APPENDIX B -2

Proposed Revision ofSecond-Degree Murder & Manslaughter Instructions

September 16, 2005

The Honorable Branford L. Thomas First District Court of Appeal

Committee on Standard Jury Instructions in Criminal Cases The Honorable Terry D. Terrell, Chair

December 17, 2007

PROPOSED REVISION OF SECOND·DEGREE MURDER & MANSLAUGHTER INSTRUCTIONS

By

The Honorable Branford L. Thomas Standard Jury Instructions Committee - Criminal

September 16, 2005

I propose that the Committee recommend revising Florida's Standard Jury Instructions for second-degree murder and manslaughter. These standard instructions, in my view, add elements to the crimes that were not enacted by the Legislature. In addition, the manslaughter instruction contains unnecessary and confusing language in the "culpable negligence" definition. Revising these murder instructions to closely track the statutes would more correctly state the law, provide more helpful direction to juries, and enhance judicial review.

When faced with definitions of first-degree murder, second-degree murder, and manslaughter that require evidence of premeditation, evil intent, and intent to cause death, respectively, it is not difficult to perceive that a listener could be confused regarding the difference between these crimes. I submit we can provide more clarity in our jury instructions by closely tracking the statutes or providing standard definitions. The statutes do not include such ambiguity, and neither should the instructions.

In the alternative, should the Committee determine not to recommend revisions, I propose the Committee approve a comment to the instructions summarizing the analysis below.

Murder Statute and Standard Jurv Instruction

For the sake of context in this analysis, the instruction on first-degree murder is provided:

To prove the crime of First Degree Premeditated Murder, the State must prove the following three elements beyond a reasonable doubt: 1. (Victim) is dead. 2. The death was caused by the criminal act of (defendant). 3. There was a premeditated killing of (victim). Definitions An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose." Killing with premeditation" is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. Theperiod oftime must be long enough to allow reflection by the defendant. The premeditated intent to kill

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must be formed before the killing.The question of premeditation is a question of fact to be determined by you from the evidence. It will be sufficient proof of premeditation if the circumstances of the killing and the conduct of the accused convince you beyond a reasonable doubt of the existence of premeditation at the time of the killing.

Fla. Std. Jury Instr. (Crim) 7.2 (emphasis added).

The elements of second-degree murder are defined by the Legislature, but the Standard Jury Instruction definition has expanded a critical statutory provision. The second-degree murder statute defines second-degree murder as

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual[.]

§ 782.04(2), Fla. Stat. (2004) (emphasis added).

The Second Degree Murder Standard Jury Instruction expands on the statute and provides:

To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt: 1. (Victim) is dead. 2. The death was caused by the criminal act of (defendant). 3. There was an unlawful killing of (Victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. Definitions An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose. An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that: 1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and 2. is done from ill will, hatred, spite or an evil intent, and 3. is of such a nature that the act itself indicates an indifference to human life. In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

Fla. Std. Jury Instr. (Crim) 7.4 (emphasis added).

The second-degree murder standard jury instruction requires the state to prove "ill will, hatred, spite and evil intent," to prove the defendant acted with a "depraved mind

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regardless of human life." This instruction adds a requirement that the state prove intent and blurs the crimes of first and second degree-murder.

The second prong of the Standard Jury Instruction definition, in my view, is not the correct definition of a "depraved mind regardless of human life," although the instruction correctly incorporates case law interpreting the statute.

Despite a long line of cases to the contrary, the Legislature has never required the state to prove a person acted with "ill will, hatred, spite or evil intent" to be guilty of second­degree murder. I recognize the principle that legislative inaction in the face of case law can be interpreted as legislative approval. See Johnson v. State, 91 So. 2d 185, 187 (Fla. 1956). This principle alone, however, should not determine whether the committee and the Florida Supreme Court revise the instructions. Furthermore, the House Interim Report did express the House staff's view that the instructions change the statutory elements of proof. When a criminal law is substantively affected by a jury instruction, the instruction should be carefully evaluated.

Case law defines a "depraved mind" as "malice, ... in the popular or commonly understood sense of ill will, hatred, spite or evil intent." Huntley v. State, 66 So. 2d 504 (Fla. 1953). See also Ramsey v. State, 154 So. 855 (Fla. 1934); Raneri v. State, 255 So.2d 291 (Fla. 1st DCA 1971). See also Reed v. State, 837 So. 2d 366 (Fla. 2002) ("Malice in aggravated child abuse statute means 'ill will, hatred, spite, an evil intent'''), citing Huntley. This case law establishes that the second-degree murder statute incorporates a requirement of "actual malice" rather than "technical malice," perhaps to ensure the state must prove mens rea.

In Ramsey v. State, 154 So. 855 (Fla. 1934), the supreme court stated

Depravity of mind is an inherent deficiency of moral sense and rectitude. It is the equivalent of the statutory phrase 'depravity of heart' which has been defined to be the highest grade of malice.

The legal and technical sense of the word 'malice' differs from its sense in ordinary or common speech. In the technical sense it is a term of art importing wickedness and excluding a just cause or excuse. When so used it denotes a wrongful act done intentionally without just cause or excuse. That definition may be inaccurate because no just cause or excuse can be allowed for a wrongful act. Malice in law refers to that state of mind which is reckless of law and of the legal rights of the citizen in a person's conduct toward that citizen. It includes all acts wantonly or willfully done, that is, which any man of reason, knowledge, and ability must know to be contrary to his duty. It is implied from wrongful unjustifiable acts done on purpose or without just or legal excuse. It is obvious, therefore, that the phrase 'evincing a depraved mind regardless of human life,' as used in

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the statute denouncing murder in the second degree, was not used in the legal or technical sense of the word 'malice' as above defined. The phrase conveys the idea of 'malice' in the popular or commonly understood sense of ill will, hatred, spite, an evil intent. It is the malice of the evil motive which the statute.

(citations omitted) (emphasis added).

Respectfully, however, I suggest that these interpretations of the operative phrase in the second-degree murder statute were never authorized or adopted by the Legislature, are not required to ensure the validity of the laws, and have led to confusion and inconsistent results. The case law is settled and controlling, and any proposal would entail a reconsideration of that case law by the Florida Supreme Court. I respectfully submit that this Committee should recommend that consideration by the Court, to eliminate confusion and inconsistent determinations of evidentiary sufficiency in homicide cases. When instructions and case law create confusion regarding the proper definitions and distinctions between classes of murders, then the danger of arbitrary application arises. In Furman v. Georgia, Justice White determined that the "death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." 208 U.S. 238 (1972) (emphasis added). While I do not suggest that the issues here raise any constitutional concerns, I do suggest that the Committee can perform a valuable public service by noting the problems with definitions that blur the distinctions between first and second-degree murder and manslaughter.

The standard instruction, in my view, should either track the statute or define "depraved mind" in its commonly understood manner. For example, the court in Larson v. State stated that "'depraved mind' within the second. degree murder statute has been variously defined as importing malice in the sense of ill will, hatred, or evil intent, and as an inherent deficiency of moral sense and rectitude... .It has also been stated that malice is not limited in its meaning to hatred, ill will and malevolence, but 'denotes a wicked and corrupt disregard of the lives and safety of others ... a failure to appreciate social duty.''' 485 So. 2d 1372 (Fla. 1st DCA 1983) (citation omitted) (emphasis added). See also McCauley v. State, 405 So. 2d 1350, 1351 (Fla. 5th DCA 1981) (Cowart J., specially concurring) (holding that killing evinced an evil and morally debased (corrupt) and hence, "depraved mind." Judge Cowart noted that there was also evidence of ill will). A revised jUry instruction could simply track the statute or define "depraved mind regardless of human life" as a "wicked and corrupt disregard of the lives and safety of others."

The Florida Supreme Court has recognized a second-degree murder instruction that tracks the statute is not fundamental error. In State v. Bryan, the trial court did not tell the jury the state had to prove "ill will, hatred, spite or evil intent. 287 So. 2d 73, 76 (Fla. 1973), cert denied, 417 U.S. 912 (1974). The defendant failed to object, but the First

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District held that the instruction constituted fundamental error. !si. The Supreme Court reversed and stated:

We disagree that the term 'depraved mind regardless of human life' is one which of necessity, absent a request for an instruction or an objection to its not being given, creates fundamental error. It is frankly our view that the average juror pretty well understands what a depraved mind is, and particularly where it is noted at least in partial definition as one which has no regard for human life. This was sufficient for the jury's evaluation in our judgment and we do not find the charges as given to be so recondite in their meaning as to escape the jury's understanding. Sometimes we underestimate the intelligence and comprehension of our juries; they do not have to have every single detail spelled out to them, for they are accepted on the basis of their average and ordinary understanding and intelligence in the ordinary matters of life and in applying the evidence. Furthermore, jurors enjoy the benefit of their composite knowledge, and the privilege of requesting further instruction if desired. The charge actually given was the historical instruction given over hundreds of cases during periods prior to the new suggested standard charge in which convictions have been upheld.

!si. (emphasis added).

It is noteworthy that in Bryan, the First District ruled that the Standard Jury Instruction "failed to define and explain the meaning of 'evincing a depraved mind.''' The Florida Supreme Court, in describing the standard jury instruction, characterized it as thus:

the elaboration in the standard charge on Second degree murder would have been appropriate and even wise to add to the charge below .... This would have enlarged the use of the words 'a depraved mind regardless of human life' but, absent objection, the failure to add this enlargement of the statute by the standard charge was not fatal.

!si. (emphasis added). In fact, the standard jury instruction narrows the application of the second-degree murder statute by "enlarging" the elements adding requirements to the state's burden of proof.

Although the second-degree murder instruction has been authorized for almost 25 years and is based on case law, I submit the case law and the instruction incorrectly narrow the application of the second-degree murder statute. In addition, the instruction has led to inconsistent results in the appellate courts.

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Premeditation and '1/1 Will, Hatred, Spite and Evil Intent"

Case law is well established that the Standard Jury Instruction's definition requires the state to prove "ill will, hatred, spite, and evil intent. Rayl v. State, 765 So. 2d 917, 919 (Fla. 2d DCA 2001) ("To prove that an act demonstrates a depraved mind, the State must prove that it was done from "ill will, hatred, spite or an evil intent.") (emphasis added). See Fla. Std. Jury Instr. (Crim.) 7.4. Cf. Smalley v. State, 889 So. 2d 100 (Fla. 5th DCA 2004). (holding that "proof of a depraved mind may be established by proof the shooting was done with ill will, hatred, spite, or an evil intent.") (emphasis added). The terms "ill will, hatred, spite and evil intent," in my view, more closely describe mental states not contained in the statutory definition of second-degree murder. In addition, these terms confuse the definitions of first and second degree murder.

The terms "ill will, hatred, spite and evil intent" define states of mind similar to premeditation rather than a depraved mind. Premeditation is a state of mind and must be inferred from the facts and circumstances surrounding a killing, such as the type of weapon being used, prior difficulties between the parties, and statements made by the accused. If the state introduces evidence of hatred, ill will, or evil intent, it is that very evidence from which the jury could and probably would consider in determining whether a killing was premeditated.

If the state introduced testimony that the defendant said he hated the decedent, or that he stated on several occasions that he wished the victim was dead, then that evidence would tend to prove that the defendant had a motive to kill and thus the homicide was premeditated. But under the instruction, the defendant can rightfully argue that such evidence goes to ill will or spite, and must only be considered as proof of second-degree murder, not premeditated murder. I believe this leads to confusion, as a juror hears that the same evidence is proof of first-degree and second-degree murder. The confusion can be detrimental to both parties in a criminal case.

It is well established that "premeditation is the essential element which distinguishes first-degree from second-degree murder." Green v. State, 715 So. 2d 940, 943 (Fla. 1998); Wilson v. State, 493 So. 2d 1019 (Fla. 1986). The "ill will" and "evil intent"definition blurs

this critical difference in my view. See, §.&, Light v. State, 841 So. 2d 623 (Fla. 2d DCA 2003) (holding that a second-degree murder conviction generally requires that the defendant knew victim).

Case law establishes that premeditation sufficient to convict for first-degree murder can be formed in a "moment before the act but must exist for a sufficient length of time to permit reflection ...." See Roberts v. State, 510 So. 2d 885,888 (Fla. 1987), cert denied, 485 U.S. 943 (1987) (emphasis added). But other decisions seem to recognize that the "ill will" or "evil intent" jury instruction definition requires a somewhat similar amount of proof. Light v. State, 841 So. 2d 623,626 (Fla. 2d DCA 2003) ("Hatred, spite, evil intent, or ill will usually require more than an instant to develop."). I mean no criticism of these decisions

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or similar holdings. In fact, the jury instruction definition has been interpreted to create an additional element of "ill will, hatred, spite and evil intent" in the crime of second-degree murder.

In addition to the problem of confusing first and second degree murder, the "ill will" definitions can confuse jurors.

During its deliberations, the jury expressed confusion over the terms "ill will, hatred, spite, or evil intent" in the second degree murder instruction. The court provided the jury with a copy of the American Heritage Dictionary.... However, we remind the bench and the bar that the trial court is the only source from which the jurors may properly obtain the law or definition of legal terms applicable to the issue being resolved by them. If members of the jury are permitted access to and use of an unabridged dictionary, a legal dictionary, orWords & Phrases, they may proceed to torture the words in the court's charge from their true meaning.

See Sarduy v. State 540 So. 2d 203, 205 n.2 (Fla. 3d DCA 1989) (citation omitted). Sarduy was an interesting case, as the trial court instructed the jury that "[e]ven though a defendant had no intent to hit or kill anyone, firing a gun into a crowd of people constitutes second degree murder when a person is killed as a result." !sL. at 204. The court reversed citing the instruction as a directed verdict of gUilty in violation of the defendant's due process rights.

Unlike ill will and evil intent, "depravity" is a well-known term that most people know means debased, morally corrupt, or degraded. The statute further explains the meaning of "depraved mind" by the phrase "regardless of human life." Thus, a trial court could simply instruct the jury by reciting the statute. A "depraved mind" instruction that tracked the statute would be less confusing than the current Standard Jury Instruction. If necessary, the Committee or the Florida Supreme Court could define "depraved" by citing the dictionary. Webster's Third International defines "depravity" as "marked by debasement, corruption, perversion or deterioration." (The Fourth District has stated, however, that under current law, a trial court should not use a dictionary to define "depraved mind." Brown v. State, 777 So. 2d 1083 (Fla 4th DCA 2001 ).) .

One good example of an act eVincing a "depraved mind regardless of human life" is the line of cases dealing with shootings, in which courts have recognized that aiming a gun at someone and shooting them satisfies the definition of a depraved mind. See Gibbs v. State, 904 So. 2d 432 (Fla. 4th DCA 2005). In Gibbs, for example, the court does not mention the requirement that a person shooting a victim must have demonstrated ill will, evil intent, hatred or spite.

But at least under one case discussed below, "extremely reckless behavior" can never equate to "ill will," etc., to sustain a second-degree murder conviction. This means

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that behavior so abominable that would be universally condemned, and results in the death of human beings, can never alone sustain a second-degree murder conviction, based on a SJI definition not enacted by the Legislature.

The Standard Jury Instruction requires the state to prove a defendant acted with "ill will" or "evil intent", but then informs the jUry that the state need not prove "intent to cause death." Jurors must be perplexed when they hear that first-degree murder requires premeditation, and second-degree murder requires "evil intent" but not "intent to cause death." How can a person commit an "unlawful killing" in a depraved manner, with "evil intent," and not intend to kill? In fact, I submit that requiring evil intent, or ill will, is another vague manner of requiring premeditation. Logic dictates that a crime that specifically excludes "premeditated design" to kill, excludes "evil intent".

Impact of Standard Jury Instruction Definition of "Depraved Mind" In Second-Degree Murder Cases

The effect of the "ill will" definition on cases may best be explored in a hypothetical. The following is drawn loosely from relevant case law. Please assume felony murder is not applicable.

Assume a person burglarizes a home and steals a car. Hours later, the person drives his car 75mph in a 30mph residential neighborhood to evade police. The actor kills a child who was riding a bicycle in the proper lane. The actor had no intent to kill the child, had no ill will toward the child, and did not know the child. But the actor was determined not to pull over and surrender to police.

Would the actor be guilty of second-degree murder? This hypothetical produces different results when evaluating the facts under the statutory definition compared with the Standard Jury Instructions.

According to Florida Statutes, "[t]he unlawful killing of a human being, when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without premeditated design to effect the death of any particular individual, is murder in the second degree[.]" § 782.04(2), Fla. Stat. (2004) (emphasis added).

Under the statute, the hypothetical case could go to the jury on a charge of second­degree murder. The actor: (1) killed a human being; (2) the killing was perpetrated by an act imminently dangerous to another; (3) the act demonstrated a depraved mind (discussed below) regardless of human life; and (4) the actor had no premeditated design to effect the death of anyone. Thus, the statute would permit the state to charge the actor, and the jury to convict, if the jury found proof beyond a reasonable doubt.

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Unlike the statute, under the Standard Jury Instructions the jury would not be allowed to consider whether the actor committed second-degree murder. The "ill will" prong of the jury instruction definition cannot be satisfied. As the Florida House of Representatives study on jury instructions noted:

The additional definitional description contained in the instruction of the term "imminently dangerous to another and demonstrating a depraved mind" creates a higher standard of proof for criminally reckless conduct which results in the death of another. "III will, hatred, spite, or evil intent" are terms associated with the legal term "malice aforethought" which is more closely aligned with premeditated offenses than action which would run afoul of the . crime of second-degree murder.

Florida House of Representatives Interim Project on Standard JUry Instructions In Criminal Cases, pg. 16. Committee on Public Safety and Crime Prevention, Jan. 2004 (emphasis added).

In the hypothetical case, the actor could reasonably assert that he harbored no "i11 will, hatred, spite or evil intent" about the deceased child. He would argue that the Standard Jury Instructions, in their "explanation" of the statutory terms, precluded prosecution for second-degree murder.

The hypothetical actor's argument would likely be correct under case law interpreting the Standard Jury Instructions. Sigler v. State, 805 So. 2d 32 (Fla 4th DCA 2001), is instructive here. In this case, a fleeing escaped prisoner killed another person. Sigler was a passenger with the driver Michelson:

En route to Fort Lauderdale to visit Michelson's family, they were spotted by a police officer. A high speed chase ensued with Michelson accelerating to speeds estimated as high as eighty miles an hour. Eventually, he turned into a narrow alley, at the end of which he ran a stop sign, crossed the transverse street, and entered the alley in the next block. Continuing at high speed, he ran a stop sign at the next transverse street where, tragically, he crashed into another car, killing its driver.... Second degree murder is defined as: The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual. .. Florida Standard Jury Instructions define the term imminently dangerous to another and evincing a depraved mind regardless of human life" ..... To prove that an act demonstrates a depraved mind, the state must prove that it was done from "ill will, hatred, spite or an evil intent. ...

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In this case, however, we need not decide whether appellant, a passenger, could be convicted as principal because there is no evidence of "ill will, hatred, spite or evil intent" directed at the victim.

Sigler v. State, 805 So. 2d 32, 34-35 (Fla 4th DCA 2001) (citations omitted) (emphasis added). The driver's second-degree murder conviction was reversed by the same court for the same reason. Michelson v. State, 805 So. 2d 983 (Fla. 4th DCA 2001). The cases cited in Michelson are discussed below.

Another example similar to the hypothetical is Duckett v. State, 686 So. 2d 662 (Fla. 2d DCA 1996). There, the court reversed a second-degree murder conviction where the defendant was "highly intoxicated," nearly caused two crashes, and then rammed a tow truck and disabled church bus, killing five people. Before the fatal accident, he had pulled over, and "leaned against his car." Citing the Standard Jury Instruction, the court stated that:

The facts in this case do not constitute second-degree murder because there was no evidence offered at trial to support the fact that Duckett's act was done from ill will, hatred, spite, or an evil intent toward the victims. We recognize this court's decision in Manis v. State, 528 So.2d 1342 (Fla. 2d DCA), review denied, 534 So.2d 400 (Fla.1988), holding that a driver impaired by alcohol causing death to another may be convicted of second­degree murder. ... We agree with Manis that, under some circumstances, a person may be convicted of second-degree murder for vehicular homicide. In the instant case, however, the state failed to prove all of the elements of second-degree murder.

This case is similar to Ellison v. State, 547 So.2d 1003 (Fla. 1st DCA 1989), approved in part, quashed in part, 561 SO.2d 576 (Fla.1990). Ellison was involved in a high-speed police chase. He was weaving in and out of traffic until his vehicle jumped the median and he lost control of the car and struck another vehicle head on, killing a baby who was a passenger in that vehicle. The First District Court concluded that these facts did not support a second­degree murder conviction and reduced the conviction to manslaughter. The supreme court approved of the First District Court's conclusion that the facts did not support a finding that Ellison acted out of ill will, hatred, spite, or an evil intent toward his victim.

Duckett v. State, 686 So. 2d 662 (Fla. 2d DCA 1996) (citation omitted) (emphasis added).

These decisions rely on the Standard Jury Instruction, not the statute. In effect, the "ill will" definition has narrowed and revised the statutory crime of second-degree murder as written by the legislature. In Light v. State, 841 So. 2d 623 (Fla. 2d DCA 2003), the court wrote that:

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There is no question that Mr. Light's act of slamming the victim to the floor exhibited a "reckless disregard" for the life or safety of his victim.

The crime of second-degree murder, however, requires a more serious mens rea. The definition of second-degree murder is: "The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." § 782.04(2), Fla. Stat. (1999). As explained in the standard jury instructions: "An act is 'imminently dangerous to another and demonstrating a depraved mind' if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life." Fla. Std. Jury lnstr. (Crim.) 98; see also Duckett v. State, 686 So.2d 662, 663 (Fla. 2d DCA 1996). We note that this language mirrors the Florida Supreme Court's definition of malice. See Reed v. State, 837 So.2d 366 (Fla.2002).

. . . . However, the State failed to present competent, substantial evidence such that a rational trier of fact could find beyond a reasonable doubt that Mr. Light's acts were the product of ill will, hatred, spite, or an evil intent. See State v. Ellison, 561 So.2d 576 (Fla.1990); Duckett v. State, 686 So.2d 662 (Fla. 2d DCA 1996); see also Michelson v. State, 805 So.2d 983 (Fla. 4th DCA 2001). Although these cases are not completely analogous to the unique facts of this case, they demonstrate that extremely reckless behavior itself is insufficient from which to infer any malice. Moreover, other cases demonstrate that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. See Williams v. State, 674 So.2d 177 (Fla. 2d DCA 1996); McDaniel v. State, 620 SO.2d 1308 (Fla. 4th DCA 1993).

Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim. See, e.g., Conyers v. State, 569 SO.2d 1360 (Fla. 1st DCA 1990) (victim is defendant's son); Dellinger v. State, 495 So.2d 197 (Fla. 5th DCA 1986) (victim is defendant's wife); Larsen v. State, 485 So.2d 1372 (Fla. 1st DCA 1986) (victim is defendant's wife). Hatred, spite, evil intent, or ill will usually require more than an instant to develop. See Hooker v. State, 497 So.2d 982 (Fla. 2d DCA 1986) (holding that second-degree murder established where defendant shot into occupied trailer killing stranger because of preexisting racial ill will). In this case, Mr. Light had no prior relationship with the victim prior to the victim entering the mosh pit. The conditions inside the bar made it virtually

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impossible for any witness to provide testimony that Mr. Light demonstrated any enmity at the time of the incident, and no such testimony was provided. The circumstantial evidence in this case regarding Mr. Light's intent or state of mind is equally supportive of a theory that Mr. Light was simply guilty of a serious, momentary misjudgment concerning the amount of force that was permissible on the dance floor or that he reacted impUlsively and excessively to being hit in the genitals. Such conduct fits within the definition of culpable negligence, which allows a homicide conviction, but only as manslaughter.

Light v. State, 841 So. 2d 623-26 (Fla. 2d DCA 2003) (emphasis added).

In my view, the Standard Jury Instruction on second-degree murder has defined the elements of the crime in a manner different from the statute.

The difference was highlighted in Dellinger v. State, 495 So. 2d 197 (Fla. 5th DCA 1986) (en bane), cert denied, 503 So. 2d 326 (Fla. 1987). There, the defendant pointed a rifle at his wife and said, "I could shoot you." He did that, but claimed he did not know the gun was loaded and he did not intend to kill his wife. The majority noted

Second degree murder requires a jury to find "the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death." There may be, as in this case, little express testimony concerning a defendant's malice or depraved state of mind. However, we think the jury could have inferred this necessary element of second degree murder from the evidence in this case. Here Dellinger pointed a rifle at his wife without knowing (and thus without caring) whether or not it was loaded, and then deliberately pulled the trigger, killing her. We think those facts permitted the jury to infer Dellinger had a "depraved mind regardless of human life" when he fired the rifle.

Judge Dauksch's concurring and dissenting opinion noted the following issue:

I do not agree the facts in this case are such that a conflict between this case and Marasa exists. In Marasa, it was clear there was no arguing or strife or anything approaching the requisite "ill will, hatred, spite, or an evil intent." Florida Standard Jury Instructions (Crim.) Here, there was arguing between

the parties before the killing and the decedent was packing her bags to leave appellant. Appellant specifically declared that he could kill her and did so. Facts so strong simply do not exist in Marasa. . . .. Marasa stands for the proposition that the state must prove what the supreme court requires it to prove in the standard jurylnstruction covering second degree murder.. . . . Lastly, I should suggest the majority would do right by certifying a

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question to the supreme court, viz: must the state prove ill will, hatred, spite or evil intent in a second degree murder case?

495 So. 2d 197, 199-200(Fla. 5th DCA 1986) (en bane), cert denied, 503 So. 2d 326 (Fla. 1987) (citations omitted; emphasis added).

I respectfully submit this Committee should take up Judge Dauksch's suggestion that this question be answered once and for all. I recommend the Committee propose a substantive revision to the Standard Jury Instruction by eliminating or revising the "ill will, hatred, spite or evil intent" definition. The instruction should simply track the statute or provide the commonly understood meaning of "depraved mind."

Manslaughter Statute and Instruction

A similar problem in my view exists in the Manslaughter Standard Jury Instruction, which requires the state to prove the defendant "intentionally caused the death" or "intentionally procured the death" of the victim.

The statute provides that:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter[.]

§ 787.02(7), Fla. Stat. (emphasis added.) The statute specifically does not require that a person intentionally kill the victim to constitute the crime of manslaughter, unlike the first­degree murder statute.

The Manslaughter Standard Instruction, however, does require the state to prove the defendant intentionally killed the victim or intentionally procured the victim's death. In addition, the instruction provides a lengthy definition of "culpable negligence" that sounds very similar, in part, to second-degree murder. The "culpable negligence" definition also includes a reference to intent:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) is dead..... 2.a. (Defendant) intentionally caused the death of (Victim). b. (Defendant) intentionally procured the death of (victim). c. The death of (victim) was caused by the culpable negligence of (defendant).However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide .....To "procure" means to persuade, induce, prevail

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upon or cause a person to do something.... I will now define" culpable negligence" for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.[Give only if 2(a) alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder)ln order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

7.7 Florida Standard Jury Instruction, p. 119 (emphasis added).

The standard instruction on culpable negligence refers to "conduct showing reckless disregard of human life or the safety of persons exposed to it dangerous effects." I understand this instruction is likely based on long-standing case law that is cited in current cases. See Filmon v. State, 336 So. 2d 586 (Fla. 1976); Millerv. State, 75 So. 2d 312 (Fla. 1954); Sexton v. State, 898 So. 2d 1187, 1188 (Fla. 1st DCA 2005) (citing Filmon and Miller). The language, however, confuses the statutory definition of second-degree murder and manslaughter, in my view.

It is hard to understand the difference between an act reflecting a "depraved mind regardless of human life" and an act that demonstrates a "reckless disregard of human life." If the Committee decides the instruction should more closely follow the statute, a revision could be proposed.

In addition, this definition later refers to "such an indifference to the rights of others as is equivalent to an intentional violation of such rights." The second highlighted phrase is also based on language from case law, but like the first phrase, this could easily be confused with the statutory definition of second-degree murder. Both highlighted phrases are unnecessary and potentially confusing. As noted by the House Interim Report, this could be interpreted to mean that a person must "intentional[ly) cause ... a negligently­caused death."

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Finally, the manslaughter instruction could be understood by a juror to require an intent somewhat similar to premeditation, although the instruction specifically rejects this requirement. See Florida House of Representatives Interim Project on Standard JUry Instructions In Criminal Cases, page 17. Committee on Public Safety and Crime Prevention, Jan. 2004 (manslaughter instruction "adds a requirement that the defendant intentionally cause or procure the death of another. [Where] someone is responsible for a premeditated murder for hire plan, this instruction could erroneously confuse the CUlpability of the person hiring the killer to be liable for nothing more than manslaughter rather that a principle to first-degree murder.").

I propose the Committee recommend that the Supreme Court revise the manslaughter instruction. Rather than instruct the jury that the defendant must "intentionally cause the death" of the victim, the instruction should simply state:

"defendant knowingly or consciously committed an act that caused the death (of victim.)"

or: "defendant knOWingly or consciously procured an act that resulted in the

death (of victim.)"

In addition, the Committee could propose revising the definition of "culpable negligence." The instruction could simply read as follows:

Culpable negligence is a course of conduct showing such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public.

This proposed definition deletes references to "reckless disregard of human life" and related language. In addition, this proposal deletes the reference to "intentional violation of such rights."

Conclusion

A solution to these problems in the instructions would be to revise the second­degree murder and manslaughter instruction to more closely track the statute. Jurors who find insufficient evidence of premeditation, but find the defendant's mental state to fit the "depraved mind regardless of human life," could properly consider the crime of second­degree murder. Similarly, where jurors find insufficient evidence of either premeditation or a "depraved mind," the jury could properly acquit of second-degree murder and consider whether the defendant committed the crime of manslaughter.

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Regarding the second-degree murder instruction, the Committee could propose the elimination of the "ill will, hatred, spite or evil intent" definition, and decline to define the phrase "depraved mind regardless of human life," citing State v. Bryan, 287 So. 2d 73, 76 (Fla. 1973), cert denied, 417 U.S. 912 (1974). Alternatively, the Committee could propose a definition similar to language in Larson v. State, 485 So. 2d 1372 (Fla. 1st DCA 1983), that a depraved mind regardless of human life "means "a wicked and corrupt disregard of the lives and safety of others [demonstrating] a failure to appreciate social duty." Or the definition of "depraved mind regardless of human life" could provide that the "killing evinced an evil and morall~ debased (corrupt)" act. See generally McCauley v. State. 405 So. 2d 1350, 1351 (Fla. 5t DCA 1981).

A final suggested alternative is to consider a comment to the second-degree murder and manslaughter instructions.

Thank you for your consideration of this proposal.

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