Larissa Schuster Trial, Day 25, 12/5/07
The attorneys and judge met this morning to discuss jury instructions. In open court Judge Wayne Ellison reviewed various requests for particular language that the prosecution and defense made. The brief hearing ended at 11 a.m. Larissa Schuster was in court for the hearing. Unlike the regular days of the trial, she was dressed in a blue jail jumpsuit. She had no make-up on, and her hair was pulled back in a pony tail. Her parents and the media were the only people present in the gallery. Jurors will have the option of first degree murder, second degree murder and voluntary manslaughter, in addition to a not guilty verdict.
Schuster’s attorney Roger Nuttall was interviewed outside.
ROGER NUTTALL, SCHUSTER’S ATTORNEY
Nuttall was asked how he’s feeling about his case right now. “We feel pretty comfortable with it. These are frightening cases because the stakes are so high, but we’re feeling that based upon the evidence, and based upon our client’s testimony, we feel pretty strongly. It’s truly a circumstantial evidence case, except for the extent of her direct testimony. So we’re looking forward to giving our final closing statements, and submitting this to the jury. You can’t help but be worried and concerned in a case of this magnitude, particularly when there’s been so much, not to criticize all you folks, but so much adversity in the media for so long. It’s fortunate, we believe, that we’re having this trial in southern California where that doesn’t exist so much. It’s apparent that the influence of the negative media has persevered in a very strange way by way of people who had axes to grind, so to speak, with Larissa from years and years back. They contacted the prosecution on very insignificant issues which obviously in a vendetta. We’re trying to overlook that and deal with those circumstances. We’re hoping, we’re praying that a just result will come forth to her benefit. We’re not looking to see a conviction for voluntary manslaughter. That just doesn’t fit the facts of the case. She did admit to a certain scenario that represents complicity in terms of being an accessory after the fact. She’s not charged with that. It does give the jury an opportunity to find lesser charges with lesser consequences. There’s been a series of complaints, I guess you’d call it, people saying certain things about the conduct of certain jurors. All of whom come from different backgrounds, all of whom are really conscientious people, you can tell they’re all paying attention. And they’re not robots. In this kind of case, the intensity of it evokes all sorts of human responses. We’ve seen people crying, we’ve seen people laughing, we’ve seen people sighing, we’ve seen people turning their heads away from me, the pictures, from the prosecution. We’ve seen it all. The fact of the matter is , they’ve paid a lot of attention , they’re probably pretty tired, they’re probably in some ways impatient to see the end of it. My thinking is, I can’t second guess what may just be a human reaction to a circumstance that may have happened in the trial. She’s doing ok. She’s tired you know. This is funny how you don’t feel it so much as it’s happening, but it’s very wearing the tension, it’s very wearing. I think she’s tired. I think she’s grateful it’s coming to a conclusion, and she’s saying her prayers that it will come out in her favor.”
THE FOLLOWING ARE THE JURY INSTRUCTIONS THAT WILL BE READ TO THE JURY BEFORE DELIBERATIONS BEGIN.
Ladies and Gentlemen of the jury, I will now instruct you on the law that applies to this case. The law requires that I read these instructions to you, but you need not make notes of my instructions. You will be given a copy of the instructions to use in the jury room during your deliberations.
You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial. Do not let bias, sympathy, prejudice, or public opinion influence your decision. You must reach your verdict without any consideration of punishment. You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions. Pay careful attention to all of these instructions and consider them together. If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it. Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.
Some of these instructions may not apply, depending on your findings about the fact s of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.
DO NOT INVESTIGATE
As I already instructed you at the beginning of the trial, during your deliberations, do not do any research on your own or as a group. Do not use a dictionary or other reference materials, investigate the facts or law, conduct any experiments, or visit the scene of any event involved in this case.
NOTE-TAKING
You may now take your notes into the jury room to use during your deliberations. You may use your notes during deliberations only to remind yourself of what happened during the trial. But remember, your notes may be inaccurate or incomplete. If there is a disagreement about what actually happened at trial, you may ask the court reporter to read back the relevant parts of the testimony to assist you. It is the testimony that must guide your deliberations, not your notes.
DEFENDANT PHYSICALLY RESTRAINED
The fact that the defendant is in custody in this case is not evidence of her guilt.
PROOF NEED NOT SHOW ACTUAL DATE
It is alleged that the crime occurred on or about July 10, 2003. The People are not required to prove that the crime took place exactly on that day but only that it happened reasonably close to that day.
REASONABLE DOUBT
The fact that a criminal charge has been filed against a defendant is not evidence that the charge is true. You must not be biased against a defendant just because she has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves a defendant is guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty.
EVIDENCE
You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom. “Evidence” is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.
Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses; answers are evidence. The attorneys’ questions are significant only if they helped you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.
During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose. You must disregard anything you saw or heard when the court was not in session, even if it was done or said by one of the parties or witnesses.
The court reporter has made a record of everything that was said during the trial. If you decide that it is necessary, you may ask that the court reporter read back the testimony to you. You may have all or part of the testimony of any witness read back to you. If you do wish to have testimony read back, your request should be as specific as possible. It will be helpful if you can state the name of the witness and the subject of the testimony you would like to have read.
Except as I will describe hereinafter, the court reporter is not permitted to speak with you when she is reading back testimony. While the court reporter is reading the testimony you may not deliberate or discuss the case. Your communications with the reporter are limited to skipping ahead to a portion of the testimony you are interested in, re-reading testimony already read back, and discontinuing the readback altogether. You may not have testimony read back that was not specifically mentioned in your written request. If there is any disagreement among you as to what a witness said, you must accept the court reporter’s record as accurate.
Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining.
Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with rain drops of water that testimony is circumstantial evidence because it may support a conclusion that it was raining outside.
Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.
CIRCUMSTANTIAL EVIDENCE: SUFFICIENCY OF EVIDENCE
Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions points to innocence and another to guilty, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.
WITNESSES
You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s gender, race, religion, or national origin. You may believe all, par, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
How well was the witness able to remember and describe what happened?
What was the witness’s behavior while testifying?
Did the witness understand the questions ans answer them directly?
Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
What was the witness’s attitude about the case or about testifying?
Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
How reasonable is the testimony when you consider all the other evidence in the case?
Did other evidence prove or disprove any fact about which the witness testified?
Did the witness admit to being untruthful?
Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.
If you decide that a witness deliberatly lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.
UNION OF ACT AND INTENT: SPECIFIC INTENT OR MENTAL STATE
Both the crime charged in this case and the lesser included crime of Voluntary Manslaughter, as well as the special circumstance alleged, requires proof of the union, or joint operation, of act and wrongful intent.
In order to be guilty of the crimes of Murder or Manslaughter, and for the special circumstance of Murder for Financial Gain to be true, a person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state.
The crime of Murder requires the mental state of malice aftorethought. The crime of Murder in the First Degree requires the additional mental state of willful deliberation and premeditation.
The lesser crime of Voluntary Manslaughter requires the specific intent to kill, but without malice aforethought.
The special circumstance of Murder for Financial Gain requires the additional specific intent that the Murder be committed for specific purpose of obtaining financial gain.
ALL AVAILABLE EVIDENCE
Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.
SINGLE WITNESS TESTIMONY
The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence.
EVALUATING CONFLICTING EVIDENCE
If you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. One the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.
PRIOR STATEMENTS OF EVIDENCE
You have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways:
1. To evaluate whether the witness’s testimony in court is believable;
AND
2. As evidence that the information in those earlier statements is true.
EXPERT WITNESS TESTIMONY
Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information non which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evdidence.
As an expert witness may be asked a hypothetical questions. A hypothetical question aks the witness to assume certain facts are true and give an opinion based on the assumed factgs. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.
If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts’ qualifications.
OPINION TESTIMONY OF LAY WITNESS
Witnesses who were not testifying as experts gave their opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness’s opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
CHARACTER OF DEFENDANT
You have heard character testimony that the defendant is a non-violent person and has a good reputation for non-violence in the community where she lives and works.
You may take that testimony into consideration along with all the other evidence in deciding whether the People have proved that the defendant is guilty beyond a reasonable doubt.
Evidence of the defendant’s character for non-violence can by itself create a reasonable doubt. However, evidence of the defendant’s good character may be countered by evidence of her bad character for the same trait. You must decide the meaning and importance of the character evidence.
CROSS-EXAMINATION OF CHARACTER WITNESS
Mr. Peterson, the attorney for the prosecution, was allowed to ask defendant’s character witness if she had heard that the defendant had engaged in certain conduct. These “have you heard” questions and their answers are not evidence that the defendant engaged in any such conduct. You may consider these questions and answers only to evaluate the meaning and importance of the character witness’s testimony, except to the extent that you have heard evidence of such conduct from other witnesses.
EVIDENCE OF DEFENDANT’S STATEMENTS
You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements.
You must consider with caution evidence of a defendant’s oral statement unless it was written or otherwise recorded.
CORPUS DELICTI: INDEPENDENT EVIDENCE OF A CHARGED CRIME
The defendant may not be convicted of any crime based on her out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict her if you conclude that other evidence shows that the charged crime or a lesser included offense was committed.
That other evidence may be slight andneed only be enough to support a reasonable inference that a crime was committed.
The identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statements alone.
You may not convict the defendant unless the People have proved her guilt beyond a reasonable doubt.
CONSCIOUSNESS OF GUILT: FALSE STATEMENTS
If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show she was aware of her guilt of the crime and you may consider it in determining her guilt.
If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.
MOTIVE
Except for the special circumstance alleging the murder was committed for financial gain, the People are not required to prove that the defendant had a motive to commit the crime charged. In reaching your verdict on that crime you may, however, consider whether the defendant had a motive.
Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty.
CONSCIOUSNESS OF GUILTY: SUPPRESSION AND FABRICATION OF EVIDENCE
If the defendant tried to hide evidence or create false evidence, or attempted to discourage someone from giving information to the police, that conduct may show that she was aware of her guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.
EVIDENCE OF UNCHARGED OFFENSE TO PROVE IDENTITY, INTENT, COMMON PLAN, ETC.
The People presented evidence of other behavior by the defendant that was not charged in this case: that the defendant and James Fagone entered the home of Timothy Schuster in August of 2002, damaged property in his home and removed property from that home.
If you decide that the defendant committed those uncharged acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:
1. The defendant was the person who committed the offense alleged in this case or whether she aided and abetted others in the commission of that offense;
2. The defendant acted with the specific intent to kill or any of the mental states required to be proven in this case;
3. AND, The defendant had a motive to commit the offense alleged, or a lesser offense, or the special circumstance alleged in this case;
Do not consider this evidence for any other purpose.
Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.
If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Murder as charged, or the lesser crime of Voluntary Manslaughter, or the special circumstance of Murder for financial gain. The People must still prove each element of the charge, or any lesser crime, and the special circumstance, beyond a reasonable doubt.
AIDING AND ABETTING: GENERAL PRINCIPLES
A person may be guilty of a crime in two ways. One, she may have directly committed the crime. Two, she may have aided and abetted someone else, who committed the crime. In these instructions, I will call that other person the “perpetrator.” A person is equally guilty of the crime whether she committed it personally or aided and abetted the perpetrator who committed it.
AIDING AND ABETTING: INTENDED CRIMES
To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
1. The perpetrator committed the crime;
2. The defendant knew that the perpetrator intended to commit the crime;
3. Before or during, but not after, the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
4. AND The defendant’s words or conduct did in fact aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
Someone aids and abets a crime if she knows of the perpetrator’s unlawful purpose and she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make her an aider and abettor.
HOMICIDE GENERAL PRINCIPLES
Homicide is the killing of one human being by another. Murder and manslaughter are types of homicide. The defendant is charged with murder. Manslaughter is a lesser offense to murder. I will now instruct you on the different types of murder and manslaughter.
MURDER WITH MALICE AFORETHOUGHT
The defendant is charged in Count One with murder.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant committed an act that caused the death of another person;
2. AND When the defendant acted, she had a state of mind called malice aforethought;
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
The defendant acted with express malice if she unlawfully intended to kill.
The defendant acted with implied malice if:
1. She intentionally committed an act;
2. The natural consequences of the act were dangerous to human life;
3. At the time she acted, she knew her act was dangerous to human life;
4. AND She deliberately acted with conscious disregard for human life. When the killing is a direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
An act causes death if the death is the direct, natural, and probably consequence of the act and the death would not have happened without the act. A natural and probably consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.
MURDER: DEGREES
If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.
The defendant is guilty of first degree murder if the People have proved that the defendant acted willfully, deliberately, and with premeditation. The defendant acted willfully if she intended to kill. The defendant acted deliberately if she carefully weighed the considerations for and against her choice, and, knowing the consequences, decided to kill. The defendant acted with premeditation if she decided to kill before committing the act that caused the death.
The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively or without careful consideration is not deliberate and premeditated. One the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.
All other murders are the second degree.
The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.
VOLUNTARY MANSLAUGHTER: HEAT OF PASSION—LESSER INCLUDED OFFENSE
A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
The defendant killed someone because of a sudden quarrel or in the heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured her reasoning or judgement;
3. AND, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant is not allowed to set up her own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
If enough time passed between the provocation and the killing for a person of average disposition to “cool off” and regain her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.
The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.
SPECIAL CIRCUMSTANCES: INTRODUCTION
If you find the defendant guilty of first degree murder, you must also decide if the People have proved that the special circumstance is true.
The People have the burden of proving the special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. You must return a verdict form stating true or not true for each special circumstance on which you all agree.
In order for you to return a finding that the special circumstance is or is not true, all 12 of you must agree.
SPECIAL CIRCUMSTANCES: FINANCIAL GAIN
The defendant is charged with the special circumstance of murder for financial gain.
To prove that this special circumstance is true, the People must prove that:
1. The defendant intended to kill;
2. AND, The killing was carried out for financial gain.
SPECIAL CIRCUMSTANCES; CIRCUMSTANTIAL EVIDENCE—INTENT OR MENTAL STATE
In order to prove the special circumstances of murder for financial gain, the People must prove not only that the defendant killed with willful premeditation and deliberation, but also that she did so intentionally for the purpose of financial gain.
An intent may be proved by circumstantial evidence.
Before you may rely on circumstantial evident to conclude that the defendant had the required intent, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not have the required intent, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.
SPECIAL CIRCUMSTANCES: JURY MAY NOT CONSIDER PUNISHMENT
In your deliberations, you may not consider or discuss penalty or punishment in any way when deciding whether a special circumstance, or the charge, has been proved.
PROCEDURE FOR COMPLETION OF VERDICT FORMS: WITH STONE INSTRUCTION
You will be given several verdict forms for the charge of murder.
In connection with Count One, I have given you six(6) separate verdict forms. These are; Guilty/Not Guilty of first degree murder, of second degree murder and of voluntary manslaughter.
You may consider these different kinds of homicide in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use. As with all the charges in this case, to return a verdict of guilty or not guilty, you must all agree to that decision.
If you all agree that the People have proved that the killing was first degree murder, complete the verdict form stating that the defendant is guilty of first degree murder. Do not complete the other verdict forms.
If you all agree that the defendant is not guilty of first degree murder, but you agree the People have proved the killing was second degree murder, you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Then, complete the verdict form stating that the defendant is guilty of second degree murder unless you all agree that the defendant is not guilty of first degree murder. Do not complete the other verdict forms.
If you all agree the People have proved the defendant committed murder, but you cannot all agree on which degree they have proved, do not complete any verdict forms. Instead, the foreperson should send a note reporting that you cannot all agree on the degree of murder that has been proved.
If you all agree that the defendant is not guilty of first degree murder, but you cannot all agree on whether or not the People have proved the defendant committed second degree murder, then you must do two things. First, complete the verdict form stating that the defendant is not guilty of first degree murder. Second, the foreperson should send a note reporting that you cannot all agree that second degree murder has been proved. Do not complete any other verdict forms for this count.
The People have the burden of proving that the defendant committed first degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of first degree murder.
If you all agree that the defendant is not guilty of first or second degree murder, but you all agree the People have proved that she is guilty of voluntary manslaughter, then you must do two things. First, complete the verdict forms stating that she is not guilty of first and second degree murder. Second, complete the verdict form stating that she is guilty of voluntary manslaughter. Do not complete the verdict form stating the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. Do no complete any other verdict forms for this count.
If you all agree that the defendant is not guilty of first or second degree murder, but you canot all agree on whether or not the People have proved the defendant committed voluntary manslaughter, then you must do two things. First, complete both verdict forms stating that the defendant is not guilty of first and second degree murder. Second, the foreperson should send a note reporting that you cannot all agree that voluntary manslaughter has been proved.
The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.
PRE-DELIBERATION INSTRUCTIONS
When you go to the jury room, the first thing you should do is choose a foreperson. The foreperson should see to it that your discussions are carried on in an organized way and that everyone has a fair chance to be heard.
It is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself, but only after have discussed the evidence with the other jurors. Do not hesitate to change your mind if you become convinced that you were wrong. But do not change your mind just because other jurors disagree with you.
Keep an open mind and openly exchan ge your thoughts and ideas about the case. Stating your opinions too strongly at the beginning or immediately announcing how you plan to vote may interfere with an open discussion. Please treat one another courteously. Your role is to be an impartial judge of the facts, not to act as an advocate for one side or the other.
As I told you at the beginning of the trial, do not talk about the case or about any of the people or any subject involved in it with anyone, including, but not limited to, your spouse or other family, or friends. You must discuss the case only in the jury room and only when all jurors are present. Do not discuss your deliberations with anyone.
Consistent with those directions, jurors just not take any electronic communication device, including but not limitied to cellular telephones, personal computers, and PDA’s, into to jury deliberation room or must turn them off completely. These devices must not be used in any manner in the jury room during your deliberations. Emergency messages can be communicated to the court, and will be delivered to you immediately.

During the trial, items were received into evidence as exhibits. These exhibits will be sent into the jury room with you when you begin to deliberate.
If you need to communicate with me while you are deliberating, send a note through the bailiff, signed by the foreperson. To have a complete record of this trial, it is important that you not communicate with me except by a written note. If you have questions, I will speak with the attorneys before I answer so it may take some time. You should continue your deliberations while you wait for my answer.
Do not reveal to me or anyone else how the vote stands on the question of guilt or any other issues in this case unless I ask you to do so.
Your verdict on the charge and your finding on the special circumstance must be unanimous. This means that, to return a verdict, all of you must agree to it.
It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be.
You will be given verdict forms. As soon as all jurors have agreed on verdicts, the foreperson must date and sign the appropriate verdict forms and notify the bailiff. Return any unsigned verdict forms.
INSTRUCTIONS TO ALTERNATE ON SUBMISSION OF CASE TO JURY
As for you alternate jurors, the jury is now deliberating, but you are still alternate jurors and are bound by my earlier instructions about your conduct.
Do not talk about the case or about any of the people or any subject involved in it with anyone, not even your family or friends, not even with each other. Do not have any contact with the deliberating jurors. Do not decide how you would vote if you were deliberating. Do not form or express an opinion about the issues in this case, unless you are substituted for one of the deliberating jurors.