1.Jury Instructions

JUDGE WHEELER: All right. Good morning to everyone.

We're here this morning in the case of the State of Florida v. Katherine Magbanua, 2016-CF-3036, 2018-CF-497. Ms. Magbanua is present, along with her counsel and counsel on behalf of the State.

All right. I made one minor change to the verdict form and I have a copy of it. But on the third count, it gives you a choice between A and F and I changed the F to a B. Other than that, it looked fine.

And let's see, Ms. Kawass, any objection to the verdict form?

JUDGE WHEELER: All right. Thank you.

Deputy, would you do me a favor? There are four copies for defense counsel and two copies for the State.

Madam Court Reporter, here is a copy.

JUDGE WHEELER: Well, they have four over there. We've got plenty. I've got enough for the jury right up here. Let me make sure again.

Madam Clerk, I have three extra copies just in case we need anything else; okay?

JUDGE WHEELER: Looks like we're all set with the jury instructions. Thank you for getting all the appropriate copies done.

And so any discussion or anything else before we bring the jurors in, Ms. Cappleman?

JUDGE WHEELER: All right. Good morning to everyone. Please be seated.

You'll see that you have the jury instructions there on your seat. If you could please pick those up and just keep them on the first page for me. I'll be reading those to you as you follow along.

You've now heard and seen all the evidence that has been presented. And I thank you for your attention during the trial. I now ask that you give the same careful attention to the law that I am going to deliver to you and to which you must apply the facts as you find them from the evidence.

You alone as the jurors are sworn to try this case, and you must determine the facts. And your determination of the facts and the verdict must be based solely on the evidence or the lack of evidence and the law.

During your deliberations, jurors must communicate about the case only with one another and only when all the jurors are present in the jury room. You will have in the jury room all of the evidence that was received during the trial.

In reaching your decision, please do not do any research on your own or as a group. That would include using the dictionary or the Internet or any other reference material. Do not conduct any experiments. Do not visit or view the scene by looking at any maps or pictures on the Internet. All jurors must see or hear the same evidence at the same time.

You are not to communicate with any person outside the jury about this case. And until you have reached a verdict, you must not talk about this case in person or through telephone, writing or electronic communication such as a blog, Twitter, e-mail, text message or any other means. Do not contact anyone to assist you.

And these rules apply until I discharge you at the end of the case. If you become aware of any violation of this instruction, please notify the bailiff who will notify me.

All right. Now I'm going to read the instructions to you as you follow along.

Introduction to final instructions. 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.

Statement of charge. Katherine D. Magbanua, the Defendant in this case, has been accused of the crimes of first degree murder, conspiracy to commit murder and solicitation to commit murder.

Introduction to homicide. First degree murder includes the lesser crimes of second degree murder and manslaughter, all of which are unlawful. A killing that is excusable or was committed by the use of justifiable deadly force is lawful.

If you find Daniel Markel was killed by the Defendant, you will then consider the circumstances surrounding the killing in deciding if the killing was first degree murder or was murder in the second degree or manslaughter or whether the killing was excusable or resulted from justifiable use of deadly force.

Justifiable homicide. The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the Defendant or to commit a felony in any dwelling house in which the Defendant was at the time of the killing.

Excusable homicide. The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

No. 1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or

No. 2. When the killing occurs by accident and misfortune in the heat of passion upon any sudden and sufficient provocation, or

3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

A "dangerous weapon" is any weapon that, taken into account the manner in which it is used, is likely to produce death or great bodily harm.

Count 1: First degree murder. In Count 1, Katherine D. Magbanua, the Defendant in this case, has been accused of the crime of first degree murder.

To prove the crime of first degree premeditated murder, the State must prove the following three elements beyond a reasonable doubt:

No. 1. Daniel Markel is dead.

No. 2. The death was caused by the criminal act of the Defendant.

No. 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.

JUDGE WHEELER: "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.

When there lesser included crimes. In considering the evidence, you should consider the possibility that although the evidence may not convince you that the Defendant committed the main crime of which he or she is accused, there may be evidence that he or she committed other acts that would constitute a lesser included crime.

Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the Defendant is guilty of any lesser included crime. The lesser crimes indicated in the definition of first degree murder are second degree murder and manslaughter.

Second degree murder. To prove the crime of second degree murder, the State must prove the following three elements beyond a reasonable doubt:

No. 1. Daniel Markel is dead.

No. 2. The death was caused by the criminal act of the Defendant.

No. 3. There was an unlawful killing of Daniel Markel by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

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

An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that:

No. 1. A person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

No. 2. Is done from ill will, hatred, spite or an evil intent, and

3. Is of such a nature that the act itself indicates an indifference to human life.

In order to convict of second degree murder, it is not necessary for the State to prove the defendant had an intent to cause death.

Manslaughter. To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:

No. 1. Daniel Markel is dead.

No. 2. The Defendant intentionally committed an act or acts that caused the death of Daniel Markel.

Every person has a duty to act reasonably towards others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. The Defendant cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide, as I have previously instructed you.

In order to convict of manslaughter by act, it is not necessary for the State to prove that the Defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified or excusable and which caused death.

Principals. If the Defendant helped another person or persons commit a crime, the Defendant is a principal and must be treated as if he or she had done all the things the other person or persons did if:

No. 1. The Defendant had a conscious intent that the criminal act be done, and

No. 2. 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 under either theory, the Defendant does not have to be present when the crime is committed.

Principals when active participant hired by Defendant. 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:

1. The Defendant had a conscious intent that the criminal act be done, and,

2. She made or promised the payment in exchange for the commission or promise to commit the crime or to help commit the crime, and,

3. The crime was committed by the other person.

JUDGE WHEELER: To be a principal under either theory, the Defendant does not have to be present when the crime is committed.

Count 2, conspiracy. In Count 2, Katherine D. Magbanua, the Defendant in this case, has been accused of the crime of conspiracy to commit first degree murder.

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

No. 1. The intent of the Defendant was that the offense of first degree murder would be committed.

No. 2. In order to carry out the intent, the Defendant agreed, conspired, combined or confederated with another person 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 words pass between the conspirators.

It is not necessary that the Defendant do an act in furtherance of the offense conspired.

Count 3, solicitation. In Count 3, Katherine D. Magbanua, the Defendant in this case, has been accused of the crime of solicitation to commit first degree murder.

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

No. 1. The Defendant solicited Sigfredo Garcia and/or Luis Rivera to commit first degree murder.

No. 2. During the solicitation, the Defendant commanded, encouraged, hired or requested Sigfredo Garcia and/or Luis Rivera to engage in specific conduct, which would constitute the commission of first degree murder.

It is not necessary that the Defendant did any act in furtherance of the offense solicited.

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

Plea of not guilty, reasonable doubt and burden of proof. 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 Information and 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 crimes with which the Defendant is charged were committed and the Defendant is the individual who committed the crimes.

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

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

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt.

On the other hand, if after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt or, if having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the Defendant not guilty because the doubt is reasonable.

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.

Weighing the evidence. 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:

No. 1. Did the witness seem to have an opportunity to see and know the things about which the witness testified?

No. 2. Did the witness seem to have an accurate memory?

No. 3. Was the witness honest and straightforward in answering the attorneys' questions?

No. 4. Did the witness have some interest in how the case should be decided?

No. 5. Does the witness's testimony agree with the other testimony and other evidence in the case?

JUDGE WHEELER: No. 6. Has the witness been offered or received any money, preferred treatment or other benefit in order to get the witness to testify?

No. 7. Had any pressure or threat been used against the witness that affected the truth of the witness's testimony?

No. 8. Did the witness at some other time make a statement that is inconsistent with the testimony he or she gave in court?

No. 9. Has the witness been convicted of a felony?

No. 10. Does the witness have a general reputation for dishonesty?

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.

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 claimed to have helped the Defendant commit a crime, has been promised immunity from prosecution 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 his or 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.

The Defendant has become a witness. You should apply the same rules to consideration of her testimony that you apply to the testimony of the other witnesses.

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.

Rules for deliberation. 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 proven guilty -- has been proven guilty or not in accord with the law.

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.

Cautionary instruction. 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 WHEELER: Single Defendant, multiple counts. A separate crime is charged in each count, 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.

Verdict. You may find the Defendant guilty as charged or guilty of such lesser included crime as the evidence may justify or not guilty.

If you return a verdict of guilty, it should be for the highest offense 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 each crime charged. The verdict must be in writing and for your convenience the necessary verdict form has been prepared for you and it reads as follows:

Okay. And I have the verdict form up here and I'm going to read it to you. And, of course, this will go back to the jury room with you.

Verdict. We, the jury, find as follows as to Count 1. Check only one as to the letters. A, the Defendant is guilty of first degree murder; or, B, the Defendant is guilty of the lesser included offense of second degree murder; or, C, the Defendant is guilty of the lesser included offense of manslaughter; or, D, the Defendant is not guilty.

We, the jury, find as follows as to Count 2. Check only one as to the letters. A, the Defendant is guilty of conspiracy to commit first degree murder; or, B, the Defendant is not guilty.

We, the jury, find as follows as to Count 3. Check only one as to the letters. A, the Defendant is guilty of solicitation to commit first degree murder; or, B, the Defendant is not guilty. And it is signed and dated by the foreperson.

All right. Before I read this final instruction to you, the attorneys will now present their final arguments to you. Please remember that what the attorneys say is not evidence. However, do listen closely to their arguments. They are intended to aid you in understanding the case.

Each side has been given sufficient time, but the State is entitled to a rebuttal argument after the defense has presented its closing argument to you. Okay. So we start with the closing arguments at this time and the State proceeds first.

And, Ms. Cappleman, you may proceed.