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

        4.9 Balancing Aggravating And Mitigating Circumstances
               4.9.1  Weighing Or Nonweighing By Sentencing Body
                          4.9.1.1  One Invalid/Weak Aggravating Circumstance
               4.9.2     Mandatory Presumption
               4.9.3     Federal Review of State Law Errors

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

NCJIC Materials Related To This Issue:

301.5.7 Weighing Or Nonweighing

303.3.7 Death Penalty: Jury May Return Verdict Of Life Even If Aggravation Outweighs Mitigation

303.3.12 Death Penalty: Jury Not To Simply Count Aggravating And Mitigating Factors

303.4.2 Death Penalty: Single Mitigating Circumstance Sufficient For Life Verdict

303.4.4 Death Penalty: Scope Of Mitigation -- No Mitigation Necessary To Reject Death

303.17.2 Review Required In Nonweighing State

While all death penalty statutes require a finding of at least one aggravating circumstance for a defendant to be eligible for the death penalty, the treatment of aggravating circumstances by the sentencer depends on whether state law requires the sentencer to weigh the aggravating and mitigating circumstances. In nonweighing states, if the jury finds the existence of at least one aggravating circumstance, then it has the option to impose the death penalty. In deciding whether to impose this penalty, the jury is not instructed to consider the aggravating circumstances in any particular fashion. The Supreme Court in Zant v. Stephens, 462 U.S. 862 (1983), approved this nonweighing approach holding that a statute identifying aggravating circumstances need not provide standards to govern the jury in weighing the significance of those circumstances. In lieu of such standards, however, the Court stated that a statute must provide for appellate review of “the death sentence to determine whether it was arbitrary, excessive, or disproportionate.” Id. at 879.

In weighing states, on the other hand, the statute specifically instructs the sentencing jury to weigh certain enumerated aggravating factors against any mitigating factors. If the mitigating factors outweigh the aggravating factors, then the jury is not entitled to impose the death penalty. If the aggravating factors outweigh the mitigating factors, the jury then has the option–but is not required–to impose a death sentence. In Brown v. Sanders, 126 S. Ct. 884 (2006), the Supreme Court held that it would simplify the sentence-invalidating factors it had previously applied to nonweighing states and would be guided by the following rule: “An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” Id. at 892. The Court also said that the “circumstances of the crime factor” has the effect of rendering all the specified sentencing factors nonexclusive thus “causing California to be (in our prior terminology) a non-weighing State.” Id. at 893.

Brown v. Sanders, 126 S. Ct. 884 (2006) (holding an invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances”; also holding that, despite the fact that the California Supreme Court invalidated two special circumstances on direct appeal, there was no constitutional error in the jury’s consideration of the invalid eligibility factors in the weighing process because all the facts necessary to establish the “heinous, atrocious, or cruel” and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the “circumstances of the crime” sentencing factor).

Zant v. Stephens, 462 U.S. 862 (1983) (holding, based on Jurek v. Texas, that standards for balancing aggravating against mitigating circumstances not required, but appellate review by state needed in the alternative).

Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir. 1992) (holding jury not required during penalty phase to specify mitigating factors it considered and how those factors weighed against aggravating factors).

Clark v. Ricketts, 958 F.2d 851, 858 (9th Cir.) (holding petitioner’s due process rights were not denied when state court sentencing judge did not identify and explain each mitigating factor where it was clear from record that sentencing court considered all statutory and nonstatutory mitigating evidence before imposing death sentence), cert. denied, 506 U.S. 838 (1992).

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (holding trial court must consider the mitigating factors as a whole to determine if they are “sufficiently substantial to call for leniency”).

Marcia A. Widder, Comment, Hanging Life in the Balance: The Supreme Court and the Metaphor of Weighing in the Penalty Phase of the Capital Trial, 68 Tul. L. Rev. 1341 (1994) (exploring Supreme Court reliance on weighing as doctrine governing appellate review of capital sentencing, arguing doctrine is misplaced and distorting).

In a nonweighing state, a death sentence based upon an aggravating circumstance found to be invalid or insufficient alone to support a death sentence need not be set aside as long as at least one other aggravating circumstance supporting the sentence is valid. In Zant v. Stephens, 462 U.S. 862 (1983), the Supreme Court adopted the Georgia Supreme Court’s determination that the invalid aggravating circumstance had only an “inconsequential” impact on the sentencing. The Court’s holding, however, was also based on the state supreme court’s mandatory appellate review of the sentence “to avoid arbitrariness and to assure proportionality.” Zant at 890. This review allows the state appellate court to determine whether the elimination of an improperly considered aggravating circumstance possibly could have affected the sentence imposed.

In Tuggle v. Netherland, 516 U.S. 10 (1995), the Court clarified that Zant does not stand for the proposition that the existence of one valid aggravator always excuses a constitutional error, regardless of the reasons invalidating the other aggravating factor(s). The Tuggle Court reversed a capital sentence based on an Ake error, even though the error did not affect the validity of the “vileness” aggravating circumstance.

In a weighing state, some sort of reweighing process must occur before a reviewing court may affirm a death sentence based in part on an invalid aggravating circumstance–even where the sentence is also based on additional aggravating circumstances which are valid. Clemons v. Mississippi, 494 U.S. 738 (1990). The Supreme Court reiterated this rule in Stringer v. Black, 503 U.S. 222 (1992), stating that in a weighing state, where the jury must weigh all aggravating factors against mitigating factors, the state appellate court must determine what the sentencer would have done absent the invalid aggravating factor. The court may not simply uphold the sentence because the jury found other valid aggravating factors. Thus, in a weighing state, when an aggravating factor is invalidated, the appellate court may, short of remanding for resentencing, either reweigh the remaining factors or determine whether the sentencer’s consideration of the invalid factor was harmless error.

In Poland v. Arizona, 476 U.S. 147 (1986), the Supreme Court held that a trial judge’s rejection of an aggravating circumstance does not constitute an “acquittal” of that circumstance for double jeopardy purposes. A reviewing or resentencing court may still consider such circumstance.

In Singletary v. Duest, 507 U.S. 1048 (1993), the Court held that the Brecht standard applies to federal habeas review of a capital sentence involving an invalid aggravating factor. Therefore, on remand, the Eleventh Circuit was required to determine whether the error had a “substantial or injurious effect” on the jury’s verdict.

Lambrix v. Singletary, 520 U.S. 518 (1997) (holding that rule announced in Espinosa v. Florida, 505 U.S. 1079 (1992)–if a weighing state requires the sentencing trial judge to give deference to a jury’s advisory recommendation, neither the judge nor the jury is constitutionally permitted to weigh invalid aggravating circumstances–established a new rule of procedure which would not be applied retroactively to cases on collateral review).

Tuggle v. Netherland, 516 U.S. 10 (1995) (holding Fourth Circuit erred in interpreting Zant to mean that in nonweighing states a death sentence may be upheld on basis of one valid aggravating circumstance regardless of the reasons other aggravating factors are found invalid; one valid aggravator does not always excuse constitutional error in admission or exclusion of evidence).

Romano v. Oklahoma, 512 U.S. 1 (1994) (upholding appellate court’s reweighing of three untainted aggravating circumstances against mitigating circumstances).

Singletary v. Duest, 507 U.S. 1048 (1993) (remanding Eleventh Circuit vacating of death sentence for invalid aggravating circumstance to review in light of Brecht).

Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding, where state court determined prosecutor’s comments regarding defendant’s silence after being given Miranda warnings was harmless beyond reasonable doubt, federal district court need only determine whether error had “substantial or injurious effect” on jury’s verdict”).

Richmond v. Lewis, 506 U.S. 40 (1992) (holding reweighing after jury’s consideration of invalid aggravating factor had not occurred where it was clear from state supreme court opinion that majority of court had not reweighed evidence in light of the invalid factor).

Espinosa v. Florida, 505 U.S. 1079 (1992) (holding in a state such as Florida, where both jury and judge weigh aggravating and mitigating circumstances, neither constitutionally permitted to weigh invalid aggravating circumstances).

Sochor v. Florida, 504 U.S. 527 (1992) (holding weighing of invalid aggravating factor was not cured by Florida Supreme Court where Court did not discuss whether error was harmless beyond a reasonable doubt; stating it is Eighth Amendment violation to weigh unconstitutional aggravating factor despite weighing other constitutional aggravating factors).

Stringer v. Black, 503 U.S. 222 (1992) (holding death sentence invalid where jury weighs unconstitutional aggravating circumstance against mitigating circumstance even though jury found two other valid aggravating circumstances; in order for a state appellate court to affirm a death sentence after sentencer was instructed to consider an invalid aggravating factor, court, to comply with Eighth Amendment, must determine what the sentencer would have done absent the factor).

Parker v. Dugger, 498 U.S. 308 (1991) (reversing death sentence where state supreme court had incorrectly determined that trial court found no mitigating circumstances after invalidating two of the trial court’s aggravating factors in sentencing defendant to death and had consequently failed to follow required procedure of either reweighing aggravating and mitigating factors or applying harmless error analysis).

Clemons v. Mississippi, 494 U.S. 738 (1990) (holding, if it finds an aggravating factor unconstitutional, appellate court may re-weigh aggravating and mitigating factors to determine if death sentence still warranted; no constitutional prohibition against reweighing by court because no constitutional requirement that sentence of death be determined by a jury).

Poland v. Arizona, 476 U.S. 147 (1986) (holding double jeopardy does not bar consideration of an aggravating factor on review or retrial that was rejected by the original sentencing court).

Zant v. Stephens, 462 U.S. 862 (1983) (holding death sentence not unconstitutional where one of several statutory aggravating circumstances found by jury is held to be invalid where invalidity did not involve any constitutionally protected behavior and evidence submitted in support of invalid circumstance was otherwise properly before jury and not misleading or inaccurate).

Poland v. Stewart, 169 F.3d 573 (9th Cir.) (holding Arizona Supreme Court properly reweighed aggravating and mitigating circumstances after striking an aggravating factor), cert. denied, 528 U.S. 845 (1999).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (holding Arizona Supreme Court properly reweighed aggravating and mitigating circumstances after striking an aggravating factor), cert. denied, 522 U.S. 1082 (1998).

Jeffers v. Lewis, 38 F.3d 411 (9th Cir. 1994) (holding Arizona Supreme Court’s independent review of record and explanation of its reweighing process satisfied requirements of Clemons and Stringer, and because it performed such reweighing, it thus was not required to remand the case under federal law; finding no clear requirement under federal or Arizona law that sentencer must itemize and discuss every piece of mitigating evidence in opinion), cert. denied, 514 U.S. 1071 (1995).

Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (vacating death sentence because error of invalid aggravating circumstance was not harmless, and no reweighing possible because other special circumstance invalidated by California Supreme Court), cert. denied, 513 U.S. 1120 (1995).

Jeffers v. Lewis, 5 F.3d 1199 (9th Cir. 1993) (remanding case where, after striking aggravating factors, state supreme court failed to properly reweigh remaining aggravating and mitigating circumstances).

Clark v. Lewis, 1 F.3d 814 (9th Cir. 1993) (holding Arizona supreme court on direct appeal properly narrowed “depraved” aggravating factor and reweighed mitigating and remaining two aggravating factors).

Deutscher v. Whitley, 884 F.2d 1152 (9th Cir. 1989) (holding unconstitutionality of one aggravating circumstance harmless since jury found two other aggravating circumstances), vacated on other grounds, 500 U.S. 901 (1992).

Beam v. Paskett, 966 F.2d 1563 (9th Cir. 1992) (holding death sentence invalid where one statutory aggravating circumstance was invalid and non-statutory aggravating circumstance invalid despite other valid statutory aggravating circumstances), vacated, 507 U.S. 1027 (1993) (and remanded in light of Supreme Court’s finding statutory aggravating circumstance not invalid), cert. denied, 511 U.S. 1060 (1994).

Campbell v. Kincheloe, 829 F.2d 1453, 1461 (9th Cir. 1987) (holding because petitioner did not show a reasonable probability that his sentence was enhanced by the allegedly unconstitutional aggravating factor and jury found other aggravating factors, death sentence appropriate), cert. denied, 488 U.S. 948 (1988).

Neuschafer v. Whitley, 816 F.2d 1390, 1393 (9th Cir. 1987) (holding death sentence valid where one aggravating circumstance held unconstitutional but jury found other aggravating circumstances and no mitigating circumstances; further, if at least one valid aggravating circumstance present, court need not consider whether other aggravating circumstances are valid).

Stephen Hornbuckle, Note, Capital Sentencing Procedure: A Lethal Oddity in the Supreme Court’s Case Law, 73 Tex. L. Rev. 441 (1994) (examining Supreme Court’s differing treatment of weighing and nonweighing states, arguing distinction should not determine method of reassessing death sentence; focusing on treatment of review of sentences based on invalid aggravating circumstance(s)).

An instruction that the jury “shall” impose the death sentence if it finds that the aggravating circumstances outweigh the mitigating circumstances does not create an improper “mandatory death sentence.” According to Blystone v. Pennsylvania, 494 U.S. 299 (1990), the requirement of individualized sentencing is satisfied as long as the jury is permitted to consider all relevant mitigating evidence.

Walton v. Arizona, 497 U.S. 639 (1990) (holding instruction that court shall impose death sentence if it finds one or more aggravating circumstances and no mitigating circumstances sufficient to call for leniency is proper under Blystone and Boyde).

Boyde v. California, 494 U.S. 370 (1990) (instruction that, if aggravating circumstances outweigh mitigating circumstances jury “shall impose” the death sentence, is proper under Blystone).

Blystone v. Pennsylvania, 494 U.S. 299 (1990) (holding instruction that verdict must be death if jury finds one aggravating circumstance and no mitigating circumstances or if aggravating circumstances outweigh mitigating circumstances is constitutional since jury is permitted to consider all mitigating evidence).

Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.) (following Blystone, upholding Washington death penalty statute as not creating a mandatory death penalty formula), reh’g granted, 978 F.2d 519 (1992).

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) (following Walton, upholding “shall impose” language in Arizona death penalty statute), rev’d on other grounds, 506 U.S. 40 (1992).

Federal courts do not grant relief for state law errors. Thus, federal habeas review of a state’s application of its own aggravating circumstances is limited to a due process analysis–whether the error rendered the proceedings fundamentally unfair. The standard for federal habeas review, therefore, is not de novo but rather that of the “rational factfinder.” Additionally, in Lewis v. Jeffers, 497 U.S. 764, 781 (1990), the Court stated that the federal habeas court must view the evidence in the light most favorable to the prosecution to determine whether “any rational trier of fact” could have found the aggravating circumstance “beyond a reasonable doubt.”  

In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court determined that the standard for a federal habeas court to apply is whether a constitutional trial error was harmless. A federal district court need only determine whether the error had a “substantial or injurious effect” on the jury’s verdict. This standard is much less onerous than the traditional “harmless beyond a reasonable doubt” standard. However, in O’Neal v. McAninch, 513 U.S. 432 (1995), the Court elaborated that the petitioner does not carry any burden of proof in this inquiry. When a federal judge is in “grave doubt” about the likely effect of an error on the jury’s verdict, the judge should treat it as having a substantial and injurious effect on the jury’s verdict.

O’Neal v. McAninch, 513 U.S. 432 (1995) (holding where federal habeas court finds a constitutional trial error and is in “grave doubt” about whether the error had “a substantial or injurious effect” on jury’s verdict, the error is not harmless, and petitioner must win).

Singletary v. Duest, 507 U.S. 1048 (1993) (vacating death sentence which relied on invalid aggravating circumstance, and remanding in light of Brecht).

Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding, where state court determined prosecutor’s comments re: defendant’s silence after being given Miranda warnings was harmless beyond reasonable doubt, federal district court need only determine whether error had “substantial or injurious effect” on jury’s verdict).

Lewis v. Jeffers, 497 U.S. 764 (1990) (holding the standard of review of a state’s application of a constitutionally narrowed aggravating factor is the “rational factfinder” standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979), not de novo review).

Poland v. Stewart, 169 F.3d 573 (9th Cir.) (applying Jeffers, denying habeas relief), cert. denied, 528 U.S. 845 (1999).

Poland v. Stewart, 117 F.3d 1094 (9th Cir. 1997) (applying Jeffers, denying habeas relief), cert. denied, 523 U.S. 1082 (1998).

Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (regarding petitioner’s attack on the presumption of correctness of state court factual findings, denying relief stating petitioner cannot transform a state law issue into a federal claim merely by alleging a due process violation), cert. denied, 522 U.S. 881 (1997).

Campbell v. Blodgett, 978 F.2d 1502 (9th Cir.) (following Jeffers in limiting standard of review of state sentencing), reh’g granted, 978 F.2d 519 (1992).