454 U.S. 1037 (1981)

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U.S. Supreme Court

SPAZIANO v. FLORIDA , 454 U.S. 1037 (1981)

454 U.S. 1037

Joseph Robert SPAZIANO
No. 80-6785

Supreme Court of the United States

November 9, 1981

Rehearing Denied Jan. 11, 1982.

See 454 U.S. 1165.

On petition for writ of certiorari to the Supreme Court of Florida.

The petition for writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Because I continue to believe that the death penalty is in all circumstances cruel and unusual punishment prohibited by

Page 454 U.S. 1037 , 1038

the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 2973 (1976), I would grant certiorari and vacate the death sentence in this case. I would also grant certiorari on an additional ground. This case presents the question whether the death sentence may be imposed after conviction of a capital offense, where the jury was not instructed as to lesser-included noncapital offenses because the statute of limitations had run with respect to the lesser offenses. Petitioner argues that the failure to provide instructions on lesser- included offenses in these circumstances is inconsistent with this Court's decisions in Keeble v. United States, 412 U.S. 205d 844 (1973), and Beck v. Alabama, 447 U.S. 625d 392 (1980). In my view, there is substantial merit to this claim.

Petitioner was arrested by Florida police and charged with the capital felony of first-degree murder. He was tried by a jury. After the submission of the evidence, the trial judge required petitioner to choose between having the jury instructed only as to first-degree murder, or waiving the Florida statute of limitations with respect to the lesser- included noncapital offenses of second-degree murder, third-degree murder, and manslaughter. The statute had run on each of those offenses. Petitioner refused to waive the statute of limitations. Thus, the jury was not permitted to consider the possibility that petitioner might be guilty of some lesser offense. After several hours of deliberations, the jury found petitioner guilty of first-degree murder. It recommended that he be sentenced to life imprisonment. The trial judge rejected this recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed. It stated that instructions as to lesser-included offenses would have been required in ordinary circumstances. Where the statute had run on those offenses, however, instructions were not necessary. 393 So.2d 1119 (1981).

I am not persuaded by the Florida Supreme Court's reasoning. In Keeble and Beck, this Court emphasized the importance of instructions on lesser-included offenses. Keeble [454 U.S. 1037 , 1039]

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