This section contains the nature of the case and procedural background.

David knocked on the door of D's girlfriend's townhouse. D opened the door and greeted David with an aggressive handshake as if trying to overpower him. The two struggled for a moment, then quit. As they walked into the house, D pressed a gun into David's ribs and said, 'I could have took you out already.' Nothing more happened between them. About a month later, D walked out of the townhouse and saw David's brother walking towards him. David and his brother looked alike. D went up to the brother and shook hands with him, and greeted him, and then, for no apparent reason, pulled out a gun and shot him three times, killing him. D paused between the second and third shots. There were several witnesses. As D walked away, he pointed the gun at a girl and said, 'Later, Vicki.' D said to one witness: 'He started it. He deserves it.' (The victim had done nothing.) D said to another witness: 'He showed me a gun. I gave him a bullet.' (The victim had no gun.) D appeared to be under the influence of alcohol and methamphetamine at the time. It was a senseless killing. The instruction given in Appellant's case was as follows: 'Premeditation' means the defendant's knowledge that he will kill another person existed before the killing long enough to permit reflection. However, the time for reflection must be longer than the time required merely to form the knowledge that conduct will cause death. It may be as instantaneous as successive thoughts in the mind, and it may be proven by circumstantial evidence. It is this period of reflection, regardless of its length, which distinguishes first-degree murder from second-degree murder. D was found guilty of first-degree murder with premeditation. D appealed claiming that the jury instruction on premeditation 'lessened the State's burden of proving premeditation.'

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