Burcham v. State
| Decision Date | 05 November 1976 |
| Docket Number | No. 75--458,75--458 |
| Citation | 338 So.2d 1138 |
| Court | Florida District Court of Appeals |
| Parties | Bruce A. BURCHAM, Appellant, v. STATE of Florida, Appellee. |
Jack O. Johnson, Public Defender, Bartow, and Thomas W. Garrard, Lake Wales, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
On this appeal from a conviction of first degree murder with its resulting life sentence, the only point of merit relates to the contention that the court committed fundamental error in failing to properly charge the jury on the crime with which the defendant was charged.
The state attorney's office submitted requested jury instructions to the trial judge. The defendant's attorney reviewed and approved these instructions. These instructions were read to the jury. No objections were made, and no additional instructions were requested. From a perusal of the instructions so given, it is obvious that they were intended to track the Florida Standard Jury Instructions as applicable to this case. Through inadvertence and unknown to either counsel or the trial judge until this appeal, the instructions on first degree murder which are set forth on pages 68 and 69 of the standard jury instructions were not given because they were not included in the requested instructions. The issue before us is whether the failure to give these particular instructions constituted fundamental error.
The omitted instructions set forth on pages 68 and 69 of the Florida Standard Jury Instructions in Criminal Cases read as follows:
'MURDER--FIRST DEGREE F.S. 782.04(1)(A)
Murder in the first degree is the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of (or in the attempt to perpetrate) any of the following crimes: arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of eighteen years when such drug is proven to be the proximate cause of the death of the user.
A premeditated design to kill is a fully-formed conscious purpose to take human life, formed upon reflection and present in the mind at the time of the killing. The law does not fix the exact period of time which must pass between the formation of the intent to kill and the carrying out of the intent. It may be only a short time and yet make the killing premeditated, if the fixed intent to kill was formed long enough before the actual killing to permit of some reflection on the part of the person forming it, and that person was at the time of carrying out that intent fully conscious of a settled and fixed purpose to kill and of the results which would follow such killing. When such state of mind exists there is a premeditated design to kill, although the killing follows closely upon the formation of the intent.
The question of premeditated design is a question of fact to be determined by the jury from the evidence like every other material fact in the case. The law does not require that a premeditated design be proved only by direct and positive testimony. The existence of a premeditated design as well as its formation are operations of the mind, as to which direct and positive testimony cannot always be obtained; therefore, the law recognizes that it may be proved by circumstantial evidence. It will be sufficient proof of such premeditated design if the circumstances attending the homicide and the conduct of the accused convince you beyond a reasonable doubt of the existence of such premeditated design at the time of the homicide.
If a person has a premeditated design to kill one person and in attempting to kill that person actually kills another whom he did not intend to kill, he is nonetheless guilty of murder in the first degree.
The killing of a human being when committed by a person engaged in the perpetration of (or in the attempt to perpetrate) any arson, involuntary sexual battery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of eighteen years when such drug is proven to be the proximate cause of death of the user, is murder in the first degree even though there is no premeditated design or intent to kill.
The crime of (name crime applicable to evidence) is defined as follows: (define other felony).
If a person kills another in trying to do or commit any (arson) (involuntary sexual battery) (robbery) (burglary) (kidnapping) (aircraft piracy) (unlawful throwing, placing or discharging of a destructive device or bomb), or while escaping from the immediate scene of such crime, the killing is in perpetration of or in the attempt to perpetrate such crime.'
Commenting upon a deviation from the standard jury instructions, our Supreme Court in State v. Bryan, 287 So.2d 73 (Fla.1973), said 'By this Court's approval of the jury instructions...
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Alvarado v. Sec'y, CASE NO. 8:10-cv-1365-T-23TGW
...by a court do not need to be identical with the standard jury instructions. Bryan v. State, 287 So. 2d 73 (Fla. 1973); Burcham v. State, 338 So. 2d 1138 (Fla. 2d DCA 1976); Davis v. State, 371 So. 2d 721 (Fla. 1st DCA 1979); Waters v. State, 298 So. 2d 208 (Fla. 2d DCA 1974). The court note......
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State v. McDonald
...195 N.W.2d 803, 805-06 (Mich. Ct. App. 1972), Mitchell v. Texas, 365 S.W.2d 804, 806 (Tex. Crim. App. 1963), and Burcham v. State, 338 So. 2d 1138, 1141 (Fla. 2d Dist. App 1976), to support their argument that a trial court is not required to give a specific definition of premeditation. The......
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Davis v. State
.... . ." the error. Brown v. State, 124 So.2d 481, 484 (Fla.1960). See also State v. Bryan, 287 So.2d 73, 75 (Fla.1973); Burcham v. State, 338 So.2d 1138 (Fla.2d DCA 1976); Waters v. State, 298 So.2d 208 (Fla.2d DCA We have considered the remaining points urged for reversal by appellant, dete......