In What Circumstances Can the Taking of Apolice Officer's Weapon and Using It to Kill Him Be Established As Aggravator ?
In Jones v. State, 580 So.2d 143 (Fla. 1991), the court stated that this aggravator was not established because "taking the officer's service weapon, technically an armed robbery, was only incidental to the killing, not the reason for it." Id. at 146.
In Jones, the defendant and other occupants of a car fired shots at officers while the officers were running a computer check on the car's license tag.
A gun battle ensued, and Jones picked up a fallen officer's gun as he was attempting to escape the scene.
In of Kearse v. State, 662 So.2d 677 (Fla. 1995), the defendant struggled with the officer, stole his gun, and then shot him.
This Court found that the aggravator of commission during the course of a robbery was established:
This was not a situation where the taking of the officer's weapon was only incidental to the killing.
Kearse forcibly took Officer Parrish's service pistol, then turned that weapon on the officer and killed him.
Even though Kearse may have been motivated by his desire to avoid arrest when he took the gun, the incident still constituted a robbery because it involved "the taking of ... property which may be the subject of larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear." 812.13(1), Fla. Stat. (1991).
Under section 812.13, the force, violence, or intimidation may occur prior to, contemporaneous with, or subsequent to the taking of the property so long as both the act of force, violence, or intimidation and the taking constitute a continuous series of acts or events. Id. at 685.