Appealed from: United States Court of Appeals, Ninth Circuit
Oral argument: Oct. 3, 2006
EIGHTH AMENDMENT, DEATH PENALTY, CRIMINAL JURY INSTRUCTIONS, MITIGATING EVIDENCE, NEW RULE, FUTURE-LOOKING EVIDENCE, UNADORNED FACTOR (K)
Fernando Belmontes, a criminal defendant sentenced to death by a California jury, challenges the constitutionality under the Eighth Amendment of California’s jury instruction, arguing that the instruction prevents the jury from considering evidence about his future prospects as a productive member of society. The Court will assess whether there is a reasonable likelihood that this jury instruction will prevent a jury from considering the defendant’s future conduct when determining whether to mitigate the defendant’s punishment to life without parole. If the Court determines that the instruction is insufficient, it will also consider whether its ruling should apply retroactively to other criminal defendants. The case will affect how states draft their capital sentencing jury instructions and will give Justices Roberts and Alito an opportunity to articulate their opinions on the Court’s capital sentencing jurisprudence.
1. Does Boyde confirm the constitutional sufficiency of California’s "unadorned factor (k)" instruction where a defendant presents mitigating evidence of his background and character which relates to, or has a bearing on, his future prospects as a life prisoner?
2. Does the Ninth Circuit’s holding, that California’s "unadorned factor (k)" instruction is constitutionally inadequate to inform jurors they may consider "forward-looking" mitigation evidence constitute a "new rule" under Teague v. Lane, 489 U.S. 288 (1989)?
1. Given the Court’s previous ruling in Boyde v. California, does California’s jury instruction, known as factor (k), sufficiently guide a jury in the sentencing phase of a capital case to consider the defendant’s future conduct in prison when determining whether to mitigate the defendant’s sentence from death to life in prison?
2. Is the Ninth Circuit’s ruling, that factor (k) does not sufficiently guide jurors to consider a capital defendant’s future conduct when determining whether to mitigate the sentence from death to life without parole, a new rule in criminal procedure law that may have retroactive effect on defendants in similar situations?
The Crime and State Proceedings
On March 15, 1981, Fernando Belmontes burglarized the house of 19-year-old Steacy McConnell. Brief for Petitioner at 2. Upon finding McConnell at home, Belmontes struck her several times in the head with a metal dumbbell bar before stealing her stereo equipment. Id. at 2–3. McConnell died of cerebral hemorrhaging caused by the blows. Id. at 3.
At trial in the San Joaquin County Superior Court, the jury found Belmontes guilty of first-degree murder and eligible for the death penalty. Id. at 3. At the penalty stage, the prosecution offered aggravating evidence of Belmontes’s prior crimes and violent acts. Id. at 3–4. The defense then offered mitigating evidence of Belmontes’s good behavior during a prior commitment at the California Youth Authority, arguing that the evidence showed that Belmontes was “salvageable” and could be a constructive member of a prison community if given a life sentence. Id. at 4.
Complying with California Penal Code section 190.3, the trial judge instructed the jury that, when determining whether to impose the death penalty, they could consider, among other factors, the defendant’s criminal history, age, and a final factor, known as “factor (k)”: “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Id. at 5–6. The court stated that the mitigating elements the defense articulated were “merely . . . examples” of factors the jury could consider, but also ordered, in response to jury questions, that these elements constituted a “listing” and should be “balance[d].” Id. at 6–7. After deliberation, the jury sentenced Belmontes to death. Id. at 7.
On appeal before the California Supreme Court, Belmontes argued that the factor (k) instruction prevented the jury from considering background and character evidence, including future conduct, unless it related to the crime itself. People v. Belmontes, 755 P.2d 310 (1988). The California Supreme Court rejected this claim, Id. at 355., and the U.S. Supreme Court denied certiorari. Belmontes v. California, 488 U.S. 1034 (1989).
Boyde and Federal Proceedings
Soon after, the U.S. Supreme Court held that factor (k) sufficiently guided a jury to consider background information unrelated to the crime. Boyde v. California, 494 U.S. 370 (1990). The Court noted that jury instructions are constitutionally insufficient only if there is a reasonable likelihood that the instruction prevented the jury from considering constitutionally relevant evidence. Id. at 380.
Payton and Current Posture before Supreme Court
While the state’s petition for certiorari before the U.S. Supreme Court was pending, the Court decided Brown v. Payton, 544 U.S. 133 (2005). In Brown v. Payton, the Ninth Circuit had held that factor (k) did not sufficiently guide a sentencing jury to consider a defendant’s post-crime religious conversion. Payton v. Woodford, 299 F.3d 815, 823 (2002). The Supreme Court vacated the judgment, holding that Boyde applied to the evidence. See Payton, 544 U.S. at 142–44
On March 28, 2005, the Supreme Court granted certiorari to the Belmontes case and remanded the case to the lower court for further consideration in light of Payton. Brown v. Belmontes, 544 U.S. 945 (2005). The same Ninth Circuit panel again granted Belmontes habeas relief on the penalty judgment, citing the same reasons set out in its previous opinion. Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005). According to the panel majority, Payton did not apply because it was decided under the deferential review of 28 U.S.C. § 2254 (2006), the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Id. at 1101. The AEDPA prohibits federal courts from overturning state court death sentences unless the sentence violates federal law or results from an unreasonable determination of the facts in light of the evidence. The Ninth Circuit ruled that the AEDPA standard did not apply to Belmontes because Belmontes was sentenced before Congress enacted the AEDPA. Id. The Supreme Court granted certiorari on May 1, 2006. Ornaski v. Belmontes, 126 S. Ct. 2881 (2006).
This case is the latest round in a bare-knuckle brawl between the Ninth Circuit Court of Appeals and the U.S. Supreme Court over the constitutionality of California’s factor (k) jury instruction. Belmontes argues that factor (k) prevents the jury from considering his future ability to be a productive member of a prison community. The Ninth Circuit agreed with Belmontes, but on appeal, the Supreme Court granted certiorari to review the case in light of its previous factor (k) jurisprudence. The case will affect other California capital defendants on death row, and on a broader level, it may impact the scope of what courts permit juries to consider in capital crimes. The case also gives Chief Justice Roberts and Justice Alito an opportunity to weigh in on capital sentencing and the Lockett doctrine.
The Supreme Court has upheld the constitutionality of factor (k) on several occasions, finding that it sufficiently guides the jury to consider the defendant’s background and post-crime conduct. See Boyde v. California, 494 U.S. 370; Brown v. Payton, 544 U.S. 133. These cases hinged on whether the Court believed there was a “reasonable likelihood” that the instruction would misguide the jury’s sentencing considerations. Boyde, 494 U.S. at 380. If the Court holds that factor (k) sufficiently instructs a jury to consider potential future conduct, it will close another avenue of appeal for California capital defendants and may end the battle between the Ninth Circuit and the Court over the sufficiency of factor (k).
If the Court agrees with the Ninth Circuit, California may amend its sentencing instructions to explicitly include considerations of potential future conduct. In August 2006, the California Judicial Council published a more inclusive factor (k), which may be constitutionally sufficient, but has not been adopted by the California Legislature. Judicial Council of California Criminal Jury Instructions (2006–2007). The Court’s decision may affect the viability of the sentencing instruction in other states with similar catchall jury instructions. See, e.g., Fla. Stat. §921.141(6)(h)(2006). The scope of this ruling depends on whether the Court determines that this is a “new rule” under Teague v. Lane, 489 U.S. 288 (1989). If the Court determines the Ninth Circuit’s ruling is a new rule, the rule will only apply retroactively to defendants whose juries were prevented from considering potential future conduct and where the issues presented in those cases cut to the bedrock principles of fairness in criminal procedure law. However, because California is one of the few states that does not differentiate between aggravating and mitigating circumstances, and because the battleground on this issue has been localized to California, the decision, vis-à-vis the inclusiveness of catchall provision, may not reach beyond the state’s borders.
Regardless of the outcome, the Court may take the opportunity to reexamine the scope of what juries are constitutionally required to consider under the Sixth and Eighth Amendments. The Court could reexamine its “reasonable likelihood” litmus test for the constitutional viability of jury instructions, as Justice Marshall suggested in Boyde. See Boyde, 494 U.S. at 390 (Marshall, J., dissenting). Marshall believed the "reasonable likelihood standard" was too amorphous and was inconsistent with the Court’s previous rulings, which had struck down jury instructions when a jury merely "could" be misled by them. Boyde at 394 (Marshall, J., dissenting).
Also, as the Criminal Justice Legal Foundation urges in its amicus brief, and Justice Scalia argued for in Walton v. Arizona, 497 U.S. 639, 667 (1990) (Scalia, J., concurring), the Court may question the rule set forth in Lockett v. Ohio, 438 U.S. 586 (1978), which dictates that trial courts are constitutionally forbidden from limiting the scope of mitigating evidence a sentencing jury considers in a capital crime. See Brief for the Criminal Justice Legal Foundation as Amici Curiae Supporting Petitioner, at 7. This will be the first opportunity for Chief Justice Roberts and Justice Alito to opine regarding either rule. If the Court modifies either rule, criminal defendants may need to reassess how to package their mitigating evidence for sentencing juries.
This case goes to the heart of why juries sentence criminals to death. If juries sentence criminals to death because they believe the criminal forfeits his or her right to live, than the defendants’ future conduct is irrelevant. If, on the other hand, juries sentence defendants to death because they believe the defendant is incapable of rehabilitation, than future conduct is very relevant to their sentencing determination.
“Unadorned factor (k)” and Boyde
At the time of Belmontes’s conviction and sentencing, the factor (k) instruction dictated that the jury could consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” Cal. Penal Code § 190.3 (West 2006).
In Boyde v. California, the Court held that the instruction sufficiently informed a jury that they were not limited to the circumstances of the crime, but could also consider the defendant’s background (e.g., upbringing and education) and good character when determining whether to mitigate the defendant’s punishment to a life sentence instead of death. 494 U.S. 370. The Court determined that a jury instruction was insufficient only if there was a “reasonable likelihood” that the instruction would mislead the jury to ignore constitutionally relevant evidence. Id. at 380.
Ninth Circuit’s Argument in Belmontes v. Woodford
In Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003), the Ninth Circuit split “good character” evidence into two categories: evidence bearing on “culpability” and “forward-looking” evidence. See Brief for Petitioner at 15. The panel majority claimed that Boyde’s holding affirmed factor (k)’s efficacy regarding character evidence relating to the defendant’s guilt (e.g., because of the socioeconomic factors in which the defendant grew up, he is not fully responsible for the circumstances that led him to commit the crime). See Id. However, Boyde was silent on whether factor (k) sufficiently directed juries to consider character evidence that had no bearing on the defendant’s guilt but spoke to the defendant’s future prospects. See Id. The instruction was thus unconstitutional under the Eighth Amendment principles of Lockett v. Ohio, 438 U.S. 586 (1978), which held that an instruction cannot prevent a jury from hearing constitutionally relevant evidence, and under the specific dictate of Skipper v. South Carolina, 476 U.S. 1 (1986), which instructed that “the jury must consider the defendant’s past conduct as indicative of his probable future behavior” even if not related specifically to his culpability for the crime. See Skipper 476 U.S. at 22.
Ayer’s Boyde arguments
The first issue the Court will confront is whether this case is substantially different from Boyde. Ayers, the California Acting Warden, argues that Boyde held that factor (k) sufficiently guides a jury to consider the defendant’s future ability to be a productive member of a prison community. See Brief for Petitioner at 18–34. According to Ayers, Belmontes’s evidence in mitigation (his abusive upbringing, his caring relationships with decent friends and family members, and his good performance during a church-related program during prior commitment at the California Youth Authority, id. at 4) constitute the type of background and character evidence Boyde held that factor (k) permitted. Id. at 14.
Ayers claims that the Ninth Circuit’s distinction between “culpability” character evidence and “forward looking” character evidence is illogical and cannot be reconciled with Boyde. Id. at 15. According to Ayers, virtually all “good character” evidence is “forward-looking” because it allows the jury to infer about the defendant’s future behavior. Id. at 21. This is especially true at the penalty stage, in which character evidence has little mitigating value unless it permits such an inference. See Id. at 24. For example, if defendants Joe and Jane are both tried for murder, where Jane has a history of violence and Joe has does not, Joe may be worth saving, and not Jane, because Joe can be rehabilitated, while Jane cannot. Furthermore, Ayers claims that the evidence in Boyde was offered for a “forward-looking” purpose: to illustrate that Boyde had “strength of character” and thus could be rehabilitated. Id. at 24.
Ayers also contends that consideration of a defendant’s future behavior during capital sentencing is a long-established feature of the criminal justice system. Id. at 30. Ayers points to Brown v. Payton, 544 U.S. 133, which affirmed factor (k)’s efficacy in allowing jurors to consider Payton’s post-crime religious conversion. Id. at 29. Ayers also emphasizes that the instruction allows jurors to account for “age,” which suggests jurors are considering whether the defendant, with time and maturity, can adjust better to society. Id. at 33. According to Ayers, the Belmontes jurors could not have believed that all of Belmontes’s testimony as to future prospects was a “virtual charade” they could ignore in their balancing responsibility. Id. at 31.
Finally, Ayers highlights the high threshold for finding an instruction unconstitutional—that a court must find a “reasonable likelihood that a jury will apply the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. at 34 (quoting Boyde, 494 U.S. at 380). Because the trial court gave a special instruction that the enumerated circumstances were “merely examples of some of the factors” the jury could consider, Id. at 35, and because the prosecutor and defense both acknowledged that the jury could and should consider Belmontes’s future favorable prospects as mitigating evidence, there is no “reasonable likelihood” the jury would ignore Belmontes’s evidence. Id. at 39.
The Import of Payton
The Court could draw convenient parallels from its analysis in Brown v. Payton, but will have to determine whether Payton is applicable. First, the cases are different because the evidence presented in Payton pertained to actual post-crime conduct, while Belmontes deals with the jury’s license to speculate on future conduct. Second, as the lower court noted in Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005), Payton is governed by the AEDPA, 28 U.S.C. § 2254 (2006), whereas Belmontes is not because the sentencing occurred before Congress enacted the statute. Under the AEDPA, a federal court will only review the state court’s actions if they are objectively unreasonable. The Court will have to recognize that in pre-AEDPA cases federal courts have more discretion in granting habeas corpus petitions in state cases.
Belmontes’s Boyde Arguments
Belmontes reiterates the Ninth Circuit’s position that Boyde is not a sufficient guide for the present case. He argues that Boyde was silent on whether factor (k) adequately guides the jury to consider potential future conduct. See Brief for Respondent at 37. He claims that factor (k) limits a jury’s focus on background evidence to considerations of guilt surrounding the crime. See Id. at 20. Belmontes contends that because factor (k) instructs juries to view background evidence which “extenuates the gravity of the crime,” this leaves no room for a jury to consider his potential positive future conduct. See id. at 37. In addition, he questions the validity of Boyde.
Furthermore, Belmontes argues that even if factor (k) was sufficiently clear to ensure that juries will contemplate future evidence in other situations, the unusual series of circumstances in his own penalty trial combined to convey to the sentencing jury that it was not permitted to consider a substantial part of the mitigation evidence, violating the Eighth and Fourteenth Amendments. See Id. at 17. There is a reasonable probability, Belmontes contends, that when the court declared that the factor (k) constituted a “listing” of factors that the jury must “balance,” it prompted the jury to ignore prior instructions and consider themselves unable to consider mitigation evidence regarding the defendant’s potential for productive living. See Id. at 27. According to Belmontes, Ayers ignores these case-specific factors. See Id. at 40.
The Teague Rule and Potential Retroactivity for Other Defendants
The second question the Court will confront in Belmontes is whether the lower court’s holding that unadorned factor (k) does not adequately inform jurors that they may consider future-looking evidence constitutes a “new rule” under Teague v. Lane, 489 U.S. 288. In Teague, the Court found that new criminal procedure laws would not apply retroactively to cases that became final before the law was created, with limited exceptions. Whether rules are “new” or based in precedent depends upon if reasonable minds could disagree about the significance of the precedent. See Brief for Petitioner at 42. The purpose of this doctrine is to prevent unfairness to others similarly situated who could not benefit from such relief.
The state argues that the Ninth Circuit’s decision violates the Teague non-retroactivity doctrine. See Id. at 41. The state presses that the circuit decision is unsupported by Lockett, and that, given Boyde and Payton, reasonable minds could disagree as to whether factor (k) gives sufficient guidance. See Id. at 44–46.
Belmontes contests that the Ninth Circuit’s ruling is not a new rule but is instead based in precedent. Belmontes points to language in Skipper, that “evidence that the defendant would not pose a danger if spared . . . must be considered as potentially mitigating,” and that “such evidence may not be excluded from the sentencer’s consideration.” See Brief for Respondent at 48 (quoting 476 U.S. at 5). Belmontes points also to Penry v. Lynaugh, 492 U.S. 302 (1989), in which the Court clearly stated that a similar rule Penry sought was not a “new rule’” under Teague because it was dictated by Eddings v. Oklahoma, 455 U.S. 104 (1982) and Lockett. See Id. at 48. Thus reasonable minds could not disagree about these rules because they are “well-settled.” Id. at 47.
There are two exceptions to the Teague rule: if the new rule placed the defendant’s conduct beyond the reach of the criminal justice system, or if compliance with the rule is necessary to adhere to the “bedrock” principles of “fundamental fairness” (The Court also articulated this as creating new “watershed rules of criminal procedure.” Teague, 489 U.S. at 311.). While the former exception will probably not apply to the Court’s analysis, the latter exception will generate some discussion.
If the Court determines that the lower court’s ruling is a new rule, it will also have to determine whether remedying the insufficiency of factor (k) is necessary to comply with the bedrock principles and fairness and justice. Lower courts have had trouble determining when to apply Teague retroactivity to defendants and thus application has not been uniform or predictable. See Katharine A. Ferguson, The Clash of Ring v. Arizona and Teague v. Lane: An Illustration of the Inapplicability of Modern Habeas Retroactivity Jurisprudence in the Capital Sentencing Context, 85 B.U.L. Rev. 1017, 1034 (2005). If the Court upholds the Ninth Circuit’s ruling, it will have an opportunity to better articulate the Teague rule and give capital defendants a better understanding as to when rulings in other cases may have an effect on their cases and avenues of appeal.
In Ayers v. Belmontes, the Supreme Court will rule on the issue of whether California’s catch-all jury instruction is sufficient to inform juries that they must consider the defendant’s future conduct when deciding whether to mitigate a death sentence to life in prison. Ayers argues that the Court has already affirmed the efficacy of the instruction with respect to forward-looking evidence. Belmontes argues that the instruction does not suffice for this purpose. A decision may encourage states to revisit their capital sentencing jury instructions and may reveal the views of Justices Roberts and Justice Alito regarding capital sentencing.