Thomas v. State

• Decision Date: 17 July 1991
• Docket Number: No. 90-1591,90-1591
• Citation: 584 So.2d 1022
• Parties: Ronald Anthony THOMAS, Appellant, v. STATE of Florida, Appellee. 584 So.2d 1022, 16 Fla. L. Week. D1863
• Court: Florida District Court of Appeals

Page 1022

584 So.2d 1022

Ronald Anthony THOMAS, Appellant, v. STATE of Florida, Appellee.

No. 90-1591.

584 So.2d 1022, 16 Fla. L. Week. D1863

District Court of Appeal of Florida,

First District.

July 17, 1991.

Jefferson W. Morrow of David & Morrow, P.A., Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Laura Rush, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Ronald Anthony Thomas appeals his convictions of first degree murder for violating section 782.04(1)(a), Florida Statutes (1989), and armed robbery with a firearm for violating section 812.13. The jury found him guilty as charged of taking money from the deceased victim and killing him. Thomas raises a single point on appeal, urging reversible error in the trial court's failure to instruct the jury that "a well-founded belief by the defendant that he is the rightful owner of the property in dispute is a complete defense to the charge of robbery." In denying the requested instruction, the trial judge stated that such an instruction is appropriate only where the item taken is a specific identifiable object like a car, bicycle, or piece of furniture, rather than a fungible good like money. ¹ Agreeing with the trial court's ruling, we affirm.

The evidence established, primarily through the pretrial confession and trial testimony given by Thomas, the following sequence of events culminating in the charged robbery and murder. About two weeks before the offense took place, the victim and a girl friend each gave Thomas $10 to purchase some crack cocaine for them. Thomas did not find any in the area, so he sent the money back to the victim through another person. Thomas learned that the victim did not give the girl friend her $10, so Thomas also reimbursed her. On the night of the offenses Thomas, seeing the victim, walked up to him with a revolver in his right hand. Thomas demanded the victim give back the $10 Thomas had paid to the girl friend, and the victim kept saying he did not know what Thomas was talking about. Thomas raised the gun back to hit the victim to make the victim understand that he could not get away with taking his (Thomas's) money, and when he swung the gun to hit the victim in the chest, the victim blocked it with his left arm and the gun went off. At that point, the victim handed Thomas the money and said, "You shot me." Thomas disclaimed any intent to shoot the victim. The jury was instructed on both premeditated murder and felony murder under count one, and armed robbery with a firearm under count two, without the so-called "good faith" or "claim of right" instruction requested by Thomas. The jury found Thomas guilty of both offenses as charged. ²

Both Thomas and the state agree that no Florida appellate decision has decided whether a claim of right defense is available to a defendant who seeks to collect a debt or recover money by use of force or threat, and our research has not shown any Florida case directly on point. In support of the requested instruction, Thomas relies primarily on Thomas v. State, 526 So.2d 183 (Fla. 3d DCA 1988), rev. denied, 536 So.2d 245 (Fla.1988), and Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981), arguing that both cases have recognized that a defendant's good faith belief that he has the right to the property taken negates the requisite intent to commit robbery and constitutes a lawful defense to the offense charged. The state, on the other hand, distinguishes those cases from the facts of this case and argues that while many other jurisdictions have considered this issue, the majority of such jurisdictions have concluded that public policy reasons militate against the availability of this defense by any defendant charged with robbery, citing the annotation at 88 A.L.R.3d 1309 and the following cases: State v. Larsen, 23 Wash.App. 218, 596 P.2d 1089, 1090 (1979); Rozika v. State, 520 N.E.2d 1267 (Ind.1988); Commonwealth v. Sleighter, 495 Pa. 262, 433 A.2d 469 (1981); Austin v. State, 86 Wis.2d 213, 271 N.W.2d 668 (1978); State v. Self, 42 Wash.App. 654, 713 P.2d 142 (1986); State v. Martin, 15 Or.App. 498, 516 P.2d 753 (1974); and State v. Schaefer, 163 Ariz. 626, 790 P.2d 281 (Ct.App.1990). The state urges that to allow violent self-help as a defense, even if the defendant has a good faith belief in his right to recover such property, would conflict with the statutory provision that the money or property of another which is the subject of a robbery charge under section 812.13(1) means property "in which a person has an interest upon which another person is not privileged to infringe without consent, whether or not the other person also has an interest in the property." Sec. 812.012(4), Fla.Stat. (1989).

We agree with the state that the requested instruction was properly denied in this case for two reasons: (1) the money taken from the victim was not specific property in which the defendant had a prior ownership or possessory interest and, being money taken to pay off a disputed debt, did not fall within the scope of this common law defense; and (2) the current statutory provisions in the robbery statutes in chapter 812 are inconsistent with the application of the "good faith" or "claim of right" defense to violent or forcible taking contemplated by the robbery statute. We now explicate the rationale underlying these two conclusions.

It appears that most jurisdictions recognize the common law rule that a forcible taking of property under a bona fide claim of right is not robbery where the taker has a good faith belief that he is the owner of the property or is entitled to immediate possession, because this belief negates the taker's intent to steal or commit larceny. The courts of many jurisdictions, including Florida courts, have applied this principle to forcible takings under a bona fide claim of right to specific property, property taken as security, and gambling gains or losses. See generally 77 C.J.S. Robbery Sec. 22(c) (1952); 67 Am.Jur.2d Robbery Sec. 19 (1985); Annot., 88 A.L.R.3d 1309 (1978).

Two recent Florida decisions illustrate the application of this rule. In Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981), the defendants were managers of a motel and had retained and failed to submit to the motel owner the proceeds from three room rentals, claiming that they believed the money was theirs under the terms of a compensation agreement. They were prosecuted and convicted of theft of the money. On appeal, the third district reversed the conviction for a new trial, holding that the trial court erred in refusing to give the following requested jury instruction: "Where it clearly appears that the taking of property was consistent with honest conduct, as where the taker honestly believes that he or she has a right to property, the taker cannot be convicted of theft, even though the taker may have been mistaken." Id. at 798-99. In Thomas v. State, 526 So.2d 183 (Fla. 3d DCA 1988), a prosecution for armed robbery, the court found reversible error in the trial court's failure to instruct the jury that the defendant's good faith belief that the bicycle he forcibly took from the victim belonged to him was a valid defense to the robbery charge. Relying on Rodriguez and the line of older appellate decisions cited therein recognizing the common law rule "that a well-founded belief in one's right to the allegedly stolen property constitutes a complete defense to a charge of theft," the court concluded that since a theft is an essential element of robbery, the trial court was obliged to give the instruction. Id. at 184.

On the other hand, in many jurisdictions the claim of right defense has been denied in cases involving charges of robbery where the collection of a debt was honestly believed to be due but force or violent intimidation was used to effect the taking. The underlying rationale for this position has most frequently been said to be that the defendant has no ownership or immediate possessory interest in the specific property taken, i.e., money, and under such circumstances the requisite intent to steal is present. For example, affirming a conviction for robbery in State v. Larsen, 23 Wash.App. 218, 596 P.2d 1089 (1979), the court approved an instruction, given over the defendant's objections, stating that "a creditor's intent to collect a debt from his debtor by use or threatened use of immediate force, violence or fear of injury is not a defense to a charge of Robbery." The court explained:

Where self-help is used to recover specific property, it is a defense to a charge of robbery that a claim of title is made in good faith.... Under these circumstances, the defense is allowed because it raises the question of whether the actor proceeded with the intent necessary to constitute the crime of robbery. A contrary rule would prevent an owner of property who caught a thief in the act of carrying away that property from retaking it by force.... Where, as in this case, a person uses force to collect a debt with no claim of ownership in the specific property acquired, the defense is not allowed because the requisite intent necessary to constitute robbery is present....

Moreover, acceptance of Larsen's argument would sanction debt collection by force contrary to one of the purposes of Washington's Criminal Code, which is "[t]o forbid and prevent conduct that inflicts or threatens substantial harm to individual or public interests." RCW 9A.04.020(1)(a). As stated in State v. Ortiz, 124 N.J.Super. 189, 192, 305 A.2d 800, 802 (1973):

In our view, the proposition not only is lacking in sound reason and logic, but it is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence. Adoption of the proposition would be but one step short of accepting lawless reprisal as an appropriate means of redressing grievances, real or fancied. We reject it out of hand.

596 P.2d at 1090 (...