APPENDIX E. MINORITY REPORT 7.7 Manslaughter

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1 APPENDIX E MINORITY REPORT 7.7 Manslaughter Bart Schneider Member, Committee on Standard Jury Instructions in Criminal Cases Assistant State Attorney, Seventh Judicial Circuit Committee on Standard Jury Instructions in Criminal Cases The Honorable Terry D. Terrell, Chair December 17, 2007

2 To: Florida Supreme Court From: Bart Schneider, Committee Member Date: December 10, 2007 Re: Minority Report on Standard Jury Instruction for Manslaughter Although the manslaughter instruction needs to be changed, I do not think the amendments that have been approved by the committee are the appropriate changes. The committee has changed three parts of the existing instruction: element 2a; element 2b; and the definition of culpable negligence. I will discuss each separately. Element 2a- The confusion surrounding element 2a stems from the manslaughter statute itself, which reads: The killing of a human being by the act... of another... is manslaughter. The problem, of course, is that the statute gives no guidance as to what constitutes manslaughter by act. But because another part of the manslaughter statute criminalizes culpable negligence causing death, the only interpretation that makes sense is to find that manslaughter by act is the equivalent of voluntary manslaughter (the defendant engaged in an intentional act, with the intent to kill, but there was no premeditation because the defendant acted in a heat-of-passion based upon sudden and sufficient provocation and the defendant achieved his intended result (death)). The difference between premeditated murder and manslaughter by act should be a) 1 st degree murder requires premeditation and b) voluntary manslaughter requires that the defendant be justifiably inflamed so that he couldn t premeditate. The existing manslaughter jury instruction tries - but does not succeed - to capture the idea that manslaughter by act is voluntary manslaughter. The existing instruction - D intentionally caused the death of victim needs to be changed for three reasons: (1) It does not differentiate between a premeditated killing and a heat-of-passion killing; (2) It does not inform the jurors that sudden and sufficient provocation is required for a heat-of-passion killing; and (3) It could be misinterpreted to mean that the defendant had to intend only the act and not the result of the act (death). In fact, I believe the Second District made that very mistake in Hall v. State, 951 So. 2d 91 (Fla. 2d DCA 2007). In Hall, the victim threw a rock that hit a bystander to Hall. Hall then chased and caught the victim and punched

3 the victim in the head, which killed the victim. The 2 nd District found that manslaughter by act does not require an intent to kill, but only an intentional act that causes the death of the victim. This cannot be correct. If all that is required for manslaughter by act is an intentional act - that is not justifiable or excusable - that causes death, then someone who intentionally drives 10 mph over the speed limit and hits a pedestrian, causing death, is guilty of manslaughter. Driving more than the speed limit is an intentional act; it is not justifiable or excusable because it is against the traffic law; and a death ensued. If Hall is correct, then any intentional act that constitutes a failure to use ordinary care (simple negligence) that causes death is manslaughter. I believe the Hall court should have found that the defendant s chasing and punching of the victim with great force, in the head, when the victim was not looking, was such a flagrant deviation from how a reasonable person would act, that the defendant was culpably negligent and could be held criminally liable for the victim s death. But since there was no intent to kill, the Hall defendant was not guilty of manslaughter by act. Unfortunately, the committee did not improve the existing instruction by changing element 2a to: D knowingly or consciously committed an act that caused the death of victim. First, the proposed instruction has the same deficiency as the existing instruction because it does not distinguish between 1 st degree premeditated killings and heat-of-passion killings. More important, the proposed instruction could erroneously be used to criminalize simple negligence causing death. Some members of the committee believe that we should simply follow the language of the statute. But to do so for the manslaughter statute leads to an absurd result. In another part of the statute, the legislature said that culpable negligence causing death was manslaughter. Thus, it is not reasonable to believe that the legislature intended manslaughter by act to include voluntary manslaughter and simple negligence causing death. The only logical interpretation is that manslaughter by act means only voluntary manslaughter, which requires an intent to kill but without premeditation. To correct these problems, I suggest that element 2a read: D intended and did cause the death of (victim), but did so without premeditating and while in a heat-of-passion based upon sudden and sufficient provocation. This instruction makes it clear that manslaughter by act means

4 only that: a) D intended the act; b) D intended the result of the act; c) the act caused the death of the victim; d) D did not premeditate because D was in a heat-of-passion; and e) the heat-of-passion was legally adequate. Obviously, an explanation of sudden and sufficient provocation must also be given to the jurors. Element 2b The problem with element 2b can also be traced to the manslaughter statute which reads: The killing of a human being... by the procurement... of another... is manslaughter. If defendant #1 procures defendant #2 to kill a victim, then defendant #1 has engaged in 1 st degree premeditated murder as a principal and should not be convicted of manslaughter. But short of legislative amendment, I see no way around the problem. The manslaughter by procurement part of the statute cannot be interpreted in a way that differentiates between 1 st degree murder and manslaughter. The proposal by the committee, however, states that manslaughter by procurement occurs when D knowingly or consciously procured an act that resulted in the death of the victim. Under this interpretation, if D hires a window washer and he negligently drops a bucket from the top of a building which falls on the head of someone in the street killing the person below, then D is guilty of manslaughter. The proposed change to element 2b suffers from the same problem as the proposed change to element 2a it could criminalize simple negligence causing death. In sum, because the problem of distinguishing manslaughter by procurement from 1 st degree premeditated murder does not appear to be a significant issue, I recommend that this Court leave element 2b as D intentionally procured the death of V. Definition of culpable negligence Once again, there has been no guidance from the legislature as to what is meant by the term culpable negligence. Accordingly, this Court must address and jurors need to be informed about - five separate ideas that are incorporated within the concept of culpable negligence : (1) Jurors must be instructed that there must be more than a mere deviation from the conduct of a reasonable person. (2) The jurors must know about the magnitude of harm that the legislature is trying to prevent. The harm that is addressed by the manslaughter statute is the harm of death. But the harm sought to be prevented in the misdemeanor culpable negligence statute should only be the harm of injury. Thus, the definition of

5 culpable negligence in the manslaughter instruction and the definition of culpable negligence in the culpable negligence instruction should not be the same. (3) Negligence can only be viewed within the context in which it occurs. Thus, jurors need to be instructed that the risk taken by the defendant was not acceptable under the factual circumstances of the case. (4) Jurors should be informed whether the defendant had to be subjectively aware of the risk created by his behavior (recklessness) or whether it is sufficient if the defendant was unaware of the risk, but should have been aware of the risk (negligence). (5) Jurors should be instructed about how likely the defendant s conduct might lead to the harm that is sought to be prevented. The current definition falls far short of giving jurors an understandable explanation of these five concepts, which is why I agree with the committee that the instruction should be changed. The first five sentences of the definition of culpable negligence need not be amended. They succinctly inform the jurors that the deviation must be substantial. (The first five sentences are as follows: I will now define culpable 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. ) But after the first five sentences, the manslaughter instruction becomes a nightmare. It defines culpable negligence in seven different ways: 1) a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; 2) an entire want of care as to raise a presumption of a conscious indifference to consequences; 3) wantonness; 4) recklessness; 5) a grossly careless disregard for the safety and welfare of the public; 6) an indifference to the rights of others as is equivalent to an intentional violation of such rights; 7) an utter disregard for the safety of others. Surely, the concept that is trying to be conveyed should be simplified for jurors. To make matters worse, the instruction then states that the defendant must have known or reasonably should have known, was likely to cause death or great bodily harm. What does must have known add to reasonably should have known? Must have known suggests that the defendant may be claiming that he didn t realize the risk,

6 but the risk was so obvious that he must be lying. If reasonably should have known is a correct statement of the law, then Florida does not require that the defendant was subjectively aware of the risk, which means that almost all of the seven definitions above are superfluous. 1 Additionally, it is not appropriate to require that the defendant s behavior create the likelihood of death or great bodily injury. Consider the following: A defendant puts one bullet in a revolver and spins the chamber and then points the gun at a friend and pulls the trigger, killing the friend. Under the current instruction, the defendant is not guilty of manslaughter because there is only a 1 in 6 chance of death/great bodily injury. This hypo highlights that the conduct of the defendant must be viewed in context. Pointing and firing a gun at someone with one bullet in the chamber serves no purpose. Thus, even if the risk of death is small (16.7%), the behavior is so outrageous that a death caused by it should be punished criminally. Thus, a defendant should still be subject to prosecution for manslaughter in cases where the risk of death is unlikely, if the lesser risk was grossly unjustifiable given the factual circumstances. For example, the chances of defendant Hall killing the victim with one punch were minimal, but he should still be guilty of manslaughter (by culpable negligence) because his behavior was outrageous under the circumstances. The proposed definition of culpable negligence by the committee is an improvement from the existing instruction. As mentioned above, the existing definition needs to be changed because: 1) it is incomprehensible to the average person; 2) it does not inform jurors that the defendant s conduct must be viewed in light of its utility; and 3) it requires a likelihood of death or great bodily injury which is not legally accurate. But the proposal passed by the committee is not sufficient because it does not address: 1) the magnitude of harm (death); 2) the idea that the behavior must be viewed in light of its utility; 3) the idea that the defendant knew or should have known of the consequences of the conduct; and 4) the likelihood of death. 1 Mr. James Miller (for the FACDL) claims in his comment - that Florida law requires that the defendant consciously disregarded the risks that the defendant created, but Mr. Miller did not address the reasonably should have known language in the existing standard instruction.

7 My proposal for the definition of culpable negligence for manslaughter that includes the five concepts in plain English is as follows: I will now define culpable 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 gross deviation from the standard of care that a reasonable, law-abiding person would exercise under the circumstances, where the defendant knew or should have known that [his][her] conduct created a substantial and unjustifiable threat to the life of another. For the misdemeanor crime of culpable negligence, the instruction can be the same except for the last sentence. The last sentence for the misdemeanor crime should be: Culpable negligence is a gross deviation from the standard of care that a reasonable, law-abiding person would exercise under the circumstances, where the defendant knew or should have known that [his][her] conduct created a substantial and unjustifiable threat to injure another person. Respectfully submitted, Bart Schneider Florida Bar No Live Oak Court Lake Mary, Florida (407)