SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA ex rel. ANDREW ) Arizona Supreme Court
P. THOMAS, Maricopa County ) No. CV-05-0155-PR
Attorney, )
) Court of Appeals
Petitioner, ) Division One
) No. 1 CA-SA 05-0086
v. )
) Maricopa County
THE HONORABLE WARREN J. ) Superior Court
GRANVILLE, JUDGE OF THE SUPERIOR ) No. CR2002-006861(A)
COURT OF THE STATE OF ARIZONA, )
in and for the County of )
Maricopa, )
) O P I N I O N
Respondent Judge, )
)
WILLIAM CHRISTOPHER BALDWIN, )
)
Real Party in Interest. )
__________________________________)
Special Action from the Superior Court in Maricopa County
The Honorable Warren J. Granville, Judge
RELIEF GRANTED IN PART AND DENIED IN PART; CASE REMANDED
________________________________________________________________
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Paul J. McMurdie, Deputy County Attorney
Attorneys for State of Arizona
JAMES J. HAAS, MARICOPA COUNTY PUBLIC DEFENDER Phoenix
By Gary J. Bevilacqua, Deputy Public Defender
Joseph A. Stazzone, Deputy Public Defender
Attorneys for William Christopher Baldwin
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 This case concerns the propriety of two jury
instructions relating to sentencing in a capital case. The
prosecutor requested that the jury be instructed at the close of
the penalty phase of the trial that the defendant bears the
affirmative burden to prove that mitigation is “sufficiently
substantial to call for leniency.” The second instruction
advised the jurors to sentence the defendant to life in prison
if they had “a doubt” whether a death sentence was appropriate.
For the reasons set forth below, we hold that neither
instruction is proper.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 A jury convicted Defendant William Baldwin of first
degree murder in September 2004. During the aggravation phase
of the capital trial, the jury found that Baldwin had knowingly
created a grave risk of death to another during the commission
of the murder, Ariz. Rev. Stat. (“A.R.S.”) § 13-703(F)(3) (Supp.
2004), rendering him eligible for a sentence of death.
¶3 Before the presentation of mitigation evidence, the
State asked the court to give the following instruction, among
others, to guide the jurors in determining the appropriate
sentence:
The burden of proving the existence of mitigation
sufficiently substantial to call for leniency is on
the defendant. The defendant must prove the existence
of mitigation by a preponderance of the evidence.
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Baldwin objected to the first sentence of the proposed
instruction. The trial court did not give the requested
instruction, but instead gave an instruction based on the
language of A.R.S. § 13-703(C):1
The burden of proving the existence of mitigation is
on the defendant. The defendant must prove the
existence of mitigation by a preponderance of the
evidence.
¶4 Although the court did not use the requested phrase
“sufficiently substantial to call for leniency” at that point in
the instructions, the phrase appeared eight times in the
sentencing-phase jury instructions. The court first mentioned
the standard by instructing the jury as follows:
In deciding whether the defendant should be sentenced
to death or life in prison, you must weigh the
mitigating circumstances that have been proven to you
against the aggravating factor that you have already
found, and determine whether there is mitigation that
is sufficiently substantial to call for life in
prison.
The phrase was mentioned seven other times, all in related
instructions attempting to convey to the jury its duty in
1
On the burden of proof issue, § 13-703(C) reads as follows:
The burden of establishing the existence of the
mitigating circumstances included in subsection G of
this section is on the defendant. The defendant must
prove the existence of the mitigating circumstances by
a preponderance of the evidence.
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deciding what penalty to impose.2
¶5 The court also instructed the jurors that “[i]f, after
carefully considering the evidence, you have a doubt whether the
death penalty should be imposed, you should resolve that doubt
in favor of a life sentence.”
¶6 The jury could not unanimously agree on the imposition
of the death penalty, allowing a second jury to be impanelled.
See A.R.S. § 13-703.01(K) (Supp. 2004). Before commencement of
the second penalty phase proceeding, the State moved to preclude
the anticipated use of the “a doubt” instruction and again urged
the court to instruct the jury that the defendant bears the
burden of proving that mitigation is sufficiently substantial to
call for leniency. When the trial court refused to rule on the
motion, the State filed a special action in the court of
appeals, which declined jurisdiction.
¶7 We granted review to decide whether the court’s denial
of the State’s requested burden of proof instruction was error
and whether giving the instruction to resolve doubt in favor of
life was proper. We have jurisdiction pursuant to Article 6,
Section 5(3) of the Arizona Constitution, and A.R.S. § 12-120.24
(2003).
2
The jury instructions addressing the “sufficiently
substantial to call for leniency” standard are set forth in an
appendix to this opinion.
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II. DISCUSSION
¶8 We are asked to determine whether two instructions
given to a jury following the penalty phase of a capital case
correctly state the law, a question we review de novo. State v.
Glassel, 211 Ariz. 33, 53, ¶ 74, 116 P.3d 1193, 1213 (2005). We
review for abuse of discretion whether the trial court erred in
giving or refusing to give requested jury instructions. State
v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005).
In our review, we read the jury instructions as a whole to
ensure that the jury receives the information it needs to arrive
at a legally correct decision. Kauffman v. Schroeder, 116 Ariz.
104, 106, 568 P.2d 411, 413 (1977).
A. The Burden of Persuasion Instruction
¶9 The death penalty sentencing statutes provide, and the
trial judge instructed the jury, that the defendant bears the
burden of proving, by a preponderance of the evidence, the
existence of mitigating circumstances. See A.R.S. § 13-703(C).
Neither Baldwin nor the State questions that instruction. The
State requests, however, that we now approve an instruction
specifying that the defendant also bears the burden of proving,
by a preponderance of the evidence, that the mitigation is
sufficiently substantial to call for leniency.
¶10 To justify imposing this burden, the State relies on
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A.R.S. § 13-703(E), which provides that,
[i]n determining whether to impose a sentence of death
or life imprisonment, the trier of fact shall take
into account the aggravating and mitigating
circumstances that have been proven. The trier of
fact shall impose a sentence of death if the trier of
fact finds one or more of the aggravating
circumstances enumerated in subsection F of this
section and then determines that there are no
mitigating circumstances sufficiently substantial to
call for leniency.
(Emphasis added.)
¶11 From this statutory language, the State reasons that
the defendant must bear the burden of proving that the
mitigation is sufficiently substantial to call for leniency;
otherwise, the trier of fact “shall” impose a sentence of death.
See id. Moreover, the State observes that this court has
rejected the notion that the prosecution bears the burden of
proving that the death penalty is the appropriate sentence.
State v. Gulbrandson, 184 Ariz. 46, 72, 906 P.2d 579, 605
(1995). The State thus infers that if the burden is not on the
State, it must lie with the defendant.
¶12 The State concedes that A.R.S. § 13-703(E) has been
interpreted as not creating a “presumption of death” and
acknowledges that a jury may return a verdict of life in prison
even if the defendant decides to present no mitigation evidence
at all. See, e.g., Glassel, 211 Ariz. at 52, ¶ 72, 116 P.3d at
1212 (rejecting presumption of death argument); State v. Van
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Adams, 194 Ariz. 408, 422, ¶ 55, 984 P.2d 16, 30 (1999) (to same
effect).3 In the absence of such a presumption, there can be no
burden on the defendant to rebut a presumed sentence. Thus the
language of A.R.S. § 13-703(E) does not impose an affirmative
duty on the defendant to prove that mitigation is sufficiently
substantial to call for leniency.
¶13 Nor does the statutory scheme as a whole impose a
burden on the defendant to prove that mitigation evidence is
sufficiently substantial to call for leniency. Section 13-
703(B) requires the State to prove beyond a reasonable doubt not
only every element of the crime, but also any aggravating
circumstances. Id.; see also State v. Jordan, 126 Ariz. 283,
286, 614 P.2d 825, 828 (1980). If the jury finds any
aggravating factors to exist, the burden then moves to the
defendant, if he wishes, to establish any mitigating
circumstances. A.R.S. § 13-703(C). The statute further
instructs that “the jurors do not have to agree unanimously that
3
Even if a juror believes that the aggravating and
mitigating factors are equally balanced, A.R.S. § 13-703(E) does
not require the juror to impose the death penalty. Rather, each
juror may vote for a sentence of death – or against it – as each
sees fit in light of the aggravating factors found by the jury
and the mitigating evidence found by each juror. The finding of
an aggravating factor simply renders the defendant eligible for
the death penalty; it does not require that he receive it. See
Walton v. Arizona, 497 U.S. 639, 651-52 (1990), overruled in
part on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
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a mitigating circumstance has been proven to exist. Each juror
may consider any mitigating circumstance found by that juror in
determining the appropriate penalty.” Id.
¶14 Although § 13-703(C) requires the defendant to prove
mitigating circumstances by a preponderance of the evidence, the
statutory scheme does not place any burden of proof on the
defendant in connection with establishing that the mitigation
evidence is sufficiently substantial to call for leniency.
Indeed, the “sufficiently substantial” language does not appear
until two subsections later. See A.R.S. § 13-703(E). Thus
nothing in § 13-703 dictates that the defendant must bear the
burden of proving that mitigation is sufficiently substantial to
call for leniency. While the statutory scheme describes the
parties’ burdens of proof as to the existence of aggravating and
mitigating circumstances, it is silent as to the burden of
persuasion.
¶15 The State also bases its argument that the defendant
bears the burden of proving that mitigation is sufficiently
substantial to call for leniency on this court’s opinion in
State v. Watson, 120 Ariz. 441, 447, 586 P.2d 1253, 1259 (1978),
and the United States Supreme Court’s opinion in Walton v.
Arizona, 497 U.S. 639, 649 (1990), overruled in part on other
grounds by Ring v. Arizona, 536 U.S. 584 (2002). In Walton and
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Watson, the Supreme Court and this court recognized that the
Eighth and Fourteenth Amendments are not offended by requiring a
guilty defendant to establish “by a preponderance of the
evidence, the existence of mitigating circumstances sufficiently
substantial to call for leniency.” Walton, 497 U.S. at 649.
Despite this language, Walton and Watson did not address whether
the defendant in a capital case bears the burden of persuading
the jurors that mitigation is sufficiently substantial to
warrant leniency. Instead they addressed the constitutionality
of imposing on a convicted defendant the burden of proving the
existence of mitigating facts. The precise question before us
apparently has not been addressed by our courts.
¶16 The State nonetheless contends that by informing the
jurors only that the defendant bears the burden of proving the
existence of mitigating circumstances by a preponderance of the
evidence, the trial judge instructs the jury on only “half of
Defendant’s burden.” The State claims that such an instruction
fails to explain to the jury who bears the burden of persuading
the jury that the defendant should receive a life sentence
rather than a sentence of death or, in statutory terms, whether
the mitigating circumstances are sufficiently substantial to
call for leniency.
¶17 As set forth above, however, neither party bears the
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burden on this issue. We therefore disagree that the
instructions were incomplete or inadequate to properly advise
the jury of its role in the sentencing process. The plan is
carefully laid out in the statutes: Once a defendant is “death
eligible” – that is, once a jury has found beyond a reasonable
doubt that the defendant is guilty of a capital offense and that
at least one statutory aggravating factor exists – the jurors
must assess whether to impose the death penalty based upon each
juror’s individual, qualitative evaluation of the facts of the
case, the severity of the aggravating factors, and the quality
of any mitigating evidence. A.R.S. §§ 13-703, -703.01. This
assessment is not mathematical, but instead must be made in
light of the facts of each case. State v. Gretzler, 135 Ariz.
42, 54, 659 P.2d 1, 13 (1983).
¶18 The phrase “sufficiently substantial to call for
leniency” is the standard that guides and channels the jurors’
discretion as they evaluate and consider the mitigating
circumstances, whether proved by the defendant or present in the
record, in determining whether death is the appropriate sentence
for that particular defendant in light of the facts of that
particular case. See A.R.S. §§ 13-703(E), -703.01(G) & (H). It
means that the mitigation must be of such quality or value that
it is adequate, in the opinion of an individual juror, to
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persuade that juror to vote for a sentence of life in prison. A
mitigating factor that motivates one juror to vote for a
sentence of life in prison may be evaluated by another juror as
not having been proved or, if proved, as not significant to the
assessment of the appropriate penalty. Each juror must
determine whether, in that juror’s individual assessment, the
mitigation is of such quality or value that it warrants leniency
in a particular case.
¶19 The jurors in this case were instructed accordingly by
the trial judge: “Each of you, individually, must decide
whether the mitigation that each of you, individually, believes
has been proven, is sufficiently substantial to call for a life
sentence.” The State has not argued that the jurors did not
understand their task.
¶20 Our cases have on occasion discussed the evaluation
and assessment of mitigating circumstances as a “weighing”
process, see, e.g., State v. Hinchey, 181 Ariz. 307, 313-14, 890
P.2d 602, 608-09 (1995); Gretzler, 135 Ariz. at 54, 659 P.2d at
13, which has led to the implication that mitigating
circumstances must “outweigh” aggravating factors for life to be
the appropriate sentence. These cases and A.R.S. §§ 13-703 and
-703.01 do not, however, indicate that the decision on the
appropriate sentence is itself a factual determination.
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¶21 We therefore now clarify that the determination
whether mitigation is sufficiently substantial to warrant
leniency is not a fact question to be decided based on the
weight of the evidence, but rather is a sentencing decision to
be made by each juror based upon the juror’s assessment of the
quality and significance of the mitigating evidence that the
juror has found to exist. We conclude that the use of
“outweighing” language in jury instructions explaining the
evaluation of mitigating circumstances, while technically
correct, might confuse or mislead jurors. We thus discourage
the use of instructions that inform jurors that they must find
that mitigating circumstances outweigh aggravating factors
before they can impose a sentence other than death. Instead,
jury instructions should focus on the statutory requirement that
a juror may not vote to impose the death penalty unless he or
she finds, in the juror’s individual opinion, that “there are no
mitigating circumstances sufficiently substantial to call for
leniency.” A.R.S. § 13-703(E). In other words, each juror must
determine whether, in that juror’s individual assessment, the
mitigation is of such quality or value that it warrants
leniency.
B. The “A Doubt” Instruction
¶22 Defendant had urged below the propriety of an
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instruction that the jury should return a verdict of life if the
jurors had “a doubt” whether death was the appropriate sentence.
This instruction in effect tells the jury that the State must
prove beyond any doubt, reasonable or not, that death is the
appropriate sentence in a given case.
¶23 The instruction stemmed from language this court used
when fulfilling its duty to independently review death
sentences. See, e.g., State v. Carlson, 202 Ariz. 570, 588,
¶ 70, 480 P.3d 1180, 1198 (2002); State v. Trostle, 191 Ariz. 4,
23, 951 P.2d 869, 888 (1997); State v. Valencia, 132 Ariz. 248,
250, 645 P.2d 239, 241 (1982). Defendant now concedes that this
language was never intended as an instruction for jurors. The
concession is well taken, for in Glassel, 211 Ariz. at 52,
¶¶ 69-70, 116 P.3d at 1212, we rejected the argument that the
Constitution requires the State to prove beyond a reasonable
doubt that leniency was not justified. If the State need not
establish beyond a reasonable doubt that death is the
appropriate sentence, it then certainly need not prove that
point beyond any doubt whatsoever. To put this matter to rest,
we hold that such an instruction is improper.
III. CONCLUSION
¶24 We hold that the trial court correctly concluded that
the defendant in a capital case does not bear the burden to
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prove by a preponderance of the evidence that the mitigating
circumstances are sufficiently substantial to call for leniency.
The court therefore did not err or abuse its discretion in
refusing to give the requested burden of persuasion instruction.
It did, however, err in instructing the jurors that if they
entertained “a doubt” whether death is the appropriate sentence
they must impose a sentence of life in prison. We therefore
grant relief in part and deny it in part and remand this case to
the trial court for proceedings consistent with this opinion.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
_______________________________________
Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
________________________________________
Andrew D. Hurwitz, Justice
________________________________________
W. Scott Bales, Justice
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APPENDIX
Jury Instructions addressing the “sufficiently substantial to
call for leniency” standard:
In deciding whether the defendant should be sentenced to
death or life in prison, you must weigh the mitigating
circumstances that have been proven to you against the
aggravating factor that you have already found, and determine
whether there is mitigation that is sufficiently substantial to
call for life in prison.
. . . .
Each of you, individually, must decide whether the
mitigation that each of you, individually, believes has been
proven, is sufficiently substantial to call for a life sentence.
You may not consider any information presented during this
phase of the trial as a new aggravating factor. You must make
your decision about whether the mitigation is sufficiently
substantial to call for a life sentence based solely upon your
weighing of any mitigation that you deem proven to be more true
than not, and the aggravating factor you found during the
Aggravation Phase.
. . . .
If you unanimously find the mitigation is not sufficiently
substantial to call for leniency, you must impose the death
penalty. If you find the mitigation is sufficiently substantial
to call for leniency, you must impose life imprisonment. In
that instance, the Court will sentence the defendant either to
life imprisonment without the possibility of parole or life
without parole until at least twenty-five years have passed.
The weighing of aggravating and mitigating circumstances
does not mean a mere mechanical counting of factors on each side
of an imaginary scale, or the arbitrary assignment of weights to
any of them. You are free to assign whatever weight you deem
appropriate to each and all of the various factors you are
permitted to consider. In weighing the various circumstances,
you determine, under the relevant evidence, which penalty is
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justified and appropriate by considering the totality of the
aggravating circumstance with the totality of the mitigating
circumstances. In reaching a reasoned judgment about which
penalty is justified and appropriate, you must decide how
compelling or persuasive the totality of the mitigating factors
are when compared against the totality of the aggravating
factor.
. . . .
If some jurors find the defendant proved mitigation, the
jurors who found mitigation must weigh the mitigation they found
against the aggravating factor already found. The jurors who
found mitigation may disagree about what mitigation exists. If
all the jurors who found mitigation find the mitigation is not
sufficiently substantial to call for leniency, and all the
remaining jurors continue to find no mitigation has been proven,
you must return a verdict of death.
If all jurors find mitigation has been proven, all must
weigh the mitigation they found against the aggravating factors
already found. The jurors may disagree about what mitigation
exists. If all the jurors find the mitigation is not
sufficiently substantial to call for leniency, you must return a
verdict of death.
If all jurors find mitigation has been proven and all find
the mitigation they found is sufficiently substantial to call
for leniency, you must return a verdict of life imprisonment.
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