Spruill v. Com., 791532

• Decision Date: 10 October 1980
• Docket Number: No. 791532,791532
• Citation: 221 Va. 475,271 S.E.2d 419
• Court: Virginia Supreme Court
• Parties: Charlie SPRUILL v. COMMONWEALTH of Virginia. Record

Page 419

271 S.E.2d 419

221 Va. 475

Charlie SPRUILL v. COMMONWEALTH of Virginia.

Record No. 791532.

Supreme Court of Virginia.

Oct. 10, 1980.

James A. Butts, III, South Hill, for appellant.

Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

COMPTON, Justice.

In this criminal appeal, we consider whether the trial court erroneously refused to admit certain testimonial evidence and whether the court misdirected the jury.

Defendant Charlie Spruill was convicted of rape and abduction, and sentenced to imprisonment for life and ten years, respectively. We awarded defendant an appeal from the June 1979 judgments of conviction.

On Friday, July 14, 1978, about 2:00 p. m., the victim was abducted at knife-point from a downtown parking area in Chase City, taken to a remote part of Mecklenburg County, and raped. On the date of the crimes, defendant was charged with the offenses and arrested. Upon the arrest, he signed a statement admitting the intercourse but claiming it was consensual.

Defendant was initially tried by the court sitting without a jury on October 18, 1978, and pleaded guilty to the charge of abduction and not guilty to rape. The court found defendant guilty of both offenses and ordered a presentence report. From a review of the report, the trial judge learned defendant had apparently experienced "serious mental problems since 1975." The court decided that defendant's mental history had not been "developed in depth at the (October) trial" and, accordingly, found defendant had not received a fair trial. Thus, in February of 1979, the court voluntarily declared a mistrial "in the interest of justice."

Upon the retrial, from which this appeal stems, defendant pled not guilty to both charges. During presentation of defendant's evidence, he offered the testimony of a psychologist and a psychiatrist over objection of the Commonwealth's Attorney. The prosecutor argued, without success, that because defendant had failed to plead not guilty by reason of insanity, he was precluded from offering psychiatric evidence. After defendant's psychologist and psychiatrist testified, the Commonwealth offered in rebuttal the testimony of a psychiatrist employed by the State. The first three issues on appeal arise from evidentiary rulings made by the trial court during the course of the testimony about defendant's mental condition.

I.

The psychiatric evidence offered by defendant, who was age 26 at the time of trial, showed that he had been hospitalized at Central State Hospital in Petersburg on three separate occasions during the three-year period immediately preceding the commission of the instant offenses. During the periods between hospitalizations, defendant had been counseled and had received psychotherapy and psychiatric treatment through the Mecklenburg Mental Health Services, located in Boydton, which served the community of defendant's residence. According to the testimony, defendant's mental condition was diagnosed as chronic schizophrenia, paranoid type.

During the direct examination of defendant's psychologist, Gregory L. Anderson, who was the Center Director of the Mecklenburg Mental Health Services, the witness was asked to express his opinion about defendant's mental condition on the date of the offenses and this colloquy occurred:

Q (by Mr. Butts, counsel for defendant) Would it also be your conclusion that at the time he was mentally ill?

MR. HARRIS (Commonwealth's Attorney): I object.

THE COURT: Is this a psychiatrist we are talking about?

MR. BUTTS: No, Your Honor, he is a clinical psychologist.

THE COURT: I don't think he is qualified.

MR. BUTTS: Very well.

THE COURT: I'm not ruling-you haven't seen fit to qualify him. I just wondered if he is or whether he considers himself one. That's a highly technical question you are asking.

MR. BUTTS: I can either try to qualify him or if Mr. Harris is going to object to it, I won't pursue it and I will put on the psychiatrist.

And defense counsel did not pursue that issue further.

On appeal, defendant argues the trial court committed reversible error in refusing to allow the clinical psychologist "who was thoroughly familiar with the defendant's history to testify as to the defendant's mental illness." We reject that contention. The defendant failed to object with reasonable certainty to the trial court's ruling that the witness was not qualified to give the opinion sought. Rule 5:21. Indeed, defendant acquiesced in the court's decision by responding, "Very well" to the court's statement and by saying he would not "pursue" the issue but would call the psychiatrist as a witness. On appeal, we will not entertain objection to a ruling which the protesting party assented to at trial.

II.

The defendant's psychiatrist, Dr. Henry Pope, was a South Boston specialist who had examined defendant in the local jail during the week before trial and who had reviewed defendant's medical records. During the course of his testimony, the witness agreed that, in summary, his opinion was that defendant was a schizophrenic, paranoid type; that such category covered "a multitude of types of mental problems"; and that he had not said defendant was insane or psychotic. Pope was then asked during direct examination whether on the day of the offenses "defendant had the capacity to appreciate the nature and consequences of any acts that he might have committed?" Upon objection by the prosecutor, the psychiatrist was examined out of the jury's presence. During that phase of the interrogation, defense counsel asked Pope whether on the day of the crimes defendant "was suffering from such mental disease or defect that he lacked substantial capacity either to accept the responsibility of his conduct or conform his conduct to the requirements of the law?" The witness responded, "Well, I couldn't say." Then counsel asked Pope whether there was a "possibility" defendant was insane on the day in question, to which he responded, "It's a possibility, yes." The trial court refused to permit the testimony to go to the jury, ruling the physician's response to the question was "purely speculative." The court noted: "He didn't say he was insane. He said it was a possibility, but that he couldn't say."

Defendant argues the court below erred in refusing to allow his psychiatrist "to testify as to the defendant's mental condition." We disagree. A medical opinion based on a "possibility" is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in "probabilities" and not "possibilities."

III.

The Commonwealth's psychiatrist, Dr. James C. Dimitris, who testified in rebuttal, had seen and examined defendant many times at Central State Hospital during the period from the onset of defendant's mental problems to the time of the second trial. For example, Dimitris, the Director of the Forensic Unit at Central State, had conducted a court-ordered examination of defendant before the first trial and reported in September of 1978

that even though (defendant) is basically a chronically ill individual (chronic schizophrenic) he is currently neither feebleminded nor insane and he is considered capable of participating in the necessary legal proceedings.

... In summary we would like to state that first, the patient is clearly able to understand and differentiate between right and wrong; secondly, he is able to stand trial and third; his physical condition is satisfactory....

Then, after the October 1978 trial and preliminary to sentencing, Dimitris, who did not testify in the first trial, was requested in a December 1978 court order to review defendant's Central State medical records and to report to the court the physician's "medical opinion as to the mental capacity of the defendant." In transmitting an attested copy of that order to the physician, the prosecutor wrote:

Both the Judge and I are concerned as to the proper disposition or penalty to impose upon this man due to his mental condition. We are concerned as to whether he should be sentenced to the penitentiary or whether he should be committed pursuant to Section 19.2-181 of the Code of Virginia. Before making a final decision in these cases the Judge ordered me to write to you and request a review of all the records in your hospital relating to Spruill's condition. We would like the benefit of your expert opinion as to whether Spruill should be treated as mentally incompetent and confined for treatment or whether he should be adjudged mentally competent and handled under a penitentiary sentence. ( ^* )

On December 13, 1978, the physician responded to the court-ordered request in a letter which is the focus of the present issue. The report, addressed to the trial judge, stated:

We have received your Court Order of December 11, 1978 for a review of the hospital records relating to the confinement and treatment of the above-named individual whose sentencing is pending in your Court.

Mr. Spruill was first admitted to Central State Hospital on a voluntary basis on May 16, 1975. This admission followed an incident when he was reported to have suffered a blackout and was involved in a motor vehicle accident as a result. On admission to the hospital he was reported as confused, with auditory hallucinations and blocking of his thought processes. He was found to be psychotic by the Staff and was diagnosed as Schizophrenia, Acute Schizophrenic Episode. He was released from the hospital one month later on a convalescent leave status with recommendation that he attend the mental aftercare clinic and continue on his medication. He was finally discharged from the hospital records September 16, 1976, after having spent another brief period in the...