Jury Instructions

JUDGE WHEELER: All right. Good morning to everyone. We're here this morning in the case of the State of Florida versus Katherine Magbanua, 2016 CF 3036, 2018 CF 497. And Ms. Magbanua is present along with her counsel and counsel on behalf of the state.

JUDGE WHEELER: 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 looks fine. Let's see, Ms. Kawass, any objection to the verdict form? Okay. You had an opportunity to look at it? Okay. All right, thank you.

JUDGE WHEELER: Deputy, would you do me a favor? There are four copies for defense counsel and two copies for the state. Madam court reporter, there's a copy.

JUDGE WHEELER: Okay, well, they have four over there. Just — we've got plenty. So, um, I've got enough for the jury right up here. Let me make sure again.

JUDGE WHEELER: Okay, 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, anything? Anything from the defense? All right, thank you. Okay, let's bring the jury in. We'll go to jury instructions and then right into the closing argument.

JUDGE WHEELER: Good morning to everyone.

JUDGE WHEELER: Please be seated.

JUDGE WHEELER: You'll see that you have the jury instructions there on your seat. Could you 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.

JUDGE WHEELER: You have now heard and seen all the evidence that has been presented, and I thank you for your attention during the trial.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: Do not conduct any experiments.

JUDGE WHEELER: Do not visit or view the scene by looking at any maps or pictures on the internet.

JUDGE WHEELER: All jurors must see or hear the same evidence at the same time.

JUDGE WHEELER: 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, email, text message, or any other means.

JUDGE WHEELER: Do not contact anyone to assist you, and these rules apply until I discharge you at the end of the case.

JUDGE WHEELER: If you become aware of any violation of this instruction, please notify the bailiff, who will notify me.

JUDGE WHEELER: All right, now I'm going to read the instructions to you as you follow along.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

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

JUDGE WHEELER: Number one, 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 number two, when the killing occurs by accident and misfortune in the heat of passion upon any sudden and sufficient provocation; or three, 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. Dangerous weapon is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.

JUDGE WHEELER: Count one, first-degree murder. In count one, 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:

JUDGE WHEELER: Number one, Daniel Markel is dead.

JUDGE WHEELER: Number two, the death was caused by the criminal act of the defendant.

JUDGE WHEELER: Number three, there was a premeditated killing of Daniel Markel.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: The premeditated intent to kill must be formed before the killing.

JUDGE WHEELER: 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 are lesser included crimes:

JUDGE WHEELER: 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.

JUDGE WHEELER: Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if defendant is guilty of any lesser included crime.

JUDGE WHEELER: The lesser crimes indicated in the definition of first-degree murder are second-degree murder and manslaughter.

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

JUDGE WHEELER: Number one, Daniel Markel is dead.

JUDGE WHEELER: Number two, the death was caused by the criminal act of the defendant. Number three, 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.

JUDGE WHEELER: 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, number one, a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and number two, is done from ill will, hatred, spite, or an evil intent; and three, is of such a nature that the act itself indicates an indifference to human life.

JUDGE WHEELER: 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.

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

JUDGE WHEELER: Number one, Daniel Markel is dead. Number two, the defendant intentionally committed an act or acts that caused the death of Daniel Markel.

JUDGE WHEELER: 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 number one, the defendant had a conscious intent that the criminal act be done, and number two, the defendant did some act or said some word which was intended and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit the crime.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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, one, the defendant had a conscious intent that the criminal act be done; 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 under either theory, the defendant does not have to be present when the crime is committed.

JUDGE WHEELER: Count two, conspiracy. In count two, 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.

JUDGE WHEELER: Number one, the intent of the defendant was that the offense of first-degree murder would be committed. Number two, 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: Count three, solicitation. In count three, 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.

JUDGE WHEELER: Number one, the defendant solicited Sigfredo Garcia and/or Luis Rivera to commit first-degree murder.

JUDGE WHEELER: Number two, during the solicitation, the defendant commanded, 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.

JUDGE WHEELER: It is not necessary that the defendant do 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.

JUDGE WHEELER: The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent.

JUDGE WHEELER: 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. 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

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

JUDGE WHEELER: 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.

JUDGE WHEELER: Weighing the evidence. It is up to you to decide what evidence is reliable.

JUDGE WHEELER: 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 witness acted as well as what they said. Some things you should consider are: number one, did the witness seem to have an opportunity to see and know the things about which the witness testified? Number two, did the witness seem to have an accurate memory?

JUDGE WHEELER: Number three, was the witness honest and straightforward in answering the attorneys' questions?

JUDGE WHEELER: Number four, did the witness have some interest in how the case should be decided?

JUDGE WHEELER: Number five, does the witness's testimony agree with the other testimony and other evidence in the case? Number six, has the witness been offered or received any money, preferred treatment, or other benefit in order to get the witness to testify? Number seven, has any pressure or threat been used against the witness that affected the truth of the witness's testimony? Number eight, did the witness at some other time make a statement that is inconsistent with the testimony he or she gave in court? Number nine, has the witness been convicted of a felony? Number ten, does the witness have a general reputation for dishonesty?

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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, 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: Number one, 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.

JUDGE WHEELER: Number two, 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.

JUDGE WHEELER: Number three, this case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.

JUDGE WHEELER: Number four, remember the lawyers are not on trial. Your feelings about them should not influence your decision in this case.

JUDGE WHEELER: Number five, your duty is to determine if the defendant has been proven guilty or not in accord with the law. Number six, whatever verdict you render must be unanimous; that is, each juror must agree to the same verdict. Number seven, 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: You may find a 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.

JUDGE WHEELER: 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.

JUDGE WHEELER: Verdict: we, the jury, find as follows as to count one. Check only one as to the letters.

JUDGE WHEELER: 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.

JUDGE WHEELER: We, the jury, find as follows as to count two. 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.

JUDGE WHEELER: We, the jury, find as follows as to count three. Check only one as to the letters.

JUDGE WHEELER: A, the defendant is guilty of solicitation to commit first-degree murder; or B, the defendant is not guilty. And it's signed and dated by the foreperson.

JUDGE WHEELER: All right, before I read this final instruction to you, the attorneys will now present their final arguments to you.

JUDGE WHEELER: Please remember that what the attorneys say is not evidence. However, do listen closely to their arguments. They're intended to aid you in understanding the case.

JUDGE WHEELER: 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.