Section q 3 requires that if the jury exercises its option, we must review those findings.
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This interpretation comports with the law as it stood at the time Congress drafted the Anti-Drug Abuse Act of The finding of mitigating circumstances is individualized; a juror is free to find a mitigating factor even if no other juror agrees with that finding. See Mills v. Maryland, U. Congress may well have determined that forcing jurors to write down mitigating factors would discourage a lone juror from finding mitigating circumstances that the rest of the jury had rejected or disparaged.
More significantly, by not requiring a juror to inform his or her fellow jurors of the mitigating factors that will be used in that juror's weighing calculus, the individualized determination of both mitigating factors and the appropriateness of a death sentence is protected. The district court in this case did not inform the jury that it had the option to return written findings of mitigating factors and the verdict form did not contain space for the optional findings. This was error. Moreover, the error was plain.
The statute, as we interpret it in this opinion, requires that the jury be given an option to return mitigating findings. Accordingly, we must determine whether the error affected Chandler's substantial rights. We note initially that this error does not undermine the basic protections of a criminal trial without which a criminal trial cannot reliably serve its function, but instead is a trial type error. Chandler must therefore demonstrate that the error affected the outcome of the proceedings before the district court. Chandler argues that he was prejudiced because an appellate court on review cannot determine whether the jury found two mitigating factors which Chandler contends were beyond dispute: 1 that Chandler had no criminal record; and 2 that Jarrell was an equally culpable person who would not receive the death penalty.
We are persuaded that the lack of written mitigating findings did not affect the outcome of Chandler's sentencing hearing. The government and Chandler stipulated that Chandler had no prior conviction on any felony or drug charge and that Jarrell would not receive the death penalty. These stipulations were presented at sentencing to the jury, and the jury was informed that they were stipulations. Moreover, the jury was properly instructed on how to find mitigating factors and the role of mitigating factors in their decision making process.
The jury is presumed to follow the instructions they are given. See Richardson v. Marsh, U. Thus, Chandler has not demonstrated that the lack of written mitigating findings affected the outcome of his case. In conclusion, the district court erred by not allowing the jury the option to return written findings of mitigating factors. However, this error did not affect the outcome of the sentencing hearing and was, therefore, not plain error. Section k provides that a recommendation of death may be returned only by the jury's unanimous vote.
When read in conjunction, these subsections provide that in the event the jury cannot unanimously recommend a death sentence, the district court must sentence the defendant to some non-death sentence. In other words, a verdict recommending a sentence of death must be unanimous. The court admonished the jury that it was never required to recommend a death sentence. The district court provided the jury with a verdict form to complete during deliberations.
The verdict form contained blanks for the jury to check after it made findings. In the section containing the jury's recommendation for or against a death sentence, the form provided:.
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Chandler argues that Section along with the constitutional requirement that the jury not be misinformed or coerced during a capital sentencing require that the jury be instructed that the failure to reach unanimity would result in Chandler receiving some non-death sentence as determined by the court. Several courts have held that a trial court must instruct the jury on the consequences of a lack of unanimity at the sentencing stage a "hung" jury.
The Delaware Supreme Court held that, because Delaware's capital statute provides that the failure to reach unanimity results in a life sentence, the jury must clearly and explicitly be instructed that the jury need not be unanimous for a life sentence to be imposed. Whalen v.
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State, A. The New Jersey Supreme Court, in construing a similar capital statute, held that the statute and the unique nature of a death case require that the trial court inform the jury of the consequences of a non-unanimous decision. State v. Ramseur, N. Louisiana has reached the same conclusion. Williams, So. Chandler points out that in other Section e prosecutions, the district courts have instructed the jury on the consequences of a hung jury and provided a verdict form that allowed the jury to state that they were unable to reach a unanimous verdict.
Other courts, however, have held that a defendant is not entitled to an instruction informing the jury of the consequences of a lack of unanimity. The Fourth Circuit held that even though the Virginia capital statute requires that the defendant receive a life sentence if the jury is unable to reach unanimity, the defendant is not entitled to a hung jury instruction. Evans v. Thompson, F. The Fourth Circuit also held that, although the South Carolina capital statute requires an instruction on the consequences of a hung jury, the lack of such an instruction has no affect on the sentencing decision.
Gaskins v. McKellar, F. North Carolina, Florida and Alabama do not require the jury to be informed of the effect of a failure to reach a unanimous verdict. Barfield v. Harris, F. See also Aldridge v. State, So. We find the reasoning of the second set of authorities persuasive and hold that the district court is not required to instruct the jury on the consequence of the jury's inability to reach a unanimous verdict.
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There is no requirement that instructions to the jury duplicate the statutory language. Section l is an instruction to the court and not for the jury. Our holding is further supported by the general interest the criminal justice system has in unanimous verdicts. Asking the jury to return a unanimous verdict forces jurors to examine their views on the case and engage in discussions and deliberations as they attempt to resolve their differences. We reject the suggestion that the instructions or verdict form in some way coerced the jury into a recommendation of death.
Similar instructions are given during the guilt stage of criminal proceedings. That an Allen type charge was given in the present case does not create any coercion. When this instruction is coupled with the court's statement that Chandler would receive the death penalty only if all jurors unanimously agreed to recommend death, we conclude the Allen charge was not coercive. See Lowenfield v. Phelps, U.
Finally we note that unlike many of the coercion cases discussed here and in Chandler's brief, there was no indication in this case that the jury was anything but unanimous. After a two week trial, the jury deliberated for just under three hours before returning a recommendation of death. Moreover, each juror was required to sign the verdict form and each juror, when polled, affirmed the decision. To conclude, we hold that in the sentencing phase of a Section e prosecution, the district court is not required to instruct the jury on the consequences of an inability to reach a unanimous verdict.
Chandler also failed to demonstrate that the jury was in any way coerced in this case. Section establishes a procedure for the introduction of evidence at the sentencing phase. Before trial, the government must provide the defendant with a list setting forth each aggravating factor that the government will attempt to prove as a basis for the imposition of the death penalty.
At the sentencing hearing, the government may present information relevant to any of the aggravating factors set forth in the Section h 1 B list as long as the probative value of the information is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
Prior to trial, the government provided a list to Chandler of the three aggravating factors on which it would rely in seeking the death penalty.
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The three factors were: 1 Chandler did intentionally kill or intentionally engage in conduct intending the killing of Marlin Shuler, Section n 1 ; 2 Chandler procured the murder of Shuler by promise of payment of money, n 6 ; and 3 Chandler committed the murder after substantial planning and premeditation, n 8. At the guilt phase, the government introduced evidence that Chandler had made threats against McFry and Burrows because he thought they were stealing his marijuana and that the two had not been seen since the threats were made.
Prior to the sentencing hearing, Chandler submitted proposed jury instructions. Proposed Instruction 14 stated that it would be inappropriate for the jury to speculate on what may have happened to McFry and Burrows or what connection Chandler may have had with them. Proposed Instruction 15 stated that the jury may consider evidence relating only to Marlin Shuler and to Count Three of the indictment.
Prior to the hearing, the district court, the prosecution, and Chandler's attorney discussed these proposed charges.
The district court indicated that it thought that the charges unduly limited the evidence that the jury could consider because most of the evidence presented at the guilt phase was relevant to either Chandler's intent or to the planning or scheming of Shuler's murder. Then, in response to a question from the prosecution, the court opined that any evidence concerning the disappearance of either McFry or Burrows was relevant to planning, if nothing else.
Later, the court advised that although he would not give Chandler's proposed instructions, he thought they were fair arguments for Chandler's counsel to make in closing. At the hearing, the district court received, upon the government's submission, all of the testimony, evidence, and exhibits presented at the guilt phase that were relevant to the murder of Shuler or to the presence of aggravating or mitigating factors.
Chandler's counsel, in his closing argument to the jury, requested that it should not speculate about any connection between Chandler and the disappearances of McFry and Burrows. The prosecution replied in rebuttal that the threats made against McFry and Burrows demonstrated planning in the protection of Chandler's marijuana operation. Following closing arguments, the court instructed the jury that it could consider any evidence relevant to the Shuler murder and to the existence of aggravating and mitigating factors.
The court identified the specific factors that the government was attempting to prove and admonished the jury to consider no other aggravating factor. On appeal, Chandler argues that the introduction of all the evidence from the guilt stage of the proceedings coupled with the argument made in closing by the government relating to McFry and Burrows constituted an attempt by the government to use the apparent murders of McFry and Burrows as aggravating factors. Since these putative murders were not included in the list provided under Section h 1 B , Chandler insists that the sentence of death should be vacated.
The evidence relating to McFry and Burrows was properly admitted during sentencing because it related to the aggravating factors the prosecution was responsible for proving.