In re Standard Jury Instructions in Crimianl Cases-Report No. 2011-03

• Decision Date: 12 July 2012
• Docket Number: No. SC11–1313.,SC11–1313.
• Citation: 95 So.3d 868
• Parties: In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2011–03.
• Court: Florida Supreme Court

95 So.3d 868

In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2011–03.

No. SC11–1313.

Supreme Court of Florida.

May 17, 2012.

As Revised on Denial of Rehearing July 12, 2012.

OPINION TEXT STARTS HEREOriginal Proceeding—Supreme Court Committee on Standard Jury Instructions in Criminal Cases.

Judge Jacqueline Hogan Scola, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Eleventh Judicial Circuit, Miami, 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 approve both new and amended standard instructions. We have jurisdiction. Seeart. V, § 2(a), Fla. Const.

On July 1, 2011, the Committee filed a report proposing amendments to the following five existing criminal instructions: 3.6(k)—Duress or Necessity; 3.9—Weighing the Evidence; 3.10—Rules for Deliberation; 6.4—Attempted Second Degree Murder; and 28.5(a)—Racing on a Highway; proposing the following four new criminal jury instructions: 8.21—Assault or Aggravated Assault, or Battery or Aggravated Battery, by a Detainee Upon Another Detainee or Upon a Visitor; 10.15(a)—Possession of a Firearm By a Person Under 24 Found Delinquent of Offense Which Would be a Felony if Committed by an Adult; 11.17—Unlawful Residency of a Sex Offender; and 15.4—Resisting Recovery of Merchandise; and finally, proposing amendments to the criminal instructions for special proceedings, i.e., the involuntary civil commitment of sexually violent predators. Those proposals included two revised (1.01, Preliminary Instruction; and 2.08, Verdict and Submitting Case to Jury) and two new (Qualifications Instruction; and 1.001, Introduction) proposed instructions. The Committee's proposals derived from recommendations by Committee members based upon changes in statutory and decisional law, and where no instruction existed for a particular criminal offense.

Except for those noted below, the Committee's proposals are authorized for publication and use.

Proposed jury instruction 6.4, Attempted Second Degree Murder, raises the issue whether Attempted Voluntary Manslaughter is an offense by adding that crime to the table of Lesser Included Offenses to Attempted Second Degree Murder. The issue whether attempted voluntary manslaughter is an offense is presently under consideration in In re Standard Jury Instructions in Criminal Cases—Instruction 6.4 and Instruction 6.6, No. SC12–462 (Fla. petition filed Mar. 19, 2012). On March 19, 2012, the Court severed proposed instruction 6.4 from the instant case for consideration with proposed instruction 6.6 in Case No. SC12–462.

Proposed jury instruction 8.21 arose because there did not exist an instruction for the offense defined under section 784.082, Florida Statutes (2011)—“Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee; reclassification of offenses.” In Hopkins v. State, No. SC10–2483 (Fla. order accepting jurisdiction filed June 1, 2011), the Court is considering whether that statute applies to juveniles held in juvenile facilities. For that reason, we sever proposed jury instruction 8.21 from the instant case for consideration under a new case number following the Court's disposition in Hopkins.

Lastly, the Court rejects the Committee's proposed new standard jury instruction 15.4, Resisting Recovery of Merchandise. The Committee sought to track the statutory language of section 812.015(6), Florida Statutes (2011), which provides as follows:

(6) An individual who, while committing or after committing theft of property, transit fare evasion, or trespass, resists the reasonable effort of a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent to recover the property or cause the individual to pay the proper transit fare or vacate the transit facility which the law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent had probable cause to believe the individual had concealed or removed from its place of display or elsewhere or perpetrated a transit fare evasion or trespass commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, unless the individual did not know, or did not have reason to know, that the person seeking to recover the property was a law enforcement officer, merchant, merchant's employee, farmer, or a transit agency's employee or agent. For purposes of this section the charge of theft and the charge of resisting may be tried concurrently.

(Emphasis added.) However, the Committee notes that neither the statute nor the case law is clear on whether knowledge or lack thereof is an element or an affirmative defense. Therefore, because the Court does not decide substantive issues in jury instruction cases, but rather allows the law to develop in actual cases and controversies, proposed instruction 15.4 is not authorized.

The new and revised instructions, as set forth in the appendix to this opinion, are 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 the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting an additional or alternative instruction nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and 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 shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

3.6(k) DURESS OR NECESSITY

An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).

It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:

1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].

2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].

Give 2b if escape charged.

b. The [danger] [emergency] threatened death or serious bodily injury.

3. The threatened harm must have been real, imminent, and impending.

Give 4a if escape is not charged.

4. a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).

If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and State v. Alcantaro, 407 So.2d 922 (Fla. 1st DCA 1981), and if so, give 4b.

b. The defendant left [the place of [his] [her] confinement] [the vehicle in which [he] [she] was being transported] [to] [from] [his] [her] work on a public road because [he] [she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.

5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].

6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).

Definitions.

“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant's belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he] [she] was surrounded at the time the crime was committed.

The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the

(crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.

If you have a reasonable doubt find from the evidence thatas to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty.

However, if you are convinced beyond a reasonable doubt find that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant guilty if all the elements of the charge have been proved.

Comment

Duress is not a defense an intentional homicideto premeditated murder or attempted premeditated murder. See Wright v. State, 402 So.2d 493 (Fla. 3d DCA 1981)and Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980). It is unclear whether duress is a defense to other forms of homicide. Review Judge Ervin's opinion in Chestnut...