Instructions to the jury by Judge Charles Atwell before closing statements

State of Missouri v. Byron Case

May 2, 2002
Pages 1161-1169
Page 1161

(The following proceedings were had in the courtroom out of the presence and hearing of the jury:)

THE COURT:

Before we get started, what will happen, the State will go first. The Defendant will be allowed to
argue. Then the State will have a chance for rebuttal as is typically done.

These lawyers have tried an excellent case. I would ask you, if at all possible, that you not leave
during the course of argument if you can wait until the lawyers are done talking. These lawyers deserve the
right, if at all possible, to conduct their closing arguments without people coming and going.

So I would ask, if at all possible, you not leave during the course of closing argument. If you need
to, there will be breaks in between if you need to. But if you could do that I would really appreciate it.

Let's get the jury.

Page 1162

(The following proceedings were had in the courtroom in the presence and hearing of the jury:)

THE COURT:

Everybody, please be seated.

Ladies and gentlemen, there are additional instructions I'm going to read to you at this time.

As you may recall, I read to you two instructions numbered One and Two. 1 will not reread those
instructions to you, but they will be part of the instruction packet that goes with you to the jury room.

The first instruction that I will read is numbered instruction number Three. It states as follows:

The law applicable to this case is stated in these instructions and the two which the Court read to
you immediately after you were sworn as jurors. All of the instructions will be given to you to take to your
jury room during your deliberations. You must not single out certain instructions and disregard others or
question the wisdom of any rule of law.

Page 1163

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.

Instruction number Four: The charge of any offense is not evidence, and it creates no inference that
any offense was committed or that the Defendant is Guilty of an offense.

The Defendant is presumed to be innocent unless and until, during your deliberations, upon your
verdict you find him Guilty.

This presumption of innocence places upon the State the burden of proving beyond a reasonable
doubt that the Defendant is Guilty. A reasonable doubt is a doubt based 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 Defendant's guilt.
The law does not require proof that overcomes every possible doubt.

If, after your consideration of all the evidence, you are firmly convinced that the Defendant is
Guilty of the crime charged, you will find him Guilty. If you are not so convinced, you must give him the
benefit of the doubt and find him Not Guilty.

Page 1164

Instruction number Five: As to Count One, if you find and believe from the evidence beyond a
reasonable doubt, first, that on October 22nd 1997, in the County of Jackson, State of Missouri, the
Defendant caused the death of Anastasia WitbolsFeugen by shooting her; and second, that the Defendant
knew that his conduct was practically certain to cause the death of Anastasia WitbolsFeugen; and third, that
the Defendant did so after deliberation, which means cool reflection upon the matter, for any length of time,
no matter how brief, then you will find the Defendant Guilty under Count One 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.

Instruction number Six: As to Count One, if you do not find the Defendant Guilty of murder in the
first degree, you must consider whether he is Guilty of murder in the second degree.

Page 1165

As to Count One, if you find and believe from the evidence beyond a reasonable doubt, first, that on
or about October 22nd 1997, in the County of Jackson, State of Missouri, the Defendant caused the death of
Anastasia WitbolsFeugen by shooting her; and, second, that the Defendant knew or was aware that his
conduct was practically certain to cause the death of Anastasia WitbolsFeugen, then you will find the
Defendant Guilty under Count One of Murder in the Second 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 second degree.

As to Count Two, if you find and believe from the evidence beyond a reasonable doubt, first, that
the Defendant committed the offense of murder in the first degree as submitted in Instruction number Five;
and, second, the Defendant committed that offense by or with or through the use or assistance or aid of a
deadly weapon, you will then find the Defendant Guilty under Count Two of Armed Criminal Action.

Page 1166

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 that offense.

Instruction number Eight: As to Count Two, if you do not find the Defendant Guilty of Armed
Criminal Action in connection with the offense of Murder in the First Degree, you must consider whether
he is Guilty of Armed Criminal Action in connection with the offense of Murder in the Second Degree.

As to Count Two, if you find and believe from the evidence beyond a reasonable doubt, first, that
the Defendant committed the offense of Murder in the Second Degree as submitted in instruction number
Six; and second, that the Defendant committed that offense by or with or through the use or assistance or
aid of a deadly weapon, then you will find the Defendant Guilty under Count Two of Armed Criminal
Action.

Page 1167
 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 that offense.

Instruction number Nine: When you retire to your jury room, you will first select one of your
number to act as your foreperson and to preside over your deliberations. You will then discuss the case with
your fellow jurors. Each of you must decide the case for yourself, but you should do so only after you have
considered all the evidence, discussed it fully with other jurors, and listened to the views of your fellow
jurors.

Your verdict, whether Guilty or Not Guilty, must be agreed to by each juror. Although the verdict
must be unanimous, the verdict should be signed by your foreperson alone. When you have concluded your
deliberation, you will complete the applicable form to which you unanimously agree and return it with all
unused forms and the written instructions of the Court.

Page 1168

Instruction number Ten: The attorneys will now have the opportunity of arguing the case to you.
Their arguments are intended to help you in understanding the evidence and applying the law, but they are
not evidence.

You will bear in mind that it is your duty to be governed in your deliberations by the evidence as
you remember it the reasonable inferences you believe should be drawn, therefrom, and the law as given in
these instructions.

It is your duty, and yours alone, to render such verdict under the law and the evidence as in your
reason and conscience is true and just.

The State's attorney must open the argument. The Defendant's attorney may then argue the case. The
State's attorney may then reply. No further argument is permitted by either side.

These instructions, as I said, will be given to you, and in a separate paper clip will be verdict forms
for the various possibilities of verdict, and I think they'll be self-explanatory.

Page 1169

I would request that, when you return with your verdict, that you keep the verdict forms and
instructions separate, if you would. The original of the instructions will be available for counsel should they
desire to use them in argument.