State v. Jones

• Decision Date: 13 December 1979
• Docket Number: No. 55551,55551
• Citation: 377 So.2d 1163
• Parties: STATE of Florida, Petitioner, v. Wiley JONES, Jr., Respondent.
• Court: Florida Supreme Court

Page 1163

377 So.2d 1163

STATE of Florida, Petitioner, v. Wiley JONES, Jr., Respondent.

No. 55551.

Supreme Court of Florida.

Dec. 13, 1979.

Jim Smith, Atty. Gen. and Robert J. Landry and Charles Corces, Jr., Asst. Attys. Gen., Tampa, for petitioner.

Jack O. Johnson, Public Defender, Bartow and Wayne Chalu, Asst. Public Defender, Tampa, for respondent.

ALDERMAN, Justice.

We accept jurisdiction to review the decision of the district court in Jones v. State, 363 So.2d 1123 (Fla.2d DCA 1978), because of its apparent conflict with Zuberi v. State, 343 So.2d 664 (Fla.3d DCA 1977). We approve the decision of the district court in Jones and hold that the trial court's refusal in this felony-murder case to give any instruction on the elements of the underlying felony of robbery was fundamental error not waived by the defendant's failure to object.

The trial judge instructed the jury on felony murder without giving any instruction on the underlying felony of robbery. Although the defendant did not object, the omission was brought to the trial judge's attention by the state attorney. On appeal, the district court reversed on the authority of Robles v. State, 188 So.2d 789 (Fla.1966). It concluded there was ample evidence that Jones had committed a homicide in the perpetration of the felony of robbery and that application of the felony-murder rule was most appropriate, but it made no finding on the sufficiency of the evidence to establish premeditated murder.

The State contends only that the trial court did not commit reversible error in failing to define robbery under a felony murder instruction when the defendant neither requested the instruction nor objected to the court's refusal to so instruct. The State does not contend that the trial court's error was made harmless because there was sufficient evidence to establish premeditated murder.

As a general rule, appellate courts will not review a matter raised for the first time on appeal. Fla.R.Crim.P. 3.390(d). In Castor v. State, 365 So.2d 701 (Fla.1978), we pointed out that the requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. Its purpose is to place the trial judge on notice that error may have been committed and to provide him an opportunity to correct it at an early stage of the proceedings. Only in the rare case of fundamental error is the defendant's right to appeal preserved without a contemporaneous objection.

In this case, the crime of robbery was an essential part of the felony-murder theory upon which the jury was instructed to decide the defendant's guilt. Although the elements of this underlying felony need not be explained with the same particularity that would have been required if it had been the primary crime charged, it is essential that it be defined sufficiently to ensure the accused a fair trial. Robles v. State. Since proof of the elements of robbery was necessary in order to convict the defendant under the felony-murder theory, the court was obligated at least to give some minimum instruction on these elements.

Our recent decision in Vasil v. State, 374 So.2d 465 (Fla.1979), is distinguishable. There, the defendant, charged with first-degree murder on alternate theories of premeditation and felony murder based upon the crime of rape, claimed the trial court erred by not instructing on the element of penetration. Reaffirming the rule that it is not necessary to instruct on the elements of the underlying felony with the same particularity that would be required if that offense were the primary crime charged, we found the trial judge's instructions, which recited all of the elements of the crime of rape, to be adequate.

In the present case, there was a complete failure to give any instruction on the elements of the underlying felony of robbery. This was fundamental error. It is essential to a fair trial that the jury be able to reach a verdict based upon the law and not be left to its own devices to determine what constitutes the underlying felony. Robles v. State.

Accordingly, the judgment of the district court is affirmed, and, to the extent that Zuberi v. State may conflict with this opinion, it is disapproved.

It is so ordered.

ENGLAND, C. J., and BOYD, OVERTON and SUNDBERG, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice, dissenting.

I dissent.

At issue before this Court is whether the trial court's failure to define the term of robbery within the felony murder portion of a first-degree murder instruction is fundamental error. If so, the error may be presumed prejudicial and the harmless error doctrine does not apply. If not, the Court should make a finding as to whether the evidence supports the verdict on either ground. Only in the absence of sufficient evidence of premeditated design would the limited felony murder charge be prejudicial.

The majority opinion holds that the failure to instruct on the elements of the underlying felony in a felony murder case is fundamental error. There is no finding or discussion as to evidence of premeditation design. Apparently the majority feels that premeditated murder was not properly raised as an issue in either the district court of appeal opinion or the briefs. In fact, the Second District Court of Appeal viewed the record and found that application of the felony murder rule was "most appropriate", there being ample evidence that the homicide was committed in the perpetration of a robbery. Jones v. State, 363 So.2d 1123, 1123 (Fla.2d DCA 1978). This finding was not disputed on appeal. Arguably, this is an implied finding that there was no competent evidence of premeditated murder in the record. The Second District Court of Appeal relied on Robles v. State, 188 So.2d 789 (Fla.1966), to hold that in a felony murder case, the court must instruct on the elements of the underlying felony. The Robles Court also failed to discuss premeditated murder and it, too, found ample evidence to support the burglary.

In Robles this Court reversed a first-degree murder conviction on, Inter alia, the ground that the instructions on felony murder were erroneous. The Court did not make any finding on the sufficiency of the evidence in the record to support premeditated murder or on the doctrine of harmless error. In Frazier v. State, 107 So.2d 16 (Fla.1958), this Court found sufficient evidence in the record to support a finding of premeditation so that error, if any, in the felony murder instruction was harmless. The failure of the Court to follow Frazier's Rationale has led to damaging confusion on the issue of premeditation and felony murder Vis a vis intent in first degree murder cases.

Two theories of intent will support a first-degree murder conviction: premeditation and felony murder. § 782.04, Fla.Stat. (1977). Initially courts spoke of the two as "legal equivalents", the one provable "in lieu of" the other. Sloan v. State, 70 Fla. 163, 69 So. 871 (1915). The two are related because each provides the element of intent necessary for murder in the first degree. Premeditation is more easily seen as a species of intent than felony murder and is designated most frequently as the crucial distinction between murder in the first degree and murder in the second degree. This is probably what spawned the language seen in innumerable cases, I. e., premeditation is presumed as a matter of law by proof of felony murder. Ables v. State 338 So.2d 1095 (Fla.1st DCA 1976); Larry v. State, 104 So.2d 352 (Fla.1958); Leiby v. State, 50 So.2d 529 (Fla.1951). It would be more accurate to say the requisite Intent is presumed from proof of felony murder. Hampton v. State, 336 So.2d 378 (Fla.1st DCA 1976); 1 Warren on Homicide S 74 (1914). Either premeditation or felony murder should suffice to convict of murder in the first degree.

In line with this alternative theory of intent analysis, an indictment which charges only premeditated murder complies with due process. Evidence of either premeditation or felony murder may be used to support a conviction of murder in the first degree upon such indictment. Knight v. State, 338 So.2d 201 (Fla.1976); Everett v. State, 97 So.2d 241 (Fla.1957), Cert. den. Everett v. Florida, 355 U.S. 941, 78 S.Ct. 432, 2 L.Ed.2d 422 (1958); But see Ables v. State, supra.

The opinion and decision in Frazier Is consistent with this reasoning. In Frazier the defendant was charged with effecting an unlawful death by drowning and premeditated design. In opening statement the state indicated it would prove either premeditation or felony murder. There was evidence that the felony (rape) preceded the drowning by a length of time. The state requested and received a jury instruction that a homicide immediately following a felony and committed for the purpose of concealment was deemed to be committed in the perpetration of the felony. This charge was given in addition to a correct first-degree murder instruction. The defense objected on the ground that the rape, if any was consummated long before the drowning. Thus the evidence was susceptible to two theories of intent, premeditation or felony murder via the rape. This Court First reviewed the record and found sufficient evidence to support a jury finding of murder by premeditated design. It then said, "(i)n view of this the charge complained of cannot be said to be harmful even if it were erroneous." 107 So.2d at 20. Although the Court did go on to hold the charge correct on the facts, the analysis involved reflects a correct application of the harmless error doctrine.

Frazier was not cited by this Court in Robles. In Robles the defendant's lover was ending their affair over defendant's objections. One night the defendant went to her house, knocked on the door and requested entry. She refused and he broke some glass jalousies to gain entry. In the ensuing turmoil the woman's daughter was fatally stabbed. The evidence was conflicting as to...