HERIBERTO RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rodriguez was convicted of first-degree felony murder for a killing committed by his co-felon during an attempted robbery. After his initial conviction was reversed on appeal due to an improper jury instruction, he was retried, convicted again, and appealed. The appellate court affirmed the conviction, finding the revised jury instruction properly placed the burden on the state to prove the homicide occurred as a consequence of the attempted robbery.
The court affirmed the conviction, holding that the jury instruction did not relieve the state of its burden to prove a causal connection between the homicide and the attempted robbery. The instruction properly informed the jury that the state must prove the death occurred as a consequence of the attempted robbery and while Rodriguez was attempting to commit it.
[1] A defendant charged with felony murder is entitled to a jury instruction that the victim's death stemmed from the independent act of a co-felon if supported by evidence.
[2] A jury instruction on felony murder does not impermissibly relieve the state of its burden of proof if it requires the jury to find a causal connection between the homici…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If you find that the killing of Alain Dubrose was an independent act on the part of Victor Raymond Ballester and was not committed during the course of and in furtherance of the crime of attempted robbery, then you must find the Defendant, Heriberto Rodriguez, not guilty of murder in the first degree.”
The jury instruction at issue that Rodriguez challenged as a judicial command to convict; demonstrates the proper allocation of burden to the state
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn March 14, 1988, Rodriguez parked his car near a Shell service station while his passenger Victor Ballester entered and demanded money from the atte…
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FRANK, Judge.
Heriberto Rodriguez, charged with first degree felony murder, was found guilty and sentenced to a life term. In his first appearance here, we reversed his conviction because of the trial court’s erroneous refusal of his request for a jury instruction, i.e., that the victim’s death stemmed from the independent act of a co-felon. Hence, we remanded the matter for a new trial, Rodriguez v. State, 571 So. 2d 1356 (Fla. 2d DCA 1990) (Rodriguez I), and he was again found guilty of first degree felony murder. In his present appeal he raises three points, only one of which merits discussion. We affirm.
The facts adduced on remand are essentially the same as those set forth in Rodriguez I. We begin by borrowing from our first opinion:
n March 14, 1988, at approximately 9:00 p.m., appellant parked his car in the vicinity of a Shell service station and store. His passenger, Victor Ballester, exited appellant’s vehicle, went into the Shell station, confronted the attendant on duty and demanded money. The attendant refused to give Ballester the money and Ballester walked to the door of the station as if he were leaving. After a lapse of approximately four seconds, Bal-lester returned to the counter, placed a revolver to the head of the attendant and executed him on the spot. After the shooting, Ballester, without making any effort to take money or other property from the station or the body of the attendant, exited the station, apparently rejoined appellant in his vehicle and left the scene.
Rodriguez I, 571 So. 2d at 1356.
At the remanded proceeding, the trial court instructed the jury on Rodriguez’s liability for the lethal acts of his co-felon:
If you find that the killing of Alain Dubrose was an independent act on the part of Victor Raymond Ballester and was not committed during the course of and in furtherance of the crime of attempted robbery, then you must find the Defendant, Heriberto Rodriguez, not guilty of murder in the first degree.
During the course of attempted robbery means that the act occurred prior to, contemporaneous with or subsequent to the attempted robbery and that the act and attempted robbery constitute a continuous series of events.
Rodriguez argues the latter instruction effectively constituted “a judicial command” to the jury to return a verdict of guilty. We disagree. No aspect of the instruction relieved the state of its burden to prove a causal connection between the homicide and the attempted robbery. See Bryant v. State, 412 So. 2d 347 (Fla.1982). Without emphasizing Rodriguez’s participation in the shooting, the trial court’s instruction informed the jury that the state’s burden included proving that the death of Alain Dubrose “occurred as a consequence of and while Heriberto Rodriguez was attempting to commit a robbery.” We subscribe to the view that the term “[djuring the course of attempted robbery” embodies the period when, as here, there is flight from the scene of the crime. See Hornbeck v. State, 77 So. 2d 876 (Fla.1955); Parker v. State, 570 So. 2d 1048 (Fla. 1st DCA 1990).
Because we have found no error in the instructions given the jury, we affirm.
CAMPBELL, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bryant v. State, 412 So. 2d 347 (Fla. 1982)
- THE Florida BAR v. Aronson, 412 So. 2d 347 (Fla. 1982)
- Parker v. State, 570 So. 2d 1048 (Fla. 1st DCA 1990)
- Hornbeck v. State, 77 So. 2d 876 (Fla. 1955)
- Heriberto Rodriguez v. State, 571 So. 2d 1356 (Fla. 2d DCA 1990)