In re Standard Jury Instructions in Criminal Cases—Report 2018-11

• Decision Date: 20 December 2018
• Docket Number: No. SC18-1717,SC18-1717
• Citation: 260 So.3d 1024 (Mem)
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-11.
• Court: Florida Supreme Court

260 So.3d 1024 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2018-11.

No. SC18-1717

Supreme Court of Florida.

December 20, 2018

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

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 amendments to five existing standard criminal jury instructions: 3.13 (Submitting Case to Jury); 8.22 (Written Threat to [Kill] [Do Bodily Injury] ); 11.14(h) (Sexual Offender Definitions); 11.15(l ) (Sexual Predator Definitions); and 21.11 (Harassing a [Witness] [Victim] [Informant] ). The proposals were published by the Committee in The Florida Bar News ; one comment was received from the Florida Public Defender Association (FPDA) concerning the proposed amendments to instruction 8.22. The proposals were not published by the Court after having been filed by the Committee.

Having considered the Committee's report, the FPDA comment, and the Committee's response thereto, we authorize the standard jury instructions as proposed by the Committee for publication and use. We discuss the more significant amendments below.

First, with regard to instruction 3.13, the sentence "If a juror goes to the restroom, the deliberations should stop until the juror returns" is added. Next, to bring the criminal instructions into harmony with the Standard Civil Jury Instructions, the phrase "signed by a foreperson" is removed from the paragraph pertaining to written communication between jurors and the trial judge. See, e.g. , Fla. Std. Jury Instr. (Civ.) 700.

Next, instruction 8.22 is amended to add "conduct a mass shooting" and "conduct an act of terrorism" to the title of the instruction and name of the crime in response to amendments made by the Legislature to section 836.10, Florida Statutes (2018). See Ch. 2018-3, § 17, at 26, Laws of Fla. Additionally, italicized notes are added that explain there are two ways to violate section 836.10. The first three elements in the existing standard instruction track the language of the statute before the 2018 amendment. In response to the 2018 amendment, new elements are added reading:

1. (Defendant) [made] [posted] [transmitted] a writing or other record.

2. The writing or other record contained a threat to conduct [a mass shooting] [or] [an act of terrorism].

3. (Defendant) [made] [posted] [transmitted] the writing or other record in a manner that allowed another person to view the threat.

Finally, a note apprising trial judges and attorneys of a possible First Amendment concern and a citation to Elonis v. United States , ––– U.S. ––––, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), are added to the comments section of the instruction.

Instructions 11.14(h) and 11.15(l ) are modified to reduce the length of time for a person to qualify as living in a "permanent residence," "temporary residence," or "transient residence" from five days to three days. These changes are based on legislative amendments to section 775.21(2), Florida Statutes (2018). See Ch. 2018-105, § 1, at 1, Laws of Fla. Additionally, the definition of "motor vehicle" in these instructions is amended to include the terms "personal delivery services" and "mobile carriers." See Ch. 2018-130, § 5, at 4-5, Laws of Fla.; see also § 320.01(1)(a), Fla. Stat. (2018).

Having considered the Committee's report, the comment, and the Committee's response thereto, we authorize for publication and use amended instructions 3.13, 8.22, 11.14(h), 11.15(l ) and 21.11, as proposed, and as set forth in the appendix to this opinion.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 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 set forth in the appendix shall become effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

3.13 SUBMITTING CASE TO JURY

In just a few moments you will be taken to the jury room by the [court deputy] [bailiff]. The first thing you should do is choose a foreperson who will preside over your deliberations. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard. It is also the foreperson's job to sign and date the verdict form [s] when all of you have agreed on a verdict and to bring the verdict form [s] back to the courtroom when you return.

During deliberations, jurors must communicate about the case only with one another and only when all jurors are present in the jury room. If a juror goes to the restroom, the deliberations should stop until the juror returns. You are not to communicate with any person outside the jury about this case. Until you have reached a verdict, you must not talk about this case in person or through the telephone, writing, or electronic communication, such as a blog, twitter, e-mail, text message, or any other means. Do not contact anyone to assist you during deliberations. These communications rules apply until I discharge you at the end of the case. If you become aware of any violation of these instructions or any other instruction I have given in this case, you must tell me by giving a note to the [court deputy] [bailiff].

Give if judge has allowed jurors to keep their electronic devices during the trial.

Many of you may have cell phones, tablets, laptops, or other electronic devices here in the courtroom. The rules do not allow you to bring your phones or any of those types of electronic devices into the jury room. Kindly leave those devices on your seats where they will be guarded by the [court deputy] [bailiff] while you deliberate.

If you need to communicate with me, send a note through the [court deputy] [bailiff] , signed by the foreperson . If you have voted, do not disclose the actual vote in the note.

If you have a questions, I will talk with the attorneys before I answer, so it may take some time. You may continue your deliberations while you wait for my answer. I will answer any questions, if I can, in writing or orally here in open court.

Give if applicahle.

During the trial, [an item] [items] [was] [were] received into evidence as [an] exhibit[s]. You may examine whatever exhibit[s] you think will help you in your deliberations.

Give a or b as appropriate.

a. The[se] exhibit[s] will be sent into the jury room with you when you begin to deliberate.

b. If you wish to see an[y] exhibit[s], please request that in writing.

In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For more than two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share.

Comment

This instruction was adopted in 1981 and was amended in 2000 [777 So.2d 366], 2003 [850 So.2d 1272], 2010 [52 So.3d 595], 2012 [141 So.3d 132], 2014 [152 So.3d 529],and 2016 [202 So.3d 830], and 2018.

8.22 WRITTEN THREAT TO [KILL] [DO BODILY INJURY] [CONDUCT A MASS SHOOTING] [CONDUCT AN ACT OF TERRORISM]

§ 836.10, Fla. Stat.

To prove the crime of Written Threat to [Kill] [Do Bodily Injury] [Conduct a Mass Shooting] [Conduct an Act of Terrorism] , the State must prove the following three elements beyond a reasonable doubt:

* There are two ways to violate § 836.10, Fla. Stat. Give as applicable.

1. (Defendant) [wrote] [composed] a[n] [letter] [electronic communication] [inscribed communication].

2. The [letter] [electronic communication] [inscribed communication] contained a threat to [kill] [do bodily injury to] [(victim)] [any member of (victim's) family].

3. (Defendant) [sent] [procured the sending of] that [letter] [electronic communication] [inscribed communication] to (victim).

Give if applicable.

It is not necessary for the State to prove that the [letter] [electronic communication] [inscribed communication] had been signed.

Definitions. Give if applicable.

An "inscribed communication" is a communication that is written or printed.

To "procure" means to persuade, induce, prevail upon, or cause a person to do something.

*The second way to violate § 836.10, Fla. Stat. is set forth below.

1. (Defendant) [made] [posted] [transmitted] a writing or other record.

2. The writing or other record contained a threat to conduct [a mass shooting] [or] [an act of terrorism].

3. (Defendant) [made] [posted] [transmitted] the writing or other record in a manner that allowed another person to view the threat.

A "record" includes an electronic record.

Lesser Included Offenses

 WRITTEN THREAT TO [KILL] OR [DO BODILY INJURY] [CONDUCT A MASS SHOOTING] [CONDUCT AN ACT OF TERRORISM] — 836.10 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None
                                 Attempt          777.04(1)      5.1
                                 Assault          784.011        8.1
                

Comments

The statute may raise First Amendment concerns. Trial judges and attorneys should consider Elonis v. United States, 135 S.Ct. 2001 (2015) and Saidi v. State, 845...