STANDARD JURY INST.-CRIMINAL CASES (99-2), SC95832.

• Decision Date: 15 June 2000
• Docket Number: No. SC95832.,SC95832.
• Citation: 777 So.2d 366
• Parties: STANDARD JURY INSTRUCTIONS-CRIMINAL CASES (99-2).
• Court: Florida Supreme Court

777 So.2d 366

STANDARD JURY INSTRUCTIONS-CRIMINAL CASES (99-2).

No. SC95832.

Supreme Court of Florida.

June 15, 2000.

Honorable Philip J. Padovano, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Tallahassee, Florida, for Petitioner.

Julianne M. Holt, Public Defender and John J. Skye, Assistant Public Defender, Thirteenth Judicial Circuit, Tampa, Florida; Michael J. Satz, State Attorney and Norman O'Rourke, Assistant State Attorney, Seventeenth Judicial Circuit, Fort Lauderdale, Florida; Curtis A. Golden, State Attorney and David E. Fleet, Assistant State Attorney, First Judicial Circuit, Shalimar, Florida; Jerry Hill, State Attorney, Tenth Judicial Circuit, Bartow, Florida; James Marion Moorman, Public Defender and Robert T. Connolly, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida; Brad King, State Attorney, Fifth Judicial Circuit, Ocala, Florida; Bennett H. Brummer, Public Defender and John E. Morrison, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida; James Russo, Public Defender and R. Blaise Trettis, Executive Assistant Public Defender, Eighteenth Judicial Circuit, Melbourne, Florida; and Arthur I. Jacobs, Fernandina Beach, Florida, Responding.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has submitted to this Court proposed jury instructions and a verdict form for use in proceedings under the Jimmy Ryce Act. We have jurisdiction. See art. V, § 2(a), Fla. Const.

FACTS

The Jimmy Ryce Act provides for the civil commitment of "sexually violent predators"¹ after their criminal sentences have expired. See §§ 394.910-.931, Fla. Stat. (1999). The committee published for comment proposed corresponding jury instructions and a verdict form in the February 15, 1999, edition of The Florida Bar News, and received several comments thereon. The committee made several changes before submitting its proposed instructions and form to this Court, so this Court republished for further comment in the August 1, 1999, edition of The Florida Bar News. This Court received several additional comments and ultimately held oral argument in this case.

DISCUSSION

Upon consideration, and with only slight alteration, we authorize for publication the instructions and form submitted by the committee. We address in turn below some of the most controversial matters that received extensive attention in both the comments and oral argument.

I. "SEXUALLY VIOLENT PREDATOR"

Perhaps the most contentious issue revolved around the term "sexually violent predator" itself, which is used throughout the proposed instructions and form. Several comments lamented that use of the term would be extremely inflammatory, prejudicial, and misleading, and would deprive Jimmy Ryce Act respondents of due process and a fair trial. We note, though, that the term is used throughout the Jimmy Ryce Act itself and, as urged at oral argument by Judge Philip J. Padovano of the First District Court of Appeal, Committee Chair:

This is an issue that was debated in the committee, and we ultimately concluded that it was necessary to use the term, at least in our view, because this is, really, the object of the proceeding, is to determine the status of an individual.... We are, in essence, determining a person's status as an individual, that is a status as a sexually violent predator. Unless the jury understands that that is their job, ... that that is the object, that that is the point of the proceeding, it seems to me that it would be difficult for the jury to grasp the significance of what responsibility it is charged with fulfilling.

Specifically addressing the concern that the term may be inflammatory, Judge Padovano continued:

It is an inflammatory term, but ... I think the harshness of the characterization might actually work to the benefit of the defense lawyers who object to it.... [T]he judge is not telling the jury that this person is a sexually violent predator. The judge is saying the state alleges this. Now, if we were to come up with some euphemism for the term, it might make it easier for the jury to find that [the person] might fit that categorization. It seems to me that we ought to really call it what it is.

We agree with Judge Padovano's reasoning, but caution that trial courts should not allow the term to become a feature of the trial. As phrased by Judge Padovano at oral argument:

[T]hat certainly is a point that we should exercise great caution about, and I would hope that it would be handled properly by trial judges, who have to maintain some decorum in these proceedings and not allow that to be used as the prosecutor referring to this man every five seconds as a sexually violent predator.... [We ought to] try to encourage trial judges to make sure that these [Jimmy Ryce Act proceedings] do not get carried away with character assassinations.

With that caveat in mind, we reject the suggestion to strike the term "sexually violent predator" in favor of some alternative term throughout the proposed instructions and form.

II. "CLEAR AND CONVINCING EVIDENCE"

The Jimmy Ryce Act requires that "[t]he court or jury shall determine by clear and convincing evidence whether the person is a sexually violent predator." § 394.917(1), Fla. Stat. (1999). Several comments (and, indeed, a minority of the committee) criticized the committee's definition of "clear and convincing evidence" in proposed jury instruction 2.03 as "evidence that is precise, explicit, lacking in confusion, and of such weight that it produces in your mind a firm belief or conviction, without hesitation, about the matter in issue." The gist of these comments (and the committee's minority view) is that the proposed definition overstates the applicable burden of proof to a level equal to, or even higher than, the "beyond a reasonable doubt" standard.

We disagree, as the committee's proposed definition of "clear and convincing evidence" is consistent with established caselaw definitions of that term. See, e.g., In re Davey, 645 So.2d 398, 404 (Fla.1994)

; Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). The only change we make is to strike the "in your mind" language in the committee's proposed definition in order to achieve more exacting conformity with the only other two jury instructions that define the term "clear and convincing evidence." See Fla. Std. Jury Instr. (Civ.) MI 4.1(c) (jury instruction for defamation) and MI 11(d) (jury instruction for civil theft). As rhetorically stated at oral argument by John J. Skye, Assistant Public Defender, "[w]hy in the world should we define clear and convincing evidence differently in Jimmy Ryce cases than any other case?" We agree with this sentiment, and decline the invitation in many of the comments to define the term differently here.

III. CONSEQUENCES OF JURORS' VOTES

A number of comments also criticized how the proposed instructions and form advise jurors of the consequences of their votes. Specifically, proposed jury instruction 2.08 advises jurors that their verdict must be unanimous before the respondent may be confined to a secure facility as a sexually violent predator; that if the verdict is not unanimous, but a majority determines that the respondent is a sexually violent predator, the case may be retried before another jury; and that if three or more jurors determine that the respondent is not proven to be a sexually violent predator, the respondent will not be confined to a secure facility and the case will not be retried before another jury. The proposed verdict form similarly reflects voting distinctions as well.

Several comments lamented that the underlying legislation can be fairly read as requiring a polling of the jury only after it is unable to reach a unanimous verdict and a mistrial is declared, not before the fact through the proposed instruction and form at issue here. See § 394.917(1), Fla. Stat. (1999).² However, as urged at oral argument by Judge Padovano:

We could simply give the jury a choice of saying "we unanimously find that the respondent is or unanimously find that the respondent is not [a sexually violent predator]," but that would not be accurate. There are ... [other lawful verdicts] authorized by the legislation itself.... [T]o suggest to a jury that they have to have a unanimous verdict to return a lawful verdict ... is simply wrong, because if a jury were to return a verdict of 3-3, that would be a perfectly lawful verdict [in a Jimmy Ryce Act proceeding]. It would be a verdict authorized by legislation, and there is ... no reason why we ought to let jurors assume that they must decide this case [unanimously] when, in fact, according to the legislation, they need not.

. . . . .

... [N]ot to include these options in the jury instructions would be to lead jurors to believe that the only possibilities were ... yes or no [the respondent is or is not a sexually violent predator], and that is simply not correct, so that is why we put [the options] in there.

We again agree with Judge Padovano's reasoning, and reject the comments urging otherwise.

We also reject related comments like the one submitted by David E. Fleet, Assistant State Attorney, that under the proposed instruction and form at issue, "jurors will feel comfortable voting a majority for commitment, so as to avoid responsibility for the respondent's release, and avoiding responsibility for the respondent's commitment. The jury will, in effect, `pass the buck' to the next jury," thereby causing unnecessary retrials. We appreciate that concern, but trust that jurors in Jimmy Ryce Act proceedings will take their duty seriously and not jump at the opportunity of the "easy out" suggested by Mr. Fleet and others. However, we advise the committee to stay abreast of this situation, and will consider revisiting the matter at a later date if an inordinate number of Jimmy Ryce Act proceedings result in hung juries and...