Written by Orlando Criminal Defense Attorney Lyle B. Mazin
Benjamin Holtermann shot and killed Orange County Sheriff's Deputy
Jonathan Pine on February 11, 2014. Deputy Pine was attempting to detain
Holtermann in relation to a burglary investigation. Holtermann's girlfriend,
Erica Pugh, was found with a stolen car nearby.
In the days and hours prior to the death of Deputy Pine, Holtermann and
his girlfriend were on a crime spree. They had allegedly committed an
armed robbery several days prior. Shortly before the shooting Holtermann
and his girlfriend were allegedly breaking into cars. Further, the vehicle
Holtermann's girlfriend was found with turned out to be stolen.
Florida's Felony Murder Rule allows for a Defendant to be charged for
the death of an individual that occurs during the commission of a crime.
Specifically, the doctrine allows for a Defendant to be prosecuted for
murder regardless of their intent to cause the death of an individual.
Additionally a Defendant is responsible for the actions of their Co-Defendant.
Whether by accident or not, whether they knew or didn't know their
Co-Defendant was going to kill somebody, a Defendant will be held accountable
for the murder of an individual during a commission of a crime that they
are participating in.
However, as with all laws, there are caveats and exceptions. While the
death of Deputy Pine is horrific, Erica Pugh should not be charged with
his murder and here is why:
The Commission Of The Underlying Crimes Had Concluded
A Defendant is susceptible to the Felony Murder Rule from the time the
crime begins until the time the crime is complete. Actively fleeing from
the crime is still considered an act of the crime. For example, if a Defendant
had committed a robbery in a gas station, and while driving out of the
parking lot he kills somebody (accidentally or not), they would be charged
with Felony Murder. However, at some point in time the crime must conclude.
A person can't be continuously held responsible for murder simply
because 3 days ago they stole an iPhone. The courts have resolved the
issue of when a crime is deemed complete in the following manner; If a
felon has gained a place of "temporary safety" after commission
of the felony and before the death of the victim, the felony murder rule
generally does not apply.
All of the crimes Pugh and her boyfriend had committed in this incident
were over prior to the murder of Deputy Pine. The armed robbery was completed
on a previous day. The burglaries of conveyances (cars) were completed
at least an hour before. Erica Pugh was not fleeing a crime at that time
but rather just sitting in the car. Further, the fact the car was stolen
does not implicate the felony murder statute either. In the case of
State v. Williams, 776 So.2d 1066 (Fla 4th DCA 2001)
(Click HERE to read the case) the court determined that possession of a stolen vehicle does not constitute
a forever continuing grand theft but rather the victims death would have
had to occur during the actual taking of the car.
Benjamin Holtermann Acted Independently
While its clear the robbery from the previous night was already complete
and the theft of the vehicle doesn't apply, the State could attempt
to prosecute on the theory that the burglaries of the cars were still
in progress. Erica Pugh's real jeopardy in this case is that the State
alleges the burglaries were not complete but rather interrupted while
she and her boyfriend were in the process of targeting additional vehicles.
However, should the State adopt that theory of prosecution the "independent
act" doctrine would trigger as a defense. The “independent
act” doctrine arises when one co-felon, who previously participated
in a common plan, does not participate in acts committed by her co-felon,
“which fall outside of, and are foreign to, the common design of
the original collaboration.” The Court in
Beachy v. State, 837 So.2d 1152 (Fla 1st DCA 2003)
(Click HERE to read the case) clarifies that where a co-felon exceeds the scope of the original plan
and acts independently the Defendant is shielded from conviction under
the Felony Murder Rule. Erica's defense would unequivocally argue
that the shooting of a police officer had absolutely nothing to do with,
and could not be anticipated, when Pugh and her boyfriend collaborated
to steal items from cars. (Compare that to an armed robbery where the
use of a firearm is foreseeable and not foreign to the plan).
The Felony Murder Rule does not apply to Erica Pugh. However, that does
not mean the State will fail to hold her accountable for the death of
Deputy Jonathan Pine. Pugh is currently facing other charges including
Robbery With a Firearm which itself is punishable by a term of up to a
maximum of life imprisonment. While she may not be convicted of murder,
the death of Deputy Pine will certainly be in mind when the judge is rendering
If you are wondering how Erica is reacting to the possibility of being
charged with Felony Murder, Orlando Local News 6 investigative reporter
Tony Pipitone conducted a 45 min interview with her at the jail (Click HERE to see the raw interview). During that interview she gave an extremely inculpatory response to
Pipitone's questions which would likely obliterate her defense that
the crimes had concluded when the shooting occurred:
- Pipitone: " Wasn't he (Holtermann) having you try to aide in his
escape in someway?"
- Pugh: "No at that point we both knew there that was no turning back,
there was no getting away."
That statement would seem to indicate they were still fleeing from the
burglaries and she had not in fact retreated to a place of "temporary
safety." That said, she will still be shielded under the Independent
If ever there was an example of why a person should remain silent; this
was it. On top of the numerous inculpatory statements she made, Erica
even managed to refer to Deputy Pine as a "Pig." Her decision
to talk to the press was an epic mistake.
Written by Orlando Criminal Defense Attorney Lyle B. Mazin