OCTOBER TERM, 1997
Syllabus
BUCHANAN
v. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF
CORRECTIONS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 96-8400. Argued November 3, 1997-Decided January 21,1998
Following petitioner Buchanan's conviction of the capital
murders of his father, stepmother, and two brothers, the prosecutor
sought the death penalty based on Virginia's aggravating factor
that the crime was vile. During the sentencing hearing, there were
two days of testimony as to Buchanan's troubled family background
and mental and emotional problems, and the prosecutor and defense
counsel both made extensive arguments on the mitigating evidence
and the effect it should be given in sentencing. The trial court
instructed the jury,
inter alia, that if it found beyond a
reasonable doubt that Buchanan's conduct was vile,"then you may fix
the punishment ... at death," but "if you believe from all the
evidence that ... death ... is not justified, then you shall fix
the punishment ... at life imprisonment." The court refused
Buchanan's request to give four additional instructions on
particular statutory mitigating factors and a general instruction
on the concept of mitigating evidence. The jury returned a verdict
of death, the trial court imposed that sentence, and the Virginia
Supreme Court affirmed. The Federal District Court then denied
Buchanan habeas corpus relief, and the Fourth Circuit affirmed.
Held: The absence of instructions on the concept of
mitigation and on particular statutorily defined mitigating factors
did not violate the Eighth and Fourteenth Amendments. In arguing to
the contrary, Buchanan fails to distinguish between the differing
constitutional treatment this Court has accorded the two phases of
the capital sentencing process: the eligibility phase, in which the
jury narrows the class of deathpenalty-eligible defendants, and the
selection phase here at issue, in which the jury determines whether
to impose a death sentence on an eligible defendant. See,
e. g.,
Tuilaepa v.
California, 512 U. S. 967, 971-972.
In the selection phase, the state may shape and structure the
jury's consideration of mitigating evidence, so long as
restrictions on the sentencing determination do not preclude the
jury from giving effect to any such evidence.
E. g., Penry
v.
Lynaugh, 492 U. S. 302, 317-318.
The determinative standard is whether there is a reasonable
likelihood that the jury has applied its instructions in a way that
prevents consideration of constitutionally relevant evidence.
E.
g., Boyde v.
California, 494 U. S. 370, 380. The
instructions here did not violate these con-
270
stitutional principles. This conclusion is confirmed by the
context in which the instructions were given. The court directed
the jurors to base their decision on "all the evidence" and to
impose a life sentence if they believed the evidence so warranted,
there was extensive testimony as to Buchanan's family background
and mental and emotional problems, and counsel made detailed
arguments on the mitigating evidence. Because the parties in effect
agreed that there was substantial mitigating evidence and
that the jury had to weigh that evidence against Buchanan's conduct
in making a discretionary decision on the appropriate penalty,
there is not a reasonable likelihood that the jurors understood the
instructions to preclude consideration of relevant mitigating
evidence. Pp. 275-279.
103 F.3d
344, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. SCALIA,
J., filed a concurring opinion,
post, p. 279. BREYER, J.,
filed a dissenting opinion, in which STEVENS and GINSBURG, JJ.,
joined,
post, p. 280.
Gerald T. Zerkin, by appointment of the Court, 520 U. s.
1227, argued the cause for petitioner. With him on the brief were
Frank K. Friedman, John H. Blume, and
Mark E.
Olive.
Richard Cullen, Attorney General of Virginia, argued the
cause for respondent. With him on the brief were
David E.
Anderson, Chief Deputy Attorney General, and
Katherine P.
Baldwin, Assistant Attorney General. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case calls on us to decide whether the Eighth Amendment
requires that a capital jury be instructed on the concept of
mitigating evidence generally, or on particular statutory
mitigating factors. We hold it does not.
* Lisa Kemler filed a brief for the National
Association of Criminal Defense Lawyers as
amicus curiae
urging reversal.
Kent S.
Scheidegger filed a brief for the Criminal
Justice Legal Foundation as
amicus curiae urging
affirmance.
271
On the afternoon of September 15, 1987, Douglas Buchanan
murdered his father, stepmother, and two younger brothers. Buchanan
was convicted of the capital murder of more than one person as part
of the same act or transaction by a jury in the Circuit Court of
Amherst County, Virginia. See Va. Code Ann. § 18.2-31(7) (1996). A
separate sentencing hearing was held, in which the prosecutor
sought the death penalty on the basis of Virginia's aggravating
factor that the crime was vile. See Va. Code Ann. § 19.2-264.3
(1995).
In his opening statement in this proceeding, the prosecutor told
the jury that he would be asking for the death penalty based on
vileness. He conceded that Buchanan had had a troubled childhood
and informed the jury that it would have to balance the things in
petitioner's favor against the crimes he had committed. App. 25-27.
Defense counsel outlined the mitigating evidence he would present
and told the jury that he was asking that petitioner not be
executed based on that evidence.
Id., at 29. For two days,
the jury heard evidence from seven defense witnesses and eight
prosecution witnesses. Buchanan's witnesses recounted his mother's
early death from breast cancer, his father's subsequent remarriage,
and his parents' attempts to prevent him from seeing his maternal
relatives. A psychiatrist also testified that Buchanan was under
extreme emotional disturbance at the time of the crime, based
largely on stress caused by the manner in which the family had
dealt with and reacted to his mother's death. Two mental health
experts testified for the prosecution. They agreed generally with
the factual events of petitioner's life but not with their effect
on his commission of the crimes.
In closing argument, the prosecutor told the jury that "even if
you find that there was that vileness ... you do not have to return
the death sentence. I will not suggest that to you."
Id., at
43. While admitting the existence of mitigating evidence, and
agreeing that the jury had to weigh that
272
evidence against petitioner's conduct, the prosecutor argued
that the circumstances warranted the death penalty.
Id., at
43-44, 57-58. Defense counsel also explained the concept of
mitigation and noted that "practically any factor can be considered
in mitigation." He discussed at length petitioner's lack of prior
criminal activity, his extreme mental or emotional disturbance at
the time of the offense, his significantly impaired capacity to
appreciate the criminality of his conduct or to conform his conduct
to the law's requirements, and his youth. Counsel argued that these
four mitigating factors, recognized in the Virginia Code, mitigated
Buchanan's offense.
Id., at 59-61, 64-66.
The Commonwealth and Buchanan agreed that the court should
instruct the jury with Virginia's pattern capital sentencing
instruction.1 That instruction told the jury that before it could
fix the penalty at death, the Commonwealth first must prove beyond
a reasonable doubt that the conduct was vile. The instruction next
stated that if the jury found that condition met, "then you may fix
the punishment of the Defendant at death or if you believe from all
the evidence that the death penalty is not justified, then you
shall fix the pun-
1 The complete instruction is as follows:
"You have convicted the defendant of an offense which may be
punishable by death. You must decide whether the defendant should
be sentenced to death or to life imprisonment.
"Before the penalty can be fixed at death, the Commonwealth must
prove beyond a reasonable doubt that his conduct in committing the
murders of [his family] was outrageously or wantonly vile, horrible
or inhuman, in that it involved torture, depravity of mind or
aggravated battery to the above four victims, or to anyone of
them.
"If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt the requirements of the preceding
paragraph, then you may fix the punishment of the Defendant at
death or if you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment of the
Defendant at life imprisonment.
"If the Commonwealth has failed to prove beyond a reasonable
doubt the requirements of the second paragraph in this instruction,
then you shall fix the punishment of the Defendant at life
imprisonment." App. 73.
273
ishment of the Defendant at life imprisonment."
Id., at
73. The instruction then stated that if the jury did not find the
condition met, the jury must impose a life sentence. This
instruction was given without objection.
Id., at 39.
Buchanan requested several additional jury instructions.
He proposed four instructions on particular mitigating
factors-no significant history of prior criminal activity; extreme
mental or emotional disturbance; significantly impaired capacity to
appreciate the criminality of his conduct or to conform his conduct
to the law's requirements; and his age. These four factors are
listed as facts in mitigation of the offense in the Virginia Code.2
Each of Buchanan's proposed instructions stated that if the jury
found the factor to exist, "then that is a fact which mitigates
against imposing the death penalty, and you shall consider that
fact in deciding whether to impose a sentence of death or life
imprisonment."
Id., at 75-76.3 Buchanan also proposed an
instruction stating that, "[i]n addition to the mitigating factors
specified in other instructions, you shall consider the
circumstances surrounding the offense, the history and background
of [Buchanan,] and any other facts in mitigation of the offense."
Id., at 74. The court refused to give these instructions,
relying on Virginia case law holding that it was not proper to
2 "Evidence which may be admissible, subject to the rules of
evidence governing admissibility, may include the circumstances
surrounding the offense, the history and background of the
defendant, and any other facts in mitigation of the offense. Facts
in mitigation may include, but shall not be limited to, the
following: (i) The defendant has no significant history of prior
criminal activity, (ii) the capital felony was committed while the
defendant was under the influence of extreme mental or emotional
disturbance, ... (iv) at the time of the commission of the capital
felony, the capacity of the defendant to appreciate the criminality
of his conduct or to conform his conduct to the requirements of law
was significantly impaired, (v) the age of the defendant at the
time of the commission of the capital offense .... " Va. Code Ann.
§ 19.2-264.4(B) (1995) (amended, not in relevant part).
3 The proposed instruction on age simply told the jury that
petitioner's age "is a fact which mitigates" that the jury "shall
consider." App.75-76.
274
give instructions singling out certain mitigating factors to the
sentencing jury.
Id., at 39-40.
The jury was instructed that once it reached a decision on its
two options, imposing a life sentence or imposing the death
penalty, the foreman should sign the corresponding verdict form.
The death penalty verdict form stated that the jury had unanimously
found petitioner's conduct to be vile and that "having considered
the evidence in mitigation of the offense," it unanimously fixed
his punishment at death.
Id., at 77. When the jury returned
with a verdict for the death penalty, the court read the verdict
form and polled each juror on his agreement with the verdict.
The court, after a statutorily mandated sentencing hearing, see
Va. Code Ann. § 19.2-264.5 (1995), subsequently imposed the
sentence fixed by the jury. On direct appeal, the Virginia Supreme
Court reviewed Buchanan's sentence for proportionality, see Va.
Code Ann. §§ 17.110.1-17.110.2 (1996), and affirmed his conviction
and death sentence.
Buchanan v.
Commonwealth, 238 Va.
389, 384 S. E. 2d 757 (1989), cert. denied
sub nom. Buchanan
v.
Virginia, 493 U. S. 1063 (1990).
Petitioner then sought federal habeas relief. The District Court
denied the petition. The Court of Appeals for the Fourth Circuit
affirmed.
103 F.3d
344 (1996). That court recognized that the Eighth Amendment
requires that a capital sentencing jury's discretion be " 'guided
and channeled by requiring examination of specific factors that
argue in favor of or against imposition of the death penalty''' in
order to eliminate arbitrariness and capriciousness.
Id., at
347 (quoting
Proffitt v.
Florida, 428 U. S. 242, 258
(1976)). However, relying on our decision in
Zant v.
Stephens, 462
U. S. 862, 890 (1983), and on its own precedent, the court
concluded that the Eighth Amendment does not require States to
adopt specific standards for instructing juries on mitigating
circumstances. 103 F. 3d, at 347. It therefore held that by
allowing the jury to consider all relevant mitigating evidence,
Virginia's sentencing procedure satisfied the Eighth
275
Amendment requirement of individualized sentencing in capital
cases.
Id., at 347-348. We granted certiorari, 520 U. S.
1196 (1997), and now affirm.
Petitioner contends that the trial court violated his Eighth and
Fourteenth Amendment rights to be free from arbitrary and
capricious imposition of the death penalty when it failed to
provide the jury with express guidance on the concept of
mitigation, and to instruct the jury on particular statutorily
defined mitigating factors. This lack of guidance, it is argued,
renders his sentence constitutionally unacceptable.
Petitioner initially recognizes, as he must, that our cases have
distinguished between two different aspects of the capital
sentencing process, the eligibility phase and the selection phase.
Tuilaepa v.
California, 512 U. S. 967, 971
(1994). In the eligibility phase, the jury narrows the class of
defendants eligible for the death penalty, often through
consideration of aggravating circumstances.
Ibid. In the
selection phase, the jury determines whether to impose a death
sentence on an eligible defendant.
Id., at 972. Petitioner
concedes that it is only the selection phase that is at stake in
his case. He argues, however, that our decisions indicate that the
jury at the selection phase must both have discretion to make an
individualized determination and have that discretion limited and
channeled. See,
e. g., Gregg v.
Georgia, 428 U. S. 153, 206-207
(1976). He further argues that the Eighth Amendment therefore
requires the court to instruct the jury on its obligation and
authority to consider mitigating evidence, and on particular
mitigating factors deemed relevant by the State.
No such rule has ever been adopted by this Court. While
petitioner appropriately recognizes the distinction between the
eligibility and selection phases, he fails to distinguish the
differing constitutional treatment we have accorded those two
aspects of capital sentencing. It is in regard to the eligibility
phase that we have stressed the need for channeling and limiting
the jury's discretion to ensure that the death
276
penalty is a proportionate punishment and therefore not
arbitrary or capricious in its imposition. In contrast, in the
selection phase, we have emphasized the need for a broad inquiry
into all relevant mitigating evidence to allow an individualized
determination.
Tuilaepa, supra, at 971-973;
Romano v.
Oklahoma, 512 U.
S. 1, 6-7 (1994);
McCleskey v.
Kemp, 481 U. S. 279, 304-306
(1987);
Stephens, supra, at 878-879.
In the selection phase, our cases have established that the
sentencer may not be precluded from considering, and may not refuse
to consider, any constitutionally relevant mitigating evidence.
Penry v.
Lynaugh, 492 U. S. 302, 317-318
(1989); Eddings v.
Oklahoma, 455 U. S. 104, 113-114
(1982);
Lockett v.
Ohio, 438 U. S. 586, 604
(1978). However, the state may shape and structure the jury's
consideration of mitigation so long as it does not preclude the
jury from giving effect to any relevant mitigating evidence.
Johnson v.
Texas, 509 U. S. 350, 362
(1993);
Penry, supra, at 326;
Franklin v.
Lynaugh, 487
U. S. 164, 181 (1988). Our consistent concern has been that
restrictions on the jury's sentencing determination not preclude
the jury from being able to give effect to mitigating evidence.
Thus, in
Boyde v.
California, 494 U. S. 370 (1990), we
held that the standard for determining whether jury instructions
satisfy these principles was "whether there is a reasonable
likelihood that the jury has applied the challenged instruction in
a way that prevents the consideration of constitutionally relevant
evidence."
Id., at 380; see also
Johnson, supra, at
367-368.
But we have never gone further and held that the state must
affirmatively structure in a particular way the manner in which
juries consider mitigating evidence. And indeed, our decisions
suggest that complete jury discretion is constitutionally
permissible. See
Tuilaepa, supra, at 978-979 (noting that at
the selection phase, the state is not confined to submitting
specific propositional questions to the jury and may indeed allow
the jury unbridled discretion);
Stephens,
277
supra, at 875 (rejecting the argument that a scheme
permitting the jury to exercise "unbridled discretion" in
determining whether to impose the death penalty after it has found
the defendant eligible is unconstitutional, and noting that
accepting that argument would require the Court to overrule
Gregg, supra).
The jury instruction here did not violate these constitutional
principles. The instruction did not foreclose the jury's
consideration of any mitigating evidence. By directing the jury to
base its decision on "all the evidence," the instruction afforded
jurors an opportunity to consider mitigating evidence. The
instruction informed the jurors that if they found the aggravating
factor proved beyond a reasonable doubt then they "may fix" the
penalty at death, but directed that if they believed that all the
evidence justified a lesser sentence then they "shall" impose a
life sentence. The jury was thus allowed to impose a life sentence
even if it found the aggravating factor proved. Moreover, in
contrast to the Texas special issues scheme in question in
Penry, supra, at 326, the instructions here did not
constrain the manner in which the jury was able to give effect to
mitigation.4
4 The dissent relies on an argument regarding the Virginia
pattern sentencing instruction that petitioner belatedly attempted
to adopt at oral argument.
Post, at 280-284. This claim was
waived, since petitioner expressly agreed to the pattern
instruction at trial, the instruction was given without objection,
and petitioner never raised this claim previously.
In any event, the dissent's theory does not make sense. The
dissent suggests that the disjunctive "or" clauses in the third
paragraph may lead the jury to think that it can only impose life
imprisonment
if it does not find the aggravator proved. But
this interpretation is at odds with the ordinary meaning of the
instruction's language and structure. The instruction presents a
simple decisional tree. The second paragraph states that the
Commonwealth must prove the aggravator beyond a reasonable doubt.
The third and fourth paragraphs give the jury alternative tasks
according to whether the Commonwealth succeeds or fails in meeting
its burden. The third paragraph states that "if" the aggravator is
proved,
278
Even were we to entertain some doubt as to the clarity of the
instructions, the entire context in which the instructions were
given expressly informed the jury that it could consider mitigating
evidence. In
Boyde, we considered the validity of an
instruction listing 11 factors that the jury was to consider in
determining punishment, including a catchall factor allowing
consideration of "'[a]ny other circumstance which extenuates the
gravity of the crime.'" 494 U. S., at 373-374. We expressly noted
that even were the instruction at all unclear, "the context of the
proceedings would have led reasonable jurors to believe that
evidence of petitioner's background and character could be
considered in mitigation."
Id., at 383. We found it unlikely
that reasonable jurors would believe that the court's instructions
transformed four days of defense testimony on the defendant's
background and character "'into a virtual charade.'"
Ibid.
(quoting
California v.
Brown, 479 U. S. 538, 542
(1987)).
Similarly, here, there were two days of testimony relating to
petitioner's family background and mental and emotional problems.
It is not likely that the jury would disregard this extensive
testimony in making its decision, particularly given the
instruction to consider "all the evidence." Further buttressing
this conclusion are the extensive arguments of both defense counsel
and the prosecutor on the mitigating evidence and the effect it
should be given in the sentencing determination. The parties in
effect
agreed that there was substantial mitigating evidence
and that the jury had to
the jury may choose between death and life. The fourth paragraph
states that "if" the aggravator is not proved, the jury must impose
life. The "if" clauses clearly condition the choices that follow.
And since the fourth paragraph tells the jury what to do if the
aggravator is
not proved, the third paragraph clearly
involves only the jury's task if the aggravator
is proved.
The fact that counsel and the court agreed to this instruction is
strong evidence that the "misconception" envisioned by the dissent
could result only from a strained parsing of the language.
279
weigh that evidence against petitioner's conduct in making a
discretionary decision on the appropriate penalty. In this context,
"there is not a reasonable likelihood that the jurors in
petitioner's case understood the challenged instructions to
preclude consideration of relevant mitigating evidence offered by
petitioner."
Boyde, supra, at 386; see also
Johnson,
509 U. S., at 367.
The absence of an instruction on the concept of mitigation and
of instructions on particular statutorily defined mitigating
factors did not violate the Eighth and Fourteenth Amendments to the
United States Constitution. The judgment of the Court of Appeals
is
Affirmed.
JUSTICE SCALIA, concurring.
I agree that there is no "reasonable likelihood that the jurors
in petitioner's case understood the challenged instructions to
preclude consideration of relevant mitigating evidence,"
Boyde v.
California, 494 U. S. 370, 386
(1990), so I join the opinion of the Court. I continue to adhere to
my view that the Eighth Amendment does not, in any event, require
that sentencing juries be given discretion to consider mitigating
evidence. Petitioner's argument "that the jury at the selection
phase must both have discretion to make an individualized
determination and have that discretion limited and channeled,"
ante, at 275, perfectly describes the incompatibility
between the
Lockett-Eddings requirement and the holding of
Furman v.
Georgia, 408 U. S. 238 (1972)
(per curiam), that the sentencer's discretion must be
constrained to avoid arbitrary or freakish imposition of the death
penalty. See
Walton v.
Arizona, 497 U. S. 639, 656 (1990)
(SCALIA, J., concurring in part and concurring in judgment). The
Court's ongoing attempt to resolve that contradiction by drawing an
arbitrary line in the sand between the "eligibility and selection
phases" of the sentencing decision is, in my view, incoherent and
ultimately doomed to failure.
280
JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE GINSBURG
join, dissenting.
The imposition of a penalty of death must be "directly related
to the personal culpability of the criminal defendant," and
"reflect a reasoned
moral response to the defendant's
background, character, and crime."
California v.
Brown, 479 U.
S. 538, 545 (1987) (O'CONNOR, J., concurring). Consequently, a
judge's instructions during penalty phase proceedings may not
preclude the jury "from considering, as a mitigating factor, any
aspect of a defendant's character or record and any of the
circumstances of the offense that the defendant proffers as a basis
for a sentence less than death."
Lockett v.
Ohio,
438 U. S. 586,
604 (1978) (emphasis deleted). The majority recognizes that "the
standard for determining whether jury instructions satisfy these
principles [is] 'whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way that prevents
the consideration of constitutionally relevant evidence.'"
Ante, at 276 (quoting
Boyde v.
California,
494 U. S. 370,
380 (1990)). In my view, the majority misapplies this standard.
The relevant instruction, read in its entirety, indicates that
there is a "reasonable likelihood" that the jury understood and
"applied the challenged instruction" in a way that prevented it
from considering "constitutionally relevant evidence," namely, the
extensive evidence that the defendant presented in mitigation. The
instruction, which petitioner argued should have been supplemented
by additional discussion of mitigation, App. 74-76, read as
follows:
"[1] You have convicted the defendant of an offense which may be
punishable by death. You must decide whether the defendant should
be sentenced to death or to life imprisonment.
"[2] Before the penalty can be fixed at death, the Commonwealth
must prove beyond a reasonable doubt that his conduct in committing
the murders of Douglas McArthur Buchanan, Sr., Christopher Donald
Buchanan,
281
Joel Jerry Buchanan and Geraldine Patterson Buchanan, or anyone
of them, was outrageously or wantonly vile, horrible or inhuman, in
that it involved torture, depravity of mind or aggravated battery
to the above four victims, or to anyone of them.
"[3] If you find from the evidence that the Commonwealth has
proved beyond a reasonable doubt the requirements of the preceding
paragraph, then you may fix the punishment of the Defendant at
death or if you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment of the
Defendant at life imprisonment.
"[4] If the Commonwealth has failed to prove beyond a reasonable
doubt the requirements of the second paragraph in this instruction,
then you shall fix the punishment of the Defendant at life
imprisonment.
"[5] In order to return a sentence of death, all twelve jurors
must unanimously agree on that sentence." Id., at 73-74.
The majority believes that paragraph 3 contains language telling
the jury it may consider defendant's mitigating evidence,
specifically the phrase:
"or if you believe from all the evidence that the death penalty
is not justified, then you shall fix the punishment of the
Defendant at life imprisonment."
See
ante, at 277. I believe that these words, read in the
context of the entire instruction, do the opposite. In context,
they are part of an instruction which seems to say that, if the
jury finds the State has proved aggravating circumstances that make
the defendant eligible for the death penalty, the jury may "fix the
punishment ... at death," but if the jury finds that the State has
not proved aggravating circumstances that make the defendant
eligible for the death penalty, then the jury must "fix the
punishment ... at life imprisonment." To say this without more-and
there was
282
no more-is to tell the jury that evidence of mitigating
circumstances (concerning, say, the defendant's childhood and his
troubled relationships with the victims) is not relevant to their
sentencing decision.
The reader might now review the instructions themselves with the
following paraphrase in mind: Paragraph 1 tells the jury that it
must decide between death or life imprisonment. Paragraph 2 sets
forth potential aggravating circumstances of the crime, thereby
explaining to the jury what experienced death penalty lawyers would
understand as "aggravators" (i.
e., the criteria for "death
eligibility"). This paragraph says that the jury cannot impose the
death penalty unless the Commonwealth proves (beyond a reasonable
doubt) that at least one of the murders was "outrageously or
wantonly vile, horrible or inhuman, in that it involved torture,
depravity of mind or aggravated battery."
Paragraph 3-the key paragraph-repeats that, if the jury finds
that the Commonwealth has proved death eligibility, the jury "may
fix the punishment ... at death." It immediately adds in the same
sentence "or if you believe from all the evidence that the death
penalty is not justified, then you shall fix the punishment ... at
life imprisonment." It is the stringing together of these two
phrases, along with the use of the connective "or," that leads to a
potential understanding of the paragraph as saying, "If you find
the defendant eligible for death, you may impose the death penalty,
but if you find (on the basis of 'all the evidence') that the death
penalty is not 'justified,' which is to say that the defendant is
not eligible for the death penalty, then you must impose life
imprisonment." Without any further explanation, the jury might well
believe that whether death is, or is not, "justified" turns on the
presence or absence of Paragraph 2's aggravating circumstances of
the crime-not upon the defendant's mitigating evidence about his
upbringing and other factors.
Paragraph 4 makes matters worse. It adds that the Commonwealth's
failure to prove the aggravating factors which
283
make the defendant eligible for the death penalty means that the
jury must fix the punishment at life imprisonment. It is the
position of the paragraph, coming just after the key phrase "or if
you believe from all the evidence that the death penalty is not
justified," that suggests reading it as a further explanation of
when the death penalty is not "justified." So read, this paragraph
reinforces the misconception that paragraph 3 creates.
Were the jury made up of experienced death penalty lawyers, it
might understand these instructions differently-in the way that the
Court understands them. Lawyers who represent capital defendants
are aware of the differences between the "eligibility" phase, with
its "aggravators," and the "selection" phase, with its mitigating
evidence. Thus, they might read Paragraph 2 as setting forth the
"eligibility" criteria, Paragraph 3 as setting forth what happens
next should the jury find the defendant death eligible, and
Paragraph 4 as setting forth what happens next should the jury find
the defendant ineligible for death. Such lawyers might then read
Paragraph 3's "or" as connecting the two "selection phase"
alternatives-the first (death) if there is insufficient mitigation,
and the second (life imprisonment) if there is sufficient
mitigation. These lawyers, however, would be parsing the
instructions in a highly complicated, technical way that they alone
are likely to understand. Theirs is not the meaning that a natural
reading of the language suggests, either to lawyers who are not
well versed in death penalty litigation, or to jurors who are not
lawyers.
A further explanation of the special sense of "not justified"-so
that the jury did not read those words as referring to the absence
of Paragraph 2's "aggravators"-would have cleared matters up. So
would some mention of mitigating evidence anywhere in the
instructions. But there was no clarification of "not justified,"
and the instructions say nothing at all about mitigating evidence.
Why then would a lay jury, trying to follow the instructions, not
have believed that
284
its life or death decision depended simply upon the presence or
absence of Paragraph 2's "aggravators"? So interpreted, this
instruction would clearly violate
Lockett's requirement that
instructions permit the jury to give effect to mitigating
evidence.
The majority cannot find precedent supporting its position.
In
Boyde, the Court found a set of jury instructions
constitutionally sufficient, but those instructions explicitly
referred to mitigation and told the jury about weighing aggravating
against mitigating circumstances.
Boyde, 494 U. S., at
373374, and n. 1. In
Johnson v.
Texas, 509 U. S. 350 (1993), the
Court found a set of jury instructions constitutionally sufficient
which concededly did not expressly mention mitigation. But those
instructions told the jury to take account of factors (the
defendant's future dangerousness) broad enough to cover the
mitigating circumstance (youth) that the defendant there had
raised.
Id., at 354. See also
Franklin v.
Lynaugh, 487
U. S. 164, 183-188 (1988) (O'CONNOR, J., concurring in
judgment) (same). And in
Penry v.
Lynaugh, 492 U. S. 302 (1989), the
Court found constitutionally
inadequate a set of jury
instructions similar to those in
Johnson, but applied in a
case involving mitigating evidence (mental retardation) that was
not encompassed by the factors specifically mentioned in the
instructions (the deliberateness of the defendant's actions; the
defendant's future dangerousness; and provocation by the
deceased).
All the state pattern jury instructions that the parties or
amici have cited explicitly mention the jury's consideration
of mitigating evidence. After this Court decided
Franklin,
Penry, and
Johnson, Texas adopted a pattern instruction
that specifically mentions mitigation. 8 M. McCormick, T.
Blackwell, & B. Blackwell, Texas Practice §§ 98.18-98.19 (10th
ed. 1995); see also Tex. Crim. Proc. Code Ann., Art. 37.071 (Vernon
Supp. 1996-1997). Virginia, too, has recently amended its pattern
instructions so that, unlike the instruction now before us, they
require the jury to consider "any
285
evidence presented of circumstances which do not justify or
excuse the offense but which in fairness or mercy may extenuate or
reduce the degree of moral culpability and punishment." Virginia
Model Jury Instructions, Criminal, Instruction No. 34.127 (1993 and
Supp. 1995).
Finally, unlike the majority, I do not believe that "the entire
context in which the instructions were given,"
ante, at 278,
can make up for their failings. I concede that the defense
presented considerable evidence about the defendant's background.
But the
presentation of evidence does not tell the jury that
the evidence presented is relevant and can be taken into
account-particularly in the context of an instruction that seems to
exclude the evidence from the universe of relevant considerations.
Cf.
Hitchcock v.
Dugger, 481 U. S. 393, 397-398
(1987);
Penry, supra, at 319 ("[I]t is not enough simply to
allow the defendant to present mitigating evidence to the
sentencer"). I also realize that the defense attorney told the jury
the evidence was relevant, and the prosecution conceded the point.
But a jury may well consider such advice from a defense attorney to
be advocacy which it should ignore or discount. And the jury here
might have lost the significance of the prosecution's concession,
for that concession made a brief appearance in lengthy opening and
closing arguments, the basic point of which was that the evidence
did not sufficiently mitigate the crime but warranted death.
Though statements by counsel can help a jury understand a
judge's instructions, they cannot make up for so serious a
misinstruction, with such significant consequences as are present
here. The jury will look to the judge, not to counsel, for
authoritative direction about what it is to do with the evidence
that it hears.
Taylor v.
Kentucky, 436 U. S. 478, 488-489
(1978); see also
Carter v.
Kentucky, 450 U. S. 288, 302, n. 20
(1981). For the reasons I have mentioned, taking the instructions
and the context together, the judge's instructions created a
"reasonable likelihood" that the jury "applied the challenged
instruction in a way that prevents
286
the consideration of constitutionally relevant evidence."
Boyde, supra, at 380. To uphold the instructions given here
is to "risk that the death penalty will be imposed in spite of
factors which may call for a less severe penalty."
Lockett,
438 U. S., at 605. To do so therefore breaks the promise made in
Brown that the imposition of the punishment of death will
"reflect a reasoned moral response to the defendant's background,
character, and crime." 479 U. S., at 545 (emphasis deleted).
For these reasons, I dissent.
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