TENNESSEE

 

Mitigating Circumstances Listed:  TCA   39-13-204(j);

 

State v. Hodges, 944 S.W.2d 346 (Tenn. 1997).

Trial court correctly refused to instruct jury on non-statutory mitigating circumstances because requests would appear to be factual findings by court.

 

State v. Odom, 928 S.W.2d 18 (Tenn. 1996); In capital murder prosecution, refusal during death penalty phase to admit evidence of defendant’s personal history through defense psychologist was reversible error. “Torture” involves infliction of severe physical or mental pain upon a victim while he or she remains alive and conscious.

 

Goad v. State, 938 S.W.2d 363 (Tenn. 1996); In capital sentencing hearing, evidence about defendant’s background and character is relevant because of belief that defendant’s who commit criminal acts that are attributable to disadvantaged background, or to emotional and mental problems may be less culpable than defendants who have no such excuse.

 

State v. Teague, 897 S.W.2d 248 (Tenn. 1995)

            Justice Reid:  Held that defendant was entitled to present evidence of circumstances of the murder at sentencing, specifically that he was not a participant, so long as it was probative on issue of defendant’s punishment.  Reversed and remanded.

 

State v. Keen, 926 S.W.2d 727 (Tenn. 1994)

            Court is not required to define “mitigating circumstances.”  Court is not required to list non-statutory mitigating circumstances in jury charge.

 

General Propositions

 

1)                  The jury must consider “any aspect of the defendant’s character of record…that the defendant proffers as a basis for a sentence less than death.”  Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978).

 

2)                  Jurors must individually evaluate the evidence in mitigation and, if one juror believes a mitigating circumstance exists, he or she must weigh it in the balance even if the other eleven disagree.  Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

 

3)                  Any of the “diverse frailties of humankind” constitute mitigating factors which must be considered as a matter of law when deciding punishment.  Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

 

4)                  The defendant in a capital case has a right under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution to present all mitigating evidence to the sentence.  Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Penry v. Linaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

 

JURY INSTRUCTIONS

 

Mitigating circumstances are not limited by law; they may be unlimited in number, as long as they are based upon the evidence introduced by either the prosecution or the defense at trial or sentencing.

AUTHORITY: Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982), cert. denied, 464 U.S. 843 (1983); State v. Hines, 758 S.W.2d 515 (Tenn. 1988); U.S. Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

Mitigation is that which tends to soften, temper, or make less harsh or severe.  Mitigating circumstances surrounding a criminal offense are those circumstances that tend to lessen the apparent badness of the particular crime in question or the apparent badness of the particular defendant.

AUTHORITY: State v. Smith, 755 S.W.2d 757 (Tenn. 1988); Lockett v Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); U.S. Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

The existence of any mitigating circumstances does not require proof beyond a reasonable doubt.  A mitigating circumstance exists if there is any evidence supporting it introduced by either the prosecution or the defense at either the guilt-innocence or sentencing stage of the trial, which is uncontradicted or which outweighs any contrary evidence.

AUTHORITY: State v. Thompson, 76 S.W.2d 239 (Tenn. 1989) cert. denied, 110 S.Ct. 3288 (1990); Lockett v Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); U.S. Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

Mercy, sympathy and compassion are appropriate mitigation subjects for consideration by a sentencing jury.

AUTHORITY: State v. Taylor, 771 S.W.2d 387 (Tenn. 1989); Lockett v Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); U.S. Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

Mitigation may be established by any evidence introduced by either party at either the guilt-innocence or sentencing phase of the trial, or both.  The weight to give to a particular mitigating circumstance is a matter for the jury.  However, jury may not refuse to consider any evidence of mitigation and thereby give it no weight.

AUTHORITY: State v. Thompson, 76 S.W.2d 239 (Tenn. 1989) cert. denied, 110 S.Ct. 3288 (1990); Woodson v. North Carolina, 428 U.S. 280 (1976), Lockett v Ohio, 438 U.S. 586 (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); U.S. Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

 

Mitigating factors are circumstances that do not constitute a defense, legal excuse or justification for the crime, but which decrease its guilt or enormity.  A mitigating factor is one that can be considered as extenuating or reducing the degree of moral culpability of the defendant, and tens to support imposition of a sentence of life imprisonment.

AUTHORITY: Spivey v. Zane, 661 F.2d 464, 471 n.8 (5th Cir. 1981) cert. denied, 458 U.S. 1111 (1982); U.S. Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

Samples of Specific Mitigating Circumstances

 

1)      The defendant’s troubled childhood is a mitigating factor.

AUTHORITY:  Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

 

2)      The defendant’s good behavior in jail after arrest is a mitigating factor.

AUTHORITY:  Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); see also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

 

3)      Sympathy, mercy, and compassion may be considered in mitigation.

      AUTHORITY: State v. Taylor, 771 S.W.2d 387 (Tenn. 1989); California v. Brown,          

      479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Lockett v Ohio, 438 U.S. 586

      (1978); Eddings v. Oklahoma, 455 U.S. 104 (1982); U.S. Constitution, 8th and 14th

       Amendment(s), Tennessee Constitution, Article I, 8 and 16.

 

4)      “Defendants who commit criminal acts that are attributable to a disadvantaged background or to emotional and mental problems may be less culpable than defendants who have no such excuse.”

AUTHORITY: California v. Brown, 479 U.S. 538, 545 (1987) (O’Conner, J., concurring); Goad v. State, 938 S.W.2d 363 (Tenn.. 1996).

 

 

XIII. SENTENCING

 

SAMPLE PROPOSED JURY INSTRUCTION

 

Responsibility for making the decision for life or death rests entirely with the jurors.

AUTHORITY:  Caldwell v. Mississippi, 427 U.S. 320 (1985), (neither the judge nor the prosecution can diminish the responsibility of the jury for the sentence of death); State v. West, 767 S.W.2d 387 (Tenn. 1989), cert. Denied, 110 S.Ct. 3254 (1990); Sparks v. State, 563 S.W.2d 564 (Tenn. Crim. App. 1978); See generally, U.S. Constitution, 8th and 14th Amendments, Tennessee Constitution, Article I, 8 and 16.

 

In determining the punishment jury is limited to considering only those aggravating circumstances that are described by the Court.

AUTHORITY:  TCA 39-13-204(f); Cozzolino v. State, 584 S.W.2d 708 (Tenn. 1983); State v. Irick, 762 S.W.2d 121 (Tenn. 1988), cert. Denied, 109 S.Ct. 1357 (1989); U.S. Constitution, 8th and 14th Amendments, Tennessee Constitution, Article I, 8 and 16

 

Prosecution must prove any aggravating circumstance beyond a reasonable doubt.

AUTHORITY: TCA 39-13-204(f); State v. Buck, 670 S.W.2d 600 (Tenn. 1984); U.S. Constitution, 8th and 14th Amendments, Tennessee Constitution, Article I, 8 and 16

 

A finding that any aggravating circumstance has been proven beyond a reasonable doubt must be unanimous.

AUTHORITY: TCA 39-13-204(f); State v. Buck, 670 S.W.2d 600 (Tenn. 1984); In re Winship, 397 U.S. 358 (1970); U.S. Constitution, 8th and 14th Amendments, Tennessee Constitution, Article I, 8 and 16

 

 

 

Burden of proof, death sentence:

1. Jury must reach a unanimous verdict;

2. Prosecution must prove beyond a reasonable doubt that at least one aggravating circumstance exists; Taylor v. Kentucky, 436 U.S. 478 (1978);

3. Prosecution must also prove beyond a reasonable doubt that such aggravating circumstance or circumstances outweighs any mitigating circumstances found to exist by any individual on jury.

TCA  39-13-204  does not preclude consideration of any relevant mitigating factors.

      State v. Thompson, 76 S.W.2d 239 (Tenn. 1989) cert. denied, 110 S.Ct. 3288   

      (1990); [1 & 2] – TCA 39-13-204(f); Mills v. Maryland, 486 U.S. 367 (1988); U.S. 

      Constitution, 8th and 14th Amendment(s), Tennessee Constitution, Article I, 8 and 16