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DAVIS v. STATE5/29/1998
nces must outweigh the mitigating circumstances in order to justify a verdict of death. In order to bring back a verdict recommending punishment by death, at least ten of your number must vote for that sentence. In the guilt phase, it required a unanimous verdict. In order to recommend death, a vote of at least ten of your number must support that sentence. In other words, a verdict of death may be returned if it is unanimously agreed by the jury, or if eleven jurors vote for death, and one votes for life without parole; or a verdict of death may be returned if ten of your number vote for a sentence of death and two vote for life without parole.
"In order to bring back a verdict recommending a sentence of life without parole, there must be a concurrence of at least seven of your number. That is, a majority vote for life without parole would sustain a return of a verdict of life without parole. I think I told you at the outset, I'm not very good at math; but in going down the numbers, you could return a verdict of life without parole if all twelve of you unanimously agreed that is the verdict; or if eleven of you agreed for life without parole and one voted for death; or if ten of you agree for life without parole, and two voted for death. Obviously the same would be if nine of you recommended life without parole, and three death; eight life without parole, and three death; eight life without parole, and four death; or even if seven of you recommended a verdict of life without parole and five of you recommended a penalty of death, your verdict would be life without parole. So a majority vote would determine a verdict of life without parole. A death sentence would by supported by a vote of ten or more of your number.
"The fact that you could reach a determination of whether ten or more of you agree to recommend death, or seven or more of you agree to recommend life without parole, you could do that on a single vote as soon as you walk in the jury room. However, that fact should not influence you in any manner to act in haste or without due regard to the gravity of these proceedings. You should hear and consider all the views of your fellow jurors. Before you vote, you should carefully weigh, sift and consider all the evidence and of course, realizing a human life is at stake. You should bring to bear your best judgment on the sole issue which is before you ladies and gentlemen of the jury. The issue is whether the defendant should be sentenced to life without parole or death for the capital offense for which you have found him guilty."
(R. 510-13). This instruction properly summarizes the number of votes necessary to recommend a sentence of death and the number necessary to recommend a sentence of life imprisonment without the possibility of parole, as set forth in § 13A-5-46(f), Ala. Code 1975. The trial court explicitly set forth the possible votes and the verdicts those votes would support. Therefore, we find that the instruction was not confusing.
VI.
The appellant's sixth argument is that the trial court's re-instruction during the guilt-phase deliberation created pressure on the jury to reach a verdict. Alter the jury had deliberated for three and one-half hours, the trial court gave the following instruction:
"Ladies and Gentlemen, you began deliberation yesterday afternoon, and you have been back this morning and you have further deliberated for two hours. The allegations in this case are very serious, and don't get the idea I'm telling you not to deliberate. What I want to make sure is that you stay focused on the issues in this case. Your determination at this point is whether there is proof beyond a reasonable doubt that the defendant co
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