498 U.S. 912 (1990)

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U.S. Supreme Court

HOUSE v. TENNESSEE , 498 U.S. 912 (1990)

498 U.S. 912

Paul Gregory HOUSE, petitioner v. TENNESSEE. No. 90-5395.

Supreme Court of the United States October 9, 1990

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 [498 U.S. 912 , 914]

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