       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        ADRIANA RODRIGUEZ,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D11-1534

                           [August 26, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Stephen A. Rapp, Judge; L.T. Case No. 502009CF000335
BXXMB.

  Richard B. Barkin and Ondina Felipe of the Law Office of Richard B.
Barkin, Boca Raton, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, J.

   Adriana Rodriguez appeals her convictions for first-degree murder and
kidnapping. Because the trial court erred by not giving the Defendant’s
requested jury instructions on the defenses of independent act and duress,
we reverse the first-degree murder conviction.

                               Background

   Maciel Videla was murdered as part of a plot by several drug dealers to
make him “permanently deaf and blind” for snitching. His body was found
in a canal on December 12, 2008. His throat had been slashed and he
had been stabbed multiple times by Diego Nunez (“Yogi”).

   The Defendant was the victim’s girlfriend. On the night of the murder,
she persuaded him to come to a bar and then called Yogi to let him know
that the victim had arrived. Yogi and three others drove to the bar in two
separate cars. The first car pulled into the parking lot while the second
car stayed out of sight.
   As per “the plan,” the Defendant escorted the victim out of the bar to
the parking lot to meet the first car. The victim knew both men in the car
and voluntarily got into the back seat. Alfredo Gomez, the passenger,
climbed into the back seat with him and draped an arm across his
shoulder as they drove out of the parking lot.

   The cars drove west to Highway 441 and stopped at the edge of a canal
in a remote location. Gomez took the victim out of the car, pinned his
arms behind his back, and held him down on his knees. Yogi emerged
from the second car, strode up from behind, slit the victim’s throat and
then stabbed him multiple times in the back.1

   The Defendant confessed in a taped statement which was played for the
jury that her role was to bring the victim out of the bar and walk him to
the waiting car. It is unclear from her statement what she knew about
Yogi’s plan. She said she called Yogi from the parking lot after the cars
drove off because she thought “they probably were beating [the victim] up
in the car before they went off” and she wanted to find out what was
happening since “they [stayed] there for a long time. And I’m over here
wondering, what are you guys doing. They left. They went over there to
441 but they didn’t tell me what they did or nothing.”

   After the victim was killed, Yogi gave the Defendant details of the
murder, and she went with the group to dispose of bloody clothes and the
knife. During her confession, she told the officer multiple times that she
was scared and that she participated only because Yogi had threatened
her life and the lives of her family members.

                              Procedural History

   The Defendant and three others were indicted for first-degree murder
and kidnapping. A fifth co-conspirator became a witness for the State and
was not charged. Yogi and another co-conspirator were indicted, but
absconded to Mexico. The Defendant and Alfredo Gomez were tried as co-
defendants with separate juries.

  The State proceeded against the Defendant on the kidnapping count
and both theories of first-degree murder—premeditated murder and felony
murder. Before trial, counsel for the Defendant submitted a Request for
Special Jury Instructions, asking the trial court to instruct the jury on the

1A more detailed discussion of the murder is set forth in Gomez v. State, 155 So.
3d 1184, 1186 (Fla. 4th DCA 2014).

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defenses of independent act and duress. During the charge conference,
counsel conceded that duress is not a defense to premeditated murder,
but argued that the duress instruction should be given as a defense to
felony murder. He argued that the Defendant was entitled to the
independent act instruction as a defense to all charges, including first-
degree murder. The trial court refused to give either instruction as a
defense to first-degree murder, but agreed to give both instructions as
defenses to second-degree murder, manslaughter, kidnapping, and false
imprisonment.

                            Standard of Review

   The trial court’s refusal to give a requested jury instruction is reviewed
for abuse of discretion. “‘[T]he trial judge’s discretion is fairly narrow
because a criminal defendant is entitled, by law, to have the jury
instructed on his theory of defense if there is any evidence to support his
theory and the theory is recognized under Florida law.’” Gomez v. State,
155 So. 3d 1184, 1188 (Fla. 4th DCA 2014) (quoting Palmore v. State, 838
So. 2d 1222, 1223 (Fla. 1st DCA 2003)).

    The standard of review as to the propriety of a special jury instruction
is de novo. Rockmore v. State, 140 So. 3d 979, 984 (Fla. 2014) (citing Butler
v. State, 493 So. 2d 451, 453 (Fla. 1986)).

     Independent Act Instruction as a Defense to First-Degree Murder

   Appellant argues that the trial court erred in refusing to give the
independent act instruction as a defense to first-degree murder. Appellant
notes that the trial court gave the instruction as a defense to the
kidnapping,    false    imprisonment,    second-degree     murder,    and
manslaughter charges and that the court’s failure to give the instruction
as a defense to first-degree murder was “illogical.” The State agrees that
there is no “logical explanation regarding [why] an independent act
instruction would apply to the lesser-included offenses of first-degree
murder but not to first-degree murder itself,” but argues that the
Defendant was not entitled to the instruction because the victim’s murder
was “a natural and foreseeable culmination of the motivations for the
original kidnapping.” Parker v. State, 458 So. 2d 750, 753 (Fla. 1984).

   The standard jury instruction on independent act states:

      If you find that the crime alleged was committed, an issue in
      this case is whether the crime of (crime alleged) was an
      independent act of a person other than the defendant. An

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      independent act occurs when a person other than the
      defendant commits or attempts to commit a crime
         1. which the defendant did not intend to occur, and
         2. in which the defendant did not participate, and
         3. which was outside of and not a reasonably foreseeable
         consequence of the common design or unlawful act
         contemplated by the defendant.

Fla. Std. Jury Instr. (Crim.) 3.6(l).

    “The ‘independent act’ doctrine arises when one cofelon, who previously
participated in a common plan, does not participate in acts committed by
his cofelon, ‘which fall outside of, and are foreign to, the common design
of the original collaboration.’” Ray v. State, 755 So. 2d 604, 609 (Fla. 2000)
(quoting Dell v. State, 661 So. 2d 1305, 1306 (Fla. 3d DCA 1995)). “Where
there is evidence from which a jury could determine that the acts of the
co-felon resulting in murder were independent from the underlying felony,
a defendant is entitled to an independent act instruction.” McGee v. State,
792 So. 2d 624, 626 (Fla. 4th DCA 2001). “[T]he act is said to be
‘independent’ not only because it is committed by another person, but
because it is independent of the common scheme or design to commit a
felony.” Williams v. State, 34 So. 3d 768, 771–72 (Fla. 2d DCA 2010)
(discussing the origin of the independent act instruction and its
relationship to the felony murder doctrine).

   Here, there was evidence supporting the Defendant’s independent act
theory of defense. The Defendant stated that she did not know what the
co-felons were doing when they took the victim into the car, and she
thought they were beating up the victim. Two other witnesses for the State
testified that they did not know Yogi planned to kill the victim despite
hearing that he intended to make the victim “permanently deaf and blind.”

   Because there was some evidence supporting the Defendant’s theory of
defense, the trial court properly gave the independent act instruction as a
defense to the kidnapping, false imprisonment, second-degree murder,
and manslaughter charges. However, the trial court committed reversible
error when it refused to give the independent act instruction as a defense
to first-degree murder. Garcia v. State, 88 So. 3d 394, 404–05 (Fla. 4th
DCA 2012).

                   Duress as a Defense to Felony Murder

   We also find merit in Appellant’s argument that the trial court erred in
refusing to give the duress instruction as a defense to felony murder.

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   It is undisputed that “duress is not a defense to intentional homicide
because ‘duress will never justify the killing of an innocent third party.’”
Henry v. State, 613 So. 2d 429, 432 n.6 (Fla. 1992) (quoting Wright v. State,
402 So. 2d 493, 498 (Fla. 3d DCA 1981)). In Wright, the Third District
Court of Appeal discussed whether duress can be a defense to felony
murder:

      Wright was charged with and defended against first degree
      murder by premeditated design, which, of course, involves an
      intent to kill. Where duress is offered as a defense to first
      degree murder under a felony murder charge, a different
      question is presented, since duress is a recognized defense to
      the underlying felony, and the rationale of the rule prohibiting
      the duress defense in the crime of homicide appears
      inapplicable. We need not decide this question in the present
      appeal.

402 So. 2d at 498 n.8 (emphasis added and citations omitted).

   While several of our sister courts have raised the issue, none have
reached the merits. Salas v. State, 972 So. 2d 941, 956 (Fla. 5th DCA
2007) (the defendant argued he was entitled to the duress instruction on
the underlying felony of burglary; however, the court did not reach the
issue, finding that the defendant had not established the elements of
duress); Clark v. State, 861 So. 2d 111, 112 (Fla. 3d DCA 2003) (the court,
“assuming without deciding that duress can be a defense to a felony
murder charge,” found “there was no competent evidence of duress”);
Chestnut v. State, 505 So. 2d 1352, 1354 (Fla. 1st DCA 1987) (Ervin, J.,
concurring and dissenting) (finding the defendant did not establish one of
the elements of duress, stating “I see no need to decide whether the defense
of duress is applicable to the offense of felony-murder”).

    Appellant urges this court to adopt the reasoning of the Maryland Court
of Appeals as stated in McMillan v. State, 51 A.3d 623 (Md. 2012). There,
the defendant was convicted of felony murder. While the underlying felony
was robbery, he was not separately charged with that offense. Maryland’s
highest court reversed the conviction, finding duress was a defense to
felony murder.

      “At common law, the rationale for barring the duress defense
      in a prosecution for murder was that a person ‘ought rather
      to die himself than escape by the murder of an innocent.’ 5
      BLACKSTONE’S COMMENTARIES 30.                This rationale

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       disappears when the sole ground for the murder charge is that
       the defendant participated in an underlying felony, under
       duress, and the defendant’s co-felons unexpectedly killed the
       victim, thereby elevating the charge to felony-murder. We
       conclude that if duress would serve as a defense to the
       underlying felony, it is also available as a defense to a felony-
       murder arising from that felony, assuming the criteria for
       such a defense are otherwise satisfied.”

Id. at 634–35 (quoting Maryland Court of Special Appeals).

    Several other states also recognize the duress defense to a felony
murder charge. Arnold v. Commonwealth, 560 S.E.2d 915, 918 (Va. Ct.
App. 2002) (recognizing the felony murder exception to the general rule
that duress is not available as a defense to murder); State v. Hunter, 740
P.2d 559, 569 (Kan. 1987) (addressing the issue of first impression and
holding that where compulsion is a defense to an underlying felony so that
felony is justifiable, compulsion is equally a defense to charges of felony
murder); Tully v. State, 730 P.2d 1206, 1210 (Okla. Crim. App. 1986)
(analyzing the history and theory behind prohibiting the defense and
concluding that the “limitation to the duress defense is restricted to crimes
of intentional killing, and not to felony-murder”). We find the preceding
reasoning persuasive and hold that, where the trial court finds that a
defendant has presented evidence to support a duress theory of defense to
the underlying felony in a felony murder case, the defendant is entitled to
the duress instruction as a defense to felony murder. At bar, because the
trial court found that the Defendant was entitled to the duress instruction
on the underlying kidnapping charge, she was also entitled to the duress
instruction on the felony murder charge.

                                  Conclusion

    We find that the trial court committed reversible error in denying the
Defendant’s requests for the independent act instruction as a defense to
first-degree murder and the duress instruction as a defense to felony
murder. Accordingly, we reverse the Defendant’s first-degree murder
conviction and remand for a new trial consistent with this opinion.2

    Reversed in part and remanded for a new trial.

2 Appellant makes two evidentiary arguments which may arise on re-trial (error
in admission of statements of co-conspirators and error in admission of evidence
of collateral crimes). We have considered the merits of these arguments and find
the trial court did not abuse its discretion in admitting the disputed evidence.

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CIKLIN, C.J., and GROSS, J., concur.

                           *           *   *

   Not final until disposition of timely filed motion for rehearing.




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