Gurganus v. State

• Citation: 451 So.2d 817
• Decision Date: 03 May 1984
• Docket Number: No. 62432,62432
• Parties: Larry Harold GURGANUS, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 817

451 So.2d 817

Larry Harold GURGANUS, Appellant, v. STATE of Florida, Appellee.

No. 62432.

Supreme Court of Florida.

May 3, 1984.

Rehearing Denied July 10, 1984.

Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from judgments adjudging appellant guilty of two counts of first-degree murder and two counts of attempted first-degree murder with a firearm. At sentencing, appellant (Gurganus) was sentenced to death and life imprisonment, respectively, for the two first-degree murder convictions. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

On the afternoon of September 10, 1981, Gurganus walked into a convenience store in Bay County where his ex-wife was employed, brandished a gun, and ordered the three customers present to lie down. Gurganus then demanded that his ex-wife leave the store with him. He threatened to shoot her and the customers if she refused. She refused his demands and he shot her. He also shot each of the three customers once in the head, and shot at and struck another customer who happened to enter the store while this scene was unfolding. Gurganus then walked out of the store, drove off, and was later apprehended by police while walking down the road. As a result of the shootings, Gurganus' ex-wife and one of the customers died.

Gurganus was subsequently indicted by the Bay County grand jury on two counts of first-degree murder and three counts of attempted first-degree murder with a firearm. The defense gave notice that insanity would be relied upon as a defense. At trial a physician testified that Gurganus was under medication for severe headaches at the time of the shootings. The medication was Fiorinal, which is a barbituate compound. It was shown that the depressant effect of Fiornal would be multiplied if taken in conjunction with alcohol. The physician testified that the combined use of Fiorinal and alcohol in some instances could lead to violent behavior. A pharmacist testified that he had filled a Fiorinal prescription for Gurganus consisting of thirty-four capsules on the day prior to the shootings. Further testimony showed that a prescription container with five Fiorinal capsules inside was recovered from Gurganus' possessions immediately after his arrest. It was unclear whether this was the same prescription that had been filled the previous day. Finally, evidence that Gurganus may have been drinking immediately prior to the shootings, as well as conflicting evidence of his appearance and behavior at the time of his arrest, was introduced.

Gurganus also attempted to introduce into evidence the testimony of two clinical psychologists who had examined him several times after his arrest. As a result of the state's objections on the grounds of irrelevancy, it was decided that the testimony would first be proffered to the trial court outside the presence of the jury. The testimony of both experts was based on the direct examinations of Gurganus and on hypothetical questions posed by the defense concerning the actions of an individual with a background similar to Gurganus' who had ingested twenty-nine Fiorinal capsules in a twenty-four hour period along with alcohol. The defense maintained that the expert testimony was relevant to several issues concerning Gurganus' state of mind at the time of the shootings. After hearing the proffered testimony, the trial judge refused to allow it into evidence on the grounds that the testimony was irrelevant.

At the close of the trial the trial judge instructed the jury on the charges of first-degree murder and attempted first-degree murder. He explained to the jury that the state's case would be satisfied if the jury found beyond a reasonable doubt that the murders or attempted murders were the result of either a premeditated design or occurred during the commission of a felony, specifically, whether the shootings occurred during the kidnapping or attempted kidnapping of Gurganus' ex-wife. After deliberation the jury returned guilty verdicts on the two counts of first-degree murder and acquitted Gurganus on the third count. At the sentencing proceeding the jury recommended life imprisonment for the killing of Gurganus' ex-wife and a sentence of death for the killing of the customer. The trial judge followed these recommendations in passing sentence finding three aggravating factors in support of the death sentence and only one mitigating factor. In addition, the trial judge sentenced Gurganus to two consecutive life terms for the attempted first-degree murder convictions.

The first issue which Gurganus raises relates to the guilt portion of the trial. Specifically, Gurganus urges that it was harmful error for the trial judge to exclude the proffered testimony of the two clinical psychologists from evidence. Because we agree with Gurganus we find it unnecessary to address those issues concerning sentencing and we reverse the convictions and remand to the trial court with instructions to grant Gurganus a new trial.

During the proffer of the psychologists' testimony the defense made it clear that the testimony was intended to be considered as evidence on three issues relating to Gurganus' state of mind at the time of the shootings: insanity; whether Gurganus' actions more closely resembled a "depraved mind" as opposed to premeditated behavior; and whether Gurganus was able to entertain the specific intent required to convict him of first-degree murder under either the premeditated or felony murder theories taking into consideration the effects of the combined consumption of drugs and alcohol. We will address the trial judge's decision to exclude the testimony as irrelevant on each of these three issues.

It is well established in Florida that the test for insanity, when used as a defense to a criminal charge is the McNaughton Rule. Under McNaughton the only issues are: 1) the individual's ability at the time of the incident to distinguish right from wrong; and 2) his ability to understand the wrongness of the act committed. Brown v. State, 245 So.2d 68 (Fla.1971), vacated on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972); Campbell v. State, 227 So.2d 873 (Fla.1969), cert dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970); Zamora v. State, 361 So.2d 776 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 472 (Fla.1979); Evans v. State, 140 So.2d 348 (Fla. 2d DCA 1962). Evidence which does not go toward proving or disproving an individual's ability to distinguish right from wrong at the time of an incident is irrelevant under the McNaughton Rule, including evidence of irresistable impulsive behavior, Wheeler v. State, 344 So.2d 244, 246 (Fla.1977); Campbell, 227 So.2d at 877, evidence of diminished mental capacity, Brown, 245 So.2d at 71, or evidence of psychological abnormality short of an inability to distinguish right from wrong, Evans, 140 So.2d at 349.

The proffered testimony of the two psychologists shows that their opinions, based upon personal examination of Gurganus and the hypothetical scenario of Gurganus previously ingesting twenty-nine Fiorinal tablets and a quantity of alcohol, were that Gurganus "was not in effective control of his behavior," that he had "a mental defect," and that his judgment "would have been seriously impaired." When asked specifically about Gurganus' ability to distinguish right from wrong at the time of the offense, neither psychologist was able to state within a reasonable degree of certainty that Gurganus did or did not have that ability. The testimony of both was that there were equal probabilities of Gurganus' sanity and insanity under the McNaughten Rule. In effect, neither psychologist was able to form an opinion on the issue. We find this testimony to be of no evidentiary value because it did no more to prove Gurganus' case than it did to prove the state's case. Since it did not tend to prove or disprove the legal insanity of Gurganus, we agree with the trial court's decision to exclude the testimony on this issue as being irrelevant.

The second issue, whether the defendant's behavior at the time of the offense more closely resembled a "depraved mind" than a premeditated plan, is basically a question of the proper scope of expert testimony. During the proffer the defense had read to each psychologist a lengthy hypothetical set of facts based on both facts in the record and facts which could be inferred from the record. These facts included the assumption that Gurganus had used drugs and alcohol immediately prior to the offense. The defense attorney asked each psychologist to give his opinion as to whether Gurganus' actions were closer to a "depraved mind" than to a premeditated plan. The trial court refused to allow either psychologist to render an opinion stating that, regardless of the opinion, the testimony would not be allowed to go to the jury on the grounds that it was irrelevant and an improper infringement on an issue properly to be decided by the jury.

We recognize that:

The trial court has broad discretion in determining the range of subjects on which an expert witness may be allowed to testify, and, unless there is a clear showing of error, its decision will not be disturbed on appeal.... This discretion, however, is not boundless and expert testimony should be excluded...