Jones v. State
Annotate this Case
Download PDF
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2005
WILLIAM DANIEL JONES,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D03-4881
[August 24, 2005]
ON MOTION FOR CLARIFICATION
PER CURIAM.
We grant appellant’s motion for clarification, withdraw our slip opinion
of June 8, 2005, and substitute the following. Appellant’s and appellee’s
motions for rehearing are denied.
This appeal arises from a conviction for solicitation to commit second
degree murder, following a jury trial, and a sentence to fifteen years in
prison. Because the crime for which William Daniel Jones (“Jones”) was
convicted is inapplicable to the facts in this case, we reverse his
conviction and remand the case to the trial court to enter a conviction for
solicitation to commit aggravated battery. Any other issues appealed are
affirmed or rendered moot by this opinion.
Jones was charged by information with solicitation to commit first
degree murder upon David Hunt (“Hunt”). The information alleged that
Jones “did command, encourage, hire, or request David Ruiz and/or
Deputy Gary Morales to engage in specific conduct which would
constitute First Degree Murder, or an attempt to commit First Degree
Murder in violation of Florida Statute 782.04(1) & 777.04.”
In July of 2002, Hunt was the boyfriend of Delena Jones (“Delena”).
Delena was married to Jones. Hunt and Delena were in a relationship for
about a year and a half and were living together in July of 2002. In
March of 2002, Hunt had been a witness in a case against Jones where
Hunt claimed to be a victim and Jones was the accused.
Detective Dan Burkhardt was assigned to gather information from St.
Lucie County Jail inmates. Burkhardt came in contact with inmate David
Ruiz in July of 2002 when Ruiz told him someone might be hurt or killed
on the outside. Ruiz gave Burkhardt a letter Jones had written to Ruiz
that contained relevant addresses and routes. Ruiz and Burkhardt
recorded a phone call in which Ruiz called Jones at his home.
Ruiz testified at Jones’ trial that he and Jones were friends and they
were incarcerated together during 2002. Jones told Ruiz to “pay
somebody a visit,” which meant to “make sure he didn’t show up back to
the courtroom. . . . Or make sure he couldn’t testify against him.” Ruiz
testified that he assumed that Jones meant he wanted Ruiz to kill Hunt.
However, Ruiz later stated on cross-examination that Jones did not
actually use the word “kill.”
In a recorded call, Ruiz told Jones that he had contacted “Frankie,”
who would call Jones to arrange to meet him. Detective Morales, posing
as “Frankie,” met Jones. When Jones got into the car with Morales,
Jones said he was nervous because of a patrol car across the street. They
drove around and Jones told him to pull into a Wal-Mart parking lot.
They exited the vehicle and started talking. Jones acted nervous – he
walked up and down the side of the vehicle, looked inside the backseat
and trunk space, ran his hands through his hair, and started sweating
heavily. They drove to Hunt’s apartment and back to the original meeting
place. During the drive they discussed what Jones wanted Morales to do.
When they returned to the meeting place, Jones was taken into custody.
Detective Robert Harold Graff conducted surveillance and safety for
Morales’ meeting with Jones. Graff and numerous other cars followed
them. Morales wore a hidden transmitter. Due to equipment failure, only
some of the conversation between Morales and Jones was recorded. Graff
was still able to listen in on the conversation.
After the recorder stopped working, Graff heard Jones giving directions
to Morales to show him Hunt’s daily route. He told Morales that the best
place to do this was probably at work to make it look like a robbery. He
also said that he preferred Morales not do it at the apartment where
Hunt’s girlfriend was staying. He described vehicles to Morales.
According to Graff, “Detective Morales asked Jones exactly what he
wanted and he said, kill him. Morales said, what? He said, kill him. And
there was a pause and, uh, [Jones] says, do whatever you do.”
2
Lieutenant Steven Sigmon also participated in the surveillance of Jones
and Morales. He heard Jones explaining to Morales different ways to
arrive at the apartment that did not require one to drive directly from
U.S. 1. Jones stated where Hunt worked and that he wanted to make
sure that the girlfriend was not there. Sigmon testified that Jones told
Morales “that he wanted the subject that they were talking about gone,
wanted him taken out of the picture, wanted him gone, want him dead.
And right after he said he wanted him dead, he paused for a second and
then he said, I want him gone.”
Sigmon testified that Morales told Jones that he would need a piece to
do it with and Jones replied that he could get Morales a gun later but not
right then. Morales asked what Jones wanted done and Jones quickly
answered, just kill him. Jones said that he wanted Hunt beaten so bad
he wanted him in a wheelchair. Jones said that he wanted Hunt beaten
uncontrollably – “I want him beat so bad he die, I want him gone.” Jones
also said that if that doesn’t work then Morales would have to come back
later and take care of him.
The state played a tape of the recorded portion of the conversation
between Jones and Morales for the jury. Portions of the dialogue could be
interpreted as Jones stating that he wanted Hunt killed. Other portions
could be interpreted as Jones stating that he wanted Hunt beaten up so
badly that he would need a wheelchair, but not necessarily killed.
Morales testified that after the tape ended because of the batteries
dying, Jones told him he should make it look like someone tried to rob
him and he was killed. Morales followed up and asked Jones how he
wanted Hunt dead and Jones said, “I just want the mother f-- gone. I just
want the mother – I just want him dead, man.”
On cross-examination, Morales testified as follows:
DEFENSE: . . . And you said that you believed and told [the
prosecutor] and this jury that you took when he says I want
to take him out to mean I want to kill him, is that correct?
MORALES: That’s what I believe, yes.
DEFENSE: Okay. But did you hear him on the tape make
this exact statement? I want him gone and then if that don’t
work, then we’ll come back and do something else?
3
MORALES: Yes.
DEFENSE: So apparently when he says I want him gone,
that didn’t mean kill him because if you killed him you
wouldn’t have to come back and do anything else, would
you? It would be the end of it, wouldn’t it.
MORALES: If I didn’t do it right.
DEFENSE: So if he says I want it done and if that don’t
work, then we’ll come back and do it – we’ll kill him. Did he
say to you also, I just want him in a wheelchair?
MORALES: He also said that, yes.
DEFENSE: Yeah. And then if that don’t get him out of the
picture, away from my wife or whatever, then we’ll come
back later and do it, isn’t that correct?
MORALES: Yes.
Jones also testified at trial on his own behalf, admitting to wanting to
have Hunt beaten up but denying that he wanted Hunt to be killed. He
insisted that he told Morales that he did not want Hunt killed.
In reviewing the proposed jury instructions, the state specifically
requested an instruction on solicitation to commit second degree murder
and defense counsel objected to giving such instruction, arguing that it
would be confusing. The trial court overruled the objection. The jury
returned a guilty verdict of solicitation to commit second degree murder.
Jones moved for a new trial on the grounds that the verdict was
inconsistent with the law and the facts. The trial court adhered to its
ruling during trial that the jury could legally return the verdict that it
returned and denied the motion for new trial. The court adjudicated
Jones guilty of solicitation to commit second degree murder and imposed
a sentence of fifteen years in prison.
Jones’ primary argument on appeal is that the crime of solicitation to
commit second degree murder does not exist in the state of Florida. A
question of law is reviewed de novo. Nelson v. State , 875 So. 2d 579, 581
(Fla. 2004). Jones was convicted of solicitation to commit second degree
murder. The Florida Supreme Court defines the elements of criminal
4
solicitation as follows:
(1) commanding, hiring, requesting, or encouraging another
person to commit a crime and (2) the intent that the other
person commit the crime. No agreement is needed, and the
fact that the person solicited has no intention of committing
the crime is irrelevant as long as the command, request, or
encouragement is made with the requisite intent.
The Florida Bar v. Marable, 645 So. 2d 438 (Fla. 1994). Solicitation to
commit murder “indisputably . . . requires guilty knowledge or mens
rea.” Mascola v. Lusskin, 727 So. 2d 328, 332 (Fla. 4th DCA 1999).
Because present intent is a requirement for solicitation, a defendant
cannot be convicted of solicitation where the uncontroverted evidence
shows that the defendant would decide at a later date if he or she wishes
the “hit man” to proceed. State v. Gaines, 431 So. 2d 736, 737-38 (Fla.
4th DCA 1983).
Second degree murder is defined as follows: “The unlawful killing of a
human being, when perpetrated by any act imminently dangerous to
another and evincing a depraved mind regardless of human life, although
without any premeditated design to effect the death of any particular
individual.” §782.04(2), Fla. Stat. The phrase “imminently dangerous to
another and evincing a depraved mind regardless of human life ” has
been described by this court to mean an act or series of acts that:
1. a person of ordinary judgment would know is reasonably
certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite or an evil intent, and
3. is of such a nature that the act itself indicates an
indifference to human life.
Sigler v. State , 805 So. 2d 32, 34 (Fla. 4th DCA 2001), rev. denied, 823
So. 2d 126 (Fla.2002).
As the Florida Supreme Court held in Achin v. State , 436 So. 2d 30, 31
(Fla. 1982), “no one may be convicted of a nonexistent crime. Our
decisions are clear on this issue.” A defendant cannot be convicted of a
nonexistent lesser included offense , even if defense counsel would have
specifically requested that the court give a jury instruction for the
nonexistent offense . Id.; Hieke v. State , 605 So. 2d 983 (Fla. 4th DCA
1992) (holding that there is no such crime as solicitation to commit third
degree murder).
5
We are aware of Miller v. State , 430 So. 2d 611 (Fla. 4th DCA 1983),
upon which Hieke relied, in which we held “[w]e cannot envision a
situation in which a jury could find a contract killing as anything other
than premeditated.” Although we stated that we “cannot envision” a
contract killing that was not first degree murder, we did not go so far as
to hold that solicitation to commit second degree murder does not exist.
However, we do not need to hypothesize here as to potential factual
scenarios in which the crime of solicitation to commit second degree
murder might exist because we hold that, under the facts in this case,
the only available options for the jury were solicitation to commit first
degree murder or solicitation to commit aggravated battery. In the
present case, even if the jury returned the guilty verdict for solicitation to
commit second degree murder as a form of jury pardon on the charge of
solicitation to commit first degree murder, we cannot affirm the
conviction because Jones specifically objected at trial to giving the
instruction on solicitation to commit second degree murder.
We note that we have not found Florida cases which expressly state the
crime of solicitation to commit second degree murder does or does not
exist, but we have found case law from Florida and other jurisdictions
that would support the existence of such a crime in Florida. 1 See
Edwards v. State , 705 So. 2d 943, 945 (Fla. 5th DCA 1998) (stating
defendant “was on conditional release for solicitation of second degree
murder”); People v. Laurson, 70 P.3d 564 (Colo. App. 2002) (affirming
thirty-year sentence for “criminal solicitation to commit second degree
murder”); State v. Canion, 16 P.3d 788 (Ariz. App. Div. 1 2000) (affirming
conviction for solicitation to commit second degree murder); Matter of
Mahrle, 945 P.2d 1142 (Wash. App. Div. 3 1997) (holding that solicitation
to commit second degree murder is a class B felony); People v.
Bongarzone, 116 A.D.2d 164, 167 (S.D.N.Y. 1986) (upholding solicitation
conviction for second degree murder).
Accordingly, we reverse the conviction and remand this case to the trial
court with directions to enter judgment for the lesser include d offense of
guilty of solicitation to commit aggravated battery. See § 924.34, Fla.
Stat. (“When the appellate court determines that the evidence does not
1 We also note that the similar inchoate crimes of conspiracy to commit second degree
murder and attempt to commit second degree murder are crimes under Florida law.
Willis v. State, 700 So. 2d 1232 (Fla. 4th DCA 1997) (conspiracy); Connelly v. State, 704
So. 2d 590 (Fla. 4th DCA 1997) (conspiracy); Powlowski v. State, 467 So. 2d 334 (Fla.
5th DCA 1985) (conspiracy); Brown v. State, 790 So. 2d 389 (Fla. 2000) (attempt).
6
prove the offense for which the defendant was found guilty but does
establish guilt of . . . a lesser offense necessarily included in the offense
charged, the appellate court shall reverse the judgment and direct the
trial court to enter judgment for the lesser degree of the offense or for the
lesser included offense.”).
As to the evidentiary issue raised on appeal, we hold that the trial court
did not abuse its discretion in overruling Jones’ objection and allowing
Ruiz to testify as to his opinion regarding statements made by Jones.
“Admission of evidence is within the discretion of the trial court and will
not be reversed unless there has been a clear abuse of that discretion.”
Ray v. State , 755 So. 2d 604, 610 (Fla. 2000).
At trial, the prosecutor asked Ruiz what Jones wanted him to do to
Hunt. The following exchange then took place:
RUIZ: Make sure he never made it to the courtroom.
STATE: And what does that mean to you?
RUIZ: There’s only one definition you can have for that, sir.
STATE: Okay. And that’s –
Defense counsel objected that the question calls for speculation and
conclusion. The trial court overruled the objection and stated that he
believed it was a proper response to the question. The following exchange
then took place:
STATE: Did you have ongoing discussions with William
Daniel Jones –
RUIZ: Yes sir.
STATE: D.J.? And when you say make him not come to
court, spell it out for the members of the jury, what do you
mean?
RUIZ: I don’t know, I would say just make sure he never
showed up. I mean if I put it like that –
STATE: All right.
RUIZ: Take him out.
STATE: Okay. And does that mean to beat him up, does that
mean kill him, what does that mean?
RUIZ: I would assume kill, sir.
Jones argues that the trial court abused its discretion in admitting
Ruiz’s testimony because it is irrelevant to any material issue in the case
and calls f r speculation by the witness. To be preserved for further
o
7
review by a higher court, an issue must be presented to the lower court
and the specific legal argument or ground to be argued on appeal or
review must be part of that presentation. Lacey v. State , 831 So. 2d
1267, 1268 (Fla. 4th DCA 2002). At trial, defense counsel objected to
Ruiz’s testimony because it “calls for speculation and conclusion. That’s
the jury’s decision to decide what is meant by that.” Thus, the issue is
preserved with respect to speculation, but the issue is not preserved with
respect to relevance because Jones did not raise th at specific argument
below.2
Testimony based on speculation should be excluded as inadmissible.
Sec. Mgmt. Corp. v. Markham, 516 So. 2d 959, 963 (Fla. 4th DCA 1987).
Conjecture has no place in proceedings of this sort.... The
law seems well established that testimony consisting of
guesses, conjecture or speculation--suppositions without a
premise of fact--are clearly inadmissible in the trial of causes
in the courts of this country. A statement by a witness as to
what action he would have taken if something had occurred
which did not occur ... or what course of action a person
would have pursued under certain circumstances which the
witness says did not exist will ordinarily be rejected as
inadmissible and as proving nothing.
LeMaster v. Glock, Inc., 610 So. 2d 1336, 1338-39 (Fla. 1st DCA 1992)
(quoting Drackett Prods. Co. v. Blue, 152 So. 2d 463, 465 (Fla.1963)).
Here, Ruiz’s testimony did not constitute “speculation--suppositions
without a premise of fact.” To the contrary, there was clearly evidence of
a basis for Ruiz to know Jones’ subjective meaning of the phrase he
spoke to Ruiz. Ruiz testified to a prior history of close friendship and
ongoing discussions between Ruiz and Jones. Ruiz also testified that he
and Jones had multiple discussions regarding what Ruiz was going to do
to Hunt. Under these circumstances, Ruiz’s testimony as to his
interpretation regarding statements made to him by Jones was not
Even if the issue of relevancy had been preserved by an objection in the trial court, it
was not an abuse of discretion for the trial court to admit Ruiz’s testimony as relevant.
“A trial court has broad discretion in determining the relevance of evidence and such a
determination will not be disturbed absent an abuse of discretion.” Sexton v. State, 697
So. 2d 833, 837 (Fla. 1997). In order for evidence to be admissible, it must first be
legally relevant; such evidence must have the tendency to prove or disprove a material
fact in issue. See §§ 90.401, 90.402, Fla. Stat. (2002). The evidence showed that Jones
solicited Ruiz to harm Hunt. Clearly, Ruiz’s interpretation of Jones’ statement to him
was material. If Jones solicited Ruiz to commit murder, Ruiz was the only person other
than Jones to know what Jones intended Ruiz to do.
2
8
inadmissible speculation.3 Therefore, we affirm
evidentiary ruling admitting Ruiz’s testimony.
the
trial
court’s
Lastly, Jones argues that the trial court erred in scoring his offense.
Because we are reversing the conviction for solicitation to commit second
degree murder and remanding this case for the trial court to enter a
conviction for solicitation to commit aggravated battery, this issue is
moot.
Affirmed in Part, Reversed in Part.
GUNTHER , POLEN and HAZOURI , JJ., concur.
*
*
*
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Dwight L. Geiger, Judge; L.T. Case No. 02-2364 CFA.
Carey Haughwout, Public Defender, and Louis G. Carres, Assistant
Public Defender, West Palm Beach, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E.
L'Italien, Assistant Attorney General, West Palm Beach, for appellee.
Additionally, Ruiz’s testimony constituted admissible lay witness testimony. See
Vasquez v. State, 763 So. 2d 1161 (Fla. 4th DCA 2000).
3
9
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.