Jones v. State, 81482

• Decision Date: 12 January 1995
• Docket Number: No. 81482,81482
• Citation: 652 So.2d 346
• Parties: 20 Fla. L. Weekly S29 Victor Tony JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 346

652 So.2d 346

20 Fla. L. Weekly S29

Victor Tony JONES, Appellant, v. STATE of Florida, Appellee.

No. 81482.

Supreme Court of Florida.

Jan. 12, 1995.

Rehearing Denied March 31, 1995.

Nancy C. Wear, Coral Gables, for appellant, cross-appellee.

Robert A. Butterworth, Atty. Gen., and Fariba N. Komeily and Randall Sutton, Asst. Attys. Gen., Miami, for appellee, cross-appellant.

PER CURIAM.

Victor Tony Jones, a prisoner under two sentences of death, appeals his convictions of first-degree murder and armed robbery and the attendant sentences. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

Jones was convicted of two counts of first-degree murder and two counts of armed robbery. According to the evidence presented at the trial, on December 19, 1990, the bodies of sixty-six-year-old Matilda Nestor and sixty-seven-year-old Jacob Nestor were discovered in their place of business. Mr. Nestor's body was found in the main office. He had been stabbed once in the chest. An empty holster was found on Mr. Nestor's waistband. Mrs. Nestor's body was discovered in the bathroom. She had been stabbed once in the back. The Nestors' new employee, Victor Tony Jones, was found slumped over on the couch in the main office not far from Mr. Nestor's body. The butt of a .22 caliber automatic pistol was protruding from under Jones' arm.

According to the evidence, December 19 was Jones' second day of work for the Nestors. It appears that as Mrs. Nestor was entering the bathroom in the rear of the building Jones came up behind her and stabbed her once in the back. As Mr. Nestor came toward the bathroom from the main office, Jones stabbed him once in the chest. The medical examiner testified that Mrs. Nestor died as result of a stab wound to the base of her neck which severed the aorta that carries blood and oxygen to the brain and Mr. Nestor died as a result of the stab wound to his chest which entered his heart.

There was evidence that after being stabbed, Mr. Nestor retreated into the office, where he pulled the knife from his chest, attempted to call for help, drew his .22 caliber automatic pistol and shot five times, striking Jones once in the forehead. No money or valuables were found on either victim or in Mrs. Nestor's purse which was found on the couch in the main office next to the defendant. The evidence also was consistent with Mr. Nestor's body having been rolled over after he collapsed so that personal property could be removed from his pockets.

After the couple was murdered, Jones was locked inside the building where he remained until police knocked down the door after being called to the scene by a neighbor. Money, keys, cigarette lighters and a small change purse that was later identified as belonging to Mrs. Nestor were found in Jones' front pocket. The Nestors' wallets were later found in the defendant's pants pockets. It was not immediately apparent to the police that Jones had been shot. However, after Jones was handcuffed and escorted from the building, he complained of a headache. When an officer noticed blood on Jones' forehead, and asked what happened, Jones responded, "The old man shot me." Rescue workers were called and Jones was taken to the hospital. While in the intensive care unit, Jones told a nurse that he had to leave because he had "killed those people." When asked why, Jones told the nurse, "They owed me money and I had to kill them."

Jones was found guilty of two counts of first-degree murder and two counts of armed robbery. The jury recommended death for the murder of Mrs. Nestor by a vote of ten to two. It unanimously recommended death for the murder of Mr. Nestor. The trial court followed the recommendations. As to each murder, the court found in aggravation: 1) Jones was under a sentence of imprisonment at the time of the murder, 2) Jones was convicted of a prior violent felony, 3) the murder was committed during the course of a robbery, and 4) the murder was committed for pecuniary gain, which the court merged with the "during the course of a robbery" aggravating factor. ¹ Although Jones presented evidence that he had been abandoned at an early age by his mother and that he suffered from extreme emotional or mental disturbance throughout his life, the court found nothing in mitigation. Jones was sentenced to life imprisonment for each robbery conviction, all sentences to run consecutively. Jones appeals.

Jones raises the following five claims in this appeal: 1) the trial court erred by denying his motion for judgment of acquittal on the two armed robbery counts; 2) the trial court erred by failing to instruct the jury that if it found both the aggravating factor of "during the course of a robbery" and the aggravating factor of "for pecuniary gain" that it had to consider the two factors as one; 3) the trial court erroneously rejected Jones' mental or emotional disturbance at the time of the offense as a statutory mitigating factor and failed to properly instruct the jury on the factor; 4) a new sentencing proceeding is required because the mental health experts who testified failed to bring the possibility that Jones suffered from fetal alcohol syndrome/fetal alcohol effect to the court's attention and because the court refused to consider Jones' abandonment by his mother as a mitigating circumstance; and 5) the trial court erred by failing to grant Jones' motion for mistrial based upon various alleged improper comments made by the prosecutor during penalty phase closing argument.

First, we reject Jones' claim that he was entitled to a judgment of acquittal on the two counts of armed robbery. Jones maintains that a judgment of acquittal was warranted because the Nestors never perceived the use of force or violence in connection with the taking of their property. Jones contends that because the evidence establishes a "posthumous theft" rather than robbery, the robbery convictions must be reduced to convictions of petit theft and a new sentencing proceeding must be ordered because the robbery aggravator was improperly considered by the jury and found by the trial court. We disagree.

Robbery is "the taking of money or other property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear." Sec. 812.13(1), Fla.Stat. (1989) (emphasis added). An act is considered " '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." Sec. 812.13(3)(b), Fla.Stat. (1989). Thus, a taking of property that otherwise would be considered a theft constitutes robbery when in the course of the taking either force, violence, assault, or putting in fear is used. We have long recognized that it is the element of threat or force that distinguishes the offense of robbery from the offense of theft. Royal v. State, 490 So.2d 44, 46 (Fla.1986), receded from on other grounds, Taylor v. State, 608 So.2d 804 (Fla.1992); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922). Under section 812.13, the violence or intimidation may occur prior to, contemporaneous with, or subsequent to the taking of the property so long as both the act of violence or intimidation and the taking constitute a continuous series of acts or events.

A victim does not have to perceive the force or violence used in the course of a taking in order for the element of force or violence to be present. See Mitchell v. State, 407 So.2d 343 (Fla. 4th DCA 1981) (element of force or violence supported robbery conviction where victim was unaware of defendant's presence because defendant struck victim from behind rendering him unconscious). Under the plain language of the robbery statute, all that is required to support a conviction under the force or violence component of the statute is that the act of force or violence be a part of "a continuous series of acts or events" that include the taking. There is no requirement that the victim be aware that a robbery is being committed if force or violence was used to render the victim unaware of the taking. Mitchell; accord 2 Wayne R. LaFave & Austin W. Scott, Jr. Substantive Criminal Law Sec. 8.11(d), at 445 n. 39 (1986); People v. Bartowsheski, 661 P.2d 235 (Colo.1983) (where force is employed for the purpose of making the victim unaware of the taking force component of robbery statute is satisfied). In other words, where the defendant employs force or violence that renders the victim unaware of the taking, the force or violence component of the robbery statute is satisfied.

In this case, even if the Nestors were unaware of the fact that Jones was attacking them in order to take their property, force or violence was used in the course of the taking. There was evidence that Jones stabbed Mrs. Nestor in the back, leaving her to die in the bathroom; Jones then turned his attention to Mr. Nestor, whom he killed with one forceful stab to the heart. There also was evidence that after he murdered the couple, Jones rolled Mr. Nestor over in order to take the man's wallet and at some point rummaged through Mrs. Nestor's purse, removing any valuables. The violent murders and the taking of the couple's property clearly were part of a continuous series of acts or events as provided under section 812.13. Moreover, any argument that Jones killed the Nestors for some unexplained reason and then took their property as an afterthought, thus negating the finding that the murders were committed while Jones was engaged in the commission of a robbery, is rebutted by Jones' statement to Nurse Crum that he killed "those people" because they "owed" him money. Cf. Knowles v. State, 632 So.2d 62, 66 (Fla.1993) (finding that murder was committed during the course of a robbery not supported by the record where there was no evidence that defendant, who had free...