No. 08-822

IN THE

FILED

OFFICE OF THE CLER~I.. SUPREME COURT.

SCOTTA. MCLAUGHLIN,Petitioner,

STATE OF MISSOURI,Respondent.

On Petition For a Writ of CertiorariTo the Supreme Court of Missouri

- Capital Case -

BRIEF IN OPPOSITION

CI-IRIS KOSTERAttorney General

SHAUN J MACKELPRANGAssistant Attorney General

Counsel of Record

P. O. Box 899Jefferson City, MO 65102(573) 751-3321

Attorneys for Respondent

Blank Page

CAPITAL CASE

QUESTIONS PRESENTED

In Missouri, in capital cases, after the jury finds adefendant guilty of murder in the first degree, thejury must then determine, in a separate penalty-phase proceeding, whether a sentence of deathshould be imposed. In the penalty phase, if the juryfinds a statutory aggravating circumstance beyond areasonable doubt, the defendant is eligible to receivea sentence of death. Thereafter, if the jury concludeseither (1) that the evidence in mitigation outweighsthe evidence in aggravation, or (2) that under all ofthe facts and circumstances that a sentence of deathis not warranted, the jury will impose a life sentence.The manner in which the first of these enumeratedsteps (the "weighing" step) is carried out gives rise tosome potential questions, including:

I. Under the rule announced in Apprendi v. NewJersey, 530 U.S. 466, 476 (2000) - where the Courtaffirmed that "any fact that increases themaximum penalty for a crime must be... submittedto a jury, and proven beyond a reasonable doubt" -does a jury in Missouri have to make its weighingdetermination beyond a reasonable doubt; and

II. Does requiring the defendant to prove thegreater weight of the mitigating evidence violate theEighth and Fourteenth Amendments.

ii

PARTIES TO ~ PROCEEDING

The petitioner, Scott A. McLaughlin, was theappellant below. The State of Missouri was therespondent.

ooo111

TABLE OF CONTENTS

OPINIONS BELOW ...................................................1

JURISDICTION .........................................................1

CONSTITUTIONAL PROVISIONS INVOLVED .....1

STATUTORY PROVISIONS INVOLVED .................2

STATEMENT OF THE CASE ...................................4

REASONS FOR DENYING THE PETITION ...........9

I. THE MISSOURI SUPREME COURT DID NOTDECIDE THE QUESTIONS PRESENTED IN PETI-

TIONER’S PETITION; THUS, THIS COURT LACKS

JURISDICTION TO GRANT A WRIT OF CERTIORARI ON

THE QUESTIONS PRESENTED .....................................9

II. EVEN IF THE QUESTIONS PRESENTED WERETANGENTIALLY IMPLICATED BY THE MISSOURI

COURT’S OPINION, TtIE MISSOURI COURT DID NOT

DECIDE A FEDERAL QUESTION IN A MANNER THAT

CONFLICTS WITH THIS COURT’S SIXTH OR EIGHTH

AMENDMENT CASES ................................................14

A. The Court’s decisions in Apprendi andRing do not require the trier of fact, in con-ducting Missouri’s weighing step, to make itsdetermination beyond a reasonable doubt .......15

B. Because Missouri’s weighing step is not afactual finding that increases the range ofpunishment (as contemplated by Apprendiand Ring), it does not violate the Constitutionto place on the defendant "the burden ofproving mitigating circumstances sufficientlysubstantial to call for leniency." .......................19

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C. This Court’s; precedents provide adequateguidance to lower courts, and the purported"confusion" and "tension" the petitioner citesto in his petition is simply the naturalconsequence of tlhis Court’s precedents, whichhave held that, "the States are free todetermine the manner in which a jury mayconsider mitigating evidence." .......................... 25

CONCLUSION .........................................................28

V

TABLE OF AUTHORITIES

CASES

Adams v. Robertson, 520 U.S. 83 (1997) ..............9, 14

Apprendi v. New Jersey,

530 U.S. 466 (2000) ..............................9, 15, 23

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ........................................10

Kansas v. Marsh, 548 U.S. 163 (2006)... 21, 22, 24, 27

Ring v. Arizona, 536 U.S. 584 (2002) ................passim

State v. Gill, 167 S.W.3d 184 (Mo. banc 2005) ........17

State v. Glass, 136 S.W.3d 496 (Mo. banc 2004) ......17

State v. Whitfield,

107 S.W.3d 253 (Mo. banc 2003) ............passim

State v. Zink, 181 S.W.3d 66 (Mo. banc 2005) ...........7

Walton v. Arizona, 497 U.S. 639 (1999) .......20, 24, 27

Zink v. State, --- S.W.3d ---, 2009 WL 454283

(Mo. banc 2009) ............................16, 17, 19, 23

vi

STATUTES

§ 565.030.4, Mo. REv. STAT. (2008) ................6, 11, 18

28 U.S.C. 1257(a) ......................................................10

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OPINIONS BELOW

The opinion of the Missouri Supreme Court isreported at 265 S.W.3d 257 (Mo. banc 2008), and it isincluded in the Appendix to the petition at la-42a.

JURISDICTION

The Missouri Supreme Court entered judgmenton August 26, 2008. The Court denied rehearing onSeptember 30, 2008. The jurisdiction of this Court isinvoked under 28 U.S.C. § 1257(a). But because theMissouri Supreme Court did not decide (and was notasked to decide) the federal questions presented bythe petition, the Court lacks jurisdiction to grant awrit of certiorari on those federal questions.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment VI:

In all criminal prosecutions, the accused shallenjoy the right to a speedy and public trial byan impartial jury ....

Constitution of the United States, Amendment VIII:

Excessive bail shall not be required, norexcessive fines imposed, nor cruel andunusual punishments inflicted.

Constitution of the United States, Amendment XIV,Section 1:

All persons born or naturalized in the UnitedStates and subject to the jurisdiction thereofare citizens of the United States and of the

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state wherein they reside. No state shall . . .deprive any person of life, liberty or propertywithout due process of law, nor deny to anyperson within ir~s jurisdiction the equalprotection of the laws.

STATUTORY PIROVISIONS INVOLVED

28 U.S.C. § 1257(a):

Final judgments or decrees rendered bythe highest court of a State in which adecision could be had, may be reviewed by theSupreme Court by writ of certiorari where...the validity of a statute of any State is drawnin question on the ground of its beingrepugnant to the Constitution, treaties, orlaws of the United States, or where any title,right, privilege, oz’ immunity is specially setup or claimed under the Constitution or thetreaties or statutes of, or any commission heldor authority exercised under, the UnitedStates.

M_ISSOIYRI REVISED STATURES, § 565.030.4 (2008), inrelevant part:

If the trier at the first stage of a trialwhere the death penalty was not waived findsthe defendant guilty of murder in the firstdegree, a second stage of the trial shallproceed at which the only issue shall be thepunishment to be assessed and declared ....The trier shall assess and declare thepunishment at life imprisonment withouteligibility for probation, parole, or releaseexcept by act of the governor:

(1) If the trier finds by a preponderance ofthe evidence that the defendant is mentallyretarded; or

(2) If the trier does not find beyond areasonable doubt at least one of the statutoryaggravating circumstances setout insubsection 2 of section 565.032; or

(3) If the trier concludes that there isevidence in mitigation ofpunishment,including but not limitedto evidencesupporting the statutorymitigatingcircumstances listed in subsection 3 of section565.032, which is sufficient to outweigh theevidence in aggravation of punishment foundby the trier; or

(4) If the trier decides under all of thecircumstances not to assess and declare thepunishment at death ....

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STATElVIENT OF THE CASE

A jury found the petitioner, Scott A. McLaughlin,guilty of murder in the first degree, armed criminalaction, and rape (App. la, 4a). The Missouri SupremeCourt summarized the facts of petitioner’s crimes inits opinion (App. 2a-6a).

With regard to the murder conviction, "the juryfound in step one of :its penalty phase deliberationsthat the statutory aggravating factor of depravity ofmind had been proven beyond a reasonable doubt"(App. 5a). In step two:. the "weighing" step, the jurors"were unable to unanimously conclude that thefactors in mitigation outweighed those in aggrava-tion" (App. 5a-6a). Thus, the jury did not assess a lifesentence at that point, and the jury was thendirected "to [unanimously] determine [in the nextstep] whether, under all the circumstances, deathwas warranted" (App. 6a). In the final step, "the jurydeadlocked" and was ’~unable to agree unanimously"on the appropriate senLtence (App. la, 6a).1

Accordingly, as required under Missouri law, "thequestion of punishment [went] to the trial court"(App. 6a). "The trial court considered all of theevidence, including the aggravating factor found bythe jury, and sentenced [petitioner] to death" (App.6a). In reaching its conclusion that death was theappropriate sentence, the trial judge was required byMissouri law to "follow the same procedure the juryfollows" (App. 9a). In other words, the trial judge was

i The point at which the jury deadlocked was known in lightof the verdict form, which required the jury to indicate througha series of questions how far it had progressed in its penalty-phase deliberations (see App. 11a, 45a-46a).

required to find that the state had proven anaggravating circumstance beyond a reasonabledoubt, that the evidence in mitigation did notoutweigh the evidence in aggravation, and thatunder all of the circumstances death was theappropriate sentence (App. 9a-10a).

On appeal to the Missouri Supreme Court,petitioner asserted that allowing the trial judge tomake factual findings to support a death sentenceviolated this Court’s decision in Ring v. Arizona, 536U.S. 584 (2002), and the Missouri Supreme Court’sdecision in State v. Whitfield, 107 S.W.3d 253 (Mo.banc 2003), a Missouri case that had applied Ring(App. 7a). Specifically, petitioner asserted in his briefthat "Section 565.030.4’s directive that the judgemake death-eligibility fact-findings whenever’required to determine punishment for murder in thefirst degree,’ violates Ring v. Arizona, 536 U.S. 584(2002) and State v. Whitfield, 107 S.W.3d 253 (Mo.banc 2003)" (Pet. Brief 50).

The Missouri Supreme Court rejected this claim,finding that petitioner’s penalty phase had compliedwith this Court’s decision in Ring and its owndecision in Whitfield. Specifically, because the juryhad found the existence of a statutory aggravatingcircumstance beyond a reasonable doubt (as shownby the verdict form), there was no Ring violation(App. lla).~ Additionally, because the verdict formalso revealed that the jury had not unanimously

~ Ring held that "a sentencing judge, sitting without a jury,[may not] find an aggravating circumstance necessary forimposition of the death penalty." 536 U.S. at 609. Rather, "theSixth Amendment requires that [those circumstances] be foundby a jury." Id.

concluded that the evidence in mitigation out-weighed the evidence in aggravation, there was noWhitfield violation (App. lla).3

Additionally, although the claim was not raised inhis "Point Relied On," as required under Missouriappellate practice, the Missouri court observed thatpetitioner had raised an additional claim of instruct-tional error in the body of his argument that wasrelated to the weighing step (App. 14a-15a).4 Morespecifically, petitioner had also "assert[ed] that thetrial court erred in instructing the jury that it wasrequired to unanimously agree that the evidence inmitigation outweighed the evidence in aggravation inorder to be required to return a life sentence at steptwo of the [penalty-phase] procedure" (App. 15a).Petitioner argued that rather than unanimity of thejurors in the weighing step, § 565.030.4(2), Mo. REV.SWAT., required only a majority of the jurors toconclude that the evidence in mitigation outweighedthe evidence in aggravation (App. 15a; see Pet. brief

s In Whitfield, the Missouri Supreme Court had held that toremain consistent with Ring, the jury should he required todetermine whether the evidence in mitigation outweighed theevidence in aggravation (i.e., that Ring required the weighingstep to be completed by a jury). 107 S.W.3d at 258. As will bediscussed below, the Missouri Supreme Court has sinceclarified that under Missouri law, the weighing step ofMissouri’s penalty-phase proceedings does not involve a factualfinding that renders the defendant eligible for a death sentence;thus, while the weighing step must still be completed by thejury under Missouri law, the Missouri Supreme Court has heldthat it is not subject to Ring’s requirement that thedetermination be made beyond a reasonable doubt.

’ Both of the claims identified by the Missouri SupremeCourt were raised in a single claim of error in petitioner’s brief(Pet. Brief 50-64).

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60-62). But because this claim of error had not beenproperly raised in petitioner’s brief, "The Courtreview[ed] this point for plain error" underMissouri’s plain-error rule (App. 15a).

The court then rejected the claim, concluding thatMissouri’s statute required unanimity in theweighing step (App. 16a-20a). The court alsoobserved that because the jurors were not required"to be unanimous in their conclusion that aparticular mitigating factor is present," there was"no error of constitutional proportions" (App. 15a-16a). The court then finally concluded that there wasno plain error in the penalty-phase instructionsdealing with the weighing step; the court stated: "Forthese reasons, this Court reaffirms its holding inZink [5] that under section 565.030.4(2) [the weighingstep], the jury must unanimously decide that themitigating evidence outweighs the aggravatingevidence in order to be required to return a lifesentence. There was no plain error in submitting thisinstruction" (App 20a).

Although petitioner raised several other claims oftrial-court error, at no point in his brief didpetitioner assert either of the two questions thatpetitioner has presented in his petition to this Court.Specifically, petitioner did not allege that it waserror to instruct the jury on the weighing stepwithout also instructing the jury to make itsdetermination "beyond a reasonable doubt" (Pet. i).Petitioner also did not allege that it was error to"requir[e] the defendant to carry the burden ofdemonstrating to a unanimous jury that mitigatingevidence outweighs aggravating evidence" (Pet. i).

State v. Zink, 181 S.W.3d 66 (Mo. banc 2005).

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Thus, the Missouri Supreme Court did not analyze ordirectly answer either of the two questions presentedby the petitioner (see App. 7a-20a).

Petitioner filed a motion for rehearing, and, forthe first time, petitioner asserted that the burden ofproof in the weighing step "should be on the state -not on the defendant" (Mot. for Reh’g 8). Citing thisCourt’s decision in Ring (along with other decisions,including the Missouri Supreme Court’s decision inWhitfield), petitioner pointed out that any fact thatincreases the range of punishment must be sub-mitted to the jury and proved by the state beyond areasonable doubt (Mot. for Reh’g 8-9). Petitionerargued that "Requiring the defendant to bear theburden of establishing to a unanimous jury that themitigating circumstances outweigh the aggravatingcircumstances stands Ring on its head" (Mot. forReh’g 9). The Missouri Supreme Court declined toreview these new arguments, and it summarilydenied petitioner’s motion for rehearing without anymodification to its opinion (Pet. 43a-44a).

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REASONS FOR DENTING THE PETITION

THE MISSOURI SUPREME COURT DID NOT DECIDE

THE QUESTIONS PRESENTED IN PETITIONERgS

PETITION; THUS, THIS COURT LACKS JURISDIC-

TION TO GRANT A WRIT OF CERTIORARI ON THE

QUESTIONS PRESENTED.

Petitioner presents two questions for the Court’sreview:

I. Whether the rule announced in Apprendiv. New Jersey, 530 U.S. 466, 476 (2000), that"any fact that increases the penalty for acrime beyond the prescribed statutorymaximum.., must be submitted to a jury andproved beyond a reasonable doubt," applies tothe weighing of aggravating and mitigatingevidence at the penalty phase of a capitaltrial[; and]

II. Whether Missouri law violates theEighth and Fourteenth Amendments byrequiring the defendant to carry the burden ofdemonstrating to a unanimous jury thatmitigating evidence outweighs aggravatingevidence

(Pet. i). But because neither of these questions wasanalyzed and answered by the Missouri SupremeCourt in this case, the Missouri court’s judgment isnot a "final judgment" on these federal questions asrequired by 28 U.S.C. 1257(a). See Adams v.Robertson, 520 U.S. 83, 86 (1997) ("With ~,ery rareexceptions,’ we have adhered to the rule in reviewingstate court judgments under 28 U.S.C. § 1257 that

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we will not consider a petitioner’s federal claimunless it was either addressed by, or properlypresented to, the state court that rendered thedecision we have been asked to review." (internalcitation omitted)).

Under § 1257(a), the Court has jurisdiction toreview ~Final judgments or decrees rendered by thehighest court of a State in which a decision could behad, . . . where . . . the validity of a statute of anyState is drawn in question on the ground of its beingrepugnant to the Constitution[.]" In other words, forthe Court to have jurisdiction over any given federalquestion under § 1257(a), the validity of the statestatute must have been ~drawn in question" on thosegrounds, and the state court must have issued a finaljudgment on that issue. See Cox Broadcasting Corp.v. Cohn, 420 U.S. 469, 476 (1975) (in determiningjurisdiction under 28 U.S.C. 1257(2), the Courtobserved: "Two questions concerning our jurisdictionmust be resolved: (:l) whether the constitutionalvalidity of § 26-9901 was ’drawn in question,’ withthe Georgia Supreme Court upholding its validity,and (2) whether the decision from which this appealhas been taken is a ’(f)inal judgment or decree.’).

Here, on appeal to the Missouri Supreme Court,petitioner did not assert that Missouri’s weighing-step statute violated the Constitution either becauseit failed to comply with Apprendi and Ring orbecause it improperly placed a burden of proof on thepetitioner or otherwise failed to comply with thisCourt’s Eighth Amendment jurisprudence. Instead,petitioner raised two other claims that onlyindirectly related to Missouri’s weighing step, butthat did not challenge its constitutionality.

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Primarily, petitioner asserted that the portion of§ 565.030.4, Mo. REV. STAT. (2008), that allowed atrial judge to impose a sentence of death if the jurywas ultimately unable to decide upon punishmentviolated the Sixth Amendment (App. 7a; Pet. brief50). Specifically, petitioner asserted that "Section565.030.4’s directive that the judge make death-eligibility fact-findings whenever ’required to deter-mine punishment for murder in the first degree,’violates Ring v. Arizona, 536 U.S. 584 (2002) andState v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003)"(Pet. Brief 50).

In rejecting petitioner’s claim, the Missouri courtcited Ring and discussed its previous holding in Statev. Whit]:ield (a Missouri case that had applied Ring toMissouri’s capital sentencing procedures) (App. 7a-12a). The court then held:

As the above discussion notes, Whitfield doesnot state that a judge cannot enter a deathsentence if the jury deadlocks; it says, rather,that under the principles set out in Ring, thejury must make the required factual findingsthat increase the punishment from a life sent-ence to death. Whit]:ield, 107 S.W.3d at 261-62

(App. 11a). The court then observed that the juryhad made all of the required factual findings (asdemonstrated by the verdict form that the jury wasrequired to fill out in the event of a deadlock); thecourt stated:

The jury in this case followed its instructionsand answered that it did find the statutoryaggravator that the crime was committedwith depravity of mind in that [petitioner]

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committed repeated and excessive acts ofphysical abuse. It also specifically found thatit could not unanimously conclude that theevidence in mitigation outweighed theevidence in aggravation of punishment. Itsanswers thus show that it became deadlockedonly after making the necessary factual find-ings. Whiff-reid did not hold that a judge couldnot consider the facts and make a deter-mination whether to impose death once a juryhad found the ~cts necessary to make adefendant eligible for a death sentence undersection 565.030.4, and such a procedure doesnot violate Ring.

(App. lla).

As is evident, in deciding the question presentedto it, the Missouri Supreme Court did not analyze oranswer the question of whether Missouri’s weighingstep comports with Apprendi and Ring. Rather, thecourt only concluded that once the jury had made thefactual findings required by its own decision inWhitfield, it did not violate Ring to allow the trialjudge to make its own factual findings and impose asentence of death. Thus, Missouri’s statute was not"drawn in question" on the grounds now asserted inthe petition, and the Missouri Supreme Court did notissue a final judgment on those federal questions.

In attempting to suggest that the Missouri courtanswered the questions presented, petitioner cites tothe Missouri court’s statement that "this Court re-affirms its holding in Zink that under section565.030.4(2) [the weighing step], the jury mustunanimously decide that the mitigating evidenceoutweighs the aggrm~ating evidence in order to be

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required to return a life sentence" (Pet. 5, 13; seeApp. 20a).~ But in stating this holding, the court wasnot answering the question of whether Missouri’sweighing step should require a determination beyonda reasonable doubt, or whether it was proper in theweighing step to place a burden of proof on thedefendant. Rather, the court was analyzing peti-tioner’s subsidiary plain-error claim that Missouri’spenalty-phase instructions did not comport with§ 565.030.4(2), Mo. REV. STAT. (see App. 14a-15a).

In his brief, petitioner had alleged instructionalerror not because the penalty-phase instructionswere unconstitutional for either of the reasons nowraised in petitioner’s petition, but because theinstructions failed to properly instruct the jury onMissouri law. Specifically, petitioner argued that thejury should not have been instructed that it had "tounanimously agree that the evidence in mitigationoutweighed the evidence in aggravation," but, rather,that, under § 565.030.4(2), it should have beeninstructed that only a majority of the jurors had toagree that the evidence in mitigation outweighed theevidence in aggravation (App. 15a). In short, it waspetitioner’s contention that under § 565.030.4(2), theweighing step required only a majority of the jurorsto conclude that the evidence in mitigation out-weighed the evidence in aggravation, and, thus, thejury had not been properly instructed (App. 15a; seePet. brief 60-62). Thus, again, Missouri’s statute wasnot "drawn in question" on the federal grounds nowasserted in the petition, and the Missouri Supreme

~ Although he twice cites to this language (Pet. 5, 13),petitioner neglects to mention that the Missouri Supreme Courtwas analyzing an improperly preserved claim of instructionalerror under Missouri’s plain-error rule (14a-15a).

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Court did not issue a final judgment on these federalquestions.

In sum, the Missouri Supreme Court did notfinally determine the federal questions presented inthe petition, and the holding that petitioner relies onfrom the Missouri court’s opinion comes from thecourt’s analysis of an instructional error that was notproperly presented to the court. Accordingly, theCourt lacks jurisdiction under § 1257(a) to considerpetitioner’s federal questions, and the Court shoulddecline to grant a wTit of certiorari to the MissouriSupreme Court. Adams v. Robertson, 520 U.S. at 86.

IX. EVEN IF THE QUESTIONS PRESENTED WERE

TANGENTIALLY IMPLICATED BY THE I~ISSOURI

COURT’S OPINION, THE I~].ISSOURI COURT DID NOT

DECIDE A FEDERAL QUESTION IN A MANNER THAT

CONFLICTS WITH THIS COURT’S SIXTH OR EIGHTHAMENDMENT CASES.

Because the Missouri Supreme Court held that itdid not violate Ring ibr the trial judge to determinethat death was an appropriate sentence, and becausethe court noted that the trial judge (in addition to thejury) was guided by Missouri law in making itsdetermination of an appropriate sentence, it could beargued that the Missouri Supreme Court implicitlyheld that there was no Sixth or Eighth Amendmentviolation in Missouri’s weighing step. Again, theMissouri Supreme Court was not asked to considerwhether the weighing step violated the Constitution,but even if the Court determines that the questionspresented are tangentially implicated, further reviewof the Missouri court’s opinion is not warranted.

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A. The Court’s decisions in Apprendi and Ringdo not require the trier of fact, in conduct-ing Missouri’s weighing step, to make itsdetermination beyond a reasonable doubt.

In Apprendi v. New Jersey, 530 U.S. 466, 476(2000), the Court affirmed that "any fact (other thanprior conviction) that increases the maximumpenalty for a crime must be... submitted to a jury,and proven beyond a reasonable doubt.~ The Courtsubsequently applied this rule in Ring v. Arizona,536 U.S. 584, 609 (2002), to hold that "a sentencingjudge, sitting without a jury," could not "find anaggravating circumstance necessary for imposition ofthe death penalty.~ Rather, because aggravatingcircumstances increase the range of punishment (toinclude the death sentence), "the Sixth Amendmentrequires that they be found by a jury" beyond areasonable doubt. Id.

Shortly after Ring was decided, the MissouriSupreme Court decided State v. Whitfield, 107S.W.3d 253 (Mo. banc 2003), a case in which the jurydeadlocked and the trial judge made the requisitestatutory findings and imposed a sentence of death.On appeal, the Missouri Supreme Court applied Ringto Missouri’s penalty-phase procedures and conclud-ed that statutory aggravators had to be submitted tothe jury and found beyond a reasonable doubt. Id. at258-259. The court then analyzed whether theremaining three steps under the then-currentversion of § 565.030.4 were subject to Ring’s require-ments. With regard to the weighing step, the courtconcluded that the jury’s determination of "whetherthe evidence in mitigation outweighs the evidence inaggravation" was a factual finding that made the

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defendant death eligible. Id. at 259-261. Thus, thecourt concluded that the weighing step was not astep that could be conducted by a judge sittingwithout a jury, and, accordingly, the court concludedthat the judge had violated Ring when the judgemade that factual finding. Id. at 261-262.

Citing Whitfield, petitioner argues that, although"the Missouri Supreme Court [in Whitfield] osten-sibly found the Apprendi rule applicable to theweighing determination, in petitioner’s case t[heMissouri Supreme] court held that the defendant -rather than the state - must bear the burden ofpersuading a unanimous jury that the mitigatingevidence outweighs aggravating evidence" (Pet. 5).Petitioner thus argues that "Missouri applies thejury submission portion of the Apprendi rule, buteschews the inseparable requirement that it is thestate that must prove against the defendant, beyonda reasonable doubt, the existence of any fact thatraises the punishment ceiling" (Pet. 5).

But petitioner’s reliance on the Missouri court’sdecision in Whitfield is misplaced. The opinion inWhitfield represents the Missouri Supreme Court’sfirst application of Ring to Missouri’s capital penalty-phase procedures. But while the court indicated inWhitfield that the weighing step constituted a fact-ual determination that made the defendant "deatheligible," the Missouri Supreme Court has sincerecognized that, under Missouri law, the weighingstep is not a factual determination that must beproved beyond a reasonable doubt (because it is not afactual finding that actually increases the range ofpunishment). In fact, very recently, in Zink v. State, --- S.W.3d ---, 2009 WL 454283 (Mo. banc 2009), theCourt rejected a claim that Missouri’s weighing-step

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determination had to be made beyond a reasonabledoubt. The Court cited the rule from Apprendi andRing and expressly stated that Missouri’s weighingstep did not "require0 a finding of a fact that mayincrease Mr. Zink’s penalty." Id. at "19. The courtexplained:

[The weighing step does not] require~ afinding of a fact that may increase Mr. Zink’spenalty. Instead, the jury is weighingevidence and all information before them.Only findings of fact that increase the penaltyfor a crime beyond the prescribed statutorymaximum are required to be found by a jurybeyond a reasonable doubt. This Courtpreviously has recognized this distinction andheld that steps two and three [step three wasthe weighing step at Mr. Zink’s trial] do notneed to be found by a jury beyond areasonable doubt. See State v. Glass, 136S.W.3d 496, 520-21 (Mo. banc 2004); State v.Gill, 167 S.W.3d 184, 193 (Mo. banc 2005).

Id. Thus, contrary to petitioner’s argument, underMissouri law, Missouri’s weighing step is not adetermination that must be made beyond areasonable doubt, as it is not a factual finding thatincreases the maximum punishment.7 See State v.Gill, 167 S.W.3d 184, 193 (Mo. banc 2005) ("Althoughsection 565.030.4 expressly requires the jury to usethe reasonable doubt standard for the determinationof whether any statutory aggravators exist, thestatute does not impose the same requirement on the

~ The arnici in support of the petition also incorrectly viewMissouri’s weighing step as a "culpability determination" that"expose[s] a defendant to a death sentence" (Am. Br. 13).

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determination of whether evidence in mitigationoutweighs evidence in aggravation.").

And, in fact, the plain language of Missouri’scapital-sentencing sr~atute does not premise anincrease in a capital defendant’s sentence upon anyfinding made during the weighing step. To thecontrary, the statute provides, in relevant part, that"If the trier concludes that there is evidence inmitigation of punishment . . . which is sufficient tooutweigh the evidence in aggravation of punish-ment," the trier of fact "shall assess and declarepunishment at life imprisonment." § 565.030.4, Mo.Rev. Stat. (2008). In other words, the weighing stepinvolves a factual determination that limits therange of punishment to life imprisonment.8

In short, the only authority for petitioner’s claimthat "the Apprendi rule applies to the weighing stepof Missouri’s capital sentencing scheme" (Pet. 15), issome outdated language from the Missouri SupremeCourt’s decision in Whitfield.9 But, as discussed

8 In light of this statutory language, by arguing thatMissouri’s weighing step should be subject to a beyond-a-reasonable-doubt standard of proof, petitioner and the arnici insupport of the petition are essentially arguing either that adefendant in Missouri should be required to prove beyond areasonable doubt that he is entitled to a life sentence due to thestrength of the mitigating evidence, or (more likely) that thisCourt should rewrite Missouri’s weighing-step statut~ andrequire finders of fact in Missouri to determine beyond areasonable doubt that the evidence in aggravation outweighsthe evidence in mitigation. The Court should decline to adopteither alternative.

9 Petitioner’s misplaced reliance on Whitfield pervades thepetition; thus, petitioner argues, for example: "Assignment ofthe burden of persuasion to the defense at a death-eligibility

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above, petitioner’s argument is based on an incorrectunderstanding of Missouri law, as the MissouriSupreme Court has since recognized that while theweighing step must be submitted to the jury underMissouri law, Missouri law does not premise anincrease of punishment upon the determinationmade in the weighing step. Zink v. State, 2009 WL454283 at "19. Accordingly, inasmuch as Missouri’sweighing step does not involve a factual deter-mination that increases the range of punishment fora capital defendant, the rule of Apprendi and Ringdoes not apply, and the Sixth Amendment does notrequire the trier of fact to make the weighing-stepdetermination beyond a reasonable doubt.

B. Because Missouri’s weighing step is not afactual finding that increases the range ofpunishment (as contemplated by Apprendiand Ring), it does not violate the Consti-tution to place on the defendant "the burdenof proving mitigating circumstances suf-ficiently substantial to call for leniency."

Petitioner also argues extensively that Missouri’sweighing step violates the Constitution by putting

stage conflicts with this Court’s Sixth, Eighth, and FourteenthAmendment jurisprudence" (Pet. 5-6); "If even a single jurorfinds the mitigating evidence insufficient, the defendantbecomes death-eligible" (Pet. 7); "By finding that the Apprendirule applies to the weighing step of Missouri’s capitalsentencing scheme, but nonetheless holding that it is thedefendant who (at this step) must persuade the jury that he isnot death-eligible, the Missouri Supreme Court seriously cloudsthe bright-line Apprendi rule" (Pet. 15); and "The MissouriSupreme Court’s holding that, though the Apprendi ruleapplies, the state sentencing scheme properly places the burdenof persuasion on the defendant at the weighing stage cannot bereconciled with this Court’s Apprendi decision" (Pet. 23).

2O

the burden of proof on the defendant and requiringthe defendant to convince all of the jurors that theevidence in mitigation outweighs the evidence inaggravation (see Pet. 5-7, 15, 23). Petitioner arguesthat it is improper to burden the defendant in theweighing step because the weighing step requires thejury to make a factual finding that renders thedefendant eligible to :receive a death sentence (Pet. 5-7, 15, 23). But, again, this argument is premisedupon petitioner’s misplaced reliance on the MissouriSupreme Court’s opinion in Whitfield. As discussedabove, in the several years since Whit~eld wasdecided, the Missouri. Supreme Court has repeatedlyclarified that, under Missouri law, Missouri’sweighing step does n,~t include a factual finding thatincreases the range of punishment.

In other words, it is apparent that Missouri’sweighing step does not set forth an ~element" (or factincreasing punishment) of murder in the first degree;rather, it is merely an instruction that gives the juryguidance on how to consider the mitigating evidencethat has been presented to it. That is, the weighingstep merely instructs the jurors that if they all agreethat there is evidenc.e in mitigation that outweighsthe evidence in aggravation, the jury must impose alife sentence (see Pet. 47a). To the extent that thisplaces a burden on the defendant to convince all ofthe jurors that the evidence in mitigation outweighsthe evidence in aggravation, allocating the burden inthat fashion in the weighing step does not violateany provision of the Constitution. As the Court heldin Walton v. Arizona, 497 U.S. 639, 650 (1999), ~Solong as a State’s met:hod of allocating the burdens ofproof does not lessen the State’s burden to proveevery element of the offense charged, or in this caseto prove the existence of aggravating circumstances,

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a defendant’s constitutional rights are not violatedby placing on him the burden of proving mitigatingcircumstances sufficiently substantial to call forleniency .,lo

In Kansas v. Marsh, 548 U.S. 163 (2006), theCourt recently affirmed the ongoing validity of thisprinciple from Walton. In Marsh, the Courtexamined a Kansas statute that directed the jury tosentence a defendant to death if it found that theevidence in aggravation was not outweighed by theevidence in mitigation. Id. at 166. The defendant inMarsh argued that the statute "establishe[d] anunconstitutional presumption in favor of deathbecause it directs imposition of the death penaltywhen aggravating and mitigating circumstances arein equipoise." Id. at 166-167. But the Court rejectedthe defendant’s challenge, holding that the case wascontrolled by the decision in Walton.

The Court reiterated that "a defendant’sconstitutional rights are not violated by placing onhim the burden of proving mitigating circumstancessufficiently substantial to call for leniency." Id. at170-171. The Court observed that "a jury must havethe opportunity to consider all evidence relevant tomitigation, and that a state statute that permits ajury to consider any mitigating evidence comportswith that requirement." Id. at 171. And,significantly, the Court stated ~that while theConstitution requires that a sentencing jury havediscretion, it does not mandate that discretion be

,0 In Ring, the Court partly overruled Walton. 536 U.S. at609 ("we overrule Walton to the extent that it allows asentencing judge, sitting without a jury, to find an aggravatingcircumstance necessary for imposition of the death penalty").

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unfettered; the States are free to determine themanner in which a jury may consider mitigatingevidence." Id. Accordingly, even though the Kansasstatute required the jury to impose a sentence ofdeath if it unanimously found that the evidence inaggravation was not outweighed by the evidence inmitigation, the Court concluded that it comportedwith the requirements of the Constitution. Id. at 173.

The Court explained further that even if Waltondid not expressly answer the question, the Court’svarious prior precedents dictated the same outcome.The Court pointed out; that, with regard to mitigationevidence, the Court’s jurisprudence was quitelimited. As the Court stated, "In aggregate, ourprecedents confer upon defendants the right topresent sentencers with information relevant to thesentencing decision and oblige sentencers to considerthat information in determining the appropriatesentence." Id. at 175. The Court then observed that ithad "never held that a specific method for balancingmitigating and aggravating factors in a capitalsentencing proceeding is constitutionally required."Id. ~Rather, this Court has held that the States enjoy’ "a constitutionally permissible range of discretion inimposing the death penalty."’ "Id. And, under thosegeneral principles - in addition to the holding inWalton - the Court concluded that the Kansas death-penalty statute satisfied the Constitution.

Likewise, in petitioner’s case, Missouri’s statute,including its weighing step, comports with theserequirements. Under Missouri’s capital sentencingscheme, a defendant is allowed to present anyevidence in mitigation; the jurors are not required tounanimously find or agree upon any particularmitigating fact; and the jurors are both directed and

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allowed to impose a life sentence if they find that themitigating evidence outweighs the aggravatingevidence, or if they simply conclude under all of thecircumstances not to impose a sentence of death.

In light of these provisions, Missouri’s weighingstep does not have "grave practical implications forcapital defendants" (Pet. 15). For, while it is truethat "A lone juror" (Pet. 15) in the weighing step candeem the mitigating evidence insufficient to auto-matically warrant a life sentence, this determinationby a hypothetical lone juror does not "render[] thedefendant death eligible" (because this is not thefinding that increases the range of punishment), andit will not result in the automatic imposition of adeath sentence in any case (as the jury is instructedthereafter on an additional step that requiresconsideration of all the evidence).

As the Missouri Supreme Court has recognized,Missouri’s weighing step does not increase the rangeof punishment; thus, notwithstanding any "death-eligibility" language by the Missouri Supreme Courtin Whitfield (or other cases), Missouri’s weighingstep does not result in a factual finding thatincreases the punishment or makes the defendant"eligible" for death (as that term has meaning underApprendi and Ring).11 See Zink v. State, 2009 WL

11 Although the Missouri Supreme Court has continued torefer to the weighing step as an "eligibility" step, See Zink v.State. 2009 WL 454283 at "18, it is apparent in light of itsrecent opinions that the court is not thereby suggesting that theweighing step increases the range of punishment. See id. at "19.The use of such language should be understood to refer to thefact that, in the weighing step, a defendant who is alreadyeligible for a death sentence (due to the prior finding of a

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454283 at "19. To the contrary, inasmuch as theweighing step takes place after the jury hasunanimously found an aggravating circumstancebeyond a reasonable doubt (and thereby rendered thedefendant eligible to receive a sentence of death), itis evident that the weighing step merely provides thejury with an opportunity to automatically remove thedefendant from the :pool of death-eligible offenders(due to the strength of the mitigating evidence). Thisis proper guidance with regard to the considerationof mitigating evidence, and it does not violate theConstitution to place a burden on the defendant toprove the strength of the mitigating evidence.

In sum, because it is permissible under Walton toplace a burden on the defendant to prove "mitigatingcircumstances sufficiently substantial to call forleniency," and because Missouri’s weighing stepmerely informs that it must impose a life sentence ifit unanimously determines that the mitigatingevidence outweighs the aggravating evidence,Missouri’s weighing step does not run afoul of theConstitution. To the contrary, as the Court stated inWalton and Marsh, (in analyzing the respectivedeath-penalty statutes of Arizona and Kansas),Missouri’s weighing step "merely channels a jury’sdiscretion by providing it with criteria by which itmay determine whether a sentence of life or death isappropriate" and "provides the type of’ "guideddiscretion,’ "that the Court has previously sanction-ed. See Kansas v. Marsh, 548 U.S. at 177; Walton v.Arizona, 497 UoS. at 659. There is no need to departfrom these principles.

statutory aggravator) will either become ineligible for a deathsentence or remain eligible for a death sentence.

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C.This Court’s precedents provide adequateguidance to lower courts, and the purported"confusion" and "tension" the petitionercites to in his petition is simply the naturalconsequence of this Court’s precedents,which have held that "the States are free todetermine the manner in which a jury mayconsider mitigating evidence."

In urging the Court to review his case, petitionerasserts that "the state and federal courts areirreconcilably conflicted" on the question of whetherApprendi and Ring apply to the weighing ofmitigating and aggravating evidence (Pet. 17). Hethen asserts, again based on the Missouri SupremeCourt’s decision in Whitfield, that Missouri is amonga small minority of courts that have held thatApprendi and Ring are "applicable to the weighing ofaggravating and mitigating evidence" (Pet. 17-18).

But inasmuch as the Missouri Supreme Court hasclarified in the several years since Whitfield thatMissouri’s weighing step does not increase the rangeof punishment, Missouri is among those courts thathave determined, in one fashion or another, thatApprendi is not applicable to the weighing step (seePet. 20-23). By petitioner’s count, once Missouri isadded to the list, six state courts of last resort andfour federal circuit courts have held that Apprendidoes not apply because the weighing step is not afactual determination, and another six state courts oflast resort (including Missouri) have held that Ringis not applicable because the weighing step does notincrease the range of punishment (Pet. 20-23).

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Of those courts that have held that Apprendi andRing do apply to the weighing step, seven are instates that have enacted legislation stating that theweighing step is a step that increases the range ofpunishment or requi.res proof beyond a reasonabledoubt (Pet. 19). The other five state courts of lastresort listed by petitioner (not including Missouri)have judicially determined that their states’ weigh-ing steps increase the range of punishment (orrender the defendant eligible for a sentence of death)and, thus, involve factual findings that must beproved beyond a reasonable doubt (Pet. 17-19).

But what these different approaches show is not"confusion" or "tension" (Pet. 15-16); rather, whatthese different approaches show is that the Court’sprecedents have provided adequate guidance to lowercourts on this question, but that different statutesrequire different procedures in the penalty phase. If,for example, a state’s penalty-phase statute indicatesthat the weighing step increases the range of punish-ment (e.g., if the statute requires the state to provethat the aggravating circumstances must outweighthe mitigating circumstances before a sentence ofdeath may be imposed), a state court might beexpected to hold that the weighing step must besubmitted to the jury and proved beyond a reason-able doubt in accordance with Apprendi and Ring.On the other hand, iI: as in Missouri’s statute, it isapparent that the weighing step is designed toidentify a set of circumstances that warrant theautomatic imposition of a life sentence, this factualdetermination does not increase the range of punish-ment, and, accordingly, this type of weighing neednot be determined beyond a reasonable doubt.

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To be sure, this will result in different methods ofinstructing the jury. But as the Court stated inMarsh, the Court has "never held that a specificmethod for balancing mitigating and aggravatingfactors in a capital sentencing proceeding is consti-tutionally required." Id. "Rather, this Court has heldthat the States enjoy ’"a constitutionally permissiblerange of discretion in imposing the death penalty."’"Id. Accordingly, ~So long as a State’s method ofallocating the burdens of proof does not lessen theState’s burden to prove every element of the offensecharged, . . . a defendant’s constitutional rights arenot violated by placing on him the burden of provingmitigating circumstances sufficiently substantial tocall for leniency.~ Walton v. Arizona, 497 U.S. at 650.

In short, these principles adequately protect theguarantees of the Sixth and Eighth Amendments incapital trials, and Missouri’s capital sentencingscheme does not run afoul of any of them.

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CONCLUSION

The petition for a writ of certiorari should bedenied.

Respectfully submitted,

CHRIS KOSTERAttorney General

SHAUN J MACKELPRANGAssistant Attorney General

Counsel of Record

P. O. Box 899Jefferson City, MO 65102(573) 751-3321

Attorneys for Respondent