414.00		SUPPLEMENTAL NOTES ON USE APPLICABLE TO 414.00 SERIES 
	1.	Reservation of constitutional and other questions 
		The homicide instructions and charges have been adopted without judicially deciding or foreclosing any legal, constitutional, procedural, instructional, or other issue that may arise in cases tried under sections 565.001 to 565.040, RSMo, even though the procedures, instructions, and Notes on Use adopted by the Court are followed and used.
2.	Submission of lesser included offenses - general
	Pursuant to State v. Jackson, 433 S.W.3d 390 (Mo. banc 2014), a party is entitled to an instruction on any theory the evidence establishes. The jury has the right to disbelieve all or any part of the evidence and the right to refuse to draw inferences from the evidence. Id. Pursuant to Jackson, this right of the jury to disbelieve the evidence and not draw inferences always supplies a sufficient basis in the evidence for acquitting the defendant of the charged offenses for purposes of determining when the court may instruct on a lesser included offense or must do so when a proper request for such an instruction is made. Id. A defendant is not required to put on affirmative evidence, cast doubt on the state's evidence, or negate the differential element of the greater offense for this to be true. Id. And, where the lesser included offense differs from the charged offense only in that it omits one element on which the state bears the burden of proof (i.e., a "nested" lesser included offense, see section 556.046.1(1), RSMo), evidence sufficient for the jury to find all of the elements of the charged offense necessarily is sufficient to find all of the elements of the "nested" lesser included offense. Therefore, the court may give (and, if a party makes a proper request, must give) an instruction for a "nested" lesser included offense. Id.  
	A person may be convicted of any offense that is included in an offense that has been charged. An offense is considered an included offense when:
(1)	it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2)	it is specifically denominated by statute as a lesser degree of the charged offense; or
(3)	it consists of an attempt to commit the offense charged or an attempt to commit an offense otherwise included therein.
Section 556.046.1, RSMo Cum. Supp. 2022. See Notes on Use 3(b) to MAI-CR 4th 404.02 for the language to be used in the introductory paragraphs for lesser included verdict directors.
	In 2022, section 556.046, RSMo, was amended to provide that a trial court is not obligated to submit an instruction to the jury on a lesser included offense "unless there is a rational basis for a verdict acquitting the person of the offense charged and convicting him or her of the included offense," section 556.046.2, RSMo Cum. Supp. 2022, and that the court "shall be obligated to instruct the jury with respect to a particular included offense only if the instruction is requested and there is a rational basis in the evidence for acquitting the person of the immediately higher included offense and convicting the person of that particular included offense," section 556.046.3, RSMo Cum. Supp. 2022.
	Under Rule 28.02, a party shall submit to the court any lesser included instruction the party requests be given.  In order to be required to be given, the proffered instruction must be in the proper form. State v. Blurton, 484 S.W.3d 758, 769 (Mo. banc 2016). Even if a defendant does not make a proper request, a valid postconviction claim may exist if the failure to request the instruction is inadvertence by trial counsel rather than reasonable trial strategy. McNeal v. State, 412 S.W.3d 886, 892 (Mo. banc 2013).
	Section 565.029, RSMo 2016, sets out the lesser degree offenses of first- and second-degree murder charges. See also the Supplemental Notes on Use in MAI-CR 4th 414.00 for a discussion on submitting lesser included offenses in homicides.
	3.	Submission of lesser included homicide offenses
		Section 565.029, RSMo 2016, sets out the lesser degree offenses of first- and second-degree murder charges.  Section 565.029.1, RSMo 2016, provides that:
				With the exceptions provided in subsection 3 of this section and subsection 3 of section 565.021, section 556.046 shall be used for the purpose of consideration of lesser offenses by the trier in all homicide cases.

	Section 565.029.3, RSMo 2016, provides that “[n]o instruction on a lesser included offense shall be submitted unless requested by one of the parties or the court.”  Section 565.021.3, RSMo 2016, provides, "[n]otwithstanding section 556.046 and section 565.029, in any charge of murder in the second degree, the jury shall be instructed on, or, in a jury-waived trial, the judge shall consider, any and all of the subdivisions in subsection 1 of this section which are supported by the evidence and requested by one of the parties or the court."  
		Note, however, that in capital cases there are constitutional issues raised by the failure to submit a lesser included offense when such is supported by the evidence, unless a lesser included offense instruction is waived by the defendant.  See Beck v. Alabama, 447 U.S. 625 (1980); Schad v. Arizona, 501 U.S. 624 (1991); State v. Black, 50 S.W.3d 778, 788 (Mo. banc 2001); State v. Ervin, 835 S.W.2d 905, 922 (Mo. banc 1992).

(A) When murder in the first degree is the highest degree submitted
		When murder in the first degree is the highest degree submitted, MAI-CR 4th 414.02 will be used to submit murder in the first degree.  As to the lesser included offenses: 
	(1)	MAI-CR 4th 414.04 on murder in the second degree - conventional will be given
(a)	if justified by the evidence; and 
(b)	if requested by one of the parties or on the Court's own motion.
		The presence of "deliberation" is the basic element that distinguishes first-degree murder from second-degree conventional murder. Deliberation, being subjective, usually may be established only by inference and must be established beyond a reasonable doubt for a conviction of first-degree murder. Because the jury has the right to disbelieve all or any part of the evidence and the right to refuse to draw inferences from the evidence, when there is sufficient evidence to support a finding of deliberation, there will also be a basis for inferring the absence of deliberation and an instruction on second-degree murder as an included offense will be appropriate.  State v. Jackson, 433 S.W.3d 390, 400-02 (Mo. banc 2014)
	(2)	MAI-CR4th 414.06 on murder in the second degree - felony will be given
(a)	if proper notice of the state's intention to rely on a particular felony has been made (see Notes on Use 8 to MAI-CR 4th 414.06); and
(b)	if justified by the evidence; and
(c)	if requested by one of the parties or on the Court's own motion. 
		Even if the state has not given proper notice, MAI-CR 4th 414.06 on murder in the second degree - felony will be given
 			(a)	if requested by the defendant; and
 			(b)	if justified by the evidence.
		Where appropriate, both forms of second-degree murder (conventional, MAI-CR 4th 414.04, and felony, MAI-CR 4th 414.06) can be submitted as lesser included offenses of first-degree murder.		
		(3)	MAI-CR 4th 414.08 on voluntary manslaughter will be given
(a)	if sufficient evidence of sudden passion arising from adequate cause has been introduced; and
(b)	if second-degree murder - conventional has been submitted (MAI-CR 4th 414.04); and
(c)	if requested by one of the parties or on the Court's own motion.
		Voluntary manslaughter as submitted in MAI-CR 4th 414.08 covers only the situation where second-degree murder - conventional has been submitted with optional paragraph (Third) of MAI-CR 4th 414.04 because there was evidence supporting the mitigating factor of sudden passion arising from adequate cause. The burden of injecting the issue of sudden passion arising from adequate cause is on the defendant.  If there is not sufficient evidence of such, voluntary manslaughter cannot be submitted as a lesser included offense.
	(4)	MAI-CR 4th 414.10 on involuntary manslaughter in the first degree will be given 
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		The basic distinction between involuntary manslaughter in the first degree and the other higher degrees of criminal homicide is the element of "recklessness" required for involuntary manslaughter in the first degree. For involuntary manslaughter in the first degree to be submitted there must be sufficient evidence to support a finding of recklessness. For a discussion of what evidence is sufficient to support a finding of recklessness, see State v. Thomas, 161 S.W.3d 377, 380-81 (Mo. banc 2005).
		(5)	MAI-CR 4th 414.14 on involuntary manslaughter in the second degree will be given
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		Involuntary manslaughter in the first degree, as submitted in MAI-CR 4th 414.10, requires that the defendant act "recklessly," whereas involuntary manslaughter in the second degree requires that the defendant act with "criminal negligence."  If the evidence justifies a submission of involuntary manslaughter in the first degree as a lesser degree offense, that evidence will ordinarily support a submission of involuntary manslaughter in the second degree as well.

(B) When murder in the second degree - conventional is the highest degree submitted 
		When murder in the second degree - conventional is the highest degree submitted, MAI-CR 4th 414.04 will be used to submit this form of second-degree murder.  As to the alternative form of second-degree murder, murder in the second degree - felony, and the lesser included offenses: 
	(1)	MAI-CR 4th 414.06 on murder in the second degree - felony will be given 
				(a)	if proper notice of the state's intention to rely on a particular felony has been made (see Notes on Use 8 to MAI-CR 4th 414.06); and
				(b)	if justified by the evidence; and
				(c)	if requested by one of the parties or on the Court's own motion.
		Even if the state has not given proper notice, MAI-CR 4th 414.06 on murder in the second degree - felony will be given
				(a)	if requested by the defendant; and
 			(b)	if justified by the evidence.
		Where appropriate, both forms of second-degree murder can be submitted as to the same homicide.  See Section 565.021.3, RSMo 2016.
	(2)	MAI-CR 4th 414.08 on voluntary manslaughter will be given 
				(a)	if sufficient evidence of sudden passion arising from adequate cause has been introduced; and
 			(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(3) above for a discussion of voluntary manslaughter as a lesser included offense of murder in the first degree.
	(3)	MAI-CR 4th 414.10 on involuntary manslaughter in the first degree will be given 
 			(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(4) above for a discussion of involuntary manslaughter in the first degree as a lesser included offense of murder in the first degree.
			(4)	MAI-CR 4th 414.14 on involuntary manslaughter in the second degree will be given
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(5) above for a discussion of involuntary manslaughter in the second degree as a lesser included offense of murder in the first degree.

(C) When murder in the second degree - felony is the highest degree submitted 
		When murder in the second degree - felony is the highest degree submitted, MAI-CR 4th 414.06 will be used to submit that form of second-degree murder. Note that any submission of murder in the second degree - felony requires notice of the state's intention to rely on a particular felony.  See Notes on Use 8 to MAI-CR 4th 414.06. 
		As to the lesser included offenses: 
	(1)	MAI-CR 4th 414.10 on involuntary manslaughter in the first degree will be given 
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(4) above for a discussion of involuntary manslaughter in the first degree as a lesser included offense of murder in the first degree.
			(2)	MAI-CR 4th 414.14 on involuntary manslaughter in the second degree will be given
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the 
					Court's own motion.
		See paragraph 4(A)(5) above for a discussion of involuntary manslaughter in the second degree as a lesser included offense of murder in the first degree.
			(3)	No instruction on voluntary manslaughter can be given as a lesser included offense to murder in the second degree - felony. An instruction on voluntary manslaughter as a lesser included offense can only be given if an instruction on murder in the second degree - conventional (MAI-CR 4th 414.04) has been given.

(D) When voluntary manslaughter is the highest degree submitted
 	Voluntary manslaughter will only rarely be submitted as the highest degree. See Notes on Use 5 to MAI-CR 4th 414.08.  However, in such cases, MAI-CR 4th 414.08 will be used to submit voluntary manslaughter.
		As to the lesser included offenses:
 			(1)	MAI-CR 4th 414.10 on involuntary manslaughter in the first degree will be given
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(4) above for a discussion of involuntary manslaughter in the first degree as a lesser included offense of murder in the first degree.
	(2)	MAI-CR 4th 414.14 on involuntary manslaughter in the second degree will be given
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(5) above for a discussion of involuntary manslaughter in the second degree as a lesser included offense of murder in the first degree.

(E) When involuntary manslaughter in the first degree is the highest degree submitted
		When involuntary manslaughter in the first degree is the highest degree submitted, MAI-CR 4th 414.10 will be used to submit involuntary manslaughter in the first degree.
		As to the lesser included offenses:
		MAI-CR 4th 414.14 on involuntary manslaughter in the second degree will be given
				(a)	if justified by the evidence; and
				(b)	if requested by one of the parties or on the Court's own motion.
		See paragraph 4(A)(5) above for a discussion of involuntary manslaughter in the second degree as a lesser included offense of murder in the first degree.
	4.	Second stage of the homicide trial
		(1)	When the jury has found the defendant guilty of murder in the first degree and the death penalty has been waived or guilty of murder in the second degree, voluntary manslaughter, or involuntary manslaughter in the first or second degrees:
		(a)	if the defendant is a prior, persistent, dangerous or persistent misdemeanor offender, there will be no second stage proceedings and the Court will assess the punishment. Section 565.030.3, RSMo 2016. 
		(b)	if the defendant is not a prior, persistent, dangerous or persistent misdemeanor offender, there will be second stage proceedings. See Chapter 405 and the applicable Notes on Use.
		(2)	When the jury has found the defendant guilty of murder in the first degree for a homicide committed on or after August 28, 2001 and the death penalty has not been waived:
		(a)	Court reads MAI-CR 4th 414.30 and 414.31, as well as 414.32 (if evidence will be presented) or 414.33 (if evidence will not be presented).
		(b)	If evidence is to be presented, attorneys may make opening statements, and evidence is then presented.
		(c)	Court reads MAI-CR 4th 414.38 (if it is supported by evidence), 414.40, 414.44, 414.46, 414.48, and any other instructions made applicable according to Notes on Use. If there is more than one count of murder in the first degree where the death penalty was not waived, repeat this series of instructions for each such count. See Notes on Use 5 to MAI-CR 4th 414.30.  
		(d)	Court reads MAI-CR 4th 414.49.
		(e)	Closing arguments of counsel.
		(f)	Jurors deliberate and return verdict using MAI-CR 4th 414.58.

	5.	Jury instructions when jury is hearing only second stage of the homicide trial
		When a defendant has previously been convicted of murder in the first degree in an earlier proceeding and there is a retrial on the second stage only, certain instructions must be modified.  The Appendix to Chapter 414 contains the approved modifications. Similar modifications should be made on second stage retrials for offenses committed on or after August 28, 2001.
		(A) When the defendant has been found guilty of murder in the first degree for a homicide committed after August 28, 2001.
		(1)	Instructions read, but not given to the jury.
	(a)	MAI-CR 4th 400.02, with modification, must be read to the jury panel prior to voir dire.
	(b)	MAI-CR 4th 400.03, with modification, must be read to the jury panel immediately before the commencement of the "death qualification" phase of voir dire.
	(c)	MAI-CR 4th 400.04 must be read at the first recess, either during the voir dire examination or at its conclusion and at subsequent recesses or adjournments.
	(d)	MAI-CR 4th 400.06, with modification, must be read to the jury after the jury is sworn and before any other instruction.
		(2)	Instructions read and given to the jury.
	(a)	These instructions must be read before opening statements:
							MAI-CR 4th 402.01
			MAI-CR 4th 402.02
				MAI-CR 4th 414.30, with modification
	MAI-CR 4th 414.31, with modification
		MAI-CR 4th 414.32, with modification
These instructions will be given to the jury along with the other instructions for use during its deliberations.  They will be numbered as Instructions 1, 2, 3, 4, and 5.
		(b)	These instructions will be read at the close of evidence and before closing argument and given to the jury for use during its deliberations:
	MAI-CR 4th 414.38 (if evidence supports the submission and defendant has not waived it)
				MAI-CR 4th 414.40
				MAI-CR 4th 414.44, with modification
				MAI-CR 4th 414.46
							MAI-CR 4th 414.48, with modification
		Other instructions made applicable according to Notes on Use.
		MAI-CR 4th 414.49, which should be given as the last instruction.
(c)	After closing argument, jurors deliberate and return verdict using MAI-CR 4th 414.58, with modification.
		See Appendix immediately following MAI-CR 4th 414.00 — Supplemental Notes on Use Applicable to 414.00 Series.

	6.	Transferred Intent
		Under Section 565.003.1, RSMo 2016, "[t]he culpable mental state necessary for a homicide offense may be found to exist if the only difference between what actually occurred and what was the object of the offender's state of mind is that a different person or persons were killed." When the state's theory of guilt is based upon the doctrine of transferred intent and that theory is supported by evidence, the verdict directing instruction must be modified.
		The following is a sample modification of a verdict directing instruction to reflect a theory of transferred intent, using the form of MAI-CR 4th 414.02:
	If you find and believe from the evidence beyond a reasonable doubt:
	First, that on or about July 15, 2003, in the County of Boone, the defendant caused the death of John Doe by shooting at Jane Smith and hitting John Doe, and
	Second, that it was defendant's purpose to cause the death of Jane Smith, and
	Third, that defendant did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief, and
	Fourth, that defendant was eighteen years of age or older at the time of the offense, 
then you will find the defendant guilty 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.
The instructional modification for transferred intent will vary according to the elements of the offense submitted and the evidence presented.
		The doctrine of "transferred intent" also applies to self-defense when the defendant, acting in self-defense as to an attacker, unintentionally kills a bystander and is prosecuted for the murder or manslaughter of the bystander. See State v. Zumwalt, 973 S.W.2d 504 (Mo. App. S.D. 1998); Notes on Use 10 to MAI-CR 4th 406.06.

APPENDIX TO CHAPTER 414

	The following forms are examples and should be updated as necessary with current MAI-CR 4th instructions.  Note that language added to modify the instructions is in bold italics. Language deleted to modify the instructions is crossed out.  Instructions that are to be given, but that are not modified, are not included in this appendix.
 
[MODIFIED]
400.02	BEFORE VOIR DIRE

		Today's trial for which you have been called for jury service is a criminal case. The defendant(s) (has) (have) previously been found guilty of the murder(s) in the first degree of [Insert name of victim(s)]. A jury must now determine the appropriate punishment for (that) (those) murder(s), subject to instructions concerning the law that the court will give to the jury. The jury is obligated to follow those instructions.
		A trial of a criminal case begins with the selection of a jury of qualified and impartial people. In order to obtain such a jury, all of you have been summoned as prospective jurors. From your number, a jury will be selected to hear the case.
		It is necessary that you be asked various questions. Your answers will assist the court in determining whether it should excuse you from serving in this case and will assist the attorneys in making their selection of those who will hear the case. Thus, the questions that will be asked of you are not meant to pry into your personal affairs.  Rather they are a necessary part of the process of selecting a jury.
		Since this is an important part of the trial, you are required to be sworn before questions are asked.  Please rise now and be sworn to answer questions.
[The panel will be sworn.]
		Please listen carefully to all questions. Take your time in answering questions. Some of the questions may require you to recall experiences during your entire lifetime. Therefore, search your memory before answering.
		Because personal opinions, biases, and other beliefs, whether conscious or unconscious, favorable or unfavorable, can affect your thoughts, how you remember, what you see and hear, whom you believe or disbelieve, and how you make important decisions, the attorneys may ask you some questions related to these issues. Your answers must not only be truthful but they must be full and complete.
		If you do not understand the question, raise your hand and say so. If, later on, during the examination, you remember something that you failed to answer before, or that would modify an answer you gave before, raise your hand and you will be asked about it. If your answer to any of these questions involves matters that are personal or private, you may so indicate and you will be given an opportunity to state your answer at the bench.
		The trial of a lawsuit involves considerable time and effort, and the parties are entitled to have their rights finally determined. The failure on your part fully and truthfully to answer questions during this stage of the trial could force the parties to have to retry the lawsuit at some future date.
The Court instructs you that, in order to consider the death penalty, you must find one or more statutory aggravating circumstances beyond a reasonable doubt. The burden of causing you to find the statutory aggravating circumstances beyond a reasonable doubt is upon the state.
		A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.
		Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the truth of a proposition. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that a proposition is true, then you may so find. If you are not so convinced, you must give the defendant the benefit of the doubt and must not find such proposition to be true.
		Are there any of you who, if selected as a juror, could not, for any reason, follow that instruction?  If so, please raise your hand.
		It is your duty to follow the law as the court gives it to you in the instructions even though you may disagree with it. Are there any of you who would not be willing to follow all instructions that the court will give to the jury? If so, please raise your hand.
		[Introduce the attorneys and ask such additional questions as the court deems appropriate.]
		The prosecutor will question you first and then counsel for the defendant will question you.
		Counsel for the state may proceed.
	[The attorney does.]

[MODIFIED]
400.03	BEFORE PUNISHMENT VOIR DIRE IN A CAPITAL CASE

At this stage of the jury selection process, the attorneys are permitted to question you concerning your views on punishment.  The fact that questions are being asked about punishment at this time should not be taken by you as any indication that the defendant(s) in the case before you (is) (are) guilty of the crime(s) charged. Nothing that is said by the attorneys or by another prospective juror during this process is evidence, and you should not let any such statements influence you in any way.
The possible punishments for the offense of murder in the first degree are imprisonment for life without eligibility for probation or parole, or death. The purpose of this questioning is to discover whether or not you are able to consider both of these punishments as possible punishments.
A case in which the death penalty is a possible punishment is tried in two stages.  In the first stage, the jury must decide whether the defendant is guilty or not guilty.  If the defendant is found guilty of murder in the first degree, a second stage is held in which the jury must decide upon the appropriate punishment.
If a second stage is reached in this case, The Court will instruct the jury as to the process it must follow to reach its decision on punishment. For present purposes, you should be aware that a conviction of murder in the first degree does not automatically make the defendant eligible for the death penalty. Before the jury may consider imposing the death penalty, it may be asked to consider whether or not the defendant is intellectually disabled. If the jury unanimously finds that it is more likely to be true than not true that the defendant is intellectually disabled, the defendant cannot be sentenced to death.
	 	Before the jury may consider imposing the death penalty, it must also find, unanimously and beyond a reasonable doubt, that the evidence establishes the existence of at least one special fact or circumstance specified by law, called a statutory aggravating circumstance. If no statutory aggravating circumstance is found, the defendant cannot be sentenced to death.  
		Even if the jury does find at least one statutory aggravating circumstance, it still cannot return a sentence of death if it unanimously decides that the evidence in mitigation of punishment outweighs the evidence in aggravation of punishment.  
		And if the jury does not unanimously decide that the evidence in mitigation of punishment outweighs the evidence in aggravation of punishment, the jury is still not required to return a sentence of death.  The jury is never required to return a sentence of death.
		Counsel for the state may proceed.

[MODIFIED]
400.06	AFTER THE JURY IS SWORN

This case will proceed in the following order:
First, the Court will read to you two instructions concerning the law applicable to this case and its trial.  Next, the attorney for the state must make an opening statement outlining what the attorney expects the state's evidence will be. The attorney for the defendant is not required to make an opening statement then or at any other time.  However, if the attorney chooses to do so, he may make an opening statement after that of the state, or the attorney may reserve his opening statement until the conclusion of the state's evidence.
Evidence will then be introduced.
At the conclusion of all of the evidence, further instructions in writing concerning the law will be read to you by the Court, after which the attorneys may make their arguments. You will then be given the written instructions of the Court to take with you to your jury room. You will go to that room, select a foreperson, deliberate, and arrive at your verdict.
Sometimes there are delays or conferences out of your hearing with the attorneys about matters of law. There are good reasons for these delays and conferences. The Court is confident that you will be patient and understanding.  We will have recesses from time to time.
The following two instructions of law are for your guidance in this case. Those instructions, along with other instructions in writing read to you at the close of all the evidence, will be handed to you at that time to take to your jury room.

[MODIFIED]
414.30	OPENING INSTRUCTION AT THE SECOND STAGE OF TRIAL:  AFTER A FINDING OF GUILTY OF MURDER IN THE FIRST DEGREE WHEN THE DEATH PENALTY WAS NOT WAIVED

The law applicable to this trial is stated in these instructions and Instructions No. 1 and 2, which the Court read to you immediately after you were sworn as jurors. All of these instructions will be given to you to take your jury room for use during your deliberations on punishment.
You must not single out certain instructions and disregard others or question the wisdom of any rule of law.
The 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.
In later instructions, you will be told that, in order to consider the death penalty, you must first find one or more statutory aggravating circumstances beyond a reasonable doubt. The burden of causing you to find the statutory aggravating circumstances beyond a reasonable doubt is upon the state.
A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the truth of a proposition. The law does not require proof that overcomes every possible doubt. If, after your consideration of all the evidence, you are firmly convinced that a proposition is true, then you may so find. If you are not so convinced, you must give the defendant the benefit of the doubt and must not find such proposition to be true.

[MODIFIED]
414.31	SECOND INSTRUCTION: AFTER A FINDING OF GUILTY OF MURDER IN THE FIRST DEGREE WHEN THE DEATH PENALTY WAS NOT WAIVED

(On Count(s) ____, the) (The) you) (You) found the defendant has been found guilty of murder in the first degree. It will be your duty to determine within the limits prescribed by law the punishment that must be imposed for that offense.
The punishment prescribed by law for murder in the first degree is either death or imprisonment for life by the Department of Corrections without eligibility for probation or parole.

[MODIFIED]
414.32	GUILTY OF MURDER IN THE FIRST DEGREE:  EXPLANATION OF ORDER OF PROCEEDINGS WHEN EVIDENCE WILL BE PRESENTED

At this stage of the trial, The law requires that certain circumstances be considered in making your decision as to the punishment to be imposed. We will proceed as follows:
First, the attorneys will have an opportunity to make a statement outlining any additional evidence to be presented.  Such evidence may then be introduced.
After that, the Court will instruct you as to the circumstances you should consider in determining the punishment.
Then the attorneys may make their arguments.
You will then go to the jury room, deliberate, and arrive at your verdict.

[MODIFIED]
414.44	GUILTY OF MURDER IN THE FIRST DEGREE:  EVIDENCE IN AGGRAVATION AND MITIGATION OF PUNISHMENT

		(As to Count _____, if) (If) you have unanimously found beyond a reasonable doubt that (one or more of) the statutory aggravating circumstance(s) submitted in Instruction No. _____ exists, you must then determine whether there is evidence in mitigation of punishment which is sufficient to outweigh evidence in aggravation of punishment.
		As used in this instruction, the term "evidence in mitigation" means any fact or circumstance that supports a penalty less than death.
		As used in this instruction, the term "evidence in aggravation" means any fact or circumstance that supports the imposition of the death penalty.  
		In deciding this question, you may consider all of the evidence, including evidence presented in support of the statutory aggravating circumstance(s) submitted in Instruction No. _____, and evidence presented in support of mitigating circumstances submitted in this instruction.
		As (a circumstance) (circumstances) that may be in mitigation of punishment, each juror shall consider: [Insert in indented paragraphs and, if more than one, list and number in separate paragraphs any one or more of the following "statutory mitigating circumstances" which are supported by the evidence and requested by the defendant.  Omit this entire paragraph if there are no such circumstances to submit.])
		1. Whether the defendant has no significant history of prior criminal activity.
		2. Whether the murder of [Identify victim in this count.] was committed while the defendant was under the influence of extreme mental or emotional disturbance.
		3. Whether [Identify victim in this count.] was a participant in the defendant's conduct or consented to the act.
		4. Whether the defendant was an accomplice in the murder of [Identify victim in this count.] and whether his participation was relatively minor.
		5. Whether the defendant acted under extreme duress or under substantial domination of another person.
		6. Whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
		7. The age of the defendant at the time of the offense.
		Each juror shall also consider any (other) facts or circumstances that he or she finds from the evidence in mitigation of punishment. Evidence of mitigating circumstances need not be proven beyond a reasonable doubt.  
		The process of weighing aggravating and mitigating evidence against each other in order to determine the proper punishment is not a mechanical process. In other words, each juror should not simply count the number of aggravating and mitigating circumstances and reach a decision based on which number is greater; he or she should consider the weight and value of each circumstance. Different circumstances may be given different weights or values by different jurors.  
		It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment. If each juror determines that there is evidence in mitigation of punishment sufficient to outweigh the evidence in aggravation of punishment, then you must return a verdict assessing and declaring defendant's punishment at imprisonment for life without eligibility for probation or parole.

[MODIFIED]
414.48		GUILTY OF MURDER IN THE FIRST DEGREE:  VERDICT MECHANICS

When you retire to your jury room, you will first select one of your number at act as your foreperson and to preside over your deliberations.
You will be provided with forms of verdict for your convenience.  You cannot return any verdict imposing a sentence of death unless all twelve jurors agree to it, but any such verdict should be signed by your foreperson alone.
		(As to Count _____, if) (If) (you unanimously find by a preponderance of the evidence that the defendant is intellectually disabled, as submitted in Instruction No. _____ [Insert the number given to MAI-CR 4th 414.38.], then you must assess and declare punishment at imprisonment for life without eligibility for probation or parole, and your foreperson will sign the verdict form assessing that punishment)
		(As to Count _____, if) (If) you are unable to unanimously find the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, as submitted in Instruction No. _____ [Insert the number given to MAI-CR 4th 414.40.], then you must assess and declare punishment at imprisonment for life without eligibility for probation or parole, and your foreperson will sign the verdict form assessing that punishment.
		If you unanimously decide that the evidence in mitigation of punishment outweighs the evidence in aggravation of punishment, then you must assess and declare punishment at imprisonment for life without eligibility for probation or parole, and your foreperson will sign the verdict form assessing that punishment.
		If you unanimously decide, after considering all of the evidence and instructions of law, not to assess and declare the punishment at death, then you must assess and declare punishment at imprisonment for life without eligibility for probation or parole, and your foreperson will sign the verdict form assessing that punishment.  
		If you unanimously decide, after considering all of the evidence and instructions of law given to you, that the defendant must be put to death for the murder of [Identify victim in this count.], then you must assess and declare punishment at death and your foreperson must complete the verdict form and write into your verdict (the) (all of the) statutory aggravating circumstance(s) submitted in Instruction No. _____  [Insert the number given to MAI-CR 4th 414.40.] that you found beyond a reasonable doubt.  The foreperson will sign the verdict form so assessing the punishment.  
		If you unanimously find the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, as submitted in Instruction No. _____  [Insert the number given to MAI-CR 4th 414.40.], and you are unable to unanimously find that the evidence in mitigation of punishment outweighs the evidence in aggravation of punishment, but you are unable to agree upon the punishment, your foreperson will complete the verdict form and sign the verdict form stating that you are unable to decide or agree upon the punishment. In such case, you must answer the questions on the verdict form and write into your verdict (the) (all of the) statutory aggravating circumstance(s) submitted in Instruction No. _____ [Insert the number given to MAI-CR 4th 414.40.] that you found beyond a reasonable doubt and your foreperson must sign the verdict form stating that you are unable to decide or agree upon the punishment.
		If you return a verdict indicating that you are unable to decide or agree upon the punishment, the Court will assess the defendant's punishment at death or at imprisonment for life without eligibility for probation or parole. You will bear in mind, however, that under the law, it is the primary duty and responsibility of the jury to assess the punishment.
		When you have concluded your deliberations, you will complete the applicable form(s) to which all twelve jurors agree and return (it) (them) with all unused forms and the written instructions of the Court.

[MODIFIED]
413.58	VERDICT FORMS:  SECOND STAGE

[A]		VERDICT
(Jurors: Use this form if the punishment you now assess and declare is death. See Instruction No. ___ for directions as to what must be written on this verdict form. The foreperson's signature must appear after the statutory aggravating circumstance (or circumstances).)
(As to Count ___,) the) (The) we) (We), The jury, having found the defendant [Insert name of defendant.] having been found guilty of murder in the first degree of [Identify victim.], we, the jury, now assess and declare the punishment at death. We have found the following statutory aggravating circumstance (or circumstances) beyond a reasonable doubt: 
                                           
			______________________________
			Foreperson

[B]		VERDICT
(Jurors: Use this form only if the punishment you now assess and declare is imprisonment for life without eligibility for probation or parole.)
(As to Count ___,) the) (The) we) (We), the jury, having found the defendant [Insert name of defendant.] having been found guilty of murder in the first degree of [Identify victim.], we, the jury, now assess and declare the punishment at imprisonment for life without eligibility for probation or parole.
			______________________________ 
			Foreperson

[C]	VERDICT
(Jurors:  Use this form only if you are unable to decide or agree upon the punishment.  See Instruction No. ___ for directions as to what must be written on this verdict form. You will bear in mind, however, that under the law it is your primary duty and responsibility to assess and declare the punishment.)
		(As to Count ___,) the) (The) we) (We), the jury, having found the defendant [Insert name of defendant.] having been found guilty of murder in the first degree of [Identify victim.], we, the jury, are unable to decide or agree upon the punishment. We answer the following questions:
		((1.)	Does the jury unanimously find by a preponderance of the evidence that the defendant is intellectually disabled?
			Yes [   ]               No [   ] 
		(Jurors: If the answer to Question (1) is yes, then the jury must return the verdict form assessing and declaring the defendantꞌs punishment at life imprisonment without eligibility for probation or parole.))
		(1.) (2.) Does the jury unanimously find beyond a reasonable doubt statutory aggravating circumstance (or circumstances)?
			Yes [   ]               No [   ]
		(Jurors: If the answer to Question (1) (2) is no, then the jury must return the verdict form assessing and declaring the defendantꞌs punishment at life imprisonment without eligibility for probation or parole.)
		(2.) (3.) Does the jury unanimously find that there is evidence in mitigation of punishment sufficient to outweigh evidence in aggravation of punishment?
			Yes [    ]               No [    ] 

		(Jurors: If the answer to Question (2) (3) is yes, then the jury must return the verdict form assessing and declaring the defendantꞌs punishment at life imprisonment without eligibility for probation or parole.)

		If the answer to Question (1) (2) is yes, list below the statutory aggravating circumstance (or circumstances) that you have unanimously found beyond a reasonable doubt:

			______________________________
			Foreperson