State Ex Rel. Thomas v. Granville

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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