State v. Boone

justice Exum

dissenting.

Because I believe the trial judge erroneously sustained the state’s objection to the psychiatric opinion of defense witness Dr. Milton Gipstein, and that the error was prejudicial, I respectfully dissent from the contrary decision of the majority and vote for a new trial.

The only defense offered in this case was insanity. In an effort to prove this defense defendant offered the testimony of his father, mother, and sister. He also offered the testimony of Dr. John McCall, a clinical psychologist, who tested defendant and diagnosed him as a schizophrenic. He attempted to offer the testimony of Dr. Gipstein, a psychiatrist employed by the North Carolina Department of Correction, who, if permitted, would have testified in response to a hypothetical question that at the time of the crime “defendant might or could have been laboring under a mental illness . .. 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 successfully objected to the question. Yet it was permitted later in the trial to offer the opinion of psychiatrist Dr. Billy Royal by way of a hypothetical question similar to the one used by defendant to the effect that defendant did not suffer from a mental disease or defect at the time of the crime.

Apparently the trial court sustained the state’s objection to the question asked of Dr. Milton Gipstein because defendant somehow improperly phrased the hypothetical question. A majority of this Court finds no error in this ruling because the question contains “a misstatement of the sequence of events in the robbery in question.”

Defendant asked two hypothetical question of Dr. Gipstein. I agree with the majority’s conclusion that the first question improperly characterized Dr. McCall’s opinion. Therefore the state’s objec *570 tion was properly sustained to it.

I can find nothing wrong, however, with the second hypothetical question put to Dr. Gipstein. The question occupies some three pages in the record. Approximately 18 lines are concerned with the sequence of events at the robbery. The most significant aspect of the question includes hypothetical facts dealing with: (1) defendant’s boyhood and family background; (2) anti-psychotic medication taken by the defendant; (3) his actions at Duke Medical Center where he was taken after the robbbery; and (4) the results of the testing performed on him by Dr. McCall, a psychologist. Furthermore, Dr. Gipstein testified that he personally examined the defendant in jail after the crime for approximately two hours on one occasion and three and one-half hours on another. He had reviewed copies of defendant’s medical records at Duke Medical Center, the police report of the robbery, the psychological testing report performed by Dr. McCall, Dr. Royal’s report, and had interviewed defendant’s family members.

It seems clear to me that the sequence of events at the robbery had nothing to do with Dr. Gipstein’s professional opinion of defendant’s sanity, even if this sequence was put to him slightly out of order. My examination of the hypothetical statement of what happened in the robbery indicates that it does not vary materially from the facts presented in the state’s evidence. That portion of the hypothethical question dealing with the robbery was as follows:

“[T]hat early in the morning of the 26th of September, 1979, he and one other went into the Li’l General Store and he held a gun on the clerk, demanded money and later he took the clerk to a cooler and then from the cooler to a storage room, and the storage room door was subsequently locked; that he and the other person identified by the name of Bullock, left the store and when they got outside, a shot was fired at them by a security officer; that shots were exchanged by Mr. Bullock and the security officer, that he took the clerk from the storage room and he went outside holding the clerk by the seat of the pants, and holding a gun against him, where subsequently the clerk was shot and the defendant was shot.”

Later defendant’s counsel corrected this aspect of the question by saying, “that the defendant and the defendant Bullock were in the *571 process of leaving the store or were in the store and a shot was fired by a witness by the name of Mr. Buchanan, a security officer.”

The essential requirement of a hypothetical question is that it be “sufficiently explicit for the witness to give an intelligent and safe opinion.” State v. Dilliard, 223 N.C. 446, 448 , 27 S.E. 2d 85, 87 (1943). This Court recently put the rules governing hypothetical questions as follows, Dean v. Coach Co., 287 N.C. 515, 518 , 215 S.E. 2d 89, 91-92 (1975):

“As a general rule, a hypothetical question which omits any reference to a fact which goes to the essence of the case and therefore presents a state of facts so incomplete that an opinion based on it would be obviously unreliable is improper, and the expert witness’s answer will be excluded. (Citations omitted.) However, there is substantial authority to the effect that the interrogator may form his hypothetical question on any theory which can be deduced from the evidence and select as a predicate therefor such facts as the evidence reasonably tends to prove.”

The hypothetical question put in this case to Dr. Gipstein was fully sufficient in form and content under the rule cited to permit the witness to give an intelligent, safe and reliable opinion.

Furthermore, since Dr. Gipstein had personally examined defendant, reviewed his medical and psychological records, the police report of the crime, and had interviewed defendant’s family, he, in fact, had personal knowledge of all of the matters contained in the hypothetical question and could have been permitted to express his opinion based on this personal knowledge without the use of a hypothetical. State v. Taylor, 290 N.C. 220 , 226 S.E. 2d 23 (1976); State a. Griffin, 288 N.C. 437 , 219 S.E. 2d 48 (1975), death sentence vacated, 428 U.S. 904 (1976) (psychiatric expert’s opinion based on examination of defendant); State v. Holton, 284 N.C. 391 , 200 S.E. 2d 612 (1973). When an expert witness’s opinion is, in fact, based on personal knowledge, defects in the form of the hypothetical do not render his opinion inadmissible. Price v. Gray, 246 N.C. 162 , 97 S.E. 2d 844 (1957). It is clear from the record that Dr. Gipstein’s opinion was in fact based on his own personal knowledge acquired from his own investigation of the defendant and the crime.

*572 In conclusion, I believe the hypothetical question was proper in form and substance. Even if there was a misstatement of the sequence of events at the robbery, which I do not detect, the mistake was not material. Finally it seems clear that Dr. Gipstein was in fact testifying from his own knowledge gained from his personal examination of defendant and investigation of the crime so that any defect in the form of the hypothetical should not have rendered his opinion inadmissible. The trial court’s ruling to the contrary deprived defendant of the most credible evidence available to him that he was insane. For error in the ruling, I believe defendant is entitled to a new trial.