Brown v. State

• Decision Date: 23 November 1992
• Docket Number: No. A92A0823,A92A0823
• Citation: 206 Ga.App. 800,427 S.E.2d 9
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

Page 9

427 S.E.2d 9

206 Ga.App. 800

BROWN v. The STATE.

No. A92A0823.

Court of Appeals of Georgia.

Nov. 23, 1992.

Reconsideration Denied Dec. 17, 1992.

Certiorari Denied April 8, 1993.

Cook & Palmour, Bobby Lee Cook, Kristina C. Connelly, Summerville, for appellant.

Ralph L. Van Pelt, Jr., Dist. Atty., for appellee.

ANDREWS, Judge.

Tim Brown shot and killed Terri Brown, his estranged wife, and Gary Sentell. He was charged with murder and convicted by a jury of two counts of voluntary manslaughter. At trial, Brown claimed he was legally insane when he shot the two. His sole enumeration of error on appeal is that the trial court erred by allowing the State's expert psychiatrist to render an opinion as to his sanity which was improperly based on hearsay.

To refute expert psychiatric testimony presented in support of Brown's insanity defense, the State presented testimony from a psychiatrist who examined Brown and stated that in his opinion Brown was not legally insane at the time of the shootings. The State's expert formed his opinion based on his own personal observations of the defendant, and on the conclusions reached by a psychologist who, at the request of the State's expert, personally administered and interpreted a battery of psychological tests given to the defendant to determine the existence of any mental illness, personality disorder, or organic brain disorder. The psychologist did not testify at trial, nor were the test results and conclusions drawn by the psychologist otherwise made a part of the trial record.

Generally, an expert cannot state his opinion based upon facts not within his personal knowledge which are not otherwise admitted in evidence. Stouffer Corp. v. Henkel, 170 Ga.App. 383, 386, 317 S.E.2d 222 (1984). In response to a hypothetical question, an expert may assume facts not within his personal knowledge, as long as the assumed facts are placed in evidence by the testimony of other witnesses or by other legal means. Daniel v. Parkins, 200 Ga.App. 710, 711, 409 S.E.2d 233 (1991). "On the other hand, an expert can give an opinion based upon facts which he personally observes. And where an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, upon the other's findings." (Citations and punctuation omitted.) Westbrook v. State, 186 Ga.App. 493, 496, 368 S.E.2d 131 (1988). Here, the State's expert psychiatrist had no involvement in the administration of the tests by the psychologist. Moreover, the record does not reflect that the opinion of the State's expert could be based solely on his personal observations or other facts in evidence. Rather, the record shows that the State's expert considered the conclusions drawn by the psychologist as an integral part of formulating his opinion. Compare Taylor v. State, 174 Ga.App. 900, 901, 331 S.E.2d 920 (1985) (expert's opinion independently based upon tests personally performed by the expert was properly admitted even though the expert testified that his opinion was also based on a test performed by someone else).

"It is the rule in Georgia that the opinion of an expert witness on the sanity of a person must be based on his own observation of facts personally known to him, or he must give his opinion on hypothetical questions based on facts supported by evidence in the case.... [The expert] may give an opinion based upon his own examination of a person, upon his observation of that person, or upon any state of facts, supported by some evidence in the case, which he assumes as true." Moore v. State, 221 Ga. 636, 643, 146 S.E.2d 895 (1966). "An expert may give an opinion upon the facts testified to by other witnesses, but not upon their opinions. A witness' opinion must be his own and he cannot act as a mere conduit for the opinions of others." (Emphasis in original. Citations and punctuation omitted.) Hyles v. Cockrill...