Ex parte Frith

• Decision Date: 02 October 1987
• Citation: 526 So.2d 880
• Parties: Ex parte Johnny Hugh FRITH. (Re Johnny Hugh Frith v. State of Alabama). 86-903.
• Court: Alabama Supreme Court

Page 880

526 So.2d 880

Ex parte Johnny Hugh FRITH.

(Re Johnny Hugh Frith v. State of Alabama).

86-903.

Supreme Court of Alabama.

Oct. 2, 1987.

As Modified on Denial of Rehearing

and Opinion Extended March 18, 1988.

William A. North, Birmingham, for petitioner.

Don Siegelman, Atty. Gen. and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.

TORBERT, Chief Justice.

This Court granted certiorari to determine whether the Court of Criminal Appeals erred in holding that a letter written by a Bryce Hospital psychiatrist and sent to a defense witness was properly admitted into evidence as a business record at petitioner's trial on a rape charge.

The Court of Criminal Appeals' opinion contains a more detailed statement of the facts of this case, but the facts relevant to our review are as follows:

Johnny Hugh Frith ¹ was convicted of rape and was sentenced to life in prison under the provisions of Alabama's Habitual Felony Offender Act. He had a long history of mental illness, and his primary defense at trial was insanity.

Following his arrest in early July 1981 on the rape charge, Frith was sent to Bryce Hospital where he stayed until it was determined in 1983 that he was competent to stand trial. At his trial, his aunt, Mrs. Gladys Williams, testified that he had been going to Bryce Hospital since the 1960's. She also testified that Frith was on medication at the time of the alleged rape and that he had a violent disposition, particularly when he was not taking his medication. She characterized Frith as having mental problems.

Dr. Carl Tonitis, a psychologist at the East Side Mental Health Center in Jefferson County, testified that he saw Frith after he had been discharged from Bryce Hospital in 1983. Dr. Tonitis diagnosed him as being a paranoid schizophrenic and chronically mentally ill. He testified that in June of 1981 Frith would have been psychotic and not responsible for his actions. Dr. Tonitis also read from a progress note on Frith written by one of his staff members. The note stated that on June 30, 1981, two days after the alleged rape, Frith was showing "much disorganization in his conversation" and that he "realizes that when he is not taking his medication that he can become dangerous."

Donna Click, for 12 years a psychiatric social worker at the Jefferson County jail, testified that she had known Johnny Frith for twelve years and had evaluated him prior to his commitment to Bryce. She testified that Frith had been diagnosed as a paranoid schizophrenic and that she considered him to be severely and chronically mental ill. Click further testified that, although Frith had been committed to Bryce on several occasions and was mentally ill, at times he functioned "reasonably well" and was treated on an outpatient basis.

On cross-examination, Click testified that being psychotic does not make one more likely to commit a crime. She stated that some paranoid schizophrenics are capable of appreciating the criminality of their conduct. Click also testified that Frith had lucid intervals and that a psychotic would be capable of committing rape if he were having a lucid interval.

During the cross-examination of Click, the State was allowed to introduce into evidence a letter from a staff psychiatrist at Bryce Hospital. The letter, which was addressed to Click, reported on the mental condition of Frith at the time the alleged rape was committed. Over defense counsel's objection, Click read to the jury the following portion of the letter: "Johnny Rogers [Frith's alias] was probably suffering from a mental disease at the time of the offense charged. However, the mental illness did not in our opinion, diminish Mr. Rogers' [Frith's] criminal offense. Therefore, in our opinion, Johnny Rogers did possess a substantial capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law at the time of the particular offense charged."

On recross-examination, the State asked Ms. Click, "[I]f he [Frith] was found not guilty by reason of insanity and sent to Taylor Harden [Secure Medical Facility], they could let him go whenever they thought he was all right, is that right?" She responded, "From my understanding, yes, sir." Defense counsel made no objection to that question or to the response.

On appeal of his conviction, Frith raised two issues. The first relates to the admission of the contents of the letter that stated that the Bryce doctor and others did not believe that Frith was insane at the time of the alleged rape. The second concerns the testimony elicited from Click to the effect that, if found not guilty, Frith could be later released by mental health authorities if his condition improved. The Court of Criminal Appeals affirmed his conviction. We granted certiorari and now reverse.

Frith argues that the admission of the contents of the letter was illegal on several grounds. At trial, defense counsel objected to the admission of the letter on the grounds that the proper foundation was not laid for its admission as a business record. In his petition, Frith raises two other grounds: One, that admission of the letter deprived Frith of his right to cross-examine witnesses against him and thereby violated the United States and Alabama Constitutions, and, two, that the statement in the letter regarding Frith's mental condition at the time of the alleged rape constituted an impermissible opinion on a question of law.

The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial. State v. Holloway, 293 Ala. 543, 307 So.2d 13 (1975); Murray v. State, 494 So.2d 891 (Ala.Crim.App.1986); C. Gamble, McElroy's Alabama Evidence, § 426.01(11) (3d ed.1977). Therefore, due to petitioner's failure to object at trial on the two additional grounds asserted in his petition, those issues are not properly before this Court for consideration.

Under the Alabama Business Record Act, Code 1975, § 12-21-43, a properly authenticated business record is admissible in evidence when a foundation, as outlined in the Code, is laid by the proponent of the evidence. Section 12-21-43 requires that it be shown (1) that the record or writing was made as a memorandum or record of an act, transaction, occurrence, or event; (2) that the record was made in the regular course of business; and (3) that it was the regular course of business to make such a memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter. See also C. Gamble, McElroy's Alabama Evidence, § 254.01(3) (3d ed. 1977).

The reason for the business records exception to the hearsay rule is that once the requisite foundation is laid it is believed that the information contained in the record is sufficiently reliable to warrant the court or jury's consideration as to the truth of the recorded information. Neal v. State, 372 So.2d 1331 (Ala.Crim.App.1979), cert. denied, 372 So.2d 1348 (Ala.1979) (the very essence of admissibility of a business record is its probability of trustworthiness). Absent a proper foundation and authentication, such a record is simply not reliable and is subject to the general hearsay rule of inadmissibility.

The facts reveal that the State wholly failed to lay the requisite foundation for the admission of the Bryce psychiatrist's letter. As an initial matter, it should be noted that although the letter was introduced as a business record of Donna Click and not as a hospital record, it would not have been possible for the State to lay the proper foundation on either theory. See Ala.Code (1975), § 12-21-5.

On cross-examination of Click, the State established the following: (1) that Click received various reports on Frith while he was at Bryce Hospital; (2) that the records used by Click were kept in the normal course of her business as a psychiatric social worker; (3) that she received a letter from a Dr. Thompson, a Bryce psychiatrist, that described Frith's mental condition at the time of the alleged rape; and (4) that Dr. Thompson was a staff psychiatrist at Bryce and had examined Frith on at least one occasion while he was at Bryce. The Court of Criminal Appeals erred in holding that the foregoing facts satisfied the foundational requirements of the Business Record Act.

First of all, Click never testified that the letter was made in the regular course of her business as a psychiatric social worker. Obviously, she could not have so testified, because the letter was authored by a third party--a Bryce psychiatrist, who was not associated with Click's "business" in any way. For the same reason, Click did not and could not have testified that it was the regular course of her business to write such a letter at the time of such a psychiatric examination or within a reasonable time thereafter. Only the Bryce psychiatrist who authored the letter or another representative of Bryce Hospital could have testified to these foundational facts. Indeed, if such a person had so testified, then the State would have been required to lay the requisite hospital records foundation.

The dissent argues several grounds for the admission of the letter. As to the impeachment theory, we note that that theory was neither argued nor raised by the State at any time during the course of the trial or in its brief on certiorari.

The dissent argues that the letter was admissible as a learned treatise or "much as a learned treatise is admitted." The dissent correctly states the Alabama rule to be that a learned treatise referred to or relied on in direct examination may be admitted into evidence. C. Gamble, McElroy's Alabama Evidence § 258.01(3) (3d ed.1977). Although the dissent correctly relates from the record the facts that Click knew of Dr. Thompson, the author of the letter and knew that he was a Bryce Hospital psychiatrist, and the fact that she had spoken with him in...