# Boyde v. California

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## Dissenting Opinion

    Marshall
United States Supreme Court
494 U.S. 370
Boyde v. California
No. 88-6613 Argued: Nov. 28, 1989. --- Decided: March 5, 1990
See 495 U.S. 924, 110 S.Ct. 1961.
Syllabus
All of the evidence presented by petitioner Boyde during the penalty phase of his state-court capital murder trial related to his background and character. The trial court instructed the jury, inter alia, in accordance with instructions 8.84.1 and 8.84.2, 1 California Jury Instructions, Criminal (4th ed.) (CALJIC), both of which have since been amended. At the time, CALJIC 8.84.1 listed 11 factors that the jury "shall consider" in determining whether to impose a sentence of death or life imprisonment, the last of which was the so-called "unadorned version" of factor (k), which read: "Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." The court also instructed the jury, pursuant to former CALJIC 8.84.2, to consider all applicable aggravating and mitigating circumstances, and directed that it "shall impose" a sentence either of death or of life imprisonment depending upon whether the aggravating circumstances outweighed the mitigating circumstances or vice versa. The jury imposed the death sentence, and the State Supreme Court affirmed, rejecting Boyde's contention that the aforesaid versions of CALJIC 8.84.1 and 8.84.2 violated the Eighth and Fourteenth Amendments.
Held:
1. The giving of former CALJIC 8.84.2 did not violate the Eighth Amendment. Boyde's claim that the mandatory nature of the instruction's "shall impose" language prevented the jury from making an "individualized assessment" of the death penalty's appropriateness is foreclosed by Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 which rejected a challenge to an instruction with similar mandatory language, holding that the requirement of individualized capital sentencing is satisfied by allowing the jury to consider all relevant mitigating evidence. Boyde has not alleged that the instruction's mandatory language interfered with the consideration of such evidence. Moreover, there is no constitutional basis for his suggestion that the jury must have unfettered discretion to decline to impose the death penalty even if it decides that the aggravating circumstances "outweigh" the mitigating circumstances. States are free to structure and shape consideration of mitigating evidence to achieve a more rational and equitable administration of the death penalty. Pp. 376-377.
2. The giving of former CALJIC 8.84.1 did not violate the Eighth Amendment by precluding the jury from considering non-crime-related factors, such as Boyde's background and character, as mitigating evidence. Pp. 377-386.
(a) Where, as here, the claim is that a challenged instruction is ambiguous and therefore subject to erroneous interpretation, the proper inquiry is whether there is a reasonable likelihood that the jury has applied the instruction in a way that prevents the consideration of constitutionally relevant evidence. Although a defendant need not establish that the jury was more likely than not to have been impermissibly inhibited by the instruction, a capital sentencing proceeding does not violate the Eighth Amendment if there is only a possibility of such an inhibition. Pp. 378-381.
(b) There is not a reasonable likelihood that the jurors here interpreted the trial court's instructions to preclude consideration of mitigating evidence of Boyde's background and character. "Unadorned" factor (k) standing alone did not, as Boyde seems to suggest, limit the jury's consideration to "any other circumstance of the crime," but directed the jury to consider any other circumstance that might excuse a crime, which certainly includes background and character. Moreover, when factor (k) is viewed together with other CALJIC 8.84.1 factors allowing for consideration of mitigating evidence not associated with the crime itself-such as the absence of prior criminal activity by, or felony convictions of, the defendant, and youth-it seems even more improbable that the jurors would have arrived at an interpretation that precluded consideration of all non-crime-related evidence. Similarly, reasonable jurors surely would not have felt constrained by the factor (k) instruction to ignore all of Boyde's unobjected-to penalty-phase evidence-four days of testimony consuming over 400 pages of transcript particularly since the jury was also instructed that it "shall consider all of the evidence . . . received during any part of the trial." Pp. 381-384.
(c) There is no merit to Boyde's assertion that arguments by the prosecutor immediately before the jury's sentencing deliberations made it likely that the jurors would adopt an impermissible interpretation of the factor (k) instruction. Such arguments generally carry less weight with a jury than do instructions from the court, are subject to objection and to correction by the court, and must be judged in the context in which they are made. Here, although the prosecutor argued that in his view the evidence did not sufficiently mitigate Boyde's conduct, he never suggested that the background and character evidence could not be considered. In fact, he made statements that explicitly assumed that such evidence was relevant, and defense counsel stressed the necessity of a broad reading of factor (k). Pp. 384-386.
46 Cal.3d 212, 250 Cal.Rptr. 83, 758 P.2d 25 (1988), affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, and in Parts I, II, III, and IV of which BLACKMUN and STEVENS, JJ., joined, post, p. 386.
Dennis A. Fischer, Santa Monica, for petitioner.
Frederick R. Millar, Jr., San Diego, for respondent.
Chief Justice REHNQUIST delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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