State v. Boone , 302 N.C. 561 ( 1981 )

HUSKINS, Justice.

Defendant has grouped eight assignments of error and numerous underlying exceptions into one argument in which he contends the trial court erred in excluding evidence which tended to show he was legally insane at the time the crimes were committed. Defendant argues essentially seven different evidentiary rulings which we deal with seriatim.

The trial court excluded testimony by defendant’s father concerning defendant’s discharge from the army and the nature of his discharge. This evidence was properly excluded. Defendant’s father was testifying about defendant’s Exhibit No. 2, a letter which arrived at his home. The father was apparently attempting to testify that the letter was a medical discharge letter. The father had already testified, “I can’t read too good .... Someone read it to me.” Obviously, this witness was not in a position to testify about the letter and its contents. The writing itself was the best evidence of its contents and it was subsequently admitted into evidence. See generally Mahoney v. Osborne, 189 N.C. 445, 127 S.E. 533 (1925). Thus, the evidence of defendant’s “medical discharge” which defendant complains was excluded was in fact admitted.

Defendant’s father was also not allowed to testify about his observations of defendant’s acts in the past year. The answers to these excluded questions were not included in the record on appeal. Any error is waived by this omission. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. Fletcher, 279 N.C. 85, 181 S.E.2d 405 (1971). In any event, evidence of defendant’s behavior and mental state was admitted when defendant’s mother and sister testified. Defendant has failed to show any prejudice.

On cross-examination, the district attorney was allowed over objection to ask defendant’s father his opinion whether defendant knew right from wrong. Defendant’s father answered that “at times he knew the difference between right and wrong.” This evidence was properly admitted. In this State, lay opinion may be received concerning the mental capacity of a defendant in a criminal case. State v. Hammonds, 290 N.C. 1, 224 S.E.2d 595 (1976); State v. Potts, 100 N.C. 457, 6 S.E. 657 (1888); see generally 1 Stansbury’s N. C. Evidence § 127 (Brandis rev. 1973).

Deputy Sheriff Maurice Hayes was called by defendant to testify about an incident involving defendant after his arrest in this case. Deputy Hayes testified defendant had started a fire in the mattress in his cell and when deputies arrived at the cell, they found defendant waving his arms across the fire. Deputy Hayes’ statement that defendant “was totally unaware of what he was doing” was excluded by the trial court. This was error. Opinion evidence by lay witnesses and lay testimony reciting irrational acts prior or subsequent to the alleged offense is allowed in this State. State v. Hammonds, supra; State v. Potts, supra. The deputy should have been permitted to give his opinion of defendant’s mental state as well as relate the irrational act he observed. However, under the circumstances of this case, we find the ruling of the trial judge was not prejudicial. The admitted testimony by Deputy Hayes, defendant’s family and his expert witnesses placed before the jury a complete history and description of defendant’s mental condition. We are unable to discern any real prejudice to defendant resulting from the exclusion of this one statement. Compdre State v. Bundridge, 294 N.C. 45, 239 S.E.2d 811 (1978).

Defendant contends the most damaging error by the trial court was the exclusion of Dr. Gipstein’s answers to his hypothetical questions, and then allowing the State’s expert witness to answer a hypothetical question on rebuttal. Dr. Gipstein’s excluded opinion, which was preserved in the record, is as follows:

Confining my consideration to only the facts as you posed them to me in your hypothetical, I can say that the defendant might or could have been laboring under a mental illness at the time of the crime and might or could have not known the nature and quality of his acts. And even if he did understand the nature and quality of his acts, he might not have known they were wrong.

The State’s expert, Dr. Billy W. Royal, was allowed to testify that “I think assuming all those comments that you made I would assume the person was aware of his actions at that time.... Yes, I think that a person who did that would know the difference between right and wrong.” Our examination and analysis of the hypothetical questions reveal that defendant’s questions were properly excluded because of factual errors or unsupported hypotheses while the district attorney’s question contains no such errors.

When the relevant facts are not within the personal knowledge of the expert witness, they must, as a general rule, be testified to by other witnesses and then incorporated in a hypothetical question addressed to the expert. Where an expert witness has personal knowledge of some of the facts of the case, he may base his opinion partly on his personal observation or knowledge and partly on the factual evidence of other witnesses presented to him hypothetically. State v. Hensley, 294 N.C. 231, 240 S.E.2d 332 (1978). The hypothetical question should include only those facts supported by the evidence already introduced or those facts which a jury might logically infer from the evidence. The question should not contain repetitious, slanted or argumentative words or phrases. State v. Taylor, 290 N.C. 220, 226 S.E.2d 23 (1976); see generally 1 Stans-bury’s N. C. Evidence § 137 (Brandis rev. 1973). The trial court in applying these rules of evidence properly sustained the objection to the hypothetical questions asked of defendant’s expert psychiatrist.

Defendant twice posed a hypothetical question to Dr. Gipstein, which the doctor was not allowed to answer. Nothing would be served by quoting the questions in full in this opinion. Defendant in his brief concedes misstatements of fact in both questions. In the first hypothetical, Dr. Gipstein was asked to assume as fact “that Dr. McCall performed several psychological tests that revealed that the defendant suffered from simple schizophrenia; . . . that because of his lack of ego strength and severe schizophrenia, he does not have the capacity to distinguish right from wrong . . . .” Dr. McCall had in fact testified he did not know whether defendant knew the difference between right and wrong. Further, the jury could not logically infer this fact from the testimony of Dr. McCall. In fact, defendant makes a somewhat contradictory argument elsewhere in his brief that it was prejudicial error for the district attorney to attempt to elicit from Dr. McCall this very evidentiary fact. Defendant in that argument notes what the record reveals: Dr. McCall was not tendered for the purpose of giving an opinion on whether defendant knew right from wrong nor did he offer such an opinion. Objection to the question was properly sustained since it contained facts neither supported by nor logically inferred from the evidence.

The second hypothetical was a mere rephrasing of the original question and contains similar fatal defects. In the second question, as defendant concedes, there was a misstatement of the sequence of events in the robbery in question. Because of these errors in fact, the witness could not give an intelligent opinion on the mental capacity of defendant. It is not necessary that irrelevant facts be included in a hypothetical question, nor is it necessary that the relevant facts in evidence be repeated verbatim. State v. Taylor, supra. But in this case, the hypothetical questions required assumption of facts neither in evidence nor logically inferred therefrom. The objections were properly sustained.

By way of contrast, the hypothetical question asked of the State’s expert witness on rebuttal lacks this flaw. Objection to that hypothetical question was properly overruled. It appears defendant’s witness was qualified to answer a proper hypothetical question. The problem in this case involves the improper form of that question. Contrast State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979); see generally 1 Stansbury’s N. C. Evidence § 137 (Brandis rev. 1973).

In his second argument, defendant has grouped and brought forward three alleged errors in the instructions of the trial court to the jury. We find the questioned instructions to be free of prejudicial error.

In his charge to the jury on the crime of armed robbery, the judge used the terms fact and element interchangeably. For example, the judge stated “the crime of armed robbery is made up of seven separate facts.” It would aid clarity to say that the crime is made up of seven separate elements. However, no prejudice is shown. When the charge is construed as a whole, it is free of error on this point. The jury clearly understood the elements required to find defendant guilty of armed robbery. See State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976).

Defendant also contends prejudicial error was committed in the instruction, submission and determination of the issue whether defendant was “not guilty by reason of insanity.” The trial judge told the jury to consider first whether the State had met its burden of proving all of the elements of the crimes because it might be unnecessary to reach the question of sanity. He instructed the jury to consider the question of sanity once it determined defendant was guilty of the charged crimes. The issues submitted to the jury were (1) “does the jury find the defendant, Sterling Boone, guilty of kidnapping or not guilty by reason of insanity?” and (2) “does the jury find the defendant, Sterling Boone, guilty of robbery with a dangerous weapon or not guilty by reason of insanity?” The jury returned verdicts of guilty of both crimes. We see no error in this procedure. The trial judge’s instruction follows procedural guidance outlined in State v. Linville, 300 N.C. 135, 265 S.E.2d 150 (1980). The basic guidance given by that decision is that the jury should establish defendant’s guilt or innocence of the crime first and reach the insanity issue only if it first found defendant guilty of the crime. This procedure was followed by the trial court in the present case.

Defendant argues error in the kidnapping charge in that the jury was not allowed to determine whether the mitigating circumstances set forth in G.S. 14-39(b) existed whereby the punishment for kidnapping could be reduced. He contends a jury finding is required on whether the kidnapping victim suffered a serious injury. This same reasoning is the basis of his final argument which deals with the judgment of life imprisonment imposed for the kidnapping offense. Defendant’s argument was rejected in dicta in State v. Williams, 295 N.C. 655, 669-79, 249 S.E.2d 709, 719-25 (1978). In Williams, we said:

Normally, a jury need only determine whether a defendant has committed the substantive offense of kidnapping as defined in G.S. 14-39(a). The factors set forth in subsection (b) relate only to sentencing; therefore, their existence or nonexistence should properly be determined by the trial judge.

295 N.C. at 669, 249 S.E.2d at 719. We adhere to that reasoning in this case. The jury finds whether the defendant committed a kidnapping as defined in G.S. 14-39(a). The trial judge then pronounces sentence pursuant to G.S. 14-39(b). The life sentence was properly imposed.

No error-