State v. SlocumbState v. Slocumb
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Conrad L. Slocumb appeals his convictions for first degree burglary, first degree criminal sexual conduct, robbery, kidnapping, and escape. We affirm.
FACTS
On March 6, 1996, Officer Elvin Livingston transported Slocumb, a Department of Juvenile Justice (“DJJ”) inmate, from a DJJ facility to a doctor’s office for medical treatment. As the officer was driving Slocumb back to DJJ, he escaped.
Slocumb ran to the Briargate Apartments. At the apartment complex, Slocumb approached a female resident (the victim) from the hallway and asked for help in locating someone in the building. The victim tried to assist him. When it appeared that he was going to walk away, she turned and finished unlocking her door. She entered her apartment and turned to close the door but found Slocumb standing in her doorway. He shoved her into the apartment, and she fell back on her couch. When she began screaming, Slocumb told her he had a gun and would shoot her if she was not quiet.
The victim testified Slocumb asked for money and the keys to the car he saw her driving. She gave him a two dollar bill and the car keys. He then unplugged one of her three phones and told her he needed a change of clothes. The victim noticed the word Santee printed on the back of his blue prison uniform. She got some of her fiancé’s clothes for him to wear.
The victim gave Slocumb all the jewelry she was wearing except her engagement ring, which she managed to hide. Slocumb began looking through drawers in the bedroom, saying he needed another weapon. He found no gun but did find two more watches, which he took. He went into another bedroom, unplugged the victim’s cordless phone base, and emptied her jewelry box. After spending approximately forty minutes in the apartment, Slocumb left and the victim called 911. The victim never saw a gun.
Shortly thereafter, Slocumb was apprehended in the parking lot of the Briargate Apartments. When they searched Slocumb, officers found a set of keys, two or three watches, a two dollar bill, and some jewelry. He told officers he had a gun, but a gun was never recovered. From a window in her apartment building, the victim identified Slocumb. Slocumb gave a statement to the police, admitting the alleged events with some variations.
The Richland County Grand Jury indicted Slocumb for first degree burglary, first degree criminal sexual conduct, kidnapping, armed robbery, and escape. At trial, Slocumb asserted the defense of insanity as to all charges. 1 Ultimately, the judge charged the jury on the law of insanity and guilty but mentally ill.
The jury found Slocumb guilty of all charges except armed robbery. Instead of armed robbery, the jury convicted Slo-, eumb of common law robbery. This appeal follows.
I.
Slocumb argues the trial judge erred in admitting evidence of bad acts he committed while at DJJ. Slocumb reasons that because he did not testify, or put his character at issue, the admission of these acts, particularly because of their sexual nature, was more prejudicial than probative. He asserts the evidence should have been excluded under Rule 403, SCRE.
During the defense’s case-in-chief, Slocumb made a motion in limine to determine what prior bad acts the State might try to admit through cross-examination of Dr. Donna Schwartz-Watts, a psychiatrist that defense counsel intended to call as a witness. The assistant solicitor indicated he intended to admit evidence of Slocumb’s bad acts while at DJJ to refute Slocumb’s claim of insanity, but did not intend to admit evidence of the crimes for which he was incarcerated in DJJ. The solicitor sought to admit the testimony through Rule 703, SCRE, because it was his understanding Dr. Schwartz-Watts and Dr. Morgan, another defense psychiatrist, used Slocumb’s entire DJJ file in reaching their opinions regarding his mental status. As such, the defense experts could not “pick and choose” which documents the jury would consider. He contended all of the educational, psychological, and behavioral records were relevant to the bases of the experts’ opinions. The judge then heard Dr. Schwartz-Watts’s testimony.
Dr. Schwartz-Watts, a forensic psychiatrist employed with the William S. Hall Psychiatric Institute, opined Slocumb suffered from a conduct disorder and cyclothymia, a mood disorder which she described as “a major mental illness, but it’s more mild, in terms of a mood disorder compared to a major depression or manic disorder.” She believed, however, Slocumb was criminally responsible for his acts. Although she requested Slocumb’s behavioral records when making her evaluation, she did not receive them and thus, had not considered them in forming her opinion. Even though she did not think the records would have changed her opinion in any way, she stated the records “would have been useful to document any decisions or diagnosis we would have made.” She further
On cross-examination, the solicitor showed Dr. Schwartz-Watts several DJJ incident reports which detáiled numerous incidents of Slocumb’s inappropriate sexual behavior. The incidents included sexually graphic comments and letters and sexual conduct directed at other juvenile inmates and DJJ staff members. Dr. Schwartz-Watts testified the incident reports corroborated her opinion.
At the conclusion of the testimony, the solicitor told the judge he agreed evidence of these bad acts would not be admissible if experts were not testifying in Slocumb’s defense. Defense counsel argued the evidence was inadmissible under State v. Lyle, 2 and that even if any of the incidents were within a Lyle exception, the evidence would still be inadmissible under Rule 403, SCRE, as unduly prejudicial. The assistant solicitor argued Rule 403 “deals with Lyle issues of substantive evidence when the State intends on introducing it in its ease-in-chief. We never had any intent, and I agree it would have been a violation of the law to allow this in our case-in-chief.” However, he contended that once the defense put up an affirmative defense of insanity, the burden shifted back to the State to prove beyond a reasonable doubt that Slocumb was sane at the time of the incident. He further asserted Slocumb’s conduct in DJJ supported the State’s experts’ opinions and diagnoses.
The trial judge ruled the evidence admissible under Rule 703, SCRE. He concluded the DJJ reports were the type of information that an expert would reasonably rely upon in formulating an opinion. Furthermore, the judge found under Rule 403, SCRE, the probative value was not substantially outweighed by the danger of any unfair prejudice to Slocumb. Based on this analysis, the judge permitted cross-examination using these records.
Because defense counsel did not call Dr. Schwartz-Watts as a witness, the State did not cross-examine her with the DJJ incident reports. The State, however, did cross-examine Dr.
Dr. Merikangas opined Slocumb had organic brain abnormalities as the result of a head injury that he suffered as a child. He diagnosed Slocumb with a “chronic, long-standing” mental illness. As a result of this mental disease or defect, Dr. Merikangas believed Slocumb was legally insane at the time he committed the offenses for which he was on trial. He also stated Slocumb lacked sufficient mental capacity to conform his conduct to the requirements of the law. He attributed Slocumb’s conduct in part to a withdrawal from certain medication Slocumb had been receiving for the treatment of his mental illness.
Dr. Merikangas disagreed with the opinions of Dr. Morgan, Dr. Schwartz-Watts, and Dr. Tiller, a doctor also on the team that evaluated Slocumb. Specifically, he disagreed with their opinion that Slocumb was sane at the time of the crime and that Slocumb was cyclothymic.
Over defense counsel’s objection, the State cross-examined Dr. Merikangas concerning Slocumb’s DJJ incident reports. Dr. Merikangas stated he had seen the documents prior to trial. After the assistant solicitor read excerpts from the reports, Dr. Merikangas testified this conduct was not aggressive sexual behavior. However, he also admitted some of these incidents were inappropriate and some were not normal.
Slocumb argues the trial judge erred in allowing the DJJ incidents through the State’s cross-examination of Dr. Merikangas.
The admission of evidence is within the trial judge’s discretion and will not be disturbed on appeal absent abuse of
Slocumb primarily asserts the DJJ incident reports were inadmissible under Lyle, and should have been excluded under Rule 403, SCRE. Because this issue and Slocumb’s second issue involve the admission of expert testimony, a discussion of several interrelated rules of evidence is required for our analysis.
Rule 703, SCRE provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Rule 705, SCRE provides:
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Even if admissible under Rule 703 or Rule 705, however, the determination of whether an expert may testify to the facts underlying an opinion must include an analysis under Rule 403, SCRE.
United States v. Gillis,
773 F.2d 549, 554 (4th Cir.1985);
see
29 Charles Alan Wright
&
Victor James Gold,
Federal Practice and Procedure
§ 6293, at 418 (1997) (“[Wjhere examination of an expert may delve into matters that may be confusing, unfairly prejudicial, or a waste of time, admissibility may be governed by Rule 403.”);
Id.
§ 6273, at 322 (“[E]ven though an expert’s opinion is based on matters deemed by Rule 703 to be proper, the trial court still has discretion under Rule 403 to exclude the expert’s opinion in an appropriate case.”); 2 Stephen A. Saltzburg et al.,
Federal Rules of Evidence Manual
Article VII, at 1438 (7th ed. 1998) (A cross-examiner’s right under Rule 705 to inquire into the
Although each of these three rules is involved to some extent in this case, the primary provision is the second sentence of Rule 705, which states an expert may be “required to disclose the underlying facts and data on cross-examination.” Under this provision a cross-examiner is permitted “to ask the expert to reveal otherwise inadmissible underlying information to the jury.” 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 705.05 (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 1999).
The scope of a cross-examiner’s right under Rule 705 is best stated in McCormick’s treatise on evidence:
On cross-examination in the process of probing the witness’ qualifications, experience, bases, and assumptions opposing counsel may require the expert to disclose the facts, data, and opinions underlying the expert’s opinion not previously disclosed. With respect to facts, data, or opinions forming the basis of the expert’s opinion, disclosed on direct examination or during cross-examination, the cross-examiner may explore whether, and if so how, the non-existence of any fact, data, or opinion or the existence of a contrary version of the fact, data, or opinion supported by the evidence, would affect the expert’s opinion. Similarly the expert may be cross-examined with respect to material reviewed by the expert but upon which the expert does not rely. Counsel is also permitted to test the knowledge, experience, and fairness of the expert by inquiring as to what changes of conditions would affect his opinion, and in conducting such an inquiry, subject to the requirements ofFed.R.Evid. 403 , the cross-examiner is not limited to facts finding support in the record.
1 Kenneth S. Broun et al., McCormick on Evidence § 13, at 56-57 (John William Strong ed., 4th ed. 1992).
On appeal, the defendant argued the trial judge erred in admitting the testimony. He asserted the cross-examination was unduly prejudicial because it informed the jury he had previously been charged with a similar crime and had unsuccessfully attempted to rely on the same defense. The Fourth Circuit Court of Appeals affirmed the defendant’s convictions. The Court held that once the defendant asked the doctor about the 1980 diagnosis, its factual basis became relevant and subject to cross-examination under Rule 705.
Id.
at 554. In reaching this conclusion, the Court noted prosecutors are generally granted wide latitude in cross-examining expert witnesses on this type of issue given the importance of developing the factual basis of psychiatric testimony regarding mental responsibility.
Id.
The Court determined the testimony concerning the defendant’s past conduct was relevant given the doctor took it into account in forming his diagnosis.It found the trial judge properly inquired about the prejudicial versus probative value of the testimony under
In United States v. A & S Council Oil Co., 947 F.2d 1128 (4th Cir.1991), the defendant was tried and convicted for conspiracy to defraud the government through false claims. The government’s principal witness, who implicated the defendant’s involvement in the conspiracy, was of questionable credibility given his history of mental illness. Prior to trial, this witness submitted to a polygraph test at the request of the government. The government’s polygraph examiner concluded this witness was “not truthful” when he implicated the defendant in the scheme. The trial judge granted the government’s motion in limine to prohibit the admission of the polygraph evidence. At trial, the government called a psychiatrist to bolster the witness’ credibility. During this testimony, the government offered the psychiatrist’s report, which stated the witness was competent. Defense counsel sought to cross-examine the psychiatrist with materials he had seen, including the polygraph results. Counsel contended he had the right to inquire into all facts underlying the expert’s opinion. The trial judge denied defense counsel’s motion, holding the polygraph results were inadmissible.
On appeal, the Fourth Circuit Court of Appeals reversed the defendant’s convictions. In reaching this decision, the Court held it could not overturn the trial judge’s decision concerning the admissibility of the polygraph results as substantive evidence. The Court’s decision was based on Fourth Circuit precedents which precluded direct attacks on or bolstering of the credibility of a witness through evidence the witness had taken a polygraph test. Id. at 1134. However, the Court found the trial judge erred in prohibiting defense counsel from cross-examining the psychiatrist as to the bases of his opinion, including inquiry about the government witness’ polygraph result. Id. at 1135.
The Court reasoned that under Rule 703, the data upon which an expert bases his or her opinion need not be admissible in evidence. “However, to counteract the potential advantage this liberalized rule confers on the proponent of the opinion, Rule 705 permits the cross-examiner to require the
Turning to the facts of the instant case, we find the trial judge did not err in permitting the State to cross-examine Dr. Merikangas with Slocumb’s DJJ incident reports. Dr. Schwartz-Watts testified these reports were the type relied upon by experts in the field in forming an opinion or diagnosis. In addition to the tests he ordered, Dr. Merikangas testified he reviewed numerous reports and records which included, interviews with Slocumb’s family members, DJJ psychiatric records, DJJ service notes and behavior reports, DJJ medication and medical records, State hospital evaluations, a neuropsychological report from Dr. Evans, and Dr. Morgan’s and Dr. Schwartz-Watts’s notes and reports. Dr. Merikangas stated on both direct examination and cross-examination he had reviewed the DJJ incident reports prior to trial. In fact, on direct-examination, Dr. Merikangas acknowledged he had reviewed “good reports” and “bad reports.” He stated in some of these reports Slocumb was “very helpful” and in other cases he was “lewd and obscene.”
The DJJ incident reports comprised a significant segment of the records Dr. Merikangas reviewed in formulating his opinion. As his testimony indicated, he discounted the reports given they did not affect his opinion that Slocumb was insane at the time he committed the offenses. By cross-examining Dr. Merikangas with these reports, the State was able to demonstrate that some of the underlying data used in reaching his opinion about Slocumb’s mental state was directly contrary to or called into question that opinion. Accordingly,
Because the State’s cross-examination was proper under Rule 705, SCRE, we disagree with Slocumb’s contention the evidence was inadmissible under
Lyle
and constituted improper character evidence.
3
The evidence was not offered to prove the crimes for which Slocumb was charged or to prove Slocumb had a propensity to commit these crimes. Instead, as previously discussed, the evidence was elicited as part of proper cross-examination of Dr. Merikangas’s opinion that Slocumb was insane. The State’s cross-examination focused on establishing that Slocumb was sane, and the records were directly related to an evaluation of Slocumb’s state of mind. Furthermore, the State in its case-in-chief did not refer to these incident reports nor did it attempt to admit Slocumb’s prior criminal sexual conduct conviction for which he was incarcerated at DJJ.
See State v. Faulkner,
274 S.C. 619, 266 S.E.2d 420 (1980) (Although the State may not attack a criminal defendant’s character unless he or she places it in issue, relevant evidence properly admissible for other pur
Additionally, given these reports were relevant and the subject of proper cross-examination, we cannot say the trial judge abused his discretion in finding the probative value of this testimony outweighed the danger for unfair prejudice.
See United States v. Green,
887 F.2d 25, 27 (1st Cir.1989) (A trial judge’s decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in “exceptional circumstances.”);
United States v. Long,
574 F.2d 761 (3d Cir.),
cert. denied,
439 U.S. 985, 99 S.Ct. 577, 58 L.Ed.2d 657 (1978) (A trial judge’s balancing decision under
Other jurisdictions have reached the same result.
See, e.g., State v. Stabler,
162 Ariz. 370, 783 P.2d 816 (App.1989) (pursuant to Rules of Evidence 703 and 705, prosecutor was permitted to cross-examine the defendant’s mental health expert, who testified the defendant murdered the victim “in a fit of reflexive rage,” by asking about a report reviewed by the expert which contradicted his opinion and inferred prior bad acts of the defendant given this cross-examination was not offered to insinuate the existence of a prior bad act, but rather, to inquire into the reasons for the expert’s opinion);
State v. Samuel,
74 Haw. 141, 838 P.2d 1374 (1992) (in prosecution for murder, defense counsel was not ineffective for permitting cross-examination of the defendant’s expert concerning the defendant’s prior bad acts where evidence pertained to facts upon which the expert based his opinion of the defendant’s mental state);
State v. Clowney,
299 N.J.Super. 1, 690 A.2d 612 (1997) (where defendant offered a psychologist to support his claim of diminished capacity due to a “blackout” at the time of the crime, prosecutor was permitted to cross-examine the expert with the defendant’s school records which
II.
Slocumb also argues the trial judge erred in allowing the State to impeach Dr. Merikangas with the report of a doctor who did not testify.
Prior to Dr. Merikangas’s direct examination, defense counsel made a motion in limine concerning a report which was generated as a result of Slocumb’s MRI. She informed the trial judge the defense had requested the MRI, but did not request a report interpreting the films. According to defense counsel, a report was issued and sent to the State Hospital. She disclosed this report to the State prior to trial. However, she told the solicitor the report was not given to Dr. Merikangas, and therefore, he did not rely on it in formulating his opinion. Moreover, she stated she could not vouch for the credibility of the doctor who issued the report. Counsel further argued the State was required to call the doctor who issued the report in order to cross-examine Dr. Merikangas on the contents of the report.
In response, the assistant solicitor argued the rules of evidence permitted cross-examination of Dr. Merikangas with
During direct examination, Dr. Merikangas testified he based his opinion that Slocumb was legally insane upon various medical tests he ordered, including an MRI which showed brain abnormalities. On cross-examination, the State presented Dr. Merikangas with the MRI report. Dr. Merikangas indicated he had not seen the report prior to trial. After reviewing the report, he admitted it concerned the same MRI he had ordered. He acknowledged the report was contrary to his opinion in that the doctor had concluded the MRI was normal. On re-direct examination, Dr. Merikangas testified he did not order a diagnosis of the MRI because he did not need it to interpret the films. He further testified he did not know anything about the qualifications of the doctor who issued the report.
As previously discussed, under Rule 705, SCRE, an expert witness may be cross-examined concerning the facts and data upon which the expert relied in formulating an opinion. Although the cross-examiner is given great latitude, the scope of cross-examination of an expert witness is not without limits. Authority exists which prohibits the State’s cross-examination of Dr. Merikangas with the MRI report. Specifically, McCormick’s treatise on evidence states, “[i]t is . . . improper to inquire of the expert whether his opinion differs from another expert’s opinion, not expressed in a learned treatise, if the other expert’s opinion has not itself been admitted in evidence.” 1 Kenneth S. Broun et al., McCormick on Evidence § 13, at 57 (John William Strong ed., 4th ed. 1992); see also 29 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6294, at 430-31 (1997) (Rule 705 “fails to give the cross-examiner a right to question the witness about facts and data on which the expert did not rely.”).
Federal courts interpreting Rule 705 have followed this principle. The Fifth Circuit Court of Appeals analysis in
Bryan v. John Bean Div. of FMC Corp.,
566 F.2d 541 (5th Cir.1978), provides guidance for our decision. In
Bryan,
the
Midland-Ross objected to this cross-examination on the ground the facts recited in the reports were admissible, but the opinions of the experts were not. The court overruled this objection, stating the opinions were admissible because they were supporting data for Midland-Ross’s expert’s opinion.
On appeal, the Fifth Circuit Court of Appeals held the trial judge erred in admitting this evidence. In reaching this decision, the Court discussed Rules 703 and 705 of the Federal Rules of Evidence. The Court noted these two rules “per-mite] the disclosure of otherwise hearsay evidence for the purpose of illustrating the basis of the expert witness’ opinion.” Id. at 545. Despite this rule of limited admissibility, the Court held the evidence was “improperly admitted either as evidence of the basis of the testifying expert’s opinion or as impeachment evidence.” Id.
The Court reasoned the opinions of the non-testifying experts lacked both necessity and trustworthiness, two factors the Court characterized as critical to establishing exceptions to the hearsay rule.
Id.
In terms of the necessity factor, the Court noted the experts could have been called as witnesses. More importantly, the experts’ opinions lacked any independent guarantee of trustworthiness that would have justified dispensing with cross-examination of these experts.
Id.
at 546. Furthermore, the Court stated, “to admit the hearsay opinion of an expert not subject to cross-examination goes against the natural reticence of courts to permit expert opin
We are guided by the analysis in Bryan in reaching our decision on this issue. Here, Dr. Merikangas, an expert in neurology and psychology, testified he did not rely on the non-testifying doctor’s MRI report because he did not need it to interpret the MRI or to formulate his opinion. Therefore, even if Dr. Merikangas had seen the report prior to trial, like the expert in Bryan, he did not rely on the doctor’s conclusions. By using this report, the State admitted substantive hearsay evidence of another opinion without subjecting the doctor to cross-examination. See Bobb v. Modern Prods., Inc., 648 F.2d 1051, 1056 (5th Cir.1981), overruled on other grounds by Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997) (The trial judge erred in permitting the defendant to cross-examine the plaintiffs expert witness with the deposition of another expert which had not been admitted into evidence because “[pjlaintiffs witness did not state that he had relied on the report, even though he had admitted that he had seen it. Until defendant established that plaintiff had relied on the report of the other doctor, it was improper for the defendant to read from that report in cross-examining plaintiffs witness.”).
As in
Bryan,
the doctor’s opinion also lacked both the necessity and trustworthiness factors to establish exceptions to the hearsay rule. The State could have called the doctor as a witness. Because the State did not call the doctor, the expert’s qualifications were never ruled on by the court and the jury had no way of knowing on what basis the doctor
Our decision is consistent with at least one South Carolina case which was decided prior to this State’s adoption of the rules of evidence. Cf. City of Spartanburg v. Laprinakos, 267 S.C. 589, 230 S.E.2d 443 (1976) (in condemnation case, trial judge erred in permitting landowners’ counsel to cross-examine City’s real estate expert with the contents of a non-testifying third-party appraisal in that this subject matter could have been used only for impeachment purposes had the expert considered the information and based his opinion on it).
Several other state courts have found this type of cross-examination improper.
See, e.g., Sharman v. Skaggs Cos.,
124 Ariz. 165, 602 P.2d 833 (App.1979) (opinion of defendant’s non-testifying medical expert as to cause of plaintiffs injury could not be used to cross-examine the plaintiffs medical expert given the opinion was not made available until trial and the plaintiffs expert did not consider it in formulating his opinion);
State v. Spencer,
319 N.J.Super. 284, 725 A.2d 106 (1999) (trial judge erred in permitting prosecutor to cross-examine defendant’s expert pathologist with a hearsay report containing the opinion of defense’s forensic pathologist who did not testify at trial because the testifying expert did not rely on the conclusions of the forensic pathologist in formulating his opinion even though he had reviewed them);
Commonwealth v. Fried,
382 Pa.Super. 156, 555 A.2d 119 (1989) (non-testifying expert’s findings made in autopsy report were admissible in cross-examining expert witness who admitted he had relied on these findings, however, the non-testifying expert’s conclusions which differed from those of the expert were inadmissible because the non-testifying expert was not subject to cross-examination);
cf. State v. White,
343 N.C. 378, 471 S.E.2d 593,
cert. denied,
519 U.S. 936, 117 S.Ct. 314, 136 L.Ed.2d 229 (1996) (prosecutor permitted to cross-examine defense’s expert witness with reports containing conclusions of non-testifying expert where non-testifying expert reported these conclusions to defense expert who relied on them in formulating his opinion);
but see People v. Pasch,
152 Ill.2d 133, 178 Ill.Dec. 38, 604 N.E.2d 294 (1992) (prosecutor permitted to impeach defendant’s expert witness with reports of non-testifying doc
Although we find the trial judge erred in permitting this cross-examination, we believe the error was harmless because the improper cross-examination evidence was cumulative to other properly admitted evidence. See State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993) (Any error in the admission of evidence cumulative to other unobjected-to evidence is harmless.); State v. Johnson, 298 S.C. 496, 499, 381 S.E.2d 732, 733 (1989) (“The admission of improper evidence is harmless where it is merely cumulative to other evidence.”).
In reply, the State called Dr. Schwartz-Watts as an expert in forensic psychiatry. During direct examination, the assistant solicitor questioned Dr. Schwartz-Watts about Dr. Merikangas’s testimony. She acknowledged Dr. Merikangas believed the MRI indicated Slocumb had brain damage. Dr. Schwartz-Watts stated she understood Dr. Merikangas’s interpretation of the MRI differed from that of the doctor who issued the MRI report. She further testified she does not review MRIs, but instead, relies on the radiologist’s report interpreting the MRI. Even assuming Dr. Merikangas’s interpretation was correct, Dr. Schwartz-Watts testified the existence of brain damage does not necessarily make someone insane or not criminally responsible. On re-direct examination, the assistant solicitor asked Dr. Schwartz-Watts whether any of the documents she had seen or questions she had been asked during her testimony had altered or changed her opinion concerning Slocumb’s criminal responsibility. She responded her opinion remained the same.
The State also called Dr. Morgan, a professor in psychiatry and acting director of the William S. Hall Psychiatric Institute. Dr. Morgan was qualified as a forensic psychiatry expert. He personally evaluated Slocumb. He also worked as part of the team, which included Dr. Schwartz-Watts, that evaluated Slocumb. Based on his evaluation and review of all the available data and reports, Dr. Morgan concluded Slocumb’s mental illness did not “in any way [keep] him from knowing what he was doing and know what he was doing was wrong.” He believed that despite the mental illness, Slocumb
Pursuant to Rules 703 and 705, SCRE, an expert may testify about the facts or data upon which he or she bases an opinion. The facts or data need not be admissible into evidence, as long as they are of a “type reasonably relied upon by experts in the particular field.” Rule, 703, SCRE; see State v. Hutto, 325 S.C. 221, 224, 481 S.E.2d 432, 433 (1997) (“[I]t is well-settled that an exception to the rule prohibiting hearsay exists when it is used by an expert. An expert may base his opinion on hearsay evidence so long as it is of a type reasonably relied upon by other experts in the field.”). Therefore, “[f]acts, data or opinions reasonably relied upon under Rule 703 may be disclosed to the jury on either direct or cross-examination to assist the jury in evaluating the expert’s opinion by considering its bases.” 2 Michael H. Graham, Handbook of Federal Evidence § 703.1, at 110 (4th ed. 1996). “This is true even if the facts, data or opinions have not themselves been admitted and thus may not be considered for their truth.” Id.
By calling Dr. Schwartz-Watts and Dr. Morgan in reply, the State offered their expert opinions for the jury to compare with Dr. Merikangas’s opinion. Dr. Schwartz-Watts and Dr. Morgan gave opinions based on all the information they had reviewed prior to trial as well as what they had heard or perceived during trial. The MRI report was part of the data on which they relied in formulating their opinions. Dr. Evans, Dr. Schwartz-Watts, and Dr. Morgan testified the report was a document upon which they routinely relied in conducting an evaluation.
Because Dr. Schwartz-Watts and Dr. Morgan relied on this report, they were permitted to testify about it as a basis for their opinion.
See State v. Franklin,
318 S.C. 47, 456 S.E.2d 357,
cert. denied,
516 U.S. 856, 116 S.Ct. 160, 133 L.Ed.2d 103 (1995) (psychiatrist who did not personally examine the defendant was permitted to render an opinion based on reports
The admission of the contents of the report during the direct-examination of Dr. Sehwartz-Watts and Dr. Morgan is seemingly inconsistent with its exclusion during Dr. Merikangas’s cross-examination. However, unlike Dr. Merikangas, both Dr. Schwartz-Watts and Dr. Morgan had relied on the MRI report in formulating their opinions. As such, they were not mere conduits of hearsay information. During their testimonies the report was not admitted for the truth of the matter asserted, as it had been during Dr. Merikangas’s testimony. Rather, it was offered as a basis of their opinions as permitted under Rule 703, SCRE.
Because the erroneous admission of the MRI report during Dr. Merikangas’s cross-examination was cumulative to the properly admitted evidence, the error was harmless.
Accordingly, Slocumb’s convictions are
AFFIRMED.
HOWELL, C.J., and GOOLSBY, J., concur.
Notes
. Prior to trial, the judge conducted a competency hearing pursuant to State v. Blair, 275 S.C. 529, 273 S.E.2d 536 (1981). Dr. Donald William Morgan, an expert in forensic psychiatry, evaluated Slocumb concerning his competency and criminal responsibility. Based on his evaluation, he concluded Slocumb was competent to stand trial. After considering Dr. Morgan’s testimony, the trial judge ruled Slocumb was competent to stand trial.
. 125 S.C. 406, 118 S.E. 803 (1923).
. See State v. Peake, 302 S.C. 378, 380, 396 S.E.2d 362, 363 (1990) (“Evidence of prior criminal acts which are independent and unconnected to the crime for which an accused is on trial is inadmissible for purposes of proving that the accused possesses a criminal character or has a propensity to commit the crime for which he is charged.”); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923) (Evidence of other crimes or bad acts is generally inadmissible to prove the crime charged unless the evidence tends to establish (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme or plan, or (5) identity). We note the common law rules concerning the admission of character evidence and evidence of other crimes or bad acts have been codified in Rule 404, SCRE. State v. Nelson, 331 S.C. 1, 6, 501 S.E.2d 716, 718-19 n. 7 (1998).