IN THE SUPREME COURT OF FLORIDA SUPPLEMENTAL COMMENTS OF THE FLORIDA PUBLIC DEFENDER ASSOCIATION

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1 IN THE SUPREME COURT OF FLORIDA IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES REPORT / SC SUPPLEMENTAL COMMENTS OF THE FLORIDA PUBLIC DEFENDER ASSOCIATION The Florida Public Defender Association, Inc. ( FPDA ) respectfully offers the following supplemental comments on the recently-adopted jury instructions involving failure to register as a sexual offender or sexual predator. Many, if not most, of the defendants charged with these crimes are indigent clients of public defenders. The FPDA consists of the twenty elected public defenders, approximately a thousand assistant public defenders, and support staff. As appointed counsel for these indigent criminal defendants, FPDA members are deeply interested in the standard jury instructions in these cases. These supplemental comments do not replace, and will not reiterate, the FPDA s original comments, filed in July Instead, these supplemental comments will direct this Court to two recent cases in the District Courts of Appeal that emphasize the need for this Court to clarify that knowingly in the jury instructions means knowingly and willfully.

2 In Smith v. State, 968 So. 2d (Fla. 5th DCA 2007), the court, while relying on this Court s decision in State v. Giorgetti, 868 So. 2d DCA 512, (Fla. 2004), went beyond that decision to hold that the mens rea element includes not just knowledge, but also a general intent: In our view, the court in Giorgetti interpreted section (4), Florida Statutes, as containing a general intent element. Giorgetti, 868 So.2d at ; see also, 21 Am. Jur. 2d Criminal Law 128 (2007) ( General intent is the term used to define the requisite mens rea for a crime that has no stated mens rea. ). And, [w]here a particular crime requires only a showing of general intent, the prosecution need not establish that the accused intended the precise harm or precise result which resulted from his acts. 21 Am. Jur. 2d Criminal Law 128 (2007). The instruction given in this case specifically tracked the language required by Giorgetti. By contrast, we view the proposed instruction 1 as requiring the State to prove specific intent, or that Smith subjectively intended to violate the statute. See 21 Am. Jur. 2d Criminal Law 128 (2007) ( Specific intent involves a subjective state of mind. ). Clearly, adding a specific intent element to section (4), Florida Statutes, would defeat the purpose of the statute. Under that standard, for example, a defendant could avoid criminal liability with testimony that he meant to register, but simply forgot. For this reason, the special instruction actually proffered below would not have been appropriate, even if Smith's testimony had supported his argued defense. See 21 Am. Jur. 2d Criminal Law 129 ( A court will not imply a mental requirement in a crime 1 The proposed instruction read: The State must prove beyond a reasonable doubt that Mr. Smith intentionally violated the statute by Failing to Register a change in address within 48 hours of any change of address with the Department of Highway Safety and Motor Vehicles. 968 So. 2d. at

3 Id. at when the statutory language cuts against such a result and the policy behind the statute would be defeated. ). General intent crimes imply that the action is taken knowingly and willfully or intentionally. See, e.g., Polite v. State, 973 So. 2d. 1107, (Fla. 2007) (for resisting law enforcement officer prosecution, a general intent crime, state must prove conduct was knowing and willful); Frey v. State, 708 So. 2d. 918 (Fla. 1998) (same); M.H. v. State, 936 So. 2d 1, 3 (Fla. 3d DCA 2006) ( Criminal mischief is similar to the general intent crime of second degree murder, in that it requires an act that is willful (intentional) and wrongful (with evil intent and the knowledge that injury or damage will or may be caused). ); N.K.D. v. State, 799 So. 2d 428, (Fla. 1st DCA 2001) (in an arson case, a general intent crime, the state must show intentional act to start fire); A.L. v. State, 675 So. 2d 703 (Fla. 3d DCA 1996) (trespass, a general intent crime, requires proof that a person purposely or intentionally entered upon the forbidden premises. ). The jury instructions, beyond the ambiguous knowingly, do not contain any indication that the person must willfully fail to take all the various actions required by the statute. Instead, the jury instructions may (or may not, depending 3

4 on what knowingly means) 2 impose strict liability for not accomplishing registration after having been told to do so. While this Court may have thought the FPDA s examples of this problem unrealistic, the second case, Griffin v. State, 969 So. 2d 1161 (Fla. 1st DCA 2007), provides an undeniable example of why knowingly is not a sufficient instruction on mens rea. This opinion is also a study in how courts will construe a statute to make cases come out right in the absence of proper criminal intent elements. In that case, a person required to register as a sexual offender was evicted from his home just before Hurricane Katrina s landfall. The evidence showed that on last day of the statutory 48 hours for him to register a new address, all roads and DMV offices were closed. See id. Mr. Griffin testified that he knew of his registration obligation, and reregistered as soon as the office reopened several days later. See id. The fact that Mr. Griffin was arrested and prosecuted, given the facts and the known problems of coping with a natural disaster on the magnitude of Hurricane Katrina, indicates that this Court cannot rely on the state s prosecutorial discretion and common sense to avoid absurd prosecutions. Often the police and prosecutors are under zero tolerance policies requiring them to prosecute every case, irrespective of justice. 2 For a detailed explanation, please see the FPDA s original comments, pages

5 The First District Court of Appeal overturned his conviction for failure to reregister. The obvious problem was that Mr. Griffin s failure to reregister was not willful, even though he knew of his obligations. This case is the perfect example of where it is necessary to specify whether knowlingly means only knowledge, or means knowingly and willfully. Simple justice made it intolerable for Mr. Griffin to bear strict criminal liability for the timing of natural catastrophes. Rather than address that issue, however, the DCA engaged in statutory construction to hold that the 48 hours given to reregister was, as a matter of law, two business days. See id. While no one can argue with the outcome of that decision, the court s reasoning is suspect. When the legislature wanted to set a time limit based on business days, it explicitly used that term. See (7), Fla. Stat ( If the sexual offender is in the custody of a local jail, the custodian of the local jail shall register the offender within 3 business days after intake of the offender.... ). The DCA s dubious statutory construction is the obvious result of the tension created by Mr. Griffin not having willfully failed to register but the law being unclear whether knowingly includes willfulness. The Committee s August 2007 response uses this ambiguity as a reason to not include a willfulness element in the proposed jury instructions, going no further than this Court s language in Giorgetti. That response, however, was filed before 5

6 the Smith opinion expanded Giorgetti. That case is binding precedent statewide unless and until disagreed with by this Court or another district court of appeal. See Pardo v. State, 596 So. 2d. 665, (Fla. 1992). As a result, the jury instructions, as adopted by this Court, do not reflect the current law in Florida. Additionally, by narrowly limiting the instructions, the Committee effectively construes the statute in the way least favorable to criminal defendants. This construction is contrary to the rule of lenity, which rests on due process principles. See, e.g., Perkins v. State, 576 So. 2d. 1310, 1312 (Fla. 1991). The best solution is for this Court to follow Smith and insert appropriate language in the jury instructions that a person must knowingly and willfully fail to take the various actions required by the statute. Such a solution would take account of Smith and reflect current Florida law. 3 The second-best solution would be for the jury instructions to transparently and openly acknowledge the uncertainty in the law. While creating some tension with Pardo, this solution would at least have the virtue of alerting judges and lawyers to the issue, allowing them to make informed and reasoned arguments and decisions. The worst solution, however, would be to leave the jury instructions as they were promulgated. When this Court publishes standard jury instructions, it 3 Alternatively, this Court would need to amend all of the 48 hours references in the jury instructions to two business days pursuant to Griffin. The better solution, however, is to address the mens rea element directly rather than countenance the rather suspicious reasoning in that decision. 6

7 announces, as a matter of course, that it expresses no opinion on the correctness of the instructions. This admonition notwithstanding, this Court and other courts subsequently use the standard jury instructions as aids in interpreting underlying statute. See, e.g., State v. Smith, 840 So. 2d. 987, 993 n.5 (Fla. 2003). Judges and attorneys tend to rely on the standard instructions to be accurate statements of the law. Courts encourage this reliance by holding that standard jury instructions for criminal trials are presumed correct and are preferred over special instructions. Billie v. State, 963 So. 2d 837, 840 (Fla. 3d DCA 2007). Here, the standard jury instructions, as promulgated, amount to a trap for the unwary. If judges and lawyers look no further than the standard instructions, juries will be instructed only on the knowingly aspect of mens rea and will omit the willfully aspect. Where the standard jury instructions do not reflect the case law, reversible error and ineffective assistance of counsel blossom. 4 4 For instance, the standard jury instructions instructing a jury that police actions constitute execution of a legal duty leads to reversals when the legality of that action is an issue. See, e.g., Smith v. State, 907 So. 2d 582, 585 (Fla. 5th DCA 2005) (citing cases); cf. State v. Anderson, 639 So. 2d 609, (Fla. 1994) (standard instruction is acceptable if, and only if, the legality of the police action is not an issue). Similarly, the standard jury instruction on self-defense does not clearly place the burden of proof on the state. See Testerman v. State, 966 So. 2d 1035, (Fla. 4th DCA 2007). A final, and most problematic in terms of numbers of cases affected, example is the standard instructions creating the circular exceptions to self-defense. See, e.g., Grimsley v. State, 967 So. 2d. 1132, 1133 (Fla. 2d DCA 2007). This Court eventually had to amend the jury instructions to solve this latter problem. In re Standard Jury Instructions, 930 So. 2d. 612, 615 (Fla. 2006). 7

8 This Court ought not to create such traps with its standard jury instructions. The ensuing waste of judicial, prosecutorial and defense resources is unnecessary and easily avoided. This Court should either modify the standard jury instructions to follow Smith and require the state to prove general intent, or, at the very least, to alert the trial judges and attorneys to this issue. CONCLUSION The FPDA respectfully requests that this Court amend the proposed standard jury instructions as suggested above and in its original comments Respectfully submitted. Florida Public Defender Association, Inc. By: John Eddy Morrison Assistant Public Defender 1320 N.W. 14th Street Miami, Florida Fla. Bar No

9 CERTIFICATES I HEREBY CERTIFY that a copy of the above comments were mailed to the Honorable Terry D. Terrell, Committee Chair, c/o Les Garringer, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida ; and to James T. Miller, on behalf of the Florida Association of Criminal Defense Lawyers, 233 E. Bay Street, Suite 920, Jacksonville, Florida 32202, this 17th day of July I HEREBY CERTIFY that the above comments are printed in 14-point Times New Roman. By: John Eddy Morrison Assistant Public Defender 9

10 IN THE SUPREME COURT OF FLORIDA IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES REPORT / SC REQUEST FOR ORAL ARGUMENT The Florida Public Defenders Association, Inc., hereby notifies this Court that it wishes to participate in any oral argument scheduled in this case. Respectfully submitted. Florida Public Defender Association, Inc. By: John Eddy Morrison Assistant Public Defender 1320 N.W. 14th Street Miami, Florida Fla. Bar No CERTIFICATE I HEREBY CERTIFY that a copy of the above request was mailed to the Honorable Terry D. Terrell, Committee Chair, c/o Les Garringer, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida ; and to James T. Miller, on behalf of the Florida Association of Criminal Defense Lawyers, 233 E. Bay Street, Suite 920, Jacksonville, Florida 32202, this day of June By: John Eddy Morrison Assistant Public Defender