Cirack v. State

Decision Date05 July 1967
Docket NumberNo. 35250,35250
Citation201 So.2d 706
PartiesCharles Alexander CIRACK, Appellant, v. The STATE of Florida, Appellee.
CourtFlorida Supreme Court

William W. Judge, Daytona Beach, for appellant.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

O'CONNELL, Chief Justice.

The appellant, Charles Alexander, Cirack, and Richard Vernon White were tried and convicted of murder in the first degree of Moses Jackson. The jury recommended mercy for White, but not for Cirack who seeks reversal here of the judgment of guilty and sentence of death. White is not involved in this appeal.

On May 8, 1965 Cirack and White, driving in Cirack's convertible automobile, saw two negroes standing on a street corner in Titusville. As they drove by White asked if they were hitchhiking and Andrew Cash, Moses Jackson's companion, replied in the negative.

The evidence reveals that Cirack and White them went to the house of George Reid Scobie, Jr., from whom they obtained a 38 calibre revolver with four shells. Scobie, who testified for the State, stated that Cirack and White told him that they had seen 'these hitchhikers and wanted to rob them.'

Cirack and White returned to the two negroes, who were still on the street corner, and offered them a ride to their home in Oviedo. Jackson and Cash finally entered the car and White drove away with the two negroes sitting in the rear and the two white men in the front. After traveling some 15 or 20 miles, and into Volusia County, White turned off the highway, parked the car, and got out saying he was going to urinate. Jackson also left the car leaving Cirack and Cash in it. Cirack then told Cash that he wanted '3 bucks apiece from you guys.' While Cash and Jackson were talking over this demand from a distance, Cash in the car and Jackson some years away, Cirack ordered Cash out of the car. Cash refused. Cirack got out of the car, pulled the pistol and holding it on Cash saying, 'Get out or I'll blow your brains out.' Jackson grabbed White and moved toward Cirack ultimately getting close enough to push White aside and grab for Cirack's gun hand. Cash testified he saw Cirack get his hand loose and shoot Jackson in the face. Cash went to where Jackson had fallen, knelt, and turned him over. Although White pleaded that he not do so, Cirack then shot Cash in the back of his neck and shoulder as he either knelt by Jackson or tried to escape through Cirack's legs. Cash escaped to the highway and hailed a motorist who took the two negroes to a hospital in Titusville where Jackson died shortly thereafter. Cash recovered from his wound and testified for the State.

We have omitted many details of the incidents prior to and following the shooting for we do not feel them to be significant to the issues we must decide.

Appellant contends first that the evidence does not support the verdict of murder in the first degree. On the contrary after careful and critical reading of the whole record we find that the evidence adequately supports the verdict.

Secondly, appellant contends that the trial judge committed error in ruling that the opinion of a court appointed expert witness, a psychiatrist, as to the sanity of the defendants 'must be based upon your examination, observations, and tests of the defendants, and not on the factual matters stated by the defendants to you, which are not in evidence and which you assumed to be true.'

Whether or not this ruling might or might not be infallible as an abstract statement or rule is unimportant. Under the circumstances in which it was made in this case it is absolutely correct. A re sume of these circumstances will so demonstrate.

The defendants pled not guilty, and not guilty by reason of insanity. Thereafter, the court appointed Dr. Estes and Dr. Chambers, psychiatrists, to examine Cirack and White as to their mental condition. Both of these doctors examined each of the defendants and filed written reports of their findings and opinions. Both reports found the defendants sane at the time of the examinations in November, 1965. Dr. Chambers reported that in his opinion Cirack was also sane, i.e., knew right from wrong, on May 8, 1965, the day Moses Jackson was killed. However Dr. Estes reported that in his opinion on May 8th Cirack became temporarily unable to exercise his ability to determine right from wrong, as a result of the effects of alcoholic intoxication on his basically unstable mind and emotionally immature personality. It was the opinion of Dr. Estes that although Cirack's temporary emotional derangement, resulting from consumption of too much alcohol and too little food, produced impaired judgment, it did not constitute a fixed mental disorder of psychotic insane proportions.

After the state rested its case, the defense rested without producing any evidence. Then on motion of the defense the court ordered that both psychiatrists be called as court witnesses.

Dr. Estes was called first and after qualifying questions by the trial judge and a few preliminary questions by the prosecution the jury was excused on request of the prosecution. In making this request the prosecution explained that it wished to lay a 'predicate for a certain matter that should be done outside of the hearing of the Jury.'

The prosecution then continued its examination of Dr. Estes. During this examination it was established that in arriving at his opinion, that on May 8, 1965 Cirack was unable to distinguish between right and wrong or to exercise ordinary good judgment, Dr. Estes relied upon statements made to him by the defendants in November, 1965 that they had consumed large quantities of alcoholic beverages and eaten too little food for a three day period before and including the day Moses Jackson was killed. Dr. Estes stated that he assumed these statements of the defendants to be true, however, no evidence had been or was thereafter introduced that would support those statements.

The prosecution then stated to the court that the testimony and opinion of Dr. Estes as to 'sanity' of the defendants was inadmissible in evidence because 'it invades the province of the Jury to determine the truth and validity of the facts and circumstances upon which he bases his opinion.'

Following argument of both sides the trial judge made the ruling quoted above and explained its effect to Dr. Estes. The jury was recalled, the defense attempted to have Dr. Estes state his opinion as to the ability of the defendants to distinguish between right and wrong, and Dr. Estes was prevented from giving his opinion under the court's ruling here under attack. Here it should be noted again that the defense offered no evidence, and while the state's evidence showed that the defendants did drink alcoholic beverages on the day of the crime it did not support the statements which Dr. Estes said the defendants made to him. On the contrary, the state's witnesses Cash and Scobie both testified that the defendant Cirack may have been tight but was not intoxicated or 'drunk.'

Although the opinion of Dr. Estes appears to have been treated as dealing with the sanity of Cirack it obviously did not. The doctor stated in his report and on examination outside the presence of the jury that he found no evidence of a psychosis, mental disease or disorder of the mind in Cirack. His opinion held merely that Cirack's judgment and ability to distinguish between right and wrong was impaired by too much alcohol and too little food. The law recognizes insanity super-induced by the long and continued use of intoxicants so as to produce 'a fixed and settled frenzy or insanity either permanent or intermittent.' Garner v. State, 1891, 28 Fla. 113, 9 So. 835; Cochran v. State, 1913, 65 Fla. 91, 61 So. 187; and Britts v. State, 1947, 158 Fla. 839, 30 So.2d 363. This condition was not found in Cirack.

Dr. Estes opinion could only go to proving the defense of voluntary intoxication, not insanity. While not a complete defense, voluntary intoxication is available to negative specific intent, such as the element of premeditation essential in first degree murder. Garner v. State, supra.

Dr. Estes, as an expert, could properly testify as to the effect of a given quantity of intoxicants on Cirack's mind. But the question here is whether he could furnish the basis for his testimony and opinion by testifying to the self-serving declarations of the defendants from which he concluded that Cirack had consumed about a fifth of whiskey per day for three days and eaten only 'nick-nacks.' We think not.

The rule that hearsay evidence, including self-serving declarations and statements, is not admissible is essential to the truth finding process of our adversary system of jurisprudence. The basic reason for its existence is that it prevents the fabrication of testimony and evidence. This is accomplished by requiring the maker of a statement to testify in person and be subject to cross-examination so that the trier of fact, be it judge or jury, will have the opportunity of judging the veracity of the statements. The cases holding such evidence inadmissible are legion. See those cited in 13 Fla.Jur., Evidence, Sections 208, 209.

We know of no reason to depart from the hearsay rule in this case simply because the one who would testify to or utilize the self-serving statements is an expert. The rules relating to opinion evidence likewise require that the opinion of an expert be based on facts in evidence, or within his knowledge. 32 C.J.S. Evidence § 546(63); 9 F.L.P., Evidence, Section 172 and cases cited therein. Also Arkin Construction Company v. Simpkins, Fla.1957, 99 So.2d 557. Admittedly, there are exceptions to this rule, but none of them are applicable here.

The opinions in McCullers v. State, Fla.App.1962, 143 So.2d 909, and Land v. State, Fla.1963, 156 So.2d 8 constitute exceptions to or a relaxation of the rule against use of hearsay evidence by an expert...

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