LUMSDON v. State, 3D07-2324.

• Decision Date: 03 March 2010
• Docket Number: No. 3D07-2324.,3D07-2324.
• Citation: 29 So.3d 390
• Parties: Willie LUMSDON, Appellant/Cross-appellee, v. The STATE of Florida, Appellee/Cross-appellant.
• Court: Florida District Court of Appeals

29 So.3d 390

Willie LUMSDON, Appellant/Cross-appellee, v. The STATE of Florida, Appellee/Cross-appellant.

No. 3D07-2324.

District Court of Appeal of Florida, Third District.

March 3, 2010.

Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.

WELLS, Judge.

Willie Lumsdon appeals from convictions and sentences for second degree murder and throwing a deadly missile, both stemming from the shooting death of Malcolm Marshall. Lumsdon raises four arguments in support of reversal. First, he claims that the trial court reversibly erred in admitting testimony about a statement he made shortly before the shooting, regarding wanting to shoot someone's head off. Second, he claims that the trial court reversibly erred in refusing to strike the testimony of a witness who refused to answer questions posed by the State, including a claim that the State's questions created an inference of bad character. Third, Lumsdon claims reversible error stemming from statements made by the State during rebuttal closing argument. And, fourth, he claims that the trial court erred in denying his motion for judgment of acquittal where the State failed to prove the elements essential to a second degree murder conviction. We find no merit in any of these arguments and affirm.

The facts of this case, as relevant, are as follows. On Memorial Day 2004, the victim, Malcolm Marshall, and five of his friends loaded into two cars and headed to South Beach for a night of fun. Lumsdon and three of his friends were also headed to South Beach. The two groups crossed paths when forced to exit the Interstate because of a road closure.

Traffic on the exit ramp was snarled, resulting in the car in which Lumsdon was travelling (a Chevy Tahoe) idling next to the vehicle (a sedan) in which Marshall was travelling. Lumsdon, who occupied a rear seat on the passenger side of the Tahoe started "messing" with the passengers in the car in which Marshall, also in the rear seat on the passenger side, was travelling. The verbal repartee escalated, with Lumsdon and the rear seat passengers in the other car taunting, cursing, and arguing with one another. After something was tossed from the Tahoe into the car in which Marshall was riding, another occupant of Marshall's car tossed a couple of beer bottles toward the Tahoe. Neither hit home, and as Marshall's car moved on, Lumsdon fired a single gunshot which struck Marshall in the head, killing him instantly.

The Tahoe drove away, continuing on to Miami Beach. On the way, Lumsdon threw the spent bullet casing out the window and replaced the spent bullet with another, commenting to his car-mates that this "is how you get rid of evidence." The Tahoe was later stopped and a search revealed a gun on the rear seat floor on the passenger side, the place occupied by Lumsdon. Significant gun shot residue was found on Lumsdon's hands and his DNA was found on the barrel of the gun.

Lumsdon subsequently was arrested and charged with second degree murder with a firearm, discharging a firearm from a vehicle, and shooting or throwing a deadly missile into a vehicle occupied by a person. Lumsdon admitted to shooting the gun, but claimed that he did not intentionally aim for the other car or anyone in it, but rather was shooting into the air to scare the occupants of that car in self defense.

We find no abuse of discretion in either admitting Lumsdon's statement that he wanted to shoot someone in the head or in refusing to strike the testimony of a particularly damning witness, Will Catis, after the State inquired as to whether Catis was worried about testifying. The former statement went to Lumsdon's state of mind, that is, whether he acted with the intent necessary for a conviction for second degree murder. See § 782.04(2), Fla. Stat. (2004) (defining second degree murder as the "unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual"). The latter statement was admissible in every respect.

Indeed, Lumsdon's real objection is not to Catis' testimony, but to the question asked by the State as...