State v. Reeves
| Decision Date | 06 October 1994 |
| Docket Number | No. 193A92,193A92 |
| Citation | 448 S.E.2d 802,337 N.C. 700 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Michael McGay REEVES. |
Malcolm Ray Hunter, Jr., Appellate Defender by Daniel R. Pollitt, Asst. Appellate Defender, Raleigh, and Rudolph A. Ashton, III, New Bern, for defendant-appellant.
Michael F. Easley, Atty. Gen. by Barry S. McNeill, Sp. Deputy Atty. Gen., for the State.
The defendant first assigns error to what he contends was an improper communication by the court with the foreman of the jury out of the presence of the other jurors. After the jury had been deliberating for approximately two hours, the judge had them returned to the courtroom at 5:10 p.m. He asked the jury if they would like to break for the evening or whether they wanted to continue their deliberation. At the request of the jury, the judge allowed the jury to return to the jury room to decide whether they wanted to continue deliberating. The judge told the jury at that time that he would have dinner brought to the jury room for them if they wanted him to do so. The jury then retired. The foreman returned to the courtroom and the following colloquy occurred:
At 6:25 p.m. the jury returned to the courtroom and rendered its verdict.
The defendant argues that the judge's communication with the foreman in regard to whether the jury wanted to continue their deliberations and whether they wanted food brought to them without the other jurors present was reversible error. He says, relying on State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985), that this violated his right to a unanimous verdict guaranteed by Article I, Section 24 of the Constitution of North Carolina. In Ashe, we held that it was reversible error not to bring the whole jury to the courtroom before hearing the foreman's request to be allowed to review certain testimony. In that case we said:
Our jury system is designed to insure that a jury's decision is the result of evidence and argument offered by the contesting parties under the control and guidance of an impartial judge and in accord with the judge's instructions on the law. All these elements of the trial should be viewed and heard simultaneously by all twelve jurors. To allow a jury foreman, another individual juror, or anyone else to communicate privately with the trial court regarding matters material to the case and then to relay the court's response to the full jury is inconsistent with this policy....
314 N.C. at 36, 331 S.E.2d at 657.
This case is distinguishable from Ashe. The judge's conversation with the jury foreman concerned whether the jury would break their deliberations and whether the jury would be furnished a meal. There was no discussion of matters material to the case which the foreman could have conveyed to the other members of the jury. Any error was harmless beyond a reasonable doubt. State v. Harrington, 335 N.C. 105, 436 S.E.2d 235 (1993).
This assignment of error is overruled.
The defendant next assigns error to the court's allowing the State to ask certain questions on cross-examination of Dr. Billy Royal, a psychiatrist appointed by the court to examine the defendant. The defendant called Dr. Royal as a witness. Dr. Royal testified that in his opinion the defendant suffers from substance and alcohol abuse. Dr. Royal also testified that in his opinion the defendant has a borderline personality disorder which is a significant illness that begins in early childhood, but may not manifest itself for a number of years. It features suicide attempts, losing control of one's self, having difficulty with relationships and a great many short term relationships and jobs and having problems with sexual identity.
Dr. Royal testified that in his opinion the defendant was also suffering with organic brain syndrome, provisional, which means the defendant may have something organically wrong with his brain. Finally, Dr. Royal testified that in his opinion the defendant suffered from sexual paraphilia, which was manifested by a long history of sexual difficulty, conflicts, problems and behavior. He testified that the defendant is very confused about his sexual orientation and has a huge conflict and huge amount of animosity at some deep level related to women. Dr. Royal testified further that the defendant could control his behavior when he was not consuming alcohol. Dr. Royal testified that in his opinion the defendant's behavior is such that at times he is not in control or does not have insight into what he is doing. Dr. Royal testified that one fact on which he based his opinion was that approximately eight months after the defendant had murdered Susan Toler, he kidnapped, raped and cut a woman in Virginia for which he was given two life sentences plus 110 years in prison.
During the cross-examination of Dr. Royal the following colloquy occurred:
Q. [Y]ou referred earlier, Dr. Royal, to an incident that occurred in the State of Virginia for which he was prosecuted. Were you provided with the facts of that occurrence by any source?
A. I was provided that information by [defendant], and I am not certain that I reviewed it otherwise.
....
Q. --who was a secretary in a park service office, who was a stranger to him raped her, sodomized her, and then cut her throat and left her for dead?
A. He told me that--I am not sure about the cutting her throat. He indicated she was cut and he left her. The terms left her for dead were never used or the concept was never used, but he--the other information he indicated to me, yes, sir.
....
Q. .... Did you also testify that [defendant] had related other acts of violence against women to you that you used as a basis for the opinions you have expressed to this jury?
....
A. ... [defendant] did in fact discuss two other incidents in which he's involved with assaultive behavior toward women.
Q. Did you use those or include those in your opinions ... in this case?
A. Yes, I did.
Q. Did they occur around this same period of time?
A. Yes.
Q. Were they in Virginia or North Carolina?
A. As I understand, they were in Tennessee.
Q. And what activity did they involve?
A. They involved two episodes occurring within 24 hours, as I understand it, of rape of two other women.
Prior to the defendant's resting his case, the court instructed the jury as follows:
You will recall that you have heard testimony concerning certain matters involving the defendant in Tennessee and in Virginia and you have heard testimony concerning the particular facts of events in Virginia concerning a park service employee, a secretary.
I instruct you now that this evidence may be considered by you only as you find it to bear upon the issue of the basis for Dr. Royal's opinion regarding the mental and emotional condition of the defendant. It may not be considered by you for any other purpose. It may not be considered by you as an aggravating factor in the case. Do all of you understand that instruction? Is there anyone who does not? Will all of you follow that instruction, understand and follow that instruction? Let me know that by just raise [sic] your hands, because if there are any questions about it, I need to know that.
Then I would indicate that the jurors understand and can follow the instruction.
The defendant contends it was error to allow this testimony by Dr. Royal as to other crimes. N.C.G.S. § 8C-1, Rule 705 (1992) provides:
The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless an adverse party requests otherwise, in which event the expert will be required to disclose such underlying facts or data on direct examination or voir dire before stating the opinion. The expert may in any event be required to disclose the underlying facts or data on cross-examination. There shall be no requirement that expert testimony be in response to a hypothetical question.
Although Dr. Royal testified that he used the evidence of the rapes and assaults in Virginia and Tennessee as facts on which he based his opinion, which would make them admissible under Rule 705, the defendant nevertheless says it was error to admit this testimony. He says the questions were asked not to test the soundness of Dr. Royal's opinion, but to put before the jury evidence that the defendant had committed other heinous crimes.
The defendant says that the testimony should have been excluded under N.C.G.S. § 8C-1, Rule 403 (1992)...
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...capacity to testify truthfully, it is best left to the fact-finder to determine whether he in fact did so.").[37] See State v. Reeves, 448 S.E.2d 802 (N.C. 1994) (finding no error where child was permitted to testify from step-mother's lap where trial court made findings as to the need for ......
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