State v. Pendry, 13594

CourtSupreme Court of West Virginia
Citation227 S.E.2d 210,159 W.Va. 738
Docket NumberNo. 13594,13594
PartiesSTATE of West Virginia v. Parker Lee PENDRY.
Decision Date20 July 1976

Syllabus by the Court

1. In presenting testimony in a criminal trial, an expert medical witness should be permitted to state the facts or data upon which he bases his opinion, and this includes information available to him in the form of records or documents whose reliability has been reasonably established and which have been kept in the regular course of professional care or treatment of the defendant and are of a type reasonably relied upon by experts in the witness' particular field of expertise.

2. A trial court, in the exercise of its discretion regarding Voir dire examination of jurors by either the court or counsel, has the authority to utilize various procedures, including examination of a prospective juror out of the presence of other jurors, for the purpose of assuring an adequate exploration of matters reasonably related to the possibility of a challenge for cause and matters which are reasonably calculated to permit litigants and their attorneys to exercise their peremptory challenges on an intelligent and meaningful basis.

3. 'The defendant who raises the issue of his insanity at the time of the commission of the act carries the burden of proving that defense by a preponderance of the evidence, and it is error for the court to give an instruction which suggests, or imposes some different burden of proof.' Official Syllabus No. 3, State v. Myers, W.Va., 222 S.E.2d 300 (1976).

4. In a criminal prosecution, the State is required to prove beyond a reasonable doubt every material element of the crime with which the defendant is charged, and it is error for the court to instruct the jury in such a manner as to require it to accept a presumption as proof beyond a reasonable doubt of any material element of the crime with which the defendant is charged or as requiring the defendant either to introduce evidence to rebut the presumption or to carry the burden of proving the contrary.

Hostler & Shinaberry, Sterl F. Shinaberry, Charleston, for Parker Pendry.

Chauncey H. Browning, Jr., Atty. Gen., Fredric J. George, Asst. Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for the State.

WILSON, Justice:

On appeal by Parker Lee Pendry from a jury verdict returned on November 20, 1972, in the then Intermediate Court of McDowell County finding Pendry guilty of murder in the second degree, we reverse and remand the case to the Circuit Court of McDowell County for a new trial.

Pendry assigns numerous errors which raise substantial questions regarding (1) the admissibility of certain medical testimony offered by the State in opposition to Pendry's defense of insanity; (2) the trial court's abuse of discretion in restricting the defendant's Voir dire examination and refusing to excuse four jurors for cause upon motion of the defendant; and (3) instructions given on behalf of the State over the objection of the defendant and refused on behalf of the defendant upon objection by the State.

Although our reversal is predicated primarily upon errors committed in the giving of certain of the State's instructions, we will nonetheless consider all errors relied upon so that at a retrial of the case certain procedural and evidentiary problems may be forestalled.

On February 10, 1972, Pendry shot and killed his father-in-law, Cecil Hagerman.

The evidence indicated that Pendry and his wife had a long history of marital discord which Pendry attributed, at least in part, to interference by his in-laws in his domestic affairs.

On the night of the shooting when Pendry came home from work and found that his wife and children were not at home, he became distraught and made efforts to talk to his wife by telephone at the home of his father-in-law. When she refused to talk to him, he became more disturbed, took some shotgun shells from his own home, obtained a shotgun from his grandmother's home, proceeded to his father-in-law's home and endeavored to gain admission. The evidence shows that he was in an extremely emotional state. Upon failing in that effort, he cut the screen on the living room window of the Hagerman residence, broke the glass in the window, pulled the curtains down, and fired, killing Cecil Hagerman and wounding Florence Hagerman, his mother-in-law.

Within about 45 minutes following the shooting, Pendry was arrested at the home of his father and was taken to State Police Headquarters where he was then interrogated, after which he signed a confession, the voluntariness of which is not contested in this appeal.

At the April, 1972 Term of the then Intermediate Court of McDowell County, petitioner was indicted for murder. Thereafter, upon motion, he was examined as to his sanity by Doctors Murry and Castrodale of McDowell County, neither of whom was a psychiatrist; was thereafter examined at Weston State Hospital; and was further examined at his own request by Dr. David Wayne, a Board certified psychiatrist.

Doctors Murry and Castrodale reported to the court that, assuming the history of skull fracture which Pendry gave was legitimate, their impression was that Pendry had a moderate degree of mental retardation with a compulsion complex and an associated post-traumatic epilepsy of the petit mal type. They recommended that he be evaluated to determine if he should be permitted to stand trial.

Upon being sent to Weston State Hospital, he was examined and psychiatrically evaluated over a period of time, and a report was made indicating that Pendry was capable of standing trial and assisting his lawyer in preparing his case.

Upon Pendry's plea of not guilty, the trial commenced on November 16, 1972. The principal thrust of the defense which was presented was (1) that the defendant was not guilty by reason of insanity; and (2) that at the time of the incident, Pendry was operating under extreme agitation and heat of passion caused by the cumulative effect of the long-time interference by his in-laws in his domestic and marital relationship.

The psychiatric testimony on behalf of Pendry was that he was suffering from schizophrenia, chronic, undifferentiated type and that at the time of the shooting he did not know right from wrong and was psychotic.

In rebuttal, the State offered testimony by Dr. F. A. Salinquit, a staff physician at Weston State Hospital, and Dr. Adrian Villarin, Clinical Director of Weston State Hospital. Dr. Villarin testified to the effect that Pendry, at the time of the commission of the offense, knew right from wrong.


The defense urges on appeal that it was improper for the trial court to permit Doctors Salinquit and Villarin to testify from a staff report which contained, according to the defense, the opinions of others not called as witnesses; that no proper foundation was laid to permit the use of the report as a hospital record; and that Dr. Villarin's testimony was given in response to improper hypothetical questions, the answers to which asserted facts which were not in evidence.

We find no merit in any of these contentions.

The defense contends that the State offered no evidence establishing that the forensic staff notes from which Doctors Salinquit and Villarin testified were prepared in the course of their professional care or treatment of the defendant. The record does not sustain this argument. It appears that Dr. Salinquit saw Pendry, obtained a medical history from him and prepared a report regarding him. Dr. Villarin reviewed the report and personally examined Pendry. The evidence in the case makes it clear that the report which the doctors used in the courtroom was certainly one which was prepared at Weston State Hospital in the normal course of the examination of Pendry.

The defense asserts, in essence, that every person at Weston State Hospital who had anything to do with Pendry's examination, care or treatment would have to be independently produced as a witness before either Dr. Villarin or Dr. Salinquit could utilize the report in testifying as to any conclusions based in whole or in part on examination, tests, treatment, observations or conclusions of others.

This position is clearly not within the rule which we announced in State v. Myers, W.Va., 222 S.E.2d 300 (1976), and is not in accordance with the modern approach to the production of expert medical testimony.

For example, Rule 703 of the Federal Rules of Evidence, applicable both in criminal and civil cases, permits an expert to testify as to his opinion so long as the facts or data upon which he bases his opinion are of a type reasonably relied upon by experts in the particular field of his expertise. The notes of the Advisory Committee indicate that the purpose of the rule is to bring judicial practice into line with the practice of experts themselves when not in court. With specific reference to physicians, for example, the Advisory Committee points out that a physician in his own practice bases his diagnoses on many different sources of information, including statements made by patients and relatives, reports and opinions from nurses, technicians and other doctors, and upon x-ray and other records.

Illustrative of the rationale and legitimacy of expanding the utilization of hospital records and reports of tests and studies are United States v. Partin, 493 F.2d 750 (5th Cir. 1974); Tarvestad v. United States, 418 F.2d 1043 (8th Cir. 1969), Cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970); Smith v. United States, 122 U.S.App.D.C. 300, 353 F.2d 838 (1965), Cert. denied, 384 U.S. 974, 86 S.Ct. 1867, 16 L.Ed.2d 684 (1966); Alexander v. United States, 115 U.S.App.D.C. 303, 318 F.2d 274 (1963); People v. Ward, 61 Ill.2d 559, 338 N.E.2d 171 (1975); and Smith v. State, 259 Ind. 187, 285 N.E.2d 275 (1972), Cert. denied, 409 U.S. 1129, 93 S.Ct. 951, 35 L.Ed.2d 261 (1973).

We adhere...

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