Amicus Curiae Brief — McKoy v. North Carolina

COPY = wx ©

In The

,

o_———O—

October Term, 1988

DOCK McKOY, JR.,

Petitioner,

On Writ of Certiorari To The Supreme

Court of The State of North Carolina

BRIEF AMICI CURIAE SUBMITTED BY THE

STATES OF CALIFORNIA, ALABAMA,

ARIZONA, CONNECTICUT, GEORGIA, IDAHO,

INDIANA, KENTUCKY, MISSOURI,

MISSISSIPPI, NEVADA, NEW JERSEY, NEW

MEXICO, OKLAHOMA, ## PENNSYLVANIA,

TEXAS, AND VIRGINIA

JOHN K. VAN DE KAMP

Attorney General

RICHARD B. IGLEHART, Chief

Assistant Attorney General

JOHN H. SUGIYAMA, Senior

- Assistant Attorney General

HERBERT F. WILKINSON

Deputy Attorney General

DANE R. GILLETTE

Deputy Attorney General

[Attorney of Record]

350 McAllister St., Rm: 6000

San Franicsco, CA 94102

Telephone: (415) 557-1475

‘ | 5

Office of the Chief State's Attorney

340 Street

— —— 06492

Indianapolis, Indiana 46204

J

.

n City, Missouri 65102

MICHAEL C. MOORE

Attorney * of Mississippi

Office of the Attorney Genera

P.O. Box 220

Jackson, Mississippi 39205

BRIAN McKAY

Attorney General of Nevada

pee poly the Attorney General

Carson City, Nevada 89710

PETER N. PERRETTI, JR.

Attorney General of New Jersey

Office of the Attorney General

25 Market Street

Trenton, New Jersey 08625

HAL STRATTON

Attorney General of New Mexico

Office of the Attorney General

P.O. Drawer 1508

Santa Fe, New Mexico 87504

eee r

* 9 85

—— ee

112 state Spee

Oklahoma City, Oklahoma 73105

Box 12548

torney General

Richmond, Virginia 23219

ii.

TABLE OF AUTHORITIES

Baldwin v. Alabama

472 U.S. 372 (1985)

Barclay v. Florida

463 U.S. 939 (1983)

Blystone v. Pennsylvania

No. 88-6222

cert. granted March 27, 1989

Booth v. Maryland

482 U.S. 496 (1987)

Boyde v. California

No. 88-6613

cert. granted June 5, 1989

California v. Brown

479 U.S. 538 (1987)

Eddings v.Oklahoma

455 U.S. 104 (1982)

Franklin v. Lynaugh

Gregg v. Georgia

428 U.S. 153 (1976)

Hildwin v. Florida

U.S. __, 57 L.W. 3778 (1989)

Hooks v. State

534 8. 2d 1453 (Ala. Crim. App. 1987)

Lockett v. Ohio

438 U.S. 586 (1978)

iii.

Lockhart v. McCree

476 U.S. 162 (1986)

Lowenfield v. Phelps

— U.S. ___, 108 S.Ct. 546 (1988)

Mills v. Maryland

— U.S. ___, 108 S.Ct. 1860 (1988)

Penry v. Lynaugh

No. 87-6177

People v. Brown

46 Cal.3d 432

250 Cal.Rptr. 604 (1988)

People v. Brown

40 Cal.3d 512,

220 Cal.Rptr. 637 (1985)

People v. Brownell

79 111. 2d 508

404 R. B. 2d 181 (1980)

People v. Gates

43 Cal.3d 1168

240 Cal.Rptr. 666 (1987)

People v. Johnson

47 Cal.3d 1194

255 Cal.Rptr. 569 (1989)

Pulley v. Harris

465 U.S. 37 (1984)

Saffle v. Parks

No. 88-1264

cert. granted April 24, 1989

2

iv. 4.

Saffle v. Parks

No. 88-1264 4

Spaziano v. Florida

468 U.S. 447 (1984) 1

State v. Bellamy

293 S.C. 103

359 S.E.2d 63 (1987) 8

State v. McKoy

323 N.C. 1, 372 S.E.2d 12 (1988) 3

State v. Williams

113 N.J. 393

550 A.2d 272 (1988) 0 On Writ of Certiorari To The Supreme

* Court of The State of North Carolina

476 U.S. 28 (1986) 7

Zant v. Stephens

462 U.S. 862 (1983) 2 INTEREST OF AMICI CURIAE

Amici curiae are states which have

Zant v. St

462 U.S. 862, n. 13 (1983) 7

Constitutional Provisions

United States Constitution

Eighth Amendment 1

447, 464 (1984). They have, therefore,

taken different to the

classification of capital cases, sce

Lowenfield v. Phelps, . s. 108

S.Ct. 546 (1988), as well as to the

(1983).

Increasingly, however, the states

have found that this Court's examination of

a particular statutory scheme soon

translates into a defense attack on their

own statutes. These tend to

focus on a single phrase or limited portion

of the Court's opinion, taken out of

context, and occur whether there are

differences or similarities between the

provision being reviewed and their own.

The interpretation of Mills v. Maryland,

b.s. , 108 S.Ct. 1860 (1988) by

Petitioner McKoy illustrates the point.

In Mills v. Maryland, supra, 108

S.Ct. 1860, this Court held that the

instructions and a sentencing form might

have misled the jurors and thus precluded

some of them from considering otherwise

relevant mitigating evidence. Mills aid

not hold that the Eighth Amendment

precludes the states from imposing burdens

of persuasion or unanimity on a defendant

with respect to mitigating evidence offered

at the penalty phase of a capital trial.

It does not stand for the proposition that

every instructional error which might have

misled a jury regarding its statutory

duties automatically constitutes a

violation of the defendant's federal

constituti al rights. Rather, Mills is,

as the . cth Carolina Court

concluted, i “statute-specific” holding.

State v : «oy, 323 N.C. 1, 372 8. B. 2d 12,

are cons

compelled, but solely because they are not

constitutionally prohibited.

separate prerequisites to a valid death

sentence. First, sentencers may not be

given unbridled discretion in determining

the fate of those charged with capital

offenses. .. . Second, even though the

sentencer’s discretion must be restricted,

the capital defendant generally must be

allowed to introduce any relevant

mitigating evidence regarding his

character or record and any of the

circumstances of the ot tense

California v. Brown, 479 U.S. 538, 341

(1987). The Court has also acknowledged

that these requirements ‘are somewhat in

4.

distressing is the tendency to

attacks on isolated words or phrases

out of context. This case illustrates the

problem.

1. For a

example compare

reference to ‘residual doubt“ in Lockhart

v. McCree, 476 U.S. 162, 181 — „ with

the defense assertion in in

Lynaugh, be ee Bre s. ct. at 2326, that

Lockhart a constitutional right to

an instruction on residual doubt.

consider issues that had arguably been

resolved by earlier opinions.

Boyde v. California, Wo. 88-6613, cert.

anted June 5, 1989; Saffle v. Parks, No.

91264, cert. granted April 24, 1989;

Blystone v. Pennsylvania, Wo. 88-6222,

cert. granted March 27, 1989. Indeed, the

Court has heard argument in Penry v.

In Mille v. Maryland, supra, 108

S.Ct. 1860, the Court concluded 22

a

evidence.

not understood

4 circumstance

i

5

ö

if

:

;

|

:

„

2

if

i

‘ie

North Carolina e

jurors may only weigh against the

aggravating factors those mitigating

Court, and its method for or the

consideration of mitiga evidence has

been cited with favor... .* Franklin .

„ supra, 108 s. ct. at 2331. See

also Hildwin v. Florida, *

L. u. 3778 (1989) (the Court one in’

3

i

i

|

Babee

requiremen

586 (1978) and Bddings v.Oklahoma, 455 U.S.

104 (1982). However, an instructional

error which leads the jury to an incorrect

interpretation of its duty under state lew

will not constitute a violation of the

Eighth Amendment unless the erroneous

interpretation of the law is itself

prohibited by the United States

Constitution. See, @.g-, Barclay .

7.

U.S. 939, 956 (1983)

463

Florida,

supra, 463 9.8. at 956-

448, 250 Cal.Rptr. 604 (1988).

Amici endorse Respondent's analysis

Carolina statutes and the

extent to which they comply with the Eighth

Amendment. We do not suggest, however,

that its an is the only, or

necessarily best, method of balancing

constitutionally acceptable schemes.

by the states as a means of balancing

aggravation and mitigation in the penalty

phase of a capital trial. See Turner v.

Murphy, 476 U.S. 28, 34 (1986); Zant v.

Stephens, 462 U.S. 862, 875-876, n. 13

(1983). As recently noted in Franklin v.

Lynaugh, supra, 108 S.Ct. at 2331, the

a more rational and equitable

administration of the death penalty.” See

also Baldwin v. Alabama, 472 U.S. 372, 374

(1985), which upheld the constitutionality

of a “peculiar and unusual” statutory

scheme. 7

Thus, while North Carolina. places a

burden of persuasion on the defendant,

other states require only that he raise

evidence of mitigating circumstances. See,

e.g., Hooks v. State, 534 8. 2d 1453, 1465-

1466 (Ala. Crim. App. 1987). Similarly,

while some states require the state to

prove aggravating circumstances beyond a

reasonable doubt, see, @.g., e v.

Brownell, 79 111. 2d 508, 404 N.E.2d 181,

194 (1980), others place no burden of proof

on the . See, @.9-, People Vv.

Johnson, 47 Cal.3d 1194, 1250-1251,

Cal.Rptr. 569 (1989). Under some statutory

schemes the prosecution must prove beyond

a reasonable doubt that aggravation exceeds

mitigation, see, e. g., State v. Williams,

113 N.J. 393, 550 A.2d 1172, 1206 (1988),

but others include no burden on that issue.

See, e. g., People v. Gates, 43 Cal. 3d 1168,

1201, 240 Cal.Rptr. 666 (1987). Although

some states require the sentencer to weigh

the aggravating and mitigating evidence in

order to determine the appropriate penalty,

see, @.g., People v. Brown, 40 Cal.3d 512,

542-543, 220 Cal.Rptr. 637 (1985), others

eschew such a process. See, @.g.,

State v. Bellamy, 293 &.C. 103, 359 8. B. 2d

63, 65 (1987). Simply put, “specific

standards for balancing aggravating against

mitigating circumstances are not

constitutionally required.’ Zant v.

Stephens, supra, 462 U.S., at 875-876 n.

13.

This Court has long recognized the

limited and specific nature of its

responsibility when reviewing a capital

punishment scheme. Gregg v. Georgia,

supra, 428 U.S. at 195. Given past

Pulley v. Harris, 465 U.S. 37, 45 (1984):

“To endorse the statute as a whole is not

to say that anything different is

unacceptable.”

DATED: June 7, 1969

Respectfully submitted,

Deputy Attorney General

[Attorney of Record]

DRG: chv