591 S.W.2d 342 (Ark. 1979), CR77-111, Gruzen v. State

Docket Nº:CR77-111.
Citation:591 S.W.2d 342, 267 Ark. 380
Opinion Judge:[34] The opinion of the court was delivered by: John A. Fogleman, Justice.
Party Name:John Elliott GRUZEN, Appellant, v. STATE of Arkansas, Appellee.
Attorney:[32] Lessenberry & Carpenter, for appellant. [33] Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
Case Date:December 17, 1979
Court:Supreme Court of Arkansas

Page 342

591 S.W.2d 342 (Ark. 1979)

267 Ark. 380

John Elliott GRUZEN, Appellant,


STATE of Arkansas, Appellee.

No. CR77-111.

Supreme Court of Arkansas.

Dec. 17, 1979.

Rehearing Denied Jan. 21, 1980.

Page 343

[Copyrighted Material Omitted]

Page 344

[267 Ark. 384] Lessenberry & Carpenter, Little Rock, for appellant.

Steve Clark, Atty. Gen., by Dennis R. Molock, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

John Elliott Gruzen was convicted of the capital felony murder of Dana Diane Mize. The jury fixed his sentence at life imprisonment without parole. He has chosen to argue four points for reversal. We will first consider those and later examine other objections to determine whether there was prejudicial error in his trial.

Gruzen pleaded not guilty and not guilty by reason of insanity to the charge that, on April 13, 1976, he had committed the crime of capital murder during the course, and in the furtherance, of the kidnap and rape of Dana Diane Mize under circumstances manifesting extreme indifference to the value of human life.

We first treat Gruzen's argument that the trial court abused its discretion in finding him to be competent to be tried, convicted or sentenced. Gruzen had an extended history of psychiatric problems. At the time of the revolting crime with which he was charged, he was 34 years of age and living at the home of his parents in Maplewood, New Jersey. He was an honor graduate of Rutgers University extension college

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at Newark, although it had taken him nine years to complete the course of studies.

The crime occurred after Gruzen had left his parents' home in New Jersey on April 8, 1976. He left a note to his parents that he was leaving New Jersey for a time in order to try to straighten out his problems. He returned home on April 16, 1976, and immediately contacted Dr. Max Pusin, a psychiatrist who had treated him for seventeen years. After his consultation with Dr. Pusin, it was disclosed that a crime of the nature of an incident he had discussed with Dr. Eugene Revitch, a forensic psychiatrist to whom Gruzen had been referred by Dr. Pusin, had been committed in Faulkner County, Arkansas. Extradition was waived and Gruzen was returned to this state. The information on which Gruzen was put to trial was filed on April 27, 1976.

[267 Ark. 385] Upon motion of the prosecuting attorney, Gruzen was committed on June 8, 1976, to the Arkansas State Hospital for examination. The usual 30-day period of observation was extended for two weeks at the request of the Commissioner of Mental Health. On July 19, 1976, the hospital reported a diagnosis of schizophrenia, paranoid type, that Gruzen was "with psychosis" and indicated that there was a need for treatment of Gruzen. An additional 120 days' observation was granted by the trial court upon the prosecuting attorney's request. There was no change in the diagnosis. Thereafter, a hearing on the competency of Gruzen to stand trial was held. Before formal sentencing, a second hearing on Gruzen's competency was held.

In the report on the first examination, it was stated that it was the opinion of the examining psychiatrist, Dr. A. F. Rosendale, and the joint opinion of the psychiatric staff that Gruzen was mentally ill to the degree of legal irresponsibility at the time of his examination, that he probably was at the time of the alleged offense, that Gruzen did not have the mental capacity to understand the proceedings against him or to assist in his own defense and that he was probably suffering from mental disease or defect of such a degree as to make him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

On December 15, 1976, a hearing was held in order that the trial court might determine whether Gruzen was mentally capable of standing trial. A deposition of Dr. Max Pusin, which had been taken in New Jersey on December 8, 1976, was read into the record. Dr. Pusin testified that he had first examined Gruzen on December 22, 1959. He described Gruzen as one who spent a lot of time in fantasies, both grandiose and erotic, which replaced very harsh reality. He had diagnosed Gruzen as schizoid, and said that Gruzen had, at age 17, deteriorated into a schizophrenic state. He described schizophrenia as the most common serious psychosis in this country. Dr. Pusin had found the presence of paranoid tendencies. He said that Gruzen's thinking was tangential. He stated that, in 1974, Gruzen had unsuccessfully attempted suicide after having investigated and researched the subject, and having become preoccupied with [267 Ark. 386] suicide as early as 1961. Dr. Pusin said that he had caused Gruzen to be hospitalized, for Gruzen's own safety, in a mental hospital in 1961, but that Gruzen had left the hospital contrary to medical advice. He said that Gruzen had renewed his research on suicide in March, 1976. Dr. Pusin said that, after Gruzen's departure from his home April 8, 1976, he returned on April 16 in a great state of excitement, confusion, disorientation and agitation. Dr. Pusin said that he had, on April 17, committed Gruzen to a mental hospital where his diagnosis of paranoid schizophrenia (which Pusin said was acute) was confirmed. Dr. Pusin said that a depressive, progressive depression had been going on since December, 1975 or January, 1976.

Dr. Charles Dean Yohe of Hot Springs, who practices medicine with a specialty in psychiatry, had examined Gruzen three times while he was in the Arkansas State Hospital. Each time took two hours. He had last examined Gruzen the day before the hearing. His diagnosis was schizophrenic reaction, paranoid and catatonic

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features. His prognosis was very poor. He said he had learned that Gruzen was not taking any medication while he was in jail in Faulkner County. According to him, Gruzen had retreated into fantasies and auditory hallucinations. He expressed the opinion that Gruzen did not know what was going on at the hearing, but had other voices to which to listen. Dr. Yohe had been unable to have full and free communication with Gruzen on any subject and said that Gruzen was incapable of talking "straight" for more than a few seconds and would change the subject three or four times in a single sentence in a very illogical way. In his opinion, Gruzen, in a situation where stress was involved, like a criminal trial, would go "way off the subject." He doubted that, in a criminal case where the punishment might be death, an attorney would get any relevant material from Gruzen. Dr. Yohe found that Gruzen's condition had deteriorated considerably between his last observation of him at the state hospital and the one on the day before Yohe testified.

Dr. Albert Rosendale, the examining psychiatrist, testified that before Gruzen was brought before the combined staff of the hospital on July 19, he had concluded that Gruzen had the mental capacity to understand the proceedings [267 Ark. 387] against him and to assist effectively in his defense, and that, in spite of the fact that he changed his opinion as to diagnosis and joined in the staff opinion, he had observed Gruzen during his subsequent stay in the hospital and, while he was still convinced as to the staff diagnosis of "schizophrenic, paranoid type," he was of the opinion that Gruzen had the capacity to assist in his defense and to understand the proceedings against him at the time of the hearing. Dr. Rosendale emphasized the fact that Gruzen said repeatedly that, upon advice of his attorney, he was not to discuss anything concerning the crime with which he was charged. Dr. Rosendale said, however, that he had not seen Gruzen in two months, and did not know what his condition was at the time he was testifying. He stated that Gruzen's condition might have either improved or deteriorated during the two months after he had left the state hospital. He had heard Dr. Yohe's testimony, and did not question that doctor's observation that Gruzen had greatly deteriorated mentally. He said that, if Gruzen were sent back to the hospital he would reevaluate him, and that the psychiatric staff had been asked to reevaluate him, but that he would not be able to comment on his condition three months later.

Lt. Ken McFerrin of the Arkansas State Police, who attended Gruzen's extradition hearing in New Jersey and then brought him back to Arkansas, had visited Gruzen in the Faulkner County jail after the hospital observation and felt that Gruzen was oriented as to time and place and knew where he was. McFerrin said that he and Gruzen had a nice visit, that Gruzen knew him, remembered their association and discussed their trip with him. McFerrin stated that, when he and Gruzen were leaving New Jersey, Gruzen was instructed by his attorney not to talk with "anyone about anything."

At the conclusion of the hearing, the trial judge stated, "The court holds that this is a question for the jury to decide." In this, the court erred. No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted or sentenced for the commission of an offense, so long as the incapacity endures. [267 Ark. 388] Ark.Stat.Ann. § 41-603 (Repl.1977). It is certain, beyond reasonable doubt, that Gruzen has a mental disease or defect. When his fitness to proceed with the trial became an issue, it was the duty of the court to make a determination of that issue, either on the report of the Arkansas State Hospital or after a hearing on that issue. Ark.Stat.Ann. § 41-606 (Repl.1977). This is a matter that must be decided by the trial judge, and it is...

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