252 So. 2d 258 | Fla. Dist. Ct. App. | 1971
Appellant appeals from a first degree murder conviction in the death of her stepmother. We reverse.
Briefly stating the facts, it appears that the badly charred remains of appellant’s stepmother were found in the severely burned home theretofore occupied by appellant, her father, and the deceased. Several molten metal objects were found in the body and there was conflicting expert testimony as to whether two of such metal objects were .22 caliber bullets. Additionally, there was some testimony that all of the metal objects could have entered the body as a result of minor explosions or from falling objects incident to the intense heat of the fire. Experts also disagreed as to whether the origin of the fire can be said to have been arson. Moreover, neither of three pathologists could testify with certainty as to the cause of death, although they agreed that the victim was recently dead or dying at the time she would have otherwise died in the fire, but conceded that such antecedent death or imminence thereof could have been from natural causes. Other evidence placed appellant in the house within an hour of when the fire was reported, but there was much discrepancy, even among state’s witnesses, as to the exact time she was personally seen or her car was seen outside the house.
It was, and is, the state’s position that appellant killed her stepmother and that death ensued either from gunshot wounds inflicted by appellant or in the subsequent fire set by her. While the evidence aforesaid relating to bullets and arson tended to show criminal agency, the state sought to prove the essential element of premedita
The second area of evidence ostensibly going to premeditation and/or identity of the slayer concerned an alleged conference, occurring approximately one month before the tragedy, between appellant and an attorney who had previously represented her in other matters. This attorney, one James Wallace, testified over objection that appellant inquired about the cost of representing her in connection with possible homicide and about penalties therefor.
The point on appeal concerning the admissibility of this testimony of attorney Wallace is dispositive of this case and renders it unnecessary to discuss the other points on appeal.
Initially, we observe that the state introduced virtually no evidence of motive nor is a motive even suggested in arguments. Thus, when considered in the light of all the conflicting or circumstantial evidence relating to criminal agency, premeditation and identity of the alleged killer, the testimony of Wallace was prominent in the state’s case. The jury could have found corroboration of both identity and premeditation from this testimony or, at the very least, a propensity or predisposition on the part of appellant to kill generally. We are of the view, however, that this testimony is patently inadmissible for either purpose.
Before such testimony is competent as evidence of a threat the law is clear that the quoted language must be directed at the victim or at a class to which the victim belongs, which class is sufficiently restrictive so that a reasonable inference may be made that the threat necessarily focused on the victim or on one against whom the assault was directed if other than the victim.
Concerning the relevance of Wallace’s testimony to show propensity or predisposition, of course, it is now rudimentary that any evidence related solely to propensity is inadmissible under the well-known Williams rule.
In view of the foregoing, therefore, it was error to admit the testimony of James Wallace and, because of the unquestionable prejudicial effect of such testimony, the judgment should be, and it is, reversed and a new trial awarded.
. There is no question of the attorney-client privilege here since the communication between them allegedly concerned an offense to be committed in futuro.
. See cases cited in 40 C.J.S. Homicide §§ 206(c), 209; accord, Buchanan v. State (1928), 95 Fla. 301, 116 So. 275; Ward v. State (1918), 75 Fla. 756, 79 So. 699; Owens v. State (1913), 65 Fla. 483, 62 So. 651.
. Williams v. State (Fla.1959), 110 So.2d 654, 663.