Chestnut v. State

• Decision Date: 23 February 1987
• Docket Number: No. BK-209,BK-209
• Parties: 12 Fla. L. Weekly 1109, 12 Fla. L. Weekly 598 Adam Blaine CHESTNUT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1352

505 So.2d 1352

12 Fla. L. Weekly 1109, 12 Fla. L. Weekly 598

Adam Blaine CHESTNUT, Appellant, v. STATE of Florida, Appellee.

No. BK-209.

District Court of Appeal of Florida,

First District.

Feb. 23, 1987.

Rehearing Denied and Question

Certified April 29, 1987.

Appeal from the Circuit Court for Alachua County; Stephen P. Mickle, judge.

Michael E. Allen, Public Defender, and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

The briefs and the record on appeal having been read and given full consideration, and appellant having failed to demonstrate reversible error, the judgment and sentence of the lower court is AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.

ERVIN, J., concurs and dissents, with written opinion.

ERVIN, Judge, concurring and dissenting.

Appellant's appeal from his conviction of first degree premeditated murder with the imposition of a life sentence ¹ raises several points for our consideration. I concur in affirming as to all except that relating to the issue contending the lower court committed reversible error in excluding appellant's proffered evidence, submitted on the theory that the evidence was relevant to the defense that appellant's diminished mental capacity was such as to preclude him from forming the specific intent necessary to commit first degree murder.

The victim was robbed and killed while in the company of appellant Chestnut and two other persons, Jackie Bolesta and Gary German, during a trip to look at horses Bolesta purportedly had for sale. The state's case relied primarily upon the testimony of the accomplice German, who stated that before the crime occurred, Bolesta and appellant had discussed a plan to rob and kill the victim, Carl Brown. German's testimony was that appellant held an ax handle over the victim while Bolesta demanded the victim's money, and that appellant then struck Brown across the forehead, resulting in Brown's surrender of his money, whereupon appellant and Bolesta, who was armed with a machete, took Brown down the road and there murdered him. Following the murder, German and appellant took the body into the woods and concealed it. Appellant drove the victim's truck to Ocala, where it was left at a motel. Then all three disposed of the machete, the ax handle and the victim's bloody T-shirt.

In a statement made to Investigator Lentz of the Alachua County Sheriff's Department, appellant admitted that he was aware that Bolesta had planned to rob the victim, but he denied any knowledge of a planned murder, stating that it was Bolesta--not he--who hit Brown on the head with the ax handle, and robbed and murdered him. While denying any role in the robbery or killing, Chestnut admitted that at Bolesta's order he dragged Brown's body into the woods and there covered it.

Chestnut took the stand as the only defense witness, and related the events as Investigator Lentz had stated them; however he denied any prior discussion with Bolesta as to the robbery of Brown or any other illegal activity. He stated that following the murder of Brown by Bolesta, Bolesta threatened to kill him if he did not help conceal the body, or did not drive the victim's truck to Ocala. Under cross-examination, Chestnut admitted discussing with Bolesta a plan to rob Brown, but he stated that he never agreed to participate. In conflict with Investigator Lentz's testimony, he denied that he had not said anything in his statement of threats made by Bolesta to him.

Following arguments by counsel, the jury was generally instructed on the offenses of premeditated first degree murder, first degree felony-murder, second degree murder, second degree felony-murder, and manslaughter. The underlying felony of robbery was also defined in regard to the felony-murder instruction. Over defense objection, the court declined to submit to the jury a special verdict form involving felony-murder. The jury then returned a guilty verdict of first degree murder.

Prior to trial the state filed a motion in limine, seeking to restrict the anticipated testimony of certain witnesses, particularly that of Dr. Harry Krop, a psychologist, who, the state alleged, would testify as to appellant's having a mental condition less than that recognized in the McNaughton rule; therefore, the state contended, any such testimony would be improper. Additionally the motion recited that the state believed that other witnesses would testify regarding the general reputation for violence of the co-defendant, Joseph Bolesta, as well as Chestnut's general fear of the co-defendant, which testimony, it was contended, should be excluded in that it related to the improper defense of duress.

In response to the state's motion in limine, appellant moved to have the court determine the admissibility of certain defense evidence, arguing that because the state appeared to be intent on pursuing its theory of felony-murder, in addition to that of premeditated murder, the defense of duress or coercion was an appropriate defense to murder in the first degree. The motion continued that while such testimony does not reach the issue of legal incapacity under the McNaughton standard, it is consistent with the defendant's theory of defense.

In its order granting the state's motion in limine, the court ruled that the proposed testimony of the expert defense witnesses, Drs. Krop and Valenstein, would be excluded, because neither would be able to state that appellant meets the McNaughton test for insanity. The court observed that "absent an insanity plea, expert testimony as to mental status, especially when offered to bolster an affirmative defense would be improper in and of itself since it would only tend to confuse the jury." The court also excluded the testimony of other witnesses who would testify regarding the violent reputation of the co-defendant, Joseph Bolesta, on the ground that none of them had heard a specific threat made to Chestnut, nor had Chestnut ever claimed that Bolesta made any threat to him prior to the homicide. Finally the court ruled that the reputation evidence of Bolesta for violence was inadmissible on the ground that duress is not a defense to a homicide case, and that one cannot justify the taking of the life of an innocent person because of a threat.

Following the court's ruling, the defense submitted a proffer of the excluded evidence. The proffered testimony of Dr. Krop related that appellant has marginal intelligence in the lowest five percent of the general population; that he suffers from brain damage and diminished mental capacity, with some moderate impairment of verbal memory; and that he has a passive personality causing him to avoid physical confrontation, with the result that he is easily led and manipulated. The proffer also recounted an incident that occurred several years before during which appellant suffered a fractured skull and probable brain damage after being kicked in the head by a bull. The injury caused a post-traumatic seizure disorder, requiring that appellant be placed on medication in order to prevent the seizures from recurring. Dr. Krop concluded with the comment that appellant's profile was characteristic of a distress syndrome, typical of individuals who tend to be dependent and who have an exaggerated need for affection; that his responses to questions indicate that he customarily deals with conflicts in a passive and dependent manner; that he is easily influenced by others and, when confronted, generally conforms or withdraws.

Dr. Valenstein, a neurologist at Shands Hospital, reviewed the results of an examination conducted on Chestnut following his skull fracture. According to Dr. Valenstein, the incident caused appellant to suffer brain damage. In his opinion this type of injury frequently causes personality change, resulting in the patient being easily influenced by others.

The defense proffered also the testimony of a number of witnesses whose testimony would be relevant to both appellant's duress and diminished mental responsibility defenses. As to the former theory, most of the witnesses' testimony would relate to the violent reputation of Bolesta in the community in which he resided. As to the latter defense, the witnesses' testimony generally pertained to their knowledge of the head injury suffered by Chestnut and his resulting diminished mental capacity.

Initially, I am in accord with the lower court's conclusion that the proposed evidence pertaining to appellant's defense of duress should be excluded, because duress is inapplicable to the facts involved in the case at bar. Although Florida case law has recognized that the common law defense of duress is a proper defense to certain crimes, see Hall v. State, 136 Fla. 644, 187 So. 392 (1939) (perjury); Koontz v. State, 204 So.2d 224 (Fla. 2d DCA 1967) (attempted robbery), the cases also agree that the defense is ordinarily not available to one charged with homicide or attempted homicide. See Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980); Wright v. State, 402 So.2d 493, 498 (Fla. 3d DCA 1981). The Wright opinion, however, left the question open in cases wherein duress is raised as a defense to first degree murder, when prosecuted under a felony-murder theory. Under such circumstances, the court acknowledged that "a different question is presented, since duress is a recognized defense to the underlying felony, and the rationale of the rule prohibiting the duress defense in the crime of homicide appears inapplicable." Id. at 498-499, n. 8. Wright did not address the question of the defense's applicability to felony-murder, in that the defendant there was charged with and defended against first degree murder by premeditated design.

In the present case, although the state charged appellant with premeditated first degree murder, it also argued appellant's guilt under the theory...