In re Standard Criminal Jury Instructions in Capital Cases

244 So.3d 172 (Mem)

IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS IN CAPITAL CASES.

No. SC17–583

Supreme Court of Florida.

May 24, 2018

Judge Debra Johnes Riva, Twelfth Judicial Circuit, Sarasota, Florida, and Judge James C. Hankinson on behalf of Handling Capital Cases Faculty, Tallahassee, Florida; Howard L. "Rex" Dimmig, II, Public Defender, and Peter Mills, Assistant Public Defender, Chair, Florida Public Defender Association Death Penalty Steering Committee, Tenth Judicial Circuit, Bartow, Florida; Karen M. Gottlieb on behalf of Florida Center for Capital Representation at FIU College of Law, Miami, Florida, and Billy H. Nolas, Chief, Capital Habeas Unit, Federal Public Defender, Northern District, Tallahassee, Florida, Sonya Rudenstine, Gainesville, Florida, Luke Newman, Tallahassee, Florida, and William R. Ponall of Ponall Law on behalf of Florida Association of Criminal Defense Lawyers, Maitland, Florida; Robert R. Berry, Tallahassee, Florida; Penny H. Brill, Assistant State Attorney, Eleventh Judicial Circuit, Miami, Florida, and Arthur I. Jacobs of Jacobs Scholz & Associates, LLC on behalf of Florida Prosecuting Attorneys Association, Fernandina Beach, Florida; Judge F. Rand Wallis, Chair, and Judge James Colaw, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, Responding with comments

PER CURIAM.

Previously in this case, the Court authorized for publication and use on an interim basis, on its own motion, amended existing instructions 7.11 (Preliminary Instructions in Penalty Proceedings—Capital Cases) and 7.12 (Dialogue for Polling the Jury (Death Penalty Case) ), and adopted new instructions 3.12(e) (Jury Verdict Form—Death Penalty) and 7.11(a) (Final Instructions in Penalty Proceedings—Capital Cases). In re Std. Crim. Jury Instrs. in Capital Cases , 214 So.3d 1236 (Fla. 2017).¹

The need for the Court to authorize for publication and use revised and new capital case jury instructions arose from the decision in Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), wherein the United States Supreme Court held that a portion of Florida's death penalty sentencing scheme was unconstitutional because a jury was not required to find the facts necessary to impose a sentence of death. See id. at 619. Following remand from the Supreme Court, we held

that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.

Hurst v. State , 202 So.3d 40, 54 (Fla. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). We further held that a unanimous jury recommendation for death is required before a trial court may impose a sentence of death. Id. The changes to the standard criminal jury instructions were also warranted in light of chapter 2017–1, Laws of Florida, amending section 921.141, Florida Statutes (2016), which requires a jury to unanimously determine that a defendant should be sentenced to death.

Because the Court authorized the interim instructions on its own motion, we allowed sixty days in which the Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) and other interested persons could file comments. In re Std. Crim. Jury Instrs. in Capital Cases , 214 So.3d at 1236–37, 1237 n.2. The Court received numerous comments and a response from the Committee proposing new amendments to the instructions and a response to the comments filed with the Court. Based upon the comments, the Committee's response and proposals, and having heard oral argument in this case, we now further amend the instructions. The more significant amendments to the interim instructions are discussed below.

First, instruction 3.12(e) (Jury Verdict Form—Death Penalty) is amended under Section C to change the title from "Statutory Mitigating Circumstances" to "Mitigating Circumstances." In addition, as amended, the verdict form under Section C no longer requires jurors to list the mitigating circumstances found or to provide the jury vote as to the existence of mitigating circumstances.

Next, with regard to instruction 7.11 (Preliminary Instructions in Penalty Proceedings—Capital Cases), we amend the interim instruction by renumbering it from 7.11 to 7.10; under "Give this instruction in all cases," removing from the provision "(2) whether one or more aggravating factors exist beyond a reasonable doubt" because it is duplicative of "(1) whether each aggravating factor is proven beyond a reasonable doubt"; under "Aggravating Factors," deleting the word "recommending" and replacing it with the phrase "a verdict of"; and adding "unanimously" to the sentence "In order to consider the death penalty as a possible penalty, you must determine that at least one aggravating factor has been proven beyond a reasonable doubt."

We also amend instruction 7.11(a) (Final Instructions in Penalty Proceedings—Capital Cases) by renumbering it to 7.11. Within that instruction, we add the following sentence pertaining to the weighing process: "The next step in the process is for each of you to determine whether the aggravating factor[s] that you have unanimously found to exist outweigh[s] the mitigating circumstance[s] that you have individually found to exist." In addition, we delete the portion of instruction 7.11 that directs the jury to "weigh all of the following."

Accordingly, we authorize the capital case jury instructions for publication and use as set forth in the appendix to this opinion.² New language is indicated by underlining; deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of these instructions. The instructions as set forth in the appendix shall become effective immediately upon the release of this opinion.

We also take this opportunity to thank the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the Florida Supreme Court's Criminal Steering Committee, the faculty of the Handling Capital Cases course, the Honorable James C. Hankinson, the Honorable James M. Colaw, the Florida Prosecuting Attorneys Association, the Florida Public Defender Association, the Florida Association of Criminal Defense Lawyers, the Florida Center for Capital Representation at Florida International University College of Law, and all other commenters, for their thoughtful consideration, recommendations, and insight in addressing the complicated issues presented by implementing the death penalty. This assistance has been invaluable to the Court's modifications to the interim instructions.

It is so ordered.

LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion, in which LABARGA, C.J., and QUINCE, J., concur.

PARIENTE, J., concurring in result.

I concur with each part of the per curiam opinion except its decision to "no longer require[ ] jurors to list the mitigating circumstances found or to provide the jury vote as to the existence of mitigating circumstances" in instruction 3.12(e), Section C. Per curiam op. at 174. Of course, the per curiam does not preclude the use of special verdict forms that include all mitigating circumstances proposed with a place for the jury vote. See per curiam op. at 177 (stating that "all interested parties" may "request[ ] additional or alternative instructions"). Therefore, I would strongly urge the trial courts, at the request of defendants, to utilize a verdict form that includes places for the jury's findings on mitigating circumstances, especially in light of Hurst .³

By including mitigating circumstances on the standard verdict form, this Court would enhance uniformity for jury findings as to mitigating circumstances. Nevertheless, when requested by the defendant, trial courts should follow the standard verdict form previously promulgated by this Court on an interim basis, which includes a list of mitigating circumstances proposed by the defendant and a place for the jury to indicate its vote for each mitigator. In re Std. Crim. Jury Instrs. in Capital Cases , 214 So.3d 1236, 1239–40 (Fla. 2017). For reference, I include in this opinion the relevant language from that form.

Federal Verdict Forms

Based on oral argument and the supplemental authority filed in this case, it is clear that at least some federal courts use special verdict forms that request the jury in capital cases to list the mitigating circumstances it found and to indicate the jury's vote as to whether each mitigating circumstance was proven.⁴ Reviewing the supplemental authority in this case—special verdict forms from federal capital prosecutions in Florida, one of which may be accessed here—demonstrates how these findings may be useful. Thus, requiring the jury to state its findings for each mitigating circumstance is consistent with the verdict forms employed by some federal courts.

Florida Law in Light of Hurst

As the per curiam opinion explains, Florida's capital sentencing scheme has substantially changed in light of the United States Supreme Court's opinion in Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our opinion on remand in Hurst . Hurst made clear that each of the jury's findings, including mitigation, are constitutionally significant under the Sixth Amendment to the United States Constitution and article I, section 22, of the Florida Constitution. See Hurst , 202 So.3d at 44 ; see also per curiam op. at 173–47. Likewise, I have explained several...