Ala. Pattern Jury Instr. (Criminal) 11-9-2007

IN THE SUPREME COURT OF ALABAMA

November 9, 2007

ORDER

IT IS ORDERED that Alabama Pattern Jury Instructions –

Criminal for the penalty phase of capital proceedings be

amended to read in accordance with the appendix attached to

this order.

IT IS FURTHER ORDERED that this amendment is effective

immediately.

Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,

Bolin, Parker, and Murdock, JJ., concur.

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APPENDIX

Penalty Proceedings – Capital Cases

I. INSTRUCTION BEFORE PENALTY PHASE BEGINS

A. 1. [To be given at the beginning of the penalty

proceeding before a jury that did not try the issue of

guilt.] Ladies and gentlemen of the jury, in a

separate proceeding the defendant has been found guilty

of the capital [offense] [offenses] of [list the

appropriate capital [offense] [offenses] defendant was

convicted of as listed in Alabama Code Section

13A-5-40(a)]. In this proceeding, you will not concern

yourself with the question of guilt but rather with

punishment.

We are now about to begin the penalty-phase

proceeding. The duty before you is to advise the court

as to what punishment should be imposed upon the

defendant for the crime of capital murder –- either

life imprisonment without the possibility of parole or

death.

A. 2. [To be given at the beginning of the penalty

proceeding before a jury that decided the issue of

guilt.] Ladies and gentlemen of the jury, you have

found the defendant guilty of the capital [offense]

[offenses] of [list the appropriate capital [offense]

[offenses] defendant was convicted of as listed in

Alabama Code Section 13A-5-40(a)].

We are now about to begin the penalty-phase

proceeding. This phase will be similar in format to

the guilt-phase proceeding you have just completed.

However, the duty now before you is to advise the court

as to what punishment should be imposed upon the

defendant for the crime of capital murder –- either

life imprisonment without the possibility of parole or

death.

B. The State and the defendant will have the

opportunity to present evidence relative to the nature

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of the crime and the character of the defendant. You

are instructed that [this evidence when considered with

the evidence you have already heard in the guilt phase]

[this evidence] is presented in order that you might

determine, first, whether any aggravating [circumstance

exists] [circumstances exist] that would render death

an available punishment option and, second, whether the

aggravating [circumstance outweighs] [circumstances

outweigh] the mitigating [circumstance]

[circumstances]. At the conclusion of the taking of

the evidence and after argument of counsel, you will be

instructed on the factors in aggravation and mitigation

you may consider.

II. INSTRUCTIONS AFTER THE TAKING OF EVIDENCE AND THE

ARGUMENT OF COUNSEL

A. Ladies and gentlemen of the jury, it is now

your duty to advise the court as to what punishment

should be imposed upon the defendant for the crime of

capital murder. The law of this State provides that

the punishment for the capital [offense] [offenses] of

[list the capital [offense] [offenses] defendant was

convicted of as listed in Alabama Code Section

13A-5-40(a)], for which this defendant has been

convicted, is either life imprisonment without the

possibility of parole or death. The law also provides

that the punishment that should be imposed upon the

defendant depends on whether any aggravating

[circumstance exists] [circumstances exist] beyond a

reasonable doubt and, if so, whether the aggravating

[circumstance outweighs] [circumstances outweigh] the

mitigating [circumstance] [circumstances].

B. An aggravating circumstance is a circumstance

specified by law that indicates, or tends to indicate,

that the defendant should be sentenced to death. A

mitigating circumstance is any circumstance that

indicates, or tends to indicate, that the defendant

should be sentenced to life imprisonment without

parole. The issue at this sentencing hearing concerns

the existence of aggravating and mitigating

circumstances, which you should weigh against each

other to determine the punishment that you recommend.

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C. Your verdict recommending a sentence should be

based upon the evidence [that you have heard while

deciding the guilt or innocence of the defendant and

the evidence that has been presented to you in these

proceedings] [that has been presented to you in these

proceedings]. The trial judge must consider your

verdict recommending a sentence in making a final

decision regarding the defendant's sentence.

IIIA. INSTRUCTION TO BE GIVEN IF THE CAPITAL [OFFENSE]

[OFFENSES] DEFENDANT WAS CONVICTED OF [INCLUDES]

[INCLUDE] AN AGGRAVATING CIRCUMSTANCE THAT WAS

ESTABLISHED BY THE GUILT-PHASE VERDICT

[This passage is for information purposes only: As

stated in Ala. Code 1975, § 13A-5-45(e), "any aggravating

circumstance which the verdict convicting the defendant

establishes was proven beyond a reasonable doubt at trial

shall be considered as proven beyond a reasonable doubt for

purposes of the sentencing hearing." See also § 13A-5-50.

The following instructions pertain only to those capital

offenses that contain an aggravating circumstance

established by the guilt-phase verdict. The determination

of whether any remaining aggravating circumstances are to be

deemed necessarily included will be controlled by the facts

of the specific case as presented in the guilt and

sentencing phases of the defendant's trial.]

A. [Instructions to be given relating to the

aggravating [circumstance that was] [circumstances that

were] established by the guilt-phase verdict.]

[See Appendix A, "Capital Offenses Containing an

Aggravating Circumstance Established by the Guilt-Phase

Verdict," and locate appropriate instruction.]

B. [Give this instruction only if the State is

offering an aggravating circumstance or circumstances

in addition to the aggravating circumstance established

by the guilt-phase verdict. If the State is not

offering additional aggravating circumstances, proceed

to Section IIIA.C.]

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1. As previously stated, [your verdict] [the

verdict reached by the jury] in the guilt phase,

finding the defendant guilty as charged in the

indictment, established by law the existence of

the following aggravating [circumstance]

[circumstances]: [list appropriate aggravating

circumstance found at § 13A-5-49; for list of

these aggravating circumstances see Appendix B].

2. The additional aggravating [circumstance]

[circumstances] proffered by the State that you

may consider [is] [are] limited to the following:

[Charge the jury only on those

additional aggravating

circumstances proffered by the

State:]

[see Appendix B for a list of

the aggravating circumstances

located at § 13A-5-49]

3. The State has the burden of proving beyond

a reasonable doubt the existence of the

aggravating [circumstance] [circumstances] [list

the additional aggravating [circumstance]

[circumstances] the State is attempting to prove.

See Appendix B.] The phrase "reasonable doubt" is

self-explanatory. Efforts to define it do not

always clarify the term. It is not a mere

possible doubt because everything relating to

human affairs is open to some possible or

imaginary doubt. A reasonable doubt is a doubt of

a fair-minded juror honestly seeking the truth

after careful and impartial consideration of all

the evidence in the case. It is a doubt based

upon reason and common sense. It does not mean a

vague or arbitrary notion, but is an actual doubt

based upon the evidence, the lack of evidence, a

conflict in the evidence, or a combination

thereof. It is a doubt that remains after going

over in your mind the entire case and giving

consideration to all the testimony and evidence.

It is distinguished from a doubt arising from mere

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possibility, from bare imagination, or from

fanciful conjecture.

4. If, after considering [all the evidence

from both the guilt phase and this penalty phase]

[all the evidence], you are convinced of the

existence of any of the proffered aggravating

[circumstance] [circumstances] beyond a reasonable

doubt, it will then be your duty to consider

[that] [those] aggravating [circumstance]

[circumstances] during your sentencing

deliberations. However, if you have a reasonable

doubt about any of the proffered aggravating

circumstances, you should not consider those

aggravating circumstances during your sentencing

deliberations. I remind you that [your verdict]

[the verdict reached by the jury] in the guilt

phase, finding the defendant guilty as charged in

the indictment, established by law the existence

of the following aggravating [circumstance]

[circumstances]: [list appropriate aggravating

[circumstance] [circumstances] found at §

13A-5-49].

C. [Instruction to be given relating to mitigating

circumstances.]

1. The defendant is allowed to offer any

evidence in mitigation -- that is, evidence that

indicates, or tends to indicate, that the

defendant should be sentenced to life imprisonment

without eligibility for parole instead of death.

The defendant does not bear a burden of proof in

this regard. All the defendant must do is simply

present the evidence.

2. The laws of this State provide that

mitigating evidence shall include, but not be

limited to, the following enumerated mitigating

circumstances:

[Statutory mitigating

circumstances listed at §

6

13A-5-51, can be found at

Appendix C.]

3. The laws of this State further provide

that mitigating circumstances shall not be limited

to those I just listed, but shall also include any

aspect of the defendant's character or background,

any circumstances surrounding the offense, and any

other relevant mitigating evidence that the

defendant offers as support for a sentence of life

imprisonment without parole.

4. If the factual existence of any evidence

offered by the defendant in mitigation is in

dispute, the State shall have the burden of

disproving the factual existence of the disputed

mitigation evidence by a preponderance of the

evidence.

5. The preponderance-of-the-evidence standard

requires the State -- in order to negate the

existence of disputed mitigating evidence -- to

offer evidence of greater weight, or evidence that

is more convincing, than that offered by the

defendant.

6. If you believe that the State's offered

evidence outweighs, or is more convincing than,

the mitigating evidence offered by the defendant,

then that mitigating evidence should not be

considered in sentencing.

7. On the other hand, if you believe that the

State's offered evidence is of less or equal

weight, or is less convincing, than the mitigating

evidence offered by the defendant, then that

mitigating evidence shall be considered in

sentencing.

8. Your determination concerning the

existence of mitigating circumstances should not,

however, be influenced by passion, prejudice, or

any other arbitrary factors. Your determination

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should be based solely on the evidence presented

and the law as I have explained it to you.

IIIB. INSTRUCTION TO BE GIVEN IF THE CAPITAL [OFFENSE]

[OFFENSES] DEFENDANT WAS CONVICTED OF [DOES] [DO]

NOT INCLUDE AN AGGRAVATING CIRCUMSTANCE THAT WAS

ESTABLISHED BY THE GUILT-PHASE VERDICT

A. [Instruction to be given relating to

aggravating circumstances.]

1. The aggravating [circumstance]

[circumstances] that you may consider [is] [are]

limited [to any of the following][to the

following] that [is] [are] established by the

evidence:

[Give only those aggravating

circumstances for which evidence

has been presented. See

Appendix B for a list of all

aggravating circumstances.]

2. The State has the burden of proving beyond

a reasonable doubt the existence of the

aggravating [circumstance] [circumstances] [list

the aggravating [circumstance] [circumstances] the

State is attempting to prove. See Appendix B.]

The phrase "reasonable doubt" is self-explanatory.

Efforts to define it do not always clarify the

term. It is not a mere possible doubt because

everything relating to human affairs is open to

some possible or imaginary doubt. A reasonable

doubt is a doubt of a fair-minded juror honestly

seeking the truth after careful and impartial

consideration of all the evidence in the case. It

is a doubt based upon reason and common sense. It

does not mean a vague or arbitrary notion, but is

an actual doubt based upon the evidence, the lack

of evidence, a conflict in the evidence, or a

combination thereof. It is a doubt that remains

after going over in your mind the entire case and

giving consideration to all the testimony. It is

distinguished from a doubt arising from mere

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possibility, from bare imagination, or from

fanciful conjecture.

3. As I previously stated, the burden of

proof is on the State to convince each of you

beyond a reasonable doubt as to the existence of

any aggravating [circumstance] [circumstances] to

be considered by you in determining what

punishment is to be recommended in this case.

This means that before you can even consider

recommending that the defendant's punishment be

death, each and every one of you must be convinced

beyond a reasonable doubt based on the evidence

that at least one of the aggravating circumstances

exist. If you are not unanimously convinced that

one and the same aggravating circumstance exists

beyond a reasonable doubt based on the evidence,

then you must return a verdict, binding on the

trial court, sentencing the defendant to life

imprisonment without the possibility of parole,

regardless of whether there are any mitigating

circumstances in this case.

4. The evidence upon which a reasonable doubt

about an aggravating circumstance may be based is

[the evidence you have heard in this sentence

hearing] [both the evidence you heard in the guilt

stage of this trial and the evidence you have

heard in this sentence hearing]. The defendant

does not have to disprove anything about an

aggravating circumstance. The burden is wholly

upon the State to prove such a circumstance beyond

a reasonable doubt. A reasonable doubt about an

aggravating circumstance may arise from all the

evidence, from any part of the evidence, or from a

lack or failure of the evidence.

5. In the event that you do not find that any

aggravating [circumstance has] [circumstances

have] been proven by the State, you need not

concern yourself with the mitigating circumstances

in this case. If you find beyond a reasonable

doubt that [the aggravating circumstance] [one or

more of the aggravating circumstances] on which I

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instructed you does exist in this case, then you

must proceed to consider and determine the

mitigating circumstances.

B. [Instruction to be given relating to mitigating

circumstances.]

1. The defendant is allowed to offer any

evidence in mitigation –- that is, evidence that

indicates, or tends to indicate, that the

defendant should be sentenced to life imprisonment

without eligibility for parole instead of death.

The defendant does not bear a burden of proof in

this regard. All the defendant must do is simply

present the evidence.

2. The laws of this State provide that

mitigating evidence shall include, but not be

limited to, the following enumerated mitigating

circumstances:

[Statutory mitigating

circumstances listed at §

13A-5-51, can be found at

Appendix C.]

3. The laws of this State further provide

that mitigating circumstances shall not be limited

to those I just listed, but shall also include any

aspect of the defendant's character or background,

any circumstances surrounding the offense, and any

other relevant mitigating evidence that the

defendant offers as support for a sentence of life

imprisonment without parole instead of death.

4. If the factual existence of any evidence

offered by the defendant in mitigation is in

dispute, the State shall have the burden of

disproving the factual existence of the disputed

mitigation evidence by a preponderance of the

evidence.

5. The preponderance-of-the-evidence standard

requires the State -- in order to negate the

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existence of disputed mitigating evidence -- to

offer evidence of greater weight, or evidence that

is more convincing, than that offered by the

defendant.

6. If you believe that the State's offered

evidence outweighs, or is more convincing than,

the mitigating evidence offered by the defendant,

then that mitigating evidence should not be

considered in sentencing.

7. On the other hand, if you believe that the

State's offered evidence is of less or equal

weight, or is less convincing, than the mitigating

evidence offered by the defendant, then that

mitigating evidence shall be considered in

sentencing.

8. Your determination concerning the

existence of mitigating circumstances should not,

however, be influenced by passion, prejudice, or

any other arbitrary factors. Your determination

should be based solely on the evidence presented

and the law as I have explained it to you.

C. Special Verdict Form.

1. Before you can make a recommendation of

death or life imprisonment without parole, each

and every one of you must be convinced beyond a

reasonable doubt, based on the evidence, that at

least one aggravating circumstance exists. If you

cannot agree that at least one aggravating

circumstance exists, you must return a verdict,

binding on this court, assessing the penalty as

life imprisonment without parole. However, if you

unanimously find at least one aggravating

circumstance to exist beyond a reasonable doubt,

you should then proceed to make a recommendation

of death or life imprisonment without parole.

2. Therefore, before you proceed to determine

the defendant's sentence, you must answer the

following [question] [questions]: [Provide the

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jury with a special verdict form, an example of

which is provided below, for each of the proffered

aggravating circumstances.]

Do you unanimously agree that

the State of Alabama has proven

beyond a reasonable doubt that the

capital offense was [especially

heinous, atrocious, or cruel

compared to other offenses]?

Yes No

______________________

Signature of foreperson

If you answer [this question] [at least one of

these questions] yes, you should then proceed to

make a sentence recommendation of death or life

imprisonment without eligibility for parole. If

you answer [this question] [all of these

questions] no, you must make a sentence

recommendation of life imprisonment without

parole.

IV. MAKING A SENTENCING RECOMMENDATION

A. In determining punishment, you must avoid any

influence of passion, prejudice, or any other arbitrary

factor. Your deliberation and verdict should be based

upon the evidence and testimony you have seen and heard

and the law on which I have instructed you.

B. The process of weighing the aggravating

circumstances and the mitigating circumstances against

each other in order to determine the proper punishment

is not a mathematical process. In other words, you

should not merely total the number of aggravating

circumstances and compare that number to the total

number of mitigating circumstances.

C. The law of this State recognizes that it is

possible, in at least some situations, that one or a

few aggravating circumstances might outweigh a larger

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number of mitigating circumstances. The law of this

State also recognizes that it is possible, in at least

some situations, that a large number of aggravating

circumstances might not outweigh one or a few

mitigating circumstances. In other words, the law

contemplates that different circumstances may be given

different weights or values in determining the sentence

in a case, and you, the jury, are to decide what weight

or value is to be given to a particular circumstance in

determining the sentence in light of all the other

circumstances in this case. You must do that in the

process of weighing the aggravating circumstances

against the mitigating circumstances.

D. In order to bring back a verdict recommending

the punishment of death, at least 10 of your number

must vote for death. In other words, a verdict of

death must be: unanimous; or 11 for death and 1 for

life imprisonment without parole; or 10 for death and 2

for life imprisonment without parole. Any number less

than 10 cannot recommend the death penalty.

E. In order to bring back a verdict recommending

a sentence of life imprisonment without parole, at

least seven jurors must vote to impose that sentence.

In other words, in order for a verdict to be returned

recommending imprisonment for life without parole it

must be: unanimous; or 11 for life imprisonment without

parole and 1 for death; or 10 for life imprisonment

without parole and 2 for death; or 9 for life

imprisonment without parole and 3 for death; or 8 for

life imprisonment without parole and 4 for death; or 7

for life imprisonment without parole and 5 for death.

Any number less than 7 cannot recommend life

imprisonment without parole. The trial judge is

required to treat the jury's recommendation of a

sentence of life imprisonment without parole as a

mitigating circumstance.

F. In addition to the recommendation of either

death or life imprisonment without parole, your verdict

form must contain the numerical vote, not who voted in

which way, but the actual count.

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G. Now, ladies and gentlemen, if after a full and

fair consideration of all the evidence in this case you

are convinced beyond a reasonable doubt that at least

one aggravating circumstance does exist and you are

convinced that the aggravating [circumstance outweighs]

[circumstances outweigh] the mitigating [circumstance]

[circumstances], your verdict would be:

We, the jury, recommend that the

defendant, [insert name of defendant], be

sentenced to death. The vote is as

follows:

___ Death ___ Life imprisonment without parole

______________________

Signature of foreperson

H. However, if after a full and fair

consideration of all the evidence, you are not

convinced beyond a reasonable doubt that at least one

aggravating circumstance exists, or that the

aggravating [circumstance does] [circumstances do] not

outweigh the mitigating [circumstance] [circumstances],

your verdict would be:

We, the jury, recommend that the

defendant, [insert name of defendant], be

punished by life imprisonment without

parole. The vote is as follows:

Death Life imprisonment without parole

______________________

Signature of foreperson

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APPENDIX A

Capital Offenses Containing an

Aggravating Circumstance

Established by the Guilt-Phase Verdict

15

Ala. Code 1975, §§ 13A-5-40(a)(1), 13A-5-49(4), and 13A-5-50

MURDER DURING KIDNAPPING IN THE FIRST DEGREE

(OR ATTEMPT THEREOF) –-

NECESSARY AGGRAVATING CIRCUMSTANCES

The defendant has been convicted of capital murder.

Namely, murder during a kidnapping in the first degree (or

an attempt thereof).

This offense necessarily includes as an element the

following aggravating circumstance as provided by the law of

this State:

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 a kidnapping.

By law, [your verdict in the guilt phase] [the verdict

reached by the jury that participated in the guilt phase]

finding the defendant guilty of this capital offense

established the existence of this aggravating circumstance

beyond a reasonable doubt. This aggravating circumstance is

included in the list of enumerated statutory aggravating

circumstances permitting you to consider death as an

available punishment. This aggravating circumstance,

therefore, shall be considered by you in deciding whether to

recommend a sentence of life imprisonment without

eligibility for parole or death.

16

Ala. Code 1975, §§ 13A-5-40(a)(2), 13A-5-49(4),

and 13A-5-50

MURDER DURING ROBBERY IN THE FIRST DEGREE

(OR ATTEMPT THEREOF) –-

NECESSARY AGGRAVATING CIRCUMSTANCES

The defendant has been convicted of capital murder.

Namely, murder during a robbery in the first degree (or an

attempt thereof).

This offense necessarily includes as an element the

following aggravating circumstance as provided by the law of

this State:

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 a robbery.

By law, [your verdict in the guilt phase] [the verdict

reached by the jury that participated in the guilt phase]

finding the defendant guilty of this capital offense

established the existence of this aggravating circumstance

beyond a reasonable doubt. This aggravating circumstance is

included in the list of enumerated statutory aggravating

circumstances permitting you to consider death as an

available punishment. This aggravating circumstance,

therefore, shall be considered by you in deciding whether to

recommend a sentence of life imprisonment without

eligibility for parole or death.

17

Ala. Code 1975, §§ 13A-5-40(a)(3), 13A-5-49(4),

and 13A-5-50

MURDER DURING RAPE IN THE FIRST OR SECOND DEGREE

(OR ATTEMPT THEREOF) –-

NECESSARY AGGRAVATING CIRCUMSTANCES

The defendant has been convicted of capital murder.

Namely, murder during a rape in the first or second degree

(or an attempt thereof).

This offense necessarily includes as an element the

following aggravating circumstance as provided by the law of

this State:

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 a rape.

By law, [your verdict in the guilt phase] [the verdict

reached by the jury that participated in the guilt phase]

finding the defendant guilty of this capital offense

established the existence of this aggravating circumstance

beyond a reasonable doubt. This aggravating circumstance is

included in the list of enumerated statutory aggravating

circumstances permitting you to consider death as an

available punishment. This aggravating circumstance,

therefore, shall be considered by you in deciding whether to

recommend a sentence of life imprisonment without

eligibility for parole or death.

18

Ala. Code 1975, §§ 13A-5-40(a)(4), 13A-5-49(4),

and 13A-5-50

MURDER DURING BURGLARY IN THE FIRST OR SECOND DEGREE

(OR ATTEMPT THEREOF) –-

NECESSARY AGGRAVATING CIRCUMSTANCES

The defendant has been convicted of capital murder.

Namely, murder during a burglary in the first or second

degree (or an attempt thereof).

This offense necessarily includes as an element the

following aggravating circumstance as provided by the law of

this State:

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 a burglary.

By law, [your verdict in the guilt phase] [the verdict

reached by the jury that participated in the guilt phase]

finding the defendant guilty of this capital offense

established the existence of this aggravating circumstance

beyond a reasonable doubt. This aggravating circumstance is

included in the list of enumerated statutory aggravating

circumstances permitting you to consider death as an

available punishment. This aggravating circumstance,

therefore, shall be considered by you in deciding whether to

recommend a sentence of life imprisonment without

eligibility for parole or death.

19

Ala. Code §§ 13A-5-40(a)(6), 13A-5-49(1),

and 13A-5-50

MURDER COMMITTED WHILE UNDER SENTENCE

OF LIFE IMPRISONMENT -–

NECESSARY AGGRAVATING CIRCUMSTANCES

The defendant has been convicted of capital murder.

Namely, murder committed while the defendant was under a

sentence of life imprisonment.

This offense necessarily includes as an element the

following aggravating circumstance as provided by the law of

this State:

The capital offense was committed by a person under

sentence of imprisonment.

By law, [your verdict in the guilt phase] [the verdict

reached by the jury that participated in the guilt phase]

finding the defendant guilty of this capital offense

established the existence of this aggravating circumstance

beyond a reasonable doubt. This aggravating circumstance is

included in the list of enumerated statutory aggravating

circumstances permitting you to consider death as an

available punishment. This aggravating circumstance,

therefore, shall be considered by you in deciding whether to

recommend a sentence of life imprisonment without

eligibility for parole or death.