Smith v. State

• Court: Indiana Supreme Court
• Writing for the Court: HUNTER; ARTERBURN
• Citation: Smith v. State, 259 Ind. 187, 285 N.E.2d 275 (Ind. 1972)
• Decision Date: 31 July 1972
• Docket Number: No. 771S207,771S207
• Parties: , 55 A.L.R.3d 546 Billy Barnes SMITH, Appellant, v. STATE of Indiana, Appellee.

Page 275

285 N.E.2d 275

259 Ind. 187, 55 A.L.R.3d 546

Billy Barnes SMITH, Appellant, v. STATE of Indiana, Appellee.

No. 771S207.

Supreme Court of Indiana.

July 31, 1972.

Robert S. McCain and Harold W. Myers, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Billy Barnes Smith, appellant (defendant below), from a conviction for First Degree Murder. ^* Appellant was initially indicted on November 12, 1967, and after a period of time in which he was deemed incompetent to stand trial, he entered a plea of not guilty by reason of insanity. Appellant waived his right to a jury trial and in a trial to the court was found guilty on February 17, 1971. He received a sentence of life imprisonment. Appellant's Motion to Correct Errors was overruled and this appeal followed.

There is but one issue raised in this appeal--whether the testimony of two court appointed expert witnesses should have been excluded because it was based in part on information gained from hospital reports, the writers of which were not present in court to be cross-examined. Appellant claims the reports are hearsay which thus taints the expert opinions to such a degree as to make the opinions inadmissible.

The reports referred to were two reports made by staff members of the Richmond State Hospital. The two court appointed psychiatrists admitted that they relied in part on these reports. Each had personally examined appellant on two previous occasions.

Although medical reports containing observations and expert opinions relating to a defendant's sanity or insanity should not be admitted directly into evidence, they may be used to aid another expert in formulating his opinion as to the defendant's sanity. The function of an expert witness in a case concerning sanity or insanity is advisory in nature. He does not state a fact bur gives an opinion in order to aid the jury or trier of fact. The trier of fact must make the ultimate decision on this issue. See Hill v. State (1969), 252 Ind. 601, 251 N.E.2d 429. The reports are not accepted by the expert testifying as true facts but are examined by him to provide an aid in diagnosis.

'Thus, where, as here, an expert witness bases his conclusion as to the defendant's sanity on reports of other physicians, it is entirely proper that the jury know which opinions he credited, which he rejected, and why. As long as the jury is instructed that such hearsay opinions are being introduced solely to test the credibility of the expert witness and not to prove the truth of the matters contained therein, the use of such opinions for that limited purpose does not violate the confrontation clause of the Sixth Amendment.' United States v. Harper (5th Cir. 1971), 450 F.2d 1032, 1037.

See also United States v. Williams (5th Cir. 1971), 447 F.2d 1285.

We agree with the statement made by the Fifth Circuit in Birdsell v. United States (5th Cir. 1966), 346 F.2d 775, 779--780:

'This Court has held that opinions as to sanity contained in hospital records are not admissible under the Business Records Act, 28 U.S.C. § 1732, and that such an opinion is receivable only if the expert rendering it is made available for cross-examination. England v. United States, 174 F.2d 466, 468--469 (5 Cir. 1949); Millican v. United States, 252 F.2d 398, 404 (5 Cir. 1958). But that does not mean that the records of a hospital performing psychiatric investigations with respect to the symptoms recounted by the subject or the results of recognized psychological tests stand differently under the Business Records Act than do similar data concerning other forms of illness, see McCormick, Evidence § 290 (1954); Thomas v. Hogan, 308 F.2d 355 (4 Cir. 1962). While such material, unlike records of many physical symptoms, may be useless to a jury and be excludable on that ground, there is abundant authority that an expert witness who is available for cross-examination at the trial may use such records as the basis for an opinion without the proponent having to call every person who made a recorded observation. Travelers Ins. Co. v. Childs, 272 F.2d 855, 857 (2 Cir. 1959); Jenkins v. United States, 113 U.S.App.D.C. 300, 307 F.2d 637, 640--642 (1962); Alexander v. United States, 115 U.S.App.D.C. 303, 318 F.2d 274 (1963); Fitts v. United States, 328 F.2d 844, 847 (10 Cir.), cert. denied, 379 U.S. 851, 85 S.Ct. 96, 13 L.Ed.2d 55 (1964). With the increased division of labor in modern medicine, the physician making a diagnosis must necessarily rely on many observations and tests performed by others and recorded by them; records sufficient for diagnosis in the hospital ought be enough for opinion testimony in the courtroom.'

The types of records and...