SEQ CHAPTER \h \r 1CR24-511 12/22/03

AGGRAVATED MURDER (IN CUSTODY FOR MURDER) - 13 V.S.A. § 2311(a)(1)

[Explanation: The statute lists 8 categories of aggravating factors.  When the defendant is charged with aggravated murder under § 2311(a)(1), it is appropriate to bifurcate the trial.]

[The following is an introduction to the second phase of the bifurcated proceeding.]

Members of the jury:

In view of your verdict finding (Def)_______________ guilty of the charge of [first] [second] degree murder, I will now tell you about a second aspect to this case.  The State has charged (Def)_______________ with aggravated murder, alleging that (Def)_______________ had been previously convicted of [murder] [aggravated murder], and that (Def)_______________ committed the murder of (victim)_______________ while (Def)_______________ was in custody under sentence for that previous [murder] [aggravated murder].

Accordingly, the State has alleged that (Def)_______________ was previously convicted of [murder] [aggravated murder] in (jurisdiction)_______________ on (date)_______________, and that [he] [she] committed the murder of (victim)_______________ while (Def)_______________ was in custody under sentence for that previous [murder] [aggravated murder].

To this portion of the charge, (Def)_______________ has pled not guilty and puts the State to its proof on this part of the case.

[Closing jury instructions, following presentation of evidence, in the second phase of trial.]

Members of the jury:

Now that you have heard evidence on the second part of the case, it is time for you to deliberate over whether to find (Def)_______________ guilty or not guilty of aggravated murder, under the rules I gave to you previously.

To establish (Def)_______________’s guilt on this charge, the State must have proven beyond a reasonable doubt:

(1) (Def)_______________ was previously convicted of [murder] [aggravated murder];

(2) that the (Def)_______________ you see before you today is the same person who was previously convicted of the offense of [murder] [aggravated murder]; and

(3) that (Def)_______________ committed the murder of (victim)_______________ while (Def)_______________ was in custody under sentence for that previous [murder] [aggravated murder].

You may find that (Def)_______________ was in custody under sentence if, at the time, he was subject to a significant restraint on [his] [her] personal liberty, as a direct result of a previous conviction and sentence for [murder] [aggravated murder].  [A person need not be confined within a correctional facility in order to be in custody under sentence.]

If you are persuaded beyond a reasonable doubt that the State has proven these essential elements of aggravated murder, then you must return a verdict of guilty.  If, however, you are not persuaded beyond a reasonable doubt that the State has proven the essential elements of aggravated murder, then you must return a verdict of not guilty.