A man sentenced to hang for murdering his five-year-old daughter awaits the verdict of an appeals court to spare his life.

A jury last December overwhelmingly found Damon Quincy DeRoza guilty of the premeditated murder of Lynae Brown on November 20, 1996.

But yesterday in the Court of Appeal, lawyer Mark Pettingill argued the jury was not properly instructed about alternate verdicts -- calling Chief Justice Austin Ward's instructions "wrong, unfair, and inadequate''.

Mr. Pettingill suggested while the killing of Lynae might have been premeditated, it did not rule out the fact that DeRoza may have been insane.

And he said the judge never told the jury they could find DeRoza guilty of premeditation and "diminished responsibility'', rather than murder -- which could have resulted in the lesser conviction of manslaughter.

"An abnormal mind is as capable of forming an intent to kill as a normal mind,'' he argued.

During the trial, defence witness Dr. Vanessa Crawford had claimed DeRoza had a history of mental illness, including schizophrenia, and received a prescription just four days before he killed his daughter.

She also explained how he continued to display psychiatric abnormalities after his arrest, including one occasion where he pulled out six of his own teeth.

Appeals Court President Sir James Astwood questioned why the charge of premeditated murder was entered in the first place.

"More is required than an intent to kill in the case of premeditated murder,'' he observed.

"Where is the planning, where is the conspiracy? This causes me a great deal of concern, because they're trying every murder case in Bermuda as premeditated...'' Mr. Pettingill also argued that highly prejudicial evidence was used in the Crown's opening remarks: "The evidence may state that he held her underwater with a tree branch, but once you get into visuals -- when you march a 20-foot-long pole into the courtroom -- it becomes prejudicial.'' Prosecution witnesses had testified about how DeRoza, 21, had picked up his daughter Lynae from her grandparents on the pretext of going to buy candy.

But he then drove to Harbour Road, Warwick where he stripped the child and threw her in the sea.

He admitted he tried to drown her with a tree branch, and eventually jumped into the water and stood on her neck until bubbles stopped coming up.

Lynae's naked body was found shortly afterward by two fishermen. Despite attempts to revive her she was pronounced dead an hour later.

COURT OF APPEAL COA