Hite v. State, 77-2130
| Decision Date | 18 October 1978 |
| Docket Number | No. 77-2130,77-2130 |
| Citation | 364 So.2d 771 |
| Parties | Linda Ruth HITE, a/k/a Lynn, a/k/a Luanna McBrady, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, Dane E. DiSano, Asst. Public Defender, Carolyn Fields, Deborah Morgan and Vivla Ray Punto, Legal Interns, Clearwater, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
Appellant Linda Hite was found guilty by a jury of robbery, conspiracy to commit robbery, and felony-murder in the first degree. The trial court sentenced her to life imprisonment for murder; five years for robbery, to run consecutively to the murder sentence; and five years for conspiracy, to run concurrently with the robbery sentence.
Appellant Hite, Clay Ennis, and Gregory Hunter were charged by indictment with conspiring to rob the Friendly Naybor Food Market, robbing it, and murdering the owner of the market in the process. The trial court ordered appellant's trial severed from that of her two codefendants.
At appellant's trial the state's chief witness was her codefendant Ennis. He testified that in the early evening of May 14, 1977, he, Gregory Hunter, and appellant had formulated a plan to rob the market. He said that around eleven o'clock that evening Hunter and appellant had dropped him off near the market. According to the prearranged plan he was to rob the market and then rendezvous with Hunter and appellant at a tavern a half mile away. Ennis admitted that he entered the market with a gun and demanded money from the clerk. Just as he did so Thomas Coleman, the owner of the market and the father of the clerk, pulled into the parking lot. Ennis ordered the clerk into the bathroom. Then, as Coleman came through the door Ennis confronted him. In the ensuing scuffle Coleman was shot and killed. Soon thereafter the clerk freed himself from the bathroom and wrestled the gun away from Ennis. Needless to say, Ennis did not make his appointed rendezvous with Hunter and appellant. Other state's witnesses corroborated various aspects of Ennis' testimony.
Appellant testified in her own behalf and denied participation in the conspiracy and the robbery. Though the testimony of appellant and Ennis conflicted in many respects, the jury apparently chose to believe Ennis. Since there was sufficient evidence to sustain the jury's finding that appellant was guilty of robbery and conspiracy to commit robbery, we affirm these convictions.
More troublesome is appellant's contention that she could not have been convicted of felony-murder in either the first or second degree on basis of the evidence presented at her trial.
Felony-murder in the first degree is defined in § 782.04(1)(a), Fla.Stat. (1975), as:
The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of 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, involuntary sexual battery, Robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older 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 s. 775.082. (Emphasis supplied.)
The supreme court has interpreted the emphasized portion of the statute to require that a defendant must personally commit the killing, or at least be personally present aiding and abetting the commission of the underlying felony when the killing occurs, in order to be guilty of felony-murder in the first degree. Adams v. State, 341 So.2d 765, 768 (Fla.1977); See also State v. Dixon, 283 So.2d 1, 11 (Fla.1973). Here the evidence was undisputed that appellant was not personally present at the market when Ennis killed Coleman. Rather, she was waiting at the tavern a half mile away. Although appellant's criminal liability for the Robbery was the same as that of Ennis, 1 appellant does not come within the definition of "one engaged in the perpetration of" the robbery as announced in Dixon and Adams ; therefore, she could not have been found guilty of felony-murder in the first degree.
In Dixon and Adams the supreme court had before it the 1972 version of the felony-murder statute, which defined felony-murder in the first degree essentially the same as the present statute. However, at that time felony-murder in the second degree was defined in § 782.04(2) as:
(An unlawful killing) committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy,...
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