Reversible Error To Preclude Defense From Addressing Material Jury Instruction In Closing Argument (Florida)

In Jean v. State, 27 So. 3d 784, 786 (Fla. Dist. Ct. App. 3d Dist., No. 3D08-2419, 2010) the defendant’s escape conviction was reversed because the judge precluded defense counsel from arguing that an element of the charge (lawful confinement) had not been proved: It is within the trial court's discretion to determine whether counsel's argument is improper. See Bigham v. State, 995 So. 2d 207, 215 (Fla. 2008). However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury. See Goodrich v. State, 854 So. 2d at 665; Hendrickson v. State, 851 So. 2d 808 (Fla. 2d DCA 2003). The trial court's limitation here amounted to just such an abuse of discretion.

Counsel’s right to address instructional issues was explained as follows: Defense counsel's argument concerning legal custody was permissible in this case because the jury was instructed to consider this issue. See Marman v. State, 814 So. 2d 1158, 1159 (Fla. 2d DCA 2002) ("If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter."); see also Seckington v. State, 424 So. 2d 194, 195 (Fla. 5th DCA 1983) ("Even though it is not the prerogative of an attorney in his closing arguments to instruct the jury on the law, it is entirely appropriate for an attorney to relate the applicable law to the facts of the case."); Taylor v. State, 330 So. 2d 91, 93 (Fla. 1st DCA 1976) ("An attorney should . . . be allowed to explain to the jury those instructions which are relevant to his theory of the case and to emphasize any portion of the jury charge that he feels to be pertinent."); United States v. Hall, 77 F.3d 398, 401 (11th Cir. 1996) (holding that counsel is permitted "point out legal concepts that will be included in the jury charge"), abrogation on other grounds recognized by Hunter v. United States, 559 F.3d 1188, 1190 (11th Cir. 2009), judgment vacated, 130 S. Ct. 1135, 175 L. Ed. 2d 967, 78 U.S. L. Weekly 3408 (Jan. 19, 2009).

Related Posts: Argument As Substitute For Instruction

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Chapter 272: Summation/Closing Argument To Jury
272.3 - Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions
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PG X(G) - Effect of Argument on Instructional Error

Waiver Of Instructional Claim By Invited Error Or “Active Inducement” (Connecticut)

In State v. Ebron, 292 Conn. 656, 682, 975 A.2d 17 (2009), the Connecticut Supreme Court held that an appellant will not be deemed to have waived a claim of instructional error unless it is shown that he ''actively induced the trial court to give the . . . instruction that he . . . challenges on appeal . . . .'' Ebron explained that a party will have waived an objection to instructional language if he or she has ''actively induce[d] the trial court to act on the challenged portion of the instruction.'' Id., 680. The court defined active inducement in terms of an appellant having supplied or otherwise advocated for the very instructional language at issue in the appeal. Id., 681-82.

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295.3.3 - Overcoming Invited Error
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PG VI(A)(2) - Invited Error: General Principles
PG VI(A)(5) - Invited Error: Inapplicable Where Requested Instruction Has Been Changed
PG VI(A)(6) - Invited Error: Error Must Be Caused By Counsel

Curative Instructions Not A “Cure-All” (Connecticut)

State v. Nance, 119 Conn. App. 392, 406 (Conn. App. Ct., AC 30047, 2010) discussed the efficacy of curative instructions in the following passage:

“We are mindful that curative instructions are not a cure-all for every improper event that may transpire during a trial. See State v. Binet, 192 Conn. 618, 632-33, 473 A.2d 1200 (1984). The likely effectiveness of such a remedy is dependent on the magnitude of the impropriety to which it is directed. Here, the nature of the improper question asked in this case cannot be said to have had a likely significant impact on the defendant's credibility or any aspect of her defense. In light of the facts that the court immediately addressed the matter with proper curative instructions, the inquiry occurred only once and the state did not present evidence of a prior charge, we are not persuaded that the improper inquiry tainted the proceedings with such a degree of prejudice that the defendant was not afforded a fair trial. Accordingly, we do not conclude that the court's denial of the motion for a mistrial reflected an abuse of the court's discretion.”

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4.3.2 - Cautionary And Limiting Instructions: Requests And Objections
272.5 - Summation/Closing Argument: Prosecutor Misconduct -- Curative Instructions

Kidnapping May Only Be Predicated On Movement Which Is Not “Wholly Incidental” To Another Crime (Connecticut)

In State v. Salamon, 287 Conn. 509 (Conn. 2008), the Connecticut Supreme Court determined that, in defining kidnapping, "the legislature meant to exclude from its scope an intent to confine or move a victim that is wholly incidental to the commission of another crime which, by its nature, necessitates some restraint of the victim." Salamon stated that "[w]hether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Id., 547.  Because the evidence reasonably supported a finding that the restraint was not merely incidental to the commission of some other crime in Salamon, the state was entitled to have the ultimate factual determination of whether the defendant intended to prevent the victim's liberation made by the jury. Id., 547-48.  For example, in State v. DeJesus, 288 Conn. 418 (Conn. 2008), despite the fact that there was little doubt that the defendant's restraint of the victim was merely incidental to his assault of the victim, the Connecticut Supreme Court nevertheless refused to examine in detail the specific evidence adduced at trial, deciding instead that whether there was a separate restraint was a question better left to a properly instructed jury. See id., 438-39; but see State v. Winot, 294 Conn. 753, 758-785 (Conn., SC 17696, 2010) [majority concluded that the remedy established by DeJesus was not required because, inter alia, there was "no evidence presented at trial suggesting that the defendant, when he grabbed the victim's arm, was in the process of committing another crime against her to which the restraint was incidental."].

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Chapter 93: Kidnapping, False Imprisonment, Abduction, Etc.
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F 9.50 n1 - Kidnapping: Error To Instruct That Asportation Of 500 Feet Is Substantial (PC 207)
F 9.50 n2 - Kidnapping: “Substantial Distance” Requirement: Consideration Of Factors Other Than Distance Of The Asportation (PC 207)
F 9.50 n6 - “Substantial Distance” Unconstitutionally Vague
F 9.50b - Kidnapping: Definition Of “Distance That Is Substantial In Character” (PC 207 & PC 209)F 9.50e Simple Kidnapping: Movement Incidental To Associated Crime Insufficient
F 9.50f - Jury Must Find That Movement Was For More Than A Very Short Distance Before Considering Other Factors
F 1200.4 Inst 2 (a – b) - Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location
F 1203 Note 8 - Kidnapping To Commit Robbery: Substantial Vs. Incidental Movement (PC 209)
F 1204 Note 9 - Kidnapping For Carjacking: No Requirement That Movement "Substantially" Increase The Risk Of Harm To The Victim
F 1215.5 Inst 4 - Simple Kidnapping: Movement Incidental To Associated Crime Insufficient
F 1215.5 Inst 5 - Jury Must Find That Movement Was For More Than A Very Short Distance Before Considering Other Factors
F 1215.5 Inst 6 - Substantial Distance For Kidnapping: Juror Not Required To Consider Contextual Factors

Intent Or Scienter Element May Cure Statutory Vagueness

Substantial vagueness jurisprudence provides that when a criminal statute is imprecise in describing the actions it proscribes, the presence of a specific intent requirement can temper that imprecision, thus clarifying the meaning of the statute, narrowing its application, and "purg[ing] a potentially vague [provision] of constitutional infirmity." State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988). "[A] scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the [party] that his conduct is proscribed." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982); see also United States v. National Dairy Products Corp., 372 U.S. 29, 35, 83 S. Ct. 594, 9 L. Ed. 2d 561 (necessary specificity of warning afforded when statutory elements include both intent to achieve result and act done in furtherance of that result), reh. denied, 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963). In short, "where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law." Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); see also Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S. Ct. 329, 96 L. Ed. 367 (1952) ["requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of [a statute] would be so unfair that it must be held invalid"].

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252.9 - Mistake Of Law
300.13 - Vagueness And Overbreadth
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PG VII(C)(25) - Substantive Federal Constitutional Issues: Vagueness And Overbreadth. Vagueness

When Are Instructions Sufficient To Cure The Prosecution’s Argument That The Defendant Will Not Go To Prison If Found Insane? (6th Circuit)

In Gall v. Parker, 231 F.3d 265, 311-312 (6th Cir. 2000) the 6th Circuit granted habeas relief because the prosecutor’s closing argument “comprised part of a broader strategy of improperly attacking Gall's insanity defense by criticizing the very use of the defense itself, rather than addressing its evidentiary merits head on." Gall, 231 F.3d at 313. The court noted that "[c]ourts have long castigated prosecutors when their efforts to rebut an insanity defense constitute no more than an attack on the rationale and purpose of the insanity defense itself." Id. In reaching its conclusion that the prosecutor's remarks violated due process, the Gall court recognized that, in a case raising the insanity defense, a prosecutor is entitled to vigorously attack the defense. However, because ours is a system of law, the arsenal available to a prosecutor to achieve that legitimate goal is limited to arguments rooted in properly introduced evidence and testimony rather than words and tactics designed to inflame passions, air unsubstantiated prosecutorial beliefs, and downplay the legitimacy of a legally recognized defense. Id. at 316; compare Lautner v. Berghuis, (W.D. Mich., Case No. 1:07-cv-142, Feb. 16, 2010) [denying habeas relief where prosecutor did not directly comment to the jury that Petitioner would be released if he was found not guilty of reason of insanity].

The Lautner decision also noted that the jurors were presumed to follow the instructions that the lawyers questions are not evidence and that possible penalties should not influence its decision.  (Apparently these instructions were not given in Gall.)

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256.4 - Insanity
272.5 - Summation/Closing Argument: Prosecutor Misconduct -- Curative Instructions

Practice Idea: Submission Of Defense Theory Instruction Under Seal To Avoid Tipping Hand To Prosecution

United States v. Robinson, N.D. Ind., No. 2:09-CR-169, Feb. 18 2010) suggested a procedure by which the defense may submit a theory of the case instruction without prematurely revealing their strategy to the prosecution: “Normally [a defense theory] instruction would be tendered before this Court conducts its final jury instruction conference, under seal if the defense does not want the Government to see its theory of defense before the end of the evidence.”

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Chapter 250: Defenses And Defense Theories: General Issues
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PG VII(C)(14) - Denial Of Instruction And Argument On Defense Theory As Violation Of Rights To Trial By Jury, Due Process, Counsel, Compulsory Process, And Confrontation

Sample Instruction: Self-Defense In Resisting Arrest (18 USC 111) Prosecution

In regard to the crime of forcibly assaulting, or resisting, or opposing, or impeding, or intimidating, or interfering with a federal officer or employee as alleged in Count One of the indictment, the Defendant asserts that he was acting in self-defense. If the Defendant did not know the official status of the person forcibly assaulted, or resisted, or opposed, or impeded, or intimidated, or interfered with, and if the Defendant honestly believed that he was being attacked, the Defendant would be allowed to use reasonable force to defend himself. The Defendant, however, may not use more force than is necessary to defend himself.

The Government may answer this defense and sustain its burden of proof for the crime of forcibly assaulting, or resisting, or opposing, or impeding, or intimidating, or interfering with a federal officer or employee, if, in addition to proving the five essential elements of the offense charged as previously given to you, the Government also proves, beyond a reasonable doubt, one of the following two propositions:

One, at the time of the conduct charged in Count One of the indictment, the Defendant actually knew that the individual identified in the indictment as a federal officer or employee was a government officer or employee, or

Two, the force used by the Defendant was excessive and would not have been justified even if the person identified in the indictment as a federal official or employee was a private citizen and not a federal officer or employee.

The Government must prove beyond a reasonable doubt that the defendant did not act in lawful self-defense.

Source: United States v. Rodriguez-Rodriguez, (D.P.R.,CRIMINAL NO. 09-269 (FAB), Feb. 19, 2010).

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77.4.3 - Assaults On Law Enforcement Officer, Custodial Officer Or Firefighter: Defenses And Defense
99.3 - Resisting Arrest: Defenses And Defense Theories
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F 9.81 - Resisting Arrest
F 16.102 - Misdemeanor Resisting Arrest
F 16.102c - Misdemeanor Resisting Arrest: Excessive Force And Right Of Self-Defense

Sample Instruction: Good Faith (6th Circuit)

The government must prove that the defendant knew that the law placed a duty on [him] [her] and that [he] [she] voluntarily and intentionally violated that duty.

Source: Adapted from instruction given and approved in United States v. Salisbury, 2010 U.S. App. Lexis 2945, 12-13 (6th Cir. Ky. 2010) [NOTICE: This opinion is UNPUBLISHED].

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252.10.2 - Good Faith
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11. Defense Theory: Good Faith

Is Judge’s Six Minute Absence From The Bench During Defense Counsel’s Closing Argument Structural Error? (10th Circuit)

In United States v. Solon [excerpt after the jump] the 10th Circuit concluded that the judge’s 6-minute absence was not reversible error.

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300.24 Right To Presence Of Trial Judge

Public Authority Defense Based On Mistake (9th Circuit)

United States v. Griffin [UNPUBLISHED] [excerpt after the jump] concluded that “even if by mistake” did not need to be added to the 9th Circuit’s model instruction on the Public Authority Defense.

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252.10.1.1 - Defense Theory: Defendant's Belief That He Or She Was Acting As Agent Of Law Enforcement In Performance Of Legitimate Law Enforcement Activities
252.8 - Mistake Of Fact
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18. Defense Theory: Reasonable Reliance On Authority
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F 3305 Inst 2 - Equitable Estoppel/Entrapment By Estoppel/Public Authority/Government Authorization

Malice Based On Aider And Abettor’s Knowledge That The Perpetrator Is Armed (Michigan)

Michigan law provides that "malice can be inferred from the aider and abettor's knowledge that his cohort possesses a weapon." Hill v. Hofbauer, 337 F.3d 706, 720 (6th Cir. 2003) [remanded on issue of aider's knowledge that principal was armed]; Brown v. Jackson, ( E.D. Mich. Sept. 25, 2009) [defendant aided and abetted second-degree murder by planning robbery, coordinating movements with accomplice] ["the jury could infer from this careful planning that [the accomplice's] use of a gun was not an unforeseen circumstance"]; McGuire v. Ludwick, (E.D. Mich. Aug. 11, 2009) [defendant aided and abetted felony murder, which also requires malice, by driving brother to a neighborhood and waiting in the car with knowledge that his brother had a weapon]; Daniels v. McKee, (W.D. Mich. July 29, 2009) [defendant aided and abetted felony murder by participating in robbery of drug house during which the principal threatened victims with firearm and then held victims at gunpoint]; see also People v. Turner, 213 Mich. App. 558, 540 N.W.2d 728, 733 (Mich. Ct. App. 1995) ["Turner's knowledge that [his accomplice] was armed during the commission of the armed robbery is enough for a rational trier of fact to find that Turner, as an aider and abetter, participated in the crime. . . . [B]ecause Turner knew of [his accomplice's] intent to cause great bodily harm, a rational trier of fact could find that Turner was acting with 'wanton and willful disregard' sufficient to support a finding of malice."]; People v. Carines, 460 Mich. 750, 597 N.W.2d 130,  137 (Mich. 1999) ["Defendant participated in a robbery involving the use of a knife, acting in wanton and willful disregard of the possibility that death or great bodily harm would result."].

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64.1.6 - Accomplice Liability: Liability For Use Of Weapon Requires Knowledge That Perpetrator Would Use A Weapon
The Shellow Instructions
Aiding And Abetting
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F 3.01 - Aiding and Abetting
F 3.02 - Aider and Abettor Liability
Calcrim 400 - Aiding And Abetting, Inchoate, And Accessorial Crimes

Other Crimes Evidence: Limiting Instruction Required If Requested

If 404(b) evidence is admitted, the court must, if requested, provide a limiting instruction to the jury. See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988); see also United States v. Bloom, [Notice: This opinion is UNPUBLISHED] (2d Cir. Conn., No. 08-2199-cr, Feb. 19, 2010).

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26.5.3 Uncharged Acts: Limiting Instructions
The Shellow Instructions
Defendant's Prior Convictions
Limited Purpose Evidence: Uncharged Offenses And Acts

Definition Of “Purpose” Under 28 USC 856(a): Maintaining A Drug-Involved Premises

U.S. v. Russell [excerpt after the jump] concluded that the district court properly instructed the jury that the government could show that [defendant] maintained a place "for the purpose of" distributing drugs if the "drug distribution was a significant or important reason for which the defendant rented or used his apartment."

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88.8 - Controlled Substances: Maintaining A "Drug House" -- A Place Where Controlled Substances Are Sold Or Kept
The Shellow Instructions
Drugs, Controlled Substances
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F 12.02 n3 - Sale Of Drugs:  Opening Or Maintaining An Unlawful Place To Sell Drugs (HS 11366)
F 12.08a - Opening Or Maintaining Unlawful Place (HS 11366)
F 2440 - Maintaining A Place For Controlled Substance Sale Or Use (HS 11366)

Determining Aider And Abettor’s State Of Mind (Michigan)

An aider and abettor's state of mind may be inferred from all the facts and circumstances of the crime. People v. Turner, 213 Mich. App. 558, 540 N.W.2d 728, 734 (Mich. Ct. App. 1995). Factors that may be considered include a close association between the defendant and the perpetrator, the defendant's participation in the planning or execution of the crime, and evidence of flight after the crime. Id.

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64.1 - Accomplice Liability: Intent And Knowledge Elements
64.6.1 - Conviction Of Accomplice For Lesser Offense Than Perpetrator
64.1.5 - Accomplice Liability: Negation Of Knowledge Or Intent By Mental Impairment And/Or Voluntary Intoxication
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Aiding And Abetting
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F 3.01 - Aiding and Abetting
F 3.02 - Aider and Abettor Liability
Calcrim 400 Aiding And Abetting, Inchoate, And Accessorial Crimes