63 N.C. App. 737 | N.C. Ct. App. | 1983
In his first assignment of error the defendant argues that the court erred in admitting the testimony of two doctors.
Dr. William Guest who examined the defendant testified as follows:
“Q. And as a result of your examination, did you order any laboratory tests be made?
A. Yes, sir, my preliminary diagnosis at this time was either gonorrhea or non-specific urethritis.
Q. Did you give him any treatment?
A. Yes, sir, I did. Following obtainment of two preliminary tests — one was a culture for gonorrhea and the second was ‘VDRL’ which was for syphilis.
Q. Did you have an opportunity to examine the test results from those tests?
A. Yes, sir, I have.
*739 Q. What did they show?
A. The ‘VDRL’ was negative and the gonorrhea was positive.”
Dr. Philip DeHauf who treated the prosecuting witness testified that he ordered a test for gonorrhea, that he examined the results of the chemical test and the culture was positive for gonorrhea. He testified that in his opinion the prosecuting witness had been exposed to gonorrhea in the recent past.
The defendant argues that the testimony of both doctors violates the hearsay rule because each of them relied on a hospital record showing a positive result in a test for gonorrhea. We believe that the law as applied to this case is that the two doctors could have given their expert opinion on information gained from others, including laboratory tests, if it is inherently reliable and could have testified as to the information upon which they relied to form their opinions. Neither of them could offer as substantive evidence information supplied by others. See State v. Wood, 306 N.C. 510, 294 S.E. 2d 310 (1982) and State v. Wade, 296 N.C. 454, 251 S.E. 2d 407 (1979). Under this rule the testimony of Dr. Guest should have been excluded while the testimony of Dr. DeHauf was admissible. Dr. Guest’s testimony that the test for gonorrhea was positive was substantive evidence which proved the defendant had gonorrhea. Dr. Guest did not use it to form a preliminary diagnosis of possible gonorrhea. Dr. DeHauf testified that in his opinion the prosecuting witness had been exposed to gonorrhea. This opinion was based in part on the laboratory test which was positive for gonorrhea. He could testify to the results of this test as the basis for his opinion.
We believe it was prejudicial error to admit the testimony of Dr. Guest. There was conflicting testimony as to whether defendant had intercourse with the prosecuting witness. The evidence that both parties had gonorrhea was substantial evidence to bolster the testimony of the prosecuting witness. We believe there is a reasonable possibility a different result would have been reached at trial had this evidence not been received. For this error we hold there must be a new trial.
We shall discuss some of the defendant’s other assignments of error as the questions they pose may recur at the next trial.
The defendant also assigns error to the failure of the court to submit to the jury a charge of attempted second degree rape and assault on a female. All the evidence of the State showed that the defendant had intercourse with the prosecuting witness with force and against her will. The defendant’s evidence showed that he did not have intercourse with the prosecuting witness and did not touch her against her will. Neither the State nor the defendant presented evidence of a lesser included offense. The defendant’s evidence showed that he was not guilty of any offense. It was proper not to submit attempted second degree rape or assault on a female to the jury. See State v. Barrow, 292 N.C. 227, 232 S.E. 2d 693 (1977).
We do not discuss the defendant’s other assignment of error as the question it raises may not recur at a subsequent trial.
New trial.