flight instruction in Florida

2006See, e.g., Fenelon v. State, 594 So.2d 292 (Fla.1992) (holding that courts may not comment on evidence by giving the flight instruction, but also holding the decision should be applied prospectively).

1996See, Fenelon v. State, 594 So.2d 292, 293, 295 (Fla.1992) ("We agree with the State that giving the flight instruction, even if erroneous, was harmless beyond a reasonable doubt....," and "we approve the result below although we direct that henceforth the jury instruction on flight shall not be given."); and Taylor v. State, 630 So.2d 1038, 1042 (Fla.1993) ("This Court intended that the holding in Fenelon be applied prospectively only, and, since Taylor was tried before our decision in Fenelon was issued, the trial court did not err given the circumstances of this case.").

1994Before Fenelon a trial court could give the flight instruction "in the limited circumstance where there is significantly more evidence against the defendant than flight standing alone." Whitfield v. State, 452 So.2d 548, 549 (Fla. 1984).

1994Before Fenelon a trial court could give the flight instruction "in the limited circumstance where there is significantly more evidence against the defendant than flight standing alone." Whitfield v. State, 452 So.2d 548, 549 (Fla. 1984).

2014See Jackson, 575 So.2d at 189 (finding that errors in admitting a portion of witness’s prior testimony concerning threats made against him by defendant’s family, arguing that jury should not have been allowed to draw inferences from the fact that defendant’s mother did not testify, and giving jury a flight instruction that was unsupported by the evidence did not cumulatively amount to fundamental error).

1993As stated in Jackson v. State, 575 So.2d 181, 188-189 (Fla.1991), “Departure from the scene of a crime, albeit hastily done, is not the flight to which the jury instruction refers.” The state argues that even if the flight instruction was improper, the error was harmless because of the quantum of evidence against the defendant.

1994Bundy v. State, 471 So.2d 9, 20 (Fla. 1985), cert. denied, 479 U.S. 894 , 107 S.Ct. 295 , 93 L.Ed.2d 269 (1986). [2] The trial judge gave this flight instruction: When an accused in any manner attempts to escape or evade a threatened prosecution by flight or concealment, that fact may be considered by you in arriving at a determination of the guilt or innocence of the accused.

1992See, e.g., Wright, 586 So.2d at 1030 . ("Merely fleeing the scene of a crime does not support a flight instruction."); Rhodes v. State, 547 So.2d 1201 (Fla. 1989) (no evidence that defendant was fleeing to avoid prosecution when he was stopped by highway patrol for speeding); Lefevre v. State, 585 So.2d 457 (Fla. 1st DCA 1991) (defendant's flight from shooting scene equally consistent with his theory of defense); Williams v. State, 427 So.2d 331 (Fla. 3d DCA 1983) (insufficient evidence defendant fled scene to avoid prosecution); Barnes v. State, 348 So.2d 599 (Fla. 4th DCA 1977) (no evidence

1993The weight of the State’s evidence was sufficient to overcome the error in giving the flight instruction, under the test announced in State v. Diguilio, 491 So.2d 1129 (Fla.1986); compare Crocker v. State, 616 So.2d 1180 (Fla. 1st DCA 1993).

1993See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

1993See also Viniegra v. State, 604 So.2d 863 (Fla. 3d DCA 1992).

1992See also Viniegra v. State, 604 So.2d 863 (Fla. 3d DCA 1992) (on reh’g).

1996See, Fenelon v. State, 594 So.2d 292, 293, 295 (Fla.1992) ("We agree with the State that giving the flight instruction, even if erroneous, was harmless beyond a reasonable doubt....," and "we approve the result below although we direct that henceforth the jury instruction on flight shall not be given."); and Taylor v. State, 630 So.2d 1038, 1042 (Fla.1993) ("This Court intended that the holding in Fenelon be applied prospectively only, and, since Taylor was tried before our decision in Fenelon was issued, the trial court did not err given the circumstances of this case.").

1994Even if the flight instruction issue had been properly preserved, the most recent Florida Supreme Court decision, Taylor v. State, 630 So.2d 1038 (Fla. 1993), appears to move away from the prior case law [1] holding that Fenelon applies retrospectively to *194 pipeline cases.

1992Commensurate with the holding of the Supreme Court in Smith v. State, 598 So.2d 1063 (Fla.1992), the defendant is entitled to the benefit of Fenelon , which disapproved of a jury instruction on flight. 1 The defendant having properly objected to the flight instruction, has preserved the issue for appellate review, Smith .

1992However, despite defendant's proper objection to the flight instruction and preservation of the issue for appellate review, Smith, 598 So.2d at 1067 , we find the error harmless.

1994Bundy v. State, 471 So.2d 9, 20 (Fla. 1985), cert. denied, 479 U.S. 894 , 107 S.Ct. 295 , 93 L.Ed.2d 269 (1986). [2] The trial judge gave this flight instruction: When an accused in any manner attempts to escape or evade a threatened prosecution by flight or concealment, that fact may be considered by you in arriving at a determination of the guilt or innocence of the accused.

1994Bundy v. State, 471 So.2d 9, 20 (Fla. 1985), cert. denied, 479 U.S. 894 , 107 S.Ct. 295 , 93 L.Ed.2d 269 (1986). [2] The trial judge gave this flight instruction: When an accused in any manner attempts to escape or evade a threatened prosecution by flight or concealment, that fact may be considered by you in arriving at a determination of the guilt or innocence of the accused.

1993See Power v. State, 605 So.2d 856 (Fla.1992).

1993Finally, in Fenelon , the court held that “henceforth the jury instruction on flight shall not be given.” Id. 1 In Fenelon , and subsequently in Power v. State, 605 So.2d 856 (Fla.1992), cert. denied — U.S. -, 113 S.Ct. 1863 , 123 L.Ed.2d 483 (Fla.1993), the supreme court found that although it would have been better for the jury to not have been given the flight instruction, the error was harmless in view of other evidence of guilt.

1992See, e.g., Wright, 586 So.2d at 1030 . ("Merely fleeing the scene of a crime does not support a flight instruction."); Rhodes v. State, 547 So.2d 1201 (Fla. 1989) (no evidence that defendant was fleeing to avoid prosecution when he was stopped by highway patrol for speeding); Lefevre v. State, 585 So.2d 457 (Fla. 1st DCA 1991) (defendant's flight from shooting scene equally consistent with his theory of defense); Williams v. State, 427 So.2d 331 (Fla. 3d DCA 1983) (insufficient evidence defendant fled scene to avoid prosecution); Barnes v. State, 348 So.2d 599 (Fla. 4th DCA 1977) (no evidence

1991More to the point is the recent Florida Supreme Court case of Merritt v. State, 523 So.2d 573 (Fla.1988), wherein it held: “Flight evidence is admissible as relevant to the defendant’s consciousness of guilt where there is sufficient evidence that the defendant fled to avoid prosecution of the charged offense.” It is readily apparent that a defendant’s abrupt departure from the courthouse after jury selection indicates a desire to avoid prosecution of the charged offenses.

1991See Payne v. State, 541 So.2d 699, 700 (Fla. 1st DCA 1989).

1991Payne v. State, 541 So.2d 699 (Fla. 1st DCA 1989); Williams v. State, 427 So.2d 331 (Fla. 3d DCA 1983); Barnes v. State, 348 So.2d 599 (Fla. 4th DCA 1977). [2] *459 The evidence presented in the instant case does not support the jury instruction on flight.

2005See Weddell v. State, 780 So.2d 324, 324 (Fla. 1st DCA 2001) ("Paraphrasing the opinion in Fenelon v. State, 594 So.2d 292, 294 (Fla.1992), we can think of no valid policy reason why a trial judge should be permitted to comment on the evidence of possession of recently stolen property as opposed to any other evidence adduced at trial.").

2005Similarly, in Barfield v. State, 613 So.2d 507, 508 (Fla. 1st DCA 1993), the First District reversed a conviction for petit theft on the ground that a jury instruction regarding the inference arising from the sale of recently stolen property at a price substantially below fair market value was, like the flight instruction in Fenelon , an impermissible comment on the evidence.

1993The weight of the State’s evidence was sufficient to overcome the error in giving the flight instruction, under the test announced in State v. Diguilio, 491 So.2d 1129 (Fla.1986); compare Crocker v. State, 616 So.2d 1180 (Fla. 1st DCA 1993).

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).

1992See also Busbee v. Quarrier, 172 So.2d 17 (Fla. 1st DCA), cert. denied, 177 So.2d 474 (Fla. 1965) ("It is well established in this jurisdiction that when circumstantial evidence is relied on in a civil case, the particular inference relied on to establish the fact must outweigh all contrary inferences to such an extent as to amount to a preponderance of all reasonable inferences that might be drawn from the same circumstances."); Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212 (Fla. 3d DCA 1979) (To use one inference as a basis for another inference, the first inference must outweigh all

1992See People v. Larson, 194 Colo. 338 , 572 P.2d 815, 817 (1977); State v. Wrenn, 584 P.2d 1231, 1233 (Idaho 1978); State v. Bone, 429 N.W.2d 123, 125-27 (Iowa 1988); State v. Cathey, 241 Kan. 715 , 741 P.2d 738, 748-49 (1987); People v. Williams, 66 N.Y.2d 789 , 497 N.Y.S.2d 902, 903 , 488 N.E.2d 832, 833 (1985); State v. Stilling, 285 Or. 293 , 590 P.2d 1223, 1230 , cert. denied, 444 U.S. 880 , 100 S.Ct. 169 , 62 L.Ed.2d 110 (1979); State v. Grant, 275 S.C. 404 , 272 S.E.2d 169 , 171 (1980); State v. Menard, 424 N.W.2d 382, 384 (S.D. 1988).