Zamora v. State, 77-2566

• Decision Date: 20 July 1978
• Docket Number: No. 77-2566,77-2566
• Citation: 361 So.2d 776
• Parties: Ronny A. ZAMORA, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 776

361 So.2d 776

Ronny A. ZAMORA, Appellant, v. The STATE of Florida, Appellee.

No. 77-2566.

District Court of Appeal of Florida, Third District.

July 20, 1978.

Rehearing Denied Sept. 6, 1978.

Ellis Rubin, Miami, for appellant.

Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Sp. Asst. Atty. Gen., for appellee.

Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

HENDRY, Judge.

Appellant, Ronny A. Zamora, was charged, by way of a four count indictment, with first degree murder, burglary of a dwelling, possession of a firearm while committing a felony, and robbery. To those charges, Zamora entered a plea of not guilty, indicating that he would rely on the defense of insanity. At the conclusion of his trial, the jury returned verdicts of guilty on all four counts of the indictment.

Zamora was subsequently adjudicated in accordance with the verdicts and sentenced as follows: as to count I, first degree murder, Zamora was sentenced to a term of life imprisonment, with credit for time served in the Dade County Jail and parole eligibility in twenty-five years, pursuant to Section 775.082(1), Florida Statutes (1977); as to count II, burglary, he was sentenced to twenty-five years in the state penitentiary; as to count III, possession of a firearm, sentence was imposed at three years imprisonment; and as to count IV, robbery, Zamora was sentenced to a term of twenty-five years. All sentences were to run concurrently.

From the judgment of conviction and sentences, Zamora has taken this appeal raising seven points. We shall discuss each point in the order raised by appellant in his

brief, taking the liberty to rephrase those points where proper.

POINT I

WHETHER THE TRIAL COURT ERRED IN GRANTING IN PART THE STATE'S MOTION IN LIMINE THEREBY EXCLUDING CERTAIN VOIR DIRE INQUIRIES, TESTIMONY, EVIDENCE AND CROSS-EXAMINATION.

At trial, Zamora's insanity defense was based upon "involuntary subliminal television intoxication." On appeal, Zamora contends that certain rulings of the trial judge limiting the scope of defense counsel's inquiry into the area of television's effect upon sociopathic children effectively frustrated his insanity defense. In particular, appellant argues that the trial judge committed reversible error by failing to allow psychologist Dr. Margaret Hanratty Thomas to testify at trial on the effect of television violence upon adolescent viewers. We are not of the opinion that the court erred in granting the state's motion in limine thereby limiting inquiry into television and its effects on children.

In Florida, the test for insanity is the so-called M'Naghten Rule or "right and wrong" test. That is, a person is legally insane when he is precluded by mental disease from distinguishing between right and wrong at the time of the act. Wheeler v. State, 344 So.2d 244 (Fla.1977); Perry v. State, 143 So.2d 528 (Fla. 2d DCA 1962). Irrestible impulse is not recognized as a defense in Florida. Wheeler v. State, supra; Witt v. State, 342 So.2d 497 (Fla.1977). Likewise, diminished capacity is not recognized as a defense, unless a defendant's capacity is so diminished that he cannot distinguish right from wrong pursuant to the M'Naghten Rule. Bradshaw v. State, 353 So.2d 188 (Fla. 2d DCA 1977); Camp v. State, 149 So.2d 367 (Fla. 2d DCA 1963).

Based upon the law of insanity, as established in this state, the trial judge correctly limited the evidence of insanity to the M'Naghten standard. Sub judice, as brought out through proffer, Dr. Thomas' testimony would have been directed to the effect of television on adolescents, generally. She would have been, however, unable to testify that watching violent television programs to excess affects an individual to the extent that said individual would not be able to distinguish between right and wrong under the M'Naghten test. Her testimony, therefore, would not have been relevant to the proceedings.

A party is entitled to present evidence upon the facts that are relevant to his theory of the case, so long as that theory has support in the law. Steiger v. Massachusetts Casualty Insurance Co., 273 So.2d 4 (Fla. 3d DCA 1973). Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material to the case. Zabner v. Howard Johnson's, Inc. of Florida, 227 So.2d 543 (Fla. 4th DCA 1969). The only theory of the case that had support in the law was insanity, based upon the M'Naghten standard. Testimony that would not have tended to prove or disprove insanity was properly excluded, as being irrelevant. Dixie-Bell Oil Company, Inc. v. Gold, 275 So.2d 19 (Fla. 3d DCA 1973). As Dr. Thomas' testimony was not relevant as to the issue of insanity, it was properly excluded.

Appellant has additionally argued that he was unduly limited in examining those experts who were permitted to testify at trial. The record, however, does not support this allegation of undue limitation. In those instances where defense counsel was limited in his questioning, such limitation was imposed on the basis of relevancy in light of the M'Naghten standard.

Accordingly, appellant's point I is rejected.

POINT II

WHETHER THE TRIAL JUDGE ERRED, DURING VOIR DIRE, IN PRECLUDING DEFENSE COUNSEL FROM INQUIRY INTO THE POTENTIAL JURORS' VIEWS ON TELEVISION AND ITS EFFECT ON CHILDREN, AS WELL AS THEIR PARTICULAR VIEWING HABITS.

While appellant concedes that the trial judge has wide discretion in setting the Needless to say, a reversal based upon a limitation in voir dire must be based upon an abuse of the trial judge's discretion. Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla. 1st DCA 1960). In the absence of demonstrable prejudice, not grounded upon mere speculation, reversal is not proper. Foley v. Revlon, Inc., 200 So.2d 627 (Fla. 3d DCA 1967).

boundaries of voir dire examination of prospective jurors, it is defense counsel's contention that Sub judice, the trial judge abused his discretion in limiting the voir dire examination so as to preclude any inquiry into the viewing habits of the prospective jurors, as well as an inquiry as to their attitude toward the defense of "involuntary subliminal television intoxication." Appellant contends that based upon this limitation, counsel was precluded from intelligently exercising his peremptory challenges resulting in possible undiscovered prejudice on the part of the jury.

A review of the record discloses that defense counsel was not precluded from inquiring as to whether or not the prospective jurors watched television, whether or not said prospective jurors had heard of or had formed any opinions as to the defense of insanity caused by "television intoxication," and whether or not the prospective jurors believed the defense of insanity to be a gimmick. The record reflects that defense counsel was prohibited from asking the jurors questions concerning their personal viewing habits. This final limitation did not even approach an abuse of the trial judge's discretion warranting reversal. Mizell v. New Kingsley Beach, Inc., supra.

The voir dire, itself, was extensive, encompassing over two days. The purpose of voir dire is to select a fair and impartial trier of fact. Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967). Appellant does not contend that the jury was partial or unfair, he merely contends that the two day voir dire was so limited so as to prohibit defense counsel's inquiry as to any possible partiality of the prospective jurors. The record, however, does not sustain appellant's contention and no abuse of the trial judge's discretion has been shown.

Therefore, we must reject appellant's point II.

POINT III

WHETHER THE TRIAL JUDGE ERRED IN REFUSING TO INSTRUCT THE JURY ON THE DEFENSE OF INSANITY AS TO COUNTS II, III AND IV, AND IN FAILING TO PROPERLY INSTRUCT THE JURY ON THE LAW OF INSANITY AS TO COUNT I.

As was stated at the outset, appellant's defense to the charges was insanity attributed to the "prolonged, intense, involuntary, subliminal television intoxication." During the charge conference, the trial judge agreed with the state's oral motion "to strike the insanity defense as to all but the first degree murder count" because "there was absolutely no testimony adduced to insanity with reference to anything but the count of first degree murder." As a result, the jury was not charged that Zamora could be found not guilty by reason of insanity as to counts II, III and IV of the indictment.

It is our opinion that the trial judge was correct in refusing to instruct the jury on insanity as to counts II through IV. While there was ample testimony elicited evaluating young Zamora as a sociopath, suffering from a lack of conscience and a personality or character defect, there was no testimony to the effect that Zamora was insane, pursuant to M'Naghten standards, with the one exception being defense psychiatrist Dr. Gilbert. Dr. Gilbert testified that at the moment Zamora fired the fatal shot, he did not know right from wrong. He also testified, however, that just prior to and after the firing of the gun, Zamora was not legally insane. As opined by Dr. Gilbert, Zamora's alleged insanity lasted no more than two to three seconds.

Accordingly, the trial judge was correct in instructing the jury on insanity as to count I of the indictment, first degree murder. Likewise, the judge was correct in Appellant further argues that the trial judge erred in giving his own instruction on insanity pursuant to count I in light of Wheeler v. State, 344 So.2d 244 (Fla.1977). It is appellant's contention that the Wheeler decision mandated that a trial judge, in instructing a jury on insanity, conform to the standard jury instructions as adopted by the Florida Supreme Court in In re Standard Jury Instructions In Criminal Cases, 327 So.2d 6 (Fla.1976). He further contends that it was reversible error for the trial judge to offer his own instruction on insanity in lieu of the standard...