Answer Brief of Appellee - Florida State University College of Law

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(1) Is the Defendant's condition an extreme mental or emotional disturbance? (2) Was he under the influence of it when he murdered Dorothy Berger? If either of these questions is negatively answered, then, this mitigating circumstance is not established. This Court finds that both questions must be negatively answered. Absent some trauma or disease process, the Defendant's hypofrontal lobe abnormality is a static organic condition. Even though the condition exists, all the evidence indicates that it is not a mental or emotional disturbance, much less an extreme mental or emotional disturbance. Pearl Booker, a school counselor who worked with the Defendant in the seventh grade, testified that her own recollection was that the Defendant had no disciplinary problems in elementary school, that in middle school he was very quiet and not a troublemaker, and that this is supported by the school records. His family members testified that he loved pets, that he was like a father figure to his brothers, that he loved all of his family members, that he always gave half his earnings to the family, and that he taught his brothers how to fish, how to ride a bike, how to be a good basketball player, and how to farm and operate farm equipment. When there were. physical confrontations between his mother and father, the Defendant would step in between them to protect his mother. This is hardly a description of one given to violent episodes or any other manner of emotional disturbance. It is hardly a description of one suffering from a reduced ability to control impulsive behavior. Dr: Krop tested the Defendant in 2003 and diagnosed the same abnormality as he had diagnosed in 1993. Chief Assistant Public Defender J. Randall Moore, Esquire, represented the Defendant from the start of this case until early in 2004. He testified on the Defendant's behalf at the Spencer hearing. He said the Defendant was originally a difficult, hostile, and angry client who had a chip on his shoulder, but after this case was remanded in 1997 Mr. Moore made an unannounced visit to the Defendant on death row. He found a changed person who he described as calm, mellow and pleasant who no longer acted as if he had a 36
chip on his shoulder. How is the change explained if the Defendant's frontal lobe abnormality had not changed? There is no explanation in the evidence. The fact that Defendant may have been a difficult, hostile, and angry client who acted like he had a chip on his shoulder, without more, is not evidence that Defendant suffered from a reduced ability to control impulsive behavior or suffered from any other manner of emotional disturbance. This Court has thoroughly reviewed Defendant's DOC disciplinary records. Defendant was sentenced and remanded to death row on November 4, 1994, so his DOC disciplinary records cover a period of almost ten years. There are twelve Disciplinary Reports, none of which contain any information that remotely suggests the Defendant suffers from a reduced ability to control impulsive behavior or from any manner of emotional disturbance. Even if the Defendant's hypofrontal lobe abnormality is regarded as a mental or emotional disturbance, and even if it is thought to be extreme, the testimony is clear that the Defendant was not under its influence at the time of the murder. Dr. Krop, in referring to a letter he wrote to Mr. Moore; unequivocally stated that he would not have been ab1e to directly relate the neuropsychological impairment to the incident itself. He went on to say, "In other words, I am not indicating that because he has brain damage he killed this woman." (page 1181). Dr. Krop again states that there is no direct relationship, no causal relationship between the brain damage and the murder. (p1190). Dr. Krop does opine that the Defendant's actions in Ms. Berger's home were very consistent with people with frontal lobe abnormality (page 1189) and he characterized these actions in her home as a "rage reaction." (page 1190). However, this mitigating circumstance is not being urged with regard to the Defendant's actions in Ms. Berger's home; it is being urged with regard to the murder. After analyzing the events in Ms. Berger's home, Dr. Krop negated the applicability of this mitigating factor by stating, "The rest of what happened is pretty much consistent with an individual who has already engaged in an act 37
Page 1 and 2: IN THE SUPREME COURT OF FLORIDA JOH
Page 3 and 4: TABLE OF AUTHORITIES CASES Alston v
Page 5 and 6: Kearse v. State, 770 So. 2d 1119 (F
Page 7 and 8: STATEMENT OF THE CASE Hoskins was c
Page 9 and 10: analysis also confirmed the presenc
Page 11 and 12: Berger was found buried in a shallo
Page 13 and 14: ...” She was alive when she was h
Page 15 and 16: significant period of time after su
Page 17 and 18: In addition, he studies development
Page 19 and 20: Hoskins’ PET scan was conducted i
Page 21 and 22: Hoskins did not kill Berger “beca
Page 23 and 24: Bob Sarver (Undersheriff) was recal
Page 25 and 26: subject’s scan to the “normals
Page 27 and 28: the starting point for scaling purp
Page 29 and 30: Hoskins’ claim that his death sen
Page 31 and 32: Just the total number of them cause
Page 33 and 34: during voir dire of the jury panel.
Page 35 and 36: this Court approved the following j
Page 37 and 38: Hoskins requested modified jury ins
Page 39 and 40: are in the best position to assess
Page 41: INFLUENCE OF EXTREME MENTAL OR EMOT
Page 45 and 46: with an individual who has already
Page 47 and 48: Florida law supports the applicatio
Page 49 and 50: Weiss who did a neurological evalua
Page 51 and 52: psychiatry, neurology, neuropsychia
Page 53 and 54: developing his “normal” group w
Page 55 and 56: the physical administration of the
Page 57 and 58: 35 1093, 1177). However, there is n
Page 59: CERTIFICATE OF SERVICE I HEREBY CER

Answer Brief of Appellee - Florida State University College of Law

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