State v. Torres, 2

• Decision Date: 24 October 1980
• Docket Number: CA-CR,No. 2,2
• Citation: 127 Ariz. 309,620 P.2d 224
• Parties: The STATE of Arizona, Appellee, v. Ralph Bracamonte TORRES, Appellant. 2020.
• Court: Arizona Court of Appeals

Page 224

620 P.2d 224

127 Ariz. 309

The STATE of Arizona, Appellee, v. Ralph Bracamonte TORRES, Appellant.

No. 2 CA-CR 2020.

Court of Appeals of Arizona, Division 2.

Oct. 24, 1980.

Rehearings Denied Nov. 25, Dec. 23, 1980.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Jack Roberts, Phoenix, for appellee

Richard S. Oseran, Pima County Public Defender by Lawrence H. Fleischman, Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Judge.

Appellant, Ralph Bracamonte Torres, was convicted of aggravated assault involving infliction of serious physical injury, unlawful imprisonment with a dangerous weapon and endangerment. He was sentenced to five years on the aggravated assault charge, 1.5 years for unlawful imprisonment and time served on the endangerment charge, sentences to run concurrently.

Prior to trial, appellant moved in limine to preclude Dr. Allen Beigel, the psychiatrist who examined him, from testifying as to certain statements made by appellant to Dr. Beigel in the course of that examination. The trial court granted the motion and ruled that Dr. Beigel not be permitted to testify concerning appellant's statements that he was intoxicated during the incident, and directed the prosecutor to inform the psychiatrist accordingly.

At trial, defense counsel asked Dr. Beigel the following question on cross examination:

"Q. Now, there is some testimony that Mr. Torres was not intoxicated at the time of the offense; and in that regard, then, isn't it true that the fact that his abilities were compromised and would be due to something else?

A. My conclusion that his abilities were compromised were based upon my medical judgment that he was in fact intoxicated. That judgment was reached based upon Mr. Torres' own statements to me as well as statements contained in the police reports which I received. " (Emphasis added)

Appellant immediately moved for a mistrial and requested that the emphasized portion of the testimony be stricken. The trial court denied the motion. Appellant contends that the court committed reversible error when it denied his motion. We hold that it did not and affirm.

At trial Dr. Beigel testified on direct examination, without objection, to the following:

"Q. Now, in regard to your examination of Mr. Torres, was that-how was that conducted?

A. Mr. Torres came to my office at the Southern Arizona Mental Health Center on both occasions, and we talked. I asked him questions. He volunteered information very clearly and coherently to my questions. He was most cooperative. And that was essentially the way the examination was conducted on both occasions. No paper and pencil tests of any kind were given to him. No other physical examinations were performed on my part.

Q. Now, in addition to whatever Mr. Torres told you, did you also have some police reports and other documents relating to this case?

A. Yes.

Q. All right. Based upon that information you received, as well as your interviews with Mr. Torres, and your educational background and your line of work and so forth, were you able to form an opinion as to whether or not Mr. Torres on May 27, 1979 was suffering from a mental disease, namely acute alcoholic intoxication.

A. According to the diagnostic classification which psychiatry uses Mr. Torres was on that date suffering from a mental disease namely acute alcoholic intoxication."

There is essentially no difference between the latter testimony and that claimed to be inadmissible by appellant. The fact that Dr. Beigel stated that he based his conclusions upon statements made to him by appellant is not equivalent to testifying to the content of those statements. At no time during trial did Dr. Beigel state that appellant told him that he was drunk. Rule 11.7(b)(1) of the Arizona Rules of Criminal Procedure, 17 A.R.S., is not violated when a psychiatrist testifies generally as to the basis of his professional opinion. Cf., State v. Curry, 127 Ariz. 1, 617 P.2d 785 (1980) (rule is violated where psychiatrist testified that the reason he concluded that defendant knew the difference between right and wrong is that defendant said that he did.)

Assuming arguendo that Dr. Beigel's testimony did violate the rule, the error would be harmless in view of the fact that the evidence was merely cumulative. State v. Ramirez, 116 Ariz. 259, 569 P.2d 201 (1977); State v. Freeman, 114 Ariz. 32, 559 P.2d 152 (1976); State v. Magby, 113 Ariz. 345, 554 P.2d 1272 (1976). Appellant's own testimony was that from the time he left work until the next morning he had about two and a half to three six packs and two to three good sized, mixed drinks. In addition, his sister testified that he would have to drink approximately two six packs to become drunk.

Appellant's second contention is that the...