"Flight" jury instructions should be less frequent after States v. State

The case of Shawn States v. State is one with which I am somewhat, although not greatly, familiar.  In short, Mr. States was convicted by a Hinds County jury of capital murder for the killing of Antoine Reece and Justin Howard and taking credit cards belonging to the men, along with Reece's Jaguar. States was found in Miami with his girlfriend, who was about to be deployed to Iraq.  At trial, the prosecution offered a flight instruction, and Judge Swan Yerger gave that instruction to the jury.  That instruction would become the bone of contention at the Supreme Court.

Justice Jess Dickinson wrote the 8 vote majority opinion affirming the conviction, which found no error on States' first two issues.  The Court did, however, find error in States' third issue, albeit harmless. Dickinson begins the discussion of States' third issue thusly:

Generally, evidence of flight “is admissible as evidence of consciousness of guilt.” But “an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” We have adopted a two-prong test: (1) Only unexplained flight merits a flight instruction; and (2) flight instructions are to be given only in cases where that circumstance has considerable probative value. Neither prong of the test is met here.

Justice Dickinson goes on to detail the evidence at trial, which was that States took the car to go visit his girlfriend who was about to be deployed to Iraq, and finds that to be an explanation for States leaving Jackson. Further, since there was no evidence that States believed his capture was imminent, there was no probative value.

To me, the best line of the opinion is Dickinson's treatment of the trial court's logic in granting the flight instruction and the State's argument on appeal defending it: "Accepting the State’s argument, a defendant – in order to avoid a flight instruction – would be required to remain at the scene until police arrived."  That's about as strong as it gets, and I imagine we'll see that line repeated by defense attorneys any time a flight instruction is offered in a close case.

Unfortunately for Mr. States, the majority found that even an improperly instructed jury was sufficient is his case.  The majority held that the jury would not have been influenced by the flight instruction and would have found States guilty any way, so even though the giving of the flight instruction was wrong, the Court refused to reverse and remand.

The interesting part of States v. State for us criminal law practitioners is found in Justice Carlson's 5 vote concurrence, which consists of little more than an admonition by a majority of the Court that prosecutors and trial judges better watch their step when dealing with flight instructions.  Justice Carlson opines:

¶43. As Justice Dickinson correctly concludes in his majority opinion, there was overwhelming evidence of Shawn States’s guilt, which makes the prosecutor’s erroneous and ill-advised decision in this case to submit a flight instruction even more perplexing. But prosecutors should take note that, in today’s case, this Court has found error in the trial court’s grant of a flight instruction because (1) Shawn States’s flight was not unexplained and (2) evidence of Shawn’s flight did not have considerable probative value. (Maj. Op. at ¶37). See Randolph, 852 So. 2d at 564-65 (citations omitted). The State escaped a reversal of two capital murder convictions and consecutive life-without-parole sentences, only because this error of granting a flight instruction was deemed harmless based on the record before us. A different record would have produced a different result.
¶44. In my opinion, with the prosecutors having been duly warned on multiple occasions about the danger of submitting flight instructions, there can be no legitimate hue and cry from the State in the future if this Court or the Court of Appeals reverses a criminal conviction based on the trial court’s improper grant of a flight instruction, which had been improvidently submitted by the prosecutor.

It will be interesting to see the effect of this admonition on trial courts going forward.  I have no doubt that some prosecutors will still ask for flight instructions in cases where they probably shouldn't, thinking that the strength of their cases will lead the appellate courts to bail them out on a harmless error analysis.

Justice Kitchens closes out States v. State with an interesting dissent, focused on the propriety of declaring an improperly instructed jury to be a matter of harmless error.  Kitchens makes the point that the Court cannot know if the jury disregarded the erroneous flight instruction when making their decision. After all, isn't the Court engaging in speculation by saying that the jury wasn't influenced by the improper instruction?

The issue of flight instructions is one to watch going forward, and it wouldn't surprise me a bit if there was a case currently pending in which the justices were considering overturning a conviction on that issue alone.  We'll see.