IN RE: STANDARD CRIMINAL JURY INSTRUCTIONS IN CAPITAL CASES. (2018)

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.

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 times since Hurst that the penalty phase jury's findings on mitigation are critical to the constitutional imposition of the death penalty, and this Court cannot speculate as to a jury's findings of mitigation when reviewing a death sentence. See, e.g., Hannon v. State, 228 So.3d 505, 514–19 (Fla.) (Pariente, J., dissenting), cert. denied, ––– U.S. ––––, 138 S.Ct. 441, 199 L.Ed.2d 326 (2017); Kaczmar v. State, 228 So.3d 1, 16–17 (Fla. 2017) (Pariente, J., concurring in part and dissenting in part) (joined by Justice Quince), petition for cert. filed, No. 17–8148 (U.S. Mar. 14, 2018); see also Hurst, 202 So.3d at 44. As I did even before Hurst, I now urge the Court, especially in light of Hurst, to fully correct our standard capital verdict form to ensure the constitutional imposition of death sentences in this State.⁵

As I have explained, including the jury's findings of aggravating factors and mitigating circumstances “would both facilitate our proportionality review and satisfy the constitutional guarantee of trial by jury.” Lebron v. State, 982 So.2d 649, 671 (Fla. 2008) (Pariente, J., concurring); see Coday v. State, 946 So.2d 988, 1023–25 (Fla. 2006) (Pariente, J., concurring in part and dissenting in part). Likewise, specially concurring in Aguirre–Jarquin v. State, 9 So.3d 593 (Fla. 2009), joined by now–Chief Justice Labarga, I explained that some of the most experienced trial judges in our State use special verdict forms to avoid “the constitutional concerns with the inability to receive explicit jury findings,” id. at 611 (Pariente, J., specially concurring), and that “special verdict forms would assist in this Court's review of death sentences.” Id. at 613.

Further, I explained in my specially concurring opinion in In re Standard Jury Instructions in Criminal Cases—Report No. 2005-2, 22 So.3d 17 (Fla. 2009), joined by now–Chief Justice Labarga and former Justice Perry:

I also believe that this Court has missed an opportunity to further enhance the process of imposition of the death penalty by requiring the use of special verdict forms in the penalty phase so that the jury could have had the opportunity to record its findings on aggravators and mitigators—the essential ingredients in the ultimate decision of whether to impose the death penalty. As the Committee explained in its initial report, “the trial judge [presently] does not know how the jury considered the various aggravating and mitigating circumstances,” and it would be “most helpful to the trial judge [in preparing the sentencing order] to know how the jury viewed the evidence presented in the penalty phase,” for this would “provide valuable assistance in deciding the weight to be given to each circumstance.” (Emphasis added)․

․

I continue to believe that this Court has the authority to require special interrogatories and since the Court does not believe that it has that authority, I urge, as did Justice Cantero before me, that there be changes to the death penalty statute to allow for the use of special verdict forms.

Id. at 24–27 (Pariente, J., specially concurring).

Thus, even though the majority of this Court does not adopt a standard verdict form requiring trial courts to list mitigating circumstances and asking the jury to indicate its findings as to mitigating circumstances, it also does not prevent these findings. Accordingly, when requested by the defendant, I urge the trial courts to use verdict forms that include those findings. See majority op. at 173–74. In the interest of uniformity, I urge trial courts to use the following language, which this Court promulgated after Hurst:⁶

Mitigating Circumstances:

We the jury find that (mitigating circumstance) was established by the greater weight of the evidence.

YES _

NO _

If you answered YES above, please provide the jury vote as to the existence of (mitigating circumstance).

VOTE OF _ TO _.

Repeat for each mitigating circumstance proposed by the defendant. See In re Std. Crim. Jury Instrs. in Capital Cases, 214 So.3d at 1239–40.

CONCLUSION

For all of these reasons, I would include mitigating circumstances in the standard verdict form for the penalty phase of capital cases, including the jury's vote as to each mitigating circumstance. Nevertheless, because the majority deletes these findings in the instructions approved today, I encourage defense counsel to request and the trial courts to approve, respectively, the inclusion of these findings on the verdict form. See per curiam op. at 175 (stating that “all interested parties” may “request[ ] additional or alternative instructions”).

APPENDIX

FOOTNOTES

1.   We have jurisdiction. See art. V, § 2(a), Fla. Const.

2.   The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasupremecourt.org/jury_instructions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.

3.   Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).

4.   See Notice of Supp. Auth. (Fla. Mar. 8, 2018); see also Standard Jury Instructions (8th Cir.) at 12.22, http://www.juryinstructions.ca8.uscourts.gov/sec12.pdf; id. at 12.10 (jury instructions stating that the special verdict form asks but does not require the jury “to identify any mitigating factors that any one [juror] finds has been proved”).

5.   See, e.g., Aguirre–Jarquin v. State, 9 So.3d 593, 611–13 (Fla. 2009) (Pariente, J., specially concurring); In re Std. Jury Instrs. in Crim. Cases—Report No. 2005-2, 22 So.3d 17, 25–27 (Fla. 2009) (Pariente, J., specially concurring); Lebron v. State, 982 So.2d 649, 671 (Fla. 2008) (Pariente, J., concurring); Franklin v. State, 965 So.2d 79, 104 (Fla. 2007) (Pariente, J., specially concurring); Coday v. State, 946 So.2d 988, 1023–25 (Fla. 2006) (Pariente, J., concurring in part and dissenting in part); Huggins v. State, 889 So.2d 743, 777 (Fla. 2004) (Pariente, J., dissenting).

6.   The verdict form promulgated by this Court in our prior opinion separated statutory and nonstatutory mitigating circumstances. See In re Std. Crim. Jury Instrs. in Capital Cases, 214 So.3d at 1239–40. After considering the arguments in this case, I agree with the per curiam that this is no longer necessary and, therefore, have slightly revised the prior verdict form. Per Curiam op. at 173–74.

PER CURIAM.

LEWIS, CANADY, POLSTON, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion, in which LABARGA, C.J., and QUINCE, J., concur.