OCTOBER TERM, 1999
Syllabus
WEEKS
v. ANGELONE, DIRECTOR, VIRGINIA DEPARTMENT OF
CORRECTIONS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 99-5746. Argued December 6, 1999-Decided January 19,2000
After a Virginia jury found petitioner Weeks guilty of capital
murder, the prosecution sought to prove two aggravating
circumstances in the penalty phase, and the defense presented 10
witnesses in mitigation. During deliberations, the jurors sent the
trial judge a note asking whether, if they believed Weeks guilty of
at least one of the aggravating circumstances, it was their duty to
issue the death penalty, or whether they must decide whether to
issue the death penalty or a life sentence. The judge responded by
directing them to a paragraph in their instructions stating: "'If
you find from the evidence that the Commonwealth has proved, beyond
a reasonable doubt, either of the two [aggravating circumstances],
and as to that alternative, you are unanimous, then you may fix the
punishment ... at death, or if you believe from all the evidence
that the death penalty is not justified, then you shall fix the
punishment ... at [life] imprisonment.''' Over two hours later, the
jury returned its verdict, which read: "[H]aving unanimously found
that [Weeks'] conduct in committing the offense [satisfied one of
the aggravating circumstances], and having considered the evidence
in mitigation ... , [we] unanimously fix his punishment at death."
The jurors were polled and all responded affirmatively that the
foregoing was their verdict. In his direct appeal to the Virginia
Supreme Court, Weeks' assignment of error respecting the judge's
answering the jury's question about mitigating circumstances was
number 44. That court affirmed Weeks' conviction and sentence on
direct appeal and later dismissed his state habeas petition. The
Federal District Court denied him federal habeas relief, and the
Fourth Circuit denied a certificate of appealability and dismissed
his petition.
Held:
1. The Constitution is not violated when a trial judge directs a
capital jury's attention to a specific paragraph of a
constitutionally sufficient instruction in response to a question
regarding the proper consideration of mitigating evidence. Weeks
misplaces his reliance on
Bollenbach v.
United
States, 326 U. S.
607, 611, and
Eddings v.
Oklahoma, 455 U. S. 104, 114, both
of which are inapposite in this case. Here, the trial judge gave
precisely the same Virginia capital instruction that was upheld
in
226
Syllabus
Buchanan v.
Angelone, 522 U. S. 269, 277, as
being sufficient to allow the jury to consider mitigating evidence.
The judge also gave a specific instruction on mitigating evidence
that was not given in
Buchanan. The Constitution does not
require anything more, as a jury is presumed both to follow its
instructions,
Richardson v.
Marsh, 481 U. S. 200, 211, and
to understand a judge's answer to its question, see,
e. g.,
Armstrong v.
Toler, 11 Wheat. 258, 279. To presume
otherwise would require reversal every time a jury inquires about a
matter of constitutional significance, regardless of the judge's
answer. Here, the presumption gains additional support from
empirical factors, including that each of the jurors affirmed the
verdict in open court, they deliberated for more than two hours
after receiving the judge's answer to their question, and defense
counsel specifically explained to them during closing argument that
they could find both aggravating factors proven and still not
sentence petitioner to death. At best, Weeks has demonstrated only
that there exists a slight
possibility that the jury
considered itself precluded from considering mitigating evidence.
Such a demonstration is insufficient to prove a constitutional
violation under
Boyde v.
California, 494 U. S. 370,
380, which requires the showing of a reasonable
likelihood
that the jury felt so restrained. It also appears that Weeks'
attorney did not view the judge's answer to the jury's question as
a serious flaw in the trial at that time, since he made an oral
motion to set aside the death sentence and did not even mention
this incident. And the low priority and space which counsel
assigned to the point on direct appeal suggests that the present
emphasis was an afterthought. Pp.231-237.
2. Federal habeas relief is barred by 28 U. S. C. § 2254(d). For
the foregoing reasons, it follows
a fortiori that the
adjudication of the State Supreme Court's affirmance of Weeks'
sentence and conviction was neither "contrary to," nor involved an
"unreasonable application of," any of this Court's decisions as the
statute requires. P. 237.
176 F.3d
249, affirmed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J.,
filed a dissenting opinion, in which GINSBURG and BREYER, JJ.,
joined, and in which SOUTER, J., joined with respect to all but
Part I,
post, p. 237.
Mark Evan Olive argued the cause for petitioner. With him on the
briefs were Glen A. Huff, Timothy M. Richardson, and Sterling H.
Weaver.
227
Robert H. Anderson III, Assistant Attorney General of
Virginia, argued the cause for respondent. With him on the brief
was
Mark L. Earley, Attorney General. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case presents the question whether the Constitution is
violated when a trial judge directs a capital jury's attention to a
specific paragraph of a constitutionally sufficient instruction in
response to a question regarding the proper consideration of
mitigating circumstances. We hold that it is not and that habeas
relief is barred by 28 U. S. C. § 2254(d) (1994 ed., Supp.
III).
Petitioner Lonnie Weeks, Jr., was riding from Washington, D. C.,
to Richmond, Virginia, as a passenger in a car driven by his uncle,
Lewis Dukes. Petitioner had stolen the vehicle in a home burglary
earlier in the month. The two sped past the marked car of Virginia
State Trooper Jose Cavazos, who was monitoring traffic. Trooper
Cavazos activated his emergency lights and took chase. After
passing other vehicles on the highway shoulder, Dukes stopped on an
exit ramp. Trooper Cavazos approached the driver's side of the
stolen vehicle on foot. Upon the trooper's request, Dukes alighted
and stood near the rear of the car. Trooper Cavazos, still standing
near the driver's side, asked petitioner to step out as well. As
Weeks stepped out on the passenger's side, he carried a
9-millimeter semiautomatic pistol loaded with hollow-point bullets.
Petitioner proceeded to fire six bullets at the trooper, two of
which entered his body near the right and left shoulder straps of
his protective vest, and four of which entered his forearms and
left wrist. Trooper Cavazos died within minutes.
Petitioner was arrested the next morning. During routine
questioning about his physical and mental state by clas-
* Kent S.
Scheidegger filed a brief for the
Criminal Justice Legal Foundation as
amicus curiae urging
affirmance.
228
sification officers, petitioner confessed, indicating that he
was considering suicide because he shot the trooper. Petitioner
also voluntarily wrote a letter to a jail officer admitting the
killing and expressing remorse.
Petitioner was tried in the Circuit Court for Prince William
County, Virginia, in October 1993. After the jury had found him
guilty of capital murder, a 2-day penalty phase followed. In this
proceeding the prosecution sought to prove two aggravating
circumstances: that Weeks "would commit criminal acts of violence
that would constitute a continuing serious threat to society" and
that his conduct was "outrageously or wantonly vile, horrible or
inhuman, in that it involved depravity of mind or aggravated
battery." App. 192. During the penalty phase, the defense presented
10 witnesses, including petitioner, in mitigation.
The jury retired at 10:40 a.m. on the second day to begin
deliberations. At around noon, the judge informed counsel that the
jury had asked the following question:
"Does the sentence of life imprisonment in the State of Virginia
have the possibility of parole, and if so, under what conditions
must be met to receive parole?" App. to Pet. for Cert. 90.
The judge responded to the jury's question as follows:
"You should impose such punishment as you feel is just under the
evidence, and within the instructions of the Court. You are not to
concern yourselves with what may happen afterwards."
Ibid.
The prosecution agreed with the judge's response and defense
counsel objected. At 12:40 p.m., court reconvened and the judge
told the jurors that there would be a i-hour luncheon recess and
that they could go to lunch or continue deliberations, as a juror
had apparently informed the bailiff that they might be interested
in working through lunch. At 12:45 p.m., the jury retired from the
courtroom. At 3:15
229
p.m., the judge informed counsel that he had received the
following written question from the jury:
"If we believe that Lonnie Weeks, Jr. is guilty of at least 1 of
the alternatives, then is it our duty as a jury to issue the death
penalty? Or must we decide (even though he is guilty of one of the
alternatives) whether or not to issue the death penalty, or one of
the life sentences? What is the Rule? Please clarify?" Id.,
at 91 (emphasis in original).
The judge wrote the following response: "See second paragraph of
Instruction #2 (Beginning with 'If you find from ... ')."
Ibid. The judge explained to counsel his answer to the
jury's question:
"In instruction number 2 that was given to them, in the second
paragraph, it reads, 'If you find from the evidence that the
Commonwealth has proved, beyond a reasonable doubt, either of the
two alternatives, and as to that alternative, you are unanimous,
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
imprisonment for life, or imprisonment for life with a fine not to
exceed $100,000.'
"I don't believe I can answer the question any clearer than the
instruction, so what I have done is referred them to the second
paragraph of instruction number 2, and I told them beginning with,
'if you find from,' et cetera, et cetera, for them to reread that
paragraph." 1 App. 222-223.
1 Instruction No.2, in its entirety, read:
"You have convicted the defendant of an offense which may be
punished by death. You must decide whether the defendant shall be
sentenced to death or to imprisonment for life or to imprisonment
for life and a fine of a specific amount, but not more than
$100,000.00. Before the penalty can
230
The prosecution stated that the judge's solution was
appropriate. Defense counsel disagreed, and stated:
"Your Honor, we would ask that Your Honor instruct the jury that
even if they find one or both of the mitigating factors-I'm sorry,
the factors that have been proved beyond a reasonable doubt, that
they still may impose a life sentence, or a life sentence plus a
fine." Id., at 223.
Defense counsel asked that his objection be noted.
More than two hours later, the jury returned. The clerk
read its verdict:
"[WJe the jury, on the issue joined, having found the defendant
Lonnie Weeks, Jr., guilty of capital murder, and having unanimously
found that his conduct in committing the offense is outrageously or
wantonly vile, horrible or inhumane, in that it involved depravity
of mind and or aggravated battery, and having considered the
evidence in mitigation of the offense, unanimously fix
be fixed at death, the Commonwealth must prove beyond a
reasonable doubt at least one of the following two
alternatives:
"1. That, after consideration of his history and background,
there is a probability that he would commit criminal acts of
violence that would constitute a continuing serious threat to
society; or
"2. That his conduct in committing the offense was outrageously
or wantonly vile, horrible or inhuman, in that it involved
depravity of mind or aggravated battery to the victim beyond the
minimum necessary to accomplish the act of murder.
"If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt either of the two alternatives, and as to
that alternative you are unanimous, 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 or imprisonment
for live
[sic] and a fine of a specific amount, but not more
than $100,000.00.
"If the Commonwealth has failed to prove beyond a reasonable
doubt at least one of the alternatives, then you shall fix the
punishment of the defendant at life imprisonment or imprisonment
for live
[sic] and a fine of a specific amount, but not more
than $100,000.00." App. 192-193.
231
his punishment at death .... " Id., at 225 (emphasis
added).
The jurors were polled and all responded affirmatively that the
foregoing was their verdict in the case.
Petitioner presented 47 assignments of error in his direct
appeal to the Virginia Supreme Court, and the assignment of error
respecting the judge's answering the jury's question about
mitigating circumstances was number 44. The Virginia Supreme Court
affirmed petitioner's conviction and sentence, holding that the
claims petitioner advances here lack merit.
Weeks v.
Virginia, 248 Va. 460, 465-466, 476477, 450 S. E. 2d 379,
383, 390 (1994), cert. denied, 516 U. S. 829 (1995). The Virginia
Supreme Court dismissed petitioner's state habeas petition as
jurisdictionally barred on timeliness grounds. The District Court
denied petitioner's request for federal habeas relief, and the
Court of Appeals for the Fourth Circuit denied a certificate of
appealability and dismissed his petition.
176
F.3d 249 (1999). We granted certiorari, 527 U. S. 1060 (1999),
and now affirm.
Petitioner relies heavily on our decisions in
Bollenbach
v.
United States, 326 U. S. 607 (1946), and
Eddings v.
Oklahoma, 455 U. S. 104 (1982).
Bollenbach involved a supplemental instruction by the trial
court following an inquiry from the jury-in that respect it is like
the present casebut the instruction given by the trial court in
Bollenbach was palpably erroneous. 326 U. S., at 611. In
this respect it is quite unlike the present case.
Eddings
arose out of a bench trial in a capital case, and this Court
reversed a sentence of death because the trial judge had refused to
consider mitigating evidence: "[I]t was as if the trial judge had
instructed a jury to disregard the mitigating evidence Eddings
proffered on his behalf." 455 U. S., at 114.
Here the trial judge gave no such instruction. On the contrary,
he gave the instruction that we upheld in
Buchanan v.
Angelone, 522
U. S. 269 (1998), as being sufficient to allow the jury to
consider mitigating evidence. And in
232
addition, he gave a specific instruction on mitigating
evidence-an instruction that was not given in
Buchanan-in
which he told the jury that "[y]ou must consider a mitigating
circumstance if you find there is evidence to support it." 2 Even
the dissenters in
Buchanan said that the ambiguity that they
found in the instruction there given would have been cleared up by
"some mention of mitigating evidence anywhere in the instructions."
Id., at 283.
In
Buchanan, we considered whether the Eighth Amendment
required that a capital jury be instructed on particular mitigating
factors. Buchanan's jury was given precisely the same Virginia
pattern capital instruction that was given to Weeks' jury. See
id., at 272, and n. 1. We noted that our cases have
established that the sentencer may not be precluded from
considering, and may not refuse to consider, any constitutionally
relevant mitigating evidence, and that the State may structure the
jury's consideration of mitigation so long as it does not preclude
the jury from giving effect to it.
Id., at 276. We further
noted 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
evi-
2 That instruction was titled "EVIDENCE IN MITIGATION" and
stated in full:
"Mitigation evidence is not evidence offered as an excuse for
the crime of which you have found defendant guilty. Rather, it is
any evidence which in fairness may serve as a basis for a sentence
less than death. The law requires your consideration of more than
the bare facts of the crime.
"Mitigating circumstances may include, but not be limited to,
any facts relating to defendant's age, character, education,
environment, life and background, or any aspect of the crime itself
which might be considered extenuating or tend to reduce his moral
culpability or make him less deserving of the extreme punishment of
death.
"You must consider a mitigating circumstance if you find there
is evidence to support it. The weight which you accord a particular
mitigating circumstance is a matter of your judgment."
Id.,
at 195.
233
dence.'"
Ibid. (quoting
Boyde v.
California, 494 U. S. 370, 380
(1990)). But we stated that we have never held that the State must
structure in a particular way the manner in which juries consider
mitigating evidence. 522 U. S., at 276. We concluded that the
Virginia pattern jury instruction at issue there, and again at
issue here, did not violate those 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." Id., at 277.
But, as noted above, the jury in this case also received an
explicit direction to consider mitigating evidence-an instruction
that was not given to the jury in
Buchanan. Thus, so far as
the adequacy of the jury instructions is concerned, their
sufficiency here follows
a fortiori from
Buchanan.
3
3JUSTICE STEVENS attempts to distinguish the instruction given
here from that given in
Buchanan v.
Angelone, 522 U.
S., at 272, n. 1, on the basis that the first paragraph of the
"Weeks instructions contain[s] a longer description" of the
aggravating circumstances.
Post, at 239 (dissenting
opinion). The first paragraph is longer here because the
prosecution in
Buchanan sought to prove only one aggravating
circumstance. See 522 U. S., at 271. The mere addition of the
description of another aggravating circumstance in the first
paragraph, however, does not at all affect the second clause of the
second paragraph of the instruction-the clause that JUSTICE STEVENS
finds "ambiguous."
Post, at 241.
More importantly, JUSTICE STEVENS, after stating that his "point
is best made by quoting the instruction itself,"
post, at
239, fails to quote
234
Given that petitioner's jury was adequately instructed, and
given that the trial judge responded to the jury's question by
directing its attention to the precise paragraph of the
constitutionally adequate instruction that answers its inquiry, the
question becomes whether the Constitution requires anything more.
We hold that it does not.
A jury is presumed to follow its instructions.
Richardson
v.
Marsh, 481
U. S. 200, 211 (1987). Similarly, a jury is presumed to
understand a judge's answer to its question. See,
e. g.,
Armstrong v.
Toler, 11 Wheat. 258, 279 (1826) (opinion
of Marshall, C. J.). Weeks' jury did not inform the court that
after reading the relevant paragraph of the instruction, it still
did not understand its role. See
ibid. ("Had the jury
desired further information, they might, and probably would, have
signified their desire to the court. The utmost willingness was
manifested to gratify them, and it may fairly be presumed that they
had nothing further to ask"). To presume otherwise would require
reversal every time a jury inquires about a matter of
constitutional significance, regardless of the judge's answer.
Here the presumption gains additional support from several
empirical factors. First and foremost, each of the jurors affirmed
in open court the verdict which included a finding that they had
"considered the evidence in mitiga-
the third paragraph of the instruction,
post, at 239-240.
That paragraph expressly applies when the jury finds that the
prosecution failed to prove either aggravating circumstance.
Specifically, it instructs that if the jury finds no aggravating
circumstances, then it must impose a life sentence. See n. 1,
supra. The third paragraph stands in contrast to the second
paragraph, which expressly applies when the jury finds that the
prosecution proved one or both of the aggravating circumstances.
The second paragraph offers the jury the option of imposing
whichever sentencedeath or life imprisonment-it feels is justified
in that situation. The existence of the third paragraph makes the
function of the second paragraph even clearer.
235
tion of the offense."4 App. 225. It is also significant, we
think, that the jurors deliberated for more than two hours after
receiving the judge's answer to their question. Over 4lh hours
after the jury retired to begin deliberations, the jury asked the
question at issue. Again, the question was:
"If we believe that Lonnie Weeks, Jr. is guilty of at least 1 of
the alternatives, then is it our duty as a jury to issue the death
penalty? Or must we decide (even though he is guilty of one of the
alternatives) whether or not to issue the death penalty, or one of
the life sentences? What is the Rule? Please clarify?" App. to Pet.
for Cert. 91 (emphasis in original).
The question indicates that at the time it was asked, the jury
had determined that the prosecution had proved one of the two
aggravating factors beyond a reasonable doubt. More than two hours
passed between the judge directing the jury's attention to the
appropriate paragraph of the instruction that answered its question
and the jury returning its verdict. We cannot, of course, know for
certain what transpired during those two hours. But the most
likely explanation is that the jury was doing exactly what it was
instructed to do: that is, weighing the mitigating circumstances
against the aggravating circumstance that it found to be proved
beyond a reasonable doubt. If, after the judge's response to its
question, the jury thought that it was required to give the death
penalty upon finding of an aggravating circumstance, it is unlikely
that the jury would have consumed two more hours in deliberation.
This particular jury demonstrated that it was
4JUSTICE STEVENS' arguments concerning the lack of a jury
verdict form stating that the jury finds one or both aggravating
circumstances and sentences the petitioner to life imprisonment
miss the mark. The life sentence verdict forms do not suggest that
a prerequisite for their use is that the jury found no aggravating
circumstances. See
post, at 246, n. 8. In any event, the
claim here is that the trial judge's response to the jury's
question was constitutionally insufficient, not that the jury
verdict forms were unconstitutionally ambiguous.
236
not too shy to ask questions, suggesting that it would have
asked another if it felt the judge's response unsatisfactory.
Finally, defense counsel specifically explained to the jury during
closing argument that it could find both aggravating factors proven
and still not sentence Weeks to death. Thus, once the jury received
the judge's response to its question, it had not only the text of
the instruction we approved in
Buchanan, but also the
additional instruction on mitigation, see n. 2,
supra, and
its own recollection of defense counsel's closing argument for
guidance. At best, petitioner has demonstrated only that there
exists a slight
possibility that the jury considered itself
precluded from considering mitigating evidence. Such a
demonstration is insufficient to prove a constitutional violation
under
Boyde, which requires the showing of a reasonable
likelihood that the jury felt so restrained.5 See 494 U. S.,
at 380.
It also appears that petitioner's attorneys did not view the
judge's answer to the jury's question as a serious flaw in the
trial at that time. Petitioner's attorney made an oral
5 JUSTICE STEVENS states that the record establishes a "virtual
certainty" that the jury did not understand that it could find an
aggravating circumstance and still impose a life sentence.
Post, at 238. In view of the different conclusion reached
not only by this Court, but by the Virginia trial judge, seven
justices of the Supreme Court of Virginia, a federal habeas
District Judge, and three judges of the Court of Appeals for the
Fourth Circuit, this statement can only be described as extravagant
hyperbole.
The dissent also interprets the evidence of the jurors being in
tears at the time of the verdict as resulting from having performed
what they thought to be their "duty under the law" despite their
"strong desire" to impose the life sentence.
Post, at 249.
It is difficult enough to speculate with confidence about the
deliberations of jurors in a case such as this, and still more
difficult to speculate about their emotions at the time they render
a verdict. But if we were to join in this speculation, it is every
bit as plausible-if not more so-to think that the reason that
jurors were in tears was because they had just been through an
exhausting, soulsearching process that led to a conclusion that
petitioner, despite the mitigating evidence he presented, still
deserved the death sentence.
237
motion to set aside the sentence after the verdict of death was
received, and did not even mention this incident in his motion. And
the low priority and space which his counsel assigned to the point
on his appeal to the Supreme Court of Virginia suggests that the
present emphasis has some of the earmarks of an afterthought.
Because petitioner seeks a federal writ of habeas corpus from a
state sentence, we must determine whether 28 U. S. C. § 2254(d)
(1994 ed., Supp. III) precludes such relief. The Court of Appeals
below held that it did. 176 F. 3d, at 261. We agree. Section
2254(d) prohibits federal habeas relief on any claim "adjudicated
on the merits in State court proceedings," unless that adjudication
resulted in a decision that was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U. S. C.
§§ 2254(d) and (1) (1994 ed., Supp. III). For the reasons stated
above, it follows
a fortiori that the adjudication of the
Supreme Court of Virginia affirming petitioner's conviction and
sentence neither was "contrary to," nor involved an "unreasonable
application of," any of our decisions.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, and with whom JUSTICE SOUTER joins with respect to all but
Part I, dissenting.
Congress has directed us to apply "clearly established Federal
law" in the exercise of our habeas corpus jurisdiction.1 The
clearly established rule that should govern the disposition of this
case also emphasizes the importance of
1 The habeas statute, as amended in 1996, authorizes the
issuance of the writ if a state-court decision "was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States." 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III).
238
clarity-clarity in the judge's instructions when there is a
reasonable likelihood that the jury may misunderstand the governing
rule of law. In this case, as in
Boyde v.
California,
494 U. S. 370,
380 (1990), we are confronted with a claim that an instruction,
though not erroneous, is sufficiently ambiguous to be "subject to
an erroneous interpretation." In
Boyde, we held that "the
proper inquiry in such a case 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."
Ibid.
The record in this case establishes, not just a "reasonable
likelihood" of jury confusion, but a virtual certainty that the
jury did not realize that there were two distinct legal bases for
concluding that a death sentence was not "justified." The jurors
understood that such a sentence would not be justified unless they
found at least one of the two alleged aggravating circumstances.
Despite their specific request for enlightenment, however, the
judge refused to tell them that
even if they found one of
those circumstances, they did not have a "duty as a jury to issue
the death penalty." App.217.
Because the Court creatively suggests that petitioner's claim
has "the earmarks of an afterthought,"
ante, at 237, it is
appropriate to note that his trial counsel specifically and
repeatedly argued that both the instructions and the verdict forms
were inadequate because" 'the jury has to be instructed that ...
even if they find the aggravating factors beyond a reasonable
doubt, ... they can still give effect to the evidence in mitigation
by sentencing the defendant to life, as opposed to death.'" App.
178. See also
id., at 179, 180, 185-186,223.
Four different aspects of the record cumulatively provide
compelling support for the conclusion that this jury did not
understand that the law authorized it "not to issue the death
penalty" even though it found petitioner "guilty
239
of at least 1" aggravating circumstance.
Id., at 217.
Each of these points merits separate comment: (1) the text of the
instructions; (2) the judge's responses to the jury's inquiries;
(3) the verdict forms given to the jury; and (4) the court
reporter's transcription of the polling of the jury.
I
Because the prosecutor in this case relied on two separate
aggravating circumstances, the critical instruction given in this
case differed from that given and upheld by this Court in
Buchanan v.
Angelone, 522 U. S. 269 (1998). The
Weeks instructions contain a longer description of the ways in
which the jury would be justified in imposing the death penalty;
this made it especially unlikely that the jury would understand
that it could lawfully impose a life sentence by either (1)
refusing to find an aggravator, or (2) concluding that even if it
found an aggravator, the mitigating evidence warranted a life
sentence. The point is best made by quoting the instruction
itself:
"'Before the penalty can be fixed at death, the Commonwealth
must prove beyond a reasonable doubt, at least one of the following
two alternatives: one, that, after consideration of his history and
background, there is a probability that he would commit criminal
acts of violence that would constitute a continuing serious threat
to society, or two; that his conduct in committing the offense was
outrageously or wantonly vile, horrible, or inhumane, in that it
involved depravity of mind and aggravated battery to the victim,
beyond the minimum necessary to accomplish the act of murder.
"'If you find from the evidence that the Commonwealth has proved
beyond a reasonable doubt, either of the two alternatives, and as
to that alternative you are unanimous, 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
240
the punishment of the defendant at life imprisonment, or
imprisonment for life and a fine of a specific amount, but not more
than $100,000.'" App. 199-200.
The first paragraph and the first half of the second are
perfectly clear. They unambiguously tell the jury: "In order to
justify the death penalty, you must find an aggravating
circumstance." 2 The second clause in the second paragraph is,
however, ambiguous. It could mean either:
(1) "even if you find one of the two aggravating alternatives,
if you believe from all the evidence that the death penalty is not
justified because the mitigating evidence outweighs the aggravating
evidence, then you shall fix the punishment [at life]"; or
(2) "if you believe from all the evidence that the death penalty
is not justified because neither of the aggravating circumstances
has been proven beyond a reasonable doubt, then you shall fix the
punishment [at life]."
It is not necessary to reiterate JUSTICE BREYER'S reasons for
believing that the latter message is the one a nonlawyer would be
most likely to receive. See
Buchanan, 522 U. S., at 281-284
(dissenting opinion). Nor is it necessary to disagree with the
Court's view in
Buchanan that trained lawyers and logicians
could create a "simple decisional tree" that would enable them to
decipher the intended meaning of the instruction, see
id.,
at 277-278, n. 4, to identify a serious risk that this jury failed
to do so.
That risk was magnified by the fact that the instructions did
not explain that there were two reasons why mitigating evidence was
relevant to its penalty determination. The instructions did make it
clear that mitigating evidence concerning the history and
background of the defendant should
2 That message was reiterated later in the instructions, see
ante, at 229230, n. 1;
ante, at 233-234, n. 3.
Reiterating what has already been clearly stated does not serve to
clarify an ambiguous statement.
241
be considered when deciding
whether either aggravating
circumstance had been proved. The instructions did not, however,
explain that mitigating evidence could serve another purpose-to
provide a lawful justification for a life sentence
even if
the jury found at least one aggravating circumstance. Indeed, given
the fact that the first task assigned to the jury was to decide
whether
"after consideration of his history and background,
there is a probability that he would commit criminal acts of
violence that would constitute a continuing serious threat to
society," App. 192-193 (emphasis added), it would have been
reasonable for the jury to infer that his history and background
were only relevant to the threshold question whether an aggravator
had been proved. It is of critical importance in understanding the
jury's confusion that the instructions failed to inform the jury
that mitigating evidence serves this dual purpose.
II
The jurors had a written copy of the judge's instructions with
them in the jury room during their deliberations. The fact that the
jurors submitted the following written inquiry to the trial judge
after they had been deliberating for several hours demonstrates
both that they were uncertain about the meaning of the ambiguous
clause that I have identified, and that their uncertainty had not
been dissipated by their recollection of anything said by
counsel.
"If we believe that Lonnie Weeks, Jr., is guilty of at least 1
of the alternatives, then is it our duty as a jury to issue the
death penalty? Or must we decide (even though he is guilty of one
of the alternatives) whether or not to issue the death penalty, or
one of the life sentences? What is the Rule? Please clarify."
Id., at 217.
The only portion of the written instructions that could possibly
have prompted this inquiry is the second half of the
242
second paragraph of the instruction quoted above. The fact that
the jurors asked this question about that instruction demonstrates
beyond peradventure that the instruction had confused them. There
would have been no reason to ask the question if they had
understood the instruction to authorize a life sentence even though
they found that an aggravator had been proved.
Although it would have been easy to do so, the judge did not
give the jurors a straightforward categorical answer to their
simple question; he merely told them to reexamine the portion of
the instructions that they, in effect, had already said they did
not understand. The text of their question indicates that they
believed that they had a duty "to issue the death penalty" if they
believed that "Weeks ... is guilty of at least 1 of the
alternatives."
Ibid. Without a simple, clear-cut statement
from the judge that that belief was incorrect, there was surely a
reasonable likelihood that they would act on that belief.3
Instead of accepting a commonsense interpretation of the
colloquy between the jury and the judge, the Court first relies on
a presumption that the jury understood the instruction (a
presumption surely rebutted by the question itself),
3 The Court suggests this likelihood is impossible in part
because, even if the jury were confused by the judge's response, it
had not only the text of the instruction but also the benefit of
defense counsel's oral argument, in which counsel averred that the
jury could award a life sentence even if it found an aggravating
factor. See
ante, at 236. But this statement by counsel,
coming as it did, of course, before the jury began deliberations,
apparently did not prevent the jury from asking the question in the
first place. Moreover, as this Court wisely noted in
Boyde
v.
California,
494 U. S. 370, 384
(1990): "[A]rguments of counsel generally carry less weight with a
jury than do instructions from the court. The former are usually
billed in advance to the jury as matters of argument, not evidence,
and are likely viewed as the statements of advocates; the latter,
we have often recognized, are viewed as definitive and binding
statements of the law." (Citing cases; citation omitted.)
243
ante, at 234-236, and then presumes that the jury must
have understood the judge's answer because it did not repeat its
question after re-reading the relevant paragraph, and continued to
deliberate for another two hours. But if the jurors found it
necessary to ask the judge what that paragraph meant in the first
place, why should we presume that they would find it any less
ambiguous just because the judge told them to read it again? It
seems to me far more likely that the reason they did not ask the
same question a second time is that the jury believed that it would
be disrespectful to repeat a simple, unambiguous question that the
judge had already refused to answer directly. The fact that it had
previously asked the judge a different question-also related to the
effect of a sentencing decision, App. 217-that he had also refused
to answer would surely have tended to discourage a repetition of
the question about the meaning of his instructions.4
By the Court's logic, a rather exceptionally assertive jury
would have to question the judge at least twice and maybe more on
precisely the same topic before one could find it no more than
"reasonably likely" that the jury was confused.5
4 The Court relies on Chief Justice Marshall's opinion in
Armstrong v.
Toler, 11 Wheat. 258, 279 (1826), as support for its
presumption that the jury's failure to repeat its question
indicates that it understood the judge's answer. In that case,
however, it was the jury's question that was arguably unclear; the
Court merely assumed that "the jury could not have intended to put
a question which had been already answered." In this case, in
contrast, there is no mystery about what the jury wanted to know;
the mystery is why the trial judge was unable or unwilling to give
it a direct answer.
5 The Court seeks to justify its reliance on the improbable
presumption that the jury correctly deciphered the judge's
ambiguous answer to its straightforward question by pronouncing:
"To presume otherwise would require reversal every time a jury
inquires about a matter of constitutional significance, regardless
of the judge's answer."
Ante, at 234. For two obvious
reasons that is not so. First, a simple, direct answer to the
jury's question would have avoided the error. Second, clearly
established law
244
But given the Court's apt recognition that we cannot, of course,
actually know what occupied the jury during its final
deliberations,
ante, at 235, and in light of the explanation
I have just offered, it is at the very least equally likely that
the two hours of deliberation following the judge's answer were
devoted to continuing debate about the
same instruction, as
they were to weighing aggravating and mitigating evidence (having
been magically satisfied by the repetition of the instruction that
had not theretofore answered its question).
When it comes to the imposition of the death penalty, we have
held repeatedly that justice and" 'the fundamental respect for
humanity underlying the Eighth Amendment'" require jurors to give
full effect to their assessment of the defendant's character,
circumstances, and individual worth.
Eddings v.
Oklahoma, 455
U. S. 104, 112 (1982). In this context, even if one finds the
explanations of the jury's conduct here in equipoise, a 50-50
chance that the jury has not carried out this mandate seems to me
overwhelming grounds for reversal.
Other than the Court's reliance on inapplicable presumptions and
speculation, there is no reason to believe that the jury understood
the judge's answer to its question. As we squarely held in
Boyde, the "defendant need not establish that the jury was
more likely than not to have been impermissibly inhibited by the
instruction" to satisfy the clearly established "reasonable
likelihood" standard. 494 U. S., at 380. The Court's application of
that standard in this case effectively drains it of meaning.
requires that the issue be resolved, not on the basis of a
presumption that flows from the positing of any single question,
but by deciding whether, under all of the circumstances, there was
a "reasonable likelihood" that the jury was confused as to the
relevance of mitigating evidence in its decision. The Court's fear
of constant reversal in this regard is thus vastly overstated.
245
III
The judge provided the jury with five verdict forms, three of
which provided for the death penalty and two for a life sentence.
Three death forms were appropriate because the death penalty might
be justified by a finding that the first, the second, or both
aggravating circumstances had been proved. One would expect the two
life forms to cover the two alternatives, first that no aggravator
had been proved, and second that despite proof of at least one
aggravator, the mitigating circumstances warranted a life sentence.
But that is not why there were two forms; neither referred to the
possibility of a life sentence if an aggravator had been proved.
Rather, the two life alternatives merely presented the jury with a
choice between life plus a fine and a life sentence without a
fine.
The first form read as follows:
"We, the jury, on the issue joined, having found the defendant,
LONNIE WEEKS, JR., GUILTY of CAPITAL MURDER and having unanimously
found after consideration of his history and background that there
is a probability that he would commit criminal acts of violence
that would constitute a continuing serious threat to society, and
having considered the evidence in mitigation of the offense,
unanimously fix his punishment at death." App. 196.
The jury ultimately refused to select this first form, which
would have indicated a finding that there was a probability that
petitioner would commit additional crimes that would constitute a
serious threat to society. In doing so, it unquestionably gave
weight to the unusually persuasive mitigating evidence offered by
the defense-evidence that included not only petitioner's personal
history but his own testimony describing the relevant events and
his extreme remorse. As I explained above, the fact that the jury
recognized the relevance of the mitigating "history and back-
246
ground" evidence to the question whether the aggravator had been
proved sheds no light on the question whether it understood that
such evidence would also be relevant on the separate question
whether a life sentence would be appropriate even if Weeks was
"guilty of at least 1 of the alternatives."
Id., at 217.
The jury's refusal to find that petitioner would constitute a
continuing threat to society also explains why it did not use the
second form, which covered the option of a death penalty supported
by both aggravators.6 The choice then, was between the third
alternative, which included a finding that the second aggravator
had been proved,7 and the fourth or fifth alternatives, neither of
which included any such finding.8 Despite the fact that trial
counsel had expressly
6 That form read as follows: "We, the jury, on the issue joined,
having found the defendant, LONNIE WEEKS, JR., GUILTY of CAPITAL
MURDER and having unanimously found after consideration of his
history and background that there is a probability that he would
commit criminal acts of violence that would constitute a continuing
serious treat
[sic] to society, and having unanimously found
that his conduct in committing the offense is outrageously or
wantonly vile, horrible or inhuman in that it involved depravity of
mind and/or aggravated battery and having considered the evidence
in mitigation of the offense, unanimously fix his punishment at
death." App. 196-197.
7This form, the one ultimately filed by the jury, read: "We, the
jury, on the issue joined, having found the defendant, LONNIE
WEEKS, JR., GUILTY of CAPITAL MURDER and having unanimously found
that his conduct in committing the offense is outrageously or
wantonly vile, horrible or inhuman in that it involved depravity of
mind and/or aggravated battery and having considered the evidence
in mitigation of the offense, unanimously fix his punishment at
death."
Id., at 228.
8 The fourth form read: "We, the jury, on the issue joined,
having found the defendant, LONNIE WEEKS, JR., GUILTY of CAPITAL
MURDER and having considered all of the evidence in aggravation and
mitigation of such offense, fix his punishment at imprisonment for
life."
Id., at 197-198. The fifth form was identical except
for providing that Weeks' punishment was to be fixed "at
imprisonment for life and a fine" for an amount to be filled in by
the jury.
Id., at 198.
247
objected to the verdict forms because they "do not expressly
provide for a sentence of life imprisonment, upon finding beyond a
reasonable doubt, on one or both of the aggravating factors,"
id., at 185-186, the judge failed to use forms that would
have answered the question that the jury asked during its
deliberations.
The ambiguity of the forms also helps further explain why the
Court is wrong in its speculation as to the jury's final hours of
deliberation following the judge's response to its question. The
Court postulates that before the jury asked whether it had a duty
to issue the death penalty "[i]f we believe that Lonnie Weeks, Jr.
is guilty of at least 1 of the alternatives," the jury had already
so decided. Thus, the remaining hours of deliberation must have
been spent weighing the mitigating circumstances against the
aggravating circumstance.
Ante, at 235. Of course, the text
of the question, which used the word "if" rather than the word
"since," does not itself support that speculation. More important,
however-inasmuch as we cannot know for certain what transpired
during those deliberations-is the fact that after it eliminated the
first two verdict options, the remaining forms identified a choice
between a death sentence based on a guilty finding on "1 of the
alternatives" and a life sentence without any such finding. In my
judgment, it is thus far more likely that the conscientious jurors
were struggling with the question whether the mitigating evidence
not only precluded a finding that petitioner was a continuing
threat to society, but also precluded a finding "that his conduct
in committing the offense is outrageously or wantonly vile,
horrible or inhuman in that it involved depravity of mind and/or
aggravated battery." App. 228. And that question was answered
neither by the instruction itself, nor by the judge's reference to
the instruction again, nor, we now see, by the text of the jury
forms with which the jury was finally faced.
248
IV
The Court repeatedly emphasizes the facts that the jury was told
to consider the mitigating evidence and that the verdict forms
expressly recite that the jury had given consideration to such
evidence. As its refusal to find the first aggravator indicates,
the jury surely did consider that evidence and presumably credited
the testimony of petitioner and the other defense witnesses. But,
as I have explained, see
supra, at 240-241, there is a vast
difference between considering that evidence as relevant to the
question whether either aggravator had been established, and
assuming that the jurors were sufficiently sophisticated to
understand that it would be lawful for them to rely on that
evidence as a basis for a life sentence even if they found the
defendant "guilty of at least 1 of the alternatives." For that
reason, the Court's reliance,
ante, at 234-235, on the fact
that the jurors affirmed their verdict when polled in open court is
misplaced.
The most significant aspect of the polling of the jury is a
notation by the court reporter that is unique. (At least I do not
recall seeing a comparable notation in any of the transcripts of
capital sentencing proceedings that I have reviewed during the past
24-plus years.) The transcript states that, as they were polled, "a
majority of the jury members [were] in tears." App. 225. Given the
unusually persuasive character of the mitigating evidence including
petitioner's own testimony,9 it is at least "reasonable" to
infer
9 The evidence showed, among other things, that before this
incident Weeks had been a well-behaved student and a star high
school athlete,
id., at 130-133, who lived in a poor
community,
id., at 131-132, and who was raised by a
well-meaning grandmother because of his mother's drug addiction,
id., at 143, 167; that Weeks fell in with a bad crowd,
id., at 150, 153, missing his chance for college when his
girlfriend became pregnant and when he decided to stay and help her
raise the child,
id., at 109; and, as the jury learned in
Weeks' own words, that he was extremely remorseful,
id., at
127-128.
249
that the conscientious jury members performed what they regarded
as their duty under the law, notwithstanding a strong desire to
spare the life of Lonnie Weeks. Tragically, there is a "reasonable
likelihood" that they acted on the basis of a misunderstanding of
that duty.
I respectfully dissent.
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