State v. Brown

STEWART, Justice

(concurring in the judgment):

I concur in the opinion of Justice Wilkins insofar as it sustains the guilty verdict, sets *272 aside the sentence, and remands for resen-tencing because of the trial court’s failure to instruct the jury that the aggravating circumstances must outweigh the mitigating circumstances to justify a verdict of death. I also concur with Justice Hall insofar as he agrees that the jury must find that the aggravating circumstances outweigh the mitigating circumstances.

In State v. Pierre, Utah, 572 P.2d 1338, 1347-48 (1977), this Court stated:

We hold that in the penalty phase of capital offenses the burden of proof necessary for a verdict of death over life imprisonment is on the State and that the totality of evidence of aggravating circumstances must therefore outweigh the totality of mitigating circumstances. .

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In Utah, the burden being on the State to convince the jury that the death penalty is appropriate by proof of total aggravation outweighing total mitigation, though written findings are not required, the basic concern mentioned by Mr. Justice Stewart in Gregg, at 428 U.S. 189 , 96 S.Ct. 2932 , “to minimize the risk of wholly arbitrary and capricious action” is more fully satisfied with respect to a standard of proof, we submit, than those standards approved in Gregg and Jurek

I am unable to agree with any departure from this rule of law which was concurred in by four members of this Court. However, this statement of the law, although proper as far as it goes, does not inform the jury as to what standard should be employed in determining whether aggravating circumstances outweigh mitigating circumstances. The consequence of instructing the jury that it may impose a death sentence by finding merely that aggravating circumstances outweigh mitigating circumstances, is to weigh the penalty proceeding heavily in favor of the death penalty. That is not, in my view, what the Legislature intended.

Section 76-3-207 U.C.A. (1953), as amended, 1 and other sections of the crimi *273 nal code, permit the penalty of death to be imposed only if the jury finds beyond a reasonable doubt that there are no mitigating circumstances sufficiently substantial to call for leniency.

Section 76-3-207 U.C.A. (1953), as amended, deals with the sentencing phase in a capital homicide case and sets forth specific mitigating circumstances; however, it does not specify the degree of persuasion necessary to justify the imposition of the death penalty. Sections 76-1-501 and 502 U.C.A. (1953), as amended, deal with the burden of proof with respect to all crimes and require that the State must prove every element of a crime beyond a reasonable doubt. 2 Even as to affirmative defenses, for which the defendant has the burden of producing proof, the burden of negating such defenses by proof beyond a reasonable doubt remains with the prosecution. State v. Green, 86 Utah 192 , 40 P.2d 961 (1935); State v. Harris, 58 Utah 331 , 199 P. 145 (1921); State v. White, 40 Utah 342 , 121 P. 579 (1912); State v. Vacos, 40 Utah 169 , 120 P. 497 (1911). See also § 76-1-502. Section 76-1-501 establishes proof beyond a reasonable doubt as the necessary degree of persuasion for the “culpable mental state" and “attendant circumstances,” as well as all other elements of a crime. This language is clearly broad enough to encompass the guilt phase of a capital case.

Certainly no aspect of a capital proceeding has as great importance for the defendant as the sentencing phase. In every sense the possible deprivation of life which may follow from the penalty hearing is far more significant than the trial on guilt. The overriding importance of proving guilt beyond a reasonable doubt has been recognized by its adoption as a constitutional mandate, In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970), by its ancient origin, and by its common acceptance as an indispensable element of our criminal justice system. That stringent standard of proof is applied in the guilt phase to reduce the chance of error.

How much more appropriate it is to apply that standard when life itself is at stake and any error irreversible. It is at best anomalous that the issue of life or death should be decided on the basis of a burden of persuasion standard which is typically used to decide ordinary, run-of-the-mill civil cases.

Because of the structure of the Utah capital homicide provisions, due weight can be accorded mitigating circumstances by the jury only if the standard of persuasion is beyond a reasonable doubt as to the existence of mitigating circumstances. The Utah capital homicide provisions, unlike the capital homicide provisions of a number of other states, require proof of at least one “aggravating circumstance” beyond a reasonable doubt as part of proving a defendant guilty of a substantive offense. See § 76-5-202. In the penalty phase, after guilt has been proved, the jury is necessarily aware that it has found an aggravating circumstance beyond a reasonable doubt; and the prosecution, in arguing for imposition of the death penalty, will undoubtedly dwell upon that fact. If the jury may *274 impose death merely by finding that aggravating circumstances outweigh mitigating circumstances (a preponderance of evidence test) a death penalty is virtually assured.

The Utah statute was not intended to result in the imposition of a death penalty in all eases in which that penalty might possibly be imposed. The Legislature committed to the jury the responsibility to consider carefully, and thoughtfully weigh, all the individual characteristics of the defendant’s mental and physical status, including the potential for rehabilitation, the possibility that the defendant may again commit a murder, 3 and all other circumstances bearing upon the determination of the penalty, see § 76-3-207. Not only is such deliberation and evaluation required by statute, but it is also constitutionally mandated. As stated in Woodson v. North Carolina, 428 U.S. 280, 304 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976):

[I]n capital cases the fundamental respect for humanity underlying the Eighth Amendment . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

See also Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed. 973 (1978).

The evaluation of those factors depends upon the judgment of the sentencing authority, but the exercise of that judgment may not be used in a manner which results in the death penalty being “wantonly and . freakishly imposed.” Furman v. Georgia, 408 U.S. 238, 309-10 , 92 S.Ct. 2726, 2762 (1972). Accordingly, the power of judgment committed to the sentencing authority must, to the extent that it is possible, be exercised in a manner that is consciously rational. “It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner.” Gregg v. Georgia, 428 U.S. 153, 189 , 96 S.Ct. 2909, 2932 (1976).

Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 1.1(b), Commentary, pp. 46-47 (Approved Draft 1968); President’s Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). [428 U.S. at 192, 96 S.Ct. at 2934.]

It is therefore essential that the jury be instructed as to the proper burden of persuasion necessary to impose a death penalty. In Gregg , the Supreme Court stated:

The idea that a jury should be given guidance in its decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law. [Footnote omitted.] See Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498 , 51 S.Ct. 513, 514 , 75 L.Ed. 1188 (1931); Fed.Rule Civ.Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations. [428 U.S. at 192-93, 96 S.Ct. at 2934.]

*275 Only if these principles are strictly adhered to can there be some reasonable degree of expectancy that the choice which the jury must make will be exercised untainted by individual biases, at least to the extent that jurors can consciously lay them aside. Whatever any one juror’s concept of justice may be, the people of Utah, through the Legislature, have mandated that death be meted out as punishment in only the most egregious cases which are lacking any substantial mitigating circumstances.

If the jury applies only a preponderance of the evidence test in the penalty phase, the jury will in effect be induced to administer the Utah statute as if it were virtually a mandatory death penalty statute. A construction of the statute which all but assures infliction of the death penalty raises serious constitutional questions. A mandatory death penalty, or a scheme that is virtually mandatory, is unconstitutional. Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976). At the very least there will be a number of cases in which, because of the far greater latitude allowed for doubt under the preponderance of the evidence test, death will be inappropriately imposed. For the State to execute a defendant when there is substantial doubt on the part of the jury as to the appropriateness of that penalty, is repugnant to the basic values of our society. A preponderance of the evidence test simply does not reflect the policy of our death penalty statute, or the values upon which our criminal justice system is built.

Moreover, a preponderance of the evidence test is meaningless as a standard for deciding the critical issue and incapable of rational application. What basically is involved in the sentencing phase of a capital ease is not a weighing of evidence to determine the existence vel non of a fact, but a legal-moral question: should a defendant, who is guilty of murder, live or die for that crime. Whether aggravating circumstances outweigh mitigating circumstances cannot be determined by the same mental processes by which direct and circumstantial evidence are evaluated for determining such questions as who entered an intersection first. The process of weighing and evaluating evidence to determine the existence of a factual proposition is a process common to the ordinary activities of life. The reference points are facts and inferences from facts; the process is one of logic and practical experience. The point of evaluating aggravating and mitigating circumstances in a capital case is not to prove a factual proposition but to determine a punishment. Section 76^-3-207 provides, for example, that the youth of the defendant and a lack of significant history of prior criminal activity are mitigating circumstances. The youth of the defendant, or the lack of prior criminal activity, cannot be “weighed” in any meaningful sense against the aggravating facts. How does one find that the “fact” that the age of the defendant, whether 18 or 30 years, does or does not preponderate against an aggravating circumstance? How does one make such a determination if the defendant had a shoplifting conviction or embezzlement conviction ten years previous to the murder? To speak of weighing those factors against the aggravating circumstances is to employ an appealing but meaningless metaphor which in fact gives the mind no guidance in resolution of such an overwhelmingly important question.

The “beyond a reasonable doubt” standard may, of course, be considered similar in its function to proof by a preponderance of evidence, i. e., both standards are used to resolve factual disputes. However, the term “beyond a reasonable doubt” is something more than a standard for evaluating conflicting facts and inferences; in the context of a penalty hearing, it also conveys to the jury the concept that the values upon which the criminal justice system is built do not permit the ultimate sanction to be imposed unless the conclusio’n is free of substantial doubt of any kind. That standard would require more than a factual determination; it would, as contemplated by the statute, take into account the tolerable frailties of human beings. It is, after all, in deference to those frailties that the jury is required to consider mitigating circumstances.

*276 Of course the standard which I think is required by the statute does not provide a mathematically precise test, but the nature of the inquiry does not admit of such a test. All that can be accomplished is to give the jury that guidance which is most likely to result in promoting the objectives of the statute in a manner that is most understandable to a jury.

In sum, I think the jury should be instructed that death should be imposed only if the jury is convinced beyond a reasonable doubt that there are no mitigating circumstances sufficiently substantial to call for leniency. 4

. Section 76-3-207 provides:

Capital felony — Hearing on sentence.— (1) When a defendant has been found guilty of a capital felony, there shall be further proceedings before the court or jury on the issue of penalty. The proceedings shall be conducted before the court or jury which found the defendant guilty, provided the defendant may waive hearing before the jury, in which event the hearing shall be before the court. In these proceedings, evidence may be presented as to any matter the court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence. The state’s attorney and the defendant shall be permitted to present argument for or against sentence of death. Aggravating circumstances shall include those as outlined in 76-5-202. Mitigating circumstances shall include the following:

(a) The defendant has no significant history of prior criminal activity;

(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;

(c) The defendant acted under extreme duress or under the substantial domination of another person;

(d) At the time of the murder, the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirement of law was substantially impaired as a result of mental disease, intoxication, or influence of drugs;

(e) The youth of the defendant at the time of the crime;

(f) The defendant was an accomplice in the murder committed by another person and his participation was relatively minor;

(g) And any other fact in mitigation of the penalty.

(2) The court or jury, as the case may be, shall retire to consider the penalty. In all proceedings before a jury, under this section, it shall be instructed as to the punishment to be imposed upon a unanimous verdict for death and that to be imposed if a unanimous verdict for death is not found. If the jury reports unanimous agreement to impose the sentence of death, the court shall discharge the jury and shall impose the sentence of death. If the jury is unable to reach a unanimous verdict imposing the sentence of death, the court shall discharge the jury and impose the sentence of life imprisonment.

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. Section 76-1-501 provides:

Presumption of innocence — “Element of the offense” defined. — (1) A defendant in a criminal proceeding is presumed to be innocent until each element of the offense charged against him is proved beyond a reasonable doubt. In absence of such proof, the defendant shall be acquitted.

(2) As used in this part the words “element of the offense” mean:

(a) The conduct, attendant circumstances, or results of conduct proscribed, prohibited, or forbidden in the definition of the offense;

(b) The culpable mental state required.

(3) The existence of jurisdiction and venue are not elements of the offense but shall be

established by a preponderance of the evidence.

Section 76-1-502 provides:

Negating defense by allegation or proof— When not required. — Section 76-1-501 does not require negating a defense:

(1) By allegation in an information, indictment, or other charge; or

(2) By proof, unless:

(a) The defense is in issue in the case as a result of evidence presented at trial, either by the prosecution or the defense; or

(b) The defense is an affirmative defense, and the defendant has presented evidence of such affirmative defense.

. See Section 76-1-104:

Purposes and principles of construction.— The provisions of this code shall be construed in accordance with these general purposes.

(1) Forbid and prevent the commission of offenses:

(2) Define adequately the conduct and mental state which constitute each offense and safeguard conduct that is without fault from condemnation as criminal.

(3) Prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition or [sic] differences in rehabilitation possibilities among individual offenders.

(4) Prevent arbitrary or oppressive treatment of persons accused or convicted of offenses. [Emphasis added.]

. The American Law Institute Model Penal Code (1962), which provided the basic framework for the capital punishment provisions of our criminal code, provides that the death penalty should be imposed only if “there are no mitigating circumstances sufficiently substantial to call for leniency.” Section 210-6, p. 131.