
    401 A. 2d 41.
    State vs. Robert D. Smith.
    MAY 1, 1979.
    Present: Bevilacqua, C.J., Joslin, Kelleher, Doris and Weisberger, JJ.
   Joslin, J.

The defendant, Robert D. Smith, was tried before a jury in the Superior Court, convicted of first degree murder, and sentenced to life imprisonment. The case is here on his appeal.

Our decision in State v. McGehearty,_R.I._, 394 A.2d 1348 (1978) was announced subsequent to the trial of this case. The state concedes, however, that under Hankerson v. North Carolina, 432 U.S. 233, 97 S. Ct. 2339, 53 L. Ed. 2d 396 (1977), it was reversible error for the trial justice not to have instructed the jury, according to the rule later enunciated in McGehearty, that, once defendant had satisfied his burden of going forward with some evidence on the issue, it became the state’s burden to prove, beyond a reasonable doubt, that defendant was not so intoxicated as to be unable to harbor a specific intention to kill. Consequently, the state agrees that defendant is entitled to a new trial.

The defendant, however, is not satisfied with a new trial on an indictment that will permit him to be found guilty of first degree murder. Instead, he insists that the evidence at his trial will not support a finding that the premeditation required for a conviction of first degree murder “existed for more than a barely appreciable length of time before the killing” as mandated by State v. Fenik, 45 R.I. 309, 315, 212 A. 218, 221 (1923). Therefore, he argues that the trial justice erred in denying his motion for a judgment of acquittal of first degree murder, and that accordingly, at his new trial the jury should be precluded from returning a verdict of guilty of murder in the first degree.

We test that contention by viewing the evidence in the case and the inferences reasonably deducible therefrom in the same manner as was required of the trial justice when, at the close of all the evidence, he decided defendant’s motion for a direction of a judgment of acquittal. Thus, we examine the record in the light most favorable to the state in order to ascertain whether it is lacking in evidence of the requisite premeditation. E.g., State v. Distante, 118 R.I. 532, 536, 375 A.2d 212, 215 (1977); State v. Rose, 112 R.I. 402, 406, 311 A.2d 281, 283 (1973).

An extensive discussion of the evidence is unnecessary here. During the afternoon and early evening of November 3, 1974, defendant and victim were both at a barroom in Pawtucket. A verbal altercation took place between them, and it escalated to a pushing and shoving match. Sometime between 7 and 7:30 p.m., defendant said, “Let’s go outside and finish this matter.” The two of them left the barroom. Soon thereafter, Joseph DiPaolo, another patron of the bar, followed them. When he reached the street, where his automobile was parked, he found the pair still skirmishing.

A short time later, defendant and the victim, but not DiPaolo, adjourned to an unlighted parking lot across the street from the barroom. There was no testimony about what then took place, but after the two had been there for about 10 minutes, defendant signaled DiPaolo to drive his automobile to the parking lot. DiPaolo complied and defendant placed the victim in the vehicle. The victim was bleeding from his face and not moving, but DiPaolo was unsure whether he was dead or alive.

The defendant then told DiPaolo to drive the “f n car” and they set out for Haines Park in Barrington, reaching that destination in about 20 minutes. The defendant carried the victim from the car and was gone for 5 or 6 minutes. DiPaolo could not see what was happening, but he heard defendant yelling. The defendant finally returned alone to the automobile, and he and DiPaolo drove away. The victim’s body was found in the park at about 11:15 that night.

The medical testimony at the trial attributed death to extensive injuries inflicted by blunt force and approximated the time of death as between 6 and 10 p.m. The defendant seizes on the examiner’s uncertainty about the time of death and assumes that the victim was dead when he was placed in the DiPaolo automobile. With that assumption as his starting point, he insists that this case involved nothing more than a heated argument between himself and the victim, exacerbated by the consumption of alcoholic beverages, that unfortunately led to a fatal enounter in the parking lot. He further contends, however, the the evidence that brutal injuries were inflicted during the 10 minutes he and the victim were in the parking lot, absent a showing of a prior relationship indicating a motive for killing or a preconceived plan to kill, cannot support a finding of the premeditation and deliberation required by Fenik for first degree murder.

The defendant’s argument, however, is premised on evidence that is favorable to him. But when we review a denial of a motion for direction of a judgment of acquittal, we must assess the evidence most favorable to the state. Viewed in that light, the evidence suggests that death could have occurred in the Barrington park and not in the Pawtucket parking lot. Indeed, defendant’s own handwritten confession, which was admitted into evidence at the trial, states:

“I drove somewhere near [BJumford, near the tracks don’t know where or if he got to the stone where the cross was, in the cemetery, and probably won’t ever know to this day. He asked me to smack him, and told me he didn’t want to live anymore, so he was still alive, and wanted so I smacked him, I guess I kicked him out.”

The confession, considered in conjunction with the medical evidence, could support a jury finding that the victim was alive when the trio arrived at the Barrington park, that defendant had adequate time during the 20 minute trip from Pawtucket to develop a conscious design and intent to kill the victim, and that blows struck at the park were a contributing cause of death.

In sum, the trial justice did not err in denying the defendant’s motion for a direction of a judgment of acquittal on the charge of first degree murder.

The defendant’s appeal is sustained, the judgment appealed from is reversed, and the case is remanded to the Superior Court for a new trial at which the jury shall not be precluded from considering whether the defendant is guilty of murder in the first degree by reason of any ruling of the trial justice at his original trial.

Dennis J. Roberts II, Attorney General, Nancy Marks Rahmes, Special Assistant Attorney General, for plaintiff.

Hanson Curran <b Parks, Dennis J. McCarten, for defendant.

Dennis J. Roberts II, Attorney General, Nancy Marks Rahmes, Special Assistant Attorney General, John S. Foley, Special Assistant Attorney General, for plaintiff.

Abedon, Stanzler, Biener, Skolnik <b Lipsey, Edward N. Beiser, for defendant. 
      
       The medical examiner testified and described her external examination of the victim’s body as follows:
      “There were contusions of the face; that is, bruises of the face, predominantly along the right aspect, involving the right eye, sometimes called black and blue eye. Bruising of the eye, and adjacent cheek and jaw line. There was a laceration of the right eyebrow at the lateral aspect, a splitting of the skin. A laceration is a splitting injury of the skin to the bone. There were fractures of the facial bones on the right; that is, the maxillary sinus bones were fractured, depressed or pushed in. There was an open, jagged laceration of the nose at about where I'm pointing with my finger, with bruises of the nose and fracturing of the bones. There was a contusion of the — or bruise — of the middle of the forehead. There was a splitting or laceration of the upper left lip, splitting of the skin of the right upper and lower lip with bruising and splitting inside the lip with swelling. There was a laceration or skin splitting of the chin in about the area I’m pointing with my finger. There are bruises about the ear with several skin splittings of the ear, lacerations of the ear, with a portion of the ear lobe split loose, hanging loose, and splitting of the back of the ear as well. There are bruisings of the side of the — right side of the neck as well as some bruising of the left neck, extending into the mid line. There is a somewhat patterned bruise or contusion of the left posterior lower scalp. There are two linea streaks that are curved. When an instrument of some kind strikes the skin, it pushes blood from the center to the sides and forms a streak, and this was about %ths of an inch in greatest width at the left back of the scalp. Then there is another bruise of the right lower scalp at the back near the mid line and other bruises of the left scalp, covering an area of about five and a half by two and a fourth inches of the left posterior scalp. There was a faint bluish bruise of the right lower chest in about the area I’m pointing with my finger. There was a bruise across the right shoulder near the junction with the neck. There was a gray bruise over the left clavicular area in about the area I’m pointing with my finger. There were two small blue bruises of the knees. A faint blue bruise of the right upper leg near the junction with the body.”
      Her internal examination of the body revealed extensive hemorrhaging including a hematoma pocket in the posterior lower scalp area. The lungs were filled with blood; the abdomen containing almost one pint of free blood. His liver was ruptured.
     
      
       Other evidence that might support this finding include a taped interview of the defendant by state police detectives, testimony by one of those detectives regarding various statements made by the defendant, testimony by DiPaolo that the defendant punched the victim during the ride to Barrington, and testimony of a prison acquaintance of defendant’s.
     