N.C.P.I.—Crim. 204.05

NOTE WELL: This is an illustration of the

recommended manner to construct a charge for a

bifurcated proceeding if such a proceeding is

necessary, e.g., where aggravating factors are at issue.

MODEL JURY INSTRUCTION

Members of the jury: Having found the defendant guilty of (name

offense), you must now consider (insert matter for consideration, e.g.,

whether any aggravating factors exist). All of the evidence has been

presented. It is now your duty to decide from this evidence what the

facts are. You must then apply the law that I am about to give you 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 as you might like it

to be. This is important because justice requires that everyone tried for

the same crime be treated in the same way, and have the same law

applied to him. (N.C.P.I.-Crim. 101.05.)

The defendant has denied the existence of the(se) aggravating

factor(s). The fact that the state has alleged that such factor(s) exist(s)

is no evidence that the factor(s) do(es) in fact exist. Under our system

of justice, when a defendant denies the existence of an aggravating

factor, he is not required to prove that the aggravating factor does not

exist. It is presumed that the aggravating factor does not exist. The

State must prove to you beyond a reasonable doubt that the aggravating

factor exists.

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

the existence of the aggravating factor. (N.C.P.I.-Crim. 101.10.)

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 that 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 he 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 his testimony is

reasonable; and whether his testimony is consistent with other believable

evidence in the case. (N.C.P.I.-Crim. 101.15.)

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. (N.C.P.I.-Crim. 101.20.)

Having found the defendant guilty of (name offense), you must now

consider the following question: Do you find from the evidence beyond a

reasonable doubt the existence of the following aggravating factor(s)?

(Insert text of appropriate N.C.P.I.-Crim., e.g., N.C.P.I.-Crim. 204.25, the

aggravating factor instruction, which is quoted in the preceding

sentence.)

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

arguments of counsel for the State and for the defendant. It is your duty

to remember all the evidence and if your recollection of the evidence

differs from that of the District Attorney, or of the defense attorney, 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 and the defendant's attorney 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 as best as you can,

to determine the truth of this matter.

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 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 fact has or has not been proved, or as to

what your findings ought to be. It is your exclusive province to find the

true facts of the case and to render a verdict reflecting the truth as you

find it.

I instruct you that a verdict is not a verdict until all twelve jurors

agree unanimously as to what your decision shall be. You may not render

a verdict by majority vote.

When you have reached a unanimous verdict, have your foreman

mark the appropriate place on the verdict form, which I will send in to you

in a few moments after you enter the jury room.

NOTE WELL: EXCUSE THE ALTERNATE JUROR.

As you retire to the jury room you should first select one of your

members to serve as your foreman to lead in your deliberations. Do not

begin your deliberations on your verdict until you receive the written

verdict form from the bailiff. Proceed immediately with the selection of

your foreman and then after receiving the written verdict form proceed

with your verdict deliberations; and when you have reached a unanimous

verdict and are ready to pronounce it, and your foreman has marked the

verdict on the form, have your foreman sign and date the verdict form,

notify the bailiff by knocking on the door to the jury room, or summoning

the bailiff; and you will be returned to the courtroom to pronounce your

verdict.

You may retire and select your foreman.

NOTE WELL: After the jury retires the Judge must

address the attorneys as follows:

Before sending the verdict 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 that have been submitted

and rejected and the proper record notation(s) made,

give the verdict form(s) to the bailiff and ask him to

hand [it] [them] 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 retire and begin your deliberations as soon as you receive

the written verdict form(s).

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 verdict form(s) to

the bailiff to give to the jury. (N.C.P.I.-Crim. 101.35.)