         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                  FOURTH DISTRICT
                                   July Term 2014

                                   JOHN HENRY,
                                     Appellant,

                                           v.

                               STATE OF FLORIDA,
                                    Appellee.

                                    No. 4D12-779

                                [ August 20, 2014 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 2007CF007607AMB.

   Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier,
Assistant Attorney General, West Palm Beach, for appellee.

HANZMAN, MICHAEL, Associate Judge.

    Appellant John Henry was convicted of second degree murder with a
weapon and sentenced to life in prison. He claims that the trial court
should have granted his motion for judgment of acquittal because—in his
view—the evidence fell short of proving that he acted in a manner “evincing
a depraved mind regardless of human life,” an element of the charged
offense. See § 782.04(2), Fla. Stat. (2006); Fla. Std. Jury Instr. (Crim.) 7.4;
Light v. State, 841 So. 2d 623, 625 (Fla. 2d DCA 2003). Appellant also
insists that the trial court committed reversible error by allowing the State
to play an audio recording of testimony he gave in a prior trial, thereby
enabling the jury to draw an impermissible inference as to why he was not
testifying at his retrial.1 We affirm.

1 Appellant was initially indicted for first degree murder and convicted of second
degree murder. We reversed, finding that the trial court had incorrectly
instructed the jury on the lesser included offense of manslaughter by act. Henry
v. State, 126 So. 3d 1071 (Fla. 4th DCA 2011). Appellant elected to testify at the
first trial but invoked his constitutional right to refuse to testify during the retrial.
   The evidence at trial was not in material conflict. Appellant believed
that Isaias Arroyo had burglarized his apartment. A few days later he saw
Mr. Arroyo driving in the neighborhood. Appellant jumped into a friend’s
car and directed the friend to follow Mr. Arroyo’s vehicle. During this
pursuit, appellant’s friend told him that he kept a baseball bat in the
trunk.

    Mr. Arroyo, accompanied by his wife, eventually pulled into a Wal-Mart
parking lot. Appellant then retrieved the baseball bat from the trunk of
the car and proceeded to repeatedly—and violently—strike Mr. Arroyo on
his body, neck, and head. This relentless beating continued despite Mr.
Arroyo’s initial attempt to flee, and his later futile effort to protect himself
while on the ground. Though conscious at the time paramedics arrived,
Mr. Arroyo later slipped into a coma and eventually died of resulting brain
injuries. While appellant acknowledged that he followed Mr. Arroyo
seeking revenge and that he intended to engage in a fight, he denied any
intent to kill and testified that he only planned on using the bat after his
friend told him it was in the trunk of the car.2

    Upon the close of the State’s case, appellant timely moved for a
judgment of acquittal on the charge of second degree murder, arguing that
his conduct only rose to the level of a third degree murder based upon
aggravated battery with a deadly weapon. The trial court denied the
motion and instructed the jury on second degree murder with a weapon
and the lesser included offenses of manslaughter with a weapon and third
degree felony murder. The jury rendered its verdict finding appellant guilty
on the second degree murder charge. He was subsequently sentenced to
life in prison.

  Our standard of review of the trial court’s order denying appellant’s
motion for judgment of acquittal is de novo. Ortiz v. State, 36 So. 3d 901,

His prior testimony was clearly admissible, see State v. Billie, 881 So. 2d 637,
639 (Fla. 3d DCA 2004); § 90.803(18), Fla. Stat. (2011), and the trial court
required that the recording be redacted so all the jury would hear were the
questions and answers—the same as if a transcript had been read. And, unlike
the situation presented in Barnes v. State, 970 So. 2d 332 (Fla. 2007), neither
the recording nor the transcript was provided to the jury during deliberations.
We find no abuse of discretion in the trial court’s handling of this evidence and
affirm on this point without further discussion.

2 Evidence that the defendant intended to kill the victim is not required to secure
a conviction for second degree murder. State v. Montgomery, 39 So. 3d 252, 256
(Fla. 2010).


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902 (Fla. 4th DCA 2010). Our task is to ascertain whether, after viewing
the evidence in a light most favorable to the State, a rational trier of fact
could find the existence of the elements of the crime beyond a reasonable
doubt. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). In a second degree
murder case, those elements are that: (1) the victim is dead; (2) the death
was caused by the criminal act of defendant; and (3) the death was an
unlawful killing by an act “imminently dangerous to another and
demonstrating a depraved mind regardless of human life . . . .” § 782.04(2),
Fla. Stat. (2006); Fla. Std. Jury Instr. (Crim.) 7.4.

    Appellant does not challenge the sufficiency of the State’s proof on the
first two elements of the crime, as it is undeniable that the victim is
deceased and that his death was caused by appellant’s criminal act. Nor
does appellant deny that he engaged in conduct “imminently dangerous to
another”—the first of two criteria embedded within the third element.
Rather, appellant’s sole claim is that as a matter of law the evidence failed
to prove that he acted in a manner demonstrating a “depraved mind
without regard for human life,” the second finding required to satisfy the
crime’s third element.3 He insists that the evidence, even when viewed in
a light most favorable to the State, proves only that he engaged in reckless
behavior in the form of an uncontrolled overreaction to his perceived
victimization, and he directs us to a number of decisions vacating second
degree murder convictions under what he suggests were similar
circumstances.4

3 What is described as the “third element” of this crime actually requires proof
sufficient to support two distinct findings—the first being that the act itself be
“imminently dangerous to another,” and the second being that it was done in a
manner “demonstrating a depraved mind regardless of human life . . . .” §
782.04(2), Fla. Stat. (2006). An act is “imminently dangerous to another” if a
person of ordinary judgment would know it was reasonably certain to kill or do
serious bodily injury. Fla. Std. Jury Instr. (Crim.) 7.4. As for the second
component of this element, a defendant’s conduct evinces a “depraved mind
without regard for human life,” if done in ill will, hatred, spite or evil intent, and
is of such a nature that the act itself indicates indifference to human life. Id.;
Wiley v. State, 60 So. 3d 588, 591 (Fla. 4th DCA 2011).
4Appellant also makes much of the fact that, unlike a firearm, a baseball bat is
not inherently a deadly weapon, and points out that when he left the scene, Mr.
Arroyo was alive, moving, and still appeared to be conscious. We find both
observations irrelevant. First, while a baseball bat might not be as inherently
deadly as a firearm, it was still a jury question as to whether the manner in which
appellant used the baseball bat constituted an act “imminently dangerous to
another and demonstrating a depraved mind” without regard for human life.
Competent, substantial evidence supported the jury’s determination that it was.
As for appellant’s second point, in assessing whether an act was committed in a

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   To be sure, appellate courts—including this court—have reversed
second degree murder convictions when the evidence proved no more than
reckless behavior. See, e.g., Wiley v. State, 60 So. 3d 588, 591-92 (Fla.
4th DCA 2011) (defendant who hit his sister’s boyfriend on the head with
a gun, causing it to discharge and kill a bystander, did not act in a manner
evincing a depraved mind); Light, 841 So. 2d at 626 (defendant who had
no prior history with victim, and demonstrated no “enmity at the time of
the incident,” was guilty of simply “a serious, momentary misjudgment
concerning the amount of force that was permissible” during an altercation
on a dance floor).

   We also have reversed second degree murder convictions where it was
clear that the defendant impulsively overreacted to an immediate
provocation. See, e.g., Dorsey v. State, 74 So. 3d 521, 524-25 (Fla. 4th
DCA 2011) (evidence was insufficient to support second degree murder
conviction where defendant, after being confronted by a number of heavily
intoxicated men, and punched in the face by victim, impulsively
overreacted by shooting); McDaniel v. State, 620 So. 2d 1308, 1308 (Fla.
4th DCA 1993) (reversing second degree murder conviction of father who
overreacted by using excessive force—a knife—to “ward off further attack”
by his son); accord Poole v. State, 30 So. 3d 696, 698-99 (Fla. 2d DCA
2010) (reversing second degree murder conviction where evidence
conclusively established that victim lunged at defendant “in an apparent
attack” causing defendant, who had “nowhere to retreat,” to lash out with
a knife).

    These decisions recognize that: (a) a defendant who at worst acts
recklessly does not satisfy the “depraved mind” element of the crime; and
(b) conduct in the form of an immediate overreaction to an assault is
generally insufficient to prove ill will, hatred, spite, or evil intent, as those
mental states usually require more than an instant to develop. See Light,
841 So. 2d at 626. Put simply, there certainly are cases where the quantity
or quality of evidence does not permit a finder of fact to conclude, beyond
a reasonable doubt, that the defendant committed an act “imminently
dangerous to another and evincing a depraved mind regardless of human
life . . . .” § 782.04(2), Fla. Stat. (2006). This is not one of them.


manner evincing a “depraved mind regardless of human life,” the relevant inquiry
is focused on the defendant’s state of mind and the nature and degree of the
defendant’s behavior, not on how long the victim was able to consciously
withstand the assault or remain alive.



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    Appellant’s conduct was far from merely reckless. He chased the victim
with a baseball bat, striking him repeatedly and violently more than 15 to
20 times, including several blows to the head. The evidence, viewed in the
light most favorable to the State, showed that appellant continued this
savage beating even after Mr. Arroyo lay motionless on the ground. This
behavior was clearly in disregard for human life and was arguably
sufficient to support even a first degree murder charge. Cf. Lanzafame v.
State, 751 So. 2d 628 (Fla. 4th DCA 1999) (affirming first degree murder
conviction in case where defendant repeatedly hit the victim in the head
with a baseball bat). Furthermore, appellant’s assault on Mr. Arroyo—
while obviously an “overreaction”—was not an “impulsive” response to any
threat at all, let alone an immediate one. It was committed out of ill will
and hatred, in revenge for a perceived burglary that occurred days prior—
a temporal gap which provided appellant ample time for reflection and
contemplation. In sum, and as Justice Canady recently observed through
a comment particularly apropos here, “[a] defendant who has brooded on
a prior wrong and has nursed his resentment and anger into a full-blown
rage is not one who lacked a depraved mind . . . .” Haygood v. State, 109
So. 3d 735, 747 (Fla. 2013) (Canady, J., dissenting).

   Appellant’s vicious attack was a deliberate administration of “street
justice,” Antoine v. State, 138 So. 3d 1064, 1074 (Fla. 4th DCA 2014), and
the jury’s finding of guilt is supported by competent evidence establishing
each element of the crime for which he was convicted. Johnston v. State,
863 So. 2d 271, 283 (Fla. 2003) (“Generally, an appellate court will not
reverse a conviction that is supported by competent, substantial
evidence.”).

   Affirmed.

DAMOORGIAN, C.J., and FORST, J., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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