N.C.P.I.—Crim. 206.15

NOTE WELL: N.C. Gen. Stat. §§ 15-176.4, 15A-

2000(a): When the defendant is indicted for first

degree murder, the court shall, upon request by either

party, instruct the jury as follows:

"In the event that the defendant is convicted of murder

in the first degree, the court will conduct a separate

sentencing proceeding to determine whether the

defendant should be sentenced to death or life

imprisonment (without parole).2 If that time comes,

you will receive separate sentencing instructions.

However, at this time your only concern is to determine

whether the defendant is guilty of the crime charged or

any lesser included offenses about which you are

instructed."3

The defendant has been charged with first degree murder in the

perpetration of a felony, which is the killing of a human being by a person

committing or attempting to commit [arson] [rape] [sexual offense]

[robbery] [kidnapping] [burglary] [(name felony) with a deadly weapon].

For you to find the defendant guilty of first degree murder in

perpetration of a felony, the State must prove [three] [four] things

beyond a reasonable doubt:

First, that the defendant [committed] (or) [attempted to commit]

(name felony, e.g., robbery). (Define the felony and enumerate its

elements, using the Pattern Jury Instruction for that felony.) and the

defendant had the intent to commit (name felony, e.g. robbery).

Second, that while [committing] (or) [attempting to commit] (name

felony), the defendant killed the victim.

[And Third] [Third], that the defendant's act was a proximate cause

of the victim's death. A proximate cause is a real cause, a cause without

which the victim's death would not have occurred,4 and one that a

reasonably careful and prudent person could foresee would probably

produce such [injury] [damage] or some similar injurious result. (The

defendant’s act need not have been the only cause, nor the last or

nearest cause. It is sufficient if it occurred with some other cause acting

at the same time, which, in combination with, caused the death of the

victim.) (A child has been killed if the child was born alive, but died as a

result of injuries inflicted prior to being born alive.)5

NOTE WELL: Where there is evidence that the

defendant, though not committing or attempting to

commit arson, rape or a sex offense, robbery,

kidnapping or burglary, was committing or attempting

to commit some other felony with the use of a deadly

weapon, add the following:

[And Fourth, that (name felony, e.g., felonious escape) was

committed or attempted with the use of a deadly weapon. A deadly

weapon is a weapon which is likely to cause death or serious bodily

injury. In determining whether the instrument is a deadly weapon, you

should consider its nature, the manner in which it was used, and the size

and strength of the defendant as compared with the victim.

NOTE WELL: If there is evidence that defendant

committed the underlying felony in concert with others,

but that he may not have actually committed the

killing, instructions should be given, as appropriate, on

acting in concert (N.C.P.I.-Crim. 202.10) and/or aiding

and abetting (N.C.P.I.-Crim. 202.20 or 202.20A).

If there was evidence that defendant was not present,

and there was testimony by one or more accomplices,

N.C.P.I.-Crim. 206.10A should be considered at this

point.

The Enmund v. Florida instruction should not be given

during the guilt determination phase. It has been

incorporated in N.C.P.I.-Crim. 150.10, the death

penalty hearing instruction.

FINAL MANDATE

NOTE WELL: Begin by giving the mandate from the

instruction for the felony, up to "it would be your

duty. . ." and then continue as follows:

. . . and that the defendant had the intent to commit (name

felony).

. . . and that while [committing] [attempting to commit] (name

felony), the defendant killed the victim and that the defendant's act was

a proximate cause of the victim's death, (and that the defendant

[committed] [attempted to commit] (name felony) with the use of a

deadly weapon),6 it would be your duty to return a verdict of guilty of first

degree murder. However, if you do not so find or have a reasonable

doubt as to one or more of these things, it would be your duty to return a

verdict of not guilty.7