Rose v. State, BL-444

• Decision Date: 30 April 1987
• Docket Number: No. BL-444,BL-444
• Parties: 12 Fla. L. Weekly 1125 Elwin J. ROSE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 467

506 So.2d 467

12 Fla. L. Weekly 1125

Elwin J. ROSE, Appellant, v. STATE of Florida, Appellee.

No. BL-444.

District Court of Appeal of Florida First District.

April 30, 1987.

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

The appeal before us challenges the trial court's refusal to allow a witness to testify as an expert, and to appoint further experts at county expense. We affirm in part and reverse in part.

By amended indictment, appellant was charged with first degree murder. Subsequent to his arrest and first appearance, his appointed public defender filed a motion for psychological examination, requesting Dr. Clell Warriner. The court appointed Dr. Warriner to conduct the examination. Thereafter, appellant filed a motion for leave to file a notice of intent to rely on insanity, which motion was granted.

Two other psychologists, Dr. Palmer and Dr. Cartwright, were appointed to examine appellant to determine whether he was insane at the time of the offense. Appellant then filed a motion seeking neurological testing, on the grounds that it would aid the experts in evaluating his mental condition, and in confirming a preliminary diagnosis of episodic dyscontrol syndrome. This syndrome is of fairly recent recognition in psychiatric circles, and causes episodes of seizures during which the person loses consciousness and often acts destructively.

At a subsequent hearing on appellant's competency to stand trial, the defense sought to have James Beller qualified by the court as an expert witness to testify as to his diagnosis that appellant suffered from the syndrome and had been unable to appreciate his actions at the time the victim was murdered. Beller, who at the time had a masters' degree in clinical psychology, worked for Dr. Warriner and had administered a battery of tests to appellant at Dr. Warriner's directions. Despite evidence of Beller's qualifications and experience in the mental health counseling area, and in particular, in the area of the syndrome, the court ruled Beller was not an expert on the basis that Beller was not licensed in Florida as a psychologist, and was thus not qualified as an expert "in the legal sense to express an opinion as to the broad area of psychology ... and also the area of neuropsychology" being offered by the defense. The court went on to stress that Dr. Warriner would testify as to the evaluation of the tests based on Beller's recommendations, and that Beller would testify in order to provide the basis for the results of the test.

At the competency hearing, Dr. Cartwright testified that appellant was competent to stand trial, and admitted that he was only "somewhat familiar" with the diagnosis of episodic dyscontrol syndrome, although he had not examined appellant for the syndrome. Dr. Palmer also concluded that appellant was competent to stand trial, and though he was vaguely familiar with the syndrome, he voiced his disagreement with it.

Dr. Warriner testified that there was a "reasonable expectation" that appellant suffered from episodic dyscontrol syndrome based upon the tests Beller had administered to appellant. However, Dr. Warriner admitted that the reason he requested Beller to administer the tests was not only because Beller was able to administer tests with which Warriner was only marginally familiar, but because Beller had read more in the field of episodic dyscontrol syndrome than had Warriner. Nonetheless, the court remained steadfast in refusing to permit Beller to testify as an expert.

Appellant was thereafter found competent to stand trial. The court granted appellant's motion for further testing and appointed, without objection, Dr. Walker, a neurologist, with leave to reapply for another expert. The court then allowed appellant to proffer Beller's testimony, which revealed that he believed appellant suffered from episodic dyscontrol syndrome, epileptoid type. He maintained that his diagnosis could be confirmed by an alphachloralose series of EEGs which would involve chemical induction to raise or lower the seizure threshold.

Appellant filed another motion to authorize consultation with Richard Ratner, M.D., of Washington, D.C., and Manuel Chaknis, Ph.D., of Jacksonville. The defense maintained that these experts were crucial to appellant's insanity defense because the court had excluded Beller as an expert witness, and pointed out that an indigent was permitted by statute to consult with experts at county expense. The State opposed the motion because two experts had already been appointed. Defense counsel maintained that Dr. Ratner should be appointed because he was a psychiatrist who was familiar with the syndrome. The court granted the motion to have Dr. Chaknis as a consultant, but not Dr. Ratner.

Later, counsel again moved for the entry of an order authorizing appellant to be examined by Dr. Russell Monroe, of Baltimore, Maryland. Counsel stated that a CAT scan conducted on appellant had proven to be normal, and stated that Dr. Monroe was the only physician who could perform the alphachloralose EEG. Counsel also requested that a further scan of the brain, termed a nuclear magnetic resonance, be performed, either in Gainesville or Mobile, Alabama. Counsel maintained that these tests were needed to confirm or deny the presence of the syndrome. However, the court denied the motion by written order finding "that all laboratory findings authorized by the Court to the state are negative as to brain abnormalities and that these additional tests appear excessive and beyond the needs of the experts to express opinions as to the defendant's medical and psychological conditions at the time of the offense."

The court subsequently denied an eleventh hour motion filed by the defense asking the court to reverse its prior ruling and allow Beller to testify as an expert.

During trial, Dr. Warriner testified as an expert that he utilized Beller's findings to form his conclusion that appellant had suffered from organic brain injury that might lead to impulsiveness. In his opinion, appellant's capacity to form the specific intent to kill was diminished or subsequently impaired. Upon further redirect examination, Dr. Warriner testified that there was a possibility that appellant suffered from episodic dyscontrol syndrome, which syndrome would be consistent with a head injury appellant had suffered in 1965.

Beller testified only as to the specifics of the test he had administered to appellant and the scores appellant had received. He was not allowed to give any opinions or conclusions relating to the meaning of those scores. After the jury was released for the day, the defense again proffered Beller's testimony, which established his diagnosis that appellant suffered from episodic dyscontrol syndrome, supported by appellant's history of drug abuse and alcoholism. Beller maintained that the condition could cause a seizure, which would interfere with appellant's ability to reflect or premeditate on his actions. In Beller's opinion, at the time of the homicide, appellant was unable to appreciate the nature and quality of his acts or to know the difference between right and wrong. He stated that his diagnosis could be confirmed with an alphachloralose EEG or by a nuclear magnetic resonance tomography. He...