Court of Appeal Reverses Verdict in Murder Case

An appeals court Monday reversed the first-degree murder conviction of an Orange man who shot and killed his estranged girlfriend at an Anaheim Hills restaurant and then shot himself twice in the head, ruling that a Superior Court judge failed to properly answer a key question from the jury.

The 4th District Court of Appeal ruled unanimously in favor of Larry Lee Burgoon, 34, who was sentenced to 27 years to life for murder. The justices said prosecutors may retry Burgoon within 30 days for first-degree murder, or simply ask a judge to sentence him for second-degree murder, which carries a lesser penalty.

At the climax of a stormy relationship, Burgoon shot 51-year-old Mary Louise Cutbirth of Fullerton at the Foxfire restaurant on Oct. 26, 1989. As a result of his own self-inflicted wounds, Burgoon underwent a craniotomy, in which part of the frontal lobe of his brain was removed.

Deputy Dist. Atty. Jeoffrey L. Robinson made no recommendation to jurors between a first-degree verdict, which requires a finding of premeditation, and second-degree, which does not.

However, during its one-day deliberations, jurors sent a note to Superior Court Judge Ragnar R. Engebretson, asking whether Burgoon’s depression about the breakup of his relationship could be considered a factor in determining premeditation.

Engebretson replied, in part: “All the law necessary has been given to you,” and Burgoon was convicted that day, Aug. 13, 1990.

The appeals court wrote: “In view of its question, the jury apparently was uncertain about what evidence could rebut premeditation,” and the judge should have given them clarifying instruction.

In another case, the court ruled that a woman may sue a marriage, family and child counselor who approved unmonitored visits to her daughter by her ex-husband, during which, the woman claims, the daughter was sexually molested.

The justices reversed an earlier decision that dropped the counselor, Stephen D. Adam, from a civil suit brought by Pam Kisow. Kisow and her estranged husband, Steven Arnett, hired Adam in 1985 to supervise a visitation schedule for their daughter as their marriage was being dissolved.

The divorce settlement, which initially provided for biweekly, monitored visits by Arnett with his daughter, included provision for the arrangement to be modified by the therapist.

In its 2-1 ruling, the majority delineated between the concepts of legal immunity and professional privilege:

“Predicting human behavior is precisely what experts in all sorts of fields are paid to do. While the law accords them an absolute privilege in certain circumstances, no countervailing public policy justifies a blanket immunity for all negligent conduct.”