6.Charge Conference — Final Review
512 linesMR. CACCIATORE: Dave Cacciatore on behalf of the State.
THE COURT: Defense?
MR. HENDERSON: Tony Henderson for Sarah Boone.
THE COURT: Where might Mr. Owens be?
MR. HENDERSON: Judge, Mr. Owens is doing some preparation. I am handling --
THE COURT: Okay. If the State and the defense can approach, I have paper copies of the revised jury instructions.
You'll see on the bottom of each page is a file and path name. That's just for my own edification of where I've stored them so when we make additional changes. The revisions that we discussed earlier today have already been made. There are still a couple cleanups that I need to do just to get rid of the formatting items, but all the revisions that we spoke about this morning have been included.
With that, I think that takes us to page 9 of 28 in the 3.6(f) instruction. I also have the defendant's revised portions as to 3.6.
Just for the Court's clarification, is what is in page 9 of 28 of what was provided to the parties, is that the same as the separate defense 3.6(f) instruction?
MS. HENDERSON: Yes, Your Honor. It was only provided for more convenience for you to copy and paste them --
THE COURT: Got it. So should we be relying on the 3.6(f) instruction you, Ms. Henderson, sent last night?
MS. HENDERSON: Yes, sir, it is.
THE COURT: State, do you have that --
THE COURT: All right. Tell me when you have it pulled up in front of you, sir, and then we'll --
THE COURT: Very good. All right. Let me pull up the digital copy that I have. Give me a moment.
THE COURT: The Court has the 3.6(f) instruction as provided by the defense.
As to the first paragraph, It is a defense to the crime, bracket, S, bracket, of the second degree murder and culpable negligence if the actions of Sarah Boone constituted the justifiable use or threatened use of deadly force.
What say the State as to this instruction? And should not manslaughter be included?
MR. JAY: It should be second degree murder, comma, manslaughter and culpable negligence, even though culpable negligence doesn't involve an intentional act, but I'm not going to fight over that.
THE COURT: Okay. Any objection to that addition?
MR. HENDERSON: No, Your Honor.
THE COURT: Okay.
MR. HENDERSON: Judge, can I interrupt for just a minute? Because it is a special instruction that the State is requesting on causation --
THE COURT: Yes.
MR. HENDERSON: -- and that goes -- it's going to come before the self-defense.
MR. JAY: When it was used in the previous case that I cited that I used in -- I don't know, 10, 12 years ago, it's part of the instructions of second degree murder is where I would be requesting it.
THE COURT: And this is -- just that we're all on the same page, forgive me, this is the State's request for special jury instruction on causation.
THE COURT: All right. We'll revisit the State's request at that point in time.
So is the second -- the first full paragraph as read, is that acceptable to the defense?
MR. HENDERSON: Yes, Your Honor.
THE COURT: Okay. Moving now to the deadly force definition. It seems to track the language of the proposed jury instruction completely. Any revisions to that, State?
THE COURT: Defense? It's your instruction, I'm assuming you've got no quarrel with it.
MR. HENDERSON: No, Your Honor.
THE COURT: Moving to the next paragraph, I also believe that that is from the form 3.6 instruction.
State, any issue with the third full paragraph?
MR. JAY: So in my request I struck through, or threatening to use, each time because the evidence doesn't support that. What the evidence supports is she did actually use force, it wasn't a threat of force. So I think it's unnecessary and confusing and not supported by the evidence to have that cause in each of the paragraphs where it is mentioned.
THE COURT: Response, defense?
MR. HENDERSON: Judge, I have no problem with that. I was just -- when I put it in, I just was going off the statements that the State had made in different arguments, so -- especially when talking about aggravated assault, so --
THE COURT: Okay. So just so that I'm clear, you've got no objection to the removal of that language. So the third paragraph would now read: Sarah Boone does not have the burden of proving that she was justified in utilizing -- justified in using deadly force. Instead, for you to find Sarah Boone guilty, the State must prove beyond a reasonable doubt that Sarah Boone was not justified in using deadly force.
Is that correct, State?
THE COURT: Is that correct, defense?
MR. HENDERSON: Yes.
THE COURT: All right.
MR. HENDERSON: Judge, to make it quicker --
THE COURT: Mr. Henderson, you don't need to stand up every time, sir. I appreciate it.
MR. HENDERSON: I'm sorry, but it's an old habit.
THE COURT: I get it.
MR. HENDERSON: But it's out of habit.
Judge, every time that comes up --
THE COURT: You lose it.
MR. HENDERSON: Yes.
THE COURT: Understood. So then let's go back to the title then. Can we revise the title to 3.6(f), Justifiable Use of Deadly Force, and remove that bracket, or threatened use language?
MR. HENDERSON: It should just be use.
THE COURT: Okay. Very good. All right.
The next sentence: The law on the justifiable use of deadly force is as follows.
Is that acceptable, State?
THE COURT: As I read it, yes?
THE COURT: Is that acceptable, defense?
MR. HENDERSON: Yes, Your Honor.
THE COURT: Moving on now: Sarah Boone was justified in using deadly force if she reasonably believed that such force or threat of force was necessary to prevent, A, imminent death or great bodily harm to herself.
Is that acceptable to the State?
THE COURT: Yes. Confirm only what would be read would be A.
MR. HENDERSON: That's correct.
THE COURT: All right. Is that acceptable, State, with that understanding?
THE COURT: Okay. Moving now to the next portion: Sarah Boone had no duty to retreat before using deadly force.
My review of the case law -- and I don't recall which one it is -- if you're in your own home, you don't have to retreat.
MR. JAY: My understanding of the facts was that she used force first by zipping him up in the suitcase, and in doing so that, one, she could make him feel like he had made her feel in the past for choking and cheating on her and, two, to give her a platform to be able to speak to him as a captive audience and he would have to listen.
Because she took the actions of an initial aggressor, it is our position that there is a duty to retreat caused by the initial aggression as that is addressed lower in the jury instructions.
THE COURT: Response, defense?
MR. HENDERSON: Judge, I have a different view of the evidence. I think what the evidence has said about the initial -- in the suitcase is that Mr. Torres was getting into the suitcase and positioned himself into the suitcase when Ms. Boone came down. There was laughter between the two of them, the suitcase was zipped, and it was a consensual deal. It was a consensual thing. She didn't use any threat or use of force at that time to zip him in the suitcase.
Furthermore, during the demonstration and when they were demonstrating the suitcase in the zipping ability, I know time has passed, but I hadn't seen anything different to keep someone in there who didn't want to be in there. If someone didn't want to be in there it would be almost literally impossible to zip that suitcase because how much force they took to zip that suitcase. So the evidence doesn't support it.
THE COURT: Doesn't support a duty to retreat?
MR. HENDERSON: Correct. Because what they're saying -- going back even before we had stand your ground, just going back to the Castle Doctrine, there was never a duty to retreat from your home.
THE COURT: So then if I understand your argument, you are not seeking to have this included then.
MR. HENDERSON: I am seeking --
THE COURT: Because if you're saying she had no duty to retreat --
MR. HENDERSON: That's correct.
THE COURT: -- this talks about -- hang on. Let me just reread it.
Okay. I followed your argument, okay.
MR. HENDERSON: What I'm saying is where it should be, no duty to retreat -- that Sarah Boone had no duty to retreat. That's what we're requesting. I believe the State's objecting to that and saying that it is a dispute so they want the next paragraph as to the Court. But there is nothing that showed at that time because the State's arguing that she forcefully put him in the suitcase.
THE COURT: Response?
MR. JAY: That's a strongman argument. That is not the State's argument. We know what the evidence is in this case. The evidence that she provided, was he got into that suitcase by himself and they were playing hide and seek and he was inside, but not completely hidden, the lid was flapping over him. She came over and zipped it shut, whether it was a hundred percent or near a hundred percent shut, and it was all in fun and jest at first. But he did indicate, and we saw it on the video, image IMG underscore 1062: Sarah, I can't breathe. Sarah, I can't breath.
He was being held against his will in that Suitcase, that there is no requirement that she initially forced him into it or not. It's no different than two people wrestling and play fighting. One person has another person in a headlock and then there comes a point in time where I'm tapping out. Jorge Torres was tapping out and that's on video and it's in her testimony. It's uncontroverted.
There is sufficient evidence for there to be a dispute as to whether or not she was the initial aggressor and whether that generates a duty to retreat. Quite frankly, it's undisputed evidence because it's uniquely only her testimony coupled with the video.
She restrained him in that suitcase on purpose and intentionally. And if you look at the elements of aggravated assault in our proposed jury instructions, that is exactly what was going on. She intended for him to feel fearful of an inability to breathe, to make it feel like he had made her feel when she -- he had choked her.
An aggravated assault is defined as follows: Sarah Boone intentionally and unlawfully threatened, either by word or act, to do violence to Jorge Torres.
She would not let him out. She would not release the headlock when he indicated he could not breathe.
At the time, Sarah Boone appeared to have the ability to carry out the threat. Well, the video evidence is res ipsa loquitur. He could not get out on his own. He could not get out on his own at 11:12 in the first movie. He could not get out on his own at 11:23 in the second movie. And, quite frankly, he couldn't get out at 11:03 during the still photo as well.
Element three: The act of Sarah Boone created in the mind of Jorge Torres a well-founded fear that violence was about to take place. Absolutely. Sarah, I can't breathe. Babe, I can't fucking breathe. Sarah, Sarah. Shh. Go fuck yourself.
The assault was made with a deadly weapon, element four. An object not designed to inflict bodily harm may nevertheless be a deadly weapon if it is used or threatened to be used in a manner likely to cause death or great bodily harm.
Well, ladies and gentlemen, it did cause death, so that's not in dispute. So it's our position that she was the initial aggressor based on her testimony that we received in court and that is going to put into play a duty to retreat and that the parties can then make argument about that.
THE COURT: Anything further, Mr. Henderson?
MR. HENDERSON: Yes, Judge. I want to clarify this because what the initial thing in getting into the Suitcase, the act is zipping the suitcase up. That act of zipping the suitcase was not done forcefully. The testimony was he agreed, he was in the suitcase, he was the one who got into the suitcase to begin with. He agreed, the suitcase was zipped up, and there was no argument at that time. All right. He -- and just by the demonstration that they gave, you could see, somebody to get into that suitcase or not get out of it at that time wanted to be in that suitcase and it's nothing to dispute what she says that he agrees she zipped the suitcase and they both laughed and thought it was funny.
Now, the next thing that the State goes to is it's an omission. It is not an act. It is an omission at that point in time where she's saying -- when they say, oh, he can't breathe. Well, she doesn't go let him out.
So they're saying -- so they're trying to make that an act when it is not, when she just did not let him out. It's different.
And what we're talking about is just the duty to retreat at this time. We're not even talking about the other parts. But as to the duty to retreat, she's in her home, and at that point in time, when that act took place, she had no duty to retreat.
THE COURT: Here's what the form instruction says: If it is undisputed by the parties that the defendant had no duty to retreat, give the following sentence: Defendant had no duty to retreat before using or threatening to use deadly force.
The instruction goes on to read: If the parties dispute whether the defendant had a duty to retreat, give the follow paragraph.
It sounds like both of you-all, A, do not -- are disputing whether or not there's a duty to retreat. So I think I have to based on what the Florida Supreme Court's instruction to me is is to give that second paragraph.
State, anything further?
THE COURT: Defense, anything further?
MR. HENDERSON: Just note the objection, but I understand the Court's ruling.
THE COURT: All right. So the language in the redline from the defense as to Sarah Boone had no duty to retreat before using deadly force will be removed. And I will add in the State's proposed language which tracks the form instruction.
Is there any objection -- do you want me to read that to you, Mr. Henderson?
MR. HENDERSON: No, I'll read it real quick, Judge.
THE COURT: Okay. And I just want to make sure we're all on the same page. That's the State's proposed revisions to the 3.6(f) on the top of page 2 of 7.
MR. HENDERSON: Yes. I'd ask if the Court would read it.
THE COURT: Sure. Okay. If Sarah Boone was not committing any crime other than the alleged second degree murder or manslaughter --
THE COURT: I'll add that. Thank you.
So it will read: If Sarah Boone was not committing any crime other than the alleged second degree murder or manslaughter or culpable negligence for which the defendant is claiming self-defense or defense of others, and if she was in a place where she had a right to be, then the defendant had no duty to retreat before using deadly force. On the other hand, one, if at the time Sarah Boone used deadly force, she was committing an aggravated assault, or if at the time Sarah Boone used the deadly force she was not ina place where she had a right to be, then the defendant had a duty to retreat.
The duty to retreat means the defendant had the legal obligation to use every reasonable means to avoid any danger before using deadly force. The law does not require the defendant to retreat if she was placed in imminent danger of death or great bodily harm or imminent danger of the commission of, parenthesis, applicable forcible felony, end parenthesis, against herself, and it would have increased her own danger to retreat. Or if retreat would have been futile. But if the defendant had a duty to retreat and if she could have safely retreated, but did not do so, then her use of deadly force was not justifiable.
Do you have a question as to the applicable forcible felony of that?
MR. JAY: I believe they waived B. That's for her, the A and B that we already previously discussed not to do it.
THE COURT: That is correct. So then that sentence would be revised to: The law does not require the defendant to retreat if she was placed in imminent danger of death or great bodily harm and it would have increased her own danger to retreat.
THE COURT: What say you, Mr. Henderson?
MR. HENDERSON: Judge, I enter an objection as to the instruction as the State has included to get this instruction an aggravated assault which is not charged in the Information.
THE COURT: State, response?
MR. JAY: Judge, I'm happy to hop into that one as well. I understand what Martinez vs. State says, and I'm sure we have all read the opinion, it's in my motions, and I understand what it holds. What it says all throughout the opinion is there needs to be an independent forcible felony. And then at the very, very end of the opinion, then it says there needs to be an independent felony charge.
Why I'm asking for a special jury instruction, and I've made that request in writing, is because under the standard jury instruction that we are going through right now, it says, according to Martinez vs. State, that the independent forcible felony needs to be charged.
The whole purpose of this is you can't engage into a circular logic argument that defeats Ms. Boone's right to self-defense. So it would be preposterous to include in this jury instruction Ms. Boone did not have a right to use justifiable use of deadly force by committing second degree murder against the victim when that's the charged offense. Because she, of course, would have the right to use deadly force to defend herself against the victim, then that would be correct.
But what we have in this case, and what the State has alerted the Court and the defendant to well before trial was, the evidence shows that she committed a separate aggravated assault. She -- at the time that she had already zipped him shut in there and, again, just because she releases that, quote-unquote, chokehold by sitting on the couch, she is exerting that force through distance because she is the one that zipped him shut.
So she, in using that force, is the one who did that on purpose to make him feel like he was choking and making him feel like he had made her feel like when she was getting cheated on and to intentionally confine him in a place so that she could speak to him about her thoughts.
As I already outlined, it's the State's position and the evidence does support that this is an aggravated assault. She intentionally put him in fear of death and she relished it. She relished it for that two-minute video. That is prior to when she says, well, now he's sticking his fingers out and I get scared by that action and by that action, it's Jorge Torres just trying to exert the will to live and to Survive and be on this Earth that -- now that that action is his attempt to escape out of the suitcase she has left him zipped up in is this independent threat of great bodily harm and death to her, she testifies if he gets out it's her belief that he will beat her up, kill her, disfigure her, so on and so forth, and her testimony at trial I believe she said was I will -- he said that I will end you.
So what we have here is they, by their own admissions, through the testimony that she provided, that there is a separate and distinct independent forcible felony from what ends up being the second degree murder.
What ends up now being the second degree murder is at this point in time when she says, well, he's trying to get out. I'm afraid if he gets out I'm going to get disfigured or killed, and so that is why Ms. Boone makes the decision, I'm not even going down the aggravated assault path, but she batters him with a bat on the hands and batters him, pokes him while he's in the suitcase and basically beats him into submission so that he stops trying to escape. That's what the testimony was.
And then she makes the decision to now leave him and go upstairs and go to sleep without having relieved him from the force that she exerted earlier committing the aggravated assault.
So, like the example I gave you earlier, this is absolutely no different than me pointing a gun at you, Judge, and putting you in fear of your life that I'm going to shoot you and a projectile is going to enter your body and kill you or give you great bodily harm.
And you, in turn, after having been placed in fear by me pointing a gun at you, you begin to defend yourself and exert your right to live on this Earth by pulling your own firearm. And now do I, as the initial aggressor, the initial person who committed the forcible felony of aggravated assault on you, under the law, I don't have the right now to defend myself against you. I need to retreat. I need to make it clear -- sorry, my bad, drop my gun, walk away. That is what is the law. 776.041 is a very short and very, very simple statute. It has not changed since 2014. This has been the law. This was the law at the time of this offense in 2020. 776.041 provides the justification described in the preceding section of this chapter in not available to a person who, one, is attempting to commit, committing, or escaping the commission of a forcible felony.
So taking away the firearm example, it's a chokehold. His cause of death, according to the medical examiner, was asphyxiation by position and environmental suffocation caused by her not releasing a chokehold on him when he indicated, Babe, I can't breathe. Sarah, help. That is an independent forcible felony separate and distinct now from what she says is the victim, like you pulling a gun to defend yourself from me pulling a gun on you now, the threatened use of force that the victim is exerting is sticking his hands out and saying I'm going to end you.
That is the distinct break between the aggravated assault and now her continuing to use this unlawful force, which she's not entitled to do because she started it, she was the initial aggressor in committing this aggravated assault, and she ends up just leaving him to die and never releasing the chokehold.
THE COURT: And the unlawful threat is what's on the video in your realm?
THE COURT: Okay.
MR. JAY: And any facts that support that should cause this jury instruction to be given. The absolute only hangup about whether or not this jury instruction be given is because Martinez slightly overstates what is necessary to prevent this circular logic, which is not going to occur in this case. There's not going to be any arguments by the State that she does not have the right to defend herself if she is in imminent fear or death of great bodily harm by the victim.
She testified that him sticking his hands out of the suitcase and saying, I'm going to end you, put her in fear of imminent death and great bodily harm. And in turn, what she did was she decided to not let him out and he ended up dying. And that is second degree murder. That is separate than what preceded that.
What preceded that was her not letting him out when he -- you can see him pushing up on the suitcase in the video, begging to get let out and she doesn't because she's doing this out of anger, hatred, ill will, and spite to teach him a lesson and put him in fear of death or great bodily harm. That's an aggravated assault.
I would absolutely charge her with aggravated assault and aggravated battery, separate, independent forcible felonies if I could, but I did not learn this information until after the statute of limitations had passed. That is through no fault of the State's. So we absolutely would if we could.
And we are not going to make the argument and defeat her defense of second degree murder by saying, well, you can't defend yourself with -- I understand what they're getting at in Martinez, that's not this case, though, they're broken down into --
THE COURT: Can I have the citation for Martinez? Because I missed it in your motions. I didn't see Martinez cited in the motions.
THE COURT: And forgive me if --
THE COURT: Because you cited in Colon with regard to the Miranda issue.
MR. JAY: No. I am referring to -- there's a pleading entitled, State's Request for Forcible Felony Instruction and Request for Initial Aggressor Instruction, which we've kind of hopped into now since aggravated assault is being mentioned in this paragraph. In paragraph --
THE COURT: There it is. I apologize.
MR. JAY: Paragraphs 12 through 31 are the legal analysis and Martinez is cited in there at paragraph 19 at 981 So.2d 449, Florida, 2008.
And more importantly, what Martinez doesn't say is that there's like some requirement that the verdicts would be interlocking. Like, there's no requirement that second degree murder be Count 1 and aggravated assault be Count 2. And then, you know, if they return a not guilty verdict on aggravated assault, then there has to be a not guilty verdict on the second degree murder. That's not the case because there's so many different prongs to the self-defense instructions. So it's not required to be charged for some reason of an interlocking verdict.
And the whole spirit of that opinion is that it is to make sure that we do not defeat her self-defense argument that she is entitled to make about why she committed second degree murder. All we're saying is you're not entitled to defend yourself in that manner if you committed an aggravated assault to start this, and that's what the facts show.
It's a little complicated and there's another special jury instruction related to this force by distance. You know, it's like tying somebody to some train tracks and walking away. I mean, are you still choking the person? No. But are they restrained ina manner that if a train comes they will die? Yes.
So the special circumstances of this case and the facts are going to warrant in the State's estimation the forcible felony paragraph and then that language being placed into this initial paragraph that we're talking about.
THE COURT: Just reading Martinez. Give me a moment.
MR. JAY: Yes, sir.
And then just for the record, the three prongs for a special jury instruction, which I've cited ina couple of my other pleadings.
A special jury instruction is warranted when: A, the special instruction is supported by the evidence, which is the case, in fact, undisputed since there was only one person there; B, the standard instruction did not adequately cover the legal theory it is meant to. That is also true; C, the special instruction was a correct statement of the law and not misleading or confusing. That is also the case.
Stephens, S-t-e-p-h-e-n-s, vs. State, 787 So.2d, 747 -- and I mistakenly put 657 --
THE COURT: JI think 755 is the pinpoint.
THE COURT: I've reviewed that already. Thank you.
Response?
MR. HENDERSON: Response is clear, Judge. They -- they're trying to make exceptions for the law. That doesn't do -- that doesn't work here. Simply this, what the requirement is under Martinez to get the aggressor is this, it's only applicable only in cases where the defendant was charged with either an independent forcible felony, that's Martinez, or B, felony murder. There is -- that's a different case.
In Martinez, they have not charged an independent forcible felony, so it doesn't apply. It tells us right there. That's the standard jury instruction. For him to come back here and say, well, really, Judge, they overstated Martinez. Martinez is still good law. It has not been changed. That's the rule. That's the requirement.
THE COURT: But this is relying -- the Martinez opinion states: Indeed consistent with this case law in 2006, we approved an amendment to the self-defense jury instruction to specifically provide that the forcible felony instruction should be given, quote, only if the defendant is charged with more than one forcible felony.
That doesn't seem to be what the new instruction says, unless I'm missing something.
MR. HENDERSON: I'm sorry. Can you repeat that for me?
THE COURT: Sure. The sentence says: Indeed consistent with this case law in 2006, we approved an amendment to the self-defense jury instruction to specifically provide that the forcible felony instruction should be given, quote, only if the defendant is charged with more than one forcible felony.
And unless I'm missing something, the 3.6(f) instruction doesn't say that now, the form instruction.
MR. HENDERSON: Judge, when it comes to the aggressor in the standard jury instructions, when it comes to aggressor, and they're talking about under 776.041(1), it's to only be given only in cases where the defendant is charged with an independent forcible felony. You cannot give this instruction unless there's an independent forcible felony that Ms. Boone has been charged with, and there just isn't one.
THE COURT: Where does it say that in the form instruction?
MR. JAY: Judge, it's page 14 of 28. Aggressor, 776.041(1), Florida Statute: Give if applicable in only cases where the defendant is charged with either A, an independent forcible felony, Martinez vs. State, 981,449, Florida, 2008, for the felony.
And we're acknowledging that, but when you look at the case and what it is stating is the purpose of that is, there has to be in the evidence an independent forcible felony. And that is what occurred in this case. She committed an aggravated assault. After that, the defendant is saying the victim placed her in fear of imminent harm or death by trying to escape her aggravated assault by sticking his fingers out and by saying, as he's trying to escape, I'm going to end you.
THE COURT: But isn't that in the, giving the aggressor definition? Is that -- unless I missed something, that's not what we're talking about right now.
THE COURT: Okay.
MR. HENDERSON: Correct.
MR. JAY: And it's our position, we absolutely would charge her. And it's a legal technicality in part of this standard instruction that we can't because of the statute of limitations. We all know -- all of us here together as attorneys know that those facts, if believed by the jury, support that she violated chapter 776.041(1). She should not be able to get away with murder because of a statute of limitations technicality that was through no fault of the State's own.
The purpose and spirit of Martinez is to make sure that we are not up there arguing, ladies and gentlemen of the jury, she had no right to defend herself from an imminent threat of harm by killing somebody. That's not what we're going to say. We understand that.
What we are going to say is: Ladies and gentlemen of the jury, she had no right to leave him in that Suitcase out of fear or great bodily harm or imminent death because she committed an aggravated assault to put him in that predicament.
That's the evidence in the case, that's the argument that's going to be made, that's why we're making a special instruction request based on the unique facts and circumstances of this particular case.
THE COURT: Give me a second.
(Pause. )
THE COURT: The proposed -- the language in the instruction in pertinent part says: He or she was committing an act, insert the defendant's criminal activity, the defendant's -- but the criminal activity cannot be the charged crimes for which the defendant is claiming self-defense or the defense of others. The charged crime is second degree murder.
So I'm struggling with understanding is the other crime -- because you're not taking -- I'm not hearing any argument as to the applicability of aggravated assault.
MR. HENDERSON: Judge, because -- and I didn't make any argument about aggravated assault applying because they can't get over the first hurdle. The first hurdle is it has to be charged. It's not charged. That's what the case law says. I mean, this is pretty clear to me, unless I'm looking at it wrong when it says, this is not to be given if there isn't an independent forcible felony charge.
THE COURT: Any other response, State?
MR. JAY: Just that it defeats the purpose of the statute and it's manifestly unjust when it is a legal technicality of no import. There is no interlocking verdict required. If we had -- if we were able to charge aggravated assault, there's no requirement that they both be found guilty. They could go ahead and hear this instruction and find her not guilty of aggravated assault, and still convict her of second degree murder because of all the plethora of permutations we have in this instruction.
THE COURT: But in Martinez, the underlying charge was attempted murder and aggravated assault, both of which were charged and we don't have that here.
MR. JAY: But it's still going to the one act and of those facts. We are talking about separate clearly distinct facts here that support -- there is an aggravated assault that separately gets committed first, and then in response to the victim responding to that aggravated assault, she leaves him in the chokehold to die, because if she lets him out, it's her belief she's going to face death or great bodily harm because she committed a forcible felony against him.
This is purely a legal technicality. The entire opinion on Martinez, until the very last paragraph, uses this language. They use language like the underlying facts of the present case demonstrate why it would be illogical to conclude that section 776.041(1), applies where there is no independent forcible felony.
It doesn't say, where there is no independent forcible felony charged. It goes to -- uses that same language all throughout the opinion. And then in the very last paragraph in the conclusion, it changes to: In conclusion, we hold that it's error for a trial court to read the forcible felony instruction to the jury where the defendant is not charged with an independent forcible felony.
But there is an independent forcible felony in the facts. There is a statute that says that Ms. Boone should not be able to get the -- avoid the girth of this jury instruction. She violated -- according to the facts that she gave us, she violated 776.041(1). She was committing an independent forcible felony and, therefore, should not be able to get away with this instruction not being given because of the technicality that the State can't charge a case -- or can't charge a count that is not required to be interlocked by verdict. Thank you.
THE COURT: Okay. Footnote 4 provides an explanation in the Martinez opinion as to certain circumstances and whether or not in that hypothetical that the Supreme Court gave whether the robbery is a separate and independent forcible felony and a forcible felony instruction is applicable. But the conclusion seems to state that it has to be charged. That it is an error for the trial court to read the forcible felony instruction to the jury where the defendant is not charged with the independent forcible felony.
Anything else, Mr. Jay?
THE COURT: Then how do we want to accomplish this? Because I don't know how I can read the proposed language by the State, and there's a disagreement as to whether there's a duty to retreat. It's not undisputed, it is, in fact, disputed.
MR. JAY: Well, their complaint is in the sentence: On the other hand, if at the time Sarah Boone used deadly force, she was -- then I'd just think you strike -- we strike through, committing an aggravated assault, and go to, if at the time Sarah Boone used deadly -- okay.
THE COURT: Unless you just want to go to two: On the other hand, if at the time the defendant used deadly force, she was not in a place where she had a right to be, then the defendant had an obligation to -- or excuse me, then the defendant had a duty to retreat, just excise one completely. I don't know what else to do.
THE COURT: Right. Under the Castle Doctrine and the case law.
MR. JAY: Okay. Then, I think we go with the first paragraph, and then we just deal with the initial aggressor at the end, which is kind of the exception to that.
THE COURT: Okay. So then --
THE COURT: Sarah Boone had no duty to retreat before using deadly force.
THE COURT: Okay. Is that acceptable to the defense?
MR. HENDERSON: Yes, Your Honor.
THE COURT: I think it puts us back in the position where we started at anyway.
MR. HENDERSON: Yes.
THE COURT: Okay. All right.
MR. JAY: I'd just object for the record in case some assistant attorney general wants to potentially cross-appeal something.
THE COURT: Objection noted.
It looks like the next parts of the form instruction: If the defendant was in a dwelling, was excised. The give A, B, or C was excised.
Are you on board with that, State?
THE COURT: Then the next paragraph: A person is not justified in using force to resist an arrest. Clearly, that's not applicable. I don't think that's at odds. However, if an officer used excessive -- I also don't believe that's applicable based on the facts.
We then proceed to the, give all cases language. Any objection to this language, State?
THE COURT: Sure. It's the bottom of page 2 of the defendant's 3.6(f) redline.
THE COURT: On the form instruction, it's on the bottom of page 3 of 7. Give in all cases, right after the Jackson v. State.
MR. JAY: Yeah. Just the agreed-upon strike through of, or threatened use. So it would just be deciding whether Sarah Boone was justified in the use of deadly force, you must consider the circumstances at the time.
THE COURT: Any objection?
MR. HENDERSON: No objection to that, Judge.
THE COURT: Excise the threatened use. So it will all read use of deadly force in that paragraph.
Now we have a proposed instruction, I believe, from the defense regarding battered spouse.
THE COURT: Sure.
Moving now to the presumption of fear, that's been struck out by both parties and agreed to.
Moving to the exceptions of presumption of fear, that's been struck out by both parties and not necessary.
That takes us to a person who unlawfully by force enters or attempts, that's not applicable.
Definition of dwelling is not applicable.
Residence and vehicle are not applicable.
That takes us now to the aggressor language.
MR. JAY: No additional arguments as to the facts show she's the initial aggressor and that there is no requirement under this provision that there be an independent forcible felony.
THE COURT: Okay. Looks like we have a disagreement between the parties as to the application of the aggressor instruction. It's struck out on the defense's side and not in the State's side.
What say you, Mr. Henderson?
MR. HENDERSON: Give me one second, please.
THE COURT: Yes, sir.
(Pause. )
MR. HENDERSON: Are we on 776.041(2)?
MR. HENDERSON: Okay. If I can have one moment?
THE COURT: Yes, sir.
(Pause. )
MR. HENDERSON: Judge, my argument would be that the only evidence -- well, the evidence from Sarah Boone stated that she did not do anything forcefully-wise until after Mr. Torres had made verbal threats and was coming out of the suitcase. So that's my objection is based on that. No other legal argument.
THE COURT: Any other argument, State?
THE COURT: I mean, isn't there evidence as to what Ms. Boone had told the experts, which seems to be at odds with that issue, and it's really a factual issue in determination -- for the jury to make that determination on what the real facts are.
MR. HENDERSON: I can't disagree with that.
THE COURT: Okay. Then with regard to the proposed language as to the 776.041(2) instruction: However, the use of deadly force is not justified if you find that Sarah Boone was attempting to commit, committing or escaping after the commission of aggravated assault. An aggravated assault is defined --
THE COURT: Am I on the wrong section? I apologize. I am at the wrong section. Forgive me.
So it is the: However --
THE COURT: -- is not justified if you find that Sarah Boone used force to initially provoke the threatened use of force against herself unless, one, the threat of force asserted towards the defendant was so great that she reasonably believed that she was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other than using deadly force on Jorge -- that's spelled incorrectly -- Torres or, two, in good faith, Sarah Boone withdrew from physical contact with Jorge Torres and clearly indicated to Jorge Torres that she wanted to withdraw and stopped the use of deadly force, but Jorge Torres continued or resumed threatened use of force.
THE COURT: Just for clarification purposes, anything else as to that instruction, defense?
MR. HENDERSON: Just one thing I need to put on the record, Judge.
THE COURT: Yes, sir.
MR. HENDERSON: The force at that time as testified to was the poking of the bat on the outside of the suitcase, it was one strike on the handle was outside. These were bruises. I think there was something that came to the injury to the head area, though, the injury to the head could be serious, but in this instruction, it's talking about deadly force, and none of those as to the expert -- as to the testimony from the medical examiner, none of those injuries caused the death.
MR. JAY: Judge, the continued restraint on him that she did not undo is the force that we're talking about. It's just like the cases that I cited in my special -- State's request for special jury instructions regarding withdrawing the physical contact. Batteries don't need to be skin to skin. You can commit a battery on somebody while driving your car and striking their car.
A false imprisonment does not mean you have to choke somebody. You can falsely imprison somebody by barricading them in a room with a grocery cart.
She unlawfully exerted that force and did not withdraw from using that force when her wrestling partner, so to speak, tapped out.
THE COURT: Okay. I'm going to include the instruction for now.
The next paragraph reads: If you find that Sarah Boone who, because of the prior threats or difficulties --
THE COURT: All right. That will be included.
The next paragraph: If you find that at the time of the alleged aggravated assault and/or criminal mischief --
MR. JAY: Yeah, that just needs to be second degree murder, manslaughter, or culpable negligence, and we don't object. There were specific acts put into evidence.
THE COURT: Any objection to changing the beginning of that sentence, defense: If you find that at the time of the alleged murder in the second degree, manslaughter, culpable negligence, Sarah Boone knew that Jorge Torres had committed an act.
MR. HENDERSON: Yes.
THE COURT: Okay. Thank you.
MR. HENDERSON: Agree.
THE COURT: Give me a moment.
So that sentence would now -- or that section would now read: If you find that at the time of the alleged second degree murder, manslaughter, or culpable negligence, Sarah Boone knew that Jorge Torres, Jr. had committed an act or acts of violence, you may consider that fact in determining whether Sarah Boone reasonably believed it was necessary for her to use deadly force.
Acceptable?
THE COURT: Give me a moment.
Yeah, junior is not used anywhere else, so I'll excise that.
Is that acceptable to you, Mr. Henderson?
MR. HENDERSON: Yes.
THE COURT: All right. Moving to the next line: If you consider that Jorge Torres -- removing Jr. -- had a reputation for being a violent and dangerous person -- I don't know that -- did we hear evidence of reputation?
MR. JAY: State's position is going to be there was no reputation evidence. Ms. Boone offered an opinion, but as everybody knows, reputation evidence has to come from a broad enough aspect of the community, whether it be a church or a neighborhood or perhaps even a large family, but --
THE COURT: Defense?
MR. HENDERSON: I'm rethinking it, Judge.
THE COURT: No worries. Take your time.
MR. HENDERSON: I know generally and -- representation evidence, generally it has to be something that is known based on the community standard, and that was the community. I know -- the only thing that I can relate to is the fact that individually she experienced certain things that could build that reputation, but that's on her. I think there's evidence, though, from people, at least that they knew about it or were told about it, most of that was stopped.
But I could go to at least the one situation ona text message that was introduced earlier today that talked about him beating his former wife or ex-wife.
THE COURT: How is that reputation? It sounds like that's a specific instance based on that text message.
MR. HENDERSON: Correct. I would agree.
THE COURT: Okay. So in agreeing, we're going to excise the reputation --
MR. HENDERSON: Yes.
THE COURT: -- section, correct? Okay. Thank you. The Court will excise that.
THE COURT: What about the one that precedes that: If you find that Jorge Torres had a reputation -- also that reputation would be removed as well, correct, Mr. Henderson? If you find that Jorge Torres, Jr. had a reputation for being a violent and dangerous person, you may consider this fact in determining whether he was the initial aggressor.
MR. HENDERSON: That's correct.
THE COURT: Okay. So that will be excised as well.
State has no objection to the physical ability section, I'll just remove the word "junior" after Torres.
Any other questions with regard to the 3.6(f) instruction?
MR. JAY: Your Honor, the State doesn't object to what we have produced as the final product. I'm impressed that we did it so quickly. We'd just note our objections for the record to preserve a challenge to the Martinez opinion.
THE COURT: Understood.
Do the parties -- well, let me ask this question: Mr. Henderson, anything else we need to address with regard to the 3.6(f) instruction?
MR. HENDERSON: No. No, sir. I'd just like to preserve the objections that I made during this conference.
THE COURT: Objection is preserved.
Do the parties wish the Court to reread the 3.6(f) instruction that we just went through just to make sure we're all on the same page?
MR. HENDERSON: Can we do it at a time where --
THE COURT: In the final form?
MR. HENDERSON: Yes.
THE COURT: Absolutely.
THE COURT: Sure. Absolutely.
All right. Where does that take us now? Does that take us to the 3.6(g) instruction?
THE COURT: Give me a moment.
I have the State's proposed 3(g) instruction, I have the form instruction from the Supreme Court, and I have the defense's proposed revisions. Let me just move everything around here. Give me a second.
Okay. All right. As to the title, I believe that based on what we've discussed, the threatened use should be removed; is that correct?
MR. HENDERSON: That's correct.
THE COURT: All right. As to the first sentence: It is a defense to the crimes of second degree murder and culpable negligence that the actions of Sarah Boone constituted the justifiable use of threatened or -- I'm sorry, threatened use. As we're removing justifiable use of non-deadly force, we would be removing threatening, and we would also be including manslaughter, correct?
MR. HENDERSON: That's correct.
THE COURT: State?
MR. JAY: Yes, sir. It is a defense to the crime of second degree murder, comma, manslaughter, and Oxford comma, or culpable negligence if the actions of Sarah Boone constituted the justifiable use of non-deadly force.
THE COURT: I too am a big fan of the Oxford comma. So the instruction would now read: It is a defense to the crimes of second degree murder, comma, manslaughter, comma, and culpable negligence if the actions of Sarah Boone constituted the justifiable use of non-deadly force.
Acceptable, State?
THE COURT: Acceptable, defense?
MR. HENDERSON: Yes, Your Honor.
THE COURT: Definition of non-deadly force is not at issue.
Next paragraph: Sarah Boone does not have the burden of proving that she was justified in using non-deadly force. Instead, for you to find Sarah Boone guilty, the State must prove beyond a reasonable doubt that Sarah Boone was not justified in using non-deadly force.
Acceptable, State?
THE COURT: Defense?
MR. HENDERSON: Yes, Your Honor.
THE COURT: The law on justifiable use of non-deadly force is as follows: Sarah Boone was justified in using non-deadly force against Jorge Torres -- excising Jr. -- and had no duty to retreat if she reasonably believed that such conduct was necessary to defend herself against, A, Jorge Torres' -- excising Jr. -- imminent use of unlawful force.
Is that instruction acceptable?
MR. JAY: Yes, sir. I don't know if you mean to include the A if we're not using the B. I would just suggest you make one sentence.
THE COURT: Any objection?
MR. HENDERSON: No objection.
THE COURT: Any other issues with the instruction as read so far, State?
THE COURT: Defense?
MR. HENDERSON: None, Your Honor.
THE COURT: Okay. Looks like there are several agreements with the balance of this instruction as to the defense of property is not applicable, the 776.013(4), dwelling and residents and vehicle and force with regard to law enforcement, all of which is not applicable in the instant case.
That takes us to the give in all cases. We would be removing the threatened use of non-deadly force in that section. Any other changes as to the give in all cases section?
THE COURT: Defense?
MR. HENDERSON: No, Judge, no objection.
THE COURT: Let's table the proposed instruction on the battered spouse for the moment.
THE COURT: Under Martinez?
MR. JAY: Yes. And we understand the Court's ruling, and we're sending a strongly-worded disagreement to the Florida Supreme Court.
THE COURT: Received and understood. But based on what the Court said earlier as to the conclusion in the Martinez section, I'm disinclined to add your proposed instruction.
THE COURT: That takes us to now to the 776.041(2) section. It looks like we have a little bit of a disagreement here. Is it the same arguments that were received in the 3.6(f) instruction?
THE COURT: Any other additional arguments, sir?
MR. HENDERSON: No, Your Honor.
THE COURT: All right. For the reasons previously identified, the Court will accept the State's proposed portion as to the 776.041(2) instruction.
Then it takes us to prior threats.
MR. JAY: Same requests and objections as in 3.6(f) from the State, sir, to the end of the instruction.
MR. HENDERSON: I agree it should track what the --
THE COURT: Forgive me. Other than reputation, what were the other issues?
THE COURT: Okay. Thank you. Reputation should be excised.
MR. JAY: The two paragraphs of reputation excised and then physical abilities gets read in all cases.
THE COURT: Agreed.
MR. HENDERSON: Agree.
THE COURT: And then we'll remove the threatened language in there, correct?
MR. HENDERSON: That's correct.
THE COURT: Okay. Any other questions with regard to the 3.6(g) instruction, State?
THE COURT: Defense?
MR. HENDERSON: None, Your Honor.
THE COURT: Okay. I believe then -- just double-check my notes. I believe then that addresses those issues based on what -- we did not discuss this morning in the charging conference.
I think that now takes us to the State's requests and the defense's request for special instructions.
THE COURT: Yes. Specifically we're making reference to the State's request for special jury instruction regarding battered spouse syndrome, filed, I believe it was -- it's not dated, but I think it was either the 23rd or the 24th that you filed these, Mr. Jay, and the court record will speak for itself as to when they were filed.
THE COURT: Okay. Court's reviewed that motion and reviewed the proposed instruction by the defense. State, let me hear from you first.
MR. JAY: With their instruction, I think the problem with it is that it kind of blurs the subjectivity component versus the objective reasonable person standard. So if we make this change to their instruction, then I'm actually okay with it. What I would suggest that change be is in the second paragraph: If you find the evidence that Sarah Boone suffers from battered spouse syndrome credible, you may consider this evidence to assist you in determining whether a person in Sarah Boone's circumstances would reasonably believe that such force was necessary to defend herself against the imminent use of unlawful force by the victim -- no Jr. -- I don't know if it's necessary to put the date. That makes it clear -- because that's what the case law says. The case law makes it very clear it's about the objective component --
THE COURT: I agree with you.
MR. JAY: And then I would just ask for my last sentence, which is: Like other witnesses, you may believe or disbelieve all or any part of the testimony regarding battered spouse syndrome.
THE COURT: What say the defense? I mean, if necessary, I can read --
MR. HENDERSON: Yes, could you do that?
THE COURT: Sure. So it looks like there's no -- first of all, just so the record is very clear, Stephens vs. State identifies the special instruction circumstances. Special instruction -- by the evidence in this case? Yes, absolutely.
The standard instruction did not adequately cover the legal theory it is meant to. There is no standard instruction on battered spouse over and above what's included in the self-defense instruction.
The special instruction was a correct statement of law and not misleading or confusing. We're addressing that third prong of Stephens at this time.
The proposed instruction would read: You have heard evidence that Sarah Boone suffers from battered spouse syndrome. If you find the evidence that Sarah Boone suffers from battered spouse syndrome credible, you may consider this evidence to assist you in determining whether a person in Sarah Boone's circumstances would reasonably believe that such force was necessary to defend herself against the imminent use of unlawful force by Jorge Torres.
It would then go on to read: Like other witnesses, you may believe or disbelieve all or any part of the testimony regarding battered spouse syndrome.
MR. HENDERSON: Agreeable.
THE COURT: Okay. Appreciate you-all working together on that. Give me a moment to finalize this.
As such, the third prong of Stephens has been -- the Court will give the special instruction as identified on the record.
Now, the only question I also have is do we want this as its own instruction or do we want this included where it currently is in he 3.6(f) and 3.6(g) instruction, State?
MR. JAY: It would suggest it would be 3.6(5), right after the two instructions about use of force.
MR. HENDERSON: I agree with that, Judge.
THE COURT: Do we want to label it or just have it as special instruction and then read it? Do we want to have the title Special Instruction on Battered Spouse? I welcome --
MR. HENDERSON: That's fine.
THE COURT: Okay. It will be Special Instruction on Battered Spouse Syndrome.
Is that acceptable?
THE COURT: Is that acceptable?
MR. HENDERSON: Yes, Your Honor.
THE COURT: All right. Thank you.
All right. That will follow after the 3.6(g) instruction, correct?
THE COURT: Acceptable?
MR. HENDERSON: Yes, sir.
THE COURT: Mr. Henderson?
MR. HENDERSON: Yes, sir.
THE COURT: All right. That takes care of that.
THE COURT: Yes. I'm sorry, sir?
MR. HENDERSON: I'm sorry. I think we might be required to read it both times, after each one.
MR. JAY: I have no problem with adding the paragraph that says: This applies to both the justifiable use of deadly force and non-deadly those.
MR. HENDERSON: That fixes it.
THE COURT: Okay. Where, gentlemen, do you want that?
THE COURT: Sure. Let's go over that language one more time so that we're all on the same page.
Mr. Jay, what is it that you propose?
MR. JAY: To put it between the paragraph that ends with Jorge Torres and before the paragraph of: Like other witnesses -- or whatever I said -- you can consider this testimony and evidence in applicability or the use of -- whatever word people agree on -- both deadly force and nondeadly force instruction, something to that effect. If that's too convoluted, I'm trying --
THE COURT: I'11 tell you what, I'd rather just repeat it.
THE COURT: That gets way complicated. I'd rather just repeat it under 3.6(f) and 3.6(g).
THE COURT: Does that work for you, Mr. Henderson?
MR. HENDERSON: Yes, sir.
THE COURT: All right. Thank you, sir.
Okay. Moving now to State's request for special instruction regarding withdrawing from physical contact, filed October 23, 2024. The Court has reviewed it. I guess the first question is: What say -- is there a proposed language?
THE COURT: I don't know that I see it, Mr. Jay.
MR. JAY: Oh, paragraph 15. Physical contact includes any restraint on Jorge Torres, paren -- not paren, apostrophe, movement.
THE COURT: And this would be after the initial aggressor portion in the 3.6(f) and 3.6(g), correct?
THE COURT: What say you, Mr. Henderson?
MR. HENDERSON: If I can have one minute?
THE COURT: Yes, of course.
(Pause.)
MR. HENDERSON: Judge, this is what I'm having a problem with, what I think it could be corrected. Because they're talking about, therefore, at the conclusion of the two paragraphs regarding initial aggressor, it should come in, not there, but shouldn't it come in -- because that's not there anymore, initially provoked.
THE COURT: And the 3.6(f) instruction references to initial aggressor have been removed.
MR. HENDERSON: Yes. So now is the State asking for it to come in as the initially provoked?
THE COURT: Unless I missed something --
MR. JAY: My understanding was that it was the two paragraphs about aggressor are coming in. What's not coming in is the Martinez forcible felony.
THE COURT: Right. But the language -- you said at the conclusion of the paragraph regarding the initial aggressor. The words initial aggressor don't appear in the 3.6(f), it's only after that: However, the use of deadly force is not justified if you find Sarah Boone used force to initially provoke the threatened use of force against herself, unless, then it's paragraph one and two.
Is that where you're asking it to be?
MR. JAY: Hold on. Let me pull -- you guys are scaring me.
So in 3.6(f), it should be: However, the use of deadly force is not justified if you find that Sarah Boone used force to initially provoke --
THE COURT: Correct.
MR. JAY: -- the threatened use of force against herself, unless, parens one and two, and then after two as an explanation for what is listed in paren two, is from physical contact, just that elaboration of what we're talking about.
THE COURT: I got it.
THE COURT: Okay. I got it. I just want to make sure we're all on the same page as to where.
What say you as to the proposed language of physical contact includes any restraint on Jorge Torres' movement, as that portion of 3.6(f) and 3.6(g)?
MR. HENDERSON: No objection.
THE COURT: Okay. All right. So the Court's going to grant the State's request for special instruction regarding withdrawing from physical contact. And the language of physical contact includes any restraint on Jorge Torres' movement, will be included after the, however, the use of deadly force language, after paragraph two in the 3.6(f) instruction. And in the 3.6(g) instruction, it will be at the end after the physical abilities section.
Also, Jorge is spelled incorrectly, that will be remedied.
MR. JAY: I thought the two paragraphs about aggressor will be mirrored in 3.6(g). It shouldn't go after physical abilities, it should go after --
THE COURT: I'm sorry. You're correct. I apologize.
THE COURT: Okay. Got it.
That takes us now to the State's request for special jury instructions on causation, filed October 23, 2024. I have reviewed it and the proposed instruction on paragraph three therein.
MR. JAY: Judge, the reason we're bringing this up is just during the cross-examination of Dr. @Z, Zydowicz, we poked the bear a little about his cardiovascular condition. My memory of the testimony was that she's emphatic that that was not the cause of his death, but because of that and because of now the request of culpable negligence, misdemeanor for a lesser, I feel it might be warranted to give this explanation of causation in the second degree murder and manslaughter instructions.
THE COURT: Defense, what say you?
MR. HENDERSON: Judge, I would object. I believe that just the instruction, the proposed instruction that I have it as, one, but for the defendant's criminal act, which we have the standard jury instruction that says the death was caused by the criminal act of the defendant, and that's what they're required to prove. This language to me would lessen that requirement by saying, but for the defendant's criminal act.
Then a second part where it goes into Jorge Torres' death was not beyond the scope of any -- of any fair assessment of the danger created by the defendant's criminal act. I think that's covered, Judge, in the fact that the State does not have to prove that he -- that Ms. Boone had the intent to kill Jorge Torres. So that makes -- it makes it confusing to me when the standard instruction basically Simplifies it in my mind and it keeps them right where they're supposed to be with that instruction. They don't have to prove that she had the intent.
Then as to the third --
THE COURT: Okay.
THE COURT: Okay. All right. Fine. So, withdrawn. The Court takes no objection on the State's request for special jury instruction on causation.
That leaves us now with the State's request for forcible felony instruction and request for initial aggressor instruction.
THE COURT: That's already been addressed, has it not?
THE COURT: Understood.
Are there any other instructions sought by the State at this time?
THE COURT: Defense?
MR. HENDERSON: No other ones.
THE COURT: All right. Here's what I'm going to do. I'm going to take all of this upstairs, I'm going to re-review it. I'm going to merge it all into one document and I will send it to all the parties.
Let's plan on being back here at 1:30 and we'll address any other concerns of the jury instructions at that point in time.
State, anything else we need to address?
THE COURT: Let's make it 1:20.
THE COURT: Defense?
MR. HENDERSON: Nothing else.
THE COURT: All right. We'll see you all at 1:20. Thank you.
(Court recessed for lunch at 12:38 p.m.)
(The following proceedings were resumed at 2:07 p.m.; stenographically reported by Breean Crisp.)
THE COURT: All right. We're back on the record. Case No. 2020-CF-2603, State of Florida vs. Sarah Boone.
Let me get appearances for the State, please.
MR. CACCIATORE: Dave Cacciatore on behalf of the State.
THE COURT: Defense?
MR. OWENS: James Owens for Ms. Boone.
MR. HENDERSON: Tony Henderson for Sarah Boone.
THE COURT: Ms. Boone is seated at counsels' table wearing the same clothing from this morning. I apologize for my lateness. I realized that there were some typos after I had sent this to print and needed to take them all apart to fix it, so thank you for your patience as we work through that.
State?
THE COURT: Page 12.
THE COURT: I saw.
MR. JAY: However, there was also a mistake with leaving a paragraph about reputation in at the very end of 3.6(g), and that should have been a mirror of the relative physical capabilities of the parties.
THE COURT: I do see that.
THE COURT: I fixed that on page 16.
MR. HENDERSON: Yes.
THE COURT: Okay. All right. I can have Madam Clerk start fixing them here.
THE COURT: But they will have nothing in their hands.
THE COURT: That's the issue.
THE COURT: Sorry. All right. Thank you. Just give us a minute to fix all this.
And just so that I'm clear -- back on the record -- we're referring to the bottom of page 12, 3.6(g), paragraph 2, where "the use" is struck through, correct?
THE COURT: And then we are referring to the top of page 13 as to that two lines as to reputation; is that correct?
THE COURT: Give me a moment. Let me pull back up the 3.6(g) instruction.
So that reputation paragraph should be removed in its entirety and it should be the --
MR. JAY: In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of Sarah Boone and Jorge Torres -- or Jorge Torres.
THE COURT: Thank you.
MR. HENDERSON: Correct.
THE COURT: Was there anything else, other than that?
If you find Jorge Torres had a reputation for being violent and a dangerous person, you may consider this fact in determining whether he was the initial aggressor.
Anything else that needs to be added to the jury instructions from the State's side of the ledger?
THE COURT: Correct. I agree with you, yes.
THE COURT: I'm sorry. What's going on here?
MR. OWENS: No reputation, Judge?
THE COURT: That's correct.
Mr. Jay, was there another line that we had added to the end of that?
THE COURT: Okay. Maybe that's what I was thinking of.
So the sentence should read: In considering the issue of self-defense, you may take into account the relative physical capabilities -- I'm sorry, physical abilities and capacities of Sarah Boone and Jorge Torres.
Is that correct?
THE COURT: All right. Thank you.
THE COURT: Correct. It matches 3.6(f) now. I apologize. I'm going to have Madam Clerk -- I'll e-mail it to her now. Have her print out pages -- 25 copies of 12 and 13, and we'll start taking apart our jury instructions and re-adding them, and I thank you for your patience.
COURT CLERK: So just two pages?
THE COURT: 12 and 13. That's it.
Mr. Jay, are you going to be utilizing the verdict form in closing?
THE COURT: Mr. Owens, are you going to be utilizing the verdict form in closing?
MR. OWENS: I may. Is it going to be at your bench?
THE COURT: Yeah.
MR. OWENS: I'11 ask you for you it if I need it.
THE COURT: Very good, sir. Thank you.
MR. OWENS: Judge, and -- when you get a chance.
THE COURT: No. Go ahead, sir. I can multitask.
MR. OWENS: I know there's a mic here. I know there's a mic right here.
THE COURT: I will confirm with court admin that that microphone is on. I believe it is. They turned it on during openings. I'll confirm now.
MR. OWENS: And, Judge, last time I used this fingerprint table as my podium.
THE COURT: That's fine.
MR. OWENS: I may just slide it back so I'm --
THE COURT: That's fine, sir.
MR. OWENS: And then, Judge, I've got two tripods and I've got some demonstrative aids. One is this -- it was originally a quote by Dr. Michael Brannon --
THE COURT: Okay. You may proceed.
What are the other enlargements, sir?
MR. OWENS: It's a --
MR. OWENS: The one I tried to get in --
THE COURT: I hear no objection.
MR. OWENS: -- in opening, which was the justifiable use of non-deadly force.
THE COURT: No objection.
MR. OWENS: Those two? And then --
MR. OWENS: You remember my reasonable doubt? I was using them for --
THE COURT: You've seen them?
MR. JAY: I have no objection to those five. I didn't like the three charts. The defense agreed that -- the proof beyond a reasonable doubt charts they won't use, so I think we're all good on the charts.
THE COURT: All right. Very good.
MR. OWENS: And the only other thing I want to use --
MR. JAY: We're good with their demonstrative aids during closings that were used during the trial.
THE COURT: Okay. Very good.
MR. OWENS: And, Judge, I've got two videos that I'm going to want to play, and Shelbie Andrews is going to walk up --
MR. OWENS: They are.
THE COURT: Okay.
MR. OWENS: One of them has been paired down.
THE COURT: That's fine. As long as it's in evidence, you can present whatever you'd like.
MR. OWENS: And, Judge, do you want to talk about time for closing?
THE COURT: We can.
What do you think, State? You advised an hour and a half.
MR. JAY: Yeah. I think we both said hour and a half, but as the Court knows, you can't really hold us to it until it gets a little ridiculous.
THE COURT: That's true.
How much do you anticipate, sir?
MR. OWENS: Well, Judge, she's charged with murder and we've had a two-week trial. I've got a lot to say. I've got a lot of notes.
MR. OWENS: Say again.
THE COURT: I'm not hearing any --
MR. OWENS: Okay.
THE COURT: -- you know, stammering coming from the State.
MR. OWENS: Okay. The only thing I want to ask is, after the State has had their first opening, to give them a short break and then let me start.
THE COURT: Agreed. We'll take our afternoon break at that point in time. Then we can proceed with the defense closing and then rebuttal.
IT have received approval from the Chief to work after 9:00. So we can go until about 10:00, maybe a little bit thereafter.
MR. OWENS: And then you're saying with the jury?
THE COURT: Correct.
MR. OWENS: And then at 10:00, if we hit some number, 10:00 or 11:00, then we would come back Monday?
THE COURT: That's correct.
(Pause. )
THE COURT: Can the parties approach just for a moment?
(At the bench.)
THE COURT: Yeah, but I've got something to go over with you.
In my haste to print this out, I missed the second "for use" up there. So if the parties are acceptable for the copy for the jury just taking a permanent marker to it and excising it --
THE COURT: -- in lieu of re-printing everything out all over again.
MR. OWENS: Yes.
THE COURT: And I take full responsibility for this.
MR. OWENS: Judge, you're doing great.
THE COURT: Thank you. I appreciate you guys.
Do you need to make good on your copies or you already know?
THE COURT: Okay. Awesome. I'll do that on here. Thank you very much.
(In open court.)
THE COURT: State, are you ready to proceed?
MR. CACCIATORE: Yes, Your Honor.
THE COURT: Defense, are you ready to proceed?
MR. OWENS: One minute, Judge.
THE COURT: Yes, sir.
MR. OWENS: We're ready, Judge.
THE COURT: All right. Let's go ahead and bring in our jury.
COURT STAFF: Jury entering.
(Jury entered.)
THE COURT: State, do you recognize our jury?
MR. CACCIATORE: Yes, Your Honor.
THE COURT: Defense, do you recognize our jury?
MR. OWENS: Yes.