Henderson v. State

• Decision Date: 27 March 1974
• Docket Number: No. 1--873A147,1--873A147
• Citation: 159 Ind.App. 621,308 N.E.2d 710
• Parties: Leland W. HENDERSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 710

308 N.E.2d 710

159 Ind.App. 621

Leland W. HENDERSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1--873A147.

Court of Appeals of Indiana, First District.

March 27, 1974.

Harry L. Zerbe, Lawrenceburg, Charles A. Thompson, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

LOWDERMILK, Judge.

The defendant-appellant in this cause was charged with a violation of uttering a forged instrument pursuant to IC 1971, 35--1--124--1, Ind.Ann.Stat. § 10--2102 (Burns 1956).

Appellant filed a special plea of insanity setting up as a defense that he was of unsound mind at the time the offense charged was committed. Trial was to a jury, which found the defendant guilty of the crime charged and he was duly sentenced by the court.

Defendant-appellant timely filed this motion to correct errors which was by the court overruled.

The second issue which the appellant relies on for reversal is specification 11 of his motion to correct errors, which is in the words and figures as follows, to-wit:

'11. That the Court erred in refusing to allow defense witness Donald Schmits, a psychologist who was a defense witness on the insanity issue in the trial, to testify as to what he learned as the result of a family interview with the family of the accused which was a necessary and proper part of his examination of the defendant;'

We deem it unnecessary to set out the other specification on which appellant relies for reversal for reasons hereinafter set out in this opinion. The rest and remainder of the specifications of the motion to correct errors have been waived by appellant by his failure to argue the same in his brief, under Indiana Rules of Procedure, Appellate Rule 8.3(A)(7).

In the trial of the cause defendant-appellant called Dr. Donald Schmits, a psychologist, who was a professor at the University of Cincinnati, and qualified him as an expert to testify as to the sanity or insanity of the defendant-appellant.

When Dr. Schmits was asked if he had an opinion as to defendant's sanity at the time the alleged offense was committed, he answered by saying that before answering the question he should state his analysis of his interview with defendant's family for the purpose of clarifying and putting into perspective his ultimate conclusion as to defendant's sanity.

The State objected to the offered testimony on the ground the evidence was hearsay and the court sustained the objection.

The appellant vigorously urges the rule against hearsay does not require the exclusion of such evidence as the doctor offered in this case and that the exclusion of the evidence was prejudicial and reversible error.

Appellant points out that the expert testimony in the case at bar was not offered for the purpose of proving the truth of matters stated therein but rather, the evidence of the interview with appellant's family was offered for the sole and limited purpose of demonstrating the analytical basis upon which rested Dr. Schmits' ultimate opinion as to defendant's sanity.

After reviewing the history of the admission of evidence of expert witnesses in cases of this kind and considering the cases cited by the respective parties, together with much research of our own, this court has now determined that our courts have become more liberal in the admission of evidence of experts from days gone by to the present.

This is particularly true in the trial of a criminal cause where the special defense of insanity is properly brought before the jury.

Our Supreme Court discussed this point in the case of Twomey v. State (1971), 256 Ind. 128, 132, 267 N.E.2d 176, 179, as follows:

'Once a plea of insanity is offered by a defendant, all relevant evidence is deemed admissible. In Wilson v. State (1966), 247 Ind. 454, 461, 217 N.E.2d 147, 151, we stated:

'It has been repeatedly held that a plea of insanity opens wide the door to all evidence relating to the defendant and his environment. In many instances evidence would not otherwise be competent or material except for showing the mental condition or mental state of the defendant.'

The rule as laid down in Walter v. State (1935), 208 Ind. 231, 245, 195 N.E. 268, 274, is as follows:

'. . . The rule is that where witnesses give opinion evidence, the facts upon which they base their opinion may be shown in order that the jury may weigh the opinion in the light of the facts upon which it is based.'

In the case of Trinity Univ. Ins. Co. v. Town of Speedway (1965), 137 Ind.App. 510, 515, 210 N.E.2d 95, 98, the court determined that although the expert witness consulted with other individuals pertaining to the pertinent issue before the court, it did not render the expert witness's testimony hearsay. The court went on to say the following:

'. . . An expert is competent to judge the reliability of statements made to him by other persons and taking these statements made to him by other persons together with his own first hand observations comprises a sufficient basis for a direct expression of his own professional opinion as to the cost of repairing the street. . . .'

In the case of City of Evansville v. Rinehart (1968), 124 Ind.App. 164, 167, 233 N.E.2d 495, 498, this court approved the following contention which was made by the appellant:

'. . . where an expert witness has given his opinion, the basis upon which he has formed his opinion should also be allowed, and for that reason, it is an exception to the hearsay rule. . . .'

Jones on Evidence, 6th Ed. 1972, Vol. 2, p. 642, in speaking of this rule, said:

'But courts and rule makers have yielded to the pressures of expediency so as to recognize a relaxation of the exclusion of otherwise inadmissible hearsay, to the extent that it may be considered...