Jones v. State, 40339

• Decision Date: 06 February 1974
• Docket Number: No. 40339,40339
• Parties: Wayne R. JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 725

289 So.2d 725

Wayne R. JONES, Appellant, v. STATE of Florida, Appellee.

No. 40339.

Supreme Court of Florida.

Feb. 6, 1974.

Warren M. Goodrich of Goodrich & Hampton Bradenton, for appellant.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death. After the appeal was filed, the sentence of death was changed to that of life imprisonment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 36 L.Ed.2d 346 (1972); Anderson v. State, 267 So.2d 8 (Fla.1972); In Re Bernard R. Baker, 267 So.2d 331 (Fla.1972). We have jurisdiction.

In view of reversible error appearing in the record, we dispense with oral argument.

The defendant entered a plea of not guilty by reason of insanity, and in support thereof, proffered the testimony of a psychologist and two psychiatrists, one of which was appointed by the Court. Each testified that he had examined the defendant, elicited a history from him, and taken this into consideration in forming an opinion as to the defendant's insanity at the time of the alleged act. The State contended the testimony was inadmissible because defendant had not yet taken the stand in his own defense and testified to the matters communicated in the history given to the examining physicians. The State set forth its position as follows:

'It is our position any reliance upon anything that the defendant may have told anyone other than a treating physician is not admissible, but only if the defendant himself has testified to those matters previously before this Court . . ..'

The psychologist gave defendant certain psychological tests and stated that the 'major and substantial basis' of his opinion came from the test material rather than from the 'minimal historical information' that he received from the defendant, but that it was not possible to evaluate the psychological nature of a person without some background. He was not allowed to testify as to his opinion.

One psychiatrist testified that he examined defendant and elicited a history from him and that his primary diagnosis was based upon that history and interview. The psychiatrist said he could not tell anything about a man's sanity without using what the defendant said to him in such an interview. He further said that the truth or falsity of what the person under the examination might say was not conclusive as to his opinion. The psychiatrist evaluated what the patient said. The State objected to the testimony of this psychiatrist until the proper predicate was laid, that is, until the defendant had testified. The Court stated that the defendant would have to lay some basis for the psychiatrist's testimony by testifying himself. Otherwise, the psychiatrist could not give his opinion.

The defendant proffered that if allowed to testify, this psychiatrist would give an opinion that at the time of the alleged offense the defendant did not know right from wrong or the consequences of his act. The defendant then proffered that the court-appointed psychiatrist would make the same finding and then announced that, under protest, the defendant would take the stand because of the rulings of the Court to the effect that the testimony of experts would not be received unless the defendant had first testified. The effect of the Court's exclusionary ruling was to require the defendant, against his will, to take the stand before allowing him to introduce expert testimony as to his defense of insanity.

A qualified expert may testify to his opinion concerning the defendant's mental condition based either upon

(1) personal examination of the defendant made by the witness, or

(2) the testimony in the case, if he has been in court and heard it all.

(3) He may also give his opinion upon hypothetical questions propounded by counsel. Mental Disorder as a Criminal Defense, by Weihofen (1954), Ch. VI, § 1, at 277.

It is not necessary that the expert state the detailed circumstances of the examination before giving his finding. The facts and symptoms which he observed, and on which he bases his opinion, may be brought out on cross-examination. A psychiatrist should and must talk freely with the defendant and the results of such an interview becomes a part of the psychiatrist's opinion. The psychiatrist is not interested in whether the defendant's statements to him are true or are false. He merely evaluates the statements made by the defendant during the course of the interview. As stated in Wharton's Criminal Evidence, by Torcia (13th ed. 1972), Vol. 2, § 312, at 111--112:

'In general, a statement by an injured or diseased person to a physician as to past matters, although not admissible as evidence of the truth of the facts stated, may be included in the physician's testimony to show the basis for his opinion. Thus, in a prosecution for murder, defended on the ground of insanity, a statement made by the defendant to a physician as to the cause of the killing, offered for the purpose of producing all the facts upon which the physician based his opinion as to the defendant's insanity, was admissible. Similarly, in a prosecution for murder, in which it was claimed that the defendant was suffering from a tumor upon the brain which caused her to become 'insane' upon any great excitement, her physician was permitted to testify to a statement by her as to her past suffering and condition, when such statement constituted, at least in part, the basis for his opinion as to the nature of her disease, and was declared by him to be necessary to enable him to form his opinion.'

The following is found in Underhill's Criminal Evidence, by Herrick (Fifth Ed. 1956), Vol. 2, § 460, at 1154--1155:

'The opinion of the nonexpert must be confined to the facts first stated by him. The opinion of the medical expert on insanity may be given without first stating what facts were found by him upon which he bases his opinion, but if such facts are called for, the jury is entitled to have them. Where the expert has made a physical examination he may be required to describe the facts and symptoms observed, as well as the conversation which he had with the defendant, but he cannot be allowed to narrate what the attendants said. It is not necessary that every question and answer put to an alleged insane person be stated in order to provide a foundation for expert testimony, but a casual observation of accused by a medical expert is not a proper basis for expert opinion as to his insanity.'

We were confronted with the question of whether a defendant should be required to answer questions posed to him by a court...