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VOLUME 17 - CHAPTER 303
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303.8 Death Penalty: Aggravation: Miscellaneous Issues

    303.8.1 Death Penalty: Aggravating Circumstances Of The Offense Factor Is Vague And Ambiguous
    303.8.2 Death Penalty: Seeking to Exclude Nonstatutory Aggravating Evidence
    303.8.3 Death Penalty: Aggravation Limited To Enumerated Statutory Factors
    303.8.4 Prior Violent Felony Conviction As Aggravating Factor -- Not Applicable To Accessory After The Fact
    303.8.5 Defense Theory That Defendant's Inability To Express His Or Her Emotions Negate Premeditation And Deliberation
    303.8.6 Death Penalty: Jurors Must Disregard Alleged But Unproven Aggravating Factor

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PRACTICE NOTE: Merely instructing the jury to consider the circumstances of the offense (e.g., CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 8.85(a) [Penalty Trial–Factors For Consideration] (West, 6th Ed. 1996)) without further clarification is vague and ambiguous.

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    303.8.2    Death Penalty: Seeking to Exclude Nonstatutory Aggravating Evidence

PRACTICE NOTE: There have been passing indications in older cases that the State may not be limited to statutory aggravating circumstances, but may look to any evidence of the character and propensities of the accused. For example, in State v. Sawyer (LA 1982) 422 So2d 95, 103-04, the Court held that because character is at issue, evidence of a prior manslaughter conviction which is not relevant to statutory aggravating circumstance is admissible as non-statutory aggravation. Such an open-ended view of aggravation is very dangerous, since the statute is clear that aggravating circumstances shall be the ones listed. To open the floodgates runs a severe risk of causing unnecessary reversals due to the total lack of guidance to the prosecutors. Indeed, regardless of what our own court believes, there are clearly areas where evidence is not admissible on federal constitutional grounds by allowing the jury to consider nonstatutory agrravation. (See Clemons v. Mississippi (1990) 494 US 738, 740-54 [110 SCt 1441; 108 LEd2d 725]; People v. Williams (1988) 45 C3d 1268, 1324 [248 CR 834].)

See Capital Punishment Handbook [4.7.1a. Statutory And Nonstatutory Aggravating Circumstances: General Principles And Authorities].

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RATIONALE: A limiting instruction may be appropriate to assure the jury does not improperly consider nonstatutory aggravating factors.

POINTS AND AUTHORITIES: Certain types of nonstatutory aggravation may be permitted by the 8th Amendment. (See Simmons v. South Carolina (1994) 512 US 154, 162-166 [114 SCt 2187; 129 LEd2d 133] [future dangerousness]; Payne v. Tennessee (1991) 501 US 808, 827 [111 SCt 2597; 115 LEd2d 720] [victim impact].) However, such a result is often at odds with the statutory language which often limits aggravation to the enumerated factors.

    Moreover, the federal constitution has been held to prohibit a variety of nonstatutory aggravation. (See e.g., Dawson v. Delaware (1992) 503 US 159, 160-69 [112 SCt 1093; 117 LEd2d 309] [reversal for reliance, in aggravation, on defendant's membership in racist Aryan Brotherhood]; Payne v. Tennessee (1991) 501 US 808, 817-30 [111 SCt 2597; 115 LEd2d 720] [plurality opinion setting unclear limits on the constitutional admissibility of victim-impact evidence]; Estelle v. Smith (1981) 451 US 454, 456-69 [101 SCt 1866; 68 LEd2d 359] [reversal for admission of unconstitutionally obtained evidence in sentencing]; Beam v. Paskett (9th Cir. 1993) 3 F3d 1301, 1308 [evidence in aggravation of homosexual and incestual relationships with persons of all ages not related to future dangerousness of the accused, appeal to sentencer's arbitrary attitudes, and violate 8th Amendment].)

    Accordingly, the defendant should have a right, upon request, to an instruction that only the factors specified in the statute may be considered in aggravation. (See e.g., Clemons v. Mississippi (1990) 494 US 738, 742 [110 SCt 1441; 108 LEd2d 725]; People v. De Santis (CA 1992) 2 C4th 1198, 1252-53 [9 CR2d 628]; People v. Caro (CA 1988) 46 C3d 1035, 1065 [251 CR 757]; People v. Williams (CA 1988) 45 C3d 1268, 1324 [248 CR 834]; People v. Hamilton (CA 1988) 45 C3d 351, 375 [247 CR 31]; see also People v. Williams (CA 1997) 16 C4th 153, 272 [66 CR2d 123] ["It is not clear... that Tuilaepa [Tuilaepa v. California (1994) 512 US 967, 968 [114 SCt 2630; 129 LEd2d 750]] undermined Zant's (Zant v. Stephens (1983) 462 US 862, 865 [103 SCt 2733; 77 LEd2d 235]) suggestion that states may not, consistent with due process, label 'aggravating' factors 'that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness'"]; but see People v. Espinoza (CA 1992) 3 C4th 806, 827 [12 CR2d 682] [instruction limiting consideration of aggravating factors to statutory factors is appropriate only when "extraneous aggravating evidence not falling within any of the statutory factors has been presented to the jury"].) An instruction similar to Sample # 1 below was cited with approval in Hamilton and Caro.

    The question of whether it is error to simply not designate the factors as aggravating or mitigating was addressed by the California Supreme Court in People v. Wader (CA 1993) 5 C4th 610, 657-58 [20 CR2d 788] which held that such an instruction was error. (But see People v. Williams (CA 1997) 16 C4th 153, 273 [66 CR2d 123] [because it was not reasonably likely that defendant's penalty jury misunderstood the trial court's instructions they were not erroneous under the 8th Amendment].)

FEDERALIZATION: To federalize this request, click here. [Death Penalty Macro 13.13].

CAVEAT I: Instructional clarification of the meaning and scope of aggravation and mitigation can be critical. (See NCJIC 303.4 [Death Penalty: Mitigation – Miscellaneous Issues].)

CAVEAT II: The jury should not be instructed in such a way as to suggest that the statutory factors are the only factors which may be relied upon in making the sentencing determination -- i.e., for both mitigation and aggravation. (See NCJIC 301.4.1.1 [Death Penalty: The Jury Must Consider All Mitigating Evidence].)

NOTE: Babbitt v. Calderon (9th Cir. 1998) 151 F3d 1170, 1178 stated that nothing in the federal constitution limits the consideration of nonstatutory aggravating factors and, hence, it was not improper for the prosecutor to argue the defendant's background as aggravating. (But see People v. Williams (CA 1988) 45 C3d 1268, 1324 [248 CR 834].)

SAMPLE INSTRUCTION:

    The factors in the above list which you determine to be aggravating circumstances are the only ones which the law permits you to consider. You are not allowed to consider any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case.

[Source: Adapted from People v. Hamilton (CA 1988) 45 C3d 351, 375 [247 CR 31] and People v. Caro (CA 1988) 46 C3d 1035, 1065 [251 CR 757].]

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VOLUME 17 - CHAPTER 303

PRACTICE NOTE: See Donaldson v. State (FL 1998) 722 So2d 177, 184.

    303.8.5       Defense Theory That Defendant's Inability To Express His Or Her Emotions Negate Premeditation And Deliberation

    303.8.6    Death Penalty: Jurors Must Disregard Alleged But Unproven Aggravating Factor   

   See NCJIC 303.3.16 [Death Penalty: Jurors Must Disregard Alleged But Unproven Aggravating Factor].