Boyd v. State, 88-1093

• Decision Date: 08 January 1991
• Docket Number: No. 88-1093,88-1093
• Citation: 578 So.2d 718,16 Fla. L. Weekly 155
• Parties: 16 Fla. L. Weekly 155 Jerome BOYD, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 718

578 So.2d 718 16 Fla. L. Weekly 155 Jerome BOYD, Appellant,
v.
The STATE of Florida, Appellee. No. 88-1093. District Court of Appeal of Florida,
Third District. Jan. 8, 1991.

Page 719

Eric M. Cohen, Coral Gables, for appellant.

Robert A. Butterworth, Atty. Gen., and Charles M. Fahlbusch, Asst. Atty. Gen., for appellee.

Before HUBBART, FERGUSON and COPE, JJ.

ON MOTION FOR REHEARING

FERGUSON, Judge.

Boyd was charged with numerous offenses stemming from a two-week crime spree which began two days before Christmas 1986 and ended with his arrest on January 6, 1987. All the charges were the subject of six informations--five covering

Page 720

incidents occurring on separate dates, and the sixth a recap of all the first five informations under a RICO charge.

The facts as alleged by information are as follows: On December 23, 1986, the defendant and an unidentified companion used a gun to deprive two women of their money and automobile. On January 1, 1987, Boyd, together with Calvin Washington and Curtis Jackson, robbed three persons at gunpoint. A car stolen on the morning of January 5th was used later that evening by Washington, Jackson, and an unidentified male to rob a woman of her jewelry at gunpoint. The next day, Boyd took a Cadillac from an elderly woman; two hours later, the Cadillac was used to take jewelry and money from an elderly couple in a parked car.

On that same evening, Boyd, Washington, and a third man, known only as Pee Wee, robbed another couple at gunpoint. Responding to a BOLO, detectives identified and moved in on the stolen Cadillac, then occupied by Boyd, Washington, and Jackson. When police officers ordered the passengers out, the driver, Boyd, accelerated the vehicle in their direction in an attempt to flee. Officer Michael O'Shea, who had to jump out of the way to safety, fired at the vehicle killing Washington who was a front-seat passenger. Boyd gave a statement implicating himself and Jackson in two of the robberies. Jackson gave a statement which implicated Boyd. Both men also gave statements implicating Washington and Pee Wee in some of the crimes.

Boyd was convicted of second-degree murder in connection with Washington's death. He was also convicted of several counts of robbery, attempted robbery, burglary, battery and racketeering. In the same trial, the defendant was acquitted of two counts of grand theft and aggravated battery on a police officer.

The defendant's pretrial motions to dismiss the RICO charge and to sever the offenses were denied. In this appeal we address only the denial of the pretrial motions, agreeing with the defendant that the State failed to prove a criminal enterprise--an essential element of the RICO charge--and that the joinder of the offenses for trial constituted prejudicial error.

THE RICO STATUTE

The Florida Racketeer Influenced and Corrupt Organization (RICO) Act, chapter 895, Florida Statutes (1989), is patterned after the federal RICO statute, 18 U.S.C.A. Secs. 1961-1968. Florida courts, therefore, have looked to the federal courts for guidance in interpreting and applying the Act. State v. Nishi, 521 So.2d 252 (Fla.3d DCA), rev. denied, 531 So.2d 1355 (Fla.1988); Banderas v. Banco Central del Ecuador, 461 So.2d 265 (Fla.3d DCA 1985).

The primary intent of Congress in passing the federal RICO Act was to prevent organized crime from infiltrating businesses and other legitimate economic enterprises. Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17, 26 (1983). The statute, however, reaches wholly criminal organizations. United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). Notwithstanding Congress's declared purpose to target organized crime, Turkette, 452 U.S. at 589, 101 S.Ct. at 2532 (quoting the statement of findings prefacing the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 923), there is no requirement under the statute that the prosecution prove that the defendants are connected with what has traditionally been known as "organized crime." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984). It is clear, however, that in enacting the RICO statute, Congress did not intend to use RICO to prosecute criminals who merely get together to commit sporadic acts of crime. See Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 105 S.Ct. 3292, 87 L.Ed.2d 346 (1985); United States v. Flynn, 852 F.2d 1045 (8th Cir.) (RICO does not apply to sporadic, temporary criminal alliance), cert. denied,

Page 721

488 U.S. 974, 109 S.Ct. 511, 102 L.Ed.2d 546 (1988).

As RICO was not intended to subject ordinary sporadic criminal activity to heightened punishment, United States v. Lemm, 680 F.2d 1193, 1198 (8th Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 960 (1983), the commission of the predicate act of racketeering provides only one of the three elements comprising a RICO violation. Unless it is shown that the individual not only (1) committed the designated crime, but also (2) associated with an enterprise and participated in the conduct of the enterprise's affairs through a (3) pattern of racketeering activity, a RICO conviction cannot stand. 18 U.S.C. Sec. 1962(c); Sedima, 473 U.S. 479, 105 S.Ct. 3292. Although the most recent focus of RICO jurisprudence has been on the pattern element, e.g., H.J. Inc. v...