1.Final Jury Instructions

JUDGE EVERETT: All right. Let's go ahead and go on the record and get started to resolve any remaining matters from the charge conference yesterday.

Mr. Zelman, the cases that were provided by the State concerning the applicability of the principal theory to manslaughter and also Count 3, is this matter contested any further?

JUDGE EVERETT: And then specifically as to that portion of this matter, Mr. Zelman, that does crystallize the issue. The State must argue there was intent that the crime be committed. But as far as there being an intent that the victim of the crime actually died, that is not required by second-degree murder as a stand-alone crime or aS a principal matter. The same would apply to manslaughter as well.

As to any objection that you wish to raise, I'll allow you to make it now.

JUDGE EVERETT: On this matter, I will need to take colloquy from the defendant.

Mrs. Adelson, please rise and raise your right hand to be sworn.

JUDGE EVERETT: You can lower your hand.

Mrs. Adelson, you understand that lesser included crimes are something that is available depending on what is charged as a crime?

JUDGE EVERETT: You may be seated.

As to the jury instructions, I will remove second-degree murder and manslaughter as options.

JUDGE EVERETT: Give me one moment.

Concerning the principal instruction, Mr. Evans?

JUDGE EVERETT: I will make the requested change.

Let me repeat it once again, so it reflects what is requested. This instruction only applies to Counts 1 and 3 and does not apply to Count 2.

JUDGE EVERETT: Yes. As to the defense's request to move in certain portions of the 2023 and 2024 calendars, under the rule of completeness, after reviewing this matter, the rule and cases associated with it last night, at this time, that is going to be denied. Specifically, as to the 2014 and -- excuse me -- 2023 calendars. These are not what the Court would deem as a unified recording or writing. The calendars specifically are broken into separate documents by date, the 2014 calendar, any discussion of planning a party in no way connects with the license plate information that has been entered into evidence, which was done by a witness who authenticated that page, the handwriting, and other matters to reach the admissibility threshold. As that would go to hearsay, without an exception or a witness testifying on the matter, it will not be admitted.

As to the 2023 calendar, these are not united by time or would otherwise lend context between the entries themselves. Again, if there is a witness who would testify to these matters, that would change the analysis. However, that has not occurred. As to those two items, they will be made court exhibits, if necessary, for any future review.

JUDGE EVERETT: Let me bring up the indictment.

So you wish for it to read: Conspiracy to commit first-degree murder?

JUDGE EVERETT: The verdicts will read:

Count 1, we, the jury, find as follows as to Count 1 of the indictment:

First-degree murder:

The defendant is guilty of first-degree murder.

The defendant is not guilty as to Count 1.

Count 2, we, the jury, find as follows as to Count 2 of the indictment:

Conspiracy to commit first-degree murder:

The defendant is guilty of conspiracy to commit first-degree murder.

The defendant is not guilty as to Count 2.

Count 3, we, the jury, find as follows as to Count 3 of the -- I'll change that to indictment and not information -- Count 3 of the indictment:

The defendant is guilty of solicitation to commit first-degree murder.

The defendant is not guilty as to Count 3.

JUDGE EVERETT: Very well. As to the renewed motion for judgment of acquittal, the Court has the same ruling. [In taking the evidence introduced throughout the trial in the light most favorable to the State, the State has met its burden to present all three counts to the jury.

As to any review on this matter, the issue is preserved.

JUDGE EVERETT: On this, I will provide a few moments. After this, we do need to resume timely. Yesterday when the Court made reference to contempt, this concern has continued to occur, and also not returning from the conferrals. We need to resume court.

If you need to speak to your attorneys now concerning whether you wish to testify, I will allow you to do so. I am going to give you ten minutes to accomplish this. when ten minutes is up, we do need to move on.

JUDGE EVERETT: we'll make it 30 minutes then.

The reason why I am bringing this issue to the parties’ attention is only because I believe the appellate cases of this state make clear, prior to instructions and closing, a request to reopen the case or for the defendant to testify, the exercise of the fundamental right leans towards allowing this to occur. I am giving her this last opportunity to confer with counsel and make this decision.

JUDGE EVERETT: Before we bring the jurors in, we will have a brief break to allow the parties to set up any demonstratives and presentations that they will need for closing arguments.

Please inform the jurors that we will bring them out about 9:25. Until then, the parties may do what they need to do to set up to get ready. I will print the copies of the instructions. If anyone needs to stretch their legs, use the bathroom, please do so.

As to all observers, for the closing arguments today -- and this is very important -- once again, you are not to make any gestures. You are not to make any facial movements. You are not to, in any way, indicate to the jurors that you agree or disagree with what is being argued or what is being said. Phones need to be put away and placed on silent or turned off.

Does anyone have any questions?

Given what was brought up yesterday, that there was either murmuring or some sort of improper influencing or attempt to improperly influence the jury, that is not going to be permitted. You will be removed and also subject to contempt.

Please raise your hands now if you have any questions. Otherwise, I expect you to conduct yourselves accordingly. we will resume at 9:25. The parties are to prepare for the closings at this point for all presentations and demonstrations.

JUDGE EVERETT: All right. Let me do this then, as to this first sentence, it really -- I'm sorry. The first sentence, that describes the accusation. The second sentence goes into what the lessers are. I cannot see a reason to give the sentence at all if there are no lessers.

Is either party requesting the second sentence in the introduction?

JUDGE EVERETT: Followed by the third sentence. The sentence that would remain: If you find Daniel Markel was killed by Donna Adelson, you will consider the circumstances surrounding the killing in deciding if the killing was first degree murder, period.

And then the last sentence: I will now instruct you on the circumstances, moving into the counts.

So all of this gone.

JUDGE EVERETT: Very well. I will change this page. I will reprint page 1, and then everyone will receive copies of the instructions.

were you able to speak with your client concerning, is her decision firm?

JUDGE EVERETT: Yes.

Ms. Cappleman, Ms. Dugan, Ms. Fulford, if you can join us at the sidebar.

JUDGE EVERETT: Just so all the parties were clear on what was just discussed, concerning the jury instructions, with there being no lesser included offenses that will be considered by the jury, the second and third paragraphs of the introduction will be removed, and the second sentence in the third paragraph will be removed.

Concerning the other matter that previously came up during the sidebar, Mrs. Adelson, you remain under oath. As to whether you wish to exercise your right to testify in this trial, have you made a decision considering this?

JUDGE EVERETT: The colloquy on this subject matter is united through the multiple discussions that occurred the previous day of trial and on this day as well.

I will print an updated version of page 1 of the instructions. Everyone will receive a copy from there, and copies will be provided to the jurors so they can follow along.

Are there any other requests or questions?

JUDGE EVERETT: How about I'll give you a (demonstrative sound), like someone is at the door, and that will be your time?

How about the knock at the door will come -- would you like it at three minutes or two minutes?

JUDGE EVERETT: All right. Please add to that to the record.

The stipulation to, regarding Patricia Byrd, that I will read once the jurors come in. Then we will move directly into instructions and closings.

JUDGE EVERETT: Before we get started with the instructions on the law and the closings arguments by the attorneys, I will have a stipulation to read to you.

when the parties agree that certain facts are true, that is called a stipulation of fact. You must accept stipulated facts as having been proven. However, the significance of these facts, as with all facts, is for you to decide.

In this case, the stipulated fact that you must accept as true is that Patricia Byrd was not listed by the current or previous defense counsel as a potential witness in this case.

Does each juror have a copy of the jury instructions in their seats? Please raise your hands.

For the record, each juror as been provided with a copy of the instructions.

I am going to read these instructions out loud to you. You may follow along by reading as I read them out loud, or you may listen. The important thing is that you pay careful attention to the instruction on the law.

Members of the jury, I thank you for your attention during this trial. Please pay attention to the instructions I am about to give you.

Donna Adelson, the defendant in this case, has been accused of first-degree murder, conspiracy to commit first-degree murder, and solicitation to commit first-degree murder.

Donna Adelson is accused of first-degree murder in Count 1 of the indictment.

If you find Daniel Markel was killed by Donna Adelson, you must then consider the circumstances surrounding the killing in deciding if the killing was first-degree murder.

I now instruct you on the circumstances that must be proved before Donna Adelson may be found guilty of first-degree murder.

County 1, to prove the crime of first-degree premeditated murder, the State must prove the following three elements beyond a reasonable doubt:

Element 1, Daniel Markel is dead.

Element 2, the death was caused by the criminal act of Donna Adelson.

Element 3, there was a premeditated killing of Daniel Markel.

An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.

"Killing with premeditation” is killing after consciously deciding to do so. The decision must be present in the mind at the time of the killing. The law does not fix the exact period of time that must pass between the formation of the premeditated intent to kill and the killing. The period of time must be long enough to allow reflection by the defendant. The premeditated intent to kill must be formed before the killing.

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

Count 2, to prove the crime of criminal conspiracy, the State must prove the following two elements beyond a reasonable doubt:

Element 1, the intent of Donna Adelson was that the offense of first-degree murder would be committed.

Element 2, in order to carry out the intent, Donna Adelson agreed; conspired; combined; or confederated with Charles Adelson or Katherine Magbanua or other persons to cause first-degree murder to be committed either by them, or one of them, or by some other person.

It is not necessary that the agreement; conspiracy; combination; or confederation to commit first-degree murder be expressed in any particular words or that words pass between the conspirators.

It is not necessary that the defendant do any act in furtherance of the offense conspired.

Count 3, to prove the crime of criminal solicitation, the State must prove the following two elements beyond a reasonable doubt:

Element 1, Donna Adelson solicited Charles Adelson or Katherine Magbanua or other persons to commit first-degree murder.

Element 2, during the solicitation, Donna Adelson commanded; encouraged; hired; or requested Charles Adelson or Katherine Magbanua or other persons to engage in specific conduct, which would constitute the commission of first-degree murder.

It is not necessary that the defendant do any act in furtherance of the offense solicited.

The crime of first-degree murder has been previously defined in these instructions.

To "solicit" means to ask earnestly or to try to induce another person to engage in specific conduct.

JUDGE EVERETT: If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if she had done all the things the other person or persons did if the State proved beyond a reasonable doubt:

One, the defendant intended the crime to occur.

And, two, the defendant did some act or said something that was intended to and that 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.

For first-degree premeditated murder, the State must prove the defendant intended that the killing of Daniel Markel occur.

This instruction only applies to Counts 1 and 3 and does not apply to Count 2.

If the defendant paid or promised to pay another person or persons to commit a crime, the defendant is a principal and must be treated as if she had done all of the things the person who was promised or received the money did if the State proved beyond a reasonable doubt:

One, the defendant intended the crime to occur.

And, two, she made or promised the payment in exchange for the commission or promise to commit the crime or to help commit the crime.

And, three, the crime was committed by the other person.

To be a principal, the defendant does not have to be present when the crime is committed.

This instruction only applies to Count 1 and 3 and does not apply to Count 2.

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 defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the indictment through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.

The defendant is not required to present evidence or prove anything.

Whenever the words "reasonable doubt" are used, you must consider the following:

Proof beyond a reasonable doubt does not mean proof beyond all doubt. A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable, but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.

A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.

If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.

It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable, or less reliable than other evidence.

You should consider how the witnesses acted, as well as what they said. Some things you should consider are:

Did the witness seem to have an opportunity to see and know the things about which the witness testified?

Did the witness seem to have an accurate memory?

was the witness honest and straightforward in answering the attorneys’ questions?

Did the witness have some interest in how the case should be decided?

Does the witness's testimony agree with the other testimony and other evidence in the case?

Has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify?

Had any pressure or threat been used against the witness that affected the truth of the witness's testimony?

JUDGE EVERETT: Did the witness at some other time make a statement that is inconsistent with the testimony he or she gave in court?

Has the witness been convicted of a felony or misdemeanor involving dishonesty?

Was the witness present in the courtroom during the testimony of another witness or other witnesses?

whether the State has met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented.

The fact that a witness is employed in law enforcement does not mean that his or her testimony deserves more or less consideration than that of any other witness.

Check on what's happening in the hallway.

Expert witnesses are like other witnesses, with one exception, the law permits an expert witness to give his or her opinion. However, an expert's opinion is reliable only when given on a subject about which you believe him or her to be an expert. Like other witnesses, you may believe or disbelieve all or any part of an expert's testimony.

You must consider the testimony of some witnesses with more caution than others. For example, a witness who claims to have helped the defendant commit a crime or hopes to gain more favorable treatment in his or her own case may have a reason to make a false statement in order to strike a good bargain with the State. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant. So, while a witness of that kind may be entirely truthful when testifying, you should consider her testimony with more caution than the testimony of other witnesses. However, if the testimony of such a witness convinces you beyond a reasonable doubt of the defendant's guilt, or the other evidence in the case does so, then you should find the defendant guilty.

It is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about his or her testimony.

You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.

The Constitution requires the State to prove its accusations against the defendant. It is not necessary for the defendant to disprove anything. Nor is the defendant required to prove her innocence. It is up to the State to prove the defendant's guilt by evidence.

The defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by her decision. No juror should ever be concerned that the defendant did or did not take the witness stand to give testimony in the case.

There are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

No. 1, you must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case. All of us are depending upon you to make a wise and legal decision in this matter.

No. 2, this case must be decided only upon the evidence that you have heard from the testimony of the witnesses and have seen in the form of the exhibits in evidence and these instructions.

No. 3, this case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.

No. 4, remember, the lawyers are not on trial. Your feelings about them should not influence your decision in this case.

No. 5, your duty is to determine if the defendant has been proven guilty or not, in accord with the law. It is the judge's job to determine a proper sentence if the defendant is found guilty.

No. 6, whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.

No. 7, your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence, and on the law contained in these instructions.

Deciding a verdict is exclusively your job. I cannot participate in that decision in any way. Please disregard anything I may have said or done that made you think I preferred one verdict over another.

JUDGE EVERETT: A separate crime is charged in each count of the indictment and, although they have been tried together, each crime and the evidence applicable to it must be considered separately and a separate verdict returned as to each. A finding of guilty or not guilty as to one crime must not affect your verdict as to the other crimes charged.

You may find the defendant guilty as charged or guilty of such lesser included crimes as the evidence may justify or not guilty.

If you return a verdict of guilty, it should be for the highest offense on the verdict form that has been proven beyond a reasonable doubt. If you find that no offense has been proven beyond a reasonable doubt, then, of course, your verdict must be not guilty.

The verdict must be unanimous, that is, all of you must agree to the same verdict. Only one verdict may be returned as to the crime charged. The verdict must be in writing and for your convenience, the necessary verdict form has been prepared for you. It is as follows:

There is only one verdict form, which I am in possession of right now, but I will read to you all of the options that are available on the verdict form.

State of Florida versus Donna Adelson, defendant, Case No. 2023-CF-3226.

Verdict:

Count 1: we, the jury, find as follows as to Count 1 of the indictment, first-degree murder. Check only one letter choice as to this count:

Letter option A, the defendant is guilty of first-degree murder.

Letter option B, the defendant is not guilty as to Count 1.

Count 2: we, the jury, find as follows as to Count 2 of the indictment, conspiracy to commit first-degree murder. Check only one letter choice as to this count:

Letter option A, the defendant is guilty of conspiracy to commit first-degree murder.

Letter option B, the defendant is not guilty as to Count 2.

Count 3: we, the jury, find as follows as to Count 3 of the indictment, solicitation to commit first-degree murder. Check only one letter choice as to this count:

Letter option A, the defendant is guilty of solicitation to commit first-degree murder.

Letter option B, the defendant is not guilty as to Count 3.

And then the verdict form is to be signed and dated by the individual who will serve as the foreperson.

Both the State and the defendant have now rested their case. The attorneys now will present their final arguments. Please remember that what the attorneys say is not evidence or your instruction on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case.

Each side will have equal time, but the State is entitled to divide this time between an opening argument and a rebuttal argument after the defense has given its