Ayers, Robert (acting warden) v. Belmontes, Fernando (11/13/2006)

Questions presented: (1) Does Boyde v. California confirm the constitutional sufficiency of California's "unadorned factor (k)" instruction when a defendant presents mitigating evidence of his background and character which relates to, or has a bearing on, his future prospects as a life prisoner? (2) Does the 9th Circuit's holding, that California's "unadorned factor (k)" instruction is constitutionally inadequate to inform jurors they may consider "forward-looking" mitigation evidence constitute a "new rule" under Teague v. Lane?

BY CIARAN McEVOY, MEDILL NEWS SERVICE

During a March 15, 1981, burglary in Victor, Calif., Fernando Belmontes Jr. hit 19-year-old Steacy McConnell over the head 15 to 20 times with an iron bar, crushing her skull and killing her.

Belmontes and two accomplices, who had been waiting in a car outside McConnell's home during the fatal attack, then ransacked her house. They sold her stereo equipment for $100 and bought beer with it.

Belmontes was found guilty by a jury of first-degree murder with special circumstances, qualifying him for the death penalty.

During the trial's penalty phase, prosecutors brought up Belmontes' violent past, including a 1979 no contest plea to being an accessory to manslaughter and his assault of his pregnant girlfriend while he was on parole shortly before he murdered McConnell.

Defense lawyers introduced witnesses who told jurors of Belmontes' impoverished, abusive childhood. Several witnesses testified how well Belmontes had adjusted to prison life during a prior incarceration, as well as his embrace of Christianity. One prison chaplain told jurors Belmontes did not deserve to die because he was a "salvageable" person.

During jury instructions, California Superior Court Judge William R. Giffen listed several factors jurors would use to decide whether Belmontes would die or get life imprisonment. These factors included Belmontes' age, his prior felony convictions and "any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime."

This last instruction, now called "unadorned factor (k)," is a catch-all function which instructs jurors to consider any evidence in death penalty cases that might cause them to give a defendant life imprisonment.

Giffen refused to read a defense-written instruction which said, "You should not limit your consideration of mitigating circumstances to these specific factors. You may also consider any other circumstances…as reasons for not imposing the death penalty."

After a juror asked Giffen to clarify the instructions, the judge told jurors to weigh the factors he had listed. Jurors then sentenced Belmontes to death.

On appeal, the California Supreme Court affirmed Belmontes' death sentence, using the 1990 U.S. Supreme Court decision, Boyde v. California.

In Boyde, the Court upheld factor (k) and ruled that this jury instruction was invalid if it created "a reasonable likelihood that the jury understood the instruction in a manner that resulted in its failure to consider the [mitigating] evidence."

The Court also ruled that factor (k) didn't prevent jurors from taking into account a defendant's pre-crime background and behavior in determining death sentences.

After Belmontes had used up his state remedies, he turned to the federal courts, where in 2003, the 9th Circuit Court of Appeals overturned his death sentence.

In a 2-1 decision, the 9th Circuit said Giffen's instructions confused jurors by leading them to consider the crime and Belmontes' violent past instead of his probable future as a model prisoner.

Two years later in Brown v. Payton, the U.S. Supreme Court once again upheld factor (k), ruling that it didn't preclude jurors in death penalty cases from taking into account a defendant's post-crime behavior.

Shortly thereafter, the Court vacated the 9th Circuit's Belmontes judgment and ordered it to reconsider his case in light of the Payton decision.

But in July 2005 the 9th Circuit reaffirmed its original decision, based on what the majority said was Giffen's confusing factor (k) instruction.

"That instruction, read most naturally, suggested to the reasonable juror that Belmontes' evidence tending to show his probable future good conduct should be excluded from consideration," wrote Judge Stephen Reinhardt, for the majority. "The court's supplemental instructions only exacerbated this problem."

In his dissent, Judge Diarmuid F. O'Scannlain wrote "because factor (k) allows the jury to consider Belmontes' character and background, there is no reason to think that the jury would have thought it was foreclosed from using such information to consider his future potential if sentenced to life in prison."

The 9th Circuit majority also ruled that Payton didn't apply to this case because Belmontes' federal appeals predated the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA curtails the ability of federal courts to hear death penalty appeals stemming from state courts.

The court ruled that Belmontes' case fell under the pre-AEDPA standard, which gives federal judges more flexibility to hear state death penalty cases.

In October 2005, O'Scannlain and six other 9th Circuit judges unsuccessfully called on the rest of the court to reverse its decision.

California Attorney General Bill Lockyer then appealed to the U.S. Supreme Court on behalf of San Quentin State Prison Warden Steven W. Ornoski to reconsider the 9th Circuit's decision.

On May 1, 2006, the Court accepted review and allowed Belmontes to have his case heard without costs. The case will be heard during the Court's 2006-07 term, with a decision due by June 2007.

If the Court affirms the 9th Circuit's decision, other old California death penalty sentences could be overturned, lawyers said.

Belmontes, now 45, is currently incarcerated in San Quentin State Prison.

On Nov. 13, 2006, the Court issued a divided opinion, holding 5-4 that California's jury instruction was consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings.

Justice Anthony Kennedy wrote the Court's majority opinion. Justice John Paul Stevens wrote the dissent for himself and Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Kennedy concluded that the instruction allows jurors to consider favorable evidence about the crime and evidence relevant to the defendant's future dangerousness.

In dissent, Stevens quoted entensively from the colloquy between jurors and the trial judge during deliberations and concluded "that the jurors understood their task was to run through the listed statutory factors and weigh them against each other to determine whether respondent should be sentenced to death."

"I simply cannot believe that the jurors took it upon themselves to consider testimony they were all but told they were forbidden from considering," Stevens concluded; "in my view, they must at the very least have been confused as to whether the evidence could appropriately be considered."