177 So. 3d 32
Fla. Dist. Ct. App.2015Background
- Defendant Damon Leon Pewo, Jr. convicted by jury of second-degree murder in Hendry County; appealed conviction and sentence.
- Pewo's sole defense at trial was legal insanity — he claimed he was unable to appreciate his actions at the time of the offense.
- Under Florida law and the standard jury instructions, the defendant bears the burden to prove insanity by clear and convincing evidence.
- Trial court instructed the jury using Florida Standard Jury Instruction (Crim.) 3.6(a) defining clear and convincing evidence as producing "a firm belief, without hesitation."
- Pewo argued on appeal that that definition blurred the distinction between clear and convincing evidence and the higher criminal standard of proof beyond a reasonable doubt (defined by Fla. Std. Jury Instr. (Crim.) 3.7), effectively raising the defense burden to beyond a reasonable doubt.
- The Second District affirmed, rejecting Pewo’s claim and relying on Florida Supreme Court precedent approving the instruction and longstanding caselaw defining clear and convincing evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the standard insanity instruction improperly raises the defense's burden of proof to beyond a reasonable doubt | Pewo: language "firm belief, without hesitation" mirrors "abiding conviction" language for reasonable doubt, causing juror confusion and raising burden | State: instruction is the approved, longstanding definition of clear and convincing evidence and does not equate to reasonable doubt | Court: rejected Pewo; instruction is consistent with established clear-and-convincing standard and presumed correct |
Key Cases Cited
- Standard Jury Instructions—Criminal Cases (99-2), 777 So. 2d 366 (Fla. 2000) (Florida Supreme Court approved the proposed definition of clear and convincing evidence and rejected claim it equated to beyond reasonable doubt)
- In re Davey, 645 So. 2d 398 (Fla. 1994) (articulates the clear-and-convincing standard as requiring proof sufficient to convince the trier of fact without hesitancy)
- Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983) (uses language that evidence must produce a firm belief or conviction without hesitancy)