N.C.P.I.—Crim. 150.10

NOTE WELL: This instruction and the verdict form

which follows include changes required by Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140

(1982), Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689,

88 L.Ed.2d 704 (1986) and Tison v. Arizona, 481 U.S.

137 (1987), which held that the death penalty may not

constitutionally be adjudged against a defendant

convicted of first degree felony murder, if that

defendant personally did not kill or attempt to kill, or

intend to kill the victim or intend that deadly force

would be used in the course of the felony, or was a

major participant in the underlying felony and exhibited

reckless indifference to human life. The designation of

the first issue as One-A has been made to simplify the

numbers of the remaining issues. Also included are the

changes required by McKoy v. North Carolina, 494 U.S.

433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

Members of the Jury, [having found the defendant guilty of] [the

defendant having pled guilty to]1 murder in the first degree [and the

defendant having been determined by you not to have an intellectual

disability], it is now your duty to recommend to the Court whether the

defendant should be sentenced to death or to life imprisonment [(without

parole.) (A sentence of life imprisonment means a sentence of life

without parole.)2 Your recommendation will be binding upon the Court. If

you unanimously recommend that the defendant be sentenced to death,

the Court will impose a sentence of death. If you unanimously

recommend a sentence of life imprisonment, the Court will impose a

sentence of life imprisonment.3

All of the evidence relevant to your recommendation has been

presented. (There is no requirement to resubmit, during the sentencing

proceeding, any evidence which was submitted during the guilt phase of

this case. All of the evidence which you hear in both phases of the case

is competent for your consideration in recommending punishment,)4

(including evidence of intellectual disability of the defendant; that is, you

may consider any evidence of intellectual disability when determining

aggravating and mitigating circumstances and your sentence

recommendation).5

It is now your duty to decide, from all the evidence presented (in

both phases),6 what the facts are. You must then apply the law which I

am about to give you concerning punishment to those facts. It is

absolutely necessary that you understand and apply the law as I give it

to you, and not as you think it is, or might like it to be. This is important,

because justice requires that everyone who is sentenced for first degree

murder have the sentence recommendation determined in the same

manner, and have the same law applied to him or her.

You are the sole judges of the credibility of each witness. You must

decide for yourselves whether to believe the testimony of any witness.

You may believe all, or any part, or none of what a witness has said on

the stand.

In determining whether to believe any witness, you should apply

the same tests of truthfulness which you apply in your everyday affairs.

As applied to this trial, these tests may include: the opportunity of the

witness to see, hear, know or remember the facts or occurrences about

which the witness testified; the manner and appearance of the witness;

any interest, bias, or prejudice the witness may have; the apparent

understanding and fairness of the witness, whether the witness’s

testimony is reasonable; and whether the witness’s testimony is

consistent with other believable evidence in the case.

You are the sole judges of the weight to be given any evidence. By

this I mean, if you decide that certain evidence is believable you must

then determine the importance of that evidence in light of all other

believable evidence in the case.

NOTE WELL: If there is no evidence that any person(s)

other than defendant participated in the killing, the

Enmund case does not apply, and the first element of

proof set out below should not be given. If there is

evidence that defendant may not have been involved in

the killing (except for the fact that he was guilty of the

underlying felony) the first element of proof should be

included.

For you to recommend that the defendant be sentenced to death,

the State must prove [three] [four] things beyond a reasonable doubt.7 A

reasonable doubt is a doubt based on reason and common sense, arising

out of some or all of the evidence that has been presented, or lack or

insufficiency of the evidence, as the case may be. Proof beyond a

reasonable doubt is proof that fully satisfies or entirely convinces you of

each of the following things:

[First,8 that the defendant himself/herself:

[a. Killed or attempted to kill the victim;] (or)

[b. Intended to kill the victim;] (or)

[c. Intended that deadly force would be used in the course of the

felony.] (or)

[d. Was a major participant in the underlying felony and exhibited

reckless indifference to human life.]]9

[First] [Second], that one or more aggravating circumstances

existed; [Second] [Third], that the mitigating circumstances are

insufficient to outweigh any aggravating circumstances you have found.10

And [Third] [Fourth], that any aggravating circumstances you have

found are sufficiently substantial to call for the imposition of the death

penalty when considered with any mitigating circumstances.

If you unanimously find all [three] [four] of these things beyond a

reasonable doubt, it would be your duty to recommend that the

defendant be sentenced to death.11 On the other hand, if you

unanimously find that one or more of these [three] [four] things has not

been proven beyond a reasonable doubt, it would be your duty to

recommend that the defendant be sentenced to life imprisonment.12

When you retire to deliberate your recommendation as to

punishment, you will take with you a form entitled, “Issues and

Recommendation as to Punishment.” This form contains a written list of

[four] [five] issues, [four of which relate] [relating] to aggravating and

mitigating circumstances. I will now take up these [four] [five] issues

with you in greater detail, one by one. To enable you to follow me more

easily, the bailiff will now give each of you a copy of the form entitled

“Issues and Recommendation as to Punishment,” which you will take with

you when you retire to deliberate. Do not read ahead on this form, but

refer to it as I instruct you on the law. Your answers to issues (One-A),

One, Three, and Four, either “yes” or “no,” must be unanimous.

NOTE WELL: At this point have the bailiff give a copy of

your “Issues and Recommendation as to Punishment”

form to each juror. In preparing this form for your case

use the pattern form in N.C.P.I.—Crim. 150.10 (App.) at

the end of this Pattern Instruction.

[Issue One-A is, “Do you unanimously find from the evidence,

beyond a reasonable doubt, that the defendant himself/herself:

[a. Killed or attempted to kill the victim;] (or) [b. Intended to kill

the victim;] (or)

[c. Intended that deadly force would be used in the course of the

underlying felony;] (or)

[d. Was a major participant in the underlying felony and exhibited

reckless indifference to human life.]]

If you find from the evidence beyond a reasonable doubt that the

defendant [killed or attempted to kill the victim] (or) [intended to kill the

victim] (or) [intended that deadly force would be used in the course of

the (name underlying felony),] (or) [was a major participant in the

underlying felony and exhibited a reckless indifference to human life], you

would answer Issue One-A “Yes.” If you unanimously find beyond a

reasonable doubt that none of these facts exist, you would answer Issue

One-A “No.” If you answer Issue One-A “No,” you would skip Issues One,

Two, Three, and Four and recommend that the defendant be sentenced to

life imprisonment. If you answer Issue One-A “Yes,” you would consider

Issue One.

Issue One is, “Do you unanimously find from the evidence, beyond

a reasonable doubt, the existence of one or more of the following

aggravating circumstances?” (State number) possible aggravating

circumstances are listed on the form, and you should consider each of

them before you answer Issue One.

The State must prove from the evidence beyond a reasonable doubt

the existence of any aggravating circumstance, and, before you may find

any aggravating circumstance, you must agree unanimously that it has

been so proven. An aggravating circumstance is a fact or group of facts

which tend to make a specific murder particularly deserving of the

maximum punishment prescribed by law. Our law identifies the

aggravating circumstances which might justify a sentence of death. Only

those circumstances identified by statute may be considered by you as

aggravating circumstances. Under the evidence in this case (state

number) possible aggravating circumstances may be considered.

The following are the aggravating circumstances which might be

applicable to this case.

NOTE WELL: The following pages contain 15 bracketed

options relating to the 11 aggravating circumstances

listed in N.C. Gen. Stat. § 15A-2000(e). The options are

numbered in the margin according to the subsection of

N.C. Gen. Stat. § 15A-2000(e) to which they relate.

Since some subsections support more than one option,

the options which derive from the same subsection are

lettered, e.g., “8A” and “8B.”

The judge should select from the following options,

only those aggravating circumstances which pertain to

the case at hand and then should then proceed with

the mandate.

In choosing the aggravating circumstances to submit

to the jury, the judge should keep the following

admonition in mind:

“In some cases the same evidence will support

inferences from which the jury might find that more

than one of the enumerated aggravating circumstances

is present. This duality will normally occur where the

defendant's motive is being examined rather than

where the state relies upon a specific factual element

of aggravation. In such cases it will be difficult for the

trial court to decide which factors should be presented

to the jury for their consideration. We believe that error

in cases in which a person's life is at stake, if there be

any, should be made in the defendant's favor, and that

the jury should not be instructed upon one of the

statutory circumstances in a doubtful case.” S. v.

Goodman, 298 N.C. 1, 30 (1979).

(1) [First, was the defendant lawfully incarcerated? A person is

lawfully incarcerated if that person is being held in custody pursuant to a

lawful order of a court or judicial officer. If you find from the evidence

beyond a reasonable doubt that when the defendant killed the victim, the

defendant was incarcerated and that this was pursuant to a judicial order,

you would find this aggravating circumstance, and would so indicate by

having your foreperson write, “Yes,” in the space after this aggravating

circumstance on the “Issues and Recommendation” form. If you do not so

find, or have a reasonable doubt as to one or more of these things, you

will not find this aggravating circumstance, and will so indicate by having

your foreperson write, “No,” in that space.]

(2) [(State ordinal number), had the defendant been previously

convicted of another capital felony?13 First degree murder is a capital

felony. A person has been previously convicted if the defendant has been

convicted and not merely charged, and if the defendant’s conviction is

based on conduct which occurred before the events out of which this

murder arose.14 If you find from the evidence beyond a reasonable doubt

that the defendant had been convicted of first degree murder, and that

the defendant killed the victim after the defendant committed that first

degree murder you would find this aggravating circumstance, and would

so indicate by having your foreperson write, “Yes,” in the space after this

aggravating circumstance on the “Issues and Recommendation” form. If

you do not so find, or have a reasonable doubt as to one or more of

these things, you will not find this aggravating circumstance, and will so

indicate by having your foreperson write, “No,” in that space.]

NOTE WELL: N.C. Gen. Stat. § 7B-3000(f) was amended

to allow a court to order that the juvenile records of

any juvenile, who is found delinquent for an offense

that would have been a class A-E felony if committed

by an adult, may be used in subsequent criminal

proceedings against that juvenile or to prove an

aggravating factor at the sentencing of that juvenile.

The prosecutor in a subsequent criminal proceeding

against the juvenile now has a right to examine the

juvenile's record without an order of the judge. The

juvenile's record may be used only by court order upon

the prosecutor's motion and after an in-camera hearing

on the record with the defendant present to determine

whether or not the record in question is admissible.

N.C. Gen. Stat. § 15A-2000(e) was amended to expand

the definition of prior conviction to include an

adjudication of delinquency for an offense that would

have been a class A-E felony if committed by an adult.

N.C. Gen. Stat. § 15A-2000(e) was amended to expand

the list of aggravating circumstances to include

previous adjudications of delinquency for an offense

that would have been a capital offense or a class A-E

felony involving use or threat of violence if committed

by an adult.

These amendments apply to offenses committed on or

after May 1, 1994.

(3) [(State ordinal number), had the defendant been previously

convicted of a felony involving the [use] [threat] of violence to the

person?15 [(Name felony, e.g., armed robbery) is by definition a felony

involving the [use] [threat] of violence to the person.]16 [A felony involves

the [use] [threat] of violence to the person if the perpetrator kills or

inflicts physical injury on the victim, or threatens to do so, in order to

accomplish his/her criminal act.]17 A person has been previously convicted

if that person has been convicted and not merely charged, and if that

person’s conviction is based on conduct which occurred before the events

out of which this murder arose.18 If you find from the evidence beyond a

reasonable doubt that the defendant had been convicted of (name felony)

(and that the defendant [used] [threatened to use] violence to the

person in order to accomplish the defendant’s criminal act) and that the

defendant killed the victim after the defendant committed (name felony),

you would find this aggravating circumstance, and would so indicate by

having your foreperson write, “Yes,” in the space after this aggravating

circumstance on the “Issues and Recommendation” form. If you do not so

find, or have a reasonable doubt as to one or more of these things, you

will not find this aggravating circumstance, and will so indicate by having

your foreperson write, “No,” in that space.]

(4A) [(State ordinal number), was this murder committed for the

purpose of [avoiding] [preventing] a lawful arrest?

NOTE WELL: “Before the trial judge can instruct the

jury on this aggravating circumstance, there must be

evidence from which the jury can infer that at least one

of the purposes motivating the killing was the

defendant's desire to avoid subsequent detection and

apprehension for his crime… The mere fact of a death is

not enough to invoke this factor.” S. v. Williams, 304

N.C. 394, 424-5 (1981); S. v. Goodman, 298 N.C. 1, 27

(1979). See also S. v. Hunt, 323 N.C. 407, 430-31

(1988); and S. v. Reese, 319 N.C. 110, 146 (1987).

“Proof of the requisite intent to avoid arrest and

detection must be very strong in these cases.” Id.

In cases where the murder was committed to hinder or

prevent an arrest, submit either aggravating

circumstance #7B, or this aggravating circumstance,

but DO NOT SUBMIT BOTH. S. v. Goodman, 298 N.C. 1,

29 (1979).

A murder is committed for such purpose if the defendant's purpose

at the time the defendant kills is, by that killing, to [avoid] [prevent] the

arrest of the defendant or some other person and that arrest [was]

[would have been] lawful.19 If you find from the evidence beyond a

reasonable doubt that when the defendant killed the victim, it was in fact

the defendant’s purpose to [avoid] [prevent] [defendant’s arrest] (or)

[the arrest of another person] and that such arrest [was] [would have

been] lawful, you would find this aggravating circumstance, and would so

indicate by having your foreperson write, “Yes,” in the space after this

aggravating circumstance on the “Issues and Recommendation” form. If

you do not so find, or have a reasonable doubt as to one or more of

these things, you will not find this aggravating circumstance, and will so

indicate by having your foreperson write, “No,” in that space.]

(4B) [(State ordinal number), was this murder committed for the

purpose of effecting an escape from custody? A murder is committed for

such purpose if the defendant's purpose at the time the defendant kills

is, by that killing, to effect the defendant’s or another person's escape

from custody. If you find from the evidence beyond a reasonable doubt

that when the defendant killed the victim, it was the defendant’s purpose

to effect [the defendant’s] [another person's] escape from custody, you

would find this aggravating circumstance, and would so indicate by having

your foreperson write, “Yes,” in the space after this aggravating

circumstance on the “Issues and Recommendation” form. If you do not so

find, or have a reasonable doubt as to one or more of these things, you

will not find this aggravating circumstance, and will so indicate by having

your foreperson write, “No,” in that space.]

(5A)20 [(State ordinal number), was this murder committed by the

defendant while the defendant was engaged in [the commission of] [an

attempt to commit] [a flight after [committing] [attempting to commit]]

(name felony)21?

NOTE WELL: Submit this aggravating circumstance only

when the defendant has been convicted of first-degree

murder under a theory of premeditation and

deliberation, or when the defendant has also

committed a separate violent felony in addition to the

felony underlying the felony murder conviction.22

(Define the felony, using the Pattern Instruction for

that felony, e.g., “Robbery is taking and carrying away

any personal property of another from a person or in

that person’s presence without that person’s consent,

by violence or by putting that person in fear, with the

intent to deprive that person of its use permanently,

the taker knowing that he/she is not entitled to take

it.”) If you find from the evidence beyond a reasonable

doubt that when the defendant killed the victim, the

defendant was (set out the findings necessary for the

felony, using the Mandate from the Pattern Instruction

for that felony), you would find this aggravating

circumstance, and would so indicate by having your

foreperson write, “Yes,” in the space after this

aggravating circumstance on the “Issues and

Recommendation” form. If you do not so find, or have a

reasonable doubt as to one or more of these things,

you will not find this aggravating circumstance, and

will so indicate by having your foreperson write, “No,”

in that space.]

(5B)23 [(State ordinal number), did the defendant kill the victim

while the defendant was an [aider] [abettor] in the [commission of]

[attempt to commit] [flight after committing] (name felony) by another

person)?24

NOTE WELL: Submit this aggravating circumstance only

when the defendant has been convicted of first-degree

murder under a theory of premeditation and

deliberation,25 or when the defendant has also

committed a separate violent felony in addition to the

felony underlying the felony murder conviction.

(Define the felony, using the Pattern Instruction for that felony,

e.g., “Robbery is taking and carrying away any personal property of

another from a person or in that person’s presence without that person’s

consent, by violence or by putting that person in fear, with the intent to

deprive that person of its use permanently, the taker knowing that

he/she is not entitled to take it.”) A person [aids] [abets] another to

commit a felony if the defendant [is present when the felony is

committed and intentionally advises, instigates, encourages or aids

another to commit it,] (or) [though not present when the felony is

committed, shares another's criminal purpose and to the other's

knowledge is aiding the person or is in a position to aid the person when

the felony is committed]. If you find from the evidence beyond a

reasonable doubt that when the defendant killed the victim, another

person was perpetrating (name felony), (describe elements of offense,)

and that defendant intentionally [aided] [abetted] another person in that

person’s [commission] [attempt to commit] [flight after committing]

(name felony), you would find this aggravating circumstance, and would

so indicate by having your foreperson write, “Yes,” in the space after this

aggravating circumstance on the “Issues and Recommendation” form. If

you do not so find, or have a reasonable doubt as to one or more of

these things, you will not find this aggravating circumstance, and will so

indicate by having your foreperson write, “No,” in that space.]

(6) [(State ordinal number), was this murder committed for

pecuniary gain? A murder is committed for pecuniary gain if the

defendant, when the defendant commits it, has obtained, or intends or

expects to obtain, money or some other thing which can be valued in

money, either as compensation for committing it, or as a result of the

death of the victim.26 If you find from the evidence beyond a reasonable

doubt that when the defendant killed the victim, the defendant (describe

pecuniary gain, e.g., had been hired to do so, took personal property or

other items belonging to the victim, etc.), and that the defendant

intended or expected to obtain money or other things of value that can

be valued in money as a result of the victim's death27 you would find this

aggravating circumstance, and would so indicate by having your

foreperson write, “Yes,” in the space after this aggravating circumstance

on the “Issues and Recommendation” form. If you do not so find, or have

a reasonable doubt as to one or more of these things, you will not find

this aggravating circumstance, and will so indicate by having your

foreperson write, “No,” in that space.]

(7A) [(State ordinal number), was this murder committed to

[disrupt] [hinder] the lawful exercise of a governmental function?

A murder is committed for such purpose if the defendant's purpose

at the time the defendant kills is, by that killing, to [disrupt] [hinder] the

exercise, by some branch or agency of government, of some lawful

function. If you find from the evidence beyond a reasonable doubt that

when the defendant killed the victim it was the defendant’s purpose to

[prevent] [hinder] a lawful governmental function you would find this

aggravating circumstance, and would so indicate by having your

foreperson write, “Yes,” in the space after this aggravating circumstance

on the “Issues and Recommendation” form. If you do not so find, or have

a reasonable doubt as to one or more of these things, you will not find

this aggravating circumstance, and will so indicate by having your

foreperson write, “No,” in that space.]

(7B) [(State ordinal number), was this murder committed to

[disrupt] [hinder] the enforcement of the laws?

NOTE WELL: In cases where the murder was committed

to hinder or prevent an arrest, submit either

aggravating circumstance #4A, or this aggravating

circumstance, but DO NOT SUBMIT BOTH. S. v.

Goodman, 298 N.C. 1, 29 (1979).

A murder is committed for such purpose if the defendant's purpose

at the time the defendant kills is, by that killing, to [disrupt] [hinder] the

enforcement of the laws in any way. The enforcement of the laws

includes any lawful activity28 by any agency of the government, to prevent

or deter persons from violating any law, to detect or investigate such

violations, or to apprehend or prosecute persons properly chargeable with

crime. If you find from the evidence beyond a reasonable doubt that when

the defendant killed the victim, it was the defendant’s purpose to

[disrupt] [hinder] the enforcement of the law(s) by a law enforcement

agency, you would find this aggravating circumstance, and would so

indicate by having your foreperson write, “Yes,” in the space after this

aggravating circumstance on the “Issues and Recommendation” form. If

you do not so find, or have a reasonable doubt as to one or more of

these things, you will not find this aggravating circumstance, and will so

indicate by having your foreperson write, “No,” in that space.]

(8A)29 [(State ordinal number), was this murder committed against a

(describe victim's position)30 while engaged in the performance of the

victim’s official duties? A murder is so committed if, at the time the

defendant kills the victim, the victim is (state victim's position) and is, at

that time, engaged in the performance of an official duty. An official duty

is anything which is necessary for a (state position) to do in the victim’s

capacity as a (state position). If you find from the evidence beyond a

reasonable doubt that when the defendant killed the victim, the victim

was a (state position) and at that time was engaged in an official duty

(and that this was among the victim’s official duties as a (state

position))31 you would find this aggravating circumstance, and would so

indicate by having your foreperson write, “Yes,” in the space after this

aggravating circumstance on the “Issues and Recommendation” form. If

you do not so find, or have a reasonable doubt as to one or more of

these things, you will not find this aggravating circumstance, and will so

indicate by having your foreperson write, “No,” in that space.]

(8B)32 [(State ordinal number), was this murder committed against a

(state victim's position 33) because of the exercise of the victim’s official

duty? A murder is so committed when the victim is a [former] (state

position), and at the time of the killing the victim [was planning to

exercise] [had exercised] one of the victim’s official duties, and the fact

that the victim [was to do] [had done] so constituted the defendant's

motive for killing the victim. An official duty is anything which is

necessary for a (state position) to do as a (state position). If you find

from the evidence beyond a reasonable doubt that when the defendant

killed the victim, the victim was a [former] (state position) and that on or

about the alleged date the victim [was planning to exercise] [had

exercised] an official duty necessary to the victim’s position and that this

constituted the motive for the defendant's killing the victim, you would

find this aggravating circumstance, and would so indicate by having your

foreperson write, “Yes,” in the space after this aggravating circumstance

on the “Issues and Recommendation” form. If you do not so find, or have

a reasonable doubt as to one or more of these things, you will not find

this aggravating circumstance, and will so indicate by having your

foreperson write, “No,” in that space.]

(9) [(State ordinal number), was this murder especially heinous,

atrocious or cruel?

NOTE WELL: While every murder is, at least arguably,

heinous, atrocious and cruel, this aggravating

circumstance is not intended to be submitted in every

case. There must be some evidence upon which the

jury could reasonably conclude that the brutality

involved in the murder in question exceeded that

normally present in any killing. S. v. Goodman, 298 N.C.

1, 24-25 (1979). In addition, this aggravating

circumstance is limited to acts done during the

commission of the murder but not after the death.

State v. Rose, 335 N.C. 301, at 343 (1994).

In this context heinous means extremely wicked or shockingly evil;

atrocious means outrageously wicked and vile; and cruel means designed

to inflict a high degree of pain with utter indifference to, or even

enjoyment of, the suffering of others. However it is not enough that this

murder be heinous, atrocious or cruel as those terms have just been

defined. This murder must have been especially heinous, atrocious or

cruel, and not every murder is especially so.34 For this murder to have

been especially heinous, atrocious or cruel, any brutality which was

involved in it must have exceeded that which is normally present in any

killing, or this murder must have been a conscienceless or pitiless crime

which was unnecessarily torturous to the victim.35 If you find from the

evidence beyond a reasonable doubt that this murder was especially

heinous, atrocious or cruel, you would find this aggravating circumstance,

and would so indicate by having your foreperson write, “Yes,” in the space

after this aggravating circumstance on the “Issues and Recommendation”

form. If you do not so find, or have a reasonable doubt as to one or more

of these things, you will not find this aggravating circumstance, and will

so indicate by having your foreperson write, “No,” in that space.]

(10) [(State ordinal number), did the defendant knowingly create a

great risk of death to more than one person by means of a [weapon]

[device] which would normally be hazardous to the lives of more than one

person?36 A defendant does so, if, at the time the defendant kills, the

defendant is using a [weapon] [device] and the [weapon] [device] would

normally be hazardous to the lives of more than one person, and the

defendant uses it in such a way as to create a risk of death to more than

one person and the risk is great and the defendant knows that the

defendant is thereby creating such a great risk. If you find from the

evidence beyond a reasonable doubt that when the defendant killed the

victim, the defendant was using a [weapon] [device] and that this

[weapon] [device] would normally be hazardous to the lives of more than

one person and that the defendant used the [weapon] [device] and

thereby created a risk of death to more than one person and that the risk

was great and that the defendant knew that the defendant was thereby

creating such a great risk, you would find this aggravating circumstance

and would so indicate by having your foreperson write, “Yes,” in the space

after this aggravating circumstance on the “Issues and Recommendation”

form. If you do not so find, or have a reasonable doubt as to one or more

of these things, you will not find this aggravating circumstance, and will

so indicate by having your foreperson write, “No,” in that space.]

(11) [Finally, was this murder part of a course of conduct in which

the defendant engaged and did that course of conduct include the

commission by the defendant of other crimes of violence against another

person or persons?37 A murder is part of such a course of conduct if you

find from the evidence beyond a reasonable doubt that, in addition to

killing the victim, the defendant on or about the alleged date was

engaged in a course of conduct which involved the commission of another

crime of violence against another person38 and that [this] [these] other

crime(s) were included in the same course of conduct in which the killing

of the victim was also a part,39 you would find this aggravating

circumstance and would so indicate by having your foreperson write,

“Yes,” in the space after this aggravating circumstance on the “Issues

and Recommendation” form. If you do not find, or have a reasonable

doubt as to one or more of these things, you will not find this

aggravating circumstance, and will so indicate by having your foreperson

write, “No,” in that space.]

(You are instructed that the same evidence cannot be used as a

basis for finding more than one aggravating factor.40)

NOTE WELL: This ends the aggravating circumstances.

The judge should, in all cases, resume the instruction

at this point.

If you unanimously find from the evidence beyond a reasonable

doubt that one or more of these aggravating circumstances existed, and

have so indicated by writing, “Yes,” in the space after one or more of

them on the “Issues and Recommendation” form, you would answer Issue

One, “Yes.” On the other hand, if you unanimously find from the evidence

that none of the aggravating circumstances existed, and if you have so

indicated by writing, “No,” in the space after every one of them on that

form, you would answer Issue One, “No.41“ If you answer Issue One, “No,”

you would skip Issues Two, Three and Four and you must recommend that

the defendant be sentenced to life imprisonment. If you answer Issue

One, “Yes,” then you would consider Issue Two.

Issue Two is, “Do you find from the evidence the existence of one or

more of the following mitigating circumstances?42“ (State number)

possible mitigating circumstances are listed on the form, and you should

consider each of them before answering Issue Two.

A mitigating circumstance is a fact or group of facts, which do not

constitute a justification or excuse for a killing, or reduce it to a lesser

degree of crime than first degree murder, but which may be considered as

extenuating or reducing the moral culpability of the killing or making it

less deserving of extreme punishment than other first degree murders.

Our law identifies several possible mitigating circumstances. However, in

considering Issue Two, it would be your duty to consider, as a mitigating

circumstance, any (aspect of the defendant's character) (or) (record) (or)

(evidence of intellectual disability)43 (and any) of the circumstances of

this murder that the defendant contends is a basis for a sentence less

than death, and any other circumstances arising from the evidence which

you deem to have mitigating value.

The defendant has the burden of persuading you that a given

mitigating circumstance exists. The existence of any mitigating

circumstance must be established by a preponderance of the evidence,

that is, the evidence, taken as a whole must satisfy you—not beyond a

reasonable doubt, but simply satisfy you—that any mitigating

circumstance exists. If the evidence satisfies any of you that a mitigating

circumstance exists, you would indicate that finding on the “Issues and

Recommendation” form. A juror may find that any mitigating circumstance

exists by a preponderance of the evidence whether or not that

circumstance was found to exist by all the jurors. In any event you would

move on to consider the other mitigating circumstances and continue in

like manner until you have considered all of the mitigating circumstances

listed on the form and any others which you deem to have mitigating

value.

It is your duty to consider the following mitigating circumstances

and any others which you find from the evidence.

NOTE WELL: The following pages contain 12 bracketed

options relating to the mitigating circumstances listed

in N.C. Gen. Stat. § 15A-2000(f). The options are

numbered in the margin according to the subsection of

N.C. Gen. Stat. § 15A-2000(f) to which they relate.

Since some subsections support more than one option,

the options which derive from the same subsection are

lettered, e.g., “3A” and “3B”.

The judge should select from the following options all

those which pertain to the case at hand. The Judge

should then proceed with this Pattern Instruction to

(9). Read the NOTE WELL preceding (9) carefully.

“Where all of the evidence, if believed, tends to show

that a particular mitigating circumstance does exist,

the defendant is entitled to a peremptory instruction.”

S. v. Spruill, 320 N.C. 688 (1987) and S. v. Johnson,

298 N.C. 47, 76 (1979).

(1) [First, consider whether the defendant has no significant history

of prior criminal activity before the date of the murder.44 Significant

means important or notable. Whether any history of prior criminal activity

is significant is for you to determine from all of the facts and

circumstances which you find from the evidence. However you should not

determine whether it is significant only on the basis of the number of

convictions, if any, in the defendant's record. Rather you should consider

the nature and quality of the defendant's history, if any, in determining

whether it is significant.

You would find this mitigating circumstance if you find that

(describe all defendant's prior criminal activity45) and that this is not a

significant history of prior criminal activity. If one or more of you finds by

a preponderance of the evidence that this circumstance exists, you would

so indicate by having your foreperson write, “Yes,” in the space provided

after this mitigating circumstance on the “Issues and Recommendation”

form. If none of you finds this circumstance to exist, you would so

indicate by having your foreperson write, “No,” in that space.]

(2) [(State ordinal number), consider whether this murder was

committed while the defendant was under the influence of mental or

emotional disturbance. A defendant is under such influence if the

defendant is in any way affected or influenced by a mental or emotional

disturbance at the time the defendant kills.

NOTE WELL: Note the relationship between this

mitigating circumstance and the sixth mitigating

circumstance, especially where there is evidence

concerning the defendant's mental health. Often such

evidence might support either or both of these

mitigating circumstances, and if both are supported,

both should be submitted.46

The main difference between the two circumstances is

that this mitigating circumstance seems conceptually

related to the “heat of passion” defense, while the

sixth mitigating circumstance is related to the insanity

defense. To emphasize this distinction in an

appropriate case, give the following paragraph.47

(Being under the influence of mental or emotional disturbance is

similar to but not the same as being in a heat of passion upon adequate

provocation. A person may be under the influence of mental or emotional

disturbance even if that person had no adequate provocation and even if

that person’s disturbance was not so strong as to constitute heat of

passion or preclude deliberation. For this mitigating circumstance to

exist, it is enough that the defendant's mind or emotions were disturbed,

from any cause, and that the defendant was under the influence of the

disturbance when the defendant killed the victim.)

You would find this mitigating circumstance if you find (describe

source of disturbance, e.g., that the defendant suffered from

schizophrenia; or, e.g., that the victim had evicted the defendant from

his apartment and this had enraged the defendant) and that, as a result,

the defendant was under the influence of [mental] [emotional]

disturbance when the defendant killed the victim. If one or more of you

finds by a preponderance of the evidence that this circumstance exists,

you would so indicate by having your foreperson write, “Yes,” in the space

provided after this mitigating circumstance on the “Issues and

Recommendation” form. If none of you finds this circumstance to exist,

you would so indicate by having your foreperson write, “No,” in that

space.]

(3A) [(State ordinal number), consider whether the victim was a

voluntary participant in the defendant's homicidal conduct. A victim is a

voluntary participant in the defendant's homicidal conduct if the victim

willingly takes part, in any way, in the conduct which results in the

victim’s death.

You would find this mitigating circumstance if you find that the

victim willingly took part in the conduct which resulted in the victim's

death and that this constituted participation by the victim in the

defendant's homicidal conduct. If one or more of you finds by a

preponderance of the evidence that the circumstance exists, you would so

indicate by having your foreperson write, “Yes,” in the space provided

after this mitigating circumstance on the “Issues and Recommendation”

form. If none of you finds this circumstance to exist, you would so

indicate by having your foreperson write, “No,” in that space.]

(3B) [(State ordinal number), consider whether the victim consented

to the defendant's homicidal act. A victim consents to a defendant's

homicidal act if the victim approves, acquiesces in, submits to or

otherwise agrees to the act which results in the victim’s death.

You would find this mitigating circumstance if you find that the

victim [approved] [acquiesced in] [submitted to] [agreed with] the act

which resulted in the victim’s death and that this constituted consent to

the defendant's homicidal act. If one or more of you finds by a

preponderance of the evidence that the circumstance exists, you would so

indicate by having your foreperson write, “Yes,” in the space provided

after this mitigating circumstance on the “Issues and Recommendation”

form. If none of you finds this circumstance to exist, you would so

indicate by having your foreperson write, “No,” in that space.

(4) [(State ordinal number), consider whether this murder was

actually committed by another person, and the defendant was only an

[accomplice in] [accessory to] the murder and the defendant’s

participation in the murder was relatively minor. The distinguishing

feature of an [accomplice] [accessory] is that the defendant is not the

person who actually committed the murder.

You would find this mitigating circumstance if you find that the

victim was killed by another person, and that the defendant was only [an

accomplice] [an accessory]48 to the killing and that the defendant's

conduct constituted relatively minor participation in the murder. If one or

more of you finds by a preponderance of the evidence that the

circumstance exists, you would so indicate by having your foreperson

write, “Yes,” in the space provided after this mitigating circumstance on

the “Issues and Recommendation” form. If none of you finds this

circumstance to exist, you would so indicate by having your foreperson

write, “No,” in that space.]

(5A) [(State ordinal number), consider whether the defendant acted

under duress. A defendant acts under duress, (even though it would not

justify or excuse the killing)49 if the defendant acts under the pressure of

any threat or compulsion from any source.

You would find this mitigating circumstance if you find that the

defendant acted under [the pressure of a threat] [compulsion], and that

this constituted duress. If one or more of you finds by a preponderance of

the evidence that this circumstance exists, you would so indicate by

having your foreperson write, “Yes,” in the space provided after this

mitigating circumstance on the “Issues and Recommendation” form. If

none of you finds this circumstance to exist, you would so indicate by

having your foreperson write, “No,” in that space.]

(5B) [(State ordinal number), consider whether the defendant acted

under the domination of another person. A defendant acts under the

domination of another person if the defendant acts at the command or

under the control of the other person or in response to the assertion of

any authority to which the defendant believes the defendant is bound to

submit or which defendant did not have sufficient will to resist.

You would find this mitigating circumstance if you find (describe

domination, e.g., that the defendant was in love with (name other

person) and would do anything to stay in her favor and (name other

person) told the defendant that if the defendant did not kill the victim

she'd never see him again) and that as a result the defendant was under

the domination of another person when the defendant killed the victim. If

one or more of you finds by a preponderance of the evidence that the

circumstance exists, you would so indicate by having your foreperson

write, “Yes,” in the space provided after this mitigating circumstance on

the “Issues and Recommendation” form. If none of you finds this

circumstance to exist, you would so indicate by having your foreperson

write, “No,” in that space.]

(6) [(State ordinal number), consider whether the capacity of the

defendant to appreciate the criminality of the defendant’s conduct or to

conform the defendant’s conduct to the requirements of the law was

impaired.

NOTE WELL: In cases where the evidence attributes

the defendant's impairment in part to mental disease

or defect, give the following two paragraphs. S. v.

Johnson, 298 N.C. 47, 69-70 (1979). (See also, S. v.

Johnson (II), 298 N.C. 355, 373-375 (1979).) The judge

should consider giving them in any case where the

defendant claims this mitigating circumstance.

However, in those cases where the evidence attributes

the defendant's impairment to a cause such as

intoxication, which does not involve mental disease or

defect, and which may be “better understood by the

average layman,” the second paragraph may be all that

is required. Compare S. v. Johnson, supra, with S. v.

Goodman, 298 N.C. 1, 32 (1979).

A person's capacity to appreciate the criminality of that person’s

conduct or to conform that person’s conduct to the law is not the same as

that person’s ability to know right from wrong generally, or to know that

what that person is doing at a given time is killing or that such killing is

wrong. A person may indeed know that a killing is wrong and still not

appreciate its wrongfulness because that person does not fully

comprehend or is not fully sensible to what that person is doing or how

wrong it is. Further, for this mitigating circumstance to exist, the

defendant's capacity to appreciate does not need to have been totally

obliterated. It is enough that it was lessened or diminished. Finally, this

mitigating circumstance would exist, even if the defendant did appreciate

the criminality of the defendant’s conduct, if the defendant’s capacity to

conform the defendant’s conduct to the law was impaired, since a person

may appreciate that the defendant’s killing is wrong and still lack the

capacity to refrain from doing it. Again, the defendant need not wholly

lack all capacity to conform. It is enough that such capacity as the

defendant might otherwise have had in the absence of the defendant’s

impairment is lessened or diminished because of such impairment.

You would find this mitigating circumstance if you find that the

defendant (describe source of impairment, e.g., had drunk a quart of

whiskey during the three hours before the killing, suffered from

schizophrenia, and/or list any evidence presented as to the defendant's

intellectual disability, if relevant to this circumstance) and that this

impaired the defendant’s capacity to appreciate the criminality of the

defendant’s conduct or to conform the defendant’s conduct to the

requirements of the law. If one or more of you finds by a preponderance

of the evidence that the circumstance exists, you would so indicate by

having your foreperson write, “Yes,” in the space provided after this

mitigating circumstance on the “Issues and Recommendation” form. If

none of you finds this circumstance to exist, you would so indicate by

having your foreperson write, “No,” in that space.]

(7) [(State ordinal number), consider whether the age of the

defendant at the time of this murder is a mitigating factor. The

mitigating effect of the age of the defendant is for you to determine from

all of the facts and circumstances which you find from the evidence.

(“Age” is a flexible and relative concept. The chronological age of a

defendant is not always the determinative factor.)50 If one or more of you

finds by a preponderance of the evidence that the circumstance exists,

you would so indicate by having your foreperson write, “Yes,” in the space

provided after this mitigating circumstance on the “Issues and

Recommendation” form. If none of you finds this circumstance to exist,

you would so indicate by having your foreperson write, “No,” in that

space.]

(8A) [[(State ordinal number) consider whether the defendant aided

in the apprehension of another capital felon? A capital felon is a person

who has committed a felony punishable by death. (Name person

apprehended) was a capital felon. A defendant would have aided in the

apprehension of another capital felon if the defendant gave any

assistance which in any way advanced the time or reduced the difficulty

of taking that person into custody.

You would find this mitigating circumstance if you find (describe

aid, e.g., told the place where (name capital felon) was hiding) and that

this aided in the apprehension of another capital felon. If one or more of

you finds by a preponderance of the evidence that the circumstance

exists, you would so indicate by having your foreperson write, “Yes,” in

the space provided after this mitigating circumstance on the “Issues and

Recommendation” form. If none of you finds this circumstance to exist,

you would so indicate by having your foreperson write, “No,” in that

space.]

(8B) [(State ordinal number) consider whether the defendant

testified truthfully on behalf of the prosecution in another prosecution of

a felony? A defendant does so if the defendant is called as a witness for

the State at any stage of the prosecution of any felony and truthfully

answers any questions asked by the prosecutor. The felony need not be

connected with the murder for which you are recommending punishment.

(Name felony) is a felony.

You would find this mitigating circumstance if you find that the

defendant testified and that this was truthful testimony on behalf of the

prosecution. If one or more of you finds by a preponderance of the

evidence that the circumstance exists, you would so indicate by having

your foreperson write, “Yes,” in the space provided after this mitigating

circumstance on the “Issues and Recommendation” form. If none of you

finds this circumstance to exist, you would so indicate by having your

foreperson write, “No,” in that space.]

NOTE WELL: If the defendant makes a timely request

for a listing in writing of possible mitigating

circumstances, in addition to those listed in N.C. Gen.

Stat. § 15-2000(f), and if they are supported by the

evidence, and if these circumstances are such that a

juror could reasonably deem them to have mitigating

value, the judge must (1) instruct on each of them at

this point in the instruction and (2) include them on

the “Issues and Recommendation” form, where

indicated. S. v. Cummings, 326 N.C. 298 (1990). In the

absence of a written request, the judge is not required

to sift through the evidence and search out every

possible circumstance which a juror might find to have

mitigating value, S. v. Goodman, 298 N.C. 1, 34 (1979),

and “the failure to mention any particular item as a

mitigating circumstance will not be held error so long

as the trial judge instructs that the jury may consider

any circumstance which it finds to have mitigating

value.” S. v. Johnson, 298 N.C. 47, 72 (1979). It is the

better practice, however, “…to include on the verdict

form all mitigating circumstances that are to be

submitted to the jury.” S. v. McDougall, 308 N.C. 1, 25

(1983). The court is not required to entertain evidence

or submit any circumstance which is “in no way related

to the defendant, his character, his record, or the

circumstances of the charged offense.” S. v. Cherry,

298 N.C. 86, 97-99 (1979); S. v. Johnson (II), 298 N.C.

367 (1979).

(9) You should also consider the following circumstances arising

from the evidence which you find to have mitigating value. If one or more

of you find by a preponderance of the evidence that any of the following

circumstances exist and also are deemed by you to have mitigating value,

you would so indicate by having your foreperson write “Yes” in the space

provided. If none of you find the circumstance to exist, or if none of you

deem it to have mitigating value, you would so indicate by having your

foreperson write “No” in that space. (Here list each nonstatutory

circumstance submitted by defendant and raised by the evidence, e.g.:

(A) (State ordinal number) Consider whether the defendant was

abused by the defendant’s parents and whether you deem this to have

mitigating value. You would find this mitigating circumstance if you find

that the defendant was abused by the defendant’s parents and that this

circumstance has mitigating value. If one or more of you finds by a

preponderance of the evidence that this circumstance exists and also is

deemed mitigating, you would so indicate by having your foreperson write

“Yes” in the space provided after this mitigating circumstance on the

“Issues and Recommendation” form. If none of you find the circumstances

to exist, or if none of you deem it to have mitigating value, you would so

indicate by having your foreperson write “No” in that space.

(B) etc.)

NOTE WELL: In all cases the judge should conclude his

treatment of mitigating circumstances with the

following “catch-all” paragraph, and then proceed.

(10) (State ordinal number), finally, you may consider any other

circumstance or circumstances arising from the evidence which you deem

to have mitigating value. If one or more of you so find by a

preponderance of the evidence, you would so indicate by having your

foreperson write “Yes” in the space provided after this mitigating

circumstance on the “Issues and Recommendations” form. If none of you

finds any such circumstance to exist, you would so indicate by having

your foreperson write “No” in that space.

If one or more of you finds by a preponderance of the evidence one

or more mitigating circumstances, and have so indicated by writing “Yes”

in the space provided after this mitigating circumstance on the “Issues

and Recommendation” form, you would answer Issue Two, “Yes.” If none

of you find any of these mitigating circumstances to exist and have so

indicated by writing, “No,” in the space after every one of them on that

form, you would answer Issue Two, “No.” If you answer Issue Two, “Yes,”

you must consider Issue Three. If you answer Issue Two, “No,” do not

answer Issue Three. Instead, skip Issue Three, and answer Issue Four.

Issue Three is, “Do you unanimously find beyond a reasonable

doubt that the mitigating circumstance or circumstances found is, or are,

insufficient to outweigh the aggravating circumstance or circumstances

found by you?”

If you find from the evidence one or more mitigating circumstances,

you must weigh the aggravating circumstance(s) against the mitigating

circumstance(s). When deciding this issue, each juror may consider any

mitigating circumstance or circumstances that he or she determined to

exist by a preponderance of the evidence in Issue Two. In so doing, you

are the sole judges of the weight to be given to any individual

circumstance which you find, whether aggravating or mitigating. You

should not merely add up the number of aggravating circumstances and

mitigating circumstances. Rather, you must decide from all the evidence

what value to give to each circumstance, and then weigh the aggravating

circumstances, so valued, against the mitigating circumstances, so

valued, and finally determine whether the mitigating circumstances are

insufficient to outweigh the aggravating circumstances.

If you unanimously find beyond a reasonable doubt that the

mitigating circumstances found are insufficient to outweigh the

aggravating circumstance(s) found, you would answer Issue Three, “Yes.”

If you unanimously fail to so find, you would answer Issue Three “No.” If

you answer Issue Three, “No,” it would be your duty to recommend that

the defendant be sentenced to life imprisonment. If you answer Issue

Three, “Yes,” you must consider Issue Four.

Issue Four is, “Do you unanimously find beyond a reasonable doubt

that the aggravating circumstance or circumstances you found is, or are,

sufficiently substantial to call for the imposition of the death penalty

when considered with the mitigating circumstance or circumstances found

by one or more of you?”

In deciding this issue, you are not to consider the aggravating

circumstances standing alone. You must consider them in connection with

any mitigating circumstances found by one or more of you. When making

this comparison, each juror may consider any mitigating circumstance or

circumstances that juror determined to exist by a preponderance of the

evidence. After considering the totality of the aggravating and mitigating

circumstances, each of you must be convinced beyond a reasonable doubt

that the imposition of the death penalty is justified and appropriate in

this case before you can answer the issue “Yes.” In so doing, you are not

applying a mathematical formula. For example, three circumstances of

one kind do not automatically and of necessity outweigh one

circumstance of another kind. You may very properly give more weight to

one circumstance than another. You must consider the relative

substantiality and persuasiveness of the existing aggravating and

mitigating circumstances in making this determination. You, the jury,

must determine how compelling and persuasive the totality of the

aggravating circumstances are when compared with the totality of the

mitigating circumstances. After so doing, if you find beyond a reasonable

doubt that the aggravating circumstances found by you are sufficiently

substantial to call for the death penalty when considered with mitigating

circumstances found by one or more of you, it would be your duty to

answer the issue “Yes.” If you unanimously fail to so find, it would be

your duty to answer the issue “No.”

In the event you do not find the existence of any mitigating

circumstances, you must still answer this issue. In such case, you must

determine whether the aggravating circumstances found by you are of

such value, weight, importance, consequence, or significance as to be

sufficiently substantial to call for the imposition of the death penalty.

Substantial means having substance or weight, important,

significant or momentous. Aggravating circumstances may exist in a

particular case and still not be sufficiently substantial to call for the

death penalty. Therefore, it is not enough for the State to prove from the

evidence beyond a reasonable doubt the existence of one or more

aggravating circumstances. It must also prove beyond a reasonable doubt

that such aggravating circumstances are sufficiently substantial to call for

the death penalty, and before you may answer Issue Four, “Yes,” you

must agree unanimously that they are.

If you answer Issue Four, “No,” you must recommend that the

defendant be sentenced to life imprisonment. If you answer Issue Four,

“Yes,” it would be your duty to recommend that the defendant be

sentenced to death.

Now members of the jury, you have heard the evidence and the

arguments of counsel for the State and for the defendant. The Court has

not summarized all of the evidence, but it is your duty to remember all

the evidence whether it has been called to your attention or not, and if

your recollection of the evidence differs from that of the Court, or of the

District Attorney, or of the defense attorney (or the defendant), you are

to rely solely upon your recollection of the evidence in your deliberations.

I have not reviewed the contentions of the State or of the defendant, but

it is your duty not only to consider all the evidence, but also to consider

all the arguments, the contentions and positions urged by the State's

attorney(s) and the defendant's attorney(s) (and the defendant) in their

speeches to you, and any other contention that arises from the evidence,

and to weigh them in the light of your common sense, and to make your

recommendation as to punishment.

The law, as indeed it should, requires the presiding judge to be

impartial. You are not to draw any inference from any ruling that I have

made, or any inflection in my voice or expression on my face, or any

question I may have asked a witness or anything else that I may have

said or done during this trial, that I have an opinion or have intimated an

opinion, as to whether any part of the evidence should be believed or

disbelieved, as to whether any aggravating or mitigating circumstance

has been proved or disproved, or as to what your recommendation ought

to be. It is your exclusive province to find the true facts of the case and

to make a recommendation reflecting the truth as you find it.

When you are ready to make a recommendation, have your

foreperson write in your recommendation as directed on the “Issues and

Recommendation” form.

NOTE WELL: Excuse the alternate jurors.51

After reaching the jury room your first order of business is to select

your foreperson. You may begin your deliberations when the bailiff

delivers the Issues and Recommendation as Punishment Form to you.

Your foreperson should lead the deliberations. When you have

unanimously agreed upon an answer to this issue and are ready to

announce it, your foreperson should record your answer, sign and date

the form, and notify the bailiff by knocking on the jury room door (or

otherwise summoning the bailiff). You will be returned to the courtroom

and your answer will be announced.

You may retire and select your foreperson.

NOTE WELL: After the jury retires the Judge must

address the attorneys as follows:

Before sending the original “Issues and Recommendation” form to

the jury and allowing them to begin their deliberations I will now consider

any requests for corrections to the charge to the jury, or any additional

matters that anyone feels are necessary or appropriate to submit a

proper and accurate charge to the jury.

Are there any specific requests for corrections or additions to the

charge?

NOTE WELL: Consider all specific requests and if

appropriate bring the jury back and correct or add to

the charge. If request(s) for corrections or additions

are rejected, attorneys must be allowed to make

specific objections on the record.

After all specific requests have been considered and

the proper record notation(s) made, give the “Issues

and Recommendation” form to the bailiff and ask him

to hand it to the jury without comment. If it is

necessary to return the jury to the courtroom for

corrections or additions to the charge the Judge should

address the jury as follows:

Members of the jury, after you left the courtroom, it was brought to

my attention that some further instructions are necessary to [correct]

[add to] the previous instructions I gave you.

I charge you that…

You may now retire and begin your deliberations as soon as you

receive the written form.

NOTE WELL: Repeat the question to the lawyers

regarding corrections or additions to the charge. If

there are further specific requests repeat the same

procedure as before; if not, hand the original written

form to the bailiff to give to the jury.

NOTE WELL: If the sentencing jury asks the judge what

will happen if it fails to reach a unanimous decision as

to issues (One-A), One, Three, Four, or as to

punishment, the proper response to such an inquiry is

to instruct the jurors as follows:

“Your inability to reach a unanimous [answer to issues

(One-A), One, Three, or Four] (or) [recommendation as

to punishment] should not be your concern but should

simply be reported to the court.” S. v. Smith, 320 N.C.

404, 420-422, 358 S.E.2d 329, 338-39 (1987). As to

questions about parole, see note 2, supra.