Ala. Pattern Jury Instr. (Criminal) 13A-5-40(A)(1)IB

MURDER DURING KIDNAPPING IN THE FIRST DEGREE

(Or Attempt Thereof)*

(Use of Victim as a Shield or Hostage)

The defendant is charged with capital murder. The law states that an

intentional murder committed during a kidnapping in the first degree is capital

murder.

A person commits an intentional murder if he/she causes the death of

another person and , in performing the act or acts that cause the death of that

person, he/she intends to kill that person (or another person).

A person commits a kidnapping in the first degree if he/she abducts another

person with intent to use him/her as a shield or hostage. [13A-6-43(2)]

To convict, the State must prove beyond a reasonable doubt each of the

following elements of an intentional murder during a kidnapping in the first degree:

(1) That (name of the deceased) is dead;

(2) That the defendant (name of the defendant) caused the death of

(name of deceased) by (state the alleged act, e.g., shooting) him/her;

(3) That in committing the act(s) that caused the death of (name of

deceased) the defendant intended to kill the deceased or another

person;

(4) That the defendant (name of the defendant) abducted (name of victim);

(5) That the defendant intended to use (name of victim) as a shield or

hostage; (AND)

(6) That the murder took place during the kidnapping.

Abduct means to restrain a person with intent to prevent his/her liberation

by (either): [Read as appropriate]

(1) Secreting or holding him/her in a place where he/she is not likely to be

found;

(OR)

(2) Using or threatening to use deadly physical force. [13A-6-40(2)]

Restrain means to intentionally or knowingly restrict a person's movements

unlawfully and without consent, so as to interfere substantially with his/her liberty

by: [Read as appropriate]

(1) Moving him/her from one place to another;

(OR)

(2) Confining him/her: [Read as appropriate]

(a) In the place where the restriction commences;

(OR)

(b) In a place to which he/she has been moved.

Restraint is without consent if it is accomplished by: [Read as appropriate]

(1) Physical force, intimidation, or deception;

(OR)

(2) Any means, including acquiescence of the victim, if he/she is: [Read

as appropriate]

(a) A child less than 16 years old;

(OR)

(b) An incompetent person;

(AND) The parent, guardian, or other person or institution having lawful control or

custody of him/her has not acquiesced in the movement or confinement. [13A -6-

40(1)]

[Read as appropriate] Deadly physical force means physical force that,

under the circumstances in which it is used, is readily capable of causing death or

serious physical injury. [13A-1-2(6)]

[Read as appropriate] Serious physical injury is physical injury that creates

a substantial risk of death or that causes serious and protracted disfigurement,

protracted impairment of health, or protracted loss or impairment of the function of

any bodily organ; or a penetrating gunshot wound inflicted by a firearm. [13A -1-

2(14)]

[Read as appropriate] Death, by definition, would constitute serious

physical injury. [See 13A-1-2(6) & 13A-1-2(14)]

[Read as appropriate] A firearm is a weapon from which a shot is

discharged by gunpowder. [13A-8-1(5)]

During means in the course of the commission of or in connection with (or

in immediate flight from) the commission of the kidnapping. [13A-5-39(2)]

[Read as appropriate - Voluntary Release]** A person does not commit

kidnapping in the first degree if he/she voluntarily releases the victim alive, and not

suffering from serious physical injury, in a safe place prior to apprehension. [13A -

6-43(b)]

A person acts intentionally with respect to a result or to conduct described

by a statute defining an offense when his/her purpose is to cause that result or to

engage in that conduct. [13A-2-2(1)]

A person acts intentionally when it is his/her purpose to cause the death of

another person. The intent to kill must be real and specific.

A person acts knowingly with respect to conduct or to a circumstance

described by a statute defining an offense when he/she is aware that his/her

conduct is of that nature or that the circumstance exists. [13A-2-2(2)]

If you find from the evidence that the State has proved beyond a reasonable

doubt each of the above elements of the offense of intentional murder during a

kidnapping in the first degree, as charged, then you shall find the defendant guilty

of capital murder.

If you find that the State has failed to prove beyond a reasonable doubt any

one or more of the elements of the offense of intentional murder during a

kidnapping in the first degree, then you cannot find the defendant guilty of capital

murder.

(If lesser-included offenses are included, the court should instruct on

those offenses at this point.)