Grinage v. State, 93-1583

• Citation: 641 So.2d 1362
• Decision Date: 19 August 1994
• Docket Number: No. 93-1583,93-1583
• Parties: 19 Fla. L. Weekly D1763 Harold Leonard GRINAGE, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1362

641 So.2d 1362

19 Fla. L. Weekly D1763

Harold Leonard GRINAGE, Appellant, v. STATE of Florida, Appellee.

No. 93-1583.

District Court of Appeal of Florida,

Fifth District.

Aug. 19, 1994.

James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Wesley Heidt, Asst. Atty. Gen., Daytona Beach, for appellee.

HARRIS, Chief Judge.

Harold Leonard Grinage (Grinage) appeals his judgment and sentence for "attempted first degree felony murder of a law enforcement officer" and attempted robbery with a deadly weapon. We reverse his conviction on the attempted murder charge and affirm his conviction for attempted robbery, but remand for resentencing on that charge since the score sheet will dramatically change.

Deputy Boaz, the State's primary witness, testified that he had arranged to make an undercover purchase of cocaine from Grinage in a shopping center parking lot. Boaz said he was sitting alone in his car when Grinage got into the car from the passenger side. Grinage asked to see the money, and Boaz complied. Grinage, instead of producing any cocaine, suddenly pulled a knife and Boaz was "stabbed" in the hand "when I caught the knife the first time." Boaz suffered a hand would before Grinage was subdued by the backup team.

Grinage, who admitted the attempted armed robbery, maintained that he had never tried to kill Boaz. He claimed that he pulled the knife out to scare Boaz into giving him the cash, but stated that he never held the knife to Boaz's throat or thrust it towards his chest. It seems clear that Grinage did not know Boaz was a policeman.

Grinage moved for a judgment of acquittal and, although the trial judge observed that, "The physical evidence, such as it was, more closely matched [Grinage's] version of the events," she concluded the evidence was adequate to go to the jury. And even though substantial evidence impeaching Boaz' credibility, including testimony from his own supervisor, was offered, the jury convicted.

Several issues are raised on appeal, only one of which warrants discussion. Grinage made the argument that the jury instruction on "attempted first degree felony murder of a law enforcement officer" ¹ was inadequate Furthermore, the verdict is contrary to the law in that the jury instructions given as to count one, incorporating the State's proposed jury instruction number one, advised the jury that the State did not have to prove the Defendant had a premeditated design or intent to kill, nor did the State have to prove that the Defendant knew that Kelly Boaz was a law enforcement officer. The Defendant would submit that the jury was then left with the legal impression that all they had to do was find that the Defendant, Harold Grinage, did "some act" during the perpetration or attempted perpetration of a robbery in order to be found guilty of Attempted First Degree Felony Murder of a Law Enforcement Officer, "some act," being undefined, vague, overbroad and ambiguous, thus leaving the jury to speculate and conjecture.

We agree that the instructions given below were inadequate and require reversal. We further hold that upon retrial, merely giving the newly approved instructions (instructions that still omit the requirement of intent and the requirement of knowledge of the status of the victim) will not be sufficient to justify the conviction for unknowingly attempting to murder a police officer engaged in the performance of his duty.

Grinage urges, and we agree, that before he can be convicted of attempting to murder a police officer engaged in the lawful performance of his duty, the State must allege and prove that he knew his victim was a police officer. The State argues, however, that since section 784.07(3) is silent as to the requirement of mens rea, then the defendant's knowledge of the victim's status is immaterial. Admittedly, this was basically the holding in Carpentier v. State, 587 So.2d 1355 (Fla. 1st DCA 1991).

Further, the State's position on statutory silence is consistent with State v. Medlin, 273 So.2d 394, 396 (Fla.1973);

The Florida cases set out the rule that where a statute denounces the doing of an act as criminal without specifically requiring criminal intent, it is not necessary for the State to prove that the commission of such act was accompanied by criminal intent.

Medlin relied on La Russa v. State, 142 Fla. 504, 509, 196 So. 302, 304 (1940), which held:

It is well settled that as a general rule, acts prohibited by statute (statutory as distinguished from common law crimes) need not be accompanied by a criminal intent, unless such intent be specifically required by the statute itself, as the doing of the act furnishes such intent. ² However, we find that section 784.07(3) is not silent as to the requirement of mens rea.

Section 784.07(3) is a subsection of a section entitled "Assault or battery of law enforcement officers ...; reclassification of offenses." The purpose of this section is to enhance the penalty for certain offenses against law enforcement officers (and other designated officers) when such offenses are committed while the officers are engaged in their official duties. In subsection (2), the statute increases the penalties for assault, battery, aggravated assault and aggravated battery against such officer if the defendant knows of his or her status as an officer.

While the "knowingly committing" language is not repeated in subsection (3), it is replaced by the legally equivalent word "attempted." As Justice Overton observed in his dissenting opinion in Amlotte v. State, 456 So.2d 448, 450 (Fla.1984), "A conviction for the offense of attempt has always required proof of the intent to commit the underlying crime." Here the underlying crime is "the murder of a police officer engaged in the lawful performance of his duty." How could Grinage have intended to murder (felony or otherwise) a "law enforcement officer ... engaged in the lawful performance of his duty," if he did not know that Boaz was, in fact, a police officer? We agree that the court erred in instructing the jury that the State was not required to prove such knowledge.

Had the State charged Grinage with the offense of attempted murder under section 784.07(3), ³ intent to commit the murder and knowledge that the victim was a police officer would, we think, be necessary elements. The State urges that it can avoid proving these elements by merely alleging that the attempted murder of a police officer engaged in the performance of his duty took place during a robbery and citing the felony murder statute.

Admittedly, the supreme court majority in Amlotte held that attempted felony murder is recognized in Florida. ⁴ But the supreme court has not yet determined that the concept of felony murder can carry not only the offense of attempted murder but will also justify a conviction for the unknowing specific attempt to murder a police officer engaged in the lawful performance of his duty. That is the issue before us. In Fleming v. State, 374 So.2d 954 (Fla.1979), the supreme court held that the accidental shooting of a known police officer justified a plea to attempted felony murder because the attempt was committed during a felony and, therefore, premeditation was presumed. But to go further and presume that because the attempt was made during the commission of an attempted robbery of an undercover officer in a sting operation, the defendant will be presumed not only to have intended a killing but also to know that the undercover agent was a police officer is stacking presumption on top of presumption.

We hold that section 782.04(1)(a)2 is not the proper vehicle for charging a section 784.07(3) attempted murder of a law enforcement officer engaged in the lawful performance of his duty. Because it may be argued that Amlotte is broad enough to encompass this offense, we certify this issue to the supreme court.

Even if the felony murder rule is held to be a proper way to charge attempted murder of a police officer engaged in the lawful performance of his duty, it was not appropriate in this case. The overt act relied on by the State to justify the attempted murder charge is the knife "thrust ... toward the chest or throat area of Kelly Boaz." But this "overt act" is the only alleged act of force, violence or assault to prove a necessary element of the underlying qualifying offense of robbery. If "force, violence or assault" is not present during the course of the taking, then there is no robbery. Can an essential element of the underlying qualifying offense also constitute the "overt act" required to prove attempted murder? If so, then practically every robbery will justify an attempted murder charge. Although Fleming dealt with an underlying robbery charge, the overt act there was not the violence that occurred during the taking but the shooting that occurred later during the getaway attempt. The accidental shooting of the police officer, although committed during the course of the robbery (the getaway) was a separate act of violence not necessary to prove the robbery. In Amlotte, the underlying offense was burglary so that the shooting into the residence was not an essential element necessary to prove the underlying qualifying felony. We hold, until the supreme court decides otherwise, that an essential element of the underlying qualifying felony cannot also serve as the overt act necessary to prove attempted murder.

Finally, the information in this case alleged that Grinage:

Attempted to murder Kelly Boaz, a law enforcement officer ... engaged in the lawful performance of his duty ... and in furtherance of said attempt ... did grab Kelly Boaz around the neck and did thrust a knife toward the chest or throat area of Kelly Boaz, an act which could have caused the death of Kelly Boaz, and which act occurred during the perpetration of an attempted robbery.

The above...