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.
Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.
Moody, Attorney General, Tallahassee, and Allan R. Geesey,
Assistant Attorney General, West Palm Beach, for appellee.
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 Appellants
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).
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
Appellants 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 Chutneys ride pulled up.
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 Appellants keys in her hand to return to him.
When Karen tried to hand Appellant his keys, he pushed Karen.
Chutneys sister Bianca then came out of the house, and said
"Burnie, dont 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.
Appellant shot Bianca, Chutney ran to her godfathers house
across the street. Appellant chased after her, with the gun
in his hand. As Chutney banged on the door to her godfathers
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 Karens 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 "wasnt
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 Im
panicking, Im trying to run, too, and I pull out the gun and
shoot"; "I wasnt 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
aint aim, I didnt 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 ...