HENRY BLANCO AVILA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in omitting instructions on excusable and justifiable homicide in a second-degree felony murder case, nor in modifying the reasonable doubt instruction by substituting 'must' for 'should'.
[1] In a second-degree felony murder prosecution, an instruction on excusable and justifiable homicide is not required when manslaughter is not a lesser-included offense and…
[2] A deviation from standard jury instructions does not automatically require reversal if the given instructions provide adequate guidance to the jury.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of second-degree felony murder, armed burglary, and attempted robbery, where the victim of the felony murder was the defen…
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STONE, J.
We affirm Avila’s conviction on charges of second-degree felony murder, armed burglary, and attempted robbery. The “victim” of the felony murder was Avila’s co-perpetrator, Chavez, who was shot by the homeowner in the course of Avila and Chavez’s commission of the burglary and attempted robbery.
The trial judge recognized that neither excusable nor justifiable homicide would be a defense to second-degree felony murder and that manslaughter is not a lesser-included offense to second-degree felony murder; accordingly, instructions to the jury did not include a charge on excusable and justifiable homicide.
Additionally, the trial judge instructed the jury as follows on reasonable doubt, deviating from the standard instruction by substituting “must” for “should” where noted in bold:
If you have a reasonable doubt as to the material allegations contained within the information, you must find the defendant not guilty. If you have no reasonable doubt as to the material allegations contained within the information, then you must find the defendant guilty.
Avila’s objection to the use of the word “must” was overruled.
As a general rule, in homicide trials in which manslaughter appears on the verdict form, either as charged or as a lesser offense, the jury must be instructed as to the definitions of justifiable and excusable homicide. See State v. Lucas, 645 So. 2d 425 (Fla.1994); State v. Smith, 573 So. 2d 306 (Fla.1990). Manslaughter is a residual offense and can only be fully defined by exclusion of the properly explained defenses of excusable and justifiable homicide. See Lucas.
However, as the trial court recognized, where manslaughter is not a lesser-included offense to the degree of homicide charged, as in second-degree felony murder, there is no logical basis for requiring instruction on the definitions of excusable and justifiable homicide. In Hamilton v. State, 645 So. 2d 555 (Fla. 2d DCA 1994), opinion modified on other grounds, 660 So. 2d 1038 (Fla.1995), also a second-degree felony murder case, the district court rejected, without further comment, the defendant’s similar claim of error in the failure to give an instruction based on the defense’s theory of justifiable and excusable homicide. We agree; an instruction on excusable and justifiable homicide would only serve to mislead the jury where the true victim of the predicate offenses was justified in shooting one of the assailants, thus, leading to the charge of felony murder against the co-perpetrator. We also find no abuse of discretion in the trial court’s reasonable doubt instruction. The Florida Standard Jury In structions for Criminal Cases includes the following instruction on reasonable doubt:
Whenever the words “reasonable doubt” are used you must consider the following:
A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.
* * *
If you ’ have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.
Fla. Std. Jury Instr. (Crim.) p. 12-13 (emphasis added).
The standard language instructs the jury on its obligation to either acquit or convict depending on whether they find a reasonable doubt exists. In Thomas v. State, 525 So. 2d 945 (Fla. 4th DCA 1988), the same objection was raised, and Judge Glickstein recommended in his special concurring opinion to the per curiam affir-mance, that the standing bar committee consider rewriting the last paragraph to read “must” instead of “should.” His comments demonstrate the resultant consistency between the initial and final paragraphs where “must” is substituted for “should,” as in this case.
Deviations from the standard instructions do not require reversal. See State v. Bryan, 287 So. 2d 73 (Fla.1973). In Bryan, the court noted that “[w]hat is important is that sufficient instructions— not necessarily academically perfect ones — be given as adequate guidance to enable a jury to arrive at a verdict based upon the law as applied to the evidence before them.” Id. at 75.
As to all other issues raised, we also find no reversible error or abuse of discretion.
KLEIN and STEVENSON, JJ., concur.
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Avila v. State, 781 So. 2d 413 (Fla. 4th DCA 2001)…ly on the collective recollection of the six of you in determining what the various factual questions that you have. After deliberating, the jury found Avila guilty as charged. This court then affirmed his convictions on appeal. See Avila v. State, 745 So. 2d 983 (Fla. 4th DCA 1999). Avila, however, subsequently filed a petition for writ of habeus corpus alleging ineffective assistance of appellate counsel, in part for failing to argue that the trial court erred in its response to the jury’s notes. We then g…
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Dean v. State, 230 So. 3d 420 (Fla. 2017)…arily lesser included offense of second-degree felony murder and, therefore, the trial court was required to give the instruction. Dean, 199 So. 3d at 935. The Fourth District affirmed the trial court’s ruling, citing its decision in Avila v. State, 745 So. 2d 983 (Fla. 4th DCA 1999), in which it stated that “ ‘manslaughter is not a lesser-included offense’ of ‘second-degree felony murder.’ ” Id. (quoting Avila, 745 So. 2d at 984). The Fourth District concluded that Avila had been correctly decided based on t…
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In re Standard Jury Instructions IN Crim. Cases- Report NO. 2013-03, 146 So. 3d 1110 (Fla. 2014)…was based on a construction of Fla. Stat. § 784.07, which ex [*1117] plicitly contains a knowledge requirement. As of May 2013, no case has decided whether knowledge of the victim’s status is an element under Fla. Stat. § 782,065. * Avila v. State, 745 So. 2d 983 (Fla. 4th DCA 1999) indicates that manslaughter is not a Category One lesser included offense of second degree felony murder, but see State v. Montgomery, 39 So. 3d 252 (Fla.2010). This instruction was adopted in 1981and amended in 1985 and 2014.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Smith, 573 So. 2d 306 (Fla. 1990)
- State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)
- State v. Bryan, 287 So. 2d 73 (Fla. 1973)
- State v. Lucas, 645 So. 2d 425 (Fla. 1994)
- Peeples v. State, 645 So. 2d 555 (Fla. 2d DCA 1994)
- LaBron A. Rodgers v. State, 645 So. 2d 555 (Fla. 2d DCA 1994)
- Thomas v. State, 525 So. 2d 945 (Fla. 4th DCA 1988)