The petition for a writ of certiorari is denied.
Justice MARSHALL, dissenting.
In both Mills v. Maryland,
486 U.S. 367 (1988), and
McKoy v. North Carolina,
494 U.S. 433 (1990), we
vacated a death sentence based on jury instructions that,
reasonably construed, prevented the jury from considering any
mitigating circumstance it did not unanimously find to exist.
Because I believe the instructions in this case suffer from the
same infirmity, I would grant the petition for certiorari.
Petitioner was convicted of murder and sentenced to death. At
the penalty phase of his capital proceeding, the trial judge
instructed the jury that it could not impose the death penalty
unless it found " unanimously that one or more . . . aggravating
circumstances have been proven." Union Cty. C.C.A. No. 28, 1989 WL
152742 (Tenn.Crim.App., Dec. 15, 1989), p. 2 (emphasis added).
Next, the judge directed the jury to " consider as heretofore
indicated any mitigating circumstances." Id., at 3 ( emphasis
added). The form provided to the jury for recording a death
sentence stated, "We, the jury, unanimously find that there are no
mitigating circumstances sufficiently substantial to outweigh the
statutory aggravating circumstance or circumstances. . . ." Id., at
5 ( emphasis added).* Finding that the instructions did not require
juror
Page 498 U.S.
912 , 913
unanimity on mitigating factors, the Tennessee Court of Criminal
Appeals affirmed. Id., at 6.
Assessment of petitioner's challenge to the disputed
instructions is governed by our decisions in Mills v. Maryland,
supra, and McKoy v. North Carolina, supra. In those decisions, we
made clear that a rule preventing individual jurors from crediting
mitigating circumstances not unanimously found to exist violated
the cardinal principle of our capital jurisprudence that " 'the
sentencer may not . . . be precluded from considering "any relevant
mitigating evidence." ' " Mills, supra, 486 U.S ., at 374-375
(quoting Skipper v. South Carolina,
476 U.S.
1, 4, 1671 (1986), in turn quoting Eddings v. Oklahoma,
455 U.S.
104, 114, 877 ( 1982) (emphasis added)); see McKoy, supra, 494
U.S., at 439-440, 110 S.Ct ., at 1232. The only issue in this case
is whether the instructions furnished to petitioner's jury should
be viewed as imposing a unanimity requirement.
In my view, our decision in Mills speaks directly to this
question. In Mills, the jury received a verdict form listing each
potential mitigating and aggravating circumstance along with
corresponding "yes" and " no" boxes. The trial judge instructed the
jurors to mark "yes" if they unanimously concluded that an
aggravating circumstance had been proved; otherwise they were to
mark "no." 486 U.S., at 378, 108 S.Ct. at, 1867. The judge also
instructed the jury that it had to be unanimous to mark " yes" for
any mitigating
Page 498 U.S.
912 , 914
factor. Id., at 378, and n. 11, and n. 11. Mills challenged the
constitutionality of his death sentence on the ground that the
instructions required death if the jury unanimously found an
aggravating circumstance but could not agree unanimously as to the
existence of any particular mitigating circumstance. Id., at 371,
108 S. Ct., at 1863. The Maryland Court of Appeals rejected this
challenge, construing the verdict form to require unanimity in
order to mark "no" with respect to a given mitigating circumstance,
and not to preclude each juror from individually weighing any
nonunanimous mitigating circumstance in considering whether to
impose a death sentence. Id., at 372-373, 108 S. Ct., at
1864-1865.
Because we could not conclude, "with any degree of certainty,
that the jury did not adopt [Mills'] interpretation," id., at 377,
we vacated his death sentence. We emphasized that nothing in the
instructions or the form clarified for the jury that it could do
something other than answer "no" if it could not reach unanimity on
a particular mitigating circumstance. Id., at 378-379, and n. 11-
1868, and n. 11. Thus, the verdict forms and instructions used in
Mills created the "intuitively disturbing" possibility that a sole
juror could have precluded the remaining eleven jurors from
considering mitigating circumstances which they all believed to
exist. Id., at 373-374, 108 S.Ct ., at 1864. The prospect that a
single, holdout juror could have blocked such consideration, and
consequently required the jury to impose the death penalty, was an
outcome "we dare[d] not risk." Id., at 384. We concluded that it
would be the "height of arbitrariness" to uphold a death sentence
in such circumstances. Id., at 374.
The jury instructions in this case present the same
impermissible risk. After charging the jury that it had to find
aggravating circumstances "unanimously," the trial judge instructed
the jury to consider mitigating circumstances "as heretofore
indicated." The natural inference from the words "as heretofore
indicated" is that findings of mitigating circumstances, like
findings of aggravating circumstances, had to be unanimous.
Moreover, as in Mills, the trial court did not instruct the jury on
what it should do if it could not reach a unanimous conclusion on a
potential mitigating circumstance. Nowhere did the instructions
even remotely suggest that jurors were free to exercise individual
judgment in considering nonunanimous mitigating factors. Rather,
the jury appears to have been guided in the opposite direction by
the "as heretofore indicated" language. The inference that
nonunani-
Page 498 U.S.
912 , 915
mous mitigating factors must be disregarded entirely is
reinforced by the trial judge's repeated statements that the jury
could impose the death penalty only if it found "unanimously" that
no mitigating circumstances outweighed any aggravating
circumstances. Under these circumstances, reasonable jurors could
justifiably have believed that they were not to consider any
mitigating circumstance unless all jurors unanimously found it to
exist.
Like the postverdict construction furnished by the Maryland
Court of Appeals in Mills, the Tennessee Court of Criminal Appeals'
conclusion that jurors remained free under Tennessee law to
consider nonunanimous mitigation factors is beside the point. The
decisive issue under Mills is whether the jury could plausibly have
read the instructions to require unanimity as to the existence of
each mitigating circumstance. Because there is a "reasonable
likelihood" that the jury in this case so understood the challenged
instructions, Boyde v. California,
494 U.S.
370, 381, ___ (1990), I would grant the petition for certiorari
and reverse.
Even if I did not believe that this case otherwise merited
review, 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, 2973 ( 1976) (MARSHALL, J., dissenting), I would
grant the petition for certiorari and vacate the death sentence in
this case.
Justice SOUTER took no part in the consideration or decision of
this petition.
Footnotes
[
Footnote *] In pertinent part, the
jury instructions read as follows: "Your verdict must be unanimous
as to either form of punishment [ death or life imprisonment].. . .
. . . . . "No death penalty shall be imposed unless you find
unanimously that one or more of the following specified statutory
aggravating circumstances have been proven . . . beyond a
reasonable doubt. . . . . . "In arriving at the punishment, the
jury shall consider as heretofore indicated any mitigating
circumstances which shall include but not be limited to. . . . . .
. . . "If the jury unanimously determines that at least one
statutory aggravated circumstance or several statutory
circumstances have been proved . . .
and said circumstance or circumstances are not outweighed by any
sufficiently substantial mitigating circumstances, the sentence
shall be death. . . . . . "[T]he jury must include in its finding,
that there were no mitigating circumstances sufficiently
substantial to outweigh the statutory aggravating circumstance or
circumstances so found. Upon such unanimous finding, each member of
the jury shall affix his or her signature to said written findings
and then return the said written verdict to the Court. . . . . .
"You will be provided with two punishment forms. . . . "[On the
Punishment of Death Form, should the jury impose the death
sentence, it was required to attest:] We, the jury, unanimously
find that there are no mitigating circumstances sufficiently
substantial to outweigh the statutory aggravating circumstance or
circumstances listed above. . . . . . . . . "You may take the
charge with you." Union Cty. C.C.A. No. 28, pp. 2- 5 (emphasis
added). According to the Tennessee Court of Criminal Appeals, these
instructions conform to the language and structure of the
then-effective Tennessee capital punishment statute, Tenn.Code Ann.
39-2-203 (1982). See Union Cty. C.C.A. No. 28, p. 5. This provision
has since been repealed and recodified at Tenn.Code Ann. 39-13-204
(Supp.1990).
