DEATH PENALTY PROCEEDINGS - INTRODUCTION
The defendant in this case has been found guilty by you, the jury, of the offense of murder in the first degree. It is now your duty to determine the penalty to be imposed for this offense.
Under the law of the State of Oklahoma, every person found guilty of murder in the first degree shall be punished by death, or imprisonment for life without the possibility of parole, or imprisonment for life with the possibility of parole.
In Johnson v. State, 1996 OK CR 36, ¶ 52, 928 P.2d 309, 320, the Court of Criminal Appeals approved a modification of this Instruction concerning the possibility of parole in order to provide greater clarity. The court stated, however, that it did not require the giving of the Instruction with this modification.
Jurors may ask the judge whether a person who has been sentenced to imprisonment for life without the possibility of parole may ever be released from prison. The Court of Criminal Appeals gave the following advice to trial courts in Littlejohn v. State, 2004 OK CR 6, ¶ 11, 85 P.3d 287, 293-94, on how to respond to such requests:
Therefore, in future cases where the jury during deliberations asks, in some form or fashion, whether an offender who is sentenced to life imprisonment without the possibility of parole is parole eligible, the trial court should either refer the jury back to the instructions, Douglas, 1997 OK CR 79, ¶¶ 103-04, 951 P.2d at 678, tell the jury that the punishment options are self explanatory, see Mayes, 1994 OK CR 44, ¶ 137, 887 P.2d at 1318, or advise the jury that the punishment options are to be understood in their plain and literal sense and that the defendant will not be eligible for parole if sentenced to life imprisonment without the possibility of parole. While arguably the latter response is nothing more than another way of referring the jury back to the instructions, it does force the jury to accept the plain meaning of the sentencing options and impose the sentence it deems appropriate under the law and facts of the case. We recognize trial courts are in the best position to decide which answer is best suited to the situation as the questions posed by juries come in a myriad of forms on this issue. However, we believe the latter explanation may alleviate some obvious concerns of jurors more effectively than simply telling the jury it has all the law and evidence necessary to reach a decision.