Zabrani v. Riveron

• Decision Date: 23 September 1986
• Docket Number: No. 86-62,86-62
• Citation: 11 Fla. L. Weekly 2034,495 So.2d 1195
• Parties: 11 Fla. L. Weekly 2034 Mohumman Iqbal ZABRANI, Appellant, v. Pedro J. RIVERON and Otilia Riveron, Appellees.
• Court: Florida District Court of Appeals

Page 1195

495 So.2d 1195

11 Fla. L. Weekly 2034

Mohumman Iqbal ZABRANI, Appellant, v. Pedro J. RIVERON and Otilia Riveron, Appellees.

No. 86-62.

District Court of Appeal of Florida Third District.

Sept. 23, 1986.

Rehearing Denied Nov. 5, 1986.

Robert G. Corirossi and Joel H. Brown, Miami, for appellant.

Malcolm Lewis Kneale, Miami, for appellees.

Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.

JORGENSON, Judge.

Dilshad Zabrani died as the result of a gunshot wound. Her husband, Mohumman Zabrani, made a demand upon her insurance company for the proceeds under the policies. Subsequent to Zabrani's demand, the Riverons, parents of Dilshad, also sought the policy benefits. They alleged that Zabrani was not entitled to the proceeds because, with the help of his girlfriend Iris Monroy, he had murdered his wife. ¹ The murder occurred on May 21, 1984, and Monroy confessed to the murder on May 25, 1984. In her confession, Monroy implicated Zabrani as the instigator and co-perpetrator of the murder. She was later found to be competent to stand trial, was tried for the crime, and was found to be not guilty by reason of insanity at the time of the murder. Zabrani has not yet been tried.

The insurance company filed an interpleader action asking the court to settle the parties' rights to the proceeds. The Riverons answered the complaint, cross-claimed against Zabrani, and sought the proceeds from the insurance policies. Zabrani answered the insurance company's complaint stating that he "is unable at this time to either admit or deny the allegations set forth in [the insurance company's] complaint and therefore denies the allegations and demands strict proof thereof." He attached no affidavits to his answer. In the same manner, he answered the Riverons' cross-claim but not until three months after he had been served. The Riverons moved for a summary judgment. Attached to their motion for summary judgment were the sworn confession of Monroy implicating Zabrani and the affidavit of Officer Arostegui who was present at Monroy's confession and who verified that the transcript of her confession was accurate. The trial court granted summary judgment for the Riverons. Zabrani appeals and, in so doing, gives new meaning to the word chutzpah. ² We affirm.

On appeal, Zabrani makes two arguments. He maintains (1) that Monroy's confession was improperly considered by the trial court, and (2) that he cannot be required to file any supporting affidavits in answer because to do so would burden his fifth amendment right to remain silent. We reject both of these contentions.

Zabrani first asserts that the confession was improperly considered by the trial court. His theory is that if a person is insane he is also legally incompetent to testify. Monroy was adjudged to be insane on the date the murder occurred, and she confessed to the crime four days after the murder. Months later, she was found to be competent to stand trial. Zabrani contends that, according to the law in Florida, once a person is adjudged to be insane he is presumed to remain insane until it is shown that he has become sane. Horace v. Culver, 111 So.2d 670 (Fla.1959); Eason v. State, 421 So.2d 35 (Fla.3d DCA 1982). He argues, therefore, that Monroy must be presumed to have been legally insane, and, thus, legally incompetent, from the time of the murder until the date she was found to be competent. Florida Rule of Civil Procedure 1.510(e) requires that any affidavits submitted with the motion for summary judgment "show affirmatively that the affiant is competent to testify to the matters stated therein." Because of the finding of insanity, Zabrani contends that Monroy's statement could not possibly meet this standard.

Zabrani's basic premise--that insanity equals incompetency--is faulty. It should be noted at the outset that the affidavit submitted by the Riverons was not an affidavit of Monroy's. The affidavit submitted was that of one of the investigating officers present at the confession who affirmed that Monroy's transcribed confession was accurate. Meeting the requirement of Rule 1.510(e) presents no difficulty because the competency of the officer is not at issue. As to the issue of Monroy's competency, no general finding of insanity was made; she was found to be temporarily insane at the time of the murder. Further, a finding of insanity affects credibility rather than admissibility. 2 Wigmore on Evidence § 501 (Chadbourn rev. 1979); see Williams v. McGehee, 2 Fla. 58, 68-69 (1848); McCormick on Evidence § 62 (E. Cleary 3d ed. 1984); see also People v. Dixon, 22 Ill.2d 513, 177 N.E.2d 224, 225 (1961) (patient in mental hospital who has capacity to observe, recollect, and communicate "is competent and his mental deficiency is considered only insofar as it affects the credit to be given his testimony"), cert. denied, 368 U.S. 1003, 82 S.Ct. 637, 7 L.Ed.2d 542 (1962), overruled in part on other grounds, People v. Kurth, 34 Ill.2d 387, 216 N.E.2d 154 (1966). Monroy's sworn confession has only to meet the requirements laid down for all witnesses' testimony. Section 90.603, Florida Statutes (1985), states that a person is disqualified from testifying when he is incapable of expressing himself or incapable of understanding his duty to tell the truth. In Florida Power & Light Co. v. Robinson, 68 So.2d 406, 413 (Fla.1953), the supreme court stated that

"while a recent adjudication of insanity creates a rebuttable presumption of ... continued insanity, notwithstanding such adjudication a person is competent as a witness where it is shown that he had a lucid interval, has sufficient understanding to comprehend the nature and obligation of an oath, and that his mental capacity is such that he can understand and intelligently answer questions propounded to him."

(quoting 58 Am.Jur. Witnesses § 121 (1948)); C. Ehrhardt, Florida Evidence § 603.1 (2d ed. 1984).

Although Monroy was adjudicated temporarily insane at the time of the murder, her confession could be considered by the trial court as long as she had sufficient understanding to comprehend the nature and obligation of her oath and she understood and intelligently answered the questions propounded to her. In her confession, Monroy stated that she knew her statement was made under oath and that everything she said was the truth. She said that she knew right from wrong and that she knew that what she and Zabrani had done was wrong. She also stated that she was free from narcotics, alcohol, or any other stimulants and that she understood everything that was discussed. From a full reading of her statement, the trial court could certainly determine that her competency was shown--that she understood both what she was saying and her obligation to tell the truth. Because competency is presumed until the contrary is established, Williams, 2 Fla. at 68; see § 90.601, Fla.Stat. (1985), Zabrani has the burden of proving that Monroy was incompetent at the time the statement was given. Hackmann v. Hyland, 445 So.2d 1079, 1080 (Fla.3d DCA 1984); C. Ehrhardt, Florida Evidence § 603.1 (2d ed. 1984); see Henderson v. United States, 218 F.2d 14 (6th Cir.), cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 (1955). Zabrani has made no showing that Monroy was not competent at the time she gave her statement, nor has he done anything to diminish her credibility. A thorough reading of Monroy's sworn statement convinced the trial court, and convinces us, that Monroy was perfectly competent and had relevant information to relay. Her confession was lucid, and her answers were responsive. The confession showed a witness who was free from any mental infirmity and who stated that her answers to the questions were truthful. Zabrani offers nothing to make us think otherwise.

Zabrani's second contention, that he can remain silent in the face of the Riverons' motion for summary judgment and its supporting affidavit, is also erroneous. A person is entitled to remain silent in a civil or an administrative proceeding if to answer would subject him to a "substantial penalty." See, e.g., Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (where statute provided for automatic forfeiture of policemen's jobs if they refused to testify as to employment matters, policemen could not be compelled to make choice between either incriminating themselves or remaining silent); Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967) (attorney could not be disbarred for asserting his right to remain silent in disbarment proceedings). While the right to remain silent applies when an individual is compelled to appear and testify incriminatingly on pain of "sanctions 'capable of forcing the self-incrimination which the [Fifth] Amendment forbids,' " Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409, 424 (1984) (quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 2136, 53 L.Ed.2d 1, 8 (1977)), it is not absolute.

Zabrani instituted the present action by filing a claim for the proceeds of his wife's insurance policies. Although there are occasions when a party is allowed to remain silent in a civil suit, it is usually in those cases where the party is thrust into the...