Fowler v. State

LUMPKIN, Judge,

specially concurring:

I concur in the court’s opinion and I write for the purpose of making additional comments regarding Appellant’s Proposition of Error XXVI concerning the court’s instruction to the jury that “sympathy, sentiment or prejudice” should not play a part in their deliberations.

This proposition of error is predicated upon the decision in Parks v. Brown, 860 F.2d 1545 (10th Cir.1988). The court accurately determines that the United States Supreme Court decision in California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987), is controlling on this issue. Judge Anderson, in his dissent in Parks to the court's holding on the sympathy instruction, accurately and poignantly stated:

The majority opinion proceeds on the premise that the jury focused on the word ‘any’ in the sentence about passions, ignoring the words and sense of the sentence as a whole. Upon that very slight and hypertechnical premise the majority constructs large conclusions: that the instruction is unconstitutional on its face because it commands the jurors to denigrate mitigating circumstances evidence; that this general instruction overrides or otherwise nullifies the specific instructions on mitigating circumstances, as well as other specific instructions; and that California v. Brown, 479 U.S. 538 , 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987), does not apply since the instruction there used the word ‘mere’ preceding the enumerated emotions.

The majority misconcieves the sense of the instruction: A reasonable juror would not stop part way through the sentence and question (at ‘any ... sympathy’) as the majority presumes. The sentence by its express terms refers to arbitrary factors (‘any influence of sympathy, sentiment, passion, prejudice, or other arbitrary factor’). Thus, it sensibly cautions the jury against imposing sentence simply on the basis of arbitrary emotions. That is not qualitatively different from the meaning imparted by the instructions in Brown. In Brown the jury was directed not to divorce its considerations from the evidence and render an essentially whimsical decision based on mere sympathy. Here, the same directive is couched in terms of any arbitrary sympathy.

*591 The context in which the sentence appears makes that clear. The next sentence in the instruction stresses impartiality. The preceding sentences state flatly that the jurors alone are the judges of the facts and that ‘the importance and worth of the evidence is for you to determine.’

860 F.2d at 1566

The very foundation of our judicial system is that jurors should return a verdict based solely upon the evidence presented during the trial and the law given to them through the instructions as apply to that particular case, and that they not be influenced by outside knowledge, belief or emotion. In this case the jurors were instructed during the guilt phase of the trial that they should not allow their decision to be based upon any emotion or other arbitrary factor. During the penalty phase of the trial the jurors were specifically instructed to weigh aggravating and mitigating circumstances in determining the appropriate punishment. I concur with Judge Anderson in his analysis in Parks that the instructions must be viewed as a whole in light of what a reasonable juror would perceive. It is not proper to focus on an isolated word and apply it in a very exaggerated and hypertechnical manner.