Johnson v. State, No. 83-1494

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WALDEN
• Citation: 11 Fla. L. Weekly 636,484 So.2d 1347
• Parties: 11 Fla. L. Weekly 636 Terry Wayne JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 83-1494
• Decision Date: 12 March 1986

Page 1347

484 So.2d 1347 11 Fla. L. Weekly 636 Terry Wayne JOHNSON, Appellant,
v.
STATE of Florida, Appellee. No. 83-1494. District Court of Appeal of Florida,
Fourth District. March 12, 1986.
Rehearing Denied April 9, 1986.

Page 1348

Richard L. Jorandby, Public Defender, Gary Caldwell, and Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, Russell S. Bohn, and Robert S. Jaegers, Asst. Attys. Gen., West Palm Beach, for appellee.

WALDEN, Judge.

Terry Wayne Johnson was adjudged guilty based on a jury verdict of the kidnapping and felony murder of Frances Julia Slater for which he received concurrent life sentences. He appeals. We affirm.

The victim worked at a Li'l General Store. She disappeared in the early morning hours along with $134.00 from the safe. That afternoon her body was found thirteen miles distant with life extinguishing wounds, a stab wound in her stomach and a gunshot wound to the back of her head.

On the night before, and during the morning in question, Johnson was riding around with Bush, Parker and Cave in Bush's car. They were drinking, eating and hanging out, among other things.

Point 1. Johnson argues that his motion for judgment of acquittal should have been granted because he was merely present and did not actively participate in the crimes. We disagree, based upon the principles announced in Bryant v. State, 412 So.2d 347, 350 (Fla.1982):

The record demonstrates beyond a reasonable doubt that Bryant was present during and participated in the robbery. If the jury finds that the tying of the victim by Bryant during the course of the robbery or any other acts committed by Bryant or his accomplice during the perpetration of the robbery either caused or materially contributed to the victim's death, then it may properly find Bryant guilty of first-degree murder. Swan v. State, 322 So.2d 485 (Fla.1975). This is so because the felony murder rule and the law of principles combine to make a felon liable for the acts of his co-felons.

Page 1349

Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). But this liability is circumscribed by the limitation that the lethal act must be in furtherance or prosecution of the common design or unlawful act the parties set out to accomplish. Adams v. State; Pope v. State, 84 Fla. 428, 94 So. 865 (1922).

There was substantial, competent evidence that could lead a jury to conclude beyond a reasonable doubt the defendant had the intent to commit robbery, was involved in the criminal enterprise to perpetrate that robbery and kidnapping, that the killing was a part of the robbery and kidnapping, and that no evidence presented even a suggestion that the appellant withdrew from the criminal enterprise. Appellant was in the store the first time but left with the others because the girl was on the phone. So the group went riding around, went to the beach and exited the car for awhile, returned to the car and drove around, returning to the Li'l General Store, "And that's when we--they robbed the girl." The others brought her out and put her in the car between him and another, thus obstructing any means for her escape. He shared in the robbery proceeds as well. The additional crime of kidnapping and appellant's participation distinguishes the facts here from the authorities presented in appellant's argument.

Point 2. We find no harmful or reversible error in the manner in which the state conducted its voir dire of the jury. Peri v. State, 426 So.2d 1021 (Fla. 3d DCA 1983).

Point 3. We find no reversible error as concerns prosecutorial conduct in closing argument. State v. Murray, 443 So.2d 955 (Fla.1984).

Point 4. No error has been demonstrated as to the manner employed by the prosecutor in the questioning of witness Cabre.

Point 5. Johnson complains about the refusal of the trial court to give certain requested instructions. The court refused to give:

OTHER CRIMES. You are instructed that the crimes of Accessory After the Fact, Conspiracy to Commit Armed Robbery and Compounding a Felony are separate chargeable offenses and not lesser-included offenses of the present charges. If, therefore, you believe from all of the evidence that the defendant is not guilty of the crimes with which he is charged, but is guilty of any one or all of the charges of Accessory After the Fact, Conspiracy to Commit Armed Robbery and Compounding a Felony, your verdict as to the present charges must still be not guilty.

Johnson then requested, in separate...