Hellman v. State

• Decision Date: 13 August 1986
• Docket Number: No. 84-1900,84-1900
• Citation: 11 Fla. L. Weekly 1781,492 So.2d 1368
• Parties: 11 Fla. L. Weekly 1781 Otto HELLMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1368

492 So.2d 1368

11 Fla. L. Weekly 1781

Otto HELLMAN, Appellant, v. STATE of Florida, Appellee.

No. 84-1900.

District Court of Appeal of Florida Fourth District.

Aug. 13, 1986.

Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Amy Diem, Asst. Atty. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

We affirm appellant's conviction of murder in the first degree and sentence of life imprisonment.

There are four issues, which we have restated:

I. Whether the trial court erred by denying the criminal defendant's motion for mistrial when a psychologist witness volunteered that the criterion for involuntary commitment was being a danger to oneself and others. We conclude it did not.

II. Whether the trial court erred by refusing to grant a new trial, because the verdict was contrary to the weight of the evidence. We conclude it did not.

III. Whether the trial court erred by admitting into evidence notebooks purportedly kept by the criminal defendant because the notebooks' content was irrelevant and because the state had not adequately shown the chain of custody. We conclude it did not.

IV. Whether the trial court erred in excusing jurors for their scruples against the death penalty, and by refusing to have separate juries for the issue of guilt and the issue of penalty upon conviction. In light of a very recent United States Supreme Court decision, as well as Florida decisional law, we conclude it did not.

I

Appellant contends a psychologist witness's identification of danger to oneself and others as the criterion for involuntary commitment was so prejudicial that there was no way of curing the prejudice, and therefore a mistrial should have been declared. The reasoning is that the jury would consider the defendant so dangerous that they would be unwilling to find him not guilty by reason of insanity, lest he sooner or later reenter society and perpetrate additional murders.

The state points out that the issue is addressed to the sound discretion of the trial judge, and that the test is the degree to which there has been violation of fundamental notions of fairness. Salvatore v. State, 366 So.2d 745 (Fla.1979). The power to declare a mistrial should be exercised with great care and only when absolutely necessary. Id.

Generally, a witness's inadvertent suggestion that the defendant has criminal proclivities can be overcome by the judge's instruction to the jury to disregard the statement. See, e.g., Marshall v. State, 439 So.2d 973 (Fla. 3d DCA 1983) (curative instruction sufficient to overcome implication of previous arrest in lab technician's testimony on matching defendant's fingerprints with those in the master file of persons previously booked). The Marshall court cited the following authoritative support Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978) (if requested, curative instruction would have corrected any prejudice to defendant caused by reference to commissary slips which could only have been signed by one in jail), pet. for review denied, 402 So.2d 613 (Fla.1981); Williams v. State, 354 So.2d 112 (Fla. 3d DCA 1978) (reference by witness to fact that defendant had been in prison cured by instruction); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977) (denial of motion for mistrial proper when officer's statement that he recognized the defendant from "previous things" was subject of curative instruction). See also Williams v. State, 438 So.2d 152 (Fla. 3d DCA 1983); Evans v. State, 422 So.2d 60 (Fla. 3d DCA 1982); Moore v. State, 418 So.2d 435 (Fla. 3d DCA 1982) (same result where reference is to "mug shot" of defendant).

Id. at 944. We hold the same ought to be true of dangerous propensities.

In the instant case, we do not think it can be surmised that but for Ms. LaFehr's inadvertent mention of the standard for involuntary commitment the jury would have found Hellman innocent. While the witness' accidental mention of the criterion for such commitment is attacked for its prejudicial effect, it seems unlikely that this brief mention could be any more prejudicial than the several defense witnesses' repeated testimony about Hellman's deity complex and, more abstractly, his paranoid schizophrenia. Even absent the inadvertent remark of the psychologist, would not the jury have reason to believe appellant may be dangerous to himself and others, when they had heard of a self-inflicted gunshot wound in the shoulder, and of fourteen bullets fired into Barber? Appellant made no claim he had not shot Barber.

Finally, jury instruction 3.04(b), was given, advising the jury, in its last paragraph, that a verdict of not guilty by reason of insanity does not automatically mean release from custody.

II

The second point on appeal, appellant's most significant issue, is whether the verdict was contrary to the law and the evidence because Hellman was legally insane at the time Barber was killed. If Hellman was at that time legally insane, as appellant contends, the court should have granted the defense motion for a new trial on the ground the verdict was contrary to the weight of the evidence.

Florida adheres to a modernized version of the M'Naghten Rule, as the test for the sanity of the defendant at the time the crime was committed. The Florida Standard Jury Instruction on insanity states this test. Adopted by the Florida Supreme Court in 1976, its correctness was reaffirmed in Wheeler v. State, 344 So.2d 244 (Fla.1977), wherein it was partially quoted as follows:

The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime. A person is sane and responsible for his crime if he has sufficient mental capacity when the crime is committed to understand what he is doing and to understand that his act is wrong. If at the time of an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to understand the nature and quality of his act or its consequences or, if he did understand it, was incapable of distinguishing that which is right from that which is wrong, he was legally insane and should be found not guilty by reason of insanity.

Insanity may be permanent, temporary or may come and go. It is for you to determine the question of the insanity of the defendant at the time of the alleged commission of the crime.

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Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of the person be overcome by passion or temper.

Id. at 246 n. 2.

There was testimony both for and against the proposition that, at the time Hellman shot Barber, he had the mental capacity to understand what he was doing, and to understand that his act was wrong. Surely there was a sufficient basis for putting the question to the jury. We do not comment on the respective parties' burden of proof at trial when we recall that the standard for this court on review is whether there was competent substantial evidence; we may not reweigh the evidence. Tibbs v. State, 397 So.2d 1120 (Fla.1981). When there is a sufficiency of evidence to support a jury verdict, it is an abuse of discretion for the trial court to grant the defendant's motion for new trial. State v. Bowle, 318 So.2d 407 (Fla. 4th DCA 1975). The appellate court's function is not to reweigh the evidence, but only to ensure its legal sufficiency. Burr v. State, 466 So.2d 1051, 1053 (Fla.1985). "[A] new trial will not be granted on the ground that the verdict is contrary to law and evidence, there being evidence to support the verdict, however conflicting the testimony of witnesses of the respective parties may be, unless it seems that great injustice will result." Ivey v. State, 132 Fla. 36, 44, 180 So. 368, 372 (1938).

Here there was testimony of witnesses who were in contact with Hellman shortly after the murder, some of which could be interpreted to indicate Hellman knew what he was doing when he shot Barber, and that he knew that shooting someone was wrong. There was testimony of one psychologist that in her opinion Hellman was not legally insane at the time of the murder, even though when she examined him he was about as crazy as anyone she had ever encountered. While several psychiatrists thought Hellman had been legally insane at the time of the crime, they made clear they had to qualify their opinions because they did not deal with the defendant at a time sufficiently close to the time of the crime. A jury reasonably could have...