Standard Jury Instructions in Crim. Cases

636 So. 2d 502, 19 Fla. L. Weekly Supp. 244, 1994 Fla. LEXIS 654, 1994 WL 164596

• Court: Supreme Court of Florida
• Decided: May 5, 1994
• Docket: 82438
• Status: Published

Opinion

636 So.2d 502 (1994)

STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (93-1).

No. 82438.

Supreme Court of Florida.

May 5, 1994.

Fredricka Greene Smith, Chair, The Committee on Standard Jury Instructions in Criminal Cases, Miami, Florida, for petitioner.

Bernie McCabe, State Atty., and Joseph M. Walker, III, Asst. State Atty., Sixth Judicial Circuit, Clearwater, and Stephen Krosschell, Valrico.

PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions (Criminal) has submitted recommended amendments to the Florida Standard Jury Instructions in Criminal Cases as follows:

1. The committee recommends an amendment to standard jury instruction 3.04(b) (page 38 of the manual) regarding proceedings in insanity cases. The committee believes that the amended instruction more accurately reflects the procedures established in Florida Rule of Criminal Procedure 3.217.

2. The committee recommends a new instruction on insanity — psychotropic medication which is required by Florida Rule of Criminal Procedure 3.215(c)(2). See Rosales v. State, 547 So.2d 221 (Fla. 3d DCA 1989).

3. The committee recommends a new set of instructions on attempted murder and manslaughter because of its belief that an instruction integrating elements of attempt with the elements of murder is more understandable than reading the standard instruction on attempt to commit a crime together with the instruction on murder.^[1]

Following publication of the recommendations in The Florida Bar News, the committee received two letters concerning its proposed amendments. As a result of one of these letters, the committee amended its recommendation with respect to attempted first-degree felony murder. As a result of the other letter, the committee amended its recommendation with respect to attempted voluntary manslaughter, and in order to maintain consistency also proposed a new instruction on manslaughter.

With certain technical changes, the amendmendments recommended by the committee are set forth in the appendix attached to this opinion. We approve for publication the amendments set forth in the appendix. However, we caution all interested persons that the notes and comments 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 amendments as set forth in the appendix shall be effective when this opinion becomes final. We wish to express our appreciation to the committee for its dedication in presenting to the Court its recommendations.

It is so ordered.

GRIMES, C.J., and OVERTON, McDONALD, SHAW, KOGAN and HARDING, JJ., concur.

APPENDIX

                              1. The wording of the last sentence
                                   of instruction 3.04(b) (page 38
                                   of the manual) is changed as
                                   follows:
                                 I canmust conduct
                                   additionalfurther proceedings
                                   to determine if hethe defendant
                                   should be committed to a mental
                                   hospital, or given other
                                   outpatient treatment or
                              2. New instruction on Insanity —
                                 INSANITY — PSYCHOTROPIC
                                 MEDICATION
  Note to Judge:                 Give, if requested by defendant,
                                   at the beginning of trial in the
                                   charge to the jury.
                                 (Defendant) is currently being
                                   administered psychotropic
                                   medication under medical
                                   supervision for a mental or
                                   emotional condition.
                                 Psychotropic medication is any
                                   drug or compound affecting the
                                   mind or behavior, intellectual
                                   functions, perception, moods, or
                                   emotion and includes
                                   anti-psychotic, anti-depressant,
                                   anti-manic and anti-anxiety
                                   drugs.
                              3. New instructions on attempted
                                 murder and manslaughter:
                                 INTRODUCTION TO ATTEMPTED
                                 HOMICIDE
  Note to Judge                  Read in all attempted murder and
                                   attempted manslaughter cases.
                                 In this case (defendant) is
                                   accused of (crime charged).
  Give degrees as applicable     Attempted murder in the first
                                   degree includes the lesser
                                   crimes of attempted murder in
                                   the second degree, attempted
                                   murder in the third degree and
                                   attempted voluntary
                                   manslaughter, all of which are
                                   unlawful.
                                 An attempted killing that is
                                   excusable or was committed by
                                   the use of justifiable deadly
                                   force is lawful.
                                 If you find that there was an
                                   attempted killing of (victim) by
                                   (defendant), you will then
                                   consider the circumstances
                                   surrounding the attempted
                                   killing in deciding if it was
                                   attempted first degree murder,
                                   or attempted second degree
                                   murder, or attempted third
                                   degree murder, or attempted
                                   voluntary manslaughter, or
                                   whether the attempted killing
                                   was excusable or resulted from
                                   justifiable use of deadly force.
                                 JUSTIFIABLE ATTEMPTED HOMICIDE
                                 The attempted killing of a human
                                   being is justifiable and
                                   lawful if necessarily done while
                                   resisting an attempt to
                                   murder or commit a felony upon
                                   the defendant, or to
                                   commit a felony in any dwelling
                                   house in which the defendant
                                   was at the time of the killing.
                                 EXCUSABLE ATTEMPTED HOMICIDE
                                 The attempted killing of a human
                                   being is excusable and
                                   therefore lawful under any one
                                   of the three following
                                   circumstances:
                              1. When the attempted killing is
                                  committed by accident and
                                  misfortune in doing any lawful
                                  act by lawful means with
                                  usual ordinary caution and
                                  without any unlawful intent, or

                              2. When the attempted killing occurs
                                  by accident or misfortune
                                  in the heat of passion, upon any
                                  sudden and sufficient
                                  provocation, or
                              3. When the attempted killing is
                                  committed by accident and
                                  misfortune resulting from a
                                  sudden combat, if a dangerous
                                  weapon is not used and the
                                  attempted killing is not done in
                                  a cruel and unusual manner.
  Definition                     "Dangerous weapon" is any weapon
                                   that, taking into account
                                   the manner in which it is used,
                                   is likely to produce death or
                                   great bodily harm.
                                 I now instruct you on the
                                   circumstances that must be
                                   proved before defendant may be
                                   found guilty of attempted murder
                                   or any lesser included crime.
                                 ATTEMPTED MURDER — FIRST DEGREE
                                   (PREMEDITATED) F.S. 782.04(1)(a)
                                   and 777.04
                                 Before you can find the defendant
                                   guilty of Attempted First
                                   Degree Premeditated Murder, the
                                   State must prove the
                                   following three elements beyond
                                   a reasonable doubt:
  Elements                    1. The defendant did some act
                                   intended to cause the death of
                                   (victim) that went beyond just
                                   thinking or talking about it.
                              2. Defendant acted with a
                                   premeditated design to kill
                                   (victim).
                              3. The act would have resulted in the
                                   death of (victim) except
                                   that someone prevented the
                                   defendant from killing (victim)
                                   or [he] [she] failed to do so.
  Definition                     A premeditated design to kill
                                   means that there was a conscious
                                   decision to kill. The decision
                                   must be present in the
                                   mind at the time the act was
                                   committed. The law does not
                                   fix the exact period of time
                                   that must pass between the
                                   formation of the premeditated
                                   intent to kill and the act.
                                   The period of time must be long
                                   enough to allow reflection
                                   by the defendant. The
                                   premeditated intent to kill must
                                   be formed before the act was
                                   committed.
                                 The question of premeditation is a
                                   question of fact to be
                                   determined by you from the
                                   evidence. It will be sufficient
                                   proof of premeditation if the
                                   circumstances of the attempted
                                   killing and the conduct of the
                                   accused convince you
                                   beyond a reasonable doubt of the
                                   existence of premeditation
                                   at the time of the attempted
                                   killing.
                                 It is not an attempt to commit
                                   first degree premeditated
                                   murder if the defendant
                                   abandoned the attempt to commit
                                   the offense or otherwise
                                   prevented its commission under
                                   circumstances indicating a
                                   complete and voluntary
                                   renunciation of [his] [her]
                                   criminal purpose.
                                 ATTEMPTED FELONY MURDER — FIRST
                                   DEGREE F.S. 782.04(1)(a) and
                                   777.04
                                 Before you can find the defendant
                                   guilty of Attempted First
                                   Degree Felony Murder, the State
                                   must prove the following
                                   two elements beyond a reasonable
                                   doubt:
  Elements
  Give 1a if defendant is     1. a. [(Defendant) did some overt
  actual perpetrator               act, which could have caused the
                                   death of (victim), but did not.]
  Give 1b if defendant is        b. [Some person other than
  actual perpetrator               (defendant) did some specific,
                                   not overt act which could have
                                   caused the death of (victim) but
                                   did not; but both (defendant)
                                   and the person who did the
                                   specific overt act were
                                   principals in the commission of
                                   (crime alleged).]
  Give 2a, 2b, or 2c as       2. The act was committed as a
  applicable                       consequence of and while
                                 a. [the defendant was engaged in
                                    the commission of (crime
                                    alleged).]
                                 b. [the defendant was attempting to
                                    commit (crime alleged).]

                                 c. [the defendant, or an
                                    accomplice, was escaping from
                                    the immediate scene of (crime
                                    alleged).]
                                In order to convict of attempted
                                   first degree felony murder, it
                                   is not necessary for the State
                                   to prove that the defendant
                                   had a premeditated design or
                                   intent to kill.
                                It is not an attempt to commit
                                   first degree felony murder if
                                   the [defendant] [person who
                                   committed the specific overt
                                   act] abandoned the attempt to
                                   commit the offense or otherwise
                                   prevented its commission under
                                   circumstances indicating
                                   a complete and voluntary
                                   renunciation of [his] [her]
                                   criminal purpose.
  Notes to Judge              1. Define the crime alleged. If
                                   burglary, also define the crime
                                   that was the object of burglary.
                              2. If 1b is given, immediately give
                                   principal instruction (3.01 on
                                   page 32a).
                                 ATTEMPTED SECOND DEGREE MURDER
                                   F.S. 782.04(2) and 777.04
                                 Before you can find the defendant
                                   guilty of Attempted Second
                                   Degree Murder, the State must
                                   prove the following two
                                   elements beyond a reasonable
                                   doubt.
  Elements                    1. (Defendant) intentionally
                                   committed an act which would have
                                   resulted in the death of
                                   (victim) except that someone
                                   prevented (defendant) from killing
                                   (victim) or [he] [she] failed
                                   to do so.
                              2. The act was imminently dangerous
                                   to another and evincing a
                                   depraved mind regardless of
                                   human life.
  Definitions                    An act is "imminently dangerous to
                                   another and evincing a
                                   depraved mind regardless of
                                   human life," if it is an act or
                                   series of acts that:
                              1. a person of ordinary judgment
                                   would know is reasonably
                                   certain to kill or do serious
                                   bodily injury to another, and
                              2. is done from ill will, hatred,
                                   spite or an evil intent, and
                              3. is of such a nature that the act
                                   itself indicates an indifference
                                   to human life.
                                 In order to convict of attempted
                                   second degree murder, it is
                                   not necessary for the State to
                                   prove the defendant had a
                                   premeditated intent to cause
                                   death.
                                 It is not an attempt to commit
                                   second degree murder if the
                                   defendant abandoned the attempt
                                   to commit the offense or
                                   otherwise prevented its
                                   commission under circumstances
                                   indicating a complete and
                                   voluntary renunciation of [his]
                                   [her] criminal purpose.
                                 ATTEMPTED VOLUNTARY MANSLAUGHTER
                                   F.S. 782.07 and 777.04
                                 Before you can find the defendant
                                   guilty of Attempted Voluntary
                                   Manslaughter, the State must
                                   prove the following
                                   element beyond a reasonable
                                   doubt:
  Element                     1. (Defendant) committed an act [or
                                   procured the commission of
                                   an act], which was intended to
                                   cause the death of (victim)
                                   and would have resulted in the
                                   death of (victim) except that
                                   someone prevented (defendant)
                                   from killing (victim) or [he]
                                   [she] failed to do so.
                                 However, the defendant cannot be
                                   guilty of attempted voluntary
                                   manslaughter if the attempted
                                   killing was either excusable
                                   or justifiable as I have
                                   previously explained those
                                   terms.
                                 It is not an attempt to commit
                                   manslaughter if the defendant
                                   abandoned the attempt to commit
                                   the offense or otherwise
                                   prevented its commission under
                                   circumstances indicating a
                                   complete and voluntary
                                   renunciation of [his] [her]
                                   criminal purpose.

  Give only if procurement       To "procure" means to persuade,
  is alleged and proven            induce, prevail upon or cause a
                                   person to do something.
  Give if attempted              In order to convict of attempted
  manslaughter is being            voluntary manslaughter it is
  defined as a lesser              not necessary for the State to
  included offense of              prove that the defendant had a
  attempted first degree           premeditated intent to cause
  premeditated murder              death.
  Notes to Judge                 In the event of any reinstruction
                                   on attempted voluntary
                                   manslaughter, the instructions
                                   on justifiable and excusable
                                   attempted homicide as previously
                                   given on page 61 should
                                   be given at the same time.
                                   Hedges v. State, 172 So.2d 824
                                   (Fla. 1965).
                                 There is no crime of attempted
                                   involuntary manslaughter (i.e.,
                                   manslaughter by culpable
                                   negligence. See Taylor v. State,
                                   444 So.2d 931 (Fla. 1983)).
                                 MANSLAUGHTER F.S. 782.07
                                 Before you can find the defendant
                                   guilty of Manslaughter, the
                                   State must prove the following
                                   two elements beyond a
                                   reasonable doubt:
  Elements                    1. (Victim) is dead.
  Give 2(a), (b) or (c)       2. [Defendant]
  depending upon
  allegations and proof
                                 (a) intentionally caused the death
                                       of (victim).
                                 (b) intentionally procured the
                                       death of (victim).
                                 (c) The death of (victim) was
                                       caused by the culpable
                                       negligence of (defendant).
                                 However, the defendant cannot be
                                   guilty of manslaughter if
                                   the killing was either
                                   justifiable or excusable
                                   homicide as I have previously
                                   explained those terms.
  Give only if 2(b) alleged      To "procure" means to persuade,
  and proved.                      induce, prevail upon or and
                                   cause a person to do something.
  Give only if 2(c) alleged      I will now define "culpable
  and proved.                      negligence" for you. Each of us
                                   has a duty to act reasonably
                                   toward others. If there is a
                                   violation of that duty, without
                                   any conscious intention to
                                   harm, that violation is
                                   negligence. But culpable
                                   negligence is more than a
                                   failure to use ordinary care
                                   toward others.
                                   In order for negligence to be
                                   culpable, it must be gross and
                                   flagrant. Culpable negligence is
                                   a course of conduct showing
                                   reckless disregard of human
                                   life, or of the safety of
                                   persons exposed to its dangerous
                                   effects, or such an entire
                                   want of care as to raise a
                                   presumption of a conscious
                                   indifference to consequences, or
                                   which shows wantonness or
                                   recklessness, or a grossly
                                   careless disregard of the safety
                                   and welfare of the public, or
                                   such an indifference to the
                                   rights of others as is
                                   equivalent to an intentional
                                   violation of such rights.
                                 The negligent act or omission must
                                   have been committed with
                                   an utter disregard for the
                                   safety of others. Culpable
                                   negligence is consciously doing
                                   an act or following a course
                                   of conduct that the defendant
                                   must have known, or reasonably
                                   should have known, was likely to
                                   cause death or great
                                   bodily injury.
  Give only if 2(a) alleged      In order to convict of
  and proved, and                  manslaughter by intentional act,
  manslaughter is being            it is not necessary forthe State
  defined as a lesser              to prove that the defendant had
  included offense of first        a premeditated intent to cause death.
  degree premeditated murder.

  Notes to Judge                 In the event of any reinstruction
                                   on manslaughter, the instructions
                                   on justifiable and excusable
                                   homicide as previously
                                   given on page 61 should be given
                                   at the same time.
                                   Hedges v. State, 172 So.2d 824
                                   (Fla. 1965).
                                 In appropriate cases, an
                                   instruction on transferred intent
                                   should be given.

NOTES

[1] The committee noted that it had great difficulty in drafting an instruction on attempted felony murder which incorporated the language in Amlotte v. State, 456 So.2d 448 (Fla. 1984). In fact, the committee observed that a majority of its members were persuaded by the dissenting opinion in that case that there could be no such crime as attempted felony murder. Recognizing, however, that its function was not to change existing law, the committee submitted a proposed instruction for that crime.