6.Penalty-Phase Jury Instructions

THE COURT: All right, folks, lunch will be here shortly. It may be already here, I don't know. Anyway, let me give you my instructions, then like we did in the first phase, I'll ask you to step in the jury room, all 14 of you. I'll ask the lawyers any exceptions and if they're okay with. Joy and Whitney have a little more of the evidence to organize. We've got to move that. So it may be a good time after I send y'all back to start eating, I don't know. Ms. Miller, and ladies and gentlemen of the jury, it now becomes your duty to decide what sentence that the Court should impose upon the Defendant, Timothy R. Jones, Jr. There are two verdicts for you to consider. One is the death penalty and the other is life imprisonment without the possibility of parole. Now, please understand that I've got to discuss both verdicts with you and that there's no indication from the Court which one that I would decide.

I've got to talk about both of them, so there's no indication from me that I talk about one before the other that I have any -- it's your decision. I have to tell you about both of them. Now, I'm going to give you a copy of these charges just like I did in the first. So during your deliberations you can refer to your instructions to guide your decision making. You consider the instructions as a whole and don't follow some of the instructions and ignore others. The Constitution of law makes you, the jury, as the finders of facts and evidence, makes me as the Judge, the sole and only instructor of the law. You must accept as correct the law which I instruct and apply it to the evidence as you find it and reach a verdict. If you have a different understanding of what the law is, you must set that aside and accept the law as I am now instructing you.

And in that regard, I tell you that neither you nor I should be concerned about what we believe or what we think the law ought to be, but only concern ourselves with the law as I'm instructing it with what the facts to be at this time. Now, I want to explain to you exactly what the effect of your sentence recommendation. Because the verdict form will say the recommendation, will be for the Defendant, Timothy Jones. I tell you that one possible sentence is life without parole. And I mean exactly that, life without parole. He will never be eligible for parole and he will not be released from prison until his death. Second, whatever sentence you recommend to the Court, it is the sentence that I will impose. Because our statute refers to your decision as a recommendation, I want to be very clear. It is not a recommendation, but you normally use that word, but y'all's recommendation will be carried out.

So whatever sentence you recommend, whether it be life imprisonment without the possibility of parole or the death penalty, will be followed by this Court. Now, under the Constitution of the laws of South Carolina, you, as a group, are the sole fact finders in this case. And as such, as I instructed you in the first phase, you're the judges of the credibility or the believability of the witnesses who testified in the case. As the only fact finders in this case, you should have listened closely to the evidence presented. Weighing evidence is entirely a mental process. You weigh the evidence using your good judgment and your commonsense. Again, you must determine the credibility of the witnesses who have testified during this phase of the case. Credibility is believability. It becomes your duty as jurors to analyze and to evaluate the evidence and to determine which evidence convinces you of its truth.

So in determining the believability of witnesses who have testified, you can believe one witness over several, several witnesses over one. You can believe part of a witness' testimony and reject the remaining portion. You can believe the testimony of a witness in its entirety or you may reject the testimony of a witness in its entirety. You may consider whether any witness has exhibited to you any interest, bias, prejudice or another motive in this case. You can also consider the manner and appearance of a witness while on the witness stand. As I instructed you in the first phase, there are two types of evidence which are generally presented during trials, direct evidence and circumstantial evidence. Direct evidence proves the existence of a fact and does not require any deduction. Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of another fact.

Our law makes no distinction to the weight or value to be given to either direct or circumstantial evidence. You consider all the evidence that's been presented to you, consider it into making your verdict. I remind you there are witnesses who testified in this phase of the trial who were qualified as experts. Our rules of evidence normally do not allow people -- permit witnesses to testify as to opinions and conclusions. An exception to that rule is for witnesses we call expert witnesses. They, by cause of education and experience, have become an expert in art or science, profession may give opinions as to the subject matter they claim to be an expert opinion in that field. They may also give their reasons for these opinions. So you should consider any expert opinion given by any expert witness, and like any other evidence, give it the weight you deem appropriate and you believe it deserves.

If you decide that an expert witness' opinion is not based -- I'm sorry, if you decide the reasons given in support of the opinion are not sound or the opinion is outweighed by other evidence, you may disregard the opinion entirely. An expert witness' testimony is to be given no greater weight than that of other witnesses simply because the witness is an expert. You do not have to accept an expert's opinion even though it's not contradicted. Now, I instruct you that a vital and basic rule -- I instructed you in the first phase of this exact thing again. The person who is on trial in a criminal case is not required to testify in their own behalf. Furthermore, it's not a factor which may be considered by any one of you in any way, shape or form or fashion during your deliberations. It must not be considered by any one of you in any manner whatsoever in determining whether life imprisonment without parole or the death penalty is the appropriate punishment.

It is not even proper for any one of you to mention the fact that Mr. Jones chose to not testify or present during the sentencing phase of this case, just as it wasn't proper for you to discuss it during the first phase. You've also heard testimony and a stipulation regarding the prior record of Mr. Jones. You're not to consider that prior record in any way in your determination as to whether an aggravating factor has been proven by the State. The State must prove independently that the Defendant has committed an aggravating factor beyond a reasonable doubt. And the fact that Mr. Jones has a prior conviction should not be considered in your deliberations as to whether the State has proven the statutory aggravator beyond a reasonable doubt. It may be considered only as a part of the Defendant's characteristics. Now, as members of the jury, first decision y'all have got to make, kind of steps to go through.

As you begin your deliberations, you've got to determine whether Timothy Jones is eligible to be sentenced to death. So according to our law, the Defendant is eligible to be sentenced to death only if you unanimously find the State has presented evidence sufficient to prove beyond a reasonable doubt the existence of a statutory aggravating factor. So that means, before you can consider the appropriate punishment, life or death, you must decide first whether the State's proven a statutory aggravating factor circumstance beyond a reasonable doubt. I define for you that a statutory aggravating factor is a fact, an incident, a detail or an occurrence that our State legislature has declared to be a circumstance that makes worse or aggravates the offense of murder. It is something that is deemed by law to increase the enormity of the crime, to make it worse and add or adds to the injurious consequences of the offense of murder.

The statutory aggravating circumstances propounded by the State for you to consider in this case are one: Two or more persons were murdered by the Defendant by one act, pursuant to one scheme or course of conduct. The other is the murder of a child 11 years or younger. Now, I must emphasize that these are the only circumstances you can consider as aggravating factors in this case. If you cannot unanimously agree that the State has proven at least one of those aggravating circumstances beyond a reasonable doubt, you would proceed no further in your deliberations. That's because the Defendant may not be sentenced to death unless a jury unanimously decides the State has proven beyond a reasonable doubt that an aggravating circumstance exist. I remind you, the term beyond a reasonable doubt means the kind of doubt that would cause a reasonable person to hesitate to act.

I also tell you that reasonable doubt may arise from evidence which is in the case or from the lack or absence of evidence in this case. Reasonable doubt is a doubt which one can assign a reason if the assignment can be done reasonably, firmly and convincingly. A reasonable doubt is the kind of doubt that would make a reasonable, conscientious and honest person hesitate to act in a matter important to his or her own affairs. If you unanimously decide that the State has proven at least one of the statutory aggravating circumstances beyond a reasonable doubt, then and only then may you proceed with your deliberations to consider whether a life without parole sentence is appropriate or a death sentence is the most appropriate punishment for Mr. Jones.

Now, if you determine an aggravating factor has been proven by the State beyond a reasonable doubt, you may proceed to decide whether to recommend that Timothy Jones is to receive a life without the possibility of parole sentence or the death sentence. I instruct you that even if you find the presence of at least one statutory aggravating circumstance, you must remain openminded as to the appropriate punishment to impose. And that the finding of an aggravating circumstance does not create the presumption that you should impose the death penalty. The death penalty is only an option. It is not a requirement. It is never mandatory for you to impose that sentence. Our law requires that you give meaningful consideration not only to the aggravating circumstances but also to mitigating circumstances which the evidence shows. I instruct you that in a Capital murder case, you must consider mitigating circumstances. There are two types of mitigating circumstances.

There are statutory mitigating circumstances and nonstatutory mitigating circumstances. A statutory mitigating circumstance is a fact, an incident, a detail or an occurrence which the South Carolina Legislature has declared by statute would reduce the severity of the offense of murder. It is a circumstance recognized under the laws of South Carolina as one, which in fairness and mercy, may be considered by the jury to determine the sentence. A mitigating circumstance is neither a justification nor an excuse for the murder. It simply lessens the degree of one's guilt, that is makes the Defendant less blameworthy or less culpable.

The list of statutory mitigating factors enacted by the General Assembly under our Code of Law appropriate in this case are as follows: One, the murder was committed while the Defendant was under the influence of mental or emotional disturbance; two, the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; the age or mentality of the Defendant at the time of the crime; four, the Defendant has no significant history of prior criminal conviction involving the use of violence against another person. You must also consider any nonstatutory mitigating circumstances. A nonstatutory mitigating circumstance is one which is not provided for by statute, but is one which serves the same purpose.

And that is a fact or circumstance of the crime or any aspect of the character or history of the Defendant that tends to show that he should be sentenced to life imprisonment without the possibility of parole rather than death. A mitigating factor can be anything, any single factor that you, any Juror, determined to be a mitigating circumstance. I remind you, also, it's not necessary for you to find the existence of any mitigating circumstances unanimously nor beyond a reasonable doubt. Each of you are free to find the existence of mitigating circumstances based upon any evidence that has been presented to you during this trial, even if no one mentioned that a certain fact amounted to a mitigating circumstance. I instruct you that Mr. Jones does not bear the burden of proving any mitigating evidence or factors. Because I remind you, the jury does not have to unanimously agree on any mitigating circumstances or factors. The jurors are allowed and can find separate mitigating factors.

Each Juror is free to give whatever weight he or she feels appropriate to any aggravating or mitigating circumstances. In considering these factors, you simply don't count the number of aggravating factors and then count the number of mitigating factors like a math question. It is not that. Our law requires each individual Juror to decide, based upon his or her own life experiences whether life imprisonment or the death penalty is the appropriate punishment in that juror's own mind. Each Juror is free to give such consideration as he or she deems appropriate to all of the circumstances in the case. I also instruct you that the existence of a statutory or nonstatutory mitigating circumstance or both is not an automatic ban to the imposition of the death penalty. It is for you to consider in your determination of the appropriate sentence for Mr. Jones.

It is also permissible for a Juror to decide that life without parole is the appropriate punishment for any reason or for no reason at all. You're not required to make a finding that the mitigating factors outnumber the aggravating factors. You are free to impose a sentence of life without parole for absolutely no reason, even if you find the existence of aggravating circumstances and find no mitigating circumstances. This is what's traditionally been referred to as a sentence based upon mercy. In other words, you may choose to recommend a life imprisonment without the possibility of parole if you find a statutory or nonstatutory circumstances or you choose to recommend life of imprisonment as an act of mercy. I remind you, also, that -- y'all have taken notes during the trial and your notes are the same, allowed in this case as they were in the earlier phase. Your notes should be used only to aid your memory.

They should not be allowed to take precedence over any other independent memory of facts or testimony. The notes are only for the juror's personal use in refreshing his or her recollection of the evidence. When in deliberations, commence shortly, do not rely on the recollection of a Juror who took notes about the testimony solely because that Juror took notes. You should not be unduly influenced by the notes of any other jurors. Sometimes notes can be wrong. Notes are not entitled to any greater weight than each juror's memory of the evidence or testimony presented. Those jurors who did not take notes should rely on their independent recollection of the evidence and not be influenced by any other factors of other jurors who may have taken notes. A note taker's notes do not trump a good listener's memory. Every Juror, whether they're a note taker or whether a listener, has a separate vote to the verdict. Now, we've got the verdict forms, I'll show you.

And the first one deals with the resolution or consideration of the statutory aggravating factor first. That's form one. That will be considered first. You must unanimously conclude that one or more of the aggravating circumstances has been proven beyond a reasonable doubt. Then you designate which circumstance, or aggravating circumstances were found. There's a couple of lines there to write those. So if the jury unanimously decides an aggravating factor has been proven beyond a reasonable doubt, you will write that aggravating factor there. If you find unanimously that an aggravating factor was not proven, that will be where you check that box. If you don't resolve whether an aggravating factor was found or not, you will check that box. Now, if you find that one of the statutory aggravating circumstances was proven by the State, you move to the next page. And there are two pages.

And that's which punishment you conclude to be the most appropriate, life without parole or the death penalty. If you unanimously decide that life imprisonment without the possibility of parole is the proper sentence, then the Foreperson will sign that form. If you find that -- that form is signed, your deliberations come to an end upon reaching that finding. However, if you unanimously decide that the death penalty is the proper sentence, then that form designating that recommendation should be signed by each Juror. That form should only be signed if the jury unanimously finds that the punishment of the death penalty should be handed down and recommended to the Court. Now, I, again, remind you there's no significance to the order which I've presented the two verdict forms. You'll have both of them if you find the aggravating factor.

Now, in considering whether to recommend whether the Defendant should be sentenced to death or life, I charge you that as jurors that you must decide the issue involved in this proceeding without bias, without prejudice to either party, to any party. Y'all have been elected and selected as fair and impartial jurors, sworn to impartially try and determine the facts in this case. And when you comply with that oath to do that, no one will have the right to criticize your verdict. You will have fully discharged your duty as jurors by doing so. You're to decide this case according to the testimony that you have heard from the sworn witnesses, along with the other evidence which has been introduced during this trial. You cannot allow yourself to be governed by prejudice, passion, public opinion or any other arbitrary factors. As I told, you during the jury qualification, I want y'all, as a group, to make your decision based on what you hear in here and not outside influences.

Now, the State and the Defense both have the right to expect that each of you will carefully and impartially consider all the evidence in this case and you will follow the law as I have instructed it. All right. I want y'all to step in the jury room, all 14 of you. I'm going to make certain the evidence is consistent, discuss my instructions with the lawyers. You cannot begin discussing the case until we bring the verdict forms to you and the evidence to you. If lunch is here and y'all want to start eating, all 14 of you, you may do so. But once the deliberations begin, I will pull the two alternates out. So y'all step in the jury room. If I need you back in here, I'll call you back in here for further instructions. (WHEREUPON, the jury was excused from the courtroom at approximately 12:24 p.m.)