In re Standard Jury Instructions in Criminal Cases-Report No. 2016–02, SC16–737.

• Decision Date: 25 August 2016
• Docket Number: No. SC16–737.,SC16–737.
• Citation: 199 So.3d 234 (Mem)
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES–REPORT NO. 2016–02.
• Court: Florida Supreme Court

199 So.3d 234 (Mem)

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES–REPORT NO. 2016–02.

No. SC16–737.

Supreme Court of Florida.

Aug. 25, 2016.

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

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 new and amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following existing standard criminal jury instructions: 3.12 (Verdict); and 27.1 (Escape). In addition, the Committee proposes the following new standard criminal jury instructions: 2.8 (Recorded Interview (Effect of Law Enforcement Statements on the Defendant)); 11.22 (Giving Obscene Material to a Minor); 20.22 (Unlawful Filing of False [Documents] [Records] Against [Real] [Personal] Property); 22.17 (Unlawful Operation of a Drawing by Chance); and 22.18 (Unlawful Operation of a Game Promotion). The Committee published its proposals in The Florida Bar News. Two comments were received by the Committee, and the Committee received a telephone call from a former member of the Committee. Based upon one of the comments and the telephone call, the Committee revised its proposals to instructions 2.8 and 11.22. The Committee also revised its proposal to instruction 3.12 post-publication. The Court did not publish the proposals after they were filed.

The more significant changes to the standard criminal jury instructions are discussed below. First, new instruction 2.8 is a standard limiting instruction to cover police opinions in a recorded interview with a defendant. The instruction explains to jurors that they are about to watch or hear a recorded interview containing opinions and statements from a law enforcement officer to the defendant. Jurors will then be instructed that these assertions or opinions are not to be considered for their truth, but are only pertinent to explain the reactions or responses of the defendant.

Next, existing instruction 3.12 is amended to clarify that upon certain counts a defendant may be found guilty of more than one lesser-included offense. In addition, the sample verdict form pertaining to death penalty cases was removed, because the form is no longer usable in light of the amendment to the death penalty statute, section 921.141, by virtue of chapter 2016–13, section 13, Laws of Florida.

Next, the amendment to existing instruction 27.1 covers the circumstance when a defendant escapes from a work release program. The new alternative element, 2(d), requires a jury to find that, at the time of the offense, the defendant was participating in a work release program and either willfully failed to return to his or her place of confinement within the time prescribed or willfully failed to remain within the extended limits of his or her confinement. In addition, the word "Attempted" is added in brackets in the title

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of the offense, "Escape." Finally, the phrase "attempted to escape by (read overt act from charge)" is placed in brackets within element 3 because case law provides that the offense of Attempted Escape is a criminal violation distinct from Escape.

The remaining amendments to the standard jury instructions are straightforward and generally track the language of the offenses instructed upon.

Having considered the Committee's report and the comments submitted to the Committee, we authorize for publication and use the standard jury instructions as proposed by the Committee.

The new and amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use.¹ New language is indicated by underlining, and 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 the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

2.8 RECORDED INTERVIEW (EFFECT OF LAW ENFORCEMENT STATEMENTS ON THE DEFENDANT)

Police opinions and statements regarding guilt are generally inadmissible and must be redacted from recordings introduced into evidence unless redaction would render the defendant's relevant admissions incomprehensible. If a recorded interview cannot be appropriately redacted, the trial judge must, upon request, give the following limiting instruction immediately before the recorded interview is played for the jury.

You are about to [hear] [watch] a recorded interview that contains opinions and statements by (name of law enforcement officer(s))to (defendant).These opinions and statements are pertinent only to explain the reactions and responses they elicit. You are not to consider these opinions and statements by the police officer as true, but only to establish the context of (defendant's)reactions and responses.

Jackson v. State, 107 So.3d 328 (Fla.2012); Sheppard v. State, 151 So.3d 1154 (Fla.2014); Dubria v. Smith, 224 F.3d 995 (9th Cir.2000);

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Jackson v. State, 18 So.3d 1016 (Fla.2009); and McWatters v. State, 36 So.3d 613 (Fla.2010).

Comment

This instruction was adopted in 2016.

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 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 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)):

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

The giving of an instruction as to the verdict can be avoided by the use of a self executing verdict form. The judge can read the verdict form to the jury, explaining it as [he] [she] goes.A sample of possible verdict forms for typical variables in combinations of defendants and charges follows:

1. Verdict form for single count, single defendant.

We, the jury, find as follows, as to the defendant in this case: (check only one)

____ a. The defendant is guilty of (crime charged).

____ b. The defendant is guilty of (a lesser included offense).

____ c. The defendant is not guilty.

2. Verdict form for multiple counts, single defendant.

We, the jury, find as follows, as to Count I of the charge: (check only one as to this count)

____ a. The defendant is guilty of (crime charged).

____ b. The defendant is guilty of (a lesser included offense).

____ c. The defendant is not guilty.

We, the jury, find as follows, as to Count II of the charge: (check only one as to this count)

____ a. The defendant is guilty of (crime charged).

____ b. The defendant is guilty of (a lesser included offense).

____ c. The defendant is not guilty.

3. Verdict form if a count is a crime where the defendant can be guilty of more than one lesser included offense.

We, the jury, find as follows, as to Count (insert number) of the charge:

____ a. The defendant is guilty of (crime charged). (If the defendant is not guilty of the main charge, then

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