Brad Post: All right. Welcome to the floridadefense.com podcast. We are speaking to Bauer, Crider, and Parry, Mike Kenny. He’s a Tampa murder defense attorney, same with all the attorneys there at Bauer, Crider, and Parry. Mike, how are you doing today?

Michael D. Kenny, Attorney: I'm doing well. How are you doing?

B: Good. Good. Well, we’re in the series. Basically we talked about violent crimes. We’ve talked about assault and battery. You mentioned a little bit on homicide in the last one, and we’re going to be talking more about homicide and murder in this one. Correct?

M: That's right.

B: All right. So I’ll turn it over to you.

M: Sure. So, in the state of Florida murder has a couple of different categories. There’s the murder that probably a lot of us are kind of accustomed to. We’ve heard about premeditated murder. That’s first-degree murder. So, in the state of Florida when a human being is killed from a premeditated design to affect the death of that person. What that simply means is the thought and the intent, to bring about somebody else’s death, and the forethought, the thinking about it ahead of time. That’s a first-degree murder. The reason why that's so significant is because the penalties that that charge is punishable by. In the state of Florida, only first-degree murders are punishable by death, by capital punishment. There’s a certain process that has to be gone through in order to in order to get that penalty, because of some cases that have come out in the past several years the juries have to make certain findings. And the juries actually have to make certain recommendations that the courts are, although the final decision makers, and what the penalty is. The jury has to make certain findings on whether certain actions would warrant the death penalty.

The next category is a second-degree murder. And a second-degree murder is what is commonly called the depraved heart murder or depraved mind murder. And that's something that comes up when a person ends up bringing about the death of another person, but they don't have a premeditated design to do that. It’s simply one of those acts where the person hates the other person so much, or wants to harm the other person so much that they don't think about it. There isn’t some preplanning. And usually when you see that come up, it’s usually what comes up when two people meet each other and in a heated moment, get into a fight, and the other person ends up committing some significant injury or harm to the person, and ends up the killing the person. So, it's significantly different, it’s still punishable by life in prison, but a second-degree murder is not punishable by death. And the second-degree murder basically talks about a person who ends up doing an act that’s imminently dangerous to another person, which shows that he got depraved mind, and he’s regardless of human life, without any premeditated design to effect that death of any particular person. So, the idea is that it just shows that this person hates this other individual so much, that he doesn't really care, he just commits this act that brings about somebody’s death.

After that, you get into a category that is known as manslaughter. The manslaughter category is kind of anything else that a person is killed where you didn't plan to kill that person. That's really the layman’s explanation of it.

B: Kind of like a car wreck, or something like?

M: Correct. You can get in a car accident. Obviously, you have to show that there was some culpability, some criminal culpability involved there but a lot of times it’s somebody being careless with a firearm. But the manslaughter definition is defined as the killing of a human being, by the act, procurement or culpable negligence of another, without lawful justification, and in cases in which such killings shall not be excusable homicide, or murder, according to the provisions of this chapter.

Manslaughter is a second-degree felony punishable by a maximum of 15 years in jail. Now, manslaughter changes if a death happens, that’s considered a manslaughter, but a firearm is used. That takes it out of the second-degree felony range, and it’s punishable by up to 30 years in prison. So, it changes things a little bit.

So, that’s the basic categories of homicide. And, all these other little categories that kind of change depending upon other aspects, but those of the basic categories.

Then, as far as first-degree murder, there's a lot of ways you can get first-degree murder without the prosecutor having to show that you had a premeditated design to bring somebody’s death. And that's obviously sometimes difficult. Human beings, it's really had a hard to know it's going on inside somebody's mind. And especially because most people don't talk about what their thinking when their doing it. So, it’s one of those things that you have to look at the actions.

But, in the state of Florida there is a thing called the felony-murder rule. And felony murder is a rule that says if you commit one of these listed felonies, and they’re basically forcible felonies. If you commit one of these listed felonies, and a person dies in the commission of this forcible felony, you are guilty of first-degree murder. And that's punishable by just the way a premeditated murder is, it’s punishable by the death penalty. So, that comes up in the specific scenarios where a person commits a trafficking offense, for instance, trafficking in controlled substance, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawful throwing, placing or discharging of a destructive device or bomb, carjacking, home-invasion robbery, aggravated stalking, murder of another human being, resisting an officer with violence, aggravated fleeing or eluding with serious bodily injury or death, a felony that is an act of terrorism, or in furtherance of an act of terrorism, or which resulted in the unlawful distribution of a controlled substance (e.g. cocaine, opium) that ended up bringing about the death of the other individual. So, all those specific charges I just listed, if a death happens, and the person involved in it is committing one of those acts, and ends up causing the death of another injured individual, that could be charged as a first-degree premeditated murder punishable by the death penalty.

There is another category called second-degree felony murder. Second-degree felony murder is very unique. That comes up when a felony is being committed, just like the list of felonies that we were talking about, and a person dies, but the person who does the killing is not one of the people involved in the commission of the felony murder. So, the best example to come up with is three guys go into to rob a bank, and they go into to rob a bank, and during the commission of the bank robbery the bank guard pulls out a firearm ends up shooting one of the codefendants of the bank robbery. In that instance, the two living codefendants are guilty, if they go to trial, guilty of second-degree felony murder. They didn’t do the shooting, they didn't bring about the death of anybody, but the idea behind it is that they engaged in a clearly imminently dangerous act to the life and liberty of other individuals, and they’re going to be held responsible for the death of anyone involved.

B: Would another example be, Mike that if somebody say hires a hitman, or pays somebody to…

M: No, that’s a little different because if that person hires a hitman, and a hitman does the killing, that means that the people engaged in the common plan brought about the death. So, that will be a first-degree. That would basically be principle first-degree murder. But, the reason why second-degree murder comes up in these situations is because nobody involved did the actual killing. It came from an outside party. A party not involved in the commission of a felony. I think the reason why that came up is because this is a crime punishable by death, and perhaps the legislatures thought that the death penalty is maybe not necessarily appropriate for when somebody else commits an act that ends up causing the death of one of these people involved. Especially, when somebody has no role in bringing about the death, other than committing the felony.

B: You mentioned that the last podcast about the under-21 rule.

M: Yes.

B: That's kind of the same in this as well?

M: You don't get the benefit for capital felonies. You don't get the benefit of a youthful offender designation. So, anybody who commits a first-degree murder does not get that gift. A youthful offender designation is you have to be sentenced as a youthful offender before your 21st birthday. And it caps whatever your sentence is at six years. And can that can be six years of anything. Six years of probation. Six years prison. A combination of probation and prison. But no, it's not that, it's not that easy to avoid the maximum penalties involved in cases like this.

B: All right. Anything else Mike?

M: So, we just talked a little bit about the about the categories of murder. There’s a third degree of murder. And, a third-degree murder only comes up when a death is brought about in the commission of a non-listed felony. That means, I went through a list. Any felony that isn’t on that list does not qualify you for a first-degree murder. But, if you committed some other felony, let’s say grand theft, for instance, which isn’t on that list, and somebody dies in the commission of the grand theft that is a third-degree felony murder. And, that’s considered a felony in the second-degree punishable by a maximum of 15 years in prison.

Now, we talk a little about the penalties are. It's probably good to know a little bit about some defenses available in murder-type cases. Obviously, in murder, one of the things that you have to prove is that somebody’s been killed. But I think what’s important for a defense attorney to know and be able to show is maybe the “why” and “how”. How these things happen. Because sometimes the “why” makes a big difference. In the state of Florida, there is a unique statute called excusable homicide. Excusable homicide has three categories. It says that a homicide is excusable when committed by accident and misfortune, in doing any lawful act, by lawful means with usual ordinary caution. So, that could be anything. If you're just doing what you're supposed be doing, driving your car, and someone ends up getting killed, but you’re following the law and doing what you’re supposed to do, than that would be excusable. There is another section that says or by accident and misfortune, in the heat of passion upon any sudden and sufficient provocation. So, that’s a unique scenario. Some categories that might qualify is people getting into fight. People getting into a fight, and one person just ends up maybe getting the better of the other person who attacked him, who came after him. A lot of times when somebody gets killed a law-enforcement office does an investigation to determine whether or not that death could have been prevented. And maybe they make a determination that this person ended up killing the other individual illegally. There is a specific statute that says if this act was done in the heat of passion upon a sufficient provocation, then that could be considered (a jury has to find that) excusable homicide. For instance, or upon sudden combat, without any dangerous weapon being used, and not done in a cruel and unusual manner. So, those are those are three different ways that you can be found to have committed a murder, actually killed a person, but that act is found to be excusable homicide.

Then there’s the justifiable use of deadly force, which we see coming up in a lot of cases ever since Florida had the “Stand Your Ground” amendment to the statutes. The justifiable use of deadly force statute specifically says a person cannot be charged with a homicide, if they were found to have been defending themselves. And, that falls under the justifiable use of deadly force section. Justifiable use of deadly force says that you're allowed to defend yourself. You're allowed to use deadly force if you feel it is necessary to prevent imminent death to yourself, or serious bodily harm to yourself, or another. And then the “Stand Your Ground” is not all of the justifiable use of deadly force statute. But the stand your ground statute specifically stands for the idea that before you use deadly force you don't have to turn and run. It used to be, a long time ago, that you did. So, in situations where people are killed either through gunshot, or some weapon, and a person claims that he felt he had to do it because he thought he was going to be attacked by the other individual, you find a lot of times the justifiable use of deadly force, and the “Stand Your Ground” defenses raised. And that pretty much covers the substance of the homicide statutes.

B: You’ve been listening to the floridadefense.com podcast we been speaking to Bauer, Crider, and Parry, Tampa murder defense attorneys. We’ve been speaking with Mike Kenny. And join us on our next podcast.