T.P.I. -- CRIM. 7.04(c)

FIRST DEGREE MURDER

(FIXING PUNISHMENT OF DEATH

OR LIFE IMPRISONMENT OR LIFE IMPRISONMENT

WITHOUT POSSIBILITY OF PAROLE)

(FOR OFFENSES COMMITTED ON OR AFTER JULY 1, 1995)

            Members of the Jury, you have now found the defendant guilty beyond a reasonable doubt of murder in the first degree as charged in the _____________ count of indictment number _________.

            It is now your duty to determine, within the limits prescribed by law, the penalty which shall be imposed as punishment for this offense.  Tennessee law provides that a person convicted of murder in the first degree shall be punished by death, by imprisonment for life without possibility of parole, or by imprisonment for life.  A defendant who receives a sentence of imprisonment for life shall not be eligible for release until the defendant has served at least fifty-one (51) full calendar years of such sentence.1  A defendant who receives a sentence of imprisonment for life without parole shall never be eligible for release.

            In arriving at this determination, you are authorized to weigh and consider

any of the statutory aggravating circumstances proved beyond a reasonable doubt, and any mitigating circumstances which may have been raised by the evidence throughout the entire course of this trial, including the guilt-finding phase or sentencing phase or both.  The jury is the sole judge of the facts, and of the law as it applies to the facts in the case.  In arriving at your verdict, you are to consider the law in connection with the facts; but the Court is the proper source from which you are to get the law.  In other words, you are the judges of the law as well as the facts under the direction of the Court.

            The burden of proof is upon the state to prove any statutory aggravating circumstance or circumstances beyond a reasonable doubt. 

            Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of your verdict.  Reasonable doubt does not mean a doubt that may arise from possibility.  Absolute certainty is not demanded by the law, but moral certainty is required, and this certainty is required as to every proposition of proof requisite to constitute the verdict.2

            The law makes you, the jury, the sole and exclusive judges of the credibility of the witnesses and the weight to be given to the evidence.

            [The prosecution has introduced what is known as victim impact evidence.  This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family.  You may consider this evidence in determining an appropriate punishment.  However, your consideration must be limited to a rational inquiry into the culpability of the defendant, not an emotional response to the evidence.

            Victim impact evidence is not the same as an aggravating circumstance.  Proof of an adverse impact on the victim’s family is not proof of an aggravating circumstance.  Introduction of this victim impact evidence in no way relieves the State of its burden to prove beyond a reasonable doubt at least one aggravating circumstance which has been alleged.  You may consider this victim impact evidence in determining the appropriateness of the death penalty only if you first find that the existence of one or more aggravating circumstances has been proven beyond a reasonable doubt by evidence independent from the victim impact evidence, and find that the aggravating circumstance(s) found outweigh the finding of one or more mitigating circumstances beyond a reasonable doubt.]3

STATUTORY AGGRAVATING CIRCUMSTANCES

            Tennessee law provides that no sentence of death or sentence of imprisonment for life without possibility of parole shall be imposed by a jury but upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one (1) or more of the statutory aggravating circumstances, which shall be limited to the following:

            [(1)      The murder was committed against a person less than twelve (12)

                        years of age and the defendant was eighteen (18) years of age or

                        older.]

            [(2)      The defendant was previously convicted of one (1) or more felonies, other than the present charge, the statutory elements of which involve the use of violence to the person.  The state is relying upon the crime(s) of ________, which is (are) a felony involving the use of violence to the person.]

            [(3)      The defendant knowingly created a great risk of death to two (2) or

                        more persons, other than the victim murdered, during the act of

                        murder.]

            [(4)      The defendant committed the murder for remuneration or the

                        promise of remuneration, or employed another to commit the murder for remuneration or the promise of remuneration.]

            [(5)      The murder was especially heinous, atrocious, or cruel in that it

                        involved torture or serious physical abuse beyond that necessary to

                        produce death.]

            [(6)      The murder was committed for the purpose of avoiding, interfering

                        with, or preventing a lawful arrest or prosecution of the defendant

                        or another.]

            [(7)      The murder was knowingly committed, solicited, directed, or aided    by the defendant, while the defendant had a substantial role in

                        committing or attempting to commit, or was fleeing after having a

                        substantial role in committing or attempting to commit, any first

                        degree murder, arson, rape, robbery, burglary, theft, kidnapping,

                        aircraft piracy, or unlawful throwing, placing or discharging of a

                        destructive device or bomb.]

            [(8)      The murder was committed by the defendant while [he] [she] was in lawful custody or in a place of lawful confinement or during the

                        defendant's escape from lawful custody or from a place of

                        lawful confinement.]

            [(9)      The murder was committed against any law enforcement officer,

                        corrections official, corrections employee, emergency medical or       rescue worker, emergency medical technician, paramedic or          firefighter, who was engaged in performance of official duties, and    the defendant knew or reasonably should have known that such       victim was a law enforcement officer, corrections official, corrections employee, emergency medical or rescue worker, emergency medical technician, paramedic or firefighter, engaged in the performance of official duties.]  [The words “emergency medical or  rescue worker, emergency medical technician, paramedic” only apply to offenses committed on or after 7/1/96]4

           [(10)     The murder was committed against any present or former judge,

                        district attorney general or state attorney general, assistant district

                        attorney general, or assistant state attorney general due to or

                        because of the exercise of the victim's official duty or status and the defendant knew that the victim occupied said office.]

           [(11)     The murder was committed against a national, state, or local

                        popularly elected official, due to or because of the official's lawful

                        duties or status, and the defendant knew that the victim was such an official.]

           [(12)     The defendant committed "mass murder" which is defined as the

                        murder of three (3) or more persons within the State of Tennessee

                        within a period of forty-eight (48) months, and perpetrated in a

                        similar fashion in a common scheme or plan.]  [Only for offenses    committed prior to May 30, 1997.]

                                                              or

                        The defendant committed “mass murder” which is defined as the      murder of three (3) or more persons whether committed during a      single criminal episode or at different times within a forty-eight (48)   month period.][Only for offenses committed on or after May 30,   1997.]5

            [(13)    The defendant knowingly mutilated the body of the victim after

                        death.]

           [(14)     The victim of the murder was particularly vulnerable due to a             significant handicap or significant disability, whether mental or           physical, and at the time of the murder the defendant knew or           reasonably should have known of such handicap or    disability.][Only for offenses committed on or after July 1,             1997, but prior to July 1, 1998.]6

or

[The victim of the murder was seventy (70) years of age or older; or the victim of the murder was particularly vulnerable due to a significant handicap or significant disability, whether mental or physical, and at the time of the murder the defendant knew or reasonably should have known of such handicap or disability.][Only for offenses committed on or after July 1, 1998.]7

            [(15)    The murder was committed in the course of an act of terrorism.] [Only for offenses committed on or after July 4, 2002.]8

[You are instructed that the word:

            "HEINOUS" means grossly wicked or reprehensible, abominable; odious;

            vile.

            "ATROCIOUS" means extremely evil or cruel; monstrous; exceptionally

            bad; abominable.

            "CRUEL" means disposed to inflict pain or suffering; causing suffering;

            painful.

            "TORTURE" means the infliction of severe physical or mental pain upon

            the victim while he or she remains alive and conscious.]9

            Members of the Jury, the court has read to you the aggravating circumstances which the law requires you to consider if you find proved beyond a reasonable doubt.  You shall not consider any other facts or circumstances as an aggravating circumstance in deciding whether the death penalty or imprisonment for life without possibility of parole would be appropriate punishment in this case.

MITIGATING CIRCUMSTANCES

            Tennessee law provides that in arriving at the punishment, the jury shall consider as previously indicated, any mitigating circumstances raised by the evidence which shall include, but are not limited to, the following:

[See footnote 9  - only include statutory mitigators raised by the evidence]10

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

                   (Conviction of the crime of  ____________ is not an aggravating

                   circumstance to be considered in determining the penalty, but a

                   conviction of that crime may be considered in determining whether or

                   not the defendant has a significant history of prior criminal activity.)]

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

                   influence of extreme mental or emotional disturbance.]

            [(3) The victim was a participant in the defendant's conduct or consented

                   to the act.]

            [(4) The murder was committed under circumstances which the defendant

                   reasonably believed to provide a moral justification for the

                   defendant's conduct.]

            [(5) The defendant was an accomplice in the murder committed by

                   another person and the defendant's participation was relatively

                   minor.]

            [(6) The defendant acted under extreme duress or under the substantial

                   domination of another person.]

            [(7) The youth or advanced age of the defendant at the time of the crime.]

            [(8) The capacity of the defendant to appreciate the wrongfulness of

                   [his] [her] conduct or to conform [his] [her] conduct to the

                   requirements of the law was substantially impaired as a result of

                   mental disease or defect or intoxication which was insufficient to

                   establish a defense to the crime but which substantially affected

                   [his] [her] judgment.]

           (9)                                                                                                           

                    [See footnote 10 when drafting nonstatutory mitigators]11                                                                                                                                              

            (10)  Any other mitigating factor which is raised by the evidence produced

                   by either the prosecution or defense at either the guilt or sentencing

                   hearing; that is, you shall consider any aspect of the defendant's

                   character or record, or any aspect of the circumstances of the offense

                   favorable to the defendant which is supported by the evidence.12

            [No distinction shall be made between the mitigating circumstances listed and those otherwise raised by the evidence.][Use this sentence for offenses committed prior to April 29,1997- for offenses committed after that date this sentence should be deleted]13

            The defendant does not have the burden of proving a mitigating circumstance. [If there is some evidence that a mitigating circumstance exists, then the burden of proof is upon the state to prove, beyond a reasonable doubt, that the mitigating circumstance does not exist.][Delete this sentence, as it was “expressly disapproved” in State v. Hodges, 944 S.W.2d 346 at 354-5(Tenn. 1997), cert denied 522 U.S. 999, 118 S.Ct. 567, 139 L. Ed. 2d 407 (1997) and bring the next sentence up into this paragraph.]

            There is no requirement of jury unanimity as to any particular mitigating circumstance, or that you agree on the same mitigating circumstance.


VERDICT - LIFE IMPRISONMENT OR LIFE IMPRISONMENT WITHOUT POSSIBILITY OF PAROLE

            If you do not unanimously determine that a statutory aggravating circumstance has been proved by the state beyond a reasonable doubt, the sentence shall be life imprisonment.  You will write your verdict upon the enclosed form attached hereto and made a part of this charge.

            The verdict shall be as follows:

We, the jury, unanimously find that the punishment shall be life imprisonment.

            If you unanimously determine that a statutory aggravating circumstance or circumstances have been proved by the state beyond a reasonable doubt but that said statutory aggravating circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstances beyond a reasonable doubt, you shall, in your considered discretion, sentence the defendant either to imprisonment for life without possibility of parole or to imprisonment for life.  In choosing between the sentences of imprisonment for life without possibility of parole and imprisonment for life, you shall weigh and consider the statutory aggravating circumstance or circumstances proven by the state beyond a reasonable doubt and any mitigating circumstance or circumstances.  In your verdict you shall reduce to writing the statutory aggravating circumstance or circumstances so found and shall return your verdict upon the enclosed form attached hereto and made a part of this charge.

            The verdict should be as follows:

We, the jury, unanimously find that the state has proven the following listed statutory aggravating circumstance or circumstances beyond a reasonable doubt;

We, the jury, unanimously find that such statutory aggravating circumstance or circumstances do not outweigh any mitigating circumstance or circumstances beyond a reasonable doubt, therefore;

            You shall then indicate on the enclosed verdict form either:

We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life without possibility of parole;

or

            We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life.

The verdict must be unanimous and signed by each juror.


VERDICT - DEATH

            If you unanimously determine that at least one statutory aggravating circumstance or several statutory aggravating circumstances have been proven by the state, beyond a reasonable doubt, and said circumstance or circumstances have been proven by the state to outweigh any mitigating circumstance or circumstances, beyond a reasonable doubt the sentence shall be death.  The jury shall reduce to writing the statutory aggravating circumstance or statutory aggravating circumstances so found, and signify that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances outweigh any mitigating circumstances.

            You will write your findings and verdict upon the enclosed form attached hereto and made a part of this charge.  Your verdict shall be as follows:

            (1)       We, the jury, unanimously find the following listed statutory aggravating circumstance or circumstances;

            (2)       We, the jury, unanimously find that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances so listed above outweigh any mitigating circumstances.

            (3)       Therefore, we, the jury, unanimously find that the punishment shall be death.

            The verdict must be unanimous and signed by each juror.

            Take the case, consider all the evidence fairly and impartially, complete one of the three (3) forms, and report your verdict to the court.

                                                                        ______________________________

                                                                                                JUDGE

                                                                        ______________________________

                                                                                                DATE



PUNISHMENT OF LIFE IMPRISONMENT

            We, the jury, unanimously determine that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt.  We, the jury, therefore find that the sentence shall be imprisonment for life.

___________________________             _________________________

            JURY FOREPERSON                                              JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

                                                                           _________________________

                                                                                               DATE



PUNISHMENT OF IMPRISONMENT FOR LIFE WITHOUT POSSIBILITY OF PAROLE OR IMPRISONMENT FOR LIFE

            We, the jury, unanimously find that the state has proven the following listed statutory aggravating circumstance or circumstances beyond a reasonable doubt:

            (Here list the statutory aggravating circumstance or circumstances so found, which must be limited to those enumerated for your consideration by the court in these instructions.)

            We, the jury, unanimously find that such statutory aggravating circumstance or circumstances do not outweigh any mitigating circumstance or circumstances beyond a reasonable doubt, therefore:

CHECK ONE (1) BOX ONLY

            [  ]  We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life without possibility of parole; or

            [  ]  We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life.

___________________________             _________________________

            JURY FOREPERSON                                              JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

                                                                           _________________________

                                                                                               DATE


PUNISHMENT OF DEATH

            (1)  We, the jury, unanimously find the following listed statutory aggravating circumstance or circumstances:

            (Here list the statutory aggravating circumstance or circumstances so found, which must be limited to those enumerated for your consideration by the court in these instructions.)

____________________________________________________________

____________________________________________________________

____________________________________________________________

____________________________________________________________

            (2)  We, the jury, unanimously find that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances so listed above outweigh any mitigating circumstances.

            (3)  Therefore, we, the jury, unanimously find that the punishment for the defendant, ____________________________, shall be death.

___________________________             _________________________

            JURY FOREPERSON                                              JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

___________________________             _________________________

                        JUROR                                                           JUROR

                                                                           _________________________

                                                                                               DATE


FOOTNOTES



1.                  Although Tenn. Code Ann. §39-13-204(e)(2) requires that “the jury shall be instructed that a defendant who receives a sentence of imprisonment for life shall not be eligible for parole consideration until the defendant has served at least twenty-five (25) full calendar years of such sentence,” the Committee feels that this charge should not be given, as it is no longer a correct statement of the law. Tenn. Code Ann. §40-35-501(i) was enacted effective 7/1/95, which set release eligibility for Murder in the First Degree at 100%, but allowed up to 15% sentence credits earned and retained. Tenn. Code Ann. §40-35-501(h) had previously set release eligibility for a life sentence at 60% of 60 years, less sentence credits earned and retained.  Since these two sections of §40-35-501 are in direct conflict, it is the opinion of the Attorney General that that portion of section (h) in conflict with the new legislation has been repealed by implication.  See Attorney General Opinion 97-098.  The earliest possible release date for life imprisonment would therefore be 51 years (60 years at 100% less 15% sentence reduction credits earned and retained).  Charging the higher release eligibility of 51 years for a life sentence would also tend to benefit the defendant, and would be less likely to be held reversible error than the figure of 25 years. 

2.                    

2.         This definition of reasonable doubt has been approved by the Tennessee Supreme Court in State v. Hall, 976 S.W.2d 121, 158 (Tenn. 1998),cert denied         U.S.     , 119 S.Ct. 1501, 143 L. Ed. 2d 654 (1999) and the cases cited therein.

3.         The Tennessee Supreme Court has held that this “instruction should be used in substance in all future capital murder trials where impact evidence has been introduced” in State v. Nesbit, 978 S.W.2d 872 (Tenn. 1998), cert denied         U.S.      , 119 S.Ct. 1359, 143 L. Ed. 2d 520 (1999), which sets out guidelines for the use of such evidence.  See also Tenn. Code Ann. § 39-13-204(c)(Supp. 1998) for statutory authority allowing victim impact evidence, effective 7/1/98.

4.         Tenn. Pub. Acts 1996, ch. 830, §3, effective July 1, 1996.         

5.         Tenn. Pub. Acts 1997, ch. 358, effective May 30, 1997.

6.         Tenn. Pub. Acts 1997, ch. 491, effective July 1, 1997.

7.        Tenn. Pub. Acts 1997, ch. 712, effective July 1, 1998.

8.        Tenn. Pub. Acts 2002, ch. 849, effective July 4, 2002.

9.    Only use these definitions if charging the (i)(5) aggravator.

10.  It is error for the trial court “to charge any statutory mitigating               circumstances that were not raised by the evidence at the guilt or sentencing hearing.”  State v. Hartman, 703 S.W.2d 106, 118 (Tenn. 1985), cert denied 478 U.S.1010, 106 S.Ct. 3308, 92 L. Ed. 2d 721 (1986).  Any of the statutory mitigating circumstances not raised by the evidence (except for #9, beginning with “Any other mitigating factor which is raised by the evidence”) should be excluded, and the remaining statutory mitigators renumbered in the charge along with the nonstatutory mitigators.  Tenn. Code Ann. § 39-13-204(e)(1) only requires the trial judge to include “any mitigating circumstances raised by the evidence at either the guilt or sentencing hearing or both ....” (Emphasis supplied).

11.       The defendant wanting nonstatutory mitigators “must submit the requested instruction in writing to the trial court....”  State v. Odom, 928 S.W.2d 18, 31 (Tenn. 1996).  The trial judge should never instruct “fact specific” mitigators requested by the defense.  This would imply to the jury that the trial judge had made findings of fact in contravention of Article VI, §9 of the Tennessee Constitution.  Id. at 32.  Specificity on nonstatutory mitigators is inappropriate. “[I]nstructions on nonstatutory mitigating circumstances must be phrased in general categories similar to the statutory mitigating circumstances.... A trial court has no duty, absent a timely and proper request from the defense, to include instructions on nonstatutory mitigating circumstances.... However, when the defense proffers a requested instruction which is overly specific, it is incumbent upon the trial court to revise and generalize the instruction to conform to the evidence and the law.”(Citations and footnotes omitted).  State v. Hodges, 944 S.W.2d 346, 356 (Tenn. 1997), cert denied 522 U.S. 999, 118 S.Ct. 567, 139 L. Ed. 2d 407 (1997), citing Odom, supra.

12.       Note that this mitigating circumstance must be charged in every case.  It is a compilation of U.S. Supreme Court cases.

13.       Former Tenn. Code Ann. §39-13-204(e)(1) mandated that this language be included in the charge to the jury.  Tenn. Pub. Acts, ch. 139, effective April 29, 1997, repealed that portion of the statute and inserted language that “a reviewing court shall not set aside a sentence of death or imprisonment for life without the possibility of parole on the ground that the trial court did not specifically instruct the jury as to a requested” non-statutory mitigator.  See Attorney General Opinion 97-081, supporting the amendment’s constitutionality.