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Kirkland-El v. State9/29/2004
operation of the vehicle caused the death of the victim. After Knuth's counsel gave his closing argument, and over Knuth's objection, the trial court then instructed the jury it must find Knuth caused or contributed to the cause of the victim's death. 679 So.2d at 23. Citing King, the appellate court found that even though the court ultimately gave an appropriate instruction, "the failure to give the instruction before the defendants had their final say generated prejudice that can only be remedied by retrial." Id.
The state distinguishes King and Knuth by noting that in those cases the jury instruction was changed after the completion of the closing arguments, so counsel was not given an opportunity to argue the change. Here, the court changed the instruction in the middle of the state's closing argument, thus giving defense counsel the opportunity to address it in rebuttal.
This simply ignores the reality of the magnitude of the damage done to the presentation of Kirkland-El's case. Relying on the trial court's rulings at the charge conference, counsel argued that Kirkland-El had no duty to retreat in his own home. Then, after the trial court reversed its position, the state was able to argue consistently with what the jury would hear from the jury instructions. Thus, the jury would have to conclude that defense counsel was either trying to purposely mislead it or was ignorant of the law. Because the instruction was central to the defense of the case on a hotly contested issue, Kirkland-El was prejudiced by the actions of the trial court. We must reverse.
Reversed and remanded for a new trial.
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