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In re Standard Jury Instructions In Criminal Cases- Report 2017-08

Supreme Court of Florida

May 24, 2018

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT 2017-08.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Original Proceeding - Supreme Court Committee on Standard Jury Instructions in Criminal Cases

          Judge F. Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner

          James Altman, Assistant State Attorney, Ninth Judicial Circuit, Orlando, Florida, Responding with comments

          PER CURIAM

         The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

         The Committee proposes that the Court amend standard jury instructions 3.12 (Verdict), 3.12(a) (Single Defendant, Multiple Counts or Informations), 3.12(c) (Multiple Counts or Informations, Multiple Defendants), and 3.12(d) (Legally Interlocking Counts), and adopt new instruction 3.12(f) (Crime Legally Interlocking with a Special Finding Within that Same Count). Following publication in The Florida Bar News, the Committee received comments from the Florida Public Defender Association (FPDA) and the Florida Association of

          Criminal Defense Lawyers (FACDL), both pertaining to the proposal to amend instruction 3.12. The Court also published the Committee's proposals, and one comment was received from James Altman, Assistant State Attorney for the Ninth Judicial Circuit; the Committee responded to Mr. Altman's comment. The more significant amendments to the instructions are discussed below.[1]

         Criminal jury instruction 3.12 (Verdict) is amended to include a directive to the trial court to include a provision if the State is proceeding on both theories of first degree murder, i.e., premeditated and felony murder, on the basis of Mansfield v. State, 911 So.2d 1160 (Fla. 2005). That specific provision is added as follows:

If you return a verdict of guilty to the charge of First Degree Murder, it is not necessary that all of you agree the State proved First Degree Premeditated Murder and it is not necessary that all of you agree the State proved First Degree Felony Murder. Instead, what is required is that all of you agree the State proved either First Degree Premeditated Murder or First Degree Felony Murder.

         Instruction 3.12 also includes "a sample of possible verdict forms for typical variables in combinations of defendants and charges." As amended, two special finding forms pertaining to felony reclassification under section 775.087, Florida Statutes (2017), are added, one under subsection (1) and the other under subsection (2).

         New standard criminal jury instruction 3.12(f) (Crime Legally Interlocking with a Special Finding Within that Same Count) is adopted to avoid the occurrence of "true inconsistent verdicts, " where the elements of a crime may legally interlock with a special finding within that same crime under the facts of the case. See Proctor v. State, 205 So.3d 784 (Fla. 2d DCA 2016); Gerald v. State, 132 So.3d 891 (Fla. 1st DCA 2014).

         Having considered the Committee's report and the comments submitted to the Committee and filed with the Court, and the Committee's response to the comments, we authorize instructions 3.12, 3.12(a), 3.12(c), 3.12(d), and 3.12(f) for publication and use as set forth in the appendix to this opinion.[2] New language is indicated by underlining; deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. The instructions as set forth in the appendix shall become effective when this opinion becomes final.

         It is so ordered.

          LABARGA, CJ, and LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ, concur

          PARIENTE, J, concurring in result.

         I concur in result for two reasons. First, although not inaccurate under our 2005 decision in Mansfield v. State, 911 So.2d 1160 (Fla. 2005), there is no reason that instruction 3.12 is now necessary. Second, even with and especially in light of instruction 3.12, I urge, once again, for the use of special verdict forms as to the alternate theories of first-degree murder, unless the defense objects.

         Instruction 3.12

         As the Committee recognizes, this Court has not addressed whether Hurst[3]affects the validity of our decision in Mansfield, holding that the jury is not required to reach a unanimous decision on the theory of first-degree murder. Id. at 1178-79. Therefore, Mansfield remains good law, and instruction 3.12 is accurate under the current law. That being said, it is unclear why this instruction is being adopted now, thirteen years after Mansfield. Nevertheless, as a result of the inclusion of instruction 3.12 in the standard jury instructions, as well as the implications the jury's findings in the guilt phase have on the penalty phase, it is more important than ever to use a special verdict form in the guilt phase to determine the jury's vote as to each theory of first-degree murder.

         Guilt Phase Special Verdict Forms

         I join the Florida Public Defender Association in urging the trial courts to use a special verdict form in the guilt phase of capital prosecutions, especially when requested by the defendant. A special verdict form indicating each juror's determination as to whether the defendant is guilty of premeditated or felony first-degree murder would promote informed decision-making by the trial court in the guilt phase and, more importantly, by the jury in the penalty phase, especially after Hurst.

         For example, if the jury did not unanimously conclude that the murder was premeditated, it should be clear that the CCP (cold, calculated, and premeditated) aggravating factor, requiring heightened premeditation, was not proven beyond a reasonable doubt. Likewise, when this Court previously rejected the Criminal Court Steering Committee's recommendation to mandate the use of guilt phase special verdict forms, in an opinion joined by Chief Justice Labarga and former Justice Perry, I explained:

The use of special verdict forms to specify felony murder and premeditated murder has numerous advantages as identified by the Steering Committee and those in favor of the forms. I would also defer to the expertise of our Steering Committee members, including the trial judges who have been utilizing the special verdict forms in first-degree murder cases and advocate their mandated use.
The Committee's proposal should be adopted because the new verdict form would assist both the trial court in making decisions as to what penalty to impose and this Court in reviewing the sentence in the following ways. First, a special verdict form indicating that a defendant was found guilty of first-degree murder based on a premeditated murder theory would obviate the need for the trial court to perform the requisite felony murder analysis under Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987). . . . Second, if the State sought to establish either the cold, calculated, and premeditated or felony murder aggravators in the penalty phase, it would be helpful for the trial court to know how the jury viewed the evidence when discussing these aggravating circumstances in the sentencing order. Third, the use of a special verdict form in the guilt phase would guide the trial court in determining the applicable instructions in the penalty phase. Finally, the special verdict form would aid this Court in our review of evidentiary issues, as well as the sufficiency of the evidence as to either premeditated or felony murder.

In re Std. Jury Instrs. in Crim. Cases-Report No. 2005-2, 22 So.3d 17, 24 (Fla. 2009) (Pariente, J., specially concurring).

         Other courts, including the United States Supreme Court, have also explained that, although "the Constitution [does] not command" their use, "separate verdict forms are useful in cases submitted to a jury on alternative theories of premeditated and felony murder." Schad v. Arizona, 501 U.S. 624, 645 (1991) (citing State v. Smith, 774 P.2d 811, 817 (Ariz. 1989)). Likewise, the Supreme Court of Arizona has stated that "dual forms of verdict are desirable in reviewing cases on the guilt phase." Smith, 774 P.2d at 817.

         CONCLUSION

         For all these reasons, although Mansfield has not been modified since Hurst, I would urge the adoption of special verdict forms in first-degree murder cases where the State seeks a conviction based on alternative theories of felony first-degree murder or premeditated first-degree murder. Notwithstanding, because the majority has chosen to not adopt this requirement, I urge defense counsel to request, the State to agree, and trial courts to grant the use of special verdict forms in the guilt phase of first-degree murder prosecutions.

          APPENDIX

         3.12 VERDICT

         You may find the defendant guilty as charged in the [information] [indictment] or guilty of such lesser included crime[s] as the evidence may justify or not guilty.

         If you return a verdict of guilty, it should be for the highest offense which that has been proven beyond a reasonable doubt. If you find that no offense has been proven beyond a reasonable doubt, then, of course, your verdict must be not guilty.

         The verdict must be unanimous, that is, all of you must agree to the same verdict. Only one verdict may be returned as to [the crime] [each crime] charged [, except as to Count (insert numberinsert number), where the defendant can be found guilty of more than one lesser included crime]. The verdict must be in writing and for your convenience the necessary verdict form[s] [has] [have] been prepared for you. [It is] [They are] as follows (read verdict form(s)):

         Give if State is proceeding on both theories of First Degree Murder (premeditated and felony murder). Mansfield v. State, 911 So.2d 1160 (Fla. 2005).

         If you return a verdict of guilty to the charge of First Degree Murder, it is not necessary that all of you agree the State proved First Degree Premeditated Murder and it is not necessary that all of you agree the State proved First Degree Felony Murder. Instead, what is required is that all of you agree the State proved either First Degree Premeditated Murder or First Degree Felony Murder.

         In cases of multiple defendants or multiple charges, give 3.12(a), (b), or (c) as applicable.

         A sample of possible verdict forms for typical variables in combinations ...


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