State v. McGill
| Decision Date | 26 October 1966 |
| Docket Number | No. 1537,1537 |
| Citation | 101 Ariz. 320,419 P.2d 499 |
| Parties | STATE of Arizona, Appellee, v. Ronald David McGILL, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., Frank A. Parks, Asst. Atty. Gen., Phoenix, for appellee.
Lawrence C. Cantor, and Morton Sitver, Phoenix, for appellant.
Defendant was charged with the crime of robbery, a felony, with a prior conviction. At the trial, commenced on June 11, 1964, the defendant was convicted and sentenced to a term of not less than ten nor more than twelve years in the State Prison.
The facts taken in the light most favorable to upholding the verdict are as follows: On November 9, 1963, at about 6:00 P.M., the defendant entered the Maricopa Drug Company, in Phoenix, put something in the back of the pharmacist-manager, and demanded narcotics, which the pharmacist then produced. On November 11, 1963 the defendant was arrested at his mother's rented house, in which he and his wife lived. The arresting officers had neither a warrant for his arrest nor a warrant to search the premises. In the house, in which the defendant was arrested, the officers seized a brown sack containing narcotics, which were later identified as the narcotics stolen from the Maricopa Drug Company. At the time of his arrest the defendant appeared to be ill. Despite his condition he was questioned and made certain oral and written statements, which the trial judge determined, at a hearing in the absence of the jury, to be voluntarily given to the officers. The defendant pleaded not guilty by reason of insanity to the charge of robbery.
The defendant charges that the trial court erred in preventing defendant's witness, a psychiatrist, from giving an opinion as to the ability of the defendant to distinguish right from wrong, based in part upon a case history furnished by the defendant and by his counsel. While the hypothetical questions put to the psychiatrist may have been somewhat inept, it is obvious defense counsel was prevented from eliciting an opinion because it appeared the psychiatrist did not obtain all his information from treatment, but based his conclusion in part on a furnished case history, which the court held was incompetent as based on hearsay. In State v. Griffin, 99 Ariz. 43, 49, 406 P.2d 397, 401 (1965) we discussed this question. There we said:
Therefore the psychiatrist should be allowed to relate what matters he necessarily considered as a not as to indicate the ultimate truth thereof, but as one of the bases for reaching his conclusion, according to accepted medical practice.
The trial court's refusal here to allow the psychiatrist to give his opinion based in part on the case history he received from the defendant during an examination of the defendant by the witness was error.
The prosecutor in his summation to the jury referred to the defendant as 'an addict' and 'a dope addict'. An addict is one who has surrendered himself to 'something habitually or obsessively' (Webster's Seventh New Collegiate Dictionary). There was no competent evidence before the jury that the defendant in this case had habitually surrendered to drugs or that he had ever been convicted of a narcotics charge. See State v. Smith, 96 Ariz. 150, 393 P.2d 251 (1964). Without such evidence such a statement in a summation to the jury by the prosecutor was improper.
The witness, Dr. Harper, a resident physician at the Maricopa County Hospital, in his report of an examination of the defendant at the hospital following his arrest, stated 'I suspect this pt. (sic) is a narcotics addict, but cannot prove it at this time.' He testified that this was a tentative diagnosis which he did not later substantiate. Defendant urges that the exhibit containing Dr. Harper's tentative diagnosis was inadmissible. We agree. It was not a public record within the purview of the rule relating to admissibility of public records. State v. Stracuzzi, 79 Ariz. 314, 289 P.2d 187 (1955).
The only other evidence even tending to suggest addiction was the testimony of defendant's mother, Agnes McGill, who testified she 'had heard' her son had used narcotics. However she also testified he had not had any narcotics 'for the last two years.'
Just prior to the end of the trial the defendant's counsel moved for a continuance in order to allow, Barbara Jean McGill, wife of the defendant, who was in the hospital, to testify. Defendant's counsel avowed that her testimony would not only be corroborative of the testimony of one of the defendant's other witnesses,...
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Gaston v. Hunter
...may testify as to his expert opinion although this opinion is based in part on what may be characterized as hearsay. State v. McGill, 101 Ariz. 320, 419 P.2d 499 (1966)." 116 Ariz. at 168, 568 P.2d at It appears that the trial court also operated under the assumption that learned medical ar......
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State v. Bolton, CR-93-0086-AP
...was reversible error to comment on defendant's record when no evidence of prior convictions had been admitted); State v. McGill, 101 Ariz. 320, 321, 419 P.2d 499, 500 (1966) (holding that it was error to call defendant an "addict" where there was no competent evidence that he had used drugs......
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State v. Smith
...doctor may give expert testimony based in part on hearsay. State v. Treadaway, 116 Ariz. 163, 568 P.2d 1061 (1977); State v. McGill, 101 Ariz. 320, 419 P.2d 499 (1966). Moreover, we find that there was sufficient evidence, adduced through Dr. Cleary's testimony, to support the trial court's......
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State v. Rodgers
...instruction and indicated, inter alia, that even if the instruction were not proper, it was not reversible error. State v. McGill, 101 Ariz. 320, 419 P.2d 499 (1966), holds that when there is no evidence of flight, it is error to give the instruction. There is nothing in McGill to indicate ......