Mississippi Model Jury Instructions- Criminal
CHAPTER 1 COURT’S INSTRUCTIONS – GENERAL
C. CAPITAL MURDER SENTENCING INSTRUCTIONS

112A. Capital Murder Sentencing Instruction-Jury Must Write Each Element (Effective July 1, 2013)

You have found [name of defendant] guilty of the crime of capital murder. You must now decide whether [name of defendant] will be sentenced to death or life imprisonment without parole. In reaching your decision, you must [objectively/carefully] consider the detailed circumstances of the offense for which [name of defendant] was convicted, and the character and record of [name of defendant] [himself/herself]. You must consider and weigh any aggravating and mitigating circumstances as set out later in this instruction. You are cautioned not to be swayed by mere sentiment, [conjecture/speculation], sympathy, passion, prejudice, public opinion, or public feeling.

A.

First, to return the death penalty in this case you must unanimously find beyond a reasonable doubt from the evidence that one (1) or more of the following facts exist:

1. [Name of defendant] actually killed [name of victim];

2. [Name of defendant] attempted to kill [name of victim];

3. [Name of defendant] intended that the killing of [name of victim] take place; or

4. [Name of defendant] [contemplated/thought] that [lethal/deadly] force would be [employed/used].

If you do not find that any of the above facts exist beyond a reasonable doubt from the evidence, then the death penalty [cannot/shall not] be imposed, and you shall write the following verdict on a sheet of paper [or you may fill in the attached verdict form]:

We, the jury, find the defendant should be sentenced to life imprisonment without parole.

However, if you unanimously find beyond a reasonable doubt from the evidence that one (1) or more of the above facts do exist, then you may continue to section B. List the fact(s) from above, if any, which you found do exist:

B.

Next, you must consider whether there are any aggravating circumstances to this crime. Aggravating circumstances are those circumstances which tend to support the death penalty. Consider only the following aggravating circumstances in determining whether the death penalty should be imposed:

[1. The capital offense was committed by a person under a sentence of imprisonment;]

[2. [Name of defendant] was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person;]

[3. [Name of defendant] knowingly created a great risk of death to many [persons/people];]

[4. The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, aircraft piracy, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or felonious abuse or battery of a child in violation of subsection (2) of Section 97-5-39, or the unlawful use or detonation of a bomb or explosive device;]

[5. The capital offense was committed for the purpose of avoiding or preventing a lawful arrest or [effecting an escape/escaping] from custody;]

[6. The capital offense was committed for [pecuniary/financial/monetary] gain;]

[7. The capital offense was committed to [disrupt/interrupt/hinder/interfere with] the lawful exercise of a governmental function or the enforcement of laws;]

[8. The capital offense was committed to influence the policy of a governmental entity by intimidation or coercion, or to affect the conduct of a governmental entity by mass destruction or assassination;]

[9. The capital offense was especially heinous, atrocious or cruel; or]

[10. The capital offense was committed to intimidate or coerce a civilian population.]

You must unanimously find beyond a reasonable doubt from the evidence that one (1) or more of the above aggravating circumstances exist in this case in order to return the death penalty. If you do not find that one (1) or more of these aggravating circumstances exist, then the death penalty [cannot/shall not] be imposed, [you should not deliberate any further], and you shall write the following verdict on a sheet of paper [or you may fill in the attached verdict form]:

We, the jury, find the defendant should be sentenced to life imprisonment without parole. However, if you unanimously find beyond a reasonable doubt from the evidence that one (1) or more of the above aggravating circumstances do exist, then you may continue to section C. List the aggravating circumstance(s) from above, if any, which you found do exist:

C.

If you unanimously find beyond a reasonable doubt from the evidence that one (1) or more of the above aggravating circumstances exist, then you must consider whether there are any mitigating circumstances to this crime or any mitigating circumstances concerning [name of defendant]. Mitigating circumstances are those circumstances which tend to support the less severe penalty of life imprisonment without parole. Consider the following mitigating circumstances:

[1. [Name of defendant] has no significant history of prior criminal activity;]

[2. The offense was committed while [name of defendant] was under the influence of an extreme mental or emotional disturbance;]

[3. [Name of victim] was a participant in [name of defendant]’s conduct or consented to the act;]

[4. [Name of defendant] was an accomplice in the capital offense committed by another person and [his/her] participation was relatively minor;]

[5. [Name of defendant] acted under extreme duress or under the substantial [domination/control] of another person;]

[6. The capacity of [name of defendant] to [appreciate the criminality of [his/her] conduct/understand that [his/her] actions were criminal] or to [conform/change] [his/her] conduct to the requirements of the law was substantially [impaired/affected];]

[7. The age of [name of defendant] at the time of the crime;] and

_/8. Any other matter, any other aspect of [name of defendant]’s character or record, and any other circumstance of the offense brought to you during the trial of this case which you find to be mitigating on behalf of [name of defendant].

If you find from the evidence that one (1) or more of the above mitigating circumstances exist, then each of you must consider whether [it/they] outweigh(s) or overcome(s) the aggravating circumstance(s) which you have previously found. If you find that the mitigating circumstance(s) [do/does] outweigh or overcome the aggravating circumstance(s), then you [cannot/shall not] impose the death penalty.

However, if you unanimously find beyond a reasonable doubt from the evidence that there are insufficient mitigating circumstance(s) to outweigh the aggravating circumstance(s), then you may impose the death sentence. Continue to section D.

D.

You must write the verdict on a separate sheet of paper [or you may fill in the attached verdict form]. The foreperson must sign the written verdict. You should write your verdict in one of the following forms:

1. We, the jury, unanimously find beyond a reasonable doubt from the evidence that the following fact(s) existed at the time of the commission of the capital murder (list the fact(s) found in section A):

Next, we, the jury, unanimously find beyond a reasonable doubt from the evidence that the following aggravating circumstance(s) exist(s) (list the aggravating circumstance(s) found in section B):

And there are insufficient mitigating circumstance(s) to outweigh the aggravating circumstance(s). Therefore, we, the jury, unanimously find that [name of defendant] should suffer death.

Foreperson of the jury

2. We, the jury, unanimously find that [name of defendant] should be sentenced to life imprisonment without parole.

Foreperson of the jury

3. We, the jury, are unable to agree unanimously on punishment.

Foreperson of the jury

Notes

Sources

Miss. Model Jury Instruction – Criminal § 1:29.

Miss. Code Ann. § 99-19-101.

Manning v. State, 735 So. 2d 323, 352 (Miss. 1999) (Furthermore, the use of the catch-all instruction eliminates the possibility “that the jury was unconstitutionally foreclosed from considering all mitigating circumstances.” “A catchall instruction is sufficient to encompass nonstatutory mitigating factors.”) (citations omitted).

Neal v. State, 451 So. 2d 743, 761 n.11 (Miss. 1984) (The use of such non-limiting “any other mitigating circumstances” instructions has been approved by this Court in Gray v. State, approving [an] instruction that jury was to consider as a mitigating circumstance “any other matter [besides the statutory mitigating circumstances] brought before you which you may deem to be mitigating on behalf of the defendant.” As a matter of practice, such language should be employed in every case to avoid this troublesome point arising in the future.) (citation omitted). Practice Notes

Only the aggravating circumstances which are supported by the evidence should be listed in the sentencing instruction. Therefore, the aggravating circumstances are contained in brackets. Only the mitigating circumstances which are supported by the evidence should be listed in the sentencing instruction. Therefore, seven of the mitigating circumstances are contained in brackets. However, the last mitigating circumstance, listed as “_/8” must always be included in the sentencing instruction. Failure to do so is reversible error.

The trial court may decide to offer the words or phrases which are contained in brackets as plain language alternatives to some words in the instruction.

The trial court has the discretion to submit the sentencing instruction to the jury and instruct the jury to fill out the sentencing instruction to serve as the verdict form, or in the alternative, to submit the sentencing instruction with a separate verdict form, with instructions that the verdict form must contain the elements specified in the sentencing instruction. See Instruction 116. Committee Note

The criminal subcommittee is submitting multiple versions of the death penalty jury instruction for the Mississippi Supreme Court to consider what constitutes written findings pursuant to Miss. Code Ann. § 99-19-101 (1972).