Graham v. Collins

Citation896 F.2d 893
Decision Date07 March 1990
Docket NumberNo. 88-2168,88-2168
PartiesGary GRAHAM, Petitioner-Appellant, v. James A. COLLINS, Director Texas Dept. of Criminal Justice, Institutional Division, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Douglas M. O'Brien, Houston, Tex., for petitioner-appellant.

Robert S. Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before REAVLEY, KING and JOLLY, Circuit Judges.

REAVLEY, Circuit Judge:

We have been directed to revisit this case by the Supreme Court, which vacated our prior decision, reported at 854 F.2d 715, and remanded for further consideration in light of Penry v. Lynaugh, --- U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The narrow issue we reach on remand is whether under the Texas capital sentencing system a jury is able to consider and give effect to youth as a mitigating factor without special instructions. We conclude that a jury is unable to do so and therefore vacate Graham's capital sentence.

I.

In remanding this case, the Supreme Court neither expressed nor suggested disagreement with any part of our prior opinion other than that relating to Graham's argument that the Texas statutory sentencing procedure does not allow the jury to consider fully the relevant mitigating circumstances, which is discussed in section IIB of that opinion. Accordingly, with the exception of section IIB, we reinstate our prior opinion.

II.

B.

Capital punishment jurisprudence has progressively refined the constitutional boundaries within which a sentencing jury may impose the death penalty. The general contours of those limits permit imposing a sentence of death only when the crime involves statutorily enumerated aggravating circumstances and after a jury has been able to consider and to give effect to any mitigating circumstances. See Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 874-75, 71 L.Ed.2d 1 (1982); Gregg v. Georgia, 428 U.S. 153, 195-97, 96 S.Ct. 2909, 2935-36, 49 L.Ed.2d 859 (1976). This structure limits the imposition of the death penalty to egregious circumstances and meets the Eighth Amendment requirement of "an individualized assessment of the appropriateness of the death penalty." Penry, 109 S.Ct. at 2946.

In Jurek v. Texas, 428 U.S. 262, 276-77, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976), the Supreme Court upheld the Texas capital sentencing system against broad constitutional attacks. However, in Penry, the Court narrowed the circumstances in which the Texas statute meets the requirements of the Eighth and Fourteenth Amendments. See Penry, 109 S.Ct. at 2947-52.

Under the Texas system, a jury sentencing a defendant found guilty of murder under aggravated circumstances must answer the following questions:

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

Tex.Code Crim.Proc.Ann. art. 37.071(b) (Vernon Supp.1990). If the jury unanimously answers "yes" to each question submitted, the trial court must sentence the defendant to death. Id. art. 37.071(c)-(e). If any question is answered in the negative, the defendant receives a life sentence. Id. art. 37.071(e).

The Texas statute's constitutionality has repeatedly turned on the issue of "whether the enumerated questions allow consideration of particularized mitigating factors." Jurek, 428 U.S. at 272, 96 S.Ct. at 2956. The statute withstood constitutional attack in Jurek, because "three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question--despite its facial narrowness--so as to permit the sentencer to consider 'whatever mitigating circumstances' the defendant might be able to show." Lockett v. Ohio, 438 U.S. 586, 607, 98 S.Ct. 2954, 2966, 57 L.Ed.2d 973 (1978) (quoting Jurek, 428 U.S. at 272, 96 S.Ct. at 2956 (Stevens, J., plurality)).

In Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), the Court again considered the constitutionality of the Texas system. Franklin claimed his Eighth Amendment rights were violated by the trial court's refusal to instruct the jury on the effect of mitigating evidence under the statute. The case produced a plurality opinion, with Justices O'Connor and Blackmun concurring in the result. Justice White, writing for the plurality, stated that "[i]t is the established Texas practice to permit jury consideration of ' "whatever mitigating circumstances" the defendant might be able to show' in capital sentencing." 108 S.Ct. at 2326 (White, J., plurality). He also noted that the only mitigating evidence Franklin offered--his good prison record--could be considered in response to the future dangerousness question. Id. at 2329. Justice White further indicated that a state may "channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty," id. at 2331, 1 and ultimately concluded that the trial court's refusal to issue special instructions did not violate the Eighth Amendment, see id. at 2332.

In her concurrence, Justice O'Connor took issue with the plurality's suggestion that a state could restrict a jury's ability to consider mitigating evidence and underscored the importance of allowing the jury to give effect to mitigating evidence that is "relevant to the defendant's character or background or the circumstances of the offense." Id. at 2332-33 (O'Connor, J., concurring). However, Justice O'Connor concluded that the Eighth Amendment did not require special instructions in that case because the evidence of Franklin's good prison disciplinary record could be considered and given effect in answers to the question on future dangerousness. Id. at 2333.

The Penry Court, however, did find that the statute could be unconstitutionally applied in some circumstances. Like Franklin, Penry had argued that his Eighth Amendment rights were violated by the trial court's refusal to instruct the jury on the effect of mitigating evidence under the statute. However, Penry had offered evidence of his mental retardation and abused childhood as factors mitigating against the imposition of the death penalty, rather than simply a good prison record. Penry, 109 S.Ct. at 2952. The distinction between Franklin and Penry rested upon the relevance of Penry's evidence to his background and its reflection on his moral culpability.

Justice O'Connor, writing for the majority, stressed that "the punishment should be directly related to the personal culpability of the defendant...." Id. at 2951. 2 The Eighth Amendment requires consideration of a capital defendant's background and character " '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.' " Id. at 2947 (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987) (O'Connor, J., concurring)). In examining the statutory questions that the jury must consider in returning a verdict for death, she found that the jury had insufficient latitude to express its findings regarding culpability. With respect to the first question, Justice O'Connor noted that while the jury was able to consider Penry's mental retardation and abused childhood in answering the questions regarding deliberateness, "[p]ersonal culpability is not solely a function of a defendant's capacity to act 'deliberately.' " Id. 109 S.Ct. at 2949. Thus, the mitigating effects of mental retardation and an abused childhood could not be given full effect in response to this question.

With regard to future dangerousness, the evidence of Penry's mental retardation and abused childhood was viewed as a "two-edged sword." Id. One effect of mental retardation is the inability to learn from one's mistakes. Although retardation may diminish blameworthiness, it also makes it more likely that a retarded defendant will be dangerous in the future. A juror could have found both that Penry posed a future danger and that he was less culpable than a person with average intelligence. However, the question provides no vehicle for expressing the finding of reduced culpability. Id. The Court also found that the third question provided an inadequate alternative for addressing reduced culpability. Id. at 2950. Accordingly, because the evidence was relevant beyond the scope of the special issues, the Court concluded that the statutory questions did not adequately provide the jurors with an opportunity to give a "reasoned moral response" to that evidence. Id. at 2952.

We understand the Court's rule after Penry to be this: a jury sentencing a capital defendant who provides evidence about his character, his background, or the circumstances of the offense that is relevant to personal culpability beyond the scope of the statutory questions must receive instructions that allow the jury to give effect to such evidence. However, in the Franklin-Penry aftermath, we are left with the task of determining which type of evidence mandates special instruction. 3

At the outset we note that no procedural bar objection has been raised and that the case has been presented for a decision on the merits. Additionally, although Graham's counsel did not request an additional instruction at trial, such a request is not an element of a Penry claim. Mayo v....

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  • Graham v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 25 February 1999
    ...the Texas capital sentencing scheme allowed adequate consideration of mitigating evidence, especially youth. See Graham v. Collins, 896 F.2d 893, 894 (5th Cir.1990). The panel went on to hold that the Texas capital sentencing scheme, contrary to Penry, did not allow adequate consideration o......
  • Graham v. Collins
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 3 January 1992
    ...no special instructions, was not able to adequately consider and give effect to Graham's youth as a mitigating factor. Graham v. Collins, 896 F.2d 893 (5th Cir.1990). Having ordered rehearing en banc, id. 903 F.2d 1014 (5th Cir.1990), we have again reconsidered the case in light of Penry an......
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    • U.S. Supreme Court
    • 25 January 1993
    ...585 (1989). On remand, a divided panel of the Court of Appeals reversed the District Court and vacated Graham's death sentence. 896 F.2d 893 (CA5 1990). On rehearing en banc, the Court of Appeals vacated the panel's decision and reinstated its prior mandate affirming the District Court. 950......
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    • U.S. Court of Appeals — Fifth Circuit
    • 12 June 1990
    ...scheme that a juror in this predicament will not be silenced by the need to comply with the law's facial requirements. Graham v. Collins, 896 F.2d 893, 896 n. 3 (5th Cir.) (petition for rehearing en banc granted, 903 F.2d 1014) (5th Cir. June 4, 1990); see Jurek, 428 U.S. at 279, 96 S.Ct. a......
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