Opinion
No. 1D19-624
04-12-2021
Thomas Anthony ROMERO, Appellant, v. STATE of Florida, Appellee.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Jessica J. Yeary, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Thomas Anthony Romero challenges an order resentencing him to life in prison for the first-degree murder and armed robbery he committed as a juvenile. Of the issues he raises on appeal, we agree that it was error for the court, as opposed to the jury, to make a factual finding that Romero intended to kill or attempted to kill the victim, thus triggering the statutory 40-year mandatory minimum and 25-year period for sentence review. And because we conclude that the violation here cannot be deemed harmless, we reverse and remand for resentencing on the first-degree murder count. We affirm on Romero's other issues without further discussion.
I.
In 1995, the victim in this case was beaten and stabbed to death outside the home of Eliadora Castanon, Romero's cousin. The victim died from a combination of stab wounds and blunt force trauma from a knife and hatchet. The victim was struck by the hatchet more than thirty times on his head and neck. His carotid artery and jugular vein were punctured by the knife, and his left thumb was partially severed. He also had defensive wounds on his right hand and wrist. Blood splatter from the victim was on the clothes Romero was wearing when he was arrested. Blood splatter was also on a shirt belonging to Castanon that was found in the victim's car they were riding in when stopped by the police.
Along with Romero and Castanon, two other individuals participated in this crime: Raymond Romero, Romero's brother; and Jason Hoard, a friend of Castanon. For his part, Romero's brother was convicted of first-degree murder, robbery with a deadly weapon, and conspiracy to commit robbery. Hoard was convicted of first-degree murder. Romero was charged with first-degree murder, robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon.
A. Trial
At Romero's trial, the jury heard two different versions of what happened and who murdered the victim. Witnesses said Romero committed the crimes, but Romero denied being involved.
Castanon testified for the State after entering a plea of no contest to second-degree murder for his involvement in this crime. He was awaiting sentencing and faced a guidelines sentence of thirteen to twenty-three years in prison, but he was also subject to a life sentence if the court imposed an upward departure. Castanon testified that on the night of the murder, he along with Romero, Romero's brother, Hoard, the victim, and a friend of the victim were at Castanon's house. Hoard and the victim drove the victim's friend home and returned to Castanon's house. The victim did not go inside and fell asleep in his car.
Inside the house, the Romero brothers, Hoard, and Castanon then discussed robbing the victim. Romero had told Castanon that he wanted to go back to his home in Michigan, but his parents would not pay for a bus ticket. Romero's brother said that he and his brother could "jack" the victim and steal his car. Castanon suggested the brothers could tie up the victim after they knocked him unconscious with a brick, and he also gave Romero's brother the knife used to stab the victim. Romero's brother told Castanon he needed it to threaten the victim or cut extension cords so they could tie him up. Castanon also told the Romero brothers that there was a brick, a pole, and a hatchet in his backyard they could use to beat the victim. Hoard suggested they could tie up the victim and put him in the trunk of his car. As the Romero brothers were leaving, Castanon testified that he told them he did not want to participate in the robbery. Castanon and Hoard then went to sleep.
Castanon testified that he was awakened later that night by sounds of someone being hit just outside his bedroom window. He saw two people near the victim's car but went back to bed. A few seconds later, the Romero brothers came into his room looking panicked and scared. Romero's brother told Castanon to "grab our bags," and all four of them (Castanon, Hoard, and the Romero brothers) left in the victim's car. The front passenger seat was covered in blood. They exited the highway for a moment, and the Romero brothers took clothes out of the trunk and threw them along the roadside. Castanon said he also helped them wipe down parts of the victim's car. They continued driving to Michigan, and Hoard paid for gas each time they stopped. During the trip, Castanon said that he and Hoard asked the Romero brothers what they had done to the victim. Romero's brother told them they stabbed him with a knife and when he fought back, Romero's brother used the hatchet to knock him unconscious. According to Castanon, Romero's brother said, "We took turns hitting him." And Romero said, "I think I cut off one of his fingers." Castanon admitted that the shirt found in the victim's car with blood splatter from the victim on it belonged to him, but he denied wearing it on the night of the murder. Castanon admitted that he was closer to Hoard than to the Romero brothers, and that he and Hoard had contemplated running away and leaving them when they stopped for gas in Tennessee.
Castanon's sister, Delores Castanon, testified that before the murder, Romero's brother told her he planned to rob the victim and that "he was gonna do the killing, and [Romero] was going to do the beating." Frank Knoth, the victim's friend, testified that Romero asked him if he wanted to "jump" the victim, and Romero's brother told him that he liked the victim's car and "he wouldn't mind having it." Hoard's statements to the police were read to the jury by the detective who interviewed him because Hoard refused to testify during Romero's trial. He said he was sleeping in Castanon's room when he heard the attack outside. He did not see who hit the victim, but he said the Romero brothers were outside at the time. Hoard told officers he left with everyone else in the victim's car after the attack because he was scared. He denied stopping during the drive to get rid of evidence and said the Romero brothers never talked about what happened. The victim's girlfriend testified that Hoard did not like the victim and had called him a "narc" and a "mama's boy" on numerous occasions. She also said that Hoard wanted to date her and she admitted there was some rivalry between the victim and Hoard for her affection.
In contrast, Romero testified on his own behalf and denied conspiring to rob the victim or taking part in either the robbery or the murder. He said that on the night of the murder, he and his brother left Castanon's house when the others drove the victim's friend home. He and his brother went to a grocery store to call their mother, but they could not reach her and then walked back to the house. There they saw Castanon and Hoard attacking the victim and dragging him from his car. He said Castanon was wearing the shirt that was found inside the car with blood splatter from the victim on it, but he later changed out of it as they were driving away. Romero testified he was in shock as he witnessed the attack and could not help the victim. Castanon and Hoard then told the Romero brothers to get in the car and they drove away after Hoard brought out some bags from the house. When he was arrested, Romero invoked his right to counsel and refused to talk to the police.
Relevant to this appeal, the jury was instructed on both first-degree premeditated murder and first-degree felony murder with robbery as the predicate felony. But the verdict form did not separate out the theories of first-degree murder and allow the jury to differentiate whether Romero was guilty of premeditated murder, felony murder, or both. He was convicted of first-degree murder, robbery with a deadly weapon, and conspiracy to commit robbery with a deadly weapon. The trial court sentenced him to concurrent terms of life in prison for the murder and robbery, and fifteen years in prison for the conspiracy. We affirmed his convictions and sentences in 1998. Romero v. State , 709 So. 2d 541 (Fla. 1st DCA 1998).
B. Resentencing
In 2013, following the United States Supreme Court's decision in Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Romero filed a motion to correct illegal sentence and the circuit court resentenced him on the robbery count to an upward departure sentence of sixty years in prison. Later, he voluntarily dismissed an appeal of that resentencing order. In 2015, Romero filed another motion to correct illegal sentence, arguing an entitlement to be resentenced for the murder and robbery counts under chapter 2014-220, Laws of Florida, which amended Florida's juvenile sentencing statutes in response to Graham and Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In 2018, the court granted Romero a resentencing hearing on both counts under the newly enacted juvenile sentencing scheme.
Before taking evidence on the first day of the hearing, the parties disputed whether a jury was required to find that Romero killed or intended to kill the victim. Romero argued that because the jury did not specifically make either of those required findings, he could not be sentenced under section 775.082(1)(b)1., Florida Statutes (2018) (requiring a sentence of life or at least forty years imprisonment for a juvenile who commits a capital felony and actually killed, intended to kill, or attempted to kill the victim, with a review hearing after twenty-five years). The court agreed that because the verdict form did not provide interrogatories or specify whether the jury had found Romero guilty of premeditated or felony murder, the jury did not decide that he actually killed, intended to kill, or attempted to kill the victim. Therefore, the court would be limited to resentencing him under section 775.082(1)(b)2., Florida Statutes, which does not require a minimum mandatory sentence and provides for a review hearing after fifteen years.
In addition to other evidence presented at the hearing, both parties agreed that the trial judge could consider three binders of documents related to Romero's trial and previous resentencing, including law enforcement investigation and charging documents, trial testimony, notices, motions, orders, and caselaw. The court then heard from two expert witnesses and a mitigation specialist.
When the sentencing hearing continued on its second day, the circuit court found that despite the flawed verdict form, the evidence presented to the jury sufficiently demonstrated beyond a reasonable doubt that Romero intended or attempted to kill the victim:
The Court cannot conclude from the record that the jury found beyond a reasonable doubt that Thomas Romero actually killed Mr. Peaden, but the Court does find from the record evidence that was presented to the jury that Mr. Thomas Romero's actions demonstrate beyond a reasonable doubt that he intended to kill Mr. Peaden, or he attempted to kill Mr. Peaden. Therefore, the Court finds it is appropriate to sentence under 775.082(1)(b)1.
In both its oral pronouncement at the hearing and in its written order, the court explained its decision by recounting the savage nature of the attack on the victim:
The evidence shows [Romero] beat the victim with a hatchet so hard that the tool mark analysis matched the flat end of the hatchet to the holes made in the victim's skull. The victim suffered numerous cuts from the sharp end of the hatchet as well as blunt force injuries from the flat end of the hatchet. [Romero] saw his brother stab the victim in the neck with a knife. When the victim began defending himself, [Romero] mercilessly beat him and chopped him with a hatchet. [Romero] bragged about almost cutting off the victim's thumb as the victim was trying to defend himself. The victim was pulled out of his car and thrown to the ground where [Romero] and his brother continued to beat him. The force of the blows was so hard and vicious that the two co-defendants heard them from inside the house—several yards away. The extensive and severe injuries inflicted by [Romero] show an
unequivocal intent to kill, and an active and ongoing attempt to kill the victim.
The court then concluded that a life sentence was appropriate for both counts after considering the factors listed in section 921.1401(2)(a)–(j), Florida Statutes (2018). But now Romero would receive a sentence review in twenty-five years for the murder count as required by sections 775.082(1)(b)1. and 921.1402(2)(a), Florida Statutes.
This is Romero's appeal of the new sentencing order.
II.
For the reasons that follow, we agree with Romero that the circuit court erred when it, as opposed to a jury, determined for sentencing purposes that Romero intended to kill or attempted to kill the victim. And because the error was not harmless based on our review of the record, we reverse on this issue and remand for resentencing.
A. Alleyne Error
The Florida Supreme Court has held that pursuant to Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), a jury must make the factual finding under section 775.082(1)(b), Florida Statutes, as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim. Williams v. State , 242 So. 3d 280, 293–94 (Fla. 2018).
At Romero's trial, the verdict form did not separate out the theories of first-degree murder and allow the jury to differentiate whether Romero was guilty of premeditated murder, felony murder, or both. The general verdict form does not show that the jury found beyond a reasonable doubt that Romero intended or attempted to kill the victim in this case.
As part of the instruction on first-degree murder, the jury was instructed on felony murder. That standard instruction allowed them to convict Romero of murder whether he or someone else killed the victim:
Before you can find the defendant guilty of first-degree felony murder, the State must prove ... that Thomas Anthony Romero was the person who actually killed [the victim] or [the victim] was killed by a person other than Thomas Anthony Romero , but both Thomas Anthony Romero and the person who killed [the victim] were principals in the commission of the robbery.
In order to convict of first-degree felony murder, it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill .
(Emphasis added.)
Next, the jury's instructions on principals also allowed them to convict Romero of murder even if he was not at the scene or if someone else killed the victim:
If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if, one, the defendant had a conscious intent that the criminal act be done. And two, the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit a crime.
To be a principal, the defendant does not have to be present when the crime is committed .
(Emphasis added.) In its closing arguments, the State emphasized that all it needed to prove for felony murder was that Romero "was a principal, not that he actually swung the hatchet." It also reminded the jury that the State did not need to prove Romero's intent to kill, only that the killing occurred during a robbery. The jury instruction on robbery described the elements of taking property from the victim by force or violence:
Before you can find the defendant guilty of robbery, the State must prove the following four elements beyond a reasonable doubt. ... Two, that force, violence, assault, or putting in fear was used in the course of the taking.
....
The taking must be by the use of force or violence or by assault, so as to overcome the resistance of the victim or by putting the victim in fear, so that the victim does not resist.
Although the jury found that Romero used sufficient violence or fear to overcome the victim's resistance, that does not show they also found he had an intent to kill or attempted to kill the victim.
For these reasons, there is no clear finding that Romero actually killed, intended to kill, or attempted to kill the victim. Therefore, an Alleyne violation occurred when the trial court, rather than a jury, made those factual findings. Williams , 242 So. 3d at 289.
B. Harmless Error
Alleyne violations are subject to harmless error analysis on appeal. Williams , 242 So. 3d at 289–90. But because the record in this case does not demonstrate beyond a reasonable doubt that a rational jury would have found that Romero actually killed, intended to kill, or attempted to kill the victim, the Alleyne violation was not harmless.
The jury heard two very different versions of what happened on the night of the murder and who killed the victim. Much of the evidence of Romero's incriminating actions and statements came from Castanon, a codefendant who pleaded no contest to second-degree murder and testified against Romero while awaiting sentencing; Hoard's statements to the police during his interrogation; and the testimony of Castanon's sister. But at trial, Romero denied any involvement in either the murder or the robbery, and he did not make any statements to the police after his arrest.
Both Castanon and Hoard testified that Romero attacked the victim, but both of them had an incentive to blame him and downplay their own culpability. Other evidence suggested that they were close friends who discussed running away and leaving the Romero brothers after the murder. Hoard showed a bias against the victim and wanted to date the victim's girlfriend. And Castanon's sister also had an incentive to lie on her brother's behalf. Evidence of the blood splatter on Castanon's shirt shows that he, like Romero, was physically close to the victim at the time of the attack rather than asleep inside the house. Although Castanon denied wearing the shirt, Romero testified that he was wearing it on the night of the murder.
While the evidence of the victim's blood splatter on Romero's clothing places him in close proximity to the killing, it is not inconsistent with his participation in a robbery that one or more of his codefendants elevated into a homicide without his participation or agreement. There was also no evidence that Romero admitted he planned to kill the victim. Instead, most of the testimony showed the plan was to rob the victim and steal his car. The only testimony indicating a plan to kill the victim came from Castanon's sister, who testified that Romero's brother said that he was going to kill the victim and Romero was going to beat him. While it is clear that whoever inflicted the multiple blows to the victim intended to kill him, it is not clear who inflicted them.
Lastly, the jury's finding that Romero robbed the victim with a deadly weapon does not show that it found he actually killed, intended to kill, or attempted to kill the victim. The jury's verdict does not show what weapon the jury believed Romero used or whether he was the one who inflicted the fatal blows. And Romero could have been convicted of robbery with a deadly weapon as a principal even if the jury did not believe he had actual possession of the weapon. See Stripling v. State , 645 So. 2d 589, 590 (Fla. 3d DCA 1994) (holding that a defendant can be convicted as a principal to armed robbery even if they do not actually possess the firearm during the robbery); see also Freeny v. State , 621 So. 2d 505, 506 (Fla. 5th DCA 1993) (reaffirming that a codefendant's possession of a firearm is sufficient to convict a defendant of armed robbery).
Based on this conflicting evidence, we cannot determine beyond a reasonable doubt that a rational jury would have concluded Romero actually killed, intended to kill, or attempted to kill the victim. The possibility remains that the jury relied on the felony-murder theory to convict him of first-degree murder. See Williams , 242 So. 3d at 291–92 (holding that the record failed to demonstrate beyond a reasonable doubt that the jury would have found the defendant killed, intended to kill, or attempted to kill the victim when almost all of the incriminating evidence came from witnesses who had incentives to implicate the defendant; other evidence did not make sense; and an intent to commit the underlying felony for felony murder does not show an intent to kill); see also Green v. State , 314 So. 3d 611 (Fla. 3d DCA Dec. 23, 2020) ("The evidence presented at trial involved two competing narratives, the resolution of which required a credibility determination best suited for the jury and not judicial factfinding.").
* * *
We therefore reverse on this issue and remand for Romero to be resentenced on the count of first-degree murder pursuant to section 775.082(1)(b) 2., Florida Statutes. See Williams , 242 So. 3d at 293 (holding that resentencing pursuant to section 775.082(1)(b) 2. is the appropriate remedy when a harmful Alleyne error has occurred).
AFFIRMED in part, and REVERSED and REMANDED in part.
Ray, C.J., and Kelsey, J., concur; B.L. Thomas, J., dissents with opinion.
B.L. Thomas, J., dissenting.
I respectfully dissent. The error here was harmless because no rational jury would have acquitted Appellant of premeditated murder or attempted premeditated murder after considering the scientific and testimonial evidence. Williams v. State , 242 So. 3d 280, 291 (Fla. 2018).
In one sense, of course, there was no "error" in the original trial, as we must only apply a retroactive rule of law to a previous trial. This may explain why the supreme court in Williams , stated that the evidence is reviewed in a light least favorable to the defendant. I submit that no rational jury would have acquitted Appellant of, at the very least, attempting to murder Shon Peadon; I am convinced beyond a reasonable doubt that the same jury, if properly instructed on premeditation, would have convicted Appellant of premeditated first-degree murder.
The fact that the jury was incorrectly instructed, according to subsequent caselaw, is not relevant to the harmless-error analysis. The decision in Williams requires us to assume that the jury was correctly instructed on premeditation.
This Court is required to closely examine all the evidence admitted at trial, including the victim's splattered blood on Appellant's shirt, which proves that he was in close range during the murder . In addition, we must review the cooperating witness's testimony that Appellant said "he took turns" with his brother in committing the murder and that Appellant thought he "cut off" the victim's thumb. Finally, we must also consider Appellant's own testimony in which he denied any involvement in the horrific murder. See Romero v. State , 303 So. 3d 169 (Fla. 1st DCA 2020) (B.L. Thomas, J., concurring) (discussing Appellant's brother's participation).
In our analysis we must first begin with the Florida Standard Jury Instructions, which include the following relevant definition of premeditation:
"Killing with premeditation" is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.
The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.
Fla. Std. Jury Instr. (Crim.) 7.2 (emphasis added).
Florida law has long been clear that legal premeditation may be formed in a "moment." See Roberts v. State , 510 So. 2d 885, 888 (Fla. 1987) :
We reject Roberts’ claim that the evidence in this case reflects an "irrational, spontaneous assault devoid of deliberation, reflection or preparation" rather than a fully formed purpose to kill. In rejecting a similar argument we recently noted in Wilson v. State , 493 So. 2d 1019 (Fla. 1986), that:
Premeditation is more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose to kill 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. ... Whether or not the evidence shows a premeditated design to commit a murder is a question of fact for the jury which may be established by circumstantial evidence.
Id. at 1021 (citations omitted).
510 So. 2d 885, 888 (Fla. 1987) (emphasis added).
Our next analytical step requires us to consider Appellant's involvement in the crime. We know from the verdict and the evidence that, at the very least, Appellant participated in a robbery with a deadly weapon because the jury rejected Appellant's exculpatory testimony in toto . Significant to our harmless-error analysis, we note that Appellant did not testify, "yes, I admit I participated in the robbery, but I only stabbed or assaulted Shon Peadon once, and then I stood close enough for his blood to splatter on my shirt, but I had no intent to murder or attempt to murder him." Any rational jury would quickly reject such a defense as lacking in common sense or veracity, especially when reviewing the other evidence. But, more importantly, Appellant himself gave no such testimony. He denied any involvement in the crime whatsoever.
We must then decide whether a rational jury would convict Appellant of felony murder but not premeditated or attempted premeditated murder. The concurring opinion in Romero noted the following expert testimony of the medical examiner:
The pathology expert further testified that the facial wounds from the hatchet,
which was recovered, were severe and "quite large":
Yes, there's basically two types of wounds, here, you can see in the photographs. These are the sharp force trauma, and you can see this is consistent with the sharp pointed end of the hatchet blade. The blades did not contact the entire area with the same degree of force, so you see this tag on the end would be from where the blade came down with less force on that area. It came down here right on the bone of the jaw and back here , it wasn't as much contact. This is entirely consistent with a hatchet type wound . Here's another wound just like it, except there were two blows struck here . There is one here, and there's one here. So, that's actually two blows, one right on top of the other; and when we felt that jawbone there was a complete fracture across the jawbone, right, there, due to the blow of the hatchet .
....
Yes, we can move to the next photograph, and look at this one in more detail to see evidence of type of effect, the sharp blows with the sharp part of the ax, which are long and deep; and then the ones that are -- have a square like abrasions, you can see -- you can take that square top on that hatchet could be matched up with this square abrasion right here and since there's bone underneath, the skin splits forming this triangular type of abrasion or irregular, some look like triangles, some look like F's or E's, different shapes depending on how the skin split, but they all have this kind of a squared-off effect; this is entirely consistent with having been struck, multiple times by the back of that hatchet.
And, now, these wounds [are] very serious, very severe wounds . This one, cuts the end -- the tip of the ear off, and this was delivered by a sharp instrument consistent with a hatchet. And that was the little bone behind the ear called the mastoid bone that sticks down, and this was actually amputated by the force of this blow to the ear, as well as, the tip of the ear being chopped off. You can see where it's just hanging there. Then another very strong blow here, and then, these are very deep, very strong chops, that go all the way down into the tissues of the neck.
....
But these are very deep and very severe blows. This one is a blow that hits the jaw bone; it goes down into the jaw, a fracture beneath this wound and it was so severe that you actually had a secondary fracture , this bone here fractured in the course of the travel down the jaw, here, and there was actually another fracture down here in the chin area, caused by that same blow.
....
Now, these wounds were in the back of the head, and there are multiple deep chop wounds that are similar to the ones that I described on the side of the neck ... And these are so deep that they actually cut out part of the bone or leave holes in the bone, sharp points of the hole caused by an ax or hatchet .... Basically, I'm just telling that these blows were caused by the axe, causing injury to the skull, skull fracturing. Also, I neglected to mention that some of the blows on the side of the head here, caused fractures, fracturing of the skull and injury to the underlying brain tissue . So the blows on the skull are caused by this blunt end of the ax and had a somewhat devastating effect on the
underlying brain tissue .... This is a large chop wound on the top of the head. And underlying this, there was a piece of the skull that had been chopped out.
The pathology expert also testified that the hatchet had partially severed the victim's left thumb. That partial amputation and the other injuries to the victim's hands and wrists were consistent with "defense wounds" sustained in the victim's desperate attempt to save his life from the hatchet blows to his face and head. The expert ascertained that the victim died from the knife wound and massive injuries from the hatchet:
Q: Are you able to tell ... how many times the victim in this case was struck with a hatchet or an object like a hatchet?
A: At least 30 times on the head and neck area.
Q: And as a result of the autopsy and your investigation into this matter, have you been able to ascertain the cause of death?
....
A: Well, the cause of death was the multiple wounds caused by the blunt trauma, sharp trauma and stab wounds.
After Appellant and his brother stabbed and beat the victim to death, they rushed into the cousin's bedroom, told the co-defendants to grab their clothes, and the four fled to Michigan in the victim's car. They tried to wipe away the victim's massive bloodshed from the car's interior. During the drive to Michigan, Appellant and the others continued to smoke marijuana.
Romero , 303 So. 3d 169 (B.L. Thomas, J., concurring) (emphasis added) (emphasis in original removed).
A rational jury would conclude from this evidence that Appellant did indeed "take turns" murdering the victim. The victim's blood on Appellant's shirt also supports this conclusion. It is significant that Appellant never claimed he only intended to rob the victim and somehow the criminal episode evolved into a murderous frenzy but he lacked any intent to kill; rather, Appellant incredulously claimed he had no involvement in the crime, which the jury correctly rejected in light of the evidence.
Additional evidence supports Appellant's guilt of premeditated or attempted premeditated murder. Appellant and his brother were "bored" in Florida and wanted to steal the victim's car to return to Michigan. Id. Just as in Roberts , Appellant and his brother decided to use violence in committing armed robbery. See 510 So. 2d 885. It does not matter that Appellant may not have had the premeditated intent to murder the victim before consciously participating in the murder, if Appellant developed that premeditated intent during the crime:
In this case, there is a witness and testimony as to how the shooting occurred. We find this case more analogous to Griffin v. State , 474 So. 2d 777 (Fla. 1985). In Griffin , the court discussed premeditation and the circumstantial evidence upon which it may be inferred, saying:
Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act . 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.
Id. at 780 (citing Sireci v. State , 399 So. 2d 964, 967 (Fla. 1981) ). The court went on to hold:
We find that Griffin used a particularly lethal gun ... ; that there was an absence of provocation on the part of the victim (Stokes [an accomplice] testified he heard and saw nothing unusual prior to the first shot, and the victim in fact cooperated with the robbery, taking off and giving to Stokes a gold neck chain Stokes had been unable to pull off); and that the wounds, one lethal, the other less serious, were inflicted at close range and thus unlikely to have struck the victim unintentionally. This is sufficient to support a finding of premeditation.
Id. at 777.
Here, we find that Appellant used a lethal weapon, a gun; there was an absence of provocation on the part of the victim; and the wounds were inflicted immediately and at close range. This is sufficient to support a finding of premeditation.
Alcott v. State , 728 So. 2d 1173, 1174–75 (Fla. 4th DCA 1998) (emphasis added).
Here, we have evidence showing: 1) repeated blows; 2) blood evidence on Appellant's shirt; 3) Appellant's motive to rob the victim, which by necessity required lethal force; 4) Appellant's admission that he repeatedly struck the victim; 5) Appellant's admission that he may have cut off the victim's thumb; and 6) other evidence also cited in the majority opinion. And the fact that some of this evidence was presented by witnesses who may not have told the whole truth based on their own self-interest does not tend to exonerate Appellant; at best, it indicates that other persons were also culpable.
All the evidence viewed in context leads to the same conclusion: the trial court correctly determined that Appellant participated in the premeditated murder or attempted premeditated murder of Shon Peadon beyond a reasonable doubt. I would affirm.