OUJI-CR 4-71


In determining whether a person found guilty of murder in the first degree shall be punished by death, imprisonment for life without the possibility of parole, or imprisonment for life with the possibility of parole, you are required to give individualized consideration to the defendant's degree of participation and focus on the defendant's individual culpability in the killing.

You are further instructed that you may not impose the death penalty unless you determine beyond a reasonable doubt that the defendant either: 1) killed a person, 2) attempted to kill a person, 3) intended a killing to take place, 4) intended the use of deadly force, or 5) was a major participant in the felony committed and was recklessly indifferent to human life.

Notes on Use

This instruction shall be used in cases where the death penalty is sought based on the felony-murder rule. It should not be used unless an accomplice or accomplices were involved in the killing. Stiles v. State, 1992 OK CR 23, ¶ 32, 829 P.2d 984, 992.

Committee Comments

The United States Supreme Court held in Enmund v. Florida, 458 U.S. 782, 797 (1982), that the Eighth Amendment to the United States Constitution does not permit the death penalty to be imposed on a person "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." The Enmund decision was followed by Tison v. Arizona, 481 U.S. 137 (1987), in which the United States Supreme Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." 481 U.S. at 158.

The above instruction is similar to one that the Oklahoma Court of Criminal Appeals determined satisfied constitutional standards in Williamson v. State, 1991 OK CR 63, ¶¶ 73-74, 812 P.2d 384, 402.

(2000 Supp.)