IN THE SUPREME COURT OF FLORIDA COMMENTS OF THE FLORIDA PUBLIC DEFENDER ASSOCIATION (FPDA)

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1 IN THE SUPREME COURT OF FLORIDA IN THE MATTER OF USE BY THE TRIAL COURTS OF THE STANDARD JURY INSRUCTIONS (CRIMINAL CASES) Case No. SC COMMENTS OF THE FLORIDA PUBLIC DEFENDER ASSOCIATION (FPDA) The Florida Public Defender Association (hereinafter FPDA), through the undersigned, files these comments in response to the proposed jury instructions on Justifiable Use of Deadly Force. Specifically, the FPDA believes that the ADefense of Home Against instruction should be amended but not completely deleted. It should be amended to reflect the legislative intent in Sec , F.S., that there is no duty to retreat but should remain as a separate instruction in those cases where warranted by the evidence. The Defense of Home Against Co-occupant instruction was judicially created by this Court and based upon the common law castle doctrine. See Weiand v. State, 732 So.2d 1044 (Fla. 1999). In Weiand the defendant shot her husband and was convicted of second degree murder. She presented expert witness that testified she suffered from battered spouse syndrome. The Second District affirmed her conviction on the authority of State v. Bobbitt, 415 So.2d 724 (Fla. 1982), which had held that a cohabitant of a residence is not entitled to an instruction on no duty to retreat.

2 In reviewing the case, the Supreme Court acknowledged the national trend towards recognizing that a spouse has no duty to retreat in the marital home and that this was particularly true in battered spouse syndrome cases. The Court found legislative support for the instruction in the numerous statutes enacted to protect victims of domestic violence. It also noted the executive branch had studied the matter in the Governor=s Task Force on Domestic Violence, and the judicial branch had become involved by establishing domestic violence courts around the state. The Court adopted a temporary ADefense of Home Against Co-Occupant@ instruction and referred the matter to the Committee on Jury Instructions in Criminal Cases. The Court then adopted it with some minor editorial changes. Standard Jury Instructions- Criminal Cases (Castle Doctrine), 789 So.2d 954 (Fla. 2000). In Weiand the Court held that the general instruction regarding no duty to retreat in one=s home was not sufficient; rather, a specific instruction involving a cooccupant was required. This Court held that without informing the jurors that the defendant had no duty to retreat from the residence when attacked by an co- 2

3 occupant the instructions were incomplete and possibly misleading. 732 So. 2d at The overriding concern in Weiand was the notion that failing to specifically instruct a jury that there was no duty to retreat from the residence when attacked by a co-occupant may adversely effect women or men in domestic violence situations. This Court recognized that myths surrounding domestic violence, particularly a vulnerable victim=s ability to leave an abusive environment, may actually be reinforced without a specific instruction that there is no duty to retreat. This concern is just as relevant today. Failing to specifically inform the jury in matters involving cooccupants would adversely effect those who are defending themselves against domestic violence. The Committee on Standard Instructions in Criminal Cases considered the following proposal: Defense of home against co-occupant If the defendant was attacked in [his][her] own home or on [his][her] own premises by a [co-occupant][any person who was lawfully on the premises], the defendant had no a duty to retreat within the residence. to the extent reasonably possible without increasing [his][her] own danger of death or 3

4 great bodily harm. However, [T]he defendant was not required to flee [his][her] home and had the lawful right to stand [his][her] ground and meet force with force, even to the extent of using deadly force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to [himself][herself]. The committee decided against the proposal on a 6-5 vote, apparently believing the general instruction on non-retreat was sufficient. However, as detailed above, it is the position of the FPDA that a specific instruction in cases involving co-occupants is still necessary the proposed instruction outlined above is an accurate statement of the law. This instruction reflects the legislative recognition of the common law castle doctrine in the second AWHEREAS@ clause in the session law, ch , and reflects the legislative intent which extends the protection to other public places. The particular needs of those in domestic violence situations should be addressed by a specific instruction detailing the right of self-defense against a co-occupant. 4

5 Wherefore, the foregoing comments are respectfully submitted to this court. Carey Haughwout, Public Defender Fifteenth Judicial Circuit of Florida rd Street West Palm Beach, FL Telephone: (561) Fax (561) Florida Bar No

6 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished to the Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida , and the committee chair, Judge Dedee S. Costello, Bay County Courthouse, P.O. Box 1089, Panama City, Florida on this the 14 th day of November, CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing was generated in Times New Roman 14 and complies with the font requirements of Rule of Appellate Procedure 9.210, and that the foregoing was electronically submitted in compliance with AOSC Carey Haughwout, Public Defender Fifteenth Judicial Circuit of Florida rd Street West Palm Beach, FL Telephone: (561) Fax (561) Florida Bar No