concluding that failure to call other available witnesses during penalty phase was not ineffective because "[t]hese additional witnesses would have testified to essentially the same impressions and sentiments about [the petitioner] that his close relatives had already related at trial and would have added little to the weight of the mitigating evidence"
How later courts described this case
- concluding that failure to call other available witnesses during penalty phase was not ineffective because "[t]hese additional witnesses would have testified to essentially the same impressions and sentiments about [the petitioner] that his close relatives had already related at trial and would have added little to the weight of the mitigating evidence"
- holding that counsel’s decision not “to procure expert psychological testimony on the effect that [the defendant’s] traumatic upbringing had on his social and emotional development” fell within “the wide range of professionally competent assistance”
- addressing issue that trial attorney was deficient for not mentioning mitigating evidence in closing argument during punishment phase, observing that decision to place emphasis “on eliciting sympathy from the jury . . . rather than thoroughly dissecting the evidence presented . . . is a uniquely tactical decision that a reviewing court must treat with deference,” and concluding that record did not support conclusion that trial counsel’s argument was deficient
- finding that defense counsel’s strategic choice to maintain a “low-key” approach and not object to certain inflammatory closing arguments was reasonable
Written by the judges who cited it.
The opinion
KRAVITCH, Circuit Judge,
concurring specially, in which CLARK, Senior Circuit Judge, joins:
Because I believe that this case is controlled by the principles announced in Henderson and applied in Adams — largely because Devier never requested an instruction on the standard of proof with respect to the alleged Elrod rape — I join the per curiam opinion in its entirety. I write separately, however, to state my concern about the reliability of death sentences based in part on evidence of unadjudicated crimes absent guidance to the jury on how to consider that evidence.
The mere fact that evidence of the defendant’s alleged unadjudieated criminal activity is sufficiently reliable to be admitted in evidence at a capital sentencing hearing does not mean that the jury’s sentence based on that evidence necessarily is constitutionally reliable. The basic requirements of reliability and fundamental fairness extend to the entire sentencing process. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976) (“Because of [the qualitative difference between the death penalty and a sentence of imprisonment], there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”). The crucial Eighth Amendment question is whether the ultimate *1467 sentencing decision is reliable, not whether the admission of certain evidence is reliable.
Assertions by the State at a capital sentencing healing that the defendant committed crimes for which he has not been convicted are inherently suspect. As the Fifth Circuit has explained, “there remains a long-held reservation about the use of wrongdoing not then being tried. These concerns express our acceptance that a jury suffers the human weakness of blending wrongs — a result inconsistent with our fundamental commitment to charge specificity, jeopardy and due process.” Milton v. Procunier, 744 F.2d 1091, 1097 (5th Cir.1984), cert. denied, 471 U.S. 1030 , 105 S.Ct. 2050 , 85 L.Ed.2d 323 (1985). On the other hand, the State has an important interest in presenting to the sentencing jury all relevant evidence regarding the defendant’s character. Once the- State establishes at least one statutory aggravating circumstance, the jury constitutionally may consider any conduct that reflects upon the defendant’s character. See Zant v. Stephens, 462 U.S. 862, 878 , 103 S.Ct. 2733, 2743 , 77 L.Ed.2d 235 (1983). The defendant’s prior criminal activity is one example of such conduct. The courts, therefore, generally should give effect to the State’s legitimate interest in informing the jury about the defendant’s prior criminal conduct without infringing on the defendant’s right to a reliable and fundamentally fair sentencing proceeding.
The American justice system typically balances these competing concerns by requiring the State to present evidence sufficient to satisfy an applicable standard of proof and the court to properly instruct the jury as to that standard. See, e.g., Sandstrom v. Montana, 442 U.S. 510, 524 , 99 S.Ct. 2450, 2459 , 61 L.Ed.2d 39 (1979) (holding that jury must be instructed to find each element of the crime under the proper standard of proof).
The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Addington v. Texas, 441 U.S. 418, 423 , 99 S.Ct. 1804, 1808 , 60 L.Ed.2d 323 (1979) (quoting In re Winship, 397 U.S. 358, 370 , 90 S.Ct. 1068, 1076 , 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)).
Just as it is necessary to instruct the jury as to the standard by which the State must prove the elements of the primary crime in order to guarantee a fundamentally fair guilt-innocence proceeding, so too the jury must be instructed as to the standard by which the State must prove' unadjudicated criminal conduct to be used as a nonstatutory aggravating circumstance in order to guarantee a fundamentally fair sentencing proceeding. Without a proper instruction as to the sufficiency of proof for nonstatutory aggravating circumstances, the jury may include in its life or death equation factors which in fact may be supported by an unreliably small quantum of evidence. Requiring a proper instruction, on the other hand, in no way interferes with the State’s countervailing interest in presenting relevant evidence of the defendant’s character.
The lone federal court of appeals squarely to address the admissibility of unadjudicated-crimes evidence at the sentencing phase of a capital trial has acknowledged these principles. In Milton v. Procunier the Fifth Circuit justified its admission of unadjudicated-crimes evidence by stressing that the defendant is protected by devices other than the automatic exclusion of potentially relevant character evidence — “by properly applied standards of relevance and sufficiency of proof.” 744 F.2d at 1097 (emphasis added). Indeed, several states expressly require that the State prove extraneous criminal conduct at the sentencing phase of a capital trial by at least clear and convincing evidence. See, e.g., People v. Balderas, 41 Cal.3d 144 , 222 Cal.Rptr. 184 , 711 P.2d 480, 515-16 (1985) (beyond a reasonable doubt); State v. Brooks, 541 So.2d 801, 814 (La.1989) (clear and convincing evidence).
Henderson and Adams do not apply with the same force when a capital defendant requests a standard of proof instruction regarding unadjudicated crimes evidence intro *1468 duced at sentencing. In that circumstance, redress for a habeas petitioner is much more readily available. Upon request by defense counsel, therefore, the trial judge in capital cases should instruct the sentencing jury as to the standard by which the State must prove the defendant committed the crime. Failure to provide such an instruction would impermissibly impinge on the defendant’s right to a reliable and fundamentally fair sentencing determination.