State v. Gallegos, 13391

• Decision Date: 03 March 1982
• Docket Number: No. 13391,13391
• Citation: 316 N.W.2d 634
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Manuel Carlos GALLEGOS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 634

316 N.W.2d 634

STATE of South Dakota, Plaintiff and Appellee, v. Manuel Carlos GALLEGOS, Defendant and Appellant.

No. 13391.

Supreme Court of South Dakota.

Argued Jan. 10, 1982.

Decided March 3, 1982.

Jon R. Erickson, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Roberta Jean Earley, Spearfish, for defendant and appellant.

DUNN, Justice.

Appellant Manuel Gallegos appeals from a jury verdict finding him guilty of the crime of aggravated assault. We affirm.

During the afternoon of August 24, 1980, appellant attended a picnic which was sponsored by his employer. After leaving the picnic, he went to the hospital where his wife, Mrs. Gallegos, was employed. While Mrs. Gallegos was driving them home, she and appellant argued and appellant hit her. She stopped the car and attempted to flee. Appellant held her shoulder, but Mrs. Gallegos escaped from the car and ran across the street. Felix Carbajal was in his car nearby and observed this behavior. Carbajal stopped his car across the street and called the police. Meanwhile, appellant got out of the car, tried to lift it up, slipped, and rolled under the car.

Officer John Wainman and patrolman Dale Bruce arrived at the scene and saw appellant lying underneath his car. They approached the car and leaned over to help pull appellant out from under the car. Suddenly, appellant pulled out a knife and waved it back and forth toward Wainman. Wainman and Bruce jumped back to avoid being stabbed. Carbajal instructed appellant in Spanish to lay the knife down and appellant complied. Wainman secured the knife.

At trial, appellant pled not guilty and not guilty by reason of insanity. He introduced medical testimony of three physicians in support of his claim of mental illness at the time of the act. The State rebutted this evidence with the testimony of Dr. Ronald D. Franks, who stated that appellant was sane at the time of the incident.

Appellant contends that the rebuttal testimony of the State's expert witness, Dr. Franks, should have been excluded because it was based in part on the results of psychological tests taken by his assistant which were not admitted into evidence and his interview with Mrs. Gallegos which was not admissible under the spousal immunity doctrine. Appellant also contends that Dr. Franks should not have been allowed to refer to the content of his interviews with Wainman, Carbajal and Dr. Fahrni since they had previously testified and Dr. Franks' testimony would be repetitive. We disagree. Dr. Franks, a physician and psychiatrist on the faculty at the University of Colorado School of Medicine, testified that he diagnosed Gallegos as sane at the time of the alleged offense and not suffering from a mental illness. The State asked Dr. Franks to specify the data on which his opinions were based. Dr. Franks then described in detail appellant's past history, the results of psychological tests taken by his assistant, and his analysis of personal interviews conducted with appellant, Mrs. Gallegos, Wainman, Carbajal and Dr. Fahrni.

SDCL 19-15-4 provides that "[a]n expert witness may be required, on direct or cross-examination, to specify the data on which his opinions or inferences are based." These facts need not be admissible in evidence, if they are of a type reasonably relied upon by experts in the particular field in forming opinions upon the subject. SDCL 19-15-3; State v. Best, 89 S.D. 227, 232 N.W.2d 447 (1975).

In State v. Best, supra, we held that the opinion testimony of an expert was admissible even though it was based, in part, upon reports of others not in evidence but customarily relied upon by an expert in the practice of his profession. Here, Dr. Franks personally observed appellant for four hours. His diagnosis stems not only from the report resulting from his assistant, but also from his personal observations. "Practical necessity also demands that the physician rely on reports and tests made by others." 89 S.D. at 241, 232 N.W.2d at 455. Medical records compiled by psychological associates are generally relied upon by psychiatrists to form opinions and Dr. Franks' testimony should not be excluded because of his reliance on these test results.

Dr. Franks also relied on information he received during an interview with Mrs. Gallegos. In Henderson v. State, 159 Ind.App. 621, 308 N.E.2d 710 (1974), the Court of Appeals of Indiana held that an expert could testify as to his analysis of his interview with a defendant's family for the purpose of clarifying and putting into perspective his ultimate conclusion regarding the defendant's sanity. The court further stated that the opposing party "had the right to cross examine the doctor at any depth it might have desired as to the evidence he received from the defendant-appellant's relatives and by cross examination to determine how he considered and weighed it in his determination as to the sanity or insanity of the defendant-appellant." 159 Ind.App. at 626, 308 N.E.2d at 713. We agree with this analysis and find that it was not error for the trial court to admit Dr. Franks' testimony into evidence on the issue of sanity.

While testifying, Dr. Franks also stated that he relied on information received from his interviews with Wainman, Carbajal and Dr. Fahrni. Under SDCL 19-15-4, it was necessary for Dr. Franks to specify the data on which his opinion was based. Unless he repeated that portion of the interviews upon which he relied, the jury could not determine the weight to be given his testimony. The trial court did not err in admitting this testimony into evidence. ^*

Count II of the information charges that appellant "attempted by physical menace with a knife to put John Wainman in fear of eminent [sic] serious bodily harm ..." The judge's charge to the jury stated that appellant did "attempt by physical menace with a dangerous weapon to put another person in fear of eminent [sic] bodily harm ...." Because of the disparity between the information and the judge's charge to the jury, appellant contends that he was not convicted of the crime charged in the information. We disagree.

Since this issue was not raised at trial, appellant relies on the plain error rule. SDCL 23A-44-15 provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court." We apply the plain error rule cautiously and only in exceptional circumstances. State v. Vogel, 315 N.W.2d 321 (S.D.1982); State v. Brammer, 304 N.W.2d 111 (S.D.1981).

We do not believe that the circumstances herein rise to the level of plain error. Jury instruction number 15 sets forth the essential elements of Count II as: "That the Defendant attempted by physical menace to put John Wainman in fear of eminent [sic] serious bodily harm." This instruction also specified that the State must prove these elements beyond a reasonable doubt before the jury could return a guilty verdict. These elements are identical to the elements of the crime charged in the information. The jury instructions considered as a whole adequately set forth the applicable law, and appellant has not been prejudiced. State v. Westphal, 273 N.W.2d 155 (S.D.1978).

Appellant contends that the trial court erred in refusing to receive in evidence the testimony of one juror who would have stated that appellant was found guilty of the crime alleged in the judge's charge to the jury rather than the crime charged in the information. We disagree. SDCL 19-14-7 prohibits the trial court from receiving in evidence a juror's testimony regarding "any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith ...." The statute does allow a juror's testimony on the question of whether extraneous prejudicial information was improperly called to the jury's attention or whether outside influences improperly affected a juror.

The jury's understanding of the trial court's instructions and charge is a matter that inheres in the verdict and cannot be classified as extraneous prejudicial information which was improperly called to the jury's attention. Long v. Gilchrist, 251 Iowa 1294, 105 N.W.2d 82 (1960); Lambertus v. Buckley, 206 Neb. 440, 293 N.W.2d 110 (1980). After a jury has been discharged, the testimony of a juror may not be received to impeach a jury verdict on grounds which inhere in the verdict itself. Bergemann v. Mut. Service Ins. Co., Minn., 270 N.W.2d 107 (1978). The trial...