Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5294 _____________________________ GREGORY D TAYLOR, II, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Gary L. Bergosh, Judge. April 20, 2021 NORDBY, J. Gregory D Taylor, II, appeals his conviction and life sentence for first-degree, premeditated murder. He argues the trial court reversibly erred when (1) the court denied his motion for judgment of acquittal as to the element of premeditation, (2) the court denied his request for a jury instruction on the heat of passion defense, and (3) the court denied his motion to suppress statements he made to law enforcement. We affirm. I. On the evening of February 12, 2018, Taylor shot the victim, his girlfriend, six times in the abdominal area with a 9-mm. handgun. Shortly after the shooting, Taylor dropped the victim off at the West Florida Hospital in Pensacola, Florida. From there, the victim was transported to another hospital where she died nine days later. In time, Taylor was indicted for first-degree, premeditated murder of the victim. At trial, the State introduced testimony from various witnesses, including members of the staff at West Florida Hospital, law enforcement officers, and a medical examiner. The State also introduced into evidence, over Taylor’s objection, a recorded interview between law enforcement and Taylor. According to staff at West Florida Hospital, on the evening of February 12, 2018, Taylor dropped the victim off at the hospital in a Jeep Wrangler. Taylor told staff repeatedly that the victim was shot during a robbery. Once inside the hospital, the victim confessed that Taylor shot her. The victim’s nurse testified at trial that the victim identified Gregory “Dallas’’ Taylor as the shooter. The victim also told the nurse that the two were in a romantic relationship together and she “felt she made a big mistake . . . she had met him online, that it wasn’t like her to do such a thing like that. [T]hey had gotten into an argument because she was trying to break things off.” The nurse relayed this information to law enforcement. Escambia County Sheriff’s Deputy Jake Bandurski was working patrol on the evening of the shooting. He testified that around 9:45 p.m., in response to a call made by Taylor, he encountered Taylor on the side of the road in the area of Airport Boulevard, Pensacola, Florida. Deputy Bandurski described Taylor as scared and nervous. Taylor stated that he and his girlfriend (the victim) were robbed, which led to the shooting of the victim. Taylor told Deputy Bandurski that he dropped the victim off at the hospital in her Jeep and drove back to the area of the robbery to search for the assailants. He could not find the attackers, so he abandoned the Jeep and called law enforcement. Ultimately, Deputy Bandurski transported Taylor to the sheriff’s office for an interview with the investigation division. Around the time Deputy Bandurski encountered Taylor, other deputies from the Escambia County Sheriff’s Office discovered the Jeep abandoned on Airport Boulevard. Inside the vehicle, they 2 discovered various personal items, including clothing, luggage, a backpack, a holster, an opened Kershaw knife, and two firearms: one loaded 9-mm Lugar Hi-Point handgun and one loaded .38 revolver. Sergeant Kevin Coxwell, of the Escambia County Sheriff’s Office testified about his interview of Taylor soon after the shooting. He described Taylor’s demeanor during the interview as “amped up at times, emotional at other times, could carry on a conversation.” Sergeant Coxwell noticed track marks on Taylor’s arm, suggesting that he recently injected heroin. Sergeant Coxwell recorded the interview, and the interview was played during his testimony. At the start of the interview, Sergeant Coxwell informed Taylor of his rights. Taylor signed a waiver of rights form and agreed to speak with Sergeant Coxwell. Taylor admitted to being addicted to heroin and said that he was high on heroin earlier in the day. Upon learning the victim was still alive, Taylor confessed to shooting her. After apologizing to Deputy Bandurski for lying about the robbery, he explained the shooting and the events that preceded it. Taylor met the victim online several months earlier and eventually moved in with her. Because of his heroin problem, their relationship started to spin out of control in the weeks just before the shooting. Taylor owed a great deal of debt to his drug dealers, who were seeking payment. Although the victim had provided him money in the past to purchase drugs, she eventually refused to provide him with sufficient funds to pay down his debt. The debt was due on February 12, the day of the shooting. Because of this debt, Taylor was concerned for his safety and the safety of the victim. Taylor explained the two had a disagreement over money on the morning of the shooting and, later that day, they mutually decided to break up. At some point before the shooting, Taylor unloaded the victim’s firearm, a revolver she usually kept on the floorboard of her Jeep, and placed the bullets in his jacket. 3 That evening, Taylor was driving the victim in her Jeep. Taylor planned to obtain the victim’s card and retrieve money to pay down his drug debt; his plan was “for her to just say that I robbed her and that -- or I stole from her. . . . That way she’d have her money back for restitution, I would be incarcerated, and she wouldn’t have to worry about me anymore and I knew she was safe.” An argument ensued while Taylor was driving the Jeep. The victim smacked him in the head; he grabbed his 9-mm firearm to unload it. After removing the ammunition magazine, he pushed it back in and shot the victim in the chest four times. Taylor’s description of the event included the following: A: I know what happened. The first time I shot her - - I know this sounds horrible, fucking -- I wish you’d shoot me right now. The first time I shot her, she was really calm and she said, Just kill me . . . she kept telling me she was going to jump out of the Jeep and kill herself. We weren’t fighting. Like -- it wasn’t a fight. She was trying to jump out of the Jeep to . . . hurt herself. Q: Okay. A: -- is what she was saying. And I started out trying this whole night just to be able to leave and have the peace of mind that she would be protected, and now I fucking shot her. Q: Okay. So you shot her the first time, and she said just kill me? A: Just kill me, just kill me. I don’t want to . . . Q: Then what happened? A: I -- I shot her. I don’t know. I know that I shot her four times. .... Q: You shot her once and then she said just kill me? 4 A: Yeah. Q: And then you shot her three more times? A: Yeah. Taylor revealed that after shooting the victim, he dropped her off at the hospital and took $200 from her wallet, which he intended to use for his drug debt. He then abandoned the Jeep and planned to say he and the victim were robbed because that is what he told the hospital staff. At the end of the State’s case, Taylor moved for a judgment of acquittal. Taylor specifically argued that the State did not prove a prima facie case of first-degree, premeditated murder because the State did not make a prima facie showing that Taylor killed the victim with premeditation. The trial court denied the motion. Taylor then testified on his own behalf. On the evening of the shooting, the victim accompanied Taylor as he was driving to Pensacola to buy luggage for his trip to North Carolina. An argument ensued and the victim tried to jump out of the Jeep multiple times. During the argument, the victim grabbed a Kershaw pocketknife and Taylor’s 9-mm handgun, which had been in his backpack in the backseat of the Jeep. Taylor retrieved both items from the victim, but not before the victim inserted a magazine into the 9-mm firearm. Taylor maintained that, after grabbing his firearm from the victim, he tried to unload it but was unable to do so. Instead, he pushed the magazine back into his firearm, accidentally chambered a round, and placed the firearm in his lap. The victim then pointed her .38 revolver at Taylor. He was unaware that the victim’s firearm was in the vehicle because earlier that day he removed the revolver from the Jeep, unloaded it, and placed it on the victim’s nightstand. Taylor testified that he was “perturbed” and “a little overwhelmed by the fact that this had spun out to this degree.” Taylor thought the victim planned to fire the revolver, and when she brought up both hands, Taylor stated, “I knew something had to give.” Taylor fired his 9-mm firearm when he slammed on 5 the brakes. Taylor believed the shot would cause the victim to “snap out of it and relinquish her possession of the [revolver].” He continued to pull the trigger because “she was bent on pointing that gun at me. I wanted her to snap out of it,” and he did not believe the barrel of the gun was pointed at the victim. Taylor explained that he testified differently during his interview with law enforcement because he was suffering from shock and panic that night; he wanted to give information that might be valuable to help perpetuate her life; and he did not want to incriminate the victim after learning she was alive. He thought she would recover and come to his defense later. He also stated that he was under the influence of heroin at the time of the interview, which tends to make him exaggerate. Taylor testified that he did not intend to harm the victim; he believed the bullets he was firing were hitting luggage, not the victim. The jury found Taylor guilty of first-degree, premeditated murder, and the trial court sentenced Taylor to life in prison. II. Judgment of Acquittal Taylor argues the trial court erred in denying his motion for judgment of acquittal of first-degree murder because the evidence presented at trial was insufficient to prove premeditation. We disagree. We review de novo the trial court’s denial of a motion for judgment of acquittal. Bradwell v. State, 300 So. 3d 325, 327 (Fla. 1st DCA 2020). As a threshold matter, Taylor failed to argue below that the evidence of premeditation was wholly circumstantial, so that specific argument is unpreserved for our review. See Allen v. State, 301 So. 3d 1072, 1079 (Fla. 1st DCA 2020). But lack of preservation aside, the Florida Supreme Court recently abandoned the specialized standard of review for circumstantial evidence cases. See Bush v. State, 295 So. 3d 179, 199–201 (Fla. 2020). Given this, our review here, as well as all other criminal cases in which we review the sufficiency of the evidence, is “whether the State presented competent, substantial evidence to support the verdict.” 6 Id. at 200–01; see also Carter v. State, 303 So. 3d 1271, 1273 (Fla. 1st DCA 2020). In applying this standard, we view the evidence in the light most favorable to the State and, from that vantage point, consider whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt. Bush, 295 So. 3d at 200. “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); see also Middleton v. State, 426 So. 2d 548, 550 (Fla. 1982) (confession that shooting was a “snap decision” sufficient to sustain premeditation). “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.” Jackson v. State, 575 So. 2d 181, 186 (Fla. 1991). Here, viewed in a light most favorable to the State, the evidence was sufficient to establish premeditation and sustain the first-degree murder conviction. Twice during his recorded interview, Taylor stated that after shooting the victim once, the victim stated, “just kill me,” at which point he shot the victim several more times. This fact alone would likely constitute competent, substantial evidence of premeditation. See Bell v. State, 768 So. 2d 22, 26 (Fla. 1st DCA 2000) (finding that evidence of a pause during a shooting supports a finding of premeditation); cf. Dixon v. State, 911 So. 2d 1260, 1262–63 (Fla. 4th DCA 2005) (holding that defendant’s statement, “take off your jewelry, I am going to kill you,” made moments before the victim was shot and killed proved premeditation). Beyond this, the State presented other evidence from which the jury could have inferred premeditation. The day of the shooting, the victim had refused to cover Taylor’s debt to his drug dealers, which was due that day. That same day, at some point before the shooting, Taylor removed her .38 revolver from its usual location in her Jeep, unloaded it, and placed the bullets in his 7 jacket pocket. In the moments before the shooting, Taylor and the victim were arguing and the victim repeatedly sought to jump out of the moving vehicle. During the argument, Taylor inserted a magazine into his 9-mm firearm, placed the weapon on his lap, and ultimately shot the victim six times in the abdomen at point-blank range. See Wheeler v. State, 4 So. 3d 599, 605 (Fla. 2009) (holding that pumping a rifle to chamber a round is evidence of premeditation); Morris v. State, 283 So. 3d 436, 440 (Fla. 1st DCA 2019) (finding that there was sufficient evidence to put premeditation issue before the jury when the record showed defendant pursued his wife downstairs as they argued, prevented her from calling for help, beat her in the face and head, grabbed her and pulled her back inside the home as she tried to escape, and then shot her seven times at point-blank range). Because the State presented competent, substantial evidence of premeditation to sustain the first-degree murder conviction, the trial court did not err in denying Taylor’s motion for judgment of acquittal. Jury Instructions Taylor next argues the trial court committed reversible error by denying his request for a jury instruction on the “heat of passion” defense. He contends the evidence presented at trial was enough to create a jury question on whether provocation was adequate. We conclude the trial court properly denied the request. We review the giving or withholding of a requested jury instruction for abuse of discretion. Truett v. State, 105 So. 3d 656, 658 (Fla. 1st DCA 2013); Palmore v. State, 838 So. 2d 1222, 1223 (Fla. 1st DCA 2003). On appeal, the trial court’s ruling on a jury instruction is presumed correct. Langston v. State, 789 So. 2d 1024, 1026 (Fla. 1st DCA 2001). A defendant is entitled, upon request, to have a jury instruction on any valid defense supported by the evidence. Mora v. State, 814 So. 2d 322, 330 (Fla. 2002); Rockerman v. State, 773 So. 2d 602, 603 (Fla. 1st DCA 2000). But “a trial judge is not required to give an instruction where there is no nexus between 8 the evidence in the record and the requested instruction.” Mora, 814 So. 2d at 330. The “heat of passion” defense is well established in Florida as (1) a complete defense if the killing occurs by accident and misfortune in the heat of passion, upon any sudden sufficient provocation; or (2) a partial defense, to negate the element of premeditation in first-degree murder or the element of depravity in second-degree murder. Villella v. State, 833 So. 2d 192, 195 (Fla. 5th DCA 2002); see § 782.03, Fla. Stat. (2019); see also Whidden v. State, 59 So. 561 (Fla. 1912). At the heart of the heat of passion defense is adequate provocation and the defendant’s state of mind. For the defense to be available the killing must proceed from passion rather than a bad or corrupt heart. See Febre v. State, 30 So. 2d 367, 369 (Fla. 1947). “Passion is the state of mind when it is powerfully acted on and influenced by something external to itself. It is one of the emotions of the mind known as anger, rage, sudden resentment, or terror.” Id. Moreover, for that passion to constitute mitigation of the crime, it must arise from legal provocation. Id. “In order for the defense of heat of passion to be available there must be ‘adequate provocation as might obscure the reason or dominate the volition of an ordinarily reasonable man.’” Paz v. State, 777 So. 2d 983, 984 (Fla. 3d DCA 2000) (quoting Rivers v. State, 78 So. 343, 345 (1918)). Generally, arguments alone are insufficient to constitute adequate provocation. Reed v. State, 287 So. 3d 606, 609 (Fla. 4th DCA 2019); see also Douglas v. State, 652 So. 2d 887, 891 (Fla. 4th DCA 1995) (holding that “marital squabbles” do not constitute reasonable provocation required for the heat of passion defense). Here, Taylor did not suggest that he killed the victim in the heat of passion, or that he did not know what he was doing, or that he was so moved by any emotion that he killed the deceased. Instead, Taylor suggested he shot the victim accidentally, and he shot the firearm consciously to protect himself from the victim. Taylor testified that he was “a little overwhelmed” and “perturbed” when the situation escalated as far as it did. He stated he fired the firearm, not out of blind, unreasonable fury or intoxicating passion, but because the victim was pointing a firearm at him and he wanted her “to snap out of it” and “relinquish her possession of 9 the [firearm].” Taylor was also adamant during trial that he accidentally shot the victim. According to Taylor, he did not believe that the muzzle of his firearm was pointed at the victim when he shot the victim. While we acknowledge that the heat of passion defense and self-defense are not necessarily mutually exclusive, the evidence here did not warrant an instruction on both self-defense and heat of passion. Based on Taylor’s testimony, his defenses were self- defense and accident, not heat of passion. See Reed, 287 So. 3d at 609 (upholding trial court’s decision to deny instruction on heat of passion defense when the Appellant testified that he was not mad and fired instinctively when he thought he saw someone charging him). Thus, the trial court did not err in refusing to give an instruction on the heat of passion defense. Motion to Suppress Taylor also challenges the trial court’s denial of his motion to suppress statements made during his interview with law enforcement. He argues he was under the influence of heroin when law enforcement interviewed him. Given this, Taylor asserts he lacked the capacity to exercise free will or fully appreciate the significance of his statement, and he did not knowingly, intelligently, and voluntarily waive his Miranda rights. We conclude the trial court properly denied the motion to suppress. Because the ultimate issue of voluntariness is a legal rather than factual question, we review this issue de novo. J.G. v. State, 883 So. 2d 915, 918 (Fla. 1st DCA 2004). Voluntariness is determined by an examination of the totality of the circumstances. See Sliney v. State, 699 So. 2d 662, 667–68 (Fla. 1997). Generally, intoxicants such as narcotics and alcohol affect the credibility of the confession, not the voluntariness. See Atkins v. State, 452 So. 2d 529, 531–32 (Fla. 1984); Reddish v. State, 167 So. 2d 858, 862–63 (Fla. 1964); Harrison v. State, 562 So. 2d 827 (Fla. 2d DCA 1990). When voluntariness is in question, the inquiry is “whether the defendant is aware and able to comprehend in a general way what he is doing and to communicate with coherence and rationality.” Burns v. State, 584 So. 2d 1073, 1075 (Fla. 4th 10 DCA 1991). Thus, intoxication at the time of confessing will not bar admitting a confession into evidence unless the defendant is intoxicated to the degree that he is unaware or unable to comprehend what he is doing and to communicate with coherence and rationality. See id.; see also DeConingh v. State, 433 So. 2d 501, 503 n.2 (Fla. 1983) (“Intoxication at the time of confessing will not bar admitting a confession into evidence unless the confessor is intoxicated to the degree of mania or is unable to understand the meaning of the statements.”). Intoxication is but one factor in the totality of circumstances for the court to consider in determining voluntariness. See Cox v. State, 711 So. 2d 1323, 1325 (Fla. 5th DCA 1998). Here, the evidence presented at the suppression hearing fails to support a finding that Taylor was impaired or intoxicated to the point of being unable to comprehend what he was doing. Nor did Taylor appear hindered in his ability to communicate with coherence and rationality. The record reflects that, during the interview, Taylor was alert, coherent, and aware of his surroundings. Taylor was read his Miranda rights and signed the formal waiver form with no visible apprehension. He answered the officers’ questions responsively and with little vacillation and spoke with clarity and specificity to matters about his personal life, including his relationship with the victim. Taylor not only confessed to shooting the victim, but thoroughly explained the shooting and the events leading up to the shooting. He provided this with minimal leading questions from law enforcement. Though Taylor did manifest emotions during the interview with law enforcement, these were commensurate with the gravity of the situation. Nothing in the record supports a finding that would disturb the trial court’s decision to deny the motion to suppress. Finding no error by the trial court, we affirm Taylor’s judgment and sentence. AFFIRMED. LEWIS and B.L. THOMAS, JJ., concur. 11 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Pamela D. Presnell, Assistant Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and David Welch, Assistant Attorney General, Tallahassee, for Appellee. 12