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Reed v. State

Florida Court of Appeals, Fourth District

December 11, 2019

BURNIE REED, Appellant,

         Not final until disposition of timely filed motion for rehearing.

          Consolidated appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Lisa M. Porter, Judge; L.T. Case Nos. 10-000330CF10A & 12-002306CF10A.

          Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.

          Ashley Moody, Attorney General, Tallahassee, and Allan R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.

          FORST, J.

         Appellant Burnie Reed appeals from his convictions for second-degree murder and attempted first-degree murder, and from an order revoking his community control. We affirm on all issues raised and write only to address Appellant's argument that the trial court erred in refusing to instruct on the heat of passion defense as to the first-degree murder charge (the jury convicted Appellant of the lesser-included offense of second-degree murder).


         This is a tragic case in which Appellant shot two sisters, killing one and wounding the other. Appellant was brought to trial on charges of first-degree murder and attempted first-degree murder.

         Appellant's then-girlfriend, Chutney McNair, got off work around midnight, and got a ride home with a co-worker. On the ride home, Appellant called Chutney several times, and the two argued over the phone. Chutney was four months pregnant, purportedly by Appellant, and the two argued about the baby and their relationship. Chutney told Appellant there was no baby, and that she wanted to end the relationship. Appellant kept asking Chutney when she was coming home. He lived across the street from her. Chutney was scared, so she called her mother (Karen McNair) and asked her to come outside to meet her. Karen was waiting outside when Chutney's ride pulled up.

         As Chutney pulled up, Appellant walked over from across the street. He had been sitting in his car in his driveway, waiting. He told Karen he wanted to speak to Chutney. Karen had a set of Appellant's keys in her hand to return to him. When Karen tried to hand Appellant his keys, he pushed Karen. Chutney's sister Bianca then came out of the house, and said "Burnie, don't hit my mom," or "Burnie, not tonight." According to several witnesses, that was all Bianca had said to Appellant when he raised his gun up and shot her in the face. Bianca fell to the ground. She did not have a weapon or anything in her hands.

         After Appellant shot Bianca, Chutney ran to her godfather's house across the street. Appellant chased after her, with the gun in his hand. As Chutney banged on the door to her godfather's house, Appellant shot her in the head.

         Appellant testified in his own defense that, when he called Chutney that night, she was mad at him about going to a party and said she wanted to break up. He told Chutney all he cared about was the baby, and Chutney said there was not going to be a baby. Appellant was hurt by the conversation. He sat in his car until Chutney pulled up. Armed with a gun in his pants pocket, he walked across the street to the McNair house. He grabbed his keys out of Karen's hand and said he just wanted to talk to Chutney. Karen said, "Listen, after tonight, listen," and grabbed his arm. Appellant did not want to hear what Karen was saying; he just wanted to talk to Chutney. When Chutney got out of the car, he "snatched away" from Karen. He "wasn't mad," just "a little upset."

         Appellant further testified that when he "snatched away" from Karen, "we kind of spinned around, . . . they scatter[ed]," and he "[saw] something running from the house out of [his] periphery, and [he] panicked." He said, "I kind of stumbled as I'm panicking, I'm trying to run, too, and I pull out the gun and shoot"; "I wasn't even looking, I was already going, going this way (indicating), and I just pulled and shot"; "[w]hen I saw them scatter and I see it out my periphery, I just panicked, I just pulled and shot, I ain't aim, I didn't even know what was coming, just bad judgment, I just pulled and shot." He maintained that he never identified the person approaching him and did not learn that Bianca had been shot and killed until the next morning. He denied ever holding his gun up and pointing it at someone. He also said he carried the gun for protection-not because he planned to shoot at either of the McNair sisters.

         The jury convicted Appellant of the second-degree murder of Bianca (a lesser included offense), and the attempted first-degree murder of ...

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