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Court Rules on “Horiffic” Domestic Violence Crime


The accused and his victim had an “on and off” intimate relationship from January 1996 to June 199. In early June of 1997, they had an argument in which he accused her of having an affair with another man. After this argument, the victim broke off contact with him and moved out of his apartment. A New York Family Lawyer said that for over a month, he attempted repeatedly to reconcile with her. Desperate to contact her, the accused left an urgent message with the victim’s family friend stating that he was going to be hospitalized. In response, she called him that evening. During the conversation, the accused lied to the victim and told her that he had cancer. The victim then promised to visit him on 11 July 1997, between 10:00 a.m. and 11:00 a.m.

On 11 July 1997, the victim arrived at the home of the accused at around 1:00 p.m. The accused was agitated because the victim was late. They first discussed his medical situation. The accused then shifted the focus of their conversation to his desire to have her back. He led her into his bedroom where the conversation continued. When she told him that she did not love him in the manner that he had thought and that she had to get her things from his apartment, he flew into a rage and punched her. He then picked up a hammer and struck her, causing her to fall. A New York Custody Lawyer said while in the process of striking her again, he lost his balance and fell on top of her. She managed to grab the hammer out of his hand. However, he found another hammer and continued striking her. The accused then went to the kitchen, retrieved a knife, and began stabbing her. Finally, he drove the knife into her throat and held it there until she died. The cause of death was multiple blunt and sharp force trauma injuries.

At the trial, the court found that the murder (domestic violence) was especially heinous, atrocious, or cruel and gave this aggravating circumstance a great weight. According to the County Medical Examiner who performed the autopsy, there were 144 wounds inflicted on the victim, fifty-seven of which were blunt force trauma injuries consistent with being struck by the flat and claw side of a hammer. A Nassau County Family Lawyer said the remaining eighty-seven wounds were sharp force wounds consisting of forty-one stab wounds (i.e., the wounds were deeper than they were long) and forty-six incise wounds (i.e., the wounds were longer than they were deep). The victim had multiple defensive wounds on the palms of her hands and on her arms from blocking the blows and grabbing for a weapon. The examiner testified that she was alive for all but one of the 144 stab wounds and hammer blows. The brutality of the attack, coupled with her defensive wounds, bodily movements, and blood spatter, suggested that she knew she was fighting for her life and was aware of her impending death.

Several statutory mitigating circumstances and non-statutory mitigating circumstances were considered by the trial court.

The trial court gave great weight to the jury’s nine-to-three death recommendation; and sentenced the accused to death. The trial court found that the aggravating factor, heinous, atrocious or cruel, was proven beyond a reasonable doubt and outweighed the mitigating factors found to exist.

The accused appeals the judgment and the death sentence.

On the issue of Proffered Heat of Passion Instruction:

Courts have held that decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error. However, a defendant is entitled to an instruction as to any valid defense supported by evidence or testimony in the case. It’s the jury and not the trial judge who determines whether the evidence supports the defendant’s contention. Nevertheless, a Queens Divorce Lawyer said while a defendant is entitled to have the jury instructed on his theory of defense, the failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.

Here, the trial court followed the ruling in a previous case and found that the standard jury instruction on excusable homicide was sufficient to explain heat of passion in the context of premeditation. Both cases deal with the denial of special jury instructions on heat of passion to negate premeditation. The herein court finds that the trial court properly exercised, and did not abuse, its discretion.

On the issue of Jury Instruction on Premeditation:

Claims not raised at trial are procedurally barred unless they present a question of fundamental error. Issues pertaining to jury instructions are not preserved for appellate review unless a specific objection has been voiced at trial.

Here, the accused filed a pretrial motion on 10 July1998, objecting to the use of the standard premeditation instruction. However, he did not object to the use of the standard instruction on premeditation at either the charge conference on 8 April 2002, or after the trial court had given the standard instruction on premeditation to the jury on 9 April 2002. Hence, this issue is not preserved for appellate review.

Even if the herein court were to entertain the claim of the accused, it is clear that there was no error because the trial court gave the standard jury instruction on premeditation.

On the issue of Denial of Motion for Judgment of Acquittal/Sufficiency of Evidence:

A motion for judgment of acquittal should not be granted by the trial court unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. Where there is room for a difference of opinion between reasonable people as to the proof or facts from which an ultimate fact is to be established, or where there is room for such differences on the inferences to be drawn from conceded facts, the trial court should submit the case to the jury. Once competent, substantial evidence has been submitted on each element of the crime, it is for the jury to evaluate the evidence and the credibility of the witnesses.

On the evidence presented before the trial court, at 4:54 p.m. on 10 July 1997, the day before the murder, the accused reserved a flight which was scheduled to depart from John F. Kennedy Airport in New York on 12 July 1997, and scheduled to arrive at Charles DeGaulle Airport in Paris, France. On July 10, he withdrew $6000 from his bank account at City County Credit Union and bought $2000 worth of traveler’s checks. He purposefully lured the victim to his home by lying to her and stating that he was dying of skin cancer because she had rejected all of his other attempts to meet with her. In his signed, written confession contained in the exhibits, he states that he attacked the victim with one hammer. When he slipped, she grabbed that hammer from him. He then retrieved another hammer and continued hitting her. With these two hammers, he hit her fifty-seven times. However, he finished his brutal assault on her with a knife which he obtained by leaving her body in the bedroom and walking into the kitchen. Once he returned to the bedroom with a knife from the kitchen, he began attacking her again, stabbing her eighty-seven times.

Clearly, the accused had time to consciously reflect upon his actions and realize that he was committing a murder; thus, the murder was premeditated.

The trial court did not err in denying the accused’s motion for judgment of acquittal since there was an abundance of evidence establishing that the murder was premeditated and not committed in the heat of passion.

On the issue of Denial of Motion to Suppress:

The accused argues that at the time of his arrest he was an overnight guest at the residence of his former wife; that he had a reasonable expectation of privacy in that residence. He asserts that his arrest was unlawful since the police entered the residence and arrested him without a warrant, without exigent circumstances, and without the owner’s permission. Therefore, he claims that his arrest was unlawful and the trial court erred in denying his motion to suppress the evidence which was the fruit of his illegal arrest and detention.

Here, the State has shown that, although the detective who made the arrest did not have actual knowledge of the Florida arrest warrant, a valid Florida arrest warrant existed. Probable cause for the arrest existed, the detective just did not know about it. He was told of the existence of the warrant after he returned to Precinct 112 and before the interview with the defendant took place.

Nonetheless, even if no valid warrant existed, the police had information that a potential fugitive escaping murder charges was in a nearby apartment. When the former wife opened the downstairs door and said that the defendant was upstairs, the officers received the owner’s consent to enter. The upstairs door was open. The defense provided no contradictory evidence. It must be noted that an informant told the arresting officers that she was concerned about the safety of her friend, the former wife. Because of the informant’s concern, an exigent circumstance existed. A potentially dangerous person was alleged to be in the apartment. He was a danger to the informant, the former wife and the neighborhood. Because he might be a fugitive, he could potentially flee before a valid warrant was confirmed or backup officers could be called. Thus, exigent circumstances existed, and the officers had to act quickly in order to seize the accused before he either escaped or hurt someone. Because of that exigency, there was no time for them to obtain a warrant. Hence, their warrantless entry was proper.

The herein court finds that the officers’ entry of the apartment was lawful. The arrest of the defendant and subsequent seizure of his effects in the bag that the defendant claimed was his is also valid. The bag was lawfully searched incident to the lawful arrest or as a post arrest inventory. The court finds that the incriminating physical evidence is admissible.

Based on the totality of the circumstances, which include, but are not limited to, the evidence presented, the witnesses’ testimony at the hearing, and the defendant’s written statement, the court finds that the defendant’s waiver of his rights was voluntary and that it was the product of a free and deliberate choice and not by intimidation, coercion or deception.

Moreover, the court finds that the record reflects that the written waiver of the defendant’s Miranda rights was executed with the defendant’s full awareness of the nature of the rights being abandoned and the consequences of their abandonment. The record establishes that the defendant was advised of his Miranda rights from a card during his arrest and from the Miranda rights waiver form before questioning and the writing out of his statement. The accused was advised of his rights two times, once at the apartment where he was arrested and again at the police station prior to interrogation. He stated that he had returned to the United States in order to surrender and to see to it that justice was served. At no time during the interrogation was he coerced into making a statement, promised anything in return for making a statement, or forced to proceed without consulting an attorney. He neither requested counsel nor asked that the interrogation end.

Clearly, the defendant was aware of the fact that he was implicating himself, and at no time did he request cessation of the questioning, or an attorney. When an attorney hired by the defendant’s family called the precinct, the detective stopped the statement.

The State has shown, by preponderance of evidence, that the confession, statements and admissions were freely and voluntarily given.

On the issue of Admission of the Signed, Written Confession into Evidence:

While the law requires the authentication or identification of a document prior to its admission into evidence, the requirements of this section are satisfied by evidence sufficient to support a finding that the document in question is what its proponent claims. Authentication or identification of evidence may include examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics in conjunction with the circumstances.

Here, the trial court did not abuse its discretion in finding that the confession was authentic, for there was an abundance of evidence that supported the trial court’s finding that the signed, written statement was drafted by the accused. Two of the arresting officers testified that they witnessed the accused write and sign this statement, and in turn, they both signed the statement after him. The details of the attack on the victim contained within the statement are consistent with the injuries to the victim’s body as described in the testimony of the Medical Examiner who performed the autopsy. In the statement, the accused wrote that he took the victim’s wallet for the purpose of trying to identify whom the victim was dating. This is consistent with the one of the arresting officer’s testimony that when the police were removing the victim’s purse from the accused’s bag, the accused stated that he had taken the victim’s wallet not for personal gain but for the purpose of trying to identify whom the victim was dating.

Additionally, in the statement, the accused states that he drove the victim’s car to the Miami airport after the murder, flew to Paris, and had in his possession $5000 to $6000 which he had withdrawn from his bank account two days prior. This is consistent with the accused’s actions as described in the testimony of the Crime Scene Investigator; the supervisor at the Delta Airlines’ ticket counter; and the former customer service representative at the City County Credit Union.

Lastly, the handwriting of the 200-page confession which was found in the accused’s bag when he was apprehended matches the handwriting in the signed, written statement.

Clearly, there was sufficient evidence in the record to support the trial court’s conclusion that the statement was authentic and the trial court did not abuse its discretion in admitting this confession into evidence.

On the issue of Ability to Conform Conduct:

The accused argues that the trial court erred in failing to find and give any weight to the mitigating factor of lack of ability to conform his conduct to the requirements of the law at the time of the homicide.

Generally, the weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard. However, while the trial court can determine the weight to be given, the trial court must find as a mitigating circumstance any proposed factor that is both reasonably established by the greater weight of the evidence and mitigating in nature. As the courts have ruled, a mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established. The court must next weigh the aggravating circumstances against the mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance. Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight.

Further court rulings, over the years, defined the parameters of the trial court’s discretion in considering mitigating factors. When a reasonable quantum of competent, uncontroverted evidence of a mitigating circumstance is presented, the trial court must find that the mitigating circumstance has been proved. A trial court may reject a defendant’s claim that a mitigating circumstance has been proved, however, provided that the record contains competent substantial evidence to support the trial court’s rejection of these mitigating circumstances.

Here, it appears that the trial court confused the standard for insanity with the mental mitigation in question. It must be noted that six defense mental health experts testified that the accused was unable to conform his conduct to the requirements of the law at the time of the murder. All the experts found the accused to be suffering from some form of severe depression with psychotic features or borderline personality disorder or both. The experts clearly related the accused’s inability to conform his conduct to situations that occur when he is, or feels that he is, being rejected in relationships involving women.

The State presented no expert testimony in rebuttal.

In sum, the herein court finds that it was an error for the trial court to decide that the aforesaid statutory mitigating circumstance had not been established. The death penalty imposed is vacated and the case is remanded to the trial judge for reevaluation of the mitigation and the sentence.

On the issue of Constitutionality of Florida’s Death Penalty Statute/Ring claims:

The accused claims that Florida’s death penalty statute is unconstitutional because Florida law requires findings of fact (in particular, aggravating circumstances) be made by the trial judge and not the jury.

Florida Statutes do not require jury findings on aggravating circumstances, and the courts specifically held that it is a departure from the essential requirements of law to use a special verdict form detailing the jury’s determination on the aggravating circumstances.

The accused also claims that because the jury’s death sentence recommendation was not unanimous but only by a vote of nine to three, his sentence is unconstitutional.

Under Florida law, the jury need not be unanimous in its recommendation of a death sentence. Courts have repeatedly held that it is not unconstitutional for a jury to be allowed to recommend death on a simple majority vote.

Lastly, the accused claims that the failure to allege the aggravating circumstances in the indictment renders his sentence unconstitutional.

However, various court rulings have rejected similar claims that aggravating circumstances must be alleged in the indictment.

On the issue of Finding of Heinous, Atrocious, or Cruel (HAC):

The accused asserts that he did not have an intentional design to torture or inflict pain. Therefore, he states that the trial court erred in finding the heinous, atrocious or cruel aggravating circumstance in the case.

In order for HAC to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim.

Here, the accused brutally beat the victim with two hammers a total of fifty-seven times. He then stabbed her eighty-seven times. The medical examiner testified that the victim was alive for 143 of the 144 wounds, that she was conscious for all of her defensive wounds, and that she may have been conscious for 143 of the wounds. In the signed, written confession, the accused wrote that the victim was alive until the fatal stab wound when he thrust the knife into her neck and held it there until she expired. The facts demonstrate at the very least an utter indifference to the suffering of the victim.

Thus, the trial court did not err in finding the HAC as an aggravating circumstance.

On the issue of Cross-Examination for an Incident in Germany:

Florida Statutes allows for broader admissibility of evidence during the penalty phase of a trial.

Here, the testimony of the defense expert that he based his opinion regarding appellant’s non-violent nature on the appellant’s past personal and social developmental history, including a prior criminal history, opened the door for this cross-examination by the state. The court finds that it is proper for a party to fully inquire into the history utilized by the expert to determine whether the expert’s opinion has a proper basis.

Accordingly, the trial court’s ruling here was proper.

On the issue of Request for Juror Interviews:

The accused moved to interview the jurors regarding their exposure to media reports during the penalty phase. The trial court denied the same.

Juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was, in fact, fundamental and prejudicial as to vitiate the entire proceedings. This standard was formulated in light of the strong public policy against allowing litigants either to harass jurors or to upset a verdict by attempting to ascertain some improper motive underlying it.

Here, on numerous occasions throughout the penalty phase, the trial court inquired of the jurors, both individually and as a group, whether they had been exposed to outside sources, particularly the media. As a result of this repeated inquiry, the trial court excused three jurors due to their exposure to outside sources. The remainder of the jurors indicated that they had not been exposed to outside influences, and the accused did not provide any information to contradict their assertions.

Hence, the court finds that the trial court properly denied the motion to interview the jury.

On the issue of Jury Instructions/Penalty Phase:

The accused asserts the trial court erred by instructing the jury that it was giving an advisory sentence. The accused also asserts that the trial court erred in its instruction to the jury concerning the effect of undecided votes. These claims have no merit.

Here, the trial court thoroughly addressed the aforesaid issue. The trial court brought out the jury and attempted to resolve the problem by instructing them in accordance with Florida Standard Jury Instruction.

The trial court did not err in providing instruction which expressly declared that while the jury was encouraged to vote, they were not forced to vote. It was entirely within the trial court’s discretion to deny the defense’s requested verdict form which allowed for undecided votes; judges in Florida are not required to use special verdict forms.

Accordingly, the conviction for first-degree murder is affirmed. However, the death sentence is vacated and the case is remanded to the trial court for sentence reevaluation.

Court procedures are very complicated especially to those with no legal background. We, at Stephen Bilkis & Associates, make sure that you understand everything. For advice on how to go about with your legal issues, contact us. Have a free consultation with a Queens Domestic Violence Lawyer or a Queens Criminal Lawyer from our firm.

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