498 U.S. 1055 (1991)

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U.S. Supreme Court

RODRIGUEZ v. COLORADO , 498 U.S. 1055 (1991)

498 U.S. 1055 112 L.Ed.2d 789

Frank D. RODRIGUEZ, petitioner,
No. 90-6371

Supreme Court of the United States

January 14, 1991

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.


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- [498 U.S. 1055, 1057]

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