Opinion
No. 81-1086.
September 7, 1982.
Appeal from the Circuit Court, Dade County, Moie J.L. Tendrich, J.
Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
Before NESBITT, FERGUSON and JORGENSON, JJ.
The defendant was convicted of the first-degree murder of Arthur Lee Andrews. The only issue on appeal is whether the evidence was sufficient to establish premeditation. Finding that it was, we affirm.
As we stated in E.Y. v. State, 390 So.2d 776, 778 (Fla. 3d DCA 1980):
In our appellate posture, we must assume that the trier of fact "believed that credible testimony most damaging to the defendant and drew from the facts established those reasonable conclusions most unfavorable to the defendant." Parrish v. State, 97 So.2d 356, 358 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 817 (Fla. 1958). See also, Jefferson v. State, 298 So.2d 465 (Fla. 3d DCA 1974). Consequently, this court will not substitute its judgment for that of the trier of fact nor pit its judgment against those determinations of fact properly rendered by the trier of fact. State v. Smith, 249 So.2d 16 (Fla. 1971). All conflicts and reasonable inferences therefrom are resolved to support the judgment of conviction. Wooten v. State, 361 So.2d 167 (Fla. 3d DCA 1978); Dawson v. State, 338 So.2d 242 (Fla. 3d DCA 1976); Starling v. State, 263 So.2d 645 (Fla. 3d DCA), cert. denied, 268 So.2d 905 (Fla. 1972).
Viewing the evidence in this light, it appears that the defendant became upset upon learning from his "common-law" wife that Annie Andrews and her brother, Arthur, had come to his house searching for cases of soda which had been stolen from Annie's store. He stated, "I'll straighten them out," walked one block to their store, said to Arthur, "I'll kill you," and shot him.
It was within the province of the jury to find that the alleged intrusion by Arthur and Annie into the home of the defendant was not enough to arouse the defendant's passion to a point where it clouded his reason and obscured what would otherwise be a deliberate purpose to kill. There was sufficient evidence to support the jury's determination that the defendant had formed a premeditated design to kill justifying a verdict of murder in the first degree. Wooten v. State, 104 Fla. 597, 140 So. 474 (Fla. 1932).
Affirmed.
The circumstantial evidence, if strained, will support a finding as to the element of premeditation which is necessary to a first degree murder conviction. But the same circumstantial evidence does not exclude, indeed is more consistent with an element other than premeditation, and justifies reducing the conviction, as a matter of law, to second-degree murder. The elements of second-degree murder are (1) the unlawful killing of another, (2) by an act which a person of ordinary judgment would know is reasonably certain to kill or cause serious bodily injury to another, (3) is done from ill will, hatred, spite or an evil intent and (4) is of such a nature that the act itself indicates an indifference to human life. Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981). The facts show that the deceased, as a member of an armed party, had forced his way into the defendant's home and intimidated defendant's wife while he was away. Upon learning of the occurrence defendant immediately sought out the perpetrators. When he came upon them at their place of business defendant warned them against coming to his house again and then shot the victim. The shooting of the victim was preceded or followed by a random shot into the ceiling. I would reduce the conviction to second-degree murder. See Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); Miller v. State, 328 So.2d 544 (Fla. 3d DCA 1976).
The trial judge while expressing some doubt as to his authority to reduce the conviction was also of the opinion that this was not a case where the twenty-five year mandatory minimum sentence was warranted.