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SUPREME COURT OF THE UNITED STATES
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No. 85-1563
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1987.SCT.40550 <http://www.versuslaw.com>; 479 U.S. 538, 107
S. Ct. 837, 93 L. Ed. 2d 934, 55 U.S.L.W. 4155
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decided: January 27, 1987.
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CALIFORNIA
v.
BROWN
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CERTIORARI TO THE SUPREME COURT OF CALIFORNIA.
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Jay M. Bloom, Supervising Deputy Attorney General of California,
argued the cause for petitioner. With him on the briefs were John K. Van
de Kamp, Attorney General, Steve White, Chief Assistant Attorney General,
and Harley D. Mayfield, Assistant Attorney General.
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Monica Knox argued the cause and filed a brief for respondent.*fn*
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Rehnquist, C. J., delivered the opinion of the Court, in which White,
Powell, O'connor, and Scalia, JJ., joined. O'connor, J., filed a
concurring opinion, post, p. 544. Brennan, J., filed a dissenting opinion,
in which Marshall, J., joined, and in Parts II, III, IV, and V of which
Stevens, J., joined, post, p. 547. Blackmun, J., filed a dissenting
opinion, in which Marshall, J., joined, post, p. 561.
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Author: Rehnquist
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CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
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The question presented for review in this case is whether an
instruction informing jurors that they "must not be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion or
public feeling" during the penalty phase of a capital murder trial
violates the Eighth and Fourteenth Amendments to the United States
Constitution. We hold that it does not.
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Respondent Albert Brown was found guilty by a jury
of forcible rape and first-degree murder in the death of 15-year-old Susan
J. At the penalty phase, the State presented evidence that respondent had
raped another young girl some years prior to his attack on Susan J.
Respondent presented the testimony of several family members, who
recounted respondent's peaceful nature and expressed disbelief that
respondent was capable of such a brutal crime. Respondent also presented
the testimony of a psychiatrist, who stated that Brown killed his victim because
of his shame and fear over sexual dysfunction. Brown himself testified, stating
that he was ashamed of his prior criminal conduct and asking for mercy
from the jury. California
Penal Code Ann. § 190.3 (West Supp. 1987) provides that capital defendants
may introduce at the penalty phase any evidence "as to any matter relevant
to . . . mitigation . . . including, but not limited to, the nature and
circumstances of the present offense, . . . and the defendant's character,
background, history, mental condition and physical condition."*fn* The trial court instructed the jury to
consider the aggravating and mitigating circumstances and to weigh them in
determining the appropriate penalty. App. 23-24. But the court cautioned
the jury that it "must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling." Id., at
20. Respondent was sentenced to death.
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On automatic appeal, the Supreme Court of California reversed the
sentence of death. 40 Cal. 3d 512, 709 P. 2d 440 (1985). Over two dissents
on this point, the majority opinion found that the instruction at issue
here violates the Federal Constitution: "'federal constitutional law
forbids an instruction which denies a capital defendant the right to have
the jury consider any "sympathy factor" raised by the evidence when
determining the appropriate penalty . . . .'" Id., at 537, 709 P. 2d, at
453, quoting People v. Lanphear, 36 Cal. 3d 163, 165, 680 P. 2d 1081, 1082
(1984). Relying on Eddings v. Oklahoma, 455 U.S. 104
(1982), Lockett v. Ohio, 438 U.S. 586 (1978), and
Woodson v. North Carolina, 428 U.S. 280 (1976), the
court ruled that the instruction "is calculated to divert the jury from
its constitutional duty to consider 'any [sympathetic] aspect of the
defendant's character or record,' whether or not related to the offense
for which he is on trial, in deciding the appropriate penalty." 40 Cal.
3d, at 537, 709 P. 2d, at 453. We granted certiorari to resolve whether
such an instruction violates the United States Constitution. 476
U.S. 1157 (1986). The
Eighth Amendment jurisprudence of this Court establishes two separate
prerequisites to a valid death sentence. First, sentencers may not be
given unbridled discretion in determining the fates of those charged with
capital offenses. The Constitution instead requires that death penalty
statutes be structured so as to prevent the penalty from being
administered in an arbitrary and unpredictable fashion. Gregg v. Georgia, 428 U.S. 153 (1976); Furman v. Georgia, 408
U.S. 238 (1972). Second, even though the sentencer's discretion
must be restricted, the capital defendant generally must be allowed to
introduce any relevant mitigating evidence regarding his "'character or
record and any of the circumstances of the offense.'" Eddings, supra, at
110, quoting Lockett, supra, at 604. Consideration of such evidence is a
"constitutionally indispensable part of the process of inflicting the
penalty of death." Woodson v. North Carolina, supra, at 304 (opinion of
Stewart, POWELL, and STEVENS, JJ.). The instruction given by the trial
court in this case violates neither of these constitutional
principles.
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We think that the California Supreme Court improperly focused solely
on the word "sympathy" to determine that the instruction interferes with
the jury's consideration of mitigating evidence. "The question, however,
is not what the State Supreme Court declares the meaning of the charge to
be, but rather what a reasonable juror could have understood the charge as
meaning." Francis v. Franklin, 471 U.S. 307, 315-316
(1985); see Sandstrom v. Montana, 442 U.S. 510,
516-517 (1979). To determine how a reasonable juror could interpret an
instruction, we "must focus initially on the specific language
challenged." Francis v. Franklin, 471 U.S., at 315.
If the specific instruction fails constitutional muster, we then review
the instructions as a whole to see if the entire charge delivered a
correct interpretation of the law. Ibid. In this case, we need not reach
the second step of analysis because we hold that a reasonable juror would
not interpret the
challenged instruction in a manner that would render it
unconstitutional.
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The jury was told not to be swayed by "mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling."
Respondent does not contend, and the Supreme Court of California did not
hold, that conjecture, passion, prejudice, public opinion, or public
feeling should properly play any role in the jury's sentencing
determination, even if such factors might weigh in the defendant's favor.
Rather, respondent reads the instruction as if it solely cautioned the
jury not to be swayed by "sympathy." Even if we were to agree that a
rational juror could parse the instruction in such a hypertechnical
manner, we would disagree with both respondent's interpretation of the
instruction and his conclusion that the instruction is
unconstitutional.
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By concentrating on the noun "sympathy," respondent ignores the
crucial fact that the jury was instructed to avoid basing its decision on
mere sympathy. Even a juror who insisted on focusing on this one phrase in
the instruction would likely interpret the phrase as an admonition to
ignore emotional responses that are not rooted in the aggravating and
mitigating evidence introduced during the penalty phase. While strained in
the abstract, respondent's interpretation is simply untenable when viewed
in light of the surrounding circumstances. This instruction was given at
the end of the penalty phase, only after respondent had produced 13
witnesses in his favor. Yet respondent's interpretation would have these
two words transform three days of favorable testimony into a virtual
charade. We think a reasonable juror would reject that interpretation, and
instead understand the instruction not to rely on "mere sympathy" as a
directive to ignore only the sort of sympathy that would be totally
divorced from the evidence adduced during the penalty phase.
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We also think it highly unlikely that any reasonable juror would
almost perversely single out the word "sympathy" from the other nouns
which accompany it in the instruction: conjecture,
passion, prejudice, public opinion, and public feeling. Reading the
instruction as a whole, as we must, it is no more than a catalog of the
kind of factors that could improperly influence a juror's decision to vote
for or against the death penalty. The doctrine of noscitur a sociis is
based on common sense, and a rational juror could hardly hear this
instruction without concluding that it was meant to confine the jury's
deliberations to considerations arising from the evidence presented, both
aggravating and mitigating.
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An instruction prohibiting juries from basing their sentencing
decisions on factors not presented at the trial, and irrelevant to the
issues at the trial, does not violate the United States Constitution. It
serves the useful purpose of confining the jury's imposition of the death
sentence by cautioning it against reliance on extraneous emotional
factors, which, we think, would be far more likely to turn the jury
against a capital defendant than for him. And to the extent that the
instruction helps to limit the jury's consideration to matters introduced
in evidence before it, it fosters the Eighth Amendment's "need for
reliability in the determination that death is the appropriate punishment
in a specific case." Woodson, 428 U.S., at 305.
Indeed, by limiting the jury's sentencing considerations to record
evidence, the State also ensures the availability of meaningful judicial
review, another safeguard that improves the reliability of the sentencing
process. See Roberts v. Louisiana, 428 U.S. 325, 335,
and n. 11 (1976) (opinion of Stewart, POWELL and STEVENS,
JJ.).
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We hold that the instruction challenged in this case does not violate
the provisions of the Eighth and Fourteenth Amendments to the United
States Constitution. The judgment of the Supreme Court of California is
therefore reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion.
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It is so ordered.
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Disposition
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40 Cal. 3d 512, 709 P. 2d 440, reversed and remanded. JUSTICE
O'CONNOR, concurring.
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This case squarely presents the tension that has long existed between
the two central principles of our Eighth Amendment jurisprudence. In Gregg
v. Georgia, 428 U.S. 153, 189 (1976), JUSTICES
Stewart, POWELL, and STEVENS concluded that "where discretion is afforded
a sentencing body on a matter so grave as the determination of whether a
human life should be taken or spared, that discretion must be suitably
directed and limited so as to minimize the risk of wholly arbitrary and
capricious action." In capital sentencing, therefore, discretion must be
"'controlled by clear and objective standards so as to produce
non-discriminatory application.'" Id., at 198 (quoting Coley v. State, 231
Ga. 829, 834, 204 S. E. 2d 612, 615 (1974)). See also Proffitt v. Florida,
428 U.S. 242, 253 (1976) (joint opinion of Stewart,
POWELL, and STEVENS, JJ.) (State must provide "specific and detailed
guidance" to the sentencing body). On the other hand, this Court has also
held that a sentencing body must be able to consider any relevant
mitigating evidence regarding the defendant's character or background, and
the circumstances of the particular offense. Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438
U.S. 586 (1978) (plurality opinion).
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The issue in this case is whether an instruction designed to satisfy
the principle that capital sentencing decisions must not be made on mere
whim, but instead on clear and objective standards, violates the principle
that the sentencing body is to consider any relevant mitigating evidence.
JUSTICE BRENNAN in his dissenting opinion contends that the instruction at
issue "precludes precisely the response that a defendant's evidence of
character and background is designed to elicit." Post, at 548. The Court,
on the other hand, holds that the instruction merely admonishes the jury
"to ignore emotional responses that are not rooted in the aggravating and
mitigating evidence introduced during the penalty phase." Ante, at
542.
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In my view, evidence about the defendant's background and character is
relevant because of the belief, long held by this society, that defendants
who commit criminal acts that are attributable to a disadvantaged
background, or to emotional and mental problems, may be less culpable than
defendants who have no such excuse. This emphasis on culpability in
sentencing decisions has long been reflected in Anglo-American
jurisprudence. As this Court observed in Eddings, the common law has
struggled with the problem of developing a capital punishment system that
is "sensible to the uniqueness of the individual." 455 U.S., at
110. Lockett and Eddings reflect the belief that punishment
should be directly related to the personal culpability of the criminal
defendant. Thus, the sentence imposed at the penalty stage should reflect
a reasoned moral response to the defendant's background, character, and
crime rather than mere sympathy or emotion.
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Because the individualized assessment of the appropriateness of the
death penalty is a moral inquiry into the culpability of the defendant,
and not an emotional response to the mitigating evidence, I agree with the
Court that an instruction informing the jury that they "must not be swayed
by mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling" does not by itself violate the Eighth and
Fourteenth Amendments to the United States Constitution. At the same time,
the jury instructions -- taken as a whole -- must clearly inform the jury
that they are to consider any relevant mitigating evidence about a
defendant's background and character, or about the circumstances of the
crime. As JUSTICE BRENNAN's dissent illustrates, however, one difficulty
with attempts to remove emotion from capital sentencing through
instructions such as those at issue in this case is that juries may be
misled into believing that
mitigating evidence about a defendant's background or character also must
be ignored. See post, at 555.
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On remand, the California Supreme Court should determine whether the
jury instructions, taken as a whole, and considered in combination with
the prosecutor's closing argument, adequately informed the jury of its
responsibility to consider all of the mitigating evidence introduced by
the respondent. The jury was given instruction 8.84.1, 1 California Jury
Instructions, Criminal (4th ed. 1979) (CALJIC), which lists the specific
aggravating and mitigating factors the sentencer is to consider in
determining punishment. Only one subsection of that instruction even
arguably applies to the non-statutory mitigating factors:
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"Any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime." CALJIC
8.84.1(k).
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The respondent contends that the jury might have understood this
instruction as mandating consideration only of mitigating evidence about
the circumstances of the crime, and not evidence about the defendant's
background and character. Moreover, in his closing remarks, the prosecutor
in this case may have suggested to the jury that it must ignore the
mitigating evidence about the respondent's background and character. In
combination with the instructions, the comments of the prosecutor may
create a "legitimate basis for finding ambiguity concerning the factors
actually considered by the" jury. Eddings v. Oklahoma, supra, at 119
(O'CONNOR, J., concurring).
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Because it is open to the California Supreme Court to determine on
remand whether the jury was adequately informed of its obligation to
consider all of the mitigating evidence introduced by the respondent, I
concur in the judgment and opinion of the Court. JUSTICE
BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE STEVENS
joins as to Parts II-V, dissenting.
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I
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Adhering to my view that the death penalty is in all circumstances
cruel and unusual punishment forbidden by the Eighth and Fourteenth
Amendments, I dissent from the Court's opinion to the extent that it would
result in the imposition of the death penalty upon respondent. Gregg v.
Georgia, 428 U.S. 153, 227 (1976). However, even if I
believed that the death penalty could be imposed constitutionally under
certain circumstances, I would affirm the California Supreme Court, for
that court has reasonably interpreted the jury instruction at issue to
divert the jury from its constitutional duty to consider all mitigating
evidence introduced by a defendant at the sentencing phase of
trial.
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II
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A sentencing instruction is invalid if it precludes the sentencer from
"considering, as a mitigating factor, any aspect of a defendant's
character or record . . . that the defendant proffers as a basis for a
sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (emphasis omitted).
Furthermore, an instruction cannot stand if it leaves the jury unclear as
to whether it may consider such evidence. "[We] may not speculate as to
whether the [sentencer] actually considered all of the mitigating factors
and found them insufficient to offset the aggravating circumstances,"
since our case law "[requires] us to remove any legitimate basis for
finding ambiguity concerning the factors actually considered . . . ."
Eddings v. Oklahoma, 455 U.S. 104, 119 (1982)
(O'CONNOR, J., concurring).
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The issue in this case is whether a jury might reasonably interpret
the California jury instruction in either of these two ways. The facial
language of the instruction, the manner in which it has been construed in
trials in California, and experience with
other provisions of the state sentencing scheme all buttress California's
interpretation of its own jury instruction. In light of this evidence,
there is simply no warrant for this Court to override the state court's
assessment of how a jury in California might reasonably interpret the
instruction before us.
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III
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A
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The instruction at issue informed the jury: "You must not be swayed by
mere sentiment, conjecture, sympathy, passion, prejudice, public opinion
or public feeling." App. 20.*fn1 In forbidding the sentencer to take
sympathy into account, this language on its face precludes precisely the
response that a defendant's evidence of character and background is
designed to elicit, thus effectively negating the intended effect of the
Court's requirement that all mitigating evidence be considered. As the
plurality said in Woodson v. North Carolina, 428 U.S. 280, 304 (1976), such evidence is intended to induce
consideration of "compassionate or mitigating factors stemming from the
diverse frailties of humankind." In Eddings, supra, for example, we struck
down petitioner's death sentence because of the failure of the trial judge
to consider Eddings' troubled childhood as a mitigating factor. The fact
that his parents divorced when he was five, that his mother was an
alcoholic and possibly a prostitute, and that his father used excessive
physical punishment were all deemed relevant to the sentencing decision, 455 U.S., at 107, because of their potential for
evoking sympathy for petitioner.
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The State acknowledges that sympathy for the defendant is appropriate,
but contends that the antisympathy instruction simply prevents the jury
from relying on "untethered sympathy" unrelated to the circumstances of
the offense or the defendant. Brief for Petitioner 49, 58. Yet, as the
California court
has noted on other occasions, see People v. Easley, 34 Cal. 3d. 858,
875-876, 671 P. 2d 813, 824 (1983), the instruction gives no indication
whatsoever that the jury is to distinguish between "tethered" and
"untethered" sympathy. The Court nonetheless accepts the notion that a
jury would interpret the instruction to require such a distinction. None
of the reasons it offers for accepting this implausible construction are
persuasive.
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First, the Court finds it significant that the jury was instructed not
simply to avoid sympathy, but to avoid "mere" sympathy. This word,
contends the Court, would likely lead a juror to interpret the instruction
"as an admonition to ignore emotional responses that are not rooted in the
aggravating and mitigating evidence introduced during the penalty phase."
Ante, at 542. The instruction, however, counsels the jury not to be swayed
by "mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling." A juror could logically conclude that "mere"
modified only "sentiment," so it is by no means clear that the instruction
would likely be construed to preclude reliance on "mere sympathy." In
order for "mere" to be regarded as modifying "sympathy," as the Court
contends, "mere" must be read to modify all the other terms in the
instruction as well: conjecture, passion, prejudice, public opinion, or
public feeling. By the Court's own logic, since "mere" serves to
distinguish "tethered" from "untethered" sympathy, it also serves to
distinguish "tethered" from "untethered" versions of all the other
emotions listed. Yet surely no one could maintain, for instance, that some
"tethered" form of prejudice relating to the case at hand could ever be
appropriate in capital sentencing deliberations. Indeed, the Court
describes the nouns accompanying "sympathy" in the instructions as "no
more than a catalog of the kind of factors that could improperly influence
a juror's decision to vote for or against the death penalty." Ante, at
543. The single word "mere"
therefore cannot shoulder the burden of validating this antisympathy
instruction.
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Second, the Court argues that jurors must assume that the defendant
would not introduce evidence of character and background if the jury could
not consider such information. Ante, at 542. It is equally likely,
however, that jurors instructed not to rely on sympathy would conclude
that the defendant had simply gone too far in his presentation, and that,
as in other trial contexts, the jury must look to the judge for guidance
as to that portion of the evidence that appropriately could be considered.
Instructions are commonly given at the end of trial which clarify the
significance of evidence and of events at trial, since the jury is not at
liberty to assume that everything that occurs at trial is automatically or
equally relevant to its deliberations.
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Finally, the Court says that, since "sympathy" is accompanied in the
instruction by a list of obviously impermissible factors, a juror would
naturally assume that the instruction "was meant to confine the jury's
deliberations to considerations arising from the evidence presented, both
aggravating and mitigating." Ante, at 543. How a juror would be expected
to make this leap is unclear. The inclusion of "sympathy" in an expansive
list of impermissible emotions would logically lead a juror to conclude
that any response rooted in emotion was inappropriate. An average juror is
likely to possess the common understanding that law and emotion are
antithetical, and an instruction that a wide range of emotional factors
are irrelevant to his or her deliberation reinforces that notion. It is
simply unrealistic to assume that an instruction ruling out several
emotions in unqualified language would be construed as a directive that
certain forms of emotion are permissible while others are not. While we
generally assume that jurors are rational, they are not
telepathic.
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The vast majority of jurors thus can be expected to interpret
"sympathy" to mean "sympathy," not to engage in the tortuous reasoning
process necessary to construe it as "untethered
sympathy." We would be far more likely in fact to call into question the
fidelity to duty of a juror who did the latter. The assertion that the
instruction in question serves the purpose of channeling the jury's
sympathy in a legitimate direction is therefore completely unfounded.*fn2
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Even if the majority's interpretation of the instruction were
considered as plausible as that of the state court, this would be
insufficient to save the instruction. The very plausibility of the lower
court's construction means that there is a significant prospect that a
juror would interpret the instruction so as to restrict or obfuscate the
duty to consider mitigating evidence. As we held in Sandstrom v. Montana, 442 U.S. 510 (1979), the fact that a reasonable juror
could have construed an instruction to make it unconstitutional is
adequate to invalidate that instruction. Id., at 526. The fact that jurors
could have interpreted the instruction so as to make it lawful is
irrelevant, for "we cannot be certain that this is what they did do."
Ibid. (emphasis in original). Even if the state court's interpretation is
not ineluctable, it is undeniably reasonable -- and that is enough to
invalidate the instruction.
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B
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Our assessment of the state court's interpretation of the instruction
need not rest simply on what seems in the abstract the most plausible
response to the instruction's plain language. That court's construction is
bolstered by experience with
how the instruction actually has been interpreted in the state trial
system. This experience dates back at least to 1970, when the State
Supreme Court invalidated an instruction virtually identical to the one at
issue in this case. People v. Bandhauer, 1 Cal. 3d 609, 618, 463 P. 2d
408, 416 (1970). That instruction informed the jury: "The law forbids you
to be governed by mere sentiment, conjecture, sympathy, passion,
prejudice, public opinion or public feeling." Ibid. The court ruled that
such guidance was inconsistent with state case law holding that the jury
at a penalty trial could not be instructed not to consider sympathy for
the defendant, see, e. g., People v. Polk, 63 Cal. 2d 443, 406 P. 2d 641
(1965).*fn3 In Bandhauer, the court further found that
the antisympathy directive was not saved by a companion instruction that
told the jury: "[You] are entirely free to act according to your own
judgment, conscience and absolute discretion," for that instruction merely
created an inconsistency that the jury might well resolve "by concluding
that the restriction on sympathy served as an exception to [its] otherwise
unlimited discretion." 1 Cal. 3d, at 618-619, 463 P. 2d, at
416.
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It was against this backdrop that the state court reviewed the
virtually identical instruction in this case. The court had the benefit of
experience not only with the earlier instruction invalidated in Bandhauer,
but with the more recent instruction as well. In its 1983 decision in
Easley, reviewing the later instruction, the court had noted that the
drafters of the antisympathy instruction had cautioned that "'[this]
instruction 1.00 should not be used in the penalty phase of a capital
case,'" and that instructions pertaining to the consideration of
aggravating and mitigating factors were more appropriate at that stage of
trial. 34 Cal. 3d, at 876, and n. 5, 671 P. 2d, at 824, and n. 5 (emphasis
omitted) (quoting use note to CALJIC 1.00).
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Furthermore, state trial records indicate the frequency with which the
antisympathy instruction has been interpreted to preclude consideration of
a defendant's background and character. In this case, for instance, the
prosecutor in his closing argument noted that numerous relatives had
testified at the penalty phase on behalf of Brown, and that they "told us
what a good boy he was at the time in his youth when they knew him. And he
brought them gifts and that he cared after his siblings." App. 90.
Nonetheless, said the prosecutor:
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"They did not testify, ladies and gentlemen, regarding any of the
factors which relate to your decision in this case. Their testimony here,
ladies and gentlemen, I would suggest, was a blatant attempt by the
defense to inject personal feelings in the case, to make the defendant
appear human, to make you feel for the defendant, and although that is
admirable in the context of an advocate trying to do his job, you ladies
and gentlemen must steel yourselves against those kinds of feelings in
reaching a decision in this case.
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"As the Judge will instruct you, you must not be swayed by sympathy."
Id., at 90-91 (emphasis added).
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The prosecutor in this case thus interpreted the antisympathy
instruction to require that the jury ignore the defendant's evidence on
the mitigating factors of his character and upbringing. A similar
construction has been placed on the instruction in several other cases. In
People v. Robertson, 33 Cal. 3d 21, 655 P. 2d 279 (1982), for instance,
the prosecutor informed the jury that the fact that the defendant "didn't
get the breaks in life" was irrelevant, because "[that's]
a sympathy factor, a sympathy factor that does not focus on the real
issue, the crime and person Andrew Robertson was at the time [the crime]
was committed." Id., at 56 and 57, n. 22, 655 P. 2d, at 300, and n. 22. He
then noted that at the penalty phase defendant had put on evidence that
"went to the person of Andrew Robertson, giving Andrew Robertson's
history, where he was born, how old he was, what he did as a young man,
the fact that he went into the service. That is not a factor. That is
irrelevant to your decision in this case." Id., at 57, n. 22, 655 P. 2d,
at 300, n. 22. The prosecutor also dismissed the defendant's evidence of
his service in Vietnam, declaring: "This is simply a sympathy ploy. It is
going outside the evidence and asking you to have sympathy, compassion."
Ibid.
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Still other cases, pending before the State Supreme Court at the time
of argument in this Court, illustrate the gloss that consistently has been
placed on the antisympathy instruction. In People v. Gates, Cr. 22263, the
prosecutor informed the jury: "'It's not a time to talk for mercy or
forgiveness for Oscar Gates. It's too late for that. . . . The evidence
that you received in the case, that what you promised the judge you'd base
your decision on, because the time now is not for philosophy or religion,
mercy, forgiveness, sorry for the family, feelings of guilt on your own
part.'" App. to Brief for Respondent 2a (quoting Tr. 1286-1287). In People
v. Walker, Cr. 21707, the prosecutor stated: "'I also mentioned, and I
guess I should mention it now -- I wasn't going to -- the fact that there
had been things here which could elicit sympathy. Things which had nothing
to do with the case. Mr. Walker belongs to a large family, and those
members have been present here for the jury's observations during the
case. But again, obviously that has nothing to do with this case.'" App.
to Brief for Respondent (quoting Tr. 3298). In People v. Boyde, Cr. 22584,
the jury was informed that its assessment of the aggravating and
mitigating factors "'is not a question,
I believe, that should be guided by emotion, sympathy, pity, anger, hate,
or anything like that because it is not rational if you make a decision on
that kind of basis.'" App. to Brief for Respondent 3a (quoting Tr. 4767).
Furthermore, said the prosecutor: "'[Sympathy] is an interesting thing,
because even though you try not to consider it, this decision you are
going to make has emotional overtones to it. It would be very hard to
completely filter out all our emotions, make the decision on a rational
basis. Although the instruction says you are to try to do that.'" App. to
Brief for Respondent 3a (quoting Tr. 4817).
|
| [54] |
Experience with the antisympathy instruction therefore reveals that it
is often construed as precluding consideration of precisely those factors
of character and background this Court has decreed must be considered by
the sentencer. See Eddings, 455 U.S., at 113-114
("Just as the State may not by statute preclude the sentencer from
considering any mitigating factor, neither may the sentencer refuse to
consider . . . any relevant mitigating evidence"). Even if the
interpretation placed upon the instruction by prosecutors is regarded as
the product of excessive zeal, rather than dispassionate construction, the
state court had ample reason to conclude that an instruction that
consistently lends itself to such plausible construction is likely to
leave the jury with the impression that they may not consider certain
mitigating evidence, or at least with a sense of confusion on this point.
Experience with such instructions over the past 17 years thus provides
persuasive support for the state court's construction and invalidation of
its own jury instruction.
|
| [55] |
IV
|
| [56] |
The State argues that whatever defect the antisympathy instruction
might possess is cured by CALJIC instruction 8.84.1. That instruction
lists the specific aggravating and mitigating factors the sentencer is to
consider in determining punishment.*fn4 The State urges that subsection (k) of this
instruction directs the sentencer to consider all of the defendant's
mitigating evidence. That subsection provides that the jury may take into
account "[any] other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime." After
defendant's trial in this case, however, the state court in Easley,
rejected the assertion that the instruction adequately informed the jury
as to the scope of mitigating evidence, and directed that, in order to
"avoid potential misunderstanding in the future," trial courts should add
to the language of subsection (k) the instruction that the jury may
consider "any other aspect of [the] defendant's character or record . . .
that the defendant proffers
as a basis for a sentence less than death." 34 Cal. 3d, at 878, n. 10, 671
P. 2d, at 826, n. 10. This assessment of subsection (k) as it existed at
the time of defendant's trial reflects the fact that the language itself
directs attention only to the circumstances of the crime itself, not to
broader considerations relating to background or character. This language
is consistent with the focus of all other factors described in CALJIC
8.84.1: the nature of the crime or the condition of the defendant at the
time it was committed.
|
| [57] |
Furthermore, experience with the operation of subsection (k) in
practice indicates that the instruction was commonly regarded as narrow in
scope. In this case, for instance, the prosecutor went down the list of
mitigating factors, explicitly mentioning the "other circumstances" of
subsection (k), and on each informed the jury that there was no
mitigation. App. 94. In Easley, "the prosecutor told the jury that
sympathy was not one of the mitigating factors which the law authorized it
to consider." 34 Cal. 3d, at 879, n. 11, 671 P. 2d, at 826, n. 11. Other
cases involving the instruction to consider "any other circumstance which
extenuates the gravity of the crime," pending before the State Supreme
Court at the time of argument in this Court, also illustrate the fact that
the subsection in this form lends itself to such an interpretation. In
People v. Payton, Cr. 22511, the prosecutor told the jury that factor (k)
relates to "'some factor at the time of the offense that somehow operates
to reduce the gravity for what the defendant did. It doesn't refer to
anything after the fact or later.'" App. to Brief for Respondent 4a
(quoting Tr. 2125). Evidence of the defendant's "'new Christianity and
that he helped the module deputies in the jail while he was in custody'"
was irrelevant, said the prosecutor, since factor (k) referred only to "'a
fact in operation at the time of the offense.'" App. to Brief for
Respondent 4a (quoting Tr. 2125). Thus, concluded the prosecutor, such
evidence was "'just some jailhouse evidence to win your sympathy, and
that's all.'" Ibid. Similarly,
in People v. Hamilton, Cr. 22311, the prosecutor alluded to factor (k),
and maintained that the defendant had presented no evidence that properly
could be considered. The defendant, observed the prosecutor, had
introduced evidence "'from people who knew the defendant well twelve years
ago. None of these people knew the defendant or were with the defendant at
or about the time these crimes were occurring.'" App. to Brief for
Respondent 6a (quoting 19B Tr. 13-14). In People v. Bigelow, Cr. 22018,
the following colloquy occurred regarding the defendant's motion to modify
the death verdict:
|
| [58] |
"'COURT: Now we have a catchall K, which is any other circumstances
[sic] which extenuates the gravity of the crime, even though it is not a
legal excuse for the crime. Do you have anything you want to tell me under
that factor, Mr. Bigelow?
|
| [59] |
"'DEFENDANT: Extenuates the gravity of the crime, well, that's --
would my sisters and brothers, would their testimony fall into that, my
childhood, and not being raised with proper parents, and -- would that
fall into extenuation of the gravity?
|
| [60] |
"'COURT: No, I don't think that would. I don't see how your childhood,
because you've evidently had a not too happy childhood, but that doesn't
give you the right to come to America and take an innocent man and kill
him. Does it?'" App. to Brief for Respondent 6a-7a (quoting May 8, 1981,
Tr. 28).
|
| [61] |
Finally, in People v. Walker, Cr. 21707, the prosecutor told the jury
with regard to subsection (k) that it is intended to address only those
factors that make "'this crime less serious than it looks when you look at
the other factors in the case,'" such as "'the person [whom] he killed was
someone who meant harm to his family, someone who had threatened him,
someone who had made life miserable.'" App. to Brief for Respondent 7a
(quoting Tr. 3279-3280). The
state court thus had more than adequate justification, based on both the
plain language of subsection (k) and practical experience with its
interpretation by participants in the criminal justice system, to assume
that a jury might reasonably interpret that subsection narrowly, and that
it was unrealistic to assume that juries would construe it to permit
consideration of all of a defendant's mitigating evidence.
|
| [62] |
Even if the Court ignores this wealth of support for the State's
interpretation of subsection (k), and finds that the instruction as it
existed at the time of Brown's trial directed the jury
to consider all of Brown's mitigating evidence, that
is insufficient to save the antisympathy instruction. Such a reading of
subsection (k) would simply mean that the jury was confronted with
inconsistent instructions likely to create the type of confusion the state
court viewed as probable in Bandhauer. As we said in Francis v. Franklin, 471 U.S. 307, 322 (1985): "Nothing in [the] specific
sentences or in the charge as a whole makes clear to the jury that one of
these contradictory instructions carries more weight than the other.
Language that merely contradicts and does not explain a constitutionally
infirm instruction will not suffice to absolve the infirmity." Cf.
Sandstrom v. Montana, 442 U.S., at 526 (if
possibility of misunderstanding exists, "we have no way of knowing that
[the defendant] was not convicted on the basis of the unconstitutional
instruction").
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| [63] |
Finally, the State argues that, even if subdivision (k) is construed
as excluding mitigating evidence not related to the circumstances of the
crime, the jurors nonetheless understood that the enumeration of factors
in instruction 8.84.1 was not exhaustive. This contention is belied by the
fact that the jury was instructed that it "shall consider, take into
account and be guided by the applicable factors of aggravating and
mitigating circumstances upon which you have been instructed." App. 23
(emphasis added). The plain language of this instruction thus rebuts the
State's contention, since the
factors upon which the jury was instructed described only specific types
of mitigating evidence. Furthermore, the State Supreme Court has
interpreted the instruction quoted immediately above in light of the other
portions of the 1978 state death penalty scheme, and has concluded that
that scheme "necessarily [implies] that matters not within the statutory
list are not entitled to any weight in the penalty determination." People
v. Boyd, 38 Cal. 3d 762, 773, 700 P. 2d 782, 790 (1985) (footnote
omitted).*fn5 There is therefore no basis for speculation
that the jury felt unconstrained by the factors listed in instruction
8.84.1.
|
| [64] |
V
|
| [65] |
The California Supreme Court in this case has provided an eminently
reasonable interpretation of the State's antisympathy instruction. The
language of the instruction on its face prohibits a jury from relying on
sympathy in determining whether to sentence a defendant to death. The
defendant literally staked his life in this case on the prospect that a
jury confronted with evidence of his psychological problems and harsh
family background would react sympathetically, and any instruction that
would preclude such a response cannot stand. Furthermore, even acceptance
of the State's attenuated interpretation of other instructions does not
mean that these provisions cure the problem with the antisympathy
instruction, but leads only to the conclusion that the jury was confronted
with contradictory instructions, a state of affairs that we have declared
intolerable. This
Court has proclaimed that in capital cases "the fundamental respect for
humanity underlying the Eighth Amendment requires consideration of the
character and record of the individual offender and the circumstances of
the particular offense as a constitutionally indispensable part of the
process of inflicting the penalty of death." Woodson, 428 U.S.,
at 304 (plurality opinion) (citation omitted). Because of the
qualitatively different nature of the death penalty, "there is a
corresponding difference in the need for reliability in the determination
that death is the appropriate punishment in a specific case." Id., at 305.
Even construed in its most favorable light, the jury instruction at issue
in this case did not come close to providing the requisite assurance that
the jury in this case was fully aware of the scope of its sentencing
duties. Since Brown's mitigating evidence was
composed totally of information on his character and background intended
to elicit sympathy, it is highly likely that the instruction eliminated
his only hope of gaining mercy from the sentencer. Given our particular
concern for the reliability of the procedures used to impose the death
penalty, as well as the considerable support for the California court's
interpretation, it is baffling that this Court strains to find a way to
override the state court's construction of its own jury instruction. I
cannot acquiesce in such a course of action, and therefore
dissent.
|
| [66] |
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins,
dissenting.
|
| [67] |
I write separately to emphasize a point to which others have alluded,
see ante, at 545 (O'CONNOR, J., concurring); ante, at 548 and this page
(BRENNAN, J., dissenting), but which, in my view, has not been brought
into full focus.
|
| [68] |
The defense's goal in the penalty phase of a capital trial is, of
course, to receive a life sentence. See Balske, New Strategies for the
Defense of Capital Cases, 13 Akron L. Rev. 331, 357 (1979). While the
sentencer's decision to accord life to a defendant at times might be a
rational or moral one, it also may arise from the defendant's appeal to
the sentencer's sympathy
or mercy, human qualities that are undeniably emotional in nature. See Tr.
of Oral Arg. 38, 46, 48.
|
| [69] |
In a capital sentencing proceeding, the sentencer's discretion must be
guided to avoid arbitrary or irrational decisions. See Gregg v. Georgia, 428 U.S. 153, 195 (1976) (opinion of Stewart, POWELL,
and STEVENS, JJ.). When a jury serves as the sentencing authority, such
guidance is provided, in part, through jury instructions. This Court,
however, has recognized and even safeguarded the sentencer's power to
exercise its mercy to spare the defendant's life. See Caldwell v.
Mississippi, 472 U.S. 320, 331 (1985), quoting
Caldwell v. State, 443 So. 2d 806, 817 (Miss. 1983) (dissenting opinion)
("'The [mercy] plea is made directly to the jury as only they may impose
the death sentence'"); Eddings v. Oklahoma, 455 U.S. 104, 110 (1982) ("[The] rule in Lockett [v. Ohio, 438
U.S. 586 (1978)] is the product of a considerable history
reflecting the law's effort to develop a system of capital punishment at
once consistent and principled but also humane and sensible to the
uniqueness of the individual"); Gregg v. Georgia, 428 U.S., at
182 (opinion of Stewart, POWELL, and STEVENS, JJ.) ("Rather,
the reluctance of juries in many cases to impose the sentence may well
reflect the humane feeling that this most irrevocable of sanctions should
be reserved for a small number of extreme cases").
|
| [70] |
The sentencer's ability to respond with mercy towards a defendant has
always struck me as a particularly valuable aspect of the capital
sentencing procedure. Long ago, when, in dissent, I expressed my fear of
legislation that would make the death penalty mandatory, and thus remove
all discretion from the sentencer, I observed that such legislation would
be "regressive . . . , for it [would] [eliminate] the element of mercy in
the imposition of punishment." Furman v. Georgia, 408 U.S. 238, 413 (1972). In my view, we adhere so strongly to our
belief that sentencers should have the opportunity to spare a capital
defendant's life on account of compassion for the individual because,
recognizing that the capital
sentencing decision must be made in the context of "contemporary values,"
Gregg v. Georgia, 428 U.S., at 181 (opinion of
Stewart, POWELL, and STEVENS, JJ.), we see in the sentencer's expression
of mercy a distinctive feature of our society that we deeply
value.
|
| [71] |
In the real world, as in this case, it perhaps is unlikely that one
word in an instruction would cause a jury totally to disregard mitigating
factors that the defendant has presented through specific testimony. When,
however, a jury member is moved to be merciful to the defendant, an
instruction telling the juror that he or she cannot be "swayed" by
sympathy well may arrest or restrain this humane response, with truly
fatal consequences for the defendant. This possibility I cannot accept, in
light of the special role of mercy in capital sentencing and the stark
finality of the death sentence. See Woodson v. North Carolina,
428 U.S. 280, 305 (1976) (plurality
opinion).
|
| [72] |
I respectfully dissent.
|
| [73] |
Counsel FOOTNOTES
|
| [74] |
* Christopher N. Heard filed a brief for the Criminal Justice Legal
Foundation as amicus curiae urging reversal.
|
| [75] |
Paul W. Cane, Jr., and Paul Hoffman filed a brief for the American
Civil Liberties Union et al. as amici curiae urging
affirmance.
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| |
|
| |
Opinion Footnotes
|
| |
|
| [76] |
*fn* We have noted our approval of this
statutory scheme. California v. Ramos, 463 U.S. 992,
1005, n. 19 (1983). See also Pulley v. Harris, 465 U.S. 37, 53 (1984).
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [77] |
*fn1 The language of this instruction was drawn
from the longer instruction 1.00 of 1 California Jury Instructions,
Criminal (4th ed. 1979) (CALJIC).
|
| [78] |
*fn2 The Court also suggests that an
antisympathy instruction actually benefits a defendant in that it prevents
the sentencer from being influenced by sympathy for the victim. Ante, at
543. It may be that the instruction produces this result in certain cases.
But it also undoubtedly precludes sympathy for the defendant in other
instances, since the language of the instruction draws no distinction
between these two types of sympathy. The fact that a defendant may on
occasion benefit from the provision in question is insufficient to
outweigh the fact that the instruction can reasonably be construed to
negate the effect of a significant portion of a defendant's mitigating
evidence. Whatever speculative benefit the instruction bestows on the
defendant cannot be purchased at such a price.
|
| [79] |
*fn3 This requirement that the jury not be
precluded from relying on sympathy was confirmed after Furman v. Georgia, 408 U.S. 238 (1972), as consistent with this Court's
decisions in Lockett v. Ohio, 438 U.S. 586 (1978),
and Eddings v. Oklahoma, 455 U.S. 104 (1982). See
People v. Robertson, 33 Cal. 3d. 21, 57, 655 P. 2d 279, 301
(1982).
|
| [80] |
*fn4 Instruction 8.84.1 provides that the jury
is to consider the following:
"(a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any special
[circumstances] found to be true. "(b) The presence or absence of criminal
activity by the defendant which involved the use or attempted use of force
or violence or the expressed or implied threat to use force or violence.
"(c) The presence or absence of any prior felony conviction. "(d) Whether
or not the offense was committed while the defendant was under the
influence of extreme mental or emotional disturbance. "(e) Whether or not
the victim was a participant in the defendant's homicidal conduct or
consented to the homicidal act. "(f) Whether or not the offense was
committed under circumstances which the defendant reasonably believed to
be a moral justification or extenuation for his conduct. "(g) Whether or
not the defendant acted under extreme duress or under the substantial
domination of another person. "(h) Whether or not at the time of the
offense the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was impaired
as a result of mental disease or defect or the affects [sic] of
intoxication. "(i) The age of the defendant at the time of the crime. "(j)
Whether or not the defendant was an accomplice to the offense and his
participation in the commission of the offense was relatively minor. "(k)
Any other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime." CALJIC
8.84.1.
|
| [81] |
*fn5 As the court in Boyd noted, the potential
constitutional infirmity resulting from the fact that none of the factors
on its face "appeared broad enough to encompass every aspect of the
defendant's character and background he might advance for consideration,"
38 Cal. 3d, at 775, 700 P. 2d, at 791, was avoided by the 1983
construction of factor (k) as an open-ended provision permitting the jury
to consider any mitigating evidence. See People v. Easley, 34 Cal. 3d 858,
878, and n. 10, 671 P. 2d 813, 826, and n. 10
(1983).
|