498 U.S. 1055 (1991), 90-6371, Rodriguez v. Colorado

Docket Nº:No. 90-6371
Citation:498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789
Party Name:Frank D. RODRIGUEZ, petitioner, v. COLORADO
Case Date:January 14, 1991
Court:United States Supreme Court

Page 1055

498 U.S. 1055 (1991)

111 S.Ct. 770, 112 L.Ed.2d 789

Frank D. RODRIGUEZ, petitioner,



No. 90-6371

United States Supreme Court.

January 14, 1991


On petition for writ of

certiorari to the Supreme Court of Colorado.

The application for stay of execution of sentence of death presented to Justice WHITE and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

Justice MARSHALL, dissenting.

In both Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), we vacated death sentences based on jury instructions that, reasonably construed, prevented the respective juries from considering any mitigating factors they did not unanimously find to exist. Because I believe that the instructions

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delivered to the jury in this case cannot be squared with Mills and McKoy, I would grant the application for stay and the petition for certiorari.


Petitioner was convicted of murder and sentenced to death. At the penalty phase of petitioner's trial, the trial court instructed the jury that any aggravating factors found to exist should be weighed against any mitigating factors found to exist. Instruction No. 21 explained in pertinent part:

"If in the first two steps of your deliberations you have made unanimous findings that the prosecution has proven beyond a reasonable doubt that one or more aggravating factors exist and that no mitigating factors exist, or that a mitigating factor or factors exist, you must now decide whether the prosecution has proven that any factors in mitigation do not outweigh the aggravating factor or factors." People v. Rodriguez, 794 P.2d 965, 997 (Colo.1990) (emphasis added).

In Mills v. Maryland, supra, we addressed the constitutionality of instructions requiring juror unanimity on mitigating factors. We concluded that such instructions violate the cardinal principle of our capital jurisprudence that " 'the sentencer may not ... be precluded from considering "any relevant mitigating evidence." ' " 486 U.S., at 374-375, 108 S.Ct., at 1865-1866, quoting Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986), quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876, 71 L.Ed.2d 1 (1982). In Mills, an impermissible juror unanimity requirement was imposed by a jury verdict form stating: "Based upon the evidence we unanimously find that each of the following mitigating [111 S.Ct. 771] circumstances which is marked "yes" has been proven to exist...." 486 U.S., at 387, 108 S.Ct. at 1871. McKoy v. North Carolina, supra, presented a similar situation. In McKoy, the jury had been instructed both orally and in writing that it had to make unanimous findings on the existence of mitigating factors before proceeding to consider them. 494 U.S., at ----, 110 S.Ct. at ----. Applying Mills, we vacated McKoy's death sentence.

Instruction No. 21 in the present case suffers from the infirmity condemned in Mills and McKoy. As noted, Instruction No. 21 directed the jury that if it "made unanimous findings ... that one or more aggravating factors exist and that no mitigating factors exist, or that a mitigating factor or factors exist," it should proceed

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to weigh the aggravating factors against the mitigating factors. The phrase "unanimous findings" can be read only to have modified both "aggravating factors" and "mitigating factors". For the instruction to have been constitutional, the jury would have to have read the pertinent language in Instruction No. 21 as permitting it to weigh mitigating factors if it made nonunanimous "findings ... that a mitigating factor or factors exist." Instruction No. 21 clearly does not say this.

The Colorado Supreme Court, however, refused to vacate petitioner's death sentence. Relying on Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), the Colorado Supreme Court reasoned that "there was no reasonable likelihood" that the jury would have interpreted the instruction to require juror unanimity on mitigating factors. 794 P.2d, at 980-982. I cannot accept that our decision in Boyde affects the invalidity of Instruction No. 21 under Mills and McKoy.

In Boyde, this Court examined whether instructions at the penalty phase of Boyde's capital proceeding impermissibly limited consideration of mitigating evidence pertaining to Boyde's character and background. The trial court instructed the jury that, in addition to ten specific factors to be considered in determining the penalty, the jury could consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." Boyde v. California, supra, 494 U.S., at ----, 110 S.Ct., at 1194.

The Court concluded in Boyde that even though the instructions did not identify Boyde's deprived background and emotional troubles as relevant considerations, there was no "reasonable likelihood" that the jury felt precluded from considering these...

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