Summary
In State v. Solomon (1991), 59 Ohio St.3d 124, 570 N.E.2d 1118, we rejected a similar argument that testimony is rendered inadmissible if an expert opinion is based in part on reports not admitted into evidence.
Summary of this case from State v. EleyOpinion
No. 90-734
Submitted February 19, 1991 —
Decided May 1, 1991.
Evidence — Expert witness — Where expert's opinion is based on facts perceived by him, requirement of Evid. R. 703 has been satisfied.
O.Jur 3d Evidence §§ 612, 613.
Where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid. R. 703 has been satisfied.
APPEAL from the Court of Appeals for Montgomery County, No. 11331.
On July 16, 1987, appellee, John C. Solomon, was indicted in four counts for the abduction, in violation of R.C. 2905.02(A)(2), of Lucilla Butler, Linda Davidson, Dana Davidson and Richard McLemore. Pursuant to R.C. 2929.71 and 2941.141, appellee was also charged in each count with a gun specification. On July 23, 1987, appellee was arraigned and he entered a plea of not guilty to each count. Subsequently, appellee moved the court for an order requesting examinations to determine appellee's competency to stand trial.
In September 1987, appellee was evaluated by Dr. G.M. Sastry of the Dayton Area Forensic Psychiatry Services. On or about November 1987, appellee was evaluated by Phyllis Kuehnl, Ph.D. Following these evaluations, the trial court held a hearing and appellee was found incompetent to stand trial. The court ordered appellee committed, pursuant to R.C. 2945.38 (D), to the Dayton Forensic Hospital for treatment. Some six weeks later appellee was returned to the Montgomery County Jail after the hospital submitted its report to the court. On April 11, 1988, appellee entered pleas of not guilty and not guilty by reason of insanity. The court found appellee competent to stand trial.
Following appellee's pleas to the charges, the trial court appointed Dr. G.M. Sastry to evaluate appellee. Dr. Sastry reported to the court that appellee was legally insane. Appellant, the state of Ohio, requested a second opinion and, after appointment, Dr. Joseph J. Trevino also reported that in his opinion, appellee was legally insane. Appellant then requested a third evaluation and Eugene S. Cherry, Ph.D., was appointed. Appellee was then evaluated by Dr. Arthur Schramm, who was privately retained.
Subsequent to all these evaluations, appellee was brought to trial before a jury on November 8, 1988. The jury found appellee guilty of four counts of abduction and a firearm specification as to each count. At trial, Dr. Sastry and Dr. Schramm proffered testimony that appellee was, in their opinions, legally insane. During direct examination, Dr. Trevino testified that appellee was legally insane. Upon further examination, Dr. Trevino, to some degree, retracted this testimony although the record is unclear as to his ultimate opinion on the question. All three doctors had personally examined appellee before reaching their independent conclusions and reporting to the court. However, the trial judge disallowed the testimony of Dr. Sastry and Dr. Schramm, concerning appellee's sanity, evidently because Dr. Sastry had reviewed police reports and hospital records and Dr. Schramm had reviewed the reports of the other doctors.
The doctors also testified regarding appellee's use of cocaine. Dr. Trevino testified that appellee suffered from bi-polar disorder, cocaine psychosis and insanity. Dr. Trevino concluded that the use of a drug may cause someone such as appellee to become overtly psychotic. Considering this testimony, appellee requested the trial court to give the full instruction on the defense of insanity as found in 4 Ohio Jury Instructions (1987), Section 411.53(2). The trial court declined to give the full instruction and gave only the first of the two sentences found in the instruction form.
Appellee was found guilty by the jury on all counts and was sentenced by the trial court on the abduction and gun-specification charges. Appellee appealed assigning as errors the disallowance of the expert testimony and the giving of an incomplete jury instruction. The court of appeals found appellee's assignments well-taken, reversed the trial court and remanded the cause to the trial court for further proceedings.
The cause is now before this court upon the allowance of a motion for leave to appeal.
Lee C. Falke, prosecuting attorney, and Lorine M. Reid, for appellant.
Earl H. Moore, for appellee.
This appeal presents two issues for our consideration. Appellant's first contention is that the opinion of an expert witness must be based on the expert's own personal knowledge or on facts admitted in evidence and may not be based on hospital records and/or opinions of other experts. The second contention of appellant is that proof of the temporary and voluntary ingestion of drugs by a defendant does not establish the defense of insanity and does not entitle the defendant to a jury instruction on drug-caused insanity.
While in a general sense we agree with the contentions of appellant, upon the facts of this case, we do not find appellant's arguments well-taken and, thus, we affirm the judgment of the court of appeals in all respects. Our reasons follow.
I
The basis of opinion testimony by experts is provided for in Evid. R. 703. The rule states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing." (Emphasis added.)
Appellant contends that the testimony of the two doctors was properly stricken because they, in part, based their opinions on reports not in evidence. It is appellant's contention that Evid. R. 703 bars the doctors' testimony. In support of its position, appellant cites us to State v. Chapin (1981), 67 Ohio St.2d 437, 21 O.O. 3d 273, 424 N.E.2d 317, and State v. Jones (1984), 9 Ohio St.3d 123, 9 OBR 347, 459 N.E.2d 526. Upon the facts of the case at bar, we do not agree with appellant.
In Chapin, there is no indication that the psychiatrists called to testify ever personally examined the defendant. Their testimony was based on reports and records not in evidence and not prepared by the witnesses. Those facts differ from the facts now before us. Both of the doctors herein, whose testimony was disallowed, had examined appellee and, thus, had based their opinions on facts or data perceived by them.
Likewise is Jones inapposite. While the court in Jones held that a medical opinion based upon reports not in evidence was not admissible, the court did not meet or discuss the issue as to whether such testimony is admissible where the doctors have personally examined the defendant and have arrived at their opinions based, in whole or in major part, on their perceptions gained from their direct personal examinations of the defendant.
Accordingly, we find that where an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement of Evid. R. 703 has been satisfied. It is important to note that Evid. R. 703 is written in the disjunctive. Opinions may be based on perceptions or facts or data admitted in evidence.
Therefore, we find that the court of appeals was correct in ruling that the testimony by Dr. Sastry and Dr. Schramm regarding appellee's sanity should have been admitted by the trial court.
II
As to the issue of the jury instructions, appellant contends that the evidence presented by appellee did not rise to the level that it was necessary for the trial court to give the complete insanity instruction as requested by appellee. We do not agree.
Appellee, through Dr. Trevino, presented evidence that appellee suffered from bi-polar disorder, cocaine psychosis and insanity. There was also evidence that appellee had been addicted to cocaine for some period of time.
The jury instruction requested by appellee is found in Section 411.53(2) of the Ohio Jury Instructions. The instruction provides: "Voluntary intoxication, no matter how extreme, is not an insane condition. However, a defect or disease of the mind caused by the use of (intoxicants) (drugs) and resulting in insanity, as previously defined, is a defense to an offense."
The trial court gave only the first sentence of the instruction. We agree with the court of appeals that there was sufficient evidence before the trial court to require that the full instruction be given. Accordingly, it was error, given the facts of this case, for the trial court to refuse to give the complete instruction as requested by appellee.
The judgment of the court of appeals is affirmed. This cause is remanded to the trial court for proceedings not inconsistent with this opinion.
Judgment affirmed and cause remanded.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.