Sample Instruction: Lawyer’s Statements Are Not Evidence Unless Supported By Evidence, Common Sense Or Jurors’ “General Knowledge” (Michigan)

Many things are not evidence and you must be careful not to consider them as such. I will now describe some of the things that are not evidence. The fact that the defendant is charged with a crime and is on trial is not evidence. The lawyers' statements and arguments are not evidence. They are only meant to help you understand the evidence and each sides' legal theories. The lawyers' questions to the witnesses are also not evidence. You should consider these questions only as they give meaning to the witnesses' answers. You should only accept things the lawyers say that are supported by the evidence or by your own common sense and general knowledge.

[Source: Given and approved in People v. Ream, (Mich. Ct. App. 4/22/2010, No. 288256 ) NOTICE: This opinion is UNPUBLISHED.]

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24.3.1.5 Arguments Of Counsel Are Not Evidence

24.3.2 What Is Not Evidence: Arguments Of Counsel

272.3 Summation/Closing Argument: Use Of Argument To Explain The Law Or Instructions

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PG VI(C)(10) Discussing Or Reciting Legal Principles During Argument As Alternative ToRefused Instruction

PG VII(C)(40) Substantial Federal Constitutional Rights: Argument On Summation To Jury

PG X(G)(2) Jurors Presumed To Follow The Law Instead Of Argument

PG X(G) - Effect of Argument on Instructional Error

Failure Of Instructions To Require A Jury Finding As To Death Qualification Aggravator Violated Ring/Apprendi (Kentucky)

St. Clair v. Commonwealth, 140 S.W.3d 510 (Ky. 2004) reversed a death penalty sentence because the trial court failed to comply with this Court's clear directive to instruct the jury on the germane aggravating circumstance in conformance with the statutory language describing this aggravating circumstance. The trial court's instruction in St. Clair asked the jury to determine whether the following aggravator was established: "[t]he murder was committed by the Defendant and the Defendant has a prior record of conviction of murder, a capital offense." As St. Clair argued, this instruction did not require the jury to find that St. Clair had a capital conviction at the time the charged murder was committed. This issue was properly preserved in the second sentencing trial by St. Clair's tendering a jury instruction that tracked precisely the statutory language: “In fixing a sentence for the Defendant for the offense of Murder, you shall consider the following aggravating circumstance which you may believe from the evidence beyond a reasonable doubt to be true:(1) The offense of murder was committed by a person with a prior record of conviction for a capital offense.”

However, the trial court refused the defense instruction and instead gave an instruction which erroneously allowed the jurors to find this aggravating factor even if the defendant did not have a prior record of conviction of a capital offense at the time the instant offense was committed but, simply, had accrued such a prior record of conviction by the time of trial.

Even though the reviewing court might be able to conclude that the statutory aggravator was adequately proved, the United States Supreme Court has made clear that such a judicial finding of an aggravator does not satisfy Constitutional requirements. Rather, such a finding must be made by a properly instructed jury to satisfy the Sixth Amendment.  Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).  Thus, the death sentence could not be affirmed based upon a finding of harmless error.

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300.21.16 Death Penalty: Application Of Apprendi To Death Qualification (DeathEligibility) Factors

300.21.23 Apprendi/Ring: Jury Unanimity As To Death Findings

Chapter 302: Death Penalty: Determination Of Death Eligibility (Death Qualification) – Issues And Instructions

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DP II(20) Checklist of Selected 6th/8th/14th Amendment Principles – Death EligibilityDetermination Requires Full Due Process And Trial By Jury Protections

Multiplicity: Two Charges Of Criminal Threats Based On The Same Threat (Kansas)

In State v. Whetstone, 43 Kan. App. 2d 650, 650-654 (Kan. Ct. App. 4/22/2010, No. 101,157) Whetstone made one threat that was communicated to two individuals; specifically, he communicated a threat to "burn down the house and kill [them] all." As a result, he was charged with and convicted of two counts of criminal threat for a threat to "[c]ommit violence communicated with intent to terrorize another," as proscribed in K.S.A. 21-3419(a)(1).  On appeal Whetstone contended that the convictions were multiplicitous.

Multiplicity, charging of a single offense in several counts, creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. See Statev. Schoonover, 281 Kan. 453, Syl. P 10, 133 P.3d 48 (2006). The issue of whether convictions are multiplicitous is a question of law subject to unlimited review on appeal. Schoonover, 281 Kan. at 462.

In Schoonover, the Kansas Supreme Court developed a two-component analytical framework for the resolution of multiplicity issues: "(1) Do the convictions arise from the same  conduct? and (2) By statutory definition are there two offenses or only one?" 281 Kan. at 496. In Whetstone the parties agreed that the two charges for criminal threat arose from one utterance; consequently, the only issue was whether the statute allowed multiple convictions for the same threat.

The Kansas Court of Appeal concluded that a plain reading of the statute required it to hold that Whetstone's convictions for two counts of criminal threat were multiplicitous.

Moreover, under both federal and state law, the unit of prosecution in Kansas is evaluated with "a rule of lenity." State v. Gomez, 36 Kan. App. 2d 664, 670, Syl. P 1, 143 P.3d 92 (2006). The rule of lenity derives from the United States Supreme Court's pronouncement that "[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity." Schoonover, 281 Kan. at 472 (quoting Bell v. United States, 349 U.S. 81, 83, 99 L. Ed. 905, 75 S. Ct. 620 [1955]). In application, when the legislature fails to provide a unit of prosecution that "'clearly and without ambiguity'" allows two convictions for the same act, only one conviction will be allowed. 281 Kan. at 472. Consequently, as there is an ambiguity as to legislative intent, Whetstone's convictions were multiplicitous.

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Chapter 274: Multiple Offenses: Propriety Of Instruction

The Shellow Instructions

Multiple Counts

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F 17.02 Multiple Counts

Cautionary/Limiting Instruction Should Be Given Prior To Admission Of The Evidence And In Final Jury Instructions (Hawaii)

In State v. Palisbo, (Haw. Ct. App. 4/20/2010, No. 29133 [Notice: This opinion is UNPUBLISHED.]) following introduction of the uncharged offense, the judge admonished the jury that they were "not to consider or to speculate as to who the person was who committed [the uncharged] offense." Palisbo argued on appeal that the judge’s limiting instruction "should have been given prior to the introduction of the evidence and during the charge to the jury[,]."

And earlier court of appeal case strongly suggested that trial courts give a cautionary instruction prior to and during the charge to the jury.  See State v. Chong, 3 Haw. App. 246, 254, 648 P.2d 1112, 1118 (1982).  However, the Hawaii Supreme Court later clarified that there is no bright-line rule, and that the trial court has considerable discretion in determining whether and when to issue a limiting instruction. State v. Cordeiro, 99 Haw. 390, 418-19 (Haw. 2002), 56 P.3d at 720-21 (trial court's decision to issue a single limiting instruction at the conclusion of the trial did not jeopardize the defendant's right to a fair trial).

Nevertheless, Palisbo relied on a Nevada Supreme Court case (Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001)) which held that limiting instructions must be given immediately prior to the admission of the evidence and during final jury instructions. 117 Nev. at 733, 30 P.3d at 1133.

The reviewing court in Palisbo reiterated it’s recommendation that trial judges give a cautionary instruction regarding the restrictive use of "other crimes, wrongs or bad acts" evidence prior to and during the charge to the jury (Chong, 3 Haw. App. at 254, 648 P.2d at 1118) but, in deference to Cordeiro, recognized that the judge should be allowed discretion to determine the precise timing of the original instruction. The Court of Appeal affirmed the conviction because Palisbo failed to overcome the presumption that the jury followed the logical consequences of the court's instruction.

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2.3.1 Timing Of Instructions: Miscellaneous Issues

26.1.2 Timing Of Limiting Instruction: Should Be Given When Evidence Is Admitted And In Final Instructions

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PG V(E)  When To Instruct

PG V(E)(1)  Timing Of Instructions Generally

PG V(E)(6)  When To Instruct: Failure ToRepeat Pre-Instructions At End Of Trial

Continuing Conspiracy And Statute Of Limitations: Burden On Defendant To Prove Withdrawal Or Termination (2nd Circuit)

United States v. Abdur-Razzaaq, 372 Fed. Appx. 212, 215-216 (2d Cir. N.Y. 4/21/2010, Nos. 08-3141-cr(L), 08-3813-cr(con), 08-5636-cr(con) [Notice: This opinion is: UNPUBLISHED.]) held that the following instruction did not erroneously shift the burden of proof:

“A  conspiracy is deemed to have continued as long as the purposes of the conspiracy have neither been abandoned nor accomplished and the defendant has not made an affirmative showing that the conspiracy has terminated. A defendant can overcome this presumption of continued participation only by showing that he affirmatively withdrew from the conspiracy or that the final act in furtherance of the conspiracy has occurred. Stated otherwise, once the government has satisfied its burden regarding the existence of the conspiracy, the defendant must prove either, one, that the objectives of the conspiracy were accomplished or abandoned prior to September 13, 2001; or two, that he abandoned the conspiracy prior to that date. It is this latter instruction which Shepherd claims improperly shifted the burden of proof, as he contends that the presumption of continuance "imposes on the defense a burden of production, not a burden of proof."

This instruction was held to be proper because the 2nd Circuit has held that once the prosecution has introduced evidence that would meet this requirement the burden is on the defendant to show that the conspiracy had terminated earlier in time. See United States v. Flaharty, 295 F.3d 182, 192 (2d Cir. N.Y. 2002); United States v. Eppolito, 543 F.3d 25, 49 (2d Cir. N.Y. 2008) (Where the government has presented sufficient evidence to show a conspiracy that has continuing purposes or goals, the burden is on the defendant to prove that the conspiracy was terminated or that he took affirmative steps to withdraw."); United States v. Spero, 331 F.3d 57, 60-61 (2d Cir. 2003) (once the government has shown that a conspiracy existed and that defendant was a member of it, the burden falls upon the defendant to prove that the conspiracy was terminated).

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Chapter 83: Conspiracy

83.3.3.3 Defense Theory That Conspiracy TerminatedWhen The Criminal Object Was Attained Or Defeated

83.3.11.8 Conspiracy: Withdrawal As Defense Based On Statute Of Limitations

257.9 Statute Of Limitations

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Conspiracy

Conspiracy And The Statute of Limitations (Federal)

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F 6.10 Conspiracy

F 4.74 Statute of Limitations

Sample Instruction: Voluntariness Of Defendant’s Out-Of-Court Statements – Consideration Of “Total Circumstances” Including Any Threats And/Or Promises

The defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by his decision. No juror should ever [be] concerned that the defendant did not take the witness stand to give testimony in the case.

A statement or statements claimed to have been made by the defendant outside of court has been placed before you. Such statement should always be considered with caution and be weighed with great care to make certain it or they were freely and voluntarily made.

Therefore, you must determine from the evidence that the defendant's alleged statement was knowingly, voluntarily and freely made. In making  this determination you should consider the total circumstances, including but not limited to whether when the defendant made the statement he had been threatened in order to get him to make the statement and whether anyone had promised him anything in order to get him to make it.

If you conclude that the defendant's out of court statement or statements was or were not freely and voluntarily made you should disregard it or them\

[Source: Given and approved in Magwood v. McNeil, (M.D. Fla. 4/21/2010, No. 3:08-cv-747-J-12JRK).]

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Chapter 28: Out Of Court Statements By Defendant

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Defendant's Statements

Defendant’s Out Of Court Statements: Cautionary Instruction

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F 358 Evidence of Defendant's Statements

Circuit Split Over Whether 18 USC 111(a) Requires Assaultive Conduct (5th Circuit / 6th Circuit / 9th Circuit / 10th Circuit)

There is a split among the Courts of Appeals over whether § 111(a) prohibits acts of resistance, opposition, impediment, intimidation, or interference that do not also involve an underlying assault. Under the 9th Circuit's view of § 111(a), convictions require at least some form of assault. See Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. Cal. 2008).  In United States v. Chapman, the 9th Circuit interpreted the 10th Circuit's holding in United States v. Hathaway to "leave no room for a conviction that does not involve at least some form of assault." United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir. Cal. 2008). The 9th Circuit interpreted § 111 as requiring that, "while a defendant could be charged with resisting, opposing, impeding, intimidating, or interfering, he could not be convicted unless his conduct also amounted to an assault." 528 F.3d at 1219.

In United States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009), the United States Court of Appeals for the 6th Circuit addressed the same question, whether a conviction under § 111 is permissible where there is not an assault, but there is forcible resisting, impeding, or interfering with an officer. See 553 F.3d at 1022.

The 6th Circuit criticized the 9th Circuit's finding in United States v. Chapman, because "it makes a great deal of what § 111 does say entirely meaningless, which flies in the face of the Supreme Court's repeated instruction that 'courts should disfavor interpretations that render language superfluous.'" United States v. Gagnon, 553 F.3d at 1026 (quoting Conn.Nat'l Bank v. Germain, 503 U.S. 249, 253, 112 S. Ct. 1146, 117 L. Ed. 2d 391 (1992)). The 6th Circuit stated that, if Congress meant § 111 to cover only assault, it could have said only assault, or amended the statute in 2008 to limit its language only to assault. The 6th Circuit also pointed out that Congress named the statute "Assaulting, resisting, or impeding certain officers and employees." 553 F.3d at 1026.

The 5th Circuit, in United States v. Williams, also rejected the 9th Circuit's holding that § 111 requires an assault. See 602 F.3d 313. The 5th Circuit noted that "Congress addressed the ambiguity identified by the Ninth Circuit by explicitly drawing the misdemeanor/felony line at physical contact, but it declined the opportunity to delete the other forms of conduct proscribed by the statute or to otherwise clarify that § 111(a)(1) convictions require an underlying assault." 602 F.3d 313.

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18 USC 111(a): Assaulting A Federal Officer (Without Use Of A Deadly Weapon) 

Acts Against Federal Officer (18 USC 111(a)) – Prosecution’s Instruction On Performance Of Duties Was Erroneously Presumptive

In United States v. Perea, (D.N.M. 4/23/2010, No. CR 09-1034 JB) the prosecution proposed the following instruction defining the “engaged in the performance of official duties” element of the charge:

“You are instructed that a Immigration and Customs Enforcement Special Agent Sonny Garcia is a federal officer, and that it is a part of the official duty of such an officer to conduct a variety of federal investigations, which often necessitate travel in Agent Garcia's government-issued vehicle.

A federal officer is "engaged in the performance of his official duties" if he is acting within the scope of what he is employed to do, rather than engaging in a personal frolic of his own. In determining whether a federal officer is engaged in the performance of his official duties, you may consider whether the federal officer was driving a government-issued vehicle at the time of the incident, whether the federal officer was driving to or from work, and whether the federal officer's position entitles him to availability pay based on the fact that officer is always on call.”

In reviewing this instruction the district court observed that in the 10th Circuit there is no bright-line test to define performance of official duties (see United States v. Holder, 256 F.3d at 963) and "each case . . . requires a fact specific analysis, but no case will turn on any one factor."  United States v. Ama, 97 Fed. Appx. 900 (10th Cir. Utah 2004).

However, the district court concluded that the prosecution’s instruction provided too much guidance to the jurors on the issue and, if given, would violate the court’s duty to provide the jury with an intelligent, meaningful understanding of the applicable issues and standards, and not to confuse them. See United States v. Fredette. 315 F.3d at 1240-41 (10th Cir. 2003).

The prosecution’s instruction came too close to instructing the jury to reach the necessary conclusion that, because Perea was in his official vehicle on the night in question, he was on duty. Hence, the Court decided to give the following less “presumptive” instruction: “You are instructed that Mr. Garcia is a federal officer, and that it is a part of the official duty of such an officer to apprehend persons illegally within the United States and to conduct a variety of federal investigations, which often necessitate travel in his government-issued vehicle."

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99.2.4 Performance Of Duties By Officer: Definition

18 USC 111(a): Assaulting A Federal Officer (Without Use Of A Deadly Weapon)

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F 8.81.8n1 Peace Officer Victim: “Performance Of Duties Defined” (PC190.2(a)(7)/PC 190.2(a)(8)/PC 190.1(a)(9))

F 724 Note 3 Peace Officer Victim: "Performance Of Duties Defined" (PC190.2(a)(7)/PC 190.2(a)(8)/PC 190.1(a)(9))—Lawful Detention Defined

Sample Instruction: Cautionary Language Regarding Uncharged Offenses (10th Circuit)

You are cautioned that the Defendant is not on trial here for any acts or crimes not alleged in the Indictment. The Defendant may not be convicted of the crimes charged in the Indictment if you were to find only that he committed other crimes at some other time. You are reminded that, at all times, the Government bears the burden of proving beyond a reasonable doubt that the Defendant committed the offense charged in the Indictment.

[Source: Final paragraph of “Other Conduct” instruction approved in United States v. Batton, 602 F.3d 1191, 1199 (10th Cir. Wyo. 4/23/2010, No. 09-8079).]

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25.19 Uncharged Acts: Nonpropensity

25.20 Uncharged Acts To Prove Propensity (FRE 413-415)

26.5 Uncharged Acts To Prove Issues Other Than Propensity

The Shellow Instructions

Limited Purpose Evidence: Uncharged Offenses And Acts

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F 2.50 Other Crimes, Uncharged Offenses

F 375 Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, Etc.

Failure To Instruct On Age Element Of Charges Held Harmless (Kansas)

In Kansas the defendant must be age of 18 or over to be convicted of an “off-grid” crime. State v. Race, 2011 Kan. LEXIS 313, 30-32 (Kan. 9/2/2011, No. 101,545). It was error for a district judge to fail to instruct the jury to examine that element. See State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009); State v. Gonzales, 289 Kan. 351, 371, 212 P.3d 215 (2009); Bello, 289 Kan. at 199-200.

However, in cases such as Race, where there is unrebutted evidence of the defendant's age of 18 or over, it is generally held that such an error is harmless. See State v. Colston, 290 Kan. 952, 976, 235 P.3d 1234 (2010) (citing State v. Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761 [2010]) ("When a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.").

In Race the defendant, himself, gave unrebutted testimony on this topic. His testimony demonstrated that he was well over the age of 18 at the time of the charged offenses.

Hence, the failure to instruct on this element of the crimes was harmless. 

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3.1 Duty To Instruct On Elements Of The Charged Offense
296.2.3.2 Standard Of Prejudice On Appeal: Removal Of A Single Element
296.2.3 Standard Of Prejudice On Appeal As To Errors Affecting An Element Of The Charged Offense

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PG VII(C)(1) Failure To Instruct Or Directed Verdict On Element Of Charge
PG X(C)(1)(b) Removal Of A Single Element

Instruction On Consequences Of Insanity Verdict: Iowa Appellate Court Concludes That Justice Stevens’s Dissent In Shannon “Has Appeal”

In Shannon v. United States, 512 U.S. 573, 588, 114 S. Ct. 2419, 2422, 129 L. Ed. 2d 459, 472 (1994) the majority of the court emphasized the principle that within the judicial system there is a basic division of labor between judge and jury that discourages jurors from considering the consequences of their verdict. Id. at 579, 114 S. Ct. at 2424, 129 L. Ed. 2d at 466. The jurors are the finders of fact; the judge, on the other hand, is a finder of the law and imposes the sentence upon the defendant after the jury returns a guilty verdict. Id. The court in Shannon feared that providing the jurors with information concerning the consequences of the verdict would invite them to ponder matters that were not within their province, distracting them from fact-finding responsibilities and creating a strong possibility of confusion. Id. at 579, 114 S. Ct. at 2424, 129 L. Ed. 2d at 466-67.

Justice Stevens's dissent took the position there is no reason to keep this information from the jury and every reason to make them aware of it. Id. at 593, 114 S. Ct. at 2431, 129 L. Ed. 2d at 475. He maintained that the instruction should be given whenever requested by the defendant. Id. at 590-91, 114 S. Ct. at 2430, 129 L. Ed. 2d at 473-74.  Stevens suggested the court should not simply focus on the traditional rules against informing the jury as to the consequences of not-guilty-by-reason-of-insanity verdict, but instead should consider the seriousness of the harm to the defendant that might result from a refusal to give such an instruction, especially in the absence of any countervailing harm that would result from giving the instruction. Id. at 591-92, 114 S. Ct. at 2430, 129 L. Ed. 2d at 474. Stevens noted that at the time his dissent was written an increasing number of states that had considered the question endorsed use of the instruction, as had the American Bar Association Criminal Justice Mental Health Standards § 7-6.8 (1989). Id. at 592, 114 S. Ct. at 2431, 129 L. Ed. 2d at 474-75.

Moreover, numerous studies on juror behavior indicate that in cases where an insanity defense is raised jurors are extremely interested in the consequences of an insanity acquittal in support of this position. Marcia Bach, The Not Guilty by Reason of Insanity Verdict: Should Juries Be informed of Its Consequences?, 16 Whittier L. Rev. 645, 647 (1995). The researchers in the Bach article indicated that not a single jury studied refrained from considering what would happen to the defendant as a precondition for arriving at a decision concerning his guilt or innocence, sanity, or insanity; and more importantly, the study revealed that in the absence of a not-guilty-by-reason-of-insanity instruction, juries did speculate, and sometimes erred, in their conclusion to the detriment of the defendant. Id. at 674-75; see also 1 LaFave Substantive Criminal Law § 8.3(d) at 607 [Shannon’s reasoning is “questionable”].

In State v. Becker, (Iowa Ct. App. 9/8/2011, No. 1-325 / 10-0631) an Iowa appellate court concluded that “Justice Stevens's dissent has appeal, particularly here where the jury asked the specific question after lengthy deliberations.”  However, the Becker court held that it was bound by controlling Iowa decisions which generally held that “when the defendant requests such an instruction to be given to the jury before they begin deliberation, it is generally inappropriate and unnecessary.”

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256.4.10 Insanity: Instruction As To Consequences Of Insanity Verdict When Witness Or Prosecution Opens The Door

256.4.11 Instruction on Consequences of Insanity: Strategic Considerations

256.4.16 Propriety of Instruction on Consequences of Insanity

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F 4.01 Consequences of Insanity Verdict

F 4.10 n9 Competency: Informing Jury That Defendant Will Not Be Paroled If Found Incompetent; Informing Jury That Defendant Is Ineligible For Parole

F 4.10c Mental Competence: Informing Jurors As To Consequences Of Incompetency Finding

Sample Instruction: Forcible Resistance Of Arrest – Refusing To Be Handcuffed (Indiana)

One forcibly resists law enforcement when strong, powerful, and/or violent means are used to evade a law enforcement official's rightful exercise of his or her duties. The use of force is an essential element of resisting law enforcement.

[Source: Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009) [While "refusing to present one's arms for cuffing" does not constitute forcible resistance, merely "'stiffening' of one's arms when an officer grabs hold to position them for cuffing would suffice."]; see also Smith v. State, (Ind. Ct. App. 9/9/2011, No. 49A02-1011-CR-1268).

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Chapter 99: Resisting Arrest

99.3 Resisting Arrest: Defenses And Defense Theories

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F 16.102 Resisting Arrest

Multiplicity: Illinois Court Vacates Multiple DUI/DWI-Related Counts Based On A Single Incident

A defendant may not be convicted of multiple offenses premised on a single act.  People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, 6 Ill. Dec. 891 (1977) ("Prejudice results to the defendant *** in those instances where more than one offense is carved from the same physical act."). In this context, an act is "any overt or outward manifestation which will support a different offense." Id. at 566, 363 N.E.2d at 844-45. Courts have interpreted this rule to prohibit convicting a defendant (1) of multiple counts of reckless homicide, premised on drunken driving, where a single victim was killed, or (2) under multiple subsections of the DUI statute for a single instance of driving, or (3) of multiple counts of an aggravated offense based on the same aggravating circumstance. See People v. Lush, 372 Ill. App. 3d 629, 631, 867 N.E.2d 1199, 1201, 311 Ill. Dec. 213 (2007) (vacating one of two reckless homicide counts involving the same victim); People v. Kizer, 365 Ill. App. 3d 949, 962, 851 N.E.2d 266, 276, 303 Ill. Dec. 368 (2006) (vacating one of two DUI convictions, one of which was based on the defendant's driving under the influence of alcohol and the other on the defendant's having a BAC of 0.08 or greater); People v. Bishop, 218 Ill. 2d 232, 248-49, 843 N.E.2d 365, 375, 300 Ill. Dec. 107 (2006) (vacating one of two convictions for aggravated criminal sexual assault, in both of which the victim's pregnancy was the aggravating factor).

People v. Cook, (Ill. App. Ct. 4th Dist. 9/9/2011, No. 4-09-0875) applied the above principles in a case where the defendant committed a single act of driving having consumed the alcohol and illegal drugs that impaired him, and a single death resulted from the ensuing accident. Count I alleged Trooper McMillen's death was caused by defendant's driving under the influence of alcohol; count II, by defendant's driving with a BAC of .08 or greater; and count IV, by defendant's driving under the combined influence of alcohol and other drugs. Because they were based on a single death resulting from a single instance of driving, defendant could not be convicted of counts I, II, and IV together.

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The Shellow Instructions

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DUI/DWI: Georgia Appellate Court Disapproves Instruction On Refusal To Submit To Blood Alcohol Tests

In Wagner v. State, (Ga. Ct. App. 9/7/2011, A11A0895) the judge instructed the jurors as follows:

I charge you that in any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine or other bodily substances at the time of his arrest shall be admissible as evidence against him. I further charge you that the refusal itself may be considered as positive evidence, creating an inference that the test would show the presence of alcohol or other prohibited substances which impair his driving; however, such an inference may be rebutted. (Emphasis supplied.)

Baird v. State, 260 Ga. App. 661, 662-664 (1) (580 SE2d 650) (2003) disapproved of the above jury instruction because the phrase "which impaired his driving" improperly authorized the jury to infer not only that the test would have shown the presence of alcohol in the defendant's body, but also that the alcohol impaired his driving. Id. at 663 (1). "The jury instruction, therefore, invaded the province of the jury and shifted the burden of proof to the defendant, forcing him to present evidence to rebut the inference." Duelmer v. State, 265 Ga. App. 342, 342-343 (593 SE2d 878) (2004).

In Wagner the State did not dispute that the challenged jury instruction was erroneous but argues that Wagner waived any challenge to the charge by failing to specifically object after the trial court gave it. However, the reviewing court considered the claim to be “plain error” which substantially affected the State's burden of proof by shifting it to Wagner, requiring him to rebut the inference that he was an impaired driver because he refused to submit to the breath test. Consequently, giving of the challenged jury instruction constituted plain error and was not waived by Wagner's failure to raise a specific objection in the trial court.

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34.7 Refusal To Submit To Blood Alcohol Test

89.5 Defenses And Defense Theories Regarding Blood Alcohol Testing

89.6 Drunk Driving: Refusal To Submit To Blood Alcohol Test As Consciousness Of Guilt

The Shellow Instructions

Driving Under The Influence (DUI): Blood Alcohol Level

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F 2.06 n4  Consciousness of Guilt FromDefendant’s Refusal to Submit to Blood Test

F 371(A) Note 4 Consciousness of Guilt From Defendant's Refusal to Submit to Blood Test

Blind Reliance On Standard Instruction May Be Ineffective Assistance Of Counsel (Florida)

In many jurisdictions the standard instructions are so ingrained in the system that instruction conferences morph into a discussion of jury instruction numbers rather than a comprehensive evaluation of contents or language.  However, the reviewing courts in most jurisdictions recognize that the standard instructions are not “sacrosanct” and should be tailored to the facts and modified, as necessary, to correctly state the law. See the Forecite Blog™ Pattern Instructions Not Sacrosanct archive.

The danger of litigating jury instructions “by number” was recently illustrated by a line of cases in Florida which have held both trial and appellate counsel ineffective due to blind reliance on a standard jury instruction.  Montgomery v. State [and see this Forecite Blog™ post] held that the then-standard manslaughter by act instruction was fundamentally erroneous because it imposed an additional element of an intent to kill.

In Del Valle v. State, 52 So. 3d 16 (Fla. 2d DCA 2010) the defendant filed a petition alleging that appellate counsel was ineffective in failing to argue that the then-standard jury instruction for manslaughter by act that was given at trial was fundamentally erroneous. Three months prior to the filing of the initial brief in Del Valle's direct appeal, the First District issued its Montgomery decision. Id. at 17-18. At the time the initial brief was filed, the Florida Supreme Court had stated in dicta in Hall v. State, 951 So. 2d 91, 96 (Fla. 2d DCA 2007) (en banc), that the manslaughter by act instruction was not erroneous. 52 So. 3d at 18. The Zeigler court relied on the reasoning of Hall. Zeigler 18 So. 3d at 1243-44. The Florida Supreme court held that Del Valle's counsel was ineffective in failing to argue that the manslaughter by act instruction was fundamentally erroneous based on the First District's Montgomery decision. Del Valle, 52 So. 3d at 18; see also Ferrer v. State, (Fla. Dist. Ct. App. 2d Dist. 9/9/2011, No. 2D10-5981) [same].

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1.3.5 Effective Advocacy Requires Looking Beyond The Pattern Instructions

295.3.2 Ineffective Assistance Of Counsel At Trial

295.3.2.6 Failure To Research And Present Nonpattern Jury Instruction As IneffectiveAssistance Of Trial Counsel (IAC)

Forecite California™

PGVI(C)(4)  Failure to Request Necessary Jury Instructions as IAC

Florida Supreme Court Submits Proposed Amendments To Instructions On Fleeing Law Enforcement Officers And Aggravation Of A Felony

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report proposing amendments to a number of standard criminal jury instructions pertaining to fleeing a law enforcement officer and aggravation of a felony. In re Std. Jury Instructions in Crim. Cases - Report 2011-01, 2011 Fla. LEXIS 2156 (Fla. Sept. 8, 2011).

Judge’s Duty To Inform Counsel About Communications From Juror (District of Columbia)

Rogers v. United States, 422 U.S. 35, 39, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975), recognized the right of a defendant to be informed of communications from the jury prior to a judge's response. See also

United States v. Tureseo, 566 F.3d 77 (2d Cir. 2009). In United States v. Gagnon, 470 U.S. 522, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985), the Court expounded upon the extent of a constitutional right to be present where the confrontation of witnesses is not at issue: “The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment [citation], but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” In Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934), the Court explained that a defendant has a due process right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. . . . [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id. at 105-106, 108; see also Farettav. California, 422 U.S. 806, 819, n.15, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

In sum, “[a] defendant and his counsel have a right to be informed of all communications from the jury and to offer their reactions before the trial judge undertakes to respond." (Michael) Smith v. United States, 389 A.2d 1356, 1361 (D.C. 1978) (per curiam) (citing Rogers, 422 U.S. at 39) (other citations omitted); see also Cox v. United States, 999 A.2d 63, 70 (D.C. 2010); Hallmon v. United States, 722 A.2d 26, 27 (D.C. 1998).

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Chapter 283: Communication With Jury

283.3 Communication From Jury: Propriety Of Withholding From Parties And/Or From The Public Record

Forecite California™

F 17.43 Juror Inquiry

Improper Coercion Of Deadlocked Jury (District of Columbia)

It is axiomatic that a defendant in a criminal proceeding has the right to a trial by his peers who are free to deliberate and make an independent personal judgment as to guilt." Morton v. United States, 415 A.2d 800, 802 (D.C. 1980) (citing Winters v. United States, 317 A.2d 530, 535 (D.C. 1974) (en banc) (Gallagher, J., concurring)). Circumstances "creating a substantial risk of juror coercion," Hankins v. United States, 3 A.3d 356, 361 (D.C. 2010), undermine the exercise of independent personal judgment during jury deliberations. Hence, verdicts traceable to jury coercion "cannot stand." Id. (citing (Charles) Smith v. United States, 542 A.2d 823, 824 (D.C. 1988)).

“[P]ressure to agree is impermissibly coercive when it is likely to force a juror to abandon his [or her] honest conviction as a pure accommodation to the majority of jurors or the court." Id. (citing Winters, supra, 317 A.2d at 532) (internal quotation marks omitted). To determine the coercive effect of the trial court's instructions to the jury during deliberations, the reviewing court examines "all the circumstances," Johnson v. United States, 360 A.2d 502, 504 (D.C. 1976), and does so "from the jurors' perspective." Hankins, 3 A.3d at 361 (citing Payne v. United States, 932 A.2d 1095, 1106 (D.C. 2007)); see also Downing v. United States, 929 A.2d 848, 861 (D.C. 2007).  [*19] HN3"A substantial risk of a coerced verdict necessitates, as a matter of law, a mistrial or a retrial depending on how the issue is raised." Morton, supra, 415 A.2d at 802 (citations omitted). Generally, "[w]hether to give an anti-deadlock instruction when a jury reports itself at an impasse, and which instruction to give, are questions committed to the trial judge's discretion." Hankins, 3 A.3d at 361.

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Chapter 286: Deadlock

286.2 Deadlock: Elements Of Proper Instructions

286.3 Deadlock: Improper Language

Forecite California™

PG IX(J)  Instructions To A Deadlocked Jury

F 17.55 Deadlock Instructions

Instruction Options For Deadlocked Jury (District of Columbia)

In the District of Columbia, the standard instructions, Criminal Jury Instruction (the “Redbook”) 2.601 (5th  ed. Rev. 2009), sets forth several different instructions that a trial court may give when jurors cannot agree: (1) an initial instruction to deliberate further and to keep an open mind; (2) the Mize instruction which compliments the jury and offers suggestions that may be of help to the jury, see Trapps v. United States, 887 A.2d 484, 490-91 (D.C. 2005); (3) three anti-deadlock instructions: (a) the Thomas instruction which is modeled on an American Bar Association standard, see United States v. Thomas, 146 U.S. App. D.C. 101, 108 n.45, 449 F.2d 1177, 1185 (1971); (b) the Winters instruction which, in part, tells the jurors to listen to, respect, and ask themselves questions about the opinions of others, see Winters v. United States, 317 A.2d 530, 534 (D.C. 1974) (en banc); and (c) the Gallagher instruction which is a modification of the Winters instruction, see Winters, supra, 317 A.2d at 539 (Gallagher, concurring); and (4) an instruction pertaining to a lesser-included offense where the jury has made reasonable efforts to obtain unanimous agreement on the greater offense without success, see Powell v. United States, 684 A.2d 373 (D.C. 1996).

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

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Chapter 286: Deadlock

286.2 Deadlock: Elements Of Proper Instructions

286.3 Deadlock: Improper Language

Forecite California™

PG IX(J)  Instructions To A Deadlocked Jury

F 17.55 Deadlock Instructions

Specific Unanimity Not Required For Series Of Acts In Furtherance Of A Single Fraudulent Scheme (District of Columbia)

To convict for fraud in the District of Columbia, the jury must find that the defendant engaged in "a scheme or systematic course of conduct" composed of at least two acts calculated to deceive, cheat or falsely obtain property. See Youssef v. United States, (D.C. 9/8/2011, No. 10-CF-642); see also Criminal Jury Instructions for the District of Columbia, No. 5.200 (5th ed. rev. 2010) (the "Redbook"). The jury, however, is not required to decide unanimously upon which acts constituted a single fraudulent scheme, since these acts embody merely the "brute facts" underlying the statutory element. See Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999); see also Schad v. Arizona, 501 U.S. 624, 629, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991). Thus, as articulated by the D.C. Circuit, "a count charging a series of similar acts in furtherance of a fraudulent scheme falls into a single conceptual grouping that does not require a special unanimity instruction." United States v. Sayan, 296 U.S. App. D.C. 319, 329-30, 968 F.2d 55, 65-66 (1992).

This conclusion is consistent with other federal precedent, in which courts have  [*14] held that a special unanimity instruction is unnecessary where the government alleges only one unified scheme in violation of the federal mail and wire fraud statutes codified at 18 USC 1341 and 1343 (2006) (prohibiting use of mails or interstate wires in furtherance of a "scheme or artifice to defraud"). See United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1986) (concluding that trial court "did not err in failing to give a special unanimity instruction regarding the specific acts constituting [a] scheme" where the "indictment alleged one unified scheme to defraud."); accord, United States v. Wiener, 127 F. Supp. 2d 645, 651 (M.D. Pa. 2001) ("the existence of a wire fraud charge does not necessitate a specific unanimity charge").

On the other hand, “[w]here one charge encompasses two separate incidents, the judge must instruct the jury that if a guilty verdict is returned the jurors must be unanimous as to which incident or incidents they find the defendant guilty." Scarborough v. United States, 522 A.2d 869, 871 (D.C. 1987) (en banc) (quoting Hawkins v. United States, 434 A.2d 446, 449 (D.C. 1981)); see also Youssef, supra, at fn 9.

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Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)

273.10.5 Jury Unanimity: Conspiracy

273.6 When Is Jury Unanimity Instruction Required

Forecite California™

PG VII(C)(16) Juror Unanimity

F 17.01 Juror Unanimity

F 3500.1 Unanimity: Duty To Instruct

“Slightest Evidence” Of Lesser Included Offense Evidence Requires Instruction (Arkansas)

Arkansas courts hold that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the “slightest evidence.”  Hatcher v.State, 2011 Ark. 325, 5 (Ark. 9/8/2011, No. CR 09-1248); see also Davis v. State, 2009 Ark. 478,     S.W.3d    ; Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000).  However, it is not error for the court to refuse or fail to instruct on the lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Hatcher, supra.  

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

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Chapter 265: Lesser Included Offenses: General Principles

265.2 Evidence Required For Lesser Offense Instruction

Forecite California™

PG V(A)(7) Judge’s Duty To Instruct On Lesser Included Offense

PG VII(C)(12.1) Federal Constitutional Right To Instruction On Lesser Included Offense In Capital Case: Defendant’s Duty To Request

PG VII(C)(13) Failure To Instruct On Lesser Included Offenses In Noncapital Case

LIO II(D) Duty Of Court To Instruct On Lesser Included Offense Over Defense Objection