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A court says prosecutors didn't prove the killing was premeditated.
By WILLIAM R. LEVESQUE
© St. Petersburg Times, published February 15, 2001
LARGO -- An appeals court on Wednesday threw out the first-degree murder conviction of a Largo man who shot and killed a Tampa seaman after an argument.
Thomas D. Burttram was convicted by a jury last year of shooting to death Robert Edgar Farrell with a .357-caliber Magnum. But the 2nd District Court of Appeal ruled that Pinellas prosecutors failed to adequately prove that the shooting was premeditated.
So the court sent the case back to Pinellas-Pasco Circuit Judge Mark Shames and ordered him to impose a conviction for the lesser charge of second-degree murder.
Burttram, 41, who was sentenced to life in prison without parole for his conviction, faces about 25 years to life when sentenced on the reduced charge later this year.
Farrell, 21, was visiting Pinellas and hanging out with friends in December 1998. He was drinking screwdrivers and lamenting the Christmas shopping he had yet to complete, when he decided to stay at his stepbrother's home rather than drive home.
But at his stepbrother's home at the Westgate Mobile Home Park in Largo, Farrell bumped into Burttram, a man who police said disliked him intensely.
The two men had argued at a barbecue a few weeks before. This time, they began arguing again. Burttram, police said, left but soon returned with a gun.
He pointed it at Farrell but did not fire. Police said he put the gun down and things cooled off. But when Farrell went to a front bedroom, Burttram followed with the gun.
Burttram, who defense attorneys say was highly intoxicated, shot Farrell once in the face, killing him instantly.
There was little question that Burttram shot the victim. In fact, when police arrived, Burttram told them, "I did it. I killed him."
But the 2nd DCA noted that Farrell's stepbrother, who was in another room and did not witness the shooting, said he thought things had cooled down and that Burttram was apologizing for pointing the gun at Farrell.
Also, Burttram later told police that the victim was "getting in his face" and shoving him right before the shooting.
These facts point to a lack of premediation, defense lawyers said.
"We find that the evidence presented by (prosecutors) was consistent with both premeditated murder and an unlawful killing without premeditation," the appeals court said.
Given the uncertainty about whether premeditation existed, the court ruled, a conviction for first-degree murder could not stand.
"There were a lot of gaps in proving a case for first-degree murder," said Assistant Public Defender Dudley Clapp, who represented Burttram. "It's a very tragic case, but we're happy with the court's decision."
Prosecutors with knowledge of the case could not be reached for comment.