State v. Propst , 22 N.C. App. 548 ( 1974 )

HEDRICK, Judge.

Defendant’s first two assignments of error relate to the pre-trial competency hearing held by Judge McLelland. Defendant contends that the trial court erred in the following respects: (1) by admitting incompetent evidence in the form of testimony pertaining to letters allegedly written by defendant when these letters had not been identified as being in the handwriting of defendant; and (2) by “requiring the defendant to stand trial on the charge of murder in the first degree on the basis of the testimony when the only medical testimony presented was that the defendant was incompetent to stand trial.” These assignments of error are without merit for the reasons stated below.

Chief Justice Bobbitt in the recent case of State v. Potter, 285 N.C. 238, 247, 204 S.E. 2d 649, 655 (1974), reiterated the following rule, which governs the determination of whether a defendant has sufficient mental capacity to plead to the indictment and to conduct a rational defense:

“In determining a defendant’s capacity to stand trial, the test is whether he has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner, and to cooperate with his counsel to the end that any available defense may be interposed.” [citations omitted]

In the instant case, Judge McLelland determined that the circumstances called to his attention by the district attorney were sufficient to merit a formal inquiry to determine whether, when tested by the rule stated above, the defendant had sufficient mental capacity to plead to the indictment and to conduct a rational defense. At this pre-trial hearing the State offered the testimony of Dr. Robert Rollins who testified:

“I think Mr. Propst comprehends his position as it relates to his being indicted. I have an opinion that he has the ability to understand the nature and object of the proceeding against him, namely a charge of first degree murder. In my opinion Mr. Propst can cooperate with his attorneys to conduct his defense. He is capable of conducting his defense in a rational manner, and I believe that he can cooperate with his counsel.”

A careful review of the evidence presented at the pre-trial hearing discloses that the findings made by the trial judge are supported by competent evidence and as such are binding upon us on the appeal. Gaster v. Goodwin, 263 N.C. 441, 139 S.E. 2d 716 (1965). Moreover, these findings are conclusive “even though there is evidence contra, or even though some incompetent evidence may also have been admitted.” 1 Strong, N. C. Index 2d, Appeal and Error, § 57, pp. 223-4.

Next, defendant maintains that the trial court committed error by allowing clinical notes to be read into evidence when the person preparing the notes was not available as a witness. Defendant contends that such evidence is hearsay and should be excluded because the defendant was denied the opportunity to cross-examine the maker of the notes and to test his memory, veracity, etc.

In Sims v. Insurance Co., 257 N.C. 32, 35, 125 S.E. 2d 326, 328, 329 (1962), Justice Clifton Moore made the following germane statement:

“Hospital records, when offered as primary evidence, are hearsay. However, we think they come within one of the well recognized exceptions to the hearsay rule — entries made in the regular course of business. Modern business and professional activities have become so complex, involving so many persons, each performing a different function, that an accurate daily record of each transaction is required in order to prevent utter confusion. An inaccurate and false record would be worse than no record at all. Ordinarily, therefore, records made in the usual course of business, made contemporaneously with the occurrences, acts, and events recorded by one authorized to make them and before litigation has arisen, are admitted upon proper identification and authentication. Builders Supply Co. v. Dixon, 246 N.C. 136, 97 S.E. 2d 767; Breneman Co. v. Cuningham, 207 N.C. 77, 175 S.E. 829; Insurance Co. v. R. R., 138 N.C. 42, 50 S.E. 452.”

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“In instances where hospital records are legally admissible in evidence, proper foundation must, of course, be laid for their introduction. The hospital librarian or custodian of the record or other qualified witness must testify to the identity and authenticity of the record and the mode of its preparation, and show that the entries were made at or near to the time of the act, condition, or event recorded, that they were made by persons having knowledge of the data set forth, and that they were made ante litem motam. The court should exclude from jury consideration matters in the record which are immaterial and irrelevant to the inquiry, and entries which amount to hearsay on hearsay.”

A careful review of the testimony of Dr. Walter Sikes, the witness who read the clinical notes into evidence, reveals complete compliance with the requirements set forth in Sims, supra. Therefore, the trial court properly determined the clinical notes to fall within one of the exceptions to the hearsay rule and as such to be admissible into evidence.

Next, the defendant maintains that the court committed prejudicial error in allowing into evidence medical testimony regarding the defendant’s ability to discern between right and wrong at the time of the trial. Assuming, arguendo, that it was error for this evidence to be admitted, we fail to see how this could possibly constitute prejudicial error and thus this assignment of error is overruled.

Finally, defendant brings forward and argues several other assignments of error which we have carefully examined and find to be nonmeritorious.

The defendant was afforded a fair trial free from prejudicial error.

No error.

Judges Parker and Vaughn concur.