# McKoy v. North Carolina/Concurrence Blackmun

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions White Blackmun Kennedy
* Dissenting Opinion Scalia
Justice BLACKMUN, concurring.
I join the Court's opinion, but write separately only to underscore my conviction that Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), controls this case and that Mills was correctly decided.
* In the dissent's view, the Court in Mills simply assumed, but did not decide, the invalidity of a requirement that mitigating factors could be considered by the jury only if they were found unanimously. That characterization cannot be squared with the text of the Mills opinion. Part II of that opinion directly addressed the question whether such a requirement was permissible. The Court concluded that a rule mandating unanimous agreement before any juror could consider a particular mitigating factor was forbidden by our decisions in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). That conclusion was an essential step in the Court's rationale for overturning the Maryland statute. Ambiguous jury instructions, even in a capital case, do not violate the Eighth Amendment simply because they are ambiguous. And the question addressed in Part III of the opinion whether a reasonable juror might have interpreted the instructions as precluding his consideration of any mitigating factor not found unanimously-would have been wholly lacking in constitutional significance if such a rule were permissible. Rather, the Maryland instructions were held to be invalid because they were susceptible of two plausible interpretations, and under one of those interpretations the instructions were unconstitutional.
The dissent acknowledges that "there is language in Mills . . . suggesting that a unanimity requirement would contravene this Court's decisions." Post, at 459. The dissent contends, however, that any such suggestions were dicta. In the dissent's view the propriety of a unanimity requirement was not properly before the Court, since Maryland had conceded that such a requirement would be unconstitutional and argued only that its instructions imposed no such rule. That position is untenable.
First, even if the issue had not been disputed, the Court's resolution of the question would constitute a binding precedent. It is unusual, but hardly unheard of, for this Court to decide significant legal questions on which the parties have not joined issue. See, e.g., Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Penry v. Lynaugh, 492 U.S. 302, 313-314, 109 S.Ct. 2934, 2944, 106 L.Ed.2d 256 (1989) (holding that Teague principles apply to capital sentencing). Although the wisdom of deciding such issues without briefing and argument has been questioned, see Teague, 489 U.S., at 326-327, 109 S.Ct., at 1084. (BRENNAN, J., dissenting); Penry, 492 U.S., at 349, 109 S.Ct., at 2963. (STEVENS, J., concurring in part and dissenting in part), it has not been suggested heretofore that such decisions are lacking in precedential value. The dissent's approach to stare decisis would allow a respondent before this Court, by means of a timely concession, to avoid resolution of a recurring legal question so that it might be litigated at a more propitious time. This approach would require that litigants seeking to rely on a decision of this Court must scour the briefs in order to determine what points were and were not contested. That is not and cannot be the law.
Moreover, the dissent distorts the record in contending that the propriety of a unanimity requirement was not at issue in Mills. The argument section of the petitioner's brief in Mills began: "The underlying question is whether the Maryland Legislature may constitutionally require unanimous agreement by the jurors before any mitigating circumstance may be considered in the weighing process." Brief for Petitioner, O.T.1987, No. 87-5367, p. 9. The bulk of the State's response was devoted to the argument that no reasonable juror would interpret the instructions in the manner that Mills suggested was possible. The State also contended, however:
"Under the interpretation of the statute proffered by Petitioner, an unconstitutional restriction existed in that unanimity on a particular mitigating circumstance was required before it could be weighed in determining the appropriate sentence. However, Lockett and Eddings relate to restrictions on 'input,' not the subsequent deliberative process. Although a jury has twelve component parts, it is a single entity. The rejection of a mitigating circumstance, after introduction and full consideration of the evidence, is simply a factual determination. There is no legal impediment to the consideration of the evidence. The requirement of jury unanimity is simply not the type of restriction found unconstitutional in Lockett and Eddings. See State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 157 (1983)." Brief for Respondent in Mills 19-20.
The dissent quotes the first sentence of this passage, characterizing it as a "concession" by the State that a unanimity requirement would be invalid. Post, at 459. But since the remainder of the paragraph sets forth precisely the same argument in defense of the unanimity requirement that the dissent advances today, compare post, at 465-466, the suggestion that Maryland conceded the point is rather peculiar. Indeed, the paragraph quoted above concludes with a citation to Kirkley-the North Carolina case which first upheld against constitutional attack the requirement that a jury could consider only those mitigating factors unanimously found. Read in context, the sentence quoted by the dissent is plainly a summary of Mills' argument, not an admission of its correctness. The Maryland Court of Appeals had concluded that a unanimity requirement would violate the Eighth Amendment, but had determined that the challenged instructions imposed no such requirement. The State, however, was clearly entitled to defend the Court of Appeals' judgment on the alternative ground that, even if a reasonable jury might have read the instructions as requiring a unanimous finding before any mitigating factor could be considered, that requirement would not contravene the dictates of Lockett and Eddings. The State raised precisely this argument, and this Court rejected it.
I remain convinced, moreover, that Mills was correctly decided. It is apparent to me that the rule at issue here implicates the concerns expressed in Lockett and Eddings. In my view it is pointless to ask whether the sentencer in this case is the jury or the jurors. The jurors are the jury: and if 11 of them are forbidden to give effect to mitigating evidence which they deem persuasive, then the right guaranteed by Lockett has been effectively negated, even if the restriction is imposed by the 12th member of the sentencing body. If state law provided that all mitigating evidence was first to be presented to the foreperson, who could then decide whatpor tions of it other jurors would be allowed to view, I have no doubt that the sentencer's ability to give effect to the evidence would be impaired. The fact that North Carolina permits any 1 of 12 individuals to exercise the veto hardly makes the impairment less severe.
The dissent suggests that the rule announced in Mills is an aberration, a quirk of our Eighth Amendment jurisprudence. In fact, however, it is the North Carolina unanimity requirement which represents an extraordinary departure from the way in which juries customarily operate. Juries are typically called upon to render unanimous verdicts on the ultimate issues of a given case. But it is understood that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict. We might compare, for example, a criminal trial in which the defendant presents the testimony of an alibi witness. It surely could not be supposed that the State could enforce an evidentiary rule requiring a preliminary jury determination as to the credibility of this evidence, and providing that no juror could give it weight unless every juror deemed it worthy of belief. Such a rule would plainly interfere with the ability of the accused to present a defense to the factfinder, just as the rule at issue here impairs the defendant's right to have evidence in mitigation considered by the sentencer.
As the dissent points out, our cases have upheld state rules that place upon criminal defendants the burden of proving affirmative defenses. See, e.g., Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). For two reasons, however, these cases are not on point. First, the Court's reasoning in the affirmative-defense cases appears to rest upon a "greater power includes the lesser" argument: since the State is not constitutionally required to recognize the defense at all, it may take the lesser step of placing the burden of proof upon the defendant. See id., at 209, 97 S.Ct., at 2326. But since the State may not exercise the greater power of prohibiting a capital defendant from introducing mitigating evidence, that reasoning is inapposite here. Second, the dissent's analogy to the affirmative-defense cases confuses the concepts of unanimity and burden of proof. To say that the burden of proof may be placed upon the defendant says nothing at all about the situation in which some jurors, but not others, believe that the burden has been satisfied. The dissent's analogy presumes that once the elements of an offense have been proved, the jury's failure to agree as to an affirmative defense results in a conviction (just as a North Carolina jury's failure to agree as to the presence of a given mitigating factor creates a "finding" that the factor is not present); but our cases do not say that, and it is not at all clear that a conviction, rather than a hung jury, would be the outcome. See State v. Harris, 89 R.I. 202, 207, 152 A.2d 106, 109 (1959) (although the defendant bears the burden of proof as to insanity, "there is a vast difference between an instruction as to the persuasiveness of evidence and an instruction as to agreement. If the jury could not agree upon defendant's sanity then no verdict could be reached") (emphasis in original). The peculiar infirmity of the North Carolina sentencing procedure is not simply that it places the burden of proving mitigation upon the defendant, but that all disagreements among the jurors as to whether that burden has been satisfied must be resolved in favor of the State.
In Mills, the Court described two scenarios in which the operation of the unanimity requirement would result in a sentence of death, even though 11 (in the first scenario) or all 12 of the jurors believed that the mitigating circumstances outweighed those in aggravation. In the first hypothetical, 11 jurors believed that six mitigating factors were present, but the twelfth juror's veto prevented any of the evidence in mitigation from being considered at the final stage of the sentencing process. 486 U.S., at 373-374, 108 S.Ct., at 1864-65. In the second scenario, all 12 jurors agreed that some mitigating factors were present, and outweighed the factors in aggravation, but the jury was not unanimous as to the existence of any particular mitigating circumstance. Id., at 374, 108 S.Ct., at 1865. We concluded that "it would certainly be the height of arbitrariness to allow or require the imposition of the death penalty under the circumstances so postulated." Ibid. That assessment seems to me unanswerable.
Of course, the North Carolina statute also requires that the jury be unanimous as to the existence of a given aggravating factor, and as to the appropriateness of the death penalty in light of the aggravating and mitigating circumstances unanimously found. The possibility that a single juror with aberrational views will thwart the majority therefore sometimes may work in favor of the capital defendant. But the injustice of a capital sentence in a case where 11 jurors believe that mitigation outweighs aggravation is hardly compensated for by the possibility that in some other case a defendant will escape the death penalty when 11 jurors believe death to be appropriate. The State's reliance on the "symmetry" of its law seems to me to be the very antithesis of the constitutional command that the sentencer be allowed to consider the "character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion). I therefore agree that petitioner's death sentence must be vacated, and I join the opinion of the Court.

## Notes

* ↑ Cf. United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) ("[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot").
* ↑ Also compare Brief for Respondent in Mills 20, n. 7 ("Petitioner views a jury as twelve independent sentencers operating free of the views of the others. Such a view is completely contrary to any notion of guided discretion"), with post, at 469 ("Likewise incompatible with the Court's theory is the principle of guided discretion that we have previously held to be essential to the validity of capital sentencing. . . . There is little guidance in a system that requires each individual juror to bring to the ultimate decision his own idiosyncratic notion of what facts are mitigating, untempered by the discipline of group deliberation and agreement").
* ↑ Nor does Justice WHITE's separate opinion in Mills v. Maryland, 486 U.S. 367, 389, 108 S.Ct. 1860, 1872, 100 L.Ed.2d 384 (1988), provide a basis for recharacterizing the holding of the Court. I am far from certain that Justice WHITE's concurrence will bear the construction that the dissent places upon it. In any event, the meaning of a majority opinion is to be found within the opinion itself; the gloss that an individual Justice chooses to place upon it is not authoritative.
* ↑ Moreover, the jury's inability to agree as to an ultimate issue typically results in a deadlock or hung jury. Here the inability to agree requires the jury to proceed upon the assumption that a particular mitigating circumstance has been proved not to exist.
* ↑ There is one significant exception to this principle, but it does not support the dissent's position. In federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeals are in general agreement that "[u]nanimity . . . means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specified offense." United States v. Ferris, 719 F.2d 1405, 1407 (CA9 1983). Accord, United States v. Duncan, 850 F.2d 1104, 1110-1115 (CA6 1988); United States v. Beros, 833 F.2d 455, 461 (CA3 1987); United States v. Schiff, 801 F.2d 108, 114 (1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987); United States v. Gipson, 553 F.2d 453, 456-459 (CA5 1977). But see United States v. Bouquett, 820 F.2d 165, 169 (CA6 1987) (questioned in Duncan, 850 F.2d, at 1112-1113). This rule does not require that each bit of evidence be unanimously credited or entirely discarded, but it does require unanimous agreement as to the nature of the defendant's violation, not simply the fact that a violation has occurred. The North Carolina requirement that aggravating circumstances be found unanimously therefore has some analogue, albeit imperfect, in another area of the law. This principle is a protection for the defendant, however; its premise is that "[r]equiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required." Gipson, 553 F.2d, at 458. There is no analogous principle requiring that jurors voting to acquit must agree upon the basis for their reasonable doubt.
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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