Norman v. State, s. 63-68

• Decision Date: 10 September 1963
• Docket Number: Nos. 63-68,63-69,s. 63-68
• Citation: 156 So.2d 186
• Parties: Richard Edwin NORMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 186

156 So.2d 186

Richard Edwin NORMAN, Appellant, v. STATE of Florida, Appellee.

Nos. 63-68, 63-69.

District Court of Appeal of Florida, Third District.

Sept. 10, 1963.

Rehearing Denied Oct. 1, 1963.

Max B. Kogen, Miami, for appellant.

Richard W. Ervin, Atty. Gen., and Leonard R. Mellon, Asst. Atty. Gen., for appellee.

Before BARKDULL, C. J., and TILLMAN PEARSON, and HENDRY, JJ.

PEARSON, TILLMAN, Judge.

The appellant was indicted for first degree murder in the death of his wife, Mary; and he was separately indicted for the same crime in the death of her paramour, Louis Malley. He plead 'not guilty' and 'not guilty for reason of insanity and/or temporary insanity' to each indictment. Upon stipulation of counsel for the defense and counsel for the State, the cases were consolidated for trial. A notice of defense of insanity was filed pursuant to § 909.17, Fla.Stat., F.S.A.; and upon motion, the court appointed two experts to determine the mental condition of the defendant. The cause was tried before a jury which returned a verdict on each indictment of guilty of murder in the second degree. After motion for new trial and denial thereof, the court entered judgment of guilty of the crime of murder in the second degree in each case and sentenced the defendant on each conviction to confinement in the State Prison at hard labor for and during the term or period of his life. This appeal followed. We will discuss three of the points presented by the appellant. They are as follows:

I. The State failed to prove beyond a reasonable doubt the sanity of the appellant.

II. The evidence conclusively established that the defendant, if guilty, was guilty only of the crime of manslaughter.

III. The trial judge erred in denying the defendant's tender of testimony as to his character and reputation as to violence or non-violence.

The evidence before the jury viewed in the light most favorable to the appellant's contentions may be succinctly stated. The appellant had been married four times and was deeply attached to his last wife. Each of his three prior marital experiences had been colored by his alcoholism and had ended unhappily. During the last marriage he made a conscious effort to rectify past mistakes and build a new life. In furtherance of this aim, he submitted to an operation for sterilization because of his wife's insistence that she would have no more children. It might also be noted that having suffered from syphilis and chronic alcoholism, there existed the possibility of brain damage to defendant.

Norman became suspicious about the possible unfaithfulness of his wife and employed a detective agency to follow her. This agency reported that while under surveillance, she spent the afternoon with one of the appellant's close associates (decedent, Malley) in a motel room. The appellant instructed the agency to continue its surveillance and to inform him of any subsequent discovery of a similar situation so that he could confront the parties. The detective agency refused to continue the investigation on the same financial arrangement, and the appellant hired a new agency. During a subsequent afternoon, a detective employed by this agency discovered the wife and her paramour at a motel. The appellant left a business conference in which he was engaged, went to his safe, took a revolver therefrom, and proceeded to the motel.

At the motel the detective directed him to the wrong room. He kicked the door open and found the room empty. While the detective went to the motel office to secure additional information, the appellant discovered the correct room. He kicked the door open, discovering his wife putting her clothing on and Malley completely unclothed and in a condition which suggested prior sexual activity. The appellant killed them both, and after the shooting calmly surrendered himself to investigating officers and discussed the circumstances surrounding his act without visible agitation.

Appellant makes his chief thrust in this appeal upon the basis of 'temporary insanity.' He does not contend that there is evidence in the record of actual insanity prior to the killings, or subsequent thereto, but contends that the shock of the circumstances was such that he did not know right from wrong at the time of the act. This issue was squarely presented to the jury and the jury found against the appellant. Nevertheless, we must examine the record to determine whether there is sufficient evidence in the record to support the finding of the jury.

It is the appellant's contention that he presented evidence which raised a reasonable doubt upon this issue, and therefore the burden shifted to the State to prove his sanity at the time of the killings. He further contends that the State failed to sustain this burden. The rule involved was applied in Farrell v. State, Fla.1958, 101 So.2d 130, 133, where it was said: 'All men are presumed sane * * *. But when there is testimony of insanity sufficient to present a reasonable doubt of sanity the presumption vanishes. The defendant is then entitled to an acquittal if the state does not overcome the reasonable doubt.'

Three witnesses testified on the issue of sanity: (1) Dr. Michael M. Gilbert, a physician specializing in psychiatry and neurology who was employed by the appellant; (2) Dr. James A. Goodman, a physician specializing in psychiatry and neurology who was appointed by the court; and (3) Dr. Wilford Provo, a physician specializing in psychiatry, also appointed by the court.

The appellant places his greatest reliance on the testimony of Dr. Gilbert. The doctor testified as to the personal history and background as given to him by the appellant. The pertinent parts of this history have already been set forth. In addition, the doctor related a statement of the appellant that he had experienced frequent memory lapses, especially during periods of stress in World War II, and the further statement that it was appellant's purpose to hold Malley, the paramour, at gunpoint in the presence of the detective so that appellant could question the parties about the paternity of a child. Based upon this history and the further statement of appellant that when he saw Malley nude and Mary Norman lowering her dress, he saw a blinding flash, it was Dr. Gilbert's opinion that 'When one adds all this up, it would be extremely surprising if a person of his personality makeup could possibly withstand this amount of stress without breaking down. In fact, I don't see how it's conceivable he could maintain the integrity of his ego in the face of this.' Dr. Gilbert expressed his...