Jury Instructions in Death Penalty Cases
MERCY .............................................................................................................................. 1
Com. v. Zook 532 Pa. 79, 103-104, 615 A.2d 1, 13 - 14 (Pa.,1992) ............................. 1
Com. v. Powell 598 Pa. 224, 257-259, 956 A.2d 406, 426 - 427 (Pa.,2008) ................ 2
Com. v. Peterkin 511 Pa. 299, 328, 513 A.2d 373, 388 (Pa.,1986) ............................... 3
Kansas v. Marsh 548 U.S. 163, 175-179, (U.S.Kan.,2006) ........................................... 4
Blystone v. Pennsylvania 494 U.S. 299, 303-308,(U.S.Pa.,1990) .................................. 5
UNANIMITY ..................................................................................................................... 7
Jones v. U.S. 527 U.S. 373, 385-387, (U.S.Tex.,1999) ................................................. 7
Com. v. Williams 581 Pa. 57, 69, 863 A.2d 505, 512 (Pa.,2004) ................................. 7
Com. v. Cox 581 Pa. 107, 138, 863 A.2d 536, 554 (Pa.,2004)...................................... 8
Com. v. Begley 566 Pa. 239, 304-306, 780 A.2d 605, 644 - 645 (Pa.,2001) ................ 8
Com. v. Jones 546 Pa. 161, 198-199, 683 A.2d 1181, 1199 (Pa.,1996) ...................... 10
Com. v. Chambers 570 Pa. 3, 21, 807 A.2d 872, 883 (Pa.,2002) ................................ 11
DEATH SENTENCE NEVER REQUIRED .................................................................... 11
Jones v. U.S. 527 U.S. 373, 385-387, (U.S.Tex.,1999) ............................................... 11
U.S. v. Hammer 404 F.Supp.2d 676, 686 (M.D.Pa.,2005) .......................................... 12
U.S. v. Haynes 265 F.Supp.2d 914, 918 (W.D.Tenn.,2003) ....................................... 13
U.S. v. Sampson 335 F.Supp.2d 166, 239 -240 (D.Mass., 2004) ................................ 15
RESIDUAL DOUBT ........................................................................................................ 16
Franklin v. Lynaugh 487 U.S. 164, 173, 108 S.Ct. 2320, 2327 (U.S.Tex.,1988) ........ 17
Lockhart v. McCree 476 U.S. 162, 181, 106 S.Ct. 1758, 1769 (U.S.Ark.,1986) ........ 17
U.S. v. Davis 132 F.Supp.2d 455, 456 (E.D.La.,2001) ............................................... 18
U.S. v. Honken 378 F.Supp.2d 1040, 1041 (N.D.Iowa,2004) ..................................... 19
Ruiz v. Norris 868 F.Supp. 1471, 1549 (E.D.Ark.,1994) ............................................ 20
Pennsylvania Suggested Standard Criminal Jury Instructions.......................................... 21
15.2501B (Crim) Criminal Homicide--Finding Lesser Type ....................................... 21
15.2502E (Crim) Death Penalty, Instruction before Hearing ....................................... 23
15.2502F.1 (Crim) Death Penalty, General Instruction--Where Parties Have Stipulated
to Existence of Mitigating Circumstance ...................................................................... 25
15.2502H (Crim) Death Penalty, Process of Decision and Verdict Slip ...................... 29
MERCY
Com. v. Zook 532 Pa. 79, 103-104, 615 A.2d 1, 13 - 14 (Pa.,1992)
Appellant next argues that the trial court's instruction to the jury concerning
sympathy and mercy was inadequate in that the court failed to include the
following suggested language as offered by appellant: “[s]ince mercy may
arise from evidence in mitigation your feeling of mercy standing alone or
taken into consideration with other evidence of mitigation may be sufficient
to permit a sentence of life imprisonment.” Appellant argues that without this
1
language the jury may have been misled into believing that his evidence of
mitigation could not legally support a life sentence, and thus appellant contends
that the jury did not give full consideration to this evidence.
The trial court instructed the jury on this issue in the following manner:
In making the decision whether or not to impose the death penalty upon
Robert Zook, it is entirely proper for you to consider sympathy or mercy as a
reason to impose a life sentence.
However, this sympathy or mercy which you may wish to show Robert Zook
must be founded upon any one or more-must be founded upon-founded upon
evidence any one or more of you find to be a mitigation circumstance.
That's worth repeating. The sympathy or mercy which you may wish to show
Robert Zook must be founded upon evidence any one or more of you find to
be a mitigating circumstance.
*104 We conclude that the above charge given by the court on mercy and
sympathy, while not in appellant's words, was sufficient under our death penalty
sentencing scheme.
The Pennsylvania death penalty statute does not permit a jury to avoid imposition
of a death sentence through the exercise of an unbridled discretion to grant mercy
or leniency. However, the statute does permit**14 a defendant to introduce a
broad range of mitigating evidence that can support the finding of one or more
mitigating circumstances which may outweigh the aggravating circumstance(s)
found by the jury. See Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373
(1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). The
instruction delivered by the court did comport to the statute in this regard.
Therefore, there was no error committed by the trial court in denying appellant's
request and giving this charge.
Com. v. Powell 598 Pa. 224, 257-259, 956 A.2d 406, 426 - 427 (Pa.,2008)
*258 What complicates matters here is that, although the jury rejected the
statutory mitigating circumstances that appellant pursued, it listed “mercy” as a
mitigator and then weighed mercy against the aggravators. Strictly speaking, a
finding of “mercy” unmoored from a specific statutory mitigator should not
trigger a capital jury's weighing process. The “catchall” mitigator in the capital
sentencing scheme only permits a jury to consider “[a]ny other**427 evidence of
mitigation concerning the character and record of the defendant and the
circumstances of the offense.” 42 Pa.C.S. § 9711(e)(8) (emphasis added). We
have previously held, for example, that the testimony of a victim's mother
regarding her personal opposition to the death penalty was inadmissible as a
2
mitigating factor because the personal beliefs of a victim's family member do not
fall within this definition. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831,
852 (2003).
[24] Similarly, “mercy,” as a stand-alone factor, is not a characteristic of the
defendant or a circumstance of the crime, and thus does not fall within the
catchall mitigator or any other specific mitigator. Of course, a jury may
consider mercy or sympathy when weighing specific aggravating and
mitigating factors, but it may not exercise its sense of mercy or sympathy in a
vacuum. By the same token, appellant was entitled to present and argue any
evidence that was relevant and admissible to statutory mitigators in his
attempt to convince the jury to exercise its mercy or sympathy and return a
life sentence. But the jury must correspondingly bottom any such exercise of
mercy or sympathy on the evidence of specific mitigators. See Commonwealth
v. Rainey, 540 Pa. 220, 656 A.2d 1326, 1334 (1995) (citing Commonwealth v.
Zook, 532 Pa. 79, 615 A.2d 1, 13 (1992)). This rule is essential to avoid
arbitrariness in sentencing, as “[i]n the absence of a standard to guide the jury's
expression of mercy and leniency, there would be no guarantee of consistency in
sentencing across *259 cases.” Rainey, 656 A.2d at 1333 (internal quotation
marks omitted).
In this case, since appellant did pursue statutory mitigators, it is not apparent that
considerations of mercy necessarily were inappropriate. We leave for another day
whether the jury should be instructed so as to preclude its finding and weighing
“mercy” if it does not issue a predicate finding of a specific, statutory mitigating
circumstance.
Com. v. Peterkin 511 Pa. 299, 328, 513 A.2d 373, 388 (Pa.,1986)
Appellant claims that the consideration of mercy or leniency is precluded by the
statute's direction that the court instruct the jury that “the verdict must be a
sentence of death if the jury unanimously finds at least one aggravating
circumstance ... and no mitigating circumstance or if the jury unanimously finds
one or more aggravating circumstances which outweigh any mitigating
circumstances.” 42 Pa.C.S. § 9711(c)(1)(iv). Although it is true that the
Pennsylvania death penalty statute does not allow a jury to avoid imposition of a
death sentence through the exercise of an unbridled discretion to grant mercy or
leniency, the statute permits the defendant to introduce a broad range of
mitigating evidence FN19 that can support the finding of one or more mitigating
circumstances which may outweigh the aggravating circumstances found by the
jury. Appeals for mercy and leniency can be founded upon and made through
introduction of evidence along this broad *328 spectrum of mitigating
circumstances. The channelling of considerations of mercy and leniency into
the scheme of aggravating and mitigating **388 circumstances is consistent
with the mandate of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
3
L.Ed.2d 346 (1972), reh. denied, 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163
(1972), that the discretion of the sentencing body in capital cases “be suitably
directed and limited so as to minimize the risk of wholly arbitrary and capricious
action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d
859 (1976), reh. denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).
Com. v. Holcomb 508 Pa. 425, 468-473, (Pa.,1985) (plurality opinion) (overruled on
other grounds –see Com. v. Rice 568 Pa. 182, 199-200 (Pa 2002))
[25] Our statute precludes only an absolute mercy verdict. As such, we do not
believe it violates any of the constitutional guidelines set out by this Court or the
United States Supreme Court. Indeed, to allow such a verdict seems to us to run
afoul of the prohibition against discriminatory imposition in Furman, which
invalidated earlier statutes leaving the sentence to a court's unbridled discretion.
The jury has a full and adequate opportunity to find that the death penalty is not
appropriate in a given case. It is not mandated except in the rare circumstance
where the defendant **858 has not presented or proved any mitigating
circumstances. See, e.g., Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309,
cert. denied, 469 U.S. 971, 105 S.Ct. 370, 87 L.Ed.2d ---- (1984).
Kansas v. Marsh 548 U.S. 163, 175-179, 126 S.Ct. 2516, 2526 - 2527 (U.S.Kan.,2006)
The Kansas death penalty statute satisfies the constitutional mandates of Furman
and its progeny because it rationally narrows the class of death-eligible
defendants **2526 and permits a jury to consider any mitigating evidence
relevant to its sentencing determination. It does not interfere, in a constitutionally
significant way, with a jury's ability to give independent weight to evidence
offered in mitigation.
Consonant with the individualized sentencing requirement, a Kansas jury is
permitted to consider any evidence relating to any mitigating circumstance in
determining the appropriate sentence for a capital defendant, so long as that
evidence is relevant. § 21-4624(c). Specifically, jurors are instructed:
"A mitigating circumstance is that which in fairness or mercy may be considered
as extenuating or reducing the degree of moral culpability or blame or which
justify a sentence of less than death, although it does not justify or excuse the
offense. The determination of what are mitigating circumstances is for you as
jurors to resolve under the facts and circumstances of this case.
"The appropriateness of the exercise of mercy can itself be a mitigating
factor you may consider in determining whether the State has proved beyond
a reasonable doubt that the death penalty is warranted." Id., at 24
(Instruction No. 4). [FN3]
FN3. The "mercy" jury instruction alone forecloses the possibility of Furman-
4
type error as it "eliminate[s] the risk that a death sentence will be imposed in spite
of facts calling for a lesser penalty." Post, at 2543 (SOUTER, J., dissenting).
Jurors are then apprised of, but not limited to, the factors that the defendant
contends are mitigating. Id., at 25-26. They are then instructed that "[e]ach juror
must consider every mitigating factor that he or she individually finds to
exist." Id., at 26.
*177 Kansas' weighing equation, ibid. (Instruction No. 5), merely channels a
jury's discretion by providing it with criteria by which it may determine whether a
sentence of life or death is appropriate. The system in Kansas provides the type of
" 'guided discretion,' " Walton, 497 U.S., at 659, 110 S.Ct. 3047 (citing Gregg,
428 U.S., at 189, 96 S.Ct. 2909), we have sanctioned in Walton, Boyde, and
Blystone.
Indeed, in Boyde, this Court sanctioned a weighing jury instruction that is
analytically indistinguishable from the Kansas jury instruction under review
today. The Boyde jury instruction read:
" 'If you conclude that the aggravating circumstances outweigh the mitigating
circumstances, you shall impose a sentence of death. However, if you determine
that the mitigating circumstances outweigh the aggravating circumstances, you
shall impose a sentence of confinement in the state prison for life without the
possibility of parole.' " 494 U.S., at 374, 110 S.Ct. 1190 (emphasis in original).
**2527 Boyde argued that the mandatory language of the instruction prevented
the jury from rendering an individualized sentencing determination. This Court
rejected that argument, concluding that it was foreclosed by Blystone, where the
Court rejected a nearly identical challenge to the Pennsylvania death penalty
statute. 494 U.S., at 307, 110 S.Ct. 1078. [FN4] In so holding, this Court noted
that the mandatory language of the statute did not prevent the jury from
considering all relevant mitigating evidence. Boyde, supra, at 374, 110 S.Ct.
1190. Similarly here, § 21- 4624(e) does not prevent a Kansas jury from
considering mitigating evidence. Marsh's argument that the *178 Kansas
provision is impermissibly mandatory is likewise foreclosed. [FN5]
FN4. In Blystone, the Pennsylvania statute authorized imposition of a death
sentence if the jury concluded "that the aggravating circumstances outweigh[ed]
the mitigating circumstances present in the
particular crime committed by the particular defendant, or that there [were] no
such mitigating circumstances." 494 U.S., at 305, 110 S.Ct. 1078.
Blystone v. Pennsylvania 494 U.S. 299, 303-308, 110 S.Ct. 1078, 1081 1084 (U.S.Pa.,1990)
[1] [2] We think that the Pennsylvania death penalty statute satisfies the
5
requirement that a capital sentencing jury be allowed to consider and give effect
to all relevant mitigating evidence. Section 9711 does not limit the types of
mitigating evidence which may be considered, and subsection (e) provides a jury
with a nonexclusive list of mitigating factors which may be taken into account-including a "catchall" category providing for the consideration of "[a]ny other
evidence of mitigation concerning the character and record of the defendant and
the circumstances of his offense." See 42 Pa.Cons.Stat. § 9711(e)(8) (1988).
[FN2] Nor is the statute impermissibly "mandatory" as that term was understood
in Woodson or Roberts. Death is not automatically imposed upon conviction for
certain types of murder. It is imposed only after a determination that the
aggravating circumstances outweigh the mitigating circumstances present in the
particular crime committed by the particular defendant, or that there are no such
mitigating **1083 circumstances. This is sufficient under Lockett and Penry.
[FN3]
FN2. The Pennsylvania Supreme Court has construed § 9711(e) to allow
consideration of any relevant mitigating evidence, even that falling outside the
catchall provision of subsection (e)(8). Commonwealth v. Holcomb, 508 Pa. 425,
470, n. 26, 498 A.2d 833, 856, n. 26 (1985) (plurality opinion), cert. denied, 475
U.S. 1150, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986); see also Commonwealth v.
Fahy, 512 Pa. 298, 315- 316, 516 A.2d 689, 698 (1986).
[3] At sentencing, petitioner's jury found one aggravating circumstance present in
this case--that petitioner committed a killing while in the perpetration of a
robbery. No mitigating circumstances were found. [FN4] Petitioner contends that
the mandatory imposition of death in this situation violates the Eighth
Amendment requirement of individualized sentencing since the jury was
precluded from considering whether the severity of his aggravating circumstance
warranted the death sentence. We reject this argument. The presence of
aggravating circumstances serves the purpose of limiting the class of deatheligible defendants, and the Eighth Amendment *307 does not require that these
aggravating circumstances be further refined or weighed by a jury. See
Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568
(1988) ("The use of 'aggravating circumstances' is not an end in itself, but a
means of genuinely narrowing the class of death-eligible persons and thereby
channeling the jury's discretion"). The requirement of individualized sentencing in
capital cases is satisfied by allowing the jury to consider all relevant mitigating
evidence. [FN5] In petitioner's case the jury was specifically instructed to
consider, as mitigating evidence, any "matter **1084 concerning the character or
record of the defendant, or the circumstances of *308 his offense." App. 12-13.
This was sufficient to satisfy the dictates of the Eighth Amendment.
6
UNANIMITY
Jones v. U.S. 527 U.S. 373, 385-387, 119 S.Ct. 2090, 2100 - 2101 (U.S.Tex.,1999)
We first decide the question whether petitioner was entitled to an instruction as to
the consequences of jury deadlock. Petitioner requested, in relevant part, the
following instruction:
“In the event, after due deliberation and reflection, the jury is unable to
agree on a unanimous decision as to the sentence to be imposed, you should
so advise me and I **2098 will impose a sentence of life imprisonment
without possibility of release....
“In the event you are unable to agree on [a sentence of] Life Without Possibility
of Release or Death, but you are unanimous that the sentence should not be less
than Life Without Possibility of Release, you should report that vote to the Court
and the Court will sentence the defendant to Life Without the Possibility of
Release.” App. 14-15.
*380 In petitioner's view, the Eighth Amendment requires that the jurors be
instructed as to the effect of their inability to agree. He alternatively argues that
we should invoke our supervisory power over the federal courts and require that
such an instruction be given.
…
We also have held that a jury cannot be “affirmatively misled regarding its *382
role in the sentencing process.” Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct.
2004, 129 L.Ed.2d 1 (1994). In no way, however, was the jury affirmatively
misled by the District Court's refusal to give petitioner's proposed instruction. The
truth of the matter is that the proposed instruction has no bearing on the jury's role
in the sentencing process. Rather, it speaks to what happens in the event that the
jury is unable to fulfill its role-when deliberations break down and the jury is
unable to produce a unanimous sentence recommendation. Petitioner's argument,
although less than clear, appears to be that a death sentence is arbitrary within the
meaning of the Eighth Amendment if the jury is not given any bit of information
that might possibly influence an individual juror's voting behavior. That
contention has no merit.
Com. v. Williams 581 Pa. 57, 69, 863 A.2d 505, 512 (Pa.,2004)
Appellant's claim that the trial court's penalty phase jury instruction violated Mills
7
v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), has been
previously litigated on direct appeal. Mills requires a death sentence be vacated if
there is a substantial probability the trial court's jury instruction could have led
reasonable jurors to conclude they could only consider those mitigating factors
which they unanimously found to exist. Id., at 384, 108 S.Ct. 1860. On direct
appeal, this **512 Court relied on Commonwealth v. Frey, 520 Pa. 338, 554 A.2d
27 (1989), which held where jury instructions stated a unanimous verdict is
necessary to impose a death *69 sentence, no further instruction is required
regarding the fact that mitigating factors need not be found unanimously,
since Pennsylvania's death penalty statute does not require unanimity in
establishing mitigating circumstances. Williams, at 82. Accordingly, we
rejected appellant's Mills claim, and he is not entitled to revive it under the PCRA.
FN7
See Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 939 n. 2 (2001)
(appellant cannot obtain post conviction relief of claims previously litigated on
direct appeal by alleging ineffectiveness of prior counsel and presenting new
theories of relief).
Com. v. Cox 581 Pa. 107, 138, 863 A.2d 536, 554 (Pa.,2004)
Imposition of the death penalty requires a unanimous jury. The entire jury
must find aggravating circumstances unanimously. Commonwealth v. Jermyn,
551 Pa. 96, 709 A.2d 849, 869 (1998), habeas corpus granted in part sub *138
nom. Jermyn v. Horn, 1998 WL 754567 (M.D.Pa. Oct.27, 1998) (unpublished
memorandum), aff'd, 266 F.3d 257 (3d Cir.2001). On the other hand, single
jurors may find mitigating circumstances individually and personally.**554
Id.; Commonwealth v. Begley, 566 Pa. 239, 780 A.2d 605, 644 (2001). In cases
where a substantial risk exists that jury instructions could be understood as
requiring unanimity as to mitigating circumstances, Mills mandates that the
sentence be vacated. See Commonwealth v. Holland, 556 Pa. 175, 727 A.2d 563
(1999), habeas corpus granted in part sub nom. Holland v. Horn, 150 F.Supp.2d
706 (E.D.Pa.2001).
Com. v. Begley 566 Pa. 239, 304-306, 780 A.2d 605, 644 - 645 (Pa.,2001)
Appellant argues that the trial court erred during the penalty phase of his trial by:
(1) failing to specifically instruct the jury that an individual juror could find the
existence of a mitigating circumstance even if the other jurors did not find it; and
(2) suggesting to the jury that it could only find the existence of a mitigating
circumstance if all of the jurors agreed that it existed. Appellant contends that the
trial court's inadequate and erroneous jury instruction entitles him to a new
penalty phase hearing under Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100
L.Ed.2d 384 (1988). We agree.
8
[77] In death penalty deliberations, there is no requirement of unanimity as to the
jurors' findings on the particular mitigating factors presented by the defense. In
Mills v. Maryland, the United States Supreme Court held that jury instructions in
a death penalty case which create a “substantial probability” that jurors would
erroneously believe that they must unanimously agree on the existence of a
mitigating circumstance before considering it in the weighing process violate the
Eighth and Fourteenth Amendments to the United States Constitution. Id. at 384,
108 S.Ct. 1860. The United States Supreme Court has since clarified the standard
it enunciated in Mills, holding that the proper inquiry is whether there is a
“reasonable likelihood” that the jury applied the *305 challenged jury instruction
in a way that prevented it from considering constitutionally relevant mitigating
evidence. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d
316 (1990).
[78] [79] A trial court's failure to specifically instruct the jury that unanimity is
not required in order for them to find that a mitigating circumstance existed does
not, in and of itself, create a reasonable likelihood that jurors would erroneously
infer **645 such a requirement. Commonwealth v. Holland, 556 Pa. 175, 185, 727
A.2d 563, 568 (1997); Commonwealth v. Banks, 540 Pa. 143, 149-50, 656 A.2d
467, 470 (1995). However, where a jury has been instructed that unanimity was
required when finding mitigating circumstances, a death sentence must be
vacated. Commonwealth v. Billa, 521 Pa. 168, 186, 555 A.2d 835, 844 (Pa.1989);
see also Holland, 556 Pa. at 185, 727 A.2d at 568 (“where there is a high risk that
instructions could be understood as requiring unanimity as to mitigating
circumstances, the sentence must be vacated”).
In the instant case, the trial court instructed the jury as follows:
Your verdict must be a sentence of death if you unanimously find, that is, all of
you find at least one aggravating and no mitigating circumstance or if you
unanimously find one or more aggravating circumstances which outweigh any
mitigating circumstance.
If you do not all agree, that means you cannot reach the unanimous verdict
on one or the other of these findings, then the only verdict that you may
return is a sentence of life imprisonment.
N.T., 7/17/96, at 1170-71. This Court has previously reviewed this instruction and
found that it, standing alone, does not violate Mills. Commonwealth v. Banks, 540
Pa. 143, 149-50, 656 A.2d 467, 470 (1995). Following the above instruction,
however, the trial court discussed the verdict slip with the jury, explaining as
follows:
You will remember I called upon you to weigh the aggravating versus the
mitigating circumstance.
9
*306 The aggravated circumstance unanimously found is, and you designate that
aggravating circumstance. The mitigating circumstances found by you
unanimously are or is.
Two [if], the mitigating circumstance is not outweighed by the aggravating
circumstance, then you go on to provide what you found unanimously to be the
mitigating circumstance or circumstances and the aggravating circumstance
unanimously found.
N.T., 7/19/96, at 1174-75 (emphasis added).
We believe that the above-quoted excerpt from the trial court's jury instructions,
when considered in conjunction with the fact that the trial court did not explicitly
inform the jurors that any one or more of them could find the existence of a
mitigating circumstance, created a reasonable likelihood that the jurors concluded
that they needed to unanimously agree that a mitigating circumstance existed in
order to consider that mitigating circumstance.FN33 Given this uncertainty, we
must vacate the judgment of sentence and remand this matter to the trial court for
a new sentencing hearing.FN34
Com. v. Jones 546 Pa. 161, 198-199, 683 A.2d 1181, 1199 (Pa.,1996)
Appellant submits that a sentence of life does not require unanimity. Appellant
submits further that the instruction given effectively compels those jurors who are
in favor of a life sentence, but are in the minority, to compromise their beliefs and
agree to the imposition of a sentence of death. Appellant's claim is, however,
without merit.
The jury's verdict in the penalty phase of a first degree murder case, whether it be
a sentence of life or death, must, just as is true of any verdict in a criminal case,
be unanimous. Where the jury is unable to reach a unanimous agreement as
to the sentence, the court must impose a sentence of life. 42 Pa.S.C. §
9711(c)(1)(v). However, for the jury to return a verdict, it must necessarily be a
unanimous verdict. Appellant's argument to the contrary, that the jury could
impose a life sentence in the absence of a unanimous agreement, is nonsensical.
The charge as given does nothing more than inform the jury that it is free to reach
a verdict of a life sentence or one of death.
Subsection (c)(1)(iv) of our death penalty statute provides that a jury must impose
a sentence of death if they unanimously find at least one aggravating circumstance
and no mitigating circumstances or unanimously find one or more aggravating
circumstances which outweigh any mitigating circumstances,*199 and that in all
other cases, the verdict must be a sentence of life imprisonment. 42 Pa.S.C. §
9711(c)(1)(iv). Perhaps Appellant here interprets this final statement of subsection
(c)(1)(iv) to somehow permit a non-unanimous verdict of life imprisonment.
10
While logic alone belies such an interpretation since a “verdict” by its very nature
is a unanimous decision of a jury, subsection (c)(1)(v) also belies such an
interpretation as it mandates that a court impose a life sentence where the jury is
unable to reach a unanimous agreement. Indeed, the court instructed the jury
regarding this very consequence of their being deadlocked. For these reasons, we
find that Appellant's claim lacks merit.
Com. v. Chambers 570 Pa. 3, 21, 807 A.2d 872, 883 (Pa.,2002)
The concerns articulated in Mills and Holland are implicated in the present case.
It is well settled that while a single juror in this Commonwealth can prevent a
death sentence, a single juror can never compel a death sentence. Commonwealth
v. Hackett, 534 Pa. 210, 627 A.2d 719, 725 (1993). Pursuant to 42 Pa.C.S. §
9711(c)(1)(iv), the jury may only impose a sentence of death if: (1) the jury
unanimously finds at least one aggravating circumstance and no juror finds any
mitigating circumstance; or (2) each juror finds that the aggravating
circumstances found by the entire jury outweigh the mitigating circumstances
found by that juror. In the *21 instant matter, parts of the above-quoted
instruction are correct. The first sentence indicates that the jury does not have to
find mitigating circumstances unanimously, which accurately reflects the law.
The language further informs the jurors that **883 they must find an aggravating
circumstance unanimously to consider it, which is correct. However, the
instruction, when read as a whole, seems to indicate to the jurors that, once they
have unanimously found an aggravating circumstance, before they can weigh
aggravating circumstances against any mitigating circumstances, they must all
find the existence of at least one mitigating circumstance. This is not a correct
articulation of the law and is the exact situation that Mills mandates we dare not
risk. Therefore, the position of Chambers has arguable merit.
DEATH SENTENCE NEVER REQUIRED
Jones v. U.S. 527 U.S. 373, 385-387, 119 S.Ct. 2090, 2100 - 2101 (U.S.Tex.,1999)
After instructing the jury on the aggravating and mitigating factors and explaining
the process of weighing those factors, the District Court gave the following
instructions pertaining to the jury's sentencing recommendation:
“Based upon this consideration, you the jury, by unanimous vote, shall
recommend whether the defendant should be sentenced to death, sentenced to life
imprisonment without the possibility of release, or sentenced to some other lesser
sentence.
11
“If you unanimously conclude that the aggravating factors found to exist
sufficiently outweigh any mitigating factor or factors found to exist, or in the
absence of any mitigating factors, that the aggravating factors are themselves
sufficient to justify a sentence of death, you may recommend a sentence of death.
Keep in mind, however, that regardless of your findings with respect to
aggravating and mitigating factors, you are never required to recommend a
death sentence.
“If you recommend the imposition of a death sentence, the court is required to
impose that sentence. If you recommend a sentence of life without the possibility
of release, the court is required to impose that sentence. If you recommend that
some other lesser sentence be imposed, the court is required to impose a sentence
that is authorized by the law. In deciding what recommendation to make, you are
not to be concerned with the question of what sentence the defendant might
receive in the event you determine not to recommend a death sentence or a
sentence of life without the possibility of release. That is a matter for the court to
decide in the event you conclude that a sentence of death or life without the
possibility of release should not be recommended.” App. 43-44.
…
Petitioner's argument-which depends on the premise that the instructions and
decision forms led the jury to believe that it did not have to recommend
unanimously a lesser *390 sentence-falls short of satisfying even the first
requirement of the plain-error doctrine, for we cannot see that any error occurred.
U.S. v. Hammer 404 F.Supp.2d 676, 686 (M.D.Pa.,2005)
FN4. Part Six of the Special Findings Form Regarding the Punishment to be
Imposed Upon David Paul Hammer for the Killing of Andrew Marti required
each juror to sign an Understanding which stated as follows:
We understand that we are to consider whether the aggravating factor or factors
unanimously found by us to exist sufficiently outweigh any mitigating factor or
factors found to exist to justify a sentence of death, or in the absence of mitigating
factors, whether the aggravating factor or factors are themselves sufficient to
justify a sentence of death. We also understand that a finding with respect to a
mitigating factor may be made by any one or more of the members of the jury,
and any member of the jury who finds the existence of a mitigating factor may
consider such factor established for purposes of his or her weighing of the
aggravating factor or factors and mitigating factor or factors regardless of the
number of jurors who concur that a particular mitigating factor has been
established. We also understand that a jury is never required to impose a
death sentence and that a sentence of death cannot be imposed except by
12
unanimous vote.
U.S. v. Haynes 265 F.Supp.2d 914, 918 (W.D.Tenn.,2003)
The legislative history of the FDPA buoys the finding that a jury is free *918 to
exercise its discretion not to impose the death penalty, even after weighing the
aggravating and mitigating factors, in deciding whether any imbalance is
sufficient to justify a death sentence. In 1993, the Senate introduced two versions
of what is now known as § 3593(e), one by Senator Biden and another by
Senators Hatch and Dole, as part of Title II of S. 1488, then entitled the “Violent
Crime Control and Law Enforcement Act of 1993.” Senator Biden's version
mirrored § 3593(e) except for the addition of a final sentence stating that
“[t]he jury or the court, if there is no jury, regardless of its findings with
respect to aggravating and mitigating factors, is never required to impose a
death sentence and the jury shall be so instructed.” 139 Cong. Rec. S12396
(daily ed., Sep. 23, 1993).
Senators Hatch and Dole offered an alternative version which mandated a death
sentence-and eliminated jury discretion-as soon as the jury found that the
aggravating factors objectively outweighed any mitigating factors. It stated:
If, in the case of [an offense for which the death penalty is provided and for which
an aggravating factor required to be considered is found to exist], the jury ... shall
then consider whether the aggravating factor or factors found to exist ... outweigh
any mitigating factor or factors. The jury ... shall recommend a sentence of death
if it unanimously finds at least one aggravating factor and no mitigating factor or
if it finds one or more aggravating factors which outweigh any mitigating factors.
139 Cong. Rec. S.293 (January 21, 1993) (emphasis added). This language was
premised upon the mandatory language of the Pennsylvania statute at issue in
Blystone v. Pennsylvania, which provided that “ ‘the verdict must be a sentence of
death if the jury unanimously finds at least one aggravating circumstance ... and
no mitigating circumstance [or] if the jury unanimously finds one or more
aggravating circumstances which outweigh any mitigating circumstances.’ ”
Blystone, 494 U.S. at 311 & n. 2, 110 S.Ct. 1078 (quoting 42 Pa. Cons.Stat. §
9711(c)(1)(iv) (1988)) (emphasis added). Because of this mandatory death penalty
language, jury discretion would end after the initial balancing of aggravating
versus mitigating factors, without any option to decide whether the imbalance in
favor of the death penalty was “sufficient” to “justify” the death penalty.
…
This legislative history reveals that both branches of Congress expressly
considered, and ultimately rejected, statutory language which mandates
13
imposition of the death penalty once the jury found that aggravating factors
outweigh any mitigating factors. Instead, Congress adopted language allowing
juries to exercise discretion to reject imposing a death sentence even if
aggravating factors outweighed mitigating factors should this imbalance not be
“sufficient” to “justify” a death sentence. While it is true that the Hatch/Biden
Amendment removed language stating that “[t]he jury ... regardless of its findings
with respect to aggravating and mitigating factors, is never required to impose a
death sentence and the jury shall be so instructed,” the legislative history is silent
as to why this amendment was offered, let alone adopted. Indeed, while it is
possible that the amendment was offered and adopted because Congress did not
want juries to receive such an instruction, it is just as likely that the amendment
was offered and adopted because the jury instruction language was deemed
redundant or an unnecessary encroachment into the domain of federal district
courts.
[4] In Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370
(1999), the Supreme Court addressed whether the district court's jury instructions
in an FDPA case were proper. Although the specific issue addressed in Jones was
whether the jury instructions adequately conveyed the law with regard to jury
deadlock, in affirming that the jury instructions were not in error, the Court
reviewed and ultimately affirmed the use of jury instructions containing the type
of discretionary language sought by Defendant in the case sub judice. The
pertinent portion of the jury instruction affirmed by the Court read as follows:
After you have completed your findings as to the existence or absence of any
mitigating factors, you will then engage in a weighing process. In determining
whether a sentence of death is appropriate, you must weigh any aggravating
factors that you unanimously find to exist-whether statutory or nonstatutory*922 against any mitigating factors that any of you find to exist. You shall consider
whether all the aggravating factors found to exist sufficiently outweigh all the
mitigating factor or factors found to exist to justify a sentence of death, or, in the
absence of a mitigating factor, whether the aggravating factor or factors alone are
sufficient to justify a sentence of death. Based upon this consideration, you the
jury, by unanimous vote, shall recommend whether the defendant should be
sentenced to death, sentenced to life imprisonment without the possibility of
release, or sentenced to some other lesser sentence.
If you unanimously conclude that the aggravating factors found to exist
sufficiently outweigh any mitigating factor or factors found to exist, or in the
absence of any mitigating factors, the aggravating factors are themselves
sufficient to justify a sentence of death, you may recommend a sentence of death.
Keep in mind, however, that regardless of your findings with respect to
aggravating and mitigating factors, you are never required to recommend a
death sentence.
If you recommend the imposition of a death sentence, the court is required to
14
impose that sentence. If you recommend a sentence of life without the possibility
of release, the court is required to impose that sentence. If you recommend that
some other lesser sentence be imposed, the court is required to impose a sentence
that is authorized by the law.
United States v. Jones, 132 F.3d 232, 243-44 (5th Cir.1998), aff'd, Jones v. United
States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370. The Court finds that this
instruction is sufficient to convey to the jury the discretion which they may
exercise. Accordingly, the Court adopts the instruction affirmed by the Supreme
Court in Jones.
A number of district courts issuing jury instructions in FDPA cases have
employed similar discretionary jury instructions. For example, in United States v.
McVeigh, No. 96-CR-68-M, 1997 WL 312609 at *43 (D. Col. June 12, 1997), the
judge instructed the jury that “[w]hatever findings you make with respect to
aggravating and mitigating factors, a jury is never required to impose a death
sentence.” This type of instruction has also been proffered in United States v. Len
Davis and Paul Hardy, No. 94-381 (E.D.La.); United States v. Orlando Hall, No.
4:94-CR-121-Y (N.D. Tex.); United States v. Bruce Webster, No. 4:94-CR-121-Y
(N.D.Tex.); United States v. Anthony Battle, No. 1:95 CR 528 (N.D. Ga.); United
States v. Bountaem Chanthadara, 94-10128-01 (D.Kansas); United States v.
Phouc Nguyen, 94-10128-01 (D.Kansas); United States v. Lamond Garrett, No.
CR499-133 (S.D.Ga.); United States v. Willis Haynes, Crim. No. PJM 98-0520
(D.Md.). None of the instructions offered in these cases has been reversed on
appeal.
U.S. v. Sampson 335 F.Supp.2d 166, 239 -240 (D.Mass., 2004)
A final dispute regarding the weighing process concerned what the defendant
referred to as a “mercy instruction” and the government referred to as a
“nullification instruction.” The defendant requested that the court instruct the jury
that it was never required to impose the death penalty. The government objected
to this instruction, arguing that it would encourage jury nullification. Unlike the
Drug Kingpin Act on which it was modeled, the FDPA does not explicitly require
such an instruction. Compare 21 U.S.C. § 848(k) (“The jury ... regardless of its
findings with respect to aggravating and mitigating factors, is never required to
impose a death sentence and the jury shall be so instructed.”) with 18 U.S.C. §
3593.
To the extent there are no circumstances in which the law mandates that a juror
find that the aggravating factors sufficiently outweigh the mitigating factors to
justify a sentence of death, the defendant was correct that a juror is, as a practical
matter, never required to impose the death penalty. However, the defendant failed
to identify a situation in which it would be appropriate for a juror to be persuaded
15
beyond a reasonable doubt that the aggravating factors sufficiently outweigh the
mitigating factors to justify a sentence of death yet still refuse to vote for a death
sentence. The statute directs the jury to make a unanimous recommendation
“[b]ased upon this consideration” of aggravating and mitigating factors. 18 U.S.C.
§ 3593(e). The statute does not identify any other permissible considerations. To
permit the jury to consider matters other than the relative weight of aggravating
and mitigating factors found during jury deliberations risks the arbitrary and
capricious imposition of death sentences based on unspecified criteria.
Accordingly, the court instructed the jury that:
the law never requires that any or all of you find that the death sentence is
justified. Any one of you may decline to impose the death penalty. If you
decide that the prosecution has not proven beyond a reasonable doubt that
the death penalty is justified, you do not have to give a reason for that
decision. The law does require that you follow the process *240 that I've
explained and then make a reasoned moral judgment.
Dec. 19, 2003 Tr. at 71. This instruction informed jurors that if they reached the
selection stage, the decision whether to impose a death sentence was entirely for
each of them to make because the law never compels a death sentence.
However, the court also instructed the jurors that:
If each and every one of you find that the prosecution has proven beyond a
reasonable doubt that the aggravating factors found to exist sufficiently outweigh
the mitigating factors found to exist to make death the appropriate penalty for Mr.
Sampson for the carjacking resulting in the death of Philip McCloskey, you will
check “All 12 jurors say Yes.” You will have thus decided that Mr. Sampson will
be executed for that crime, and that is the sentence that I will impose.
Id. at 73. Therefore, the jurors were informed that if they unanimously decided
that the government had proven beyond a reasonable doubt that the government
had satisfied the statutory standard, they were obliged to say so and the death
penalty would be imposed.
RESIDUAL DOUBT
Com. v. Fletcher 561 Pa. 266, 296, 750 A.2d 261, 277 (Pa.,2000) (overruled on other
grounds)
The only evidence that the trial court prohibited appellant from presenting during
the penalty phase was statements that he was not guilty of the murder for which
he had just been convicted. This limitation was proper. Franklin v. Lynaugh, 487
16
U.S. 164, 173-74, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988)(there is no
constitutional requirement that a convicted murderer be permitted to argue
residual doubt concerning guilt as a mitigating factor); Commonwealth v. Harris,
550 Pa. 92, 109-10, 703 A.2d 441, 449-50 (1997), cert. denied, 525 U.S. 1015,
119 S.Ct. 538, 142 L.Ed.2d 447 (1998)(counsel was not ineffective for failing to
present the residual doubt evidence*296 that two prior juries were hung on the
question of appellant's guilt; such evidence has no relevance to the imposition of
the penalty). Because the trial court allowed appellant to present all relevant
mitigating circumstances, no relief is warranted.
Franklin v. Lynaugh 487 U.S. 164, 173, 108 S.Ct. 2320, 2327 (U.S.Tex.,1988)
At the outset, we note that this Court has never held that a capital defendant has a
constitutional right to an instruction telling the jury to revisit the question of his
identity as the *173 murderer as a basis for mitigation. Petitioner suggests that our
discussion of the “residual doubt” question in Lockhart v. McCree, 476 U.S. 162,
180-182, 106 S.Ct. 1758, 1768-1770, 90 L.Ed.2d 137 (1986), supports his
position that he has such an entitlement. See Tr. of Oral Arg. 6-7; Brief for
Petitioner 9. But all that this aspect of the Lockhart opinion stands for is the
simple truism that where “States are willing to go to allow defendants to
capitalize on ‘residual doubts,’ ” such doubts will inure to the defendant's benefit.
Lockhart, supra, at 181, 106 S.Ct., at 1769. Lockhart did not endorse capital
sentencing schemes which permit such use of “residual doubts,” let alone suggest
that capital defendants have a right to demand jury consideration of “residual
doubts” in the sentencing phase. Indeed, the Lockhart dissent recognized that
there have been only a “few times in which any legitimacy has been given” to the
notion that a convicted capital defendant has a right to argue his innocence during
the sentencing phase. 476 U.S., at 205-206, 106 S.Ct., at 1781-1782
(MARSHALL, J., dissenting). The dissent also noted that this Court has not
struck down the practice in some States of prohibiting the consideration of
“residual doubts” during the punishment trial.FN6 Ibid.
Lockhart v. McCree 476 U.S. 162, 181, 106 S.Ct. 1758, 1769 (U.S.Ark.,1986)
Another interest identified by the State in support of its system of unitary juries is
the possibility that, in at least some capital cases, the defendant might benefit at
the sentencing phase of the trial from the jury's “residual doubts” about the
evidence presented at the guilt phase. The dissenting opinion in the Court of
Appeals also adverted to this interest:
“[A]s several courts have observed, jurors who decide both guilt and penalty are
likely to form residual doubts or ‘whimsical’ doubts ... about the evidence so as to
17
bend them to decide against the death penalty. Such residual doubt has been
recognized as an extremely effective argument for defendants in capital cases. To
divide the responsibility ... to some degree would eliminate the influence of such
doubts.” 758 F.2d, at 247-248 (J. Gibson, J., dissenting) (citations omitted).
Justice MARSHALL's dissent points out that some States which adhere to the
unitary jury system do not allow the defendant to argue “residual doubts” to the
jury at sentencing. But while this may justify skepticism as to the extent to which
such States are willing to go to allow defendants to capitalize on “residual
doubts,” it does not wholly vitiate the claimed interest. Finally, it seems obvious
to us that in most, if not all, capital cases much of the evidence adduced at the
guilt phase of the trial will also have a bearing on the penalty phase; if two
different juries were to be required, such testimony would have to be presented
twice, once to each jury. As the Arkansas Supreme Court has noted, “[s]uch
repetitive trials could not be consistently fair to the State and perhaps not even to
the accused.” Rector, supra, 280 Ark., at 396, 659 S.W.2d, at 173.
U.S. v. Davis 132 F.Supp.2d 455, 456 (E.D.La.,2001)
“Residual doubt” has been defined as “a lingering uncertainty about facts, a
state of mind that exists somewhere between ‘beyond a reasonable doubt’
and ‘absolute certainty.’ ” Franklin v. Lynaugh, 487 U.S. 164, 188, 108 S.Ct.
2320, 101 L.Ed.2d 155 (1988). Having considered the record, the memoranda, the
oral argument and the law, the Court concludes that “residual doubt” is an
appropriate consideration in mitigation and it is not proscribed by law. The
defendants will therefore be permitted to raise the issue of residual doubt in the
presentation of the penalty phase. Likewise, the Court will include, if requested, a
residual doubt instruction in the Court's instructions to the jury.
While the issue of “residual doubt” has been discussed extensively in both state
and federal courts in connection with capital cases in state courts, no clear
consensus has evolved as to whether defendants have an absolute “right” to
present such a defense. Nevertheless, “residual doubt” arguments have frequently
been made in state capital trials. In the Fifth Circuit, and in our most closely
related sister circuit, the Eleventh, these arguments have been accepted as a
legitimate defense strategy and have not been proscribed by any federal law. With
regard to 18 U.S.C. § 3592, the applicable federal statute for these proceedings,
the Court also concludes that the concept of “residual doubt” falls within the
scope of mitigating factors authorized. The Court has considered the policy
reasons, for and against, permitting a “residual doubt” argument in the penalty
phase and concludes the argument should be permitted.
18
U.S. v. Honken 378 F.Supp.2d 1040, 1041 (N.D.Iowa,2004)
The defendant has now made clear, on the record, that, should this matter proceed
to the penalty phase, he requests a penalty-phase instruction informing jurors
that they may consider any “residual doubts” concerning the defendant's
guilt as a mitigating factor in determining whether to impose the death
penalty*1041 or life imprisonment. The defendant relies primarily on United
States v. Davis, 132 F.Supp.2d 455 (E.D.La.2001), in support of his request. The
government strenuously objects to such an instruction.
[2] The court recognizes that the Eighth Amendment to the United States
Constitution does not require an instruction on “residual doubt” at the penalty
phase. Franklin v. Lynaugh, 487 U.S. 164, 172-75, 108 S.Ct. 2320, 101 L.Ed.2d
155 (1988). However, the court finds that a much closer question is presented on
whether or not “residual doubt” arguments and instructions are authorized or
required by statute, such as 18 U.S.C. § 3592 or the comparable provisions in the
death-penalty statute at issue here, 21 U.S.C. § 848. The court finds no guidance
from the United States Supreme Court or the Eighth Circuit Court of Appeals on
that question. However, the court ultimately finds the decision in United States v.
Davis, 132 F.Supp.2d 455 (E.D.La.2001), to be persuasive on that question.
Moreover, the court concludes that it could add nothing by further comment.
Therefore, the court adopts the reasoning and analysis in Davis as applicable to
the death penalty provisions of 21 U.S.C. § 848, and holds that the defendant will
be permitted to raise the issue of “residual doubt” in the presentation of the
penalty phase, if any, and that the court will include a “residual doubt” instruction
in the court's penalty-phase instructions to the jury. See Davis, 132 F.Supp.2d at
456 (so concluding). The government's objection to such an instruction is
overruled.
U.S. v. Foster 2004 WL 868649, 1 (D.Md.) (D.Md.,2004) (This is my mom’s
opinion!)
Denial of the Rule 29 motion, however, does not mean that a juror should not
consider any lingering doubt he or she may have concerning Mr. Taylor's
responsibility for the murder of Mr. McManus. The court agrees with the analysis
in United States v. Davis, 132 F.Supp.2d 455 (E.D.La.2001). While the
Constitution does not require that the jury be permitted to consider residual doubt
as a mitigating factor, see Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320,
2327, 101 L.Ed.2d 155 (1988), neither does the Constitution forbid such
consideration. Further, even if residual doubt is not considered to fall within the
traditional definition of a mitigating factor, see id. at 2327; cf. Davis, 132
F.Supp.2d at 458, 464 n. 1, the statutory list of factors in 18 U.S.C. § 3592 is not
exclusive. See id. at 464. Residual doubt as to guilt is a powerful, and
appropriate, factor for a jury to consider before imposing the ultimate and
irrevocable sanction of death. See Tarver v. Hopper, 169 F.3d 710, 715-16 (11th
19
Cir.1999). Accordingly, the jury will be instructed that they may consider residual
doubt as a mitigating factor concerning the murder of Robert McManus.FN1
Ruiz v. Norris 868 F.Supp. 1471, 1549 (E.D.Ark.,1994)
Petitioners contend that they were entitled to have the court issue the following
instruction to the jury:
You may consider as a mitigating circumstance any residual or lingering
doubt you may have about Mr. Ruiz's guilt, if in fact you have such a doubt.
Lingering or residual doubt differs from reasonable doubt. Mr. Ruiz has
already been found guilty beyond a reasonable doubt. Yet, some lingering or
residual doubt may still exist. It may reflect a mere possibility and may exist
only in the mind of one juror or several. This residual or lingering doubt is
the absence of absolute certainty about guilt, and can be a valid reason for
not imposing the penalty of death.
Unless each and every one of you can say with certainty that you do not
possess a residual or lingering doubt as to the guilt of Paul Ruiz, then you
must consider this residual doubt as a mitigating circumstance that is to be
considered by you in determining the appropriate punishment in this case.”
Tr. 1468. A similar instruction was offered for Mr. Denton. Tr. 1467. The Court
denied the instructions. Tr. 1460. Arguing that the need for higher standards and a
higher degree of reliability in capital cases, petitioners contend that this refusal
was error.
This issue has been addressed by the United States Supreme Court:
At the outset, we note that this Court has never held that a capital defendant has a
constitutional right to an instruction telling the jury to revisit the question of his
identity as the murderer as a basis for mitigation. Petitioner suggests that our
discussion of the ‘residual doubt’ question in Lockhart v. McCree, 476 U.S. 162,
180-182, 106 S.Ct. 1758, 1768-1770, 90 L.Ed.2d 137 (1986), supports his
position that he has such an entitlement ... Lockhart did not endorse capital
sentencing schemes which permit such use of ‘residual doubts,’ let alone suggest
that capital defendants have a right to demand jury consideration of ‘residual
doubts' in the sentencing phase.
Franklin v. Lynaugh, 487 U.S. 164, 173, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155
(1988). In light of that language, this Court concludes that there is no
constitutional right to a “residual doubt” jury instruction. Petitioners' contention is
20
without merit.
Pennsylvania Suggested Standard Criminal Jury Instructions
Second Edition
Date of Last Revision - May 2008
Topic
15.2501B (Crim) Criminal Homicide--Finding Lesser Type
Instruction
1. I have defined the elements of the [five] [number] types of criminal
homicide that you might possibly find in this case. Beginning with the
most serious, they are, in order of seriousness, [first-degree murder]
[second-degree murder] [third-degree murder] [voluntary manslaughter]
[involuntary manslaughter]. You have the right to bring in a verdict finding
the defendant not guilty or finding [him] [her] guilty of one of these types
of criminal homicide.
[2. It may help you remember each type of criminal homicide if I review
some highlights. [Murder requires malice, manslaughter does not. Firstdegree murder requires a specific intent to kill. Second-degree murder is
felony murder. Third-degree murder is any other murder. Voluntary
manslaughter is basically an intentional killing for which malice is not
proven because of [passion and provocation] [an unreasonable mistaken
belief in justifying circumstances]. Involuntary manslaughter requires a
reckless or grossly negligent killing.] [give specifics].]
PA-JICRIM 15.2501B
Advisory
Committee
Notes
In death penalty cases, lesser included offense instructions on verdicts
supportable by the evidence are a necessary component of due process.
Hopper v. Evans, 456 U.S. 605 (1982); Beck v. Alabama, 447 U.S. 625
(1980).
PA-JICRIM 15.2501B
Case(s)
Hopper v. Evans:
Beck held that due process requires that a lesser included offense
instruction be given when the evidence warrants such an instruction. . . The
federal rule is that a lesser included offense instruction should be given “if
the evidence would permit a jury rationally to find [a defendant] guilty of
the lesser offense and acquit him of the greater.” Keeble v. United States,
412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973).
Hopper v. Evans 456 U.S. 605, 612, 102 S.Ct. 2049, 2053 (U.S.Ala.,1982)
21
In Beck v. Alabama, supra, we held that the sentence of death could not be
imposed after a jury verdict of guilt of a capital offense, when the jury was
not permitted to consider a verdict of guilt of a lesser included noncapital
offense, provided that the evidence would have supported such a verdict.
The petitioner in Beck was also involved in a robbery**2052 in the course
of which a murder occurred. He contended, however, that he did not kill
the victim or intend his death. Instead he claimed that while he was
attempting to tie up the victim, an 80-year-old man, his accomplice
unexpectedly struck and killed the man. The State conceded that, on the
evidence in that case, Beck would have been entitled to an instruction on
the lesser included, noncapital offense of felony murder except for the
preclusion clause. Id., at 629-630, 100 S.Ct., at 2385-2386.
Our opinion in Beck stressed that the jury was faced with a situation in
which its choices were only to convict the defendant and sentence him to
death or find him not guilty. The jury could not take a third option of
finding that although the defendant had committed a grave crime, it was
not so grave as to warrant capital punishment. We concluded that a jury
might have convicted Beck but also might have rejected capital punishment
if it believed Beck's testimony. On the facts shown in Beck, we held that
the defendant was entitled to a lesser included offense instruction as a
matter of due process.
Hopper v. Evans 456 U.S. 605, 609, 102 S.Ct. 2049, 2052 (U.S.Ala.,1982)
(In Hopper, Court held that evidence did not permit jury rationally to find
defendant guilty of lesser offense)
[W]here defendant testified, in murder trial, that, if necessary, he was
always prepared to kill, and defendant admitted to shooting his victim in
back in course of armed robbery, defendant was not prejudiced in any way
by the fact that, under Alabama statute thereafter found to be
unconstitutional, jury was required to convict defendant of capital offense
charged or return verdict of not guilty and was not allowed to consider any
lesser included offenses.
Hopper v. Evans 456 U.S. 605, 102 S.Ct. 2049 (U.S.Ala.,1982)
The uniqueness of respondent's claims has been outlined in the statement
of facts, but those facts merit emphasis for they bear on the key issue of
whether there was any evidentiary basis to support a conviction of a lesser
included offense. From the outset, beginning with his appearance before
the grand jury, respondent made it crystal clear that he had killed the
victim, that he intended to kill him, and that he would do the same thing
again in similar circumstances. At trial, he testified that he always tried to
22
choose places to rob so that he could avoid killing people. However, he
also testified that, if necessary, he was always prepared to kill. App. 19-21.
Respondent was convicted, under Ala.Code § 13-11-2(a)(2) (1975), of
robbery when the victim was intentionally killed.
In this Court, respondent contends that he could have been convicted under
Ala.Code § 13-1-70 (1975), which makes a “homicide ... committed in the
perpetration of, or the attempt to perpetrate, any ... robbery” a noncapital
offense. Respondent concedes that a conviction is warranted under this
section only when a defendant lacks intent to kill. Brief for Respondent 26.
Respondent's current claim is a curious-even cynical-new version of the
claim of self-defense. His testimony given before the grand jury was:
“I was going to shoot him if he reached for a-a firearm, yeah. Uh, of
course, our intention always, you know, never to hurt anybody, if you don't
have to. That's- *613 that's stupidity, you know. But if it ever came down
to a case of, you know, of me or somebody else, well that's-that's pure
instinct. That's self-preservation. I'm going to fire ; I'm not going to waste
any time ....”
App. 19 (emphasis supplied).
On the basis of this testimony, he implies that he had no malice toward the
victim nor **2054 intent to kill him. Of course, it can be argued that this
case is not one of a killer with affirmative, purposeful malice; his claim
bears some resemblance to that of a hired killer who, bearing no ill will or
malice toward his victim, simply engages in the pursuit of his chosen
occupation. Respondent thus blandly-even boldly-proclaims that, although
he will try not to kill his victims, he will do it if he finds it to be an
occupational necessity.
It would be an extraordinary perversion of the law to say that intent to kill
is not established when a felon, engaged in an armed robbery, admits to
shooting his victim in the back in the circumstances shown here. The
evidence not only supported the claim that respondent intended to kill the
victim, but affirmatively negated any claim that he did not intend to kill the
victim. An instruction on the offense of unintentional killing during this
robbery was therefore not warranted. See Fulghum, supra.
Hopper v. Evans 456 U.S. 605, 612-613, 102 S.Ct. 2049, 2053 2054 (U.S.Ala.,1982)
Topic
15.2502E (Crim) Death Penalty, Instruction before Hearing
23
Instruction
1. You have found the defendant guilty of first-degree murder. We are now
going to hold a sentencing hearing. Counsel may present additional
evidence and make further arguments. Then you will decide whether to
sentence the defendant to death or life imprisonment.
2. The sentence you impose will depend on whether you find any of the
things that the Pennsylvania Sentencing Code calls aggravating or
mitigating circumstances. Aggravating circumstances must be proven by the
Commonwealth beyond a reasonable doubt while mitigating circumstances
must be proven by the defendant by a preponderance of the evidence, that
is, by the greater weight of the evidence.
[3. It may help you to have in mind some of the things that the Pennsylvania
Sentencing Code says are aggravating and mitigating circumstances.
[enumerate potentially relevant aggravating and mitigating circumstances.]
Only the circumstances I have identified for you as aggravating
circumstances may be considered by you to be aggravating
circumstances. Mitigating circumstances, however, also include any
other mitigating matters concerning the character, background, or
record of the defendant or the circumstances of [his] [her] offense.]
PA-JICRIM 15.2502E
Advisory
The trial court must keep in mind that the Supreme Court of the United
Committee States views the process of a jury's consideration of aggravating
Notes
circumstances in a capital prosecution as one in which additional elements
of an offense are being proven. As the finding of aggravating circumstances
may expose a defendant to the increased punishment of death, they are,
under the Apprendi line of cases, elements of an offense subject to the full
protections of the right to trial by jury. See Ring v. Arizona, 536 U.S. 584,
589-609 (2002); Sattazahn v. Pennsylvania, 537 U.S. 101, 112-14 (2003)
(first-degree murder is a lesser included offense of first-degree murder with
aggravating circumstances)
PA-JICRIM 15.2502E
The Supreme Court of the United States has spoken of the standard of
relevance applicable to mitigating evidence in capital cases “in the most
expansive terms.” Tennard v. Dretke, 124 S. Ct. 2562, 2570 (2004). There is
a “low threshold” for relevance in this area, one drawn in the language of
Rule 401 of the Federal Rules of Evidence, that is, that the evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence … more probable or less probable than it would be without the
evidence.” Id. If a sentencer could reasonably find that the evidence
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warrants a sentence less than death, a state may not bar its consideration. Id.
Case(s)
PA-JICRIM 15.2502E
Tennard v. Dretke:
‘Relevant mitigating evidence is evidence which tends logically to prove or
disprove some fact or circumstance which a fact-finder could reasonably
deem to have mitigating value.’ ” *285 494 U.S., at 440, 110 S.Ct. 1227
(quoting State v. McKoy, 323 N.C. 1, 55-56, 372 S.E.2d 12, 45 (1988)
(opinion of Exum, C. J.)). Thus, a State cannot bar “the consideration of ...
evidence if the sentencer could reasonably find that it warrants a sentence
less than death.” 494 U.S., at 441, 110 S.Ct. 1227.
Once this low threshold for relevance is met, the “Eighth Amendment
requires that the jury be able to consider and give effect to” a capital
defendant's mitigating evidence. Boyde v. California, 494 U.S. 370, 377378, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (citing Lockett v. Ohio, 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455
U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Penry I, 492 U.S. 302, 109
S.Ct. 2934, 106 L.Ed.2d 256 (1989)); see also Payne v. Tennessee, 501 U.S.
808, 822, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (“We have held that a
State cannot preclude the sentencer from considering ‘any relevant
mitigating evidence’ that the defendant proffers in support of a sentence less
than death.... [V]irtually no limits are placed on the relevant mitigating
evidence a capital defendant may introduce concerning his own
circumstances” (quoting Eddings, supra, at 114, 102 S.Ct. 869)).
Tennard v. Dretke 542 U.S. 274, 285, 124 S.Ct. 2562, 2570 (U.S.,2004)
Topic
Instruction
15.2502F.1 (Crim) Death Penalty, General Instruction--Where Parties
Have Stipulated to Existence of Mitigating Circumstance
1. Members of the jury, you must now decide what sentence to impose upon
the defendant. Your sentence will depend upon what you find about
aggravating and mitigating circumstances. The Sentencing Code defines
aggravating and mitigating circumstances, and I will explain more about
them in a moment.
In this case, the parties have agreed that the following mitigating
[circumstance exists] [circumstances exist]: [state mitigating
circumstance(s) to which the parties have stipulated]. Therefore, you may
sentence the defendant to death only if you unanimously find one or
more aggravating circumstances that outweigh all mitigating
circumstances. Otherwise, the only verdict that you may return is a
sentence of life imprisonment.
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2. The Commonwealth must prove any aggravating circumstance beyond a
reasonable doubt.
[Reasonable Doubt Explanation--First Alternative]
[This does not mean that the Commonwealth must prove the aggravating
circumstance beyond all doubt and to a mathematical certainty. A
reasonable doubt is the kind of doubt that would cause a reasonable and
sensible person to hesitate before acting upon an important matter in his or
her own affairs. A reasonable doubt must be a real doubt; it may not be one
that a juror imagines or makes up to avoid carrying out an unpleasant duty.]
[Reasonable Doubt Explanation--Second Alternative]
[To prove the aggravating circumstance beyond a reasonable doubt means
that the Commonwealth must convince you of its existence to a level of
certainty that the law requires before a sentence of death may be imposed.
To find that an aggravating circumstance exists beyond a reasonable doubt,
you must be convinced of it to the same degree you would be convinced
about a matter of importance in your own life in which you would act with
confidence and without restraint or hesitation.
Understand that in making decisions of importance in our own lives, we can
never act with mathematical certainty. Also, we must recognize that
sometimes, simply out of fear of making those important decisions, we may
imagine doubts that are based on virtually anything.
It is important that we make sure that doubts that we allow to affect our
decisions are only those that are based upon facts and reason.
The same considerations apply here. The simple but important question you
must decide is whether the evidence convinces you of existence of the
aggravating circumstance to the degree that if this were a matter of
importance in your own life, you would act on that matter confidently,
without hesitation or restraint. The answer to that question must arise from
your conscientious review of the facts and the law, the application of your
good common sense, and your recognition of the importance of the oath you
took as a juror to try this case fairly, impartially, and honorably.]
[Defendant's Burden to Prove Mitigating Circumstance]
3. By contrast, the defendant must prove any mitigating circumstance.
However, the defendant only has to prove it by a preponderance of the
evidence, that is, by the greater weight of the evidence. This is a less
26
demanding standard than proof beyond a reasonable doubt. Facts are proven
by a preponderance when the evidence shows that it is more likely than not
that the facts are true.
4. In this case, under the Sentencing Code, only the following matters, if
proven to your satisfaction beyond a reasonable doubt, can be aggravating
circumstances:
[Here the court should state the aggravating circumstances raised in the
evidence. For suggestions, see Instruction 15.2502G.]
5. In this case, under the Sentencing Code, the following matters, if proven
to your satisfaction by a preponderance of the evidence, can be mitigating
circumstances:
[Here the court should state the mitigating circumstances raised in the
evidence. For suggestions, see Instruction 15.2502G. The court should
routinely include the following statement of the catch-all category:
Any other mitigating matter concerning the background, character, or
record of the defendant or the circumstances of [his] [her] offense
[including but not limited to [mitigating matter].]]
I remind you that the parties have stipulated, that is agreed, that the
mitigating circumstance[s] of [list mitigating circumstances stipulated to]
have been established. The defendant need offer no more proof on those
circumstances; you are to accept them as being proven.
6. In deciding whether aggravating circumstances exist and whether
aggravating outweigh mitigating circumstances, you should consider the
evidence and arguments offered by both the Commonwealth and the
defendant. This includes the evidence that you heard during the earlier trial
to the extent that it bears upon the issues now before you. [You should also
consider the statement that the defendant made when [he] [she] personally
addressed you.]
[7. You have heard evidence about the victim and about the impact of the
victim's murder upon [his] [her] family. I'm talking about the statements
made by [name of family member]. This evidence is subject to two special
rules. First, you cannot regard it as an aggravating circumstance. Second, if
you find at least one aggravating circumstance, you may then consider the
victim and family impact evidence when deciding whether aggravating
outweigh mitigating circumstances. Each of you may give the victim and
family impact evidence whatever weight [, favorable or unfavorable to
the defendant,] that you think it deserves. Your consideration of this
evidence, however, must be limited to a rational inquiry into the
culpability of the defendant, not an emotional response to the evidence
presented.]
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8. You have been given a sentencing verdict slip on which to record your
verdict and findings. I will now give you further directions on how to go
about reaching a verdict, making findings, and using the verdict slip.
[See Instruction 15.2502H for instructional language to be incorporated
here and for a recommended form of verdict slip.]
[9. I'll explain something about a sentence to life imprisonment. Under
Pennsylvania law a prisoner who has been convicted of first-degree murder
and who is serving a sentence to life imprisonment is not eligible for parole.
The parole board has no power to release the prisoner from prison.
The only way such a prisoner can attain release is by a commutation granted
by the governor. Pennsylvania has a board of pardons, as well as a parole
board. If a life prisoner can convince the board of pardons that his or her
sentence should be commuted, that is, made shorter, and the board of
pardons unanimously recommends this to the governor, the governor has the
power to shorten the sentence. If the governor follows the pardon board's
recommendation and commutes the sentence, the prisoner may be released
early or become eligible for parole in the future.
I'll tell you that the governor and board of pardons rarely commute a
sentence of life imprisonment. [You can assume that whenever they do so
they will act responsibly and will not commute the sentence of a life
prisoner who they believe is dangerous.]]
10. Now you must decide. Be fair and do not let yourself be influenced by
passion or prejudice. [It was entirely up to the defendant whether to [testify]
[or] [present evidence]. You must not draw any adverse inference from [the
defendant's silence] [or] [the fact that the defendant did not present
evidence].] The sentence you impose must be in accordance with the law as
I have instructed you and not be based on sympathy, prejudice, emotion, or
public opinion, and not based solely on victim impact testimony.
11. Remember that your verdict is not merely a recommendation; it actually
fixes the punishment at death or life imprisonment. Your verdict, whether it
be death or life imprisonment, must be unanimous. It must be the verdict of
each and every one of you.
Advisory
This instruction is necessitated by and derived from the Pennsylvania
Committee Supreme Court's decision in Commonwealth v. Rizzuto, 777 A.2d 1069 (Pa.
Notes
2001), and should be used only where the parties have stipulated to the
existence of at least one mitigating circumstance.
PA-JICRIM 15.2502F.1
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Topic
15.2502H (Crim) Death Penalty, Process of Decision and Verdict Slip
Instruction 1. When you are in the jury room, read the verdict slip before you begin to
discuss the case. Do not write anything on the slip unless and until you have
finished deliberating and agreed on your sentence. Use the verdict slip for
one thing only--to record your sentencing verdict and findings.
2. As I told you earlier, you must agree unanimously on one of two general
findings before you can sentence the defendant to death. They are a finding
that there is at least one aggravating circumstance and no mitigating
circumstance or a finding that there are one or more aggravating
circumstances that outweigh any mitigating circumstance or circumstances.
[In deciding whether aggravating outweigh mitigating circumstances, do not
simply count their number. Compare the seriousness and importance of the
aggravating with the mitigating circumstances.] If you all agree on either
one of the two general findings, then you can and must sentence the
defendant to death.
3. When voting on the general findings, you are to regard a particular
aggravating circumstance as present only if you all agree that it is
present. On the other hand, each of you is free to regard a particular
mitigating circumstance as present despite what other jurors may
believe. This is different from the general findings to reach your
ultimate sentence of either life in prison or death. The specific findings
as to any particular aggravating circumstance must be unanimous. All
of you must agree that the Commonwealth has proven it beyond a
reasonable doubt. That is not true for any mitigating circumstance. Any
circumstance that any juror considers to be mitigating may be
considered by that juror in determining the proper sentence. This
different treatment of aggravating and mitigating circumstances is one
of the law's safeguards against unjust death sentences. It gives a
defendant the full benefit of any mitigating circumstances. It is closely
related to the burden of proof requirements. Remember, the Commonwealth
must prove any aggravating circumstance beyond a reasonable doubt while
the defendant only has to prove any mitigating circumstance by a
preponderance of the evidence. Your final sentence--life imprisonment or
death--must be unanimous. All of you must agree that the sentence should
be life imprisonment or that the sentence should be death because there is at
least one aggravating circumstance and no mitigating circumstance or
because the aggravating circumstance or circumstances outweigh the
mitigating circumstance or circumstances found by any juror.
4. If you do not agree unanimously on a death sentence and on one of
the two general findings that would support it, then you have two
immediate options. You may either continue to discuss the case and
deliberate the possibility of a death sentence, or, if all of you agree to do
29
so, you may stop deliberating and sentence the defendant to life
imprisonment. If you should come to a point where you have deliberated
conscientiously and thoroughly and still cannot all agree either to sentence
the defendant to death or to stop and sentence him or her to life
imprisonment, report that to me. If it seems to me that you are hopelessly
deadlocked, it will be my duty to sentence the defendant to life
imprisonment.
[Here the court should give any further detailed instructions on using and
completing the verdict slip that it thinks are necessary. An example of
detailed instructions is given as follows:]
a. Look at part II of the verdict slip entitled “Sentencing Verdict and
Findings.” I will now give you specific directions about how to complete
this part of the verdict slip.
b. Before you can sentence the defendant to death, you must all agree on the
general finding in either B.1. or B.2. If you all agree on one or more
aggravating circumstances and all agree that there are no mitigating
circumstances, then check B.1. At that point, copy all the aggravating
circumstances listed in Part I on which you all agree. If you all agree on one
or more aggravating circumstances and, although one or more of you find
mitigating circumstances, you all agree that the aggravating outweigh the
mitigating circumstances, then check B.2. Then, copy from Part I the
aggravating circumstances on which you all agree and the mitigating
circumstances that one or more of you find are present.
c. Remember, you can stop deliberating and sentence the defendant to life
imprisonment only if you all agree to do so. If your sentence is life
imprisonment, you should check the finding, either C.1. or C.2., that
explains why you are imposing a life sentence. If the reason for imposing a
life sentence is that one or more of you find no aggravating circumstances,
check C.1. If the reason for imposing a life sentence is that, although all of
you agree on at least one aggravating circumstance, one or more of you find
that mitigating are not outweighed by aggravating circumstances, then
check C.2. At that point, copy from Part I the mitigating circumstances that
one or more of you find are present and the aggravating circumstances on
which you all agree.
PA-JICRIM 15.2502H
30