Frey v. Fulcomer

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

12-30-1997

Frey v. Fulcomer

Precedential or Non-Precedential:

Docket 95-9007

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation

"Frey v. Fulcomer" (1997). 1997 Decisions. Paper 287.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/287

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Filed December 30, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 95-9007

RODERICK HERMAN FREY

Appellant

v.

THOMAS A. FULCOMER, Warden,

State Correctional Institution at Huntingdon

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civ. No. 89-cv-04248)

Argued: December 17, 1996

Before: BECKER, ROTH, and McKEE, Circuit Judges.

(Filed December 30, 1997)

ROBERT B. DUNHAM, ESQUIRE

(ARGUED)

Center for Legal Education

Advocacy & Defense Assistance

437 Chestnut Street

Suite 501

Philadelphia, PA 19106

LOUIS M. NATALI, JR., ESQUIRE

(ARGUED)

Temple University Law School

1719 North Broad Street

Philadelphia, PA 19122

PENN B. GLAZIER, ESQUIRE

625 West Chestnut Street

P.O. Box 1387

Lancaster, PA 17608-1387

Attorneys for Appellant

JOSEPH C. MADENSPACHER,

ESQUIRE

District Attorney

JOHN A. KENNEFF, ESQUIRE

(ARGUED)

First Assistant District Attorney

Office of the District Attorney

50 North Duke Street

Lancaster County Courthouse

Lancaster, PA 17602

Attorneys for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal by Roderick Frey, who was convicted by

a Pennsylvania state court jury of murder in thefirst degree

and was sentenced to death, from a final order of the

district court denying his petition for a writ of habeas

corpus. Frey's appeal requires us to consider whether the

jury charge at the penalty phase of his trial violated the

2

Eighth Amendment as construed in Mills v. Maryland, 486

U.S. 367 (1988) and McKoy v. North Carolina, 494 U.S. 433

(1990). These cases hold that a death sentence should be

vacated if the jury, upon receiving the judge's instructions,

may have thought that it could only consider those

mitigating factors which it unanimously found to exist.

Because we conclude that the charge was reasonably likely

to have had that effect, we will reverse the order of the

district court and direct it to grant a conditional writ of

habeas corpus permitting Pennsylvania to conduct a new

sentencing proceeding or to sentence Frey to life

imprisonment.

I. Facts and Procedural History

The following are the basic background facts. A fuller

factual history is set forth in our opinion on Frey's previous

appeal on different issues, see Frey v. Fulcomer, 974 F.2d

348, 351-56 (3d Cir. 1992) ("Frey I").

Roderick and Barbara Frey were married in 1956. By

1979, they were experiencing difficulty in their marriage

and spoke of divorce. Financial difficulties and the death of

their son in an automobile accident two years earlier had

contributed to their marital discord. Frey apparently also

had engaged in extramarital affairs. Frey worked as a truck

driver for the Turkey Hill dairy chain. His job brought him

into contact with Charles Zehring, the manager of a Turkey

Hill convenience store, whom the Pennsylvania Supreme

Court later described as suffering from mental illnesses,

including paranoid schizophrenia. See Commonwealth v.

Frey, 475 A.2d 700, 702 (1984). By mid-1979, Frey had

begun discussing with Zehring his marital difficulties, as

well as his concerns about the financial strain that would

be caused by a divorce. Zehring suggested as a solution

that Frey arrange to have Mrs. Frey killed in a manner that

made her death appear accidental.

In October 1979, Barbara Frey sued Frey for divorce, and

he moved out of their home. Around the same time, Frey

and Zehring finalized an arrangement whereby Frey agreed

to pay Zehring five thousand dollars to kill his wife. Frey

financed the deal by borrowing the money from Barbara

against their expected property settlement.

3

On November 8, 1979, Frey arranged to meet Barbara

early in the morning at the Turkey Hill convenience store

where she worked. Frey then passed along information to

Zehring about her schedule and likely route to the store. In

the meantime, Zehring, in exchange for five hundred

dollars, enlisted the assistance of Richard Heberlig. Though

Heberlig was initially led to believe that he would only be

assaulting the intended victim, he became aware, on the

morning of November 8, that murder was in fact planned.

Zehring and Heberlig set out at four a.m. on November 8

to locate and kill Barbara Frey. Posing as police officers,

they pulled her car over to the side of the road and

approached her. Their plan at that point was to beat Mrs.

Frey into unconsciousness and then stage an auto accident

as their cover. When she did not lose consciousness,

Heberlig panicked and shot her in the chest. After the

shooting, they moved Mrs. Frey's car to a nearbyfield

where they failed in an attempt to set the car onfire. Frey

subsequently paid Zehring the balance of the money he

owed for the contract killing.

Barbara Frey's body was discovered by a passerby later

that morning. On December 6, 1979, Frey confessed to the

murder. Zehring and Heberlig were subsequently arrested,

and all three men were charged with murder and

conspiracy. Zehring and Heberlig pled guilty and received

sentences of life imprisonment.

Despite an earlier confession, which he later recanted,

Frey opted to stand trial before a jury. The defense called as

a witness a psychologist who testified to Frey's low-to-

normal IQ, his basically submissive personality, his

minimal tendency to defend himself, and his risk averse

nature. The defense proceeded to argue that Zehring had

threatened Frey, and that Frey had paid Zehring the five

thousand dollars as extortion money in an effort to protect

his family. The jury was apparently unconvinced by the

story, for it found Frey guilty of murder in thefirst degree.

A sentencing hearing followed immediately. After counsel

for both Frey and the Commonwealth had presented their

arguments, the court instructed the jurors on how they

were to assess the evidence before them in order to decide

4

whether Frey was to be sentenced to life imprisonment or

to death. Part of that deliberative process involved

consideration of the aggravating and mitigating

circumstances in Frey's case, and the state trial judge gave

the following instruction:

[T]he 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. The verdict must be a sentence of life

imprisonment in all other cases.

App. at 286.

The judge then told the jury that there was only one

relevant aggravating circumstance (contract murder) but

that there were six possible mitigating circumstances:

Frey's lack of prior convictions; the influence of mental

disturbance; impairment of the ability to appreciate the

criminality of the act; youth or advanced age; duress or

substantial domination by another person; and any other

circumstances that they, as jurors, would consider relevant.

Finally, the judge instructed the jury that the

Commonwealth must prove aggravating circumstances

beyond a reasonable doubt, but that the defense need only

prove mitigating circumstances by a preponderance of the

evidence.

On May 15, 1989, after five and one-half hours of

deliberation, the jury returned a sentence of death.

Following his sentencing, Frey retained new counsel and

appealed his conviction and sentence to the Pennsylvania

Supreme Court, which affirmed. See Commonwealth v.

Frey, 475 A.2d 700 (1984). In that appeal Frey raised

several arguments, including a claim that his sentence was

disproportionate relative to the life sentences given to his

accomplices. The Pennsylvania Supreme Court held that

the cases of Zehring and Heberlig were not "similar" for

purposes of the proportionality review required by 42 Pa.

Cons. Stat. Ann. S 9711(h)(3)(iii) (Purdon 1982).

In July 1984, Frey petitioned for relief under

Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons.

5

Stat. Ann. S 9543(3)(xiii) (Purdon 1982) alleging exculpatory

after-discovered evidence -- statements made by Zehring

while in prison evidencing Zehring's domination of Frey.

The Court of Common Pleas denied Frey's motion, and the

Pennsylvania Supreme Court affirmed. See Commonwealth

v. Frey, 517 A.2d 1265 (1986). The Supreme Court held

that Frey could have elicited this evidence during the guilt

phase of the trial, and, at all events, that a different verdict

was unlikely.

Frey again petitioned under Pennsylvania's Post

Conviction Hearing Act on various other theories, including

ineffective assistance of counsel. Both the Court of

Common Pleas and the Pennsylvania Supreme Court

rejected Frey's claims, holding, inter alia, that Frey had

suffered no prejudice from his counsel's failure to

accurately state the law regarding mitigating circumstances

to the jury at sentencing. See Commonwealth v. Frey, 554

A.2d 27 (1989). In this petition Frey also contended that

the jury charge at the penalty phase of his trial violated

Mills. This argument was also rejected. See 554 A.2d at 30-

31.

His state court remedies exhausted, Frey then turned to

federal court. In March 1991, he filed a petition for a writ

of habeas corpus, 28 U.S.C. S 2254 (1988), in the District

Court for the Eastern District of Pennsylvania. Although the

district court denied the petition with respect to all guilt

phase issues, it found that Frey had received ineffective

assistance of counsel at the penalty phase and was

prejudiced thereby, and that the court had improperly

admitted certain testimony at that stage of the proceedings

as well.1 Accordingly, the district court granted Frey a writ

of habeas corpus, without prejudice to the Commonwealth's

right to resentence Frey to life imprisonment, or

alternatively, to conduct further proceedings.

_________________________________________________________________

1. The testimony at issue involved Sharon Bowers, an acquaintance of

Frey's. Although not appearing at the guilt phase of the trial, Bowers

testified at the sentencing phase that Frey complained often of his

problems with Mrs. Frey, and that on one occasion in May or June of

1979 Frey told Bowers that "I would kill the son of a bitch [sic] if I

knew

I could get away with it."

6

The Commonwealth appealed to this court, and on July

10, 1991, we vacated the district court's grant of habeas

corpus relief. See Frey I. We held that although

performance of defendant's trial counsel was deficient at

the penalty stage, habeas relief was not appropriate under

the test of Strickland v. Washington, 466 U.S. 668 (1984),

since it was not reasonably probable that the jury would

have sentenced Frey to life imprisonment rather than death

had Frey been afforded effective assistance of counsel.2 We

also held that Frey was not denied due process by the

admission of the Bowers' testimony. We remanded the

matter for further reconsideration of other issues raised by

Frey's habeas petition. In October 1995, after an additional

hearing and supplemental briefing, the district court denied

the petition.

Frey now appeals the order of the district court denying

his petition for habeas corpus relief, raising a host of legal

issues. However, as noted in the margin, only the question

whether the jury charge at the penalty phase impermissibly

required the jury to unanimously find the existence of

mitigating circumstances in violation of the Eighth

Amendment warrants extended discussion.3 Our review of

this legal issue is plenary. See Frey I, 974 F.2d at 356.

_________________________________________________________________

2. As part of his alleged deficient performance at the penalty phase,

Frey's counsel had based his arguments to the jury on a Pennsylvania

death penalty statute that had been held unconstitutional three years

earlier, largely because the statute improperly restricted the defendant's

ability to argue mitigating circumstances to the jury. See Frey I, 974

F.2d at 350. We found that this was not prejudicial error in part because

the trial judge properly instructed the jury as to which aggravating and

mitigating factors to consider, as well as how the jury should balance

those factors. See id. at 351. Although we stated at that time that the

court "carefully" instructed the jury, and that the judge read "proper

instructions" on how to weigh the aggravating and mitigating factors, the

question whether the jury charge itself violated Mills-McKoy was not

before us at that time and thus those earlier remarks are not controlling

here.

3. Frey advances four other bases for relief. First, he once again raises

an ineffective assistance of counsel claim. We considered this claim in

Frey I, and determined that Frey was not prejudiced by the failings of his

attorney. See supra note 2. But Frey now argues that O'Neal v.

7

II. The Jury Charge

Frey challenges his sentence on the ground that the jury

charge at the penalty phase of his trial violated the Eighth

_________________________________________________________________

McAninch, ___ U.S. ___, 115 S.Ct. 992 (1995) creates a new standard for

review of ineffective assistance of counsel claims and thus requires this

court to reconsider the matter. We find this contention without merit

and decline to reconsider Frey's ineffective assistance of counsel claim.

In brief, O'Neal does not change the standard applicable to these types

of claims; instead, it only requires that when a court is in "grave doubt"

about the likely effect of an error on a jury's verdict, that court should

not treat that error as harmless. See id. at 994; see also Yohn v. Love,

76 F.3d 508, 522 (3d Cir. 1996)(construing O'Neal). Even assuming that

this case would trigger an O'Neal analysis, this court did not indicate at

any point in its prior opinion that it was in grave doubt about Frey's

claim. Indeed, in Frey I we stated that counsel's "shortcomings, though

highly unfortunate, have not undermined [our] confidence in the

outcome." 974 F.2d at 369 (internal quotations omitted). O'Neal would

not command a different result.

Second, Frey argues that the state trial court erred when it failed to

instruct the jury that the defendant's age could be considered as a

mitigating circumstance, in violation of both 42 Pa. Cons. Stat.

S 9711(e)(4) (Purdon 1982), which provides that age can be a mitigating

circumstance, and the Eighth Amendment. We find this argument to

lack merit, and agree with the Pennsylvania Supreme Court which stated

that, whereas youth and old age could be considered a mitigating

circumstance, middle age -- Frey was 42 at the time he committed the

crime -- could not. At all events, we note that the jury instructions

clearly indicated to the jurors that they could consider any

circumstances that they felt were relevant as mitigating evidence.

Third, Frey raises a claim regarding the alleged after acquired

evidence. He submits that statements made by Zehring after Frey's

sentencing was complete constitute after acquired evidence and thus

merit a new sentencing hearing. Because we conclude that Frey's death

sentence must be vacated and remand the matter for further

proceedings, we need not reach this issue. Frey will have the opportunity

to offer Zehring's statements as evidence. Should a question of

admissibility arise in connection with these statements, that

determination will be properly made by the trial court in the first

instance.

Finally, Frey challenges the constitutionality of Pennsylvania's

proportionality review under the 14th Amendment. For the same reason,

we do not reach the merits of this issue. See infra at note 7.

8

Amendment as construed by the Supreme Court in Mills v.

Maryland, 486 U.S. 367 (1988) and McKoy v. North

Carolina, 494 U.S. 433 (1990). More specifically, Frey

contends that the charge impermissibly led members of the

jury to believe that a particular mitigating circumstance

could not be considered unless there was unanimous

agreement regarding proof of that circumstance.

The Commonwealth counters that there is "no likelihood

that a reasonable juror could have concluded that they

were prohibited from considering the mitigating evidence

that they found to exist and that was supported by proof of

a preponderance of the evidence," and thus, the

Commonwealth argues, the trial court's charge did not

suffer from the deficiencies animating Mills and McKoy. In

addition, the Commonwealth contends that we considered

the same issue in Zettlemoyer v. Fulcomer, 923 F.2d 284

(3d Cir. 1991), and that our approval of the jury charge in

that case should control our decision here.4

_________________________________________________________________

4. We note at the outset that Frey's Mills challenge might be subject to

the bar on retroactive application of new legal rules to cases on

collateral

review announced in Teague v. Lane, 489 U.S. 288 (1989)(plurality

opinion). Under Teague, a case that announces a new legal rule after the

defendant's conviction became final should not be applied retroactively

unless the rule falls within one of Teague's narrow exceptions. See also

Sawyer v. Smith, 497 U.S. 227 (1990). Whether Teague would bar

retroactive application of Mills is a close and difficult question upon

which the circuits are split. Compare Williams v. Dixon, 961 F.2d 448,

459 (4th Cir. 1992)(holding that Mills survives Teague bar), with Miller

v.

Lockhart, 65 F.3d 676, 685-86 (8th Cir. 1995)(holding that Mills

challenge is subject to Teague bar), and Nethery v. Collins, 993 F.2d

1154, 1162 (5th Cir. 1993)(same). We have not previously taken a

definitive position on this debate. In Zettlemoyer we were confronted with

this precise issue; although we decided to reach the merits of the Mills

claim in that case, we did not expressly hold whether Mills falls outside

the Teague bar. See 923 F.2d at 306 n.19. We also note that the district

court for the District of Delaware, in a brief but thoughtful opinion, has

concluded that Mills does not announce a"new rule" for Teague

purposes. See DeShields v. Snyder, 829 F. Supp. 676, 687-88 (D. Del.

1993) (Farnan, J.).

At all events, we do not reach this issue here, as the Commonwealth

has failed to raise it in its brief, and thus we deem the issue waived.

See

Williams, 961 F.2d at 459 (finding waiver). We therefore proceed to the

merits.

9

A. The Mills-McKoy-Boyde Standard

Under the Supreme Court's current construction of the

Eighth Amendment, the sentencer in a death penalty case

must be permitted to consider all relevant mitigating

evidence that the defendant proffers as counseling less

than a sentence of death. Eddings v. Oklahoma, 455 U.S.

104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978).

Accordingly, it is well established that the sentencer cannot

be precluded from considering any such evidence. Skipper

v. South Carolina, 476 U.S. 1 (1986); Eddings, 455 U.S. at

114. The source of this preclusion is irrelevant; whether its

source is statutory (Lockett), the sentencing court (Eddings),

or an evidentiary ruling (Skipper), the result is the same.

In Mills, the Supreme Court relied on these precedents to

conclude that a death sentence should be vacated if there

is a substantial probability that reasonable jurors, upon

receiving the judge's instructions and attempting to

complete the verdict form based on those instructions, may

have thought that they could only consider those mitigating

factors which they unanimously found to exist. Put

differently, if the jurors were led to believe that they

could not each individually consider certain mitigating

circumstances because there was not unanimous

agreement as to the existence of those circumstances, then

"some jurors were prevented from considering factors which

may call for a less severe penalty, and petitioner's sentence

cannot stand." Id. at 376 (internal citations omitted). See

also Zettlemoyer v. Fulcomer, 923 F.2d 284, 306-07 (1991)

(discussing Mills).

The "intuitively disturbing" hypothetical scenario which

Mills precludes is the following: All 12 jurors agree that

some mitigating circumstances are present, and that those

mitigating circumstances outweigh any aggravating

circumstances. But since the jury cannot unanimously

agree that the same mitigating circumstances are present,

they would not be permitted to engage in any deliberation

on the appropriateness of death versus life imprisonment.

See Mills, 486 U.S. at 374. Moreover, since Eighth

Amendment jurisprudence requires that each sentencer be

permitted to consider all mitigating circumstances, the Mills

Court did not require proof of actual confusion. The Court

10

reasoned that "[t]he possibility that a single juror could

block such consideration [of a mitigating circumstance],

and consequently require the jury to impose the death

penalty, is one we dare not risk." Id. at 384. Thus, the

Court required proof of only a substantial probability of

confusion on this element of the charge.

Two years later, the Court reaffirmed the importance of

Mills in McKoy v. North Carolina, 494 U.S. 433 (1990). In

McKoy, the trial court similarly instructed the jury that it

must unanimously find the existence of any mitigating

circumstances in order to weigh those circumstances in the

sentencing determination. Attempting to distinguish itself

from the Maryland statute at issue in Mills, North Carolina

argued that its death penalty sentencing scheme allowed

the jury to recommend life imprisonment even if had found

no mitigating circumstances. Id. at 438. The Court

determined that this distinction did not cure the

constitutional defect. Id. at 439. In sum, the essential

holding of Mills-McKoy is simply that one juror cannot

prevent the others from giving effect to mitigating evidence,

regardless of whether the imposition of a life sentence

depends on the existence of such evidence. See id. at 440.

Finally, in 1990, the Court clarified the legal standard for

the review of jury instructions when the claim is that the

instruction is ambiguous and open to an erroneous

interpretation (as was the case in Mills). In Boyde v.

California, 494 U.S. 370, 380 (1990), the Court held that

the proper standard in these cases is "whether there is a

reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the

consideration of constitutionally relevant evidence." We note

that the difference between the standard of review originally

outlined in Mills and the standard ultimately adopted in

Boyde is not purely semantic. Under the Mills "substantial

probability" standard our focus was directed to how a single

hypothetical juror might have reacted to the erroneous

instruction. Under the Boyde standard, we are told by the

Court, our focus should be on the reasonable likelihood

that the entire jury applied the instruction in an improper

manner. See Boyde, 494 U.S. at 380. Thus, while our

inquiry is directed toward whether the Frey instruction

11

suffers from the same type of defect discussed in Mills (i.e.

that the instruction could be read to require a unanimous

finding of mitigating circumstances), our standard is that of

Boyde, not Mills. See Zettlemoyer, 923 F.2d at 307.

B. The Zettlemoyer Charge

We have had occasion to apply the Mills-McKoy-Boyde

analysis to a similar case. In Zettlemoyer, supra, we

considered the propriety of the following instruction (which

we set forth at length for purposes of comparison):

Again, if you find unanimously, beyond a reasonable

doubt, the aggravating circumstance that I have

mentioned, . . . that is an aggravating circumstance.

. . .

[Y]ou are obligated by your oath of office to fix the

penalty at death if you unanimously agree and find

beyond a reasonable doubt that there is an aggravating

circumstances (sic) and either no mitigating

circumstance or that the aggravating circumstance

outweighs any mitigating circumstances.

923 F.2d at 307-08. We found that this instruction was not

faulty under Mills. See id. at 308. We placed emphasis on

the "if you unanimously agree and find" language

reproduced above, and reasoned that it meant "only that

the jury's ultimate conclusion must be unanimous, not that

each interim step in its deliberations be unanimous." Id.

In other words, we found that the word "unanimously" in

the latter part of the jury charge only modified the word

"agree" in the sense that the instruction was reasonably

likely to have been understood by the jury to have meant

something akin to: you must fix the penalty at death if you

unanimously agree to the ultimate conclusion that either

there is an aggravating circumstance and no mitigating

circumstances or that the aggravating circumstance

outweighs any mitigating circumstances. Accordingly, we

concluded that the fact that the jury "must unanimously

agree that the aggravating must outweigh the mitigating is

not the same as unanimously agreeing that a mitigating

factor exists." Id.

12

This interpretation of the court's "agree and find"

language was further suggested by other statements earlier

in the Zettlemoyer jury charge. For example, the trial court

had previously instructed the jury that:

If you find that aggravating circumstance and find no

mitigating circumstances or if you find that the

aggravating circumstance which I mentioned to you

outweighs any mitigating circumstance you find, your

verdict must be the death penalty. If, on the other

hand, you find that the Commonwealth has not proven

an aggravating circumstance beyond a reasonable

doubt or if they have, that the mitigating

circumstances outweight (sic) the aggravating

circumstances, then you must bring in a verdict of life

imprisonment.

This instruction basically repeats the information presented

to the jury in the instruction discussed above. It is notable,

however, that this instruction provides the jury with the

same decision calculus without the use of the term

"unanimously". Additionally, this instruction refers to

aggravating circumstances outweighing "any mitigating

circumstance you may find". Taken together, this language

supports our conclusion that Zettlemoyer's later use of the

term "unanimously" in the jury charge could not be said to

support a reasonable likelihood that the jury believed it

must unanimously agree on the existence of mitigating

circumstances.

C. The Frey Charge

We turn to the jury instruction in the present case. The

trial court charged:

Members of the jury, you must now decide whether

this defendant should be sentenced to death or life

imprisonment. The sentence will depend upon your

findings concerning aggravating and mitigating

circumstances. The Crimes Code provides 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

13

circumstances. The verdict must be a sentence of life

imprisonment in all other cases.

. . .

Remember that your verdict must be a sentence of

death if you unanimously find at least one aggravating

circumstances (sic) and no mitigating circumstances,

or if you unanimously find one or more aggravating

circumstances which outweigh any mitigating

circumstances. In all other cases, your verdict must be

a sentence of life imprisonment.

App. at 286-89. Although similar in many respects to the

charge at issue in Zettlemoyer, there is also a significant

and distinguishing dissimilarity here.

As noted above, the determinative question for our

purposes is what the jury could have understood the

charge to mean, and whether it is reasonably likely that

that understanding would have precluded the jurors'

independent consideration of any mitigating circumstances.

Specifically, we must determine whether it is reasonably

likely that the jury could have understood the charge to

require unanimity in consideration of mitigating evidence.

We need not determine whether the jurors did, in fact,

understand the charge to require unanimity in

consideration of mitigating evidence -- only whether it was

reasonably likely. See Boyde, 494 U.S. at 380; Mills, 486

U.S. at 384.

Examining the language of the jury charge, we must

answer in the affirmative. First and foremost, read in its

entirety, the relevant portion of the jury charge emphasizes

the importance of a unanimous finding, using the phrase

frequently and in close proximity to -- within seven words

of -- the mitigating circumstances clause. We rescribe the

relevant portion of the sentence: "if the jury unanimously

finds at least one aggravating circumstance and no

mitigating circumstance. . . ." Considering this close

proximity -- the clause is, to the ear and to the mind, one

sound bite -- it is quite possible that a juror would,

regardless of other qualifying language, believe that

mitigating circumstances had to be found unanimously.

14

This conclusion is not inconsistent with our holding in

Zettlemoyer (where the separation was by seventeen words,

and not one sound bite). Moreover, as noted above, we

found the Zettlemoyer instruction to require unanimity in

the ultimate conclusion, and not in the interim findings

leading to that conclusion. See Zettlemoyer, 923 F.2d at

308. This was because the Zettlemoyer trial court used the

term "unanimously" to modify only the term "agree" in the

subsequent phrase "agree and find". In the present case,

the court did not instruct the jury to "fix the penalty at

death if you unanimously agree and find...," but rather

instructed them to so fix that sentence "if the jury

unanimously finds" (emphasis added). Thus, the unanimity

language in the Frey charge could only modify the term

"find," and hence the jury could reasonably have believed

that unanimity was required in both its ultimate and

interim conclusions, especially given the close proximity we

have described. This possibility, not present in Zettlemoyer,

violates Mills.5

Other parts of the Frey charge were more likely to

increase the confusion rather than lessen it. As in

Zettlemoyer, the Frey trial court made a point of instructing

the jury on the relevant burdens of proof relating to both

aggravating and mitigating circumstances. The court

stated:

_________________________________________________________________

5. Moreover, at no point did the Frey state trial judge make a statement

clarifying each juror's right to consider mitigating evidence absent the

agreement of fellow jurors, a factor noted in Kubat v. Thieret, 867 F.2d

351, 373 (7th Cir. 1989) ("Kubat's jurors were never expressly informed

in plain and simple language that if even one juror believed that the

death penalty should not be imposed, Robert Kubat would not be

sentenced to death."); see also Kordenbrock v. Scroggy, 919 F.2d 1091,

1110 (6th Cir. 1990) (en banc) ("Because the jurors in this case were told

that aggravating factors had to be unanimous, but were not told exactly

what role mitigating factors play, it would have been reasonable for them

to assume that mitigating factors had to be found unanimously as

well."). While the absence of such an express statement is not

dispositive, for such absence was not discussed in Zettlemoyer (which

post-dated both Kubat and Kordenbrock), we reference these cases to

suggest one means by which the trial court could have clarified its

instructions for the jury. The adoption by Pennsylvania of a uniform

verdict slip, see infra at 17, supports this view.

15

Now, the Commonwealth has the burden of proving

aggravating circumstances beyond a reasonable doubt.

. . . The defendant has the burden of proving mitigating

circumstances but only by a preponderance of the

evidence. This is a lesser burden of proof than beyond

a reasonable doubt. . . . All the evidence from both

sides, including the evidence you heard earlier during

the trial in chief, as to aggravating or mitigating

circumstances, is important and appropriate for you to

consider.

App. at 288. It is what is not said here that is significant.

Unlike Zettlemoyer, where the court specifically instructed

the jury that aggravating circumstances must be proven

"unanimously, beyond a reasonable doubt," the trial court

here did not stress that the different burdens that attach

to aggravating and mitigating circumstances also

entail different unanimity requirements. A lay jury might

plausibly conclude, therefore, that aggravating and

mitigating circumstances must be discussed and

unanimously agreed to, as is typically the case when

considering whether a burden of proof has been met. Such

an understanding, however, is plainly inconsistent with the

requirements of Mills, and adds to our concern that the jury

could have understood the charge to require unanimity in

consideration of mitigating evidence.

In sum, we find that, in light of the emphasis placed in

this charge on unanimous findings, its close proximity to

the "mitigating circumstance" language, and the manner in

which this charge deviates from the Zettlemoyer charge, it

was reasonably likely that the jury could have believed that

it was required to find the existence of mitigating

circumstances unanimously before those circumstances

could be considered in its deliberations. For that reason,

the charge violates Mills.

D. The Verdict Slip

The Commonwealth correctly notes in its brief that the

verdict slip used in Zettlemoyer was substantially the same

as the verdict slip used in the present case. We also

recognize that the court's charge in this case tracked the

language set forth in that verdict slip. However, as noted

16

above, the text of the charge in Zettlemoyer differed

significantly from the one in the present case. Since

Zettlemoyer considered the verdict form and the court's

instructions as a whole in reaching its decision, see

Zettlemoyer, 923 F.2d at 308 n.22, and since the charge

here was significantly different, the discussion in

Zettlemoyer regarding the propriety of the verdict slip is not

controlling.

Moreover, as we noted in Zettlemoyer, subsequent to

Frey's trial Pennsylvania adopted a uniform verdict slip for

capital sentencing cases which expressly aims to eliminate

the type of ambiguity at issue here. See Pa. R. Crim. P. 358A.6

While both Mills and Zettlemoyer expressed a hesitancy to

"infer too much about the prior verdict form from the . . .

well-meant efforts to remove ambiguity from the State's

capital sentencing scheme," Mills also noted and inferred

from such changes "at least some concern . . . that juries

could misunderstand the previous instructions as to

unanimity and the consideration of mitigating evidence by

individual jurors." Mills, 486 U.S. at 382. Although joint

consideration of the constitutionally permissible jury charge

and the verdict form in Zettlemoyer led us to the conclusion

_________________________________________________________________

6. The revised instruction provides, in part:

B. The findings on which the sentence of death is based are (check

one):

__1. At least one aggravating circumstance and no mitigating

circumstance.

The aggravating circumstance(s) unanimously found (is)(are):

. . .

__2. One or more aggravating circumstances which outweigh(s) any

mitigating circumstance(s).

The aggravating circumstance(s) unanimously found (is)(are):

. . .

The mitigating circumstance(s) found by one or more of us

(is)(are):

. . . .

Pa. R. Crim. P. 358A (emphasis added).

17

that the amended form was not necessary to prevent a

reasonable likelihood of jury error, such is not the case

here. While we express no opinion on the constitutional

necessity of any particular amendment to the verdict form,

we do believe that the instruction and the verdict form in

the present case taken as a whole are insufficient (and that

use of the amended form may cure the defect).

E. Conclusion

Though we recognize that the interpretation offered by

the Commonwealth is plausible, instructed by the teachings

of Mills and its progeny that "[t]he possibility that a single

juror could block such consideration [of a mitigating

circumstance], and consequently require the jury to impose

the death penalty, is one we dare not risk," id. at 384, we

conclude that the charge in this case was ambiguous,

reasonably likely to confuse the jury, and thus in error.

Because we find that the jury could have understood

the charge to preclude consideration of mitigating

circumstances that were not agreed to by all twelve jurors,

and because that creates a risk that the death penalty was

imposed in spite of "factors which may call for a less severe

penalty," we must direct vacatur of Frey's sentence. See id.

at 376. We do so, however, without prejudice to

Pennsylvania's right to sentence Frey to life imprisonment

or to conduct a new sentencing hearing in a manner not

inconsistent with this opinion.7

_________________________________________________________________

7. As noted supra, Frey also contends that habeas corpus relief is

appropriate on the grounds that the Pennsylvania Supreme Court's

proportionality review was procedurally and substantively inadequate,

and therefore in violation of Frey's due process rights. The

Commonwealth rejoins that the proportionality review statute, 42 Pa.

Cons. Stat. Ann. S 9711(h)(3)(iii), does not create any cognizable liberty

interest, and therefore cannot ground a due process claim. On this point

it relies on Greenholtz v. Inmates of the Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1979), and its progeny. In general, the Greenholtz

line of decisions stands for the proposition that state-created liberty

interests will be found when the state (1) establishes substantive

predicates to guide official decisionmaking, and (2) uses explicit

mandatory language in its regulations directing the decisionmaker to

reach a particular outcome if the substantive predicates are present. See

Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 461-63

18

The order of the district court will be reversed with

instructions to grant the writ of habeas corpus

conditionally, with the proviso that Pennsylvania shall,

within 120 days, conduct a new sentencing hearing in a

manner not inconsistent with this opinion, or sentence Frey

to life imprisonment.

_________________________________________________________________

(1989). The Commonwealth maintains that the proportionality review

mandated by the Pennsylvania Supreme Court does not meet this

standard.

We note, however, that it is uncertain whether the United States

Supreme Court would follow this approach, or indeed, how it would rule

on this issue. Accord Ellis v. District of Columbia, 84 F.3d 1413, 1417

(D.C. Cir. 1996) (noting uncertainty regarding Supreme Court doctrine

on state-created liberty interests). This is because the recent decision

in

Sandin v. Conner, -- U.S. --, 115 S.Ct. 2293 (1995), while not overruling

any prior cases, see id. at 2300 n.5, sharply criticizes and effectively

abandons the Court's prior methodology (as articulated in cases such as

Greenholtz) for determining the existence of a statutory liberty interest

in

the prisoner's rights context. See Ellis, 84 F.3d at 1417-18. Sandin holds

that state-created liberty interests will be limited to "freedom from

restraint which . . . nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison

life." Sandin, 115 S.Ct. at 2300. While this is undoubtedly a departure

from Greenholtz, Thompson, et al., it is unclear exactly how radical a

shift the Court intended to spur. See Sandin, 115 S.Ct. at 2306 (Breyer,

J., dissenting). And it is still uncertain how broadly this circuit and

others will construe Sandin's reasoning.

It seems apparent that Sandin was concerned quite specifically with

the problem of prison administration and the interest of the states in the

effective control of inmates. Those interests are not at issue here, and

so

it may be that Sandin's new approach will not apply. See Ellis, 84 F.3d

at 1418. Indeed, even the Greenholtz-Thompson line of cases did not

directly deal with the type of liberty interest alleged here, and it may

be

that both Sandin and Greenholtz will prove to be imperfect analogies. At

all events, this close and difficult legal problem was not adequately

briefed before us, and, since we will vacate Frey's sentence and permit

Pennsylvania to conduct a new hearing, and potentially a new

proportionality review, we need not reach this issue at this time.

19

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

20