3.Charge Conference — Jury Instructions Finalized for All Three Counts

JUDGE EVERETT: Everyone can be seated.

All right. For the attorneys, we'll go ahead and go into recess now. When we come back from lunch, we will have the charge conference on the jury instructions. The initial draft has been sent to everyone. Both parties have it?

JUDGE EVERETT: All right. There was one other instruction that came to mind given the discussion about intent and context. Within standard instruction 13.1, there's a definition that defines intent. I've previously given it in murder trials as a stand-alone instruction which basically would give the jurors a definition of what is intent.

In this matter I would believe it's appropriate. I'‘'11 allow you-all to raise any objections or concerns about it as we get into the charge conference itself, but I just wanted to make you aware it's part of the edit that I have been working on.

JUDGE EVERETT: Probably enjoying a leisurely lunch.

All right. Mr. Evans, do you have a copy of what has already been sent to everyone?

JUDGE EVERETT: Okay.

Mr. Rashbaum, Ms. Meyers, typically how I do this, I go through each instruction, and we simply just edit it as we go. TI believe it's better to work through the full instruction so that way everyone has an opportunity to be heard concerning anything they wish to argue for or anything that they want to omit.

JUDGE EVERETT: All right. I will make that edit.

And the same with regard to solicitation, Mr. Evans?

JUDGE EVERETT: One moment.

What is the Defense's position as to the proposed edit?

JUDGE EVERETT: Very well.

Elements 1, 2, and 3, really the only thing that would -- the Court has edited with this are just changing the names of defendant and victim.

Element 1, Daniel Markel is dead. Element 2, the death was caused by the criminal act of Charles Adelson. Element 3, there was a premeditated killing of Daniel Markel.

Any objection or request as to the three elements?

JUDGE EVERETT: All right. Moving on to the definitions. An act will be given. Killing with premeditation will be given. The question of premeditation will be given.

Then the rest of the instruction deals with legally adequate provocation. I assume this is not being requested since there's no argument for it being justified or excusable.

JUDGE EVERETT: All reference, then, to legally adequate provocation will be removed, and the instruction will end at the definition of the question of premeditation.

And the State is waiving all lessers as well?

JUDGE EVERETT: And all reference to lesser includeds will be removed and also from the verdict form as well.

All right. And that will take us right into, after the instruction on first-degree murder, 3.5€a), Principals.

JUDGE EVERETT: Very well.

It will read: If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all things the other person or persons did if the defendant had a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime. To be a principal, the defendant does not have to be present when the crime is committed or attempted.

And essentially it would just be the standard language. Does the Defense have any objection or request it wishes to raise?

JUDGE EVERETT: All right.

As to the No. 3 within 3.5(€Cb), I edited this to read, "The crime was committed by Sigfredo Garcia and/or Luis Rivera."

Do you wish there to be any other edits?

JUDGE EVERETT: After 3.5(€b), this is where -- earlier when I was suggesting intent as a stand-alone instruction from 13.1, this is where I would otherwise think it's a good place for it to be inserted. It would just read intent in capital letters, and below the intent with which an act is done is an operation of the mind and therefore is not always capable of direct and positive proof. It may be established by circumstantial evidence like any other fact in a case.

The State have any position about giving the definition of intent as a stand-alone instruction or where it should go?

JUDGE EVERETT: Very well.

Mr. Evans?

JUDGE EVERETT: All right. The test for the inclusion of an instruction I believe is found at Butler Versus State, 14 So.3d 269, with the factors being an instruction accurately states the applicable law, the facts in the case support giving the instruction, and the instruction was necessary to allow the jury to properly resolve all issues in the case.

Whether or not the defendant has acted with intent as it relates to the primary offense, first-degree murder, I don't think anyone is disputing whatsoever. I'm going to give the instruction as requested from the State as it does meet the grounds outlined in Butler.

Is there any argument as to where it should be positioned within the instructions themselves?

JUDGE EVERETT: Very well. I will move it there.

All right. Moving on to Count II, conspiracy to commit, Mr. Evans, you would ask that this read first-degree murder?

JUDGE EVERETT: All right. Element 1, the intent of Charles Adelson was that the offense of first-degree murder would be committed. And then as to Element 2, I'm just going to remove the italicized portion. Because we've already defined first-degree murder in the instructions, I don't believe we need to repeat it.

Is either party asking for it?

JUDGE EVERETT: Moving on to Element 2. In order to carry out the intent, Charles Adelson ...

Mr. Evans, which of the bracketed portions are you asking for?

JUDGE EVERETT: That's fine.

You said after the semicolon or before?

JUDGE EVERETT: Just making sure.

All right. Element 2. In order to carry out the intent, Charlie Adelson agreed, conspired, combined, or confederated with Katherine Magbanua -- and this was another edit I made -- and other co-conspirators to cause the first-degree murder to be committed either by them or one of them or by some other person.

Is there any objection or request?

JUDGE EVERETT: Very well. Let me go back to how that will read once again.

In order to carry out the intent, Charles Adelson agreed, conspired, combined, or confederated with Katherine Magbanua and/or other co-conspirators to cause the first-degree murder to be committed either by them or one of them or by some other person. It is not necessary that -- and the State is asking for all four of them?

JUDGE EVERETT: It is not necessary that the agreement, conspiracy, combination -- or federation to commit first-degree murder be expressed in any particular words or that words pass between the conspirators. It's not necessary the defendant do any act in furtherance of the offense conspired.

As it pertains to the good faith affirmative defense of renunciation, is there any argument for this?

JUDGE EVERETT: I will remove it. I don't believe there's any evidence either, but better to ask the question than just delete.

All right. There are no Category 1 lesser includeds of Count II. Are there any being requested by the defense?

JUDGE EVERETT: To prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt. Element 1. And this is where I've edited this during the trial, but it would read: Charles Adelson solicited Katherine Magbanua, Sigfredo Garcia, and/or Luis Rivera to commit first-degree murder.

Any objection or request?

JUDGE EVERETT: Very well.

All right. Starting back at the beginning, during the solicitation, Charles Adelson commanded, encouraged, hired, or requested Katherine Magbanua, Sigfredo Garcia, and/or Luis Rivera to engage in specific conduct which would constitute the commission of first-degree murder. It is not mecessary that defendant do any act in furtherance of the offense solicited. The crime of first-degree murder has been previously defined in these instructions, and the one definition that would be given would be to solicit.

The affirmative defense, again, concerning renunciation, this would be removed unless there's any argument for keeping it.

JUDGE EVERETT: Very well.

Following, then, Count ill, the definition of intent is gonna be given as a stand-alone instruction.

Then we would move into 3.7, plea of not guilty, reasonable doubt, and burden of proof; 3.9, weighing the evidence; and then going into the witness testimony specifically.

Of the "give as applicable" portion, which are being asked for?

JUDGE EVERETT: All right. 10 will be removed then.

As to 9, you're just asking has the witness been convicted of a felony and put the question mark there?

JUDGE EVERETT: Very well.

The fact that a witness is employed in law enforcement does not mean that his or her --

JUDGE EVERETT: Accomplices and informants. The "amening" can stop from the defense table for this one.

All right. As to the bracketed portion, claims to have helped the defendant commit a crime and hopes to gain favorable treatment would be the ones I think are most appropriate. Is anything else being asked for?

JUDGE EVERETT: All right. Then it will read: For example, a witness who claims to have helped the defendant commit a crime has been promised immunity from prosecution or hopes to gain more favorable treatment -- I guess this really isn't a his or her. This is just really her case.

Mr. Evans, is there any objection to editing out "his" and the “or™ from hopes to gain?

JUDGE EVERETT: All right.

Mr. Evans, unless you have an issue, I'll leave it in, but really the only person the jury has heard that's hoping to gain favorable treatment is Ms. Magbanua.

JUDGE EVERETT: Very well.

Hopes to gain more favorable treatment in her own case may have a reason to make a false statement in order to strike a good bargain with the State.

All right. And this portion will remain his or her because this would go to both Rivera and Magbanua.

There are no children witnesses in this matter.

The defendant has testified, so that will be given.

The defendant in this case has become a witness. You should apply the same rules to consideration of his testimony that you apply to the other witnesses.

Witness talked to a lawyer. Is this being requested?

JUDGE EVERETT: And I will just place an “or” between his and her, and the give in all cases will be given.

Yes --

JUDGE EVERETT: I believe in reference to both the proffer and also the lack of her attorneys being here, it came up in both contexts.

Is there any further argument from the Defense? I would think this line is fairly benign. It's not otherwise alluding to anyone doing something improper.

JUDGE EVERETT: Very well.

Defendant's statements will be given. Any objection or request of the wording?

JUDGE EVERETT: Very well.

I do believe this does raise the context of law enforcement statements. At the same time, as there was an active wire, it kind of straddles that line, but I will remove unless the State is asking for it to be given for some reason.

JUDGE EVERETT: Then it will read: we, the Jury, find as follows as to Count I in the Indictment, First-degree Murder: Check only one letter choice as to this Count. Option A, the defendant is guilty of first-degree murder. Option B, the defendant is not guilty as to count I.

Count II, we, the Jury, find as follows as to Count II of the Indictment, Conspiracy to Commit -- and I'll just make it consistent here -- First-degree Murder: Check only one letter choice as to this Count.

Option A, the defendant is guilty of conspiracy to commit first-degree murder. Option B, the defendant is not guilty as to Count II.

Count ill. We, the Jury, find as follows as to Count ill of the Information [sic]: Solicitation to Commit First-degree Murder.

JUDGE EVERETT: Oh, yes, it should. Thank you.

We, the Jury, finds as follows as to Count ill of the Indictment, Solicitation to Commit First-degree Murder: Check only one letter choice as to this Count. Option A, the defendant is guilty of solicitation to commit first-degree murder. Option B, the defendant is not guilty as to Count ill, and then to be signed and dated by the foreperson.

JUDGE EVERETT: Well, you never know.

All right. 2.7, closing. Any objection or request?

JUDGE EVERETT: Okay.

All right. Any other requests or objections as to the instructions?

JUDGE EVERETT: I will send both sides a copy of what has just been edited on my screen. You'll have an opportunity to review it further if you wish. And before we get started on Monday morning, if something needs to be changed -- well, I'll put it this way.

If some -- if you're asking for anything else, please email my assistant immediately so that way, on Monday, we can just jump into it and keep rolling.