State v. Hodgen

CLARK, Judge. Did the court err in allowing Dr. Rood to testify for the State in violation of the defendant’s physician-patient privilege? Defendant was committed to Dorothea Dix Hospital under G.S. 15A-1002 on petition of his attorney to aid the trial court in determining the capacity of the defendant to proceed. The report to the court, entitled “Discharge Summary,” was made by Dr. Mary M. Rood, a forensic psychiatrist on the staff at the hospital. The report was introduced into evidence by the State, after which it became a “public record” as provided by G.S. 15A-1002(d). It was the opinion of Dr. Rood that defendant “is competent to proceed ...” and the court so found. It further appears from the Discharge Summary that Dr. Rood went beyond the purpose of defendant’s commitment to [332] the hospital in that Dr. Rood expressed an opinion as to defendant’s mental capacity at the time of the alleged crimes, as follows: “As to his responsibility at the time of the alleged crimes, I believe that he was able to distinguish right from wrong with respect to the acts with which he is charged. He states that he was drinking at the time, and alcohol may have impaired his judgment and self-control to some extent.” Dr. Rood was called as a witness by the State, after defendant had offered evidence of insanity at the times of the offenses, to rebut the defendant’s evidence by her testimony that in her opinion defendant was sane at the times of the offenses, some two and one-half months before trial. After Dr. Rood testified about her qualifications and was found to be an expert, she was asked if she examined defendant on 21 February 1979, defense counsel objected and sought to invoke the physician-patient privilege. Where the mental capacity of the accused to proceed to trial is questioned on motion of defense counsel (G.S. 15A-1002), and the trial court commits the defendant to a State mental health facility for examination to determine the defendant’s capacity to proceed, the physician-patient privilege does not preclude the examining psychiatrist from testifying at trial on the insanity issue. This ruling was made in State v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928), and recently cited and approved in State v. Mayhand, 298 N.C. 418, 259 S.E. 2d 231 (1979), and In re Johnson, 36 N.C. App. 133, 243 S.E. 2d 386 (1978). It is noted that the trial judge, pursuant to G.S. 8-53, found that the testimony of Dr. Rood was necessary to the proper administration of justice. We find that the physician-patient privilege does not preclude the testimony of Dr. Rood. Nor do we find merit in defendant’s argument that Dr. Rood’s testimony violated the Sixth Amendment guarantee of right to counsel or the Fifth Amendment privilege against self-incrimination. Dr. Rood testified that she made no attempt in examination of defendant to obtain from him any information relating to the alleged crimes. Defendant made no specific objection to the testimony of Dr. Rood that defendant said he had been drinking at the time of the [333] events charged. Any challenge on constitutional grounds to this evidence was not properly raised by defendant’s claim of the physician-patient privilege and should have been raised by proper objection. The failure to make such objection waived the right to raise the question on appeal. Did the trial court err in failing to give the instructions to the jury requested by the defendant? The court in instructing the j ury gave the usual M’Naghten definition of insanity, that “he either did not know the nature and quality of his act, or did not know that it was wrong.” M’Naghten’s Case, 8 Eng. Rep. 718,10 CL. & Fin. 200 (H.L. 1843); State v. Willard, 292 N.C. 567, 234 S.E. 2d 587 (1977). The defendant requested the court to give the following definition of “knowing”: “The definition of ‘knowing’ in this context requires more than that the accused merely have an awareness or recognition of the act committed. The defendant must also have the will and the ability to control his conduct.” The broad interpretation of “knowing” to encompass the full range of human personality and perceptions has not been accepted in this State. To instruct that defendant must have “the will to control his conduct” would in effect recognize the “uncontrollable impulse” defense which was rejected in State v. Terry, 173 N.C. 761, 92 S.E. 154 (1917). Defendant also contends that the phrase “right or wrong” should have been defined by the court as follows: “In order for the defendant to know ‘right from wrong’ the law requires that the defendant have a greater capacity than to merely determine that the act was ‘legally’ wrong. The defendant must also have comprehended, at the time of the act, that what he was doing was also ‘morally’ wrong. If he felt himself possessed and could not distinguish between good and evil, he is not guilty of any offense against the law, regardless of how he comprehended the act.” [334] It is not required that the defendant must know that his acts in question were both legally wrong and morally wrong. The test does not involve the understanding of abstract wrong, but only the moral “wrong” of the particular and specific act. State v. Barfield, 298 N.C. 306, 259 S.E. 2d 510 (1979); State v. Hairston, 222 N.C. 455, 23 S.E. 2d 885 (1943); State v. Terry, supra. See Gardner, Insanity As A Defense In The North Carolina Criminal Law, 30 N.C.L. Rev. 4, 11 (1951); Cf., Comment, The Insanity Defense in North Carolina, 14 Wake Forest L. Rev. 1157 (1978). We conclude that defendant had a fair trial free from prejudicial error. No error. Judges Martin (Robert M.) and Erwin concur.