Arias v. State

593 So. 2d 260, 1992 WL 4083
CourtDistrict Court of Appeal of Florida
DecidedJanuary 14, 1992
Docket89-983
StatusPublished
Cited by11 cases

This text of 593 So. 2d 260 (Arias v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arias v. State, 593 So. 2d 260, 1992 WL 4083 (Fla. Ct. App. 1992).

Opinion

593 So.2d 260 (1992)

Jean ARIAS, Appellant,
v.
The STATE of Florida, Appellee.

No. 89-983.

District Court of Appeal of Florida, Third District.

January 14, 1992.

*261 Bierman, Shohat and Loewy and Donald I. Bierman and Pamela I. Perry, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and COPE, JJ.

PER CURIAM.

Jean Arias appeals her convictions and sentences for attempted first degree murder and for solicitation to commit murder. We reverse.

Arias was accused of trying to kill an infant born with severe birth defects. Shortly after the child was born, she was placed under special nursing supervision twenty four hours a day. Arias was the Director of Nursing for Care Plus, which provided medical care for the child. Several nurses, including Arias, administered pain killing medication periodically to ease the child's suffering. The child was the granddaughter of the physician who ran Care Plus.

Arias contacted a nurse, Judy Felsenstein, and told her she needed someone to work Easter weekend. Arias also discussed a plot to kill the child by administering an overdose of pain medication. Felsenstein recommended that Arias call Etiole Means. Means and Felsenstein had both worked with Arias in the past. Arias replaced Means at one previous place of employment.

The three women met at a restaurant and discussed the plan to kill the child. *262 Arias told Means and Felsenstein that the child's grandfather was aware of the plan and approved of it. Means testified that after she applied for the temporary nursing position, Arias gave Means a bottle of medication, Hycomine, which was to be administered to the child. A very small amount of the medication given to the child would have been fatal.

After receiving the medication, Means became worried and called police to tell them about the murder plot. Means was at first reluctant to say who was involved in the plot, but she later told the police everything after they threatened to prosecute her. Before the plot was to be carried out, the police went to Arias' home and arrested her.

Prior to trial, the state filed several motions in limine. The state sought to prohibit the defense from asking Means about Means' alleged reputation for drunkenness and alleged homosexuality. Arias sought to introduce the evidence of Means' homosexuality for impeachment purposes. Arias claimed that Means harbored ill feelings toward her after Arias rebuffed Means' homosexual advances. Arias also wanted to show that Means and Felsenstein were not wholly independent and unrelated witnesses, as claimed by the state, because they had allegedly been homosexual lovers. The trial court excluded all testimony concerning Means' homosexuality.

The state also sought to exclude general testimony regarding Means' history of alcoholism, although the state conceded that specific instances of drunkenness may be relevant and should be admitted.

During the state's opening statement, the prosecutor told the jury that the child was still "alive to smile on her first birthday." Arias objected to the comment. The trial court overruled the objection but instructed the prosecutor to limit his comments on the child to merely stating that the child was alive.

Two Metro Dade Police Department officers testified, during the trial, to certain statements Means made to them. Arias objected to the statements, arguing that the state was using the testimony to bolster Means' testimony with prior consistent statements. The trial court overruled the objections.

During the trial, Arias' attorney was contacted by Doctor Donald Poster who told defense counsel that Means said she was being forced to testify. The trial court held a hearing concerning the doctor's allegations. He testified that he treated Means for a previous heart condition. Dr. Poster said he never treated Means for emotional or mental problems, but only for physical illnesses. The doctor told defense counsel that after a physical examination (which occurred approximately ten months before the trial), Means told Dr. Poster she was being forced to testify and that if she did not, she would be prosecuted. Dr. Poster also said Means told him that testifying was something she could not get out of and she felt she had to proceed and say certain things. Arias' attorney asked the court to investigate the doctor's statements and to allow Arias to call Dr. Poster if Means denied making the statements or denied being coerced to testify. The court appointed a lawyer to represent Means, who stated that she was not coerced into testifying and that she was not threatened with prosecution. The prosecutor argued that Dr. Poster had treated Means for anxiety in the past[1] and, as such, any communications between the doctor and Means were privileged under the psychotherapist/patient privilege. The trial court agreed and excluded all testimony concerning communications between Means and the doctor.

Arias testified in her own defense. During the state's cross-examination, the prosecutor pointed out that the child's grandfather's attorney had been in the courtroom several times during the trial and had conversed with Arias' attorney. The state asserted throughout the trial that Arias conspired with the grandfather to kill the child.

*263 After Arias' testimony was completed, Arias attempted to present several character witnesses to testify as to her truth and veracity.[2] Arias contended that since her credibility had been attacked vigorously during cross-examination, she was entitled to put on evidence of her general reputation for truth and veracity. The trial court denied the request. At the close of all the evidence Arias moved for a judgment of acquittal. The motion was denied. Arias was convicted of attempted first degree murder and of solicitation to commit murder and has appealed.

Arias argues that the evidence presented by the state did not support the attempted first degree murder conviction and that her motion for judgment of acquittal on that count should have been granted. We agree. The elements of attempt are: 1) a specific intent to commit the crime, and 2) a separate overt, ineffectual act done towards its commission. See Fleming v. State, 374 So.2d 954 (Fla. 1979) and cases cited therein. "The overt act must reach far enough towards the accomplishment of the desired result to amount to a commencement of the consummation. There must be some appreciable fragment of the crime committed... ." Robinson v. State, 263 So.2d 595, 596-97 (Fla. 3d DCA 1972).

In this case, the state presented evidence which showed that Arias met with Means and Felsenstein, discussed the murder plot, and then gave Means the bottle of Hycomine. The plot to kill the child went no further. The discussions occurred four days before the murder was to take place. Means testified that she had not decided to help Arias kill the child and Means never took any active steps toward completion of the crime. The evidence shows that the acts committed by Arias were only those of preparation to commit the crime and did not rise to the level of overt acts nearing consummation of the crime. Therefore, the evidence was not sufficient to sustain a verdict of attempted first degree murder. See Robinson; see also Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449

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593 So. 2d 260, 1992 WL 4083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arias-v-state-fladistctapp-1992.