Miller v. State, 85-669
| Decision Date | 17 February 1987 |
| Docket Number | No. 85-669,85-669 |
| Citation | 503 So.2d 929,12 Fla. L. Weekly 548 |
| Parties | 12 Fla. L. Weekly 548 Diartis MILLER, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen. and Donald Loughran, Certified Legal Intern, for appellee.
Before BARKDULL, NESBITT and FERGUSON, JJ.
The appellant, along with Alfred Kirkland and James Harrison attempted to burglarize a Pantry Pride store. Appellant had been employed at the store as a bag boy and stock clerk at the time. His role in the burglary was to supply Kirkland with the combination to the safe and the key to the back door for Kirkland's exit. Kirkland was to hide in the store until closing and then open the safe. Harrison was to be the lookout. They met about three times before the burglary to review the plans. The day of the burglary, appellant worked from 6:00 p.m. to 12:00 midnight. While working, he was informed by the store manager that the porter would be remaining in the store overnight to clean up. Kirkland arrived at the store at about 11:30 p.m. and appellant informed him that someone would be in the store that night. This had not been expected. It was either appellant or Kirkland who decided to knock out, but not kill the porter. Appellant left the store at around midnight and stood outside with Harrison. They observed that Kirkland could not open the safe and appellant yelled to him to try the key and then finally yelled to him to "forget it." He and Harrison then walked towards the rear of the store from where Kirkland would be exiting and they saw a man going towards the phone. They then heard the store alarm go off and they all fled. When the police arrived, they found the store's front door was smashed, bloody sneaker prints near the safe and the porter, who had been murdered. There was a blood-covered fire extinguisher lying beside the porter, which apparently had been used to kill him. The cause of death was determined to be multiple blunt trauma injuries to the head. Near the safe they found a piece of paper with numbers on it. Fingerprints were lifted from the paper, fire extinguisher and floor tile. Kirkland's fingerprints were found to be on all three. Fingerprints of all the store employees were also taken. Appellant was taken in for questioning at which time he confessed to the crime. In his statement, appellant states he repeatedly told Kirkland that they should not go forward with the plans because the porter was in the store. However, he finally gave Kirkland the paper with the combination on it. Harrison was also questioned and later entered a guilty plea to a second-degree murder charge and testified against appellant. Appellant was charged with first-degree murder, burglary of an occupied structure and attempted robbery. During the charge conference, appellant requested an instruction on withdrawal from the offense as a defense but the court denied the request. The jury found appellant guilty on all counts and he was sentenced to life with a twenty-five year minimum-mandatory on the murder count and concurrent seventeen year terms on the other counts. Appellant filed a motion for a new trial on the ground the court erroneously refused to give his requested jury instruction. The motion was denied and this appeal ensued.
The appellant urges that the trial court committed reversible error in denying his requested jury instruction on the defense of withdrawal. He made one self-serving statement in a police confession and relies on this to prove his innocence of the crime based on withdrawal. However, after the statement was allegedly made to the accomplice, the appellant's acts belied withdrawal. He supplied the accomplice with the combination to the safe; he left the store knowing the accomplice was hiding in the store in a place where he would not be found; he knew the accomplice planned to knock the porter out; and he attempted to assist the accomplice, who was covered with blood, from outside the store. Under such circumstances, the evidence did not support his request for an instruction on "withdrawal".
The standard for the defense of withdrawal in both premeditated and felony murder prosecutions was established by the Florida Supreme Court in Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983), when the Court stated:
"To establish the common-law defense of withdrawal from the crime of premeditated murder, a defendant must show that he abandoned and renounced his intention to kill the victim and that he clearly communicated his renunciation to his accomplices in sufficient time for them to consider abandoning the criminal plan. For a defendant whose liability is predicated upon the felony murder theory, the required showing is the same and the defense is available even after the underlying felony or felonies have been completed. Again the defendant would have to show renunciation of the impending murder and communication of his renunciation to his co-felons in sufficient time to allow them to consider refraining from the homicide.
In Smith the defendant was convicted of robbery,...
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...responsibility to charge the jury correctly in each case. Steele v. State, 561 So.2d 638 (Fla. 1st DCA 1990); see also Miller v. State, 503 So.2d 929 (Fla. 3d DCA 1987). Lozano's theory of defense encompasses both self-defense and the justifiable use of force by a police officer. Lozano's t......
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