341 So.2d 765 (Fla. 1976), 45450, Adams v. State

Docket Nº:45450.
Citation:341 So.2d 765
Party Name:James ADAMS, Appellant, v. STATE of Florida, Appellee.
Attorney:Richard L. Jorandby, Public Defender; Kenneth J. Scherer, Chief; and Lois J. Frankel and Craig S. Barnard, Assistant Public Defenders, for Appellant.
Case Date:December 16, 1976
Court:Supreme Court of Florida
 
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Page 765

341 So.2d 765 (Fla. 1976)

James ADAMS, Appellant,

v.

STATE of Florida, Appellee.

No. 45450.

Supreme Court of Florida.

December 16, 1976

Rehearing Denied Feb. 14, 1977.

Page 766

Richard L. Jorandby, Public Defender, Kenneth J. Scherer, Chief Asst. Public Defender, and Lois J. Frankel and Craig S. Barnard, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., and Michael M. Corin and George R. Georgieff, Asst. Attys. Gen., for appellee.

PER CURIAM.

This cause is before us on direct appeal from a first degree murder conviction and sentence of death imposed by the trial judge. The jury recommended the death sentence. We have jurisdiction. 1

On November 12, 1973, at approximately 10:30 a.m., the victim Edgar Brown was brutally beaten with a fire poker during the course of a robbery in his home. Brown was found shortly thereafter, fatally injured and incoherent. He died the next day.

Appellant James Adams was convicted for the murder of Edgar Brown. The evidence reflects that a witness saw Adams and Brown driving in their respective cars toward Brown's home within a few minutes of each other just before the probable time of the crime. Other witnesses located appellant's automobile at the victim's home and driving away from it, with Adams at the wheel, immediately before the wounded Brown was found. Later that day Adams left his car, a brown Rambler, with Sammy Knight, to be painted a light green. When appellant was arrested, he possessed certain money stained with blood of a type matching that of the victim, but not of himself. The denominations of the currency corresponded to the denominations Brown was known to have carried before the attack on his person. A search of Adams' car trunk upon his arrest produced jewelry taken from Brown's home and clothing stained with blood of the victim's type.

At trial Adams denied his presence at Brown's house. Adams' testimony notwithstanding, the jury found him guilty of murder in the first degree and recommended the death penalty. The trial court found that the aggravating circumstances far outweighed any mitigating ones, and on March 15, 1974, sentenced James Adams to death for the killing of Edgar Brown during the perpetration of a robbery.

The principal issue for determination concerns the trial court's instruction on second degree murder. At the conference on instructions, it was noted that the definitions of murder had been revised by the 1972 Legislature. The murder provisions read as follows:

'782.04 Murder.--

'(1)(a) The unlawful killing of a human being, when perpetrated from a premediated design to effect the death of

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the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of seventeen years when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.082.

'(b) In all cases under this section, the procedure set forth in § 921.141 shall be followed in order to determine sentence of death or life imprisonment.

'(2) When perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.

'(3) When perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, it shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.'

Specific instructions were not discussed at the conference. In actually charging the jury on second degree murder, the court used language contained in proposed instructions drafted by the Standard Jury Instructions Committee to comply with the new death penalty statute. These instructions had not been submitted to or approved by this Court. The instruction on second degree murder given by the trial judge was as follows:

'Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premedicated design to effect the death of any particular individual, And not done in the perpetration of or in an attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb.' (Emphasis added)

After retiring to deliberate, the jury requested re-instruction on the degrees of murder. At this point, both the state and appellant moved that the instructions on second degree murder be modified to 'more accurately track the statute.' The court denied the motions and re-read to the jury all of the original instructions.

Appellant contends that this instruction constitutes prejudicial error, asserting that the wording of the instructions on second the third degree murder bound the jury to a verdict of murder in the first degree if the jury found that Brown was killed as a part of a robbery. This limitation of the jury's options is not error. On the contrary, that result is the very goal of the first degree felony murder provision specified in Section 782.04(1)(a), Florida Statutes (1973).

In its most basic form, the historic felony murder rule mechanically defines as murder any homicide committed while perpetrating or attempting a felony. It stands...

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