On petition for writ of certiorari to the Supreme Court of
Colorado.
The application for stay of execution of sentence of death
presented to Justice WHITE and by him referred to the Court is
denied. The petition for a writ of certiorari is denied.
Justice MARSHALL, dissenting.
In both Mills v. Maryland,
486 U.S. 367, 108 S. Ct.
1860, 100 L. Ed. 2d 384 (1988), and McKoy v. North Carolina, 494
U.S. ___, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990), we vacated
death sentences based on jury instructions that, reasonably
construed, prevented the respective juries from considering any
mitigating factors they did not unanimously find to exist. Because
I believe that the in-
Page 498 U.S.
1055, 1056
structions delivered to the jury in this case cannot be squared
with Mills and McKoy, I would grant the application for stay and
the petition for certiorari.
I
Petitioner was convicted of murder and sentenced to death. At
the penalty phase of petitioner's trial, the trial court instructed
the jury that any aggravating factors found to exist should be
weighed against any mitigating factors found to exist. Instruction
No. 21 explained in pertinent part:
"If in the first two steps of your
deliberations you have made unanimous findings that the prosecution
has proven beyond a reasonable doubt that one or more aggravating
factors exist and that no mitigating factors exist, or that a
mitigating factor or factors exist, you must now decide whether the
prosecution has proven that any factors in mitigation do not
outweigh the aggravating factor or factors." People v. Rodriguez,
794 P.2d
965, 997 (Colo.1990) ( emphasis added).
In Mills v. Maryland, supra, we addressed the constitutionality
of instructions requiring juror unanimity on mitigating factors. We
concluded that such instructions violate the cardinal principle of
our capital jurisprudence that " 'the sentencer may not . . . be
precluded from considering "any relevant mitigating evidence." ' "
486 U.S., at 374- 375, 108 S.Ct., at 1865-1866, quoting Skipper v.
South Carolina,
476 U.S.
1, 4, 106 S. Ct. 1669, 1671, 90 L. Ed. 2d 1 (1986), quoting
Eddings v. Oklahoma,
455 U.S.
104, 114, 102 S. Ct. 869, 876, 71 L. Ed. 2d 1 (1982). In Mills,
an impermissible juror unanimity requirement was imposed by a jury
verdict form stating: "Based upon the evidence we unanimously find
that each of the following mitigating circumstances which is marked
"yes" has been proven to exist. . . ." 486 U.S., at 387, 108 S. Ct.
at 1871. McKoy v. North Carolina, supra, presented a similar
situation. In McKoy, the jury had been instructed both orally and
in writing that it had to make unanimous findings on the existence
of mitigating factors before proceeding to consider them. 494 U.S.,
at ___, 110 S.Ct. at ___. Applying Mills, we vacated McKoy's death
sentence.
Instruction No. 21 in the present case suffers from the
infirmity condemned in Mills and McKoy. As noted, Instruction No.
21 directed the jury that if it "made unanimous findings . . . that
one or more aggravating factors exist and that no mitigating
factors exist, or that a mitigating factor or factors exist," it
should pro-
Page 498 U.S.
1055, 1057
ceed to weigh the aggravating factors against the mitigating
factors. The phrase "unanimous findings" can be read only to have
modified both " aggravating factors" and "mitigating factors". For
the instruction to have been constitutional, the jury would have to
have read the pertinent language in Instruction No. 21 as
permitting it to weigh mitigating factors if it made nonunanimous
"findings . . . that a mitigating factor or factors exist."
Instruction No. 21 clearly does not say this.
The Colorado Supreme Court, however, refused to vacate
petitioner's death sentence. Relying on Boyde v. California, 494
U.S. ___, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990), the Colorado
Supreme Court reasoned that " there was no reasonable likelihood"
that the jury would have interpreted the instruction to require
juror unanimity on mitigating factors. 794 P. 2d, at 980-982. I
cannot accept that our decision in Boyde affects the invalidity of
Instruction No. 21 under Mills and McKoy.
In Boyde, this Court examined whether instructions at the
penalty phase of Boyde's capital proceeding impermissibly limited
consideration of mitigating evidence pertaining to Boyde's
character and background. The trial court instructed the jury that,
in addition to ten specific factors to be considered in determining
the penalty, the jury could consider "[a] ny other circumstance
which extenuates the gravity of the crime even though it is not a
legal excuse for the crime." Boyde v. California, supra, 494 U.S.,
at ___, 110 S.Ct., at 1194.
The Court concluded in Boyde that even though the instructions
did not identify Boyde's deprived background and emotional troubles
as relevant considerations, there was no "reasonable likelihood"
that the jury felt precluded from considering these factors. Noting
the view, " long held by society," that such factors "would counsel
imposition of a sentence less than death," the Court found it
unlikely that the jury would have understood the instructions to
prevent consideration of such evidence . See id., at ___, 110
S.Ct., at 1199. Additionally, the Court concluded that the context
of the proceeding, in which Boyde introduced without objection four
days of testimony concerning his background and character, "would
have led reasonable jurors to believe that evidence of petitioner's
background and character could be considered in mitigation." Id.,
at ___, 110 S.Ct., at 1199.
The facts in Boyde offer little assistance in resolving this
case. Unlike the jury in Boyde, the jury in this case could not
have been guided either by the evidence introduced or by any "long
held" so-
Page 498 U.S.
1055, 1058
cietal views in attempting to comprehend Instruction No. 21.
That instruction indicates that the jury is required to find the
existence of mitigating factors unanimously. Clearly, there is no
"long held" societal view as to procedural rules of this sort.
Rather, the jury's sole source of direction as to the meaning of
Instruction No. 21 was the instruction itself. For the reasons I
have indicated, there clearly was a "reasonable likelihood" that
the jury viewed the direction to make "unanimous findings" as
applying not only to aggravating factors but also to mitigating
factors. The Colorado Supreme Court reasoned that the jury would
not have understood Instruction No. 21 in this way in light of the
instructions on aggravating factors. These instructions stated on
several occasions that any aggravating factors must be found
unanimously, and one instruction required the jury to vote to
determine the existence of particular aggravating factors. The
court reasoned that the absence of similar repetition in the
instructions on mitigating factors and the absence of provisions
for voting upon the existence of mitigating factors precluded the
jurors from inferring that unanimity was necessary for mitigating
factors. 794 P.2d, at 981-982. In my view, this assumption is
unrealistic. As a matter of convention, we presume that jurors
follow jury instructions. See McKoy v. North Carolina, supra, 494
U.S. at ___, 110 S.Ct., at 1238 (KENNEDY, J., concurring in
judgment). Instruction No. 21 required unanimity as to the
existence of mitigating circumstances. It is difficult to imagine,
then, that the jury would have inferred from the instructions
setting forth the unanimity requirement with respect to aggravating
factors a signal to disavow the clear import of Instruction No. 21.
Nor am I convinced that anything the instructions otherwise said
about mitigating factors would have prompted the jury to disregard
the link between "unanimous findings" and "mitigating factors" in
Instruction No. 21. The Colorado Supreme Court suggested that the
defect in Instruction No. 21 was cured by "a theme" running through
the instructions " that the individual jurors could disagree with
respect to the effect they gave to mitigating factors." 794 P.2d,
at 982 (citing Instruction Nos. 15, 21 and 22).1 However, this
"theme" in the jury charge addressed only
Page 498 U.S.
1055, 1059
the juror's individual autonomy in deciding what weight to
attach to a particular mitigating factor. The instructions said
nothing to upset the indication in Instruction No. 21 that a juror
could weigh a mitigating factor only after it had been unanimously
found to exist. Indeed, Instruction No. 21 expressly directed the
jury that it first had to find the existence of mitigating factors
before weighing could take place. Instruction No. 21 explained that
in the first two steps of its deliberations the jury was to make
"unanimous findings" with respect to aggravating and mitigating
factors, and it was not until "the third step of [the]
deliberations" that the jury was to weigh the aggravating factors
against the mitigating factors. Id., at 997 (quoting Instruction
No. 21). 2
A "commonsense understanding" of the instructions in this case,
Boyde v. California, supra, at ___, 110 S.Ct., at 1198, confirms
that the jury would have attached an unconstitutional meaning to
Instruction No. 21. By its plain and natural meaning, Instruction
No. 21 imposed a jury unanimity requirement that is incompatible
with Mills and McKoy. As nothing else in the instructions can
support the Colorado Supreme Court's intuitive judgment that the
jury did not attach that unconstitutional meaning to Instruction
No. 21, the instructions are not saved by the Boyde test. Because I
believe that petitioner's death sentence is constitutionally
defective, I would grant the application for stay and the petition
for certiorari.
II
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia,
428 U.S.
153, 231, 96 S. Ct. 2909, 2973, 49 L. Ed. 2d 859 (1976)
(MARSHALL, J., dissenting), I would grant the application for stay
and the petition for certiorari and vacate petitioner's death
sentence even if I did not believe this case otherwise merited
review.
Footnotes
Footnote 1 Instruction No.
15 stated, "If one or more jurors find sufficient mitigating factor
or factors exist that outweigh a specified aggravating factor or
factors, then the result is a sentence of life imprisonment."
People v. Rodriguez,
794 P.2d
965, 995 (Colo.1990). This direction was repeated in
Instruction No. 21. See id., at 997. Instruction No. 22 added:
"Each of you must also decide for yourself what weight to give each
mitigating circumstance that you find exists. Your decision as to
what weight to give any mitigating circumstance does not have to be
unanimous. You do not have to take the decisions, opinions or
feelings of any other juror into account, although you may do so if
you wish." Ibid.
Footnote 2 I also reject the
Colorado Supreme Court's suggestion that the infirmity in the
instructions might have been cured by defense counsel's plea in
closing argument that the jurors "can rely on any factor you wish
to return a life sentence . . . [and] [y]ou don't have to be
unanimous on those factors." Id., at 982 n. 13. Statements of
counsel "are usually billed in advance to the jury as matters of
argument" and "generally carry less weight with a jury than do
instructions from the court." Boyde v. California, 494 U.S. ___,
___, 110 S. Ct. 1190, ___, 108 L. Ed. 2d 316 ( 1990). Of course, in
some instances an improper argument from counsel may negate a jury
instruction that correctly explains to a jury the standards
governing its inquiry. Cf. id., at ___, 110 S.Ct., at 11. But it is
an entirely different matter to presume the contrary: that an
argument from counsel properly stating the law to the jury can save
a jury instruction that does not.