Avoiding fundamentally erroneous jury instructions: pointers for counsel in criminal trials and appeals.

• Author: Giel, Michael M.
• Position: Florida

Whether reviewing instructions before they go to the jury or perusing them on appeal, revisit the doctrine of fundamental error. Faulty jury instructions are one of the greatest sources of reversible error. (1)

The avowed function of the jury instruction is to state the substantive law as a textbook for the jury, ... against a background of the individual case, without invading the province of the jury. An improper instruction not only violates the accused's Fifth Amendment Due Process rights to a fair trial, but also the derivative Sixth Amendment jury trial right. One may question the impact a jury instruction has on deliberations, but if the jury followed the law, which it swore to uphold, then the verdict is predicated upon the legal premises provided in the jury instructions. It follows logically that an erroneous view of the legal principles will be reflected in the verdict. A faulty instruction to the jury is a type of virus or cancerous metastasis; it plants seeds of error that have infectious proportions. (2)

To help counsel who would rather not plant these seeds, this article 1) reviews the Florida Supreme Court's definition of fundamental error; 2) clarifies periodically misconstrued language in Reed v. State, 837 So. 2d 366 (Fla. 2002); and 3) summarizes common scenarios where fundamentally erroneous jury instructions may arise.

Definition of Fundamental Error

Fundamental error is that which undermines the trial's legality such that the guilty verdict could not have been obtained without the error. (3) Such an error must "so permeate the proceeding as to convert it into a 'mere pretense of a trial' [or] ... strike at the fundamental legality of the trial itself." (4) The court in Ray v. State, 403 So. 2d 956, 960 (Fla. 1981), emphasized that "the error must amount to a denial of due process" to be fundamental:

Fundamental error ... [is] "error which goes to the foundation of the case or goes to the merits of the cause of action." The appellate courts, however, have been cautioned to exercise their discretion concerning fundamental error "very guardedly." ... [T]he doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application. (5)

The court's rhetoric regarding fundamental error and instructions on affirmative defenses or offense elements has remained consistent. Smith v. State, 521 So. 2d 106, 108 (Fla. 1988), held no fundamental error occurred where an erroneous instruction shifted the burden of proof on the defense of insanity:

[W]e cannot say that [the inadequate insanity instruction] was so flawed as to deprive defendants claiming the defense of insanity of a fair trial. Despite any shortcomings, the standard jury instructions, as a whole, made it quite clear that the burden of proof was on the state to prove all the elements of the crime beyond a reasonable doubt. (6)

State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991), found no fundamental error where the instruction omitted an undisputed element:

"[T]he error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." In other words, "fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict." (7)

The failure to instruct on voluntary intoxication as a defense to felony murder based on kidnapping, a specifics-intent crime, was not fundamental error in Sochor v. State, 619 So. 2d 285, 290 (Fla. 1993) (citations omitted):

Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not an essential element of, kidnapping. Therefore, the state did not have to disprove voluntary intoxication ... to convict Sochor of felony murder based on the underlying felony of kidnapping. Because the ... instruction went to Sochor's defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.

The same themes appeared in the court's reprise of instructional error in Battle v. State, 911 So. 2d 85, 89 (Fla. 2005) (citations and internal quotation marks omitted):

[I]f a court fails to include all essential elements in a jury instruction and the defendant does not object at trial, the omission can be raised on appeal only if fundamental error occurred. Fundamental error is error [which] reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. Fundamental error only occurs when the omission is pertinent or material to what the jury must consider in order to convict.

"[A]ll fundamental error is harmful."

With this background, the court's language in Reed v. State merits examination. Reed clarified that "fundamental error is not subject to harmless error review. By its very nature, fundamental error has to be considered harmful. If the error was not harmful, it would not meet our requirement for being fundamental." (8) Fundamental error "must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." (9) Reed further stated that "for error to meet this standard, it must follow that the error prejudiced the defendant. Therefore, all fundamental error is harmful error. However, we likewise caution that not all harmful error is fundamental." (10)

It is easy to misconstrue Reed's statement that "fundamental error is not subject to harmless error review." Reed does not hold that, whenever a court labels an error "fundamental," reversal is automatic because the error's harmlessness cannot be considered. Rather, Reed sensibly observes that, if the error is harmless, then it cannot be said the error undermined the trial's validity such that a guilty verdict could not otherwise have been obtained. Judge Chris W. Altenbernd of the Second District Court of Appeal has repeatedly highlighted this distinction.

Vega v. State, 900 So. 2d 572, 573 (Fla. 2d DCA 2004), reversed a conviction in which the defendant was charged by information with intentionally touching or striking a law enforcement officer, but the jury was instructed to convict if he either struck the officer or caused bodily harm. Judge Altenbernd concurred, citing precedent, but stated that, under Supreme Court cases including Reed, "most, if not all, errors that are harmless beyond a reasonable doubt in their context should not be treated as fundamental errors." (11)

He expanded this point in Sampson v. State, 903 So. 2d 1055, 1058-59 (Fla. 2d DCA 2005) (Altenbernd, C.J., concurring), addressing the "considerable confusion about ... Reed":

[S]ome attorneys have focused too narrowly on the sentence in Reed that states: "By its very nature, fundamental error has to be considered harmful." Reed, 837 So. 2d at 369. Read outside its context, this sentence appears to suggest that fundamental error is a form of per se error that must be regarded or deemed harmful without a review of the record. Read in context, we are convinced that the [S]upreme [C]ourt announced exactly the opposite rule. The "nature" of fundamental error can only be evaluated from the record. The record must demonstrate the harm before the error can be considered fundamental.

Judge Altenbernd reiterated in Weaver v. State, 916 So. 2d 895, 898 (Fla. 2d DCA 2005), that Reed did not "convert any error labeled as...