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December 27, 1990


The opinion of the court was delivered by: LEGGE



 The petition alleges seven claims of constitutional error in petitioner's state trial and death sentence. The state has filed an answer denying that the trial and sentence were unconstitutional. The state has not argued that any of petitioner's claims raise "new constitutional rules" which cannot be considered by this court under Teague v. Lane, 489 U.S. 288, 310, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989); and this court is not required to consider the question sua sponte. See Collins v. Youngblood, 497 U.S. 37, 111 L. Ed. 2d 30, 110 S. Ct. 2715, 2718 (1990). Petitioner has filed a traverse and, after oral argument, the petition was submitted to the court for decision. This court has reviewed the record of this proceeding, the state court record, *fn1" the briefs and arguments of counsel, and the applicable authorities. It has done so with the principle in mind that "the federal judiciary must . . . take particular care in death penalty cases to give patient and thoughtful review of claims presented by petitioners through their appointed counsel." Mercer v. Armontrout, 864 F.2d 1429, 1433 (8th Cir. 1988).


 The facts of the crime of which petitioner was convicted are not directly relevant to this petition. Those facts are undisputed here, and are set forth in the California Supreme Court's opinion affirming petitioner's conviction. See People v. Odle, 45 Cal. 3d 386, 394-401, 247 Cal. Rptr. 137, 754 P.2d 184, cert. denied, 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 275 (1988).

 Four of petitioner's seven claims in this petition are based upon an extensive brain injury which he suffered before his commission of the crime. In 1973 petitioner was involved in a serious auto accident. He suffered a skull fracture, and the temporal lobe of his brain was lacerated and hemorrhaged. After almost a year of documented mental difficulties, the attending neurosurgeon performed an operation and removed a substantial portion of the temporal lobe region of petitioner's brain. The procedure is referred to as a temporal lobectomy. 20 RT 24-27.

 Petitioner's surgeon testified that after the operation, petitioner was irrational, emotional and angry. 20 RT 25-35. Petitioner complained of spells of losing control, and he expressed his fear that he might hurt or kill someone. 20 RT 30-35. Petitioner's acquaintances, friends and relatives testified to varying degrees of marked change in petitioner's behavior and disposition after the 1973 accident. 20 RT 88-95; 17 RT 10-15, 21; 28 RT 50-60; 13 RT 78. Petitioner's 1980 and 1982 EEG tests each revealed at least some abnormalities. Petitioner presented expert testimony to the effect that some temporal lobectomy patients have been known to become excessively emotional and irrational and to lose control of themselves. 20 RT 23; 21 RT 40; 21 RT 102-04.

 In rebuttal, the state introduced evidence of petitioner's criminal record prior to and since the accident. 21 RT 140-42. The state also introduced expert testimony that there was no automatic relationship between petitioner's injury and his criminal behavior. The state's expert testified that there was no evidence of diminished capacity in connection with the crime. The expert's opinion was that petitioner's actions indicated that he was able to and did think rationally during the commission of the crime. 22 RT 8-19. *fn2"

 Most of petitioner's claims here do not concern his conviction, but instead pertain to the penalty phase of his trial and the resulting sentence of death.


 Petitioner's first contention is that at the penalty phase of his trial, the jury was precluded by the trial court's instructions from adequately considering evidence of his brain injury, background and character.

 Petitioner has a constitutional right to have his penalty jury hear and be able to give effect to all relevant mitigating evidence, including evidence of his background and character. Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978).

 Petitioner's penalty jury was instructed using the language of CALJIC *fn3" No. 8.84.1:

In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case.
You shall consider, take into account and be guided by the following factors, if applicable:
(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.
(b) The presence or absence of criminal activity by the defendant which involves the use or attempted use of force or violence or the express or implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction.
(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(e) Whether or not the defendant [sic] was a participant in the defendant's homicidal conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to a moral justification or extension [sic] or extenuation for his conduct.
(g) Whether or not the defendant acted under extreme duress or under the substantial domination of a person.
(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of a mental disease or defect or the effects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor and,
(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

 29 RT 89-90.

 The trial court augmented this CALJIC instruction with the following instructions requested by petitioner: *fn4"

Mitigation is defined as an abatement or diminution of a penalty or punishment imposed by law.
Mitigating circumstances are such so as not to constitute a justification or excuse for the offense in question, but which in fairness and mercy may be considered as extenuating or reducing the degree of moral culpability.
. . . .
In deciding whether the defendant, Mr. Odle, should be sentenced to death or to life in prison without the possibility of parole, you must weigh the mitigating circumstances against the aggravating circumstances that you find to be established by the evidence.
The fact that you have previously found Mr. Odle guilty beyond a reasonable doubt of the crimes of murder in the first degree is not in itself an aggravating circumstance.

 29 RT 90-91.

 Petitioner's contention is that the enumerated CALJIC mitigating factors -- specifically factors (d), (h) and (k), which pertain most closely to the evidence of his brain injury -- limited the jury's consideration of such mitigating evidence to events which were directly connected to the crime. Petitioner argues that this limitation is constitutionally impermissible, because it precludes the jury's consideration of his general background and character, unrelated to the specific crime.

 Factor (d) speaks of whether "the offense was committed." Factor (h) says "at the time of the offense." Factor (k) is in terms of "the crime." Petitioner contends that although the jury heard the evidence of his brain injury and its possible consequences, the jury was precluded from giving effect to that evidence unless it was directly connected to the crime. Hence, petitioner argues, the jury was prevented by the instructions from concluding that as a result of his brain injury and all of its effects, death was not the appropriate punishment. Pet. at 45-52.

 The California Supreme Court rejected petitioner's argument. See Odle, 45 Cal. 3d at 421. It held that any inference in CALJIC 8.84.1 that the mitigating evidence must be directly connected to the crime itself was cured in this case by the prosecutor's arguments, defense counsel's arguments, and the additional jury instructions given at petitioner's request. Id. at 417-19.

 The California Supreme Court has noted possible ambiguity in CALJIC 8.84.1. In People v. Easley, 34 Cal. 3d 858, 878, 196 Cal. Rptr. 309, 671 P.2d 813 (1983), the court said that "there is some force to [the] argument that the wording of [CALJIC 8.84.1] is potentially confusing. . . ." In an often-cited footnote, the court suggested that "in order to avoid potential misunderstanding in the future, trial courts . . . should inform the jury that it may consider as a mitigating factor 'any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,' and any other 'aspect of [the] defendant's character or record . . . that the defendant proffers as a basis for a sentence less than death.'" Id. at 878 n.10. The Easley court, however, found it unnecessary to decide the constitutionality of the instruction. Id. at 878.

 The issue which petitioner raises has now been resolved by the United States Supreme Court's recent decision in Boyde v. California, 494 U.S. 370, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990), decided after this petition was filed. In Boyde, the Court was presented squarely with the question of the constitutionality of CALJIC 8.84.1. Counsel in Boyde advanced the same argument that petitioner does here:

Petitioner contends that none of the 11 statutory factors in CALJIC 8.84.1 allowed the jury to consider non-crime-related factors, such as his background and character, which might provide a basis for a sentence less than death.

 Boyde, at 1196-97.

 The Boyde Court first set forth the standard for reviewing jury instructions for alleged constitutional error. After noting that its prior decisions had lacked uniformity on the standard (see Boyde at 1197), the Court held that:

 Id. 110 S. Ct. at 1198.

 The Court then applied this standard to CALJIC 8.84.1, and held:

We think there is not a reasonable likelihood that Boyde's jurors interpreted the trial court's instructions to prevent consideration of mitigating evidence of background and character. The jury was instructed, according to factor (k), that 'you shall consider . . . any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,' and the term 'extenuate' was defined by the court to mean 'to lessen the seriousness of a crime as by giving an excuse.' . . . Petitioner had an opportunity through factor (k) to argue that his background and character 'extenuated' or 'excused' the seriousness of the crime, and we see no reason to believe that reasonable jurors would resist the view, 'long held by society,' that in an appropriate case such evidence would counsel imposition of a sentence less than death. The instruction did not, as petitioner seems to suggest, limit the jury's consideration to 'any other circumstance of the crime which extenuates the gravity of the crime.' The jury was directed to consider any other circumstance that might excuse the crime, which certainly includes a defendant's background and character.

 Id. 110 S. Ct. at 1198-99 (emphasis in original).

 The Court also noted that other factors contributed to its holding, including the fact that CALJIC 8.84.1 allows for other mitigating factors not associated with the crime itself such as absence of prior criminal activity and defendant's youth. Id.; see CALJIC 8.84.1(c),(i). "When factor (k) is viewed together with those instructions, it seems even more improbable that jurors would arrive at an interpretation that precludes consideration of all non-crime-related evidence." 110 S. Ct. at 1199. The Court also discussed in support of its holding that the defendant had introduced evidence of his background and character. "Over 400 pages of trial transcript [] related to petitioner's background and character. . . ." Id. at 1199. "In our view reasonable jurors surely would not have felt constrained by the factor (k) instruction to ignore all of the evidence presented by petitioner during the sentencing phase." Id. at 1199-1200 (emphasis in original).

 Applying these holdings and statements to petitioner's claim here, this court concludes that the state trial court did not commit constitutional error by instructing the jury in the language of CALJIC 8.84.1. The text of CALJIC 8.84.1 was given substantially verbatim, as it was in Boyde. The non-crime-related factor instructions that the Boyde Court found significant were also given in this case. See 29 RT 89-90. The defense presented substantial evidence of petitioner's background and character -- specifically his 1973 injury, his subsequent temporal lobectomy, and the behavior changes it precipitated.

 Since Boyde was decided after this petition was filed and briefed, this court asked for supplemental briefing on the applicability of Boyde. In that briefing, petitioner urges certain distinctions between Boyde and his case. Petitioner argues that in addressing factor (k), the prosecutor in Boyde specifically discussed defendant's background, and did not argue that factor (k) was limited to matters directly connected to the crime itself. Petitioner correctly notes that in this case the prosecutor, in discussing factor (k), stated:

Other extenuating circumstances regarding the gravity of the crimes. [Referring to factor (k)] That is, is there anything about the crimes that you can think of -- sit down and say to yourself I'm going to try to think of anything in Jim Odle's favor regarding how he committed those crimes which are [sic] extenuating, and you won't be able to do it because there is nothing extenuating about those crimes.

 29 RT at 31-32. The prosecutor referred three times to the "crimes," as if to limit the jury's consideration of the mitigating evidence to that directly connected to the crimes themselves. Prosecutorial misstatements have sometimes been recognized as having a decisive effect on a jury, and may thus render a conviction and sentence unconstitutional. See Boyde, at 1200.

 The California Supreme Court noted the prosecutor's comments in its opinion affirming petitioner's conviction and sentence. Odle, 45 Cal. 3d at 418 n.13. The court observed that "in numerous other references, however, the prosecutor gave the jury the opposite (and correct) message that the jury should properly consider all of defendant's character and mental condition evidence. . . ." Id. at 418 (emphasis in original).

 The prosecutor also said:

You are the judges of defendant's character, his history, and what should be done with him . . . you are entitled to feel pity for him, sympathy for him.

 29 RT 8.

The law is that the jury may take into account sympathy factors for the defendant because you are at the sentencing phase, you are acting like the judge who looks at the probation report, covers the guy's entire background, you are looking at his record, any social factors, and you are looking at his mental workup, and you are looking at the factors of the crime, and then you are deciding what should be done with this man. And that's what you are doing. So sympathy is part of it and you would be wrong not to at least say we'll consider it.
. . . .
We are talking about Jim Odle, his character, his background, what he did.

 29 RT 33.

 Further, the prosecutor's argument regarding factor (k) did not refer to factors (d) and (h). Even if the jury felt constrained under factor (k), the argument did not restrict the jury's consideration of petitioner's brain injury under factors (d) and (h).

 The arguments of the prosecutor, like the instructions of the court, must be judged in the context in which they are made. Boyde, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316; Greer v. Miller, 483 U.S. 756, 766, 97 L. Ed. 2d 618, 107 S. Ct. 3102 (1987); Darden v. Wainwright, 477 U.S. 168, 179, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986). The passages quoted above make it less "reasonably likely" that the jury was misled into thinking that it could not consider petitioner's non-crime-related evidence in deciding the appropriate penalty.

 Another part of the context in which jury instructions must be viewed is defense counsel's argument. Defense counsel repeatedly returned to the theme that the jury must consider petitioner's history and character in deciding the appropriate penalty:

What the jury has to do in a penalty case is really to consider anything that they feel or an individual feels is appropriate.
As an example: you are allowed to consider mitigation or extenuation. . . .
Mitigating circumstances are such as to not constitute a justification or excuse of the offense in question, but which in fairness and mercy may be considered as extenuating ...

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