Doy James CHRISTIAN, Appellant, v. STATE of Florida, Appellee, 550 So. 2d 450

PER CURIAM. Doy Christian appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction, but vacate the sentence and remand for the imposition of a life sentence in accordance with the jury’s recommendation. On April 12, 1987, Christian and the victim of this crime, another inmate at Florida State Prison named Alfred Moore, were playing cards. Christian was winning. Moore wagered two bars of soap and then attempted to cheat in an effort to regain what he had lost. Christian, however, caught Moore and took the two bars of soap.

Under the inmate “code,” anyone caught cheating at cards lost his entire wager. Later that day, Moore was still harboring an insane hatred of Christian over the incident. Sneaking up behind Christian, Moore brandished a forty-pound curling iron used by weight lifters and smashed it into Christian’s head, knocking him unconscious immediately. Moore would have continued pounding Christian had another inmate not intervened. Even then, Moore begged the other inmate to release him so he could kill Christian. Christian suffered a deep head wound, requiring stitches and two days of observation.

Moore’s violence toward Christian did not end with the attack. For the next few weeks, Moore mounted a constant barrage of threats at Christian and threatened to kill Christian’s parents when he was released from prison. He threatened to inflict further injury on Christian, promised he would kill Christian sooner or later, and made repeated suggestions that Christian would be forced to become his homosexual object. These threats continued up until the day of Moore’s death. Three weeks after Moore’s initial attack on Christian, Christian took matters into his own hands.

When Moore was being escorted in handcuffs through the prison by two unarmed guards, Christian managed to shove the guards aside and attack Moore with a knife that Christian previously had hidden. Christian then pushed Moore off a third-floor deck. Moore died of multiple stab wounds and blunt trauma head injuries. A jury convicted Christian of first-degree murder and recommended a sentence of life imprisonment. However, the trial judge found four aggravating factors and none in mitigation and sentenced Christian to rleath.

In this appeal, Christian first argues that the trial court erred in excluding testimony tending to prove he lacked the mental ability to form specific intent. Specifically, defense counsel had attempted to introduce testimony by several inmates that Christian's mental condition changed following Moore’s attack, possibly as a result of head injuries. This argument essentially is in the vein of “diminished capacity,” a defense recently rejected in Florida. Chestnut v. State, 538 So.2d 820 (Fla.1989). Accordingly, the trial court’s ruling was proper on this issue.

After examining the arguments of counsel and conducting an independent review of the record, we find that there was sufficient evidence to support Christian’s conviction, which we affirm. As to the penalty, Christian first argues that the trial court erred in finding that the homicide “was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” § 921.141(5)(i), Fla-Stat. (1987). Christian contends that even if his actions demonstrated calculation, they nevertheless were based on at least a “pretense of moral or legal justification.” In Cannady v.

State, 427 So.2d 723 (Fla.1983), this Court addressed the issue of what constitutes a “pretense” of moral or legal justification. We found that Cannady had such a pretense because, during his confessions, he repeatedly stated that he never intended to harm the victim. The evidence corroborated these statements, since it showed that Cannady had shot the victim only after the victim jumped at him. There was no evidence to disprove these contentions. Similarly, in Banda v. State, 536 So.2d 221 (Fla.1988), cert. denied, — U.S.-, 109 S.Ct. 1548, 103 L.Ed.2d 852 (1989), we also found a pretense of justification.

There, we were swayed by evidence of the victim’s violent nature and apparent ability to harm Banda, which caused a plausible fear in Banda that the victim would try to kill him. We then concluded that a “pretense” of moral or legal justification could consist of any “colorable claim ... that [the] murder was motivated out of self-defense, albeit in a form clearly insufficient to reduce the degree of the crime.” Id. at 225.

On the other hand, this Court has upheld a finding of no pretense of justification in a prison killing when the victim was attacked by surprise and repeatedly stabbed, when there was no evidence the victim had engaged in prior threatening acts. Williamson v. State, 511 So.2d 289 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). In the present case, we find ample evidence showing that Christian had at least a “pretense” of moral or legal justification.

As in Banda, this record discloses at least a colorable claim that the murder “was motivated out of self-defense,” although in a form legally insufficient to serve as a defense to the crime. Indeed, this record is replete with unrebutted evidence of the victim’s threats of violence to Christian and his apparent inclination to fulfill them.

This is corroborated by the fact that during his incarceration in Palm Beach County prior to his transfer to Florida State Prison, Moore had engaged in more than a hundred incidents that included several ar-sons, attacks on nineteen deputy sheriffs and a nurse, a suicide attempt, and several attempted escapes. Christian’s attack on Moore was preceded by three weeks of constant harassment and threats. There was expert medical testimony that Moore’s actions against Christian effected a psychological change in Christian. Prior to the battery by Moore, he was friendly and outgoing.

Subsequent to it he was withdrawn and brooding. During the commission of the homicide fellow prisoners described him as being in a daze, or acting as though he was out of it. While this does not negate his guilt, it is a permissible additional factor for the jury to consider when making its recommendation. Moore’s hatred of Christian had begun with a homicidal attack that would have succeeded had other inmates not intervened. The extreme behavior of Moore is only underscored by the fact that Moore decided to kill defendant over the loss of two bars of soap in a wager.

We find the present facts establish a “pretense” of moral and legal justification more strongly than those in Banda. Accordingly, the trial court erred in finding in aggravation that the murder was cold, calculated, and premeditated and without pretense of legal or moral justification. Second, Christian argues that sufficient mitigating evidence existed to support the jury’s recommendation, notwithstanding the judge’s finding to the contrary. We agree. Certainly the facts of the murder fully support a conviction of first-degree murder.

But the facts just recited, particularly those contained in the prison’s own records, bear out and support the jury’s recommendation of life in this instance. Moore was a violent man who had attacked Christian in a homicidal rage and had continued to make threats up to the time Christian killed Moore. We cannot say that a jury would be unreasonable in weighing this evidence in mitigation and concluding that death was not the appropriate penalty. Accordingly, we vacate the sentence of death and remand for imposition of life imprisonment under Tedder v.

State, 322 So.2d 908 (Fla.1975), where we stated: In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. Id. at 910. It is so ordered. EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. McDONALD, J., dissents with an opinion.

Committed by person under sentence of imprisonment; previous conviction of violent felony; heinous, atrocious, or cruel; and cold, calculated, and premeditated with no pretense of moral or legal justification. § 921.141(5)(a), (b), (h), (i), Fla.Stat. (1987).