7.Jury Instructions — Before Closing Arguments

THE COURT: Everyone can be seated. Thank you.

Members of the jury, thank you for your patience. We had a long conversation about the jury instructions and I missed a typo or two after I printed everything and it took us a while to print everything out.

I'm going to ask the courtroom deputy to come forward and pass these out to you.

If you could, if you can, please raise your hands to confirm that you've complied with the Court's instructions during the break.

All right. Record will reflect all hands have been raised.

Members of the jury, we are at the conclusion of the evidence and testimony in this case. The Court is now going to instruct you on the law. The courtroom deputy is providing you copies of the jury instructions.

Like I said at the beginning, you're going to be able to take these back with you into the deliberation room. There's not going to be a quiz or a test at the end. You don't need to memorize anything. If you'd like to read along, you can. If you just want to listen, you can. It's completely up to you.

The Court is going to read most of the instructions and then turn it over to the lawyers for their closing arguments. The State will go first, because they have the burden, then the defense will go and then the State will have the opportunity to rebut. Then I will conclude the instructions and release you for your deliberations.

After the State's closing, we're going to take our afternoon recess. At that point in time, I'll have the courtroom deputy provide you that emergency number. So if you need to reach out to family or loved ones to let them know that you are on the jury and are deliberating, you can do that at that time.

With that, members of the jury, the Court is going to go ahead and begin reading you the jury instructions.

Instruction 3.1, Introduction to Final Instructions. Members of the jury, I thank you for your attention during this trial. Please pay attention to the instructions I am about to give to you.

3.2, Statement of the Charge. Sarah Boone, the defendant in this case, has been accused of the crime of second degree murder.

7.1, Introduction to Homicide. Sarah Boone is accused of second degree murder. Murder in the second degree includes the lesser crime of manslaughter, both of which are unlawful. However, a killing that was excusable or that was committed by the justifiable use of deadly force is lawful.

If you find Jorge Torres was killed by Sarah Boone, you will then consider the circumstances surrounding the killing in deciding if the killing was second degree murder or was manslaughter or whether the killing was excusable or resulted from justifiable use of deadly force.

Justifiable Homicide. The killing of a human being is justifiable homicide and lawful if necessarily done while resisting an attempt to murder or commit a felony upon the defendant or to commit a felony in any dwelling house in which the defendant was at the time of the killing.

Excusable Homicide. The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances: One, when the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent; or, two, when the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation; or, three, when the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.

A "dangerous weapon" is any object that will likely cause death or great bodily harm if used in the ordinary and usual manner contemplated by its design and construction.

"Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm, and does not -- and as such does not include mere bruises.

I now instruct you on the circumstances that must be proved before Sarah Boone may be found guilty of second degree murder or any lesser included crime.

7.4, Murder, Second Degree. To prove the crime of second degree murder, the State must prove the following three elements beyond a reasonable doubt: One, Jorge Torres is dead. Two, the death was caused by the criminal act of Sarah Boone. Three, there was an unlawful killing of Jorge Torres by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. An "act" includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is "imminently dangerous to another and demonstrating a depraved mind" if it is an act or series of acts that: One, a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and, two, is done from ill will, hatred, spite, or an evil intent; and, three, is of such a nature that the act itself indicates an indifference to human life.

In order to convict of second degree murder, it is not necessary for the State to prove the defendant had an intent to cause death.

3.4, When there are lesser included crimes or attempts. In considering the evidence, you should consider the possibility that although the evidence may not convince you that the defendant committed the main crime of which she is charged, there may be evidence that she committed other acts that would constitute a lesser included crime or crimes. Therefore, if you decide that the main accusation has not been proved beyond a reasonable doubt, you will next need to decide if the defendant is guilty of any lesser included crime.

The lesser crimes indicated in the definition of second degree murder is manslaughter, culpable negligence.

7.7, Manslaughter. To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: One, Jorge Torres is dead. 2A, Sarah Boone intentionally committed an act or acts that caused the death of Jorge Torres; B, the death of Jorge Torres was caused by the culpable negligence of Sarah Boone.

THE COURT: I apologize, "or." Thank you for that clarification.

T'll reread those for you. 2A, Sarah Boone intentionally committed an act or acts that caused the death of Jorge Torres; or, B, the death of Jorge Torres was caused by the culpable negligence of Sarah Boone.

Every person has a duty to act reasonably towards others. If there is a violation of that duty without any conscious intent to harm, that violation is negligence. The defendant cannot be guilty of manslaughter by committing a merely negligent act or if the killing was either justifiable or excusable homicide, as I have previously instructed you.

In order to convict of manslaughter by act, it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act that was not merely negligent, justified, or excusable and which caused death.

I will now define "culpable negligence" for you. As I have said, every person has a duty to act reasonably towards others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care towards others. In order for negligence to be culpable, it must be gross and flagrant.

Capable [sic] negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or bodily injury.

8.9, Culpable Negligence. To prove the crime of culpable negligence, the State must prove the following two elements beyond a reasonable doubt: One, Sarah Boone exposed Jorge Torres, Jr., to a personal injury. Two, she did so through culpable negligence.

Actual injury is not required.

I will now define "culpable negligence" for you. Each of us has a duty to act reasonably towards others. If there is a violation of that duty, without any conscious intent to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care for others. In order for negligence to be culpable, it must be gross and flagrant.

Culpable negligence is a course of conduct showing reckless disregard for human life, or for the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or show such indifference to the rights of others as is equivalent to an intentional violation of such rights.

3.6(d), as in delta, Voluntary Intoxication. Voluntary intoxication resulting from the use of alcohol is not a defense to a crime. Evidence of a defendant's voluntary intoxication may not be taken into consideration to show that she lacked the specific intent to commit any crime. A person is voluntarily intoxicated if he or she knowingly consumed a substance that he or she knew or should have known could cause intoxication.

Voluntary intoxication is not a defense to second degree murder, manslaughter, or culpable negligence.

3.6(f), as in foxtrot, Justifiable Use of Deadly Force. It is a defense to the crimes of second degree murder, manslaughter, and culpable negligence if the actions of Sarah Boone constituted the justifiable use or threatened use of deadly force.

"Deadly force" means force likely to cause death or great bodily harm. "Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm.

Sarah Boone does not have the burden of proving that she was justified in using deadly force. Instead, for you to find Sarah Boone guilty, the State must prove beyond a reasonable doubt that Sarah Boone was not justified in using deadly force. The law on the justifiable use deadly force is as follows: Sarah Boone was justified in using deadly force if she reasonably believed that such force or threat of force was necessary to prevent imminent death or great bodily harm to herself.

Sarah Boone had no duty to retreat before using deadly force.

In deciding whether Sarah Boone was justified in the use of deadly force, you must consider the circumstances at the time the force or threat of force was used. The danger need not have been actual; however, to justify the use of deadly force, the appearance of imminent danger must have been so real that Sarah Boone actually believed the use of deadly force was necessary. Moreover, to justify the use of deadly force, a reasonably cautious and prudent person under the same circumstances would have believed the use of deadly force was necessary.

However, the use of deadly force is not justified if you find that Sarah Boone used force to initially provoke the threatened use of force against herself, unless: One, the threat of force asserted towards the defendant was so great that she reasonably believed that she was in imminent danger of death or great bodily harm --

THE COURT: Please silence your cell phones.

-- and had exhausted every --

THE COURT: Out. Whosever phone is on, get out right now.

Members of the jury, I apologize. I'm going to read that over for you from the beginning.

Paragraph one: The threat of force asserted toward the defendant was so great that she reasonably believed that she was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on Jorge Torres; or, two, in good faith, Sarah Boone withdrew from physical contact with Jorge Torres and clearly indicated to Jorge Torres that she wanted to withdraw and stop the use of deadly force, but Jorge Torres continued or resumed the threatened use of force.

Physical contact includes any restraint on Jorge Torres' movement.

If you find that Sarah Boone, who because of prior threats or difficulties with Jorge Torres, Jr., had reasonable grounds to believe that she was in danger of death or great bodily harm at the hands of Jorge Torres, you may consider this fact in determining whether the actions of Sarah Boone were those of a reasonable person.

If you find that at the time of the alleged second degree murder, manslaughter, or culpable negligence, Sarah Boone knew that Jorge Torres had committed an act or acts of violence, you may consider that fact in determining whether Sarah Boone reasonably believed it was necessary for her to use deadly force.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of Sarah Boone and Jorge Torres.

THE COURT: Okay. We will remedy that. Thank you, sir.

Is it just your copy, Mr. Owens?

THE COURT: Yes, sir.

We'll bring it to you, sir. And we'll wait until you have those, sir, and we'll continue. Thank you.

THE COURT: Thank you. Record will reflect all thumbs were up.

Page 11, Special Instruction on Battered Spouse Syndrome. You have heard evidence that Sarah Boone suffers from battered spouse syndrome. If you find the evidence that Sarah Boone suffers from battered spouse syndrome credible, you may consider this evidence to assist you in determining whether a person in Sarah Boone's circumstances would reasonably believe that such force was necessary to defend herself against the imminent use of unlawful force by Jorge Torres.

Like other witnesses, you may believe or disbelieve all or any part of the testimony regarding battered spouse syndrome.

3.6(g), Justifiable Use of Non-Deadly Force. It is a defense to the crimes of second degree murder, manslaughter, and culpable negligence if the actions of Sarah Boone constituted the justifiable use non-deadly force.

"Non-deadly force" means force not likely to cause death or great bodily harm. "Great bodily harm" means great as distinguished from slight, trivial, minor, or moderate harm.

Sarah Boone does not have to -- does not have the burden of proving that she was justified in using non-deadly force. Instead, for you to find Sarah Boone guilty, the State must prove beyond a reasonable doubt that Sarah Boone was not justified in using non-deadly force.

The law on the justifiable use of non-deadly [sic] is as follows: Sarah Boone was justified in using non-deadly force against Jorge Torres and had no duty to retreat if she reasonably believed that such conduct was necessary to defend herself against Jorge Torres' imminent use of unlawful force.

In deciding whether Sarah Boone was justified in the use of non-deadly force, you must consider the circumstances at the time the force or threat of force was used. The danger need not have been actual; however, to justify the use of non-deadly force, the appearance of imminent danger must have been so real that Sarah Boone actually believed the use of non-deadly force was necessary. Moreover, a reasonably cautious and prudent person under the same circumstances would have believed the use of non-deadly force was necessary.

However, the use of non-deadly force is not justified if you find that Sarah Boone used force to initially provoke or threatened use of force against herself, unless the threatened -- unless: One, the threatened force asserted towards Sarah Boone was so great that she reasonably believed that she was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force on Jorge Torres; or, two, in good faith, Sarah Boone withdrew from physical contact with Jorge Torres and indicated clearly to Jorge Torres that she wanted to withdraw and stop the use of non-deadly force, but Jorge Torres continued or resumed or threatened use of force.

Physical contact includes any restraint on Jorge Torres' movement.

If you find that Sarah Boone who, because of prior threats or difficulties with Jorge Torres, Jr., had reasonable grounds to believe that she was in danger of imminent use of unlawful force at the hands of Jorge Torres, Jr., you may consider this fact in determining whether the actions of Sarah Boone were those of a reasonable person.

If you find that at the time of the alleged second degree murder and/or culpable negligence, Sarah Boone knew that Jorge Torres, Jr., had committed an act or acts of violence, you may consider that fact in determining whether Sarah Boone reasonably believed it was necessary for her to use non-deadly force.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of Sarah Boone and Jorge Torres.

Special Instruction on Battered Spouse Syndrome. You have heard evidence that Sarah Boone suffers from battered spouse syndrome. If you find the evidence that Sarah Boone suffers from battered spouse syndrome credible, you may consider this evidence to assist you in determining whether a person in Sarah Boone's circumstances would reasonably believe that such force was necessary to defend herself against the imminent use of unlawful force by Jorge Torres.

Like other witnesses, you may believe or disbelieve all or any part of the testimony regarding battered spouse syndrome. 3.7, Plea of Not Guilty, Reasonable Doubt, and Burden of Proof. The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the Information through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant's presumption of innocence, the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.

Whenever the words "reasonable doubt" are used, you must consider the following: Proof beyond a reasonable doubt does not mean proof beyond all doubt. A reasonable doubt is not a mere possible doubt, a speculative, imaginary, or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if after carefully considering, comparing, and weighing all the evidence, there is not an abiding conviction of guilt, or if having a conviction, it is one which is not stable, but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

It is to the evidence introduced in this trial, and to it alone, that you are to look for that proof.

A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.

If you have a reasonable doubt, you should find the defendant not guilty. If you have no reasonable doubt, you should find the defendant guilty.

3.9, Weighing the Evidence. It is up to you to decide what evidence is reliable. You should use your common sense in deciding which is the best evidence and which evidence should not be relied upon in considering your verdict. You may find some of the evidence not reliable or less reliable than other evidence.

You should consider how the witnesses acted, as well as what they said. Some things you should consider are:

One, did the witness seem to have an opportunity to see and know the things about which the witness testified?

Two, did the witness seem to have an accurate memory?

Three, was the witness honest and straightforward in answering the attorneys' questions?

Four, did the witness have some interest in how the case should be decided?

Five, does the witness' testimony agree with the other testimony and other evidence in the case?

Six, did the witness at some other time make a statement that is inconsistent with the testimony he or she gave in court?

Whether the State met its burden of proof does not depend upon the number of witnesses it has called or upon the number of exhibits it has offered, but instead upon the nature and quality of the evidence presented.

The fact that a witness is employed in law enforcement does not mean that his or her testimony deserves more or less consideration than that of any other witness.

Expert witnesses are like other witnesses, with one exception, the law permits an expert witness to give his or her opinion. However, an expert opinion is reliable only when given on a subject about which you believe him or her to be an expert. Like other witnesses, you may believe or disbelieve all or any part of an expert's testimony.

The defendant in this case has become a witness. You should apply the same rules to consideration of her testimony that you apply to the testimony of the other witnesses.

It is entirely proper for a lawyer to talk toa witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about his or her testimony.

You may rely upon your own conclusion about the credibility of any witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.

3.9 bravo, Defendant's Statements. A statement claimed to have been made by the defendant outside of court has been placed before you. Such a statement should always be considered with caution and be weighed with great care to make certain it was freely and voluntarily made. Therefore, you must determine from the evidence that the defendant's alleged statement was knowingly, voluntarily, and freely made. In making this determination, you should consider the total circumstances, including, but not limited to: One, whether, when the defendant made the statement, she had been threatened in order to get her to make it; and, two, whether anyone had promised her anything in order to get her to make it.

Law enforcement is not legally required to ask a suspect whether he or she wants to talk to law enforcement after Miranda warnings are read to a suspect. This is, however, one of the factors you may consider whether the defendant's statements were voluntarily made.

If you conclude the defendant's out-of-court statement was not freely and voluntarily made, you should disregard it.

3.10, Rules for Deliberation. These are some general rules that apply to your discussion. You must follow these rules in order to return a lawful verdict:

One, you must follow the law as it is set out in these instructions. If you fail to follow the law, your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this matter. All of us are depending upon you to make a wise and legal decision in this matter.

Two, this case must be decided only upon the evidence that you have heard from the testimony of the witnesses and have seen in the form of exhibits in evidence and these instructions.

Three, this case must not be decided for or against anyone because you feel sorry for anyone or are angry at anyone.

Four, remember, the lawyers are not on trial. Your feelings about them should not influence your decision -- excuse me -- in this case.

Five, your duty is to determine if the defendant has been proven guilty or not in accord with the law. It is the judge's job to determine a proper sentence if the defendant is found guilty.

Six, whatever verdict you render must be unanimous, that is, each juror must agree to the same verdict.

Seven, your verdict should not be influenced by feelings of prejudice, bias, or sympathy. Your verdict must be based on the evidence and on the law contained in these instructions.

3.11, Cautionary Instruction. Deciding a verdict is exclusively your job. I cannot participate in that decision in any way. Please disregard anything I may have said or done that made you think I preferred one verdict over another.

2.7, Closing Argument. Both the State and the defendant have now rested their case. The attorneys now will present their final arguments. Please remember that what the attorneys say is not evidence or your instruction on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case. Each side will have equal time, but the State is entitled to divide this time between an opening argument and a rebuttal argument after the defense has given its closing argument.

With that, State, you may proceed.