State, supra, 408 So.2d at 806, the court was concerned with the reasonableness of a battered woman’s behavior where the plea was self-defense. The State argued — even as did the State in the case at bar — that

“ … ‘testimony regarding the mental state of a defendant in a criminal case is inadmissible in the absence of a plea of not guilty by reason of insanity.’ ” Quoting from Zeigler v. State, Fla., 402 So.2d 365, 373 (1981).

¶136The State cited as authority the rulings of the Florida Supreme Court where the defense of diminished capacity had been held not to rise to the level of insanity and, in the trial court, psychiatric testimony had been held to be inadmissible. The court, in distinguishing diminished capacity and self-defense, said:

“ … We think there is a difference between offering expert testimony as to the mental state of an accused in order to directly ‘explain and justify criminal conduct,’ [Tremain v. State, Fla. 4th D.C.A., 336 So.2d 705, 706 (1976)], and the purpose for which the expert testimony was offered in the instant case. In this case, a defective mental state on the part of the accused is not offered as a defense as such. Rather, the specific defense is self-defense which requires a showing that the accused reasonably believed it was necessary to use deadly force to prevent imminent death or great bodily harm to herself or her children. The expert testimony would have been offered in order to aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of her belief. The factor upon which the expert testimony would be offered was secondary to the defense asserted. Appellant did not seek to show through the expert testimony that the mental and physical mistreatment of her affected her mental state so that she could not be responsible for her actions; rather, the testimony would be offered to show that because she suffered from the syndrome, it was reasonable for her to have remained in the home and, at the pertinent time, to have believed that her life and the lives of her children were in imminent danger. It is precisely because a jury would not understand why appellant would remain in the environment that the expert testimony would have aided them in evaluating the case.” (Emphasis added.) 408 So.2d at 806-807.

¶137It is because a jury would not understand and would not be expected to understand why Richard Jahnke would remain in that environment and believe that he was in imminent danger that the expert testimony is critical to aid and assist them in evaluating these conditions, circumstances and behavior patterns.

¶138The Expert’s Testimony Was Necessary

¶139The expert’s testimony was necessary for the court’s and the jury’s understanding of Richard Jahnke’s theory of defense

¶140In the case at bar, the court denied the defendant’s offer to introduce the testimony of the expert when he said:

“The jury, I believe, is to determine the reasonableness of any fears, and they should determine that by evidence of a person who testifies as to the facts, the situation, and draw their conclusions.”

¶141This ruling had the effect of not only rejecting the offer of scientific proof at this stage of the trial but it precluded the offer *1033of scientific testimony at any other juncture. Once the trial court had held that the jury did not need scientific testimony in order to aid in the decision-making process, as a practical matter that became the final word on this or any other offer of this type of testimony.

¶142It is my judgment that both the court and the jury were in need of explanatory testimony by the psychiatrist and that the court committed reversible error in not admitting it. Since both the county attorney and the presiding judge were trying the case while laboring under the misconception that Richard Jahnke was urging some kind of insanity or mental-incapacity theory, it needed to be explained — not only to the court and county attorney but to the jury — that, while the behavior of Richard Jahnke did not present the ordinary self-defense fact situation, his theory of defense was not concerned with either his intent to commit the act or his mental deficiency.

In Smith v. State, supra, this court said: “Expert testimony is appropriate when the subject of inquiry is one which jurors of normal experience and qualifications as laymen would not be able to decide without the technical assistance of one having unusual knowledge of the subject by reason of skill, experience or education in the particular field." 564 P.2d at 1199.

¶143In this case, it was necessary to explain to the jury that, because Richard Jahnke had been the recipient of the battering and brutalizing that this record reveals this young boy had experienced at the hands of his father, his behavior was — from a psychiatric point of view — the expectable concomitant of that kind of treatment. Therefore, scientific explanation was necessary to assist the trier of fact to understand the evidence and determine the essential fact in issue — namely, whether there was a cause- and-effect relationship between the boy’s abuse and his behavior and, if there was, whether his conduct was that of a reasonable person behaving in the same or similar circumstances.

¶144While it is conceded — as the majority opinion points up — that the question of expert-testimony admissibility is usually a matter of discretion with the trial judge, the testimony cannot be excluded for erroneous reasons because these types of faulty judgments would not bring the court’s exercise of discretion into play. See Chrysler Corporation v. Todorovich, Wyo., 580 P.2d 1123 (1978), where we invoked this rule in holding error to prevent cross-examination where the court’s reason was erroneous at law. Here, as has or will be seen, the trial court has precluded expert testimony for such erroneous reasons as: There is no need for expert explanation in these fact circumstances; there is no plea of insanity or diminished capacity and thus the testimony is irrelevant; the testimony will invade the province of the jury; and it does not fall within the exception to the hearsay rule. Assuming that these are erroneous reasons for excluding the testimony of Dr. McDonald, it cannot be said that the court has exercised its discretion on any relevant question, including the one which asks whether the testimony will be of assistance to the trier of fact. I would urge that the court’s decision on this issue amounted to error as a matter of law, which takes it out of the realm of the abuse-of-discretion rule. At the very least, the rejection of the testimony amounted to an abuse of discretion.

¶145The applicable rules of evidence and pertinent case law say that the battered-person syndrome is a subject that is “beyond the ken” of the lay juror and must be explained through the use of expert testimony. Ibn-Tamas v. United States, supra.

¶146Rule 702 of the Wyoming Rules of Evidence, entitled “Testimony by experts,” provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

¶147*1034Rule 703, W.R.E., entitled “Bases of opinion testimony by experts,” provides:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

¶148Doubts about whether an expert’s testimony will be helpful in a case should generally be resolved in favor of admissibility unless there exist strong and compelling reasons favoring exclusion such as time or surprise. 3 Weinstein’s Evidence, ¶ 702[01], at 702-6. This is so, because the central concern of the rule is: Will the expert testimony

“… ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ ”?

¶149It has been said:

“… There is no more certain test for determining whether experts may be used than the common sense inquiry whether the untrained layman would qualify to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Ladd, Expert Testimony, 5 Vanderbilt L.Rev. 414, 418 (1952).

¶150In numerous instances, courts have held it error to have excluded expert testimony in cases of this nature where the proffered testimony goes to the very essence of defendant's theory of defense.

¶151In United States v. Hill, 655 F.2d 512, 516 (3d Cir.1981), cert. denied, — U.S. -, 104 S.Ct. 699, 79 L.Ed.2d 165, the defendant appealed from a criminal conviction on five counts of distribution of narcotics. He urged that he was induced by government agents to arrange sales of the narcotics. The appeal raises the question of admissibility of expert psychological testimony in an entrapment defense to establish the defendant’s unique susceptibility to inducement. As in self-defense, entrapment requires admission of guilt of the crime charged and all of its elements, including the required mental state. United States v. Watson, 489 F.2d 504 (3d Cir.1973).

¶152The Hillcourt held it to be error, under Rule 702, F.R.E. (which is identical to Rule 702, W.R.E.), for the trial judge to exclude the expert testimony because expert testimony concerning a defendant’s susceptibility to influence may be relevant to an entrapment defense. United States v. Benveniste, 564 F.2d 335, 339 (9th Cir.1977). In Hill, the court said:

«* ⅝ ⅜ An expert’s opinion, based on observation, psychological profiles, intelligence tests, and other assorted data, may aid the jury in its determination of the crucial issues of inducement and predisposition. This is the purpose ascribed to expert testimony by Federal Rules of Evidence 702, and it appears most applicable to the instant case. A jury may not be- able to properly evaluate the effect of appellant’s subnormal intelligence and psychological characteristics on the existence of inducement or predisposition without the considered opinion of an expert.

“Accordingly, if the expert can reach a conclusion, based on an adequate factual foundation, that the appellant, because of his alleged subnormal intelligence and psychological profile, is more susceptible and easily influenced by the urgings and inducements of other persons, such testimony must be admitted as relevant to the issues of inducement and predisposition.” 655 F.2d at 516.

¶153The Hill court held that this type of testimony would also be admissible under Rule 405(a), F.R.E. (the same as Rule 405(a), W.R.E.), which provides:

“Reputation or opinion. — In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry *1035is allowable into relevant specific instances of conduct.”

¶154Expert testimony has been permitted upon a variety of subjects related to the nature and type of testimony offered here. In People v. Mathews, 154 Cal.Rptr. 628, 91 Cal.App.3d 1018, 1022 (1979), an expert was permitted to testify upon the subject of rape-trauma syndrome. The admission of a deputy sheriffs testimony as expert testimony on the subject of street-gang customs was approved in People v. McDaniels, 166 Cal.Rptr. 12, 107 Cal.App.3d 898, 904-905 (1980).

¶155In State v. Anaya, Me., 438 A.2d 892 (1981), the Maine Supreme Court found that the trial court committed reversible error in excluding testimony related to the battered-woman syndrome. The court said:

“On appeal, we will reverse a decision based on M.R.Evid. 403 to exclude evidence only if the trial justice abused his discretion in so deciding, State v. Hinds, Me., 437 A.2d 191 (1981). Interpreting the decision below as one based on Rule 403, we find such an abuse of discretion. Both Dr. Bishop’s and Dr. Krueger’s testimonies were highly probative and more helpful than confusing to the jury. The record shows that Dr. Bishop would have testified that abused women often continue to live with their abusers even though beatings continue, and that a certain substrata of abused women perceive suicide and/or homicide to be the only solutions to their problems. This evidence would have given the jury reason to believe that the defendant’s conduct was, contrary to the State’s assertions, consistent with her theory of self-defense. We agree with the District of Columbia Court of Appeals, and various commentators, that where the psychologist is qualified to testify about the battered wife syndrome, and the defendant establishes her identity as a battered woman, expert evidence on the battered wife syndrome must be admitted since it ‘may have ... a substantial bearing on her perceptions and behavior at the time of the killing, ... [and is] central to her claim of self defense.’ Ibn-Tamas v. United States, 407 A.2d 626, 639 (D.C.1979). Since we cannot say beyond the reasonable doubt required to make the error harmless that this evidence would not have affected the jury’s consideration of the self-defense claim, State v. True, Me., 438 A.2d 460 (1981), defendant is entitled to a new trial.” 438 A.2d at 894.

¶156In a wrongful-death action by the deceased’s daughter, the defense introduced the testimony of a psychologist who was allowed to testify in considerable detail as to the emotional state of the defendant and the causes of her condition, based on his interpretations of the facts that she had related to him. He was allowed to testify to the role of the man in a battering situation to demonstrate that the defendant was an abused woman whose actions were caused by a long series of episodes of her being beaten by the victim. Morrison v. Bradley, Colo.App., 622 P.2d 81, 83 (1980), rev’d on other grounds, 655 P.2d 385 (Colo.1982).

¶157In State v. Baker, 120 N.H. 773, 424 A.2d 171 (1980), the defendant was charged with attempted first-degree murder of his wife, to which he pled not guilty by reason of insanity. Both the defendant’s wife and his daughter testified that he had physically abused them on numerous occasions. The defense called two psychiatrists who testified that the defendant was, in their opinion, legally insane at the time of the crime. In rebuttal, the State called an expert on domestic violence who testified that research did not indicate that mental illness was an important cause of wife-beating, and that, in his opinion, a marriage such as the defendant’s would probably fall within the contours of the battered-woman syndrome. The New Hampshire Supreme Court held that the testimony regarding the battered woman was admissible to rebut the defendant’s evidence of insanity, noting that many courts have held that testimony concerning the battered-child syndrome is admissible. State v. Baker, supra, 424 A.2d at 173.

¶158*1036In Ibn-Tamas v. United States, supra, the trial court refused to permit an expert to testify where a battered woman had pled self-defense. In reversing and remanding, the District of Columbia Court of Appeals observed that expert testimony is properly excluded if it will be addressed to a subject with respect to which the jury is just as competent to consider. Lampkins v. United States, D.C.App., 401 A.2d 966, 970 (1979). According to the Ibn-Tamasdecision, expert testimony is admissible if it treats with subject matter which is “beyond the ken of the average layman.” The court reviewed the facts of the case, analyzed the offer of proof, pointed out the difference between the battered-woman’s plea and the ordinary plea of self-defense and concluded that the expert testimony would have

“… enhanced Mrs. Ibn-Tamas’ general credibility in responding to cross-examination designed to show that her testimony about the relationship with her husband was implausible; and … it would have supported her testimony that on the day of the shooting her husband’s actions had provoked a state of fear which led her to believe she was in imminent danger (T just knew he was going to kill me’), and thus responded in self-defense.” 407 A.2d at 634.

¶159The testimony, said the court, would have supplied an

“… interpretation of the facts which differed from the ordinary lay perception (‘she could have gotten out, you know’) advocated by the government. The substantive element of the Dyas [infra] test —‘beyond the ken of the average layman’ — is accordingly met here.” 407 A.2d at 635.

¶160The court then concluded that the exclusion of the proffered expert testimony was reversible error.

¶161Thus, it can be readily seen that this kind of expert testimony in the form of either scientific or other specialized knowledge will assist the trier of fact, and the purpose of such testimony will be to give the jury a basis for considering whether the defendant suffered from the battered-person syndrome, not in order to establish a “special justification for patricide” 17 but as it relates to his or her claim of self-defense.

¶162The Ultimate Issue Invading the Province of the Jury

¶163“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Rule 704, W.R.E.

¶164In rejecting the offer of the expert’s testimony, the trial court said:

“I believe that the testimony and the opinions and conclusions of Dr. McDonald, as suggested by counsel, would invade the province of the jury.”

¶165In Comments, Wyoming Rules of Evidence 701-706, Opinion and Expert Testimony, 13 Land and Water L.Rev. 975 (1978), the author points out that the ultimate-facts rule has been rejected and criticized uniformly by all commentators. The author says:

“However, commentators have been uniformly outspoken in their criticism of the ultimate facts rule. Wigmore called it empty rhetoric and ‘one of those impracticable and misconceived utterances which lack any justification in principle’. McCormick said it was ‘unfairly obstructive’ and illogical. Weinstein called it ‘the cause of many foolish reversals and still more foolish appeals.’ And Morgan termed it ‘sheer nonsense.’ More specifically, the rationale for the rule was often questioned. As more than one commentator has pointed out, there can be no invasion of the province of the jury, for the jury has the power and the duty to judge the credibility of all witnesses, the weight to be given each opinion, and to reject outright any opinion which is inadequately supported.”

¶166*1037For the reason that the ultimate-facts rule proved to be a failure, this court has abolished the rule completely, providing the opinion testimony is helpful to the trier of fact and a suitable subject for the expert. See also, Tabatchnick v. G.D. Searle & Company, D.N.J., 67 F.R.D. 49 (1975).

¶167In Smith v. State, 247 Ga. 612, 277 S.E.2d 678, 18 A.L.R.4th 1144 (1981), the court had under consideration the question which asked whether an expert’s opinion regarding the “battered woman’s syndrome” was admissible where the defendant pled self-defense or was properly excluded on the basis that the expert’s opinion as to fear of a battered woman and this defendant in particular was the ultimate fact to be decided and hence invaded the province of the jury. Concerning this issue, and noting that the opinion of experts in battered-woman-syndrome cases had been received without argument, the court said:

“Concerning the rule that an opinion should not be allowed which would ‘usurp the functions of the jury’, Wig-more wrote in 1940 that it is so misleading and unsound that it should be entirely repudiated, and concerning the rule that an opinion should not be allowed ‘on the very issue before the jury’, Wigmore said that it is another erroneous test, impracticable, misconceived, and lacking any justification in principle. VII Wig-more on Evidence, 3rd ed., §§ 1920, 1921, pp. 17-19 (1940).

“Following Wigmore’s criticism, the rule was reexamined. Rule 409 of the Model Code of Evidence proposed by the American Law Institute in 1942 reads as follows: ‘An expert witness may state his relevant inferences from matters perceived by him or from evidence introduced at the trial and seen or heard by him or from his special knowledge, skill, experience or training, whether or not any such inference embraces an ultimate issue to be decided by the trier of fact....’

“Since 1942 there has been a trend to abandon or reject the rule with the result that now in a majority of states an expert may state his opinion upon an ultimate fact, provided that all other requirements for admission of expert opinion are met. …

“Rule 704 of the Federal Rules of Evidence which went into effect in 1975 provides that ‘Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.’ However, this rule eliminates a ground for exclusion, does not in and of itself provide for the admission of opinion testimony, and is qualified by other rules including Rule 702 which provides that: ‘If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.’ Thus, under the federal rules opinion testimony as to the ultimate issue is admissible if it will assist the trier of fact to understand the evidence or determine a fact in issue. United States v. Scavo, 593 F.2d 837, 844 (8th Cir.1979); Moore’s Federal Practice, Federal Rules of Evidence, 1981, Part 2, pp. 204-205.” 277 S.E.2d at 680-681.

¶168Following a full discussion of the issue, the court reversed the judgment of the trial court which excluded the testimony with this holding:

“We hold that the correct rule is as follows: Expert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman. [Citations.] See also Code Ann. §§ 38-1708, 38-1710. This holding is in accord with the modern view as exemplified by Rules 702, 704 of the Federal Rules of Evidence, supra.

“The trial court in this case applied this rule but found that the jurors could draw *1038their own conclusions as to whether the defendant acted in fear of her life. We disagree and find that the expert’s testimony explaining why a person suffering from battered woman’s syndrome would not leave her mate, would not inform police or friends, and would fear increased aggression against herself, would be such conclusions that jurors could not ordinarily draw for themselves. Hence we find that the expert’s opinion in this case was improperly excluded from the jury’s consideration.” 277 S.E.2d at 683.

¶169Since Wyoming has abolished the ultimate-facts rule and the issue in controversy was one where the opinion would have been helpful — in fact imperative to sensible jury resolution — it was error for the court to have rejected the testimony and opinion of Dr. McDonald for the reason that it embraces an ultimate issue to be decided by the trier of fact.

¶170The Hearsay Error

¶171In the course of rejecting the doctor’s testimony, the court said:

“THE COURT: Well, gentlemen, I don’t think it is admissible under the exception to the hearsay rule, because I think that the rule contemplates that somebody goes to a physician, doctor or psychiatrist, whatever, for treatment before he is involved in something, and that he cannot go after he is charged with a crime and then be treated for and consulted and examined for the sole purpose of having this doctor testify in a trial.” 18 Rule 803(4), W.R.E., provides:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

… # … Jfc

“(4) Statements for purposes of medical diagnosis or treatment. — Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

¶172The trial court concluded that statements made by Jahnke to Dr. McDonald in preparation for trial did not fall within the exception to the hearsay rule embodied in Rule 803(4).

¶173Rule 803(4) clearly encompasses statements made to a doctor for purposes of “medical diagnosis,” even though the doctor’s diagnosis was obtained solely, for use at trial. The Advisory Committee’s Note to the identical federal rule indicates that Rule 803(4), F.R.E., changes prior doctrine to the contrary:

“Conventional doctrine has excluded from the hearsay exception, as not within its guarantee of truthfulness, statements to a physician consulted only for the purpose of enabling him to testify. While these statements were not admissible as substantive evidence, the expert was allowed to state the basis of his opinion, including statements of this kind. The distinction thus called for was one most unlikely to be made by juries. The rule accordingly rejects the limitation.”

¶174The broad scope of Rule 803(4) was emphasized by the Court of Appeals in O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1088-1089 (2nd Cir.1978), where the plaintiff did not call treating physicians as witnesses, but called instead the doctor whom plaintiff consulted for litigation purposes more than four years after the accident. The court said:

“Prior to the adoption of the Federal Rules of Evidence, a non-treating doctor such as Dr. Koven would have been permitted to recite his patient’s statements to him, not as proof of the facts stated, but only to show the basis of his opinion. … The Federal Rules, however, rejected this distinction as being too esoter*1039ic for a jury to recognize.” 570 F.2d at 1089.

¶175It may be that the judge in the instant case held reservations about admitting a criminal defendant’s possibly self-serving statements to a psychiatrist. However, modern courts have generally held that statements by the accused to a psychiatrist hired for trial purposes come within Rule 803(4). United States v. Sims, 514 F.2d 147 (9th Cir.1975), cert. denied 423 U.S. 845, 96 S.Ct. 83, 46 L.Ed.2d 66; Kibert v. Peyton, 383 F.2d 566 (4th Cir.1967); Annot., 55 A.L.R.Fed. 689, § 5; 4 Louisell & Mueller, Federal Evidence § 444, pp. 610-612. Any concerns about the lack of candor of the defendant in relating information to the psychiatrist or about the speculative nature of the psychiatrist’s diagnosis may be developed through cross-examination and ultimately resolved by the jury.

¶176For the above reasons, and under cited authority, it was error to reject the proffered testimony as not coming within the Rule 803(4), W.R.E. exception to the hearsay rule.

¶177The Majority Opinion

¶178For the reasons previously outlined, it is my view that the majority opinion is in error in holding with the trial court that the doctor’s proffered testimony was inadmissible as a Rule 803(4) exception to the hearsay rule. Furthermore, and for all of the reasons indicated, the opinion is faulty in supporting the trial court’s holding the testimony not to be relevant to the defense of self-defense and would only be pertinent where the plea was insanity or diminished capacity, and I have explained my position on this point in detail. Given Rule 704, W.R.E., and authorities cited supra, it is error for the majority to acquiesce in the court’s rejection of the offer for the reason that the opinion would invade the province of the jury. I take issue with the majority’s abuse-of-discretion holding to the effect that the trial court did not abuse its discretion when it held the proffered expert testimony to be inadmissible. In this regard, I have undertaken to show, with numerous citations, that, since the battered-person syndrome does not fall within the life’s experience of the average juror, the exclusion of this kind of testimony is erroneous as a matter of law, and its rejection should therefore not be subject to an abuse-of-discretion consideration. If, however, this rule is said to be applicable, I would hold the court to have abused its discretion. In any event, in the case at bar, the trial court did not actually exercise its discretion because its rulings were made for legally erroneous reasons, i.e., hearsay, only relevant in an insanity proceeding — invasion of the province of the jury — the subject was within the understanding of the fact-finders without professional assistance, etc. See Chrysler Corporation v. Todorovich, supra.

¶179Having disposed of these various propositions — -at least to my satisfaction — I turn to that section of the majority opinion which treats with and upholds the trial court’s rejection of the proffered expert testimony on the ground that there was no self-defense testimony before the court when the offer was rejected. The majority reason that this is so because there was no “actual or threatened assault” evidence in the record and therefore the reasonableness of Richard Jahnke’s behavior was not in issue.

¶180The majority puts the proposition this way:

“ … * This record contained no evidence that the appellant was under either actual or threatened assault by his father at the time of the shooting. Reliance upon the justification of self-defense requires a showing of an actual or threatened imminent attack by the deceased(Emphasis added.) 682 P.2d at 1006.

¶181The opinion goes on to say:

“ … Absent a showing of the circumstances involving an actual or threatened assault by the deceased upon the appellant, the reasonableness of appellant’s conduct at the time was not an issue in the case, and the trial court, at the time it made its ruling, properly ex-*1040eluded the hearsay19testimony sought to be elicited from the forensic psychiatrist.” (Emphasis added.) 682 P.2d at 1007.

¶182These assumptions and conclusions, besides containing errors of law (discussed infra),20 either overlook the fact that the transfer-hearing testimony was made a part of the defendant’s offer of proof or they do not conceive that the testimony of Dr. McDonald in the transfer hearing contains such evidence of threat or assault as would call into question the reasonableness of the defendant’s behavior. Certainly the transfer testimony contains evidence of what Richard Jahnke as a battered person could have reasonably believed was an actual or threatened imminent assault thus calling into issue the reasonableness of his conduct — and, as the offer of proof would have shown, he did believe himself to be threatened and in the process of being assaulted when the shots were fired.

¶183As an example of the defendant’s perception of the assault and imminence of danger to both him and his sister — even though repetitive — it is to be remembered that the following was elicited on cross-examination at the transfer hearing:

“Q. (By Mr. Carroll) In other words, he told you what his plans were and how he effected his plans in expectation of the return of his father?

“A. [By Dr. McDonald] Yes. His -plans were to defend himself against his father. He thought that his father would beat him up again and beat up his sister, so that first of all he said he didn’t really know what he was doing when he went through the house putting the guns in various places. But then he had this fantasy that he was reminded, I think it was of Konan the Barbarian or something, I think he’d seen a film of this man protecting his home, where I take it he had weapons in every room. And so he, in a sense, was thinking that if something went wrong then there’d be a weapon to protect that particular room or he saw it—

“Q. When he said something went wrong, what did he think might go wrong, did he tell you?

“A. If his father fired at him, I take it.

“Q. Pardon me?

“A. If his father acted in a, you know, went on the rampage, that’s the way he put it. He thought that his father was armed when he went to the restaurant. I don’t think he knew whether he was or not, but he knew that often his father would take a firearm with him when he went out.

“He was afraid that his father was armed, and he was fearful that his father would thump him again when he got back. And so he made up his mind that he wasn’t going to let this happen again.

“Q. Did his father — Did he tell you his father made any aggressive acts toward him upon his return to the family home that evening?

“A. No, he didn’t — He didn’t make any aggressive acts other than the way he walked. So far as Richard was concerned, this was the way he walked when a beating was about to take place. He stomped. It reminded him of his father’s behavior before beatings. But that was his interpretation, sir.

“Q. Did he tell you that’s what provoked him into shooting his father through that closed garage door?

“A. I think that was the thing that, the factor that provoked the shooting.” (Emphasis added.)21

¶184*1041As I have noted, it seems clear to me that the majority misstate the Wyoming law of self-defense and the law of this case on self-defense when the opinion assumes that, for self-defense to be a viable protection in a criminal prosecution in this state, the defendant must be under “an actual or threatened assault” before the reasonableness of his conduct will raise a self-defense issue. As has been mentioned nn. 3, 4 and 6, the assault, the threat and the imminence of danger must only be of such a character as to create, in the mind of the defendant, a reasonable belief that the danger is imminent and that it is necessary to use deadly force against his assailant in order to protect himself from death or great bodily harm. Parker v. State, 24 Wyo. 491, 161 P. 552, 555 (1916); nn. 3 and 6, supra; and the given instruction on self-defense, supra.

¶185Perhaps this concept is best exemplified in our opinion which reverses the trial court in State v. Radon, 45 Wyo. 383, 19 P.2d 177 (1933). In that case, the following instruction was given:

“ ‘The jury is instructed that in order to excuse the defendant on the ground of self-defense, there must be some act or declaration at the time of the killing of the person on the part of the deceased to kill him or to do him great bodily harm. To constitute self-defense the belief or apprehension of danger entertained by the defendant must be founded on sufficient circumstances to authorize the opinion, in a reasonable mind, that the deadly purpose entertained by the deceased then existed, and the fear that it will at the time be executed.’ ” (Emphasis added.) 19 P.2d at 181.

¶186The court found this instruction and another instruction which held:

“ ‘The danger which will justify the killing of a human being must be actual, present and urgent, and appear to a reasonable mind to be actual, present and urgent’ ” (emphasis added), 19 P.2d at 181,

¶187to be reversible error, according to the following analysis:

¶188Referring to the first of these instructions, the court said:

“ … The first part of the instruction refers to declarations of the deceased at the time of the shooting. The defendant did not claim that the deceased made any such declarations at the time of the homicide and reference thereto was not in accordance with the evidence. The rule which the court, perhaps, had in mind in giving the instruction is that stated in 30 C.J. 64 as follows:

“ ‘But it is necessary that he (the deceased) shall have indicated by some overt act or hostile demonstration at the time of the killing a real or apparent intention to kill or inflict great bodily harm upon accused and thereby induced the latter to believe on reasonable grounds that he was in imminent danger and that it was necessary to kill and save himself.’

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“Some act, of course, had to take place to give the appearance of danger, and to give the defendant reasonable ground therefor. But an actual assault or attack on the defendant was not necessary, if the circumstances gave reasonable ground for apprehension of imminent danger. 30 C.J. 64. In the case at bar the deceased walked toward the defendant. He had a package in his hands, wrapped in paper. That, apparently, turned out to be a pair of gloves. Still, while there is no specific evidence of the size of the gloves, how the deceased held the package, and whether it gave the appearance that it contained a gun or other dangerous weapon, the defendant says that the attitude of deceased put him in fear, evidently intending to convey the idea, in his broken accent, that he thought that the deceased was carrying a deadly weapon, and we are not prepared to hold that, as a matter of law, in view of previous difficulties and threats, he might not have had reasonable ground to believe that he was in imminent danger, even though the deceased was not guilty of any actual *1042assault But the instruction given by the court — leaving out of consideration the reference to a ‘declaration,’ seems to require such actual assault, for to say that the deceased must have done some act to kill the defendant [emphasis in original] can mean nothing else than that he was then engaged in an attack which, if carried out, would have resulted in death or great bodily harm. The second sentence of the instruction does not modify the first, but treats of circumstances creating an apprehension of danger as a separate matter. This is also true of instruction No. 16, in which the court said:

“ ‘The danger which will justify the killing of a human being must be actual, present and urgent, and appear to a reasonable mind to be actual, present and urgent.’

“Here the jury were told, without the possibility of misinterpretation, that there must be not only apparent danger, but also actual danger, in order to justify the killing on the ground of self-defense. There was no actual danger in the case at bar. The deceased had no gun or other dangerous weapon with him. Hence the question of self-defense was substantially taken away from the jury by these instructions. That, we think, was prejudicial error. The theory in the case at bar was that there was an apparent danger, not actual danger. Where the evidence presents that theory, as in the case at bar, an instruction which limits the right of self-defense to actual or real danger alone is erroneous. 30 C.J. 377.” (Emphasis added.) 19 P.2d at 181-182.

¶189I must say parenthetically that I admit to some confusion with respect to the majority’s position on the law of self-defense in this case, because, as has been noted, the opinion says that there must be evidence of an “actual or threatened assault” before the reasonableness of defendant’s behavior may become an issue for the fact-finder where the accused urges self-defense. However, the majority, while refusing to embrace our historic self-defense rule as exemplified in Parker v. State, supra and State v. Radon, supra, undertake to support their theory of “actual or threatened assault” with a quotation from State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137, 139 (1981), where the Ohio Supreme Court said:

“In a trial such as this one, where the evidence raises an issue of self-defense, the only admissible evidence pertaining to that defense is evidence which establishes that defendant had a bona-fide belief she was in imminent danger of death or great bodily harm, and that the only means of escape from such danger was through the use of deadly force.” (Emphasis added.)

¶190Indeed, the Thomasrule is that for which I contend and it is the rule which is the law of this case according to the uncontested self-defense instruction, i.e., the defendant must have had “a bona-fide belief that [he] was in imminent danger.” This is different than saying that there must be an “actual or threatened assault” before the fact-finder may consider the reasonableness of the accused’s purported self-defensive behavior.

¶191It would, therefore, be my conclusion that, for all the reasons set out in the battered-person citations contained in this dissenting opinion, the majority opinion errs when it assumes that there was no self-defense evidence in the record at the time the offer was made, and I would also urge that the majority misstate Wyoming’s law of self-defense as well as the law of the case on that point. Parker v. State, supra; State v. Radon, supra; and the self-defense instruction given in this case, supra.

¶192Lastly, the majority opinion takes issue with the fact that the offer of proof does not meet the state-of-the-art criteria for the reception of battered-person expert testimony as set out in Dyas v. United States, D.C.App., 376 A.2d 827, 832 (1977), cert. denied 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977) and adopted by our Buhrle v. State, Wyo., 627 P.2d 1374*1043(1981). It is urged by the majority that it was not shown by Dr. McDonald’s testimony that the battered-person theory had progressed to that place in the scientific scheme of things where a reasonable opinion can be asserted by an expert as to how a battered person perceives the imminence of danger and responds thereto. The majority hold that once the offer of proof was rejected — for whatever reason — the defense team should have recalled the doctor at some future point in the proceedings in a further effort to establish the state-of-the-art requirements, failing which the offer was fatally defective for not having shown the court that the battered-person syndrome had reached adequate acceptance in the psychiatric medical community.

¶193In response, I suggest the following:

¶194This opinion has pointed out that the purpose of the defense offer of proof was to explain the battered-person syndrome— that Richard Jahnke was a battered person — and to explain how battered people perceive and respond to the imminence of danger. It would then have been a question for the jury to determine whether or not, as a battered person, the defendant behaved reasonably in the self-defense context. Counsel repeated this thought on numerous occasions during the offer-of-proof proceedings. He grounded his offer on the representation that the doctor would testify that Richard was a battered child, that battered people behave differently than those who have not lived with the battering experience and that he would explain the fear and anxiety complex which battered people have with respect to their battering assailants. This offer leaves the clear impression that the introduction of this evidence would be submitted for the purpose of aiding the jury in determining the reasonableness of Jahnke’s acts on the night in question. Even though the offer incorporated the transfer testimony for these purposes, the court denied the offer for these following reasons:

(1) Irrelevant since insanity was not pled;

(2) Did not fall within the exception to the hearsay Rule 803(4), W.R.E.;

(3) The testimony would invade the province of the jury;22

(4) No testimony has been submitted upon “the acceptance of the science of the battered child”;

(5) The subject is not one which requires explanation of an expert.23

¶195I suggest that it is judicial game-playing to say that, even though the court had already held that the doctor’s testimony was inadmissible because it was hearsay— that it would only be admissible in an insanity defense, that it invades the province of the jury, and that the subject was not of a nature which requires expert explanation, it was, nevertheless, necessary to prove the scientific acceptability of the battered-child syndrome in order to avoid a state-of-the-art error.

¶196What good would it have done? I can hear the judge saying to defense counsel upon the occasion of such proffered reof-fer:

Why are you taking up the court’s time with this kind of proof? I have ruled for a number of reasons that this testimony will not be admitted, no matter what the state of the art of the battered-child syndrome might be shown to be — the evidence is, counsel, inadmissible for the reasons stated, and I will not hear any further testimony on this subject.

¶197In my judgment, and as a practical matter, it would have been an exercise in futility to have belabored the subject further.

¶198Lastly, with respect to the state-of-the-art issue, I would hold that the testimony in question is being recognized and admitted in a majority of jurisdictions in this country because it is central to the defense *1044of the battered person who pleads self-defense — as is shown by the numerous citations of authority in this opinion — and therefore it was error as a matter of law to have excluded the testimony for the reason that there was inadequate foundation proof on this subject.

¶199Even if we were to assign the same importance to this issue24 that the majority does, this court is obligated, in my opinion, to remand the case to the trial court for the purpose of supplementing the record in this regard. Ibn-Tamas v. United States, supra.

¶200For the reasons stated, I would have held that the defendant did not commit error by not reoffering Dr. McDonald’s testimony on the state of the art of the battered-person syndrome.

¶201For the reasons set out in Justice Car-dine’s dissent — in which I join, and for the reasons set out in this dissenting opinion— in which he joins, I would have reversed and remanded for a new trial.