Defense Theory Instruction On Prosecution’s Suppression, Destruction Or Loss Of Evidence (11th Circuit)

The trial judge denied a defense request for the following instruction in United States v. Dorvilus, (11th Cir. Fla. No. 09-10197, Dec. 17, 2009) [Notice: This opinion is UNPUBLISHED]:

Where the government has intentionally or recklessly destroyed, suppressed, or otherwise failed to preserve evidence that would be relevant to the issue of the guilt or innocence of the defendant, you may infer that such evidence, if it were produced, would be favorable to the defendant and adverse to the government.

The reviewing court affirmed on the following grounds:

The district court did not abuse its discretion. Although "the defendant is entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence," United States v. Lively, 803 F.2d 1124, 1126 (11th Cir. 1986) (quotation marks and citation omitted), there was no basis in the evidence for the requested instruction. The officers' failure to create evidence by recording their conversations is simply not the same as destroying, suppressing, or failing to preserve existing evidence. Because there is no suggestion that the government possessed any recordings or other materials that it refused to turn over to Dorvilus, the decisions he cites about missing or withheld evidence are inapposite.

Hence, the opinion implicitly recognizes the right to a defense theory instruction when there is sufficient evidence that the prosecution suppressed, destroyed or lost evidence which it actually possessed. 

Failure To Instruct On Distinction Between First-Degree Murder Elements Of Premeditation, Deliberation And Willfulness (9th Circuit)

Williams v. Schomig (UNPUBLISHED) [excerpt after the jump] illustrates the importance of closely scrutinizing the instructional definitions of discrete though related elements of the charge.

For subscription based briefing and sample instructions on this and many other issues see:

Forecite National™

92.7.3 - Intentional Murder: Premeditation And Deliberation Issues 

Entrapment Into Gang Related Offense: Sufficiency Of Evidence For Instruction (9th Circuit)

United States v. Rodriguez (UNPUBLISHED) [excerpt after the break] is a great example of what can happen when the judge and parties fail to devote adequate attention to the jury instructions. Instead of instructing on the federal law of entrapment the judge gave the California entrapment instruction which, among other differences, shifts the burden of proof to the defendant!

For additional discussion of entrapment see the following subscription-based resources: The Shellow Collection, Entrapment Instructions 1-8; Forecite National™ Vol. 11, Section 257.3.

Judge’s Duty To Answer Juror Questions About The Instructions: Reciting Already Given Instructions Is Not Sufficient (6th Circuit)

It is not enough for the trial court to recite the instructions already given. United States v. Nunez, 889 F.2d 1564, 1568 (6th Cir. 1989). The district court has a duty "to clear up uncertainties that the jury brings to the court's attention." Id. (quoting United States v. Giacalone, 588 F.2d 1158, 1166 (6th Cir. 1978)).  In other words, the district court should “not merely reiterate the original instructions.” United States v. Robinson, (6th Cir. Ky., No. 08-5939, 2009). [Notice: This opinion is UNPUBLISHED.]

View That Reasonable Doubt Should Only Be Defined Upon Specific Request By The Jurors (4th Circuit)

United States v. Hawkins [excerpt after the jump] buys into the problematic assumption, previously discussed in this post, that the jurors will "figure out" the correct definition of reasonable doubt.

Arizona Appellate Court Follows Federal Rule Precluding Instruction On Jury Nullification (Arizona)

It’s difficult to imagine a more absurd situation than the law regarding instruction on jury nullification.  Notwithstanding the unassailable constitutional right of the jury to acquit the defendant even if he has been proved guilty beyond a reasonable doubt (see Horning v. District of Columbia (1920) 254 US 135, 138 [41 SCt 53; 65 LEd2d 185] ["jury has the power to bring in a verdict in the teeth of both law and facts"]; see also People v. Dillon (CA 1983) 34 C3d 441, 490-93 [194 CR 390], Kaus, J., concurring), courts have consistently (1) refused to instruct the jurors on their right to nullification and (2) affirmatively misled the jurors by instructing that they “must” convict if the prosecution has met its burden.

State v. Paredes-Solano, (Ariz. Ct. App., 2 CA-CR 2008-0341, Dec. 24, 2009)
P25 Paredes-Solano requested the jurors be instructed, "You are . . . entitled to act upon your conscientious feeling about what is a fair result in this case and acquit the defendant if you believe strongly that conscience and justice require a verdict of not guilty. No one can require you to return a verdict that does violence to your conscience." He contends the trial court's refusal to give this instruction "deprived the jury of its prerogative to acquit [him] and deprived [him] of his federal and state constitutional right to a jury trial and due process." He maintains that, without this language, the court's reasonable doubt instruction--stating that if the jury was "firmly convinced that [Paredes-Solano] is guilty of the crime charged, [it] must find him guilty"--was misleading.

P26 Paredes-Solano has not cited, nor have we found, any Arizona or federal authority supporting his argument that he was entitled to a jury nullification instruction. But, we find extremely persuasive the substantial jurisprudence from the federal courts concluding defendants are not entitled to such an instruction. It is true, as Paredes-Solano notes, that the jury's nullification power is "well established." See Jones v. United States, 526 U.S. 227, 245-48, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999). However, jury nullification is not the legal "right" of either the defendant or the jury; the jury merely has a power "to acquit on bad grounds, because the government is not allowed to appeal from an acquittal by a jury." United States v. Kerley, 838 F.2d 932, 938 (7th Cir. 1988). Thus, although a jury-nullification verdict must stand, such a verdict contravenes the law the jury has been instructed to follow in deciding the case. United States v. Thomas, 116 F.3d 606, 616 (2d Cir. 1997); United States v. Washington, 705 F.2d 489, 494, 227 U.S. App. D.C. 184 (D.C. Cir. 1983) (per curiam). Consequently, although "juries have the power to ignore the law in their verdicts, courts have no obligation to tell them they may do so." United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996); see also Thomas, 116 F.3d at 616 n.9 ("[C]riminal defendants have no right to a jury instruction alerting jurors to this power to act in contravention of their duty."); United States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996) ("Although a jury is entitled to acquit on any grounds, a defendant is not entitled to inform the jury that it can acquit him on grounds other than the facts in evidence.").

P27 This result does not change merely because, as Paredes-Solano contends, the trial court instructed the jury it "must" convict if it found the state had proven guilt beyond a reasonable doubt. As we have noted, the court's reasonable doubt instruction correctly stated the law. Therefore, the court did not abuse its discretion in refusing to instruct the jury on its power of nullification.

Sample Instruction: Uncharged Acts – Prosecution Must Prove “Each Of The Elements” Of The Charged Offense (Washington)

In a criminal case in which the defendant is accused of an offense of sexual assault or child molestation, evidence of the defendant's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the defendant guilty of any crime charged in the Information. Bear in mind as you consider this evidence that at all times the State has the burden of proving that the defendant committed each of the elements of each offense charged in the Information. I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the Information.

Source: Given and approved in State v. Scherner, (Wash. Ct. App., No. 62507-1-I, Dec. 21, 2009).

Instructions Should Address Every Theory “Deducible Or Supported To Any Extent” By The Evidence (Kentucky)

Johnson v. Commonwealth (UNPUBLISHED) [excerpt after the jump] is yet another illustration of the fact that the ultimate authority and duty over jury instructions resides with the trial judge, not the jury instruction committee.

Defense Theory Instruction On Officers Use Of Excessive Force (Indiana)

Salyers v. State (UNPUBLISHED) [excerpt after the jump] discusses some of the facts and circumstances relevant to whether a law enforcement officer's use of force was excessive. Factors such as these could appropriately be included in the self defense instructions.

For briefing and sample instructions on this issue see Forecite National™ Vol. 7, Section 99.3.

Conflict Between Written And Oral Instructions: Presence Of Correct Instruction In Court File Did Not Prove The Jury Was Accurately Instructed (Illinois)

In People v. Vincent,165 Ill. App. 3d 1023, 520 N.E.2d 913 (1988) the oral rendition of the instructions misstated the law.  However, the jurors had a correct written version of the instructions in the deliberation room. The Vincent court ruled the inclusion of a correct copy of the instruction in the court file did not prove the jury was accurately instructed. Vincent, 165 Ill. App. 3d at 1031. 

Should A Defense Theory Instruction Tell The Jury What To Do If The Prosecution Does Not Disprove The Defense Theory Beyond A Reasonable Doubt? (Connecticut)

State v. Terwilliger [excerpt after the jump] discusses two components of a defense theory instruction: (1) the prosecution's duty to disprove the defense theory beyond a reasonable doubt and (2) what the jury should do if the prosecution does not meet its burden. This case concludes that the first component is constitutionally required but that the second component (the "consequences" instruction) is not constitutionally compelled even though it "may enhance the jury's understanding of the defense."

Prejudicial Variance: Alternative Means Of Committing Assault (Washington)

A variance between the evidence and the charging document may raise jury instruction issues because the judge will have to decide whether to instruct on the uncharged matters. (See e.g., State v. Thomas (UNPUBLISHED) [excerpt after the jump].)

Specific Juror Unanimity (Texas)

De Leon v. State, slip opn. p. 2 (Tex. App. Corpus Christi, No. 13-08-00170-CR, Dec. 21, 2009)
[NOTICE: This opinion is UNPUBLISHED.]
When the State charges that an individual committed different criminal acts, regardless of whether those acts are violations of the same or different statutory provisions, the trial court must instruct the jury that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of the criminal acts. Ngo, 175 S.W.3d at 744. However, "[t]he unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission." Pizzo v. State, 235 S.W.3d 711, (Tex. Crim App. 2007); see also Luna v. State, 268 S.W.3d 594, 601 (Tex. Crim. App. 2008).

Supplemental Instructions Must Be Consistent With The Instructions Already Given (Ohio)

Because the jurors are likely to give supplemental instructions undue emphasis (see e.g., United States v. Meadows (5th Cir. 1979) 598 F2d 984, 990; Davis v. Erickson (CA 1960) 53 C2d 860, 863-64) they warrant careful attention and scrutiny. As State v. Preston-Glenn holds, they should be correct statements of the law and consistent with the other instructions.

For briefing and sample instructions see Forecite National™ Vol. 13, Chapter 285.

Sample Instruction: Accomplice Testimony – “Grave Suspicion” And “Great Caution” (Ohio)

The admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.

Source: Requested in State v. Jennings, 2009 Ohio 6840, P60 (Ohio Ct. App., Franklin County, No. 09AP-70, No. 09AP-75, Dec. 24, 2009).

Massachusetts Uses Physics To Determine The Impact Of Conflicting Instructions (Massachusetts)

In deciding whether two conflicting instructions resulted in a miscarriage of justice the reviewing courts in Massachusetts consider “the instruction center of gravity” and whether or not there was a “repetitive oscillation” between correct and incorrect instructions. (See e.g., Commonwealth v. Silva [excerpt after the jump].)

Sample Instruction: False Arrest – Officer Must Consider Totality Of The Evidence

An officer must consider the totality of the evidence known to him/her when considering probable cause for an arrest, and where there is inculpatory and exculpatory evidence, the officer cannot ignore exculpatory evidence in order to find probable cause.
   
Source: Fitzpatrick v. City of Fort Wayne, (N.D. Ind., No. 1:07-cv-259, Dec. 22, 2009).

Legal Basis For Instruction: A police officer, in making his probable cause determination, cannot "simply turn a blind eye toward potentially exculpatory evidence . . . in an effort to pin a crime on someone." Radvansky v. City of Olmsted Falls, 395 F.3d 291, 305-06 (6th Cir. 2005). This principle has been stated as follows: “An officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.” Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) [concluding no probable cause existed where officer ignored eyewitness testimony which would have exculpated plaintiff]; see also Wilson v. Russo, 212 F.3d 781, 790 (3d Cir. 2000); compare Fitzpatrick v. City of Fort Wayne, (N.D. Ind., No. 1:07-cv-259, Dec. 22, 2009) [instruction not supported by the evidence because the officer had no knowledge of any “plainly exculpatory evidence”].

Sample Instruction: Multiple Defendants – “Compartmentalize The Evidence” As To Each Defendant

Remember, each defendant has to be considered separately. So, you have got to separate, compartmentalize the evidence you heard, and treat the defendants separately.

Source: United States v. McMahill, 2009 U.S. Dist. LEXIS 118950, 17 (W.D. Pa., Criminal No. 06-216,  Dec. 22, 2009).

Sample Cautionary Instruction: Number Of Offenses Charged

The number of offenses charged is not evidence of guilt, and this should not influence your decision in any way.

Source: United States v. McMahill, 2009 U.S. Dist. LEXIS 118950, 15 (W.D. Pa., Criminal No. 06-216,  Dec. 22, 2009).

Specific Juror Unanimity: Two Good Examples In One Case (9th Circuit)

United States v. Corona (UNPUBLISHED) [excerpt after the jump] illustrates the need for specific juror unanimity in two situations. First, unanimity is required as to which of two acts constituted the crime of tax evasion. Second, in a conspiracy prosecution there must be unanimity when the evidence shows multiple overt acts, some of which were committed after the statute of limitations.

Right To Instruction On Defense Theory Of Good Faith Reliance On Expert Advice (11th Circuit)

United States v. Langston [excerpt after the jump] explained the prerequisites to obtaining a defense theory instruction on good faith reliance on the advice of an attorney.

Sample Instruction: Willful Ignorance Or Blindness

You may not find that a defendant knew that these representations about Suprema were false if you find only that the defendant . . . should have known that these representations were false or that a reasonable person would have known of a high probability of this fact. It is not enough that a defendant may have been stupid or foolish or may have acted out of inadvertance or accident. You must find that the defendant . . . was actually aware of a high probability that these representations about Suprema were false, deliberately avoided learning about it and did not actually believe they were true.

Source: Approved in United States v. Cocchiola, (3d Cir. N.J., No. 09-1256, Dec. 23, 2009) [NOTICE: This opinion is UNPUBLISHED.]

Sample Instruction: Permissible Inference

This inference is a permissible matter of evidence for your consideration. As factfinders, you need not accept it and you may reject this inference where the surrounding facts and circumstances negate the existence of such an inference or you may ignore it even if such negating facts or circumstances are not presented.

Source: Adapted from language approved in Commonwealth v. Fletcher, (Pa., No. 545 CAP, Dec. 28, 2009).

More Confusion About The Definition Of Reasonable Doubt: Does A Juror Have To “Hesitate” Or “Hesitate And Pause” Or “Hesitate, Pause And Restrain Himself Or Herself”? (Pennsylvania)

Commonwealth v. Montalvo is the latest in a line of Pennsylvania cases approving different non-pattern definitions of reasonable doubt.

Now Pennsylvania judges have three definitional choices – one pattern option and two non-pattern options – without any appellate guidance as to which option correctly states the law.

Inconsistent Inferences (Pennsylvania)

"When two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty." Commonwealth v. New, 354 Pa. 188, 47 A.2d 450, 468 (Pa. 1946); compare Commonwealth v. Montalvo, (Pa., No. 301 CAP, Dec. 28, 2009) [An inference that Appellant did not participate in these crimes is not equal to the inference that Appellant committed these murders].

Sample Instruction: Good Character Of Defendant May By Itself Leave Jurors With A Reasonable Doubt (Pennsylvania)

The law recognizes that a person of good character is not likely to commit a crime which is contrary to that person's nature. Evidence of good character may  by itself leave you with a reasonable doubt of guilt and require a verdict of not guilty.

Source: Adapted from instruction given in Commonwealth v. Montalvo, (Pa., No. 301 CAP, Dec. 28, 2009).

Whether To Give Jurors Written Instructions Should Be Based On Individualized Discretion, Not Fixed Policy (New Jersey)

In State v. O'Brien [excerpt after the jump] the trial judge had a blanket rule that written instructions would not be given to the jurors for their use during deliberations. The reviewing court held that this blanket rule was erroneous. Instead, the judge must make an individualized decision on a case by case basis.

Judge Must Maintain A “Mien Of Impartiality” (New Jersey)

State v. O'Brien [excerpt after the jump] clearly articulated the requirement of judicial fairness in terms of a "mien of impartiality."

A “Truly Legally Inconsistent” Verdict (Montana)

State v. Schmidt, 2009 MT 450, P31-P39 (Mont. Dec., DA 08-0137, December 31, 2009)
 [*P31]  This Court determined a similar result to be "truly legally inconsistent" in Demontiney v. Mont. Twelfth Judicial Dist. Court, 2002 MT 161, 310 Mont. 406, 51 P.3d 476. The State charged Demontiney with deliberate homicide. The district court instructed the jury on mitigated deliberate homicide over Demontiney's objection. Demontiney, P 5. The district court instructed the jury first to consider the charge of deliberate homicide. Jurors were to consider the lesser charge of mitigated deliberate homicide only if they reached a verdict of not guilty, or were unable to agree, on the greater charge. Demontiney, P 7. The jury entered a verdict of not guilty to deliberate homicide and guilty to mitigated deliberate homicide. Demontiney argued that the jury's verdict was "truly legally inconsistent." Demontiney, P 8.

Standard Of Prejudice: Argument By Prosecutor On The Erroneous Point Is Not A Prerequisite To Reversal (Missouri)

Reviewing courts often refer to prosecutorial reliance or exploitation of an instructional error in finding the error prejudicial. (See e.g., People v. Roder (CA 1983) 33 C 3d 491, 505.)

However, State v. Richards [excerpt after the jump] illustrates that an instructional error may still be prejudicial in the abscence of prosecutorial argument on the erroneous instruction.

Defense Theory Instruction Justified “No Matter How Weak Or Incredible The Claim” (Connecticut)

Most jurisdictions have a low evidentiary threshold for giving a requested defense theory instruction. (See e.g., State v. Terwilliger [excerpt after the jump].) In such jurisdictions it may be useful to emphasize that low threshold when making instructional requests.

Cautionary Jury Instruction: Eyewitness Testimony By Addict

Although Reese v. Lafler [excerpt after the jump] refused the eyewitness-addict instruction there should not be any doubt as to the relevance of such an instruction when supported by the evidence. And, even if the instruction is refused, the request could set up counsel's right to argue the matter to the jurors. (See this Forecite Blog™ post.)

Dangerous Weapons: “Innocuous Object” vs. “Inherently Dangerous Weapons” (9th Circuit)

Common sense necessitates instructing the jurors on the difference between inherently dangerous weapons and innocuous objects which only become dangerous weapons by virtue of the manner in which they are used. The opinion in United States v. Anchrum [excerpt after the jump] is consistent with this common sense view.

Inability Of Limiting Instruction To Cure Prejudice (8th Circuit)

Typically reviewing courts presume that jurors follow limiting instructions. However, this is not always true. For example, United States v. Street [excerpt after the jump] held that informing the jurors the defendant had failed a polygraph test was prejudicial error even though the judge admonished the jury that such tests are "not reliable and . . . not admissible . . . "  

For further information and sample instructions on this issue, including a much stronger limiting instructions see the following subscription-based resource: Forecite National™ Vol. 4, Section 25.10.

Misleading Instruction On The Prosecution’s Burden To Disprove A Defense Theory Is Reversible Error (Connecticut)

When the defendant relies on a defense theory that negates an element of the charge (e.g., self defense) defense counsel should be careful to assure that the jurors understand the prosecution's duty to disprove the defense theory beyond a reasonable doubt. State v. Terwilliger [excerpt after the jump] illustrates the importance of making this burden of proof allocation clear to the jurors.

Correct Instruction From The Judge Does Not Always Cure Erroneous Argument By The Prosecutor

Reviewing courts tend to interpret the arguments of counsel so as to affirm the defendant’s conviction. For example, if the defense contends that the prosecutor misstated the law the typical appellate opinion will reject the argument by presuming the jurors followed the judge’s admonition to follow the instructions as given by the judge. For example, Sondey v. White, ( E.D. Mich. Nov. 18, 2009) concluded:

"Because the trial court correctly stated the law and admonished the jury that only its instructions on the law were to be followed, petitioner cannot show that he was prejudiced by the prosecutor's alleged misstatement of the law. See United States v. Wadlington, 233 F.3d 1067, 1079 (8th Cir. 2000); United States v. Gonzalez-Gonzalez, 136 F.3d 6, 9 (1st Cir. 1998)."

On the other hand, when the instructions misstate the law the appellate court will often rely on the argument of counsel to “cure” the error.

Accordingly, the opinion in Hicks v. Howton [excerpt after the jump] is notable because it assumed that the jurors followed the prosecutor’s erroneous argument instead of the judge’s correct instruction.

Hicks v. Howton, (No. CV. 07-746-PA D. Or. Nov. 19, 2009)
The State's argument telling the jury that to acquit they must find Amy lied was outrageous and must be recognized for its full potential to mislead the jury as to the findings it was required to make for conviction. The trial court's jury instructions on the elements of Sexual Abuse, with its single reference to "purpose" in the definition of sexual contact, did little to counter the State's forceful repetition that Amy's truthfulness was determinative for conviction.

Non-Included (Lesser Related) Offenses

In jurisdictions which preclude instruction on non-included lesser offenses (see e.g., Perkins v. State [excerpt after the jump]) there may be a problem in presenting the defense theory to the jurors. 

For example in U.S. v. Brown (8th Cir. 1994) 33 F3d 1002, 1003, the defense theory was that the defendant should be convicted of accessory after the fact rather than the substantive charge of robbery. The defendant testified that he did not participate in the robbery even though he attempted to retrieve the proceeds of the robbery after it had been completed. The court concluded that "the accessory after the fact theory functions as a defense. This is because the government did not charge Brown as an accessory after the fact." (Brown, 33 F3d at 1004.) Accordingly, the trial court "should have given the jury the proffered accessory after the fact instructions." (Ibid.)

For subscription-based .briefing and sample instructions see: Forecite National™ Vol. 12, Chapter 267.

What Constitutes A Circumstantial Evidence Case (Mississippi)

The rational hypothesis standard for evaluating circumstantial evidence was derived from Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 5 Cush. 295 (1850), a murder prosecution based entirely on circumstantial evidence. In Webster, Chief Justice Shaw described the advantages and disadvantages of each mode of proof, cautioned against the use of circumstantial evidence in criminal cases and set out the following rule:

"[T]he circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing in effect a reasonable and moral certainty, that the accused, and no one else, committed the offense charged. It is not sufficient that they create a probability, though a strong one; and if, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential, therefore, that the circumstances taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis." (59 Mass. (5 Cush.) at 319.)

Courts throughout the country adopted the Webster rule as a jury instruction for assessing circumstantial evidence. (See Irene Merker Rosenberg & Yale L. Rosenberg, "Perhaps What Ye Say is Based Only on Conjecture" -- Circumstantial Evidence, Then and Now, 31 Hous. L. Rev. 1371, 1392 (1995).) Some 100 years later, the Supreme Court held that a reasonable doubt instruction obviated the need for a special circumstantial evidence instruction. Holland v. United States, 348 U.S. 121, 139-40, 75 S. Ct. 127, 99 L. Ed. 150, 1954-2 C.B. 215 (1954).

Nevertheless, the Webster instruction still plays an important role in many jurisdictions. For example, the Blue Ribbon Committee, which conducted a comprehensive state-of-the-art revision of California's instructions in 2006, retained the Webster instruction. (See CALCRIM 225.) Therefore, because the availability of the Webster instruction may turn on whether or not the case is "circumstantial" the discussion in Gore v. State [excerpt after the jump].

Sample Instruction: Circumstantial Evidence (Mississippi)

II. CIRCUMSTANTIAL-EVIDENCE INSTRUCTION

The Court instructs the jury that if there is any fact or circumstance in this case susceptible to two interpretations, one favorable and the other unfavorable to the accused, that, when the jury has considered such fact or circumstance with all the other evidence, there is reasonable doubt as to the correct interpretation, the jury must resolve such doubt in the interpretation favorable to the accused.

Source: Requested in Gore v. State, slip opn. paragraph 17 (Miss. Ct. App., NO. 2008-KA-01977-COA, Dec. 1, 2009) [not given because only element proven entirely by circumstantial evidence was intent], see also this Forecite Blog™ post.

"Shotgun" Cautionary Instruction (South Dakota)

In State v. Miranda, 2009 SD 105, P28 (S.D. Dec. 2, 2009) the reviewing court quoted the following instruction with approval:

"Evidence has been introduced that the defendant committed an offense other than that which is now charged. This evidence was admitted solely for your consideration as to whether it tends to show that the defendant intended to commit the offense which is now charged.

Although evidence of this nature is allowed, it may be used only to show: motive, intent, absence of mistake or accident and common scheme. You may not consider it as tending to show in any other respect the defendant's guilt of the offense with which the defendant is charged.

You are not required to consider this evidence and whether you do is a matter within your exclusive province."

The problem with such an instruction is its failure to tailor the language to the precise issue as to which the evidence was admitted.

Written Vs. Oral Instructions, Part I (Ohio) (California)

The Ohio opinion in State v. Young [excerpt after the jump] suggests that the written instructions given to the jurors during deliberations should trump the oral instructions given by the judge. Similarly in People v. McLain (CA 1988) 46 C3d 97, 111, the California Supreme Court presumed "that the jurors were guided by the written version..." (See also People v. Majors (CA 1998) 18 C4th 385, 410 [error in oral instruction was harmless in light of correct written instruction given to the jury].)

However, it is only through oral instruction that it "can be assured that each member of the jury has actually received all of the instructions." (People of the Territory of Guam v. Marquez (9th Cir. 1992) 963 F2d 1311, 1314-15; see also State v. Castoreno (KS 1994) 874 P2d 1173, 1180-81. This is so because typically the jurors are not instructed on how to use the written instructions. There is no way to know (1) if any or all the jurors actually referred to the instructions; (2) which instructions were referred to; (3) whether the instructions were read aloud or silently; (4) whether the instructions were read accurately. (See Marquez, 963 F2d at 1314-15.) Accordingly, if there is a substantive difference between the oral and written instructions, the resolution should logically be made in favor of the oral rendition.

For subscription-based briefing and sample instructions see: Forecite National™ Vol. 1, Section 2.1.

Accomplice Testimony Should Be Viewed With “Grave Suspicion” And Must “Be Weighed With Great Caution” (Ohio)

The wording of accomplice cautionary instructions is all over the board. For example, in California the jurors are merely told to examine accomplice testimony with "care and caution" (CALCRIM 335) which does little to differentiate an accomplice from any other witness. On the other hand, in Ohio the cautionary language is substantially stronger. (See State v. Perez [excerpt after the jump].)

Doyle Error: Comment on Defendant’s Invocation of Right to Remain Silent Was Prejudicial in Absence of Curative Instruction

People v. Patterelli [excerpt after the jump] might help persuade a reluctant judge to give a requested limited instruction.

Judge’s Power And Duty to Instruct As The Judge Deems Necessary (New Hampshire)

Any trial judge who claims that he or she is duty-bound to give only standard pattern instructions either does not understand or refuses to accept that the ultimate authority and duty for instructing the jurors resides with the judge, not the jury instruction committee. (See e.g., State v. Kousounadis [excerpt after the jump].)

Judge Improperly Directed Verdict On Element Of The Charge By Instructing Jurors That A Firearm Is A Deadly Weapon (New Hampshire)

Even though some might argue that a firearm is inherently a deadly weapon the judge in State v. Kousounadis [excerpt after the jump] should have submitted the issue to the jurors.

Right To Instruction On Defense Theory Of The Case (Nevada)

Ouanbengboune v. State [excerpt after the jump] reiterates the broadly accepted right of the defendant to have the jury instructed on his or her theory of the case.

Accomplice Liability For Robbery: After Acquired Intent To Steal Or To Hinder Apprehension Is Insufficient (New Jersey) (Nevada)

After-acquired or after-though robbery can be an important defense theory when robbery is the predicate for felony murder and/or accomplice liability. (See e.g., State v. Whitaker and Ouanbengboune v. State [excerpts after the jump].)

For subscription-based briefing and sample instructions on this point see: Forecite National™ Vol. 7, Section 100.1.9.

Judge’s Discretion To Give Instructions (Mississippi)

"Whether to give a jury instruction is within the sound discretion of the trial court." Chamberlin v. State, 989 So. 2d 320, 341-42 (P80) (Miss. 2008) (citation omitted).

See this Forecite Blog™ post for more on this point.

Instructions Must Not Exclude Consideration Of Material Issues, Defenses And Theories (Michigan)

People v. Rochelle [UNPUBLISHED] [excerpt after the jump] reiterates the trial judge's duty to tailor instructions so they address the issues raised by the evidence.

Conflict Between Verdict Forms And Instructions (Michigan)

When two jury instructions conflict it typically is not possible to determine which instruction the jurors followed. However, in People v. Wade [excerpt after the jump] the majority concluded that the jurors followed a correct instruction rather than an incorrect verdict form.  (But see dissent of Chief Justice Kelly.)

A Defense Theory Instruction Should Be Given Even If It Is Supported Only By Slight Evidence Or By The Defendant's Own Testimony (Kansas)

Kansas v. Johnson (UNPUBLISHED) [excerpt after the jump] explains a fundamental rule of jury instruction practice which too often is ignored when the requesting party is a criminal defendant.

Jury Unanimity: Multiple Acts (Kansas)

Kansas v. Johnson (UNPUBLISHED) [excerpt after the jump] described a specific unanimity instruction as a way to deal with multiple act situations. For more on specific juror unanimity see this Forecite Blog™ post and this Forecite Blog™ post.

Reviewability Of Jury Instruction Issue That Was Not Preserved At Trial (Kansas)

Most jurisdictions have some provision allowing a reviewing court to address jury instruction issues which were not preserved below. (See e.g. Kansas v. Johnson (UNPUBLISHED) [excerpt after the jump].) However, the bar is usually set high for such review. (E.g., only "plain error" or "clearly erroenous" instructions will be reviewed.) See also this Forecite Blog™ post.

Juror Coercion: Improper Instruction That “Another Trial Would Be A Burden On Both Sides” (Kansas)

Any instructions given to a deadlocked jury are obviously crucial. For example, State v. Ellmaker [excerpt after the jump] explains the coercive impact of suggesting that the jurors should reach a verdict for reason of economy.

Instruction Which Blurs Distinction Between Specific And General Intent Should Not Be Given For Specific Intent Crime (Kansas)

Not all jurisdictions use the terms general and specific intent. The terms are not regularly used in federal jurisdictions and have been all but abandoned in California with the advent of the CALCRIM instructions in 2006.

State v. Ellmaker [excerpt after the jump] illustrates the confusion that can be created by jury instructions which attempt to differentiate between general and specific intent.

Coercion Of Jury During Deliberation (Illinois)

As People v. Ramos [excerpt after the jump] explains, the key question regarding juror deadlock instructions is whether one or more jurors will be coerced into surrendering "views conscientiously held."

Sample Instruction: Defense To Conspiracy Charge (Wisconsin)

The existence of a simple buyer/seller relationship between a defendant and another person without more is not sufficient to establish a conspiracy even where the buyer intends to resell the controlled substance, here cocaine. The fact that a defendant may have bought the controlled substance cocaine from another person or sold the controlled substance to another person is not sufficient without more to establish that the defendant was a member of the charged conspiracy. In considering whether a conspiracy or just a simple buyer/seller relationship existed, you should consider all the evidence including the following factors: Number one, whether the transaction involved large quantities of the controlled substance cocaine; number two, whether the parties had a standardized way of doing business over time; number three, whether the sales were on credit or on consignment; number four, whether the parties had a continuing relationship; number five, whether the seller had a financial stake in a resale by the buyer; and number six, whether the parties had an understanding that the controlled substance cocaine would be resold. No single factor necessarily indicates by itself that a defendant was or was not engaged in a simple buyer/seller relationship.

Given in State v. King, 2009 Wisc. App. LEXIS 918, 3-7 (Wis. Ct. App. Dec. 1, 2009) [NOTICE: This opinion is UNPUBLISHED .]

See also Forecite National™ Vol. 7, Section 83.3.2 Buyer-Seller Relationship Is Not A Conspiracy.

Unexplained, Exclusive Possession of Recently Stolen Property (Virginia)

Many jurisdictions have specific instructions regarding the defendant's alleged unexplained possession of recently stolen property. Palmer v. Commonwealth (UNPUBLISHED) [excerpt after the jump] explains the rationale for such an instruction. However, instructing the jurors regarding specific evidence in this fashion is blatantly argumentative and defense counsel may wish to challenge it on this and/or other bases. See Forecite National™ Vol. 4, Chapter 33.

Judge’s Duty to Correct (Texas)

The opinion excerpted below implies that the judge has the duty to cure an instructional request which is not absolutely correct. Other jurisdictions also recognize a duty to correct defective instruction requests arising from the trial court's ultimate responsibilities to assure that the jury is correctly instructed. (See Devlin-Weinheimer v. Weinheimer [excerpt after the jump], People v. Castillo (CA 1997) 16 C4th 1009, 1016 [even when a trial court instructs on a matter on which it has no sua sponte duty to instruct, it must do so correctly]; People v. Fudge (CA 1994) 7 C4th 1075, 1110 [judge must tailor instruction to conform with law rather than deny outright]; State v. Sawyer (HI 1998) 966 P2d 637, 642 [trial court has the duty either to correct any defects or to fashion its own instructions]; Bailey v. Commonwealth (VA 2000) 529 SE2d 570, 584-85 [when a principle of law is materially vital to a defendant, it is reversible error for the trial court to fail to correct a defective instruction or verdict form when the error is patent or the subject of a proper objection even if the defendant fails to proffer alternative instructions or verdict forms]; State v. Lambert (WV 1984) 312 SE2d 311 [ultimate responsibility to ensure that jury is correctly instructed in criminal cases rests with the trial court].) For subscription-based briefing and sample instructions see also Forecite National™ Vol. 1, Chapter 3, Section 3.3.3.

Devlin-Weinheimer v. Weinheimer, slip opn. p. 16 (Tex. App. Corpus Christi, No. 13-08-00546-CV, Dec. 3, 2009)
To preserve error regarding a court's failure to submit a proposed jury instruction, the proposed instruction must have been tendered to the trial court in substantially correct wording. See TEX. R. CIV. P. 278; Placencio v. Allied Indus. Int'l, 724 S.W.2d 20, 21 (Tex.1987). "[S]ubstantially correct . . . does not mean that it must be absolutely correct, nor does it mean one that is merely sufficient to call the matter to the attention of the court will suffice. It means one that in substance and in the main is correct . . . ." Placencio, 724 S.W.2d at 21 (citing Modica v. Howard, 161 S.W.2d 1093, 1094 (Tex. Civ. App.– Beaumont 1942, no writ)).


Copyright © 2010 Thomas Lundy.  All Rights Reserved.

Reviewability of Jury Instruction Issues: Invited Error (Texas)

Invited error is a common procedural hurdle to obtaining review of jury instruction errors. Blunt v. State (UNPUBLISHED) [excerpt after the jump] suggests that merely failing to object is not invited error. Instead, the party must have affirmatively induced the error as, for example, when the judge gives a jury instruction which the party requested.

Reviewability: Plain Error (Ohio)

Many jurisdictions allow unpreserved jury instruction issues to be reviewed is they constitute "plain error." (See e.g., State v. McQueen [excerpt after the jump].)

Instructions vs. Verdict Forms (Ohio)

State v. Himes [excerpt after the jump] seeks to differentiate between the role of verdict forms--which "merely state" whether the jury finds the defendant guilty--and jury instructions--which "instruct on all matters of law necessary to render a verdict."

Variance: Accomplice Liability Need Not Be Charged (Ohio)

Jury instruction issues may arise when the evidence at trial varies from the charging document. However, State v. Himes [excerpt after the jump] holds that accomplice liability does not need to be charged.

Self-Defense: When Defendant Has Burden Of Proving An Affirmative Defense The Prosecution Must Still Prove All Elements Of The Underlying Charge

Even though most jurisdictions do not require the defense to prove self defense, as does Ohio, State v. McGee [excerpt after the jump] provides guidance for other defenses, such as entrapment or necessity, when the defense often has the burden of proof. For example, the instruction on such a defense should be carefully crafted to avoid implying that the prosecution’s burden to prove the underlying elements of the charge is not lifted or shifted.  (See Martin v. Ohio (1987) 480 US 228, 233-34 [107 SCt 1098; 94 LEd2d 267].)

For further briefing and sample instructions on this and related issues see:

Forecite National™ Vol. 11, Section 250.5, Defenses And Defense Theories: Burden Of Proof On Defendant. 

Evidence Sufficient for Defense Theory Instruction: Defense Burden Is Slight (Connecticut)

As in many other jurisdictions, Connecticut purports to have a very low evidentiary threshold for instruction on a defense theory. (See e.g., State v. Nathan [excerpt after the jump].)

Prosecution Has Burden of Disproving Defense Theory Which Negates An Element Of The Offense (Connecticut)

The defendant must meet a slight evidentiary burden (see this Forecite Blog™ post) to warrant instruction on a defense theory which negates an element of the charge. However, once that burden is met the only burden mentioned in the jury instructions should be the prosecution's burden to disprove the defense theory beyond a reasonable doubt. (See e.g, State v. Nathan [excerpt after the jump].)

Defense Requested Instruction – Adoption of Version of Facts Most Favorable to Defense (Illinois) (Connecticut)

Not only is the defendant's burden of producing evidence to support a defense theory slight, (see this Forecite Blog™ post), the version of the facts which favors the defense should be adopted.

“In reviewing the trial court's rejection of the defendant's request for a jury instruction . . .we adopt the version of the facts most favorable to the defendant that the evidence would reasonably support. [Citation.]” (People v. Ramos, 2009 Ill. App. (Ill. App. Ct. 1st Dist., No. 1-07-3244, Dec. 4, 2009); State v. Nathan J., 294 Conn. 243, (Conn. 2009); State v. Clark (2003) 264 Conn. 723, 731.)

Presumption That Jurors Are Capable Of Following Limiting Instructions (Idaho) (Ohio) (Texas)

Typically the law presumes that the jury obeys the trial court's instructions to disregard statements. See e.g., State v. Broshier and State v. Smith [excerpts after the jump]. This presumption can only be overcome with a showing that there is an "overwhelming probability" the jury cannot follow the instruction and the evidence is "devastating" to the defendant. State v. Hill, 140 Idaho 625, 631, 97 P.3d 1014, 1020 (Ct. App. 2004) (citing Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987)).

However, this rule is based on an obvious legal fiction. It is simply unrealistic to expect jurors to ignore or "compartmentalize" many types of prejudicial evidence. In future posts this blog will highlight cases in which this presumption has been overcome.

Standard Pattern Instructions Not Sacrosanct (Delaware)

Smith v. State [excerpt after the jump] explains that "rigid application" of pattern instructions is not required.

Accomplice May Be Convicted Of Lesser Offense Than Perpetrator (Delaware) (New Jersey)

In California the jurors were for decades instructed that the accomplice and perpetrator are "equally guilty." However, in People v. McCoy (2001) 25 Cal.4th 1111,1121 the California Supreme Court held that an accomplice may be convicted of a lesser offense than the perpetrator. The recent decisions from Delaware and New Jersey excerpted below concur on this point.

Kidnapping: Movement Incidental To Underlying Offense (Connecticut)

A common issue in aggravated kidnapping cases (i.e. where it is alleged that the kidnapping was for the purpose of committing another crime) is whether or not the kidnapping was merely incidental to the intended offense. State v. Thompson [excerpt after the jump] explains that "rigid application" of pattern instructions is not required.

Improper To Instruct On Defense Burden To Produce Evidence Or To Suggest That Defense Must “Raise” Or “Create” A Reasonable Doubt

The jurors should never be instructed on the defendant's burden of "going forward" with evidence since this is not material to the jurors' deliberations. (See People v. Mentch (2008) 45 C4th 274, 292, concurring opn. [“The parties . . . agree that . . . The court should not instruct the jury on any defense burden”]; see also People v. Deloney (1953) 41 C2d 832, 840-42; People v. Cornett (1948) 33 C2d 33, 42-44.) In a criminal context the need for clarity on the essential notion of burden of persuasion is critical. Telling jurors that the defendant must prove something poses the very real risk that they may misunderstand the burden of production to be one of persuasion, and thus mistakenly shift to him a greater burden than he may legally be compelled to carry. (See People v. Kelley (1980) 113 CA3d 1005, 1012-13; but see People v. Frazier (2005) 128 CA4th 807 [CJ 12.24.1 accurately states that the defendant has the obligation to raise a reasonable doubt on the issue of compassionate use].)

Sample Instruction: Medical Marijuana (California)

(1) No Speculation About Defendant’s Medical Conviction:
Do not consider or speculate about the nature of the medical condition for which a defendant was given a recommendation for marijuana use by a physician under the Compassionate Use Act. This is a medical determination and is not subject to review or scrutiny by you. The only fact for you to determine is whether a defendant has presented evidence tending to show that he had such a recommendation.

(2) Effect of Expiration of Doctor’s Recommendation:
The expiration of a physician's recommendation does not mean that a defendant could not continue to possess marijuana so long as that marijuana is possessed for a defendant's personal medical needs.

Source: Adapted from instructions given in Superior Court of Tuolumne County. Super. Ct. No. CRF24826; Eleanor Provost, Judge; see People v. Tosto, (12/2/2009, F056333). [Notice: This opinion is UNPUBLISHED.]

Merger Doctrine: Shooting At Occupied Vehicle (California)

In People v. Chun (2009) 45 Cal.4th 1172 the California Supreme Court held as follows: "When the underlying felony is assaultive in nature . . . we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Id. at p. 1200.) Although the court declined to determine "exactly what felonies are assaultive in nature," it held that "shooting at an occupied vehicle under section 246 is assaultive in nature and hence cannot serve as the underlying felony for purposes of the felony-murder rule." (Ibid., fn. omitted.) Accordingly, it is error to instruct the jurors on felony murder based on the underlying felony of shooting at an occupied vehicle.

For additional material on the Merger Doctrine see Forecite National™ Vol. 7, Section 92.9.5, Felony Murder: Merger Doctrine As Defense Theory.

Standard Of Review: Lesser Included Offenses (California)

In assessing a claim of failure to instruct on a lesser included offense, the appellate court independently reviews the question. (People v. Cole (2004) 33 Cal.4th 1158, 1215.)

Instruction On Lesser Included Offense In Absence Of Request (California)

The trial court must instruct on lesser included offenses even in the absence of a request so long as a reasonable jury could find the evidence of the lesser offense persuasive. (People v. Lewis (2001) 25 Cal.4th 610, 645.) "Conversely, even on request, the court 'has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.'" (People v. Cole (2004) 33 Cal.4th 1158, 1215, quoting People v. Cunningham (2001) 25 Cal.4th 926, 1008.)

Cautionary Instruction On Oral Statements Should Not Apply To Defendant’s Exculpatory Statements

When cautionary language regarding the defendant’s oral statements is not limited in application to inculpatory statements, the instruction is defective. The predecessor to CALCRIM No. 358, CALJIC No. 2.71, was repeatedly found proper because it limited its cautionary advice to inculpatory statements by defendant. (See People v. Vega (1990) 220 Cal.App.3d 310, 317 (Vega); see also People v. Williams (2008) 43 Cal.4th 584, 639; People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) Furthermore, in the current version of CALCRIM No. 358, the cautionary paragraph has been modified to read, "Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded." (CALCRIM No. 358; Emphasis added.)

Avoiding Guilt By Association: Need For Limiting Instruction When Jury Learns About Co-defendant’s Guilty Plea

To avoid a conviction based on mere association with others, it is well-established that "'evidence about the conviction of a [codefendant] is not admissible as substantive proof of the guilt of a defendant.' [Citation.]" (United States v. Mitchell (4th Cir. 1993) 1 F.3d 235, 240; People v. Cummings (1993) 4 Cal.4th 1233, 1322 [probative value of codefendant's guilty plea was clearly outweighed by the prejudicial impact of the plea]; People v. Leonard (1983) 34 Cal.3d 183, 188-189 [evidence person involved in charged offense had pleaded guilty was inadmissible against defendant because it invited an improper inference of guilt by association].)

In United States v. Halbert (9th Cir. 1981) 640 F.2d 1000, 1007, the court explained that when evidence of a testifying codefendant's guilty plea is admitted, the jury must be given an instruction addressing the permissible use of the evidence--the evidence is relevant only in assessing the witness's credibility--and "exclude[ing] from the jury's mind the possibility that it may serve as evidence of guilt."

Standard pattern instructions often do not convey this important limitation to the jurors. For example, in the newest California instruction on witnesses’ prior felony convictions (CALCRIM 316) tells the jury that if it finds a witness has suffered a felony conviction, that fact may be considered only in assessing the witness's credibility. Although the instruction touches on the general principles at play, it does not address the situation of a co-arrestee's guilty plea to the same charges for which defendant is on trial, and does not address the concern of a finding of guilt by association.

Evaluating Circumstantial Evidence (California)

In California the law has long recognized that particular care must be taken when relying on circumstantial evidence. Therefore, jurors in criminal cases are instructed that before they can rely on circumstantial evidence to find a defendant guilty, they “must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” (See CALCRIM 224; CALJIC 2.01 & 2.02.)

California defense practitioners often utilize this language in arguing that the prosecution had not met its burden on proving the defendant guilty beyond a reasonable doubt.

CAVEAT: The guilt/innocence language should be used with caution to avoid implying that the jury has to find the defendant innocent to acquit.

Sample Instruction: Special Instruction When Prosecution Argues That Defense Failed To Present Evidence Which Was Unavailable (California)

Typically missing witness/evidence issues arise when a party failed to produce an available witness or other available evidence. However, it is not unheard of for the prosecutor to comment on the failure of the defendant to present evidence which was unavailable to the defense. (E.g., due to a missing witness, a witness who has invoked a privilege, an alibi witness who is precluded due to a discovery violation, etc.) The prosecution instruction which was permitted in People v. Ervine provides a template for a defense requested instruction when the prosecutor argues that the defense did not present unavailable evidence.

SAMPLE INSTRUCTION

You must disregard any argument or insinuation by the prosecutor that the defense should have put on ________________ . I am instructing you that the defense was not [permitted to do so under the law] [able to do so because the ____________ was unavailable].

(Source: Adapted from prosecution instruction in People v. Ervine, (Cal. S054372, Dec. 7, 2009).

California Supreme Court Dodges Question Of Whether A Cautionary Instruction Is Required As To An Out Of Court Statement Which Was Recorded But The Recording Was Never Played For The Jury (California)

Typically a cautionary instruction is not required as to an out of court statement which was recorded. But is a cautionary instruction required if the recording was never played for the jurors? In People v. Ervine [excerpt after the jump] the California Supreme Court declined to address this question.

Sample Instruction: Hearsay Not Offered For The Truth Of The Matter Asserted (California)

Because ________ was not subject to cross-examination, we don't know whether what they said was true. Therefore, the statements are not to be offered to prove that those things are true and you must not consider them for that purpose. 

Source: Adapted from instruction given in People v. Ervine [excerpt after the jump].

Reviewability: Invited Error (Arizona)

In State v. Musgrove [excerpt after the jump] counsel's express waiver of a lesser included offense instruction was held to be invited error.

Right To Defense Theory Instruction (Arizona)

State v. Musgrove [excerpt after the jump] explains Arizona's rule regarding defense theory instructions.

“Instantaneous As Successive Thoughts” Language Disapproved; Improper To Permit A Finding Of Deliberation Based Solely On The Passage Of Time

Smith v. Ryan [excerpt after the jump] disapproved two formulations of premeditation. (1) "Instantaneous as successive thoughts" and (2) "Passage of time."