State v. DeGregoryState v. DeGregory
- Reporters:
- , ,
- Before:
- Huskins
At the close of all the evidence defendant moved for judgment of nonsuit in each case. His first assignment of error is based on denial of these motions. He contends the motions should have been allowed with respect to the charges of murder in the first degree because “no evidence was presented during the trial which related to the elements of premeditation and deliberation, either by direct proof or by any other inference or circumstance.”
“Premeditation and deliberation are not usually susceptible of direct proof, and are therefore susceptible of proof by circumstances by which the facts sought to be proved may be inferred.” State v. Walters, 275 N.C. 615, 170 S.E. 2d 484 (1969) ; accord State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971) ; State v. Reams, 277 N.C. 391, 178 S.E. 2d 65 (1970).
“Among the circumstances to be considered in determining whether a killing
Evidence offered by the State tends to show, inter alia: Mr. Powell died as a result of gunshot wounds — two in the chest with one bullet piercing the heart, and one in the head. Each bullet wound was potentially fatal and the temple shot was fired after the shot through the heart and at a time when Mr. Powell was dying. Mrs. Powell was shot once in the upper abdomen and once in the chest, the latter shot piercing the heart.
Both victims had severe head lacerations. Mr. Powell had five deep scalp wounds, some of which exposed the skull. Mrs. Powell had two deep scalp wounds, both of which exposed the bone. Examination of these wounds indicated to Dr. Wood that “they were struck with a blunt instrument several times in a frenzy.” In the opinion of Dr. Wood the head wounds were inflicted before the gunshot wounds.
Mrs. Powell’s body was found in a sitting position in the bathroom. The officer who found the body “observed a piece of metal, which appeared to be a piece of the door lock, lying on the bathroom floor. The door facing appeared to be splintered. The door was slightly ajar, and it appeared it was split down the section where the lock is placed on the door.”
The ingredients of premeditation and deliberation necessary in first degree murder may be inferred from the vicious and brutal circumstances of the homicide. The evidence here shows a complete lack of provocation and a viciousness which demonstrates that death was the actor’s objective. The deadly shots through the heart after each victim had been felled and rendered helpless by mortal blows to the head support, almost require, the legitimate inference of premeditation and deliberation. This evidence is sufficient to repel the motions for nonsuit and require submission of the cases to the jury on the issue of murder in the first degree. State v. Duncan, 282 N.C. 412, 193 S.E. 2d 65 (1972) ; State v. Duboise, 279 N.C. 73, 181 S.E. 2d 393 (1971); State v. Reams, 277 N.C. 391, 178 S.E. 2d 65 (1970) ; State v. Perry, 276 N.C. 339, 172 S.E. 2d 541 (1970) ; State v. Faust, 254 N.C. 101, 118 S.E. 2d 769 (1961). Defendant’s first assignment of error is overruled.
Over defendant’s objection the solicitor was permitted to propound the following question to Dr. Robert Rollins, Superin
tendent of Dorothea Dix Hospital, a medical expert specializing in the field of psychiatry: “Based upon your own personal examination and interview of Karl DeGregory,
and any other information contained in his official record of which you were the custodian and had available to
you, did you make a diagnosis of the defendant?” Defendant’s objection to the italicized portion of the question was overruled and defendant assigns as error the ruling of the court in this respect. Dr. Rollins replied: “Yes I did. For the purposes of our report back to the court, the psychiatric diagnosis was without psychosis; that is, not insane, that Mr. DeGregory was competent to stand trial. . . . Karl DeGregory was assigned to Dorothea Dix Hospital for examination purposes for approximately two months. Based upon my own examination, I am of the opinion that Mr. DeGregory is not a paranoid schizophrenic. I have some general knowledge of the circumstances surrounding the crime with which Karl De-Gregory is charged.” On cross-examination, Dr. Rollins testified: “Personally, I spent about three hours with Karl DeGregory. My testimony is predicated on the three hours which I spent with Karl DeGregory and upon the information furnished me by
Defendant asserts that Dr. Rollins based his expert opinion “on information obtained by someone else, which information was inadmissible in evidence,” and cites the following quotation from State v. David, 222 N.C. 242, 22 S.E. 2d 633 (1942), in support of his contention that this was error prejudicial to his insanity defense: “There are two avenues through which expert opinion evidence may be presented to the jury: (a) Through testimony of the witness based on his personal knowledge or observation; and (b) through testimony of the witness based on a hypothetical question addressed to him, in which the pertinent facts are assumed to be true, or rather, assumed to be so found by the jury.” We now explore the validity of this assignment.
Defendant’s interpretation of the quotation from State v. David, supra, is too limited. The quotation states that an expert may base his testimony on facts within his personal knowledge or observation, or may base his opinion on facts presented in a hypothetical question, but it does not purport to limit facts and information within the personal knowledge of an expert to knowledge derived solely from matters personally observed. As demonstrated in opinions of this Court since State v. David, supra, an expert witness has wide latitude in gathering information and may base his opinion on evidence not otherwise admissible.
In Penland v. Coal Co., 246 N.C. 26, 97 S.E. 2d 432 (1957), the testimony of a physician was challenged because his opinion was based on statements made to him by the patient during the course of a professional examination. We noted that although the statements of the injured patient were “not admissible as evidence of the facts stated, [they could] be testified to by the physician to show the basis of his opinion,” and held that it is permissible for a physician to base his opinion, wholly or in part, on such statements, if made by the patient in the course of professional treatment, or during the course of an examination made for the purpose of treatment and cure.
In
Highway Commission v. Conrad,
263 N.C. 394, 139 S.E. 2d 553 (1965), speaking to the competency of expert witness
testimony in a condemnation proceeding, we quoted with approval the following language from 5 Nichols on Eminent Domain, 3d ed., § 18.42(1), p. 256: “The fact that
In Potts v. Howser, 274 N.C. 49, 161 S.E. 2d 737 (1968), we held it proper to allow a medical expert to give his opinion as to what was shown by a radiologist’s report and the accompanying X-rays used by him in diagnosing plaintiff’s injuries but not introduced into evidence.
Federal courts have held that a psychiatrist’s testimony based on hospital records together with his own observation of defendant is admissible. United States v. Davila-Nater, 474 F. 2d 270 (5th cir. 1973) ; Birdsell v. United States, 346 F. 2d 775 (5th cir.), cert. denied, 382 U.S. 963 (1965), and cases cited therein.
In
Birdsell
the defendant contended that the testimony of a psychiatrist as to defendant’s sanity, based upon a personal interview with the defendant
and
examination of defendant’s tests, case history and hospital records, was inadmissible. Judge Friendly, writing for the court, first noted that prior decisions had established that opinions as to sanity contained in hospital records are not admissible under the Business Records Act,
On these authorities, and on reason as well, we hold it was proper for Dr. Rollins to base his expert opinion as to the sanity of Karl DeGregory upon both his own personal examination and other information contained in the patient’s official hospital record. The question was proper and the answer was competent.
We note, moreover, that even had defendant been correct in his assertion that an expert cannot base an opinion on personal examination
plus
inadmissible information obtained from other sources, defendant could not prevail on this assignment. Even though the question put to Dr. Rollins sought his diagnosis of defendant based upon both his personal observation of defendant
and
information contained in defendant’s records at Dorothea Dix Hospital, his testimony discloses that his opinion of defendant’s sanity is based strictly on his own personal observation of defendant. At one point Dr. Rollins said: “Based upon my own examination, I am of the opinion that Mr. DeGregory is not a
Defendant having failed to show prejudicial error, the verdict and judgment in each case must be upheld.
No error.