In Re: Adoption of the 2008 Revisions to the Oklahoma Uniform Jury Instructions, 2008 OK CR 10 (Okla. Crim. App. 4/2/2008), CCAD-2008-2.
| Decision Date | 02 April 2008 |
| Docket Number | No. CCAD-2008-2.,CCAD-2008-2. |
| Citation | 2008 OK CR 10 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | IN RE: ADOPTION OF THE 2008 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS—CRIMINAL (SECOND EDITION) |
ORDER ADOPTING AMENDMENTS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)
¶1 On August 30, 2007, The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its report and recommendations to the Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the report by the committee and recommendations for the adoption of the 2008 proposed revisions to the Uniform Jury Instructions. Pursuant to 12 O.S. 1991, § 577.2, the Court accepts that report and finds the revisions should be ordered adopted.
¶2 IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the report of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions shall be accepted, the revisions shall be available for access via the internet from this Court's web site at www.okcca.net on the date of this order and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and the District Courts of the State of Oklahoma are directed to implement the utilization of these revisions effective on the date of this order.
¶3 IT IS FURTHER ORDERED ADJUDGED AND DECREED the amendments to existing OUJI-CR 2d instructions, and the adoption of new instructions, as set out in the following designated instructions and attached to this order, are adopted to wit:
1-5; 1-8; 2-22; 4-6; 4-57; 4-57A; 4-57B; 4-78; 4-110; 8-33A; 9-33; 9-34; 9-35; 9-36; 9-37; 9-38; 9-39; 9-47
¶4 The Court also accepts and authorizes the updated committee comments to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows "(2008 Supp.)".
¶5 IT IS THE FURTHER ORDER OF THIS COURT that the members of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of Oklahoma.
¶6 IT IS SO ORDERED.
¶7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 2nd day of April, 2008.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN, Presiding Judge
/s/ Charles A. Johnson
CHARLES A. JOHNSON, Vice Presiding Judge
/s/ Charles S. Chapel
CHARLES S. CHAPEL, Judge
/s/ Arlene Johnson
ARLENE JOHNSON, Judge
/s/ David Lewis
DAVID LEWIS, Judge
OUJI-CR 1-5 EXAMINATION BY THE COURT
* * * * * *
Alternate 2 (Death Penalty)
The defendant is charged with murder in the first degree. It will be the duty of the jury to determine whether the defendant is guilty or not guilty after considering the evidence and instructions of law presented in court.
If the jury finds beyond a reasonable doubt that the defendant is guilty of murder in the first degree, the jury will then have the duty to assess punishment. The punishment for murder in the first degree is death, imprisonment for life without parole or imprisonment for life.
You may not consider imposing the death penalty unless you find that one or more aggravating circumstances exist beyond a reasonable doubt. Aggravating circumstances are those which increase the defendant's guilt or enormity of the offense. You also may not consider imposing the death penalty unless you unanimously find that the aggravating circumstance or circumstances outweigh any mitigating circumstances which may be present. Mitigating circumstances are 1) circumstances that may extenuate or reduce the degree of moral culpability or blame, or 2) circumstances which in fairness, sympathy or mercy may lead you as jurors individually or collectively to decide against imposing the death penalty. Even if you find that the aggravating circumstance(s) outweigh(s) the mitigating circumstance(s), you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole.
If you find the defendant guilty of murder in the first degree, can you consider all three of these legal punishments—death, imprisonment for life without parole or imprisonment for life—and weigh the aggravating circumstance(s) against the mitigating circumstances to impose the one punishment warranted by the law and evidence?
[If the answer to the preceding question is negative]
If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death/(imprisonment for life without parole)/(imprisonment for life), are your reservations about the penalty of death/(imprisonment for life without parole)/ (imprisonment for life) so strong that regardless of the law, the facts and circumstances of the case, you would not consider the imposition of the penalty of death/(imprisonment for life without parole)/(imprisonment for life)?
[Required To Be Asked In All Death Penalty Cases ] — If you find beyond a reasonable doubt that the defendant is guilty of murder in the first degree, will you automatically impose the penalty of death?
Alternate 2 shall be given when the crime charged is murder in the first degree and the death penalty is sought. The Oklahoma Court of Criminal Appeals emphasized in Hanson v. State, 2003 OK CR 12, ¶ 6, 72 P.3d 40, 46-47, that "[t]his Court has repeatedly held that, if a defendant so requests, either he or the trial court must ask prospective jurors whether they would automatically impose a sentence of death." While the Committee acknowledges that Morgan v. Illinois, 504 U.S. 719 (1992) does not require the last question to be asked absent the request of defense counsel, the Committee believes that the interests of justice and judicial economy will be best served if the trial court asks this question in all death penalty cases.
The punishments authorized in 21 O.S. 2001 § 701.9 are death, imprisonment of life without parole, and imprisonment for life.
The United States Supreme Court held in Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968), that the death penalty could not be carried out if it was imposed by a jury from which jurors had been excluded because they voiced general objection to the death penalty or conscientious or religious scruple to it. A juror may be challenged for cause, however, if that jurors's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980). See also Trice v. State, 1993 OK CR 19, ¶ 8, 853 P.2d 203, 209 (applying this standard). A juror should not be excused for cause because he or she disagrees with the death penalty or even if imposing it would do violence to the juror's conscience. Banks v. State, 1985 OK CR 60, ¶ 10, 701 P.2d 418, 422 (). Instead, the trial court's concern should be "whether each jury member will consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment." Duvall v. State, 1991 OK CR 64, ¶ 24, 825 P.2d 621, 630.
In addition to being willing to consider imposition of a death sentence, if warranted, a juror must also be willing to consider the alternative sentences of imprisonment for life without parole and imprisonment for life. The United States Supreme Court held in Morgan v. Illinois, 504 U.S. 719, 735 (1992), that a trial court's refusal to inquire into whether a potential juror would automatically impose the death penalty upon conviction of a defendant was a violation of due process of law. See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (). In Hanson v. State, 2003 OK CR 12, ¶¶ 6-8, 72 P.3d 40, 46-47, the Oklahoma Court of Criminal Appeals remanded for capital resentencing because the trial court did not allow defense counsel to ask whether any juror would automatically impose death.
Although Alternate 2 does not conform exactly to the language that the Court of Criminal Appeals recommended in Duvall v. State, supra, Alternate 2 is consistent with Duvall's holding. It also incorporates the requirement in Morgan v. Illinois, supra, that the trial judge should question the jurors about whether they would give appropriate consideration to life imprisonment as well as the death penalty. Cf. Hammon v. State, 1995 OK CR 33, ¶ 54, 898 P.2d 1287, 1300 ().
The Court of Criminal Appeals stated in Eizember v. State, 2007 OK CR 29, ¶ 64, n.10, ___ P.3d ___, 2007 WL 2142304, that the trial judge should inform the jury of the process to be followed for determining the punishment and elicit a response to whether the jurors would be able to follow that process.
You have been selected and sworn as the jury to try the case of the State of Oklahoma against [Name the Defendant(s)]. The defendant(s) is/are charged with the crime(s) of [Name the Crime Charged] by an information/indictment filed by the State.
The information/indictment in this case is the formal method of accusing the defendant(s) of [a] crime(s). The information/indictment is not evidence and...
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