NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.5 Jury Instructions
               4.5.1  Ambiguous Or Vague Instructions
               4.5.2  Role Of Aggravating And Mitigating Circumstances
               4.5.3  Sympathy And Passion
                          4.5.3.1  Retroactivity Of California v. Brown
               4.5.4  Possibility Of Commutation or Parole
                         4.5.4.1  Retroactivity Of Simmons
               4.5.5  Allen-Type Charges
               4.5.6  Diminishing Jury Sense Of Responsibility

In Boyde v. California, 494 U.S. 370 (1990), the Supreme Court held that the standard of reviewing a claim that a sentencing instruction is ambiguous is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” A federal court reviewing the issue on habeas still must apply the Brecht analysis after determining the constitutionality of the instruction. Calderon v. Coleman, 525 U.S. 141 (1998).

In Tuilaepa v. California, 512 U.S. 967 (1994), the Supreme Court stated that its review of sentencing eligibility factors in the context of jury instructions is deferential. An instruction will not be ruled unconstitutional for vagueness if it has some “common-sense core of meaning . . . that criminal juries should be capable of understanding.” Id. at 973–974. In addition, the Court stated that jury instructions at capital sentencing need not be only in the form of specific propositional questions. An instruction may direct the jury to consider a crime’s “facts and circumstances.” Id. at 978.

Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam) (holding Ninth Circuit erred by failing to apply Brecht standard of review on habeas writ regarding sentencing instruction; applying Boyde standard of review was not adequate).

Tuilaepa v. California, 512 U.S. 967 (1994) (upholding as not unconstitutionally vague, California sentencing factors of Penal Code § 190 requiring sentencer to consider (1) the “circumstances of the crime of which defendant was convicted . . . and the existence of any special circumstances found to be true,” (2) the “presence or absence of criminal activity [involving] the use or attempted use of force or violence or the express or implied threat to use force or violence,” and (3) defendant’s age at the time of the crime).

Boyde v. California, 494 U.S. 370 (1990) (holding standard of review of a claim that an instruction is ambiguous is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence”).

McDowell v. Calderon, 130 F.3d 833 (9th Cir. 1997) (en banc) (holding that where jury returns note showing confusion as to proper mitigating evidence, it is reversible error to simply refer to and repeat the same instruction already given which the jury previously misunderstood), cert. denied, 523 U.S. 1103 (1998), implicitly rejected in Calderon v. Coleman, 525 U.S. 141 (1998).

Susie Cho, Comment, Capital Confusion: The Effect of Jury Instructions on the Decision to Impose Death, 85 J. Crim. L. 532 (1994) (discussing jury’s comprehension and application of law in capital cases).

Shari S. Diamond & Judith N. Levi, Improving Decisions on Death by Revising and Testing Jury Instructions, Judicature, Vol. 79, No.5, at 224 (March-April 1996) (suggesting improvements to reduce jury miscomprehension of capital jury instructions).

Theodore Eisenberg & Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1 (1993) (reviewing inaccuracy and misunderstanding in jury instructions at capital sentencing).

Christopher Slobogin, Symposium, The Capital Jury Project: Should Juries and the Death Penalty Mix?, 70 Ind. L.J. 1249 (1995) (addressing research of Capital Jury Project, and whether evidence of unpredictable jury decision-making in capital cases has constitutional significance).

Peter M. Tiersma, Dictionaries and Death: Do Capital Jurors Understand Mitigation?, 1995 Utah L. Rev. 1 (1995) (addressing nature of mitigating and aggravating circumstances and evidence of jurors’ non-comprehension of instructions on mitigation in death penalty cases).

In Tuilaepa v. California, 512 U.S. 967 (1994), the Supreme Court held that the jury need not be instructed on how to weigh any particular factor in the sentencing decision. The Ninth Circuit has held that a trial court need not instruct that the jury find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances. Harris v. Pulley, 692 F.2d 1189, 1195 (9th Cir. 1982). In reversing this Ninth Circuit decision on other grounds, the Supreme Court noted, without disapproving, this Ninth Circuit holding. Pulley v. Harris, 465 U.S. 37 (1984).

Tuilaepa v. California, 512 U.S. 967 (1994) (holding that instructions need not tell jury how to weigh any particular factor).

Pulley v. Harris, 465 U.S. 37 (1984) (noting, without disapproving, Ninth Circuit’s lower holding that no beyond a reasonable doubt finding required for determining death sentence).

Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 2001) (holding that there was ex post facto violation requiring reversal of death sentence where jury was instructed on more onerous 1978 California death penalty statute, rather than the 1977 statute, in effect at time of crime; 1977 statute permitted jury discretion to reject death penalty even if it found that aggravating factors outweighed mitigating factors, but under 1978 statute, jury did not have this discretion), cert. denied, 535 U. S. 935 (2002).

Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) (holding ambiguous jury instruction at sentencing phase which suggested that jury must unanimously find that mitigating factors outweigh aggravating factors was error), cert. denied, 507 U.S. 951 (1993).

Harris v. Pulley, 692 F.2d 1189, 1195 (9th Cir. 1982) (holding beyond-a-reasonable doubt standard not required to determine whether death penalty should be imposed), rev’d on other grounds, 465 U.S. 37 (1984).

Wade v. Vasquez, 752 F. Supp. 931 (C.D. Cal. 1990) (applying Harris in rejecting petitioner’s argument that trial court should have instructed jury that it must find beyond reasonable doubt that aggravating circumstances outweigh mitigating and that death is appropriate punishment).

See generally:

James Luginbuhl & Julie Howe, Symposium, The Capital Jury Project: Discretion in Capital Sentencing Instructions: Guided or Misguided?, 70 Ind. L.J. 1161 (1995) (addressing jury comprehension of capital sentencing instructions and jury application of guided discretion principle of Furman).

In California v. Brown, 479 U.S. 538 (1987), the Supreme Court held that a jury instruction that the jurors must consider and weigh aggravating and mitigating circumstances but “must not be swayed by mere sympathy” or public sentiment is permissible and does not violate the Eighth Amendment. The Court reasoned that a reasonable juror would interpret the instruction to mean he or she should ignore only the sort of sympathy not rooted in the aggravating and mitigating evidence introduced at sentencing.

California v. Brown, 479 U.S. 538 (1987) (holding jury instruction that jurors “must not be swayed by mere sympathy” or by public sentiment does not violate Eighth and Fourteenth Amendment prohibition of unbridled discretion and requirement that defendants be allowed to introduce any mitigating evidence).

Lusk v. Singletary, 965 F.2d 946 (11th Cir. 1992) (citing Brown, holding sentencing judge’s statement that mercy should not be extended to defendant did not indicate that judge refused to consider mercy where judge found that no mitigating factors existed),cert. denied, 508 U.S. 920 (1993).

Julius v. Jones, 875 F.2d 1520 (11th Cir.) (holding guilt phase instruction that jury was not to be swayed by sympathy did not preclude consideration of mitigating evidence at penalty phase), cert. denied, 493 U.S. 900 (1989).

Paul W. Cobb, Jr., Note, Reviving Mercy in the Structure of Capital Punishment, 99 Yale L.J. 589 (1989) (discussing role of mercy, including Brown, in capital sentencing, and proposing revival of mercy through courts, legislatures, and governors).

In Saffle v. Parks, 494 U.S. 484 (1990), the Supreme Court stated that the decision in California v. Brown created a new rule because its reasoning was not dictated by Lockett v. Ohio or Eddings v. Oklahoma. Therefore, under Teague v. Lane, it is not retroactively applied to cases which became final before it was decided.

Saffle v. Parks, 494 U.S. 484 (1990) (stating Brown not retroactively applied under Teague).

In California v. Ramos, 463 U.S. 992 (1983), the Supreme Court held that the Eighth and Fourteenth Amendments allow but do not require a state capital sentencing jury to be instructed that a sentence of life imprisonment without the possibility of parole may be commuted by the governor to a lesser sentence that includes the possibility of parole. On the other hand, the Supreme Court held in Simmons v. South Carolina, 512 U.S. 154 (1994), that where a defendant’s future dangerousness is at issue and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.

Kelly v. South Carolina, 534 U.S. 246 (2002) (holding that capital defendant’s future dangerousness was at issue and it was error for the trial court to refuse to instruct that he would be ineligible for parole under life sentence where prosecution presented evidence that while in prison, defendant had made a knife and had taken part in escape attempt; also holding that it was not dispositive that jury did not ask judge for further instruction on parole eligibility, whereas juries in Shafer v. South Carolina and Simmons v. South Carolina did).

Shafer v. South Carolina, 532 U.S. 36 (2001) (holding that whenever future dangerousness is at issue in a capital sentencing proceeding, due process requires that jury be informed that life sentence carries no possibility of parole under South Carolina statute providing that if jury finds statutory aggravator, it must recommend a sentence and its choices are limited to death and life without parole).

Ramdass v. Angelone, 530 U.S. 156 (2000) (denying habeas relief in death case where petitioner refused a jury instruction explaining parole ineligibility because, although petitioner was found guilty of a felony making him ineligible for parole under state law, the judgment of conviction was not entered before petitioner’s sentencing hearing in the capital case and under state law, entry of a judgment is more than a ministerial act).

Calderon v. Coleman, 525 U.S. 141 (1998) (reversing grant of habeas relief based on state court’s inaccurate instruction on the governor’s power to commute a sentence; must first apply the Brecht harmless error standard).

Brown v. Texas, 522 U.S. 940 (1997) (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., respecting denial of petition for certiorari) (pointing out tension between Texas law, which prohibits a capital defendant from presenting evidence regarding parole eligibility for a life imprisonment sentence, and Simmons rule).

Simmons v. South Carolina, 512 U.S. 154 (1994) (holding where the state makes an issue of defendant’s future dangerousness during sentencing phase of a capital trial, and state law prohibits defendant’s release on parole, due process requires that the court inform the sentencing jury that the defendant is ineligible for parole).

California v. Ramos, 463 U.S. 992 (1983) (upholding against federal constitutional challenge state law requiring instruction on governor’s power to commute life sentence without possibility of parole). But see People v. Ramos, 689 P.2d 430 (Cal. 1984) (voiding same law on state constitutional grounds), cert. denied, 471 U.S. 1119 (1985).

Morris v. Woodford, 273 F.3d 826 (9th Cir. 2001) (granting writ of habeas corpus and reversing in part and remanding with instructions to vacate sentence of death and ordering new penalty-phase trial because of typographical error in written jury instructions in penalty phase whereby jury was instructed “ if you have a reasonable doubt as to which penalty to impose, death or life in prison without the possibility of parole, you must give the defendant the benefit of that doubt and return a verdict fixing the penalty of life in prison with the possibility of parole; holding error was not harmless where jury was confused by instruction and inquired about it and court inadvertently exacerbated problem), cert. denied, 537 U.S. 741 (2002).

Coleman v. Calderon, 210 F.3d 1047 (9th Cir. 2000) (finding reversible error under Brecht and reversing death sentence based on jury instruction which mislead jury regarding possibility of gubernatorial commutation of a “life without parole” sentence; dissent finding error harmless).

McClain v. Calderon,134 F.3d 1383 (9th Cir.) (following Hamilton, holding trial court erred instructing jury on governor’s commutation power, where–under former state law–power was limited by supreme court approval), cert. denied, 525 U.S. 942 (1998), implicitly rejected by Calderon v. Coleman, 525 U.S. 141 (1998).

Gallego v. McDaniel, 124 F.3d 1065 (9th Cir. 1997) (holding that penalty phase instruction, discussing executive clemency procedure applicable to a sentence of life imprisonment without possibility of parole, was reversible error since instruction failed to state that defendant–convicted of capital murder out of state–faced additional clemency hurdles), cert. denied, 524 U.S. 917 (1998), and cert. denied, 524 U.S. 922 (1998).

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.) (holding improper jury instruction re: possibility of governor commuting life sentence prevented jury from making reasoned and informed choice between a sentence of life without possibility of parole and death), cert. denied, 512 U.S. 1229 (1994), implicitly rejected by Calderon v. Coleman, 525 U.S. 141 (1998).

Bonin v. Vasquez, 807 F. Supp. 586 (C.D. Cal. 1992) (holding court need not define meaning of “life without parole” to jury).

Mollett v. Mullen, 348 F.3d 902 (10th Cir. 2003) (holding that where (1) in a capital case the prosecution placed future dangerousness at issue through the charging of a continuing threat aggravator; (2) the jury requested an explanation of the definition of life imprisonment; (3) the judge’s response created a false choice in that the judge replied that matters of parole are beyond the purview of the jury or the court to consider; and (4) there was no opportunity to cure the confusion because counsel were not informed of the jury’s question, petitioner was entitled to habeas relief).

Janie Clark, Note, Putting an End to the Imposition of Death by Misperception and Misunderstanding: Simmons v. South Carolina, 43 Kan. L. Rev. 1147 (1995) (addressing Simmons and arguing Court should have gone further to hold that Eighth and Fourteenth Amendments require capital sentencing jury to be informed, on request of either prosecution or defense, of defendant’s parole status).

John Christopher Johnson, Note, When Life Means Life: Juries, Parole, and Capital Sentencing, 73 N.C. L. Rev. 1211 (1995) (analyzing Simmons and its impact in context of capital sentencing procedures).

Anthony Paduano & Clive A. S. Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Hum. Rts. L. Rev. 211 (1987) (discussing popular misperceptions regarding life imprisonment and parole, analyzing practical and legal effects on capital sentencing).

In a five to four split, the Supreme Court ruled that Simmons presents a “new rule” under Teague and, therefore, may not be used to disturb a death sentence which was final at the time Simmons was decided. O’Dell v. Netherland, 521 U.S. 151 (1997). Justice Stevens, writing for the dissent, argued that the Simmons rule is a bedrock procedural element of a full and fair hearing and should be excepted from Teague.

O’Dell v. Netherland, 521 U.S. 151 (1997) (holding Simmons is “new rule” under Teague).

In Lowenfield v. Phelps, 484 U.S. 231 (1988), the Supreme Court held that at least some forms of supplemental jury charges by the trial court to secure jury unanimity–traditional “Allen charges”–are not coercive of jury decision-making at capital sentencing proceedings.

Lowenfield v. Phelps, 484 U.S. 231 (1988) (holding penalty phase jurors not coerced by trial court’s supplemental instruction that fellow jurors’ views should be considered, but that no juror should surrender honest belief as to the weight of the evidence; even more of attempt to secure jury unanimity than traditional “Allen” charge because not directed specifically to minority jurors).

Jenkins v. United States, 380 U.S. 445 (1965) (requiring supplemental charges be considered in context and “under all the circumstances”).

Allen v. United States, 164 U.S. 492 (1896) (upholding as not coercive, supplemental charge by trial court urging minority jurors to consider views of majority, and whether own views were reasonable under circumstances; charge is attempt to secure jury unanimity, to avoid societal costs of retrial).

Rich v. Calderon, 187 F.3d 1064 (9th Cir. 1999) (holding no trial error where judge refused to inform jury at impasse that a deadlock results in a sentence of life without parole), cert. denied sub nom., Rich v. Woodford, 528 U.S. 1092 (2000).

The prohibition against prosecutorial argument that diminishes the jury’s sense of its sentencing responsibility applies with equal force to jury instructions.

Stewart v. Dugger, 877 F.2d 851 (11th Cir. 1989) (holding no Caldwell violation where prosecutor and trial judge called attention to jury’s advisory role during voir dire but entire record established jury’s role was properly explained), cert. denied, 495 U.S. 962 (1990).

Mulligan v. Kemp, 818 F.2d 746 (11th Cir.) (holding instruction that jury could “recommend” death sentence, followed by instruction that such a verdict would require a death sentence, adequately explained jury’s responsibility for sentence), cert. denied, 481 U.S. 1043 (1987).

Joseph L. Hoffman, Symposium, The Capital Jury Project: Where’s the Buck? Juror Misperception of Sentencing Responsibility in Death Penalty Cases, 70 Ind. L.J. 1137 (1995) (addressing hypothesis that capital jurors faced with death sentencing decision seek to avoid perception that they bear personal moral responsibility for making decision).

Steven J. Sherman, Symposium, The Capital Jury Project: The Role of Responsibility and How Psychology Can Inform the Law, 70 Ind. L.J. 1241 (1995) (discussing psychological issues re: jury’s sense of responsibility in capital sentencing hearings).