DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DERREN DEJUAN MORRISON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-2635

[December 11, 2019]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Cheryl Caracuzzo, Judge; L.T. Case No. 

502015CF002452A.

David J. Joffe of Joffe Law, P.A., Fort Lauderdale, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, 

Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

Derren Morrison appeals his conviction and life sentence for seconddegree murder. Morrison raises several issues on appeal, but we write 

only to address his arguments that the trial court erred by denying his 

motion for judgment of acquittal and that statements made by the 

prosecution during closing argument were so egregious under the 

circumstances to necessitate a new trial. On those and all other 

arguments raised, we affirm the judgment and sentence rendered by the 

trial court.

Background

Morrison was found in the street covered in blood, flailing his arms and 

repeatedly yelling “I just want to be with you God.” A trail of blood led 

from Morrison to a house down the street. Inside the house, officers found 

an eighty-one-year-old female on the floor covered in blood. The victim 

was barely conscious and had suffered extensive injuries. She was 

transported to the hospital, placed on life-support, and died approximately 

three months later from an infection that developed from her feeding tube. 
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The State’s medical expert characterized the beating as “the triggering 

event . . . that ultimately led to [the victim’s] death.”

Morrison was also transported to the hospital where he gave a 

voluntary statement to the police. Morrison explained that he had taken 

flakka and drank “sweet liquor” prior to the incident and could not recall 

what had happened because of the flakka. Morrison did recall, however, 

that the flakka “was making me hallucinate like someone was trying to kill 

me.” Upon the victim’s death, the State charged Morrison with first-degree 

murder. 

The State’s theory of the case was that Morrison beat the victim in her 

home while in a drug-induced psychotic state brought on by his voluntary 

consumption of flakka. The defense argued that Morrison suffered from 

schizophrenia and that this psychotic disorder caused him to beat the 

victim. The case went to the jury who found Morrison guilty as charged of 

first-degree murder.

Morrison renewed his previous motion for a judgment of acquittal and 

maintained that there was no evidence of premeditation for first-degree 

murder. He also argued there was insufficient evidence of a “depraved 

mind” to sustain a conviction for second-degree murder. The trial court 

agreed that the evidence was insufficient to support a finding of 

premeditation and granted the judgment of acquittal for Morrison’s firstdegree murder conviction. The court then adjudicated Morrison guilty of 

second-degree murder and sentenced him to life in prison. 

Analysis

A. Morrison’s motion for a judgment of acquittal

Appellate courts will not reverse a conviction where it is supported by 

“competent substantial evidence.” Hobart v. State, 175 So. 3d 191, 199

(Fla. 2015). When determining the sufficiency of the evidence, “the 

question is whether, after viewing the evidence in the light most favorable 

to the State, a rational trier of fact could have found the existence of the 

elements of the crime beyond a reasonable doubt.” Id. (quoting Simmons 

v. State, 934 So. 2d 1100, 1111 (Fla. 2006)).

To sustain a conviction of second-degree murder, the State must prove:

(1) the victim is dead; (2) the death was caused by the criminal act of the 

defendant; and (3) there was an unlawful killing of the victim by an act 

imminently dangerous to another and demonstrating a depraved mind 

without regard for human life. Morales v. State, 251 So. 3d 167, 171-72 
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(Fla. 4th DCA 2018). An act is imminently dangerous and demonstrates 

a depraved mind if it is one that:

(1) a person of ordinary judgment would know is reasonably 

certain to kill or do serious bodily injury to another; and (2) is 

done from ill will, hatred, spite or an evil intent; and (3) is of 

such a nature that the act itself indicates an indifference to 

human life.

Id. at 172 (citations omitted). 

“This is not to say malice is limited in its meaning to hatred, ill will, and 

malevolence; rather, it denotes a wicked and corrupt disregard of the lives 

and safety of others . . . a failure to appreciate social duty.” Antoine v. 

State, 138 So. 3d 1064, 1073 (Fla. 4th DCA 2014) (internal quotations 

omitted) (citing Larsen v. State, 485 So. 2d 1372, 1374 (Fla. 1st DCA 

1986)). The distinction between second-degree murder and manslaughter 

is factually intensive and is “typically for resolution by a jury.” See Starks 

v. State, 223 So. 3d 1045, 1050 (Fla. 2d DCA 2017) (citing Larsen, 485 So. 

2d at 1373).

Morrison’s motion for a judgment of acquittal for second-degree murder 

was premised on the argument that his physical assault on the victim was 

not “done from ill will, hatred, spite or an evil intent.” There is no evidence 

that Morrison knew the victim before this attack, and the evidence 

indicates that his actions were heavily influenced by the flakka and 

alcohol. However, Morrison’s motion was properly denied, as voluntary 

intoxication is not a defense to the general intent crime of second-degree 

murder. See Gibbs v. State, 904 So. 2d 432, 437 (Fla. 4th DCA 2005) 

(citing Kiley v. State, 860 So. 2d 509, 510 n.1 (Fla. 4th DCA 2003)).

Gray v. State, 731 So. 2d 816 (Fla. 5th DCA 1999), is instructive. There, 

the defendant, “after allegedly ingesting drugs and alcohol, attempted to 

sexually assault a woman in a dressing room of a clothing store.” Id. at 

817-18. At trial, the defendant attempted to rely on a general insanity 

defense predicated on the situational effects of voluntary drug intoxication.

Id. at 818. The defense presented expert testimony that, at the time of the 

attack, the defendant did not know what he was doing, did not know the 

consequences of his actions, and did not know right from wrong. Id. The

trial court rejected this defense. In affirming that decision, our sister court 

explained that “the fact that the crime is committed because the intoxicant 

arouses passions, diminishes perceptions, releases inhibitions or clouds 

reason or judgment is not a defense.” Id. at 817. The defense of voluntary 

intoxication is not a defense to a general intent crime and only applies 
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where “one is so intoxicated that he cannot form a statutorily required 

specific intent. . . .” Id.1 Second-degree murder is a general intent crime. 

Gibbs, 904 So. 2d at 437; Jackson v. State, 699 So. 2d 306, 308 (Fla. 1st 

DCA 1997).

Here, the evidence viewed in the light most favorable to the State 

showed that Morrison brutally beat the victim without justification or 

excuse after becoming voluntarily intoxicated. The evidence also showed 

that Morrison was a heavy polysubstance abuser who had been using 

flakka for several months before this incident occurred. The State’s expert 

testified that Morrison was insane at the time of the beating but that the

insanity was a result of his voluntary consumption of flakka and sweet 

liquor earlier that day. This evidence is sufficient to support Morrison’s 

conviction for second-degree murder. 

B. The State’s Closing Argument

During closing argument, the prosecutor argued “[w]e’re asking you to 

find him guilty of first-degree murder because it’s premeditated murder, 

because that is what he did. Had that not been what he did, we wouldn’t 

have charged him that way.” Morrison argues that this comment was 

improper and necessitates a new trial. We agree that the comment was 

improper, as did the trial court when it sustained Morrison’s objection, but 

we do not agree that a new trial is warranted. 

As a preliminary matter, Morrison did not preserve the issue for review

because he never moved for a mistrial after the trial court sustained his 

objection. See Allen v. State, 662 So. 2d 323, 328 (Fla. 1995) (requiring 

contemporaneous objection and motion for mistrial to preserve allegedly 

improper prosecutorial comments for appellate review); Cole v. State, 866 

So. 2d 761, 763 (Fla. 1st DCA 2004) (explaining that counsel must move 

for a mistrial at some point before the end of the prosecutor’s closing 

argument to preserve error over inappropriate remarks to the jury).

Therefore, we review the prosecutor’s comment for fundamental error. 

Thomas v. State, 748 So. 2d 970, 985 n.10 (Fla. 1999). 

Morrison primarily relies on Brinson v. State, 153 So. 3d 972 (Fla. 5th 

DCA 2015), to support his contention that the prosecutor’s comment 

warrants a new trial. Brinson, however, is distinguishable. In Brinson, 

1 Voluntary intoxication was a defense to “specific intent” crimes under Florida 

common law. This defense was eliminated by the legislature in 1999. Lewis v. 

State, 817 So. 2d 933, 933 (Fla. 4th DCA 2002) (citing to section 775.051, Fla. 

Stat. (1999)).
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the prosecutor made an improper comment during opening statements

referencing the State’s charging decision. Id. at 975. As in the instant 

case, the comment implied that the prosecutor would not have brought 

charges if the defendant was innocent. See id. In both cases the defendant 

objected, and in both cases the objection was sustained. Id. Neither 

defendant, however, took further action. Id.

The Brinson court found that, although “[i]t was improper for the 

prosecutor to reference the State’s charging decision during opening 

statements because it implied that . . . it had already been determined that 

[the] defendant was guilty[, . . .] because Brinson made no request for 

further action from the court after his objection was sustained, these 

remarks alone do not warrant a new trial.” Id. (emphasis added). Brinson 

was ultimately granted a new trial, but that was based on “the cumulative 

effect of the prosecutor’s improper comments in both opening statements 

and closing arguments.” Id. at 980. The improper comments in Brinson, 

however, were numerous, whereas, here, only a single improper comment

occurred.2 This comment does not rise to the level of fundamental error 

warranting reversal.

Conclusion

No evidence in this case suggests that Morrison had a specific intent to 

fatally attack the elderly victim. However, the evidence does indicate that 

he “voluntarily intoxicated” himself with a combination of illegal and 

dangerous drugs, despite having been previously convicted for violent 

criminal offenses committed while under the influence of the same or 

similar intoxicants. The end result was the same as it would have been if 

Morrison had set out to deliberately murder a person. Here, an intentional 

wrongful action on the part of Morrison resulted in the death of the victim. 

There was no reversible error, and the judgment and sentence are 

affirmed.

Affirmed.

CIKLIN and GERBER, JJ., concur. 

2 Morrison argues that the prosecutor made an additional improper comment by 

comparing the voluntary consumption of drugs to a DUI case. This contention is 

without merit as the comment was not objected to at trial and fell within the wide 

latitude afforded advocates during closing argument. See Breedlove v. State, 413 

So. 2d 1, 8 (Fla. 1982). 
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* * *

Not final until disposition of timely filed motion for rehearing.