Wesley v. State

• Citation: 575 So.2d 108
• Decision Date: 29 December 1989
• Docket Number: 1 Div. 863
• Parties: Ronald Harvey WESLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 108

575 So.2d 108

Ronald Harvey WESLEY v. STATE.

1 Div. 863.

Court of Criminal Appeals of Alabama.

Dec. 29, 1989.

Rehearing Denied Feb. 2, 1990.

James H. Lackey, Mobile, for appellant.

Don Siegelman, Atty. Gen., and William D. Little and Mary Elizabeth Culberson, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

On June 4, 1983, Ronald Harvey Wesley shot and killed his sister-in-law, Nikita Jackson, and his two-year-old daughter, Lorraine Wesley. He was convicted of capital murder and sentenced to death by electrocution pursuant to Ala.Code 1975, § 13A-5-40(a)(10). He raises three issues on this appeal from that conviction.

I

Wesley contends that the trial court committed error in allowing the prosecution's expert witness to state his opinion of Wesley's sanity at the time of the crime, when that opinion was based in part upon interviews with witnesses of the crime, upon Wesley's military and medical records, which were not introduced into evidence, and upon the tests and reports of other psychologists and psychiatrists.

Wesley's defense was legal insanity. At trial, he presented the testimony of both a psychologist (Dr. C. Van Rosen) and a psychiatrist (Dr. Claude L. Brown) tending to show that, at the time of the killings, Wesley was suffering from paranoid schizophrenia, was psychotic, and could not appreciate the criminality of his conduct.

In rebuttal, the prosecution also presented the testimony of both a psychologist (Dr. Harry Elbert McClaren) and a psychiatrist (Dr. Kamal Nagi). Dr. McClaren testified that he was a forensic psychiatrist; that he examined Wesley on several occasions at the Taylor Hardin Secure Medical Facility in 1984 and 1985, where he then served as chief of psychology; that he interviewed Wesley on August 17 and 18, 1988, in preparation for trial; that he reviewed the police file in this case; that he interviewed certain witnesses and surviving victims of Wesley's actions of June 4, 1983; that he reviewed Wesley's military records; that he reviewed the results of an examination by Dr. Rosen; and, that he reviewed Wesley's entire file from the Taylor Hardin Secure Medical Facility, "including the evaluation done by social workers, other psychiatrists, psychologists, nurses, physicians there."

The factual basis for Wesley's argument on appeal occurred during the district attorney's examination of Dr. McClaren. From the record:

"Q [District attorney]: Doctor, based on your expertise as a forensic psychologist, based on your evaluation of Ronald Wesley, based on you review of the entire record and your observations at Taylor Hardin, based on your review of the collateral data, which included the police reports, which neither Dr. Brown nor Dr. Rosen looked at, and the witnesses interviews which you did, but which again they did not do, do you have opinion within a reasonable medical certainty as to whether Ronald Wesley in June 4th, 1983 could appreciate the criminality of his conduct?

"MR. TOLER [defense counsel]: Your Honor, I object to the question. It's based upon numerous matters that are not in evidence, that--various hearsay statements--

"THE COURT: The only thing I see wrong about it, you're asking him about a medical certainty and he's not a medical doctor.

"To that extent, I sustain the objection.

"MR. GALANOS [district attorney]: All right. Well, let me rephrase the question.

"Q Based on all of the foregoing, witness interviews, review of police records, review of Taylor Hardin record, interviews with the Defendant, review of his records at Taylor Hardin, and your expertise, do you, sir, have an opinion as to whether or not Ronald Wesley on June 4, 1983, could appreciate the criminality of his conduct?

"MR. TOLER: Again I object to the question on the grounds that a number of the bases that Mr. Galanos is referring to, being the police reports, interviews with various and sundry witnesses, are hearsay and are not evidence in this court at this point and as such the opinion would be improper.

"THE COURT: Overruled.

"You can answer it.

"Q Doctor, do you have an opinion?

"A Yes, I do.

"Q What is your opinion?

"A I think that he could appreciate the criminality of his behavior on that day."

In his oral instructions to the jury, the trial judge stated:

"As I have said and as you know, expert witnesses have in fact testified in this case and have been permitted to express an opinion and to draw their conclusion. In passing upon the facts, again, you are not required to accept the conclusion or expressed opinions of expert witnesses, but you must determine for yourself the weight to be given to such testimony and evidence, when considered in connection with all the other evidence material to the issues in this case. Now, the witnesses who have testified in this case as experts, again, have expressed opinions based upon assumed facts which were set forth in hypothetical questions as presented by the lawyers to them. The weight to be accorded such is dependent entirely upon the truth of the material facts stated in these hypothetical questions. Before considering the opinions of the experts you should first examine carefully all the material facts stated in these hypothetical questions and be reasonably satisfied that they have substantially been proven to be true."

In dealing with this issue, this court would be remiss if it did not include the following facts. In his written order upon imposition of the death penalty, the trial judge attached "great significance to the credibility" of Dr. McClaren.

"Dr. McClaren bases his opinion that the defendant could appreciate the criminality of his conduct and conform it to the requirements of law on an array of data not utilized by Dr. Rosen and Dr. Brown. Dr. McClaren not only testified and interviewed the defendant, he reviewed the investigative reports and personally interviewed several of the key witnesses. For these reasons, the Court attaches more weight to the testimony of Dr. McClaren."

The traditional rule in Alabama "has been that an expert, in giving his opinion, cannot rely upon the opinions of others," because "such testimony is based upon what others have said and, consequently, constitutes hearsay." C. Gamble, McElroy's Alabama Evidence, § 110.01(3) (3d ed. 1977). "The opinion of a medical expert as to the sanity of a defendant in a criminal proceeding based partly upon the statements of third persons out of court is generally considered inadmissible." Annot., 175 A.L.R. 274 at 287 (1948). See also Free v. State, 495 So.2d 1147, 1159 (Ala.Cr.App.1986) (objection to psychiatrist's testimony on the ground that it was based on hearsay evidence of the members of the psychiatric evaluation team was without merit where the "objectionable question posed to Dr. Salillas was rephrased to conform to the observations and evaluations made specifically by Dr. Salillas").

"[W]itnesses, including medical witnesses, cannot testify to facts of which their knowledge is derived from the unsworn statements of others." Hurst v. State, 356 So.2d 1224, 1236 (Ala.Cr.App.1978) (psychologist not permitted to testify concerning what the record of the defendant's past medical history revealed). See also Drexler v. Seaboard System Railroad, 530 So.2d 754, 757 (Ala.1988) (expert testifying to the present value of future wages could not base his testimony on information he obtained by telephoning a library); Wang v. Bolivia Lumber Co., 516 So.2d 521, 523 (Ala.1987) (therapist's report could not be introduced into evidence through the testimony of a physician). In Welch v. Houston County Hospital Board, 502 So.2d 340, 345 (Ala.1987), the Alabama Supreme Court held that the opinion of the attending physician that the decedent was not given the wrong drug by the hospital "would be inadmissible, inasmuch as it is an expert opinion based on facts (i.e., hospital records and unverified statements of hospital personnel) not in evidence and not within Dr. Smith's personal knowledge." A psychologist is properly prohibited from testifying to the results of tests administered by another psychologist at the request of the witness-psychologist. Brackin v. State, 417 So.2d 602, 605-06 (Ala.Cr.App.1982).

"[W]hen a witness is duly qualified as an expert, ... then he may base his opinion upon either facts of which he has firsthand knowledge or facts, in evidence, which are assumed in a hypothetical question asked of him. His opinion must be based upon facts and not upon opinions or conclusions of others." Chinevere v. Cullman County, 503 So.2d 841, 843 (Ala.1987). "[I]t is axiomatic that an expert may base his opinion not only on facts of which he has firsthand knowledge, but also on facts that are assumed in hypothetical questions, Armstead v. Smith, 434 So.2d 740 (Ala.1983), provided that the facts, either known to the expert or hypothesized to him, are in evidence, Romine v. Medicenters of America [Inc.], 476 So.2d 51 (Ala.1985), or will come into evidence at a later time in the trial, Belcher v. Versatile Farm Equipment Co., 443 So.2d 912 (Ala.1983)." Phillips v. Emmons, 514 So.2d 1369, 1371 (Ala.1987). "[E]xpert opinions based on facts not in evidence or within the expert's personal knowledge are inadmissible." Id. at 1372. In Phillips, the Alabama Supreme Court held inadmissible the opinion of a state trooper as to the cause of an accident where "[h]is opinions were based in part on assumed mental processes and conclusions of both drivers that could not have been derived from his observations of the physical scene." Id. at 1371 (emphasis in original). However, it was specifically noted that "[o]n cross-examination, Trooper Myrick conceded that he did not form his opinion as to the cause of the accident based on conversations with the parties or witnesses to the accident." Id. at 1372.

It must be recognized that there is a "strong case law trend" toward permitting the admission of expert testimony based, in part at least, on hearsay. E. Cleary,...