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Date: 05-28-2021

Case Style:


Case Number: 19-3691

Judge: Robert Gross


Plaintiff's Attorney: Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General

Defendant's Attorney:

Criminal Defense Lawyer Directory


West Palm Beach, FL - Criminal defense attorney represented Michael Jones with a first-degree murder charge.

Michael Jones appeals his conviction for first-degree murder. We affirm
the conviction and write primarily to address (1) the admissibility of
evidence of a domestic violence situation that preceded the murder and (2)
the application of the excited utterance exception to the rule against
hearsay to admit certain statements by the victim after the domestic
violence incident.
The Charge
Appellant was charged with first-degree premeditated murder for the
death of his girlfriend, Diane Duve. The State alleged that appellant
strangled the victim and stuffed her body in the trunk of her car, which he
abandoned in a parking lot.
Evidence at Trial as to the Victim’s Murder in June 2014
The victim was last seen leaving a bar in Vero Beach with appellant at
around 1:13 a.m. on June 20, 2014. The bar was about four miles from 2
appellant’s townhouse. Around 1:45 a.m., the victim texted her mother
and told her that she would not be home.
Appellant, who was employed as a wealth planner, called in sick to work
on June 20th. Shortly after noon that day, a friend of appellant’s gave him
a ride to his car, which was still in the parking lot of the Vero Beach bar
where he had been with the victim the night before. Appellant told the
friend that the previous night started out well, but the last ten minutes
“weren’t that great.”
Later that afternoon, appellant withdrew $2,500 from the bank and told
the teller that he was going on vacation.
Meanwhile, the victim’s mother grew concerned because the victim had
not responded to her calls and texts. Around 5:30 p.m. on June 20th, the
victim’s mother called appellant, who later returned her call and told her
that the victim was sleeping. Appellant said the victim would call her back,
but she never did.
That evening, appellant checked into a hotel in Fort Pierce. He paid in
cash and asked the clerk not to transfer any calls to him or tell anyone
that he was there.
Around 6:00 a.m. the next day, June 21, appellant’s neighbor saw a
man with an “odd” or “freaked out” demeanor walking behind appellant’s
building. The neighbor then saw a black Nissan Altima—the victim’s car—
back out of appellant’s garage. Police later found the victim’s blood in
appellant’s garage.
Around 7:00 a.m. on June 21, surveillance footage from a Palm Bay
Walmart captured appellant getting out of a black car and entering the
store. Appellant bought a Samsung flip phone and a prepaid Verizon card.
He then drove the black car to the dumpster area behind the Walmart. He
got out to throw away a trash bag, but the dumpsters were locked and he
drove off.
About an hour later, appellant used the Samsung phone to call for a
taxi. A taxi driver picked up appellant in Melbourne, drove him to Vero
Beach, and dropped him off across the street from his home. The taxi
driver then saw appellant get into a gold car.
Police obtained appellant’s cell phone records, which showed that he
had traveled from Vero Beach to Palm Bay to Melbourne, back to Vero
Beach, and then to Fort Pierce. Police arrested appellant at the hotel in 3
Fort Pierce on June 22. Appellant had both an iPhone and a Samsung flip
phone in his possession. Police also collected clothing from appellant that
matched the clothes he was wearing in the Walmart surveillance video.
The next day, June 23, police discovered the victim’s car in a parking
lot in Melbourne, near where the taxi had picked up appellant. The
victim’s body was in the trunk of her car.
The medical examiner who conducted the autopsy testified that the
manner of death was homicide and that the cause of death was manual
strangulation. He explained that the victim had defensive wounds and
that the strangulation would have taken four to six minutes before death
occurred. The medical examiner’s conclusion that the victim had died of
manual strangulation was based on the following factors: (1) the pattern
of bruising associated with decomposition; (2) the fingerprint impressions
in the neck; (3) the fingernail impressions to the neck; (4) the bleeding in
the eyes; (5) the biting of the tongue; (6) internal hemorrhaging in the neck;
and (7) multiple broken bones in the neck, including broken hyoid bones.
Williams Rule Evidence
Before trial, the State filed a notice of intent to introduce Williams1 rule
evidence that, on April 30, 2014, less than two months before the murder,
appellant had choked the victim and threatened her. The State contended
that the evidence was relevant for the purpose of showing “proof of motive,
intent, knowledge, and/or absence of mistake or accident,” as well as
“premeditation, identity or the rebuttal of any proposed defense or
defenses.” The State later abandoned its argument that the evidence was
being offered to prove identity.
The trial court held a Williams rule hearing. At the hearing, the State
presented the following evidence regarding the April 30th incident.
A. Appellant’s Neighbor’s Testimony
Appellant’s neighbor testified that he called 911 in the early morning
hours of April 30, 2014, after hearing appellant having a loud, one-sided
argument with the victim for about 45 minutes to an hour. Appellant was
enraged and the situation sounded extremely unsafe. In the 911 call, the
neighbor reported that appellant was “trying to dominate the crap out of
her,” but that the argument was verbal and he could not “hear any slaps
or anything.”
1 Williams v. State, 110 So. 2d 654 (Fla. 1959).4
B. Officer Kuehn’s Testimony
Officer Kuehn testified that he arrived at appellant’s home at 1:16 a.m.
on April 30th to investigate a disturbance. When Officer Kuehn knocked
on the door, it took several minutes before appellant answered. Appellant
said something to the effect that he had been asleep. Officer Kuehn asked
to see the victim, and she came to the door.
The victim was wearing a tank top and pajama pants. Officer Kuehn
got a good look at the victim and did not see any marks on her. The
victim’s demeanor appeared normal and she was not crying. Officer Kuehn
had the victim speak with Officer Brumley, and then they switched and
Officer Kuehn spoke to her. Eventually, the victim said she wanted to
leave, so the officers stayed on the scene while the victim collected her
belongings and left. Officer Kuehn was at the scene for about 15 to 20
minutes after first encountering appellant.
C. Officer Brumley’s Deposition and Report
Officer Brumley’s deposition and report were entered into evidence at
the Williams rule hearing. In his deposition, Officer Brumley testified that
both appellant and the victim claimed they were just having “rough sex.”
The victim seemed “aggravated” when she came to the door. Officer
Brumley did not notice any marks or injuries on the victim.
Just as the officers were about to leave, the victim said, “Don’t go
anywhere, I’m leaving.” The victim begged the officers to stay while she
gathered her things. Officer Brumley thought “it was strange the way that
she acted,” going from saying everything was fine to “all of a sudden”
saying she was leaving. Officer Brumley interviewed the victim outside
and shined his flashlight on her to verify that she did not appear to have
any injuries. Officer Brumley indicated in his report that the victim
continued to state that “nothing happened” and that she just “wanted to
go home.”
D. Ms. Cairns’ Testimony
Ms. Cairns, the victim’s close friend, testified that in the early morning
hours of April 30, 2014, she was working at a Vero Beach bar located
about ten minutes away from appellant’s home. Ms. Cairns received a call
from the victim at “around 1:00” in the morning. The victim was
“hysterically crying.” The victim said she was in her car and was on her
way to see Ms. Cairns. The victim arrived at the bar a few minutes later.
The victim had swollen eyes, a red face, and a runny nose. The victim was 5
“almost hyperventilating from crying so hard.” The victim was in her
pajamas. Ms. Cairns explained that “for [the victim] to be out in public in
her pajamas means that she was desperate to leave the situation that she
was in.” Ms. Cairns asked the victim to join her in the restroom.
The victim told Ms. Cairns that she got into an argument with appellant
and it escalated. The victim said appellant choked her, and she “put her
hands up to her neck in the motion of him strangling her.” Ms. Cairns
saw red finger marks on the victim’s neck. Ms. Cairns took pictures of the
marks on her phone at 1:47 a.m.
E. Mr. Salvatore’s Testimony
Mr. Salvatore worked at the bar with Ms. Cairns and was also a friend
of the victim. He testified that the victim arrived at the bar sometime after
the bar closed at 1:00 a.m. The victim was hysterical and extremely upset.
Mr. Salvatore followed the victim and Ms. Cairns into the bathroom. The
victim was hyperventilating.
Eventually, the victim said that she got into a fight with appellant “and
then it escalated.” According to the victim, appellant got on top of her, put
his hands around her neck, and said, “I’ll fucking kill you.”
The victim explained that, when the police knocked on the door,
appellant told the victim, “Be quiet, I’ll handle the cops.” Mr. Salvatore
saw red markings around the victim’s neck from where someone placed
their hands.
F. The trial court’s pretrial rulings
The trial court entered a written order finding that the evidence of the
April 30 strangulation incident was relevant to show premeditation and
intent, and that its probative value was not substantially outweighed by
any prejudicial effect. The trial court also entered an order finding that
the victim’s statements on April 30 were admissible as excited utterances.
H. The Williams Rule Evidence Presented at Trial
At trial, the four live witnesses from the Williams rule hearing testified
consistent with their hearing testimony. Officer Brumley’s testimony was
consistent with his deposition and report, though his trial testimony was
less detailed. Additionally, two of appellant’s friends testified that
appellant made statements admitting that he and the victim were involved
in a physical altercation on April 30th.6
Verdict and Sentence
The jury found appellant guilty of first-degree premeditated murder as
charged. The jury did not unanimously vote for the death penalty. The
trial court adjudicated appellant guilty and sentenced him to life in prison.
It Was Not an Abuse of Discretion for the Trial Judge to Admit the
Victim’s Statements in the Bar to her Friends as Excited Utterances
under Section 90.803(2), Florida Statutes.
Appellant argues that the trial court abused its discretion in admitting
the victim’s April 30th statements to her friends at the bar as excited
utterances. According to appellant, the victim’s calm demeanor and denial
of any domestic violence when she spoke to the police prevent her later
statements at the bar from being excited utterances. Appellant maintains
that the victim “had time to reflect and did reflect” after the attack, as
evidenced by the fact that she changed her story about the event.
We conclude that the trial court did not abuse its discretion in
determining that the victim’s April 30th statements amounted to excited
utterances within the meaning of the statutory exception to the rule
against hearsay.
A trial court’s ruling that a statement qualifies as an excited utterance
is reviewed for an abuse of discretion. Cotton v. State, 763 So. 2d 437,
440–41 (Fla. 4th DCA 2000).
The excited utterance exception to the hearsay rule provides for the
admissibility of “[a] statement or excited utterance relating to a startling
event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” § 90.803(2), Fla. Stat.
To qualify as an excited utterance, the statement must be made: “(1)
regarding an event startling enough to cause nervous excitement; (2)
before there was time to contrive or misrepresent; and (3) while the person
was under the stress or excitement caused by the event.” Hayward v.
State, 24 So. 3d 17, 29 (Fla. 2009) (citations and internal quotation marks
“While an excited utterance need not be contemporaneous to the event,
it must be made while the declarant is under the stress of the startling
event and without time for reflection.” Hutchinson v. State, 882 So. 2d
943, 951 (Fla. 2004), abrogated on other grounds by Deparvine v. State, 7
995 So. 2d 351 (Fla. 2008). “The statement must be made without time
for reflective thought because it is the lack of time to contrive or
misrepresent the facts that provides the reliability for such statements.”
Hayward, 24 So. 3d at 29. One court has observed that the “requirement
that the statement must ‘be made before there has been time to contrive
and misrepresent’ is simply a reformulation of the inquiry as to whether
the statement was made when the witness was still under the influence of
an overwhelming emotional condition.” People v. Straight, 424 N.W.2d
257, 260 (Mich. 1988).
“The factors that the trial judge can consider in determining whether
the necessary state of stress or excitement is present are the age of the
declarant, the physical and mental condition of the declarant, the
characteristics of the event and the subject matter of the statements.”
Hudson v. State, 992 So. 2d 96, 108 (Fla. 2008) (brackets and internal
quotation marks omitted).
“The test regarding the time elapsed is not a bright-line rule of hours
or minutes.” Rogers v. State, 660 So. 2d 237, 240 (Fla. 1995). In fact, the
“excited state may exist a significant length of time after the event.”
Charles W. Ehrhardt, Florida Evidence § 803.2 (2020 ed.). While it “would
be an exceptional case in which a statement made more than several hours
after the event could qualify as an excited utterance,” State v. Jano, 524
So. 2d 660, 663 (Fla. 1988), Florida courts have often concluded that
statements made within about an hour of the event qualified as excited
utterances. See Jackson v. State 419 So. 2d 394, 395–96 (Fla. 4th DCA
1982) (one hour); Bell v. State, 847 So. 2d 558, 561(Fla. 3d DCA 2003) (50
By contrast, “where the time interval between the event and the
statement is long enough to permit reflective thought, the statement will
be excluded in the absence of some proof that the declarant did not in fact
engage in a reflective thought process.” Jano, 524 So. 2d at 662 (quoting
Edward W. Cleary, McCormick on Evidence, § 297, at 856 (3d ed. 1984)).
For example, when a statement is made in narrative form, this indicates
that the declarant had time to reflect. See Bienaime v. State, 45 So. 3d
804, 808 (Fla. 4th DCA 2010); Charlot v. State, 679 So. 2d 844, 845 (Fla.
4th DCA 1996).
Some cases have concluded that a declarant’s statement did not qualify
as an excited utterance where the declarant had previously given an
inconsistent statement about the same event. See, e.g., Evans v. State,
838 So. 2d 1090, 1093 (Fla. 2002) (“The statements at issue do not qualify
under the excited utterance exception to the hearsay rule. . . . [The 8
declarants’] statements clearly were not made before they had time to
contrive or misrepresent. A significant amount of time elapsed between
the startling events and the statements. More importantly, both
[declarants] lied to the police officers who initially questioned them . . . .”)
(emphasis added); Elysee v. State, 920 So. 2d 1205, 1207–08 (Fla. 4th DCA
2006) (holding that the victim’s statement was not an excited utterance
where the victim initially told an officer during a traffic stop that the
defendant was taking her home, but 15 to 20 minutes later, asked to speak
with the officer alone and told him about the defendant’s attempted sexual
battery upon her in the vehicle; the State failed to demonstrate that the
statements were made before there was time to engage in reflective
thought, and the victim’s own testimony—in which she admitted that she
“got to thinking about it” before telling the officer what happened—
demonstrated “beyond any question that she had engaged in reflective
thought”); Walters v. State, 933 So. 2d 1229, 1230 (Fla. 3d DCA 2006)
(holding that a statement did not qualify as an excited utterance where
“three hours had elapsed since the startling event and, more importantly,
Briggs, the declarant, had in fact misrepresented what had occurred by
concocting a story that she and the defendant had been victims of a home
invasion robbery”).
This court’s opinion in Arrieta-Rolon v. State, 36 So. 3d 124 (Fla. 4th
DCA 2010), is illustrative. In Arrieta-Rolon, a case upon which appellant
relies, this court concluded that the declarant had the time for reflective
thought where she told the police a false version of the event before being
asked to be moved away from the defendant:
Here, the trial court overruled the defendant’s objections
without expressing whether it had considered those factors. .
. . . The record also suggests that Fernanda was under
greater stress immediately after the shooting than she
was after the police arrived. That is, immediately after the
shooting, she ran away, frantically crying and searching for
help. She then returned to the scene. When the police arrived
twenty minutes later, she was still upset. But she told the
police a false version of how the shooting occurred before
asking to be moved away from the defendant. Only after
being put in the police car did she indicate that the defendant
was the shooter. Such circumstances demonstrate that
Fernanda had the time for reflective thought. Thus, her
statements to the police were not excited utterances.
Id. at 126–27 (emphasis added). This court also cited Evans and Elysee in
support of its conclusion. Id. at 127. 9
In the context of domestic violence, however, we agree with those courts
that have concluded that a declarant’s initial false statement did not
automatically remove subsequent statements from the scope of the excited
utterance exception. Each case will turn on its own facts.
In State v. Acrey, 89 Wash. App. 1012, 1998 WL 54334 (1998), for
example, the court concluded that the differences between the victim’s
initial denials of domestic violence and her later statement were not the
result of time and the ability to reflect, but rather were the result of the
defendant’s intimidating presence during the denials:
[The victim’s] initial denials were made while she was still in
the presence of a violent assailant and were accompanied by
conduct exhibiting her fear of him. Under those facts, the
trial court could reasonably infer that [the victim]’s false
statements were the product of intimidation and fear of
retaliation, rather than deliberation or reflection. The
fact that the denials were transparently false ([the victim] and
Steven had obvious injuries) supports a conclusion that they
were not the product of any true deliberation. And . . . there
is no evidence showing that [the victim] in fact debated what
to tell police and then decided to invent facts. Under the
circumstances, the trial court could properly conclude that
[the victim]’s initial false statements did not evidence the type
of reflection or deliberation forbidden under . . . the excited
utterance rule.
Id. at *4 (emphasis added and footnote omitted); see also State v. Magers,
189 P.3d 126, 134 (Wash. 2008) (holding that the trial court did not abuse
its discretion in admitting statements as excited utterances even though
the declarant initially lied by denying the defendant’s presence in the
house; it was reasonable to conclude that the declarant’s initial statement
was due to her fear of the defendant).
Here, the trial court could reasonably have concluded that the “startling
event or condition” under section 90.803(2) included not only the victim’s
physical altercation with appellant, where she was strangled, but her
interaction with the police in the intimidating presence of appellant, a
collective situation that would cause “stress of excitement.” The victim’s
statements at the bar were made within 30 to 40 minutes of the police
arriving at appellant’s home to investigate the domestic disturbance and
while the victim was in her pajamas, crying hysterically, and
hyperventilating. Thus, the victim’s statements at the bar met the first10
and third prongs of Hayward—there was an event “startling enough to
cause nervous excitement” and the victim was “under the stress or
excitement caused by the event” at the bar when she made the statements.
Hayward, 24 So. 3d at 29.
The close question here is whether the victim’s statements at the bar
meet the second prong of Hayward—whether the statements were made
before there was time to contrive or misrepresent. To establish this prong,
the State had to either (1) prove that the statements were made without
time for reflective thought, or (2) if there was enough time to permit
reflective thought, establish that the victim did not in fact engage in a
reflective thought process.
In this case, there was evidence that the victim’s statements at the bar
were made without time for reflective thought or, alternatively, that the
victim did not in fact engage in a reflective thought process before making
those statements.
Notably, the victim’s initial denials of domestic violence were made
while she was still at appellant’s home. They occurred after appellant told
her to “be quiet” and that he would handle the cops. Under those facts,
the trial court could reasonably conclude that the victim’s initial denials
were the product of intimidation or fear of retaliation, rather than a
reflective thought process.
Furthermore, although the officers opined that the victim appeared to
be calm, the victim also begged the officers to stay while she gathered her
things to leave, suggesting that something was wrong.
The trial court could reasonably conclude that the victim was
suppressing her emotions in the presence of the police. But once the
victim got away from appellant, and no longer had to “keep it together” in
front of the officers, the victim became increasingly upset due to the stress
of the fight with appellant. Unlike Arrieta-Rolon, the victim appeared to be
under greater stress after she left appellant’s apartment than she was
when police first arrived. It was not an abuse of discretion for the trial
judge to conclude that the victim’s subsequent statements to her friends,
made within a short time after the fight with appellant and while she was
visibly shaken and hyperventilating, did not appear to be the product of
reflection. This is in contrast to Elysee, where the declarant essentially
admitted in her testimony that she had engaged in reflective thought
before changing her story to police. 920 So. 2d at 1207–08.11
Accordingly, we conclude that the trial court did not abuse its
discretion in admitting the victim’s statements to her friends as excited
Evidence of the April 30 Domestic Incident was Properly Admitted
as Evidence of Other Crimes, Wrongs, or Acts under Section
90.404(2), Florida Statutes
Appellant next argues that the evidence about the April 30th incident
was inadmissible because: (1) without the inadmissible hearsay, the
collateral evidence was not relevant and was not substantially similar to
the murder; (2) even assuming the hearsay statements were admissible,
the April 30 evidence was irrelevant because the State failed to prove the
collateral act by clear and convincing evidence; and (3) the probative value
of the evidence was substantially outweighed by its prejudicial effect.
“In order to be preserved for further review by a higher court, an issue
must be presented to the lower court and the specific legal argument or
ground to be argued on appeal or review must be part of that presentation
if it is to be considered preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla.
Here, appellant did not argue below that the evidence of the April 30
strangulation should be excluded at trial because it was not proven by
clear and convincing evidence. Nor did appellant argue below that the
relevance of the April 30 incident was conditioned upon the admissibility
of the victim’s statements under the excited utterance exception. Thus,
these specific components of appellant’s argument on this issue were not
preserved for appellate review.
Turning to the preserved component of appellant’s argument, we
conclude that the trial court did not abuse its discretion in admitting
evidence of the April 30th incident. Relevant evidence is evidence tending
to prove or disprove a material fact. § 90.401, Fla. Stat. (2019). All
relevant evidence is admissible unless precluded by a specific rule of
exclusion. § 90.402, Fla. Stat. (2019). Even if evidence is relevant, it is
inadmissible “if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of issues, misleading the jury, or
needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2019).
Similar fact evidence of other crimes or wrongs, commonly known as
Williams rule evidence, “is admissible when relevant to prove a material
fact in issue, including, but not limited to, proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or 12
accident, but it is inadmissible when the evidence is relevant solely to
prove bad character or propensity.” § 90.404(2)(a), Fla. Stat. (2019).
“Before allowing Williams rule evidence to be presented to the jury, the trial
court must find that the State has proved that the defendant committed
the collateral acts by clear and convincing evidence.” McLean v. State, 934
So. 2d 1248, 1256 (Fla. 2006).
“When the purported relevancy of past crimes is to identify the
perpetrator of the crime being tried, we have required a close similarity of
facts, a unique or ‘fingerprint’ type of information, for the evidence to be
relevant.” State v. Savino, 567 So. 2d 892, 894 (Fla. 1990). “Substantial
similarity is also required when the collateral crime evidence is sought to
be admitted for the specific purpose of establishing absence of mistake or
accident.” McLean, 934 So. 2d at 1255 (brackets and internal quotation
marks omitted).
It can be misleading, however, to refer to collateral crime evidence as
“similar fact evidence” because “evidence of collateral crimes may be
relevant and admissible even if it is not similar.” Charles W. Ehrhardt,
Florida Evidence § 404.9 (2020 ed.). “[E]ven if prior bad acts do not bear
a striking similarity to the charged offenses, the prior acts are admissible
if they are relevant to show motive and intent.” Harden v. State, 87 So. 3d
1243, 1246 (Fla. 4th DCA 2012).
Evidence of a volatile relationship between the defendant and the
victim—including evidence of prior incidents of domestic violence—is
relevant to the issues of motive, intent, and premeditation. See Dennis v.
State, 817 So. 2d 741, 762 (Fla. 2002) (“[T]he evidence of the nature of
Dennis’s relationship with the victim was relevant to establish Dennis’s
motive.”); Vargas v. State, 101 So. 3d 1269, 1270 (Fla. 4th DCA 2012)
(“Evidence of prior threats to a victim is relevant to prove motive, intent,
and premeditation.”); Nicholson v. State, 10 So. 3d 142, 146 (Fla. 4th DCA
2009) (holding that evidence of events in a previous domestic dispute,
although consisting of prior bad acts, “were admissible as relevant to prove
motive and intent” in a prosecution for first-degree murder); Burgal v.
State, 740 So. 2d 82, 83 (Fla. 3d DCA 1999) (“[T]he prior incidents of
domestic violence by defendant-appellant Burgal against the victim were
properly admitted into evidence to prove motive, intent, and
Here, the trial court did not abuse its discretion in admitting the
evidence that, two months before the murder, appellant strangled the 13
victim and threatened to kill her.2 This evidence was relevant to establish
appellant’s motive and premeditated intent. Although this evidence was
certainly prejudicial, its probative value was not substantially outweighed
by the danger of unfair prejudice. See § 90.403, Fla. Stat. (2019). The
evidence was not a feature of the trial, and the judge instructed the jury
that it was to consider this evidence only for limited purposes.
There was Sufficient Evidence of Premeditation to Support the
First-Degree Murder Conviction
Appellant argues that the State’s evidence as to premeditation was
legally insufficient and that defense counsel was ineffective on the face of
the record for not arguing that the State failed to prove premeditation.
An ineffective assistance claim may be raised on direct appeal only
“when the ineffectiveness is obvious on the face of the record, the prejudice
is indisputable, and tactical explanation is inconceivable.” Cohen v. State,
230 So. 3d 18, 20 (Fla. 4th DCA 2017). “For example, failure to move for
a judgment of acquittal when the State has not proved an essential element
of its case, when it is clear that the State could not reopen its case to prove
that essential element, amounts to ineffective assistance of counsel that
may sometimes be adequately assessed from the record on direct appeal.”
Lesovsky v. State, 198 So. 3d 988, 990 (Fla. 4th DCA 2016) (quoting
Bagnara v. State, 189 So. 3d 167, 171 (Fla. 4th DCA 2016)).
Here, defense counsel’s failure to move for a judgment of acquittal does
not amount to ineffective assistance on the face of the record because there
was sufficient evidence of premeditation to send the case to the jury.
“Premeditation is a fully formed conscious purpose to kill that may be
formed in a moment and need only exist for such time as will allow the
accused to be conscious of the nature of the act he is about to commit and
the probable result of that act.” Asay v. State, 580 So. 2d 610, 612 (Fla.
1991). Stated another way, “[t]his purpose may be formed a moment
before the act but must exist for a sufficient length of time to permit
reflection as to the nature of the act to be committed and the probable
result of that act.” Woods v. State, 733 So. 2d 980, 985 (Fla. 1999) (citation
2 Even if the victim’s hearsay statements were not considered, the remaining
evidence of the April 30 incident still would have been relevant to issues of motive
and intent because it would have established the volatile relationship between
appellant and the victim. 14
“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.” Larry v. State, 104 So. 2d 352, 354 (Fla. 1958).
“Proof of a struggle between the killer and the decedent in a case of
murder by strangulation constitutes evidence which will support a jury
finding of premeditation.” Berube v. State, 5 So. 3d 734, 745 (Fla. 2d DCA
2009); see also Conde v. State, 860 So. 2d 930, 943 (Fla. 2003) (concluding
that there was sufficient evidence of premeditation in a strangulation case
where the defendant had time to reflect upon his actions; the victim
struggled during the attack, the victim had numerous defensive wounds,
and the medical testimony indicated that it takes “approximately three
minutes to strangle someone to death”); McWatters v. State, 36 So. 3d 613,
632 n.3 (Fla. 2010) (“This Court has held that there was sufficient evidence
of premeditation in strangulation murders where there was evidence that
the victim struggled.”).
This court has also found sufficient evidence of premeditation where
the defendant was romantically involved with the victim, the defendant
had previously expressed an intent to kill the victim, and the defendant
had drawn a gun on her the week prior to the murder. See Fennell v. State,
959 So. 2d 810, 813 (Fla. 4th DCA 2007).
Here, there was sufficient evidence of premeditation to submit the issue
to the jury. The evidence in this case showed that: (1) appellant and the
victim had a volatile romantic relationship; (2) two months before the
murder, appellant strangled the victim and threatened to kill her; (3) the
victim died of manual strangulation and had defensive wounds consistent
with a struggle; and (4) the strangulation would have taken four to six
minutes to kill the victim. In short, the evidence in this case demonstrated
a murder by strangulation with signs of a struggle, coupled with a prior
domestic violence incident in which appellant threatened to kill the victim.

Outcome: We have considered the other issues raised by appellant and conclude
that there was no reversible error.


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