Douglas v. State, 93-2319

• Decision Date: 15 March 1995
• Docket Number: No. 93-2319,93-2319
• Citation: 652 So.2d 887
• Parties: 20 Fla. L. Weekly D663 Barrant D. DOUGLAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 887

652 So.2d 887

20 Fla. L. Weekly D663

Barrant D. DOUGLAS, Appellant, v. STATE of Florida, Appellee.

No. 93-2319.

District Court of Appeal of Florida,

Fourth District.

March 15, 1995.

Rehearing Denied April 20, 1995.

Richard L. Jorandby, Public Defender, and Margaret Good-Earnest, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, Myra J. Fried and Melvina Racey Flaherty, Asst. Attys. Gen., West Palm Beach, for appellee.

KLEIN, Judge.

Appellant was convicted of second degree murder because he killed his wife, in the midst of an argument, by striking her repeatedly with a sugar cane machete. He argues that the trial court erred in not allowing him to introduce the evidence of their stormy 16 month marriage because it was relevant to demonstrate that the killing was a crime of passion, and could have persuaded the jury to convict him of manslaughter. We affirm.

The trial court described this killing, in his findings of fact on which he grounded a departure sentence of life imprisonment, as follows:

On January 11, 1992, following a domestic dispute between the Defendant and the victim, the Defendant literally "chopped" the victim to death. The instrument used in this brutal killing was a cane knife designed to be used more like an axe than a knife. The medical examiner testified that at least 30 and probably 40 blows were inflicted on the victim. The photographs in evidence depict horrible mutilation of the upper body, neck, head, hands and arms of the victim by the Defendant. An eyewitness testified that after the victim fell to the ground following the first several blows to her arms, hands and upper body, she pleaded for someone to help her. Ignoring these pleas for her life, the Defendant continued to stand over the victim and chop her like he would a log.

The issues we must decide are: (1) whether the evidence of the stormy marital relationship was inadmissible because it would have constituted an improper attack on the character of the victim; (2) whether crime of passion evidence, the purpose of which is to refute premeditation, is admissible where the defendant is not charged with first degree murder; and, (3) whether this killing qualifies as a crime of passion.

On the day of the killing, the police were called as a result of a domestic argument which had arisen out of a dispute between appellant and his wife regarding long-distance telephone charges. When an officer arrived around 6:30 PM things had calmed down, but appellant's wife wanted appellant to move out. Appellant agreed to leave and moved his clothing and belongings to the home of a friend and neighbor. There was disagreement as to who would have the use of their one car, but it was finally agreed that the appellant could take it.

The same officer received another call that day around midnight, and when he arrived he discovered appellant's wife's body in a pool of blood behind their vehicle. The medical examiner testified that she had 41 injuries resulting from a sharp object--three to the neck down to the bone--and that the wounds resulted from 30 to 32 swings, many of which were delivered with full force.

In his statement, which was played for the jury, appellant described the initial argument which resulted in the deputy's first visit as being over the telephone bill. While his wife was complaining to him about these charges, the appellant threw parts of an orange at her. Later, after the deputy left and appellant had gone to his neighbor's house, his wife removed the fuses from the car, so that the lights were inoperable and appellant could not drive it that night. When appellant discovered this, he attempted to persuade his wife to return the fuses. She refused and blew smoke on him, spit at him, and hit him. Appellant begged her to leave him alone, but she kept "bugging" him and laughing at him. In order to scare her, he picked up the machete, which was in the car, but she made him so mad that he lost control and went crazy. Appellant testified at trial, and his testimony was consistent with his statement.

Appellant's primary argument on appeal is that the trial court erred in excluding evidence of his prior marital relationship, which was violent and volatile. This evidence should have been admitted, he says, because it would have demonstrated that the killing occurred in the heat of passion, and might have convinced the jury that this was not an act evincing a depraved mind (second degree murder), but rather manslaughter.

One of our supreme court's earliest explanations of the substance and purpose of the crime of passion defense is found in Whidden v. State, 64 Fla. 165, 59 So. 561 (1912):

In a prosecution for murder in the first degree for the unlawful killing of a human being from a premeditated design to effect the death of the person killed, or any human being, the defendant under a plea of not guilty may introduce any relevant and proper evidence tending to show a lack of premeditated design in the admitted killing so as to reduce the offense charged to a lower degree of homicide.

* * * * * *

A sudden transport of passion, caused by adequate provocation, if it suspends the exercise of judgment, and dominates volition, so as to exclude premeditation and a previously formed design, may not excuse or justify a homicide, but it may be sufficient to reduce a homicide below murder in the first degree, although the passion does not entirely dethrone the actor's reason.

To support his argument that it was not merely the events of the day which were admissible, but rather the entire history of this volatile relationship, appellant relies on Auchmuty v. State, 594 So.2d 859 (Fla. 4th DCA 1992) and Billeaud v. State, 578 So.2d 343 (Fla. 1st DCA 1991). In each of those cases the defendant killed a man whom he discovered in bed with his wife, was charged with first degree murder, and alleged that the killing occurred in the heat of passion.

In Billeaud the defendant argued on appeal that evidence of prior extramarital affairs of his wife should have been admitted to fully explain his rage on the day of the killing in order to show that it was not premeditated. The First District agreed, but concluded that the evidence was cumulative and that its exclusion was harmless. Relying on Billeaud, this court held in Auchmuty that evidence of a long relationship between the defendant and the decedent, practically a father/son relationship, was erroneously excluded because it was relevant to show the enormity of defendant's rage upon finding his wife in bed with the decedent.

The state makes two arguments as to why the trial court properly refused to admit this evidence. First, because the evidence constitutes an impermissible attack on the character of the victim and second, because crime of passion evidence, which is relevant to refute premeditation, is not relevant where the charge is only second degree murder. The trial court excluded the evidence because it was evidence of bad character.

Generally the character of a homicide victim cannot be attacked, unless there is an issue of self-defense. See Dupree v. State, 615 So.2d 713, 720 (Fla. 1st DCA), rev. den., 623 So.2d 495 (1993) and cases cited therein. Where the...