Asay v. State, 73432
| Decision Date | 16 May 1991 |
| Docket Number | No. 73432,73432 |
| Citation | 580 So.2d 610 |
| Parties | 16 Fla. L. Weekly S385 Mark J. ASAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Nancy Daniels, Public Defender and W.C. McLain, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Richard B. Martell, Asst. Atty. Gen., Tallahassee, for appellee.
Mark J. Asay, a prisoner under two sentences of death, appeals his convictions of first-degree murder and the attendant sentences of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm both the convictions and sentences.
According to testimony of Asay's brother, Robbie, and Robbie's friend, "Bubba" McQuinn, on July 17, 1987, the three met at After the bar closed, Robbie said he wanted to try to "pick up a girl" he had seen at the bar, so Bubba and Asay drove around the corner in Asay's truck. They returned to discover that Robbie had been unsuccessful with the girl he had seen, so Bubba suggested that they go downtown to find some prostitutes and he would pay for oral sex for them all. Asay and Bubba left in Asay's truck and Robbie left in his. Once downtown, Asay and Bubba soon spotted Robbie who was inside his truck talking to a black man, Robert Lee Booker. Robbie was telling Booker who was standing at the driver's side window of Robbie's truck that he and his friends were looking for prostitutes.
a local bar where they drank beer and shot pool. They left the bar around 12:00 a.m. and went to a second bar where they stayed until closing at 2:00 a.m. Although Asay drank a number of beers, both Bubba and Robbie testified that Asay did not appear drunk or otherwise impaired.
After spotting Booker standing by Robbie's truck, Asay told Bubba to pull up next to the truck. Asay immediately got out of his truck, proceeded to Robbie's truck, and told Robbie "You know you ain't got to take no s--t from these f---ing niggers." Although Robbie told Asay that "everything is cool," Asay began to point his finger in Booker's face and verbally attack him. When Booker told him "Don't put your finger in my face," Asay responded by saying "F--k you, nigger" and pulling his gun from his back pocket, shooting Booker once in the abdomen. Booker grabbed his side and ran. According to the medical examiner, the bullet perforated the intestines and an artery causing internal hemorrhaging. Booker's body was later found under the edge of a nearby house.
Robbie drove away immediately after the shooting. Asay jumped into the back of his truck, as Bubba drove off. When Asay got into the cab of the truck, Bubba asked him why he shot Booker. Asay responded, "Because you got to show a nigger who is boss." When asked if he thought he killed Booker, Asay replied, "No, I just scared the s--t out of him."
Bubba testified that after the shooting, Asay and Bubba continued to look for prostitutes. According to Bubba, he saw "Renee" who he knew would give them oral sex. It appears that at the time neither Bubba nor Asay was aware that "Renee" was actually Robert McDowell, a black man dressed as a woman. According to Bubba, he negotiated a deal for oral sex for them both. Bubba drove the truck into a nearby alley. McDowell followed. Bubba testified that McDowell refused to get into the truck with them both, so Asay left the truck and walked away to act as a lookout while Bubba and McDowell had sex. As McDowell started to get into the truck with Bubba, Asay returned, grabbed McDowell's arm, pulled him from the truck and began shooting him. McDowell was shot six times while he was backing up and attempting to get away. Asay jumped back in his truck and told Bubba to drive away. When asked why he shot McDowell, Asay told Bubba that he did it because "the bitch had beat him out of ten dollars" on a "blow job." McDowell's body was found on the ground in the alley soon after the shots were heard. According to the medical examiner, any of three wounds to the chest cavity would have been fatal.
Asay later told Charlie Moore in the presence of Moore's cousin, Danny, that he shot McDowell because McDowell had cheated him out of ten dollars on a drug deal and that he had told McDowell, "if he ever got him that he would get even." Asay told Moore that he was out looking for "whores," when he came across McDowell. According to Moore's cousin, Danny, Asay also told Moore that his plan was to have Bubba get McDowell in the truck and they "would take her off and screw her and kill her." Moore testified that Asay told him that when Bubba "didn't have [McDowell] in the truck so they could go beat him up," Asay "grabbed [McDowell] by the arm and stuck the gun in his chest and shot him four times, and that when he hit the ground, he finished him off." As a result of tips received from Moore and his cousin after McDowell's murder was featured on a television Crime Watch segment, Asay The state also presented testimony of Thomas Gross, who was Asay's cellmate while he was awaiting trial. Gross testified that when the black prisoners, who were also housed in their cell, were out in the recreation area, Asay told him he was awaiting trial for a couple of murders. According to Gross, Asay then showed him some newspaper articles and told him, "I shot them niggers." While they were discussing the murders, Asay showed Gross his tattoos, which included a swastika, the words "White Pride," and the initials "SWP" which Gross said stand for supreme white power.
was arrested and charged by indictment with two counts of first-degree murder.
Asay was found guilty of both murders. In accordance with the jury's recommendations, the trial court imposed a sentence of death for each conviction. The following two aggravating factors were found in connection with both murders: 1) the murder was committed by a person under sentence of imprisonment because Asay was on parole; and 2) Asay had been previously convicted of a capital felony based on the contemporaneous murder conviction. Sec. 921.141(5)(a), (b), Fla.Stat. (1987). In connection with the McDowell murder, the court found a third aggravating factor, that the murder was committed in a cold, calculated, and premeditated manner, without any pretense of any moral or legal justification. Sec. 921.141(5)(i), Fla.Stat. (1987). Asay's age of twenty-three at the time of the offenses was found in mitigation as to both murders. Sec. 921.141(6)(g), Fla.Stat. (1987).
Asay raises seven claims, only three of which merit discussion. 1
First, we address Asay's claim that the trial judge erred by failing to grant his motion for judgment of acquittal on count I of the indictment charging him with the first-degree premeditated murder of Robert Lee Booker. He contends that the conviction cannot be sustained because the state failed to prove the homicide was premeditated. He argues that, at best, the state proved second-degree murder because the testimony of the eyewitnesses merely establishes that he shot Booker one time during a brief heated argument and his admissions after the shooting show that he "harbored no intent to kill."
Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act. Wilson v. State, 493 So.2d 1019, 1021 (Fla.1986); Preston v. State, 444 So.2d 939, 944 (Fla.1984). Whether a premeditated design to kill was formed prior to a killing is a question of fact for the jury that may be established by circumstantial evidence. 493 So.2d at 1021; 444 So.2d at 944.
On this record, there was sufficient evidence from which the jury could have concluded that, prior to discharging the fatal shot, Asay was conscious of the fact that he was going to shoot Booker and that Booker would likely die as a result of being shot. The evidence supports the jury's rejection of Asay's contention that the shooting was an "impulsive" reaction...
To continue reading
Request your trial
-
Asay v. Sec'y, Fla. Dep't of Corr.
...at the time of the offenses was found in mitigation as to both murders. § 921.141(6)(g), Fla. Stat. (1987).Asay v. State, 580 So.2d 610, 610-12 (Fla. 1991) (per curiam); Ex. 22 at 1-5. On direct appeal, Petitioner raised the following claims: (1) the trial court erred by allowing racial pre......
-
Morrison v. State
...act he is about to commit and the probable result of that act.'" DeAngelo v. State, 616 So.2d 440, 441 (Fla.1993) (quoting Asay v. State, 580 So.2d 610, 612 (Fla.1991)). Premeditation can be shown by circumstantial evidence. See Woods v. State, 733 So.2d 980, 985 (Fla.1999). Whether the Sta......
-
MILLER v. State of Fla.
...allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act." Asay v. State, 580 So.2d 610, 612 (Fla.1991). Miller's statements that there was a break between his initial struggle with Smith during the attempted robbery and the ultima......
-
Asay v. State, SC16–223
...included a swastika, the words "White Pride," and the initials "SWP" which Gross said stand for supreme white power.Asay v. State (Asay I ), 580 So.2d 610, 610–12 (Fla. 1991).The jury found Asay guilty of both murders and recommended a death sentence by a vote of nine to three. The trial co......