Burns v. State, 1D13–0033.

• Citation: 170 So.3d 90
• Decision Date: 22 June 2015
• Docket Number: No. 1D13–0033.,1D13–0033.
• Parties: Robert BURNS, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

170 So.3d 90

Robert BURNS, Appellant

v.STATE of Florida, Appellee.

No. 1D13–0033.

District Court of Appeal of Florida, First District.

June 22, 2015.

Rehearing Denied Aug. 7, 2015.

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.

Opinion

BENTON, J.

On direct appeal, Robert Burns contends his convictions for carjacking, in violation of section 812.133(2)(b), Florida Statutes (2011), and attempted voluntary manslaughter, in violation of sections 782.07(1) and 777.04, Florida Statutes (2011), should be reversed on grounds jury instructions, which were not objected to below, were erroneous.¹ Persuaded the erroneous instructions did not mislead the jury on anything genuinely in issue, we affirm.

The jury heard evidence that Gary Canada and the appellant collected scrap metal on the day in question, and sold it at a recycling center, before arriving at Mr. Canada's home. There Mr. Canada locked his truck, he testified, then placed the keys to the truck on a computer desk, once they were both inside. He told the jury he refused, when appellant asked to use his computer, and both men went back outside. Mr. Canada testified he then went into his “shop” some distance from the residence, not knowing what appellant did at that point, but came back from the shop when he heard the truck make a chirping sound, as if someone had locked or unlocked it electronically. He discovered that the back door of his house was open, that a briefcase had been removed from his truck, that its contents had been dumped on the ground, and that, all according to his uncontroverted testimony, over $1,700 was missing.

Mr. Canada further testified: Once inside the home, he noticed his keys were not on the computer desk, and turned to go outside, when he saw appellant standing between him and the door. He threatened to call the police if the appellant did not surrender the keys, whereupon, saying, “I'm going to kill you,” the appellant attacked him. In the ensuing struggle Mr. Canada deployed a Taser and Mr. Burns fled, at which point Mr. Canada called 911. A law enforcement officer dispatched as a result saw Mr. Burns driving Mr. Canada's truck, and apprehended him after he crashed the vehicle.

Mr. Burns was charged with, and found guilty at trial of, among other things,² carjacking in violation of section 812.133, Florida Statutes (2011), which provides, in part:

(1) “Carjacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

....

(3)(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

In moving for judgment of acquittal on the charge of carjacking, defense counsel argued that the truck “was, if anything, taken after the fact as an escape.” But this argument was not made to the jury, which was instructed:

[T]o prove the crime of carjacking, the State must prove the following three elements beyond a reasonable doubt. No. 1, Robert Burns took a motor vehicle from the person or custody of Gary Canada. Two, force, violence, assault, or putting in fear was used in the course of the taking. Three, the taking was with the intent to-excuse me. The taking was with the intent to temporarily or permanently deprive Gary Canada of his right to a motor vehicle or any benefit from it, or to appropriate a motor vehicle of Gary Canada to his own use or to the use of any person not entitled to it.

“In the course of the taking” means that the act occurred before, during, or after the taking of the motor vehicle, and that the act and the taking of the motor vehicle constitute a continuous series of acts or events.

Despite trial counsel's failure to object,³ Mr. Burns argues he is entitled to a new trial because the trial court failed to instruct the jury that taking Mr. Canada's vehicle would not be carjacking if taking the truck was an afterthought, unrelated to the force used in perpetrating the attempted manslaughter.

When moving for judgment of acquittal in the trial court, defense counsel argued to the trial judge that taking the truck was not proven to be the motive for the use of force. Inexplicably, however, defense counsel neither argued to the jury another motive for the use of force nor requested any jury instruction requiring the jury, in order to convict on the carjacking count, to find appellant's use of force was motivated, at least in part, by a desire for possession of the truck. Defense counsel's argument with regard to the carjacking charge instead was:

As to the carjacking charge—and the Judge will instruct you on the law. But the important thing is it is the taking of a vehicle by force. And when you look at those instructions, and you read those instructions—they are read to you, pay close attention to them. It doesn't say taking someone's keys by—you know, and then taking their vehicle. It says, taking a vehicle by force.

The picture that comes to mind is someone pulling somebody over the road, pulling them out of their car, and stealing their car. Or stealing their car in a parking lot, yanking them out, using force, stealing their car. That's common sense. The State says, don't leave your common use. Use your common sense. What does your common sense tell you if that's a carjacking or not?

In rebuttal to defense counsel's closing argument, the prosecutor argued:

Now, the carjacking, Mr. Eagen says he didn't yank Mr. Canada out of the truck. But Mr. Canada was in his house. That would be impossible. Mr. Canada is not driving down the street getting yanked out of the truck. That's not this case.

Mr. Burns is charged with taking a motor vehicle from a person or custody of Mr. Canada. This is not a push-start vehicle. You have to have keys. He takes the truck by taking the keys. By force, violence, assault, or putting in fear.

As a factual matter, the testimony was that the appellant had already taken the keys and had them in his possession when the affray began.

But issue was joined, not on whether force was employed to acquire or retain the truck keys, but on whether employing force to effect possession of the truck keys before driving off amounted to carjacking. Defense counsel's argument implied that the real issue for the jury was whether taking vehicle keys by force constituted taking the truck by use of force. As a matter of law, it clearly does. See Young v. State, 141 So.3d 161, 173 (Fla.2013) ( “We find that the putting in fear of the victim in order to take the victim's keys before walking outside and driving away in the victim's car constitutes a continuous series of events, [so] as to classify the fear as being within the course of taking the vehicle, within the meaning of section 812.133(3)(b).”); Baptiste–Jean v. State, 979 So.2d 1091, 1092 (Fla. 3d DCA 2008) (affirming conviction of carjacking when the defendant forcibly took the keys to the car because “while the violence involved in taking the keys may have indeed occurred ‘prior to’ stealing the car, it took place within a logically interrelated ‘continuous series of acts or events,’ and thus ‘in the course of the taking’ of the vehicle itself” (citation omitted)); Law v. State, 824 So.2d 1055, 1056 (Fla. 5th DCA 2002) (affirming conviction of armed carjacking when the defendant ordered the victim inside the house at gunpoint, took the victim's car keys while inside the house, then fled with the victim's vehicle); James v. State, 745 So.2d 1141, 1142–43 (Fla. 1st DCA 1999) (affirming conviction of carjacking where the defendant took the car keys from the owner by force, violence, assault or putting the owner in fear, even though the defendant was unable to start the vehicle and ultimately threw the car keys back at the vehicle owner).

Where obtaining property is not a motive for using force, taking property after a (murder or other) use of force does not transform mere theft into robbery or carjacking. See Beasley v. State, 774 So.2d 649, 662 (Fla.2000) (“[I]n those cases where the record discloses that, in committing the murder, the defendant was apparently motivated by some reason other than a desire to obtain the stolen valuable, a conviction for robbery (or the robbery aggravator) will not be upheld.”); Davis v. State, 922 So.2d 438, 443–44 (Fla. 5th DCA 2006) (holding the trial court abused its discretion by denying request that the jury be instructed that “[i]f the evidence shows that the taking of property occurred as an afterthought to the use of force or violence which resulted in the death of the victim, the taking does not constitute robbery, but may still constitute theft”); Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002) (“If the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.”).

Carjacking is a species of robbery, see Cruller v. State, 808 So.2d 201, 204 (Fla.2002) (“The language of the carjacking statute mirrors the language of the robbery statute with one exception—carjacking pertains only to motor vehicles whereas robbery pertains to all property. The carjacking statute is a very specific subset of the more general robbery statute.”), and the same rule applies. See Mahn v. State, 714 So.2d 391, 397 (Fla.1998) (concluding robbery was not proven beyond a reasonable doubt when evidence established the homicides did not occur because the defendant wanted to take a car but instead that he wanted the car to flee the scene of the murders).

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