Jury Pre-Instructions

Penalty Phase

November 30, 2004

JUDGE: Again, ladies and gentlemen of the jury, what I'm going to do this morning, I'm going to pre-instruct you. Remember when we went through in the voir dire a long time ago, months ago, I went through the process of how you go through deciding which would be the appropriate penalty in this case, about weighing these aggravating and mitigating factors. I'm going to pre-instruct you now so you get another idea where we're going and how you are supposed to approach this part of the trial. And then we're going to have the opening statement by the prosecutor. Going to take approximately ten minutes. And then we are going to send you out for lunch. I know you have had a long morning. Now we're ready to proceed okay? So you are going to hear these instructions again. But these -- I'm just going to pre-instruct you as to certain portions that you will hear again, okay. The defendant in this case has been found guilty of murder in the first degree. The allegation that the murder was committed under a special circumstance has been specially found to be true.
It is the law of this state that the penalty for a defendant found guilty of murder of the first degree shall be death or confinement in the State Prison for life without the possibility of parole in any case in which the special circumstance alleged in this case has been specially found to be true. I instruct you that life in prison without the possibility of parole means exactly what it says, that the defendant will be imprisoned in the State Prison for the rest of his life. You are further instructed that the death penalty means exactly what it says. That the defendant will, in fact, be executed. For you to conclude otherwise would be for you to rely on conjecture and speculation, and it would be a violation of your oath as trial jurors. Under the law of this state you must now determine which of these penalties shall be imposed on the defendant. In deciding whether death or life in prison without the possibility of parole is the appropriate sentence, you may not consider for any reason whatsoever the deterrent or non-deterrent effect of the death penalty or the monetary cost to the state of execution or maintaining a prisoner for life. Cannot enter in your deliberations in any way.

You will be instructed as to all of the law that applies to the penalty phase of this trial. You must determine what the facts are from the evidence received during the entire trial unless you are instructed otherwise. You must accept and follow the law that I state to you. Disregard all other instructions given to you in other phases of this trial. You must neither be influenced by bias nor prejudice against the defendant, nor swayed by public opinion or public feelings. Both the people and the defendant have a right to expect that you will consider all of the evidence, follow the law, exercise your discretion conscientiously, and reach a just verdict.

Statements made by the attorneys during the trial are not evidence. However, if the attorneys stipulate or agree to a fact, you must regard that fact as proven. If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence, and may be considered only as it helps you to understand the answer. Do not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken by the Court. Treat it as though you had never heard of it.

Now, you have heard some of this before when we went through the Hovey voir dire when I took you through this, how you go through this balancing, so I'm going to explain that to you now in a little more detail. In determining which penalty is to be imposed, you shall consider all of the evidence which has been received during any part of the trial of this case except as you may hereinafter be instructed. You shall consider, take into account, and be guided by the following factors, if applicable:

The circumstances of the crime for which the defendant was convicted and the present proceedings in the present proceedings and the existence ever any special circumstance found to be true.

The presence or absence of criminal activity by the defendant, other than the crimes which the defendant has been tried in the present proceedings which involve the use or attempted use of force or violence, or the express or implied threat to use force or violence.

The presence or absence of any prior felony conviction other than the crimes for which the defendant has been tried in the present proceedings.

Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

Whether or not the defendant acted under extreme duress, under the substantial domination of another person.

Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct, or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

The age of the defendant at the time of the crime.

Whether or not the defendant was an accomplice to the offense, and his participation in the commission of the offense was relatively minor.

And, any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, and any sympathetic or other aspects of the defendant's character or record that the defendant offers as a basis for a sentence less than death, whether or not related to the he offense for which he is on trial. You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle.

You may also consider any lingering or residual doubt as to the defendant's guilt or intent as a factor in mitigation. Lingering or residual doubt is defined as a state of mind between reasonable doubt and beyond all possible doubt. You may not relitigate or reconsider matters resolved in the guilt phase, but you may consider lingering doubt as a factor in mitigation.

Okay? Now, you are going to get these all. You will have these with you in the jury room. But that's just to give some direction so you know what to be listening for when you hear the evidence.