Duty to Consult with One Another
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a just verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and change your opinion if you become convinced that it is wrong. However, you should not change your honest belief concerning the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the mere purpose of returning a verdict.
Evidence
You are to apply the Law to the evidence and in this way decide whether the Defendant will be sentenced to life imprisonment or death. The evidence you shall consider consists of the testimony and exhibits the court admitted in evidence during all of the three phases of this trial.
lt is the duty of the court to rule on the admissibility of evidence. You shall not concern yourselves with the reasons for these rulings. You shall disregard questions and exhibits that were withdrawn or to which objections were sustained.
Evidence that was admitted for a limited purpose shall not be considered for any other purpose. You shall disregard testimony and exhibits that the court has not admitted, or the court has stricken. The lawyers may stipulate certain facts exist. This means both sides agree that evidence exists and is to be considered by you during your deliberations at the conclusion of the trial. You are to treat a stipulation as any other evidence. You are free to accept it or reject it, in whole or in part, just as any other evidence.
Evidence may be direct or circumstantial. Direct evidence is the testimony of a witness who saw, heard or otherwise observed an event. Circumstantial evidence is the proof of a fact or facts from which you may find another fact. The law makes no distinction between direct and circumstantial evidence. It is for you to determine the importance to be given to the evidence, regardless of whether it is direct or circumstantial.
During the aggravation phase of the trial, you found that the State had proved that a statutory aggravating circumstance exists making the defendant eligible for the death sentence. During this penalty phase, the Defendant and the State may present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for a sentence less than death. The State may also present any evidence that demonstrates that the Defendant should not be shown leniency. Leniency means a sentence less than death.
Mitigating circumstances may be found from any evidence presented during any of the phases of the trial. You should consider all of the evidence without regard to which party presented it. Each party is entitled to consideration of the evidence whether produced by that party or by another party.
You are the sole judges of the credibility of the witnesses and what weight is to be given the testimony of each witness. In considering the testimony of each witness you may take into account the opportunity and ability of the witness to observe, the witness memory and manner while testifying, any interest, bias or prejudice the witness may have, the reasonableness of the testimony of the witness considered in light of all the evidence, and any other factors that bear on credibility and weight.
A witness qualified as an expert by education or experience may state opinions on matters in that witnesss field of expertise, and may also state reasons for those opinions. Expert opinion testimony should be judged just as any other testimony. You are not bound by it. You may accept it or reject it, in whole or in part, and you should give it as much credibility and weight as you think it deserves, considering the witnesss qualifications and experience, the reasons given for the opinions, and all the other evidence in the case.
The testimony of a law enforcement officer is not entitled to any greater or lesser importance or believability merely because of the fact that the witness is a law enforcement officer. You are to consider the testimony of a police officer just as you would the testimony of any other witness.
The attorneys remarks, statements and arguments are not evidence, but are intended to help you understand the evidence and apply the law.
The attorneys are entitled to make any objections that they deem appropriate. These objections should not influence you, and you should make no assumptions because of objections by the attorneys.
Victim Impact Information
Relatives of the victims made statements relating to personal characteristics and uniqueness of the victims and the impact of the murder on the victims family. You may consider this information to the extent that it rebuts mitigation. You may not consider the information as a new aggravating circumstance.
Mitigation
Mitigating circumstances are any factors that are a basis for a life sentence instead of a death sentence, so long as they relate to any sympathetic or other aspect of the Defendants character, propensity, history or record, or circumstances of the offense.
Mitigating circumstances are not an excuse or justification for the offense, but are factors that in fairness or mercy may reduce the Defendants moral culpability.
Mitigating circumstances may be offered by the Defendant or State or be apparent from the evidence presented at any phase of these proceedings. You are not required to find that there is a connection between a mitigating circumstance and the crime committed in order to consider the mitigation evidence. Any connection or lack of connection may impact the quality and strength of the mitigation evidence. You must disregard any jury instruction given to you at any other phase of this trial that conflicts with this principle.
The fact that Defendant has been convicted of first degree murder is unrelated to the existence of mitigating circumstances. You must give independent consideration to all of the evidence concerning mitigating circumstances, despite the conviction.
The circumstances proposed as mitigation by the Defendant for your consideration in this case are:
1. Defendant was 27 years old at the time of the offense.
2. Defendant has no prior criminal history.
3. Defendant was a good friend.
4. Defendant lacked support from her family.
5. Defendant suffered abuse and neglect as a child and as an adult.
6. Defendant tried to make the best of her life.
7. Defendant consistently tried to improve herself.
8. Defendant is a talented artist.
You are not limited to these proposed mitigating circumstances in considering the appropriate sentence. You also may consider anything related to the Defendants character, propensity, history or record, or circumstances of the offense.
Defendant Need Not Testify
The Defendant is not required to testify or make any statement and you are precluded from drawing an inferences against her should she decide not to testify or make a statement. The decision on whether or not to testify or make a statement is left to the defendant, acting with the advice of her attorneys. You must not let this choice affect your deliberations in any way.
Rebuttal Evidence
The State may submit evidence to rebut mitigation evidence. You may individually consider rebuttal evidence in determining the existence of a mitigating circumstance or in assessing the significance of that mitigating evidence. You shall not consider rebuttal evidence as aggravation.
Jury Not to Consider Financial Cost of Penalty
You must decide the appropriate sentence based on the facts of the case and by applying these jury instructions. You must not consider the financial cost of any possible punishment when deciding whether to sentence the Defendant to life in prison or death.
Mitigation Assessment and the Sentence Burden Of Proof
While all twelve of you had to unanimously agree that the State proved beyond a reasonable doubt the existence of a statutory aggravating circumstance, you do not need to unanimously agree on a particular mitigating circumstance. Each one of you must decide individually whether any mitigating circumstance exists.
You are not limited to the mitigating circumstances offered by the Defendant. You must also consider any other information that you find is relevant in determining whether to impose a life sentence, so long as it relates to an aspect of the Defendants background, character, propensities, record, or circumstances of the offense.
The Defendant bears the burden of proving the existence of any mitigating circumstance that the Defendant offers by a preponderance of the evidence. That is, although the Defendant need not prove its existence beyond a reasonable doubt, the Defendant must convince you by the evidence presented that it is more probably true than not true that such a mitigating circumstance exists. In proving a mitigating circumstance, the Defendant may rely on any evidence already presented and is not required to present additional evidence.
You individually determine whether mitigation exists. In light of the aggravating circumstances you have found, you must then individually determine if the total of the mitigation is sufficiently substantial to call for leniency. Sufficiently substantial to call for leniency means that mitigation must be of such quality or value that it is adequate, in the opinion of an individual juror, to persuade that juror to vote for a sentence of life in prison.
Even if a juror believes that the aggravating and mitigating circumstances arc of the same quality or value, that juror is not required to vote for a sentence of death and may instead vote for a sentence of life in prison. A juror may find mitigation and impose a life sentence even if the defendant does not present any mitigation evidence.
A mitigating factor that motivates one juror to vote for a sentence of life in prison may be evaluated by another juror as not having been proved or, if proved, as not significant to the assessment of the appropriate penalty. In other words, each of you must determine whether, in your individual assessment, the mitigation is of such quality or value that it warrants leniency in this case.
The law does not presume what is the appropriate sentence. The defendant does not have the burden of proving that life is the appropriate sentence. The State does not have the burden of proving that death is the appropriate sentence. It is for you, as jurors, to decide what you individually believe is the appropriate sentence.
In reaching a reasoned, moral judgment about which sentence is justified and appropriate, you must decide how compelling or persuasive the totality of the mitigating factors is when compared against the totality of the aggravating factors and the facts and circumstances of the case. This assessment is not a mathematical one, but instead must be made in light of each jurors individual, qualitative evaluation of the facts of the case, the severity of the aggravating factors, and the quality of the mitigating factors found by each juror.
If you unanimously agree there is mitigation sufficiently substantial to call for leniency, then you shall return a verdict of life. If you unanimously agree there is no mitigation, or the mitigation is not sufficiently substantial to call for leniency, then you shall return a verdict of death.
Your decision is not a recommendation. Your decision is binding. If you unanimously find that the Defendant should be sentenced to life imprisonment, your foreperson shall sign the verdict form indicating your decision. If you unanimously find that the Defendant should be sentenced to death, your foreperson shall sign the verdict form indicating your decision. If you cannot unanimously agree on the appropriate sentence, your foreperson shall tell the judge.
Insert after paragraph three on page 10 of the Final Penalty Phase Instructions.
If you unanimously find the defendant should be sentenced to life imprisonment, the judge will sentence the defendant to either life imprisonment without the possibility of release, or life imprisonment with the possibility of release after 25 years. Life without the possibility of release from prison means exactly what it says. The sentence of life without the possibility of release from prison means the defendant will never be eligible to be released from prison for any reasons for the rest of the defendants life. At the current time, there is no procedure for granting parole if the defendant is sentenced to life with the possibility of release from prison after 25 years.
Closing Instruction
Your Foreperson will continue to preside over your deliberation. You should discuss and then set your deliberation schedule. You are in charge of your schedule, and may set and vary it by agreement and the approval of the court. After you have decided on a schedule, please advise the Bailiff.
After setting your schedule, I suggest that you next review the written jury instructions and verdict form. It may be helpful for you to discuss the instructions and verdict form to make sure that you understand them. Again, during your deliberations you must follow the instructions and refer to them to answer any questions about applicable law, procedure and definitions.
You are to discuss the case and deliberate only when all jurors are together in the jury room. You are not to discuss the case with each other or anyone else during breaks or recesses. The admonition I have given you during these proceedings remains in effect when all twelve of you are not in the jury room deliberating.
My previous instruction regarding how to communicate with me still applies during your deliberations. Should any of you, or the jury as a whole, have a question for me during your deliberations or wish to communicate with me on any other matter, please utilize the jury question form that we will provide you. Your question or message must be communicated to me in writing and must be signed by you or the Foreperson.
I will consider your question or note and, if necessary, consult with counsel before answering it in writing. I will answer it as quickly as possible.
Remember that you are not to tell anyone, including me, how you stand, numerically or otherwise, until after you have reached a verdict or have been discharged.
The penalty issue is now submitted to you for decision. When you go to the Jury room your Foreperson will preside over your deliberations and sign any verdict. In order to return a verdict, all twelve of you must agree on the sentence to be imposed. Please mark your decision on the verdict form provided.