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Amendments to death penalty jury instructions.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases submits the following new and amended instructions to the Florida Standard Jury Instructions in Criminal Cases for comment. The committee proposes the following:

7.10--PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

7.11--FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

7.11(a)--VERDICT FORMS FOR DEATH PENALTY CASES

7.12--POLLING THE JURY (DEATH PENALTY CASES)

The committee invites all interested persons to comment on the proposals, reproduced in full below. Comments must be received by the committee in either electronic format or hard copy on or before May 15, 2017. The committee will review all comments received in response to the above proposal at its next meeting and will consider amendments based upon the comments received. Upon final approval of the instruction, the committee will make a recommendation to the Florida Supreme Court. File your comments electronically to CrimJuryInst@flcourts.org, in the format of a Word document. If you cannot file electronically, mail a hard copy of the comment to Standard Jury Instructions Committee in Criminal Cases, c/o Bart Schneider, General Counsel's Office, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee 32399-1900.

7.10 PRELIMINARY INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

[section] 921.141, Fla. Stat.

The instruction is designed for first degree murders committed after May 24, 1994, when the legislature omitted the possibility of parole for anyone convicted of First Degree Murder. For first degree murders committed before May 25. 1994, this instruction will have to be modified.

This instruction is to be given immediately before the opening statements in the penalty phase of a death penalty case.

Give 1a at the beginning of penalty proceedings before a jury that did not try the issue of guilt.

1. a. Members of the jury, the defendant has been found guilty of First Degree Murder in a previous proceeding. Consequently, you will not concern yourselves with the question of guilt. You must accept the fact that the defendant is guilty of First Degree Murder. Give 1b at beginning of penalty proceedings before the jury that found the defendant guilty.

b. Members of the jury, you have found the defendant guilty of First Degree Murder

Give in all cases.

Your deliberations in this penalty phase will determine the appropriate sentence for the crime of First Degree Murder. There are only two options: Life imprisonment without the possibility of parole, or death.

At the conclusion of this penalty phase trial, the jury will determine whether one or more aggravating factors exist: whether any aggravating factors found to exist are sufficient to warrant a sentence of death: whether any mitigating circumstances exist: whether the aggravating factors outweigh the mitigating circumstances: and whether the defendant should be sentenced to life imprisonment without the possibility of parole, or death.

The attorneys will now have an opportunity, if they wish, to make an opening statement. The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during this penalty phase. What the lawyers say is not evidence, and you are not to consider it as such. After the attorneys have had the opportunity to present their opening statements, the State and the defendant may present evidence relative to the nature of the crime and the character-background, or life of the defendant.

Comments

The trial judge may want to include other standard instructions in this preliminary instruction, including but not limited to 3.7--Reasonable Doubt and 3.9--Weighing the Evidence.

This instruction was adopted in 2017.

7.11 FINAL INSTRUCTIONS IN PENALTY PROCEEDINGS--CAPITAL CASES

[section] 921.141, Fla. Stat.

[Delete existing instruction 7.11 and replace with the following:]

This instruction is designed to be given after the closing arguments in the penalty phase of a death penalty case. It may be modified for those judges who will give part of it before closing arguments. Additionally. The instruction is designed for first degree murders committed after May 24. 1994. When the legislature omitted the possibility of parole for anyone convicted of First Degree Murder. For first degree murders committed before May 25. 1994. This instruction will have to be modified.

Members of the jury, you have heard the evidence and the arguments of counsel. It is now your duty to determine the appropriate sentence that should be imposed upon (defendant). There are two possible punishments: Life imprisonment without the possibility of parole, or death.

However, before a sentence of death may be imposed, the State must prove the following three elements beyond a reasonable doubt:

1. One or more aggravating factors alleged by the State exist:

2. The aggravating factor, or factors, found to exist are sufficient to warrant a sentence of death: and,

3. The aggravating factor, or factors, found to exist outweigh the mitigating circumstances found to exist.

The terms aggravating factor and mitigating circumstance will be explained to you.

Determining the appropriate sentence involves a multi-step process.

The first step is for you to determine whether the aggravating factor[s] alleged by the State [has] [have] been proven beyond a reasonable doubt.

An aggravating factor is a fact specified by law that the jury may find increases the seriousness of a First Degree Murder.

Aggravating factors. [section] 921.141(6). Fla. Stat.

The aggravating factor[s] alleged by the State [is] [are]:

Give only those aggravating factors noticed by the State which are supported by the evidence.

1. (Defendant) was previously convicted of a felony and [under sentence of imprisonment] [on community control] [on felony probation].

2. (Defendant) was previously convicted of [another capital felony] [a felony involving the [use] [threat] of violence to another person].

Give 2a or 2b as applicable.

a. The crime of (previous crime) is a capital felony.

b. The crime of (previous crime) is a felony involving the [use] [threat] of violence to another person.

3. (Defendant) knowingly created a great risk of death to many persons.

4. The First Degree Murder was committed while (defendant) was [engaged] [an accomplice] in [the commission of] [an attempt to commit] [flight after committing or attempting to commit]

any

Check [section] 921.141(6)(d). Fla. Stat., for any change in list of offenses.

[robbery].

[sexual battery].

[aggravated child abuse].

[abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement].

[arson].

[burglary].

[kidnapping].

[aircraft piracy].

[unlawful throwing, placing or discharging of a destructive device or bomb].

5. The First Degree Murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

6. The First Degree Murder was committed for financial gain.

7. The First Degree Murder was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

8. The First Degree Murder was especially heinous, atrocious or cruel.

"Heinous" means extremely wicked or shockingly evil.

"Atrocious" means outrageously wicked and vile.

"Cruel" means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.

The kind of crime intended to be included as especially heinous, atrocious, or cruel is one accompanied by additional acts that show that the crime was conscienceless or pitiless and was unnecessarily torturous to (decedent).

9. The First Degree Murder was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification.

"Cold" means the murder was the product of calm and cool reflection.

"Calculated" means having a careful plan or prearranged design to commit murder before the fatal incident.

A killing is "premeditated" if it occurs after the defendant consciously decides to kill. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

However, in order for this aggravating factor to apply, a heightened level of premeditation, demonstrated by a substantial period of reflection, is required.

A "pretense of moral or legal justification" is any claim of justification or excuse that, though insufficient to reduce the degree of murder, nevertheless rebuts the otherwise cold, calculated, or premeditated nature of the murder.

10. (Decedent) was a law enforcement officer engaged in the performance of [his] [her] official duties.

11. (Decedent) was an elected or appointed public official engaged in the performance of [his] [her] official duties, if the motive for the First Degree Murder was related, in whole or in part, to (decedent's) official capacity.

12. (Decedent) was a person less than 12 years of age.

13. (Decedent) was particularly vulnerable due to advanced age or disability, or because (defendant) stood in a position of familial or custodial authority over (decedent).

With the following aggravating factor, definitions as appropriate from [section] 874.03. Fla. Stat., must be given.

14. The First Degree Murder was committed by a criminal street gang member.

15. The First Degree Murder was committed by a person designated as a sexual predator or a person previously designated as a sexual predator who had the sexual predator designation removed.

16. The First Degree Murder was committed by a person subject to

[a domestic violence injunction issued by a Florida judge],

[a [repeat] [sexual] [dating] violence injunction issued by a Florida judge],

[a protection order issued from [another state] [the District of Columbia] [an Indian tribe] [a commonwealth, territory, or possession of the United States]],

and

the victim of the First Degree Murder was [the person] [a [spouse] [child] [sibling] [parent] of the person] who obtained the [injunction] [protective order].

Victim impact evidence. Give if applicable. Also. give at the time victim impact evidence is admitted. if requested.

You have heard evidence about the impact of this murder on the [family] [friends] [community] of (decedent). This evidence was presented to show the victim's uniqueness as an individual and the resultant loss by (decedent's) death. However, you must not consider this evidence as an aggravating factor.

Give in all cases.

In order to find that an aggravating factor exists, the jury must be unanimous, that is, each of you must agree. If the jury does not unanimously find that the State has proven beyond a reasonable doubt that one or more aggravating factors exists, then your verdict must be for a sentence of life imprisonment without the possibility of parole and your deliberations are complete. To reflect this verdict, sign and date the Sentencing Verdict Form.

If, however, the jury unanimously finds that one or more aggravating factors have been proven beyond a reasonable doubt, you should sign Verdict Form 1 (Existence of Aggravating Factor(s)) for each aggravating factor found proven and then proceed to step two.

Verdict Form 1 (Existence of Aggravating Factor(s)) reads as follows:

We, the jury, find as follows, as to the aggravating factor of (repeat for each aggravating factor disclosed in the Notice to Seek Death Penalty filed pursuant to Fla. R. Crim. P. 3.181):

The State proved this aggravating factor beyond a reasonable doubt.

The State did not prove this aggravating factor beyond a reasonable doubt.

If you proceed to step two, then during the rest of your deliberations you must disregard any aggravating factor[s] that [was] [were] alleged by the State, but not unanimously found to be proven beyond a reasonable doubt. No individual juror is permitted to consider any aggravating factors other than those the jury unanimously found to exist.

Merging aggravating factors. Give the following paragraph if applicable. For example. the aggravating circumstances that 1) the murder was committed during the course of a robbery and 2) the murder was committed for financial gain. relate to the same aspect of the offense and may be considered as only a single aggravating factor. Castro v State. 597 So. 2d 259 (Fla. 1992).

Pursuant to Florida law, the aggravating factors of (insert aggravating factor) and (insert aggravating factor) are considered to merge because they are considered to be a single aspect of the offense. If you determine that the aggravating factors of (insert aggravating factor) and (insert aggravating f factor) have both been proven beyond a reasonable doubt, your findings should indicate that both aggravating factors exist, but you must consider them as only one aggravating factor for the rest of your deliberations.

The second step in the process is for the jury to determine whether the State has proven beyond a reasonable doubt that the aggravating factor or factors that you found to exist is or are sufficient to impose a sentence of death. The jury must unanimously find that the aggravating factor or factors found to exist is or are sufficient to impose a sentence of death.

If the jury does not unanimously find that the State has proven beyond a reasonable doubt that the aggravating factor or factors are sufficient to impose a sentence of death, then your verdict must be for a sentence of life imprisonment without the possibility of parole and your deliberations

are complete. To reflect this verdict, sign and date the Sentencing Verdict Form.

If, however, the jury unanimously finds that the aggravating factor or factors are sufficient to impose a sentence of death, you should sign Verdict Form 2 (Sufficiency of Aggravatort(s)) and then proceed to step three.

Verdict Form 2 (Sufficiency of Aggravator(s)) reads as follows:

We, the jury, find as follows, as to the sufficiency of aggravator(s):

The State proved the aggravating factor or factors is or are sufficient to warrant a sentence of death beyond a reasonable doubt.

The State did not prove the aggravating factor or factors is or are sufficient to warrant a sentence of death beyond a reasonable doubt.

Mitigating circumstances. [section] 921.141(7). Fla. Stat.

The third step in the process is for each juror individually to decide whether mitigating circumstances exist. A mitigating circumstance is anything that tends to support a sentence of life imprisonment without the possibility of parole rather than a death sentence. Mitigating circumstances are not limited to the facts surrounding the crime.

The defendant does not need to prove mitigating circumstances beyond a reasonable doubt. The defendant need only prove a mitigating circumstance by the greater weight of the evidence, which means evidence that more likely than not tends to prove the existence of the mitigating circumstance. If you determine by the greater weight of the evidence that a mitigating circumstance exists, you must consider it proven. Additionally, the jury need not be unanimous regarding a finding that a mitigating circumstance exists. Each juror should make his or her own decision about whether a mitigating circumstance exists.

Among the mitigating circumstances you may consider are:

Give only those mitigating circumstances for which evidence has been presented.

1. (Defendant) has no significant history of prior criminal activity.

If the defendant offers evidence on this circumstance and the State. In rebuttal. Offers evidence of other crimes. also give the following:

Conviction of (previous crime) is not an aggravating circumstance to be considered in determining the penalty to be imposed on the defendant, but a conviction of that crime may be considered by the jury in determining whether the defendant has a significant history of prior criminal activity.

2. The First Degree Murder was committed while (defendant) was under the influence of extreme mental or emotional disturbance.

3. (Decedent) was a participant in (defendant's) conduct or consented to the act.

4. (Defendant) was an accomplice in the First Degree Murder committed by another person and [his] [her] participation was relatively minor.

5. (Defendant) acted under extreme duress or under the substantial domination of another person.

6. The capacity of (defendant) to appreciate the criminality of [his] [her] conduct or to conform [his] [her] conduct to the requirements of law was substantially impaired.

7. (Defendant's) age at the time of the crime.

The judge should also instruct on any additional mitigating circumstances as requested.

8. The existence of any other factors in (defendant's) character, background or life, or the circumstances of the offense that would mitigate against the imposition of the death penalty.

Give in all cases.

Unlike the other steps in this process, there is no verdict form to complete regarding the existence of mitigating circumstances. Instead, each of you must consider the mitigating circumstances that you have individually found to exist in the next two steps of the process.

The fourth step in the process is for each of you to determine whether the aggravating factor or factors that you have unanimously found to exist outweigh(s) the mitigating circumstances that you have individually found to exist. The process of weighing aggravating factors and mitigating circumstances is not a mechanical or mathematical process. In other words, you should not merely total the number of aggravating factors and compare that number to the total number of mitigating circumstances.

The State has the burden to prove to each of you, beyond a reasonable doubt, that the aggravating factor or factors that the jury has unanimously found to exist outweigh(s) the mitigating circumstance(s) that each of you have individually found to exist.

If the jury does not unanimously find that the State has proven beyond a reasonable doubt that the aggravating factor or factors outweighs) the mitigating circumstance(s), then your verdict must be for a sentence of life imprisonment without the possibility of parole and your deliberations are complete. To reflect this verdict, sign and date the Sentencing Verdict Form.

If, however, the jury unanimously finds that the aggravating factor or factors outweigh(s) the mitigating circumstance(s), you should sign Verdict Form 3 (Weighing Aggravating Factor(s) and Mitigating Circumstance(s)) and then proceed to the final step.

Verdict Form 3 (Weighing Aggravating Factor(s) and Mitigating Circumstance(s)) reads as follows:

We, the jury, find as follows, as to the weighing of aggravating factor's) and mitigating circumstance(s):

The State proved the aggravating factor's) outweigh(s) the mitigating circumstance's) beyond a reasonable doubt.

The State did not prove the aggravating factor's) outweigh(s) the mitigating circumstance's) beyond a reasonable doubt.

Give bracketed language if the penalty phase jury was also the guilt phase jury.

The final step in this phase of the trial is for each of you to determine whether the defendant should be sentenced to life imprisonment without the possibility of parole, or death. The court may not impose a sentence of death unless each juror individually finds the defendant should be sentenced to death.

Even when death is a possible sentence, each juror must decide based on his or her own moral assessment whether life imprisonment without the possibility of parole, or death, should be imposed. Regardless of your prior findings, the law never compels nor requires any juror to determine the defendant should be sentenced to death. Any single juror has the right to vote for a sentence of life imprisonment without the possibility of parole.

If, after deliberating, the jury unanimously agrees that the appropriate sentence is death, then your verdict should be for a sentence of death. If the jury does not unanimously agree that the appropriate sentence is death, then your verdict must be for a sentence of life imprisonment without the possibility for parole.

The fact that a jury can recommend a sentence of life imprisonment without the possibility of parole, or death, on a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot you should carefully, weigh, sift, and consider the evidence, realizing that human life is at stake, and bring your best judgment to bear in reaching your verdict.

The Sentencing Verdict Form reads as follows:

We the jury find the appropriate sentence is life imprisonment without the possibility of parole.

We the jury unanimously find the appropriate sentence is death.

The Court should then insert and read pertinent instructions, modified for a penalty phase if necessary, including but not limited to 3.7--Reasonable Doubt; 3.9--Weighing the Evidence; 3.9(a)--Defendant not Testifying; 3.9(b)--Defendant's Statements; 3.10--Rules for Deliberation; 3.11--Cautionary Instruction; and 3.13--Submitting Case to Jury.

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1989 [543 So. 2d 1205], 1991 [579 So. 2d 75], 1992 [603 So. 2d 1175], 1994 [639 So. 2d 602], 1995 [665 So. 2d 212], 1996 [678 So. 2d 1224], 1997 [690 So. 2d 1263], 1998 [723 So. 2d 123], and 2009 [22 So. 3d 17], and 2017.

7.11(a) VERDICT FORMS FOR DEATH PENALTY CASES

Verdict Form 1 (Existence of Aggravating Factor(s))

We, the jury, find as follows, as to the aggravating factor of (repeat for each aggravating factor disclosed in the Notice to Seek Death Penalty filed pursuant to Fla. R. Crim. P. 3.181):

The State proved this aggravating factor beyond a reasonable doubt.

The State did not prove this aggravating factor beyond a reasonable doubt.

Read if applicable.

Pursuant to Florida law, the aggravating factors of (insert aggravating factor) and (insert aggravating factor) are considered to merge because they are considered to be a single aspect of the offense. If you determine that the aggravating factors of (insert aggravating factor) and (insert aggravating factor) have both been proven beyond a reasonable doubt, your findings should indicate that both aggravating factors exist, but you must consider them as only one aggravating factor for the rest of your deliberations.

Verdict Form 2 (Sufficiency of Aggravator(s))

We, the jury, find as follows, as to the sufficiency of aggravator(s):

The State proved the aggravating factor or factors is or are sufficient to warrant a sentence of death beyond a reasonable doubt.

The State did not prove the aggravating factor or factors is or are sufficient to warrant a sentence of death beyond a reasonable doubt.

Verdict Form 3 (Weighing Aggravating Factor(s) and Mitigating Circumstance(s))

We, the jury, find as follows, as to the weighing of aggravating factor(s) and mitigating circumstance(s):

The State proved the aggravating factor(s) outweigh(s) the mitigating circumstance(s) beyond a reasonable doubt.

The State did not prove the aggravating factor(s) outweigh(s) the mitigating circumstance(s) beyond a reasonable doubt.

Sentencing Verdict Form

We the jury find the appropriate sentence is life imprisonment without the possibility of parole.

We the jury unanimously find the appropriate sentence is death.

Dated this--day of--, 20--, in--, County, Florida.

Signature of foreperson

Comment

This verdict form was adopted in 2017.

7.12 [begin strikethrough]DIALOGUE FOR[begin strikethrough] POLLING THE JURY [begin strikethrough](DEATH PENALTY CASE)[end strikethrough]

[begin strikethrough]Ladies and gentlemen of the jury, we are going to ask each of you individually concerning the advisory sentence. It is not necessary that you state how you personally voted, or how any other person voted, but only if the advisory sentence, as read, was correctly stated.[end strikethrough]

[begin strikethrough]The following question is to be asked each juror if the recommendation is for the death penalty: Do you, [Mr.] [Ms.]--, agree and confirm that a majority of the jury join in the advisory sentence that you have just heard read by the clerk?[end strikethrough]

[begin strikethrough]The following question is to be asked each juror if the recommendation is for a life sentence: Do you, [Mr.] [Ms.]--, agree and confirm that at least six or more of the jury join in the advisory sentence that you have just heard read by the clerk?[begin strikethrough]

Members of the jury, we are going to ask each of you about the verdicts that you have just heard. Do you, [(name of juror)] [juror number (number of juror)], agree that this reflects your individual verdicts and the verdicts of the jury as a whole?

Comment

This instruction was adopted in 1981 and amended in 1997 and 2017.
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Title Annotation:Notice
Publication:Florida Bar News
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Date:Apr 15, 2017
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