Fenelon v. State, 77765

• Court: United States State Supreme Court of Florida
• Citation: 594 So.2d 292
• Docket Number: No. 77765,77765
• Parties: 17 Fla. L. Weekly S101, 17 Fla. L. Weekly S112 Max FENELON, Petitioner, v. STATE of Florida, Respondent.
• Decision Date: 13 February 1992

Page 292

594 So.2d 292 17 Fla. L. Weekly S101, 17 Fla. L. Weekly S112 Max FENELON, Petitioner,
v.
STATE of Florida, Respondent. No. 77765. Supreme Court of Florida. Feb. 13, 1992.

Page 293

Max Fenelon, pro se.

Richard L. Jorandby, Public Defender and Tanja Ostapoff, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen. and James J. Carney, Asst. Atty. Gen., West Palm Beach, for respondent.

BARKETT, Justice.

We review Fenelon v. State, 575 So.2d 264 (Fla. 4th DCA 1991), based on asserted conflict with Merritt v. State, 523 So.2d 573 (Fla.1988), and Proffitt v. State, 315 So.2d 461 (Fla.1975), aff'd, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). ¹ The issue is whether the trial court erred in instructing the jury that it could consider flight as a circumstance inferring guilt.

Max Fenelon was tried and convicted of first-degree murder and attempted robbery with a firearm. Over defense objections, the trial court had given the jury instruction on flight. ² On appeal, the district court affirmed, finding "that the record contains sufficient evidence to support the jury instruction on flight." Fenelon, 575 So.2d at 265.

Fenelon urges that under Florida law the evidence was insufficient for such an instruction. The State contends that even if the instruction was erroneously given, the error would be harmless in light of the evidence presented. That evidence included Fenelon's admission upon his arrest that he had fired the gun and run away from the scene; ³ the testimony of Herard Martelus that on the day of the murder Fenelon had a gun and told him that he planned to "jack" someone; the testimony of Betty George that she saw Fenelon running near the area of the shooting with the handle of a black gun protruding from his pocket, and that later that evening Fenelon told her that the gun had accidentally fired when he tried to scare a lady into giving him money; the testimony of Mona Lisa Rolle that Fenelon told her on the day of the shooting that a gun he was holding had accidentally discharged and a lady was shot.

We agree with the State that giving the flight instruction, even if erroneous, was harmless beyond a reasonable doubt in light of the evidence at trial supporting the defendant's guilt. Thus, we need not decide the initial question presented. However,

Page 294

this case has raised serious concerns over the appropriateness of a jury instruction pertaining to evidence of flight.

Evidence that a defendant was seen at the scene of a crime, leaving the scene, or fleeing from the scene, in most instances, would be relevant to the question of the defendant's guilt. Such evidence, like any other evidence offered at trial, is weighed and measured by its degree of relevance to the issues in the case. The flight instruction, however, treats that evidence differently from any other evidence. It provides an exception to the rule that the judge should not invade the province of the jury by commenting on the evidence or indicating what inferences may be drawn from it.

Especially in a criminal prosecution, the trial court should take great care not to intimate to the jury the court's opinion as to the weight, character, or credibility of any evidence adduced.

Whitfield v. State, 452 So.2d 548, 549 (Fla.1984).

In reconsidering the flight instruction, we can think of no valid policy reason why a trial judge should be permitted to comment on evidence of flight as opposed to any other evidence adduced at trial. Indeed, the instruction has long been eliminated from the Florida Standard Jury Instructions in Criminal Cases, apparently in an effort to eliminate "[l]anguage which might be construed as a comment on the evidence." Fla. Std. Jury Instr. (Crim.), Committee Report at xvi (The Florida Bar Feb. 15, 1980). We also note that a number of other jurisdictions have expressed these same concerns and have either disapproved or strongly discouraged the use of a flight instruction. See People v. Larson, 194 Colo. 338, 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715, 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789, 497 N.Y.S.2d 902, 903, 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293, 590 P.2d 1223, 1230, cert. denied, 444 U.S. 880, 100 S.Ct. 169, 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404, 272 S.E.2d 169, 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D.1988).

The difficulty inherent in the flight instruction is in deciding when "leaving" or "fleeing" actually indicates consciousness of guilt. Confusion over the application of the flight instruction is reflected by the many and varied circumstances under which the instruction has been given. For example, some cases indicate that...