Ill. Pattern Jury Instr. (Criminal) 27.04B

But Mentally Ill Verdict--(Defendant Is Thomas Swanson)

[1.01]

Members of the jury, the evidence and arguments in this case have been completed, and I now

will instruct you as to the law.

The law that applies to this case is stated in these instructions, and it is your duty to

follow all of them. You must not single out certain instructions and disregard others.

It is your duty to determine the facts and to determine them only from the evidence in this

case. You are to apply the law to the facts and in this way decide the case.

Neither sympathy nor prejudice should influence you.

From time to time it has been the duty of the court to rule on the admissibility of

evidence. You should not concern yourselves with the reasons for these rulings. You should

disregard questions and exhibits which were withdrawn or to which objections were sustained.

Any evidence that was received for a limited purpose should not be considered by you for

any other purpose.

You should disregard testimony and exhibits which the court has refused or stricken.

The evidence which you should consider consists only of the testimony of the witnesses

and the exhibits which the court has received.

You should consider all the evidence in the light of your own observations and

experience in life.

Neither by these instructions nor by any ruling or remark which I have made do I mean to

indicate any opinion as to the facts or as to what your verdict should be.

Faithful performance by you of your duties as jurors is vital to the administration of

justice.

[1.02]

Only you are the judges of the believability of the witnesses and of the weight to be given

to the testimony of each of them. In considering the testimony of any witness, you may take into

account his ability and opportunity to observe, his memory, his manner while testifying, any

interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in

the light of all the evidence in the case.

You should judge the testimony of the defendant in the same manner as you judge the

testimony of any other witness.

[1.03]

Opening statements are made by the attorneys to acquaint you with the facts they expect to

prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the

case and should be confined to the evidence and to reasonable inferences to be drawn from the

evidence. Neither opening statements nor closing arguments are evidence, and any statement or

argument made by the attorneys which is not based on the evidence should be disregarded.

[2.01G]

The defendant is charged with the offense of first degree murder. The defendant has

pleaded not guilty. Under the law, a person charged with first degree murder may be found (1)

not guilty; or (2) not guilty by reason of insanity of first degree murder; or (3) guilty of first

degree murder; or (4) guilty but mentally ill of first degree murder; or (5) not guilty by reason of

insanity of second degree murder; or (6) guilty of second degree murder; or (7) guilty but

mentally ill of second degree murder.

[2.02]

The charge against the defendant in this case is contained in a document called the information.

This document is the formal method of charging the defendant and placing the defendant on trial.

It is not any evidence against the defendant.

[2.03A]

The defendant is presumed to be innocent of the charge against him of first degree

murder. This presumption remains with him throughout every stage of the trial and during your

deliberations on the verdict and is not overcome unless from all the evidence in this case you are

convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving that the defendant is guilty of first degree murder,

and this burden remains on the State throughout the case. The defendant is not required to prove

his innocence.

If the State proves beyond a reasonable doubt that the defendant is guilty of first degree

murder, the defendant then has the burden of proving by a preponderance of the evidence that a

mitigating factor is present so that he is guilty of the lesser offense of second degree murder, and

not guilty of first degree murder. In deciding whether a mitigating factor is present, you should

consider all of the evidence bearing on this question. The defendant is not required to present any

evidence in order to establish the existence of a mitigating factor.

[2.03B]

The defense of insanity has been presented during the trial. The burden of proof is on the

defendant to prove by clear and convincing evidence that the defendant is not guilty by reason of

insanity. However, the burden remains on the State to prove beyond a reasonable doubt each of

the elements of the offense charged. You may not consider whether the defendant has met his

burden of proving that he is not guilty by reason of insanity until and unless it has first been

determined that the State has proved the defendant guilty beyond a reasonable doubt of the

offense with which he is charged.

[2.04]

The fact that the defendant did not testify must not be considered by you in any way in

arriving at your verdict.

[7.01]

A person commits the offense of first degree murder when he kills an individual without

lawful justification if, in performing the acts which cause the death,

he intends to kill or do great bodily harm to that individual;

or

he knows that such acts will cause death to that individual;

or

he knows that such acts create a strong probability of death or great bodily harm to that

individual.

[7.03]

A mitigating factor exists so as to reduce the offense of first degree murder to the lesser offense

of second degree murder if, at the time of the killing, the defendant acts under a sudden and

intense passion resulting from serious provocation by the deceased. Serious provocation is

conduct sufficient to excite an intense passion in a reasonable person.

[24-25.01] A person is insane and not criminally responsible for his conduct if at the time of

the conduct, as a result of mental disease or mental defect, he lacks substantial capacity to

appreciate the criminality of his conduct.

[4.18] The phrase “preponderance of the evidence” means whether, considering all the evidence

in the case, the proposition on which the defendant has the burden of proof is more probably true

than not true.

[24-25.01B] A person may be found guilty but mentally ill and is not relieved of criminal

responsibility for his conduct if at the time of the commission of the offense he was not insane

but was suffering from a mental illness.

[24-25.01C] A person is mentally ill if, at the time of the commission of the offense, he was

afflicted by a substantial disorder of thought, mood, or behavior which impaired his judgment,

but not to the extent that he was unable to appreciate the wrongfulness of his behavior.

[7.04/24-25.01F] To sustain either the charge of first degree murder or the charge of second

degree murder, the State must prove the following propositions:

First Proposition: That the defendant performed the acts which caused the death of

Henry Carter; and

Second Proposition: That when the defendant did so,

he intended to kill or do great bodily harm to Henry Carter;

or he knew that such acts would cause death to Henry Carter;

or he knew that such acts created a strong probability of death or great bodily harm to Henry

Carter.

If you find from your consideration of all the evidence that any one of these propositions

has not been proved beyond a reasonable doubt, you should find the defendant not guilty, your

deliberations should end, and you should return a verdict of not guilty.

If you find from your consideration of all the evidence that each one of these propositions

has been proved beyond a reasonable doubt, then you should go on with your deliberations to

decide whether a mitigating factor has been proved so that the defendant is guilty of the lesser

offense of second degree murder instead of first degree murder.

You may not consider whether the defendant is guilty of the lesser offense of second

degree murder until and unless you have first determined that the State has proved beyond a

reasonable doubt each of the previously stated propositions.

The defendant has the burden of proving by a preponderance of the evidence that a

mitigating factor is present so that he is guilty of the lesser offense of second degree murder

instead of first degree murder. By this I mean that you must be persuaded, considering all the

evidence in this case, that it is more probably true than not true that the following mitigating

factor is present: that the defendant, at the time he performed the acts which caused the death of

Henry Carter, acted under a sudden and intense passion resulting from serious provocation by the

deceased.

If you find from your consideration of all the evidence that the defendant has proved by a

preponderance of the evidence that this mitigating factor is present, then you should go on with

your deliberations to decide whether the defendant has proved by a preponderance of the

evidence that he is not guilty by reason of insanity on the charge of second degree murder.

If you find from your consideration of all the evidence that the defendant has not proved

by a preponderance of the evidence that this mitigating factor is present, then you should go on

with your deliberations to decide whether the defendant has proved by clear and convincing

evidence that he is not guilty by reason of insanity on the charge of first degree murder.

You may not consider whether the defendant has met his burden of proving that he is not

guilty by reason of insanity on either the charge of first degree murder or the charge of second

degree murder until and unless you have first determined that the State has proved beyond a

reasonable doubt each of the previously stated propositions.

If you find from your consideration of all the evidence that the defendant has proved by

clear and convincing evidence that he is not guilty by reason of insanity, then you should find the

defendant not guilty by reason of insanity of whichever murder charge, either first degree murder

or second degree murder, that you found earlier to apply, your deliberations should end, and you

should return a verdict of not guilty by reason of insanity on that murder charge.

If you find from your consideration of all the evidence that the defendant has not proved

by clear and convincing evidence that he is not guilty by reason of insanity of first degree murder

or second degree murder, then you should continue your deliberations to determine whether the

defendant is guilty but mentally ill on that murder charge.

A special verdict of guilty but mentally ill may be returned by you instead of a general

verdict of guilty if you find each of the following circumstances to be present in this case:

First: That the State has proved beyond a reasonable doubt each of the previously stated

propositions necessary to sustain either the charge of first degree murder or the charge of second

degree murder; and

Second: That the defendant has not proved by clear and convincing evidence that he was

insane at the time he committed whichever murder you found earlier to be applicable; and

Third: That the defendant has proved by a preponderance of the evidence that he was

mentally ill at the time he committed that murder.

If you find from your consideration of all the evidence that each one of these

circumstances concerning the guilty but mentally ill verdict is present, you may return the special

verdict finding the defendant guilty but mentally ill of the murder charge that you found earlier

to be applicable.

If you find from your consideration of all the evidence that the State has proved beyond a

reasonable doubt each of the previously stated propositions necessary to sustain either the charge

of first degree murder or the charge of second degree murder and if you find that either the

second or third circumstance concerning the guilty but mentally ill verdict is not present, you

should return the general verdict finding the defendant guilty of the murder charge that you

found earlier to be applicable.

[26.01G] When you retire to the jury room you first will elect one of your members as your

foreperson. He or she will preside during your deliberations on your verdict.

Your agreement on a verdict must be unanimous. Your verdict must be in writing and

signed by all of you, including your foreperson.

The defendant is charged with the offense of first degree murder. Under the law, a person

charged with first degree murder may be found (1) not guilty; or (2) not guilty by reason of

insanity of first degree murder; or (3) guilty of first degree murder; or (4) guilty but mentally ill

of first degree murder; or (5) not guilty by reason of insanity of second degree murder; or (6)

guilty of second degree murder; or (7) guilty but mentally ill of second degree murder.

Accordingly, you will be provided with seven verdict forms: “not guilty”, “not guilty by

reason of insanity of first degree murder”, “guilty of first degree murder”, “guilty but mentally ill

of first degree murder”, “not guilty by reason of insanity of second degree murder”, “guilty of

second degree murder”, and “guilty but mentally ill of second degree murder”.

From these seven verdict forms, you should select the one verdict form that reflects your

verdict and sign it as I have stated. Do not write on the other six verdict forms. Sign only one

verdict form.

[26.02] We, the jury, find the defendant Thomas Swanson not guilty.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

[26.03] We, the jury, find the defendant Thomas Swanson not guilty by reason of insanity

of first degree murder.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

[26.03] We, the jury, find the defendant Thomas Swanson not guilty by reason of insanity

of second degree murder.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

[26.05] We, the jury, find the defendant Thomas Swanson guilty of first degree murder.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

[26.05] We, the jury, find the defendant Thomas Swanson guilty of second degree

murder.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

[26.04] We, the jury, find the defendant Thomas Swanson guilty but mentally ill of first

degree murder.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

[26.04] We, the jury, find the defendant Thomas Swanson guilty but mentally ill of

second degree murder.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

NOTE: IF THE ALTERNATIVE, SINGLE PAGE, MULTIPLE VERDICT FORM IS USED,

SLIGHT REVISIONS MUST BE MADE TO THE CONCLUDING INSTRUCTIONS FROM

CHAPTER 26. READ THE “INTRODUCTION” TO THIS CHAPTER FOR DETAILS.

(Set 27.04B)

Alternative, Single Page, Multiple Verdict Form We, the jury, find the defendant:

1. ____ Thomas Swanson not guilty. [26.02]

2. ____ Thomas Swanson not guilty by reason of insanity of first degree murder. [26.03]

3. ____ Thomas Swanson not guilty by reason of insanity of second degree murder.

[26.03]

4. ____ Thomas Swanson guilty of first degree murder. [26.05]

5. ____ Thomas Swanson guilty of second degree murder. [26.05]

6. ____ Thomas Swanson guilty but mentally ill of first degree murder. [26.04]

7. ____ Thomas Swanson guilty but mentally ill of second degree murder. [26.04]

Indicate your unanimous verdict by checking only one of the choices above.

_____________________________

Foreperson

_____________________________

[Lines for eleven other jurors]

Set 27.05

Included within Set 27.05: