## Facts

- Heriberto Rodriguez and Victor Ballester went to a gas-station convenience store intending to rob it; Rodriguez remained in the car parked out of sight.
- Ballester entered the store, demanded money, and the clerk refused.
- Ballester appeared to leave, then returned and shot the clerk in the head.
- Ballester left without taking money or property and returned to Rodriguez’s car; Rodriguez drove away.
- Days later, Rodriguez made statements to family members indicating he participated as the driver in an attempted robbery and claimed he did not know about the shooting until afterward.
- At trial, Rodriguez admitted involvement in the attempted robbery but asserted the shooting was Ballester’s independent act, outside the agreed plan.
- Rodriguez requested an “independent act” jury instruction; the trial court refused and the jury convicted him of first-degree felony murder.

## Issues

1. Whether the trial court committed reversible error by refusing a requested independent-act jury instruction where evidence permitted a finding that the co-felon’s killing was not in furtherance of the common criminal design.

## Decision

- The appellate court reversed the first-degree felony-murder conviction and remanded for a new trial.
- The court held the trial judge committed reversible error by refusing Rodriguez’s requested independent-act instruction.
- The court concluded the record contained evidence from which a jury could find the shooting was an independent act by Ballester rather than an act in furtherance of the attempted robbery.
- The court found the omission prejudicial because it deprived Rodriguez of his primary theory of defense on the central disputed question of liability.

## Legal Principles

- A defendant is entitled to a requested special jury instruction on a legally recognized defense when: (1) the instruction accurately states the law, (2) it is not adequately covered by other instructions, and (3) there is some evidence supporting the defense, even if disputed.
- In felony-murder/principal liability, a participant in the underlying felony is not liable for a homicide committed by a co-felon if the killing was an independent act not in furtherance of the common criminal purpose.
- Failure to instruct on a supported defense theory that directly bears on guilt is reversible error when it may have led the jury to believe liability was automatic for any participant once a death occurred during the felony attempt.

## Conclusion

Because evidence allowed a finding that Ballester’s shooting was an independent act outside the attempted robbery, Rodriguez was entitled to an independent-act instruction; the refusal to give it required reversal and a new trial.


Rodriguez v. State, 571 So. 2d 1356 (Fla. Dist. Ct. App. 2d Dist. 1990)