State v. Ward

272 S.E.2d 84 (1980)

STATE of North Carolina v. George Thomas WARD.

No. 22.

Supreme Court of North Carolina.

December 2, 1980.

*86 Rufus L. Edmisten, Atty. Gen. by W. A. Raney, Jr., Sp. Deputy Atty. Gen., Raleigh, for the State.

Gloria Marnite Shuford, Charlotte, for defendant.

BRANCH, Chief Justice.

We first consider the Court of Appeals' reversal of defendant's conviction because of the trial court judge's instruction on defendant's burden of proof on the issue of insanity. On that issue the trial court judge gave the following instruction: "He [defendant] must prove defendant's insanity to you to your reasonable satisfaction." [Emphasis added.]

Defendant contends and the Court of Appeals agreed that the standard of "reasonable satisfaction" imposes a heavier burden on defendant than the proper "satisfaction" standard. Defendant argues that to uphold this conviction would require the court to overturn the long line of cases which support the "satisfaction" standard. The State, on the other hand, contends that this Court can uphold the conviction without overturning these precedents. The State argues that the "reasonable satisfaction" standard is less burdensome than the "satisfaction" standard, and, thus, the error in the instruction was favorable to defendant.

This Court has not considered this particular permutation of the proper instruction on defendant's burden of proof on the issue of insanity. We have determined that the proper standard of "proof to the satisfaction of the jury" is less burdensome than the standard of "beyond a reasonable doubt;" yet, it may be heavier than the "preponderance of the evidence" standard. State v. Harris, 223 N.C. 697, 28 S.E.2d 232 (1943). We have also decided that the "satisfaction" standard is less burdensome than the "clearly established" test. State v. Swink, 229 N.C. 123, 47 S.E.2d 852 (1948). We have not, however, ever considered where reasonable satisfaction fits into this graduated scale.

Other jurisdictions have wrestled with problems where the trial court judges have strayed from the proper instructions on the burden of proof of insanity. Modern Statutes or Rules as to Burden and Sufficiency of Mental Responsibility in a Criminal Case, 17 A.L.R.3d 146 (1968). Only the courts in Alabama, however, appear to have dealt with the issue in a context similar to that which we face. Id. § 11.

An Alabama statute requires that defendant prove insanity to the "reasonable satisfaction" of the jury. The Alabama courts have consistently held that an instruction that the defendant must prove insanity to the "satisfaction" of the jury imposes a heavier burden than the proper "reasonable satisfaction" standard. James v. State, 167 Ala. 14, 52 So. 840 (1910); Dean v. State, 54 Ala.App. 270, 307 So. 2d 77 (1975). The Alabama court in its criminal cases has never really explained its holding. In Torrey v. Braney, 113 Ala. 496, 21 So. 348 (1897), however, it noted that "satisfaction" *87 implies proof beyond any doubt, while "reasonable satisfaction" permits less certainty while still finding in favor of the person with the burden. Id. at 504, 21 So. at 350-51.

While Alabama's interpretation in the "satisfaction" definition seems to impose a heavier burden than this Court's construction of the same term, we find that, nonetheless, the Alabama court properly ranks the terms, finding "reasonable satisfaction" imposes a lesser burden than "satisfaction."

The distinction between the terms, however, is not one which can only be made by legal scholars and not by the average juror. The difference in the terms can be illustrated from common experience. For example, a question to a coach after a game about how his team played could evoke two responses, either, "I was satisfied with the team's play" or "I was reasonably satisfied with the team's play." The first response, unlimited by a modifier, indicates a higher degree of satisfaction than the second.

On the basis of common experience and the persuasive Alabama decisions, we conclude that in this case the trial court judge's erroneous instruction on the burden of proof on the issue of insanity was favorable to defendant, and, thus, unobjectionable. Hardee v. York, 262 N.C. 237, 136 S.E.2d 582 (1964). We wish to make it clear that we do not suggest that hereafter the trial judge should use the term "reasonable satisfaction" in lieu of the long-approved "satisfaction of the jury."

Next, defendant contends and the Court of Appeals agreed that the juxtaposition of the terms "beyond a reasonable doubt" and "reasonable satisfaction" could have been confusing to the jury and could have led them to infer that defendant carried the same heavy burden as the State.

This argument is simply not supported by a fair reading of the record. The trial court judge properly instructed on the standard of "beyond a reasonable doubt." He said, "Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt." [Emphasis added.] Later the trial court judge instructed the jury on defendant's insanity plea: "He needed not prove beyond a reasonable doubt that he was insane, but only to your reasonable satisfaction." The jury had before them the standard of beyond a reasonable doubt, requiring full or entire satisfaction, and defendant's standard on the insanity issue, requiring reasonable satisfaction. Again, a common understanding of the language compels the conclusion that the jury could tell the difference between being reasonably satisfied and being fully or entirely satisfied. We find that the instruction was not so confusing as to require a new trial.

Since the Court of Appeals reversed the judgment, it did not reach defendant's remaining assignments of error. We turn now to those assignments.

By his first assignment of error, defendant contends that the trial court erred in denying his motion for a bifurcated trial. Defendant moved, prior to trial, that he be tried first on the question of guilt or innocence and then tried on the issue of insanity. He alleged that he intended to raise a defense of self-defense and a defense of insanity, two inconsistent defenses which he contends require a bifurcated trial. Defendant concedes that the granting of a motion to bifurcate rests in the sound discretion of the trial judge and is not reviewable absent abuse. State v. Helms, 284 N.C. 508, 201 S.E.2d 850, cert. denied, 419 U.S. 977, 95 S. Ct. 240, 42 L. Ed. 2d 190 (1974); however, he relies on the following language in Helms, supra, to support this contention:

Other jurisdictions hold that the sound exercise of the trial court's discretion should result in a bifurcated trial only when "a defendant shows that he has a substantial insanity defense and a substantial defense on the merits to any element of the charge, either of which would be prejudiced by simultaneous presentation with the other." Contee v. *88 United States, 410 F.2d 249 (D.C.Cir. 1969).

Id. at 513, 201 S.E.2d at 853.

The State contends, and we agree, that defendant's motion for a bifurcated trial was properly denied. Nothing in the record indicates that he made more than a bare assertion of an intention to assert self-defense. He produced no evidence tending to support that defense when he made the motion. Neither has defendant demonstrated the manner in which he alleges the defenses would be inconsistent. In Contee v. United States, supra, the sole case sited by this Court in support of the proposition in Helms, supra, the court stated:

At the same time, however ... the court must depend largely on defense counsel for the relevant information ... Defense counsel made only a minimal showing of possible prejudice.... On the basis of what it knew or could reasonably be expected to discover, we do not think the court abused its discretion in denying the motion to bifurcate.

410 F.2d at 251.

Moreover, on the facts of this case, we can see nothing inherently inconsistent between the defenses of self-defense and insanity. Neither defense denies that defendant was at the scene of the crime or that he committed the act in question. Finally, evidence of self-defense in the instant case is meager if it exists at all, and we agree with the following observation by the court in Contee:

In the instant case, the record shows that in "abandoning" his self-defense defense, appellant was not sacrificing anything of value.... It is doubtful that [the] evidence would have required an instruction on self-defense had one been requested. In any event, we think it is too insubstantial to warrant reversal for lack of bifurcation in the circumstances of this case.

Id.

This assignment of error is overruled.

Defendant next contends that the trial court erred in denying his pretrial motion to require the State to elect between the offenses charged. Defendant argues that the two offenses arise out of the same transaction, and actually only one assault occurred. In making his assertion, defendant relies on State v. Dilldine, 22 N.C.App. 229, 206 S.E.2d 364 (1974). In that case, defendant was charged with shooting his victim three times in the front and twice in the back. On the basis of this one occurrence, defendant was charged on one count of felonious assault with intent to kill for the bullets in the front and another count of felonious assault with intent to kill for the bullets in the victim's back. The Court of Appeals held that "[i]t was improper to have two bills of indictment and two offenses growing out of this one episode." 22 N.C.App. at 231, 206 S.E.2d at 366.

Defendant's reliance on Dilldine is misplaced. There, the defendant was charged on two counts of the same offense, felonious assault with intent to kill, on the basis of what can only be characterized as one assault, or one continuous transaction. In the case at bar, defendant has been charged with two separate and distinct offenses, which happen to grow out of the particular facts of this case. It is elementary that a defendant may be charged with more than one offense based on a given course of conduct. See State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972). In any event, even when an election ultimately will be necessary, the State is not required to elect prior to the introduction of evidence. State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975); State v. Summrell, supra. This assignment of error is overruled.

Defendant contends that the trial court erred in not permitting Dr. Van Fleet to testify regarding whether defendant had discussed with him the events which transpired 18 March 1978. Defendant elicited from Dr. Van Fleet an opinion that, on 18 March 1978, defendant was suffering from paranoid schizophrenia. Dr. Van Fleet was then asked what defendant told him regarding the events of 18 March 1978. The trial court sustained the State's objection.

*89 Defendant argues that, under State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979), a psychiatrist may relate statements made by a defendant which are reliable and which form the basis for diagnosis. In Wade, we formulated the following general propositions regarding expert testimony:

(1) A physician, as an expert witness, may give his opinion, including a diagnosis, based either on personal knowledge or observation or on information supplied him by others, including the patient, if such information is inherently reliable even though it is not independently admissible into evidence. The opinion, of course, may be based on information gained in both ways. (2) If his opinion is admissible the expert may testify to the information he relied on in forming it for the purpose of showing the basis of the opinion. Penland v. Coal Co., supra, 246 N.C. 26, 97 S.E.2d 432.

Id. at 462, 251 S.E.2d at 412.

We note first that defendant made no showing that the statements to which Dr. Van Fleet referred did in fact bear upon his ultimate diagnosis of defendant's mental condition. In this regard, defendant further failed to request that the record reflect what the answer of the witness would have been. Perfecting Serv. Co. v. Product Development & Sales Co., 259 N.C. 400, 131 S.E.2d 9 (1963); 1 Stansbury's North Carolina Evidence § 26 (Brandis Rev. 1973). Thus, we are unable to ascertain whether the statements were admissible under Wade, supra, in the first instance, nor whether their exclusion, if admissible, was prejudicial. Id.

Defendant also assigns as error the trial court's overruling his objections to questions asked by the district attorney which he now contends were irrelevant. The first of these exceptions is to the district attorney's question to Dr. Van Fleet regarding whether defendant was able, at the time of trial, to "function" in society. Over defendant's objection, the psychiatrist responded that he did not know what was meant by "function." Defendant here interposed only a general objection to the question, and a "general objection, if overruled, is no good, unless, on the face of the evidence, there is no purpose whatever for which it could have been admissible." 1 Stansbury's, supra, § 27, and cases cited therein. Defendant has failed to demonstrate that this evidence would not be admissible for any purpose whatever. Moreover, the record discloses that Dr. Van Fleet did not, in fact, respond to the substance of the question but stated only that he was not sure what was meant by "function in society."

Defendant's second exception to what he terms irrelevant evidence involves the following exchange:

Q. Eight hour a day shifts on a week prior to the date of an occurrence when you've testified he didn't on a specific date, the eighteenth would have no bearing as to whether or not he knew the difference between right and wrong on that date. Is that what you're telling this jury? MS. SHUFORD: OBJECTION to the question. COURT: OVERRULED. Cross examination.

Obviously, the objection was directed to the form of the question. There was no objection to the evidence which was elicited by the question. Furthermore, there was no motion to strike any portion of the witness's answer to the challenged question. See 1 Stansbury's, supra, § 27. "A specific objection, if overruled, will be effective only to the extent of the grounds specified." Id.

We are not inadvertent to the fact that these evidentiary rules may seem at times technical. However, they are bottomed on strong policy foundations and on the principle that the trial judge is present at the trial, and to him is entrusted the conduct of the trial. A party seeking to admit evidence, or objecting to the admission of evidence, should provide the trial court with a "timely and specifically defined opportunity to rule correctly." 1 Stansbury's, supra, § 27. Only by enforcing these rules can we ensure that the judicial *90 process proceed as efficaciously as possible and that appeals do not become merely an opportunity for counsel to "retry" the case.

Defendant next argues that the trial court erred in charging the jury regarding the possible verdicts in this case. In instructing specifically on one of the offenses involved, the judge charged that if the jury had a reasonable doubt as to one of the elements, it should return a "verdict of not guilty." Later in the charge, the court instructed that "all twelve minds must agree on a verdict of guilty or not guilty." Defendant maintains there was error since the judge failed to charge that the jury could find the defendant "not guilty by reason of insanity." For this proposition, defendant relies on State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). As the State points out, however, Dooley does not control in the instant case. The defendant there relied on self-defense, and the trial judge failed to include in his final mandate that the jury could find defendant not guilty by reason of self-defense. In the case at bar, the court not only included in the final mandate the possible verdict of not guilty by reason of insanity, but that verdict was included at the very beginning of the instructions, and again after the instructions on the elements of the offenses. This assignment is overruled.

Defendant's next argument relates to the following charge to the jurors:

Now, the court instructs you that a verdict is not a verdict unless and until all twelve jurors agree unanimously as to what your decision shall be; that is, all twelve minds agree on a verdict of guilty or not guilty.

Defendant argues that the court should have also instructed that individual jurors were not to surrender their own convictions solely in order to reach a verdict. We note, however, that defendant requested no instructions to this effect, and we are therefore not readily disposed to hear his complaint now. See State v. Poole, 25 N.C.App. 715, 214 S.E.2d 774 (1975). Furthermore, the instruction as given is in accordance with the law of this State as set out in G.S. 15A-1235 as follows: "Before the jury retires for deliberation, the judge must give an instruction which informs the jury that in order to return a verdict, all 12 jurors must agree to a verdict of guilty or not guilty." [Emphasis added.] We find no error.

We have examined defendant's remaining assignments and find no prejudicial error warranting a new trial.

We find no error in the trial before Judge Friday, and thus the decision of the Court of Appeals is

REVERSED.

BROCK, J., did not participate in the consideration or decision of this case.