MICHAEL D. JONES v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MICHAEL D. JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D19-3691

[May 26, 2021]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit; Dan

L. Vaughn, Judge; L.T. Case No. 312014CF000789A.

Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,

Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

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

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

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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 Williams 1 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).

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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

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“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.

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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.

(2019).

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

omitted).

“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,

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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

minutes).

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

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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.

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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 first

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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.

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Accordingly, we conclude that the trial court did not abuse its

discretion in admitting the victim’s statements to her friends as excited

utterances.

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.

1985).

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

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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

premeditation.”).

Here, the trial court did not abuse its discretion in admitting the

evidence that, two months before the murder, appellant strangled the

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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

omitted).

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.

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“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.

We have considered the other issues raised by appellant and conclude

that there was no reversible error.

Affirmed.

GERBER and KLINGENSMITH, JJ., concur.

* * *

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Not final until disposition of timely filed motion for rehearing.

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