State v. Daniels

Chief Justice Exum

concurring in part and dissenting in part.

I concur with the majority in rejecting defendant’s assignments of error relating to the guilt phase of his trial. I cannot agree, however, *289 with the majority’s conclusion that the trial court did not err in admitting the testimony of Dr. White at the sentencing proceeding. I believe this error warrants a new sentencing proceeding.

Since the majority opinion fails to recite thoroughly the evidence presented at the sentencing proceeding I shall summarize that evidence here.

The State’s evidence consisted primarily of the testimony of Dr. Cynthia Bernice White, an expert in psychiatry. Through her testimony the State sought to establish that defendant was an aggressive, unremorseful person who was hostile toward society and whose condition was untreatable.

Dr. White diagnosed Daniels as suffering from antisocial personality disorder (APD). 1 She described those with APD as having a “careless disregard for normal social norms” and “poor impulse control,” causing them to behave in an “irritable” and “aggressive” manner. When they inflict harm on others, they feel justified and lack remorse for their actions. Treatment for those with APD is generally ineffective.

Dr. White conceded that she diagnosed Daniels without the benefit of a personal interview or any observations of him. Her diagnosis of Daniels was based in large part on his actions on the day of the offenses as reflected in the police report. From the statement in Daniels’ confession “I killed my aunt,” for example, she concluded that Daniels lacked remorse and felt justified in his actions. Dr. White determined that Daniels’ remaining in his burning house and tying the drawstring around his neck were “suicide gestures,” or “apparent attempts” to take his life by means which were not in fact life threatening. She said persons with APD make suicide gestures to “manipulate their environment” and to “gain sympathy.” She characterized Daniels’ letter to the Governor as a “cunning” maneuver by someone who felt justified in his actions and who lacked remorse; she also described it as “grandstanding.” Dr. White’s conclusion that Daniels suffered from APD was based on these characterizations which she made of Daniels’ behavior.

*290 Dr. White also testified that Daniels was not mentally impaired at the time of the murder despite his use of drugs that day. On the basis of Daniels’ confession and other reports, Dr. White concluded that Daniels was a chronic drug abuser. This chronic abuse made Daniels tolerant of the effects of the drugs he had abused over several years. He was, therefore, in her opinion, tolerant of the effects of alcohol such that he would have been aware of his levels of aggression and violence at and beyond the time of its consumption. 2

Defendant’s psychiatric evidence portrayed him quite differently than the testimony of Dr. White. It tended to show that he was not depraved but rather depressed, that he was mentally impaired at the time of the crimes due to his consumption of alcohol and cocaine, and that his prospects for rehabilitation were favorable.

Defendant introduced the testimony of Dr. John Bolinsky, an expert in psychiatry, who had testified earlier in the guilt phase. His opinions were based on personal interviews and examinations of defendant, defendant’s statements to officers after his arrest, conversations with Dr. Tyson, and the mental health records from Dorothea Dix Hospital, Black Mountain Alcohol Rehabilitation Center, and Randolph Clinic.

Dr. Bolinsky’s opinion was that Daniels suffered from chronic depression and chronic substance abuse; he did not suffer from APD. His diagnosis of chronic depression was based on his mental status examination 3 of Daniels, which was consistent with depression and tended to negate APD. It was also based on Daniels’ past suicide incidents involving an attempted shooting and the ingestion of *291 kerosene, which were revealed through the personal interview. He said chronic depression is treatable.

Dr. Bolinsky also testified that Daniels’ use of alcohol and cocaine on the day of the offenses impaired his capacity to plan his behavior. He explained that based in part on his interview with Daniels, Daniels’ substance abuse was not the chronic daily type which leads to increased tolerance levels. Instead, since Daniels’ use was marked by days or weeks of sobriety followed by a binge on drugs and alcohol, Daniels’ abuse was the chronic episodic type, which does not lead to tolerance. Thus, Daniels’ use of alcohol and cocaine on the day of the offenses would have caused him to be mentally impaired.

Dr. Bolinsky testified that based on his interview with Daniels and on his review of Daniels’ records, it is improbable that Daniels would have killed his aunt absent his chronic depression, chronic substance abuse and acute substance abuse on the day of the homicide. Dr. Bolinsky also concluded that Daniels felt remorse for his actions, expressly contesting Dr. White’s testimony to the contrary. In support of his conclusion Dr. Bolinsky referred to Daniels’ letter to the Governor and his statements following his arrest, which he interpreted as showing remorse.

Turning to the legal issue which is the subject of this dissent, it must first be noted that the majority opinion focuses primarily on aspects of Dr. White’s opinion which are not at issue. The issue is not whether an expert may rely in part on the statements of others, which we addressed in State v. Smith, 315 N.C. 71 , 337 S.E.2d 833 (1985), or whether reliance on a certain item of evidence is reasonable, which we addressed in State v. Bright, 301 N.C. 243 , 271 S.E.2d 368 (1980), or whether an expert may criticize the techniques of another expert, which we addressed in State v. Bonney, 329 N.C. 61 , 405 S.E.2d 145 (1991), or whether it is an unconstitutional violation of due process to permit an expert to testify about a defendant’s mental condition without having personally examined him, which the Supreme Court addressed in Barefoot v. Estelle, 463 U.S. 880 , 77 L. Ed. 2d 1090 (1983).

The issue before us is whether under this State’s evidentiary rules it was error for the trial court to permit Dr. White to testify as to defendant’s mental condition without having personally examined him. Although wholly absent from the majority opinion, the principle around which this inquiry revolves is that “opinion testimony based *292 on inadequate data should be excluded.” State v. Rogers, 323 N.C. 658, 664-65 , 374 S.E.2d 852, 856 (1989). Expert opinion not supported by a sufficient foundation is inadmissible under Rule 702 since it will not “assist the trier of fact.” State v. Clark, 324 N.C. 146, 160 , 377 S.E.2d 54, 62 (1989). This principle is implicit in Rule 703, 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 188 n.303 (4th ed. 1993), and is espoused by numerous pre-Rules cases not inconsistent with Rules 702 and 703. Donavant v. Hudspeth, 318 N.C. 1, 24 , 347 S.E.2d 797, 811 (1986); Service Co. v. Sales Co., 259 N.C. 400, 411 , 131 S.E.2d 9, 18 (1963); Branch v. Dempsey, 265 N.C. 733, 747 , 145 S.E.2d 395, 405 (1965).

Thus, an expert opinion may be inadmissible due to the inadequacy of its foundation even though the individual components of that foundation are not themselves improper under Rule 702. The issue is, therefore, whether Dr. White had an adequate foundation on which to base her differential diagnosis that defendant suffered from APD and whether Dr. White had an adequate foundation on which to base her opinion that defendant was not affected by his alcohol and cocaine abuse on the day of the offense.

In deciding whether Dr. White’s foundation was adequate it bears emphasis that this Court’s expertise rests in matters of law. As to subjects that are beyond our training and experience, such as psychiatry and psychology, we must give considerable weight to the recognized authorities in the relevant field. On the issue before us the authorities are unanimous that absent a personal interview and examination, the differential diagnosis of a mental health expert as to an individual’s mental condition is unreliable and should be excluded.

The American Psychiatric Association has explained:

Absent an in-depth examination and evaluation, the psychiatrist cannot exclude alternative diagnoses; nor can he assure that the necessary criteria for making the diagnosis in question are met. As a result, he is unable to render a medical opinion with a reasonable degree of certainty.

Amicus Curiae Brief for the American Psychiatric Association at 9, 25, Barefoot v. Estelle, 463 U.S. 880 , 77 L. Ed. 2d 1090 (1983) (quoted in American Bar Association, Criminal Justice Mental Health Standards § 7-3.11, at 137 n.12). Indeed, the American Psychiatric Association has taken the following position:

*293 On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention, or who has disclosed information about himself/herself through public media. It is unethical for a psychiatrist to offer a professional opinion unless he/she has conducted an examination and has been granted proper authorization for such a statement.

American Psychiatric Association, Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry § 7, annot. 3 (1985).

The American Bar Association Criminal Justice Mental Health Standards reflect this same distrust of a mental health diagnosis not based on a personal interview:

[N]o witness should be qualified by the court to present expert testimony of a person’s mental condition unless the court determines that the witness ... has performed an adequate evaluation, including a personal interview with the individual whose mental condition is in question, relevant to the legal and clinical matter^] upon which the witness is being called to testify.

American Bar Association, Criminal Justice Mental Health Standards § 7-3.11(a)(iii) (1989).

The concerns voiced by these authorities are supported by at least one study which indicates that diagnoses based on live interviews are significantly more reliable than those based on case summaries. Steven E. Hyler et al., Reliability in the DSM-IIIField Trials, 39 Archives Gen. Psychiatry 1275, 1276 (1982) (reliability of diagnoses based on personal interview was “extremely good”; reliability of diagnoses based on case summaries was “only fair”).

Legal authorities in this area also admonish the practice of diagnosing an individual’s mental health without the benefit of a personal interview on the ground that such a diagnosis is inherently unreliable. See McCormick on Evidence § 44 (4th ed. 1992); Gerald Bennett, A Guided Tour Through Selected ABA Standards Relating to Incompetence to Stand Trial, 53 Geo. Wash. L. Rev. 375 , 400 (1985); Note, Psychiatric Evaluation of Abnormal Witnesses, 59 Yale L. J. 1324, 1331-32 (1950). \

Thus, the authorities on diagnosing mental afflictions which we should heed are of one accord that a diagnosis not based on a personal interview and examination is unreliable and should be excluded from evidence in a court of law.

*294 This Court has likewise recognized the integral value of a personal examination to a reliable psychiatric diagnosis. We said in State v. Wade, 296 N.C. 454, 463 , 251 S.E.2d 407, 412 (1979):

The assertion of State v. Alexander, [ 179 N.C. 759, 765 , 103 S.E. 383, 386 (1920)] that “ [conversation with one alleged to be insane is, of course, one of the best evidences of the present state of his mind” is still true. Conversation, and its interpretation and analysis by a trained professional, is undoubtedly superior to any other method the courts have for gaining access to an allegedly insane defendant’s mind. When it is conducted with the professional safeguards present here, it provides a sufficient basis for the introduction of an expert diagnosis into evidence.

In addition to the authorities cited above, which seriously impugn the reliability of a diagnosis by a mental health expert who has not personally examined his patient, this Court must also consider the particular facts of the case before us. These facts, like the authorities cited above, all indicate that the testimony of Dr. White was unreliable and should have been excluded.

Dr. Bolinsky testified quite explicitly that because of Daniels’ peculiar symptoms and the possible diagnoses which they afforded, a reliable differential diagnosis could not be made in the absence of a personal interview and examination.- More specifically, without such a personal assessment of Daniels, a differential diagnosis that he suffered from APD as opposed to depression would be inherently unreliable. A personal mental status examination of Daniels would have revealed an abnormal mental status, which, in turn, would have tended to negate a diagnosis of APD, and would have been consistent with depression. 4 Also, Dr. White’s conclusions were made without the benefit of critical facts, such as Daniels’ episodic substance abuse and quite likely his previous suicide attempts, which defendant revealed to Dr. Bolinsky in his interview; these facts would have been revealed through a personal examination and might have caused her to make the same diagnosis as Dr. Bolinsky.

Dr. Bolinsky’s testimony in this respect is echoed in a leading text on psychiatry, which states that a mental status examination is necessary to a diagnosis of APD in order to rule out'other disorders. *295 3 Harold I. Kaplan et al., Comprehensive Textbook of Psychiatry/III 2824 (3d ed. 1980) [hereinafter Kaplan]. Kaplan states:

Isolated or even repeated episodes of violence or criminal behavior unrelated to the other descriptive diagnostic behaviors [associated with APD] should be described as such and, unless the other behaviors are present, should not be labeled antisocial behavior. In the past, with DSM-II, there was a tendency to place unlikable people or unproductive people into this diagnostic category, and its use as a pejorative label has been frequent.

Id.

Dr. Bolinsky’s testimony regarding the need to examine Daniels for depression is likewise supported in Kaplan, which states that “[depression is one of the most common illnesses to which humans are subject. Paradoxically, it is probably one of the most frequently overlooked [illnesses.]” 1 Kaplan at 1019. “A complete psychiatric examination should be obtained in each case” where a patient may suffer from depression. Id. at 1327. Such a differential diagnosis for depression is especially necessary where there is a history of suicide attempts, since “suicidal action or recurrent thoughts of suicide” is a symptom of depression. Id.

The majority correctly recognizes that “the evaluation [of APD] relies heavily on historical data from the patient and others . . .” and that the doctor in making this diagnosis must delve deeply “into performance in school, dealings with various school and legal authorities, job performance, and sexual and marital history.” 3 Kaplan at 2822, 2824. The majority fails to recognize, however, that historical data obtained solely from secondhand sources may lack critical information and will invariably be inferior to historical data obtained in a clinical interview of the subject. As recognized in Kaplan, the “interpersonal and interactional characteristics [of APD] are usually elicited in the clinical interview.” Id. at 2822. 5 Further, the lack of a personal interview deprives the expert of the ability to test various hypotheses and make the differential diagnosis which is crucial to a diagnosis of APD. 3 Kaplan at 2924. The risks of relying solely on secondhand information are demonstrated in the case at hand by Dr. White’s failure to determine Daniels’ mental status and her failure to discern the nature of defendant’s substance abuse.

*296 Thus, while failure to conduct a personal clinical interview may not be fatal to the admission of all expert mental health testimony in all cases, under the circumstances here it rendered Dr. White’s differential diagnosis unreliable.

Other jurisdictions under similar circumstances have held psychiatric diagnoses inadmissible in the absence of a personal clinical interview of the subject. In Holloway v. State, 613 S.W.2d 479, 502-03 (Tex. App. 1981), an expert witness for the State testified as to defendant’s future dangerousness. Although the expert had spoken with a co-defendant, the defendant’s mother, and arresting and interrogating officers, the court ordered a new trial because the expert’s failure to interview the defendant caused his testimony to lack “any value” and rendered it inadmissible. In People v. Wilson, 518 N.Y.S.2d 690, 693 , 133 A.D.2d 179, 183-84 (N.Y. App. 1987), the court reversed the trial court for permitting a forensic psychologist, who had witnessed defendant only through his testimony in court, to testify as to defendant’s mental capacity. The court reasoned that since the record did not establish that the process used for the psychological evaluation was a “reliable substitute for clinically derived evaluation of a subject’s mental processes,” the opinion lacked a proper foundation. In Hill v. State, 339 So.2d 1382, 1384-85 (Miss. 1976), the Mississippi Supreme Court reversed the trial court for permitting a psychiatrist to testify that defendant had no psychiatric illness since the psychiatrist interviewed the defendant for only seventy-five minutes and recommended further testing. 6

*297 The majority deals with the weaknesses underlying Dr. White’s opinion with use of the general principle that deficiencies in a particular piece of evidence affect the weight of that evidence and not its admissibility. That principle, however, has no applicability where the reliability falls below a judicially acceptable level. In State v. Peoples, for example, we held that “[hjypnotically refreshed testimony is simply too unreliable to be used as evidence in a judicial setting.” 311 N.C. 515, 532 , 319 S.E.2d 177, 187 (1984). Recognizing the “scholarly literature” on hypnosis, which indicated that “hypnosis has not reached a level of scientific acceptance,” and our need to “defer” to that expertise, we expressly overruled earlier cases holding that deficiencies in such testimony affect weight and not admissibility. Id. at 519, 533 , 319 S.E.2d at 180, 188 . See also State v. Foye, 254 N.C. 704, 708 , 120 S.E.2d 169, 172 (1961) (results of lie detector test are inadmissible largely because there is “no general scientific recognition of the efficacy of such tests” and such tests are “correct in their diagnosis” only seventy-five percent of the time). Concerning expert opinion testimony, this Court has repeatedly held that substantial shortcomings underlying such testimony which render it inherently unreliable require that it be excluded. See State v. Clark, 324 N.C. 146 , 377 S.E.2d 54 ; State v. Rogers, 323 N.C. 658 , 374 S.E.2d 852 ; Donovant v. Hudspeth, 318 N.C. 1 , 347 S.E.2d 797 ; Service Co. v. Sales Co., 259 N.C. 400 , 131 S.E.2d 9 ; Branch v. Dempsey, 265 N.C. 733 , 145 S.E.2d 395 .

Finally, there is a reasonable possibility that the admission of Dr. White’s testimony affected the jury’s decision to sentence defendant to death. See N.C:G.S. § 15A-1443(a) (1988). The State’s case for death was substantially enhanced by Dr. White. She testified, in summary, that Daniels was unremorseful, his suicide efforts were mere “gestures” and a “scheme” to gain sympathy, his letter to the Governor was “cunning” and “grandstanding,” he suffered from untreatable antisocial personality disorder, and he was aware of his levels of aggression and violence at the time of the offenses.

We do not know how many jurors might have rejected some of the mitigating circumstances found by one or more jurors on the basis of this testimony. We do know the jury unanimously rejected the mitigating circumstance of remorse and found that the aggravating and mitigating circumstances warranted the imposition of death.

*298 Based on the error in the admission of the testimony of Dr. White and on its likely prejudicial effect, defendant should be awarded a new sentencing hearing.

. As a leading text describes APD: “In common use, ‘antisocial personality’ has been used interchangeably with the term ‘sociopath’ or ‘psychopath.’ ” 3 Harold I. Kaplan et al, Comprehensive Textbook of Psychiatry/III 2817 (3d ed. 1980). Those with this affliction “behave in a manner that is completely out of keeping with their society’s standards.” Id. See also Leland E. Hensie & Robert J. Campbell, Psychiatric Dictionary 48 (4th ed. 1970).

. Cross-examination revealed that Dr. White’s opinion about Daniels’ mental state at the time of the murder was based on a report that Daniels had consumed a fifth of wine. When informed that Daniels had also used beer and cocaine, she stated her opinion would remain the same due to Daniels’ tolerance of those substances.

. Although the transcript does not elaborate on a “mental status” examination, a leading psychiatric text states that a mental status examination is designed to “classify and describe all the areas and components of mental functioning that are involved in modern diagnostic classifications.” 1 Kaplan et al., Comprehensive Textbook of Psychiatry/HI 912 (3d ed. 1980). This examination requires that the examiner observe and note the following characteristics: appearance, psychomotor activity, attitude, speech, mood, perception, thought process, consciousness, orientation, memory, judgment, insight and reliability. Id. at 916-19. Another source states: “At a minimum, each [psychiatric] examination should include [an evaluation of the following:] general behavior, attitude toward examiner, cooperativeness; brightness; restlessness; coherence; mood; sense of remorse, guilt, recrimination or shame; and personality.” Henry A. Stone, Forensic Psychiatry 43-44 (2d ed. 1965).

. Dr. White, in her testimony, agreed that “persons with antisocial personality disorders have anormal mental status exam ....” See also 3 Kaplan et al., Comprehensive Textbook of Psychiatry/III 2816, 2824 (3d ed. 1980) (normal mental status is an “associated feature” of APD); accord Diagnostic and Statistical Manual of Mental Disorders 343 (3d ed. 1987).

. Although not expressly stated, Kaplan seems to contemplate that any diagnosis of APD will necessarily entail a personal interview. It concludes the passage referred to in the text by stating that “[a]ny data from other sources are useful.” 3 Kaplan at 2924.

. Numerous decisions from other jurisdictions recognize the integral role of the personal interview to a reliable psychological diagnosis. In Rollerson v. United States, 343 F.2d 269, 274 (D.C. Cir. 1964) the court stated:

The basic tool of psychiatric study remains the personal interview, which requires rapport between the interviewer and the subject. More than three or four hours are necessary to assemble a picture of aman.... From hours of interviewing, and from the tests and other materials, a skilled psychiatrist can construct an explanation of personality and inferences about how such a personality would react in certain situations. (Citations omitted.)

See also State v. Edmon, 28 Wash. App. 98 , 621 P.2d 1310 (1981) (A psychiatrist giving an evaluation of the defendant must personally interview him.); United States v. Albright, 388 F.2d 719, 725 (4th Cir. 1968) (An interview is the only “reliable means” of determining the defendant’s sanity.); People v. Bassett, 69 Cal. 2d 122 , 70 Cal. Rptr. 193 , 443 P.2d 777 (1968) (A psychiatric opinion not based on an interview is not “substantial” so as to rebut defendant’s expert opinion that he lacked capacity.); Zirt v. Pollock, 25 A.D.2d 920 , 270 N.Y.S.2d 85 (1966) (An evaluation of a testator’s competency that lacks a personal interview is “weak[].”); see also In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1250-56 (D.C.N.Y. 1985), aff'd, 818 F.2d 187 (1987), cert. denied sub nom. Lombardi v. Dow Chem. Co., 487 U.S. 1234 , 101 L. Ed. 2d 932 (1987) (Testimony by experts as to causation lacked a sufficient foundation where the *297 experts failed to take into account plaintiffs’ specific medical histories and habits; court also based its decision on the fact that the experts failed to rule out other possible causes.); Emigh v. Consolidated Rail Corp., 710 F. Supp. 608, 612-13 (W.D. Pa. 1989) (Since doctors who testified that plaintiff died of asbestosis had not interviewed or examined plaintiff and since it was not clear from record whether they knew of or considered the effect of plaintiff’s smoking, their opinions were unreliable and inadmissible.).