Submitted September 19, 2018
From Pickens County Brian M. Gibbons, Circuit Court Judge
Falkner Wilkes, of Greenville, for Appellant.
Attorney General Alan McCrory Wilson, Deputy Attorney General
Donald J. Zelenka, Senior Assistant Deputy Attorney General
Melody Jane Brown, and Assistant Attorney General Susannah
Rawl Cole, all of Columbia; and Solicitor William Walter
Wilkins, III, of Greenville, all for Respondent.
Simpson appeals her convictions for murder, attempted murder,
and possession of a weapon during the commission of a violent
crime. Simpson argues the trial court erred in (1) admitting
forensic expert testimony, (2) excluding expert testimony,
and (3) denying her motion for a directed verdict. We affirm.
14, 2013, a neighbor of Suzanna and Michael Simpson heard a
noise in his yard and found Suzanna Simpson's truck in a
ditch near some downed trees. When the neighbor approached
the truck, Simpson told him her back hurt. The neighbor
repeatedly asked Simpson where her husband and children were,
and Simpson only responded "I don't know" and
"Am I going to be okay?" According to the neighbor,
Simpson was coherent, and he had no trouble communicating
was transported to the hospital for treatment. According to a
nurse who treated Simpson, Simpson told him, "I shot my
husband and kids . . . [a]nd then I had an accident."
When the nurse asked Simpson why she shot her family, she
responded, "because it's an awful world." When
the nurse asked why Simpson did not kill herself instead, she
replied, "I thought about it and tried, but I
couldn't do it." According to the nurse, Simpson was
alert, knew where she was, and spoke clearly. Simpson refused
to talk to the police at the hospital.
Simpson was receiving treatment, police went to the Simpson
home and found the bodies of Simpson's five-year-old son
and seven-year-old daughter in their bedrooms, both with
gunshots to the head. Michael Simpson was also shot and found
still breathing on the floor of the master bedroom. Police
later found a .40 caliber handgun at the scene of
February 2014, Simpson was indicted by the Pickens County
Grand Jury for two counts of murder, one count of attempted
murder, and possession of a weapon during the commission of a
violent crime. A jury trial was held on June 20-23, 2016.
pre-trial motions, Simpson moved for a directed verdict,
arguing that after she informed the State she intended to
plead not guilty by reason of insanity, the State was
required to put her on notice of any expert witnesses to
rebut her insanity claim. Because the State had not given
Simpson notice of its intention to call an expert witness,
she argued the State would not meet its burden of proof. The
State argued the motion for a directed verdict was not
appropriate as a pre-trial motion because the defense of
insanity is an affirmative defense requiring Simpson to
present some evidence. The State also asserted it was not
obligated to give Simpson notice of an expert witness and an
expert witness was not required to combat the affirmative
defense of insanity. The trial court denied Simpson's
motion for a directed verdict.
also sought to limit the opinion testimony of lay witnesses,
again arguing the State could not prove she was sane without
expert testimony. The State countered they could prove their
case with lay witnesses. The trial court denied Simpson's
motion. Simpson then asserted the State could not prove
through lay witnesses that she had a mental impairment, and,
thus, could not conform her conduct to the requirements of
the law. The trial court denied Simpson's motion to limit
next moved to bar the testimony of her treating psychiatrist,
Dr. Jeff Smith. Simpson's expert witnesses had consulted
Dr. Smith and he was a known witness. The State informed the
court it might ask to qualify Dr. Smith as an expert in
psychiatry, but it was not sure how it would use his
testimony. The trial court decided to rule on any objections
to the testimony at the appropriate time.
trial, several witnesses testified as to Simpson's
behavior leading up to the shootings. Nathan Stegall, a
friend of the Simpsons, testified he visited the
Simpson's home the day before the shootings. Stegall
testified that while he waited for Michael, Simpson seemed
angry. Stegall believed Simpson and her husband were arguing.
Later that evening, Stegall received a text message from
Simpson that read, "Hell on earth?"
Simpson's children's school, another parent testified
he saw Simpson in the school office the day before the
shootings. The parent observed Simpson withdrawing her
daughter from school. When asked for the reason, Simpson said
she was picking up her daughter because her son was sick, and
she was afraid her daughter might also be sick. Simpson's
son, who was with her, said, "I'm not sick,
Mom." The parent observed Simpson pacing back and forth
and growing impatient while waiting for her daughter. When
the parent suggested Simpson's daughter was likely
collecting her backpack, Simpson replied "Where
she's going to go, she don't need no backpack."
Simpson also appeared angry and snapped at the parent as she
left the building with her children.
mother-in-law, Allison, testified regarding a conversation
the night before the shootings in which Simpson asked her why
her mother-in-law and father-in-law did not come to visit and
help with the kids more often. Allison also recalled another
conversation with Simpson the previous year following
Simpson's release from a behavioral care center. After
Simpson was discharged, Michael left on a hunting trip, and
Simpson called Allison asking if she thought Michael would
return home to his family.
mother, Susan, testified Simpson called her the day before
the shootings and asked her if her parents really wanted her.
Later that day, Simpson called again and asked her mother if
various relatives who were deceased were better off in
heaven. In another call, Simpson spoke to Susan about the
evils of the world and how you could not protect your
children from those evils. When Simpson called again that
evening, Susan testified Simpson sounded happy, saying she
and her husband were going to seek marital counseling. Later
that evening, however, Simpson called Susan again and said,
"Mike's through with me. He thinks I can't take
care of the children." When Susan pressed her for
details, Simpson said Michael told her she stares into space
all the time. Susan also testified Simpson had what appeared
to be a psychotic episode in 2012. Simpson was hospitalized
for five days after this episode and was then transferred to
a behavioral health center where she remained for three days.
Susan recalled several instances in which her daughter told
her she believed the family was being watched.
close of the State's case, Simpson renewed her motion for
a directed verdict, arguing the State had failed to give the
defense notice of their intent to call an expert witness. The
State argued the law presumes the defendant is sane and an
affirmative defense requires the defense to prove by a
preponderance of the evidence that Simpson was insane at the
time of the shootings. The trial court asked the State if it
intended to call an expert witness, and the State said it
could not be sure without knowing how Simpson would present
her case, but if it did call a witness, it would be Dr.
Smith. The trial court again denied Simpson's motion for
a directed verdict.
presented three expert witnesses at trial. Dr. Leonard Mulbry
testified he met with Simpson three times after the shootings
and examined her medical records. Dr. Mulbry diagnosed
Simpson with schizoaffective disorder bipolar type. Dr.
Mulbry outlined her medical treatment in the years before the
shooting, beginning with mild depression in college, followed
by episodes of post-partum depression. He further noted that
in 2010 Simpson began seeing Dr. Smith who treated Simpson
with several medications in an effort to control her
symptoms. After a review of Simpson's medical records and
Dr. Smith's notes, Dr. Mulbry explained that
Simpson's moods cycled through depression, sleeplessness,
confusion, and paranoia. Dr. Mulbry opined Simpson was unable
to distinguish legal and moral right from wrong at the time
of the shootings.
cross examination, Dr. Mulbry testified he examined Simpson
nine months after the shootings. Dr. Mulbry also acknowledged
he never consulted with Dr. Smith and relied only on Dr.
Smith's notes in forming his opinion. Dr. Mulbry noted
that after Simpson received treatment for her bipolar
disorder at the treatment facility in 2012, her mood
improved, she had no hallucinations or homicidal thoughts,
and she didn't mention any concerns for her children. Dr.
Mulbry also noted Simpson had not been diagnosed with
schizoaffective disorder prior to the shootings. Dr. Mulbry
admitted that during the period he believed Simpson suffered
from schizoaffective disorder in the hours before the
shooting, he could not opine whether Simpson knew right from
wrong when she spoke to the officials at the children's
school, interacted with Nate Stegall and her neighbor, and
had several conversations with her mother and mother-in-law.
second expert witness, Dr. David Price, evaluated Simpson by
meeting with her and Dr. Smith and reviewing Simpson's
extensive medical records. Dr. Price also diagnosed Simpson
with schizoaffective disorder bipolar type and opined Simpson
was not able to distinguish between right and wrong at the
time of the shootings. Dr. Price testified there was "no
question" about Simpson's psychosis, delusions, and
paranoia on the night of the shootings. Dr. Price testified
Dr. Smith agreed with his opinion, and the State objected
based on hearsay. The trial court sustained the objection.
Richard Frierson, a court appointed psychiatrist, also
diagnosed Simpson with schizoaffective disorder bipolar type.
Dr. Frierson testified Simpson suffered from episodes of
mania, depression, and delusional or paranoid thinking. Dr.
Frierson opined Simpson could not distinguish right from
wrong at the time of the shootings.
conclusion of the defense's case, the State informed the
court it sought to call Dr. Smith as a reply witness. Simpson
renewed her motion for a directed verdict, arguing the State
was not entitled to present a rebuttal witness because her
due process rights were violated when the State did not
present evidence of her sanity beyond a reasonable doubt in
its case-in-chief. Simpson further argued she did not consent
to Dr. Smith's testimony, nor had she waived her
physician/client privilege. The State argued Simpson waived
her privilege in accordance with section 44-22-90 of the
South Carolina Code (2018) when she released her medical
records to her retained experts. The State also argued it was
entitled to call Dr. Smith pursuant to Rules 703 and 705,
SCRE, because Simpson's experts relied on Dr. Smith's
treatment of Simpson in forming their opinions about her
diagnosis. The State said Dr. Smith would be qualified as a
psychiatrist and as a fact witness to his treatment of
Simpson in the years prior to the shootings. The State
informed the court it also expected Dr. Smith to explain that
Simpson's remediation within forty-eight hours of the
shootings was atypical, and that he would not expect to see
that in a patient with a true psychosis.
argued Dr. Smith should not be permitted to testify whether
she knew right from wrong or could conform her behavior. The
trial court replied, "Because you say he's not
qualified to because he's not a forensic
psychiatrist." The court informed Simpson it would make
that determination after voir dire. The following day, the
State argued Dr. Smith was qualified to testify about
Simpson's ability to conform her behavior to the
requirements of the law because of his qualifications as a
psychiatrist. The State argued any distinction between a
treating psychiatrist and a certified forensic psychiatrist
would be a matter of weight for the jury to ...