McDowell v. Calderon, 96-99000

• Decision Date: 24 November 1997
• Docket Number: No. 96-99000,96-99000
• Citation: 130 F.3d 833
• Parties: 97 Cal. Daily Op. Serv. 8847 Charles E. McDOWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 833

130 F.3d 833

97 Cal. Daily Op. Serv. 8847

Charles E. McDOWELL, Petitioner-Appellant, v. Arthur CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee.

No. 96-99000.

United States Court of Appeals Ninth Circuit.

Argued En Banc and Submitted Aug. 28, 1997.

Decided Nov. 24, 1997.

Andrea G. Asaro, Rosen, Bien & Asaro, San Francisco, California, for petitioner-appellant.

Robert F. Katz, Deputy Attorney General, Los Angeles, California, for respondent-appellee.

Appeal from the United States District Court for the Central District of California; Mariana R. Pfaelzer, District Judge, Presiding. D.C. No. CV-90-04009-MRP.

Before: HUG, Chief Judge, BROWNING, FLETCHER, PREGERSON, REINHARDT, BRUNETTI, KOZINSKI, THOMPSON, TROTT, KLEINFELD and THOMAS, Circuit Judges.

TROTT, Circuit Judge:

On May 20, 1982, Charles E. McDowell, Jr., killed Paula Rodriguez. Following this grisly homicide, a jury convicted him of various crimes, including murder committed with the special circumstances of burglary and rape, and sentenced him to death. After exhausting his claims for relief in state court, he filed a petition for a writ of habeas corpus in federal district court, which was denied. He appealed, and a divided three-judge panel of this court affirmed the district court. The panel's opinions, which fully recite the facts and the procedural background of this case, are reported at 107 F.3d 1351 (9th Cir.1997), amended and superseded in part by 116 F.3d 364 (9th Cir.1997).

By a vote of our active judges, the matter has been reheard en banc. We now vacate that part of the panel's opinion designated as "C. Supplemental Introduction," id. at 1358, leaving intact those parts affirming McDowell's convictions and deciding other issues. We have decided as to the remaining issues that the alleged misunderstanding of the jury regarding whether it could consider certain mitigating penalty phase evidence amounted to fatal constitutional error. We believe (1) the jury misunderstood a critical aspect of its task, and (2) that misunderstanding had a substantial and injurious effect and influence on its verdict of death, an effect which in all reasonable likelihood survived the trial court's ineffective attempt to cure it. Thus, we vacate McDowell's sentence of death and remand to the district court with instructions to grant the writ and to order a new trial in state court on the penalty phase of this case.

I

The alleged error we examine occurred during the third day of jury deliberations in the penalty phase. ¹ Although both parties agree that the jury members had been adequately instructed on the relevant law and they had the written instructions with them, the jurors sent a note to the trial judge which stated:

We, the jury in the above entitled action, request the following:

Direction. We have an 11 to 1 vote for death. The one juror empathically [sic] feels her mitigating circumstances are equal to the aggravating circumstances. The other 11 jurors do not all agree with the one juror[']s mitigating circumstances as all being either testimony or evidence that should be considered. Please advise which following circumstances can be considered mitigating circumstances.

1. Inadequate or insufficient psychiatric help.

2. Love/hate relationship with father/mother.

3. Daily extreme mental and physical abuse by father, also witness to daily abuse to mother and siblings.

4. Religious extremes confused defendant.

5. Confusing sexual mores at home (incest), with mother condoning or aware of incest/abuse.

6. Accused of death of favorite sister.

7. Stress of divorce from family.

8. Rejection of mother's love during teen years.

Thank you.

(Emphasis added).

In a hearing outside the presence of the jury, the state trial court said:

I feel I cannot say anything in light of the sentence which indicates which way they are voting, and anything I say at this particular time will be coercive.

...

They are asking me to interpret the evidence; something I cannot do.

Counsel for McDowell took the position that "the question could be answered; that the mitigating--or the circumstances, the circumstances named, are proper circumstances."

The state trial court responded to the jury's question:

You're asking me, in essence, to decide the case for you. You have been instructed as to the law and I hate to throw you out like this.

But if you go back and read the instructions, in particular you have one instruction in which the mitigating and aggravating factors are listed.

Then you have another instruction, the concluding instruction which reads as follows:

"One mitigating circumstance may outweigh several aggravating circumstances or one aggravating circumstance may outweigh several mitigating circumstances. You shall give each the weight to which you find it to be entitled."

Those are the two instructions that I think really apply. I would ask you to go back, reread those instructions....

(Emphasis added).

After a brief conference at the bench between court and counsel, the court asked the foreman, "Does that answer your question for now?" The foreman answered, "Yes, sir."

The jury resumed deliberations on Friday afternoon and, after a weekend break, returned a verdict of death.

II

A jury cannot fulfill its central role in our criminal justice system if it does not follow the law. It is not an unguided missile free according to its own muse to do as it pleases. To accomplish its constitutionally-mandated purpose, a jury must be properly instructed as to the relevant law and as to its function in the fact-finding process, and it must assiduously follow these instructions.

The Supreme Court has made it abundantly clear, in a series of cases going back to 1976, that for a jury determination of death to stand against Eighth Amendment scrutiny, the jury's discretion must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932-33, 49 L.Ed.2d 859 (1976)) (opinion of Stewart, Powell and Stevens, JJ.).

This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "standardless [sentencing] discretion." It must channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance " and that "make rationally reviewable the process for imposing a sentence of death." As was made clear in Gregg, a death penalty "system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] could occur."

Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764-65 (citations and footnotes omitted) (emphasis added). The Court reiterated this message in Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990), saying, "When a jury is the final sentencer, it is essential that the jurors be properly instructed regarding all facets of the sentencing process."

Gregg's requirement that a jury be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action" surely does not end the moment the judge instructs the jury, but continues until a verdict is reached and returned. As they work towards a verdict, the jurors must stay in the channel charted for them by state law. To this end, they may need ongoing guidance.

III

In the matter before us, we confront a case of serious jury mistake and confusion. The plain language of the jury's request for guidance demonstrates that eleven jurors were confused about the law and erroneously believed they could not consider eight aspects of McDowell's background as mitigating evidence.

Given the Eighth Amendment rules mandated by the Supreme Court in Furman, Gregg, and their offspring, the jury's legal disorientation is of constitutional concern. According to these rules, a jury must consider the evidence put forward by a defendant in mitigation of his culpable behavior. Such consideration is a constitutional imperative. As a plurality of the Court said in Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), five years before McDowell's trial:

There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.

A majority of the Court repeated this message in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), five months before the murder for which McDowell stands convicted. The issue in Eddings was not the constitutionality of a limiting statute as in Lockett, but of a sentencing trial judge's conclusion that he could not "in following the law ... consider the fact of this man's violent background." Id. at 112-13, 102 S.Ct. at 876 (internal quotations omitted). The Court interpreted this statement to mean that "the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact; rather he found that as a...