Robles v. State, 34679

• Citation: 188 So.2d 789
• Decision Date: 08 July 1966
• Docket Number: No. 34679,34679
• Parties: Alfonso ROBLES, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 789

188 So.2d 789

Alfonso ROBLES, Appellant, v. STATE of Florida, Appellee.

No. 34679.

Supreme Court of Florida.

July 8, 1966.

Donald F. Frost and Boyle & Boyle, Miami, for appellant.

Earl Faircloth, Atty. Gen., and John S. Burton, Asst. Atty., Gen., for appellee.

O'CONNELL, Justice.

Appellant was convicted of the crime of murder in the first degree without recommendation of mercy and sentenced to die by electrocution. These appear to be the essential facts relating to the alleged crime: For about a year and a half, appellant had kept company with one Jean Sterne, a divorcee and mother of a daughter, aged fifteen, and son, aged thirteen. For some time, however, Mrs. Sterne had sought to terminate the relationship. During the night of the crime, appellant and Mrs. Sterne had several encounters in which she attempted to avoid appellant. Finally, in the early morning hours, he knocked at the door of her apartment and asked through the closed door if she would talk with him. She refused and asked him to leave. He claimed, and she denied, that she said that she was expecting another caller and did not wish him to find appellant at her door. In any event, appellant thereupon broke out some glass jalousies and gained entrance to the apartment. In the ensuing confusion, appellant repeatedly stabbed the daughter, Gayle, and Mrs. Sterne. Gayle died as a result of her wounds.

Appellant and Mrs. Stern related sharply divergent versions of the crime. Appellant's version is that he broke the glass with the heel of his shoe and that his only purpose in breaking into the apartment was to talk with Mrs. Sterne. He related that immediately upon entering the apartment he was attacked by Gayle, who was wielding a knife; that he first attempted to leave the apartment, but the door had been closed; that only then did he undertake to wrest the knife from Gayle. He admits remembering that she was cut in the course of the scuffle, but relates that his mind is a blank as to what happened thereafter. According to Mrs. Sterne's version, appellant entered the apartment by breaking the jalousies on the door and, immediately upon gaining admission, began slashing with the knife, first at Gayle and then at her.

In the course of the trial, certain damaging admissions, made while appellant was in police custody, were admitted without objection by defense counsel and without the trial court having conducted any preliminary examination out of the jury's presence as to whether they had been voluntarily made. The trial court did not instruct the jury to the effect that admissions made while in police custody should be received with caution, and it does not appear that defense counsel requested such instruction.

The issue of whether this homicide had been committed in the perpetration of or in the attempt to perpetrate the felony of burglary was first injected into the case by defense counsel's request for instructions defining 'assault,' 'felonious intent,' and 'felony.' This request was made at the conference for settling the charges to be given by the court. The prosecutor adverted to this theory in his closing argument, and the trial court included an instruction to the jury on the subject.

Appellant seeks to raise the following questions here: (1) whether this case presents a sufficient factual basis for application of the felony-murder rule; (2) whether the trial court adequately defined the felony-murder principle in its instructions to the jury; (3) whether the term 'felony' was adequately defined in the instructions; (4) whether it was reversible error for the trial court to fail to conduct a preliminary examination, out of the presence of the jury, into the voluntariness of the above-described admissions; (5) whether the trial court erred in failing to instruct the jury that admissions made while in police custody should be received with great caution, even though no such instruction was requested; (6) whether the trial court erred in permitting the prosecuting attorney to repeat a dying statement of the deceased girl which had been stricken during the trial as hearsay; (7) whether the trial court had erred in failing to instruct the jury to disregard certain hearsay testimony which had been testified to despite objection by defense counsel; and (8) whether certain statements made by the prosecutor during his closing arguments were so inflammatory as to deny appellant a fair trial. We shall deal with these questions in the order listed.

The factual situation of this case is appropriate for application of the felony-murder rule. Sec. 782.04 F.S.A. provides that the unlawful killing of a human being shall be murder in the first degree and punishable by death in either of two circumstances; (2) 'when perpetrated from a premeditated design to effect the death of the person killed or any human being * * *,' or (2) 'when committed in the perpetration of or in the attempt to perpetrate any * * * burglary * * *.' It being presumed that such a statutory reference is to the statutory definition of burglary, it is appropriate to turn to Sec. 810.01 F.S.A., which provides,

'Whoever breaks and enters a dwelling house * * * with intent to commit a felony * * * shall be punished by imprisonment in the state prison for life, or for such term of years as may be determined by the court.'

There is sufficient evidence in the record from which it could be concluded that appellant was guilty of the felony of burglary, in that he broke into the apartment with the intent to commit the felony of aggravated assault upon Mrs. Sterne. There is also ample evidence from which it could be found that he committed a homicide in the perpetration of such felony.

Appellant has directed our attention to a line of New York cases holding that the felony-murder rule does not apply unless the supporting felony is separate and independent from the homicide and he urges that their logic applies equally here. People v. Moran, 1927, 246 N.Y. 100, 158 N.E. 35; People v. Koslow, 1958, 6 A.D.2d 713, 174 N.Y.S.2d 709; People v. La Marca, 1957, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420.

We disagree. As appellant acknowledges, the concern of the New York court, which was to preserve the integrity of the statutory degrees of homicide, resulted from the fact that the statute of that state makes a homicide committed in the perpetration of Any felony first degree murder. New York Penal Code, McKinney's Consol.Laws, c. 40, § 1044. Since the phrase 'any felony' is broad enough to include even the aggravated assault that is usually involved in any homicide, the result would be that substantially every homicide would constitute first degree murder.

It was to avoid this result that the New York court adopted the doctrine that the supporting felony had to be independent of the homicide. Even so, it should be noted that the New York court was not concerned with the situation in which the same act of violence that constituted the underlying felony also resulted in the homicide. It was held sufficient for application of the felony-murder rule if the underlying felony had some elements other than those contained in the crime of homicide. Thus, the court has held that the felony-murder rule applies when the underlying felony is, for example, rape, Buel v. People, 1879, 78 N.Y. 492, or kidnapping, People v. La Marca, 1957, 3 N.Y.2d 452, 165 N.Y.S.2d 753, 144 N.E.2d 420, since those crimes have some elements which are different from those of homicide.

It is obvious that the problem that motivated the New York court to adopt the above rule cannot exist under a statute like Florida's, which limits the felony-murder rule to homicides committed in the perpetration of specified felonies, not including assault in any of its forms. Therefore, the logic of the New York cases cited does not apply in Florida.

Questions (2) and (3) challenge the adequacy of the instructions to the jury and may appropriately be treated together. Actually, it appears from appellant's brief that only one new substantive question is raised under this heading--the adequacy of the court's instruction defining the term 'felony,' as an element of burglary. We agree that this question is of...