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					                         SUBSTANTIVE CRIMINAL LAW
                               SUMMER 2005
                            PROFESSOR COOMBS
                                 HANDOUT




775.01. Common law of England

 The common law of England in relation to crimes, except so far as the same relates to the modes
and degrees of punishment, shall be of full force in this state where there is no existing provision
by statute on the subject.



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                                  Rodney THOMAS, Petitioner,
                                             v.
                                STATE of Florida, Respondent.

                                          531 So.2d 708

                                    Supreme Court of Florida.

                                          Aug. 18, 1988.


BARKETT, Justice.

...

 Petitioner was arrested after a confidential informant advised police that petitioner had
committed a number of burglaries in a particular neighborhood. During surveillance, police saw
petitioner jump over a fence and attempt to run away. At the time, petitioner was wearing a pair
of socks over his hands and carrying a screwdriver. Petitioner admitted he had entered the area
to commit a burglary, but had been arrested before being able to perpetrate the crime.

 At trial, the court granted petitioner's motion to dismiss. The trial court specifically found that
without the confession, there was insufficient evidence to establish beyond a reasonable doubt
the corpus delicti of a violation under section 810.06, Florida Statutes (1985), Florida's burglary
tool statute.

On appeal, the Fourth District reversed. . .

 This case asks us to determine under what circumstances the state may criminalize the
possession of common household items under the burglary tool statute. Our analysis of this
problem begins with an examination of the statute and the criminal law theories upon which it
rests.

  Where a person is accused of possessing "burglary" tools, the state must prove beyond every
reasonable doubt not merely that the accused intended to commit a burglary or trespass while
those tools were in his possession, but that the accused actually intended to use those tools to
perpetrate the crime. The statute is specific on this point:
Whoever has in his possession any tool, machine, or implement with intent to use the same, or
allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the
third degree....
 § 810.06, Fla.Stat. (emphasis added). Thus, the statute criminalizes the intent to use an item in
an illegal way. Mere possession standing alone will not constitute a crime.

 This statute poses problems for our courts. First, it raises the difficulty of discerning something
intangible--intent--without which there can be no crime. Second, it opens the door for the
abusive or pretextual arrest of persons merely found to possess common household items.



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 Previously we attempted to deal with these problems in Foster v. State, 286 So.2d 549
(Fla.1973), receded from on other grounds, Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), by
drawing a distinction between common household items and devices that are per se burglary
tools. This conclusion subsequently was embodied in the standard jury instruction. See Fla.Std.
Jury Instr. (Crim.), at 138.

 However, similar concerns have been raised and answered under the common law theory of
attempts, and we believe the problem before us today is better resolved by resort to those
principles. Indeed, we conclude that the burglary tool statute actually describes and prohibits a
crime in the nature of an attempt. In effect, it criminalizes an attempt to commit a burglary or
trespass, which is discerned through the possession of tools or devices coupled with the
defendant's intent to use those tools in the commission of the crime.

 Previously, we have held that an attempt exists only when there is
  an intent to commit a crime, coupled with an overt act apparently adapted to effect that intent,
  carried beyond mere preparation, but falling short of execution of the ultimate design.
 Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923). Essentially, we have required the state
to prove two general elements to establish an attempt: a specific intent to commit a particular
crime, and an overt act toward its commission. That is, the overt act must manifest the specific
intent. Under this requirement, the state is barred from prosecuting a person solely because he or
she expresses a criminal intent but does not act upon it. We believe the problem confronted in
Foster can be resolved by applying these same limitations to the burglary tool statute, without
requiring that a distinction be drawn between common and uncommon devices.

 Under this analysis, then, the specific intent to commit a burglary or trespass using tools,
instruments or machines in the defendant's possession or control exists when he or she engages
in or causes some overt act toward the commission of the burglary or trespass, which goes
beyond merely thinking or talking about it. The overt act necessary to prove intent need not be
limited to the actual use of an item in committing the trespass or burglary, but need only manifest
the specific criminal intent.


We now apply these principles to the facts of this case.

 Although it is true that corpus delicti cannot be established solely by resort to a confession,
Hodges v. State, 176 So.2d 91 (Fla.1965), the existence of additional substantial direct or
circumstantial evidence of a violation is enough to allow the case to go to a jury trial. We believe
there is sufficient evidence establishing corpus delicti to warrant a trial by jury in this case.

 Here, the accused was identified by a confidential informant, and was arrested in a frequently
burglarized neighborhood while wearing socks on his hands, carrying a screwdriver, and
attempting to jump a fence and run away. Even without the confession, this is sufficient evidence
of criminal intent to establish prima facie the corpus delicti of a violation under section 810.06.
Petitioner's activity in the particular neighborhood in question constitutes an overt act from
which the requisite intent might be inferred by a jury of reasonable men and women. Once the



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corpus delicti is established, the state is entitled to introduce the confession, subject to any
applicable constitutional restrictions, to meet its burden of proof.


It is so ordered.




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                                 .Thomas W. FREY, Petitioner,
                                             v.
                                STATE of Florida, Respondent.

                                          708 So.2d 918

                                    Supreme Court of Florida.

                                          March 5, 1998.

SHAW, Justice.

 We have for review Frey v. State, 679 So.2d 37 (Fla. 2d DCA 1996), wherein the court certified:
  Is the offense of resisting arrest with violence a specific intent crime to which the defense of
  voluntary intoxication applies?
 Id. at 38. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative and
approve Frey.
 Deputy Britt was on uniformed patrol at 11:30 p.m., April 20, 1994, when he saw Thomas Frey
acting suspiciously near Earl's Trailer Park. Britt asked Frey for identification, and when a radio
check showed an outstanding arrest warrant, Britt attempted to handcuff him. Frey, who was
very drunk (his blood alcohol level was .388, or approximately four times the legal limit for
driving), said, "I'm not going to jail," and grabbed Britt's throat with both hands, choking him.
Britt tried to break free but could not. The deputy kicked and punched Frey, and in a final
attempt to free himself, shot Frey in the legs. Both Britt and Frey were treated at the hospital for
their injuries.

 Frey was charged with aggravated battery on a law enforcement officer and resisting arrest with
violence. He was tried before a jury and in closing argument defense counsel argued that Frey
had been too drunk to form the specific intent to commit the crimes. The prosecutor, on the
other hand, told the jury that while voluntary intoxication is a defense to aggravated battery, it is
not a defense to resisting arrest with violence. The judge in his instructions to the jury echoed
the prosecutor's statement of the law. Frey was convicted of battery and resisting arrest with
violence. The district court affirmed and certified the above question.

 Frey argues that resisting arrest with violence is a specific intent crime and that his requested
instruction on voluntary intoxication should have been given on this charge. He asserts that the
trial court erred not only in denying the instruction but also in instructing the jury that voluntary
intoxication is not a defense to resisting arrest with violence. We disagree.

Voluntary intoxication has long been recognized in Florida as a defense to specific intent crimes,
as this Court noted in Linehan v. State, 476 So.2d 1262 (Fla.1985):
  [W]e note that this Court has long recognized voluntary intoxication as a defense to specific
  intent crimes. Cirack v. State, 201 So.2d 706 (Fla.1967); Garner v. State, 28 Fla. 113, 9 So.
  835 (1891). In Garner we stated that when




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 a specific or particular intent is an essential or constituent element of the offense, intoxication,
 though voluntary, becomes a matter for consideration ... with reference to the capacity or
 ability of the accused to form or entertain the particular intent, or ... whether the accused was in
 such a condition of mind as to form a premeditated design. Where a party is too drunk to
 entertain or be capable of forming the essential particular intent, such intent can of course not
 exist, and no offense of which such intent is a necessary ingredient, [can] be perpetrated.
 28 Fla. at 153-54, 9 So. at 845.
Linehan, 476 So.2d at 1264. The defense, however, is unavailable for general intent crimes. Id.

 Professor LaFave describes the general contours of specific intent, as opposed to general intent,
crimes:
  [T]he most common usage of "specific intent" is to designate a special mental element which is
  required above and beyond any mental state required with respect to the actus reus of the
  crime. Common law larceny, for example, requires the taking and carrying away of the
  property of another, and the defendant's mental state as to this act must be established, but in
  addition it must be shown that there was an "intent to steal" the property. Similarly, common
  law burglary requires a breaking and entry into the dwelling of another, but in addition to the
  mental state connected with these acts it must also be established that the defendant acted "with
  intent to commit a felony therein." The same situation prevails with many statutory crimes:
  assault "with intent to kill" as to certain aggravated assaults; confining another "for the
  purpose of ransom or reward" in kidnapping; making an untrue statement "designedly, with
  intent to defraud" in the crime of false pretenses; etc.
 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 3.5(e)(1986)(footnotes
omitted).

To determine whether resisting arrest with violence is a general intent or specific intent crime,
we look to the plain language of the statute:
 843.01 Resisting officer with violence to his person.--Whoever knowingly and willfully resists,
 obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or
 doing violence to the person of such officer ... is guilty of a felony of the third degree....
§ 843.01, Fla. Stat. (1993).

 The statute's plain language reveals that no heightened or particularized, i.e., no specific, intent
is required for the commission of this crime, only a general intent to "knowingly and willfully"
impede an officer in the performance of his or her duties. In fact, the statute is similar in format
to the statute defining arson, which we held to be a general intent crime. [FN1] Only if the
present statute were to be recast to require a heightened or particularized intent would the crime
of resisting arrest with violence be a specific intent crime. [FN2] Our holding is in harmony with
our precedent.

       FN1. See Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) (The arson statute reads in
       part: "Any person who willfully and unlawfully, by fire or explosion, damages or causes
       to be damaged ... [a] dwelling ... is guilty of arson in the first degree which constitutes a
       felony of the first degree....").




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       FN2. For instance, the statute might be recast to read: "Whoever knowingly and willfully
       resists ... an officer ... in the lawful execution of any legal duty, with the intent of doing
       violence to the person of such officer ... is guilty of a felony of the third degree."


 Based on the foregoing, we answer the certified question in the negative and approve the result
in Frey as explained herein.

It is so ordered.


HARDING, Justice, concurring:

 In his concurrence, Justice Anstead raises some important concerns regarding the distinction
between specific and general intent crimes. I agree with Justice Anstead that this is a very
confusing area of the law. See Linehan v. State, 442 So.2d 244, 246 (Fla. 2d DCA 1983) ("The
distinction between 'specific' and 'general' intent crimes is nebulous and extremely difficult to
define and apply with consistency.") approved, 476 So.2d 1262 (Fla.1985). However, this is not
the right case to consider abolishing the distinction between specific and general intent crimes.
The district court below did not address the possibility of doing away with the distinction and the
parties have not had a chance to brief this issue.

 If this Court were to ever consider eliminating the distinction between specific and general
intent crimes, it should also consider abolishing the defense of voluntary intoxication, except as
it applies to first-degree premeditated murder. Voluntary intoxication is not a statutory defense. .
. . In Montana v. Egelhoff, the United States Supreme Court determined that a state may abolish
the voluntary intoxication defense and that doing so does not violate due process.

ANSTEAD, Justice, concurring in part and dissenting in part.

 This case presents an ideal opportunity for this Court to act on Justice Shaw's cogent
observation that "the nebulous distinction between general and specific intent crimes and the
defense of voluntary intoxication bear reexamination in a suitable case." . . ..

 I believe that the artificial distinction we have established between general and specific intent,
with only specific intent crimes warranting additional defenses such as voluntary intoxication,
often leads to incongruous and harsh results. Countless commentators and courts have criticized
the lack of a principled and useful basis for maintaining this distinction. As one commentator
has noted:
  These arcane rules, which relieve the State of its obligation to prove mens rea in cases in which
  the charged offense is characterized as one requiring only general intent, thereby creating a
  form of strict liability, are illogical. They remove from the criminal proceedings precisely that
  inquiry which is central to the construction of individual responsibility--the question of
  whether the defendant was capable of engaging in a process of practical reasoning.




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 Richard C. Boldt, The Construction of Responsibility in the Criminal Law, 140 U. Pa. L.Rev.
2245, 2307 n. 240 (1992). Another observer similarly finds the terms confusing and of little
value:
  Since the terms do not clearly delineate for the jury (or anyone else) what blameworthy state of
  mind must exist in any given situation, it would seem senseless to instruct a jury in these
  amorphous terms. It would be much better to tell the jury that, for guilt, a defendant must have
  thought about (or have been reckless concerning) certain definite things. If he did, and also
  performed the requisite acts, he is to be found guilty. If he did not so contemplate and act, he
  is to be acquitted.
 William Roth, General vs. Specific Intent: A Time for Terminological Understanding in
California, 7 Pepp. L.Rev. 67, 77-78 (1979).

 Consider how Florida courts, including this one, have treated the issue now before us. This
Court and the district courts have previously held that resisting arrest with violence is a specific
intent crime. See Colson v. State, 73 So.2d 862, 862 (Fla.1954) . . . . In the present case, the
Second District noted it would have followed Gonzales and Colson but felt compelled to affirm
the conviction based on language in Linehan. Frey v. State, 679 So.2d 37, 38 (Fla. 2d DCA
1996). The court aptly noted that "[t]he supreme court has never receded from" Colson. Id. at
38. Does all this sound confusing?

 Since this perplexing division between "general" and "specific" is judicially created, we should
seriously consider whether now is the time to revise this ill-conceived framework. [FN4] Rather
than splitting hairs and attempting to draw a bright line through the murky and ill-defined
netherworld that separates general from specific intent, our time would be better spent giving
effect to the legislative intent behind a particular statute and focusing on the degree of culpability
along the lines clearly delineated in the Model Penal Code. Other than the "nebulous distinction"
separating general from specific intent crimes, no compelling policy reasons exist which support
the availability of additional aggravated assault, battery, aggravated battery, burglary, escape,
and theft, while denying the application of such defenses to "general" intent crimes such as
resisting a police officer with violence or arson. The only difference I can see is that, for the
most part, the statutes defining the former category have the magic words "with intent to," while
the latter crimes do not. [footnotes omitted]

       FN4. Consider how courts resolve the threshold issue of what separates general from
       specific intent. The California Supreme Court uses the following test to distinguish
       between the degrees of criminal intent:
       When the definition of a crime consists of only the description of a particular act, without
       reference to intent to do a further act or achieve a future consequence, we ask whether the
       defendant intended to do the proscribed act. This intent is deemed to be a general
       criminal intent. When the definition refers to defendant's intent to do some further act or
       achieve some additional consequence, the crime is deemed to be one of specific intent. . .

       Let us also consider how a statute's wording has been used in determining what is and is
       not a specific intent crime. The adverbs "knowingly, willfully, and intentionally" are the
       most commonly used. The term "knowingly" by itself does not create a specific intent




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       crime. . . .Similarly, the word "willful" does not signal a specific intent requirement,
       instead meaning no more than "a willingness to do the proscribed act." . . .
       Likewise, an offender who "intentionally" eludes police and violently resists arrest is
       culpable of more than negligence or recklessness, but the term "does not designate an
       additional mental state beyond that accompanying the act." . . .. In contrast, a statute's use
       of the word "intent" can create a specific intent crime. . . .



                                    "GENERAL" vs. "SPECIFIC"

 In State v. Stasio, 78 N.J. 467, 396 A.2d 1129 (1979), the New Jersey Supreme Court grappled
with the distinction between specific and general intent. Quoting Professor Hall's treatise, the
court reasoned:
  The current confusion resulting from diverse uses of "general intent" is aggravated by dubious
  efforts to differentiate that from "specific intent." Each crime ... has its distinctive mens rea,
  e.g., intending to have forced intercourse, intending to break and enter a dwelling-house and to
  commit a crime there, intending to inflict a battery, and so on. It is evident that there must be
  as many mentes reae as there are crimes. And whatever else may be said about an intention, an
  essential characteristic of it is that it is directed toward a definite end. To assert therefore that
  an intention is "specific" is to employ a superfluous term just as if one were to speak of a
  "voluntary act."
 Id. at 1132-33 (quoting Jerome Hall, General Principles of Criminal Law 142 (2d ed.1960)).
The New Jersey high court went on to explain that:
  [D]istinguishing between specific and general intent gives rise to incongruous results by
  irrationally allowing intoxication to excuse some crimes but not others. In some instances if
  the defendant is found incapable of formulating the specific intent necessary for the crime
  charged, such as assault with intent to rob, he may be convicted of a lesser included general
  intent crime, such as assault with a deadly weapon. In other cases there may be no related
  general intent offense so that intoxication would lead to acquittal....
  ... [W]here the more serious offense requires only a general intent, such as rape, intoxication
  provides no defense, whereas it would be a defense to an attempt to rape, specific intent being
  an element of that offense. Yet the same logic and reasoning which impels exculpation due to
  the failure of specific intent to commit an offense would equally compel the same result when
  a general intent is an element of the offense.
 Stasio, 396 A.2d at 1133-34 (citations omitted).

 Even the United States Supreme Court has recognized that "the mental element in criminal law
encompasses more than the two possibilities of 'specific' and 'general' intent." See Liparota v.
United States, 471 U.S. 419, 423 n. 5, 105 S.Ct. 2084, 2087 n. 5, 85 L.Ed.2d 434 (1985). Indeed,
the Court has explained that:
  This ambiguity [in the terms specific intent and general intent] has led to a movement away
  from the traditional dichotomy of intent and toward an alternative analysis of mens rea. This
  new approach [is] exemplified by the American Law Institute's Model Penal Code....
  ....




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  ... [T]here is [an] ambiguity inherent in the traditional distinction between specific intent and
  general intent. Generally, even time-honored common-law crimes consist of several elements,
  and complex statutorily defined crimes exhibit this characteristic to an even greater degree. Is
  the same state of mind required of the actor for each element of the crime, or may some
  elements require one state of mind and some another? ... "[C]lear analysis requires that the
  question of the kind of culpability required to establish the commission of an offense be faced
  separately with respect to each material element of the crime."
 United States v. Bailey, 444 U.S. 394, 403-06, 100 S.Ct. 624, 631-33, 62 L.Ed.2d 575 (1980)
(quoting Model Penal Code § 2.02 comments at 123 (Tentative Draft No. 4, 1955)).

 Consistent with the views expressed above, Professors LaFave and Scott suggest an alternative
method for evaluating the effect of voluntary intoxication on a defendant's ability to exhibit the
requisite mens rea of a particular crime:
  [I]t may be said that it is better, when considering the effect of the defendant's voluntary
  intoxication upon his criminal liability, to stay away from those misleading concepts of general
  intent and specific intent. Instead one should ask, first, what intent (or knowledge) if any does
  the crime in question require; and, then, if the crime requires some intent (knowledge), did the
  defendant in fact entertain such an intent (or, did he in fact know what the crime requires him
  to know.)
 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 4.10 at 554 (1986).
[FN18]

       FN18. Other scholars have described the confusion attended by analyzing a statute using
       the concepts of specific and general intent: "Offense analysis"--under which each offense
       has one state of mind requirement--existed and continues to exist as the dominant view of
       mens rea. Rather than requiring culpability as to "each material element," for example,
       several codes require an "act or intent, or criminal negligence" for "every crime or public
       offense." Courts and statutes continue to speak of "general intent offenses" and "specific
       intent offenses." Even the modern codes contain references to "an offense for which [a
       specified level of culpability] suffices to establish culpability," as if only one culpability
       level applied to each offense.
       The offense analysis approach continues even though it is not clearly viable even within
       its own terms. Unlike the "wickedness" notion [where each offense has one state of mind
       requirement], which could be applied generally, the specific state of mind requirement
       necessarily involves recognition of the multifaceted nature of the mental state for each
       offense. Under offense analysis, burglary requires an intention to commit a felony within
       a dwelling at night. Yet this "intention" requirement has several distinguishable parts:
       the intent to enter, the intent to do so at night, the intent that the building be a dwelling,
       and the intent to commit a felony within. Just as a broken clock is correct twice a day,
       offense analysis can accurately describe the culpability elements of an offense only if the
       same level of culpability (e.g., intention) is fortuitously the appropriate one for each
       element of an offense. But where different culpability levels are appropriate for different
       elements, offense analysis fosters definitions that obscure but do not eliminate the
       confusion.




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       Paul H. Robinson & Jane A. Grall, Element Analysis in Defining Criminal Liability: the
       Model Penal Code and Beyond, 35 Stan. L.Rev. 681, 688-89 (1983) (second brackets
       added).

 In a sense we are already moving in this direction. For example, we recently held that the State
was required to prove that the defendant knowingly possessed illegal drugs even though the
applicable statute did not specifically include a scienter requirement. Chicone v. State, 684
So.2d 736, 744 (Fla.1996). We reasoned that "if the legislature had intended to make criminals
out of people who were wholly ignorant of the offending characteristics of items in their
possession, and subject them to lengthy prison terms, it would have spoken more clearly to that
effect." Id. at 743. Accordingly, we concluded that it was the legislature's intent "to prohibit the
knowing possession of illicit items and to prevent persons from doing so by attaching a
substantial criminal penalty to such conduct." Id. at 744. In the end, we found that "[s]ilence
does not suggest that the legislature dispensed with scienter here." Id. We have also recently
decided in Thompson v. State, 695 So.2d 691 (Fla.1997), that a defendant must be aware that his
intended victim is a police officer, before he can be convicted of attempted murder of a police
officer.

                                           THIS CASE

 The extreme facts of this case underscore the faulty rationale, if any, for maintaining the
irrational division of criminal intent between "general" and "specific." As the majority opinion
notes, Mr. Frey had a blood alcohol level of 0.388, approximately four times the legal limit for
driving. Majority op. at 918-19. The arresting officer, Deputy Britt, testified that he believed
Frey was drunk because he swayed, smelled of alcohol, babbled, could not stand still, and spoke
in a loud, slurred and unintelligible voice. An emergency room physician testified that when
persons have such a high level of alcohol in their systems, they may suffer blackouts, thus
meaning they can do something and not remember it later. Finally, the trial judge commented
that he had only seen one person with a higher blood alcohol content than Frey's in three to four
years. He noted that emergency medical personnel usually take such severely intoxicated people
directly to the hospital since normally "you're going to die on them. And I'm worried about
that." By any measure, Mr. Frey was severely intoxicated and a serious question exists as to his
capability of forming an intent, general or specific, to commit the crime at issue.

 Against this factual backdrop, let us consider the criminal offense involved herein. Section
843.01, Florida Statutes (1993), provides:
  Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful
  execution of any legal duty, by offering or doing violence to the person of such officer ... is
  guilty of a felony of the third degree....
 (Emphasis added.) The statute defines the prohibited act and the requisite degree of
blameworthiness to establish guilt. The statute's language requires that the offender's level of
culpability be greater than negligence or recklessness by including a "knowledge" element. It
logically follows that if a person is charged with "knowingly and willfully" restricting,
obstructing, or opposing a law enforcement officer "in the lawful execution of any legal duty,"
one element of the crime is that the alleged offender knew that the person he was resisting was a




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law enforcement officer. This is precisely the interpretation mandated by our recent holding in
Thompson . . .
                                          CONCLUSION
 To violate section 843.01, it is evident that "knowledge" of the fact that one is obstructing an
officer is an element of the crime of resisting arrest with violence. Therefore, under the sensible
"element" approach to determining whether voluntary intoxication can negate the mental element
of a crime, it is apparent that a defendant would be allowed to put on evidence that his level of
intoxication rendered him unable to form the "knowledge" element of the crime of resisting
arrest with violence under section 843.01. [FN20]


       FN20. This result makes sense as a practical matter. There is certainly serious doubt as to
       whether an extremely intoxicated defendant can actually "know" what he is doing. One
       writer sums up the abstract theory of specific intent by stating that it is "apparent that the
       criminal liability of the grossly intoxicated offender depends upon the crime fortuitously
       committed while incapacitated." Comment, Criminal Law: Chronic Alcoholism as a
       Defense to Crime, 61 Minn. L.Rev. 901, 904 n. 14 (1977) (quoting Robert L. Deddins,
       Note, Volitional Fault and the Intoxicated Criminal Offender, 36 U. Cin. L.Rev. 258, 276
       (1967)).

 I therefore conclude that the trial court should have granted petitioner's request for an instruction
on the defense of voluntary intoxication.




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                             Jerry Jay CHICONE, III, Petitioner,
                                             v.
                                STATE of Florida, Respondent

                                          684 So.2d 736

                                    Supreme Court of Florida.

                                          Oct. 24, 1996.



ANSTEAD, Justice.

 We have for review Chicone v. State, 658 So.2d 1007 (Fla. 5th DCA 1994). We accepted
jurisdiction based upon conflict with numerous decisions. . . We hold that guilty knowledge is
an element of possession of a controlled substance under section 893.13(1)(f), Florida Statutes
(1991), and possession of drug paraphernalia under section 893.147(1), Florida Statutes (1995).

                                   PROCEEDINGS TO DATE

 Jerry Jay Chicone, III, was convicted of possession of cocaine, a third- degree felony, [FN1] and
possession of drug paraphernalia, a first- degree misdemeanor. [FN2] On appeal, Chicone . . .
asserted that the trial court erred in refusing to instruct the jury that the State had to prove he
knew the substance he possessed was cocaine and the object he possessed was drug
paraphernalia. The district court rejected these contentions, affirmed Chicone's convictions, but
reversed on several sentencing issues.

FN1. § 893.13(1)(f), Fla. Stat. (1991) (now codified at section 893.13(6)(a), Florida Statutes
(1995)):
       It is unlawful for any person to be in actual or constructive possession of a controlled
       substance unless such controlled substance was lawfully obtained from a practitioner or
       pursuant to a valid prescription or order of a practitioner while acting in the course of his
       professional practice or to be in actual or constructive possession of a controlled
       substance except as otherwise authorized by this chapter. Any person who violates this
       provision commits a felony of the third degree, punishable as provided in s. 775.082, s.
       775.083, or s. 775.084.

       FN2. § 893.147(1), Fla. Stat. (1995):
       USE OR POSSESSION OF DRUG PARAPHERNALIA--It is unlawful for any person to
       use, or to possess with intent to use, drug paraphernalia:
       (a) To plant, propagate, cultivate, grow, harvest, manufacture, compound, convert,
       produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a
       controlled substance in violation of this chapter; or (b) To inject, ingest, inhale, or
       otherwise introduce into the human body a controlled substance in violation of this



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       chapter.
       Any person who violates this subsection is guilty of a misdemeanor of the first degree,
       punishable as provided in s. 775.082 or s. 775.083.

                                       LAW and ANALYSIS
                                        Guilty Knowledge

 We hold that guilty knowledge is part of the statutory offenses charged.. . . .
                                               Oxx

 Perhaps the most comprehensive discussion of the issue is contained in Judge Cowart's opinion
in State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). In Oxx, the Fifth District discussed a
statute which made it unlawful to possess certain contraband articles on the grounds of any
county detention facility. At issue was whether the statute was unconstitutional due to a lack of a
scienter element. The court held that the constitutional issue was mooted because guilty
knowledge was an element of the statute, as it was in other criminal possession statutes:

  Section 893.13, Florida Statutes (1981), prohibiting the actual or constructive possession of a
  controlled substance, and its predecessors, have never specifically required "knowing"
  possession, yet possession has always been defined to include knowledge of the same. A
  similar construction has been placed on other criminal possession statutes. Although the
  legislature may punish an act without regard to any particular (specific) intent, the State must
  still prove general intent, that is, that the defendant intended to do the act prohibited.
Proof of an act does raise a presumption that it was knowingly and intentionally done. . . .
We concur in what we perceive to be the essential thrust of the Oxx opinion, that "guilty
knowledge" must be established in a simple drug possession case. [FN6]


       FN6. While no additional "evil intent" beyond knowledge of the nature of the contraband
       substance need be established, we believe that "knowledge" to be the equivalent of the
       "scienter" requirement of the common law. . . . We have generally used "mens rea,"
       "scienter," and "guilty knowledge" loosely and interchangeably in this opinion.
       Constructively, in effect, the defendant has an "evil intent" under the illegal drug
       possession statutes if he or she knowingly possesses a prohibited item. That, in fact, is
       the very "evil" addressed by the statute.

                             Common Law and Statutory Construction

       ...

 At common law, all crimes consisted of an act or omission coupled with a requisite mental
intent or mens rea. . . . However, since the legislature is vested with the authority to define the
elements of a crime, determining whether scienter is an essential element of a statutory crime is a
question of legislative intent. . . .

Historically, some courts have drawn a distinction between statutes codifying crimes recognized



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at common law and statutes that proscribe conduct not prohibited at common law. . . Thus, one
rule of statutory interpretation has emerged suggesting that the legislature continued to require
intent where codifying crimes mala in se, but where codifying crimes mala prohibita, intent was
not required. However, many courts and commentators have strongly suggested that this is an
"unsound criterion to follow." . . . We agree that this method of statutory analysis is of little help
here.

Other courts have focused on the patent inconsistency in the imposition of substantial criminal
sanctions to conduct that does not include scienter. See United States v. X-Citement Video, Inc.,
513 U.S. 64, ----, 115 S.Ct. 464, 469, 130 L.Ed.2d 372 (1994)(holding that harsh penalties of up
to ten years in prison and substantial fines and forfeiture for violation of child pornography
statute supported interpretation of statute to require that defendant have knowledge of minority
of performer). . . . For example, the United States Supreme Court has stated:
  ....
  In rehearsing the characteristics of the public welfare offense, we, too, have included in our
  consideration the punishments imposed and have noted that "penalties commonly are relatively
  small, and conviction does no grave damage to an offender's reputation." Morissette, 342 U.S.,
  at 256, 72 S.Ct., at 246. We have even recognized that it was "[u]nder such considerations"
  that courts have construed statutes to dispense with mens rea. Ibid.
  Our characterization of the public welfare offense in Morissette hardly seems apt, however, for
  a crime that is a felony.... In this view, absent a clear statement from Congress that mens rea is
  not required, we should not apply the public welfare offense rationale to interpret any statute
  defining a felony offense as dispensing with mens rea. But see Balint, supra.
 We agree with this view and, consistent therewith, conclude that the criminal statutes at issue
before us today are more akin to offenses that presume a scienter requirement in the absence of
express contrary intent. The penalties imposed for violating sections 893.13(6)(a) and 893.147(1)
are incongruous with crimes that require no mens rea. For example, a defendant convicted of
possession of a controlled substance can receive up to five years imprisonment and a fine of up
to $5,000. §§ 775.082(3)(d), 775.083(1)(c), Fla. Stat. (1995).


 We are also influenced by the fact that "[t]he existence of a mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal jurisprudence." . . . There is no such
indication of legislative intent to dispense with mens rea here. Our holding depends substantially
on our view that if the legislature had intended to make criminals out of people who were wholly
ignorant of the offending characteristics of items in their possession, and subject them to lengthy
prison terms, it would have spoken more clearly to that effect. . . . [A] strict reading of the statute
with no scienter requirement would render criminal a mail carrier's unknowing delivery of a
package which contained cocaine. . .

 Of course, [the legislature] could have intended that this broad range of conduct be made
 illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid
 such harsh results. However, given the paucity of material suggesting that [the legislature] did
 so intend, we are reluctant to adopt such a sweeping interpretation.
...
 The group of offenses punishable without proof of any criminal intent must be sharply limited.



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   The sense of justice of the community will not tolerate the infliction of punishment which is
   substantial upon those innocent of intentional or negligent wrongdoing; and the law in the last
   analysis must reflect the general community sense of justice.
 Sayre, supra, at 70. In short, we conclude that good sense and the background rule of the
common law favoring a scienter requirement should govern interpretation of the two statutes in
this case. We believe it was the intent of the legislature to prohibit the knowing possession of
illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to
such conduct. Thus, we hold that the State was required to prove that Chicone knew of the illicit
nature of the items in his possession. . . .It is so ordered.




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MISTAKE OF FACT AND THE MODEL PENAL CODE:1

        This page gives the general concepts. The next page gives examples.
        Note: Usually the “fact” in issue is a circumstance element of an offense, receiving stolen
property. Less commonly, the “fact” can be a result element. Thus, a drunk driver might be
liable for reckless manslaughter for consciously creating a substantial risk of death, even though
she honestly but “mistakenly” believes that she will not cause death.

    “Culpability” required with                         What kind of mistake
    respect to a fact:                                  gives D a complete
                                                        defense?
    1. Purpose of                                      Any mistake exculpates—
    “knowledge” belief2                                whether the mistake is
                                                       reckless, negligent, or
                                                       reasonable3 If D honestly
                                                       is mistaken in believing
                                                       that the fact does not exist,
                                                       he cannot be convicted. He
                                                       is only “culpable” if he
                                                       actually believes that the
                                                       fact does exist.
    2. Reckless                                        A negligent or reasonable
                                                       mistake exculpates. (D is
                                                       “culpable” only if his
                                                       mistake is reckless.4
     3. Negligent                                      A reasonable mistake
                                                       exculpates. (D is
                                                       “culpable” only if his
                                                       mistake is reckless or
                                                       negligent.)
    4. Strict liability                                No mistake exculpates. (D
                                                       is “culpable” no matter
                                                       what type of mistake he
                                                       makes—reckless,
                                                       negligent, or reasonable




1 Adapted in part from Robinson and Frall, Element Analysis in Defining Criminal Liability: The Model
Penal Code and Beyond, 35 Stan. L. Rev. 681, 728 (1983).
2 If the law requires you to “know” something, then you must believe it, and it must also be true. Your

“belief” is the relevant mental state, while the “truth” of the fact is a circumstance element.
3 “Reasonable” means neither reckless nor negligent.
4 Of course, D is also culpable under 2,3, and 4 if he is not even mistaken, but actually knows (believes)

that the fact exists.


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FOUR EXAMPLES

1. Statutory rape in state X requires that D have sexual intercourse with V “knowing” that V is
under 16 years of age. Suppose D has intercourse with V, who is in fact under 16 years of age.
What kind of mistake will exculpate D?

        D is not guilty so long as he mistakenly and honestly believes that the legally required
fact (that she is under 16) does not exist—i.e., so long as he believes she is not under age. Any
mistake, no matter how unreasonable, will exculpate.

       Specifically, any of the following mistakes will exculpate:

       a.      “Reckless” mistake: D is consciously aware of a substantial chance that V is
               under age, though he does not actually believe (“know”) that she is under age; and
               his disregard of that chance is grossly unreasonable. For example, he consciously
               wonders whether she is under age; he elicits from her an implausible explanation
               of a “mysterious illness”; he is an extremely gullible person, and he mistakenly
               believes she is over age; and his mistake is grossly unreasonable.

       b.      “Negligent” mistake: D should be aware that V is under age, and his failure to be
               aware is grossly unreasonable. For example, D finds V at a junior high school
               party; he never considers the possibility that V is under age, so he is not
               “reckless.” But his mistake is grossly unreasonable, in light of the circumstances
               and V’s appearance.

       c.      “Reasonable” mistake: D’s mistake is neither reckless nor negligent. For
               example, V has a very mature physical appearance, and looks at least 20. She
               also has a perfectly forged driver’s license indicating that she is 20.

2. Not suppose that statutory rape requires, not that D “know” that V is under age, but only that
   D be “reckless” as to V being under age. Then D is guilty if his mistake is reckless, but not if
   his mistake is only negligent, and not if it is reasonable.

3. Suppose that statutory rape requires only that D be “negligent” as to V being under age 16.
   Then D is guilty if his mistake is reckless or even negligent, but not if his mistake is
   reasonable.

4. Suppose statutory rape creates strict liability as to D’s awareness of V’s age. Then D is
   guilty no matter what kind of mistake he makes—even a reasonable one.




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Problems in Mistake of Fact in the Model Penal Code

       Write out your analysis of the following problems under the Model Penal Code. In each
case, what should the judge instruct the jury with respect to D’s claimed mistake defense? It
might help you to fill out the chart below.

1.     D fell in love with her brother, John, believing he was actually adopted and unrelated by
       blood. They lived together until she was arrested and charged with incest (Sec. 230.2).
       In fact, she then learned, they were actually natural siblings.

2.     In problem 1, above, what difference if the incest statute omitted the word “knowingly”?

3.     D was playing “cops and robbers” with his nephew, N, mistakenly believing the gun was
       unloaded. He aimed the gun at N, pulled the trigger, and fatally wounded N with a
       cartridge which, he told the police, he must have inadvertently left in the firing chamber.
       D is charged with manslaughter under Sec. 210.3(a).

4.     Same as problem 3, above, but N survives after life-saving surgery. D is charged with
       assault under Sec. 211.1(1)(b).

Case                Element (Attendant         Culpability Standard          Defense if Mistake is
                    Circumstance)




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                           FL. STAT. CH. 777

777.011. Principal in first degree

 Whoever commits any criminal offense against the state, whether felony
or misdemeanor, or aids, abets, counsels, hires, or otherwise procures
such offense to be committed, and such offense is committed or is
attempted to be committed, is a principal in the first degree and may
be charged, convicted, and punished as such, whether he or she is or is
not actually or constructively present at the commission of such
offense.

777.03. Accessory after the fact

 (1) Any person not standing in the relation of husband or wife, parent
or   grandparent,  child   or   grandchild,  brother   or  sister,   by
consanguinity or affinity to the offender, who maintains or assists the
principal or accessory before the fact, or gives the offender any other
aid, knowing that the offender had committed a felony or been accessory
thereto before the fact, with intent that the offender avoids or
escapes detection, arrest, trial or punishment, is an accessory after
the fact.

 [subsequent subsections provide that the punishment shall be one
degree lower than for the underlying offense, e.g. a third degree
felony if the underlying offense is a second degree felony]

777.04. Attempts, solicitation, and conspiracy

 (1) A person who attempts to commit an offense prohibited by law and
in such attempt does any act toward the commission of such offense, but
fails in the perpetration or is intercepted or prevented in the
execution thereof, commits the offense of criminal attempt, ranked for
purposes of sentencing as provided in subsection (4). Criminal attempt
includes the act of an adult who, with intent to commit an offense
prohibited by law, allures, seduces, coaxes, or induces a child under
the age of 12 to engage in an offense prohibited by law.

 (2) A person who solicits another to commit an offense prohibited by
law and in the course of such solicitation commands, encourages, hires,
or requests another person to engage in specific conduct which would
constitute such offense or an attempt to commit such offense commits
the offense of criminal solicitation, ranked for purposes of sentencing
as provided in subsection (4).

 (3) A person who agrees, conspires, combines, or confederates with
another person or persons to commit any offense commits the offense of
criminal conspiracy, ranked for purposes of sentencing as provided in
subsection (4).

 (4). . .

 (b) If the offense attempted, solicited, or conspired to is a capital
felony, the offense of criminal attempt, criminal solicitation, or
criminal conspiracy is a felony of the first degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.




                                                                     20
 (c) Except as otherwise provided in s. 893.135(5), if the offense
attempted, solicited, or conspired to is a life felony or a felony of
the   first  degree,   the  offense   of   criminal  attempt,   criminal
solicitation, or criminal conspiracy is a felony of the second degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

 (d) Except as otherwise provided in s. 828.125(2) or s. 849.25(4), if
the offense attempted, solicited, or conspired to is a:

 1. Felony of the second degree;

 2. Burglary that is a felony of the third degree;   or

 3. Felony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or
10 under s. 921.0022 or s. 921.0023,

the offense of criminal attempt, criminal solicitation, or criminal
conspiracy is a felony of the third degree, punishable as provided in
s. 775.082, s. 775.083, or s. 775.084.

 . . .

(5) It is a defense to a charge of criminal attempt, criminal
solicitation,   or  criminal   conspiracy that, under circumstances
manifesting a complete and voluntary renunciation of his or her
criminal purpose, the defendant:

 (a) Abandoned his or her attempt to commit the offense or otherwise
prevented its commission;

 (b) After soliciting another person to commit an offense, persuaded
such other person not to do so or otherwise prevented commission of the
offense; or

 (c) After conspiring with one or more persons to commit an offense,
persuaded such persons not to do so or otherwise prevented commission
of the offense.




                                                                      21
                          Edward J. WEBBER, Jr., Appellant,
                                         v.
                             STATE of Florida, Appellee.

                                       718 So.2d 258

                            District Court of Appeal of Florida,
                                       Fifth District.

                                      Aug. 28, 1998.

PETERSON, Judge.

 Edward James Webber, Jr., appeals his conviction and sentence after having been found
guilty by a jury of dealing in stolen property.

 The victim testified that after her home was burglarized she could not locate her purse
containing, among other items, credit cards and some unpaid bills and envelopes to mail
the bills. Ultimately, Webber was arrested as a result of information received by the
police from Webber's brother, a confidential informant.

 Webber was coaxed by an undercover police officer over the course of three phone
conversations, to meet at a gas station for the purpose of selling the credit cards. As
Webber approached the gas station with the credit cards, he became suspicious and began
walking away, but a police officer decided to stop Webber immediately. The victim's
purse was later found in some bushes approximately 50 to 75 yards from Webber's home.
His fingerprint was found on a bill envelope recovered from the victim's purse.

 Webber also argues that he cannot be convicted of the crime of dealing in stolen
property under section 812.019, Florida Statutes (1995), because he carried out no actual
sale of the stolen credit cards, and that there could be no attempt to sell until he faced a
buyer and began to exchange cards for cash. Even though no actual sale took place, we
still find Webber was properly convicted of dealing in stolen property, because this
crime, like theft, includes within its definition the attempt and there was substantial and
competent evidence that Webber attempted to deal in stolen property.

An attempt to commit a crime, as opposed to mere preparation, occurs when an
appreciable fragment of the crime has been committed and the acts of the perpetrator
have proceeded "to the point that the crime would be consummated unless interrupted by
a circumstance independent of the attempter's will." State v. Coker, 452 So.2d 1135 (Fla.
2d DCA 1984). An attempt consists of two essential elements, a specific intent to commit
the crime and an overt act beyond mere preparation done toward its commission. Id. In



                                                                                           22
the instant case, the specific intent to commit the crime can be inferred from the phone
conversations between the officer and Webber, in which the latter agreed to sell the credit
cards. The overt act beyond mere preparation is Webber's arrival at or in the vicinity of
the gas station, shortly after the appointed time, with the credit cards in his possession.
The circumstance which thwarted Webber's will to complete the transaction was his
suspicion that he had been set up and that the police might be involved. Such an
involuntary abandonment provides no defense for Webber




                                                                                         23
                             STATE of Florida, Petitioner,
                                         v.
                              Collin GRAY, Respondent

                                      654 So.2d 552

                                Supreme Court of Florida.

                                      May 4, 1995.

 Defendant was convicted of armed robbery with firearm and of attempted first- degree
felony murder by the Circuit Court, Dade County, and he appealed. The District Court of
Appeal reversed and remanded certified question to Supreme Court as one of great public
importance. The Supreme Court, Harding, J., held that there is no crime of attempted
felony murder.
HARDING, Justice.

 . . . We find it unnecessary to answer the certified question because we recede from our
holding in Amlotte, [456 So. 2d 448 (1984)] that there is a criminal offense of attempted
felony murder.

 The relevant facts of this case are that Gray and two codefendants robbed a restaurant in
Dade County and fled by car. After police spotted the car, the driver went through a red
light and hit another car. The driver of the other car was ejected and rendered a
quadriplegic. Gray was convicted of armed robbery with a firearm and attempted
first-degree felony murder.

 On appeal, the Third District Court of Appeal affirmed the robbery conviction, reversed
the attempted first-degree felony murder conviction, and remanded the case for
resentencing. Gray, 654 So.2d at 935.

 The district court acknowledged that this Court recognized the offense of attempted
felony murder in Amlotte. Id. Gray did not dispute that he perpetrated the enumerated
felony of robbery. But the district court agreed with Gray that the information charging
him did not allege and the State did not offer proof of a separate overt act which could,
but did not, cause the death of another. Id.

 The court found insufficient evidence to present a jury question of whether the overt
act--running the red light, which resulted in the collision--could have caused the victim's
death and reversed Gray's conviction for attempted first-degree felony murder. Id. 654
So.2d at 935. The court also certified the question to this Court. Id. at 936.

 In Amlotte, we determined by a five-to-two vote that there is a criminal offense of
attempted felony murder. 456 So.2d at 449. The essential elements of the crime are (1)



                                                                                        24
perpetrating, or attempting to perpetrate an enumerated felony and, (2) during the
commission of the enumerated felony, committing an intentional overt act, or aiding and
abetting the commission of an intentional overt act, which could, but does not, cause the
death of another. Id. We held that because the attempt occurs during the commission of
a felony, the law, as it does under the felony murder doctrine, presumes the existence of
the specific intent required to prove attempt. Id. at 449-50.

 Justice Overton maintained in a dissent that the crime of attempted felony murder is
logically impossible. Id. at 450 (Overton, J., dissenting). He pointed out that a
conviction for the offense of attempt requires proof of the specific intent to commit the
underlying crime. Id.; see also § 777.04(1), Fla.Stat. (1991). [FN1] He recognized that
the crime of felony murder is based on a legal fiction that implies malice aforethought
from the actor's intent to commit the underlying felony. Amlotte, 456 So.2d at 450
(Overton, J., dissenting). This means that when a person is killed during the commission
of certain felonies, the felon is said to have the intent to commit the death--even if the
killing was unintended. Id. The felony murder doctrine also imputes intent for deaths
caused by co-felons and police during the perpetration of certain felonies. Id. at 451.
But, Justice Overton maintained, "Further extension of the felony murder doctrine so as
to make intent irrelevant for purposes of the attempt crime is illogical and without basis
in law." Id.

       FN1. This Court has interpreted section 777.04(1), Florida Statutes (1991) to
       mean that an attempt to commit a specific intent crime requires (1) a specific
       intent to commit a particular crime and (2) an overt act toward its commission.
       See, e.g., Thomas v. State, 531 So.2d 708, 710 (Fla.1988); but see Gentry v.
       State, 437 So.2d 1097, 1098-99 (Fla.1983).

 We now believe that the application of the majority's holding in Amlotte has proven
more troublesome than beneficial and that Justice Overton's view is the more logical and
correct position.

 Recently, the Committee on Standard Jury Instructions in Criminal Cases, which was
charged with recommending amendments to various criminal instructions, reported
difficulty in drafting an amendment that incorporated the language of Amlotte. In fact, a
majority of the committee members believed that there could be no crime of attempted
felony murder. Standard Jury Instructions in Criminal Cases (93-1), 636 So.2d 502 n. 1
(Fla.1994). [FN2]

       FN2. The committee did, however, propose an amendment that incorporated
       Amlotte, which this Court adopted. Standard Jury Instructions in Criminal Cases
       (93-1), 636 So.2d 502, 504-05 (Fla.1994).

 The Fifth District Court of Appeal has also voiced concerns. In Grinage v. State, 641
So.2d 1362, 1366 (Fla. 5th DCA 1994) review granted, No. 84,318, 651 So.2d 1196 (Fla.
Sept. 8, 1994), the court maintained that the Legislature did not intend for some criminal
offenses, including first-degree felony murder, to support a conviction for their attempted



                                                                                        25
commission. The district court said that the offense of murder contemplates a completed
act of homicide and suggested that the law should not presume intent to murder when
there is no death simply because the assault occurs during the commission or attempted
commission of a felony. Id. While recognizing that parts of its analysis were contrary to
the Amlotte majority opinion, the court said it had the responsibility "to point out to the
court new or additional arguments that should be considered by it in determining whether
questioned law should remain in effect." Id. at 1367.

 In addition, questioning at oral argument in the instant case indicated difficulties with
determining what constitutes an "overt act" that could, but does not, cause the death of
another.

 Although receding from a decision is not something we undertake lightly, we find that
twenty-twenty hindsight has shown difficulties with applying Amlotte that twenty-twenty
foresight could not predict. Based on these difficulties, we are convinced that we must
recede from Amlotte. The legal fictions required to support the intent for felony murder
are simply too great.

 In reaching this decision, we are mindful of the importance of the doctrine of stare
decisis. Stare decisis provides stability to the law and to the society governed by that
law. State v. Schopp, 653 So.2d 1016 (Fla.1995) (Harding, J., dissenting). Yet stare
decisis does not command blind allegiance to precedent. "Perpetrating an error in legal
thinking under the guise of stare decisis serves no one well and only undermines the
integrity and credibility of the court." Smith v. Department of Ins., 507 So.2d 1080, 1096
(Fla.1987) (Ehrlich, J., concurring in part, dissenting in part).

 Accordingly, we recede from the holding in Amlotte that there is a crime of attempted
felony murder in Florida. This decision must be applied to all cases pending on direct
review or not yet final. Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). Having
reached this decision, we do not need to answer the certified question in Gray.

 We also approve the result in Gray, where the district court affirmed Gray's robbery
conviction, reversed his attempted first-degree felony murder conviction, and remanded
for resentencing.

It is so ordered.




                                                                                        26
782.051. Attempted felony murder

 (1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s.
782.04(3) and who commits, aids, or abets an intentional act that is not an essential
element of the felony and that could, but does not, cause the death of another commits a
felony of the first degree, punishable by imprisonment for a term of years not exceeding
life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in
level 9 of the Criminal Punishment Code.

 (2) Any person who perpetrates or attempts to perpetrate any felony other than a felony
enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not
an essential element of the felony and that could, but does not, cause the death of another
commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or
s. 775.084, which is an offense ranked in level 8 of the Criminal Punishment Code.




                                                                                         27
                         Circuit Court of Appeals, Second Circuit.
                                    UNITED STATES
                                            v.
                                       BRUNO et al.

                                       July 10, 1939.



Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

 Bruno and Iacono were indicted along with 86 others for a conspiracy to import, sell and
possess narcotics; some were acquitted; others, besides these two, were convicted but
they alone appealed. They complain, [inter alisa] that if the evidence proved anything, it
proved a series of separate conspiracies, and not a single one, as alleged in the indictment
(4) that there was not enough evidence to support the verdict.

 The first point was made at the conclusion of the prosecution's case: the defendants then
moved to dismiss the indictment on the ground that several conspiracies had been proved,
and not the one alleged. The evidence allowed the jury to find that there had existed over
a substantial period of time a conspiracy embracing a great number of persons, whose
object was to smuggle narcotics into the Port of New York and distribute them to addicts
both in this city and in Texas and Louisiana. This required the cooperation of four
groups of persons; the smugglers who imported the drugs; the middlemen who paid the
smugglers and distributed to retailers; and two groups of retailers-- one in New York and
one in Texas and Louisiana-- who supplied the addicts. The defendants assert that there
were, therefore, at least three separate conspiracies; one between the smugglers and the
middlemen, and one between the middlemen and each group of retailers. The evidence
did not disclose any cooperation or communication between the smugglers and either
group of retailers, or between the two groups of retailers themselves; however, the
smugglers knew that the middlemen must sell to retailers, and the retailers knew that the
middlemen must buy of importers of one sort or another. Thus the conspirators at one
end of the chain knew that the unlawful business would not, and could not, stop with their
buyers; and those at the other end knew that it had not begun with their sellers. That
being true, a jury might have found that all the accused were embarked upon a venture, in
all parts of which each was a participant, and an abettor in the sense that the success of
that part with which he was immediately concerned, was dependent upon the success of
the whole. That being true, a jury might have found that all the accused were embarked
upon a venture, in all part of which each was a participant, and an abettor in the sense that
the success of that part with which he was immediately concerned, was dependent upon
the success of the whole. That distinguishes the situation from that in United States v.
Peoni, 2 Cir., 100 F.2d 401, where Peoni, the accused, did not know that Regno, his
buyer, was to sell the counterfeit bills to Dorsey, since Regno might equally well have
passed them to innocent persons himself. It might still be argued that there were two


                                                                                          28
conspiracies; one including the smugglers, the middlemen and the New York group, and
the other, the smugglers, the middlemen and the Texas & Louisiana group, for there was
apparently no privity between the two groups of retailers. That too would be fallacious.
Clearly, quoad the smugglers, there was but one conspiracy, for it was of no moment to
them whether the middlemen sold to one or more groups of retailers, provided they had a
market somewhere. So too of any retailer; he knew that he was a necessary link in a
scheme of distribution, and
the others, whom he knew to be convenient to its execution, were as much parts of a
single undertaking or enterprise as two salesmen in the same shop. We think therefore
that there was only one conspiracy, and it is not necessary to decide how far Berger v.
United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, would independently have
covered the situation, had there been more than one.

The last point is as to the sufficiency of the evidence. There is nothing to be said about
this as to Bruno, who was plainly guilty. Iacono was probably guilty also, but the
evidence to establish his guilt was tenuous. All that was shown was that he had received
in New York seven money orders from members of the Louisiana retailers, some of them
taken out in assumed names. There were for about $6,800 in the aggregate, but it did not
appear that they covered the proceeds from the sales of narcotics.          Even if these
documents were enough to convict Iacono of complicity in some sort of illicit enterprise--
itself a somewhat gratuitous assumption-- the accused were shown to have been a
disreputable lot and all sorts of ventures may have been afoot among them. The
remittances should have been more closely interwoven with the sale of narcotics. The
case is close, but we think that not enough was shown.

Judgment reversed as to Iacono.




                                                                                       29
                            WEST'S FLORIDA STATUTES ANNOTATED
                            CHAPTER 776. JUSTIFIABLE USE OF FORCE


776.012. Use of force in defense of person

 A person is justified in the use of force, except deadly force, against another when and to the extent that
the person reasonably believes that such conduct is necessary to defend himself or herself or another
against such other's imminent use of unlawful force. However, the person is justified in the use of deadly
force only if he or she reasonably believes that such force is necessary to prevent imminent death or great
bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

776.031. Use of force in defense of others

 A person is justified in the use of force, except deadly force, against another when and to the extent that
the person reasonably believes that such conduct is necessary to prevent or terminate such other's trespass
on, or other tortious or criminal interference with, either real property other than a dwelling or personal
property, lawfully in his or her possession or in the possession of another who is a member of his or her
immediate family or household or of a person whose property he or she has a legal duty to protect.
However, the person is justified in the use of deadly force only if he or she reasonably believes that such
force is necessary to prevent the imminent commission of a forcible felony.

776.041. Use of force by aggressor

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

 (a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death
or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other
than the use of force which is likely to cause death or great bodily harm to the assailant; or

 (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the
assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or
resumes the use of force.

776.06. Deadly force

 "Deadly force" means force which is likely to cause death or great bodily harm and includes, but is not
limited to:

 (1)(a) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to
kill or inflict great bodily harm; and

(b) The firing of a firearm at a vehicle in which the person to be arrested is riding.

(2)(a) The term "deadly force" does not include the discharge of a firearm by a law enforcement officer or
correctional officer during and within the scope of his or her official duties which is loaded with a less-
lethal munition. As used in this subsection the term "less-lethal munition" means a projectile that is
designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating
the person's body.
 ...




                                                                                                           30
782.02. Justifiable use of deadly force

 The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to
commit any felony upon him or her or upon or in any dwelling house in which such person shall be.




                                                                                                       31
                                             WEIAND v.STATE

                                           732 So.2d 1044 (1999)

                                         Supreme Court of Florida


PARIENTE, J.

 We have for review a decision of the Second District Court of Appeal certifying [a] question to be of great
public importance. . . .

We rephrase the question as follows:
 SHOULD THE LAW IMPOSE A DUTY TO RETREAT FROM THE RESIDENCE BEFORE A
 DEFENDANT MAY JUSTIFIABLY RESORT TO DEADLY FORCE IN SELF-DEFENSE AGAINST
 A CO-OCCUPANT, IF THAT FORCE IS NECESSARY TO PREVENT DEATH OR GREAT
 BODILY HARM?
As rephrased, we answer the certified question in the negative and recede from our contrary holding in
Bobbitt.

On appeal to the Second District, the defendant asserted as error the trial court's refusal to grant her request
to instruct the jury on the privilege of nonretreat from the home, characterized as the "castle doctrine
instruction" in the certified question. [The Second Circuit affirmed the conviction as required by the
Florida Supreme Court precedent of State v Bobbitt, 415 So. 2d 724 (Fla. 1982)] . . .


                                                  II. FACTS

 Kathleen Weiand was charged with first-degree murder for the 1994 shooting death of her husband Todd
Weiand. Weiand shot her husband during a violent argument in the apartment where the two were living
together with their seven- week-old daughter. At trial Weiand claimed self-defense and presented battered
spouse syndrome evidence. Weiand testified that her husband had beaten and choked her throughout the
course of their three-year relationship and had threatened further violence if she left him.

Two experts, including Dr. Lenore Walker, a nationally recognized expert on battered women, testified that
Weiand suffered from "battered woman's syndrome." Dr. Walker detailed Weiand's history of abuse by her
husband and testified about the effect of the abusive relationship on Weiand. Based on her studies, her
work with Weiand and Weiand's history of abuse, Dr. Walker concluded that when Weiand shot her
husband she believed that he was going to seriously hurt or kill her.

 Dr. Walker opined that there were several reasons why Weiand did not leave the apartment that night
during the argument, despite apparent opportunities to do so: she felt that she was unable to leave because
she had just given birth seven weeks earlier; she had been choked unconscious; she was paralyzed with
terror; and experience had taught her that threats of leaving only made her husband more violent.

 At the charge conference following the close of the evidence, defense counsel requested that the following
standard jury instruction be given:
   If the defendant was attacked in [his][her] own home or on [his][her] own premises, [he][she] had no
   duty to retreat and had the lawful right to stand [his][her] ground and meet force with force, even to the
   extent of using force likely to cause death or great bodily harm if it was necessary to prevent either death
   or great bodily harm.
 In accordance with this Court's opinion in Bobbitt, the trial court refused the request to give this "defense
of home" instruction. Instead, the trial court only gave the instruction applicable in all self-defense cases



                                                                                                             32
regarding the duty to retreat:
  The fact that the defendant was wrongfully attacked cannot justify her use of force likely to cause death
  or great bodily harm if by retreating she could have avoided the need to use that force.


 During closing arguments, the prosecutor used this standard instruction to the State's advantage by
emphasizing Weiand's duty to retreat. The prosecutor stressed as "critical" that the killing could not be
considered justifiable homicide unless Weiand had exhausted every reasonable means to escape the danger,
including fleeing her home:
  She had to exhaust every reasonable means of escape prior to killing him. Did she do that? No. Did she
  use the phone that was two feet away? No. Did she go out the door where her baby was sitting next to?
  No. Did she get in the car that she had driven all over town drinking and boozing it up all day? No.

 The jury found Weiand guilty of second-degree murder and the trial court sentenced her to eighteen years'
imprisonment. . . .

                  III. THE PRIVILEGE OF NONRETREAT FROM THE RESIDENCE

 Under Florida statutory and common law, a person may use deadly force in self-defense if he or she
reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm. Even
under those circumstances, however, a person may not resort to deadly force without first using every
reasonable means within his or her power to avoid the danger, including retreat. The duty to retreat
emanates from common law, rather than from our statutes.

 There is an exception to this common law duty to retreat "to the wall," which applies when an individual
claims self-defense in his or her own residence. An individual is not required to retreat from the residence
before resorting to deadly force in self-defense, so long as the deadly force is necessary to prevent death or
great bodily harm.

 The privilege of nonretreat from the home, part of the "castle doctrine," has early common law origins. In
New York v. Tomlins, . . .(1914) the defendant claimed self- defense when attacked in his home by his son.
In reversing the defendant's conviction because the duty to retreat instruction was given, Justice Cardozo
[said]:

  It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If
  assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and
  the highways, a fugitive from his own home. More than 200 years ago it was said by Lord Chief Justice
  Hale: In case a man "is assailed in his own house, he need not flee as far as he can, as in other cases of se
  defendendo, for he hath the protection of his house to excuse him from flying, as that would be to give up
  the protection of his house to his adversary by flight." Flight is for sanctuary and shelter, and shelter, if
  not sanctuary, is in the home.... The rule is the same whether the attack proceeds from some other
  occupant or from an intruder.

Id. at 497-98 (emphasis supplied) (citations omitted).

...

 Eighteen years later, in Bobbitt, this Court considered whether the privilege of nonretreat from the home
should also apply where the defendant killed her co-occupant husband in self-defense, after being attacked
without provocation. This Court rejected the extension of [the prior case of Hedges] under those
circumstances:

   [T]he privilege not to retreat, premised on the maxim that every man's home is his castle which he is
  entitled to protect from invasion, does not apply here where both Bobbitt and her husband had equal
  rights to be in the "castle" and neither had the legal right to eject the other.
Id. at 726.



                                                                                                            33
 Justice Overton, in a strongly-worded dissent, disagreed with the majority's decision because it was
contrary to a "basic premise in our law that the home is a special place of protection and security." He
further criticized the distinction made by the majority that authorized the privilege of nonretreat instruction
in cases like Hedges, where the aggressor was an invitee with a legal right to be on the premises, but not
where the aggressor was a co-occupant.

 At the time we rendered our decision in Bobbitt in 1982, we were in a minority of jurisdictions that refused
to extend the privilege of nonretreat from the residence where the aggressor was a co-occupant. Since our
decision in Bobbitt, an even greater number of jurisdictions have declined to impose a duty to retreat from
the residence.


                        IV. RECONSIDERATION OF OUR DECISION IN BOBBITT

 We now conclude that it is appropriate to recede from Bobbitt and adopt Justice Overton's well-reasoned
dissent in that case. We join the majority of jurisdictions that do not impose a duty to retreat from the
residence when a defendant uses deadly force in self-defense, if that force is necessary to prevent death or
great bodily harm from a co-occupant.

 There are two distinct reasons for our conclusion. First, we can no longer agree with Bobbitt 's minority
view that relies on concepts of property law and possessory rights to impose a duty to retreat from the
residence. Second, based on our increased understanding of the plight of victims of domestic violence in
the years since our decision in Bobbitt, we find that there are sound policy reasons for not imposing a duty
to retreat from the residence when a defendant resorts to deadly force in self-defense against a co-occupant.
The more recent decisions of state supreme courts confronting this issue have recognized that imposing a
duty to retreat from the residence has a potentially damaging effect on victims of domestic violence
claiming self-defense.

                                 A. Bobbitt's Possessory Rights Distinction

 . . . our decision in Bobbitt appears to have been grounded upon the sanctity of property and possessory
rights, rather than the sanctity of human life.

 In light of our decision in Hedges, our holding in Bobbitt created a distinction that resulted in the privilege
of nonretreat applying when the defendant is defending herself against an invitee, with a legal right to be on
the premises, but not when defending herself against a co-occupant, who also had a legal right to be on the
premises. Justice Overton illustrated the effect of this "illogical distinction" in his dissenting opinion in
Bobbitt:
Under the majority opinion, a woman killing her paramour in her home has more protection under the law
than a woman who kills her husband in her home. . . .

 . . . [T]he privilege of nonretreat from the home stems not from the sanctity of property rights, but from the
time-honored principle that the home is the ultimate sanctuary. . . .



                              B. Implications for victims of domestic violence

 1. Imposing a duty to retreat from the home may adversely impact victims of domestic violence.

 Although the State argues that nothing has changed in the intervening years since Bobbitt to require us to
recede from that decision, to the contrary, much has changed in the public policy of this State, based on
increased knowledge about the plight of domestic violence victims. It is now widely recognized that
domestic violence "attacks are often repeated over time, and escape from the home is rarely possible
without the threat of great personal violence or death." . . .



                                                                                                             34
 Studies show that women who retreat from the residence when attacked by their co-occupant spouse or
boyfriend may, in fact, increase the danger of harm to themselves due to the possibility of attack after
separation. . . .

 Experts in the field explain that separation or retreat can be the most dangerous time in the relationship for
the victims of domestic violence because "[v]iolence increases dramatically when a woman leaves an
abusive relationship." Executive Office of the Governor, The Governor's Task Force on Domestic
Violence, The First Report at 55 (January 31, 1994) (hereinafter First Report ). A leading expert in the
field cites one study which revealed that forty-five percent of the murders of women "were generated by the
man's 'rage over the actual or impending estrangement from his partner.' " . . .

 The imposition of a duty to retreat from one's residence when faced with a violent aggressor has the most
significant impact on women because an overwhelming majority of victims of domestic violence are
women. . . .

 2. A jury instruction on the duty to retreat may reinforce common myths about domestic violence.

 There is a common myth that the victims of domestic violence are free to leave the battering relationship
any time they wish to do so, and that the " 'beatings' could not have been too bad for if they had been, she
certainly would have left."

...

 A jury instruction placing a duty to retreat from the home on the defendant may serve to legitimize the
common myth and allow prosecutors to capitalize upon it. The prosecutor capitalized on the jury
instruction and the common myth in this case when she questioned the believability of Weiand's claims and
asked the jury why Weiand did not "go out the door?" and why she did not "get in the car?" before
resorting to violence.

...

                                      C. The Evolution of Public Policy

 In tandem with the increased understanding of domestic violence, there has been a substantial evolution in
the public policy of this state since Bobbitt.

         [discussion of recent executive, legislative and judicial actions in response to domestic violence
         ommitted]


                           D. The Jury Instruction on the Privilege of Nonretreat

...

 As Florida's Standard Jury Instructions on self-defense make clear, a defendant is entitled to resort to
deadly force in self-defense only if that force is necessary to protect himself or herself from death or great
bodily harm. . . . "Justifiable Use of Deadly Force," § 3.04(d), at 46-48. Furthermore, the jury is instructed
in all cases--even those cases where the privilege of nonretreat instruction is given--that:
   The defendant cannot justify the use of force likely to cause death or great bodily harm unless [he][she]
   used every reasonable means within [his] [her] power and consistent with [his][her] own safety to avoid
   the danger before resorting to that force.
 Id. at 48. Thus, the availability of the nonretreat instruction does not "invite" violence.

Nonetheless, we conclude that Justice Overton's "middle ground" instruction, as set forth in his dissent in
Bobbitt, 415 So.2d at 728, satisfies any concern that eliminating a duty to retreat might invite violence.



                                                                                                            35
This instruction imposes a limited duty to retreat within the residence to the extent reasonably possible, but
no duty to flee the residence. Accordingly, we adopt the following instruction:

  If the defendant was attacked in [his/her] own home, or on [his/her] own premises, by a co-occupant [or
  any other person lawfully on the premises] [he/she] had a duty to retreat to the extent reasonably possible
  without increasing [his/her] own danger of death or great bodily harm. However, the 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 force likely to cause death or great bodily harm if it was necessary to
  prevent death or great bodily harm to [himself/herself].

It is our increased knowledge of the complexities of domestic violence that provides the impetus for
reconsidering our decision in Bobbitt. However, in deciding whether the privilege of nonretreat instruction
is available we consider it inappropriate to distinguish between victims of domestic violence and other
defendants who have been attacked by a co-occupant in the residence. . . .


                                V. EXCLUSION OF DEFENSE WITNESSES

 Because we have jurisdiction to answer the certified question, we have jurisdiction to review other alleged
errors raised in the appellate court. Therefore, we also write to address the Second District's analysis of the
exclusion of three defense witnesses.

 We first emphasize that expert testimony about domestic violence, as authorized by Hickson, does not
replace the value of eyewitness testimony to corroborate the claim of prior acts of abuse. We approved the
admission of battered spouse syndrome testimony in Hickson as an aid to the jury in understanding the
characteristics of victims of domestic violence and to help dispel common myths and stereotypes associated
with them. See 630 So.2d at 174. However, expert testimony on battered spouse syndrome, even when it
contains details of alleged incidents of abuse that have been related by the defendant to the expert, does not
replace the importance of eyewitness testimony to corroborate the defense.

 [T]he trial court improperly excluded three defense witnesses, all of whom would have provided
eyewitness testimony to corroborate Weiand's assertion of prior acts of abuse by her husband. . . . Thus, the
excluded witnesses would have provided the only direct testimony to support Weiand's claims of prior
abuse and to corroborate the basis for the experts' opinions.

 Nonetheless, the Second District found that the exclusion of the witnesses was harmless error in light of
the testimony of the defendant herself, that of the two experts who explained the battered-spouse syndrome
from which defendant suffered, and the history of abuse in the relationship. We disagree.

 By excluding the witnesses in this case, the trial court deprived the defendant of eyewitness testimony.
Furthermore, the exclusion of the three witnesses to prior incidents of domestic violence enabled the
prosecutor to discredit Weiand's claims of abuse by arguing that no one had ever witnessed any injuries on
Weiand or seen evidence of her husband's abuse of her:
  Nobody saw any injuries to [Kathy] then. Nobody saw anything.... And how do we know that she's not
  [a battered woman]? All we have to back her up is her own statements.... Nobody saw any injuries to
  her then. Nobody saw anything.... Co-workers didn't see injuries to her. Her mother-in-law didn't see
  injuries to her. Her father-in-law didn't see the injuries to her.... Nobody sees any injuries to her.
  Nobody, nobody, ever.
 Thus, we find that the Second District erred by concluding that the exclusion of the witnesses was
harmless beyond a reasonable doubt.


 In conclusion, we hold that there is no duty to retreat from the residence before resorting to deadly force
against a co-occupant or invitee if necessary to prevent death or great bodily harm, although there is a
limited duty to retreat within the residence to the extent reasonably possible. Thus, we answer the certified
question, as rephrased, in the negative, recede from Bobbitt, recede in part from Hedges, and adopt the



                                                                                                            36
middle-ground jury instruction proposed by Justice Overton in his dissent in Bobbitt.
...

It is so ordered.




                                                                                        37
                                            FALCO v.STATE
                                           407 So.2d 203 (1981)
                                         Supreme Court of Florida.

ADKINS, Justice.

 This is an appeal from the Circuit Court of Dade County. It involves a challenge to the constitutionality of
Florida's manslaughter statute, section 782.07, Florida Statutes (1979), which appellant contends is vague
and ambiguous when applied to the facts of this case, and, serves to deny him equal protection of the laws.

 The facts of the case are uncontroverted. A youth, Richard Brush, Jr., entered appellant's home from a side
bathroom window without the consent of appellant and in the course of the commission of a burglary. (The
day before his entry, appellant's home had been burglarized or had been attempted to be burglarized; and,
indeed had been broken into and reported to the police a number of times in the immediate past.)

 Brush had already illegally entered appellant's bathroom and was opening the bathroom door to move into
the living room, when he was mortally wounded by a bullet from a .22 caliber rifle positioned on a chair in
the living room. No one was present at the time of Brush's entry. To activate the gun, it would have been
necessary to have entered into the residence in the same manner as did Brush and to thereafter move from
one interior room to another. The rifle was not attached to any exterior door or window, nor to any main
entry into appellant's home, and was so aimed that the bullet would enter the bathroom door at three feet,
one inch above the floor and would exit three feet, two inches above the floor. Richard Brush, Jr., was five
feet, seven inches tall.

 The state of Florida does not have a specific trap gun law that would prohibit as unlawful the acts
complained of as against appellant. Therefore, appellant was charged by information with manslaughter. . .

 Appellant . . . was subsequently found guilty of the charge of manslaughter and sentenced to two years
probation. In this appeal, appellant raises several points for our consideration.

 Appellant initially contends that Florida's manslaughter statute is invalid as being vague and ambiguous
when applied to the facts of this case. Conversely, he asserts that when the facts are applied to the statute,
the statute was not violated by his acts. Appellant premises his argument on the language of section 782.07
which states it is not manslaughter if the acts fall within "lawful justification according to the provisions of
chapter 776."

...Appellant points out that in 1975, the Florida legislature repealed section 776.021. Pursuant to that
section a person would be justified in the use of deadly force to protect a dwelling only if:
   He reasonably believes that such force is necessary to prevent the commission of a felony in the
   dwelling. (Emphasis added).
 Appellant alleges the repeal of this statute left a "constitutional flaw or gap" which renders the charge
against him invalid.

[The court rejects the due process/ vagueness arguments.]

 Finally, appellant challenges the repeal of section 776.021 on the basis of equal protection. It is contended
that the failure of the legislature to provide for the right to use deadly force to protect the dwelling creates
an "unequal, arbitrary, capricious and unreasonable classification ...." This argument, however, is based on
the faulty premise that a property owner has the "right", pursuant to section 776.031, to use deadly force to
protect his real property, other than his dwelling, from the imminent commission of a forcible felony, or
that a person has the "right", pursuant to section 776.012, to use deadly force to protect himself or another
from imminent death or great bodily harm or the imminent commission of a forcible felony, but that an
owner of a dwelling has no similar "right" to defend the dwelling. The fault necessarily lies in the fact that
there is no such alleged right involved. Rather, the statutes mentioned merely devolve a "privilege" upon a



                                                                                                             38
property owner, one not to be abused and therefore one which is necessarily limited. The limitation is
predicated on the term "justifiable", and in either of the situations presented by the statutes, the use of
deadly force to protect person or property is justifiable only if there is a reasonable belief that such force is
necessary. Consequently, the "right" requisite to an equal protection challenge is conspicuously absent. . . .

 Nevertheless, there is provision made in the Florida Statutes for the protection of the dwelling. Section
782.02, entitled "Justifiable use of deadly force" states:
  The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to
  commit any felony upon him or upon or in any dwelling house in which such person shall be.

 Furthermore, Florida has long recognized the venerable "castle doctrine" which stands for the proposition
that a person's dwelling house is a castle of defense for himself and his family, and an assault on it with
intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly
force if there exist reasonable and factual grounds to believe that unless so used, a felony would be
committed. . . .

 However, appellant contends that it is inherently unreasonable to demand the presence of a person to
justify the use of deadly force in defense of his dwelling, (see section 782.02, Florida Statutes (1979)), but
not in defense of his real or personal property. We disagree with appellant's argument for two reasons.
First, appellant overlooks the fact that section 776.031, although expressly excluding the dwelling in
reference to the protection of real property, can be read to include the dwelling in reference to the
protection of personal property. It stands to reason that most, if not all, personal property would be found
within the dwelling. Therefore, in light of section 782.02 and the castle doctrine, and our construction of
section 776.031, appellant's argument that the owner of a dwelling has been arbitrarily and unreasonably
denied equal protection is wholly without merit.

 Second, appellant erroneously presumes that the use of a deadly mechanical device, such as a trap gun, in
defense of any property is a justifiable use of force based on a reasonable belief of its necessity. We agree
with the state's argument that the use of such a device is fundamentally unnecessary and unjustifiable.

 A trap gun or spring gun is absolutely incapable of exercising discretion or reason. Rather, it sentences its
victim to death or great bodily injury in a split second explosion of deadly force. Such arbitrary brutality
should necessarily be prohibited under any circumstance. In reference to this question, we cite with
approval the statement of the California Supreme Court in People v. Ceballos [quotation from and
discussion of Ceballos omitted].

Although a "forcible felony" includes burglary in Florida (section 776.08, Florida Statutes), we must agree
with the observation made by the California Court in Ceballos, which was:
  A defendant is not protected from liability merely by the fact that the intruder's conduct is such as would
  justify the defendant, were he present, in believing that the intrusion threatened death or serious bodily
  injury.... There is ordinarily the possibility that the defendant, were he present, would realize the true
  state of affairs and recognize the intruder as one whom he would not be justified in killing or wounding.
at 116 Cal.Rptr. 238, 526 P.2d 246. (Emphasis added) (citations omitted).

 The record indicates that appellant was employed as a child care worker for the Dade County Youth
Services prior to the incident charged against him. Appellant had also been affiliated with the Boy Scouts
of America in various different positions of authority and several witnesses testified as to his fine character
and deep involvement in the community. Considering appellant's laudable credentials, and his extensive
training, we observe, as did the California Supreme Court, the strong possibility that he would not have
employed deadly force to protect himself against Brush's intrusion had he been present. Therefore, we hold
that the mechanical device used by appellant was unjustifiable and unnecessary.


The judgment of the trial court is affirmed.




                                                                                                              39
                                           WHEELER v.STATE

                                            344 So.2d 244 (1977)

                                         Supreme Court of Florida

PER CURIAM.

 After the trial of this cause, the Court decided Roberts v. State, 335 So.2d 285 (Fla.1976), in which we
adopted the 'Lyles rule' which requires the trial judge to instruct the jury as to the consequences of a verdict
of not guilty by reason of insanity. Defense counsel requested such an instruction in the present case, and
the trial judge, who did not have the benefit of our opinion in Roberts v. State, supra, refused to give the
instruction. The decisional law in effect at the time an appeal is decided governs the issues raised on
appeal, even where there has been a change of law since the time of trial. In these circumstances, we are
required to reverse appellant's conviction.

 Because this case must be tried again, we reach the question of what standards should apply when an
insanity defense is raised. The trial judge instructed the jury as follows:
Under the law a person is sane and responsible for his crime if he has sufficient mental capacity to
understand what he is doing and to understand that his act is wrong. If at the time of an alleged crime a
defendant was by reason of mental infirmity unable to understand the nature of his act or its consequences
or was incapable of distinguishing that which is right from that which is wrong he was legally insane and
should not be convicted.
  Insanity may be permanent, temporary or intermittent. It is for you to determine the question of the
  insanity of the defendant at the time of the alleged commission of the crime.
  Unrestrained passion or ungovernable temper is not insanity and is no excuse for the commission of a
  crime even though the normal judgment of the person is overcome by passion of temper.

 Counsel for the defendant invites us to abandon the M'Naghten rule, as set forth in Anderson v. State, 276
So.2d 17 (Fla.1973), and urges us to adopt the test agreed on by the American Law Institute. We are told
that psychiatry has progressed to the point that the rules should be altered to facilitate greater participation
by psychiatrists in deciding who should be held criminally responsible.

For many of the reasons advanced by appellant, this Court recently adopted the modified jury instruction on
insanity set forth in Florida Standard Jury Instructions in Criminal Cases, approved by this Court's order in
In re Standard Jury Instructions In Criminal Cases, 327 So.2d 6, filed February 4, 1976.[FN2]

         FN2. The law does not hold a person criminally accountable for his conduct while insane, since
         an insane person is not capable of forming the intent essential to the commission of a crime. A
         person is sane and responsible for his crime if he has sufficient mental capacity when the crime is
         committed to understand what he is doing and to understand that his act is wrong. If at the time of
         an alleged crime a defendant was by reason of mental infirmity, disease or defect unable to
         understand the nature and quality of his act or its consequences or, if he did understand it, was
         incapable of distinguishing that which is right from that which is wrong, he was legally insane and
         should be found not guilty by reason of         insanity.
         Insanity may be permanent, temporary or may come and go. It is for you to determine the
         question of the sanity of the defendant at the time of the alleged commission of the crime.
         Unrestrained passion or ungovernable temper is not insanity, even though the normal judgment of
         the person be overcome by passion or temper.




                                                                                                             40
 The new formulation adopts the 'disease or defect' elements of the ALI test. We decline to adopt the
so-called 'irresistible impulse' portion of the ALI test which excuses from criminal responsibility the
defendant who 'lacks substantial capacity . . . to conform his conduct to the requirement of the law.' We
hold that the revised jury instruction on insanity correctly states the law of Florida and direct that it shall be
utilized in all trials beginning after the day on which this opinion becomes final.

 The judgment of conviction and the sentence are reversed, and the case is remanded to the trial court for a
new trial.




                                                                                                               41
FLORIDA RULES OF CRIMINAL PROCEDURE
Rule 3.216. Insanity at Time of Offense or Probation or Community Control Violation: Notice and
Appointment of Experts

 (a) Expert to Aid Defense Counsel. When in any criminal case counsel for a defendant adjudged to be
indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that
the defendant may be incompetent to proceed or that the defendant may have been insane at the time of the
offense or probation or community control violation, counsel may so inform the court who shall appoint 1
expert to examine the defendant in order to assist counsel in the preparation of the defense. The expert
shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall
under the lawyer-client privilege.

 (b) Notice of Intent to Rely on Insanity Defense. When in any criminal case it shall be the intention of
the defendant to rely on the defense of insanity either at trial or probation or community control violation
hearing, no evidence offered by the defendant for the purpose of establishing that defense shall be admitted
in the case unless advance notice in writing of the defense shall have been given by the defendant as
hereinafter provided.

...

 (d) Court Appointed Experts. On the filing of such notice the court may on its own motion, and shall on
motion of the state or the defendant, order that the defendant be examined by no more than 3 nor fewer than
2 disinterested, qualified experts as to the sanity or insanity of the defendant at the time of the commission
of the alleged offense or probation or community control violation. Attorneys for the state and defendant
may be present at the examination. The examination should take place at the same time as the examination
into the competence of the defendant to proceed, if the issue of competence has been raised.

 (e) Time for Filing Notice of Intent to Rely on a Mental Health Defense Other than Insanity. The
defendant shall give notice of intent to rely on any mental health defense other than insanity as soon as a
good faith determination has been made to utilize the defense but in no event later than 30 days prior to
trial. . . .

(f) Court-Appointed Experts for Other Mental Health Defenses. . . .

 (g) Report of Experts to Court. The experts shall examine the defendant and shall file with the court in
writing at such time as shall be specified by the court, with copies to attorneys for the state and the defense,
a report that shall contain:

 (1) a description of the evaluative techniques that were used in their examination;

 (2) a description of the mental and emotional condition and mental processes of the defendant at the time
of the alleged offense or probation or community control violation, including the nature of any mental
impairment and its relationship to the actions and state of mind of the defendant at the time of the offense
or probation or community control violation;

 (3) a statement of all relevant factual information regarding the defendant's behavior on which the
conclusions or opinions regarding the defendant's mental condition were based; and

  (4) an explanation of how the conditions and opinions regarding the defendant's mental condition at the
time of the alleged offense or probation or community control violation were reached.

...

 (j) Evidence. The appointment of experts by the court shall not preclude the state or the defendant from
calling additional expert witnesses to testify at the trial. The experts appointed by the court may be



                                                                                                             42
summoned to testify at the trial, and shall be deemed court witnesses whether called by the court or by
either party. Other evidence regarding the defendant's insanity or mental condition may be introduced by
either party. At trial, in its instructions to the jury, the court shall include an instruction on the
consequences of a verdict of not guilty by reason of insanity.

Rule 3.217. Judgment of Not Guilty by Reason of Insanity: Disposition of Defendant

 (a) Verdict of Not Guilty by Reason of Insanity. When a person is found by the jury or the court not
guilty of the offense or is found not to be in violation of probation or community control by reason of
insanity, the jury or judge in giving the verdict or finding of not guilty judgment shall state that it was given
for that reason.

 (b) Treatment, Commitment, or Discharge after Acquittal. When a person is found not guilty of the
offense . . . by reason of insanity, if the court shall then determine that the defendant presently meets the
criteria set forth by law, the court shall commit the defendant to the Department of Health and
Rehabilitative Services or shall order outpatient treatment at any other appropriate facility or service on an
outpatient basis, or shall discharge the defendant. Any order committing the defendant or requiring
outpatient treatment or other outpatient service shall contain:

 (1) findings of fact relating to the issue of commitment or other court- ordered treatment;

 (2) copies of any reports of experts filed with the court; and

 (3) any other psychiatric, psychological, or social work report submitted to the court relative to the mental
state of the defendant.

Rule 3.218. Commitment of a Defendant Found not Guilty by Reason of Insanity

 (a) Commitment; 6-Month Report. The Department of Health and Rehabilitative Services shall admit
to an appropriate facility a defendant found not guilty by reason of insanity pursuant to rule 3.217 and
found to meet the criteria for commitment for hospitalization and treatment and may retain and treat the
defendant. No later than 6 months from the date of admission, the administrator of the facility shall file
with the court a report, with copies to all parties, which shall address the issues of further commitment of
the defendant. If at any time during the 6-month period, or during any period of extended hospitalization
that may be ordered pursuant to this rule, the administrator of the facility shall determine that the defendant
no longer meets the criteria for commitment, the administrator shall notify the court by such a report with
copies to all parties.

 (b) Right to Hearing if Committed upon Acquittal. The court shall hold a hearing within 30 days of the
receipt of any such report from the administrator of the facility on the issues raised thereby, and the
defendant shall have a right to be present at the hearing. If, following the hearing, the court determines that
the defendant continues to meet the criteria for continued commitment or treatment, the court shall order
further commitment or treatment for a period not to exceed 1 year. The same procedure shall be repeated
prior to the expiration of each additional 1-year period the defendant is retained by the facility.

 (c) Evidence to Determine Continuing Insanity. Prior to any hearing held pursuant to this rule, the court
may on its own motion, and shall on motion of counsel for the state or defendant, appoint no fewer than 2
nor more than 3 experts to examine the defendant relative to the criteria for continued commitment or
placement of the defendant and shall specify the date by which such experts shall report to the court on
these issues with copies to all parties.




                                                                                                              43
                                         BRANCACCIO v. STATE

                                            698 So.2d 597 (1997)

                                    District Court of Appeal of Florida,
                                              Fourth District.




KLEIN, Judge.

 Appellant was found guilty of first degree murder and kidnapping and sentenced to life in prison. He had
admitted the killing, and the only issue for the jury to determine was whether he had the mental capacity to
form the intent necessary to commit the crimes. We must reverse for a new trial because the court erred in
refusing to instruct the jury on appellant's primary defense, which was that he was involuntarily intoxicated
as a result of the medication he was taking pursuant to a prescription.

 Appellant, who was 16, gave a statement to the police explaining that he had had a fight with his mother
over what they were having for dinner and went for a walk to cool down. He encountered a stranger who
asked him to stop cursing and called him low class. He punched her repeatedly, led her to a vacant lot, and
continued to punch her and kick her. When a car came along he became frightened and ran home.

 He returned to the scene the next morning to ask the woman if she needed help, but she did not respond.
The medical examiner testified that the woman had suffered at least four severe and potentially fatal blows
to her head, as well as massive trauma to her chest, and that she would not have been alive at that point.
Appellant then went shopping for car parts, but returned later in the day with newspaper and unsuccessfully
attempted to set her body on fire. He then left and returned with spray paint, painting her body red in order
to cover up his fingerprints.

 Appellant's defense was that the medication he was taking, which was prescribed to him during his recent
confinement in a mental hospital, had caused him to lose control. Two months prior to the killing,
appellant had been committed to a mental health center pursuant to the Baker Act, § 394.451, Florida
Statutes (1995), after threatening to kill his parents and himself. His parents then moved him to the
Savannas Mental Hospital for treatment, where appellant was placed on Zoloft, a drug used to treat
depression. The hospital also diagnosed appellant as suffering from alcohol abuse, attention deficit
disorder, and oppositional defiant disorder. The hospital noted a change in appellant's personality after he
was placed on Zoloft, in that appellant became more irritable, loud, had increased energy and was given to
angry outbursts. Appellant had apparently attempted suicide while at the hospital by holding his breath.


 A psychiatrist testifying for the defense, Dr. Wade Myers, testified that Zoloft may have had a reaction
which was opposite to what it was supposed to have had in appellant, causing hypomania. [FN2] The
medical warnings for the drug state that the following side effects are infrequent but possible: "aggressive
reactions, amnesia, anxiety, delusions, depersonalization, depression, aggravated depression, emotional
instability, ... hallucinations, neurosis, paranoid reaction, suicidation and suicide attempts." "Infrequent" is
medically defined as occurring between 1 in 100 and 1 in 1000 patients.

         FN2. Dr. Myers explained that hypomania, as a side effect of Zoloft, produced an amphetamine
         like effect which manifested itself in the appellant by causing him to have trouble concentrating,
         difficulty sitting still, an increased energy level, irritability, and anxiety.




                                                                                                             44
 Dr. Myers examined appellant after his arrest and concluded that he suffered from major depression,
possible bipolar disorder, alcohol abuse, a learning disability, and a probable brain injury. . . .

Dr. Myers concluded that appellant did not have the ability to form the intent to commit first degree
murder based on his mental deficiencies and his involuntary intoxication by the Zoloft.

 Another expert who testified for the defense, Dr. Peter R. Breggin, testified that in his opinion, Zoloft
could have had amphetamine like effects, and could have "pushed him over." Under the Freedom of
Information Act, Dr. Breggin was able to obtain information reported by doctors and pharmacists regarding
reactions to the drug. Dr. Breggin found 22 reports tying the drug to hostile reactions, 57 reports linking
the drug to an aggravation reaction, 55 suicide attempts, and 64 reports linking the drug to increased
agitation. These reports suggest that the drug can cause a loss of impulse control. He opined that the
hospital records from the mental hospital where appellant was confined indicate that he was experiencing a
similar reaction to the drug. Dr. Breggin diagnosed Brancaccio with substance induced mood disorder
brought on by Zoloft.

 The State rebutted appellant's experts with experts of its own, who testified that appellant was capable of
forming the intent to commit murder and kidnapping. They did agree that he suffered from major
depression, but were of the opinion that he was not involuntarily intoxicated because of the Zoloft.

 The jury found appellant guilty of first degree murder (felony murder), and kidnapping. His primary
argument on appeal is that the trial court erred in refusing to instruct the jury on his theory of defense,
involuntary intoxication.

 The defense of involuntary intoxication has been explained in an article which collects cases from various
states which permit it as follows:
   Generally speaking, an accused may be completely relieved of criminal responsibility if, because of
   involuntary intoxication, he was temporarily rendered legally insane at the time he committed the
   offense. And again speaking generally, the courts have considered one to be involuntarily intoxicated
   when he has become intoxicated through the fault of another, by accident, inadvertence, or mistake on his
   own part, or because of a physiological or psychological condition beyond his control.
   ...

                                              * * * * * *
 Because a patient is entitled to assume that an intoxicating dose would not be prescribed or administered
 by a physician, where intoxication results from medicine which has been prescribed (and taken as
 prescribed) or administered by a physician, such intoxication is generally considered involuntary.
...

 This court recognized the defense of involuntary intoxication in the case of Boswell v. State, 610 So.2d
670 (Fla. 4th DCA 1992). In a case with similar facts to our own, Boswell was charged with shooting a
police officer. He defended on the theory that he became very inebriated as a reaction to taking the
prescribed medications Xanax and Prozac. Boswell had cirrhosis of the liver which led to a toxic level of
Prozac building up in his body. Experts testified that the anti-depressants can cause side effects such as
paranoid reactions and hallucinations and that Boswell was suffering from hallucinations when he "heard a
shot." This court held that the trial court erred in failing to give the involuntary intoxication instruction,
reiterating that "[a] party is entitled to have the jury instructed upon the law which is applicable to his
theory of the case, if there is any competent evidence adduced that could support a verdict in his favor."
...

We were recently compelled to reverse another murder conviction for a new trial, because of the court's
failure to give a specific instruction on insanity induced by the long and continued use of intoxicants, in
Brunner v. State, 683 So.2d 1129 (Fla. 4th DCA 1996). In that case, defendant had a severe thyroid
disorder known as Graves disease, which causes emotional problems, and defendant had used alcohol and
drugs excessively over a long period of time to cope with the psychological problems associated with the
disease. In reversing, we noted that the fact that insanity can be caused by the use of intoxicants over a



                                                                                                           45
long period of time is "not something which would necessarily be understood by jurors who have only been
read the standard instruction on insanity." Id. at 1131. Similarly, in the present case, the jurors would not
necessarily have known, after having been given the standard instructions, that involuntary intoxication by
medication would be a defense.

 The defense submitted several different forms of jury instructions on involuntary intoxication, and there
was extensive discussion on whether the instruction should be given; however, the court concluded that the
standard instruction on insanity was sufficient, and rejected the involuntary intoxication instructions. [FN4]

         FN4. Florida does not have a standard jury instruction on involuntary intoxication. Other states,
         such as Missouri, do, and if the following paraphrased portion from Missouri's Standard Criminal
         Instruction 310.52 were read as part of Florida's standard instruction on insanity, it would
         sufficiently explain appellant's defense:
         An intoxicated condition is involuntarily produced when it is brought about by the introduction
         into his body of any substance which he does not know          and has no reason to know has a
         tendency to cause an intoxicated or drugged condition.
         The second sentence of Florida's insanity instruction 3.04(b) would also have to be amended to
         read: "A person is considered to be insane when: 1) He had a mental infirmity, disease, defect or
         was involuntarily intoxicated."




                                                                                                           46
                                . FL. STAT. CH. 782.04
                                       (MURDER)

782.04. Murder

(1)(a) The unlawful killing of a human being:

 1. When perpetrated from a premeditated design to effect the death of the person killed
or any human being;

 2. When committed by a person engaged in the perpetration of, or in the attempt to
perpetrate, any:

a. Trafficking offense prohibited by s. 893.135(1),

b. Arson,

c. Sexual battery,

d. Robbery,

e. Burglary,

f. Kidnapping,

g. Escape,

h. Aggravated child abuse,

i. Aggravated abuse of an elderly person or disabled adult,

j. Aircraft piracy,

k. Unlawful throwing, placing, or discharging of a destructive device or bomb,

l. Carjacking,

m. Home-invasion robbery,

n. Aggravated stalking,

o. Murder of another human being; or

 3. Which resulted from the unlawful distribution of any substance controlled under s.
893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural
salt, compound, derivative, or preparation of opium by a person 18 years of age or older,


                                                                                       47
when such drug is proven to be the proximate cause of the death of the user,

is murder in the first degree and constitutes a capital felony, punishable as provided in s.
775.082.

 (b) In all cases under this section, the procedure set forth in s. 921.141 shall be followed
in order to determine sentence of death or life imprisonment.

 (2) 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, is murder
in the second degree and constitutes a felony of the first degree, punishable by
imprisonment for a term of years not exceeding life or as provided in s. 775.082, s.
775.083, or s. 775.084.

(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any:

(a) Trafficking offense prohibited by s. 893.135(1),

(b) Arson,

(c) Sexual battery,

(d) Robbery,

(e) Burglary,

(f) Kidnapping,

(g) Escape,

(h) Aggravated child abuse,

(i) Aggravated abuse of an elderly person or disabled adult,

(j) Aircraft piracy,

(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,

(l) Carjacking,

(m) Home-invasion robbery,

(n) Aggravated stalking, or

(o) Murder of another human being,



                                                                                            48
by a person other than the person engaged in the perpetration of or in the attempt to
perpetrate such felony, the person perpetrating or attempting to perpetrate such felony is
guilty of murder in the second degree, which constitutes a felony of the first degree,
punishable by imprisonment for a term of years not exceeding life or as provided in s.
775.082, s. 775.083, or s. 775.084.

 (4) The unlawful killing of a human being, when perpetrated without any design to effect
death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any
felony other than any:

(a) Trafficking offense prohibited by s. 893.135(1),

(b) Arson,

(c) Sexual battery,

(d) Robbery,

(e) Burglary,

(f) Kidnapping,

(g) Escape,

(h) Aggravated child abuse,

(i) Aggravated abuse of an elderly person or disabled adult,

(j) Aircraft piracy,

(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,

 (l) Unlawful distribution of any substance controlled under s. 893.03(1), cocaine as
described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound,
derivative, or preparation of opium by a person 18 years of age or older, when such drug
is proven to be the proximate cause of the death of the user,

(m) Carjacking,

(n) Home-invasion robbery,

(o) Aggravated stalking, or

(p) Murder of another human being,




                                                                                       49
is murder in the third degree and constitutes a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.




                                                                                        50
                              Grading of Intentional Homicide

             Common Law                                          Model Penal Code
“Express Malice” Murder                            Sec. 210.2(1)(a) “purposely or knowingly”
(1) intentional and premeditated
(2) intentional                                    [n.b. premeditation not an element]
(m/a)
(no m/a)                                           210.3(1)(b)
Voluntary manslaughter
“heat of passion”                                  “extreme mental or emotional disturbance”

                           Grading of Unintentional Homicide

      Common Law                                              Model Penal Code
“Implied Malice” Murder                                   Murder (Life)

(1) “Abandoned heart”                          Sec. 210.2(1)(b) “reckless & extreme
                                               indifference”
(2) Felony murder
                                               (“presumed” if death in certain felonies)
(3) Intend S.B.H.
                                               (------)

m/a
(no m/a)

Involuntary manslaughter
                (10-20)

____”w/o due caution” etc.

including

____ “w/o due caution” etc.

including

     (1) recklessness                          Manslaughter (R) (1)
     (2) gross negligence
     (3) (simple negligence)                   Negligent homicide (N) (5)

                                               (------)




                                                                                           51
52
                            Stanley B. ELLISON, Appellant,
                                          v.
                              STATE of Florida, Appellee.

                                      547 So.2d 1003

                            District Court of Appeal of Florida,
                                       First District.

                                      Aug. 15, 1989.

JOANOS, Judge.

 Ellison has appealed a judgment and sentence for depraved-mind second-degree murder.
We reverse, and remand with directions to enter judgment for manslaughter.

 In May 1988, a gray Grand Am automobile was stolen from a Jacksonville mall. The
following day, a police officer observed a gray Grand Am exceeding the speed limit and
clocked the vehicle at 67 M.P.H. in a 35 M.P.H. zone. The officer commenced pursuit,
and the car began weaving in and out of traffic at high speed, ramming through a blocked
toll booth gate at an estimated speed of 65 M.P.H. The car then jumped the median onto
a service road, accelerating to approximately 70 M.P.H. and, already fishtailing, entered a
major thoroughfare. As it did so, the driver lost control, crossed the center line and
struck another vehicle head on, fatally injuring a 16-month old baby who was a passenger
in that vehicle. The baby died the next day, and Ellison was charged with depraved-mind
second-degree murder, contrary to Section 782.04(2), Florida Statutes, and grand theft,
contrary to Section 812.014(2)(c), Florida Statutes.

 Ellison was tried by jury. At the close of the state's case, the defense moved for
judgment of acquittal as to the second-degree murder charge. In order to prove that a
defendant committed depraved-mind second degree murder, the state must show that the
act: 1) was one a person of ordinary judgment would know is reasonably certain to kill
or do serious bodily injury to another, 2) was committed from ill will, hatred, spite or evil
intent, and 3) itself indicated an indifference to human life. The defense argued that the
state had not proven the second element, that is, that Ellison's act was committed out of
any ill will, hatred, spite or evil intent. The trial court disagreed and the case proceeded
to the jury, which returned a verdict of second-degree murder and grand theft.

...

  The grade or degree with which a homicidal act was committed is a question of fact
dependent upon the circumstances of a case and is typically for resolution by the jury. . .
. Both manslaughter and second-degree murder can be defined generally as homicides
resulting from the criminal actions of an accused who had no premeditated design to kill.
Each crime is committed when an unintended death occurs as a result of an act of the



                                                                                          53
killer. However, there is a legal difference between the two crimes, and if the facts do
not support a conviction, it is our duty to either reduce the conviction to its proper degree,
or discharge the accused. There is no view of the facts herein from which the jury could
properly conclude that the instant homicide constituted second-degree murder, in that
there is no evidence that Ellison's actions were done "from ill will, hatred, spite, or an evil
intent."

 Second-degree murder convictions have consistently been affirmed when the unintended
death resulted from intentional actions toward or directed at a particular victim out of ill
will, spite or malice. See Gordon v. State, 457 So.2d 1095 (Fla. 5th DCA 1984)
(defendant who caused accident while intoxicated deliberately ran over another driver
who attempted to block defendant's flight from the scene); Larsen v. State, 485 So.2d
1372 (Fla. 1st DCA 1986) (defendant struck partially disabled wife during argument,
causing her to fall and fracture her skull); Dellinger v. State, 495 So.2d 197 (Fla. 5th
DCA 1986) (defendant picked up a gun and pointed it at his wife during an argument and
pulled the trigger without knowing whether or not it was loaded); Hooker v. State, 497
So.2d 982 (Fla. 2d DCA 1986) (defendant shot into a trailer which he believed to be
occupied by migrant workers after going on a "mission" to rid the community of such
workers); Reimel v. State, 532 So.2d 16 (Fla. 5th DCA 1988) (defendant shot victim
who had hit him during an argument, when defendant was at the time seated in a running
car with a clear path of flight).

 Manslaughter, the killing of a human being by, among other things, the culpable
negligence of another without lawful justification, § 782.07, Fla.Stat. (1987), has been
found when the element of ill will, hatred, spite or evil intent is absent. A defendant is
culpably negligent when he consciously follows 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 of 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.

 In the instant case, there is nothing to indicate that Ellison acted out of "ill will, hatred,
spite or an evil intent" toward or directed at his eventual victim; he was instead fleeing
arrest and in the process lost control of his car. However, prior to the fatal accident,
Ellison weaved through midday traffic at speeds exceeding the posted limits by as much
as 35 M.P.H., part of the time in the confined space of a bridge. He deliberately smashed
through a closed toll gate and crossed a median, then guided the car onto a well-travelled
thoroughfare, still at an excessive rate of speed, so as to lose control. Under the
circumstances of this case, these actions demonstrate a reckless disregard of the safety of
persons exposed to its dangerous effects, a grossly careless disregard of the safety and
welfare of the public, and such an indifference to the rights of others as is equivalent to
an intentional violation of such rights, so as to warrant a conviction for manslaughter.

 Section 924.34, Florida Statutes (1987), provides that "[w]hen the appellate court
determines that the evidence does not prove the offense for which the defendant was



                                                                                            54
found guilty but does establish his guilt of a lesser statutory degree of the offense or a
lesser offense necessarily included in the offense charged, the appellate court shall
reverse the judgment and direct the trial court to enter judgment for the lesser degree of
the offense or for the lesser included offense " (emphasis supplied). Here, manslaughter
is a necessarily lesser included offense of second-degree murder. We therefore reverse
Ellison's conviction for second-degree murder, and remand with directions to enter
judgment for manslaughter.

Reversed and remanded with directions.




                                                                                       55
                                  FL. STAT. .782.07
                                 (MANSLAUGHTER)


782.07. Manslaughter; aggravated manslaughter of an elderly person or disabled adult;
aggravated manslaughter of a child

 (1) 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, a felony of the second degree, punishable as
provided in s. 775.082, s. 775.083, or s. 775.084.

 (2) A person who causes the death of any elderly person or disabled adult by culpable
negligence under s. 825.102(3) commits aggravated manslaughter of an elderly person or
disabled adult, a felony of the first degree, punishable as provided in s. 775.082, s.
775.083, or s. 775.084.

 (3) A person who causes the death of any person under the age of 18 by culpable
negligence under s. 827.03(3) commits aggravated manslaughter of a child, a felony of
the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.




                                                                                      56
                                        WALTER
                                            v.
                                         STATE
                                       157 Fla. 684

                           Supreme Court of Florida, en Banc.

                                      July 5, 1946.

 PER CURIAM.

 This is an appeal from a judgment of conviction for manslaughter. As we read this
record, the evidence in the case did not show anything more than simple negligence. It
fell far short of that culpable negligence required to be shown in order to sustain a
conviction of manslaughter.

 The judgment must be reversed upon the authority of Russ v. State, 140 Fla. 217, 191
So. 296, 298, wherein it was said: 'This Court is committed to the rule that the degree of
negligence required to sustain imprisonment should be at least as high as that required for
the imposition of punitive damages in a civil action. The burden of proof authorizing a
recovery of exemplary or punitive damages by a plaintiff for negligence must show a
gross and flagrant character, evincing reckless disregard of human life or of the safety of
persons exposed to its dangerous effects; or that entire want of care which would raise the
presumption of indifference to consequences; or such wantonness or recklessness or
grossly careless disregard of the safety and welfare of the public, or that reckless
indifference to the rights of others, which is equivalent to an intentional violation of
them.

 Reversed.




                                                                                        57
                       Supreme Court of South Dakota.
                STATE of South Dakota, Plaintiff and Appellee,
                                      v.
                William J. JANKLOW, Defendant and Appellant.
                             2005 WL 434405 (S.D.)

                             Argued Nov. 16, 2004.
                             Decided Feb. 23, 2005.

SEVERSON, Presiding Circuit Judge.

       William J. Janklow (Janklow) appeals from a jury verdict finding him
guilty of reckless driving and second degree manslaughter for an August 16,
2003, collision which killed Randolph Scott (Scott). We affirm.

                FACTUAL AND PROCEDURAL BACKGROUND

       On August 16, 2003, Janklow was driving a white Cadillac south on
Moody County Highway 13. He was traveling from Aberdeen, South Dakota to
his home in Brandon, South Dakota after giving a speech at a county fair. [FN1]
Janklow's chief of staff, Chris Braendlin (Braendlin) was a passenger in the
vehicle. Meanwhile, fifty-five year old Scott and his friend, Terry Johnson
(Johnson), were riding their motorcycles westbound on Moody County Highway
14.

        Highways 13 and 14 intersect ten miles south of Flandreau, South
Dakota. The intersection is controlled by stop signs for north- and southbound
traffic on Highway 13. The east- and westbound traffic on Highway 14 does not
have a stop sign at that intersection. The speed limit on both highways is 55
miles per hour. A corn field located northeast of the intersection blocked the
view for southbound and westbound motorists approaching the intersection.

          Approximately three or four miles north of the intersection, Janklow
passed another vehicle traveling south on Highway 13. The driver of that vehicle
testified that she was traveling approximately 55 to 60 miles per hour when she
was passed by Janklow. She testified that, "he passed me as if I was standing
still. I felt like I was parked on the side of the road and the car just went past
real fast." At approximately 4:40 p.m., Janklow's southbound vehicle and the
westbound motorcycles ridden by Scott and Johnson converged at the
intersection. Johnson safely passed through the intersection approximately 50
yards ahead of Scott. Scott's motorcycle hit the side of Janklow's vehicle. Scott
was thrown from his motorcycle and was pronounced dead at the scene.
Janklow's vehicle came to a stop in the soybean field approximately 285 feet
south of the intersection. There was extensive damage to the side and rear
portion of Janklow's vehicle.

       Janklow was charged in Moody County with the offenses of failure to
stop at a stop sign, speeding, reckless driving and second degree manslaughter.
A jury trial commenced on December 1, 2003, in Flandreau. Janklow did not
dispute that he failed to stop at the stop sign, nor did he dispute that he was


                                                                                58
driving in excess of the speed limit. However, there was conflicting testimony at
trial as to his actual speed at the point of impact. The State's expert estimated
that Janklow was traveling 71 miles per hour and Scott was traveling 59 miles
per hour at the point of impact. Janklow's expert calculated Janklow's speed at
63 to 64 miles per hour at the point of impact.

       In his defense, Janklow asserted that he was suffering from
hypoglycemia at the time of the collision and did not consciously run the stop
sign. Hypoglycemia results in the brain not getting the glucose it needs to
function properly. Janklow is an insulin dependent diabetic. Janklow testified
that he took a dose of insulin the morning of the accident, but that he had not
eaten for at least eighteen hours prior to the collision. The experts offered by the
defense testified that the effect of the insulin taken by Janklow would have
peaked at the time of the collision. If he did not eat anything during the day to
counteract the effect of the insulin, the experts opined that this would have
resulted in low blood sugar or hypoglycemia.

        Emergency personnel who arrived at the scene shortly after the collision
testified that Janklow was asked about his diabetes and whether he had
recently checked his blood sugar levels. Janklow told them that he had checked
his blood sugar level earlier and that he had eaten earlier in the day. Janklow
appeared to the emergency personnel and law enforcement to be distraught
about the collision, but seemed alert and oriented with no difficulty speaking.
Janklow indicated that he was fine and refused medical attention. The defense
offered evidence that Janklow was offered candy and a sugary drink after the
collision and that hypoglycemia can be countered relatively quickly if a diabetic
receives sugar. Several days after the collision, it was determined that Janklow
suffered a fractured wrist and a closed head injury.

       Several witnesses testified that immediately after the collision Janklow
said that he went through the intersection because he was trying to avoid
hitting a white car. Because the accident involved a fatality, law enforcement
asked Janklow for a blood sample to determine his blood alcohol level. [FN2]
South Dakota Highway Trooper Jeff Lanning (Trooper Lanning) transported
Janklow to the Flandreau hospital for the blood draw. The video camera in
Trooper Lanning's patrol car recorded, with Janklow's knowledge, their
conversation during the drive. The video was played for the jury at trial. On the
tape, Janklow described approaching the intersection and slowing down for the
stop sign when a white car came toward him from the east. Janklow told
Trooper Lanning that he "gunned it" to avoid being hit by the white car and that
he initially thought he had been hit by the white car. Eyewitnesses reported
that the white car Janklow described was not in the intersection at the time of
the collision.

      In its case in chief, the State offered "other acts" evidence from Jennifer
Walters (Walters), Deputy Tony Aas (Deputy Aas) and Lyle Tolsma (Tolsma).
Walters testified that on December 29, 2002, she and her family were traveling
eastbound on Highway 14 in Moody County when they came to the intersection
with Highway 13, the same intersection where the collision with Scott occurred.
Walters testified that as they passed through the intersection, she heard tires


                                                                                  59
screeching and gravel kicking up. She turned and observed a white Cadillac
with dark tinted windows speeding through the intersection and continuing
northbound on Highway 13. She testified that she estimated the vehicle's speed
at 70 to 90 miles per hour and that the vehicle did not appear to have stopped
at the stop sign. She testified that she believed that the driver applied his
brakes at the last minute to avoid hitting her family's vehicle and that the
vehicles came close to colliding. Walters used her cell phone to call 911 to
report the incident.

        Moody County Deputy Aas was notified of Walters' call and proceeded
south on Highway 13 where he encountered a white Cadillac driven by Janklow
traveling northbound. Deputy Aas testified that he locked his radar on the
vehicle showing a speed of 86 miles per hour. He stopped the vehicle and
recognized the driver as Janklow. He testified that he told Janklow about the
call received from Walter and that Janklow responded that he was not paying
attention to his speed and did not recall the stop sign. Deputy Aas advised
Janklow to slow down and let him go.

       The State also offered the testimony of former South Dakota Highway
Patrolman Tolsma. Tolsma testified that on April 27, 2002, he was driving his
patrol car through a construction zone on a highway outside Rapid City, South
Dakota. He testified that because of the construction, one lane of the highway
was closed. Two-way traffic traveled on an uneven temporary roadway
consisting of the remaining concrete lane and a temporary asphalt lane. The
two lanes of traffic were separated by pylons. The speed limit in the
construction zone was 40 miles per hour. Tolsma testified that he observed a
vehicle traveling toward him at a high rate of speed. According to his radar, the
vehicle was traveling 84 miles per hour. As the vehicle neared, Tolsma testified
that the vehicle's wheels dropped off the edge of the concrete and the driver
jerked the vehicle back. Tolsma testified that it appeared the driver was about
to lose control of the vehicle. Tolsma testified that he feared that the vehicle
would collide with his patrol car so he pulled over as far as he could next to a
concrete barrier and almost stopped. As the vehicle passed, he recognized the
driver as Janklow. Tolsma did not stop the vehicle.

      On December 8, 2003, the jury returned guilty verdicts on all four
charges. ***

       Janklow appeals his convictions and raises the following issues:
 1. Whether the trial court erred when it denied Janklow's motion for judgment
 of acquittal on the second degree manslaughter charge.
 2. Whether the trial court erred when it refused to give Janklow's requested
 jury instructions setting forth the defense of unconsciousness and denied
 Janklow's motion for a new trial on the basis of the refused jury instruction.
 3. Whether the trial court erred when it admitted evidence of uncharged,
 alleged other acts ***.

 ***

                           ANALYSIS AND DECISION


                                                                                60
     1. Whether the trial court erred in denying Janklow's motion for
judgment of acquittal.

       Janklow argues that the trial court erred in denying his motion for
judgment of acquittal because the State failed to present sufficient evidence to
establish beyond a reasonable doubt that he was guilty of second degree
manslaughter.

       Our standard of review is well established:
 The standard of review for denial of a motion for judgment of acquittal is
 whether the "evidence was sufficient to sustain the convictions." "When
 reviewing sufficiency of the evidence, this [C]ourt, considers the evidence in a
 light most favorable to the verdict." ***

       Janklow was charged with second degree manslaughter in violation of
 SDCL 22-16-20. That statute provides:
 Any reckless killing of one human being, including an unborn child, by the
 act or procurement of another which, under the provisions of this chapter, is
 neither murder nor manslaughter in the first degree, nor excusable nor
 justifiable homicide, is manslaughter in the second degree. Manslaughter in
 the second degree is a Class 4 felony.
 SDCL 22-16-20.

     The State had the burden of proving that Janklow recklessly killed
Randolph Scott. SDCL 22-1-2(1)(d) defines "reckless" as:

 (1) If applied to the intent with which an act is done or omitted:

                                        ...
 (d) The words "reckless, recklessly" and all derivatives thereof, import a
 conscious and unjustifiable disregard of a substantial risk that the offender's
 conduct may cause a certa in result or may be of a certain nature. A person is
 reckless with respect to circumstances when he consciously and unjustifiably
 disregards a substantial risk that such circumstances may exist[.]

       “[F]or someone's conduct to be deemed reckless, they must consciously
disregard a substantial risk.” Recklessness requires more than ordinary
negligent conduct. The difference between reckless behavior and negligent
behavior is primarily measured by the state of mind of the individual.
  The difference between the terms "recklessly" and "negligently," as usually
  defined, is one of kind, rather than degree. Each actor creates a risk of harm.
  The reckless actor is aware of the risk and disregards it; the negligent actor is
  not aware of the risk but should have been aware of it.
 State v. Larson, 1998 SD 80

        Janklow argues that the State only established that he ran a stop sign.
However, the operation of a motor vehicle in violation of the law is not in and of
itself sufficient to constitute reckless conduct, even if a person is killed as a
result thereof. Criminal responsibility for death resulting from the operation of


                                                                                   61
a motor vehicle in violation of the law will result only if the violation is done in
such a manner as to evidence a reckless disregard for the safety of others.
Mere carelessness or inadvertence or thoughtless omission is insufficient.

       The State argues that the risk that Janklow disregarded was the
potential harm arising out of his speeding through a blind intersection without
stopping. Although it is not always possible for the State to directly establish
that a defendant was aware of a risk, it can be done indirectly through the
defendant's conduct. Awareness can be established if the defendant acts in a
manner that indicates a reckless disregard for the safety of others. The State
maintains that Janklow's disregard for the safety of others and his indifference
to the consequences of his actions were demonstrated by his conduct of
speeding through a stop sign at a blind intersection of two highways without
stopping or looking for oncoming traffic.

       [T]his Court cannot say as a matter of law that Janklow's conduct did
not constitute recklessness. Reasonable minds could differ as to this issue. In
reviewing the denial of a motion for judgment of acquittal, this Court accepts
"the evidence and the most favorable inferences that the jury might have fairly
drawn from the evidence to support the verdict." The State presented evidence
that Janklow was speeding prior to the collision and passed a vehicle before the
intersection at a high rate of speed. Although they disagreed as to the precise
speed, both the State's expert and Janklow's expert calculated that Janklow
was exceeding the 55 mph speed limit for the highway. The intersection where
the collision occurred was a blind intersection due to a corn field blocking
Janklow's vision to the east. The State presented evidence that Janklow was
familiar with this intersection and was aware of the stop sign. There was a "stop
ahead" sign warning of the stop sign at the intersection. Evidence was also
presented that Janklow indicated immediately after the accident that he was
slowing down for the stop sign, but went through the stop sign because of a
white car in his lane. However, eyewitnesses refuted Janklow's statements
regarding a white car. Janklow's passenger, Braendlin, testified that he recalled
Janklow yelling a warning just before the collision. "[I]t is the function of the
jury in resolving factual conflicts, to weigh the credibility of those who testify,
and ascertain the truth." Our standard of review is not whether we would have
reached the same verdict, but whether the "evidence was sufficient to sustain
the convictions." There was sufficient evidence from which the jury could
conclude that Janklow was aware of, yet disregarded, the risk of an accident
occurring as a result of his conduct. Therefore, the trial court did not err in
denying Janklow's motion for judgment of acquittal.

      2. Whether the trial court abused its discretion in refusing Janklow's
requested jury instructions regarding the defense of unconsciousness.

       Janklow claims that the trial court committed reversible error by
refusing to give two requested jury instructions on the defense of
unconsciousness. Defendant's requested Instructions No. 15 and 16 [FN3]
were rejected by the trial court because it found that the principles were already
covered by other instructions and that the requested instructions were
improper under the circumstances of the case.


                                                                                       62
        Our standard of review for refusal to give a jury instruction is well-
settled:
  We review a trial court's refusal of a proposed instruction under an abuse of
  discretion standard. The trial court has broad discretion in instructing the
  jury. Jury instructions are satisfactory when, considered as a whole, they
  properly state the applicable law and inform the jury. Error in declining to
  apply a proposed instruction is reversible only if it is prejudicial, and the
  defendant has the burden of proving any prejudice.
 An erroneous instruction is prejudicial if in all probability it produced some
effect upon the verdict and is harmful to the substantial rights of the party
assigning it.

       Generally, a criminal defendant is entitled to instructions on his theory
of the case when evidence exists to support that theory. However, "[t]he law in
South Dakota is well settled on the point that courts are not required to
instruct as to matters which find no support in the evidence." Further, "[i]t is
axiomatic that there can be no abuse of discretion in the refusal of a proposed
jury instruction that does not represent a correct statement of the law."

        Janklow presented witnesses who testified that, based on the
information they were provided, in their opinion Janklow was likely
hypoglycemic at the time of the collision. However, being hypoglycemic does not
necessarily equate with an individual being "unconscious." That was a question
of fact for the jury to determine.

       "The defense of unconsciousness is based upon SDCL 22-3-1, which
provides, in pertinent part: 'Any person is capable of committing a crime, except
those belonging to the following classes: ... (4) Persons who committed the act
charged without being conscious thereof[.]' " Jenner, 451 N.W.2d at 721
(alterations in original). In Jenner, this Court acknowledged that other courts
have recognized that an unconsciousness defense might be established when
the defendant's conduct is caused by a variety of circumstances, including
epilepsy, somnambulism, hypnotism, and some physical trauma, or even
emotional trauma. Id. (citing 1 LaFave and Scott, Substantive Criminal Law, §
4.9 at 543 (1986)). However, this Court specifically did not embrace those
causes for unconsciousness defenses.

       This Court must review the trial court's refusal of the jury instructions
under an abuse of discretion standard. The trial court exercises broad
discretion in instructing the jury. Id. (citations omitted). The trial court found
that Janklow's requested Instruction No. 15 defining "unconsciousness" merely
inverted the definition of consciousness. Further, the trial court found that this
instruction was confusing because it defined unconsciousness as not being
conscious. The jury was instructed on the essential elements of second degree
manslaughter in Instruction No. 12. Instruction No. 13 instructed the jury as to
the definition of reckless or recklessly requiring a "conscious" disregard of a
substantial risk. Additionally, the jury was properly instructed as to the burden
of proof. The jury was instructed that it had to conclude beyond a reasonable
doubt that Janklow consciously disregarded a substantial risk when he


                                                                                  63
committed the crimes alleged. Janklow was allowed to present extensive
medical testimony regarding his condition at the time of the collision and
counsel was able to argue to the jury that Janklow was not conscious when the
collision occurred because he was suffering from hypoglycemia. Reviewing the
jury instructions as a whole, they are an accurate statement of the law and
inform the jury.

       *** In this case, the jury was instructed in Instructions No. 12 and 13
that the State had the burden of proving that Janklow consciously disregarded
a substantial risk. [FN4] There was no abuse of discretion in the trial court's
denial of Janklow's requested instructions.
***
       3. Whether the trial court abused its discretion in admitting other
acts evidence.

      *** [Janklow also appealed the admission of other acts evidence.] This
Court will only disturb decisions of the trial court regarding the admission of
evidence if there is a clear abuse of discretion. ***

       Prior to trial, the State filed notice that it intended to offer other acts
evidence. Initially the State sought to introduce Janklow's driving record which
included 12 speeding tickets from 1990 to 1994 and several accident reports.
Additionally, the State wanted to introduce several law enforcement reports
regarding uncited traffic violations occurring after 1994 while Janklow was
governor of the state.

       The trial court held several hearings on the admissibility of these other
acts and ruled that all but two incidents were inadmissible in the State's case
in chief. The trial court found that the Walters and Tolsma "close call" incidents
were admissible in the State's case in chief under SDCL 19- 12-5 [for the
purpose of determining Janklow’s prior knowledge of the intersection in
questions, his state of mind, and the absence of inadvertence or mistake.]

       To prove recklessness as an element of second degree manslaughter, the
State had the burden of showing that Janklow consciously disregarded a
substantial risk. The Walters' incident was relevant as evidence of Janklow's
state of mind and his knowledge of the substantial risk of harm from speeding
through that intersection without stopping. Tolsma's testimony describing
Janklow's driving at an excessive speed in a construction zone and nearly
losing control of his vehicle was relevant to establish that Janklow was aware of
the risk created by his driving and his disregard for the safety of others. Prior to
the testimony, and again in the final instructions, the trial court instructed the
jury regarding the limited purposes for the evidence.

      *** Janklow's mens rea or state of mind was a question for the jury to
determine.
      ***

Affirmed.



                                                                                  64
FN1. Janklow was a United States Congressman at the time of the collision.
Prior to being elected to the United States House of Representatives, Janklow
was the Governor of South Dakota for four terms from 1979 to 1987 and 1995
to 2003.

FN2. Testing indicated that there was no alcohol present in Janklow's blood.

FN3. Requested Instruction No. 15 provided:
Unconsciousness, as that term is used in these instructions, need not reach the
physical dimensions commonly associated with the term such as a coma; it can
exist where the defendant physically acts in fact but, for reasons such as
epilepsy and other convulsions and reflexes, metabolic disorders, and hypnotic
states, is not, at the time of acting, conscious of his actions.
Requested Instruction No. 16 provided:
Where a person commits an act without being conscious thereof, the act is not
a criminal act even though it would be a crime if it had been committed by a
person who was conscious. This rule of law applies to persons who are not
conscious of the acts they perform because they are suffering from
hypoglycemia as a result of diabetes.
Evidence has been received which may tend to show that the defendant was
unconscious at the time and place of the commission of the alleged offenses for
which he is here on trial. If after consideration of all the evidence, you have a
reasonable doubt that the defendant was conscious, as that term is used in
these instructions, at the time the alleged offenses were committed, he must be
found not guilty.

FN4. Instruction No. 12 provided:
The elements of the crime of manslaughter in the second degree, each of which
the state must prove beyond a reasonable doubt, are that at the time and place
alleged:
1. The defendant caused the death of Randolph E. Scott.
2. The killing was reckless.
3. The killing was not excusable or justified.
Instruction No. 13 provided:
With respect to the charge of manslaughter in the second degree, the words
'reckless' or 'recklessly' means a conscious and unjustified disregard of a
substantial risk that one's conduct may cause a certain result or may be of a
certain nature.
A person is reckless with respect to circumstances when the person consciously
and unjustifiably disregards a substantial risk that such circumstances may
exist.




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