State v. Wade

• Decision Date: 05 February 1979
• Docket Number: No. 22,22
• Citation: 251 S.E.2d 407,296 N.C. 454
• Parties: STATE of North Carolina v. Robert Edward WADE, Jr.
• Court: North Carolina Supreme Court

Page 407

251 S.E.2d 407

296 N.C. 454

STATE of North Carolina v. Robert Edward WADE, Jr.

No. 22.

Supreme Court of North Carolina.

Feb. 5, 1979.

Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Asst. Atty. Gen., Raleigh, for the state.

Glenn B. Bailey, Morehead City, for defendant-appellant.

EXUM, Justice.

Defendant's assignments of error raise a number of questions relating to the admissibility of evidence that he was insane at the time of the killings. We find that the trial court improperly limited testimony by a psychiatric expert concerning his examination, findings and diagnosis of defendant, and on this ground we order that defendant receive a new trial. For guidance of the court on remand, we will also discuss defendant's assignments of error regarding exclusion of evidence of hereditary insanity and declarations by defendant to third parties as to his state of mind.

The uncontradicted evidence showed that on 20 August 1977 defendant killed his wife and two children and then stabbed himself. Defendant did not deny that he committed the killings but instead tried to show that he was insane. To this end he produced evidence that he had been a good husband and father and a steady worker and that he had had a good reputation in the community. For some two or three weeks prior to the killings, however, he had been depressed and had problems with his job. Lastly, according to two psychiatrists who examined him, defendant's mental condition at the time of the killings was such that he did not know the difference between right and wrong.

The first psychiatric witness on defendant's behalf was Dr. Eugene Douglas Maloney, who was employed at the Neuse Mental Health Center and who was duly qualified as an expert in the field of psychiatry. Before the jury Dr. Maloney was permitted to testify that defendant was his patient ¹ and that he had seen him on three different occasions in 1977: 21 September, 30 September, and 4 November. He also testified about his method of establishing a rapport with and gaining defendant's confidence and about his method of examination. ² Finally after seven record pages of quibbling among the trial court, the district attorney, and defense counsel over the form of the question and the form of the witness' response, the doctor was barely permitted to tell the jury that in his opinion at the time of the killings defendant "was incapable on that night of distinguishing between right and wrong."

Most of Dr. Maloney's testimony took place out of the hearing of the jury in order for defendant to place into the record testimony to which objections were lodged by the state and sustained by the trial judge. In summary this testimony consisted of conversations Dr. Maloney had with defendant, his medical findings, and his medical diagnoses all of which led ultimately to his opinion regarding defendant's sanity in a legal sense. Dr. Maloney would have testified, had he been permitted, that defendant expressed ideas that on the day of the killings people were after him, that he was being watched, and that they wanted to "hurt me and my family." Defendant said further that just before the killings one of his children brought in a glass of something to drink and he "thought it was for me to poison myself." Defendant told Dr. Maloney that when he stabbed his wife, "I lost all senses at that time. I was protecting her, I didn't want them to hurt her. I was crying, they were going to hurt me and my family. Everybody was watching." With regard to stabbing himself defendant said, "They were not going to get my family because I had just killed them and there were not going to get me . . . for some reason I . . . went to the bedroom with my family and laid down so I could die with my family." Defendant then made similarly bizarre statements concerning a "pacemaker" which had been installed in his heart so that he could not die and would be able to stand trial, and to the effect that at Dorothea Dix Hospital "they took my glands out to keep me from mating with other people . . . they took my birthright so I wouldn't have to die, by taking away my glands."

Dr. Maloney would have further testified, had he been permitted, that on 4 November 1977 he found defendant to be "highly disturbed . . . dangerous to himself or others . . . angry, frightened" and that he "paced the floor, looked behind curtains, looked behind desks, looked behind file cabinets."

Finally Dr. Maloney would have told the jury, had he been permitted, that he diagnosed defendant as paranoid and psychotic. He would have explained "paranoid" as involving "delusions of persecutions" and a "delusion" as being "a false belief that cannot be changed by reason or logic." He would have explained a psychotic person as one who suffers "from delusions which I have defined, and hallucinations. Hallucinations being seeing things, hearing voices not there, feeling things that are not there."

We think all of this testimony was erroneously excluded to defendant's prejudice. The error is not cured by Dr. Maloney's being permitted to give his ultimate conclusion regarding defendant's ability to distinguish right from wrong. The defendant was entitled to have the jury know the bases for this conclusion as well as the conclusion itself.

Dr. Maloney's findings resulted from his personal examination and observation of defendant. His diagnosis resulted from this and listening to and analyzing defendant's conversation. It is a well-settled rule that an expert may give an opinion based on facts within his personal knowledge without resort to a hypothetical question. State v. DeGregory, 285 N.C. 122, 203 S.E.2d 794 (1974); 1 Stansbury's North Carolina Evidence § 136 (Brandis rev. 1973) (hereinafter Stansbury). Clearly Dr. Maloney's findings are admissible under this rule. Problems arise, however, when a physician's opinion is derived in whole or in part through information received from another, as Dr. Maloney's diagnosis was here, because of a second rule articulated in our cases that in general "an expert witness cannot base his opinion on hearsay evidence." Cogdill v. Highway Commission, 279 N.C. 313, 327, 182 S.E.2d 373, 381 (1971). Resolution of this conflict has been especially difficult in cases involving the physician-patient relationship, because communication between the two is often an essential, if not the only, way for the physician to form an intelligent opinion. ³

Cases in this area have dealt with two major issues. The first is the admissibility of the expert opinion when it is based on an out-of-court communication. The second is, assuming the opinion is admissible, to what extent the expert may repeat what was told him out of court in order to show its basis. Here we are faced with both issues. We conclude that Dr. Maloney's opinion, in the form of his diagnosis, was admissible. We also conclude that on retrial he may recount his out-of-court conversations with defendant in order to explain his diagnosis to the jury.

One of the earliest significant cases on the principles involved here was State v. Alexander, 179 N.C. 759, 103 S.E. 383 (1920). Defendant in Alexander offered into evidence the answers he had given an expert (a physician) during an examination from which the expert had formed an opinion as to defendant's sanity. The trial court allowed the expert to give his opinion but prevented him from recounting certain declarations by defendant. This Court, through Chief Justice Clark, affirmed, giving its view of the case as follows, Id. at 765, 103 S.E. at 386:

"His Honor in these rulings was drawing a distinction between facts drawn out in Doctor Hall's conversation with the defendant, which tended to show the state of defendant's mind and those which did not. Conversation with one alleged to be insane is, of course, one of the best evidences of the present state of his mind. If, however, there is incorporated in the conversation self-serving declarations which in themselves do not throw any light upon the present condition or the past condition of the man's mind, then these declarations are not admissible."

Because of the trial court's ruling, the court in Alexander was not squarely presented with the issue of the admissibility of an expert opinion based in part on out-of-court conversations. Insofar as admitting the conversations themselves was concerned, Alexander imposed a limit only to the extent that they "do not throw any light upon the present condition or the past condition of the (defendant's) mind."

In Penland v. Coal Co., 246 N.C. 26, 97 S.E.2d 432 (1957), a physician testifying at a workmen's compensation proceeding gave an opinion as to the plaintiff's physical condition. On cross-examination, however, he stated that he had discovered no objective symptoms and that his opinion was based on subjective statements by the plaintiff. ⁴ On appeal defendants contended that the opinion should have been disregarded and an award to plaintiff disallowed as not based on competent evidence. This Court disagreed, stating, Id. at 31, 97 S.E.2d at 436:

"As to this contention, the rule is that ordinarily the opinion of a physician is not rendered inadmissible by the fact that it is based wholly or in part on statements made to him by the patient, if those statements are made, as in the present case, in the course of professional treatment and with a view of effecting a cure, or during an examination made for the purpose of treatment and cure. 'In such cases statements of an injured or diseased person, while not admissible as evidence of the facts stated, may be testified to by the physician to show the basis of his opinion.' " Quoting, 20 Am.Jur., Evidence § 86 at 729.

Penland thus (1) allowed in evidence an opinion when it was reasonable to assume that the information upon which it was based was reliable and (2) held that testimony about that information was proper to show the basis for the opinion.

Subsequently, ...