Appeal by defendant from Friday, Judge. Judgements entered 5 March 1981 in Superior Court, Gaston County. Heard in the Court of Appeals 4 May 1982.
Hedrick, Judge. Judge Hill concurs. Judge Becton dissents.
Detective Gary Queen testified that he advised defendant of his constitutional rights at about 5:00 a.m. on 8 December 1980 and that defendant replied that he understood his rights. Detective Queen asked defendant whether he was willing to answer questions, and the defendant replied that he was not, that he wanted to talk to an attorney. By his first assignment of error, the defendant argues that this testimony should not have been allowed since it "can easily be considered by the jury as an implied admission to the general issue of guilt." Defendant cites State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974); however, we find that case inapplicable to the present situation.
The defendant in Castor remained silent while a prospective witness for the prosecution was brought into his presence and was asked questions which elicited answers incriminating as to defendant. Our Supreme Court held that evidence of this confrontation should not have been admitted at trial since the defendant's exercise of his constitutional right to remain silent could not be considered an admission of the statements made by the prospective witness. Such is not the situation here. In this case there was no evidence of a specific incriminating accusation
being made against the defendant at the time he asserted his rights.
Where, as here, there is evidence that defendant simply asserted his rights, but no evidence that he remained silent (because he had asserted his rights) in the face of a specific incriminating accusation, the Miranda rule does not apply, for there has been no accusation made which the defendant, by his silence, might be taken to have admitted. (Citation omitted.)
State v. Love, 296 N.C. 194, 202, 250 S.E.2d 220, 226 (1978). We therefore reject the argument made by defendant in support of this assignment of error. Furthermore, we find no reasonable possibility that admission of this evidence, if erroneous, contributed to the conviction. See State v. Love, supra; State v. Hamilton, 53 N.C. App. 740, 281 S.E.2d 680 (1981); G.S. § 15A-1443(b). We overrule the assignment of error.
Defendant presented two psychiatric witnesses, Dr. James Groce and Dr. Harris L. Evans. Each testified that in his opinion the defendant was unable to distinguish between right and wrong with respect to his behavior at the time of the alleged crimes. Dr. Groce testified that his diagnosis was based in part on interviews with the defendant. The doctor was asked what the defendant had said, but objection was lodged and sustained. Dr. Groce's answer has been included in the record. Defendant, relying upon State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979), argues that the doctor should have been allowed to give this testimony before the jury. We agree.
The defendant in Wade was convicted of three murders. A psychiatric witness for the defense was allowed to testify that in his opinion the defendant was incapable of distinguishing between right and wrong at the time of the killings; however, this witness was not allowed to testify as to the basis of his opinion. On appeal, our Supreme Court drew the following propositions from the case law:
(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 ...