Clay v. State, 80-353
| Decision Date | 28 December 1982 |
| Docket Number | No. 80-353,80-353 |
| Citation | 424 So.2d 139 |
| Court | Florida District Court of Appeals |
| Parties | Rosa CLAY, Appellant, v. The STATE of Florida, Appellee. |
Bennett H. Brummer, Public Defender and Kendall B. Coffey, Sp. Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before NESBITT and JORGENSON, JJ., and J. TILLMAN PEARSON (Ret.), Associate Judge.
Rosa Clay appeals from a judgment and sentence imposed following a jury verdict finding her guilty of murder in the first degree. We find merit to her contention that the state failed to prove beyond a reasonable doubt the issue of premeditation and consequently we reverse the conviction and sentence for first degree murder and remand to the trial court for entry of a judgment and sentence for the crime of second degree murder.
The evidence adduced at trial reflects that Rosa Clay, a seventeen-year-old girl, had a stormy relationship with A.J. Hepburn, the victim in this case. It is uncontradicted that on the evening before the events giving rise to this prosecution Hepburn had beaten Rosa Clay with a wire coat hanger and forced her to remain with him for the evening for sexual purposes. The following morning Rosa fled Hepburn's room after he had left for work. Rosa and Hepburn encountered each other again at Mom's Cafe, where Hepburn again beat her violently. Hepburn was physically restrained and Rosa left Mom's Cafe in tears. She went to her sister's home a few blocks away and procured a small handgun from her sister's pocketbook. As she exited her sister's residence Rosa observed A.J. Hepburn, who had apparently followed her after she had fled from Mom's Cafe. Hostile words were exchanged and Rosa fired one shot striking Hepburn in the chest. A short chase ensued and Hepburn took the firearm from Rosa and at close range pulled the trigger three times, each time a misfire. Rosa, still crying, returned to her sister's house. Hepburn died on the scene.
Rosa made a statement to police officers indicating that she procured the firearm in order to shoot Hepburn.
It is upon the foregoing facts that the state argues that it has met its burden of proving premeditation beyond a reasonable doubt. In support of its argument, the state relies principally upon McCutchen v. State, 96 So.2d 152 (Fla.1957). In that case the Florida Supreme Court determined that a five-minute interval was a sufficient time to form the requisite premeditation to sustain a first degree murder conviction. If time were the only issue involved in the case sub judice we would of course apply McCutchen and affirm. There are other facts going to the issue of premeditation, however, which we must consider.
Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned. Larry v. State, 104 So.2d 352 (Fla.1958).
Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982).
Applying the standard announced in Sireci we conclude that premeditation was not proved beyond a reasonable doubt. In Forehand v. State, 126 Fla. 464, 171 So. 241 (1936), aff'd after remand, 130 Fla. 355, 177 So. 550 (1937), the Florida Supreme Court stated:
As the element of premeditation is an essential ingredient of the crime of murder in the first degree, it is necessary that the fact of premeditation uninfluenced or uncontrolled by a dominating passion sufficient to obscure the reason...
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Steiner v. State
...murder, Forehand v. State, 126 Fla. 464, 171 So. 241 (1936), aff'd after remand, 130 Fla. 355, 177 So. 550 (1937); Clay v. State, 424 So.2d 139 (Fla. 3d DCA 1983), pet. for review denied, 434 So.2d 889 (Fla.1983), and that the fact that such a homicide is "committed in a cold, calculated an......
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...as it was with premeditation, precluding a conviction for first-degree murder. Wang, 426 So.2d at 1007; see also Clay v. State, 424 So.2d 139, 141 (Fla. 3d DCA 1982)(evidence did not sustain conviction for first-degree murder where the defendant operated under a "dominating passion" and fea......
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State v. Pforr, BA-382
...a controlling or dominating passion or fear may, in a particular context, preclude the existence of premeditation, see Clay v. State, 424 So.2d 139 (Fla.3d DCA 1983), petition for review denied, 434 So.2d 889 (Fla.1983), in the present case the factual allegations, when construed most favor......