Jones v. State, No. 4D03-4881 (FL 6/8/2005), 4D03-4881.

• Decision Date: 08 June 2005
• Docket Number: No. 4D03-4881.,4D03-4881.
• Parties: WILLIAM DANIEL JONES, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida Supreme Court

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WILLIAM DANIEL JONES, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D03-4881.

District Court of Appeal of Florida, Fourth District.

June 8, 2005.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Dwight L. Geiger, Judge, L.T. Case No. 02-2364 CFA.

Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

This appeal arises from a conviction for solicitation to commit second degree murder, following a jury trial, and a sentence to fifteen years in prison. Because the crime for which William Daniel Jones ("Jones") was convicted is inapplicable to the facts in this case, we reverse his conviction and remand the case to the trial court to enter a conviction for solicitation to commit aggravated assault. Any other issues appealed are affirmed or rendered moot by this opinion.

Jones was charged by information with solicitation to commit first degree murder upon David Hunt ("Hunt"). The information alleged that Jones "did command, encourage, hire, or request David Ruiz and/or Deputy Gary Morales to engage in specific conduct which would constitute First Degree Murder, or an attempt to commit First Degree Murder in violation of Florida Statute 782.04(1) & 777.04."

In July of 2002, Hunt was the boyfriend of Delena Jones ("Delena"). Delena was married to Jones. Hunt and Delena were in a relationship for about a year and a half and were living together in July of 2002. In March of 2002, Hunt had been a witness in a case against Jones where Hunt claimed to be a victim and Jones was the accused.

Detective Dan Burkhardt was assigned to gather information from St. Lucie County Jail inmates. Burkhardt came in contact with inmate David Ruiz in July of 2002 when Ruiz told him someone might be hurt or killed on the outside. Ruiz gave Burkhardt a letter Jones had written to Ruiz that contained relevant addresses and routes. Ruiz and Burkhardt recorded a phone call in which Ruiz called Jones at his home.

Ruiz testified at Jones' trial that he and Jones were friends and they were incarcerated together during 2002. Jones told Ruiz to "pay somebody a visit," which meant to "make sure he didn't show up back to the courtroom. . . . Or make sure he couldn't testify against him." Ruiz testified that he assumed that Jones meant he wanted Ruiz to kill Hunt. However, Ruiz later stated on cross-examination that Jones did not actually use the word "kill."

In a recorded call, Ruiz told Jones that he had contacted "Frankie," who would call Jones to arrange to meet him. Detective Morales, posing as "Frankie," met Jones. When Jones got into the car with Morales, Jones said he was nervous because of a patrol car across the street. They drove around and Jones told him to pull into a Wal-Mart parking lot. They exited the vehicle and started talking. Jones acted nervous — he walked up and down the side of the vehicle, looked inside the backseat and trunk space, ran his hands through his hair, and started sweating heavily. They drove to Hunt's apartment and back to the original meeting place. During the drive they discussed what Jones wanted Morales to do. When they returned to the meeting place, Jones was taken into custody.

Detective Robert Harold Graff conducted surveillance and safety for Morales' meeting with Jones. Graff and numerous other cars followed them. Morales wore a hidden transmitter. Due to equipment failure, only some of the conversation between Morales and Jones was recorded. Graff was still able to listen in on the conversation.

After the recorder stopped working, Graff heard Jones giving directions to Morales to show him Hunt's daily route. He told Morales that the best place to do this was probably at work to make it look like a robbery. He also said that he preferred Morales not do it at the apartment where Hunt's girlfriend was staying. He described vehicles to Morales. According to Graff, "Detective Morales asked Jones exactly what he wanted and he said, kill him. Morales said, what? He said, kill him. And there was a pause and, uh, [Jones] says, do whatever you do."

Lieutenant Steven Sigmon also participated in the surveillance of Jones and Morales. He heard Jones explaining to Morales different ways to arrive at the apartment that did not require one to drive directly from U.S. 1. Jones stated where Hunt worked and that he wanted to make sure that the girlfriend was not there. Sigmon testified that Jones told Morales "that he wanted the subject that they were talking about gone, wanted him taken out of the picture, wanted him gone, want him dead. And right after he said he wanted him dead, he paused for a second and then he said, I want him gone."

Sigmon testified that Morales told Jones that he would need a piece to do it with and Jones replied that he could get Morales a gun later but not right then. Morales asked what Jones wanted done and Jones quickly answered, just kill him. Jones said that he wanted Hunt beaten so bad he wanted him in a wheelchair. Jones said that he wanted Hunt beaten uncontrollably — "I want him beat so bad he die, I want him gone." Jones also said that if that doesn't work then Morales would have to come back later and take care of him.

The state played a tape of the recorded portion of the conversation between Jones and Morales for the jury. Portions of the dialogue could be interpreted as Jones stating that he wanted Hunt killed. Other portions could be interpreted as Jones stating that he wanted Hunt beaten up so badly that he would need a wheelchair, but not necessarily killed.

Morales testified that after the tape ended because of the batteries dying, Jones told him he should make it look like someone tried to rob him and he was killed. Morales followed up and asked Jones how he wanted Hunt dead and Jones said, "I just want the mother f— gone. I just want the mother — I just want him dead, man."

On cross-examination, Morales testified as follows:

DEFENSE: . . . And you said that you believed and told [the prosecutor] and this jury that you took when he says I want to take him out to mean I want to kill him, is that correct?

MORALES: That's what I believe, yes.

DEFENSE: Okay. But did you hear him on the tape make this exact statement? I want him gone and then if that don't work, then we'll come back and do something else?

MORALES: Yes.

DEFENSE: So apparently when he says I want him gone, that didn't mean kill him because if you killed him you wouldn't have to come back and do anything else, would you? It would be the end of it, wouldn't it.

MORALES: If I didn't do it right.

DEFENSE: So if he says I want it done and if that don't work, then we'll come back and do it — we'll kill him. Did he say to you also, I just want him in a wheelchair?

MORALES: He also said that, yes.

DEFENSE: Yeah. And then if that don't get him out of the picture, away from my wife or whatever, then we'll come back later and do it, isn't that correct?

MORALES: Yes.

Jones also testified at trial on his own behalf, admitting to wanting to have Hunt beaten up but denying that he wanted Hunt to be killed. He insisted that he told Morales that he did not want Hunt killed.

In reviewing the proposed jury instructions, the state specifically requested an instruction on solicitation to commit second degree murder and defense counsel objected to giving such instruction, arguing that it would be confusing. The trial court overruled the objection. The jury returned a guilty verdict of solicitation to commit second degree murder. Jones moved for a new trial on the grounds that the verdict was inconsistent with the law and the facts. The trial court adhered to its ruling during trial that the jury could legally return the verdict that it returned and denied the motion for new trial. The court adjudicated Jones guilty of solicitation to commit second degree murder and imposed a sentence of fifteen years in prison.

Jones' primary argument on appeal is that the crime of solicitation to commit second degree murder does not exist in the state of Florida. A question of law is reviewed de novo. Nelson v. State, 875 So. 2d 579, 581 (Fla. 2004). Jones was convicted of solicitation to commit second degree murder. The Florida Supreme Court defines the elements of criminal solicitation as follows:

(1) commanding, hiring, requesting, or encouraging another person to commit a crime and (2) the intent that the other person commit the crime. No agreement is needed, and the fact that the person solicited has no intention of committing the crime is irrelevant as long as the command, request, or encouragement is made with the requisite intent.

The Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994). Solicitation to commit murder "indisputably . . . requires guilty knowledge or mens rea." Mascola v. Lusskin, 727 So. 2d 328, 332 (Fla. 4th DCA 1999). Because present intent is a requirement for solicitation, a defendant cannot be convicted of solicitation where the uncontroverted evidence shows that the defendant would decide at a later date if he or she wishes the "hit man" to proceed. State v. Gaines, 431 So. 2d 736, 737-38 (Fla. 4th DCA 1983).

Second degree murder is defined as follows: "The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." §782.04(2), Fla. Stat. The phrase "imminently dangerous to another and evincing a depraved mind regardless of human life" has been described by this court to mean an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred,...