Instructions Three through Ten were read to the jury by the Court.Instruction Three is that the jury is the final arbiter of what evidence and testimony presented in the trial is fact or not.Instruction Four asserted that the defendant is still assumed innocent unless proven guilty; that a charge of an offense is not in any way proof of a crime; that the State has the burden of proving the defendant guilty beyond a reasonable doubt; and defined the term "reasonable doubt".
Instruction Five gave the conditions under which the jury should consider whether the defendant guilty of Murder in the First Degree (Count One).
Instruction Six gave the conditions, should the jury not find the defendant guilty as per Instruction Five, under which the jury should consider the defendant guilty of Murder in the Second Degree on Count One; and failing said conditions, that the jury would then find the defendant Not Guilty.
Instruction Seven asserted that, if the defendant was found guilty of Murder in the First Degree, and that the jury believed he had used a deadly weapon in the murder, that he should also be found Guilty of Count Two, Armed Criminal Action.
Instruction Eight asserted that, if the defendant was found guilty of Murder in the Second Degree, and that the jury believed he had used a deadly weapon in the murder, that he should also be found Guilty of Count Two, Armed Criminal Action; however, if the jury were to find the defendant Not Guilty on Count One, they should find him Not Guilty on Count Two as well.
Instruction Nine ordered the jury to choose from among them a foreperson to preside over deliberations; that it was the individual responsibility of each juror to decide the facts of the case for themselves, after consideration of all evidence and after full discussion among all jurors; that any verdict, Guilty or Not Guilty, must be unanimous.
Instruction Ten stated that the prosecution and defense attorneys would make closing arguments, but that such arguments were not to be considered evidence; that the prosecution would open, the defense would follow, and that the prosecution would reply; and that it was each juror's duty to consider the evidence as best they remember it, to draw reasonable inferences from it, and to render as true and just a verdict as in their "reason and conscience".
Page 1162THE COURT:(The following proceedings were had in the courtroom out of the presence and hearing of the jury:)Before we get started, what will happen, the State will go first. The Defendant will be allowed to argue. Then the State will have a chance for rebuttal as is typically done.These lawyers have tried an excellent case. I would ask you, if at all possible, that you not leave during the course of argument if you can wait until the lawyers are done talking. These lawyers deserve the right, if at all possible, to conduct their closing argwnents without people coming and going.
So I would ask, if at all possible, you not leave during the course of closing argument. If you need to, there will be breaks in between if you need to. But if you could do that I would really appreciate it.
Let's get the jury.
Page 1163THE COURT:(The following proceedings were had inthe courtroom in the presence and hearing of the jury:)Everybody, please be seated.Ladies and gentlemen, there are additional instructions I'm going to read to you at this time.
As you may recall, I read to you two instructions numbered One and Two. 1 will not reread those instructions to you, but they will be part of the instruction packet that goes with you to the jury room.
The first instruction that I will read is numbered instruction number Three. It states as follows:
The law applicable to this case is stated in these instructions and the two which the Court read to you immediately after you were sworn as jurors. All of the instructions will be given to you to take to your jury room during your deliberations. You must not single out certain instructions and disregard others or question the wisdom of any rule of law.
Page 1164The Court does not mean to assume as true any fact referred to in these instructions, but leaves it to you to determine what the facts are.
Page 1165Instruction number Five: As to Count One, if you find and believe from the evidence beyond a reasonable doubt, first, that on October 22nd 1997, in the County of Jackson, State of Missouri, the Defendant caused the death of Anastasia WitbolsFeugen by shooting her; and second, that the Defendant knew that his conduct was practically certain to cause the death of Anastasia WitbolsFeugen; and third, that the Defendant did so after deliberation, which means cool reflection upon the matter, for any length of time, no matter how brief, then you will find the Defendant Guilty under Count One of Murder in the First Degree.However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the Defendant Not Guilty of murder in the first degree.
Instruction number Six: As to Count One, if you do not find the Defendant Guilty of murder in the first degree, you must consider whether he is Guilty of murder in the second degree.
Page 1166As to Count One, if you find and believe from the evidence beyond a reasonable doubt, first, that on or about October 22nd 1997, in the County of Jackson, State of Missouri, the Defendant caused the death of Anastasia WitbolsFeugen by shooting her; and, second, that the Defendant knew or was aware that his conduct was practically certain to cause the death of Anastasia WitbolsFeugen, then you will find the Defendant Guilty under Count One of Murder in the Second Degree.However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the Defendant Not Guilty of murder in the second degree.
Instruction number Seven: As to Count Two, if you find and believe from the evidence beyond a reasonable doubt, first, that the Defendant committed the offense of murder in the first degree as submitted in Instruction number Five; and, second, the Defendant committed that offense by or with or through the use or assistance or aid of a deadly weapon, you will then find the Defendant Guilty under Count Two of Armed Criminal Action.
Page 1167However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the Defendant Not Guilty of that offense.Instruction number Eight: As to Count Two, if you do not find the Defendant Guilty of Armed Criminal Action in connection with the offense of Murder in the First Degree, you must consider whether he is Guilty of Armed Criminal Action in connection with the offense of Murder in the Second Degree.
As to Count Two, if you find and believe from the evidence beyond a reasonable doubt, first, that the Defendant committed the offense of Murder in the Second Degree as submitted in instruction number Six; and second, that the Defendant committed that offense by or with or through the use or assistance or aid of a deadly weapon, then you will find the Defendant Guilty under Count Two of Armed Criminal Action.
Page 1168However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the Defendant Not Guilty of that offense.Instruction number Nine: When you retire to your jury room, you will first select one of your number to act as your foreperson and to preside over your deliberations. You will then discuss the case with your fellow jurors. Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with other jurors, and listened to the views of your fellow jurors.
Your verdict, whether Guilty or Not Guilty, must be agreed to by each juror. Although the verdict must be unanimous, the verdict should be signed by your foreperson alone. When you have concluded your deliberation, you will complete the applicable form to which you unanimously agree and return it with all unused forms and the written instructions of the Court.
Page 1169Instruction number Ten: The attorneys will now have the opportunity of arguing the case to you. Their arguments are intended to help you in understanding the evidence and applying the law, but they are not evidence.You will bear in mind that it is your duty to be governed in your deliberations by the evidence as you remember it the reasonable inferences you believe should be drawn, therefrom, and the law as given in these instructions.
It is your duty, and yours alone, to render such verdict under the law and the evidence as in your reason and conscience is true and just.
The State's attorney must open the argument. The Defendant's attorney may then argue the case. The State's attorney may then reply. No further argument is permitted by either side.
These instructions, as I said, will be given to you, and in a separate paper clip will be verdict forms for the various possibilities of verdict, and I think they'll be self-explanatory.
I would request that, when you return with your verdict, that you keep the verdict forms and instructions separate, if you would. The original of the instructions will be available for counsel should they desire to use them in argument.