In re Standard Jury Instructions in Criminal Cases—report 2017-07

• Decision Date: 21 November 2018
• Docket Number: No. SC17-1822,SC17-1822
• Citation: 257 So.3d 908 (Mem)
• Parties: IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-07.
• Court: Florida Supreme Court

257 So.3d 908 (Mem)

IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2017-07.

No. SC17-1822

Supreme Court of Florida.

November 21, 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

Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial Circuit, on behalf of Florida Public Defender Association, Inc., Miami, Florida, Responding with Comments

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to standard criminal jury instructions 3.6(f) (Justifiable Use of Deadly Force) and 3.6(g) (Justifiable Use of Non-Deadly Force), 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 filed its report proposing amendments to standard criminal jury instructions 3.6(f) and 3.6(g). The proposals were published in The Florida Bar News . One comment was received by the Committee from the Florida Public Defender Association (FPDA). The Committee disagreed with the comment and declined to modify its proposals as suggested by the FPDA.

Following the filing of the Committee's report, the Court published the proposals for comment. One comment was filed with the Court from the FPDA. In its comment, the FPDA raised two issues pertaining to both instructions 3.6(f) and 3.6(g), and one issue limited to the instruction on deadly force. First, the FPDA disagreed with the Committee's proposal to limit the forcible felony language of section 776.013(1), Florida Statutes (2018), by adding the language "against [himself] [herself] [or] [another]." The FPDA pointed out that such language is not included in the statute, and the instruction would not make sense because some forcible felonies are not committed against another person. Second, the FPDA argued that the common law "castle doctrine"¹ should be added to cover those situations in which the defendant is in his place of business and was engaged in criminal activity. Last, the FPDA opposed the Committee's proposal to add the word "unnecessarily" to the instruction pertaining to section 776.041(2)(a), Florida Statutes (2018). We agree with the FPDA on this latter point and delete "unnecessarily" from the Committee's proposal. However, we request that the Committee further consider the FPDA's comment as it pertains to the castle doctrine, and, if appropriate, submit a report proposing additional amendments to instruction 3.6(f).

We authorize the publication and use of instructions 3.6(f) and 3.6(g) as modified by the Court. Significant changes to the instructions are discussed below.

First, both instructions 3.6(f) and 3.6(g) are modified to be consistent with statutory changes to section 776.013(1), Florida Statutes (2018), as enacted in chapter 2017-77, section 1, Laws of Florida. In addition, with regard to those portions of each instruction pertaining to the situation where the defendant acted in response to the imminent commission of a forcible felony, as listed in section 776.08, Florida Statutes (2018), the Court has added an italicized note to trial judges clarifying that the instruction may need to be modified if the forcible felony at issue is not a crime against a person. Whether a person may justifiably use force in response to a forcible felony that is not directed at a person is an issue that is not properly before this Court. Also, the italicized note to trial judges citing section 776.041(1) is expanded to explain that the forcible felony instruction should only be given in cases where the defendant is charged with either an independent forcible felony or felony murder if the underlying felony is an independent forcible felony. See In re Standard Jury Instructions in Criminal Cases-Report 2014-06 , 191 So.3d 411, 412 (Fla. 2016).

Next, instruction 3.6(f) is further modified as follows: (1) the paragraph beginning "It is a defense to the crime[s] of" at the beginning of the instruction now includes the phrase "including lesser-included offenses"; (2) an explanatory note to trial judges is added addressing the fact that there are a number of statutes that pertain to the justifiable use of force; and (3) a new section is added to "inform the jury how to evaluate cases in which there is evidence that the defendant was engaged in criminal activity or was in a place that he or she had no right to be" because in those cases there is a duty to retreat before using deadly force.

Lastly, with regard to instruction 3.6(g), the following additional modifications are made: (1) the language "[or] the imminent commission of (applicable forcible felony listed in § 776.08, Fla. Stat.) against [himself] [herself] [or] [another]" is added to the sentence pertaining to justification of nondeadly force in defense of a person against the imminent use or threat of imminent use of unlawful force; (2) an explanatory note is added to the instruction for "aggressor" under section 776.041(1), Florida Statutes, that it should only be given in cases where the defendant is charged with either an independent forcible felony or felony murder, if the underlying felony is an independent forcible felony; and (3) two new provisions are to be given if applicable, pertaining to "prior threats" and "specific act of victim known by defendant."

Having considered the Committee's report, we authorize the amended instructions with our modifications, as set forth in the appendix to this opinion, for publication and use.² New language is indicated by underlining, and deleted language is indicated by struck-through type. 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. 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. The instructions as 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

3.6(f) JUSTIFIABLE [ USE ] [OR] [THREATENED USE] OF DEADLY FORCE

Because there are many statutes applicable to self-defense, give only those parts of the instructions that are required by the evidence. However, unless the evidence establishes the force or threat of force was deadly or non-deadly as a matter of law, both 3.6(f) and 3.6(g) must be given. Mathis v. State, 863 So.2d 464 (Fla. 1st DCA 2004). Only the discharge of a firearm, whether accidental or not, has been deemed to be the use of deadly force as a matter of law. Hosnedl v. State, 126 So.3d 400 (Fla. 4th DCA 2013).

Read in all cases.

It is a defense to the crime[s] of (name[s] of relevant crime[s], including lesser-included offenses)if the actions of (defendant)constituted the justifiable [use] [or] [threatened use] of deadly force."Deadly force" means force likely to cause death or great bodily harm.

Definition.

"Deadly force" means force likely to cause death or great bodily harm.

Both Chapter 776 and §Section782.02, Fla. Stat.,and many statutes within Chapter 776address the justifiable use of deadly force, however, § 782.02, Fla. Stat., does not address the concept of stand-your-ground/no duty to retreat. Additionally, § 776.013(1), Fla. Stat., covers the situation where the defendant was in a dwelling and had the right to be there while § 776.012(1), and § 776.031(2), Fla. Stat., cover other situations. The Committee advises lawyers and judges to use great caution in deciding which statute or statutes apply.

Give if applicable. § 782.02, Fla. Stat.

The use of deadly force is justifiable ifthe defendant (defendant)reasonably believed that the force was necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

1. another's attempt to murder [him] [her], or

2. any attempt to commit (applicable felony) upon [him] [her], or 3. any attempt to commit (applicable felony) upon or in any dwelling house in which [he] [she] was present occupied by [him] [her].

Give the elements of the applicable felony that defendant alleges victim attempted to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So.3d 424 (Fla. 5th DCA 2011).

Give if applicable. §§ 776.012(2), 776.031(2), Fla. Stat.Defendant not in a dwelling or residence or defendant was in a dwelling or residence but had no right to be there. Where appropriate, the court should state or define the applicable criminal activity that the defendant may have been engaged in.

(Defendant)was justified in [using] [or] [threatening to use] deadly force if [he] [she] reasonably believed that such [force] [or] [threat of force] was necessary to prevent [imminent death or great bodily harm to [himself] [herself] [or] [another] [or] [the imminent commission of (applicable forcible felony listed in § 776.08, Fla. Stat.)against [himself] [herself] [or another]]. If (defendant)was not otherwise engaged in criminal activity and was in a place [he] [she] had a right to be, then [he] [she] had no duty to retreat and had the right to stand [his] [her] ground.

Give the elements of the applicable forcible felony that defendant alleges victim was about to commit, but omit any reference to burden of proof. See Montijo v. State, 61 So.3d 424 (Fla. 5th DCA 2011).The instruction may need to be modified in the event that the forcible felony at issue is not a crime against a person.

Give the paragraph below when there is...