dissenting.
I cannot agree with the majority that the trial court erred in refusing to allow Dr. Brad Fisher, a forensic clinical psychologist, to state his opinion as to whether the defendant understood the Miranda warnings given to him so as to voluntarily, knowingly, and intelligently waive those rights.
On voir dire, Dr. Fisher testified as follows (I have emphasized the essence of the question asked and the answer given in response thereto):
Q: And, Dr. Fisher, based upon your knowledge, skill, experience, training, education and your clinical evaluation in this case, do you have an opinion as to whether Jose Pepe Sanchez understood his Constitutional rights, commonly referred to as Miranda Rights, including the right to remain silent and the right to an attorney as read to him on May 26, 1988 and on June 3, 1988 and also on June 6, 1988 so that he could voluntarily, knowingly and intelligently waive these rights?
A: Yes.
Q: What is your opinion?
A: My opinion is that he did not. This is based on the specific questions I have spoken to earlier in my own testimony the first time [at the suppression hearing]. For example, that he didn’t know what it meant to have a right to. He did not know what an attorney was. There are, there are a set of *253questions you give as a test for the extent to which you understand Miranda. I gave that and I found limits to the extent that I thought that he was not able to fully comprehend the Miranda Rights.
(Emphasis added.)
The State argued that the opinion testimony was inadmissible as a conclusion that a legal standard had not been met, in violation of State v. Rose, 323 N.C. 455, 373 S.E.2d 426 (1988). The majority candidly admits: “That argument has merit as to the part of the question concerning whether defendant could voluntarily, knowingly, and intelligently waive his Miranda rights. This, of course, did involve a legal standard and if the witness had replied to this part of the question, it would have been properly excluded.” The majority concludes, however, that Dr. Fisher “confined his answer to defendant’s understanding of his Miranda rights and gave certain specific examples such as defendant’s ability to understand ‘right’ and ‘attorney,’ ” and thus “the part of the question dealing with voluntariness is not at issue on this appeal.” I cannot agree.
As I have pointed out, the essence of the question asked was: “Dr. Fisher, ... do you have an opinion as to whether Jose Pepe Sanchez understood his Constitutional rights, ... so that he could voluntarily, knowingly and intelligently waive these rights?” Dr. Fisher’s answer was: “My opinion is that he did not.” Everything thereafter in his response was, as the majority characterizes it, merely “examples” to fortify his belief that defendant did not voluntarily, knowingly, and intelligently waive his rights. The majority clearly errs when it says Dr. Fisher confined his answer to defendant’s understanding of his Miranda rights. The majority further errs in concluding that “the part of the question dealing with voluntariness is not at issue on this appeal.”
Dr. Fisher’s answer was that, in his opinion, defendant did not understand his constitutional rights so as to voluntarily, knowingly, and intelligently waive those rights. This addressed the ultimate legal standard and was properly excluded.
Justice MITCHELL joins in this dissenting opinion.