In the Supreme Court of Florida In the matter of use by the trial courts of the Supreme Court Standard Jury Instructions Committee in Criminal Cases / Case No. SC Report No. 2006-01 of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases To the Chief Justice and Justices of the Supreme Court of Florida: This report regarding proposed amendments to the Florida Standard Jury Instructions in Criminal Cases on the Supreme Court s website at http://www.floridasupremecourt.org/jury_instructions/instructions.shtml, is filed pursuant to Article V, section 2(a), Florida Constitution. The proposed instructions are provided in a legislative format. In addition and for further clarity, Proposals 1 and 3 are provided in a side-by-side comparison to the current instruction. Proposal 2 makes only a minor change to the instruction. They can be found at Appendix A. Words to be removed are shown by strike-through marks, and words to be added are shown by underlining. The instructions were published by the committee in The Florida Bar News on December 1, 2005. No comments were received on any of the proposals. The committee proposes the following instructions at Appendix A: Proposal 1 Proposal 2 Proposal 3 7.7 Manslaughter 7.8 DUI Manslaughter 7.9 Vehicular or Vessel Homicide Explanation of the Proposals Proposal 1 7.7 Manslaughter The manslaughter instruction has been before the committee for some years now. In 1999, the Court requested that the committee review the instruction in light of its opinion in Eversley v. State, 748 So.2d 963 (Fla. 1999), asking the committee to consider adopting a more detailed causation instruction for use in all cases where causation is an element of the crime. 1
In its first report of 2000, the committee recommended that a causation instruction should not be adopted at that time. The Court accepted the recommendation but returned the matter to the committee, requesting that it consider drafting a comment following the instruction to indicate that the trial judge should review Eversley in any manslaughter case in which causation is an issue (SC00-1688, May 10, 2001). In a letter to the Court dated March 16, 2004, the chair advised the Court that the committee did not recommend that a comment pertaining to the Eversley decision be added to the instruction. The Court asked the committee to provide a report on its rationale for this recommendation in an October 18, 2005, letter to the chair. Upon further reflection, the committee reversed itself and submitted a report which proposed a comment be added to the instruction relating to Eversley. The Court issued an opinion accepting the recommendation of the committee. 911 So.2d 1220 (Fla. 2005). While the committee debated the causation issue raised by Eversley, the manslaughter instruction became intertwined with the issue of manslaughter as a lesser included offense, when there is some distinction between voluntary and involuntary manslaughter. In light of current cases on this issue before the courts, the committee determined to hold off on this discussion. However, as a result of this debate, the chair appointed a subcommittee to review manslaughter as a lesser included offense in conjunction with the murder, felony murder, and attempted felony murder instructions. As a result of the subcommittee s review of these instructions, it was revealed that not only did these lesser included offenses require updating, but the instructions themselves required revisions. This was mostly due to new laws passed by the legislature. The subcommittee reported that updating was also needed for many other instructions as well, and an ongoing project began to review the lesser included offenses for other instructions. As a member of the subcommittee, Judge Terry Terrell was assigned to the manslaughter instruction. The first draft of an updated manslaughter instruction was discussed at the meeting in May 2005. Chapter 2002-74, Laws of Florida, amended section 782.07, Florida Statues, adding an enhanced penalty for manslaughter when death is caused by culpable negligence to an officer, a firefighter, an emergency medical technician, or a paramedic. An enhanced penalty for death caused by culpable negligence to an elderly person, disabled adult, or person under the age of eighteen 2
was already in the statute. All the enhancers in chapter 2002-74, as well as the current statutory enhancers, were included in the instruction, along with definitions for the designated persons. The enhanced penalty instruction for aggravated manslaughter was discussed by the committee as an Apprendi issue, for a law enforcement officer, a firefighter, an emergency medical technician and a paramedic. Judge Terrell asserted that knowledge of the status of the individual subject in relation to the enhancement penalty is not an element. He proposed a note to the judge after the enhanced penalty instruction stating: To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement Officer, Battery on a Law Enforcement Officer, or Assault on a Law Enforcement Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included offenses require proof of knowing that the commission of the offense was on an officer who was engaged in the lawful performance of a legal duty. The committee determined that the note was unnecessary within the instruction and unanimously agreed that the comment would be better placed at the end of the instruction. The committee discussed the need to be consistent with the language used in other instructions that have the enhanced penalty instruction. Judge Thomas referred to the draft memorandum he had passed out to the committee at the meeting relating to second degree murder and manslaughter, which included the issue of enhancers. After a brief discussion, the committee determined that his proposal was separate and apart from this discussion. A question arose concerning the use of two different statutory references for the definition of a Caretaker one for a child, section 827.03(3)(a), Florida Statutes, and one for an elderly person and a disabled adult, section 825.102(3), Florida Statutes. It was explained that each definition had a different designation of the persons who provide the care giving and the type of care being provided. Based on the discussion, the committee requested that the instruction be reworked for the next meeting to address the concerns expressed. 3
A revised draft of the instruction was discussed at the meeting on July 2005. The primary discussion focused on the enhanced penalty instruction. Many of the members were troubled by the language proposed. It read as follows: Enhanced penalty '782.07(4), Fla. Stat.; give if applicable The punishment provided by law for the crime of manslaughter is greater if the manslaughter was committed under certain aggravating circumstances. Therefore, if you find the defendant guilty of manslaughter, you must then consider whether the State has further proved those circumstances. The committee had recently discussed and approved specific language for the enhanced penalty paragraph in other instructions and had eliminated The punishment provided by law... sentence. The need for consistency in the language used for an enhanced penalty instruction in all applicable jury instructions was discussed. The committee made a few grammatical changes to the note above this proposed paragraph, but no amendments were approved to the instruction. Some concern was expressed about the proposal s clarity regarding the designated enhancers only being applicable when element 2c is charged. A discussion ensued, and the committee agreed on language to make it clear that the enhanced penalty instruction only applied to culpable negligence (2c) and it condensed and restructured the designated enhancers to the optional Give a, b, or c, as applicable note a. [an elderly person] [a disabled adult]; b. a child; and, c. [an officer] [a firefighter] [an emergency medical technician] [a paramedic]. The discussion continued on this paragraph regarding the use of the proposed phrase whose death resulted from neglect of (defendant), a caregiver in the sentences for the designated enhancers, an elderly person, a disabled adult, and a child. The phrase was caused by was suggested because it tracked the statute more accurately. Upon review of the statute, the committee agreed and voted unanimously to change resulted from to was caused by. The following language was approved for the three enhancers: whose death was caused by the neglect of (defendant), a caregiver. 4
The committee continued to question the two different statutory definitions for a Caretaker of an elderly person or a disabled adult and a Caretaker of a child. After a review of the statutes, the committee concluded that the different definitions were necessary. The committee suggested that the definition for a Caretaker of an elderly person or a disabled adult should be written out (as was the definition of Caretaker for a child) and that each definition should note the designated persons. Judge Thomas submitted that intent was not required for the crime of manslaughter. He made a conceptual motion to delete intentionally caused from element 2a and intentionally procured from element 2b. He argued that the language of these two elements should track what the offense of manslaughter is, as defined by case law. After some debate, he withdrew his motion, with the understanding that the committee would discuss the issues on second degree murder and manslaughter at the next meeting. [Note: The issues being raised on second degree murder v. manslaughter are being seriously debated by the committee at present.] A newly revised draft of the instruction was discussed at the meeting in September 2005. In light of the previous discussion on the enhancement language, the committee agreed to amend the enhanced penalty language for element 2c to replicate the enhancement penalty language approved for other, recently amended instructions. The language approved is as follows: 782.07(2) (4), Fla. Stat. Enhanced penalty if 2c alleged and proved. Give a, b, or c, as applicable. If you find the defendant guilty of manslaughter, you must then determine whether the State has further proved beyond a reasonable doubt that: The committee again discussed the two definitions of a Caretaker in relation to the definition of Neglect. The committee questioned why the extended definition for Neglect only applied to a child. Why wouldn t it also apply to an elderly person or a disabled person? Sections 825.02(3)(a) and 827.03(3(a), Florida Statutes were cited. The language discussed was as follows: 5
Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, death of a child. The committee voted to change the extended definition of Neglect to include all three designated persons. The phrase death of was amended to a substantial risk of death because it tracked the statute more accurately. Neglect of a child may be based on... was stricken, and the phrase may be considered in determining neglect was added. With these changes, the committee rewrote the paragraph as follows: Repeated conduct or a single incident or omission by a caregiver that results in, or could reasonably be expected to result in, a substantial risk of death of [a child] [an elderly person] [a disabled adult] may be considered in determining neglect. A question arose as to why the phrase serious physical or mental injury in section 827.03(3)(a) 2., Florida Statutes, was not included in this language since it now included all of the designated persons. Some members objected to the phrase being eliminated because it speaks to establishing a pattern of behavior over a period of time. A debate began between the concept of establishing a pattern of behavior and the view that the phrase related to something other than death and, therefore, was not necessary in the instruction. A motion was made to insert serious physical or mental injury, but it failed to pass. After a few grammatical and formatting changes were approved, the committee voted unanimously to approve the manslaughter instruction as amended. The final edits were made by staff based on the committee s recommendations. During the editing process, several structural, technical, and grammatical changes were made. None of these edits changed the substance of the amended instruction. The final version was approved by the chair and it was published in the December 1, 2005, Florida Bar News. No comments were received by the committee. Proposal 2 7.8 DUI Manslaughter This instruction was reviewed in conjunction with the manslaughter instruction and the committee s project on the lesser included offenses at the meeting in July 2005. A minor change was made to this instruction to change the 6
definition of Vehicle from is any device to every device. This language brings the instruction into conformity with the statutory definition. The instruction passed unanimously and was published in the December 1, 2005, Florida Bar News. No comments were received by the committee. Proposal 3 7.9 Vehicular or Vessel Homicide This instruction was reviewed in conjunction with the manslaughter instruction and the lesser include offenses project at the meeting in May 2005. It was proposed as a stand alone instruction. After a brief review, the committee determined that it was unnecessary to have a separate instruction for this crime and recommended that it be incorporated into instruction 7.9 Vehicular Homicide. Suggested changes were recommended. Instruction 7.9 was amended to add Vessel Homicide, and the proposal was discussed at the meeting in July 2005. An Enhanced Penalty instruction was proposed that was similar to the language being discussed for the manslaughter instruction. It read as follows: Enhanced penalty '782.071(1)(b) or '782.072(2), Fla. Stat.; give if applicable The punishment provided by law for the crime of vehicular (vessel) homicide is greater if the homicide was committed under certain aggravating circumstances. Therefore, if you find the defendant guilty of vehicular (vessel) homicide, you must then consider whether the State has further proved those circumstances beyond a reasonable doubt. The committee continued its debate regarding the phrase The punishment provided by law for the crime of. and proposed new language for this instruction. The committee agreed to the following: Enhanced penalty. 782.071(1)(b) or 782.072(2), Fla. Stat. Give if applicable. If you find the defendant guilty of [vehicular] [vessel] homicide, you must then determine whether the State has further proved beyond a reasonable doubt that: 7
The proposal included an instruction after the enhancement language which related to Apprendi. It was asserted that the State was not required to prove that the defendant knew that the accident resulted in injury or death. Knowledge is not an element. The committee did not disagree and approved the language. It reads as follows: However, the State is not required to prove (defendant) knew that the accident resulted in injury or death. Two definitions were added to the instruction for Victim and Vessel. Victim included any human being or a viable fetus, along with an explanation of when a fetus is considered to be viable. A question arose as to whether or not a motor vehicle should be defined, since there are two different definitions in chapters 316 and 322, Florida Statutes. It was agreed that a definition of motor vehicle was unnecessary and that the counsel for the parties in a case could address this concern if it were to arise. The committee reviewed and agreed to the lesser included offenses and the comment that was added stating that Culpable negligence is a Category Two lesser included offense of both vehicular and vessel homicide. The committee voted unanimously to approve the amended instruction. It was published in the December 1, 2005, Florida Bar News. No comments were received by the committee. Respectfully submitted, this day of, 2006. The Honorable Terry David Terrell First Judicial Circuit Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases M. C. Blanchard Judicial Center 190 W. Government Street Pensacola, Florida 32502-5773 Florida Bar Number 231630 8
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