Anthony Paul Peoples, Jr. v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D16-5875
_____________________________

ANTHONY PAUL PEOPLES, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.
___________________________

On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.

July 9, 2018

B.L. THOMAS, C.J.

In 2013, Appellant stabbed nineteen-year old Tyquon Prim,
plunging the knife more than six inches into Prim’s chest. Prim
said, “I think I’m going to die,” as he staggered to a witness,
collapsed, and died. Appellant was charged with second-degree
murder.

Appellant waived his right to a jury trial. Appellant
eventually participated in a bench trial, resulting in his second-
degree murder conviction and life sentence. He now argues that
his behavior and indecision as to whether to enter a no contest
plea and whether to waive his right to a jury trial should have
again resulted in a reconsideration of his competency and
another delay in his trial. He further asserts the trial court
should not have accepted his waiver of a jury trial. Finally, he
argues that the evidence of his actions stabbing the young man to
death was not sufficient to show “ill will, hatred, evil intent or
spite.”

I. FACTS AND PROCEEDINGS AT TRIAL

Appellant was not brought to trial until December 2016. In
the three intervening years between the fatal stabbing and trial,
Appellant received treatment to restore his competency, appeared
before the court several times, and was evaluated by several
experts, some of whom opined that Appellant intentionally
exaggerated his symptoms and refused medication for the
purpose of avoiding trial. Appellant was found competent for
trial and was ordered to take his prescribed medication, but when
he continued to refuse, the court ordered involuntary medication
by injection. This court denied Appellant’s petition for review of
that order without opinion. Peoples v. State, 205 So. 3d 594 (Fla.
1st DCA 2016) (table).

When the date of jury selection arrived, defense counsel
indicated that Appellant had been found competent by a defense
expert the previous week and there was no reason to believe
otherwise. Appellant appeared and said he wanted to “behave”
and “cooperate,” but wanted to present an insanity defense and
had not been told by defense counsel what his defense would be.
The court noted that a notice of insanity defense had not been
filed; the State explained it was because Appellant refused to
cooperate with the experts sent by his counsel for the purpose of
preparing such a defense. Appellant said he had not been
cooperating because his medication had not been helping, and he
wanted more time to talk to his counsel about his defense.

Appellant wavered when asked if he wanted to have a jury or
bench trial, but when the attorneys and the court discussed jury
selection, Appellant emphatically stated he did not want a jury
trial and felt it was in his best interest to have a bench trial. The
court inquired as to whether Appellant understood the rights he
was waiving, and Appellant indicated he did. However,
Appellant also stated, “[T]here’s two things that I want done is—
is to have a judge trial, and . . . and to plead my insanity.” Later
in the colloquy, Appellant again said he understood his decision

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and did not need more time to discuss the issue, but said, “I
understand I want a judge trial as far as my insanity goes.” After
the court concluded its inquiry and confirmed with jail staff that
Appellant was current on his medication, it accepted the waiver
of jury trial. Appellant signed a written waiver.

The bench trial was set for the following day. At the start of
proceedings, Appellant indicated he wanted to enter a no contest
plea rather than go forward with the trial. The court stated that
Appellant appeared competent and accepted Appellant’s plea
after conducting a colloquy, noting that the “presumptive
sentence” without a downward departure was twenty-one years’
imprisonment. However, after the court proceeded to sentencing
and the State announced it was seeking a life sentence, Appellant
interrupted and stated that he would not take a life sentence, but
rather believed he would get the lowest permissible sentence if he
entered a plea.

The parties indicated they were prepared to proceed to trial,
but Appellant stated he did not want a trial and said he
understood that twenty-one years’ imprisonment was the
minimum sentence he could receive without a departure, and life
was the maximum. After Appellant satisfactorily answered
additional plea colloquy questions, the court again accepted
Appellant’s no contest plea; however, when the court imposed a
life sentence, Appellant again interrupted and asked if he could
have a trial. While the court was concerned about how to
proceed, it did not think that Appellant’s indecision suggested a
competency issue, stating, “I’m not dealing with competency. I’m
talking about a defendant who goes back and forth about the
waiver of their right to a trial, so that’s my—I don’t think there’s
any issue as to his competency.”

The State noted Appellant’s history of malingering, and the
defense acknowledged records showing that Appellant
“exaggerates and manipulates.” The court concluded that the
safest course of action would be to allow Appellant to withdraw
his plea and proceed with the bench trial.

During the bench trial, Larry Smith, the owner of the Hotel
Liquidation Center, testified that while standing outside his
business, he saw a black male wearing a red top approach,
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carrying something that looked like a jigsaw tool. The man ran
across the street and out of view. Seconds later, a different black
male ran up to Smith with his hands on his chest, bleeding, and
fell over. The injured man said, “I think I’m going to die.” Smith
called for help, and John Flynn and Victor Jose arrived. Flynn
followed the man who had passed by, and Jose looked after the
injured man while Smith called for police and an ambulance.
While on the phone with police, Smith got into his truck to
pursue the man. Smith saw Flynn pointing to a house, saying
that’s where the man was. Flynn got in Smith’s truck, and they
watched the man enter and exit the house. They gave police the
address, and police quickly arrived. Smith saw police take the
man into custody, and noticed that at that time he was wearing a
blue top. Smith testified that he did not recognize either of the
two men and he did not hear any yelling or other noise before the
incident.

John Flynn was working at Hotel Liquidation when he heard
Smith call his name. Flynn ran to the front of the building and
saw a man in red running across the street and through a grassy
area. Flynn ran after the man. The man ran behind two homes,
and Flynn briefly lost sight of him. When he came into view
again, Flynn noticed the man was wearing a blue shirt and had
something red in his hand. Flynn did not see what the man did
with the red shirt, but he did see him throw something. The man
ran inside one of the houses. Smith arrived in his truck, and they
saw the man come in and out of the house. Police arrived and
took the man into custody.

Deputy Busbee testified that officers were dispatched to the
reported stabbing at 10:20 a.m., and he arrived at the scene just
minutes later. When he arrived, he was waved down by two
individuals in a truck, who pointed him toward an individual
wearing a blue shirt and blue jeans, heading into a residence.
Deputy Busbee took the man into custody and identified him as
Appellant. Deputy Busbee learned that Appellant’s grandmother
lived at the residence.

Officer Hall testified that his K-9 picked up a track near
Hotel Liquidation and followed it to a residence. The dog alerted
to a porch and attempted to get under the porch. Officer Hall

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looked under the porch and saw a knife. From there, the dog
tracked to the location where Deputy Busbee had Appellant in
custody.

A crime scene technician recovered a large kitchen knife,
covered in what appeared to be blood, from underneath the porch
at a residence. The blade of the knife was seven inches long. In a
trash can near the back yard of the residence, the technician
found a red sweater with suspected blood on it. These items were
sent for analysis. Another crime scene analyst responded to the
hospital and attended the victim’s autopsy. A DNA sample was
taken from the victim, who had an oval wound approximately
one inch wide and two inches long on his chest.

Investigator Jackson made contact with Appellant after his
arrest. Appellant had a stain on his shirt that appeared to be
blood. Appellant told the investigator he cut his hand on a rake.
A test of the stain indicated it was Appellant’s blood. When the
investigator asked Appellant about a red sweatshirt, Appellant
denied owning one.

Investigator Jackson showed Appellant a picture of the
victim, and Appellant said he “looked like a punk.” When the
investigator became aware that Appellant had been previously
detained under the Baker Act, he asked if Appellant knew right
from wrong. Appellant said he did.

A DNA analyst tested samples from the knife and a red
sweatshirt; both tested positive for the presence of blood. The
knife handle did not return DNA results, but the blood on the
knife and the sweater matched the victim. The analyst also
swabbed the sweater for skin cells to determine who was wearing
it, and obtained a mixture of two individuals; Appellant’s DNA
matched one of those profiles, and the victim was excluded as a
contributor.

Dr. Minyard, a medical examiner, performed the autopsy
and concluded the stab wound collapsed the victim’s lung and
caused heavy bleeding. The depth of the stab wound was six and
one-half inches. The knife was plunged through the victim’s rib
cage and right lung, collapsing the lung. The direction of the

5
wound was from front to back, from the left side of the chest
toward the right side, in a slightly downward movement. The
wound caused heavy bleeding into the right pleural cavity.
Dr. Minyard examined a knife provided by the sheriff’s office and
concluded it was consistent with the injury. The cause of death
was a stab wound to the chest, and the manner of death was
homicide.

After the State rested, Appellant moved for judgment of
acquittal, arguing that there was no direct testimony that anyone
saw the stabbing, and noting that Appellant’s fingerprints and
DNA were not found on the knife. The court denied the motion.

Appellant testified that he did not remember stabbing
anyone, but that he remembered Prim from “going back to school
with him” and “in a dream,” but said “nothing never happened
aggressive between me and [him].” He denied telling an officer
that Prim “looked like a punk.”

The court denied the defense’s renewed motion for judgment
of acquittal. During closing arguments, the defense argued the
State had not proven second-degree murder beyond a reasonable
doubt, and that “[a]t most it would be a manslaughter charge,”
but did not elaborate.

The court found Appellant guilty of second-degree murder,
declined the defense’s request for a downward departure, and
imposed a sentence of life imprisonment. The defense noted for
the record that it “was not caught off guard” by having to go to
trial that day, and that Appellant had repeatedly refused to
cooperate with the attempts to pursue an insanity defense.
Defense counsel agreed with the court’s statement that Appellant
“has the capacity to cooperate—when he chooses to.”

II. ANALYSIS

A. Trial Court’s Determination of Appellant’s Competency

“The test for whether a defendant is competent to stand trial
is ‘whether he has sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding—and
whether he has a rational as well as factual understanding of the
6
proceedings against him.’” Peede v. State, 955 So. 2d 480, 488
(Fla. 2007) (quoting Dusky v. United States, 362 U.S. 402, 402
(1960)). If reasonable grounds to question the defendant’s
competency arise at any material stage of the proceedings, the
court must immediately conduct a competency hearing. Fla. R.
Civ. P. 3.210(b); see also Cotton v. State, 177 So. 3d 666, 668 (Fla.
1st DCA 2015). However, once a defendant has been declared
competent, he is presumed competent in subsequent proceedings,
and a new competency hearing is necessary only if a “bona fide
question as to the defendant’s competency has been raised.”
Boyd v. State, 910 So. 2d 167, 187 (Fla. 2005). “[A] trial court’s
determination of competency supported by competent,
substantial evidence will not be disturbed on appeal.” Gore v.
State, 24 So. 3d 1, 10 (Fla. 2009).

This court has rejected mere equivocation as a reasonable
ground to question competency. See Noisette v. State, 661 So. 2d
350, 350 (Fla. 1st DCA 1995) (concluding the defendant’s
indecisiveness about whether to testify did not require the court
to conduct a second competency evaluation). And while the trial
court here was concerned about Appellant’s behavior, it
specifically found that Appellant’s indecision did not create a
competency issue.

Appellant argues that the court implicitly acknowledged
doubt as to Appellant’s competency when it questioned jail
personnel to ensure Appellant had received his medication.
Appellant asserts that jail personnel’s assurance that Appellant
was current on his medication was insufficient to alleviate doubt
as to his competency, because the record is unclear as to whether
he had received both an antipsychotic and a mood stabilizer.
However, while Appellant is correct that the testimony from jail
personnel does not specify the content of Appellant’s injections,
there is no suggestion on the record that Appellant was not
receiving both medications. To the contrary, the witness stated
that, other than one dose, Appellant had taken his medication
voluntarily since entry of the involuntary medication order.

Even if Appellant had not been taking the mood stabilizer,
there was testimony at the involuntary medication hearing that
if a liquid mood stabilizer was unavailable and Appellant refused

7
to take it in pill form, it would still be beneficial for Appellant to
take only the antipsychotic medication. Given the court’s
multiple statements that it found Appellant competent, its
questioning regarding whether Appellant was current on his
medication did not constitute reasonable grounds to require a
formal competency hearing, but only a thorough and
commendable effort to ensure that Appellant’s competency was
not in doubt.

Further, defense counsel acknowledged Appellant’s history of
malingering and repeatedly represented that there was no basis
to disagree with the court’s findings that Appellant was
competent. Indeed, defense counsel noted that Appellant had
been evaluated the previous week and found competent. While a
court cannot make a new competency determination based only
on the stipulations of the parties, see, e.g., Macaluso v. State, 12
So. 3d 914, 915 (Fla. 4th DCA 2009), the fact that defense counsel
did not request an evaluation and agreed with the court’s view of
Appellant’s competency is a relevant consideration. See Hodgson
v. State, 718 So. 2d 330, 331 (Fla. 4th DCA 1998) (“Although
counsel’s failure to request a competency evaluation is not, alone,
dispositive, it is evidence that competency to stand trial was not,
at that time, in doubt and that defense counsel saw no need for a
competency hearing.”).

In light of Appellant’s history of malingering, the evidence
suggesting he was current on his medication, his counsel’s
representation that he was indeed competent, and the court’s
observations, the decision not to conduct further competency
proceedings was supported by the record and was not an abuse of
discretion. See Barnes v. State, 124 So. 3d 904, 912 (Fla. 2013);
Gore, 24 So. 3d at 9.

B. Appellant’s Waiver of Jury Trial

Appellant’s second argument is that the trial court failed to
ensure Appellant understood what rights he waived when he
agreed to a bench trial, including the right to a unanimous jury
verdict. In addition, Appellant argues that he was not correctly
informed about the role of the judge and jury in determining

8
facts, and that he mistakenly thought he could raise an insanity
defense in the bench trial.

Appellant did not preserve this issue by raising it below.
After waiving his right to a jury trial, he did not thereafter move
to withdraw that waiver. Because Appellant did not preserve
this issue below, we will only consider whether fundamental
error occurred in the trial court’s decision to allow Appellant to
waive his constitutional right to a jury trial. See United States v.
Williams, 559 F.3d 607 (7th Cir. 2009) (holding that where
defendant failed to challenge his jury-trial error below, court
considered issue raised for the first time on appeal under “plain
error” standard). We consider the federal “plain error” standard
as similar to Florida’s “fundamental error” standard, although we
recognize the two concepts are not identical. Compare Puckett v.
United States, 556 U.S. 129, 135-136 (2009) (discussing, in the
context of a claim that government breached plea agreement,
four prongs of federal test for plain error, and noting that
appellate review is “strictly circumscribed”) with Maddox v.
State, 760 So. 2d 89, 95-96 (Fla. 2000) (discussing fundamental
sentencing errors in the context of the Criminal Appeals Reform
Act of 1996, noting that fundamental errors may be addressed on
appeal where the error “‘reaches down into the validity of the
trial itself to the extent that a verdict of guilty could not have
been obtained without the assistance of the alleged error’”)
(emphasis added) (quoting Gudinas v. State, 693 So. 2d 953, 961
(Fla. 1997)).

First, we clarify the issues involved. When a defendant
challenges the adequacy of the jury-waiver inquiry, he asserts
that the trial court failed to conduct a legally sufficient colloquy.
When a defendant challenges the voluntariness of the waiver, he
asserts that, notwithstanding the adequacy of the court’s inquiry,
the waiver was not in fact knowingly and voluntarily made.
While courts address the adequacy of the jury-waiver inquiry on
direct appeal, challenges to the voluntariness of the waiver are
properly made by postconviction motion. Compare Christie v.
State, 737 So. 2d 1157, 1158 (Fla. 1st DCA 1999) (holding that
challenge to adequacy of inquiry for waiver of jury trial should
have been raised on direct appeal, rather than in a postconviction
motion), Morris v. State, 680 So. 2d 544 (Fla. 1st DCA 1996)

9
(reversing inadequate jury-trial waiver on direct appeal where
defendant orally affirmed that he wanted to waive jury trial, but
the court made no further inquiry and no written waiver was
filed), and Upton v. State, 644 So. 2d 181 (Fla. 1st DCA 1994)
(reversing conviction on direct appeal because written waiver of
jury trial signed only by defendant’s attorney was inadequate
without further inquiry as to whether defendant concurred in the
waiver), with Schwab v. State, 814 So. 2d 402 (Fla. 2002)
(considering postconviction defendant’s claim that he did not
knowingly, intelligently, and voluntarily waive his right to a
jury), Chacon v. State, 735 So. 2d 569 (Fla. 2d DCA 1999) (stating
that challenge to whether a jury-trial waiver was freely and
knowingly given is cognizable in a postconviction motion), and
Parker v. State, 636 So. 2d 794 (Fla. 1st DCA 1994) (concluding
that written waiver was legally sufficient, and any challenge to
whether waiver was in fact freely and knowingly given should be
raised in postconviction motion).

Appellant appears to challenge both the adequacy of the
waiver, because the colloquy purportedly lacked two essential
inquiries, and its voluntariness, because it was based on his
mistaken belief that the insanity defense would be available to
him in a bench trial.

Appellant argues the jury waiver colloquy lacked two
essential inquiries—whether Appellant understood the roles of
jury and judge in a bench and jury trial, and whether he
understood a jury verdict required unanimity. However, while it
is the better practice for trial courts to use both a thorough on-
the-record waiver and a written waiver, either is legally
sufficient. Tucker v. State, 559 So. 2d 218 (Fla. 1990). Indeed,
where the record contains a written waiver of jury trial signed by
the defendant, no further inquiry by the court is required. See,
e.g., State v. Upton, 658 So. 2d 86, 87 (Fla. 1995) (“When the
record contains a written waiver signed by the defendant, the
waiver will be upheld.”); Zinnerman v. State, 985 So. 2d 672, 674
(Fla. 2d DCA 2008) (noting that an “unadorned written waiver” is
legally sufficient); Parker, 636 So. 2d at 795 (concluding that
written waiver executed in conformity with Florida Rule of
Criminal Procedure 3.260 is legally sufficient, and trial court’s
failure to make any inquiry to establish voluntariness of the

10
waiver did not require reversal). Here, the record contains a
formal written waiver signed by Appellant pursuant to rule
3.260, and additional inquiry by the court into Appellant’s
understanding of the waiver. Thus, the trial court’s inquiry was
adequate as a matter of law.

As to the voluntariness of the colloquy, even if this argument
could be raised on direct appeal, we would reject it. Appellant
relies principally on an attempt to analogize to several cases in
the context of a plea colloquy—not a jury waiver. He argues that,
as in cases where the defendant refers to a possible defense
during a plea colloquy, the court has a duty to inquire further to
ensure that the waiver of defenses, when the defendant waives
the right to a jury trial, is knowing and voluntary. Davis v. State,
605 So. 2d 936 (Fla. 1st DCA 1992) (explaining that where a
defendant claims a defense during the plea proceeding, the court
is “obligated to inquire further, to determine whether a defense
exist[s], and if so, whether [defendant] was aware of, and
knowingly waived, such possible defense.”); State v. Kendrick, 336
So. 2d 353 (Fla. 1976); Lyles v. State, 316 So. 2d 277 (Fla. 1975);
Williams v. State, 316 So. 2d 267, 271 (Fla. 1975). Appellant
claims that, by analogy, the court was obligated to inform him
that the insanity defense was not available in either a bench or
jury trial, and that because the court did not do so, his jury trial
waiver was invalid, like the waivers of defenses in Davis,
Kendrick, Lyles, and Williams. This analogy fails for several
reasons.

First, as recognized in Dumas v. State, 439 So. 2d 246, 250
(Fla. 3d DCA 1983), there is a “crucial distinction” between the
consequences of a guilty plea and those of a jury trial waiver.
The Dumas court recognized that “[w]hile a guilty plea ends in
judgment, jury waiver is often a tactical decision,” and the
Florida Rules of Criminal Procedure reflect this difference,
establishing “more stringent requirements for a valid guilty plea
than for a valid waiver of jury trial.” Id. at 250-51. Second, while
the plea decisions discussed in the cases cited by Appellant
involved the trial court’s failure to ensure the defendants
knowingly waived available defenses, Appellant was not waiving
an available defense by electing a bench trial, as he could not
raise an insanity defense regardless of how he proceeded to trial.

11
Third, to the extent the court was required to cure Appellant’s
misconception, the court did state on the record, in Appellant’s
presence, that there had been no notice of an insanity defense,
and Appellant appeared to acknowledge the issue, saying that he
had not cooperated with the experts sent by his defense counsel.
Thus, this argument is without merit.

C. Sufficiency of Evidence Proving Second-Degree Murder

In our review of the sufficiency of the evidence, all evidence
is viewed in the light most favorable to the verdict, and all
inferences are interpreted in favor of the verdict. See Lynch v.
State, 293 So. 2d 44, 45 (Fla. 1974). Here, it is helpful to compare
the elements of the greater crime of premeditated first-degree
murder—a capital crime punishable by death—with second-
degree murder, which is not a capital felony. Compare
§ 782.04(1)(a), Fla. Stat. (2013) (“The unlawful killing of a human
being[,] . . . [w]hen perpetrated from a premeditated design to
effect the death of the person killed or any human being . . . is
murder in the first degree and constitutes a capital felony[.]”)
with § 782.04(2), Fla. Stat. (2013) (“The unlawful killing of a
human being, when perpetrated by any act imminently
dangerous to another and evincing a depraved mind regardless of
human life, although without any premediated design to effect the
death of any particular individual, is murder in the second degree
and constitutes a felony of the first degree[.]”) (Emphasis added).

The evidence required to prove premeditation has been
defined by our supreme court:

Premeditation is more than a mere intent to kill; it is a
fully formed conscious purpose to kill [which] may be
formed a moment before the act but must exist for a
sufficient length of time to permit reflection . . . .
Whether or not the evidence shows a premediated
design to commit a murder is a question of fact . . .
which may be established by circumstantial evidence.

Roberts v. State, 510 So. 2d 885, 888 (Fla. 1987) (quoting Wilson
v. State, 493 So. 2d 1019, 1021 (Fla. 1986)) (emphasis added).
Moreover, premeditation “may be evinced by the defendant’s
actions in choosing and transporting a certain weapon and
12
employing that weapon in performance of the killing.” Floyd v.
State, 850 So. 2d 383, 397 (Fla. 2002) (citations omitted).

As the supreme court recognized in State v. Bryan, 287
So. 2d 73, 76 (Fla. 1973), in reversing this court’s decision that
the trial court erred in failing to give the standard jury
instruction’s definition of “ill will, hatred, spite, or evil intent,”
jurors understand what constitutes second-degree murder,
because jurors understand what kind of action demonstrates a
“depraved mind” with no regard for another person’s right to life:
“It is frankly our view that the average juror pretty well
understands what a depraved mind is, and particularly where it
is noted at least in partial definition as one which has no regard
for human life.” Id. As the court noted, certain acts are so
obviously inherently dangerous and fit squarely within the
legislature’s definition of an act “imminently dangerous to
another and evincing a depraved mind regardless of human life
although without a [premediated] design to effect the death of
any particular individual.” Id. at 74 n.2 (quoting Fla. Std. Jury
Instr. (Crim.)). In Bryan, the court held that the act of striking
another person with a loaded pistol that discharged and killed
the victim was such an act. Id. at 76. Although the court noted
that some “trouble” had previously arisen between the parties,
that fact was not cited as a necessary prerequisite to finding the
act itself constituted second-degree murder. Id. at 73. Here, the
act of plunging a seven-inch knife more than six inches into
another person’s chest also fits squarely within the legislature’s
definition of an act imminently dangerous to another, showing a
depraved mind with no regard for the victim’s right to life.

We recognize that, notwithstanding the supreme court’s
later holding in Bryan, the supreme court in 1934 held that the
concept of “actual malice” necessitates that the State prove
additional elements not enacted by the legislature, but somehow
embedded in the statutory definition:

Ramsey was charged with the offense of murder in the
second degree, one element of which offense is the
evincing of a depraved mind in the act of killing the
deceased. Depravity of mind is an inherent deficiency of
moral sense and rectitude.

13
 It is the equivalent of the statutory phrase ‘depravity of
heart’ which has been defined to be the highest grade of
malice.

The legal and technical sense of the word ‘malice’ differs
from its sense in ordinary or common speech. In the
technical sense it is a term of art importing wickedness
and excluding a just cause or excuse. When so used it
denotes a wrongful act done intentionally without just
cause or excuse.

That definition may be inaccurate because no just cause
or excuse can be allowed for a wrongful act. Malice in
law refers to that state of mind which is reckless of law
and of the legal rights of the citizen in a person's
conduct toward that citizen.

It includes all acts wantonly or willfully done, that is,
which any man of reason, knowledge, and ability must
know to be contrary to his duty. It is implied from
wrongful unjustifiable acts done on purpose or without
just or legal excuse.

It is obvious, therefore, that the phrase ‘evincing a
depraved mind regardless of human life,’ as used in the
statute (Comp. Gen. Laws 1927, § 7137) denouncing
murder in the second degree, was not used in the legal
or technical sense of the word ‘malice’ as above defined.
The phrase conveys the idea of ‘malice’ in the popular or
commonly understood sense of ill will, hatred, spite, an
evil intent. It is the malice of the evil motive which the
statute makes an ingredient of the crime of murder in
the second degree.

Ramsey v. State, 114 Fla. 766, 767-68 (Fla. 1934) (citations
omitted).

This court has held that the State must prove both the
statutory elements of second-degree murder and “ill will, hatred,
spite or evil intent.” See, e.g., Rasley v. State, 878 So. 2d 473, 477

14
(Fla. 1st DCA 2004); Davis v. State, 397 So. 2d 1005, 1006-07
(Fla. 1st DCA 1981). While many cases rely on the Standard
Jury Instructions in Criminal Cases for authority to support
requiring the State to prove additional elements not required by
the Legislature, this development in the law has occurred over
many decades. See e.g., State v. Ellison, 561 So. 2d 576, 577 (Fla.
1990) (citing Fla. Std. Jury Instr. (Crim.) to affirm this court’s
holding that defendant, driving at high speed to avoid police,
crashing through blocked toll gate at 65 mph, losing control of
car, and killing 16-month-old child, was not sufficient evidence of
ill will, spite, hatred or evil intent); Light v. State, 841 So. 2d 623,
625 (Fla. 2d DCA 2003) (citing Fla. Std. Jury Instr. (Crim.), and
noting that instruction incorporates definition of malice
explicated in Reed v. State, 837 So. 2d 366 (Fla. 2002), a case
involving definition of aggravated child abuse).

In Hines v. State, this court discussed the difference between
premeditated murder and depraved-mind murder, where the
defendant pointed a gun at his girlfriend, told a “joke,” and shot
her, killing her. 227 So. 2d 334, 335 (Fla. 1st DCA 1969). Hines
was convicted of premeditated first-degree murder, but this court
reversed with direction to reduce the charge to second-degree
murder:

The essential distinction between first and second
degree murder is the absence of the element of
premeditation in second degree murder. 16 Fla. Jur.,
Homicide, Section 16. The evidence here clearly sustains
a charge of murder in the second degree, i.e., the killing
of human being, perpetrated by an act imminently
dangerous to another and evincing a depraved mind
regardless of human life. Section 782.04(2), Florida
Statutes, F.S.A. The act of the defendant in pointing the
gun at the head of the deceased was clearly imminently
dangerous to human life.

The more difficult question is whether the act causing
the death evinced a depraved mind regardless of human
life. ‘Depraved mind’ within the second degree murder
statute has been variously defined as importing malice
in the sense of ill will, hatred, or evil intent, and as an

15
 inherent deficiency of moral sense and rectitude.
Ramsey v. State, 114 Fla. 766, 154 So.2d 855. It has also
been stated that malice is not limited in its meaning to
hatred, ill will and malevolence, but ‘denotes a wicked
and corrupt disregard of the lives and safety of others
* * * a failure to appreciate social duty.’ 40 Am.Jur.2d,
Homicide, Section 50.

227 So. 2d at 335-36.

In Smalley v. State, the Fifth District stated:

A conviction for second degree murder requires proof
that the defendant killed the victim with a depraved
mind regardless of human life. See § 782.04(2); Roberts
v. State, 425 So.2d 70, 71 (Fla. 2d DCA 1982). In turn,
proof of a depraved mind may be established by proof
the shooting was done with “ill will, hatred, spite, or an
evil intent.” See Sigler v. State, 805 So.2d 32, 34 (Fla.
4th DCA 2001); Rayl v. State, 765 So.2d 917, 919 (Fla.
2d DCA 2000).

889 So. 2d 100, 102 (Fla. 5th DCA 2004) (emphasis added).

In this case, there was competent, substantial evidence from
which the trier of fact could find that Appellant did act out with
ill will, hatred, spite, or an evil intent when he stabbed the
victim. Initially, we recognize that the circumstantial evidence
here was sufficient as a matter of law to prove Appellant
possessed the requisite mental state—no one “accidently” or
“negligently” plunges a seven-inch knife blade six inches into the
chest of another person. Cf. Wilson v. State, 493 So. 2d 1019,
1023 (Fla. 1986) (reducing conviction for first-degree murder to
second-degree murder where defendant claimed stabbing of five-
year-old in chest with scissors was accidental). Circumstantial
evidence can be sufficient to prove the elements of second-degree
“depraved-mind” murder. Dellinger v. State, 495 So. 2d 197 (Fla.
5th DCA 1986) (en banc). In Dellinger, the lack of direct evidence
did not preclude a conviction for second-degree murder in light of
the circumstantial evidence:

16
 There may be, as in this case, little express testimony
concerning a defendant’s malice or depraved state of
mind. However, we think the jury could have inferred
this necessary element of second degree murder from
the evidence in this case. Here Dellinger pointed a rifle
at his wife without knowing (and thus without caring)
whether or not it was loaded, and then deliberately
pulled the trigger, killing her. We think those facts
permitted the jury to infer Dellinger had a “depraved
mind regardless of human life” when he fired the rifle.

Id. at 198-99.

Thus, the circumstances surrounding the fatal act can prove
ill will, spite, hatred or evil intent. Leasure v. State, 105 So. 3d 5,
16-17 (Fla. 2d DCA 2012) (affirming denial of defendant’s motion
for judgment of acquittal in circumstantial-evidence prosecution
for second-degree murder, where evidence of three gunshot
wounds to victim and other evidence was inconsistent with
defendant’s claim of self-defense).

Here, in addition to Appellant’s use of a deadly weapon to
stab the victim—an act which itself could be sufficient to infer the
requisite intent, cf. Gibbs v. State, 904 So. 2d 432, 435 (Fla. 4th
DCA 2005) (concluding that the act of pointing a loaded gun at
victim’s head and shooting evinces a depraved mind)—the
evidence here showed that Appellant was familiar with the
victim before the stabbing and thought he “looked like a punk.”
The trier of fact could reasonably infer enmity from Appellant’s
description of the victim, his admission that the two had attended
school together, and the nature of the act which resulted in the
victim’s death. The evidence was sufficient to demonstrate that
the act of stabbing was an “act imminently dangerous to another
and evincing a depraved mind regardless of human life, although
without any premediated design to effect the death of any
particular individual.” § 782.04(2), Fla. Stat. (2013).

III. CONCLUSION

Appellant’s vacillating while making jury waiver and plea
decisions did not give rise to reasonable grounds to question his

17
competency, and the trial court was therefore not required to
conduct additional competency proceedings. Further, the inquiry
surrounding Appellant’s waiver of jury trial was adequate, as the
court conducted an oral colloquy in addition to Appellant’s
written waiver. Finally, the evidence presented was sufficient to
prove Appellant acted with ill will, hatred, evil intent or spite
when he stabbed the victim. Appellant’s judgment and sentence
for second-degree murder is AFFIRMED.

WOLF and RAY, JJ., concur.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

Andy Thomas, Public Defender, Glen P. Gifford, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.

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