N.C.P.I.—Crim. 150.10A (App.)

NOTE WELL: When the jury retires to deliberate the

punishment in a capital case, the judge shall furnish

them a written list of issues relating to the aggravating

or mitigating circumstances which arise from the

evidence. N.C. Gen. Stat. § 15A-2000(b). When the jury

recommends a sentence of death the foreperson shall

sign the “Issues and Recommendation” form on behalf

of the jury which shall show the requisite findings to

support that sentence. N.C. Gen. Stat. § 15A-2000(c).

The following pattern form combines the issues and

the recommendation.

The judge, in each case, should use this “Issues and

Recommendation”, and should furnish this form to the

jury. In preparing the actual form to be given to the

jury, the judge should omit all the bracketed

aggravating and mitigating circumstances which do not

relate to the evidence in the case. The judge is

required to add all non-statutory mitigating

circumstances that arise from the evidence which are

explained in the Note Well below and incorporate those

into this form. The statutory and non-statutory

mitigating circumstances are to be listed on this form

in consecutive order. Also, make sure the reporter does

not type the brackets themselves, and numbers the

aggravating and mitigating circumstances which are

incorporated in their own consecutive order.

Issue One-A should be included only if there is

evidence that the defendant personally may not have

committed the killing. See NOTE WELL, N.C.P.I.—Crim.

150.10. The designation of Issue One-A has been

adopted to simplify the numbers of the remaining

issues.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF

JUSTICE

SUPERIOR COURT DIVISION

No.____________________

_________________________________

STATE OF NORTH CAROLINA )

)

Plaintiff )

) ISSUES AND

) RECOMMENDATION

)

vs. )

) AS TO PUNISHMENT

(Name defendant) )

)

Defendant )

_________________________________ )

ISSUES

Issue One-A:

Do you unanimously find from the evidence, beyond a reasonable

doubt, that the defendant:

[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]?

Answer____________________.

IF YOU ANSWER ISSUE ONE-A “NO,” SKIP ISSUES ONE, TWO,

THREE, AND FOUR AND INDICATE LIFE IMPRISONMENT UNDER

“RECOMMENDATION AS TO PUNISHMENT” ON THE LAST PAGE OF THIS

FORM. IF YOU ANSWERED ISSUE ONE-A “YES,” PROCEED TO ISSUE ONE.

Issue One:

Do you unanimously find from the evidence, beyond a reasonable

doubt, the existence of one or more of the following aggravating

circumstances?

ANSWER__________________.

BEFORE YOU ANSWER ISSUE ONE, CONSIDER EACH OF THE

FOLLOWING AGGRAVATING CIRCUMSTANCES. IN THE SPACE AFTER EACH

AGGRAVATING CIRCUMSTANCE, WRITE “YES,” IF YOU UNANIMOUSLY FIND

THAT AGGRAVATING CIRCUMSTANCE FROM THE EVIDENCE BEYOND A

REASONABLE DOUBT. WRITE, “NO,” IF YOU DO NOT FIND THAT

AGGRAVATING CIRCUMSTANCE FROM THE EVIDENCE BEYOND A

REASONABLE DOUBT.

IF YOU WRITE, “YES,” IN ONE OR MORE OF THE SPACES AFTER THE

FOLLOWING AGGRAVATING CIRCUMSTANCES, WRITE, “YES,” IN THE

SPACE AFTER ISSUE ONE AS WELL. IF YOU WRITE, “NO,” IN ALL OF THE

SPACES AFTER THE FOLLOWING AGGRAVATING CIRCUMSTANCES, WRITE,

“NO,” IN THE SPACE AFTER ISSUE ONE.

(1) [Was the defendant lawfully incarcerated?

ANSWER__________________]

(2) [Had the defendant been previously convicted of another

capital felony?

ANSWER__________________]

(3) [Had the defendant been previously convicted of a felony

involving the [use] [threat] of violence to the person?

ANSWER__________________]

(4A) [Was this murder committed for the purpose of [avoiding]

[preventing] a lawful arrest?

ANSWER__________________]

(4B) [Was this murder committed for the purpose of effecting an

escape from custody?

ANSWER__________________]

(5A) [Was this murder committed while the defendant was

engaged in [the commission of] [an attempt to commit] [a

flight after [committing] [attempting to commit]] (name

felony)?

ANSWER__________________]

(5B) [Was the murder committed while the defendant was an

[aider] [abettor] in the [commission of] [attempt to commit]

[flight after [committing] [attempting to commit]] (name

felony)?1

ANSWER__________________]

(6) [Was this murder committed for pecuniary gain?

ANSWER__________________]

(7A) [Was this murder committed to [disrupt] [hinder] the lawful

exercise of a governmental function?

ANSWER__________________]

(7B) [Was this murder committed to [disrupt] [hinder] the

enforcement of the laws?

ANSWER__________________]

(8A) [Was this murder committed against a (describe victim's

position) while engaged in the performance of his official

duties?

ANSWER__________________]

(8B) [Was this murder committed against a (describe victim's

position)2 because of the exercise of his official duty?2

ANSWER__________________]

(9) [Was this murder especially heinous, atrocious or cruel?

ANSWER__________________]

(10) [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?

ANSWER__________________]

(11) [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 other persons?

ANSWER__________________]

IF YOU ANSWERED ISSUE ONE “NO,” SKIP ISSUES TWO, THREE,

AND FOUR, AND INDICATE LIFE IMPRISONMENT UNDER

“RECOMMENDATION AS TO PUNISHMENT”, ON THE LAST PAGE OF THIS

FORM. IF YOU ANSWERED ISSUE ONE “YES,” PROCEED TO ISSUE TWO.

Issue Two:

Do you find from the evidence the existence of one or more of the

following mitigating circumstances?

ANSWER__________________

NOTE WELL: List any of the following mitigating

circumstances for which there is any evidence. In

addition, if the defendant makes a timely request for a

listing in writing of possible mitigating circumstances

in addition to those listed here, and if they are

supported by the evidence, and if those circumstances

are such that the jury could possibly deem them to

have mitigating value, add all such circumstances to

the list as you prepare the form to be given to the jury.

S. v. Johnson, 298 N.C. 47, 72, 74 (1979). If all the

evidence indicates that the mitigating circumstances

exist, the judge is required to give peremptory

instructions. For peremptory instructions see N.C.P.I.—

Crim. 150.11 and N.C.P.I.—Crim. 150.12.

BEFORE YOU ANSWER ISSUE TWO, CONSIDER EACH OF THE FOLLOWING

MITIGATING CIRCUMSTANCES. IN THE SPACE AFTER EACH MITIGATING

CIRCUMSTANCE, WRITE “YES,” IF ONE OR MORE OF YOU FINDS THAT

CIRCUMSTANCE BY A PREPONDERANCE OF THE EVIDENCE. WRITE, “NO,”

IF NONE OF YOU FINDS THAT MITIGATING CIRCUMSTANCE.

IF YOU WRITE, “YES,” IN ONE OR MORE OF THE FOLLOWING SPACES,

WRITE, “YES,” IN THE SPACE AFTER ISSUE TWO AS WELL. IF YOU WRITE,

“NO,” IN ALL OF THE FOLLOWING SPACES, WRITE, “NO,” IN THE SPACE

AFTER ISSUE TWO.

(1) [The defendant has no significant history of prior criminal

activity.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(2) [This murder was committed while the defendant was under

the influence of mental or emotional disturbance.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(3A) [The victim was a voluntary participant in the defendant's

homicidal act.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(3B) [The victim consented to the defendant's homicidal act.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(4) [This murder was actually committed by another person and

the defendant was only an [accomplice in] [accessory to] the

murder and his participation in the murder was relatively

minor.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(5A) [The defendant acted under duress.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(5B) [The defendant acted under the domination of another person.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(6) [The capacity of the defendant to appreciate the criminality of

his conduct or to conform his conduct to the requirements of

the law was impaired.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(7) [The age of the defendant at the time of this murder is a

mitigating circumstance.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(8A) [The defendant aided in the apprehension of another capital

felon.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(8B) [The defendant testified truthfully on behalf of the

prosecution in another prosecution of a felony.

ANSWER__________________ One or more of us finds this

mitigating circumstance to exist.]

(9) NOTE WELL: Here list the non-statutory mitigating

circumstances requested by the defendant.

ANSWER__________________ One or more of us finds this

circumstance to exist and deem it to have mitigating value.

NOTE WELL: Always include Number 10 following:

(10) Any other circumstance or circumstances arising from the

evidence which one or more of you deems to have mitigating

value.

ANSWER__________________ One or more of us finds the

mitigating circumstance to exist.

ANSWER ISSUE THREE IF YOU ANSWERED ISSUE TWO, “YES.” IF YOU

ANSWERED ISSUE TWO, “NO,” SKIP ISSUE THREE AND ANSWER ISSUE

FOUR.

Issue Three:

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?

ANSWER__________________

IF YOU ANSWER ISSUE THREE, “YES,” PROCEED TO ISSUE FOUR. IF YOU

ANSWER ISSUE THREE, “NO,” INDICATE LIFE IMPRISONMENT UNDER

“RECOMMENDATION AS TO PUNISHMENT.”

Issue Four:

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?

ANSWER__________________

IF YOU ANSWER ISSUE FOUR “YES,” INDICATE DEATH UNDER

“RECOMMENDATION AS TO PUNISHMENT.” IF YOU ANSWER ISSUE FOUR,

“NO,” INDICATE LIFE IMPRISONMENT UNDER “RECOMMENDATION AS TO

PUNISHMENT.”

RECOMMENDATION AS TO PUNISHMENT

INDICATE YOUR RECOMMENDATION AS TO PUNISHMENT BY WRITING

“DEATH,” OR “LIFE IMPRISONMENT,” IN THE BLANK IN THE FOLLOWING

SENTENCE:

We, the jury, unanimously recommend that the defendant, (name

defendant) be sentenced to__________________.

This_____day of_______________,______.

__________________________(signature)

Foreperson of the Jury