Thomas Mizell drank "eight or nine" beers at a neighbor’s house, before Benny Hayes showed up. Hayes, who had done some drinking of his own, tried to provoke Mizell. He commented derogatorily, he threatened Mizell. Mizell avoided Hayes, and went home. The host, Frank Wilder, asked Mizell to come back. Three times, Mizell went to Wilder’s house, encountered Hayes, and retraced his steps back to his nearby house. Finally, Mizell fell asleep on his couch.

Mizell may regret that he left the front door open. When he awoke, he didn’t have to go to Wilder’s house yet again to find Hayes: Hayes was looming over him.

"You son-of-a-bitch," Hayes said, "I’m going to cut your throat."

When Hayes ran his hand over his pocket, and then reached into the pocket, Mizell rolled over and hit him with a stick.

Mizell says that he then blacked out. The next thing that he remembers is seeing Hayes "very bloody." Hayes was unconscious, and missing several teeth. Authorities charged Mizell with attempted second degree murder.

"Several Disturbing Incidents" in Vietnam

At trial, Mizell’s counsel sought to offer expert testimony that Mizell suffered post traumatic stress disorder ("PTSD"). While Mizell served in Vietnam in 1971, he repaired machine guns, checked tankers and bunkers for explosives, and experienced "several disturbing incidents." The Veteran’s Administration has treated Mizell for instability since 1991. He was diagnosed with PTSD in 1993. The expert witness, Dr. Harry Krop, a licensed clinical psychologist, would explain to the jury what PTSD is, and how it affects an individual’s perceptions.

The State objected. The trial court denied the State’s motion in limine, and outlined five specific conditions under which the defense could offer the PTSD evidence. The state petitioned the Florida Court of Appeal, First District, for writ of certiorari to quash the trial court’s order.

The State first argued that the defense sought to improperly use PTSD testimony as evidence of diminished capacity, to negate the intent element. The Court of Appeal agreed with the State that Florida rejects diminished capacity evidence, but held that the State incorrectly characterized PTSD as diminished capacity evidence in the Mizell’s case. Rather, the Court viewed the proffered PTSD testimony as "state-of-mind evidence, quite analogous to battered spouse syndrome (BSS) testimony that has in fact been approved many times."

PTSD’s Relevance to Self-Defense

Second, the State argued that PTSD evidence was not relevant to Mizell’s self-defense argument. The State cited Florida v. Nazario,[1] in which the Florida Third District Court of Appeal held inadmissible expert testimony on the physiological effects of "fight/flee syndrome," offered to prove that the defendant was unable to form the necessary intent and that the killing was involuntary.

The First District suggested that the Nazario court may "have mischaracterized the defendant’s theory as self-defense when it was really a diminished capacity defense."

"We do not find Nazario analogous to the present case," wrote the Court. Nazario was distinguishable because Mizell did not contend that he involuntarily beat Hayes, or that he was incapable of forming the intent to beat Hayes. "Mizell’s expert even testified that PTSD does not render a person’s actions involuntary."

Rather, the Court held that PTSD evidence was relevant to self-defense here, because "a defendant’s perceptions are relevant when assessing applicability of self-defense." The Court again analogized PTSD evidence to BSS, which evidence "help[s] the jury to understand why the victim would subjectively fear increased aggression. . . ."

"Based upon appearances," quoted the Court from the standard self-defense jury instruction, "the defendant must have actually believed that the danger was real."[2] BSS testimony aids the jury in assessing the how that syndrome affected the "reasonableness" of the defendant’s "belief" that she and her children were in imminent danger.[3] PTSD might similarly aid Mizell’s jury.

The Court lauded the five "certain limited" conditions that the trial court set forth to permit the expert PTSD testimony:

The Defendant must lay a predicate by testifying[.]

Thereafter, Dr. Krop may testify as to the Post Traumatic Stress Disorder.

Dr. Krop may reveal the Defendant’s alleged background but may not vouch for it.

Dr. Krop may not refer to the Battered Wife’s Syndrome.

Dr. Krop may not offer an opinion as to the validity of self-defense in this case.

These conditions, wrote the Court of Appeal, would "prevent a trial scenario in which a psychologist may skillfully present the defendant’s testimony by the backdoor, negating the State’s right to cross-examination." The conditions would "not allow the psychologist’s testimony to improperly bolster and/or vouch for the defendant’s version of events."

Finally, in a footnote, the Court declined to address the State’s Frye[4] argument-not because the Frye argument lacked merit, but because the State neglected to argue Frye at trial. The "State stood mute when the trial judge suggested that PTSD is ’universally accepted.’" Because the State, as the party against which defendant offered the evidence, did not properly object that the novel scientific evidence was unreliable, the trial court did not admit the evidence erroneously.

Held: 1) PTSD evidence is not, in this case, inadmissible as diminished capacity evidence; 2) PTSD evidence is relevant on the question of self-defense.

Ruling: State’s petition denied.

Footnotes:

726 So.2d 349 (Fla. 3d DCA 1999).

Fla. Std. Jury Instr. (Crim.) 45, 48.

Hawthorne v. Florida, 408 So.2d 801(Fla. 1st DCA 1982).

See Frye v. United States. 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923).