Wisdom v. State

• Decision Date: 12 May 1987
• Docket Number: 7 Div. 783
• Citation: 515 So.2d 730
• Parties: Sonny Arthur WISDOM v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 730

515 So.2d 730

Sonny Arthur WISDOM v. STATE.

7 Div. 783.

Court of Criminal Appeals of Alabama.

May 12, 1987.

Rehearing Denied June 9, 1987.

Certiorari Denied Oct. 30, 1987

Alabama Supreme Court 86-1229.

William H. Broome, Anniston, for appellant.

Don Siegelman, Atty. Gen., and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Sonny Arthur Wisdom was convicted of first degree burglary, first degree assault, and attempted sodomy in the first degree. He was sentenced as a habitual offender to consecutive terms of imprisonment for life without parole and two terms of life imprisonment. Three issues are raised on appeal.

I

Wisdom contends that the admission into evidence and the subsequent withdrawal from the evidence of a forensic evaluation report of his competency and sanity constitutes error.

This crime involves the nighttime burglary of an apartment and the sexual attack on the resident. The defense was insanity.

At trial, Beverly Bell, a psychologist at the Taylor Hardin Secure Medical Facility in Tuscaloosa, testified to the effect that Wisdom was not insane and was competent to stand trial. Over defense counsel's objection on the ground that it contained hearsay, the trial court admitted into evidence a copy of a forensic evaluation report on Wisdom. Prior to trial, copies of this report had been sent to the trial court, the district attorney, and the defense counsel.

The report contained the findings and opinions of Ms. Bell, who interviewed Wisdom at the hospital and who prepared the report. The report also contained the findings and conclusions of a psychiatrist at the Secure Medical Facility based upon his interviews with Wisdom. That part of the report should not have been admitted into evidence because it contained hearsay information. A psychologist's testimony concerning the results of psychological tests given to the accused by another constitutes hearsay. Brackin v. State, 417 So.2d 602, 605-06 (Ala.Cr.App.1982). See also Shorts v. State, 412 So.2d 830, 836 (Ala.Cr.App.1981). The fact that the hearsay evidence is contained in medical records or reports does not change its objectionable character. Lowery v. State, 55 Ala.App. 514, 518-19, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975). Although objections were made to the admission of the report, and should have been sustained, those objections were waived.

On direct examination, Ms. Bell testified about Williams' competency and sanity based upon her examination of him. On cross-examination, defense counsel elicited the hearsay information from the psychiatrist contained in the report. That information was, essentially, that the psychiatrist had diagnosed Williams as suffering from "alcohol abuse, adult anti-social behavior, and mixed personality disorder." Ms. Bell later testified that this "diagnosis was rendered by the psychiatrist, and I'm not able to say what he based that diagnosis on."

At the conclusion of Ms. Bell's testimony, the trial court allowed the State to withdraw the report finding that "[i]t has been offered and allowed to be introduced, but the Court finds that it has not been published to the jury at any time." Defense counsel objected and the court took the matter under advisement.

Then, after both sides had rested their cases, defense counsel renewed his objection to the report, and the following occurred:

"MR. BROOME [Defense Counsel]: Your Honor, at this point I would like to renew my objection to it again. That exhibit of Ms. Bell's report even contains several conclusions of law. She even states the law in the report. Not only is there hearsay--

"THE COURT: Wait, now. You're objecting to what now, to it being introduced?

"MR. BROOME: Yes, sir. After reading back over it this morning, I was going to consent to them withdrawing it, but I understand this morning they still want to offer it.

"THE COURT: If there is no objection to withdrawing it, that may be a different question. What says the state?

"MR. FIELD [District Attorney]: Judge, we don't have any objection to whiting out that portion of her report which is on the last page, the first paragraph on page 5, where the sentence reads, 'It should be noted that voluntary intoxication is excluded as a basis for an insanity defense.' I don't have any problems with just whiting that out.

"THE COURT: Is that your main objection or additional objection?

"MR. BROOME: Judge, the main objection is that it contains blatant hearsay and what Dr. Nagy's diagnosis was. I went back and reviewed the questions that I asked Ms. Bell regarding his testimony. I don't believe I ever actually asked her what he said. I think I asked her what his diagnoses were.

"THE COURT: So, you're agreeing that it should be withdrawn or you have no objection to it?

"MR. BROOME: No, sir.

"THE COURT: Do you want to renew your motion to withdraw it?

"Where we stand, yesterday I first allowed it to be withdrawn, and then I changed that ruling. That's where we stand. At this point, it's in.

"MR. BROOME: Judge, my main objection yesterday were questions that I asked regarding the report that I would not have asked if Your Honor had not let into evidence, but after looking back over the notes, I don't think the answers that were elicited were really hearsay from the lady other than what she said the ultimate diagnosis was.

"THE COURT: Are you withdrawing your objection as raised yesterday after having reviewed your questions, that you asked certain questions that you would not have asked had it not been allowed to be introduced?

"MR. BROOME: Yes, sir.

"THE COURT: All right. If you're going to withdraw your objections as stated yesterday, both objections, one, to the introduction and because you had asked certain questions based on material that was contained in it and the witness had been excused, and this morning you're telling the Court that you are withdrawing those objections, then, I will allow the state, if they so move, to withdraw Exhibit 13A from the offer into evidence.

"MR. FIELD: Your Honor, it's our understanding that if the defendant consents to withdraw that exhibit, if that's the case, the state so moves.

"THE COURT: The motion is granted, and it will not be introduced as an exhibit.

"(State's Exhibit Number 13A was withdrawn.)

"MR. BROOME: Your Honor, in your instructions to the jury--I feel like they'll ask if they're missing an exhibit or something--I wonder whether Your Honor should make some instruction that upon further review or arguments of the attorneys or something, the exhibit was withdrawn. I think they're going to have questions as to why that report is not there since they were told yesterday they could get it.

"THE COURT: It was allowed to be introduced, but it was never published. Do you want me to state to them that by agreement the exhibit will not be introduced?

"MR. FIELD: That suits me all right.

"MR. BROOME: It will probably eliminate a question that will come back."

It is obvious from this exchange that defense counsel expressly waived any and all objections to the introduction and withdrawal of the report. By specifically assenting to the proceedings through his counsel, Wisdom cannot now be heard to complain.

II

Wisdom argues that there exists a fatal variance between the pleading and the proof. The indictment charged a burglary involving the intent to commit rape. Wisdom contends that because the jury acquitted him of the attempted rape charged in count four of the indictment the State failed to prove that the burglary was committed by the same means charged in the indictment.

The evidence shows that around 2:00 on the morning of August 3, 1986, Wisdom broke through a glass door into the victim's apartment. The sixty-eight-year-old victim struggled with Wisdom in her kitchen and Wisdom, with "his penis out" of his pants, tried to get her into the bedroom. The...