Three cases lead off this week on the "Hot List." The first of these is Cannon v. Mullin. In Cannon the Tenth Circuit examines Ring v. Arizona in the context of a successive petition filed under warrant. The Cannon panel concludes in this stay proceeding to side step the substantive issue of whether Oklahoma's death penalty statute does or does not meet Ring. The panel instead dismisses the petition by addressing the gateway procedural holding that Ring does not meet the threshold requirements, in pertinent part, for 28 USC § 2244's successive petition requirements until the US Supreme Court holds that Ring is retroactively applicable. Stay denied.

In Tennessee v. Torres that state's Supreme Court examines instructions to deadlocked juries in the penalty phase. The Torres Court concludes that the trial court erred by giving a coercive jury instruction in an attempt to break the deadlock rather than accepting the jury's report of a deadlock. On remand the jury can only chose between LWOP and life with the possibility of parole.

The South Carolina Supreme Court in South Carolina v. Stone grants relief on penalty phase jury instructions. The Court holds that trial court should have instructed the jury properly that life means "life without the possibility of parole." The instruction by by the trial court that "[u]nder our law life imprisonment means that a person will be– will serve the balance of his life in prison, okay?” was deemed insufficient.

In other news, Richard I. Targow, a California appellate attorney has written a stunningly insightful article in the Recorder that notes Ring v. Arizona apparently calls into question portions of California's death penalty statute that permits juries to return a death verdict as long as all jurors agree that at least one aggravator is present even if the jurors don't all agree on the same aggravator. For other sources on Ring see the Moussaoui electronic docket sheet -- which include numerous well argued federal death penalty and federal criminal practice memos, particularly the Standby Counsel's Supplemental Motions To Dismiss Notice of Intent to Seek Penalty of Death (July 10th) & (July 25th) -- and the Amos King website which has all the briefs for King & amici filed in the Florida Supreme Court. Both the Amos King website & the Moussaoui electronic docket are updated daily and are invaluable resources due in no small measure to the exceptionally talented lawyering in both cases. The Second of Moussaoui's standby counsel's Supplemental Motions is the "Focus" of the week.

Please note, several states' Departments of Corrections have sought to have inmate IQ testing done on all death row inmates in order to blunt any potential Atkins/mental retardation claims before they are filed.

A special happy birthday and a job well done to Michael Mears and the Multi-County Public Defender Office which completes ten years of service this month. The office serves as a shining example of what indigent defense not only can be, but should be. The Multi-County Public Defender Office was created in 1992 to provide assistance in death penalty cases by: (1) providing training and assistance to attorneys who have been appointed to defend defendants charged with a capital offense; (2) serving as co-counsel to assist local appointed lead counsel in the trial and direct appeal of cases involving defendants facing the death penalty; (3) accepting appointments to provide direct representation as lead counsel in death penalty cases based upon the circumstances of each individual case. For the period of time from July 1992 through July 1, 2002, the staff of the Multi-County Public Defender Office has assisted in resolving more than 225 death penalty cases through negotiated plea agreements.

Execution Information

Since the last edition the following have been executed:

HOT LIST

Cannon v. Mullin, 2002 U.S. App. LEXIS 14640 (10th Cir 7/19/2002) Ring v. Arizona by itself does not permit a petitioner to overcome the gatekeeper provisions of 28 U.S.C. § 2244 relating to successive habeas petitions; Ring is not retroactive to federal habeas corpus cases until the Supreme Court makes it explicitly retroactive.

It is clear that Cannon's Ring claim was not presented in a previous section 2254 habeas petition; thus, it is not subject to automatic dismissal under section 2244(b)(1). It is likewise clear that Cannon's Ring claim does not rely on newly discovered evidence and does not, therefore, implicate section 2244(b)(2)(B). Accordingly, Cannon is entitled to permission to file a second section 2254 habeas petition only if Ring set forth a new rule [*7] of constitutional law that was previously unavailable and the Supreme Court has made that new rule retroactive to cases on collateral review. See id. § 2244(b)(2)(A).

Cannon's argument in favor of his assertion that the Supreme Court has made Ring retroactive to cases on collateral review is two-fold: (1) because Ring announced a new rule of substantive criminal law under the Eighth Amendment applicable to state capital crimes, the limitations of Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), therefore do not apply, and the requirements of section 2244(b)(2)(A) are met; and (2) the Supreme Court has made Ring retroactive to cases on collateral review through the combination of Teague, Ring, and cases preceding Ring in the Apprendi line. Neither assertion is convincing.

Cannon is simply incorrect in asserting that the combination of Teague, Ring, and the cases in the Apprendi line render the rule announced in Ring retroactively applicable to cases on collateral review. The Supreme Court considered the contours of section 2244(b)(2)(A) in Tyler. The Court began by noting that "under this [*8] provision, the Supreme Court is the only entity that can 'make' a new rule retroactive. The new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court." 533 U.S. at 663. The Court went on to note that the only way it could make a rule retroactively applicable is through a "holding" to that effect. Id. "The Supreme Court does not 'make' a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts." Id.; see also id. at 666 ("The most [Tyler] can claim is that, based on the principles outlined in Teague, this Court should make Cage [v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339, 111 S. Ct. 328 (1990) (per curiam)] retroactive to cases on collateral review. What is clear, however, is that we have not 'made' Cage retroactive to cases on collateral review."). The Court did recognize that it could "make a rule retroactive over the course of two cases," but only if "the holdings in those cases necessarily dictate retroactivity [*9] of the new rule." Tyler, 533 U.S. at 666.

Despite this language from Tyler, the thrust of Cannon's multiple-case argument is that the rule set out in Apprendi, and extended in Ring to the death penalty context, fits within Teague's second exception for watershed rules of criminal procedure and has therefore been made retroactively applicable by the Supreme Court to cases on collateral review. This argument seriously misconstrues Tyler. It is clear that the mere fact a new rule might fall within the general parameters of overarching retroactivity principles established by the Supreme Court (i.e., Teague) is not sufficient. See Tyler, 533 U.S. at 663 (holding that the Court does not make a rule retroactive "when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts"); id. at 670 (O'Connor, J., concurring) ("The relevant inquiry is not whether the new rule comes within the Teague exception at all, but the more narrow and manageable inquiry of whether this Court's holdings, by strict logical necessity, 'make' the new rule retroactive within the meaning of § 2244(b)(2)(A). [*10] "). Cannon has failed to identify language in any of the cases upon which he relies n3 mandating "by strict logical necessity" that the Supreme Court has made the rule in Ring retroactively applicable to cases on collateral review. Id. at 670 (O'Connor, J., concurring). The Court's recognition in Tyler of the possibility that multiple cases can render a new rule retroactive does not, as Cannon suggests, give this court license to grant permission to file a second habeas petition premised on our own determination that a new rule fits within the second Teague exception. Such an approach would lead this court into the exact quagmire identified by the Court in Tyler. See id. at 664 ("The stringent time limit [for deciding applications to file second or successive habeas petitions set out in 28 U.S.C. § 2244(b)(3)(D)] suggests that the courts of appeals do not have to engage in the difficult legal analysis that can be required to determine questions of retroactivity in the first instance.").

In the alternative, Cannon argues that Ring announced a new rule of substantive criminal law and that the Supreme Court's decision in Bousley v. United States, 523 U.S. 614, 620, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998), holding that Teague's retroactivity analysis does not apply to substantive interpretations of criminal statutes, renders Ring retroactive for purposes of collateral review. It is clear, however, that Ring is simply an extension of Apprendi to the death penalty context. See Ring, 122 S. Ct. at 2432. Accordingly, this court's recent conclusion in United States v. Mora, ___ F.3d ___, 2002 U.S. App. LEXIS 12658, 2002 WL 1317126, at *4 (10th Cir. June 18, 2002), that Apprendi announced a rule of criminal procedure forecloses Cannon's argument that Ring announced a substantive rule.

Cannon's attempt to distinguish Ring from Apprendi, and therefore avoid Mora, on the basis that the decision in Apprendi is grounded in the Sixth Amendment and the decision in Ring is grounded in the Eighth Amendment is unavailing. The concluding paragraph of the majority opinion in Ring unequivocally establishes [*12] that the decision is based solely on the Sixth Amendment. Ring, 122 S. Ct. at 2443 ("The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both."). Justice Breyer refused to join the majority opinion because it was based on Apprendi, but nevertheless concurred in the judgment because he thought that "jury sentencing in capital cases is mandated by the Eighth Amendment." Ring 122 S. Ct. at 2446 (Breyer, J., concurring in the judgment). Although the Court in Ring did discuss the "Eighth Amendment provenance of aggravating factors," it did so exclusively in the context of rejecting the argument "that the Eighth Amendment's restriction on a state legislature's ability to define capital crimes should be compensated for by permitting States more leeway under the Fifth and Sixth Amendments in proving an aggravating fact necessary to a capital sentence." Ring, 122 S. Ct. at 2442 (quotation omitted). Accordingly, Cannon's attempt to distinguish Ring from Apprendi [*13] is unconvincing, and this panel is bound by the determination in Mora that Apprendi established a new rule of criminal procedure.

For the reasons set out above, Cannon has failed to make a prima facie showing that the Supreme Court has made Ring retroactively applicable to cases on collateral review.

Tennessee v. Torres, 2002 Tenn. LEXIS 336 (TN 7/19/2002) The trial court erred by giving the jury an instruction to attempt to break the deadlock rather than accepting the jury's report of a deadlock.

The defendant next asserts that the trial court erred during the sentencing phase of his trial by instructing the jury in accordance with Kersey v. State, 525 S.W.2d 139 (Tenn. 1975). Specifically, the defendant maintains that, when a jury is undecided concerning the imposition of a sentence of death, Tenn. Code Ann. § 39-13-204(h) precludes the giving of a Kersey charge and requires the trial court instead to instruct the jury to choose between the punishments of life imprisonment without possibility of parole and life imprisonment. Even assuming the statute does not generally prohibit the giving of a Kersey charge, the defendant asserts that the instruction was [*49] unduly coercive given the circumstances of this particular case.

The State responds that Tenn. Code Ann. § 39-13-204(h) does not prohibit the giving of a Kersey instruction and only requires the trial court to remove the death penalty from the jury's consideration when the jury cannot "ultimately" agree on the imposition of the death penalty. The State asserts that the statutory provision affords trial courts the discretion to determine whether "there is an ultimate disagreement on punishment." Additionally, the State disagrees with the defendant's assertion that the instruction was coercive in this case, arguing that "nothing in the Kersey instruction is directed at the minority, nor does it force any person to abandon his or her convictions."

We begin our analysis of this issue with Kersey in which this Court reconsidered the "dynamite" charge that previously had been approved in Tennessee. After, deliberating for sometime, the jury in Kersey reported that it "had not reached a verdict and (i)t looks like we are not going to." 525 S.W.2d at 140. The trial court inquired and was advised by the foreperson that the jury was [*50] split on the question of guilt or innocence eleven to one. Id. At this point, the trial court provided the following instruction:

While the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of your fellows, yet you should examine the questions submitted with candor and with a proper regard and Deference to the opinions of each other. It is your duty to decide the case if you can conscientiously do so. You should listen with a disposition to be convinced to each other's arguments. If the larger number are for conviction or acquittal, dissenting juror should consider whether his doubt was a reasonable one which made no impression on the minds of so many other men, equally honest, and equally intelligent with himself. The jury should not go contrary to their convictions, but they should properly give heed to the opinions of their fellow jurors and by reasonable concessions reach a conclusion which although not originally entertained by any of them, nevertheless, may be one to which all can scrupulously adhere. In other words, the minority should listen to the views of the majority with the disposition of being convinced. Now, with [*51] that addition we will work a few minutes longer.

Kersey, 525 S.W.2d at 140. This instruction was referred to as the Allen-Simmons instruction because it was originally derived from Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), with variations approved by Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (Tenn. 1955).

In reviewing this instruction, this Court first observed that the trial court's inquiry as to the division of the jury was "not a proper practice." Kersey, 525 S.W.2d at 141. To remedy this improper procedure, the Kersey Court, invoking its inherent and statutory supervisory power, directed trial judges to admonish jurors not to disclose their division or personal view when returning to open court to report an inability to reach a verdict. However, the Kersey Court emphasized that trial courts may ask jurors about their progress and whether they believe further deliberations will enable them to reach a verdict. Id. Explaining that supplemental instructions may be given, "if the trial judge feels that further deliberations might be productive," the Court [*52] rejected the Allen- Simmons charge, concluding that it "operates to embarrass, impair and violate" the right of trial by jury guaranteed by the Tennessee Constitution. Kersey, 525 S.W.2d at 141 and 144. Discounting "any suggestion that might necessarily makes right," the Court explained:

any undue intrusion by the trial judge into this exclusive province of the jury, is an error of the first magnitude. We recognize that the trial judge has a legitimate concern in the administration of justice and that he labors under a duty to lend guidance to the jury through instructions as to the governing principles of the law. However, when the effort to secure a verdict reaches the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury's province is invaded and the requirement of unanimity is diluted.

Id.

Having rejected the Allen-Simmons charges, the Court in Kersey again exercised its statutory and inherent supervisory power and directed trial courts to comply with Section 5.4 of the American Bar Association Standards relating to trial by jury. Id. at 144. Under these standards, trial [*53] courts "may require the jury to continue their deliberations and may give or repeat an instruction or provide a supplemental instruction . . . ." Id. Trial courts "shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals." Id. "The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement." Id. The Court concluded that if a trial court determines upon inquiry that further deliberations may result in a verdict, trial courts may give the following instruction:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion [*54] if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Kersey, 525 S.W.2d at 145. "If given as a part of the main charge, it may be repeated should a deadlock develop. Judicial economy and uniformity demand these results. Strict adherence is expected and variations will not be permissible." Id.

Nine years later, in State v. Caruthers, 676 S.W.2d 935 (Tenn. 1984), this Court considered the propriety of giving the Kersey charge in the context of a capital sentencing hearing. After deliberating on the sentence for approximately three hours, the jury in Caruthers sent the following note to the trial court:

No unanimous decision has been reached in our determining punishment for Walter Lee Caruthers. As of now the jury stands at eleven to one, with no foreseeable change. Please advise.

Caruthers, 676 S.W.2d at 942. Over the defendant's objection, the trial judge called the jury into open court and gave the Kersey charge. Just over two hours later, the jury [*55] returned with a unanimous verdict of death. The Kersey charge had been included in the jury instructions given at the conclusion of the guilt phase of the trial, but it had not been included in the instructions given at the conclusion of the sentencing phase. Id. As in this case, the defendant argued that the trial court erred in refusing to accept the jury's initial report that it was unable to agree on punishment. Caruthers, 676 S.W.2d at 942.

This Court rejected the defendant's claim that the instruction was coercive in the circumstances of Caruthers's case and, in addition, addressed, generally, the propriety of giving a Kersey instruction in a capital sentencing hearing. At that time, Tenn. Code Ann. § 39-2-203(h) provided that if a jury in a capital case "cannot ultimately agree as to punishment, the judge shall dismiss the jury and . . . shall impose a sentence of life imprisonment." Caruthers, 676 S.W.2d at 942 (quoting the statute). Explaining that "the use of the adverb "ultimately" indicates the Legislature anticipated a jury's tentative inability to agree on punishment," this Court concluded that [*56] a trial judge should exercise discretion "in determining whether there is an ultimate disagreement as to punishment. . . ." Id. Finding that the trial court in Caruthers had not abused its discretion by refusing to accept the jury's initial report and giving the Kersey charge, this Court affirmed the sentence of death. Id.

Having summarized the governing law, we proceed to the circumstances of this case. Here, after the sentencing hearing concluded, the jury was charged and deliberations began at 4:06 p.m. on February 24, 1999. Shortly after 4:50 p.m. that same day deliberations ceased. Deliberations resumed at 9 a.m. the next morning. At 11:21 a.m. the jury sent the trial court a question about what the jury described as a "contradiction" in the instructions regarding the requirement for unanimity on aggravating circumstances when deciding on a life sentence. At 11:56 a.m. the trial court gave a supplemental instruction on this issue, and the jury retired at noon to continue deliberations. At 2:35 p.m. the jury sent the following message to the trial court: "We are at a deadlock, 11 for death and 1 for life imprisonment. What do we do at this point? The one for life [*57] imprisonment has stated that he will not change his mind."

Defense counsel immediately asked that the trial court instruct the jury to choose between sentences of life imprisonment without possibility of parole and life imprisonment. The State, in turn, requested a Kersey charge. Over the defendant's objections, at 2:47 p.m. the trial court called the jury into open court and gave the following instruction:

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to your own individual judgment. Each of you must decide the case for yourself, but you should do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous, but do not surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. All right. Please continue your deliberations.

At 3:57 p.m., approximately one hour later, the jury returned to open court and announced [*58] a verdict of death. The supplemental instruction given by the trial court omitted three prefatory sentences that are part of the charge adopted in Kersey: "The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous." 525 S.W.2d at 145. The complete Kersey instruction had been given prior to the jury's deliberations on the defendant's guilt or innocence, but the instruction was not repeated prior to the jury's deliberations on the appropriate sentence.

The State argues that the decision in Caruthers controls the resolution of the issue in this appeal. With respect to the general propriety of the Kersey charge at a capital sentencing hearing, we agree with the State that Caruthers controls. The statute in effect at the time Caruthers was decided has since been repealed and replaced with Tenn. Code Ann. § 39-13-204(h) (1993), which provides:

If the jury cannot ultimately agree on punishment, the trial judge shall inquire of the foreman of the jury whether the jury is divided over imposing a sentence of [*59] death. If the jury is divided over imposing a sentence of death, the judge shall instruct the jury that in further deliberations, the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life. If, after further deliberations, the jury still cannot agree as to sentence, the trial judge shall dismiss the jury and such judge shall impose a sentence of imprisonment for life.

Id. As the State correctly points out, the adverb "ultimately," which was a significant basis of our decision in Caruthers, has been retained in the amended statute. One rule of statutory construction provides that courts should presume that the General Assembly is aware and approves of prior judicial constructions when it re-enacts an earlier statute. See State v. Rhodes, 917 S.W.2d 708, 712 (Tenn. Crim. App. 1995). Thus, this Court should presume that, in enacting Tenn. Code Ann. § 39- 13-204(h), the General Assembly was aware of our decision in Caruthers and approved the construction given the term "ultimately" in the context of that case.

On the other hand, the rationale for giving the Kersey [*60] charge - avoidance of the societal costs of a retrial - is not as compelling in a capital sentencing hearing because the jury's inability to agree on the sentence does not result in a retrial. See Lowenfield v. Phelps, 484 U.S. 231, 238, 108 S. Ct. 546, 551, 98 L. Ed. 2d 568 (1988). The jury's inability to agree merely results in further deliberations on the punishments of life imprisonment or life imprisonment without the possibility of parole, and if the jury is unable to unanimously agree on either of these options, the trial judge imposes a life sentence. See Tenn. Code Ann. § 39-13-204(h) (1993). Nonetheless, we agree with the United States Supreme Court that "the State has in a capital sentencing proceeding a strong interest in having the jury express the conscience of the community on the ultimate question of life or death." Lowenfield, 484 U.S. at 238, 108 S. Ct. at 551 (internal quotations and citations omitted). Where a jury returns from deliberations after only a short period of time and informs a trial court that it has failed to achieve unanimity, the trial court has the authority to give the Kersey [*61] instruction, but trial courts should be "mindful in such cases that the qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Lowenfield, 484 U.S. at 238-39, 108 S. Ct. at 551. Therefore, we reject the defendant's assertion that trial courts may never give a Kersey instruction in a capital sentencing hearing. Trial courts are afforded discretion to determine whether a jury has been "ultimately" unable to agree on punishment. However, in exercising this discretion, trial courts must be mindful that the rationale for giving the instruction is not as compelling in a capital sentencing hearing and the need for reliability is greater because of the qualitative difference between death and other penalties.

Having decided that trial courts generally are afforded discretion on this issue, we nonetheless conclude that the trial court erred by giving the Kersey instruction in this particular case. The jury had deliberated for approximately six hours on the sentencing issue before reporting: "We are at a deadlock, 11 for death and 1 for life imprisonment. What do we do at this point? The [*62] one for life imprisonment has stated that he will not change his mind." Over defense objections, the trial court returned the jury to open court and gave the instruction, despite the fact that the note expressed an unequivocal deadlock. The note did not request further instructions, and the trial court did not ask the jurors whether further instructions and deliberations might assist them in returning a verdict. n23 Instead, the trial court simply gave the instruction and ordered the jury to continue deliberation. Just one hour later the jury returned with a unanimous verdict of death. While no inquiry was made, the note informed the trial court of the jury's division on the sentence of death, and the dissenting juror, who presumably had held out for six hours, likely concluded that the trial court was instructing "him," one of only four men on the jury, to reconsider his position. n24 SeeLowenfield, 484 U.S. at 239-40, 108 S. Ct. at 552; Tucker v. Catoe, 221 F.3d 600, 611-12 (4th Cir. 2000) (noting factors that militate in favor of finding that the giving of a supplemental charge in a particular case is coercive).

Contrary to the State's assertion, the circumstances of this case are distinguishable from Caruthers in several important respects. The jury in Caruthers had deliberated only three hours, less than half the time the jury in this case deliberated. The note given the trial court by the Caruthers jury did not report a deadlock: the note simply reported: "as of now the jury stands eleven to one, with no foreseeable change. Please advise." This language is equivocal and indicated that the vote possibly could change at a later time, as compared to the language in this jury's note "he will not change his mind". Finally, although the note in Caruthers disclosed the jury's division, it did not disclose the nature of the split or identify in any [*64] manner the dissenting juror, as in this case, thus decreasing the coercive effect of the instruction.

Considering this case "in its context and under all the circumstances," n25 we conclude that, unlike Caruthers, the effort to secure a verdict here reached the point that a single juror may have been coerced into surrendering views conscientiously held, and under such circumstances, "the jury's province is invaded and the requirement of unanimity is diluted." Kersey, 525 S.W.2d at 144. Therefore, we conclude that the trial court erred in giving the Kersey charge rather than accepting the jury's initial report that it was deadlocked. As a result, we remand this case to the trial court for a sentencing hearing where "the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life. If, after further deliberations, the jury still cannot agree as to sentence, the trial judge shall dismiss the jury and such judge shall impose a sentence of imprisonment for life." Tenn. Code Ann. § 39-13-204(h) (1993).

South Carolina v. Stone, 2002 S.C. LEXIS 118 (SC 7/15/2002) Sentence reversed for failing to charge the jury properly that life means "life without the possibility of parole."

At sentencing, during its closing argument, the state argued that Stone is "going to be a problem in the future- a problem in the future in the prison system." The solicitor went on to argue that "throughout his life, he has been a problem. He has not been willing to obey the laws of society." In talking about Stone's 1987 burglary convictions, the solicitor stated, "This guy who wants you to give him mercy this time. He got thirty years. Then you see what happened after that and how he manipulated the system and [eventually got paroled]. . . and when he is paroled he signs and acknowledges . . . [he] may not possess any weapon whatsoever. . . a condition of parole. . . Was he able to abide by that rule? This guy that wants you to show him mercy now?. . . . He is not going to follow the rules. He hasn't done it in the past. He's not going to do it in the future." The solicitor went on to argue "You make sure that no correctional officer- or somebody else if he were to escape or something- nobody else is up here like this Kubala family. . ." Finally, the solicitor argued, [*15] "I'm asking you to carry out . . . a criminal justice system that works and deters criminals, deters Bobby Wayne Stone from ever doing anything like this again to any correctional officer or anyone else."

After the court charged the jury, defense counsel requested an instruction concerning "life imprisonment, life in prison without parole." The court then called the jury back in and instructed that "under our law life imprisonment means that a person will be- will serve the balance of his life in prison, okay?" Stone asserts the trial court erred in failing to instruct the jury that if sentenced to life imprisonment, he would be ineligible for parole. We agree.

Under the recent precedents of Kelly v. South Carolina, 534 U.S. 246, 122 S. Ct. 726, 151 L. Ed. 2d 670 (2002) and Shafer v. South Carolina, 532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001), Stone was entitled to an instruction that if sentenced to life imprisonment, he would be ineligible for parole. In Kelly, the United States Supreme Court held that where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the [*16] jury is life imprisonment without parole, due process entitles the defendant to inform the jury of his parole ineligibility, either by jury instruction or in arguments by counsel. The Kelly court specifically noted that arguments by counsel in Shafer to the effect that the defendant "would die in prison" or would "spend his natural life there" as well as the trial judge's instructions that "life imprisonment means until the death of the defendant" were insufficient to convey a clear understanding to Shafer's parole ineligibility. 122 S. Ct. at 733- 34. The Court also noted that the fact that the jury did not request further instructions concerning parole ineligibility was irrelevant. 122 S. Ct. at 733. Finally, the Kelly court noted that "evidence of future dangerousness in prison can raise a strong implication of 'generalized . . . future dangerousness'. . . . A jury hearing evidence of a defendant's demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior, whether locked up or free, and whether free as a fugitive or as a parolee." 122 S. Ct. at 731.

Here, it is patent the state argued [*17] Stone's future dangerousness to the jury, both in the context of his danger in prison and the possibility he could escape in the future. Moreover, notwithstanding counsel and the court told the jury Stone would spend the rest of his life in prison, these statements do not clearly convey to the jury the fact that Stone would be ineligible for parole as required by Kelly. Accordingly, the trial court's failure to instruct that Stone would be ineligible for parole if sentenced to life imprisonment requires reversal.

Stone's remaining issue is affirmed pursuant to SCACR, Rule 220(b) and the following authorities: Stone's issue 3- State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689 (1996) (admission of expert testimony is within discretion of trial court). n5

SUPREME COURT

The Court is in summer recess.

CAPITAL CASES (Favorable Disposition)

New Jersey v. Neulander, 2002 N.J. LEXIS 1074 (NJ 7/18/2002) The media has a First Amendment right to know the names of jurors and conduct media interviews. A trial court may, however, during the pendency of a retrial prevent such media access.

CAPITAL CASES (Unfavorable Disposition)

Hall v. Luebbers, 2002 U.S. App. LEXIS 14157 (8th Cir 7/15/2002) "The performance of Hall's counsel at his murder trial and penalty hearing was not so constitutionally deficient and prejudicial as to deprive him of a fair trial, his Brady claims are without merit, and he was not denied due process by the court's refusal to instruct on involuntary manslaughter or by his appearance in shackles during the penalty phase of trial."

Tennessee v. Holton, 2002 Tenn. Crim. App. LEXIS 572 (TN Crim App 7/17/2002) Relief denied on the following issues: "(1) whether the evidence adduced at trial is sufficient to support the jury's verdicts; (2) whether the statute setting forth the defense of insanity in Tennessee is volitive of the United States Constitution in the context of a prosecution for first degree premeditated murder; (3) whether under the United States Constitution inadequate acoustics in the courtroom during his trial denied the appellant his right to a fair trial; (4) whether under the United States and Tennessee Constitutions the imposition of a sentence of death violates a criminal defendant's fundamental right to life; (5) whether the evidence adduced during the guilt/innocence and sentencing phases of the appellant's trial supports the jury's imposition of sentences of death; and (6) whether the appellant's sentences of death are comparatively disproportionate."

Fortenberry v. Haley, 2002 U.S. App. LEXIS 14383 (11th Cir 7/17/2002) Relief denied on claims that: "(1) that the prosecution used its peremptory challenges to discriminate unconstitutionally on the basis of race; (2) that the trial court's "heinous, atrocious and cruel" instruction to the jury was unconstitutional; and (3) that defense counsel rendered ineffective assistance at the guilt and penalty phases of Fortenberry's trial."

United States v. Bernard & Vialva, 2002 U.S. App. LEXIS 14533 (5th Cir 7/19/2002) Relief denied on issues relating to: A) improperly dismissing a prospective juror for cause; B) failing to order a severance and a mistrial sua sponte in the punishment phase of trial; C) district court failed to conduct an adequate investigation into alleged communications between a third-party and jurors; D) district court violated Appellants' First Amendment, Eighth Amendment and Due Process rights and 18 U.S.C. § 3593(c) and § 3593(f) by admitting victim impact statements containing improper references to religion and improper characterizations of Appellants and their crimes; E) the district court improperly defining certain aggravating factors in its instructions to the jury, and the evidence is legally insufficient to support the jury's findings regarding three aggravating factors; F) the jury arbitrarily found that Appellants' ages were not mitigating factors; G) exclusion of mitigating testimony concerning a childhood incident of racial harassment; H) prosecutorial statements in closing argument; and, I) the "mental state factors" and "statutory aggravating factors" were not found by the grand jury or alleged in the indictment.

People v. Michaels, 2002 Cal. LEXIS 4518 (CA 7/18/2002) Sentence affirmed on claims relating to: 1) admissibility of confessions, 2) rejection of a guilty plea proper prior to amendment of the complaint that, as amended, included special circumstances, 3) whether the evidence supported a finding of special circumstances, 4) claims relating to ineffective assistance of counsel, and 5) admission of aggravating evidence in the penalty phase.

OTHER NOTABLE CASES

People v. Mower, No. S094490 (CA 07/18/2002) State law authorizing medical use of marijuana, permits a defendant to raise his or her status as a qualified patient or primary caregiver as a defense at trial, or in a motion to set aside an indictment or information.

Middlebrook v. Delaware, No. 273, 2000 (Del 07/15/2002) A delay of almost four years between indictment and trial is such an egregious delay that it is presumptively prejudicial.

Cox v. Miller, No. 01-2515 (2nd Cir 07/18/2002) Confession during an Alcoholics Anonymous not privileged as appellant failed to establish that relevant communications were made for the purpose of obtaining spiritual guidance.

United States v. Gil, No. 01-1489 (2nd Cir 7/18/2002) Relief granted as the government suppressed an exculpatory memorandum with the meaning of Brady v. Maryland.

United States v. Martinez-Espinoza, No. 01-40653 (5th Cir 07/17/2002) Conviction for attempted illegal reentry is dismissed under the Speedy Trial Act.

AMENDED OR DELAYED PUBLICATION CASES

No cases noted.

FOCUS

As noted in the introduction both this week and last week, several important and potentially important developments have occurred in the last few weeks. Below is one the latest motions attacking the federal death penalty in the Moussaoui prosecution in the Eastern District of Virginia:

The defendant has previously filed a Motion to Dismiss Notice of Intention to Seek Sentence of Death. In addition, standby counsel have filed a Supplemental Memorandum in support of that motion, in light of the Supreme Court’s decisions in Ring v. Arizona, 122 S.Ct. 2428 (2002) and Harris v. United States, 122 S.Ct. 2406 (2002), and before them, Jones v. United States, 526 U.S. 227 (1999) and Apprendi v. New Jersey, 530 U.S. 466 (2000). The government has responded to both the motion and the Supplemental Memorandum.

Given the holdings in Ring and Harris that aggravating factors (in death penalty cases) or other facts which make a defendant eligible for a greater punishment than that to which he would otherwise be subject are “elements” of a “greater offense,” it would appear that the factors alleged in the Notice of Special Findings should be treated as elements of greater offenses, i.e., as four death eligible capital murder conspiracies. That Ring refers to them as “equivalent to elements” is of no moment. On the same day Ring was decided, the Supreme Court omitted the words “equivalent to” when it referred to facts which increased the maximum punishment to which the defendant wasexposed. Nothing in Ring or Harris or, for that matter, in Apprendi or Jones, suggests that such factors are of any less constitutional significance than other offense elements.

The government’s position is internally inconsistent. On the one hand, it contends in its Opposition to Standby Counsel’s Supplemental Memorandum at 14 n.6 that it has created no new offenses. On the other hand, it admits that the aggravating factors included in the Notice section of the indictment, which were not included in the charges contained in the original indictment, “establish[] that Counts One, Two, Three and Four are capital eligible.” Id. at 8. If, indeed, the aggravating factors are necessary to make these charges capital eligible offenses, i.e., they are facts necessary to raise the possible punishment to death, with which proposition counsel agree, they plainly are offense elements within the meaning of Ring, Harris, Jones and Apprendi.

The government’s argument unhinges the results in those cases from their constitutional moorings. While the actual holding in Ring is that a defendant is entitled to a jury trial as to factors which establish death eligibility, the explicit basis for that holding is that Arizona’s aggravating factors in its death penalty scheme were elements of the capital eligible offense. The Supreme Court at its outer limits by the facts alleged in the indictment and found by the jury. Put simply, facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense’”); Harris, 112 S.Ct. at 2416 (the principle “by which history determined what facts were elements . . . defined elements as ‘fact[s] legally essential to the punishment to be inflicted’”) (quoting United States v. Reese, 92 U.S. 214, 232 (1876) (Clifford, J., dissenting)). It is simply impossible to argue after Ring and Harris that the facts alleged in the government’s Notice of Special Factors are not elements of the offense, since, as surely the government must concede, they “are facts that expose [this] defendant to a punishment greater than that otherwise legally prescribed . . .,” i.e., the death penalty.

The government’s reliance on United States v. Cotton, 122 S.Ct. 1781 (2002), is misplaced. In arguing that Cotton endorses the proposition that all that is required is a jury verdict, the government conveniently ignores the determinative fact that Cotton had not objected at trial to the omission of drug quantity from the indictment.1 Thus, the significance of Cotton is simply that a jury verdict supported by overwhelming evidence cures an Apprendi-type defect in the indictment if the defendant does not object to that defect. See also United States v. Hooker, 841 F.2d 1225, 1227-29 (4th Cir. 1988) (en banc) (holding that indictment must explicitly include all elements of the offense, but stating that failure of indictment to do so can not first be raised after direct appeal) (citing United States v. Roberts, 296 F.2d 198 (4th Cir. 1961); Hagner v. United States, 285 U.S. 427, 428 (1932)).

Unlike in the circumstances of drug cases, for example, upon which the government relies, the FDPA provides a detailed, integrated scheme applicable to capital cases which is not consistent with Ring and Harris in many aspects and which can not be fixed by the government’s invention of a Notice of Special Findings section in a capital indictment.2 Counsel do not here repeat the innumerable problems with the FDPA that will not be solved by the government’s quick fix. They merely note that those problems are not solved by the government’s sarcastic comments and inflammatory rhetoric.

More fundamental, however, is the fact that Congress never intended the aggravating factors in the FDPA to be offense elements. Rather they were treated as sentencing elements. Because it lacks power to define elements of a crime, when the Court has been required to determine whether a statute sets forth offense elements or sentencing factors, it has looked to congressional intent: “The question before us is whether Congress intended the statutory references . . . to define a separate crime or simply to authorize an enhanced penalty.” Castillo v. United States, 530 U.S. 120, 123 (2000) (emphasis added). Accord Jones, 526 U.S. at 232–39 (1999); Almendarez-Torres, 523 U.S. 224, 228 (1998); Harris, 122 S.Ct. at 2442. Thus, in Harris and Almendarez-Torres, the Court found the facts at issue to be sentencing factors, in Castillo and Jones, offense elements. But in both sets of cases, the Court proceeded by exhaustive statutory, not constitutional, analysis. That is because the Constitution, though it places limits upon Congress’ ability to designate certain facts as sentencing factors, accords courts no power to recast statutes so that they might fit within those limits.

In Harris, the Supreme Court exhaustively considered “the distinction the law has drawn between the elements of a crime and factors that influence a criminal sentence.” 122 S.Ct. 2410. The Court reaffirmed that the threshold question of statutory construction is whether Congress intended relevant facts to be offense elements or sentencing factors. 122 S.Ct. at 2411. The Court explained that this distinction is significant because “[l]egislatures define crimes in terms of the facts that are their essential elements, and constitutional guarantees attach to these facts.” 122 S.Ct. at 2410 (emphasis added).

The Harris Court then considered the canon of constitutional avoidance. Under this doctrine, when “a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [a court’s] duty is to adopt the latter.” United States ex rel. Attorney General, v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909). See also Jones, 526 U.S. at 239–40. The Court found the doctrine of constitutional avoidance had no application because, at the time Congress enacted § 924(c), Supreme Court precedent allowed Congress to label as sentencing factors facts which increased the minimum punishment for a crime. As the Court explained:

The avoidance canon rests upon our “respect for Congress, which we assume legislates in the light of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). The statute at issue in this case was passed when McMillan [v. Pennsylvania, 477 U.S. 79 (1986)] provided the controlling instruction, and Congress would have had no reason to believe that it was approaching the constitutional line by following that instruction. We would not further the canon’s goal of eliminating friction with our coordinate branch, moreover, if we alleviated our doubt about a constitutional premise we had supplied by adopting a strained reading of a statute that Congress had enacted in reliance on the premise. And if we stretched the text to avoid the question of McMillan’s continuing vitality, the canon would embrace a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed. We decline to adopt that approach.

122 S.Ct. at 2413. Finding the doctrine of constitutional avoidance irrelevant to its analysis, the Court, in accord with Congress’ intent, concluded that “brandishing” was a sentencing factor. See 122 S.Ct. at 2414.

As counsel have previously demonstrated in their Supplemental Memorandum, it is clear that Congress intended the “aggravating factors” set forth at § 3592(c) to be just that, “factors”, i.e. sentencing factors, not elements. Indeed, the plain language of the statute declares that the facts enumerated at § 3592(c)(1)–(16) are factors to be considered in determining sentence, not elements of a crime. See United States v. Cooper, 91 F. Supp.2d 90, 104 (D. D.C. April 14, 2000) (holding intent elements are aggravating factors not elements and need not be alleged in indictment); United States v. Kaczynski, 1997 WL 716487 *2 (E.D. Cal. 1997) (holding aggravating factors are not elements and need not be alleged in indictment).

Finally, the doctrine of constitutional avoidance is inapplicable here as it was in Harris. It is inapplicable, first, because there is no ambiguity about Congress’ choice: “Where Congress has made its intent clear, we must give effect to that intent.” Miller v. French, 530 U.S. 327, 341 (2000) (quotations omitted).

(quotations omitted).

Federal statutes are to be so construed as to avoid serious doubt of their constitutionality. Where such serious doubts arise, a court should determine whether a construction of the statute is fairly possible by which the constitutional question can be avoided. It is equally true, however, that this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication; although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . . or judicially rewriting it.

Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 841 (1986) (citations and internal quotations omitted) (emphasis added).

Second, the doctrine of constitutional avoidance is inapplicable because, at the time Congress enacted the FDPA, as counsel have previously noted, the Supreme Court had explicitly approved treating facts required for imposition of the death penalty as sentencing factors. See Walton v. Arizona 497 U.S. 639, 649 (1990).

Notably, the Supreme Court has once before considered whether a federal death penalty provision that violated the Fifth and Sixth Amendments could be remedied by judicial reconstruction. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court considered Fifth and Sixth Amendment challenges to a sentencing provision that authorized the death penalty only upon a jury’s recommendation. The Court held that the provision unconstitutionally burdened the rights to proof beyond a reasonable doubt and to jury trial because it did not authorize imposition of the death penalty upon a plea of guilty or trial to the court. Id. at 581–82. In an effort to salvage the provision, the government proposed a number of interpretations of the statute and cited ad hoc procedures developed by district courts as “cures” for the constitutional problems. Jackson rejected each approach as requiring legislative, not judicial, action.3 Id. at 572–81. It explained that “[t]o accept the Government’s suggestion that the jury’s sentencing role be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other hands.” Id. at 576. The Court rejected the government’s creation because it was “not in fact the scheme that Congress enacted.” Id. at 573 (emphasis added). See also Blount v. Rizzi, 400 U.S. 410, 419 (1971) (striking down statute permitting Postmaster General to make determination that material was obscene and rejecting government’s argument that the provision be construed to require decision by a judge, explaining that “it is for Congress, not this Court, to rewrite the statute”).

Jackson is precisely on point. To allow the government here to simply return to the grand jury and ask it to indict aggravating factors in a never-before-seen “notice” section, would be to do what Jackson forbade. Congress, relying on Walton, created a scheme in which the prosecutor has sole discretion in determining whether to charge a capital offense and which aggravating factors to charge. Allowing the government to seek indictment of Congressionally defined sentencing factors would give “to the [grand jury] the ultimate duty that Congress deliberately placed in other hands," i.e., those of the government attorney.4 The fact that it renders the FDPA unconstitutional should be no more of an obstacle to this court reaching the correct constitutional result in the case of the “so-called 20th hijacker” than it was to the Supreme Court in Jackson.5

CONCLUSION

For the foregoing reasons, in addition to those presented in the Motion to Strike Notice of

Intent to Seek Penalty of Death, and the Supplemental Memorandum in Support of Motion to Dismiss

OTHER RESOURCES:

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

DPIC Bestows Sixth Annual Thurgood Marshall Journalism Awards to Honor Excellence in Coverage of Capital Punishment

Bill Kurtis's A&E Network documentary "Investigative Reports: Death Penalty on Trial," an exceptional series titled "Uncertain Justice" by Rebekah Denn and Lise Olsen of the Seattle Post-Intelligencer, and the groundbreaking program "The Executions Tapes" by Sound Portraits Productions and WNYC will receive honors during the Death Penalty Information Center's (DPIC) Sixth Annual Thurgood Marshall Journalism Awards at the National Press Club in Washington, DC. The program will also feature keynote remarks from Stephen B. Bright, Executive Director of the Southern Center for Human Rights, and a special greeting from U.S. Senator Edward M. Kennedy (D-Mass.). Read DPIC's Press Release. See also, Thurgood Marshall Journalism Awards.

Human Rights Commission to Review Petition of Mexican National Scheduled for Execution

The Inter-American Commission on Human Rights will review a petition submitted on behalf of Javier Suarez Medina, a Mexican national scheduled for execution in Texas on August 14th. The Commission, established to ensure that nations comply with safeguards established in human rights treaties, will review whether or not the arresting police notified Medina of his right to obtain assistance from the Mexican Consulate. The petition claims that, while Texas police were aware of Medina's Mexican nationality, new evidence reveals that they provided false information to Mexican consular officials about his nationality and prevented them from assisting Medina during his capital murder trial. If consular rights were denied, Medina's execution would be illegal under international law according to the representatives of the Mexican Capital Legal Assistance Program. See the Press Release from Medina's Legal Counsel. See also, Foreign Nationals.

NEW VOICES: Arizona Supreme Court Justice Questions Reforming the Death Penalty

Arizona Supreme Court Justice Stanley Feldman recently stated that the fundamental issue of whether the death penalty should be retained in Arizona cannot be ignored. As the state Supreme Court's longest-serving justice, Feldman criticized efforts in Arizona to "perfect what I consider to be imperfectible" and noted: "There is no way to really do it right. The final decision has always come down to the members of our (Supreme Court) as to whether someone should live or someone should die...I am not smart enough to make that decision on any fair and consistent basis given the tremendous range of facts and circumstances that affect every victim and every defendant and every set of facts that make up a case." (Associated Press, July 15, 2002). See also, New Voices.

Death Penalty Prosecutors Gather for Las Vegas Conference

Prosecutors from across the nation will gather at Caesar's Palace in Las Vegas from July 24-27 for a conference sponsored by the American Association of Government Attorneys in Capital Litigation. Among the attendees are 42 state and county prosecutors from Illinois, where questions of accuracy in applying the death penalty led Gov. George Ryan to impose the nation's first moratorium on executions in January 2000. The state will use its capital litigation trust to finance approximately $800 plus airfare for each prosecutor it sends. The fund was established to better train prosecutors and defense attorneys after serious flaws were found in the state's capital punishment system. (Associated Press, July 15, 2002). See also, Illinois Commission on Capital Punishment.

If you have found this e-zine useful you might want to visit: www.lidab.com (Louisiana's public defender), probono.net (ABA) & www.capdefnet.org (federal defender). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com, including both a free weekly free criminal law and limited state court decision lists (note that Findlaw's analsysis is very questionable at times, so caution is advised).

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CITATION

This edition may be cited as:

Capital Defense Weekly, Volume V, Issue 26; (http://capitaldefenseweekly.com/archives/020722.htm)