Sample Instruction: Mutual Combat – Gunfire Killing Innocent Bystander (Iowa)

If you find that either of the defendants were voluntarily engaged in mutual combat by shooting guns at each other and that, by exchanging gunfire, they jointly created a zone of danger likely to result in the death or injury of innocent bystanders, then you may also find that each of the combatants, including  the defendant, aided and abetted each of the other combatants and it makes no difference which of the combatants fired the first shot or which of the combatants fired the shot which struck and killed ________ <insert name of victim>.

Source: Adapted from instruction given in State v. Spates, 779 N.W.2d 770, 776-781 (Iowa, No. 05-0883, March 19, 2010) in light of criticism articulated in Footnote 6 of the Spates opinion.

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92.7.2.3 - Mutual Combat As Defense Theory To Negate Malice
253.5 - Mutual Combat And Self Defense
Forecite California™
F 5.56 - Mutual Combat
F 3471 - Right to Self-Defense: Mutual Combat Or Initial Aggressor

Inconsistent Verdicts (Iowa)

Iowa courts follow the United States Supreme Court rule regarding inconsistent verdicts which holds that a criminal defendant "may not challenge a conviction on one count of a multiple count indictment solely because it may be inconsistent with an acquittal by the jury on another count." State v. Hernandez, 538 N.W.2d 884, 889 (Iowa Ct. App. 1995) (citing Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 359 (1932)). "[I]nconsistent verdicts on multiple counts in the same trial do not ordinarily taint the validity of a verdict of guilt." State v. Fintel, 689 N.W.2d 95, 100 (Iowa 2004) (citing State v. Pearson, 547 N.W.2d 236, 241 (Iowa Ct. App. 1996) ). "Such inconsistencies may result from the jury's exercise of its power of leniency." Id. at 101. The jury may just have been reluctant to "pile-on."

However, an inconsistent verdict may be reviewed if it is "so logically and legally inconsistent as to be irreconcilable within the context of the case." State v. Fintel, 689 N.W.2d at 101. For example, "[t]he rule dispensing with the necessity of consistency does not necessarily apply where there are multiple convictions, without an acquittal, of mutually exclusive offenses." State v. Pearson, 547 N.W.2d at 241 (citing United States v. Powell, 469 U.S. 57, 69 n.8, 105 S. Ct. 471, 479 n.8, 83 L. Ed. 2d 461, 471 n.8 (1984)).

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297.6 - Inconsistent Verdicts
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PG X(H) - Inconsistent Verdicts
F 3515.1 Note 1 - Multiple Counts: Inconsistent Verdicts

Joint Or Nonexclusive Possession: Factors To Consider

The defendant’s joint or nonexclusive possession of the premises/vehicle in which contraband is found should not be sufficient, without more, to convict the defendant for possessing the contraband. See e.g., Broussard v. Johnson (5th Cir. 2001) 253 F3d 874, 877 [presence of bolt cutters in area in which inmate-defendant worked and to which other inmates had access was insufficient to constitute "some evidence" of guilt]; Arellanes v. U.S. (9th Cir. 1962) 302 F2d 603 [wife held not to have exercised dominion and control over husband's drugs in the couple's bedroom drawer].

Some of the factors which may bear on the issue are set forth in the Kansas Model Instruction. See State v. Riggins, 225 P.3d 1212 (Kan. Ct. App., No. 101,520,  March 19, 2010). These factors include the defendant’s prior use or sale of controlled substances, the defendant’s incriminating statements or suspicious behavior, the defendant’s proximity to the contraband, and whether or not the contraband was in plain view.

Sample Instruction Without Specific Factors:
 
Joint possession is not proved merely when the property is found on premises owned or occupied by others as well as the defendant, or in a place where others had equal opportunity or right of access.  To prove joint possession, evidence above and beyond joint access must be presented which proves beyond a reasonable doubt that the defendant had knowing possession of the object.

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56.2.4 - Possession: Access Alone Not Sufficient
56.2.5 - Possession: Ownership Or Occupancy Not Sufficient
56.2.6 - Possession: Joint Access Insufficient
56.2.7 - Possession: Premises Shared By More Than One Person
56.2.8 - Possession: Passenger In Vehicle Not Sufficient
56.2.13 - Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband
The Shellow Instructions
Possession Defined: Power And Authority
Possession Defined: Ownership Is Not Possession
Mere Presence Of Controlled Substance Is Not Possession
Mere Ownership Of Property Does Not Establish Possession
Mere Proximity Or Accessibility To Controlled Substance Is Not Possession
Residency Does Not Establish Possession
Knowledge Of And Proximity To Drug Insufficient To Support Finding Of Possession Without Power To Exercise Dominion And Control
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F 1.24 - Possession
F 3306 Inst 1 (a & b) - Possession: Immediate And Knowing Control Required
F 3306 Inst 2 (a-e) - Possession: Access Alone Not Sufficient
F 3306 Inst 3 - Mere Presence Not Sufficient For Possession
F 3306 Inst 4 - Mere Presence In Vehicle Not Sufficient For Possession
F 3306 Inst 5 - Constructive Possession: Premises Shared By More Than One Person
F 3306 Inst 6 - Possession: Ownership Or Occupancy Not Sufficient
F 3306 Inst 7 - Possession: Passenger In Vehicle Not Sufficient
F 3306 Inst 10 - Possession: Definition Of Control

Practice Tip: Written Versus Oral Instructions (Texas)

Petroski v. State, (Tex. App. Houston 14th Dist., No. 14-09-00153-CR, Mar. 9, 2010) [NOTICE: This opinion is UNPUBLISHED.] a Texas DWI case, illustrates why it is important for counsel to follow along to assure that the judge's oral reading of the instructions is correct. Petroski’s judge made a substantive error in defining the critical element of intoxication.  However, counsel did not discover the error until after the jurors had already found Petroski guilty.  The judge resubmitted the matter to the jurors with a correct charge but the damage had already been done and the jury again convicted Petroski.  Nor did the appellate court grant relief based on the judge’s error.  Moreover, even if the matter had not been resubmitted to the jurors the chances of obtaining relief on appeal would have been slim.  In such situations appellate courts tend to simply defer to the correct written instruction in finding any error in the oral instructions to be harmless. 

Accordingly, the better practice would be to catch and correct errors in the oral rendition when they happen – unless, of course, counsel does not think the error is prejudicial.

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2.1 - Instruction Delivery: Written/Oral/Recorded
2.2 - Sanitizing The Written Instructions
2.5 - Record Of Instruction Proceedings
276.1.1 - Deliberations: Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
297.2.11 - Prejudice On Appeal: Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
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PG V(G) - Written Instructions to the Jury
PG V(I)(B) - Variance Between Reporter’s Transcript And Written Instructions
PG X(E)(9) - Correct Oral Instruction Does Not Cure Erroneous Or Incomplete Written Instruction
F 1.00m - Reference To Availability Of Written Instructions Should Be Made At The End Of The Instructions
F 200.1.2 - Availability Of Written Instructions

Sample Instruction: Defendant Has No Obligation To Prove Or Explain Anything (Indiana)

The burden is upon the State to prove beyond a reasonable doubt that the defendant is guilty of the crimes charged. Since the Defendant is presumed to be innocent, he is not required to present any evidence to prove his innocence, or to prove or explain anything.

Source: Preliminary instruction given and approved in Jackson-Bey v. State, 2010 Ind. App. Unpub. LEXIS 354, 8 (Ind. Ct. App., No. 45A03-0908-CR-365, Mar. 15, 2010) [NOTICE: This opinion is UNPUBLISHED.]

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270.2 - Presumption Of Innocence - Prosecution Burden To Prove Guilt
270.3.4 -  Improper To State That Defendant Must "Raise" Or "Create" Reasonable Doubt
The Shellow Instructions
Defense Theory Instruction: Prosecution's Burden Of Proof
Forecite California™
F 2.90d - Duty To Presume Defendant Innocent: No Necessity For Defendant To Produce Evidence
F 350 Inst 2 - Use Of The Phrase "Create A Reasonable Doubt" Erroneously Implies A Defense Burden

Sexually Violent Predator: Washington’s Supreme Court Holds That The Term “Personality Disorder” Should Be Defined

In Washington a person may be incarcerated as a “Sexually Violent Predator” if the state proves that the person suffers from either a mental abnormality or a personality disorder. In re Det. of Pouncy, 168 Wn.2d 382, 388-398 (Wash., No. 81769-3, March 11, 2010) held that the judge’s refusal of counsel’s instruction defining “personality disorder” was reversible error because “personality disorder” is a technical legal term.  (But see concurring opinion [technical term rule only requires definition where an authoritative legal source provides a technical definition].)  At the time the term was not defined by the statute.  However, the statute has since been amended to include the following definition:

“Personality disorder” means an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has onset in adolescence or early adulthood, is stable over time and leads to distress or impairment.

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3.2.6 - Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms
102.4 - Sexually Violent Predator: Miscellaneous Issues
102.5 - Sexually Violent Predator: Defenses And Defense Theories
256.7 - Mental, Medical Or Physical Impairment Of Defendant
296.2.2.4 - Standard Of Prejudice On Appeal: Failure To Define A Technical Term
The Shellow Instructions
Defendant's Mental Condition
Forecite California™
PG V(A)(8) - Terms With Specialized/Technical Meaning:  Sua Sponte Duty to Define
F 3.32 - Mental Disease Or Defect
F 4.19g - Sexually Violent Predator: Definition Of Mental Disorder -- Requirement Of Serious Difficulty In Controlling Behavior
 F 101.5 Inst 1 (a-c) - Jurors Are Not Walking Dictionaries

Sample Instruction: Limiting Instruction When Witness Refuses To Answer Certain Questions (Indiana)

______________ <insert name of witness> has refused to answer additional questions. Thereafter, the Court conducted a proceeding relative to that. You are not to infer, speculate, or in any other way try to make a determination as to what Mr./Ms. ______________ <insert name of witness> would have testified to had he/she continued to give testimony. You're only to consider what was testified to in open court.

Source: Approved in Jackson-Bey v. State, 2010 Ind. App. Unpub. LEXIS 354, 5 (Ind. Ct. App., No. 45A03-0908-CR-365, Mar. 15, 2010)* [NOTICE: This opinion is UNPUBLISHED.]

*NOTE: If the prosecutor discussed the expected testimony of the witness in the opening statement counsel may wish to add a sentence admonishing the jurors to disregard that portion of the opening statement.

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25.16 - Exercise Of Privilege By Witness
The Shellow Instructions
Witness Claiming Privilege: Inference
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F 2.25 - Exercising Privilege
F 2.26 - Exercise of Privilege
F 2.25a - Cautionary Instruction When Witness Exercises Privilege Outside Of The Presence Of The Jury
F 320 - Exercise Of Privilege By Witness

Sample Instruction: Felony Harassment – “True Threat” (Washington)

A “true threat” is a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life’ of another person.

Source: State v. Jako, (Wash. Ct. App., No. 62579-9-I,  Mar. 8, 2010)  [NOTICE: This opinion is UNPUBLISHED]; see also State v. Tellez, 141 Wn. App. 479, 482, 170 P.3d 75 (2007) (quoting State v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001)).

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77.14 - Terrorist Threats
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F 9.94 - Criminal Threats
SERIES 1300 - CRIMINAL THREATS

Sample Instruction: Self Defense – Multiple Aggressor (Kentucky)

In Kentucky a defendant is entitled to a multiple aggressor instruction when there is evidence that more than one aggressor acted in concert with each other against the defendant.  See Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993) [NOTICE: This opinion is UNPUBLISHED.] ["It is the holding of this Court that the question of self-protection against multiple aggressors acting in concert, when supported by sufficient evidence, should be given to the jury."]; see also Griffin v. Commonwealth, 204 Ky. 783, 265 S.W. 327, 330 (1924) ["It is thoroughly established that, where several are acting in concert in attacking another, he may base his defense for injuring any one of them upon reasonably apprehended danger from the others."].

Sample Multiple Aggressors Instruction:

SAMPLE INSTRUCTION # 1:

A person who is attacked by more than one person [or by one person and others helping and encouraging the attacker] has the right to act in self defense against all of them. [However, before using deadly force against one of the attackers, the person must honestly and reasonably believe that he or she is in danger of being [killed] [seriously injured] [forcibly sexually assaulted] by that particular person.]

Source: See generally People v. Johnson (MI 1982) 316 NW2d 247, 249

SAMPLE INSTRUCTION # 2:
 
A person has the right to defend [himself] [herself] from what [he] [she] reasonably believed to be the use or imminent use of unlawful physical force by the victim or those whom the defendant reasonably believed were acting in concert with the victim.

Source: See People v. Auldridge (CO 1986) 724 P2d 87, 88.

SAMPLE INSTRUCTION # 3:
 
If the defendant [believed that ___________ <name of alleged victim>, or others acting in concert with [him] [her] was then and there about to use] [believed there was an impending danger that ___________ <name of alleged victim>, or others acting in concert with [him] [her], would use,] physical force upon [him] [her], the defendant was permitted to lawfully use such physical force against ________________ <name of alleged victim> and those acting in concert with [him] [her] as the defendant believed necessary to protect [himself] [herself].

Source: See generally People v. Johnson (MI 1982) 316 NW2d 247, 249; Alaniz v. State (TX 1993) 865 SW2d 529, 532-33; State v. Green (WV 1974) 206 SE2d 923, 926

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253.4.11.13 - Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants
253.4.13.1 - Self Defense: Reasonable Person Standard -- Right To Defend Against Multiple Assailants Acting In Concert
253.4.13.2 - Self Defense: Reasonable Person Standard -- Consideration Of The Number Of Assailants
Forecite California™
F 5.51 - Self-Defense
F 5.12g - Antecedent Threats By A Third Party Or Group Justify Quicker And Harsher  Measures In Self-Defense

Conflicting Decisions Regarding Propriety Of Instruction Telling Jurors To Consider The Defendant’s Interest In The Outcome Of The Trial

A.  State cases disapproving interest-in-outcome instructions: People v. Boren, 139 Cal. 210, 215, 72 P. 899 (1903); Alder v. State, 239 Ind. 68, 70-73, 154 N.E.2d 716 (1958); State v. Bester, 167 N.W.2d 705, 708 (Iowa 1969); State v. De Vries, 13 Kan. App. 2d 609, 617-19, 780 P.2d 1118 (1989); State v. Carroll, 134 LA. 965, 967-71, 64 So. 868 (1914); Sumrall v. State, 343 So. 2d 481, 482 (Miss. 1977); Donner v. State, 72 Neb. 263, 269, 100 N.W. 305 (1904); Fletcher v. State, 2 Okla. Crim. 300, 322-23, 101 P. 599 (1909).

B.  State cases approving instructions:  Bell v. State, 284 Ga. 790, 794-95, 671 S.E.2d 815 (2009); People v. Barney, 176 Ill. 2d 69, 74, 678 N.E.2d 1038, 223 Ill. Dec. 30 (1997); State v. Barry, 495 A.2d 825, 827 (Me. 1985); State v. Thompson, 293 N.C. 713, 719, 239 S.E.2d 465 (1977); Thompson v. State, 83 Wis. 2d 134, 148, 265 N.W.2d 467 (1978); People v. Seabrooks, 135 Mich. App. 442, 453, 354 N.W.2d 374 (1984); Pennsylvania v. Frye, 272 Pa. Super. 200, 205-206, 414 A.2d 1077 (1979); State v. Smith, 100 N.J. Super. 420, 426, 242 A.2d 49 (1968);  State v. Mann, 119 Conn. App. 626, 631-645 (Conn. App. Ct., No. AC 27779, March 2, 2010).

C.  Federal decisions disapproving instructions:  United States v. Gaines, 457 F.3d 238, 248 (2d Cir. 2006);  United States v. Dwyer, 843 F.2d 60, 63 (1st Cir. 1988); United States v. Rollins, 784 F.2d 35, 37 (1st Cir. 1986).

D. Federal decisions approving instructions: Reagan v. United States, 157 U.S. 301 (U.S. 1895) approved an instruction that defendant's deep personal interest in outcome should be considered in determining his credibility.  However, Reagan addressed this issue in the context of a defendant's right to testify, which at the time was not a constitutional right but a statutory right of then recent vintage. See id., 304.  More recently, federal courts have evaluated challenges to such instructions against the backdrop of the presumption of innocence. See United States v. Gaines, supra, 245; United States v. Dwyer, supra, 64 ("[i]t is hardly consistent for the court to charge the jury as to the presumption of innocence and at the same time indicate doubts about defendant's credibility"). Nevertheless, in Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000), n6 the United States Supreme Court reiterated its finding in Reagan, decided more than one century prior: "[T]his Court has approved of such generic comment before. In Reagan . . . the trial court instructed the jury that [t]he deep personal interest which [the defendant] may have in the result of the suit should be considered . . . in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit. . . . [I]t simply set forth a consideration the jury was to have in mind when assessing the defendant's credibility . . . . What Reagan permitted . . . is in a long tradition that continues to the present day."   [Footnote omitted.] (Citations omitted; internal quotation marks omitted.) Id., 70-73; see also United States v. Jones, 587 F.2d 802, 806 (5th Cir. 1979); United States v. Hill, 470 F.2d 361, 365, 152 U.S. App. D.C. 213 (D.C. Cir. 1972); State v. Bennett, supra, 172 Conn. 336 (approvingly citing Reagan in holding as proper court's instructions that the jury consider defendant's interest in outcome of case when assessing credibility of his testimony).

In United States v. Gonsalves, 435 F.3d 64 (1st Cir. 2006), the First Circuit also referenced Reagan. It stated: "In the past this court has held that certain instructions in this vein--but more egregiously phrased--amounted to error. . . . The caution is still good law in this circuit but cannot be pressed too far. Indeed, in Reagan . . . cited with approval in Portuondo . . . the Supreme Court expressly approved an instruction calling attention to the testifying defendant's interest in the outcome.

In Gonsalves the reference to the defendant's interest was no different than the instruction given in Reagan or standard instructions used elsewhere. It was immediately followed by the warning that "[y]ou should not disregard or disbelieve [Gonsalves'] testimony simply because he is charged as a defendant in this case." The reviewing court declinded to extend Dwyer beyond its present reach." (Citations omitted; internal quotation marks omitted.) Id., 72.

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18.5.1 - Credibility Of Defendant's Testimony: Relying On Defendant’s Interest In The Outcome Of The Trial

Duty Of Court To Instruct On Every Theory Reasonably Deducible From The Evidence (Kentucky)

In Kentucky it is well-established that "[a] trial court is required to instruct the jury on every theory of the case that is reasonably deducible from the evidence." Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007). In a criminal case, it is the duty of the court to prepare and give instructions on the whole law. This general rule requires instructions applicable to every state of case covered by the indictment and deducible from or supported to any extent by the testimony." Lee v. Commonwealth, 329 S.W.2d 57, 60 (Ky. 1959). Appellate courts review "a trial court's rulings regarding instructions for an abuse of discretion." Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006).

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3.2.2 - Judge Has Ultimate Responsibility And Duty To Instruct On Legal Principles Applicable To The Case
3.2.4 - Evidence Required To Trigger Court's Duty To Instruct Sua Sponte: Substantial Evidence Requirement
3.2.5 - Sua Sponte Duty To Instruct On Defense Theory Supported By Substantial Evidence
3.2.9 - Duty To Instruct On Defense Theories Sua Sponte
Chapter 250: Defenses And Defense Theories: General Issues
Forecite California™
PG V(A)(2) - Duty to Instruct on General Principles, Elements and Theories
PG V(A)(6) - Duty To Instruct On Defenses
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.
PG X(A)(1) - Rules For Determining Whether The Evidence Justifies An Instruction

The Walking Dictionary Myth: Part 3

State v. Dickman, 119 Conn. App. 581, 590-596 (Conn. App. Ct. , No. AC 29995, March 2, 2010), a forgery case,  provides an interesting twist on the “walking dictionary myth.” 

During its deliberations, the jury asked for a dictionary. The court informed the jury that it could not have a dictionary but that if the jury had a specific question, needed a reinstruction or the definition of a specific word, the court would do its best to answer the question. A member of the jury responded asking if the word injure could be “clarified?”  After discussion with counsel the judge granted the jurors’ request and instructed the jurors, inter alia, as follows: "All right, in response to your question as to the definition of injury, injury with respect to the complainant or victim, here, of Allstate . . .  would include economic injury, physical injury or any other kind of injury to the company. I just want to bring to your attention that even though the amended, long form information says with intent to defraud, deceive and injure, if you look at my instructions to you, I do not use the conjunctive in defraud, deceive and injure. Rather, you need only find that with intent to defraud, deceive or injure Allstate . . . .”

On appeal the defendant contended that the judge should have sua sponte defined all three terms: defraud, deceive and injure. 

Preliminarily, the reviewing court agreed to consider the claim even though it had not been preserved at trial because the failure to adequately define the essential elements of the charged offense is an error of “constitutional magnitude.”  State v. Dickman, 119 Conn. App. at 593, citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) and State v. Anderson, 212 Conn. 31, 36, 561 A.2d 897 (1989).

On the merits the reviewing court differentiated between terms for which the jurors seek clarification and those for which it did not.  Thus, because the jury asked for a definition of “injure” the judge correctly defined the term even though its standard dictionary meaning is a matter of common knowledge.  On the other hand, the common knowledge terms about which the jurors did not seek clarification did not need to be defined sua sponte and it would be presumed – pursuant to the “walking dictionary myth” – that the jurors correctly understood the legal definition of those terms: 

“Many words have varying shades of meaning, depending on the context in which they are used, but, the question presented is whether it was reasonably possible that the jury, using its common sense and life experience, was misled by the court's instruction. We are unwilling to conclude that the jury lacked understanding of words so frequently used in common parlance.

Moreover, the defendant fails to explain how the jury was misled by the court's instruction. The jury knew how to ask for assistance if it did not know the definition of one of the words in the statute.”

Strategy Tip: The reasoning in State v. Dickman, 119 Conn. App. 581 suggests a strategy for countering the “walking dictionary myth.”  Because the correct juror understanding of “common knowledge” terms in elemental instructions is constitutionally mandated and because the judge would have an obligation to define such terms when a juror asks for clarification of the term, the defense should be permitted – either in argument or by instruction – to inform the jurors of their right to seek clarification of such terms.  For example, the jurors could be instructed as follows:

"Some of the terms used in describing the elements of the charge have not been defined.  Should there be a disagreement among you as to the meaning of any such term or if any juror wants the meaning of a term to be clarified you may send out a note requesting such clarification."

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3.2.6 - Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms
Forecite California™
PG X(C)(8) - Failure To Define A Technical Term As Reversible Error
PG V(A)(8) - Terms With Specialized/Technical Meaning:  Sua Sponte Duty to Define
F 101.9 Inst 1 - Walking Dictionary Myth
CCA-003 - The "Walking Dictionary" Myth

Georgia Court Holds That Multiple Injuries Do Not Support Multiple Assault Convictions

In Mikell v. State, 286 Ga. 722, 722-725 (Ga., S10A0567, March 15, 2010) the medical examiner testified that the 49 knife wounds to the victim "had to have been inflicted relatively quickly" and "could have been produced inside of a minute." As in Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009), there was no evidence to establish a "deliberate interval" in the series of wounds.  The reviewing court observed that “each influctionof injury does not constitute a separate assault. [Ciation.]” 

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101.1.5.11 - Rape/Sex Crimes: Defense Theory That Multiple Penetrations Were Not Separate Offenses
Chapter 274 [Propriety Of Instruction On Multiple Counts Or Offenses Based On A Single Act Or Course Of Conduct (Multiplicity)]

Kidnapping: Jury Must Determine Whether Movement Was “Merely Incidental To And Necessary For” The Commission Of Another Crime Against The Victim (Connecticut)

The Connecticut Supreme Court reversed two kidnapping convictions for failure to instruct the jurors [per State v. Salamon, 287 Conn. 509 (Conn. 2008)] that kidnapping does not apply to movement which is “merely incidental to and necessary for” the commission of another crime against the victim. State v. Sanseverino, 287 Conn. 608, 612, 949 A.2d 1156 (2008); State v. DeJesus, 288 Conn. 418, 426, 953 A.2d 45 (2008).

Practice Tip: Even though Sanseverino and DeJesus predated Salamon the Salamon rule was applied retroactively because Sanseverino and DeJesus were still on appeal.  Thus, these cases show that judge’s who wish to avoid reversals on appeal should seriously consider modifications to the pattern instructions even if there is no direct on-point authority at the time of the trial.

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93.2.3.1 - Kidnapping For Purposes Of Robbery Or Sexual Offenses: Defense Theory That Movement Or Restraint Was Incidental
93.2.3.2 - Aggravated Kidnapping: Defense Theory That Movement Or Restraint Was Incidental -- Relevant Factors
Forecite California™
F 9.52.1 n4  - Kidnapping To Commit Sex Offense:  Substantial Distance Requirement For Simple Kidnapping Must Be Established
F 9.52.1a - Kidnap To Commit Sex Crime:  Non-Incidental Movement As Distinct Element
F 9.54d - Aggravated Kidnapping: Requirement That Movement Not Be Incidental To The Intended Crime
F 1203 Note 4 - Kidnapping To Commit Sex Offense: Substantial Distance Requirement For Simple Kidnapping Must Be Established
F 1203.5 Inst 7 (a – b) - Substantial Movement And Increased Danger Elements May Not Be Inferred Solely From Movement Of Victim To More Secluded Location

Instructions Should Be Tailored To The Precise Charge (Florida)

In Farinacci v. State, 29 So. 3d 1212, 1216-17 (Fla. Dist. Ct. App. 4th Dist.,  No. 4D08-2336, March 17, 2010) the instructions “did not focus on the critical dispute: whether defendant squeezed the child's buttock. As given, it allowed the jury to find defendant guilty if he lewdly fondled the child's back. It has been held error to instruct the jury generally on molestation, and without specifying the body part lewdly touched, when the charging document and evidence specify touching specific genitalia. [Citation.]” Accordingly, the reviewing court concluded that “the State would do well to tailor its proposed instruction to the precise charge.”  Id. at 1217.

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1.3.3 - What Pattern Instructions Don't Do
5.2.7 - Reference To Specific People Or Facts
Forecite California™
PG XI(B) - Propriety Of Modified Or Tailored CALCRIM Instructions
F 253 Inst 3 - Instruction Should Be Tailored To Facts

Welfare Fraud: Claim Of Right vs. Mistake Of Fact (Hawaii)

In State v. Stenger, 122 Haw. 271 (Haw., No. 27511, March 4, 2010) the defendant was investigated for welfare fraud based on her failure to report income and failure to report that her children were not living with her, which disqualified her from receiving public assistance. Defendant was convicted of theft in the first degree. Defendant claimed that she honestly believed she had complied with the reporting requirements. The appellate court reversed her conviction because the jury was not instructed as to the defense of claim of right. The Supreme Court of Hawai'i held that defendant was not entitled to a claim of right defense instruction because she did not argue any ownership right to the specific property that she received from the government; however, she was entitled to a mistake of fact defendant instruction. Defendant was mistaken as to certain factual matters regarding her personal situation which caused her to misreport; therefore, the jury could have found that defendant did not knowingly deceive the welfare agency. 

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98.2 - Welfare Fraud
252.5 - Claim Of Right
252.8 - Mistake Of Fact
The Shellow Instructions
Theft By Fraud Not Committed If Property Obtained Was Only Such As Accused Was Legally Entitled To Receive, Even Though It Was Obtained By Means of Falsehood
Theft By Fraud: Information And Defendant’s Response Not Evidence
Forecite California™
F 18.16 - Welfare Fraud
F 1863 - Defense To Theft Or Robbery: Claim of Right (PC 511)
F 1863 Note 8 - Claim Of Right: Overlap With Mistake Of Fact

No Instruction On Defense Burden Of Production (Colorado)

In Colorado the question of whether the defense has produced “some credible evidence” to support an instruction on an affirmative defense is “a question of law for the trial court.”  People v. Reynolds, (Colo. Ct. App.,  No. 08CA0397, Mar. 18, 2010)  Hence, it would be improper to instruct the jurors on the defendant’s burden of production. 

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

Forecite National™
250.4 - Defenses And Defense Theories: Burden Of Proof On Prosecution
250.5 - Defenses And Defense Theories: Burden Of Proof On Defendant
The Shellow Instructions
Defense Theory Instruction: Prosecution's Burden Of Proof
Forecite California™
PG VII(C)(8) - Improper Shifting Of The Burden Of Proof
F 2305.2 Inst 3 - Defendant’s Burden As To Affirmative Defense Does Not Change Prosecution’s Burden To Prove All Elements Beyond A Reasonable Doubt

Prosecutor’s Closing Argument Which Diminished The Burden Of Proof Was Fundamental Error (Idaho)

In State v. Erickson, 227 P.3d 933, 940 (Idaho Ct. App., No. 35436, 2010 Opinion No. 14, March 1, 2010) the reviewing court held that the prosecutor committed misconduct amounting to fundamental error in closing argument because his argument urged the jury to apply a diminished burden of proof. Closing argument is an opportunity for the attorneys on each side to clarify the issues that must be resolved by the jury; to review the evidence and discuss, from the parties' respective standpoints, the inferences that jurors should draw therefrom; and to discuss the law set forth in the jury instructions as it applies to the trial evidence. State v. Beebe, 145 Idaho 570, 576, 181 P.3d 496, 502 (Ct. App. 2007). "Urgings, explicit or implied, for the jury to render a verdict based on factors other than the evidence admitted at trial and the law contained in the jury instructions have no place in closing arguments." Id. Misconduct may occur by the prosecutor diminishing or distorting the State's burden to prove the defendant's guilt beyond a reasonable doubt. State v. Raudebaugh, 124 Idaho 758, 769, 864 P.2d 596, 607 (1993); State v. Phillips, 144 Idaho 82, 86, 156 P.3d 583, 587 (Ct. App. 2007).

The requirement that the State prove every element of a crime beyond a reasonable doubt is grounded in the constitutional guarantee of due process. Jackson v. Virginia, 443 U.S. 307, 309, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Mubita, 145 Idaho 925, 942, 188 P.3d 867, 884 (2008); State v. Crowe, 135 Idaho 43, 47, 13 P.3d 1256, 1260 (Ct. App. 2000). This standard of proof "plays a vital role in the American scheme of criminal procedure" because it "provides concrete substance for the presumption of innocence--that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.'" In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (quoting Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481 (1895)). It follows that a misstatement to a jury of the State's burden rises to the level of fundamental error because it goes to the foundation of the case and would take away from a defendant a right essential to his or her defense. Raudebaugh, 124 Idaho at 769, 864 P.2d at 607.

In Erickson the prosecutor made the following statements near the conclusion of his rebuttal closing argument: “You set the standard for law enforcement. We look at these cases very carefully. What is the standard in Bear Lake County by a jury on what they're going to accept as proof of child molestation? That's all it's about.”

“And if you're saying Mr. Helm, [L.H.], [C.E.], Officer Martinez, it's just not there, I've got to have more than this, we understand that, but there is also a downside to it. I can't bring you the perfect case. There will always be the possibility there. I bring you two people molested by their father at pretty much the same age. One gives credibility to the other. One collaborates [sic] the other. The pattern is similar. You as a juror are saying I don't believe either one of them.”

“Ladies and gentlemen, I tell you this is proof beyond a reasonable doubt. Justice demands that this father, this defendant, be convicted.”

That the jury should "set the standard" for the prosecutor and law enforcement in Bear Lake County "on what [a jury is] going to accept as proof of child molestation," invited the jury to create its own standard of proof instead of applying the reasonable doubt standard stated in its jury instructions. By stating "there is a downside" to finding the defendant not guilty because the prosecutor could never bring a "perfect case" for child molestation crimes, the prosecutor implied that the jury should find the evidence in Erickson's case sufficient to convict because it was the best the prosecutor could do. It also implied that if the jury did not convict in this case, the standard would be such that no one accused of this type of offense could be convicted. “Because misstating the burden of proof deprives the defendant of a right essential to his defense and goes to the foundation of the case, this was fundamental error.” Id. at 940.

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

Forecite National™
272.4 - Prosecutor Misconduct During Summation/Closing Argument
272.5 - Summation/Closing Argument: Prosecutor Misconduct -- Curative Instructions
Forecite California™
PG VI(A)(1.4) - Duty To Object: Prosecutorial Misstatements Of Law
CG 11.1 - Prosecution Misconduct During Trial Or Argument As Violation Of Specific Rights

California Supreme Court Holds That Possession Of Stolen Property Instruction Should Not Be Given As To A Murder Charge

In People v. Gamache, 48 Cal. 4th 347, 374-376 (Cal., No. S052808, March 18, 2010) the judge instructed the jurors as follows:

“If you find that a defendant was in conscious possession of recently stolen property, the fact of such possession is not by itself sufficient to permit an inference that the defendants are guilty of the crime of murder, robbery, burglary, and kidnapping for robbery. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider the attributes of possession—time, place, and manner, that the defendant had an opportunity to commit the crime charged; the defendant’s conduct; his false or contradictory statements, if any; and/or other statements that he or she may have made with reference to [the] property; or a false account of how he or she acquired possession of the stolen property; or any other evidence which tends to connect the defendant with the crime charged.” [Emphasis added.]

The California Supreme Court concluded that the instruction “is inappropriate for non-theft-related crimes, and instructing that possession of stolen property may create an inference that a defendant is guilty of murder, as was done here, is error. [Citations.]” Id. at 375.

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

Forecite National™
Chapter 33: Inference From Possession Of Recently Stolen Property
Forecite California™
F 2.15 n11 - Recently Stolen Property Inference Improper In Nontheft Cases
F 2.15 n13 - Possession Of Property: Applicability To Felony Murder Special Circumstances (PC 190.2(a)(17)
F 376 Note 11 - Possession Of Property: Applicability To Felony Murder Special Circumstances (PC 190.2(a)(17)

Sample Instruction: Unexplained Possession Of Stolen Property Does Not Shift Burden Of Proof (Indiana)

You are permitted but not required to infer from the defendant's possession of the property of another that the defendant is guilty of theft only if in your judgment such an inference is warranted by the evidence as a whole. It is your exclusive province to determine whether the facts and circumstances shown by the evidence warrant the inference to be drawn by you.
The possession of the property by the defendant does not shift the burden of proof which is always on the State to prove beyond a reasonable doubt every essential element of the offense with which defendant is charged.

The defendant's possession of property belonging to another may be satisfactorily explained in the evidence independently of any testimony of the defendant personally. If [the] defendant does take the witness stand to explain his [or her] possession of the property, the weight to be attached to his [or her] explanation is exclusively for you to determine Even if defendant's possession of the property is unexplained, you cannot find [the defendant] guilty, if after consideration of all the evidence in the case, you have a reasonable doubt as to his [or her] guilt.

If under the evidence, defendant's possession of the property of another is consistent with his [or her] innocence, then the  jury should acquit the defendant unless [the state proves his or her guilt] beyond a reasonable doubt by other evidence in the case.

Source: Fortson v. State, 919 N.E.2d 1136, 1143 n.5 (Ind. 2010) (quoting State v. Kramp, 200 Mont. 383, 651 P.2d 614, 622 (Mont. 1982)).

Note: This sample instruction omits the last sentence of the Montana instruction quoted in Fortson which improperly requires the defendant’s property to be “consistent with innocence.”

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

Forecite National™
Chapter 33: Inference From Possession Of Recently Stolen Property
The Shellow Instructions
Possession Of Stolen Property
Forecite California™
F 2.15f - Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary
F 376 Inst 3 (a-c) - Possession Of Recently Stolen Property Must Be "Unexplained"
F 376 Inst 7 - Possession Of Stolen Property Not Alone Sufficient To Sustain Finding Of Theft Or Burglary

Death Penalty Based On Felony Murder: Whether Or Not The Defendant Reported The Crimes Should Not Be Considered As To A “Major Participant” Determination (Arizona)

In State v. Garcia, 226 P.3d 370 (Ariz., No. CR-07-0438-AP, March 18, 2010) the judge instructed the jurors that they could consider the defendant’s failure to report the robbery after the fact does not bear on his participation in the robbery while in progress.  The reviewing court concluded that this instruction was erroneous because the defendant’s "failure to report the robbery after the fact does not bear on his participation in the robbery while in progress." Id. at P50.

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

Forecite National™
302.2.1 - Felony Murder Death Qualifier: Reckless Indifference And Major Participant
Forecite California™
F 8.80.1a - Felony Murder Special Circumstance: Definition Of "Major Participant" 
F 8.80.1b - Definition Of Reckless Indifference Requires Knowledge That The Felony Carries A Higher Probability Of Death Than Normally Attends Such Crime  
F 703 Note 2 - "Major" Participant Special: Constitutional Challenge
F 703 Note 5 - "Major" Participant Special Circumstance: Applicable To Both Death And LWOP Cases
F 703 Note 6 - "Major" Participant Special Circumstance: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant
F 703 Note 9 - Major Participant Special: Standing By Is Insufficient
F 703 Note 10 - Felony Murder Special Circumstance: Phrase "Major Participant" Not Unconstitutionally Vague

Juror Unanimity Not Required As To Accomplice And Principal Liability (Maine)

Because accomplice and principal liability are alternate means for the commission of a single crime State v. Huy Van Nguyen, 2010 ME 14, P10-P17 (Me., No. Yor-08-247, March 2, 2010) concluded the Maine Constitution is satisfied by a unanimous finding of guilt even if the jury is not unanimous as to whether the defendant was an accomplice or principal perpetrator.

This decision comports with the United State Supreme Court’s interpretation of the federal constitution. In Schad v. Arizona, the defendant was charged with first-degree murder pursuant to Arizona state law. 501 U.S. 624, 628, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991). First-degree murder in Arizona could be proved by establishing either premeditated murder or felony murder. Id. at 630-31. The Supreme Court stated: "We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone" and held that "the Constitution did not command such a practice." Id. at 631, 645. The Court also noted that although there is a "point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end, but must be treated as differentiating what the Constitution requires to be treated as separate offenses," that point is not reached when "statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime." Id. at 633, 636.

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


Forecite National™
64.3 - Accomplice Liability: Guilt Of Perpetrator As Required Element
273.7.1.4 - Jury Unanimity: Direct Perpetrator vs. Accomplice Liability
The Shellow Instructions
Accomplices
Forecite California™
F 17.01 n3 - Juror Unanimity: Theory Versus Act

Sample Instruction: Death Penalty Predicated On Felony Murder (Arizona)

A. Factors To Consider In Deciding Whether The Defendant Was A “Major Participant” And Acted With "Reckless Indifference"

In determining whether the defendant was a "major participant" in the felony, some factors to  consider include: the degree to which the defendant participated in the planning of the felony; whether the defendant possessed a weapon or furnished weapons to any accomplice; the degree to which the defendant participated in the felony; and the scope of the defendant's knowledge of the completion of the felony.   

Source: Approved in State v. Garcia, 226 P.3d 370, 383 (Ariz., No. CR-07-0438-AP, March 18, 2010).

B. Reckless Indifference
 
A defendant acts with reckless indifference when the defendant knowingly engages in criminal activities that he's aware may likely create a grave risk of death to others. A finding of reckless indifference cannot be based solely on a finding that the defendant was present at the time of the killing or failed to render aid to the victims.   

Source: Approved in State v. Garcia, 226 P.3d 370, 383 (Ariz., No. CR-07-0438-AP, March 18, 2010).

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

Forecite National™
302.2.1 - Felony Murder Death Qualifier: Reckless Indifference And Major Participant
Forecite California™
F 8.80.1a - Felony Murder Special Circumstance: Definition Of "Major Participant" 
F 8.80.1b - Definition Of Reckless Indifference Requires Knowledge That The Felony Carries A Higher Probability Of Death Than Normally Attends Such Crime
F 703 Note 2 - "Major" Participant Special: Constitutional Challenge
F 703 Note 5 - "Major" Participant Special Circumstance: Applicable To Both Death And LWOP Cases
F 703 Note 6 - "Major" Participant Special Circumstance: Requires Subjective Appreciation Of The Life-Threatening Risk, Even If Defendant Was A Major Participant
F 703 Note 9 - Major Participant Special: Standing By Is Insufficient
F 703 Note 10 - Felony Murder Special Circumstance: Phrase "Major Participant" Not Unconstitutionally

Connecticut Courts Reverse Convictions Due To Improper Use Of The Term “Victim” In The Jury Instructions (Connecticut)

Some standard pattern instructions use the term “victim” when referring to the person against whom a crime was allegedly committed.  (See e.g., Idaho Criminal Jury Instruction, ICJI 1520 Self-Defense--Victim's Reputation ["Evidence has been admitted concerning the victim's reputation..."]; see also Florida Standard Jury Instruction in Criminal Cases No. 3.3(f); N.J.S.I. 2C: 14-3b.)  However, the better practice is to tailor the instructions so they refer to the parties by name rather than by a generic label.  One reason for doing so is illustrated by two Connecticut cases in which convictions were reversed due to the use of the term “victim” in the jury instructions.

In State v. Cortes, 84 Conn. App. 70, 72-76, 851 A.2d 1230 (2004), aff'd, 276 Conn. 241, 885 A.2d 153 (2005), the defendant and the complainant testified to two very different stories about who had  ended their previous relationship and how the complainant had actually sustained her injuries during an argument they had. Id., 73. The court concluded that the jury instructions, which referred to the complainant as "the victim," constituted reversible error because the stabbing was contested. Id., 87.

Similarly, State v. Santiago, 100 Conn. App. 236, 253, 917 A.2d 1051, cert. denied, 284 Conn. 933, 935 A.2d 152, 153 (2007) noted the “persuasive argument” that if a defendant acts in self-defense then the complainant is not a victim.

Practice Tip:  Moore v. Comm'r of Corr., 119 Conn. App. 530, 536-542 (Conn. App. Ct., No. AC 29694, March 2, 2010) held that appellate counsel was not ineffective for failing to raise the “victim” claim because the defendant’s trial predated State v. Cortes, supra, and therefore, it was a “novel” issue which counsel had no obligation to raise.  Id. at 541-52 citing Strickland v. Washington, 466 U.S. 668, 689 (U.S. 1984) for the proposition that IAC claims must be made without “the distorting effects of hindsight. . . .”  Hence, defense counsel who want to do the best possible job for their clients should not blindly rely on either the standard pattern instructions or the case law which is/was extant at the time of trial.  Instead, counsel should attempt to use foresight to identify instructional defects not yet specifically articulated in the case law.  It is the goal of Forecite California and Forecite National to assist counsel in approaching the instructions with such foresight.  Indeed, the “victim” issue has been included in both Forecite publications for over a decade.

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

Forecite National™
5.2.13 - Including Victim's Name In Pattern Instruction
6.2.10 - Improper To Use The Term “Victim” In Jury Instructions
Forecite California™
F 820.2 Inst 1 - Tailoring To Facts: Name Of Alleged Victim

Federal Embezzlement Statute Held Not To Be A Continuing Offense

The circuits which have addressed the question are split regarding whether the crime of conversion (18 USC 641, ¶ 1) is a continuing offense under Toussie v. United States, 397 U.S. 112, 115 (1970).

In United States v. Yashar, the Seventh Circuit distinguished between a course of conduct and a continuing offense, and observed that if the "statute describes an offense that by its nature continues after the elements are met, then the offense is a continuing one regardless of the nature of defendant's actions beyond that point." 166 F.3d 873, 877 (7th Cir. 1999). Yashar was concerned that "a prosecutorial decision regarding the scope of the charge would determine the running of the limitations period. In this manner, the statute of limitations, designed as a control on governmental action, would instead be defined by it." Id. at 878. The Seventh Circuit concluded that § 666, an analogous embezzlement criminal statute, did not state a continuing offense. Yashar stands against a Fourth Circuit case, United States v. Smith, which concluded that "the nature of embezzlement is such that Congress must have intended that, in some circumstances, it be treated in section 641 as a continuing offense." 373 F.3d 561, 564 (4th Cir. 2004).

United States v. Young, 694 F. Supp. 2d 25, 29 (D. Me., CR-09-140-B-W, March 15, 2010) relied on the opinion of Judge Hornby in United States v. Bundy, 2009 U.S. Dist. LEXIS 56466, at 25 (D. Me., No. 08-196-P-H, Mar. 31, 2009) to conclude that the crime of conversion of government funds in 18 USC 641, paragraph 1, is not a continuing offense.  Accordingly, when appropriate, the jurors should be instructed that the prosecution must prove that the defendant committed each element of the charge within the five year period immediately prior to the return of the indictment.

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

Forecite National™
18 USC 641: Theft Of Government Money Or Property
103.5 - Embezzlement

Whether Failure To Instruct On LIO In Noncapital Case Violates The Federal Constitution (9th Circuit)

The Ninth Circuit has held that the "[f]ailure of a state court to instruct on a lesser [included] offense [in a non-capital case] fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding." Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984) (citation omitted); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) ("Under the law of this circuit, the failure of a state court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question."); Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995) (noting that the Ninth Circuit "has declined to find constitutional error arising from the failure to instruct on a lesser included offense in a noncapital case"); see e.g., Messer v. Runnels, 329 F. App'x 102, 104 (9th Cir. 2009) ("'the failure . . . to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question'") (citable for persuasive value pursuant to Ninth Circuit Rule 36-3); Kopy v. Ryan, 319 F. App'x 666, 669 (9th Cir. 2009) (same); Collins v. Carey, 312 F. App'x 74, 76 (9th Cir. 2009) (same).

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

Forecite National™
Volume 12: Lesser Offenses
300.7 - Failure To Instruct On Lesser Included Offenses In Noncapital Case
Forecite California™
LIO II - Duty to Instruct

Possession Of Controlled Substance: Knowledge Of Specific Substance Not Required

In United States v. Davis, 2010 U.S. Dist. LEXIS 39223 (W.D. La., No. 07-30015, Mar. 15, 2010) the indictment alleged that the defendant possessed methamphetamine with intent to distribute per 21 USC 841(a) and 21 USC 846.  However, the instructions  allowed the jury to convict them under 21 USC 841(a) and 846 if it found that they possessed with the intent to distribute any "controlled substance." This instruction was held to be proper because “the government is not required to prove that a defendant knew the exact nature of the substance with which he was dealing; it is sufficient that he was aware that he possessed some controlled substance. [Citation.]”

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Chapter 88: Drugs, Controlled Substances
88.4.3.3 - Drugs, Controlled Substances: Possession--Intoxication Or Mental Impairment As Defense To Knowledge Element
88.4.3.13 - Defense Theory That Defendant Mistakenly Believed The Substance Possessed Was A Substance Other Than The One Proscribed By Statute
88.4.3.14 - Defendant Must Have Had Knowledge That The Item Possessed Was The Contraband Charged
The Shellow Instructions
Drugs, Controlled Substances: Knowledge Of Substance
Forecite California™
F 12.00 n1 - Drug Possession: Intoxication Or Mental Impairment As Defense To Knowledge Element (HS 11350 or HS 11377)
F 12.01 n1 - Possession For Sale:  Intoxication Or Mental Impairment As Defense To Knowledge (HS 11350 & HS 11377)
F 2302 Note 2 - Possession For Sale: Intoxication Or Mental Impairment As Defense To Knowledge

Right To Defense Theory Instruction (11th Circuit)

"A criminal defendant has the right to have the jury instructed on [his] theory of defense, separate and apart from instructions given on the elements of the charged offense." United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995). The defendant's burden of presenting evidence to obtain the instruction is "extremely low," and the district court must view the evidence in a light most favorable to the defendant. Ibid. However, the requested instruction must have "some basis in the evidence." United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir.1990) (internal quotation marks omitted).

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

Forecite National™
Chapter 250: Defenses And Defense Theories: General Issues
250.6 - Right To Defense Theory Instructions: Miscellaneous Issues
Forecite California™
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: Booking Photo/Mug Shot Photo

Ladies and gentlemen, what you are about to see is a booking photo. You remember when we started this I told you the mere fact that [charges] had been filed was no evidence of the commission of a crime. The mere fact that this gentleman happens to be in a jail setting or perhaps even wearing some kind of jail-supplied jumpsuit shouldn't be taken as proof that he's guilty, do we all agree on that?

Source: Reese v. Jones, (N.D. Okla., No. 06-CV-653-TCK-FHM, Mar. 16, 2010) [held sufficient to cure any error].

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

Forecite National™
25.2.7 - Jury Not To Speculate About "Masked-Off" Portions Of Photos
25.15.1 - Mugshots/Police Photos Of Defendant: Cautionary Instruction

Duty To Instruct And Inquire After Disruption Of Trial By Defendant (1st Circuit)

When the defendant disrupts the trial with an outburst in front of the jury  such unruliness cannot simply be ignored. See United States v. Rodriguez-Velez, 597 F.3d 32, 43 (1st Cir. P.R., No. 07-2813, March 1, 2010)  “A trial court confronted by such an outburst should take proper steps to neutralize any untoward effects that the outburst might have on the jury. [Citation.]” Ibid.  Such steps include timely and repeated instructions to the jury and  thorough vetting of the jurors to ensure that their impartiality has not been compromised.  Ibid.

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

Forecite National™
18.7 - Disruptive Defendant
19.5.1 - Cautionary Instruction Regarding Disruptive Behavior By Codefendant