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BUSH v. STATE12/1/1995
he didn't personally commit himself. A defendant who is guilty of the crime of murder of the intentional killing type because of these principles has committed that crime the same as if he had personally done the killing himself."
We find no merit in the appellant's contention. This instruction was correct. The trial court clearly instructed the jury that it must find that the appellant intentionally aided or abetted the commission of the murder before the jury could convict him of the offense as an accomplice. There was no plain error in the giving of this instruction.
In footnote 89 to his brief to this court, the appellant raises an issue for the first time, as follows:
" he circuit court erred in its response to a question from the jurors, during their guilt-phase deliberations, as to how Mr. Bush's sentence would be decided were he convicted of capital murder. By failing to make clear, in this answer or in any previous instruction to the jurors, that they could only recommend a sentence and that the court [would] make the final decision whether Mr. Bush [would receive] the death penalty, the trial judge created an intolerable risk that a deadlocked jury reached a compromise verdict, with certain jurors agreeing to convict Mr. Bush of capital murder in the mistaken belief that a promise by other jurors to vote in favor of life-without-parole verdict would preclude a death sentence in the case."
The record shows that, after commencing its deliberations during the guilt phase, the jury asked the trial court for some clarification of the proceedings. The record does not contain its request. We can discern from the trial court's response that it pertained to the sentencing proceedings. The trial court then stated to the jury:
"The law provides that if a defendant is convicted of a capital offense additional proceedings will be held to determine whether his punishment is to be life in prison without parole or death; but you're not to concern yourself at this time with any issue of punishment. Instead the only determination that you are to make at this time is whether the State has proven beyond a reasonable doubt that the defendant is guilty of the capital offense or some lesser offense, as I have defined the lesser offense here, murder, intentional murder. So the only determination you're to make at this time is whether the State has proven beyond a reasonable doubt that the defendant is guilty of the capital offense, or whether he's guilty of murder, or whether he's not guilty."
We find no merit in the appellant's contention. His assertions are purely speculative and are not supported by the record. The trial court's instruction that the jury during the guilt phase should not be concerned with sentencing, but should be concerned only with the question of guilt or innocence was correct, and in the absence of some evidence to the contrary, it should be presumed that the jury complied with that instruction. Throughout the trial of the case, the appellant urged the trial court not to use the word "recommend" in referring to the jury's responsibility in sentencing, claiming that it
violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Now, for the first time, he claims that the trial court should have so instructed the jury sua sponte. We note that he did not object to the trial court's instructions to the jury and, in fact, stated that he was satisfied with them. We find no plain error in the trial court's instructions.
XVII.
The appellant contends that the state failed to prove the corpus delicti "necessary to sustain a conviction for capital murder because it offered no
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