Opinion
Rehearing Denied Oct. 30, 1975.
Page 530
Edward G. Donovan, Sol. Gen., Janet Lee Miller, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, Norman R. Mueller, Deputy State Public Defender, for defendant--appellant.
COYTE, Judge.
Defendant Ybarra was convicted, after a stabbing incident, of first degree assault in accordance with s 18--3--202, C.R.S.1973. We affirm. About 4:30 P.M., on June 13, 1973, defendant appeared at the Friendly Tavern in Fort Morgan and commenced drinking beer and playing pool. By 10 P.M. he had become quite rowdy and had gotten into arguments with several people in the bar. During the last of these minor fights between defendant and another patron, defendant pulled a small, folded knife out of his pocket. The victim, one of the spectators, who had earlier had a discussion with the defendant, suggested that Ybarra put the knife away, whereupon Ybarra struck him in the stomach, knocking him off his bar stool. When the victim arose and started to chase defendant, he noticed that he had been stabbed. The victim was taken to the local hospital and then transferred to a Denver hospital where he underwent exploratory surgery to determine the extent of his injury. The wound, in the upper left abdomen, was one inch long and at least one and a half inches deep, propably entering the abdominal cavity. Defendant was arrested that night and subsequently convicted.
I.
Defendant contends that it was error for the trial court to refuse to allow his expert medical witness to testify as to his mental capacity. We disagree. The trial court properly sustained objections to certain hypothetical questions.
An expert witness is allowed to express an opinion on evidence which he has personally observed, Johnson v. People, 172 Colo. 72, 470 P.2d 37, or on testimony which he has heard at trial, or questions based on hypothetical facts. For an opinion based on testimony given at trial, strict requirements must be met. As stated in O'Brien v. Wallace, 137 Colo. 253, 324 P.2d 1028:
'One seeking to have an expert express an opinion based on evidence which he has heard must be sure:
(1) that there is no material conflict in the testimony;
(2) the witness must assume the testimony to be true;
(3) must be sure that the testimony has been properly admitted and is not inadmissible as immaterial, hearsay or for other reasons, and
(4) the expert's opinion must not be predicated in whole or in part on opinions of others, expert or lay.'
The hypothetical questions posed by defense counsel failed to satisfy certain of defense counsel failed to satisfy certain of these tests. The line of questioning sought to elicit from the expert witness the opinion that defendant lacked the capacity to form a specific intent because he had ingested LSD. The witness was asked to assume that LSD had been ingested by the defendant. However, there was no testimony to support such an assumption. While the doctor testified in response to this question that one might possibly experience a 'placebo' effect as a result of being told that the pills he consumed were LSD, nevertheless, he could not relate the 'placebo' effect to this defendant.
II.
Defendant contends that error was committed when his expert witness was not permitted to give his opinion as to defendant's capacity to form a specific intent. The record indicated that the doctor testified that defendant's behavior on the night of the offense was irrational, not consistent with his normal behavior, and that his judgment appeared to be impaired. In response to objection by the People, however, the court would not permit testimony as to whether, in the doctor's opinion, the defendant had the requisite intent to have committed the offense.
Conjecture, speculation, and possibilities are not competent bases for opinion evidence. Daugaard v. People, 176 Colo. 38, 488 P.2d 1101. Much of the expert witness' testimony which defendant attempted to elicit at trial had already been presented at the separate sanity hearing or In camera and was indefinite on the issue of specific intent. In reply to the question asked by defense counsel as to Ybarra's specific intent to do serious injury to Snowden, the doctor responded to the effect that he was unable to answer such a question. In addition, the doctor stated that he needed someone's objective observations of the defendant to form such an opinion. We agree with the trial court that the doctor was unable to offer reliable opinion testimony as to defendant's specific intent or lack thereof, and therefore such testimony was properly excluded.
III.
Defendant also assigns error to a ruling by the court which prohibited the same expert witness from giving his opinion based upon a personal history taken from the defendant as to defendant's mental state at the time of the stabbing. Although the court sustained the objection to this question, it advised counsel for defendant that the witness could give his opinion based on defendant's recitation to him of the events which occurred on the evening of the assault. Counsel refused to rephrase the question. The ruling as to whether the hypothetical question was properly framed and contained all of the requisites for a hypothetical question is a matter resting within the discretion of the trial court. See Martinez v. People, 124 Colo. 170, 235 P.2d 810. We see no error here.
IV.
Finally defendant cites as error the refusal of the court to give his tendered instruction on third degree assault as a lesser included offense of first degree assault. First degree assault is defined by s 18--3--202, C.R.S.1973, as follows:
'A person commits the crime of assault in the first degree if:
(a) With intent to cause serious bodily injury to another person, he causes serious injury to any person by means of a deadly weapon . . ..'
Assault in the third degree is defined in s 18--3--204, C.R.S.1973, as follows:
'A person commits the crime of assault in the third degree if he intentionally, knowingly, or recklessly causes bodily injury to another person . . ..'
Third degree assault is a lesser included offense of first degree assault because the essential elements of the former are necessarily proven if the elements of the latter are present. People v. Rivera, Colo., 525 P.2d 431. A requested instruction on the lesser included offense in normally given where the evidence puts the elements of the greater offense in issue, People v. Futamata, 140 Colo. 233, 343 P.2d 1058, and the defendant could reasonably be acquitted of the greater offense and convicted of the lesser included offense, s 18--1--408(6), C.R.S.1973.
Here, the essential elements of first degree assault are not reasonably in dispute, and the defendant reasonably could not be found innocent of first degree assault but guilty of third degree.
Whether there was specific intent must be determined from the circumstances. Baker v. People, 176 Colo. 99, 489 P.2d 196. The circumstances related in the record indicate the defendant was in control of his faculties even though he had been drinking. He had been in a belligerent mood all evening and was seen purposefully removing his knife from his pocket before striking his victim. Under such circumstances, only an intent to cause serious bodily injury could be present, and such actions could not be characterized as merely reckless activity. Thus, guilt as to the third degree offense and innocence as to the first degree offense would not be a sustainable verdict, and the instruction was properly denied.
Defendant also contends that another element of first degree assault is put into issue by the nature of the injuries sustained by the victim. We cannot agree with this contention.
Serious bodily injury is defined as any bodily injury which involves a substantial risk of death. See People v. Thompson, Colo., 529 P.2d 1314. Here, the weapon used was capable of causing death, and the victim's injuries were serious. The victim underwent emergency exploratory surgery; he was hospitalized for eight days after the surgery; and he still suffers pain in the region of the scar. As a matter of law, the victim sustained a 'serious bodily injury.'
Additionally, while a defendant is entitled to an instruction on his theory of the case if there is any rational basis for his explanation of the facts, People v. Rivera, supra, there is no support for defendant's theory that he had not formed a specific intent because of intoxication or drug use. See s 18--1--804(3), C.R.S.1973. There was no dispute that defendant stabbed the victim, and this was done in such a manner as to show deliberate action. The doctor could not testify as to impaired capacity and the evidence on drug use was hearsay. Under this state of the evidence, an instruction on defendant's theory of the case was not warranted.
Judgment affirmed.
ENOCH and BERMAN, JJ., concur.