AT THE BEGINNING, DURING OR AFTER. SO IF IF SOMEONE IS STEALING SOMETHING, AS YOUR CLIENT HAS BEEN ALLEGED TO HAVE DONE, AND IS CAUGHT AND IN THE

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1 >>> THE NEXT CASE IS ROCKMORE VERSUS STATE OF FLORIDA. >> YOU MAY PROCEED. >> THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT, MY NAME IS KATHRYN RADTKE. I'M AN ASSISTANT PUBLIC DEFENDER AND I REPRESENT THE APPELLANT. AS TO THE FIRST ISSUE RAISED >> LET ME JUST ASK YOU A QUESTION. >> YES, SIR. >> JUST THINKING ABOUT THIS, THE CHRONOLOGY OF THINGS, LET ME WALK YOU THROUGH THIS AND STAY WITH ME, PLEASE. AT THE TIME THAT YOUR CLIENT EXITED THE WALMART STORE WITH THE MERCHANDISE UNDERNEATH HIS JACKET AND WAS CONFRONTED BY THE SECURITY PERSON FROM WALMART IN THE PARKING LOT OUTSIDE THE STORE, AT THAT TIME WOULD YOU SAY THAT THE CRIME OF THEFT HAD BEEN COMPLETED? PETTY THEFT. IT COULDN'T HAVE BEEN ANYTHING MORE THAN PETTY THEFT. >> AS FAR AS PETTY THEFT. >> RIGHT. >> THERE HAD BEEN A CRIME COMMITTED AT LEAST AS TO PETTY THEFT, YES, SIR. >> ALL RIGHT. WHAT AGGRAVATED THE THEFT TO A ROBBERY WAS THE GETAWAY, THE CHASE, THE FACT THAT HE PULLED A GUN ON HIM AT THE CONCLUSION OF THE CHASE. >> THOSE WERE NOT QUITE THE FACTS. I DON'T THINK THAT IS AN AGGRAVATION TO >> WELL, THE ROBBING STATUTE, BASICALLY IT'S A THEFT AND IT BECOMES A ROBBERY IF SOME KIND OF THREAT OF VIOLENCE IS USED

2 AT THE BEGINNING, DURING OR AFTER. SO IF IF SOMEONE IS STEALING SOMETHING, AS YOUR CLIENT HAS BEEN ALLEGED TO HAVE DONE, AND IS CAUGHT AND IN THE PROCESS OF GETTING AWAY, VIOLENCE IS USED, THAT LIFTS THE THEFT TO A ROBBERY. THAT'S WHY WE HAVE A ROBBERY HERE, IS WHAT HAPPENED AFTERWARDS. >> WELL, THAT'S WHAT WAS CHARGED, YOUR HONOR. HOWEVER, RELYING ON THE PETERSON CASE, WE'RE GETTING RIGHT TO THE HEART OF IT. RELYING ON THE PETERSON CASE, WHERE THERE'S A BREAK, A SEPARATION IN THOSE EVENTS, YOU KNOW, A SEPARATION FROM THE THEFT >> WHERE WAS THE BREAK HERE? I MEAN, THE FACTS AS I UNDERSTAND THEM IS AS SOON AS HE WAS CONFRONTED OUTSIDE THE STORE IN THE PARKING LOT BY THE SECURITY GUARD AND YOUR CLIENT AT THAT TIME SUPPOSEDLY RAN AWAY, THERE WAS A CHASE THROUGH A NUMBER OF PARKING LOTS. THE FACTS ARE THAT THE GUARD NEVER LOST TRACK OF HIM, AND WHEN HE FINALLY CAUGHT UP WITH HIM, AT THE CAR WHERE YOUR CLIENT SUPPOSEDLY WAS RUNNING TO, ABOUT 10 OR 12 FEET AWAY YOUR CLIENT PRETTY MUCH SHOWED THEM A NICKELPLATED REVOLVE EVER IN HIS WAISTBAND. HOW IS THAT NOT A ROBBERY? >> THAT'S NOT QUITE THE FACTS. THEY CROSSED THREE PARKING LOTS, MAYBE BEHIND THE BUILDING, THERE MIGHT HAVE BEEN A GRASSY AREA. BUT THE CONFRONTATION WHEREIN THERE'S MORE THAN ONE CONFRONTATION, BASICALLY.

3 WHAT HAPPENED, THE SECURITY GUARD IS FOLLOWING MR. ROCKMORE AND HE'S SAYING INITIALLY, LISTEN, WE JUST WANT OUR PROPERTY BACK. AT ANOTHER POINT HE SAYS WE WANT YOU TO COME BACK TO THE STORE WITH US. AT ONE POINT HE CATCHES UP TO HIM >> DIDN'T HE TELL HIM HE WANTED HIS INFORMATION. >> HE MAY HAVE SAID HE WANTED HIS INFORMATION, TOO, YES, SIR. BUT THE INITIAL CONFRONTATION WAS HE CATCHES UP TO HIM AND THERE'S A CONFLICT IN THE TESTIMONY. THE SECURITY GUARD SAYS AT ONE POINT HE GRABBED AT MR. ROCKMORE'S JACKET OR TUGGED AT THE BACK OF IT AND MR. ROCKMORE IS SAYING, NO, WHAT HAPPENED WAS THE JACKET OPENED AND THE ITEMS DROPPED. AND HE SAID TOO THEN, THE SECURITY GUARD, SIR, HERE'S YOUR MERCHANDISE. WE'RE DONE. AND THEN HE REFUSED TO GO BACK WITH HIM. BUT THAT'S THE BREAK. IT'S OUR VERSION. IT'S OUR ARGUMENT THAT IS THE BREAK, THE SEPARATION THAT HAPPENED. >> THE SEPARATION THE BREAK WELL, BUT BY THAT TIME THE CRIME OF THEFT HAD BEEN COMMITTED. >> IT HAD BEEN COMMITTED, BUT THEN ESSENTIALLY RENUNCIATED. IT'S HIS UNDERSTANDING MR. ROCKMORE IS RESPONDING THEN TO THE SECURITY GUARD SAYING WE WANT OUR MERCHANDISE BACK. >> LET ME ASK YOU, GOING TO THAT, IF THE GUN WASN'T INVOLVED AND AT THE AFTER

4 THE TAKING OF THE PROPERTY, HE THROWS IT DOWN, THERE'S STILL A THEFT. >> YES, SIR. YES, MA'AM. I'M SORRY. MY APOLOGIES. >> AND THERE DOESN'T SEEM TO BE A DISPUTE THAT BEFORE ANYTHING OCCURS WITH THE SHOW OF FORCE, THE SHIRTS ARE THROWN OUT. >> YES, YOUR HONOR. >> IF IT WAS CLEAR THAT THE SOCKS WERE ALSO I MEAN, THE SOCK THAT WAS ALSO THERE WAS THROWN OUT, IS THAT THE ABANDONMENT OF THE CRIME, BUT IT DOESN'T MEAN THE CRIME OF THEFT WASN'T COMPLETED. >> RIGHT. IT'S ABANDONMENT IN THE SENSE OF THE TERM THAT'S USED BY THE SECOND DISTRICT COURT. >> SO YOUR POINT JUST SO WE IS THAT YOU WERE AND THE JURY INSTRUCTION THAT WAS GIVEN, WHICH SAYS THAT THE THE VICTIM HAS TO KNOW THAT HE HAD ABANDONED THE PROPERTY IS NOT A CORRECT STATEMENT OF THE LAW. >> YES, YOUR HONOR. THAT'S RIGHT. >> AND THAT FURTHER YOU SHOULD HAVE A STATEMENT OF THE LAW THAT LIKE THE WHICH DISTRICT IS IT, THE SECOND? >> SECOND. >> SECOND, THAT SAYS THAT IT IS A THAT IF THERE IS AN ABANDONMENT BEFORE THE FORCE, THAT IT'S NOT IT'S NOT REALLY THE BREAK ISSUE. ISN'T IT THAT THE ABANDONMENT OCCURS BEFORE ANY FORCE IS USED, SO AT THE POINT THAT THAT OCCURS, HE'S GUILTY HE'D BE GUILTY OF AGGRAVATED SAULT.

5 HE CONFRONTS SO HE'S GOT THEFT AND HE'S GOT AGGRAVATED ASSAULT. HE JUST MAY NOT HAVE THE ROBBERY. >> RIGHT. >> NOW, I DON'T KNOW. THAT MAY PUT YOUR DEFENDANT RIGHT BACK WHERE HE IS, WHICH IS AS A YOU KNOW, A LIFETIME PRISON OCCUPANT UNDER THE >> YOU'RE NOT SAYING THERE SHOULD BE A JUDGMENT. MAYBE YOU ARE. IT'S A DISPUTE AS TO WHETHER THE SOCKS WERE STILL THERE. >> THERE WAS SOMETHING OF A DIVERGENCE OF TESTIMONY BETWEEN MR. ROCKMORE AND THE SECURITY GUARD. >> DIVERGENCE MEANING -- >> EVIDENCE ON BOTH SIDES. THE SECURITY GUARD WAS VERY CLEAR IN HIS MIND THAT ONLY THE SHIRTS CAME OUT, NOT THE SOCKS. IT'S FOR THE FINDER OF FACT. >> IF I COULD, YOUR HONOR, I THINK THEY'RE NOT MUTUALLY EXCLUSIVE. WHAT THE SECURITY GUARD TESTIFIED TO IS THAT HE DID NOT SEE THE SOCKS DROP, AND THAT HE BELIEVED THAT MR. ROCKMORE STILL HAD THE SOCKS. HOWEVER -- >> WASN'T THERE TESTIMONY THAT THE SOCKS WERE NEVER FOUND? >> YES, SIR, YES, SIR, THERE WERE. >> PRETTY STRANGE, RIGHT? I MEAN -- THEY WEREN'T FOUND ON HIM. WAS HE ARRESTED IMMEDIATELY? >> NO. NO, YOUR HONOR. >> SO HE COULD HAVE THROWN

6 THE SOCKS ANYPLACE. >> HE COULD HAVE DROPPED THEM. >> THE DISPLAY OF THE WEAPON HAD SECURED HIS DEPARTURE. FROM THAT POINT ON, HIS DEPARTURE WAS UNIMPEDED. >> CORRECT. >> GOING BACK TO WHAT I WAS ASKING -- >> YES, YOUR HONOR. >> AND THIS IS WHY I'M STUCK BECAUSE THE PURPOSE OF THE ROBBERY STATUTE, AND CREATING A CRIME WHEN VIOLENCE IS USED BEFORE, DURING OR AFTER. THE REASON FOR THE AFTER IS USUALLY RELATED TO THE GETAWAY. USUALLY RELATED TO SOMEONE WALKING INTO A BANK, FOR EXAMPLE, AND BASICALLY HANDING A NOTE OUT AND SAYS GIVE ME YOUR MONEY OR WHATEVER, AND THEN AFTER HE'S APPREHENDED OUTSIDE, VIOLENCE IS USED. IF YOU'RE USING VIOLENCE TO GET AWAY FROM THE ROBBERY, THAT'S WHAT THAT'S INTENDED FOR. HERE WE HAVE A COMPLETED CRIME WITH THEFT. HE'S GETTING AWAY FROM THE AUTHORITIES IN THIS CASE, AND DURING THAT GETAWAY, THAT'S WHEN HE USES THE VIOLENCE. SO I DON'T SEE THE BREAK IN THE ACTION. I DON'T SEE THE ABANDONMENT. THE CRIME HAD BEEN COMMITTED. >> YOUR HONOR, THE BREAK IS WHERE HE DROPS THE MERCHANDISE. >> BUT THAT'S A BREAK IN THE THEFT. THAT'S NO BREAK IN THE THEFT. IT HAD BEEN COMMITTED. >> ISN'T IT THAT THE BREAK IS THE NEXUS BETWEEN THE THEFT

7 -- A ROBBERY HAS TO BE FORCE. THERE IS NO FORCE IN THE ROBBERY. THERE IS FORCE IN THE GETAWAY. THAT'S WHERE THE BREAK WOULD BE, WOULDN'T IT? >> YOUR HONOR, YES, AND THE DROPPING OF THE MERCHANDISE. >> HE DIDN'T USE FORCE TO OBTAIN THE ITEM? >> NO, SIR. >> SO THEREFORE -- >> WASN'T AT ALL. >> -- ABANDONED, DROPPED, WHATEVER, THEN HE FLED, AND THE WEAPON WAS SHOWN WHEN HE WAS TRYING TO GET AWAY. BUT THE THEFT HAD BEEN COMPLETED. >> WELL, YEAH, THERE WAS A DIFFERENCE OF TESTIMONY TOO AS TO WHETHER THE WEAPON WAS -- >> AHHH. >> WHAT WE ARE STRUGGLING WITH HERE IS WHETHER THIS WAS A DISPLAY OF THE WEAPON WAS PART OF A CONTINUOUS SERIES OF ACTS OR EVENTS THAT GO BACK TO THE THEFT. >> YES, YOUR HONOR. >> FROM ONE PERSPECTIVE, IT'S OBVIOUSLY OF A CONTINUOUS SERIES OF ACTS OR EVENTS. YOU NEVER WOULD HAVE GOTTEN TO THE DISPLAY OF THE WEAPON AND THE THREAT WITH THE WEAPON BUT FOR ALL OF THOSE THINGS THAT HAPPENED BEFORE THAT. ISN'T THAT ACCURATE? I MEAN, FROM THAT PERSPECTIVE, IT'S UNDENIABLY PART OF A CONTINUOUS SERIES OF ACTS OR EVENTS. >> MY RESPONSE TO THAT, YOUR HONOR, WOULD BE TO RELATE -- COMPARE THESE FACTS WITH THE FACTS IN THE CASE OF THE

8 PETERSON DECISION. >> WELL, YOU KNOW, PETERSON -- I'M NOT SAYING THAT THE DISTRICT COURTS HAVE DECIDED THAT IN A WAY THAT IS CONSISTENT WITH WHAT I'VE JUST NOW SAID. BUT WOULDN'T YOU AGREE THAT AT LEAST IN SOME WAY, TO SAY THAT THIS IS NOT ALL THESE THINGS ARE NOT PART OF A CONTINUOUS SERIES OF ACTS OR EVENTS, IT JUST SEEMS TO BE KIND OF FAR-FETCHED. >> WELL, YOUR HONOR, I GUESS THE ANALOGY WOULD BE, IT WAS A CONTINUOUS ACTS AND EVENTS FOR ME TO LEAVE THE HOTEL THIS MORNING AND CROSS THE STREET AND STOP FOR COFFEE AND COME HERE, BUT ARE THEY ALL CONNECTED? >> WELL, THE COFFEE MIGHT BE A FROLIC OR A DETOUR. I GET THAT'S PART OF THE LAW. >> NEVER SAID STOPPING FOR COFFEE FOR THIS ONE. >> HE STOPPED AND HE DROPPED THE MERCHANDISE, AND THAT ENDED THE THEFT. AND FROM THERE, HE WAS JUST -- YEAH, I'M SORRY. >> THAT'S THE CRUX OF THE CASE. >> YES. >> WE HAVE TO BE CAREFUL NOT TO PEEL THIS ONION SO, SO ABSURDLY THAT THE LAW MAKES NO SENSE. >> YES, SIR. >> AND SO, I MEAN, I DON'T KNOW HOW, YOU KNOW, CERTAINLY THIS IS NOT A CASE WHERE HE GOES TO THE CAR AND NOTHING HAPPENS AND HE HAPPENS -- THE GUARD HAPPENS TO SEE HIM TWO WEEKS LATER AND HE SHOWS HIM A GUN. CERTAINLY THAT IS BROKEN. ON THE NIGHT OF THE EVENT,

9 I'M AT A LOSS, TO FOLLOW THIS ARGUMENT THAT IS BEING A LOGICAL, COMMONSENSE APPROACH. >> THE CRUX OF THE CASE IS THIS WAS HIS DEFENSE, AND HE'S ENTITLED TO AN ACCURATE JURY INSTRUCTION ON HIS DEFENSE. >> HE'S NOT ENTITLED -- IF IT'S NOT A DEFENSE. IF THIS CONCEPT THAT THIS -- WHAT WE HAVE HERE IS AN ABANDONMENT, ISN'T IT? >> YES, SIR. >> IT'S NOT REALLY -- AT LEAST IN SOME SENSE IT'S NOT VOLUNTARY. THE ABANDONMENT IS ONLY OF THE PROPERTY, ONLY OCCURS BECAUSE HE'S BEEN CAUGHT, AND HE'S BEING CHASED, AND HE'S TRYING GET THEM OFF HIS TRAIL, AND HE'S TRYING GET AWAY. SO TO THE EXTENT THAT YOU'D SAY THAT'S VOLUNTARY, THAT'S A PRETTY COERCED VOLUNTARY. >> WELL, YOUR HONOR, THE USE OF THE WORD "VOLUNTARY" IS EXACTLY THAT, WHICH WAS SUGGESTED BY THE STATE, OBJECTED TO BY THE APPELLANT AT TRIAL. >> SO YOU'RE SAYING IT DOESN'T HAVE TO BE -- VOLUNTARY HAS GOT NOTHING TO DO WITH IT. >> RIGHT, IT DOESN'T APPLY IN THE ROBBERY CASES, SERIES OF ROBBERY CASES THAT LED UP TO THIS. >> LET ME ASK YOU THIS -- SINCE WE DON'T KNOW, WE KNOW HE DROPPED AT SOME POINT, AND I THOUGHT IT WAS WELL AFTER HE LEFT THE STORE, BUT THE -- THE UNDERWEAR -- AND THE RECORD REALLY DOESN'T TELL US WHAT HAPPENED TO THE SOCKS.

10 >> RIGHT. >> THEY WERE NEVER FOUND. THE DEFENDANT SAYS THAT HE DROPPED THEM AT SOME POINT WHEN THE SECURITY GUARD SAID HE THOUGHT HE STILL HAD THE SOCKS BECAUSE HE NEVER SAW HIM DROP THE SOCKS. SO IF -- IF WE ASSUME THAT HE STILL HAD THE SOCKS ON HIM, AT THE TIME THAT HE SHOWED THE OFFICER, OR THE SECURITY GUARD A GUN, ISN'T IT STILL GOING ON? IF HE HAS -- IF HE STILL HAS IN HIS POSSESSION, THE SOCKS, ISN'T THE CRIME STILL GOING ON? COULD NOT BE ANY ABANDONMENT IF HE STILL HAS THE SOCKS. >> I THINK THAT WOULD BE A QUESTION FOR THE JURY TO DECIDE AFTER BEING PROPERLY INSTRUCTED. >> THAT'S WHERE I STARTED AT. IT'S NOT A QUESTION OF HIM GETTING A JUDGMENT OF ACQUITTAL. >> RIGHT. >> YOU HAD BEEN BETTER OFF. YOU WOULD HAVE BEEN BETTER OFF WITH THE STANDARD INSTRUCTION BEING GIVEN, BEING ABLE TO ARGUE WHAT YOU WANTED TO ARGUE, BUT WITH THE INSTRUCTION GIVEN WHERE IT SAID THAT THE VICTIM OR THE GUARD WOULD HAVE TO KNOW THAT HE HAD ABANDONED THE PROPERTY; THAT THERE'S NOTHING IN THE LAW THAT WOULD SUGGEST THAT? I GUESS YOU DON'T AGREE WITH THAT. >> I DON'T THINK THAT THE STANDARD INSTRUCTION INCLUDES THE TERM ABANDONMENT ANYWHERE IN IT. >> YOU WOULD HAVE HAD TO EXTRACT ABANDONMENT FROM THE

11 INSTRUCTION, THE LAST PARAGRAPH WAS AS IN THE COURSE OF THE TAKING. THE ACT OCCURRED PRIOR TO CONTEMPORANEOUS WITH OR SUBSEQUENT TO THE TAKING OF THE PROPERTY, AND THE ACT IN THE TAKING OF THE PROPERTY CONSTITUTES CONTINUOUS SERIES OF ACTS OR EVENTS. SOMEWHERE IN THERE, YOU ARE SUPPOSED TO EXTRACT, CONVINCE THE JURY, THAT ABANDONMENT EXITS AS A DEFENSE IN THIS CASE. ESPECIALLY -- THAT WOULD BE A STRETCH I WOULD THINK. >> THAT'S WHY A SPECIAL INSTRUCTION WAS REQUESTED. >> WHERE IS THAT IN THE STATUTE? WHERE IS THIS ABANDONMENT DEFENSE, WHERE DOES THAT COME FROM? IT SEEMS LIKE TO ME -- >> IT COMES FROM CASE LAW. >> I UNDERSTAND THAT. WHERE DO THEY GET IT? IT DOESN'T COME FROM OUR CASE LAW, DOES IT? NOT THIS COURT'S? >> NOT THIS COURT, THAT'S RIGHT. THERE'S SOME DIFFERENCE OF OPINION IN THE DISTRICTS, AND THAT'S WHY WE'RE HERE. >> I DIDN'T KNOW THERE WAS DIFFERENCE. I THOUGHT THEY ALL AGREE ON ABANDONMENT. >> THEY ALL AGREE ON ABANDONMENT. >> WHERE DO THEY GET THAT FROM IS WHAT THE QUESTION IS. >> COMMON LAW. >> COMMON LAW. >> YES. >> YOU'RE IN YOUR REBUTTAL TIME. >> MAY IT PLEASE THE COURT.

12 MY NAME IS PAM KOLLER. I REPRESENT THE STATE OF FLORIDA. NUMBER ONE, I WOULD ARGUE THE INTERVENING ACT IS SOMETHING DIFFERENT FROM ABANDONMENT. I'M WITH JUSTICE CANADY, I'M NOT SURE WHERE THIS WAS CREATED FROM. IF YOU LOOK AT THE STATUTE THAT IS CODIFIED THE COMMON LAW ABANDONMENT OR INCHOATE CRIME THEY TALK ABOUT VOLUNTARY COMPLETE ABANDONMENT OF THE CRIMINAL PURPOSE AND NOT THAT YOU DROPPED THE PROPERTY. YOU DON'T POSSESS DRUGS AND DROP THE DRUGS. >> LET'S SAY IF THERE WERE TWO DAYS INTERVENING, WALKS OUT OF WALMART, GOT HIM AND CONFRONT HIM, THEY THINK HE'S THE GUY FROM LOOKING AT SURVEILLANCE TAPE AND CONFRONT HIM, AND HE SOMEHOW PULLS A WEAPON ON THEM. IS THAT DIFFERENT? >> ABSOLUTELY. NOT A CONTINUOUS SERIES OF EVENTS OR ACTS. IN THIS CASE HE FOLLOWS THE GUY AROUND, CONFRONTS HIM, HE TAKES OFF RUNNING, HE TAKES OFF RUNNING AFTER HIM, AND BASICALLY SEES HIM ALL THE WAY TO THE CAR AND THE FLASHING OF THE GUN. >> WHAT WOULD YOU CALL THAT? YOU WOULDN'T CALL THAT ABANDONMENT? >> NO, IT WASN'T VOLUNTARY. THE COMMON LAW REQUIRES IT TO BE VOLUNTARY AND COMPLETE. THAT MEANS IT'S VOLUNTARY, WHEN YOU SEE A POLICE OFFICER. >> IT'S NOT IN THE CONTEXT OF A DEFINITION OF ROBBERY STATUTE.

13 THAT'S HOW YOU WOULD DERIVE THAT, RIGHT? >> I DON'T THINK THIS IS THE ABANDONMENT DEFENSE IN ANY PLACE, IN THE STATUTE OR COMMON LAW. >> I GUESS WHAT MY -- WHAT HAPPENED HERE, THOUGH, IN THE CASE IS THAT THE JUDGE DECIDES THAT THE SPECIAL INSTRUCTION REQUESTED IS NOT GIVEN, AND IF THE JUDGE SIMPLY, PERHAPS, KEPT WITH THE STANDARD INSTRUCTION, MAYBE THERE WOULD BE ERROR. YOU WOULD SAY THERE'S NO RIGHT TO A SPECIAL INSTRUCTION BECAUSE THIS IS REALLY NOT A RECOGNIZED DEFENSE, BUT BY GIVING THE INSTRUCTION, THE PART THAT I'M -- I'M NOT AS CONCERNED ABOUT THE VOLUNTARY PART AS I AM ABOUT THE SECOND PART OF THE INSTRUCTION THAT WAS GIVEN THAT SAYS AND THE VICTIM HAS TO KNOW THAT HE ABANDONED IT. THAT SEEMS TO BE A MISSTATEMENT OF THE LAW, AND THE FIFTH DISTRICT SAYS, WELL, THAT WAS -- IT'S INVITED ERROR. I CAN'T UNDERSTAND HOW INVITED ERROR COULD BE THAT IF YOU GIVE A CORRECT INSTRUCTION, AND THE JUDGE SAYS NO, I'M NOT GIVING THAT, I'M GIVING THIS, AND YOU, AS THE DEFENSE LAWYER, OBJECT TO IT AS GIVEN AND GIVE THE JUDGE THE SPECIFIC REASON, THAT THAT'S ANY CONCEPT OF INVITED ERROR? >> WELL, NUMBER ONE, THE INSTRUCTION CLEARLY BENEFITTED THE DEFENDANT. BECAUSE THE LAW IS NOT BECAUSE YOU ABANDON PROPERTY. YOU MUST ABANDON CRIMINAL

14 PURPOSE, NOT JUST THE PROPERTY, YOUR CRIMINAL PURPOSE. BASICALLY THE JURY WAS TOLD IN THIS CASE -- >> HOW DOES THAT DIFFER FROM ABANDONING PROPERTY? SEEMS TO ME THE CRIMINAL PURPOSE WAS TO GET -- HE SAYS IT WAS TO GET THE PROPERTY AND CONVERT IT SOMEHOW INTO BUYING SOME COCAINE. WELL, ONCE YOU GIVE UP THE PROPERTY, IT SEEMS TO ME THE PURPOSE IS ABANDONED, TOO. HOW IS THAT DIFFERENT? HE DIDN'T VOLUNTARILY ABANDON. HE DIDN'T DROP THE PROPERTY BECAUSE -- IF THIS WERE A PURE ABANDONMENT OF HIS CRIMINAL PURPOSE, HE WOULD HAVE STOPPED, HE WOULD HAVE SAID YOU'RE RIGHT, HERE'S YOUR STUFF, HERE'S MY ID, SO I CAN'T BE TRESPASSING. I'LL NEVER COME BACK. I PROMISE. >> IT WOULD STILL BE A THEFT, WOULDN'T IT? >> STILL BE A THEFT. >> WE'RE TALKING ABOUT ROBBERY. HE DIDN'T USE THE FORCE TO EFFECT THAT? >> TO EFFECT THE FLIGHT. >> HE USED THE WEAPON TO REALLY ABANDON, TO GET AWAY. >> CORRECT. ABSOLUTELY. [ LAUGHTER ] >> AGAIN, AND THIS ISN'T CLEAR IN THE FACTS, BUT WE ARE TALKING ABOUT SHIRTS AND SOCKS. AND HE LEAVES. SECURITY GUARD, DOING HIS JOB FOR WALMART, GOES AFTER HIM, HE TAKES OFF. IN MOST CASES, KIDS -- I

15 WOULD IMAGINE THAT'S NOT, IN THE WALMART EXPERIENCE, OUT OF THE ORDINARY OF PEOPLE THAT TAKE STUFF FROM WALMART. THEN WHAT HAPPENS? WHAT IF HE SEES THE GUY RUNNING, AND THE GUY SAYS I WANT MY PROPERTY, AND I WANT YOU TO COME BACK, AND HE TAKES THE SHIRT, TAKES THE SOCKS, SAYS HERE'S YOUR DARN PROPERTY, AND CONTINUES TO RUN? AND HE'S DOING IT NOT BECAUSE HE DOESN'T WANT THE PROPERTY, BUT BECAUSE HE DOESN'T WANT TO BE HAULED BACK INTO WALMART AND ARRESTED FOR THE THEFT. NOW HE'S CONTINUING TO RUN, THE GUY DECIDES -- THE SECURITY -- WHAT IS IT? >> LOSS PREVENTION OFFICER. >> LOSS PREVENTION OFFICER WHO THANKFULLY, I GUESS, DOESN'T HAVE A GUN, WHO KNOWS WHAT MIGHT HAVE HAPPENED HERE? CONTINUES TO RUN AFTER HIM. AND AT THAT POINT WHEN HE RUNS AFTER HIM, THE DEFENDANT SAYS GET OUT OF MY WAY, HAS THE GUN. NOW, I GUESS I'M JUST HAVING PROBLEMS WITH THAT BEING, EVEN UNDER THE LEGISLATURE'S EXPANDED DEFINITION OF ROBBERY, THAT THAT ISN'T JUST TWO SEPARATE CRIMES -- THEFT AND AGGRAVATED ASSAULT -- AS OPPOSED TO ROBBERY, AND THAT'S THE QUESTION WHETHER THE JURY WAS CORRECTLY INSTRUCTED ON WHAT HAD TO BE -- WHAT THE DEFENSE WAS WHEN IT SAID, WELL, THAT THE LOSS PREVENTION OFFICER HAD TO KNOW THAT HE HAD ABANDONED THE PROPERTY? >> NUMBER ONE, I THINK

16 EVERYBODY AGREED, EVEN COUNSEL'S BRIEF, EVERYBODY KNEW THIS HAPPENED. THE DEFENDANT TESTIFIED, HERE'S YOUR STUFF, LEAVE ME ALONE. HE KNEW THE T-SHIRTS HAD DROPPED OUT WHEN HE GRABBED HIS JACKET. THE VICTIM KNEW IF THIS WAS THE DEFENDANT'S INTENT THAT HE HAD ABANDONED OR GOT RID OF THE PROPERTY OR TRYING TO GET RID OF THE PROPERTY. [ INAUDIBLE ] >> IN THE CASE, WHERE -- FOR EXAMPLE, WHERE THE GUY WAS ABLE TO OUTRUN THE SECURITY GUARD, GOT IN THE CAR, AND THEN THEY DROVE DOWN A COUPLE OF MILES, WHATEVER, AND STOPPED AT A 7-ELEVEN TO GET A COKE OR WHATEVER, AND THERE SUDDENLY THE GUARD CAME WITH THE POLICE AND BRANDISHED THE GUN AND SAID GET OUT OF MY WAY, I CAN SEE AGGRAVATED ASSAULT. >> ABSOLUTELY. THEY WERE IN THE ACT. >> DURING THE HEAT OF THE ACTION, IF YOU WANT TO USE THOSE WORDS, FOR HIM TO BRANDISH THE GUN, I DON'T SEE HOW THAT COULD BE TWO SEPARATE CRIMES WHEN THE STATUTE SAYS IT'S AFTER. >> CORRECT, IF YOU USE A WEAPON IN ORDER TO ESCAPE OR FLEE --. >> I DON'T SEE THAT. >> I DON'T EITHER. I DON'T UNDERSTAND WHERE THE ABANDONMENT COMES FROM. IF YOU DROP THE PROPERTY, YOU CAN'T BE FOUND GUILTY OF -- THE JUDGE USED IT AS AN EXAMPLE, I DROPPED THE PROPERTY TO SHOW MY GUN TO THE GUARD.

17 >> I UNDERSTAND YOU BUY THIS ISN'T ABANDONMENT, BUT WAS IT REALLY A JURY ISSUE AS TO WHETHER OR NOT THERE WAS AN ABANDONMENT HERE? >> NOT A JURY ISSUE AS TO ABANDONMENT. THE ISSUE IS WHETHER THERE IS AN INTERVENING ACT. >> HE HAD PROVEN THAT DEFENSE, WASN'T IT? >> I DON'T THINK THAT THIS -- THAT HE QUALIFIED FOR THIS DEFENSE ANYWAY. NUMBER ONE, HE DIDN'T VOLUNTARILY DROP ANYTHING. >> EVIDENTLY, THE TRIAL JUDGE THOUGHT THAT HE -- >> BECAUSE OF THE PETERSON CASE. >> THERE WAS SUFFICIENT EVIDENCE TO BE ENTITLED, BECAUSE THE DEFENDANT IS ENTITLED TO AN INSTRUCTION ON HIS OFFENSE IF THERE IS -- >> AS MODIFIED. AND SHE PUT IN THE "VOLUNTARY AND COMPLETE," WHICH IS THE CORRECT STATEMENT OF THE LAW, NOT THAT -- BECAUSE THE PETERSON CASE SAYS NOTHING ABOUT WHETHER IT'S VOLUNTARY AND COMPLETE. IF YOU ABANDON THE PROPERTY BEFORE USE OF FORCE, YOU ARE NOT GUILTY OF ROBBERY. >> I THINK ABANDONMENT WOULD HAVE MEANT IN THIS CASE IF BEFORE HE EXITED THE STORE, HE WOULD HAVE DROPPED THE STUFF IN THE BASKET AND COME BACK. NOT DOING IT AFTER HE GOT CAUGHT. >> CORRECT. THAT'S THE WHOLE POINT. IT'S NOT -- THE COMMON LAW IS VERY CLEAR. IT'S NOT VOLUNTARY IF YOU'RE DOING IT TO AVOID CAPTURE.

18 IT'S NOT COMPLETE IF IT'S DONE BECAUSE YOU FIGURE I'M GOING TO PUT THE STUFF AWAY OR LEAVE THE STUFF HERE SO I CAN COME BACK AT A LATER TIME TO STEAL IT AGAIN. IT HAS TO BE COMPLETE AND VOLUNTARY IN ORDER TO BE THE ABANDONMENT DEFENSE AS THE COMMON LAW RECOGNIZES AND AS FLORIDA LAW RECOGNIZED AND CODIFIED, AND APPLIES TO THE INCHOATE CRIME, WHICH IS THE PURPOSE OF THAT STATUTE. THERE'S A DIFFERENCE BETWEEN THE ABANDONMENT OF PROPERTY, AND YOU DO IT BECAUSE YOU ARE CHASED BY THE COPS, AND YOUR ACTUAL ABANDONMENT OF THE PROPERTY BECAUSE YOU ARE ABOUT TO LEAVE THE STORE AND YOU REALIZE, YOU KNOW, WHAT -- >> ARGUMENT REALLY IS HE WAS NOT ENTITLED TO THE INSTRUCTIONS, SO ANY ERROR IS -- >> INVITED OR HARMLESS. THE INSTRUCTION SAYS THE LAW, EXCEPT THAT IT SAID IF HE ABANDONED THE PROPERTY. THE INSTRUCTION SHOULD HAVE SAID THAT HE ABANDONED HIS CRIMINAL PURPOSE IN COMMITTING THIS ROBBERY WHEN HE DROPPED THE PROPERTY, I GUESS, AND I THINK THERE'S A DIFFERENCE IN THAT. >> WOULDN'T -- THIS PORTION OF THE STATUTE SAYS AN ACT IN THE COURSE OF ROBBERY IF IT OCCURRED IN THE THEFT EVENT, ROBBERY, OR IN FLIGHT AFTER THE INTENT TO COMMIT? COMMISSION? >> IN THIS CASE, IF THE DEFENDANT ASKED FOR INSTRUCTION ON ATTEMPTED ROBBERY -- SAY I GOT RID OF ALL THE PROPERTY AND USED

19 VIOLENCE, THAT THAT'S AN ATTEMPTED ROBBERY BECAUSE I DIDN'T GET MY STUFF. >> I THINK THE ISSUE HAS TO DO WITH THE JURY INSTRUCTION GIVEN BY THE COURT THAT MIGHT HAVE BEEN ERRONEOUS. HAD HE EXPANDED THE JURY INSTRUCTION, IT WOULD BE OKAY. HE GAVE THE WRONG INSTRUCTION. >> BASED ON PETERSON AND THE REQUEST BY THE DEFENSE. >> THE QUESTION IS WHETHER THAT'S PROBABLY FAIR OR NOT? >> I THINK IT IS BECAUSE BASICALLY THIS INSTRUCTION SAYS IF YOU FIND THE DEFENDANT ABANDONED THE PROPERTY AND THE VICTIM KNEW -- WHICH EVERYBODY AGREED THE VICTIM KNEW ABOUT THIS -- THEN HE'S NOT GUILTY OF A ROBBERY, AND THE LAW IS ACTUALLY THAT YOU VOLUNTARILY AND COMPLETELY ABANDON YOUR CRIMINAL PURPOSE, THEN YOU ARE NOT GUILTY OF THE ROBBERY. THAT'S A DIFFERENT STANDARD. SO THAT'S AN EASIER STANDARD TO SHOW YOU GOT RID OF THE PROPERTY VERSUS YOU ABANDON CRIMINAL PURPOSE. >> TO FOLLOW UP ON JUSTICE PERRY'S ISSUE, WOULD YOU AGREE THAT JUST THAT PARTICULAR INSTRUCTION IN THESE CASES WOULD BE SUFFICIENT WITHOUT A NEED FOR SOME OTHER KIND? >> ABSOLUTELY. THEN THE DEFENSE COULD ARGUE THIS IS NOT A CONTINUOUS SERIES OF EVENTS. SAY, WHEN HE TOOK OFF RUNNING OUTSIDE THE STORE, THE OFFICER SAID, OKAY, I'M JUST GOING TO GO IN AND CALL THE

20 COPS. SO HE TOOK OFF AND THERE WAS NO WEAPON, BUT THEN A WEAPON WAS USED IN FIGHTING WITH THE COPS OR SOMETHING WHEN HE FINALLY STOPPED THEM LATER ON. OBVIOUSLY, THAT'S NOT A CONTINUOUS SERIES OF EVENTS OR ACTS. THAT WOULD BE THE DEFENSE'S ARGUMENT. THIS IS NOT A CONTINUOUS SERIES OF EVENTS. THIS STOPPED IT. NO LONGER A ROBBERY OR NO LONGER A THEFT, AND IT'S OVER WITH; THEREFORE, I'M NOT GUILTY OF ROBBERY. THAT'S KIND OF WHAT THE DEFENDANT ARGUED IN THIS CASE. HE SAID I AM GUILTY OF PETTY THEFT AND RESISTING EFFORTS OF A MERCHANT. I'M NOT GUILTY OF ROBBERY. NUMBER ONE, HE DENIED HAVING A FIREARM ON HIM. HE DENIED THERE WAS FORCE TO BEGIN WITH. >> YOU SAY HAVING THE SPECIAL JURY INSTRUCTION, TO THE EXTENT THAT IT WAS NOT A MISSTATEMENT OF LAW, HELPED THE DEFENDANT MORE TO BE ABLE TO SAY, LISTEN, THEY TALKED ABOUT THIS ABANDONMENT WHICH, AS JUSTICE LABARGA POINTED OUT, IT'S NOT IN THE STANDARD JURY INSTRUCTION. >> IN THIS CASE, IT HAD THE PHRASE THE VICTIM WAS AWARE OF SUCH ABANDONMENT. IF THE JURY WAS SITTING THERE WITH THE TESTIMONY OF THE SECURITY GUARD SAYING HE THOUGHT HE STILL HAD SOCKS, THAT WAS AN ISSUE, RIGHT? SO --. >> THAT WOULD GO WITH THE

21 VOLUNTARY AND COMPLETE, BECAUSE I'M PRETTY SURE THE STATE SAID THIS WAS INVOLUNTARY BECAUSE HE WAS CHASED BY A LOSS PREVENTION OFFICER. >> THAT WAS THE FIRST PART. IT WAS THE SECOND PART THAT WAS TROUBLESOME THAT THE VICTIM WAS AWARE OF ABANDONMENT. IF THAT'S NOT THERE WITH THE SECURITY GUARDS TESTIFYING THAT HE THOUGHT HAD IT, THAT'S A MISSTATEMENT OF THE LAW. HOW COULD THAT BE HARMLESS? >> HE'S NOT ENTITLED TO THE ABANDONMENT. IF THEY BELIEVE THE SECURITY OFFICER -- THAT HE NEVER GOT RID OF ALL OF HIS PROPERTY, HE'S NOT ENTITLED TO ABANDONMENT -- IT'S NOT ABANDONMENT ANYWAY. BASICALLY -- >> I AGREE. THE PROBLEM IS YOU GOT THIS JURY INSTRUCTION OUT THERE. >> RIGHT, I DON'T THINK IT WOULD HAVE MADE A DIFFERENCE. IT CLEARLY WASN'T VOLUNTARY AND COMPLETE. HE GOT CAUGHT UP ON THAT ANYWAY. EVERYONE AGREED THAT ASSUMING THERE HAD BEEN -- >> THERE'S A DIFFERENCE. I DON'T SEE HOW THERE CAN BE A REASONABLE DIFFERENCE WHETHER IT WAS VOLUNTARY BECAUSE IT'S ALL FORCED BY THE CONFRONTATION. THERE IS A FACTUAL DIFFERENCE ON WHETHER IT WAS COMPLETE OR NOT. >> CORRECT. >> HE SAYS -- THE DEFENDANT SAYS IT WAS COMPLETE, HE GOT RID OF ALL THE STUFF.

22 AND THE SECURITY -- THE RISK OFFICER SAYS NO, IT WASN'T. HE STILL HAD THE SOCKS. >> RIGHT. >> THAT'S AN ACCURATE UNDERSTANDING OF WHAT THE RECORD SHOWS, RIGHT? >> CORRECT, AND THEN IT'S A DETERMINATION WHO YOU THINK IS MORE -- >> THAT'S THE JURY'S DETERMINATION. >> ABSOLUTELY. THAT CANNOT BE INCLUDED IN A J.O.A. >> WHAT ARE THE LESSER OFFENSES? >> ROBBERY WITH A WEAPON, AGGRAVATED ASSAULT WITH A FIREARM, RESISTING A MERCHANT, AND PETTY THEFT. IF THEY THOUGHT THIS WAS JUST -- I ASSUME THEY COULD FIND MORE THAN ONE CRIME -- HIM GUILTY OF MORE THAN ONE CRIME. HE WAS ARGUING WITH A MERCHANT, AND PETTY THEFT WAS THE CRIME HE WAS FOUND GUILTY OF. >> THEFT WOULD BE ASSUMED WITHIN THE ROBBERY CHARGE. >> RIGHT BECAUSE PETTY THEFT -- >> PETTY THEFT. YOU'RE SAYING THEY COULD HAVE FOUND HIM GUILTY OF AGGRAVATED ASSAULT AND PETTY THEFT IF THEY'RE LESSER INCLUDED OF ONE CHARGE -- >> BECAUSE OF THE STUCKEY CASE THAT YOU CAN BE FOUND RESISTING OF A MERCHANT AND THE PETTY THEFT, AND I'M PRETTY SURE THAT'S WHAT HE ARGUED DURING CLOSING ARGUMENTS BY THE DEFENSE IF THAT'S ALL I'M GUILTY OF. >> ROBBERY WITH A FIREARM. HE WAS CHARGED WITH ONE

23 OFFENSE? >> CORRECT. >> A COMPOSITE OFFENSE. >> TWO OFFENSES FROM THAT ONE OFFENSE. >> CORRECT BECAUSE IT'S A COMPOSITE OFFENSE. I DID TRY TO TAKE THAT UP TO THAT COURT. BECAUSE OF THE COMPOSITE OFFENSE, THAT HE WAS ENTITLED TO BE FOUND GUILTY OF TWO OFFENSES, RESISTING EFFORTS OF A MERCHANT AND PETTY THEFT. THAT WAS ARGUED TO THE JURY THAT DAY. >> THE JUDGE CAME UP WITH ABANDONMENT HIMSELF, CORRECT? >> SHE DID, YES. >> SHE DID? AND THE STATE, ANY WAY OR FORM TRY TO TALK HER OUT OF IT? >> WE OBJECTED TO THE INSTRUCTION, WHEN SHE DECIDED SHE WAS GOING TO MODIFY -- I THINK SHE WASN'T GOING TO DO IT, AND SHE SAID I LOOKED AT THE CASE LAW AND IT HAS TO BE "COMPLETE AND VOLUNTARY" AND ADDED THAT LANGUAGE, AND THE STATE SAID ONE OF THE ELEMENTS OF ROBBERY HAS TO DO WITH THE VICTIM AND THE VICTIM'S KNOWLEDGE. THAT'S WHEN THIS GOT BROUGHT IN. >> THE STATE LED HER DOWN THAT PATH. >> SHE WAS DECIDING TO GIVE THE INSTRUCTION WHICH THEY WERE OBJECTING TO, ANYWAY. >> AND THE DEFENDANT, SO THAT ADDITIONAL PART OBJECTED. >> THEY OBJECTED TO ALL OF THE MODIFICATION. >> I UNDERSTAND. THEY OBJECTED TO THE STATE SUGGESTION THAT THE VICTIM

24 HAD TO KNOW IT HAD BEEN ABANDONED. >> THE JUDGE SAID THIS IS WHY I DON'T THINK THIS APPLIES TO ROBBERY TO BEGIN WITH; HOWEVER, SINCE THIS IS WHAT WAS REQUESTED -- >> IT CAN'T REALLY -- AGAIN, IF THERE'S A BREAK BY ABANDONMENT AND NEXT SCENARIO BEING THAT THE GUY STARTS CHASING HIM AND HE JUST DECIDES I'M NOT -- I DON'T WANT THIS, I'M GETTING RID OF EVERYTHING TO BUY AND RUN, AND THEN THE GUN ISSUE OCCURS, THE JURY COULD FIND THERE WAS THE TWO SEPARATE CRIMES OF THEFT AND AGGRAVATED ASSAULT. >> THEY DID FIND INTERVENING ACT OF HIS THROWING DOWN THE -- >> BEING AWARE THAT THE PROPERTY HAD BEEN ABANDONED. >> THIS IS NOT A LEGAL ABANDONMENT. NUMBER ONE, IN ORDER TO BE LEGAL ABANDONMENT OF PROPERTY, YOU MUST HAVE HAD POSSESSORY OWNERSHIP OF IT. THE THIEF DOES NOT HAVE PROPERTY AS STOLEN. IT CAN'T BE ABANDONMENT OF PROPERTY AS KNOWN IN THE LAW. IT'S NOT ABANDONMENT OF THE CRIME -- >> IF HE OWNED IT, THEN THAT'S -- >> YOU CAN'T ABANDON YOUR OWN PROPERTY. >> THEN WE WOULDN'T HAVE A ROBBERY. MAYBE HE PAID FOR IT, IF IT IS. >> WELL, I'M JUST SAYING WE'RE USING THIS TERM "ABANDONMENT OF PROPERTY." >> IT DOESN'T MAKE SENSE FOR YOU TO SAY THAT.

25 HE HAD TO HAVE OWNED THE PROPERTY IN ORDER TO ABANDON THE PROPERTY. >> FOR THE ABANDONMENT DEFENSE OF A CRIME, THIS IS A TOTALLY DIFFERENT ISSUE. >> IT WOULDN'T BE A CRIME. >> FOR THE ABANDONMENT OF DEFENSE OF A CRIME OF A CRIMINAL PURPOSE WOULD INCLUDE GETTING RID OF THE PROPERTY. >> BUT ON THAT, WHY IS NOT THE DITCHING OF THE PROPERTY, IF HE DID DITCH ALL OF IT, WITH THE KNOWLEDGE OF THE THEN-WALMART EMPLOYEE IS THERE TO FETCH IT, WHY ISN'T THAT ABANDONMENT OF THE CRIMINAL INTENT OF THEFT? IF HE SAYS TAKE IT BACK, I'M DONE WITH IT. >> IF IT'S VOLUNTARILY DONE, THERE IS A CASE WHERE -- THERE IS THE CARROLL CASE, THE DEFENDANT HAD STOLEN ITEMS -- A THEFT CASE, STOLEN ITEMS FROM AN AREA WHERE ONLY EMPLOYEES CAN GO. PUT IT IN A BACKPACK AND WAS LEAVING AND SOME COP APPARENTLY WALKED UP AND STARTED TALKING TO HIM. AS SOON AS THE COP WALKED AWAY, HE TOOK EVERYTHING OUT AND LEFT. THEY FOUND HE WAS NOT ENTITLED TO ABANDONMENT INSTRUCTION BECAUSE IT WAS NOT VOLUNTARY. >> HE JUST GOT SCARED. >> EXACTLY. >> THAT'S DIFFERENT THAN AN ACTUAL CONFRONTATION. >> CORRECT. >> I NEED TO -- I'M HAVING TROUBLE WITH THE CONCEPT OF ABANDONMENT, AFTER A CRIME HAS BEEN COMPLETED. >> RIGHT, IT'S A MISNOMER.

26 >> I CAN SEE SOMEONE WALKING INTO A 7-ELEVEN, ROBBING A 7-ELEVEN, WALKING OUT WITH THE BAG OF MONEY IN THEIR HANDS, AND THEN THE POLICE ARE THERE. "HOLD IT. YOU'RE UNDER ARREST." "I'LL TAKE IT BACK. I'M ABANDONING IT." ONCE YOU GET CAUGHT, THE CAT'S OUT OF THE BAG. I'M GOING TO HAVE TO DO MORE RESEARCH INTO ABANDONMENT. I CAN'T IMAGINE COMMITTING THE CRIME, GETTING OUT OF THE STORE, RUNNING AWAY, AND DURING THE RUN, ONCE HE KNOWS HE'S ABOUT TO GET CAUGHT, ABANDONING IT. I DON'T THINK YOU CAN ABANDON IT. >> THAT'S THE STATE'S POSITION. THAT CAN'T BE. >> UNDER JUSTICE LABARGA'S EXAMPLE, IF YOU GO INTO THE STORE AND BRANDISHED A WEAPON TO GET IT, THAT IS A ROBBERY. >> YEAH. >> SO THEREFORE, IT COULDN'T BE ABANDONED. IF IT'S A THEFT OF SHOPLIFTING, THAT'S A LITTLE DIFFERENT, ISN'T IT? >> THE THEFT INCLUDES ATTEMPT. IT'S OBTAIN OR ENDEAVOR TO OBTAIN THE PROPERTY OF ANOTHER. >> HE OBTAINED IT. THE THEFT WAS INCLUDED. >> IT INCLUDES ATTEMPT AS THE STATUTE ITSELF. >> DIFFERENCE BETWEEN THE ROBBERY'S COMPLETED AND YOU GET RID OF THE PROPERTY. NO ISSUE. I DON'T THINK THE DEFENDANT WOULD SAY THERE WOULDN'T BE

27 AN ISSUE, VERSUS THE THEFT WAS COMPLETED. THE THIEF THEN SAYS HERE'S YOUR DARN PROPERTY BACK. I'M OUT OF HERE. >> RIGHT. >> THE GUY ISN'T HAPPY WITH THAT BECAUSE HE WANTS TO REPORT HIM, SO HE PURSUES HIM. THAT'S WHAT THEY'RE SAYING HAPPENED HERE. I DON'T KNOW IF YOU CALL IT ABANDONMENT, BUT THERE IS THE BREAK -- >> WHICH IS WHAT THEY CAN OBVIOUSLY ARGUE. >> THEY, AGAIN, UNDER THE SPECIAL JURY INSTRUCTION, THE GUY CHASING HIM HAD TO KNOW THAT HE HAD GOTTEN RID OF THE PROPERTY. THAT'S WHAT WE'RE SAYING AND CONCERN -- >> THE DEFENSE'S ARGUMENT HE DID KNOW. >> THEY HAD TO ARGUE THAT. >> IT'S IN THE SPECIAL JURY INSTRUCTION. THEY HAD NO CHOICE. >> THAT WAS THE DEFENDANT'S TESTIMONY. I TOLD HIM, YOU GOT THE PROPERTY, LEAVE ME ALONE, BASICALLY. THAT WAS HIS TESTIMONY ALL ALONG. IT HAD NOTHING TO DO WITH THE JURY INSTRUCTION. >> TIME HAS EXPIRED. THANK YOU FOR YOUR ARGUMENTS. >> THANK YOU. >>> REBUTTAL? >> YOUR HONOR, IN RESPONSE TO MY OPPONENT'S ARGUMENT THAT THE ADDITION OF THE PHRASE AND THE VICTIM WAS AWARE OF SUCH ABANDONMENT DID NOT BENEFIT THE STATE. I WOULD RESPECTFULLY

28 DISAGREE. THAT INSERTION WAS SUGGESTED BY THE STATE. THE ERROR WAS INVITED BY THE STATE. NOT THE DEFENSE. IT IS NOT IN THE LAW OR THE STATUTE AND THIS SECTION DID NOT BENEFIT THE DEFENDANT AND DID BENEFIT THE STATE BECAUSE OF THE LOSS PREVENTION ASSOCIATES DID NOT BELIEVE THAT THE SOCKS HAD NOT BEEN ABANDONED. AND THE ERROR WAS PREJUDICIAL AND HARMFUL TO MY CLIENT, AND HE WAS ENTITLED TO A CORRECT INSTRUCTION ON HIS THEORY OF DEFENSE. WITH REGARD TO THE DISCUSSION OF THE INTERVENING ACT AND WHETHER OR NOT THAT WAS A RENUNCIATION, I WOULD ARGUE IT WAS A RENUNCIATION. IT SOMETIMES STATED IN -- I FORGET WHICH CASE -- WHEN A PERSON IS CAUGHT SHOPLIFTING AND DROP THE ITEMS, THEY'RE MERELY TRYING GET AWAY AND STEAL ANOTHER DAY. IT COULD BE VERY MUCH IN THEIR MINDS TO SAY I'M DONE WITH THIS, I'M DONE WITH THE SHOPLIFTING, I'M DONE WITH THE THEFT, AND THIS IS STRESSFUL, AND I'M NOT GOING TO DO IT AGAIN. >> DO YOU AGREE THAT AN INSTRUCTION ON THE ROBBERY STATUTE WOULD BE SUFFICIENT WITHOUT A SPECIAL INSTRUCTION? >> NO, YOUR HONOR, I DON'T THINK AS TO THE ISSUE OF RENUNCIATION OR ABANDONMENT AND THE INTERVENING ACT PART OF IT. >> WHY NOT? >> IT'S NOT REALLY CONTAINED WITHIN THE INSTRUCTION, YOUR

29 HONOR. IT SEEMS TO ME -- >> POINTED OUT THE WHOLE ISSUE IS WHETHER OR NOT IT'S IN THE DEFINITION THERE OF THE ROBBERY STATUTES. THAT'S WHAT YOU'RE REALLY TRYING GET AT, WHETHER IT FITS WITHIN THE DEFINITION, RIGHT? >> I DON'T THINK IT DOES, IT'S NOT SPECIFIC ENOUGH. IN MY YEARS OF TRYING CASES, IT'S COME TO ME THAT JURORS NEED TO HAVE SPECIFIC, DIRECTED INSTRUCTIONS SO THAT THEY KNOW EXACTLY WHAT THEY'RE LOOKING FOR. >> WHAT THEY'RE LOOKING FOR IS WHETHER IT'S IN THE COURSE OF TAKING. WHETHER FORCE USED, VIOLENCE, ASSAULT, OR PUTTING IN FEAR. SO WHEN HE SHOWED THE FIREARM, HE PUT THE SECURITY GUARD IN FEAR, BUT THE ISSUE IS WHETHER IT WAS IN THE TAKING, AND THEN YOU HAVE A STATUTORY DEFINITION OF THAT. WHY ISN'T A JURY INSTRUCTION ON THAT, AS THE STATE ARGUES, SUFFICIENT? >> BECAUSE, SIR, IT DOESN'T SAY ANYTHING ABOUT THE DEFENSE OF HAVING ABANDONED OR RENUNCIATED THE THEFT. >> THANK YOU FOR YOUR ARGUMENTS. >> THANK YOU FOR HEARING US. >> COURT IS ADJOURNED. >> ALL RISE.