Morgan v. State

• Decision Date: 05 January 1989
• Docket Number: No. 67334,67334
• Citation: 537 So.2d 973
• Parties: James A. MORGAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 973

537 So.2d 973

James A. MORGAN, Appellant, v. STATE of Florida, Appellee.

No. 67334.

Supreme Court of Florida.

Jan. 5, 1989.

Robert G. Udell, Stuart, for appellant.

Robert A. Butterworth, Atty. Gen., Joan Fowler Rossin and Eddie J. Bell, Asst. Attys. Gen., West Palm Beach, for appellee.

PER CURIAM.

James A. Morgan appeals his conviction on retrial for first-degree murder and his sentence of death. We have jurisdiction article V, section 3(b)(1), Florida Constitution, and reverse the conviction and sentence and remand for a new trial. We conclude the trial court erroneously excluded medical expert opinion testimony that was based on a diagnosis which used information obtained from Morgan by hypnosis. We find the recent United States Supreme Court decision in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), mandates this result.

Morgan was sixteen years old at the time of the incident, of marginal intelligence, unable to read or write, had sniffed gasoline regularly since he was four, and was described as an alcoholic. He brutally murdered an elderly woman while at her home to mow her yard, after entering the house to telephone his father. Inside the home, appellant killed the woman by crushing her skull with a crescent wrench, stabbing her face, neck, and hands numerous times, and also biting her breast and traumatizing her genital area. According to Morgan, he killed the woman because he thought she was writing his mother about his drinking. There is no dispute over appellant's commission of this homicide; the single issue is appellant's sanity at the time of the offense, and the experts excluded were the only witnesses for appellant on this issue.

This is the third time this cause has been before this Court. In Morgan v. State, 392 So.2d 1315 (Fla.1981) (Morgan I ), we remanded the case because the bifurcated insanity procedure used in that trial had been subsequently held unconstitutional. In Morgan v. State, 453 So.2d 394 (Fla.1984) (Morgan II ), we remanded the case because the trial court denied Morgan an opportunity to present an insanity defense.

In this third trial, Morgan filed notice of his intent to rely on an insanity defense. During the opening statements, his counsel advised the jury that insanity would be his client's defense. The state presented its case, rested, and then moved to prevent Morgan from presenting his expert witnesses, a psychologist and a psychiatrist, on the grounds that their opinions were partially based on statements Morgan made while under hypnosis. ^* The trial court granted the motion based on this Court's decisions in Bundy v. State, 455 So.2d 330 (Fla.1984) (Bundy I ), and Bundy v. State, 471 So.2d 9 (Fla.1985) (Bundy II ), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986), and the Third District Court's decision in Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976). As a result of the trial court's order, Morgan was precluded from presenting any expert testimony on the issue of insanity.

Morgan proffered the experts' testimony in the jury's absence. The psychologist testified that he met Morgan on three occasions. During the first visit, the doctor stated Morgan was initially reluctant to be honest, but, after encouragement, explained generally his killing of the woman. Morgan stated that: (1) before going to mow, he had been drinking; (2) the victim permitted him to enter her home to call his father; (3) he saw the victim writing and thought she was notifying his mother about his drinking; and (4) he became angry with the victim and hit her in the head with the crescent wrench. According to the psychologist, Morgan could not clearly remember his actions after striking the woman and had no recollection of cleaning up after the attack and leaving the premises.

In the second session, the psychologist performed various psychiatric tests and obtained additional background information. The personal history revealed that Morgan was sixteen years old at the time of the incident, had regularly sniffed gasoline since he was four and, in recent years, on more than a daily basis, and regularly used alcohol to the extent that the psychologist concluded he was a sixteen-year-old alcoholic. Testing revealed that, although he had completed the eighth grade, he could not read or write and was organically brain-damaged and brain-impaired.

After the second session, the psychologist, along with the psychiatrist, decided to hypnotize Morgan to obtain further details concerning the incident. Both doctors testified that hypnosis is a medically accepted diagnostic technique used by mental health professionals. According to both experts, the use of hypnosis facilitates diagnosis by revealing information which might otherwise be unavailable from the unhypnotized patient.

Morgan was hypnotized by the psychologist in the psychiatrist's presence. During a four-hour hypnotic session, Morgan provided more expansive details of his conduct in the killing. Both experts concluded, from their examination of Morgan, his history, and the hypnotic session, that he was insane at the time of the offense under the M'Naughten standard. Both testified they would have been unable to assess Morgan's sanity without utilizing the information from the hypnotic session.

In the penalty phase, the trial court allowed admission of the medical experts' testimony for the jury to consider mental impairment as a mitigating factor. The jury recommended the death penalty by a seven-to-five vote, and, accordingly, the trial judge imposed that sentence.

Morgan raises multiple issues concerning his conviction and sentence. We find dispositive his claim that the trial court erroneously excluded his expert witnesses' testimony during the guilt phase of the trial on grounds their opinions were partially based on statements made while Morgan was under hypnosis.

The trial judge excluded the experts' opinions based on Bundy I, Bundy II, and Rodriguez, holding that, since he could not determine the "reliability of statements procured under hypnosis," the opinions based on hypnotic statements were inadmissible. We do not criticize the trial court's ruling; we recognize hypnotic evidence is a new and evolving area of law. We find that the United States Supreme Court decision in Rock v. Arkansas controls.

In Rock, the defendant was charged with manslaughter of her husband. She could not remember the exact details surrounding the event and was hypnotized by a licensed neuropsychologist in order to refresh her memory. After hypnosis, she was able to recall that at the time of the shooting she had not had her finger on the trigger and the gun had discharged when her husband grabbed her arm during a scuffle. The gun was later found defective and prone to fire when hit or dropped, without the trigger being pulled. At trial, the court limited the defendant's testimony to only those matters remembered and stated prior to her being placed under hypnosis. On appeal, the Supreme Court of Arkansas affirmed the trial court, rejecting the defendant's claim that the limitations on her testimony violated her right to present her defense. The Arkansas court concluded that "the dangers of admitting this kind of testimony outweigh whatever probative value it may have," Rock v. State, 288 Ark. 566, 573, 708 S.W.2d 78, 81 (1986), and followed the view of those states which have held hypnotically refreshed testimony of witnesses inadmissible per se. The question addressed by the United States Supreme Court was "whether a criminal defendant's right to testify may be restricted by a state rule that excludes her post-hypnosis testimony." Rock v. Arkansas, 107 S.Ct. at 2710. In answering this question in the negative, the Court explained: "Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony." Id. at 2711. The Court stated that the per se rule does not allow a trial court the opportunity to consider whether post-hypnosis testimony may be admissible in a particular case, concluding that "[t]his rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced." Id. at 2712. The opinion noted that many states which have adopted the exclusionary rule did so only as to witnesses and not for a defendant's testimony. The Court cited the California rule contained in People v. Shirley, 31 Cal.3d 18, 723 P.2d 1354, 181 Cal.Rptr. 243, cert. denied, 459 U.S. 860, 103 S.Ct. 133, 74 L.Ed.2d 114 (1982), where that court barred the entire testimony of any witness who had been hypnotized but explicitly accepted a defendant's testimony by stating:

[W]hen it is the defendant himself--not merely a defense witness--who submits to pretrial hypnosis, the experience will not render his testimony inadmissible if he elects to take the stand. In that case, the rule we adopt herein is subject to a necessary exception to avoid impairing the fundamental right of an accused to testify in his own behalf.

31 Cal.3d at 67, 723 P.2d at 1384, 181 Cal.Rptr. at 273.

We found in Bundy that...