"as a mitigating factor, any aspect of a defendant's character
or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death."
Id. at
455 U. S. 110,
quoting
Lockett, supra, at
438 U. S.
604.
I think it is likely that four Members of this Court would vote
to grant certiorari to review the California Supreme Court's
holding that the jury instruction at issue in this case violated
Brown's Eighth Amendment rights under
Lockett and
Eddings, and that the decision below ultimately would be
reversed. The California death penalty statute in effect at the
time of Brown's trial expressly permitted Brown to introduce
evidence, at sentencing,
"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."
Cal.Penal Code Ann. § 190.3 (West Supp.1986). The California
statute also provided:
"In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:"
"(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 express or implied threat to use force or
violence."
"(c) The presence or absence of any prior felony conviction.
"
Page 475 U. S. 1303
"(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."
Ibid. A portion of the jury instructions given at the
sentencing phase of Brown's trial tracked the above statutory
language, thus clearly informing the jury of its constitutional
duty to consider in mitigation all relevant aspects of the
defendant's character and the circumstances of his crime.
See California Jury Instructions-Criminal No. 8.84.
[
Footnote 1] (4th ed.1979). In
my view, a strong argument can be made that these statutory
provisions, and the instructions which explained them to Brown's
sentencing jury, fully complied with the dictates of
Lockett and
Eddings.
Page 475 U. S. 1304
The jury instruction held by the California Supreme Court in
this case to be unconstitutional was in no way inconsistent with
the aforementioned statutory provisions. Nor did the instruction
tell the jury to ignore any relevant evidence or mitigating
circumstances. On the contrary, it simply told the jury not to be
swayed by "
mere sentiment, conjecture," and the like. Such
an instruction focuses the jury's attention on the evidence and the
reasonable inferences to be drawn therefrom. It is consistent with
JUSTICE STEVENS' observation in
Gardner v. Florida,
430 U. S. 349
(1977), that
"[i]t is of vital importance to the defendant and to the
community that any decision to impose the death sentence be, and
appear to be, based on reason, rather than caprice or emotion."
Id. at
430 U. S. 358.
[
Footnote 2]
Brown argues that the decision below was based on adequate and
independent state grounds, and is therefore unreviewable by this
Court. It is true that, prior to this Court's 1972 decision in
Furman v. Georgia, 408 U. S. 238
(1972), the California Supreme Court had held that a jury
instruction identical to the one at issue in this case violated the
State Constitution.
See People v.
Bandhauer, 1 Cal. 3d 609,
618-619, 463 P.2d 408, 416 (1970). After this Court's 1976 decision
in
Gregg v. Georgia, 428 U. S. 153,
however, the
Page 475 U. S. 1305
California Supreme Court revisited the question, treating it as
a matter of federal, not state, constitutional law.
See People
v. Robertson, 33 Cal. 3d 21,
56-59,
655 P.2d 279,
286-287 (1982). In
People v. Easley, 34 Cal. 3d
858,
671 P.2d 813
(1983), the court explained that
"the federal cases following
Furman and
Greg
do not undermine [the prior] line of California authority, but, on
the contrary, establish that these decisions
are compelled as a
matter of federal constitutional law."
Id. at 876, 671 P.2d at 824 (emphasis added);
see
also People v. Lanphear, 36 Cal. 3d
163, 164,
680 P.2d 1081,
1082 (1984) ("federal constitutional law forbids" the instruction
at issue in this case). Finally, in the instant case, the court did
not cite the State Constitution at all, but stated that it was
relying on "the individualized sentencing concerns inherent in the
Eighth Amendment." 40 Cal. 3d at 537, 709 P.2d at 453. Thus, it
seems that this case is one in which,
"'at the very least, the [state] court felt compelled by what it
understood to be federal constitutional considerations to construe
. . . its own law in the manner it did.'"
Delaware v. Prouse, 440 U. S. 648,
440 U. S. 653
(1979), quoting
Zacchini v. Scripps-Howard Broadcasting
Co., 433 U. S. 562,
433 U. S. 568
(1977). As such, we have jurisdiction to review the California
Supreme Court's decision. "If the state court misapprehended
federal law,
[i]t should be freed to decide . . . these suits
according to its own local law.'" Delaware v. Prouse,
supra, at 440 U. S. 653,
quoting Missouri ex rel. Southern R. Co. v. Mayfield,
340 U. S. 1,
340 U. S. 5
(1950).
I also think the State has met its burden of demonstrating
irreparable harm if its application for a stay is not granted. The
California Supreme Court denied the State's application for a stay
of issuance of its remittitur, and for an order deferring
enforcement of its judgment, and issued the remittitur to the
California Superior Court for Riverside County on January 30, 1986.
The remittitur was filed by the Superior Court on February 3. Under
California law, if the State does not hold a new trial on the issue
of Brown's penalty
Page 475 U. S. 1306
within 60 days of the filing of the remittitur, or by April 4,
it will be forever barred from seeking the death penalty in the
instant case.
See Cal.Penal Code Ann. § 1382(2) (West
1982). On the other hand, since the California Supreme Court
affirmed Brown's murder conviction, his status will be unaffected
by the issuance of a stay pending disposition of the State's
petition for certiorari. Accordingly, I grant the State's
application for a stay. [
Footnote
3]
[
Footnote 1]
In
California v. Ramos, 463 U.
S. 992 (1983), we cited these very same provisions of
the California statute and noted:
"[R]espondent does not, and indeed could not, contend that the
California sentencing scheme violates the directive of
Lockett
v. Ohio, 438 U. S. 586 (1978). The
California statute in question permits the defendant to present any
evidence to show that a penalty less than death is appropriate in
his case."
Id. at
463 U. S.
1005, n.19.
[
Footnote 2]
Moreover, in practical terms, I would expect the instruction at
issue to generally
help capital defendants, by reducing
the possibility that sentencing juries will be swayed by sympathy
for the victim, along with other adverse forms of
"passion, prejudice, public opinion or public feeling."
See
People v. Easley, 34 Cal. 3d
858, 886,
671 P.2d 813,
831 (1983) (Mosk, J., dissenting) ("In the current climate of
public opinion, sympathy is more likely to be aroused for the
victim and his family than for a defendant who has been found
guilty of a brutal first degree murder. Thus cautioning a jury in
the penalty phase of the trial not to be swayed by mere sympathy
redounds to the benefit, not the detriment, of the defendant").
[
Footnote 3]
The State's petition for certiorari also asks this Court to
review a portion of the California Supreme Court's opinion in which
it placed a new construction on certain portions of the California
death penalty statute in order to avoid what it perceived to be a
potential Eighth Amendment problem.
See 40 Cal. 3d
512, 538-545,
709 P.2d 440,
453-459 (1985). I express no view on whether this Court would be
likely to grant certiorari on this issue, which was not relied upon
by the California Supreme Court as an alternative basis for
invalidating Brown's death sentence.