Marcum v. State

• Decision Date: 27 December 1979
• Docket Number: EE-322 and EE-323,Nos. EE-246,s. EE-246
• Citation: 379 So.2d 974
• Parties: Charles Wilbur MARCUM, Vincent Paul O'Connor, James Joseph O'Brien, a/k/a James Joseph Garcia, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 974

379 So.2d 974

Charles Wilbur MARCUM, Vincent Paul O'Connor, James Joseph O'Brien, a/k/a James Joseph Garcia, Appellants, v. The STATE of Florida, Appellee.

Nos. EE-246, EE-322 and EE-323.

District Court of Appeal of Florida, Fifth District.

Dec. 27, 1979.

Rehearing Denied Feb. 18, 1980.

Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellants.

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., John Watson, III, Asst. State's Atty., for appellee.

BOOTH, Associate Judge.

These cases are before us on appeals from judgments of conviction and sentences imposed in the Circuit Court, Volusia County.

Appellants were jointly charged in eight counts with the first degree murder of a cofelon, Walter Carl Splitt; burglary of the residence of William Green; conspiracy to commit that burglary, or kidnapping, or murder, or robbery; attempted murder of William Green; aggravated assault on James and Betty Daunt; use of a firearm in the commission of a felony; and possession of a firearm by a convicted felon. All charges arose from acts of appellants on February 13, 1976, at or near the residence of William Green and his family. After trial by jury, each defendant was found guilty on all counts except that Marcum was acquitted of possession of a firearm by a convicted felon. The jury recommended a sentence of life imprisonment for first degree murder, and all three defendants were adjudged guilty of first degree murder and burglary and sentenced to consecutive terms of life imprisonment for each of those offenses; adjudged guilty of conspiracy and sentenced to 15 years; adjudged guilty of attempted murder and sentenced to 30 years consecutively; adjudged guilty of two counts of aggravated assault and sentenced to five years consecutively for each count. O'Connor and O'Brien were each adjudged guilty of possession of a firearm by a convicted felon and sentenced to 15 years.

On appeal to this Court numerous points are raised. We find merit only in the issue which raises the application of Florida Statute, Section 782.04, the Felony-Murder Rule. Appellants rely on the decision of the Second District Court of Appeal in Wright v. State, 344 So.2d 1334 (Fla. 2nd DCA 1977), which set aside a conviction of second degree felony-murder where a cofelon was killed by a policeman during the commission of the felony. Subsequent to the oral argument in this case, that decision was reversed by the Florida Supreme Court in State v. Wright, 379 So.2d 96 (Fla.1979), wherein the Court held:

"The question involved is whether a surviving co-perpetrator of a robbery is guilty of felony murder in the second degree when a policeman shoots and kills another co-perpetrator during the perpetration of the robbery. We answer in the affirmative.

"The defendant, a person named McRae, and a person named Robertson were involved in the robbery of a store. Defendant and McRae committed the robbery while Robertson waited in the automobile. As they were attempting to leave after the robbery, the police intercepted the trio and a gun battle resulted. The defendant and Robertson were apprehended, but Robertson was fatally wounded by a bullet originating from the gun of one of the policemen."

The Supreme Court, citing his prior decision in Mikenas v. State, 367 So.2d 606 (Fla.1978), held that the statute was not limited in application to "innocent" persons killed by one perpetrating or attempting to perpetrate a felony.

In the instant case, the facts are that cofelon, Splitt, was shot and killed by Walter Green, a victim of the robbery and attempted murder which was being perpetrated by Splitt and the three appellants. These facts are substantially similar to those in the Wright case and the Mikenas case wherein the cofelon was killed by an officer of the law and convictions of second degree felony-murder upheld. Therefore, under Section 782.04(3), second degree murder is the highest degree of homicide with which the defendants can be convicted.

Marcum and O'Connor contend that they cannot be convicted of any degree of felony-murder because they were not personally present at the scene when the killing occurred, as required under the holding of Hite v. State, 364 So.2d 771 (Fla. 2nd DCA 1978); certiorari denied, 372 So.2d 471 (Fla.1979).

In the Hite case, the appellant was one of three who conspired to commit a robbery. She and another codefendant dropped the third codefendant off near the food market to be robbed and waited at a tavern half a mile away. During the course of the robbery, defendant's cofelon shot and killed the proprietor of the store. The Court ruled that, in order to be guilty of either first degree or second degree felony murder under the 1974 version of the statute (Chapter 74-384, Section 14, Laws of Florida, effective July 1, 1975), a defendant must be personally present at the commission of the underlying felony. The Hite case further holds that, since the Killing was by a cofelon, rather than an innocent party, there could be no conviction of second degree felony-murder. ¹

In the Hite case, the evidence was clear that defendant Hite was not personally present at the scene of the robbery when the killing occurred. Assuming, without deciding, that the Hite case is correct and personal presence is required for conviction of any degree of felony-murder, here there is evidence that Marcum and O'Connor were present at the scene.

Two of the cofelons, O'Brien and Splitt, were known to have been inside the Green residence carrying out their planned crime. Splitt was killed in the residence. O'Brien was identified as the man who took Mr. Green's gun after Green had shot Splitt, left the Green residence and ran toward Mrs. Green as she was going toward a neighbor's house and then attempted to commandeer the vehicle occupied by the Daunt family, which was passing the Green residence. O'Brien was further identified as the individual who, after being unsuccessful in starting the Daunt vehicle, ran away in an easterly direction and was subsequently apprehended on foot some three miles away from the Green residence. Meanwhile, Officer Grigsby, who had responded to the initial call, saw a late model Cadillac, two door, white over blue, with an 8WW tag, sitting on the median strip of Plaza Drive, a street one block (three-tenths of a mile via streets) from the Green residence. The vehicle was apparently unoccupied. Grigsby testified that he returned a short time later and the Cadillac was gone. It was Marcum who, several days after the shooting, took Splitt's widow to where the car was; at a motel parking lot near Marcum's residence. This car was identified as being in all respects similar to the one seen by Grigsby on the median strip near the Green residence.

Further testimony supporting the presence of O'Connor and Marcum at the scene of the crime was that of Jerome Raddick, who had been offered a chance to participate in the Green job. On the evening of the crime,...