State v. Amaro
| Decision Date | 31 August 1983 |
| Docket Number | No. 82-1261,82-1261 |
| Citation | 436 So.2d 1056 |
| Parties | STATE of Florida, Appellant, v. Juan AMARO, Juan Alejandro Rodriguez and Sergio Jesus Villegas, Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Tampa, for appellant.
James V. Dominguez, Tampa, for appellee Amaro.
Nestor Castillo, Jr., Tampa, for appellee Rodriguez.
Raul C. Palomino, Jr., Tampa, for appellee Villegas.
The question presented in this appeal is one which has not yet been specifically addressed by the courts of Florida: Can one who is apprehended while in the commission of a drug felony, moments before a co-felon shoots and kills a police officer while attempting to avoid apprehension, successfully claim that he is not accountable under the felony-murder statute for the killing of the officer?
In February 1982, an information was filed charging the three appellees, Juan Amaro, Juan Allejandro Rodriguez and Sergio Jesus Villegas, with murder in the third degree (felony murder), delivery of cannabis, and two counts of possession of cannabis. The facts have been gathered from various motions to dismiss and traverses filed with the trial court.
During June 1981, Detective Peterson of the Tampa Police Department met appellee Amaro, the latter being unaware of Peterson's police affiliation. Amaro subsequently introduced Peterson to appellee Rodriguez. The three discussed the possibility of a sale of marijuana to Peterson. Amaro also acted as a translator.
On July 23, 1982, appellee Villegas, after telephonically communicating with Rodriguez, drove with one Carlos Bello and one Dorta from Miami to Tampa. They proceeded to the residence of Rodriguez.
In the early morning of July 24, 1981, Detective Peterson and Amaro went to the residence of Rodriguez. The purchase price of $13,500.00 was settled upon. The three agreed that the exchange of marijuana and money would take place at 6:00 p.m. on the same day. Shortly before 6:00 p.m., Detective Peterson met with Amaro at which time Amaro stated that the deal was set. Peterson and Amaro drove to Rodriguez' house and were invited inside by Rodriguez. Dorta was seated on the front porch; Bello was at or near the northeast bedroom door. Bello motioned Peterson and Amaro to that bedroom. Rodriguez, Amaro, Villegas, Bellow and Peterson were all in the bedroom when Rodriguez pointed to two cardboard boxes and spoke to Amaro in Spanish. Amaro then told Detective Peterson "that's it." Amaro wanted to smoke and test the marijuana. Peterson visually inspected the marijuana. Amaro offered to go to Peterson's car for rolling papers, but Peterson indicated he would go to the car himself.
From the automobile, Peterson obtained rolling papers, $13,500.00, and an electronic device with which to signal back-up officers situated in the area that the deal had been consummated or that he needed assistance. When Peterson returned to the northeast bedroom, Amaro rolled and smoked a marijuana cigarette. Bello counted the money handed to him by Peterson and indicated that another fifty pounds of marijuana was available if Peterson could get the additional money which it would cost.
Peterson attempted to activate the signal device, but it malfunctioned. He stalled for time by asking to weigh the marijuana. Villegas left the room, then returned with a scale. Peterson went to a restroom and successfully activated the electronic signal. Back-up officers responded and entered the residence.
Upon entering the house, Detective Ulrickson observed movement around the northeast bedroom. He saw Rodriguez close the bedroom door. Ulrickson kicked the door open, pointed his gun at Rodriguez, and told Rodriguez: Ulrickson then perceived movement from a corner of the bedroom and saw muzzle flash from that direction. Bello shot and wounded Ulrickson. Ulrickson noted that Rodriguez was lying motionless on the floor; Rodriguez had also been shot.
Some ten seconds later, Detective Rauft attempted to open the door to the northeast bedroom. Bello fired two shots through the door, killing Rauft.
Before the shooting took place, but after the police rushed the house, appellee Amaro was seen by Detective McAllister running in the back yard toward a fence. McAllister ordered Amaro to stop, but Amaro continued his efforts to escape and tried to climb or jump over the fence. McAllister grabbed Amaro, pulled him from the fence, threw him to the ground, and struck him. Immediately thereafter, McAllister heard the gunshots fired in the northeast bedroom.
Also before the shooting, appellee Villegas went to the southeast bedroom. Detective Mock followed Villegas and, with gun drawn, told Villegas: "Freeze, you're under arrest," or "Police, don't move." Mock then heard the first set of shots from the northeast bedroom, saw Detective Ulrickson fall into the bedroom and the door close. Mock exited the southeast bedroom, closed the door to that room, and joined Detective Rauft outside the door to the northeast bedroom. The second set of shots were fired through the northeast bedroom door, striking Rauft. A short period of time later, Mock ordered Villegas out of the southeast bedroom and Villegas complied. Thereafter, the premises were secured.
All three appellees filed motions to dismiss pursuant to rule 3.190(c)(4), Florida Rules of Criminal Procedure. The circuit court considered the facts presented in the motions, in responsive pleadings, and at a hearing, and granted each appellees' motion to dismiss the third degree murder charge. The state timely filed its notice of appeal. Rule 9.140(c)(1)(A) and (c)(2), Fla.R.App.P. We have jurisdiction. Rule 9.130, Fla.R.App.P.
The charge involved in this appeal is codified in section 782.04(4), Florida Statutes (1981). The statute provides:
(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
While there are no cases dealing specifically with third degree felony murder under the circumstances involved in this case, principles from first and second degree felony murder, as well as cases from other jurisdictions, are instructive.
Initially, it is clear that in a criminal case a motion to dismiss is to be "granted only where the most favorable construction to the state would not establish a prima facie case of guilt." State v. Davis, 243 So.2d 587 (Fla.1971). If reasonable men could find guilt, a jury question exists and the motion should be denied. The facts are to be reviewed by the court in the light most favorable to the state and only where they do not establish such a prima facie case should dismissal be granted. State v. Hudson, 397 So.2d 426 (Fla. 2d DCA 1981).
In dismissing the third degree murder charge, the conclusion of the trial court was that the appellees' participation in the underlying drug felony had come to an end prior to the killing of Detective Rauft. The appellees argued, and the trial court agreed, that the appellees' participation in the underlying felony had terminated when they were arrested. 1 It has been held that there are four elements involved in effectuating an arrest:
(1) A purpose or intention to effect an arrest under a real or pretended authority;
(2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;
(3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and
(4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.
Melton v. State, 75 So.2d 291, 294 (Fla.1954); McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980).
For purposes of this appeal only, we will accept as correct the trial court's determination that appellees Amaro and Villegas were under effective arrest by the officers when Detective Rauft was killed. However, the trial court's determination as to appellee Rodriguez is unclear. From the record, it appears that the trial court believed Rodriguez was either under effective arrest or was incapacitated by the first set of shots fired by Bello. On one or both of these grounds, the trial court determined that the participation of Rodriguez in the underlying felony had already ended by the time Detective Rauft was shot and killed. Under the circumstances presented, we believe all three appellees' motions to dismiss were erroneously granted.
In the felony murder context, the intent of the appellees need not be an intent to commit a homicide. The intent which would support a conviction of third degree murder is the intent to participate in the underlying felony. Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977). See Goodwin v. State, 405 So.2d 170 (Fla.1981); Henderson v. State, 70 So.2d 358 (Fla.1954); State v. Williams, 254 So.2d 548 (Fla. 2d DCA 1971). 2
Appellees were charged with delivery and possession of cannabis. Section 893.13(1)(a)(2) and section 893.13(1)(e), Fla.Stat. (1981). These crimes are felonies which can support a charge of third degree murder under section 782.04(4), Florida Statutes (1981). 3 Thus, the intent of the appellees to participate in the delivery or possession of cannabis is a sufficient intent to support the charging and prosecution of appellees for the homicide of Detective Rauft pursuant to the third...
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