---

2898

To those individuals in the courtroom, the Court will begin its charge as soon as the jury comes in. This charge will take maybe 15 minutes. It will be required that you remain in the courtroom during that 15-minute period. If you feel like you may need to step out during that 15-minute period, you probably need to step out now.

(Jury present)

THE COURT: Members of the jury, at this point the Court is about to begin its charge as to the law that you should apply in these matters. I speak fast and certainly not as clear as I should. If I speak too fast and not clear enough, if you'll just raise your hand, I'll be glad to slow down and go back over that portion of the charge again with you.

PLEASE GO TO THE NEXT PAGE FOR JUDGE CORNELIUS' CHARGE TO THE JURY.

---

2899

JUDGE CORNELIUS' CHARGE TO THE JURY:

Now, members of the jury, all the evidence has been presented in the case of the State of North  Carolina v. Ronnie Lee Kimble. It is now your duty to decide from this evidence what the facts are. You must then apply the law which I'm about to give to you to those facts. It is absolutely necessary that you understand and apply the law as I give it to you and not as you think it is or as you might like for it to be. This is very important because justice requires that each individual charged with the same offense be treated in the same way and have the same law applied to him.

The defendant in this case, Mr. Ronnie Lee Kimble, has entered pleas of not guilty. The fact that he has been charged is no evidence of guilt. Under our system of justice when a defendant pleads not guilty, he is not required to prove his innocence; he is presumed to be innocent. The State must prove to you that the defendant is guilty beyond a reasonable doubt.

A reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented or the lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's

---

2900

guilt.

Now, you are the sole judges of the credibility of each witness. You must decide for yourselves whether to believe the testimony of any witness. You may believe all, or any part, or none of what a witness has said on the witness stand. In determining whether to believe any witness, you should apply the same tests of truthfulness which you apply in your everyday affairs. As applied to this trial, these tests may include the opportunity of the witness to see, to hear, to know or remember the facts or occurrences about which a witness has testified; the manner and the appearance of the witness; any interest, bias or prejudice the witness may have; the apparent understanding and fairness of the witness; and whether the testimony of the witness is reasonable, and whether it's consistent with the other believable evidence in the case.

You are the sole judges of the weight to be given any evidence. By this, I mean that if you decide that certain evidence is believable, you must then determine the importance of that evidence in light of all the other believable evidence in the case.

You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take the interest of the

---

2901

witness into account. If after doing so you believe his or her testimony in whole or in part, then you should treat what you believe the same as any other believable evidence in the case.

Now, proof of motive for a crime is permissible and often valuable but never essential for a conviction. If you are convinced beyond a reasonable doubt that the defendant committed the crime, the presence or absence

of motive is immaterial. Motive may be shown by facts surrounding the act if they support a reasonable inference of motive. When thus proved, motive becomes a circumstance to be considered by you. The absence of motive is equally a circumstance to be considered on the side of innocence.

There is evidence which tends to show that witnesses -- two witnesses were testifying under a grant of immunity or an agreement -- it's not immunity. It was under an agreement with the prosecutor for a sentence reduction in return for his testimony -­Mr. Nichols. Mr. Patrick Pardee was to be recommended that he cooperated at the time his case was heard.

If you find that either one of these witnesses testified in whole or in part for this reason, you should examine their testimony with great care and caution in deciding whether or not to believe their

---

2902

testimony here at trial. If after doing so you believe their testimony in whole or in part, then you should treat what you believe the same as any other believable evidence in the case.

Now, several photographs have been introduced into evidence in this case for the purpose of illustrating or explaining the testimony of the witnesses. These photographs may not be considered by you for any other purpose.

There were photographs and video introduced into evidence in this case. Some of these photographs and video may be considered by you as evidence of facts it illustrates or shows.

In this case, you've heard evidence from witnesses who have testified as an expert witness. An expert witness is permitted to testify in the form of-an opinion in a field where he or she purports to have specialized skill or knowledge. As I've instructed you, you are the sole judge of the credibility of each witness and the weight to be given to each witness' testimony. In making this determination as to the testimony of an expert witness, you should consider, in addition to the other tests of credibility and weight, the witness' training, qualifications and experience, ox lack thereof; the reasons, if any, given for the

---

2903

opinion; and whether the opinion is supported by facts which you find from the evidence; and whether the opinion is reasonable; and whether it's consistent with the other believable evidence in the case.

You should consider the opinion of an expert witness, but you are not bound by it. In other words, you are not required to accept an expert witness' opinion to the exclusion of facts and circumstances disclosed by other testimony.

When evidence has been received tending to show at an earlier time a witness made a statement which may be consistent or which may conflict with his testimony at this trial, you must not consider such earlier, statement as evidence of the truth of what was said at that earlier time because it was not made under oath at this trial. If you believe that such earlier statement was made and that it is consistent or does conflict with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness' truthfulness in deciding whether you will believe or disbelieve his of her testimony at this trial.

When evidence has been received tending to show that the witness, Robert Nichols, has been convicted of criminal charges, you may consider this evidence for one

---

2904

purpose only. If, considering the nature of the crimes, you believe this bears upon truthfulness, then you may consider it together with all other facts and circumstances bearing upon the witness' truthfulness in deciding whether you believe or disbelieve his testimony at this trial. Except as it may bear upon this decision, this evidence may not be considered by you in your determination of any facts in this case.

The defendant, Ronnie Lee Kimble, contends that he was at some other place at the time the offense is alleged to have taken place. This is known as an alibi. The word "alibi" simply means somewhere else. The burden of proving an alibi does not rest upon the defendant. To establish the defendant's guilt, the State must prove beyond a reasonable doubt that the defendant was present at and participated in the crime charged. The defendant's contention that he was not present and did not participate is simply a denial of facts essential to the State's case. Therefore, I charge that if upon considering all the evidence in the case, including the evidence with respect to alibi, you have a reasonable doubt as to the defendant's presence at or participation in the crime charged, then you must find him not guilty.

Now, as you know, members of the jury, there

---

2905

were three separate cases: the offense of first-degree murder, the offense of arson, and the offense of conspiracy to commit murder. I'll go over each one of these three offenses with you.

Now, in the event the defendant is convicted of murder in the first-degree, the Court will conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment without parole. This proceeding may be conducted before you or it may be conducted before another jury. It will be conducted, if necessary, as soon as practical after any guilt -- any verdict of guilty of first-degree murder is returned. If that time comes, you will receive separate sentencing instructions. However, at this time your only concern is to determine whether the defendant is guilty of the-crime charged or any lesser included offense about which you will be instructed.

The defendant has been accused of first-degree murder. And under the law and the evidence in this case, it is your duty to return one of the following verdicts: Guilty of first-degree murder or not guilty.

You may find the defendant guilty of first-degree murder on either or both of two theories. That is, on the basis of malice, premeditation and

---

2906

deliberation, or under the first-degree felony murder rule.

First-degree murder on the basis of malice, premeditation and deliberation is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.

First-degree murder under the first-degree felony murder rule is the killing of a human being in the perpetration of arson.

Now, I charge for you to find the defendant guilty of first degree murder on the basis of malice, premeditation and deliberation, the State must prove five things beyond a reasonable doubt:

First, that the defendant intentionally and with malice killed the victim with a deadly weapon. Malice means not only hatred, ill will or spite, as it is ordinarily understood, to be sure, that is malice, but it also means that condition of the mind that prompts a person to take the life of another intentionally or to intentionally inflict a wound with a deadly weapon upon another which proximately results in her death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon or intentionally killed, inflicted -- or

---

2907

intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused her death, you may infer, first, that the killing was unlawful; and second, that it was done with malice. But you are not compelled to do so. You may consider the inference along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice. A .45-caliber pistol is a deadly weapon.

Second, the State must prove that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which the victim's death would not have occurred.

Third, that the defendant intended to kill the victim. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties and other relevant circumstances.

Fourth, that the defendant acted after premeditation. That is, that he formed the intent to kill the victim over some period of time, however short, before he acted.

And fifth, that the defendant acted with

---

2908

deliberation, which means that he acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion. If the intent to kill was formed with a fixed purpose not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.

Neither premeditation nor deliberation is usually susceptible by direct proof. They may be proved by circumstances from which they may be inferred, such as the lack of provocation by the victim, conduct of the defendant before, during, and after the killing, the brutal or vicious circumstances of the killing, or the manner in which the killing was done.

I further charge that for you to find the defendant guilty of first-degree murder under the first-degree felony murder rule, the State must prove three things beyond a reasonable doubt:

First, that the defendant committed arson. And for you to find that the defendant committed arson, the-State must prove five things beyond a reasonable doubt:

First, that the defendant burned a building, a house located at 2104 Brandon Station Court in Guilford County.

---

2909

Second, that this house was a dwelling house. A dwelling house is a house that is inhabited, that is, a house that is a permanent, temporary or seasonal residence of some person.

Third, that this house was a dwelling house of someone other than the defendant.

Fourth, that this house was occupied when the defendant burned it; that is, that some person was physically present in the home at 2104 Brandon Station Court at the time of the burning. And in order for you to find that the defendant -- that the dwelling house was occupied, you must find that the murder and arson were so joined by time and circumstances as to be part of one continuous transaction.

And fifth, that the defendant did so maliciously. That is, that he intentionally and without justification or excuse burned a house located at 2104 Brandon Station Court.

Now, returning to the other elements of felony murder rule, you must further find as the second element that while committing arson, the defendant killed the victim as part of a continuous transaction with a deadly weapon.

And third, that the defendant's act was a proximate cause of the victim's death. A proximate

---

2910

cause is a real cause, a cause without which the victim's death would not have occurred.

So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date that the defendant intentionally killed the victim with a deadly weapon, and that this proximately caused the victim's death, and that the defendant intended to kill the victim, and that he acted with malice and premeditation and with deliberation, it would be your duty to return a verdict of guilty of first-degree murder on the basis of malice, premeditation and deliberation.

However, if you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of first-degree murder on the basis of malice, premeditation and deliberation.

Whether or not you find the defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation, you must also consider whether he is guilty of first-degree murder under the first-degree felony murder rule.

As to the felony murder rule charge that I have -- that if you find from the evidence beyond a reasonable doubt that on or about August -- October 9,

---

2911

excuse me, October 9, 1995, the defendant burned a house located at 2104 Brandon Station Court, that this house was a dwelling house, that it was a dwelling house of some person other than the defendant, that someone was physically present in the house located at 2104 Brandon Station Court when the defendant burned it, and that the defendant burned the house maliciously, that is, while committing said arson, that is, as part of one continuous transaction, the defendant killed the victim, and that the defendant's act was a proximate cause of the victim's death, it would be your duty to return a verdict of guilty of first-degree murder under the felony murder rule.

However, if you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of first-degree murder under the first-degree felony murder rule.

If you do not find the defendant guilty of first-degree murder on the basis of malice, premeditation and deliberation, and if you do not find him guilty of first-degree murder under the felony murder rule, then you will return a verdict of not guilty as to the first-degree murder charge.

The defendant has been accused of first-degree arson. Under the law and the evidence in this case, it

---

2912

is your duty to return one of the following verdicts: Guilty of first-degree arson, or guilty of second-degree arson, or not guilty.

Now, I charge for you to find the defendant guilty of first-degree arson, the State must prove five things beyond a reasonable doubt:

First, that the defendant burned a building, a house located at 2104 Brandon Station Court in Guilford County.

Second, that this building was a dwelling house. A dwelling house is a house that is inhabited, that is, a house that is a permanent, temporary or seasonal residence of some person.

Third, that this house was the dwelling house of someone other than the defendant.

Fourth, that this house was occupied when the defendant burned it. That is, that some person was physically present in the house at 2104 Brandon Station Court at the time of the burning. And in order for you to find that the dwelling house was occupied, you must find that the murder and arson were so joined by time and circumstances as to be one -- be part of one continuous transaction.

And fifth, that the defendant did so
maliciously. That is, that he intentionally, without

---

2913

justification or excuse, burned a house located at 2104 Brandon Station Court.

So I charge that if you find from the evidence beyond a reasonable doubt that on or about October 9, 1995, the defendant burned a house located at 2104 Brandon Station Court, and that this house was a dwelling house, and that it was a dwelling house of some person other than the defendant, that someone was physically present in the house located at 2104 Brandon Station Court when the defendant burned it, and that the defendant burned the house maliciously, then it would be your duty to return a verdict of guilty of first-degree arson.

However, if you do not so find or if you have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of first-degree arson.

If you do not find the defendant guilty of first-degree arson, you must determine whether he is guilty of second-degree arson. Second-degree arson differs from first-degree arson only in that the State need not prove that the house at 2104 Brandon Station Court was occupied at the time it was burned.

So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged

---

2914

date that the defendant burned a house at 2104 Brandon Station Court, and that this house was a dwelling house, and that it was a dwelling house of some person other than the defendant, and that the defendant burned the house at 2104 Brandon Station Court maliciously, then it would be your duty to return a verdict of guilty of second-degree arson.

However, if you do not so find or if you have a reasonable doubt as to one or more of these things, then you will return a verdict of not guilty as to the arson charge.

The defendant has been accused of conspiracy to commit murder. And I charge for you to find the defendant guilty of conspiracy to commit murder, the State must prove three things beyond a reasonable doubt:

First, that the defendant and at least one other person entered into an agreement. The agreement may be -- may take the form of a written or spoken words or may be established by certain acts of a mutual understanding between the two individuals.

And second, that the agreement was to commit murder. And murder is the unlawful killing of another with malice.

And third, that the defendant and at least one other person intended that this agreement would be

---

2915

carried out at the time it was made.

So I charge if you find from the evidence beyond a reasonable doubt that on or about the alleged date that the defendant conspired with another to commit murder, and that the defendant and at least one other person intended at that time that the murder be committed, then it would be your duty to return a verdict of guilty as charged.

However, if you do not so find or if you have a reasonable doubt as to one or more of these things then it would be your duty to return a verdict of not guilty as to the conspiracy to commit murder charge.

Now, members of the jury, you've heard the evidence; you've heard the arguments of counsel for the State and for the defendant. The Court has not summarized the evidence in this case. It is your duty to remember the evidence whether it's been called to your attention or not; and if your recollection of the evidence differs from that of the district attorney or the defense attorneys, you are to rely solely upon your own recollection of the evidence in your deliberations,

I have not reviewed the contentions for the State nor the defendant, but it is your duty not only to consider all the evidence, but also to consider the arguments, the contentions and positions urged by the

---

2916

state's attorney and the defense attorneys in their speeches to you, and any other contention that arises from the evidence and to weigh them in the light of your common sense and as best you can to determine the truth in these matters.

The law, as it should, requires that the presiding judge is to be impartial. You are not to draw any inference from any ruling that I've made, or inflection in my voice or expression on my face, or any question I've asked a witness or anything else that I may have said or done in this trial, that I have an opinion or intimated an opinion, as to whether any part of the evidence should be believed or disbelieved, as to whether any fact has or has not been proved, or as to what your findings ought to be in these matters. It is your exclusive province as members of the jury to find the true facts in this case and render a verdict reflecting the truth as you find it to be.

I instruct you that a verdict is not a verdict until all 12 jurors agree unanimously as to what your decision shall be. You may not render a verdict by a majority vote.

Now, when you retire to the jury room, your first order of business is to select your foreperson, someone to lead your deliberations. Once you've done

---

2917

that, please wait until you receive the verdict sheets from the court officer. After you receive the verdict sheets from the court officer, then you may begin your deliberations. And when you reach unanimous verdicts, please knock on the door and the court officer will bring you into the courtroom to pronounce that verdict.

At this time, the three alternate jurors just remain seated as the 12 jurors leave. At this time, you may retire to the jury room to select your foreperson.

(Jury absent. 10:01 a.m.)

THE COURT: The three alternate jurors, we're going have to ask you also to go into a different room and remain until the Court summons you. Please do not discuss this case during the time that you're in that room. So if you'll go with the officer. Find a room to place the alternates in, please.

(Three alternate jurors absent)