Amicus Curiae Brief — Ayers v. Belmontes

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JUN 2 2 2006

No. 05-493

OFFICE OF THE CLERK

SUPREME COURT, US :

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT AYERS, Acting Warden,

Petitioner,

V.

FERNANDO BELMONTES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF TEXAS AND SIXTEEN OTHER STATES

AS AMICI CURIAE IN SUPPORT OF PETITIONER

GREG ABBOTT GENA BUNN

Attorney General of Texas Chief, Postconviction

Litigation Division

KENT C. SULLIVAN

First Assistant Attorney General * EDWARD L. MARSHALL

Deputy Chief, Postconviction

DON CLEMMER Litigation Division

Deputy Attorney General

For Criminal Justice P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

*Counsel of Record (512) 936-1400

ATTORNEYS FOR AMICI CURIAE

[ Additional counsel listed inside]

TROY KING

Attorney General of Alabama

11 South Union Street

Montgomery, Alabama 36130

(334) 353-3915

TERRY GODDARD

Arizona Attorney General

1275 West Washington

Phoenix, Arizona 85007-2997

(602) 542-4686

MIKE BEEBE

Arkansas Attorney General

323 Center Street

Little Rock, Arkansas 72201

(S501) 682-2007

JOHN W. SUTHERS

Colorado Attorney General

1525 Sherman St., Fifth Floor

Denver, Colorado 80203

(303) 866-3052

CHARLES J. CRIST, JR.

Attorney General of Florida

The Capitol PL-01

Tallahassee, Florida 32399-1050

(850) 414-3300

LAWRENCE G. WASDEN

Idaho Attorney General

P. O. Box 83720

Boise, Idaho 83720-0010

LISA MADIGAN

Illinois Attorney General

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Chicago, Illinois 60601

(312) 814-3698

JIM HOOD

Attorney General

State of Mississippi

P.O. Box 220

Jackson, Mississippi 39205

(601) 359-3680

GEORGE J. CHANOS

Attorney General

Nevada Department of Justice

100 North Carson Street

Carson City, Nevada 89701

PATRICIA A. MADRID

New Mexico Attorney General

P.O. Drawer 1508

Santa Fe, New Mexico 97504-1508

JIM PETRO

Ohio Attorney General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

(614) 466-8980

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth of Pennsylvania

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

(717) 787-3391

HENRY D. McMASTER

Attorney General of South Carolina

P.O. Box 11549

Columbia, South Carolina 2921 1

(803) 734-3970

MARK L. SHURTLEFF

Utah Attorney General

Utah State Capitol Complex

East Office Bldg., Suite 320

Salt Lake City, Utah 84114-2320

(801) 538-9600

ROBERT F. McDONNELL '

Attorney General of Virginia

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

ROB McKENNA

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, Washington 98504-0100

Fs

This is a capital case.

QUESTIONS PRESENTED

Does Boyde v. California, 494 U.S. 370

(1990), confirm the constitutional

‘ sufficiency of California’s “unadorned

factor (k)” instruction where a defendant

presents mitigating evidence of his

background and character which relates to,

or has a bearing on, his future prospects as

a life prisoner?

Does the Ninth Circuit’s holding, that

California’s “unadorned factor (k)”

instruction is constitutionally inadequate to

inform jurors they may consider “forward-

looking” mitigation evidence, constitute a

“new rule” under Teague v. Lane, 489 U.S.

288 (1989)?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............. ebeetawweuescs i

TABLE OF CONTENTS 3.1... cece cece cs cccccess il

TABLE OF AUTHORITIES ....................... iil

INTEREST OF AMICI CURIAE ..................... l

SUMMARY OF THE ARGUMENT .................. l

ieee eds cs cednenés vecuceses 3

I. When Applying Boyde, Distinctions Between

Forward-looking and Backward-looking

Evidence Do Not Affect the Eighth Amendment

SCL i ie Wes bee Fis 66955 006 6'00' 00's 4

Il. Nevertheless, the Catchall Mitigation

Instruction Employed Cured Any Eighth

Amendment Error.............ccccccccecceues 7

ie See lci eves nsdudecesebyeeseeeedeas 9

TABLE OF AUTHORITIES

Cases Page

Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005) .... passim

Blystone v. Pennsylvania, 494 U.S. 299 (1990) ........... 2,8

Booth v. Maryland, 482 U.S. 496 (1987) .............0065. 3

Boyde v. California, 494 U.S. 370 (1990) ............ passim

Brown v. Payton, 544 U.S. 133 (2005) .................. 2

California v. Brown, 479 U.S. 538 (1987)... ........2045. 3

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............. 3,8

Franklin v. Lynaugh, 487 U.S. 164 (1988) ........... passim

Graham v. Collins, 506 U.S. 461 (1993) ............0045. 6

Johnson v. Texas, 509 U.S. 350 (1993) ..........004. passim

Lockett v. Ohio, 438 U.S. 586 (1978) 2.0... cee eee ee 3,7

Payne v. Tennessee, 501 U.S. 808 (1991) .............. 3-4

Penry v. Johnson, 532 U.S. 782 (2001) .............0056. 2,8

Penry v. Lynaugh, 492 U.S. 302 (1989) ............405. 3,5

People v. Belmontes, 755 P.2d 310 (Cal. 1988),

cert. denied, 488 U.S. 1034 (1989) ............... ]

Reddix v. State, 381 So.2d 999 (Miss. 1980) .............. 7

Roberts v. State, 910 P.2d 1071 (Ok. Crim. App. 1996) ..... 7

Simmons v. State, 419 So.2d 316 (Fla. 1982) ....... paced 7

Skipper v. South Carolina, 476 U.S. 1 (1986) ....... _. passim

State v. Nelson, 501 S.E.2d 716 (S.C. 1998) .............. 7

-jv-

TABLE OF AUTHORITIES, continued

Cases Page

St. Clair v. Commonwealth, 140 §.W.3d 510 (Ky. 2004) .... 7

Teague v. Lane, 489 U.S. 288 (1989) ..............0.005. i

Tuilaepa v. California, 512 U.S. 967 (1994) ............. 2,5

Woodson v. North Carolina, 428 U.S. 280 (1976) ......... 3

Zant v. Stephens, 462.U.S. 862 (1983) ............ 00 cae 4

Constitutions and Statutes

ae ek Es CI PED 4 cv cn pauéowccdcvedccdnd 8

TEX. CODE CRIM. PROC. ANN. art. 37.071 ............... 5,8

INTEREST OF AMICI CURIAE

Amici States have a substantial interest in ensuring the

validity of death sentences obtained through constitutional means.

States also have an interest in defending clearly drafted sentencing

statutes — such as the instant California catchall mitigation

instruction — from ad hoc and unwarranted collateral attacks in

federal court. If the lower court’s decision is allowed to stand, the

policy of finality embodied in Boyde v. California, 494 U.S. 370

(1990), will be a nullity. This policy crucially protects state court

judgments based on constitutional sentencing proceedings where

an appellate court ——- sometimes decades later — recharacterizes

the mitigating evidence in a way no reasonable jury would in order

to obtain relief for a death-sentenced inmate. Amici States are

prejudiced by such actions which are often based on nothing more

than supposition and speculation. Thus, the Attorney General of

Texas, and the attorneys general of amici States, have a significant

stake in this Court’s resolution of the Questions Presented.

SUMMARY OF THE ARGUMENT

Respondent Fernando Belmontes was convicted of the

brutal murder of Stacy McConnell in Victor, California in 1981.

During the sentencing phase of Belmontes’s capital trial, the

defense presented evidence of his troubled childhood, wholesome

character, and good behavior during a prior commitment to the

California Youth Authority in mitigation of punishment. This

evidence was offered to show that Belmontes was not incorrigible

and could make a positive contribution to prison society if

incarcerated for life.

The jury was then presented with a catchall mitigation

instruction submitied as part of a longer, non-exhaustive list of

mitigating factors to be considered.' Ultimately, however, the jury

] Notably, the trial court instructed the jury that its

consideration of aggravating evidence was limited to the enumerated

factors in the instructions.

De

sentenced Belmontes to death and the California Supreme Court

affirmed. People v. Belmontes, 755 P.2d 310 (Cal. 1988), cert.

denied, 488 U.S. 1034 (1989).

Belmontes’s state and federal district court collateral

attacks were unsuccessful, but the United States Court of Appeals

for Ninth Circuit eventually held — for reasons Belmontes himself

never advanced — that his death sentence was unconstitutional

because the catchall mitigation instruction prevented the jury from

duly considering his mitigating evidence. Belmontes v. Brown,

414 F.3d 1094 (9th Cir. 2005). This Court granted certiorari

review and should now reverse.

The Ninth Circuit’s decision relies upon a spurious

distinction between forward- and backward-looking mitigating

evidence that finds no support in this Court’s decisions. Initially,

this Court has implicitly rejected the lower court’s reasoning in

both Franklin v. Lynaugh, 487 U.S. 164 (1988) (plurality opinion),

and Johnson v. Texas, 509 U.S. 350 (1993), where it held that

there was no practical difference between forward- and back ward-

looking sentencing considerations. Further, state courts have

taken a similar approach, largely relying on this Court’s reasoning

in Tuilaepa v. California, 512 U.S. 967, 977 (1994), and Skipper

v. South Carolina, 476 U.S. 1 (1986). The court below clearly

erred when it held that such a distinction creates a reasonable

likelihood of Eighth Amendment error.

Regardless, the lower court’s opinion is in direct conflict

with this Court’s holdings in Boyde and Brown v. Payton, 544

U.S. 133 (2005), which approved of the California catchall

mitigation instruction. In fact, this Court has long noted that such

catchall instructions are sufficient to protect a capital defendant’s

interest in individualized sentencing. See, e.g., Penry v Johnson,

532 U.S. 782, 803 (2001); Blystone v. Pennsylvania, 494 U.S. 299,

305 (1990). Consequently, the Attorney General of Texas, and the

attorneys general of amici States, respectfully suggest that this

Court should reverse and hold that catchall instructions on

mitigating evidence are constitutionally adequate for Eighth

Amendment purposes.

ARGUMENT

At the root of this Court’s capital jurisprudence are found

the competing — and arguably irreconcilable — interests involved

in capital sentencing: the requirement for an individualized

determination of moral culpability based on both aggravating and

mitigating factors, and the need to guide and channel a jury’s

consideration of these factors adequately so as not to render the

result arbitrary and capricious. The Woodson line. of cases first

construed the Eighth Amendment to require that a capital

sentencing jury not be precluded from consideration, as a

mitigating factor, of the character and record of the individual

offender, as well as the circumstances of the particular offense.

Eddings v. Oklahoma, 455 U.S. 104, 111-12 (1982); Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Woodson v.

North Carolina, 428 U.S. 280, 303-04 (1976).

As the Court later explained, “evidence about the

defendant’s background and character is relevant because of the

belief, long held by this society, that defendants who commit

criminal acts that are attributable to a disadvantaged background,

or to emotional and mental problems, may be less culpable than

defendants who have no such excuse.” Penry v. Lynaugh, 492

U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538,

545 (1987) (O’Connor, J., concurring)). Additionally, there is no

question that “testimony regarding [a] petitioner's character and

his probable future conduct if sentenced to life in prison” is

mitigating “in the sense that [it] might serve ‘as a basis for a

sentence less than death.’” Skipper, 476 U.S. at 4-5 (quoting

Lockett, 438 U.S. at 604). This is because “a defendant’s

disposition to make a well-behaved and peaceful adjustment to life

in prison is itself an aspect of his character that is by its nature

relevant to the sentencing determination.” /d at 7 (emphasis

added).

However, it is not constitutionally required that

-4-

consideration of mitigating evidence be structured or balanced in

any particular way. Franklin, 487 U.S. at 179; Booth v. Maryland,

482 U.S. 496, 502 (1987), overruled on other grounds, Payne v.

Tennessee, 501 U.S. 808 (1991); Zant v. Stephens, 462 U.S. 862,

875-76 (1983). Indeed, the Court has acknowledged that a mere

possibility that the jury was precluded from considering relevant

mitigating evidence by a particular jury instruction or sentencing

mechanism does not establish Eighth Amendment error. Boyde,

494 U.S. at 380. Rather, such error occurs only if there is a

“reasonable likelihood” that the jury applied its instructions in a

way that prevented the consideration of such evidence. /d. This

harm requirement reflects the “strong policy against retrials years

after the first trial where the claimed error amounts to no more

than speculation,” as well as a state’s interest in providing the jury

with a framework for discharging its awesome capital sentencing

responsibilities. /d.; Franklin, 487 U.S. at 179.

I. When Applying Boyde, Distinctions Between Forward-

looking and Backward-looking Evidence Do Not Affect

the Eighth Amendment Analysis.

The Ninth Circuit erred when it held that there was a

reasonable probability Belmontes’s jury was unable to consider

evidence that “he would live a constructive life in prison and make

positive contributions to others if granted life without the

possibility of parole.” Belmontes, 414 F.3d at 1129. The lower

court reached this conclusion despite the fact that Belmontes’s jury

was provided with a catchall mitigation instruction which

permitted it to consider “[a]ny other circumstance which

extenuates the gravity of the crime.” /d. at 1130. The court of

appeals relied upon a specious distinction to reach its holding, i.e.,

that forward-looking evidence “wholly unrelated to [Belmontes]’s

culpability” was somehow different than “backward-looking”

evidence in the way it related to California’s catchall instruction.

Id. at 1134. As a result, the court below found that Boyde —

which dealt with the exact same instruction at issue in the instant

case — was inapplicable. Jd The lower court was wrong.

y 3

While this Court’s jurisprudence has recognized a

distinction between forward- and backward-looking evidence, it

is a distinction without a difference for Eighth Amendment

purposes. See Tuilaepa, 512 U.S. at 977 (“Both a

back ward-looking and a forward-looking inquiry are a permissible

part of the sentencing process”). As the Court explained in

Skipper, testimony concerning a defendant’s future prospects in

prison merely reflects an aspect of that defendant’s character. 476

U.S. at 7. And contrary to the Ninth Circuit’s opinion below, good

character is certainly viewed by society as mitigating. Penry v.

Lynaugh, 492 U.S. at 319; cf Belmontes, 414 F.3d at 1134.

This is true regardless of whether the evidence

demonstrates that the defendant possessed positive character traits

in the past or the potential for such traits in the future. In either

case, good character extenuates the gravity of the crime to some

degree. While there may be no societal consensus concerning how

mitigating good character may be, this is a sentencing decision

best left to juries, which may consider the individual

circumstances of the offender and the offense. By deciding there

was a reasonable likelihood the jury did not weigh Belmontes’s

mitigating evidence. the court below violated the province of the

jury.

Indeed, this Court implicitly rejected a distinction between

forward- and backward-looking mitigating evidence in Franklin

v. Lynaugh. In Franklin, the plurality held that Texas’s future

dangerousness special issue was sufficient to encompass evidence

of Franklin’s good disciplinary record during a prior incarceration.

487 U.S. at 177-83. The jury instruction at issue queried the jury

concerning future conduct.’ Yet the Court deemed it adequate to

2 The future dangerousness inquiry asks, “Do you find

from the evidence beyond a reasonable doubt that there is a probability

that the Defendant ... would commit criminal acts of violence that would

constitute a continuing threat to society?” Franklin, 487 U.S. at 168 n.3

(citing TEX. CODE CRIM. PROC. Art. 37.071(b)).

an

give effect to evidence of past conduct. /d. at 178-79. This is

because future conduct and past conduct both reflect on a

defendant’s character and, in essence, his or her deathworthiness.

Id.; cf. id. at 185 (recognizing that evidence of past conduct had no

constitutionally mitigating relevance to show positive character

beyond the future “ability to exist in prison without endangering

jailers or fellow inmates”) (O’Connor, J., concurring). Thus,

although Franklin was a plurality opinion, a majority of the Court

agreed the Eighth Amendment requires only that a jury be able to

give effect to a defendant’s mitigating character evidence, not that

it must consider forward- and backward-looking aspects of that

character independently.

The Court again refused to acknowledge such a concept in

Johnson v. Texas. There the Court held that the same Texas

special issue was constitutionally adequate to encompass

mitigating evidence of youth. 509 U.S. at 353. The Court first

explained that Johnson’s suggestion that his crime was attributable

to his youth — a distinctly backward-looking viewpoint — was

within the jury’s effective reach in answering the forward-looking

future dangerousness inquiry. /d. at 368-69. This is because “the

impetuousness and recklessness” of youth subsides with age. /d.

at 368. Essentially, past character begets future character; the two

categories of evidence are actually one in the same.

Moreover, given the fact that the Johnson Court had the

benefit of its earlier opinion in Boyde, the distinction between

forward- and back ward-looking evidence is even less meaningful.

Application of the reasonable likelihood standard of Boyde with

a “commonsense understanding of the instructions” does not allow

for any other interpretation. 494 U.S. at 380-81; see also Graham

v. Collins, 506 U.S. 461, 476 (1993) (the possibility that

mitigating evidence might have “some arguable relevance beyond

the special issues” was immaterial as long as the jury was able to

give effect to the evidence in some meaningful way). The Ninth

Circuit's decision to the contrary defies commonsense precisely

because there is no reasonable, constitutional basis for it. Such a

result does not satisfy Boyde.

Various state courts have also rejected a distinction

between forward- and backward-looking evidence in capital

sentencing trials. See, e.g., State v. Nelson, 501 S.E.2d 716, 719

(S.C. 1998) (character includes backward-looking disposition to

engage or not engage in certain behavior and forward-looking

propensity to do so); Simmons v. State, 419 So.2d 316, 320 (Fla.

1982) (potential for rehabilitation is an element of a defendant’s

character relevant to mitigation under Lockett); Reddix v. State,

381 So.2d 999, 1010 (Miss. 1980) (consideration of defendant’s

favorable behavior both before and after the offense is relevant to

deathworthiness). This is true even where — as in Johnson and

Franklin — the actual sentencing inquiry is temporally limited.

See St. Clair v. Commonwealth, 140 S.W.3d 510, 568 (Ky. 2004)

(backward-looking inquiry into criminal history also allows for

consideration of forward-looking evidence); Roberts v. State, 910

P.2d 1071, 1083 n.7 (Ok. Crim. App. 1996) (“Future threat can

only be supported when past acts, coupled with the actions of the

defendant in the current offense, together with any post-offense

actions, provide a jury the factual basis needed to determine if a

defendant will be a continuing threat to society”).

Therefore, it is clear that assigning constitutional

significance to whether punishment evidence is forward- or

backward-looking is irrational. There is simply no reasonable

likelihood Belmontes’s jury believed it could not give effect to his

evidence of possible future conduct within the catchall instruction

at issue. As this Court explained in Boyde, jurors are not assumed

to make severe, technical, and irrational distinctions that defy

commonsense. 494 U.S. at 380-81. The lower court’s decision,

on the other hand, is the epitome of such illogic and must be

reversed.

Il. Nevertheless, the Catchall Mitigation Instruction

Employed Cured Any Eighth Amendment Error.

Central to the Court’s holding in Boyde was also the fact

that a catchall mitigation instruction —- which directed the jury to

consider “[a]ny other circumstance which extenuates the gravity

of the crime” — did not prevent the jury from considering

evidence of Boyde’s good character. 494 U.S. at 381. And as

demonstrated supra, the possibility Belmontes would be a model

prisoner in the future surely reflected upon his character and may

have extenuated or excused his deathworthiness in the eyes of the

jurors. Skipper, 476 U.S. at 7. Thus, the catchall mitigation

instruction submitted in this case —which is identical to the one

given in Boyde — satisfied the Eighth Amendment requirements

of Eddings.

This Court has repeatedly approved of such “clearly

drafted catchall instruction|s] on mitigating evidence.” Penry v.

Johnson, 532 U.S. at 803. In Penry v. Johnson, the Court

suggested that the Texas catchall instruction — “[w]hether, taking

into consideration all of the evidence, including the circumstances

of the offense, the defendant’s character and background, and the

personal moral culpability of the defendant, there is a sufficient

mitigating circumstance or circumstances to warrant that a

sentence of life imprisonment rather than a death sentence be

imposed” — would satisfy the Eighth Amendment. /d. (citing

TEX. CODE CRIM. PROc. Art. 37.071(2)(e)(1)).

Further, in Blystone v. Pennsylvania, the Court held that a

catchall instruction providing for the consideration of “[a]ny other

evidence of mitigation concerning the character and record of the

defendant and the circumstances of his offense” satisfies the

Eighth Amendment requirement that a “jury be allowed to

consider and give effect to a// relevant mitigating evidence.” 494

U.S. at 305 (citing 42 PA. CONS. STAT. § 9711(e)(8)). The

California catchall instruction is not meaningfully different and,

arguably, is broader than either of these instructions because it

does not restrict itself to the circumstances of the offense,

character, or background. “Any other circumstance” means any

other circumstance. There is no reasonable likelihood a jury

would interpret such an instruction to exclude any type of evidence

from its consideration.

CONCLUSION

For the foregoing reasons, this Court should reverse the ~

judgment of the lower court.

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney General

DON CLEMMER

Deputy Attorney General

For Criminal Justice

GENA BUNN

Chief, Postconviction

Litigation Division

*EDWARD L. MARSHALL

Deputy Chief, Postconviction

Litigation Division

* Counsel of Record

P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548

Tel: (512) 936-1400

Fax: (512) 320-8132

Email: elm@oay.state.tx.us

ATTORNEYS FOR

AMICI CURIAE