Filing # 135806463 E-Filed 10/04/2021 09:24:08 AM

IN THE CIRCUIT COURT OF THE

17TH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO.: 18014129CF10A

Plaintiff.
VS. JUDGE: SCHERER

NIKOLAS CRUZ,
Defendant.
i

MOTION FOR SPECIAL ADVERSE INFERENCE JURY INSTRUCTION D-22

The Defendant, Nikolas Cruz, by and through his undersigned attorneys, and pursuant to

Florida Rule of Criminal Procedure 3.390 and 3.985, and the case law cited to herein, moves this

Honorable Court to issue an adverse inference jury instruction regarding spoliation of evidence

during trial. As grounds therefore, Mr. Cruz would aver as follows:

1. Mr. Cruz has been charged by Information in the above-styled cause with the

following four counts: (1) Attempted Aggravated Battery (law enforcement officer/deadly

weapon); (2) Battery on a Law Enforcement Officer; (3) Depriving an Officer of a Means of

Protection; and (4) Attempted Use ofa Self-DefenseWeapon Against a Law Enforcement Officer;

2. On September 28, 2021, the Court held a hearing on Mr. Cruz's Motion to Dismiss

for Failure to Preserve Evidence, or in the Alternative, Motion to Suppress/Exclude Evidence;

Request for Evidentiary Hearing. On September 30,2021, the Court issued an Order Denying Mr.

Cruz's afore-mentioned Motion. Even though the Court denied Mr. Cruz's Motion, Mr. Cruz is

still entitled to have the jury be read a special jury instruction;

3. Pursuant to Florida Rule of Criminal Procedure 3.390(c), "At the close of the

evidence, or at such earlier time during the trial as the court reasonably directs, any party may file

written requests that the court instruct the jury on the law as set forth in the requests. The court

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FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/04/2021 09:24:07 AM.****
shall inform counsel of its proposed action on the request and ofthe instructions that will be given

prior to their argument to the jury." Further, Florida Rule of Criminal Procedure 3.985 states, in

pertinent part, "The forms of Florida Standard Jury Instructions in Criminal Cases... may be used

by the trial judges of this state... unless the trial judge shall determine that an applicable form o f

instruction is erroneous or inadequate, in which even the judge shall modify or amend the form or

give such other instruction as the trial judge shall determine to be necessary to instruct the jury

accurately and sufficientlyon the circumstancesof the case..."

4. It has long been held that, "A trial judge in a criminal case is not required to give

solely those instructions that are contained in the Florida Standard Jury Instructions." Cruse v.

State, 588 So.2d 983, 989 (Fla. 1991). Rather, the Florida Standard Jury Instructions are, "a

guideline to be modified or amplified depending upon the facts of each case." Yohn v. State, 476

So.2d 123, 127 (Fla. 1985). Simply put, "While the Standard Jury Instructions can be of great

assistance to the Court and to counsel, it would be impossible to draft one set of instructionswhich

would cover every situation." Id at 127;

5. Moreover, "A party is entitled to have the jury instructed upon its theory of the

case 'when there is evidence to support the theory."'Albuo v. State, 910 So.2d 930,933 (Fla. 2d

DCA 2005) (citing Seaboard Coastline R.R. Co. v. Addison, 502 So. 2d 1241, 1242 (Fla. 1987).

"Stated another way, an instruction on a party's theory ofthe case is warranted when the evidence,

viewed in a light favorable to that party, 'substantiallysupports the theory even though that theory

is controverted."'Florio v. Eng, 879 So. 2d 678,679 (Fla. 4th DCA 2004);

6. In Albury supra, the Court found that the trial court abused its discretion in denying

the defendant's request for a special jury instruction. Albuo, 910 So.2d at 931. The Court found

that, "Failure to give a requested jury instruction constitutes reversible error where: (1) the

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requested instruction accurately states the law, (2) the facts in the case support giving of the

instruction, and (3) the instruction was necessary to allow the jury to properly resolve the issues in

the case." Id. at 933. The Court further noted that, "Albury was entitled to have the jury instructed

on his theory of the case..." Whether or not the court, or the state, believed that theory to be

legitimate, or ludicrous, did not factor into the Court's ultimate decision in reversing the case for

a new trial;

7. In Arizonav. Youngblood, 488 U.S. 59 (1988), the Court instructed the jury, "Ifyou

find that the State has... allowed to be destroyed or lost any evidence whose content or quality

are in issue you may infer that the true fact is against the State's interest." The Court provided that

instruction to the jury, and also stated, "Second, although it is not possible to know whether the

lost evidence would have revealed any relevant information, it is unlikely that the defendant was

prejudiced by the State's omission." U. The decision to give a special jury instruction in

-Youngblood was not based upon what "relevant information"it would have yielded.

8. While Mr. Cruz understands the Court's ruling in its Order dated September 30,

2021, Mr. Cruz wholly disagrees that whatever was on the destroyed video was "irrelevant." On

the contrary, as was argued for several hours on September 28, 2021, the destroyed video was

highly relevant. Regardless, relevance is not the standard for deciding whether to instruct a jury

with a specialjury instruction, and a "lack" of relevant evidence as determined by the Court does

not eviscerate a defendant's right to have a jury instructed on his theory of defense. In light ofthat,

Mr. Cruz proposes the below jury instruction be read to the jury.

If you find that that the Broward Sheriff's

lost, destroyed, Office
mutilated,altered, concealed or otherwise caused any evidence to be unavailable,
while it was within its possession, custody, or control; and the evidence would have
been material in deciding the issues in this case; then you may, but are not required
to, infer that this evidence would have been unfavorable to the State. You may
consider this, together with the other evidence, in rendering a verdict in this case.

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Fla. Jur. Civ. 301.11(a).

9. As the instruction itself provides, no juror is required to infer that this evidence

would have been unfavorable to the State. A juror is always instructed that they get to listen to the

testimony and evidence and decide what they deem reliable. Fla. Jun Crim. 3.9. This jury

instruction alone, should a juror choose to disregard it, may be disregarded. However, the

instruction should still be given, especially where evidence has been presented at a pretrial hearing

that "... the Broward Sheriff"s Office... otherwise caused any evidence to be unavailable while it

was within its possession custody or control...." Moreover, simply because a Court in a
pretrial

hearing has not deemed the "unavailable evidence" to be material or relevant does not mean that

a juror may come to the same conclusion during trial.

WHEREFORE, Mr. Cruz respectfully requests that the Court read the adverse inference

instruction to the jury during trial.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by

e-service to the Office of the State Attorney, Maria Schneider, at courtdocs@sao 17.state.fl.us,

Broward County Courthouse, Fort Lauderdale, Florida, this October 4,2021.

GORDON WEEKES
Public Defender
17th Judicial Circuit

s/ JACLYN ERICA BROUDY

JACLYN ERICA BROUDY

Florida Bar No. 1002281
Assistant Public Defender
Attorney for the Defendant

(954) 831-8550