459 U.S. 1056 (1982)

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U.S. Supreme Court

SMITH v. NORTH CAROLINA , 459 U.S. 1056 (1982)

459 U.S. 1056

Kermit SMITH, Jr.
No. 82-5335
No.and 82-5353

Supreme Court of the United States

November 29, 1982

On petitions for writs of certiorari to the Supreme Court of North Carolina.

The petitions for writs of certiorari are denied.

Opinion of Justice STEVENS respecting the denial of the petitions for writ of certiorari.

In each of these three capital cases the trial judge instructed the jury that it had a duty to impose the death penalty if it found: (1) that one or more aggravating circumstances existed; (2) that the aggravating circumstances were sufficiently substantial to call for the death penalty; and (3) that the aggravating circumstances outweighed the mitigating circumstances. There is an ambiguity in these instructions that may raise a serious question of compliance with this Court's holding in Lockett v. Ohio, 438 U.S. 586 (1978).1

On the one hand, the instructions may be read as merely requiring that the death penalty be imposed whenever the

Page 459 U.S. 1056 , 1057

aggravating circumstances, discounted by whatever mitigating factors exist, are sufficiently serious to warrant the extreme penalty. Literally read, however, those instructions may lead the jury to believe that it is required to make two entirely separate inquiries: First, do the aggravating circumstances, considered apart from the mitigating circumstances, warrant the imposition of the death penalty? And second, do the aggravating circumstances outweigh the mitigating factors? It seems to me entirely possible that a jury might answer both of those questions affirmatively and yet feel that a comparison of the totality of the aggravating factors with the totality of mitigating factors leaves it in doubt as to the proper penalty. But the death penalty can be constitutionally imposed only if the procedure assures reliability in the determination that "death is the appropriate punishment in a specific case ." Lockett, supra, 438 U.S., at 601 (plurality opinion ), quoting Woodson v. North Carolina, 428 U.S. 280, 305, 2991 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.).

A quotation from a recent opinion by the Utah Supreme Court, which takes a less rigid approach to this issue, will illustrate my point. In State v. Wood, 648 P.2d 71, 83 (Utah 1982), that court wrote:

"It is our conclusion that the appropriate standard to be followed by the sentencing authority-judge or jury-in a capital case is the following:

'After considering the totality of the aggravating and mitigating circumstances, you must be persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation, and you must further be persuaded, beyond a reasonable doubt, that the imposition of the death penalty is justified and appropriate in the circumstances.'

"These standards require that the sentencing body compare the totality of the mitigating against the totality of the aggravating factors, not in terms of the relative numbers of the aggravating and the mitigating factors, [459 U.S. 1056 , 1058]

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