State v. Looney

240 S.E.2d 612 (1978) 294 N.C. 1

STATE of North Carolina
v.
Jasper David LOONEY.

No. 47.

Supreme Court of North Carolina.

January 24, 1978.

Rufus L. Edmisten, Atty. Gen., by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the State.

William L. Senter and Joe McLeod, Fayetteville, for defendant.

LAKE, Justice.

The defendant contends that the offense of conspiracy to commit a murder is a lesser included offense of being accessory before the fact to such murder and, consequently, the court erred in failing to require the State to elect the charge upon which it would proceed and in imposing sentences for both offenses. In this contention we find no merit. G.S. 14-5 provides:

"Accessories before the fact; trial and punishment.—

If any person shall counsel, procure or command any other person to commit any felony, * * * the person so counseling, procuring or commanding shall be guilty of a felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon; or he may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished. * * * Provided, that no person who shall once be duly tried for any such offense, whether as an accessory before the fact or as for a substantive felony, shall be liable to be again indicted or tried for the same offense."

In State v. Bass, 255 N.C. 42, 120 S.E.2d 580 (1961), quoting with approval from 22 C.J.S. Criminal Law § 90, this Court said:

"There are several elements that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them to commit the offense. (2) That he was not present when the offense was committed. (3) That the principal committed the crime."

In State v. Gallimore, 272 N.C. 528, 158 S.E.2d 505 (1968), speaking through Justice Higgins, we said:

"`A criminal conspiracy is the unlawful concurrence of two or more persons in a wicked scheme—the combination or agreement to do an unlawful thing or to do a lawful thing in an unlawful way by unlawful means. [Citing many cases]' State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334 * * *. The crime is complete when the agreement is made. * * Many jurisdictions follow the rule that one overt act must be committed before the conspiracy becomes criminal. Our rule does not require an overt act."

Thus, the actual commission of the contemplated felony, in this case murder, by the principal (Matthews) is an essential element of the offense of being an accessory before the fact to the murder. This is not an essential element of the offense of conspiracy. Consequently, one indicted for conspiracy to murder may not, upon that indictment, be convicted as an accessory before the fact.

Conversely, the reaching of an agreement is an essential element of the offense of conspiracy. It is not an essential element of the offense of being an accessory before the fact for one may counsel, command or encourage another to commit a crime which such other person then commits, without ever reaching an agreement with the first party that it shall be done. Thus, upon an indictment for being an accessory before the fact to a murder, one may not be convicted of conspiring to commit such murder.

It follows that the offense of conspiracy and the offense of being an accessory before the fact are separate, distinct crimes, which do not merge into each other and neither of which is a lesser included offense of the other. A person may, therefore, be lawfully convicted of and punished for both a conspiracy to commit a murder and being an accessory before the fact to the same murder. We so held in State v. Branch, 288 N.C. 514, 551, 220 S.E.2d 495, 520 (1975), cert. den., 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 where, speaking through Justice Copeland, we said:

"Accessory before the fact to murder is a lesser included offense of murder and has similarly never been interpreted as negating the separate offense of conspiracy. * * * It was not intended to relieve the party to murder who was an accessory before the fact from the penalty provided for conspiring with others."

This assignment of error is, therefore, overruled.

Matthews testified, after recounting the details of his killing of the defendant's wife:

"I recall being arrested at the Trailways Bus Station in the cafeteria. The police officers took me to the law enforcement center and I gave them a statement. I later entered a plea of guilty to second degree murder. I was sentenced to life imprisonment and I am now confined at Central Prison. I am in my second year of imprisonment.

* * * * * *

"After I gave that statement I was charged with first degree murder and was facing the possibility of the death penalty.

* * * * * *

"As a result of my testimony in this case the charges against me were reduced to second degree murder. I was allowed to plead guilty to a lesser offense than first degree murder. I was sentenced to life imprisonment. I have not been promised anything about being considered for parole if I testified in this case."

After the jury had been deliberating for a time, it returned to the courtroom and requested of the court "a reclarification of why the charge [against Matthews] was reduced from first degree murder." The court replied:

"Why the charge was reduced from first degree murder to second degree murder. The only way I can answer that is, I believe, that it's really not material to your determination of the facts in this case. There was, as I recall, some evidence that had some bearing on that question. There again, I cannot go into that and summarize what I recall the evidence was. Again, it is your duty to make that determination."

The jury then retired and resumed its deliberations. Thereafter, it again returned to the courtroom for a recess and before it again resumed deliberations the court instructed the jury:

"I have something I want to say about the question that was earlier put. The question put by the foreman of the jury earlier, as I recall it, dealt with why the witness Richard Stanley Matthews was allowed to plead guilty to second degree murder, and as I recall my answer at that time, I advised you that it was immaterial and that it was your duty to recall the evidence and to consider the evidence. I now correct that statement by instructing you that it is immaterial in this case that Richard Stanley Matthews pleaded guilty to second degree murder except that it is a factor that you may consider in determining whether to believe his testimony or not, and if you do believe it, in determining what weight you will give his testimony. And you may consider any evidence presented in the trial of this case as to how, when, or why he did plead guilty to second degree murder while he was charged with first degree murder if you find from the evidence presented that such was the case. Again, I instruct you that it is your duty to recall all of the evidence presented as it came from the various witnesses, and I cannot now recapitulate a part of what the evidence tended to show or allow a part of the record by the court reporter to be read back to you, and there are reasons for that which I will not go into in the instructions."

The defendant contends that these instructions by the court constituted an expression of opinion to the effect that the reason for Matthews' pleading guilty to second degree murder was immaterial. We find no merit in this assignment of error. This circumstance was, of course, as the court last instructed the jury, material upon the question of Matthews' credibility but not otherwise. The latter instruction of the court upon this point corrected the earlier inadvertent error and was a correct statement of law. Strong, North Carolina Index 3d, Criminal Law, § 168.1.

The State's witness Bradford testified that on one occasion while he was in the company of Richard Stanley Matthews on a Fayetteville Street, they met a man, whose appearance was similar to that of the defendant, and that, when so confronted by Matthews, the man's eyes "lit up," that is, "showed like he knew the man." The defendant now assigns as error the overruling of his motion to strike this testimony. There is no merit in this assignment. This is but the witness' shorthand description of the reaction of the other person to meeting Matthews. The emotion displayed by a person on a given occasion is a proper subject for opinion testimony by a non-expert witness. Stansbury, North Carolina Evidence, Brandis Rev., § 129.

There is likewise no merit in the defendant's Assignment of Error to the trial court's denial of his motion that the jury be sequestered during their deliberations. This was a matter in the discretion of the trial court. State v. Bynum and State v. Coley, 282 N.C. 552, 193 S.E.2d 725 (1973), cert. den., 414 U.S. 836, 94 S. Ct. 182, 38 L. Ed. 2d 72.

The defendant's Assignment of Error No. 6 is likewise without merit. It is that the court, in its charge to the jury, failed sufficiently to review the evidence solicited on cross-examination of the witnesses Matthews and Carolyn Brown. The law does not require recapitulation of all of the evidence in the charge of the court to the jury. Strong, North Carolina Index 3d, Criminal Law, § 113.1. Furthermore, the record does not show that any alleged omission in the court's recapitulation of the evidence was brought to the attention of the court prior to the jury's retirement to consider its verdict.

The defendant's Assignment of Error No. 7 to the denial of his motion to set aside the verdict and award a new trial for errors committed during the course of the trial was merely formal and requires no discussion.

The defendant's Assignments of Error, originally numbered 5, 8 and 10 have not been brought forward in his brief and are, therefore, deemed abandoned. Rule 28(a), Rules of Appellate Procedure, 287 N.C. 671, 741.

The defendant's first Assignment of Error is the one which he argues most earnestly in his brief. It relates to the denials by Judge McKinnon and by Judge Clark of his successive, pretrial motions that the court order a psychiatric examination of Matthews. The first motion, denied by Judge McKinnon, was "that a court order issue whereby he [Matthews] is to submit himself under proper supervision to a psychiatric examination by a psychiatrist not under the direct control of the State of North Carolina, and that a copy of that report be furnished to the defendant, through his counsel, prior to the trial of this action." The second motion, denied by Judge Clark, was that Matthews be required to undergo a psychiatric examination by a psychiatrist chosen by the defendant and at the defendant's expense. Judge Clark, after hearing the defendant upon this motion, found as a fact, which finding is not controverted, "that Richard Stanley Matthews received an examination at Dorothea Dix Hospital on March 10, 1975, and a copy of said report has been made available to defense counsel in this case." We find no merit in this assignment of error.

While Matthews' own indictment for this murder was pending in the Superior Court, the court, presumably upon motion of his counsel, ordered him committed to Dorothea Dix Hospital for an examination to determine whether he was competent to stand trial and whether he was able to know right from wrong and the nature and consequences of his actions at the time of the alleged crime. This report, which is set forth in the record, and which Judge Clark found was made available to the defendant's counsel prior to trial, shows the conclusion of the examining psychiatrist, Dr. Taylor, that Matthews was "without psychosis, not insane," and capable of cooperating with his counsel. It also shows the absence of any indication of "psychiatric disorder which would render the patient unable to know right from wrong or unable to know the nature and consequences of his actions." Dr. Taylor, the examining psychiatrist, testified as a witness for the defendant in the present trial. The record does not indicate any objection to or any adverse ruling upon any question propounded to Dr. Taylor by the defendant's counsel.

Stansbury, in his textbook on North Carolina Evidence, says:

"`The primary purpose of impeachment is to reduce or discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony in arriving at the ultimate facts of the case.' State v. Nelson, 200 N.C. 69, 156 S.E. 154 (1930). Any circumstance tending to show a defect in the witness's perception, memory, narration or veracity is relevant to this purpose. * * * Cross-examination may be employed to test a witness's credibility in such an infinite variety of ways that an attempt to list them would be futile. * * The existence of a mental or physical impairment which would affect the witness's powers of observation, memory or narration, may be shown in order to discredit his testimony. Thus it is proper to show that the witness is mentally deficient, Moyle v. Hopkins, 222 N.C. 33, 21 S.E.2d 826 (1942) * * *; State v. Armstrong, 232 N.C. 727, 62 S.E.2d 50 (1950) * * * that his memory is weak, or that he was intoxicated at the time of the events about which he has testified." Stansbury, North Carolina Evidence, Brandis Rev., §§ 38, 42, 44.

The defendant does not contend that the trial court rejected any evidence offered by him to discredit the testimony of Matthews or to show that, by reason of mental unsoundness, Matthews was disqualified to testify or that his testimony was not credible. He does not contend that the court erred in allowing Matthews to testify. In State v. Cade, 215 N.C. 393, 2 S.E.2d 7 (1939), this Court, speaking through Justice Barnhill, later Chief Justice, with reference to the testimony of a co-defendant in a trial for murder, said:

"There was evidence that the witness Leon Cody was a person of low mentality and had theretofore been confined in the insane asylum. There was further evidence that he knew right from wrong, and that he had the mentality of a child verying in age from 7½ years to 16 or 17 years. The defendant assigns as error the refusal of the court below to strike the testimony of this witness. The jury heard the testimony as to his mental condition and the court in its charge fully stated the defendant's contention that he was of such mentality that his testimony should not be given any weight or considered adversely to the defendant. Conceding that this witness was of low mentality, it was discretionary with the court as to whether it would permit him to testify. We find nothing in the record that tends to show any abuse of this discretion."

The defendant's contention is that he is entitled to a new trial because the court denied his pretrial motion for an order requiring Matthews to submit to a psychiatric examination by a psychiatrist to be selected by and compensated by the defendant. It is his contention that Matthews' testimony "was the key to the prosecution's case against the defendant," and, consequently, his credibility was a most important factor in the jury's determination of the defendant's guilt, which it was. He further contends that the extreme brutality of the killing shows that Matthews was not "mentally normal," that his subsequent recanting of his original statement is "evidence of some emotional or mental problem with direct bearing on his credibility" and certain conclusions in the report of Dr. Taylor, above mentioned, raise "serious questions about Mr. Matthews' psychiatric soundness." Therefore, he contends that he had a right to a court order compelling Matthews to submit to a further psychiatric examination designed to determine whether Matthews is a "psychopathic liar."

The defendant contends that the examination of Matthews at Dorothea Dix Hospital, above mentioned, was conducted by a psychiatrist employed by the State and he directs our attention to the statement of the Supreme Court of New Jersey in State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958), "[I]t is fundamentally unfair for one interested party to obtain an examination by self-selected experts and to oppose a granting of the same right or privilege to the other." This statement has no proper application to the present situation. Here, the examination of Matthews at Dorothea Dix Hospital was not made at the instance of the State for the purpose of building its case against this defendant. It was made in Matthews' own case for the purpose of determining Matthews' capacity to stand trial and his mental responsibility for crime. Furthermore, the examination was made by the staff of a hospital whose primary function is the care and treatment of insane persons. In such a situation the staff of the hospital is in the position of a witness for the court, not a witness for the prosecution. The implied charge of bias against the present defendant in the obtaining of that psychiatric examination has no foundation in fact.

This Court has not previously been called upon to determine the authority of a trial court of North Carolina to order a psychiatric examination of a proposed witness or to determine, if such authority exists, how such order is to be enforced. It is to be observed that the denial of the defendant's motion for such order by Judge Clark was not upon the ground that the court lacked the authority to make such order but upon the ground that, under the circumstances of this case, such order would not be issued.

Examination of decisions of courts in other states and of the Federal courts discloses that in a number of these jurisdictions some authority in the trial court to enter such an order is recognized, but its extent and the circumstances which justify its exercise are not matters as to which these courts have agreed.

The issuance of orders requiring a witness to submit to a psychiatric examination before testifying is a matter of relatively recent development. If it did not originate therein, it received its chief impetus in Dean Wigmore's pronouncement: "No judge should ever let a sex offense charge go to the jury unless the female complainant's social history and mental makeup have been examined and testified to by a qualified physician." 3 Wigmore, Evidence, § 924a. Notwithstanding our great respect for this eminent authority on the law of Evidence, this statement never has been and is not in accord with the law of this State and is, in our opinion, completely unrealistic and unsound.

Obviously, there are types of sex offenses, notably incest, in which, by the very nature of the charge, there is grave danger of completely false accusations by young girls of innocent appearance but unsound minds, susceptible to sexual fantasies and possessed of malicious, vengeful spirits. These are, however, but a small proportion of the sex offenses brought to trial in the courts of this State and, even as to these, our observation leads us to believe that the typical jury is not so naive in such matters as Dean Wigmore appears to have thought.

Our examination of the decisions of courts which have asserted the authority of a trial court to order a psychiatric examination of a proposed witness indicates that, in the earlier decisions, the practice was largely limited to cases of sex offenses and to examination of the alleged victim. Apparently, these courts were persuaded by the Wigmore view that adolescent females are particularly subject to mental unsoundness and, therefore, likely to be guilty of pathological perjury in connection with accusations of sexual abuse practised upon them. With the current rise in homosexual offenses and other recent sociological developments, it would seem reasonable to suppose that these courts would now apply the same rules to the alleged male victims of sex offenses.

The leading case upon the subject is Ballard v. Superior Court of San Diego County, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 P.2d 838, 18 A.L.R. 3d 1416 (1966). There the defendant, a physician charged with rape of a patient to whom he allegedly administered an anesthetic in order to prevent resistance, sought a psychiatric examination of his female accuser. The decision of the California court was that "although the trial court may in its discretion order a complaining witness in a sex violation case to submit to a psychiatric examination, the prosecutrix in the instant case should not presently be required to undergo such an examination." 49 Cal. Rptr. at 304, 410 P.2d at 840-41. (Emphasis added.) The Court, speaking through Justice Tobriner, said:

"A number of leading authorities [text books, law review articles and a report of the American Bar Association Committee on the Improvement on the Law of Evidence] have suggested that in a case in which a defendant faces a charge of sex violation, the complaining witness, if her testimony is uncorroborated, should be required to submit to a psychiatric examination.

* * * * * *

"The courts in this state, however, in cases not involving sex violations, have rejected psychiatric testimony as to the mental or emotional condition of a witness for purposes of impeachment.

* * * * * *

"We do not mean to suggest that psychiatric testimony of the mental and emotional condition of the prosecutrix must necessarily be admitted in every case. We recognize that psychiatric evaluation is not absolute but only relatively illuminating; its utility in the ascertainment of the prosecutrix' condition must depend upon its posture in the whole picture presented to the trial court. That court can properly determine in its discretion whether psychiatric testimony as to the mental and emotional condition of the complaining witness should be admitted.

* * * * * *

"[A] general rule requiring a psychiatric examination of complaining witnesses in every sex case or, as an alternative, in any such case that rests upon the uncorroborated testimony of the complaining witness would, in many instances, not be necessary or appropriate. Moreover, victims of sex crimes might be deterred by such an absolute requirement from disclosing such offenses.

"Rather than formulate a fixed rule in this matter we believe that discretion should repose in the trial judge to order a psychiatric examination of the complaining witness in the case involving a sex violation if the defendant presents a compelling reason for such examination.

* * * * * *

"We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.

* * * * * *

"The complaining witness should not, and realistically cannot, be forced to submit to a psychiatric examination or to cooperate with a psychiatrist. In the event that the witness thus refuses to cooperate, however, a comment on that refusal should be permitted." 49 Cal. Rptr. at 310, 410 P.2d at 846-49. (Emphasis added throughout.)

It will be observed that the law of this State differs from that of California, in general, as to the admissibility of properly obtained evidence of a witness' psychiatric abnormalities. Here, we are not concerned with the admissibility of such evidence, but with how it may be obtained.

In State v. Franklin, 49 N.J. 286, 229 A.2d 657 (1967), the question arose in the review of a conviction for murder unrelated to a sex offense. A witness for the state refused to submit to a psychiatric examination. The defendant's motion for an order compelling her to do so was denied by the trial court. The Supreme Court of New Jersey said:

"There can be no question of the power of the court to order such an examination. [Citing State v. Butler, 27 N.J. 560, 604, 143 A.2d 530 (1958)]. We believe such an examination should have been ordered here." Franklin, 229 A.2d at 658.

The witness in question in this New Jersey case was an adult woman alcoholic who had previously been committed to mental institutions because of her heavy drinking. The Supreme Court remanded the matter to the trial court with instructions that the trial judge direct the witness to submit herself to a psychiatrist for a psychiatric examination, that the court should take the testimony of the psychiatrist and, thereupon, report to the Supreme Court as to whether he found the witness competent and, if so, to comment upon whether such further evidence could have changed the result of the trial. The trial judge, following this direction, reported to the Supreme Court that he found such additional evidence would not have affected the outcome of the trial. On the second appeal, State v. Franklin, 52 N.J. 386, 245 A.2d 356, 363 (1968), the Supreme Court of New Jersey concluded that the trial judge "in cutting short the defense counsel's cross-examination of Miss Pitts when he sought to affect her credibility, visited substantial prejudice on defendant," observing that the jury did not have the benefit "of what we now know of [the witness'] drinking habits, the physical and mental effects of alcohol upon her (including hallucinating), and her hospital admissions, so that it could reach an informed judgment as to whether her testimony was to be believed." Consequently, the Supreme Court on the second appeal reversed the conviction and ordered a new trial in which the defendant would have the "fullest opportunity to develop all available facts relating to [the witness'] drinking on the night of [the alleged offense] and prior there to, the history of her addiction to alcohol and the effects which drinking had upon her, including the need for institutional treatment."

Had the Franklin case arisen in this State, it would clearly have been proper for defense counsel in cross-examining the witness, or by offering through other witnesses evidence, otherwise admissible, to impeach her credibility by showing her drinking habits and past commitments to institutions on that account. This, of course, is an entirely different matter from requiring the witness to submit to a psychiatric examination against her will.

Likewise, in State v. Butler, 27 N.J. 560, 143 A.2d 530 (1958), the question arose in a trial for homicide unrelated to a sex offense. The witness was a participant who testified for the state against the defendant. Speaking through Justice Francis, the Supreme Court of New Jersey said:

"Coleman's [the witness] mental competency and credibility were of transcendent importance.

"Prior to trial both the State and the defense learned that Coleman had been a mental patient in the Crownsville State Hospital in Maryland.

* * * * * *

"In advance of the trial date defendants applied to the court for an order for psychiatric examination. The State, aware of Coleman's impending appearance as its witness, arranged for such an examination in its own interest, with his consent and that of his counsel. The prosecutor opposed the defendant's motion and Coleman's attorney indicated that he would not consent. * * * The court denied the request, declaring * * that he would give the defendants such portions of the reports of the State's doctors as would show their opinion on this subject. * * * However, they do not appear to have received copies of any portions of the medical reports. The undisputed facts are that the reports were privately submitted to the trial court, who considered them ex parte and concluded that Coleman was competent to testify. He decided also that the defendants' motions for copies of the reports should be denied.

* * * * * *

"When reasonable ground for doubt as to a person's mental capacity as a witness becomes known to the parties and to the court, and lives may depend upon his testimony, the proper administration of justice in the public interest ought to stimulate a cooperative voluntary effort to establish a means of mutual solution of the problem. A variety of methods suggest themselves: agreement (a) that the court may appoint an impartial expert, (b) that each party may select one expert and the court a third, for joint examination, or (c) that each party may engage the services of an independent expert. * * * In such a situation it is fundamentally unfair for one interested party to obtain an examination by self-selected experts and to oppose the granting of the same right or privilege to the other." 143 A.2d at 552-53. (Emphasis added.)

In the Butler case, the New Jersey Court appears to have overlooked the right of the witness in its appropriate concern for fair play as between the prosecuting attorney and defense counsel.

The rule in Connecticut appears to be that a court has no authority to compel a witness to submit to a psychiatric examination until he is actually offered as a witness, and not then unless there is some indication of insanity. Taborsky v. State, 142 Conn. 619, 116 A.2d 433 (1955).

The Supreme Court of Oregon first rejected the view that a trial court has power to order even the complaining witness in a sex case to undergo a psychiatric examination. State v. Walgraeve, 243 Or. 328, 412 P.2d 23, 413 P.2d 609 (1966). The Court there said that to hold otherwise would invade the province of the jury to evaluate the credibility of witnesses, by subjecting the testimony of the witness to attack by expert opinion based upon an interview conducted outside the presence of the jury. It was also of the opinion that a parade of experts, with conflicting opinions, would confuse rather than enlighten the jury, would delay the trial and would distract the jury from the issue of the guilt or innocence of the accused and that, rather than undergo such examination, timid victims of crime would simply not report such crimes to the police. The Court said that such a fundamental change in policy should come from the Legislature. However, two years later, in State v. Clasey, 252 Or. 22, 24, 446 P.2d 116, 117 (1968), a sex offense case, the Court apparently approved the California rule, in principle, but affirmed the denial of the defendant's motion for such order on the ground that "there was no compelling reason stated in the motions and there was corroboration of the victim's testimony."

In State v. Kahinu, 53 Haw. 536, 547, 498 P.2d 635, 643 (1972), cert. den., 409 U.S. 1126, 93 S. Ct. 944, 35 L. Ed. 2d 258 (1973), the Supreme Court of Hawaii, in a case involving burglary and assault with intent to rape, said that a trial judge, in his discretion, may order a witness to take a psychiatric examination when the movant shows a compelling reason therefor, but the trial court had properly refused to order such an examination when the motion therefor was "based upon nothing more compelling than a bald allegation that the complainant may be mentally ill."

In Easterday v. State, 254 Ind. 13, 256 N.E.2d 901 (1970), the alleged offense was sodomy committed on a 10 year old girl who had previously accused other men of acts of sexual misconduct, including her brothers and an uncle, and who admitted "telling stories" about such activities. The Court said:

"From the above cited cases, it is apparent that the defendant has no right to subject a prosecuting witness, in a trial on a sex offense, to a psychiatric examination. The trial court can, however, on timely motion of the defendant, order such an examination where in its sound discretion it determines one to be necessary." 254 Ind. at 16-17, 256 N.E.2d 903. The Court then held that, under the peculiar circumstances of that case, the refusal to grant the request for a psychiatric examination of the prosecutrix was not "based on sound judicial discretion," and a new trial was ordered.

In State v. Miller, 35 Wis. 2d 454, 151 N.W.2d 157 (1967), the Supreme Court of Wisconsin found no abuse of discretion in the trial court's denial of a motion for a pretrial psychiatric examination of the complaining witness in a sex offense case. Speaking through Justice Beilfus, it said:

"As pointed out in Goodwin [v. State, 114 Wis. 318, 90 N.W. 170 (1902)] in cases where the court has serious doubt of the mental capacity of a witness, in the exercise of its sound judicial discretion, it can order the witness to submit to a medical examination as a condition of allowing the witness to testify. Of course the witness might refuse, but there is no power in the court to compel such an examination. (Emphasis added.)

"Because of the possible indignity of such an examination and the natural reluctance of persons to appear as witnesses if they were to be subjected to such examination, we believe a strong and compelling reason should appear before a trial court in the exercise of its discretion should order a medical examination even as a condition of testifying at the trial." 35 Wis. 2d at 471, 151 N.W.2d at 165.

In these Wisconsin cases, the court appears to have been dealing with an examination to determine the witness' competency to testify rather than one to relate to the credibility to be accorded a competent witness.

In People v. Glover, 49 Ill. 2d 78, 273 N.E.2d 367 (1971), the defendant was charged with an unnatural sex assault on an adult woman. The Court said, "There is no question of the court's jurisdiction to order an examination of the complaining witness in a case involving a sex violation * * * and it may, in the exercise of its discretion, do so when the defendant presents a compelling reason therefor." 49 Ill. 2d at 82, 273 N.E.2d at 370. However, the Court held that, under the circumstances of that particular case, there was no abuse of discretion in denying the motion.

In State v. Klueber, 81 S.D. 223, 132 N.W.2d 847 (1965), the defendant was convicted of indecently molesting a 12 year old child. The Court said:

"In an article entitled Psychiatric Opinions as to Credibility of Witnesses: A Suggested Approach, in Vol. 48 Cal.L. Rev. 648, at page 663, this conclusion is reached: `Most of the courts which have dealt with this problem have recognized the authority of the trial judge to order a psychiatric examination of a witness on the question of credibility. The principle established by the majority of the cases is that the judge has the discretion to order such an examination, although the failure to do so has rarely been held an abuse of discretion.' We are not aware of any good reason why that should not be the rule concerning complaining witnesses in sex offenses. * * * We think defendant's showing for the requested examination falls far short of this requirement." 81 S.D. at 229-30, 132 N.W.2d at 850. (Emphasis added.)

In United States v. Skillman, 442 F.2d 542 (8th Cir., 1971), and in United States v. Russo, 442 F.2d 498 (2d Cir., 1971), cert. den., 404 U.S. 1023, 92 S. Ct. 669, 30 L. Ed. 2d 673 (1972), the courts of appeal found no abuse of discretion in the denial by the District Judge of a motion for the psychiatric examination of a witness, neither case involving a sex offense. In the Russo case, Circuit Judge Moore said, "Ordering a witness to undergo a psychological examination is a drastic measure." 442 F.2d at 503.

In United States v. Barnard, 490 F.2d 907 (9th Cir., 1973), cert. den., 416 U.S. 959, 94 S. Ct. 1976, 40 L. Ed. 2d 310 (1974), Circuit Judge Duniway, speaking for the Court, said:

"As we have seen, competency [of a witness] is for the judge, not the jury. Credibility, however, is for the jury—the jury is the lie detector in the courtroom. * * * It is now suggested that psychiatrists and psychologists have more of this expertise than either judges or juries, and that their opinions can be of value to both judges and juries in determining the veracity of witnesses. Perhaps. The effect of receiving such testimony, however, may be two-fold: first, it may cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial within a trial on what is a collateral, but still an important matter. For these reasons we, like other courts that have considered the matter, are unwilling to say that when such testimony is offered, the judge must admit it." 490 F.2d at 912-13. (Emphasis added.)

As above noted, such testimony, if otherwise competent, would be admissible in North Carolina, to bear upon the credibility of the witness.

In Massachusetts the trial judge is given, by statute, the power, in his discretion, to order such examination of a witness. Commonwealth v. Welcome, 348 Mass. 68, 201 N.E.2d 827 (1964). Nevertheless, in the Welcome case, which involved an indecent assault on a 7 year old girl, the Supreme Judicial Court of Massachusetts found no error in the trial court's denial of the motion for such examination.

We perceive no sound basis for distinction, in this matter, between cases involving sex offenses and cases involving other crimes, between male and female witnesses, youthful and adult witnesses, complaining witnesses and other witnesses, witnesses for the State and witnesses for the defendant.

To require a witness to submit to a psychiatric examination, by a psychiatrist not selected by the witness, is much more than a handicap to the party proposing to offer him or her. It is a drastic invasion of the witness' own right of privacy. To be ordered by a court to submit to such an examination is, in itself, humiliating and potentially damaging to the reputation and career of the witness.

The courts which have adopted the view that such an examination may be ordered have not laid down any guidelines for the protection of the witness. Is the witness entitled to the presence of counsel at such examination? Must counsel be afforded an indigent witness? A person, voluntarily consulting a psychiatrist of his own choice, may refuse to answer what he or she deems an impertinent question delving into his or her private, personal affairs and history. What, if any, limitations are or should be imposed upon the questioning of a witness by a psychiatrist pursuant to such a court order? If the defendant obtains such an order, is the District Attorney entitled to insist upon an examination by his expert? Where there are multiple defendants, is each entitled to an examination of his alleged victim by his own psychiatrist?

As the California, Connecticut, and Wisconsin Courts have observed, the court has no actual authority to compel the witness to cooperate with the psychiatrist, but the ordinary witness does not know this and will be fearful of refusing to do so. To require the alleged victim, especially in a sex offense case, to submit to such an inquisition into her most personal and private relations and past history, as a condition precedent to permitting her to testify against her alleged assailant would certainly discourage the honest, innocent victim of a genuine assault from going to the authorities with a complaint. This is not in the public interest. A zealous concern for the accused is not justification for a grueling and harassing trial of the victim as a condition precedent to bringing the accused to trial.

The danger of perjury is always present in any trial but as Circuit Judge Duniway observed in United States v. Barnard, supra, at 912, "The jury is the lie detector in the courtroom." Even pathological liars sometimes tell the truth. It is for the jury to determine in the particular case whether the particular witness is or is not telling the truth. Assuming a psychiatric examination of the witness has been made, the examining psychiatrist cannot make that determination but can only express his opinion as to whether the witness, by reason of the psychiatrist's opinion as to his mental health, is more or less likely to tell the truth than is a person in normal mental health.

To hold that a trial court in this State may require a witness, against this will, to subject himself to a psychiatric examination, as a condition to his or her being permitted to testify, is also a serious handicap to the State in the prosecution of criminal offenses. If the witness simply refuses, there may well be nothing the prosecuting attorney can do to induce the witness to comply with the order. In many instances, a material witness for the State is none too eager to testify under any circumstances. To permit the defendant to obtain a court order, directing him or her to submit to a psychiatric examination as a condition precedent to his testifying, may well further chill his or her enthusiasm for taking the stand or at least give him a way out of doing so. In many cases, there would be no insurmountable difficulty in the way of a hard-pressed defendant's obtaining such an order and bringing this escape route to the attention of the witness.

In our opinion, the possible benefits to an innocent defendant, flowing from such a court ordered examination of the witness, are outweighed by the resulting invasion of the witness' right to privacy and the danger to the public interest from discouraging victims of crime to report such offenses and other potential witnesses from disclosing their knowledge of them.

We think that so drastic a change in the criminal trial procedure of this State, if needed, should be brought about, as was done in Massachusetts, by a carefully considered and drafted statute, not by our pronouncement leaving the matter to the unguided discretion of the trial judge.

If, however, we were to hold that judges of trial courts in North Carolina have inherent power, in their discretion, to order an unwilling witness to submit to a psychiatric examination, we would hold that, under the circumstances of the present case, it was not an abuse of that discretion to deny the motion of this defendant. In the present case, unlike many cases of alleged sex offenses, the question was not whether the offense of murder occurred but whether the defendant was a party thereto. The State's witness Matthews had already been given a psychiatric examination by the staff of Dorothea Dix Hospital and its report was available to the defendant, as was the testimony of the examining psychiatrist. Without a further psychiatric examination, the defendant was in a position to show that the witness had committed the murder with exceptional brutality, which, as the defendant says in his brief, indicates his mental abnormality. The defendant was further in a position to show that this witness originally gave the police a statement completely at variance with his present testimony and recanted that statement in exchange for permission to plead guilty to second degree murder. There is in this case no showing of any compelling necessity for a further psychiatric examination of Matthews in order to enable the defendant to present to the jury his contention that Matthews' testimony was not worthy of their belief.

We, therefore, conclude that there was no error in the denial of the defendant's motions for an order directing the pretrial psychiatric examination of Matthews. The defendant's Assignment of Error No. 1 is, therefore, overruled.

NO ERROR.

EXUM, Justice, concurring:

As have most of the well-considered decisions on the subject, to which the majority refers, I would conclude that our trial judges have the power, to be carefully used in the exercise of their sound discretion, to order in appropriate circumstances the psychiatric examination of any witness as a condition to receiving the testimony of that witness. In this case the denial of defendant's motion for such an examination was well within the discretion of the trial judge and should not be held for error.

As the majority wisely recognizes the witness' rights must be given due consideration. Defendant should be required to make a strong showing that the witness' mental makeup is such that a psychiatric examination would probably reveal either that the witness is incompetent or that the witness' credibility may be subject to serious question. Situations calling for the entry of such an order would, it seems, be rare indeed. But if called for, our judges should have the power to enter the order.