Opinion
No. 16,046.
Decided February 21, 1949. Rehearing denied March 21, 1949.
Plaintiff in error was found guilty of murder of the first degree and sentenced to life imprisonment.
Reversed.
1. CRIMINAL LAW — Evidence — Appeal and Error. In a criminal case in which defendant interposed a plea of not guilty by reason of insanity, it is held that the testimony of an expert witness to the effect that two other experts, who were not called as witnesses, agreed with his conclusions, was hearsay, and improperly admitted in evidence.
2. TRIAL — Witnesses — Cross-examination. The cross-examination of a witness must be confined to the scope of the examination in chief, and the right to redirect examination extends only to the scope of the cross-examination. On re-examination, counsel has no right to introduce new matter.
3. CRIMINAL LAW — Trial — Witnesses — Examination. While the district attorney in a criminal case has the right to offer evidence to rebut or explain any adverse inference resulting from the cross-examination of his witnesses, competent, and not hearsay, evidence must be offered to accomplish that result.
4. Evidence — Appeal and Error. On review of a criminal case by the Supreme Court where defendant was convicted of murder of the first degree, it is held that the admission of certain hearsay evidence was sufficient error to require a reversal of the judgment.
Error to the District Court of Las Animas County, Hon. David M. Ralston, Judge.
Mr. FRANK H. HALL, Mr. HUNTER D. HARDEMAN, Mr. JOSEPH F. NIGRO, for plaintiff in error.
Mr. H. LAWRENCE HINKLEY, Attorney General, Mr. DUKE W. DUNBAR, Deputy, Mr. JAMES S. HENDERSON, Assistant, for the people.
IN this cause plaintiff in error, to whom we will hereinafter refer as the defendant, was charged in the district court of Las Animas county with the crime of first degree murder. He entered pleas of "not guilty" and "not guilty by reason of insanity." Upon the trial, the jury returned a verdict of guilty of murder of the first degree and fixed the penalty at life imprisonment.
Defendant assigns numerous alleged errors in the conduct of the trial, but seriously argues and relies upon the asserted error of the trial court in admitting evidence over his objection. The defendant called Dr. Lee J. Beuchat who qualified as an expert psychiatrist and who testified concerning his examinations of the defendant on the day following the shooting and upon subsequent occasions. He further testified concerning defendant's background and case history, and explained the tests and standards he had applied in his examinations of defendant. Dr. Beuchat testified that in his opinion the defendant was insane at the time the shooting occurred; that he did not believe defendant was capable of distinguishing right from wrong, accepting the right and rejecting the wrong, at the time the shooting occurred. He testified that in his opinion defendant was sane at the time of the trial, but that he might be subject to similar manifestations, such as occurred at the time of the shooting, at any time in the future.
The defendant offered no evidence tending to dispute any material fact to which witnesses for the people testified, and his sole defense and upon which he relied was that of his mental condition at the time of the commission of the alleged crime. The people called Dr. Franklin G. Ebaugh and Dr. William Ewald Busse in rebuttal. Each of these doctors on direct examination qualified as an expert psychiatrist, and each in turn testified concerning the examinations, tests and standards that had been applied by them in the examination of defendant. Each testified that in his opinion the defendant was sane at the time of the shooting. On cross-examination of Dr. Ebaugh he stated that defendant was observed by himself, Dr. Lyons, Dr. Busse and by Dr. Symes.
On the cross-examination of Dr. Busse the following appears in the record: "Q. By the way, there were four different doctors that examined Mr. Carter, were there not? A. I am sure there were. Q. And all of them psychiatrists? A. Yes, sir. Q. Is that a common procedure in cases of this type? A. Yes, we usually do it that way. Q. Do you ever have occasion to differ among yourselves? A. Yes, we do. Q. In other words, you formulate one opinion, and Dr. Ebaugh might formulate one under certain circumstances, and possibly other doctors have different opinions too? A. That is right. Q. Just as in our Supreme Court sometimes we have dissenting opinions. A. That is right. Q. In an event of that kind, I presume you get together and talk things over and try to be helpful to each other and see if you can reconcile your differences, see if they are reconcilable? A. Perhaps. Q. Does that often occur, Doctor, or is it a rather rare occurrence? A. It doesn't happen too often. In fact, I can only remember one case on the 1927 law that there was some dispute about. Q. There are quite a number of very reputable and high grade psychiatrists in Denver, are there not, that are not connected with the hospital? A. Certainly. Q. In private practice? A. Certainly. Q. And isn't it true that members of the hospital staff and these private psychiatrists often have different opinions on the same case? A. They do have differences of opinions. Q. Beg your pardon? A. There are some who have differences with our opinions. Q. And they are men whose ability and integrity you do not question at all? A. I certainly don't question their ability or their well meaning. Q. Do your question their integrity? A. No, sir."
On redirect examination by the District Attorney is the following: "Q. You were asked if sometimes the doctors on the staff up there disagreed. A. That is correct. Q. You said that occasionally they do, one time that you can recall. In this particular case I will ask you if it isn't a fact that all four of the doctors —
"Mr. Hall: Just a moment. To which we object. We don't know what the other two doctors found. I submit it would be hearsay. The witness is not entitled to testify to that.
"Mr. Mabry: I submit he can tell whether they agreed or not, Your Honor. Counsel has opened this matter.
"The Court: Yes, that is correct.
"Mr. Hall: If Your Honor please, it calls for hearsay testimony.
"The Court: We will see whether it does or not.
"Q. How do you know that? How do you ascertain whether you all agree? A. Written reports to Dr. Ebaugh. Q. Written reports. Have you seen the written reports of the other doctors? A. Have I seen the written reports? Q. Yes. A. Yes, I have.
"Mr. Hall: We have never received any written reports.
"The Court: He may answer the question.
"Mr. Hall: Note an exception.
"Q. Now, did all four of the doctors agree on this Carter case? A. They did."
Counsel for defendant moved to strike the testimony of Dr. Busse, concerning the fact that four doctors had agreed that defendant was sane, which motion was denied by the court.
Defendant's counsel contend that the testimony of Dr. Busse, relating to the fact of agreement between all four of the doctors concerning the sanity of defendant, was hearsay evidence and that its admission violated the constitutional rights of the defendant, and particularly section 16, article 2, of the State Constitution, which provides among other things that in criminal prosecutions the accused shall have the right "to meet the witnesses against him face to face."
Questions to be Determined.
First: Under the circumstances here present, was the testimony of Dr. Busse, to the effect that two psychiatrists who were not called as witnesses agreed with him and Dr. Ebaugh concerning the sanity of the defendant, properly admitted upon the trial?
[1, 2] The testimony of Dr. Busse hereinabove quoted, to which defendant made objection, was clearly hearsay testimony and should have been excluded. The trial court in overruling defendant's motion to strike the testimony said, "You opened this very subject yourself as to whether they disagreed, and now you decline to permit the District Attorney to do the same thing."
The defendant's counsel made no inquiry at any time on cross-examination of the people's expert witnesses as to whether there was agreement or disagreement between the experts who had examined the defendant as to his mental condition. The court misconstrued the effect of the cross-examination in concluding that the defendant's attorney had "opened" the subject of agreement among the four psychiatrists concerning the mental condition of defendant. The evident purpose of the cross-examination of the experts by the defendant's attorney was, generally, to show that the science of psychiatry is not an exact science, that psychiatrists themselves disagree upon occasions and that experts in the field, although fully qualified and equally conscientious, occasionally disagree. This line of cross-examination was proper. There was at the time of the cross-examination evidence of disagreement in the opinions of three such experts, each of whom had appeared before the jury and given their opinions. It was proper to draw from the people's experts the statement that disagreements of experts occasionally happen, as tending to show a possibility that the witnesses for the people might be mistaken, or that defendant's witness might be mistaken, without creating the kind of a conflict that would result in conflicting statements relating to a more exact science. The cross-examination of a witness must be confined to the scope of the examination in chief. In this case the cross-examination by defendant's attorney did not include within its scope the fact of agreement or disagreement among psychiatrists as to the mental condition of the defendant. The right of the District Attorney to redirect examination extended only to the scope of the cross-examination.
In the early case of Sloan Saw Mill and Lumber Co. v. Guttshall, 3 Colo. 8, our court stated: "The right to re-examine extends only to the same matter upon which he was cross-examined, and all questions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be doubtful, and also the motive by which the witness was induced to use those expressions, but counsel examining has no right to introduce new matter. 1 Greenl. Ev., § 467."
In the present case the "new matter" which the court permitted the District Attorney to introduce on redirect examination was the question as to whether doctors, other than those who testified, also "agreed" that the defendant was sane. The court erred in concluding that defendant had "opened" the subject of agreement on sanity in the particular case of the defendant. The question by the District Attorney, "Now, did all four of the doctors agree on this Carter case?" was improper redirect examination. It was just as improper on redirect as it would have been improper on the examination of the witness in chief. Assuming, however, that the defendant had "opened" the door to the subject of agreement or disagreement among the four doctors, the facts with regard thereto could not be established by hearsay evidence. The trial judge himself asked the questions of the witness which without question showed the evidence to which objection was made to be hearsay. Those questions, and all that the record discloses concerning the facts upon which Dr. Busse based his assertion that the four doctors agreed in the case of this defendant, are quoted in the foregoing.
It was shown that the source of knowledge of the witness concerning the views of the doctors, who were not called to testify, was a written report made by them. From that report the witness concluded that the doctors who were not called agreed with him. The defendant had no opportunity whatever to cross-examine the authors of the reports. It cannot successfully be contended that the report itself would have been competent evidence. It would have been hearsay. The conclusions of Dr. Busse based upon an examination of a hearsay document is also hearsay. Neither could the other doctors state their conclusions to the witness in any manner which would avoid the application of the hearsay rule to such declarations. It is contended by the attorneys for the people that by the cross-examination of the doctors called as witnesses for the state, an inference was left in the minds of the jury that the two state psychiatrists, not called by the District Attorney, might have disagreed with the testimony of Dr. Ebaugh and Dr. Busse, and that to rebut that inference they had a right to show that the other doctors "agreed."
We agree that the District Attorney had the right to rebut or explain any adverse inference resulting from the cross-examination of witnesses called by him. However, competent and not hearsay, evidence must be offered to accomplish the destruction of such inferences as may be deemed adverse to the people's case. In Stone v. Union Fire Ins. Co., 106 Colo. 522, 107 P.2d 241, in reversing the judgment because of the admission of hearsay evidence, we stated: "To a better understanding of the application of the hearsay rule to this testimony, a discussion of first principles will be helpful. Historically, the development of the rule is fully covered by section 1364, Wigmore on Evidence (3d ed.), vol. V, where it is defined as `that rule which prohibits the use of a person's assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and of his qualifications to make it.'"
Without question the testimony of Dr. Busse was offered to prove the truth of the alleged assertion of two doctors, not called as witnesses, to the effect that the defendant was sane. The statement of Dr. Busse that they "agreed" with him and Dr. Ebaugh could have no other effect. The admission of this testimony over the objection that it was hearsay was error.
Second: Does the admission of the hearsay evidence amount to error sufficient to require reversal and a new trial of this cause?
In effect, the admission of the hearsay evidence above discussed, added the voice of two additional doctors asserting that the defendant was sane. Prior to the admission of the questioned evidence one duly qualified expert had offered his opinion that the defendant was insane at the time of the commission of the alleged offense. Two experts disagreed and gave their opinions that defendant was sane. Upon the issue of insanity, if a reasonable doubt existed in the minds of the jury as to whether the defendant was, or was not, sane, he was entitled to a verdict of not guilty by reason of insanity. We cannot say that the admission of the hearsay evidence, which in practical effect doubled the number of experts asserting that the defendant was sane, could not be the factor in removing what might otherwise have been a reasonable doubt in the minds of the jurors on the vital issue in the case. It is entirely possible that in the absence of this evidence the jury might have reached a different verdict.
The judgment is accordingly reversed and the cause remanded for a new trial.
MR. JUSTICE HAYS, MR. JUSTICE JACKSON and MR. JUSTICE ALTER dissent.