Ex parte Wesley
Decision Date | 28 September 1990 |
Citation | 575 So.2d 127 |
Parties | Ex parte Ronald Harvey WESLEY. (Re Ronald Harvey Wesley v. State). 89-711. |
Court | Alabama Supreme Court |
Al Pennington, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson and William D. Little, Asst. Attys. Gen., for respondent.
After a jury had convicted Ronald Harvey Wesley of capital murder and recommended that he be punished by life imprisonment without parole, the trial court sentenced him to death by electrocution. The Court of Criminal Appeals affirmed Wesley's conviction and sentence. See Wesley v. State, 575 So.2d 108 (Ala.Crim.App.1989). We granted Wesley's petition for a writ of certiorari, pursuant to Rule 39(c), A.R.App.P. We reverse and remand.
Wesley was convicted of the intentional killings of Nikita Jackson and Lorraine Wesley. In support of his defense of legal insanity, Wesley presented the testimony of Claude L. Brown, M.D. (a psychiatrist), and C. Van Rosen, Ph.D. (a psychologist), both of whom testified that, at the time of the killings, Wesley was suffering from paranoid schizophrenia, was psychotic, and could not have appreciated the criminality of his conduct.
In rebuttal, the prosecution presented the testimony of Kamal Nagi, M.D. (a psychiatrist), and Harry Elbert McClaren, Ph.D. (a psychologist), both of whom testified that, on the date in question, Wesley could have appreciated the criminality of his conduct. The testimony of Dr. McClaren, to which at the sentencing hearing the trial court attached "great[er] significance" and "more weight" than he attached to that of Drs. Brown and Rosen, is, in pertinent part, as follows:
Neither the police reports nor the medical records upon which Dr. McClaren relied in order to formulate his opinion were in evidence. It is his testimony based on these reports and records that is at issue.
Brackin v. State, 417 So.2d 602, 606 (Ala.Crim.App.1982), quoting C. Gamble, McElroy's Alabama Evidence, § 110.01(3) (3d ed.1977). See Chinevere v. Cullman County, 503 So.2d 841, 843 (Ala.1987).
In Nash v. Cosby, 574 So.2d 700 (Ala.1990), we modified that traditional rule. In that case, we adopted a standard which allows a medical expert to give opinion testimony based in part on the opinions of others when those other opinions are found in medical records admitted into evidence. Nevertheless, our holding in Nash does not control the result of this case.
Brackin, supra at 606. (Citations omitted.) See Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So.2d 695 (1974). See, also, C. Gamble, McElroy's Alabama Evidence, § 130.01 (3d ed.1977).
Thus, in Nash we modified the Court of Criminal Appeals' holding in Brackin as it relates to the testimony of medical experts based on the opinions of others; but Nash has not changed the traditional rule followed in Alabama that the information upon which the expert relies must be in evidence. 1
There are recognized exceptions to this rule. We have allowed experts to testify regarding value, when that testimony was based in part on hearsay evidence. See Sidwell v. Wooten, 473 So.2d 1036 (Ala.1985); Southern Electric Generating Co. v. Howard, 275 Ala. 498, 156 So.2d 359 (1963); Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959); and Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541 (1930). The Court of Criminal Appeals has also recognized an exception where the expert is a deputy coroner who uses a toxicologist's autopsy report as part of the basis for his testimony. See Jackson v. State, 412 So.2d 302 (Ala.Crim.App.1982); Woodard v. State, 401 So.2d 300 (Ala.Crim.App.1981).
Welch v. Houston County Hosp. Bd., 502 So.2d 340, 345 (Ala.1987), quoting Thompson v. Jarrell, 460 So.2d 148, 150 (Ala.1984). (Emphasis added in Welch.) See, also, Romine v. Medicenters of America, Inc., 476 So.2d 51 (Ala.1985). There is no reversible error if the facts upon which the opinion is based are admitted into evidence after the expert has testified. Crawford v. Hall, 531 So.2d 874 (Ala.1988).
In this case, the reports and records upon which Dr. McClaren testified were not in evidence at the time he testified, nor were they subsequently admitted. Although a doctor may testify to statements made by a patient regarding that patient's medical history, if those statements were made during and for the purpose of treatment, Stewart v. Lowery, 484 So.2d 1055 (Ala.1985), we cannot assume that the records upon which Dr. McClaren relied did not contain more than a medical history related by Wesley to hospital personnel. Such is simply not the nature of the content of medical records. Thus, his testimony, based partly on those facts not in evidence is inadmissible. See C. Gamble McElroy's Alabama Evidence, § 110.01 et seq. "The source of our decision on this issue is the principle that insanity cannot be proven by hearsay evidence." Brackin, supra, at 606.
We note that other jurisdictions and the federal courts allow expert testimony on the issue of sanity based in part on hearsay so long as that hearsay is customarily relied on by experts in the field. See generally Annot., 55 A.L.R.3d 551 (1974); Annot., 175 A.L.R. 274 (1948); Fed.R.Evid. 703. Be that as it may, without legislation authorizing this, we will not change the traditional rule followed in Alabama, 2 particularly in a case in which a man has been sentenced to death.
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