Standard Jury Instructions in Crim. Cases

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.