On petition for writ of certiorari to the Supreme Court of
Missouri.
The petition for writ of certiorari is denied.
Justice BRENNAN, dissenting.
Adhering to my views that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the Eighth
and Fourteenth Amendments, Gregg v. Georgia, 428
Page 459 U.S.
1183 , 1184
U.S. 153, 227, 2950 (1976), I would grant certiorari and vacate
the death sentence in this case.
Justice MARSHALL, dissenting from denial of certiorari.
I continue to adhere to my view that the death penalty is
unconstitutional in all circumstances, and would grant certiorari
and vacate petitioner's death sentence on this basis alone.
However, even if I accepted the prevailing view that the death
penalty can constitutionally be imposed under certain
circumstances, I would grant certiorari and vacate the death
sentence because the Missouri Supreme Court improperly upheld the
sentence on the basis of an aggravating circumstance that had never
been considered by the sentencer.
I
Petitioner Robert Baker was convicted of capital murder in the
Circuit Court of the City of St. Louis. The victim, a police
officer assigned as an undercover agent, was dressed in street
clothes at the time of the shooting. When his body was discovered
in the front seat of his unmarked police car, his police badge was
in his wallet.
At the sentencing stage, the jury was instructed that it may
impose the death penalty if it found that the murder "was committed
against a peace officer while engaged in the performance of his
official duty." 1 The jury was not instructed that it also had to
find that petitioner knew or should have known that the victim was
a police officer. The jury imposed the sentence of death solely on
the basis of this aggravating circumstance. [
Footnote 2]
The Missouri Supreme Court affirmed the conviction and the death
sentence, with two judges dissenting. 636 S.W.
Page 459 U.S.
1183 , 1185
2d 902 (1982). The majority held that based on its review of the
record "[ t]he evidence was sufficient for a rational trier of fact
to find beyond a reasonable doubt that appellant knew [the victim]
was a police officer. Jackson v. Virginia,
443 U.S. 307 (1979)." 636
S.W.2d, at 907. It therefore "decline[d] to address the inscrutable
question of mens rea."
636 S.W.2d
902, 907 (1982), citing Morissette v. United States,
342 U.S. 246 (1952);
Powell v. Texas,
392
U.S. 514 (1968).
II
The Missouri Supreme Court improperly affirmed the death
sentence on a ground neither presented to nor found by the
sentencing jury. The jury instruction authorized the imposition of
the death sentence on the basis of a bare finding that the victim
was a police officer on duty. The jury clearly did not base its
imposition of the death sentence on a finding that petitioner knew
or should have known the identity of his victim. In affirming the
death sentence on the ground that there was sufficient evidence for
a rational finder to find that petitioner had the requisite
knowledge, the Missouri Supreme Court improperly relied on Jackson
v. Virginia, which established a test for reviewing findings
actually made, to "affirm" a finding that was not made. [
Footnote 3]
"Fundamental principles of procedural
fairness" prohibit a reviewing court from affirming a death
sentence on the basis of an aggravating circumstance not properly
found by the sentencing jury. Presnell v. Georgia,
439 U.S. 14, 16,
Page 459 U.S.
1183 , 1186
, 236 (1978).4 As Mr. Justice Black stated for a unanimous Court
in Cole v. Arkansas,
333 U.S.
196, 202, 517 (1948), "[t]o conform to due process of law,
petitioners were entitled to have the validity of their convictions
appraised on consideration of the case as it was tried and as the
issues were determined in the trial court." We have stated that
this principle applies "with no less force at the penalty phase of
a trial in a capital case than [it does] in the guilt-determining
phase of any criminal trial." Presnell v. Georgia, supra, 439 U.S.
at 16.
Moreover, the death sentence in this case may not be upheld on
the ground that it was properly imposed in the absence of a finding
that petitioner knew or should have known the identity of his
victim. If the Missouri statute does not require knowledge as an
element of the aggravating circumstance charged in this case, its
application in this case would violate the Constitution.
Petitioner received the death sentence solely because the victim
of his crime was by chance an undercover police officer on duty. If
his victim had been a private citizen as his appearance indicated,5
the death sentence could not have been imposed under Missouri law.
Nor can the death sentence be imposed on other persons who have
committed or may com-
Page 459 U.S.
1183 , 1187
mit similar acts, and whose conduct, and mens rea are in all
respects identical, but whose victims are private citizens.
Petitioner has been singled out to receive the death sentence
because of the "entirely fortuitous circumstance that the victim,
who was dressed in civilian clothes and who to all appearances was
a private citizen, turned out to be, unknown to [him], a police
officer." 636 S.W.2d, at 913 (Seiler, J., dissenting).
We have made clear that a State may not authorize the imposition
of a death sentence on the basis of an arbitrary factor. While
there is undoubtedly a difference between petitioner's case and
cases in which the victims are private citizens, not every
difference can justify a state's decision to execute a defendant.
Instead, a constitutionally acceptable death penalty scheme must
provide a "principled way to distinguish this case, in which the
death penalty was imposed, from the many cases in which it was
not." Godfrey v. Georgia,
446 U.S.
420, 433, 1767 (1980) (plurality) (emphasis added). See also
Proffitt v. Florida,
428 U.S.
242, 258, 2969 (1976) ( opinion of STEWART, POWELL, and
STEVENS, JJ.) ("similar results . . . in similar cases"); Furman v.
Georgia,
408 U.S.
238, 313, 2764 (1972) (WHITE, J., concurring) ("meaningful
basis for distinguishing the few cases in which it is imposed from
the many cases in which it is not") (emphasis added).
In my view the imposition of the death sentence based solely on
the identity of the victim, unknown to the accused, would result in
the ultimate punishment of death being meted out in an unprincipled
fashion. The identity of the victim, standing alone, has nothing to
do with an accused's blameworthiness. [
Footnote 6] In this case the State was not required to
prove a single fact about petitioner indicating that he was any
more deserving of a death sentence than any defendant convicted of
murder. Nor is the goal of deterrence rationally
Page 459 U.S.
1183 , 1188
furthered, since the enhanced penalty for the killing of a
police officer could not deter an individual who is ignorant of the
identity of his victim. [
Footnote
7]
For the foregoing reasons, I would grant certiorari and vacate
the death sentence in this case.
Footnotes
Footnote 1 The statutory
aggravating circumstance at issue in this case was as follows: "The
capital murder was committed against any peace officer, corrections
employee, or fireman while engaged in the performance of his
official duty." Mo.Rev.Stat. 565.012.2(8)
Footnote 2 The existence of
at least one statutory aggravating circumstance is necessary to
authorize the imposition of the death sentence. 565.012. 5.
Footnote 3 In so doing, the
Missouri Supreme Court completely usurped the sentencing jury's
function. Moreover, the reviewing court did not itself find that
petitioner had the requisite knowledge, but simply held that if a
jury had found that petitioner knew or should have known the
identity of the victim, that hypothetical finding would be
supported by sufficient evidence. As a result, petitioner's death
sentence was imposed without an actual finding by any tribunal,
least of all the jury that sentenced him, that petitioner knew or
should have known that the victim was a police officer.
Footnote 4 Missouri law
equally forbids the imposition of a death sentence based on
aggravating circumstances that were not found by the jury. The
Missouri Supreme Court is authorized to review "[w]hether the
evidence supports the jury's or judge's finding of a statutory
aggravating circumstance as enumerated in section 565.012."
565.014.3(2) (emphasis added). Where the jury has not properly
found the existence of a statutory aggravating circumstance,
nothing in 565.014 authorizes the Supreme Court to determine de
novo whether such a finding should be or could have been made.
Footnote 5 It was "a
disputed issue of fact" whether petitioner knew the identity of his
victim. 636 S.W.2d, at 911 (Seiler, J., dissenting). Petitioner
testified at the guilt-stage of the trial that he did not know that
the victim was a police officer, and "[e]ven in his first taped
confession (the second was suppressed because of the beatings),
there is nothing to indicate that defendant knew that the victim
was a police officer on duty." Ibid (emphasis added).
Footnote 6 Cf. Enmund v.
Florida, ___ U.S. ___, ___, 3378 (1982) (death penalty must be
imposed on the basis of " personal responsibility and moral
guilt").
Footnote 7 This view is
fully consistent with our decision in Roberts v. Louisiana,
431 U.S. 633
(1977) (per curiam ). In striking down a statute which imposed a
mandatory death sentence for the killing of a police officer, we
acknowledged in Roberts that society has a "special interest in
affording protection to these public servants who regularly must
risk their lives in order to guard the safety of other persons and
property." Id., at 636 (footnote omitted). Given the assumption,
which I do not share, that the death penalty is constitutional
under certain conditions, this interest may justify the State in
treating the fact that the defendant knew his victim was a police
officer as an aggravating circumstance in order to deter such
killings, and to give effect to a State's judgment that the
intentional killing of police officers is especially heinous. Yet
where the accused had no knowledge that his victim was a police
officer, he was not " forewarned," id., at 647 (REHNQUIST, J.,
dissenting), and therefore could not have been deterred by the
possibility of an enhanced penalty for the killing of a police
officer. Moreover, it is irrational to treat as equally
reprehensible the premeditated murder of a police officer, and the
murder of someone who, unbeknownst to the accused, turns out to
have been a police officer. It is similarly irrational to treat
differently two murderers simply because in one case the victim,
unknown to the perpetrator, was a police officer. Although several
members of the Court dissented in Roberts v. Louisiana and would
have upheld Louisiana's mandatory death penalty statute, the
Louisiana statute required that the accused have the "specific
intent" to kill or seriously injure a police officer. It was in
this context that the dissenting opinions expressed support for a
mandatory death penalty when the killing of a peace officer was
"intentional", id., at 642 ( BLACKMUN, J., dissenting); id., at
644, 648, 2001 ( REHNQUIST, J., dissenting), or "deliberat[e],"
id., at 646, 647, 650, 97 S. Ct., at 2000, 2001, 2002; or
"premeditated," id., at 644, 649, 2001.