In a bifurcated proceeding conducted pursuant to Mississippi's
capital punishment statute, petitioner was convicted of murder and
sentenced to death. Petitioner's lawyers, in their closing argument
at the sentencing stage, referred to petitioner's youth, family
background, and poverty, as well as to general character evidence,
and they asked the jury to show mercy, emphasizing that the jury
should confront the gravity and responsibility of calling for
another's death. In response, the prosecutor urged the jury not to
view itself as finally determining whether petitioner would die,
because a death sentence would be reviewed for correctness by the
Mississippi Supreme Court. That court unanimously affirmed the
conviction, but affirmed the death sentence by an equally divided
court, rejecting, in reliance on
California v. Ramos,
463 U. S. 992, the
contention that the prosecutor's comments violated the Eighth
Amendment.
Held: The death sentence is vacated.
443 So.
2d 806, reversed in part and remanded.
JUSTICE MARSHALL delivered the opinion of the Court with respect
to all but Part IV-A, concluding that:
1. Where an examination of the decision below as to the issue of
the prosecutor's comments does not indicate that it rested on
adequate and independent state grounds, namely, petitioner's
failure to comply with a Mississippi procedural rule as to raising
the issue on appeal, this Court does not lack jurisdiction to
decide the issue. Pp.
472 U. S.
326-328.
2. It is constitutionally impermissible to rest a death sentence
on a determination made by a sentencer who has been led to believe,
as the jury was in this case, that the responsibility for
determining the appropriateness of the defendant's death rests
elsewhere. Belief in the truth of the assumption that sentencers
treat their power to determine the appropriateness of death as an
"awesome responsibility" has allowed this Court to view sentencer
discretion as consistent with and indispensable to the Eighth
Amendment's "need for reliability in the determination that death
is appropriate punishment in a specific case."
Woodson v. North
Carolina, 428 U. S. 280,
428 U. S. 305
(plurality opinion). Pp.
472 U. S.
328-330.
3. There are several reasons to fear substantial unreliability,
as well as bias in favor of death sentences, when there are
state-induced suggestions
Page 472 U. S. 321
that the sentencing jury may shift its sense of responsibility
to an appellate court. Pp.
472 U. S. 330-334.
(a) The "delegation" of sentencing responsibility that the
prosecutor here encouraged would not simply postpone petitioner's
right to a fair determination of the appropriateness of his death;
rather, it would deprive him of that right, for an appellate court,
unlike the sentencing jury, is ill-suited to evaluate the
appropriateness of death in the first instance. Pp.
472 U. S.
330-331.
(b) Even when a sentencing jury is unconvinced that death is the
appropriate punishment, it might nevertheless wish to "send a
message" of extreme disapproval for the defendant's acts. This
desire might make the jury very receptive to the prosecutor's
assurance that it can err because the error can be corrected on
appeal. A defendant might then be executed, although no sentencer
had ever determined that death was the appropriate sentence. Pp.
472 U. S.
331-332.
(c) If a jury understands that only a death sentence, and not a
life sentence, will be reviewed, it will also understand that any
decision to "delegate" responsibility for sentencing can only be
effectuated by returning a death sentence. This presents the
specter of the imposition of death based on an irrelevant factor,
and would also create the danger of a defendant's being executed
without any determination that death was the appropriate
punishment. P.
472 U. S.
332.
(d) The uncorrected suggestion that the jury's responsibility
for any ultimate determination of death will rest with others
presents the danger that the jury will choose to minimize the
importance of its role, especially where, as here, the jury is told
that the alternative decisionmaker is the State's highest court.
Pp.
472 U. S.
332-333.
4. As to the State's contention that the prosecutor's argument
was an "invited" response to defense counsel's argument, and thus
was not unreasonable, neither the State nor the court below
explains how the prosecutor's argument was less likely to have
distorted the jury's deliberations because of anything defense
counsel said. Pp.
472 U. S.
336-337.
5.
Donnelly v. DeChristoforo, 416 U.
S. 637, does not preclude a finding of constitutional
error based on the sort of impropriety that the prosecutor's
argument contains. Although that case warned against holding every
improper and unfair argument of a state prosecutor to be a federal
constitutional violation, it did not insulate all prosecutorial
comments from federal constitutional objections. Pp.
472 U. S.
337-340.
JUSTICE MARSHALL, joined by JUSTICE BRENNAN, JUSTICE BLACKMUN,
and JUSTICE STEVENS, delivered an opinion with respect to Part
IV-A, concluding that
California v. Ramos, supra, is not
authority for holding that States are free to expose capital
sentencing juries to any
Page 472 U. S. 322
information and argument concerning postsentencing procedures.
In
Ramos, the Court, in upholding a state statutory
requirement that capital sentencing juries be instructed that the
Governor could commute a life sentence without possibility of
parole into a lesser sentence, rested on a determination that the
instruction was both accurate and relevant to a legitimate state
penological interest. In contrast, here the argument was neither
accurate nor relevant to such an interest, but was misleading and
was not linked to any valid sentencing consideration. Pp.
472 U. S.
335-336.
JUSTICE O'CONNOR, being of the view that the prosecutor's
remarks were impermissible because they were inaccurate and
misleading in a manner that diminished the jury's sense of
responsibility, concluded that
Ramos, supra, does not
sanction a misleading picture of the jury's role, nor does it
suggest that the Constitution prohibits the giving of accurate and
nonmisleading instructions regarding postsentencing procedures. Pp.
472 U. S.
341-342.
MARSHALL, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III, IV-B,
IV-C, and V, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR,
JJ., joined, and an opinion with respect to Part IV-A, in which
BRENNAN, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed an
opinion concurring in part and concurring in the judgment,
post, p.
472 U. S. 341.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
and WHITE, J., joined,
post, p.
472 U. S. 343.
POWELL, J., took no part in the decision of the case.
Page 472 U. S. 323
JUSTICE MARSHALL delivered the opinion of the Court, except as
to Part IV-A.
This case presents the issue whether a capital sentence is valid
when the sentencing jury is led to believe that responsibility for
determining the appropriateness of a death sentence rests not with
the jury, but with the appellate court which later reviews the
case. In this case, a prosecutor urged the jury not to view itself
as determining whether the defendant would die, because a death
sentence would be reviewed for correctness by the State Supreme
Court. We granted certiorari, 469 U.S. 879 (1984), to consider
petitioner's contention that the prosecutor's argument rendered the
capital sentencing proceeding inconsistent with the Eighth
Amendment's heightened "need for reliability in the determination
that death is the appropriate punishment in a specific case."
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 305
(1976) (plurality opinion). Agreeing with the contention, we vacate
the sentence. [
Footnote 1]
Page 472 U. S. 324
I
Petitioner shot and killed the owner of a small grocery store in
the course of robbing it. In a bifurcated proceeding conducted
pursuant to Mississippi's capital punishment statute, petitioner
was convicted of capital murder and sentenced to death.
In their case for mitigation, petitioner's lawyers put on
evidence of petitioner's youth, family background, and poverty, as
well as general character evidence. In their closing arguments,
they referred to this evidence and then asked the jury to show
mercy. The arguments were in large part pleas that the jury
confront both the gravity and the responsibility of calling for
another's death, even in the context of a capital sentencing
proceeding.
"[E]very life is precious, and as long as there's life in the
soul of a person, there is hope. There is hope, but life is one
thing, and death is final. So I implore you to think deeply about
this matter. It is his life or death -- the decision you're going
to have to make, and I implore you to exercise your prerogative to
spare the life of Bobby Caldwell. . . . I'm sure [the prosecutor
is] going to say to you that Bobby Caldwell is not a merciful
person, but I say unto you he is a human being. That he has a life
that rests in your hands. You can give him life or you can give him
death. It's going to be your decision. I don't know what else I can
say to you, but we live in a society where we are taught that an
eye for an eye is not the solution. . . . You are the judges, and
you will have to decide his fate. It is an awesome responsibility,
I know -- an awesome responsibility."
App. 18-19.
Page 472 U. S. 325
In response, the prosecutor sought to minimize the jury's sense
of the importance of its role. Indeed, the prosecutor forcefully
argued that the defense had done something wholly illegitimate in
trying to force the jury to feel a sense of responsibility for its
decision. The prosecutor's argument, defense counsel's objection,
and the trial court's ruling were as follows:
"ASSISTANT DISTRICT ATTORNEY: Ladies and gentlemen, I intend to
be brief. I'm in complete disagreement with the approach the
defense has taken. I don't think it's fair. I think it's unfair. I
think the lawyers know better. Now, they would have you believe
that you're going to kill this man, and they know -- they know that
your decision is not the final decision. My God, how unfair can you
be? Your job is reviewable. They know it. Yet they . . ."
"COUNSEL FOR DEFENDANT: Your Honor, I'm going to object to this
statement. It's out of order."
"ASSISTANT DISTRICT ATTORNEY: Your Honor, throughout their
argument, they said this panel was going to kill this man. I think
that's terribly unfair."
"THE COURT: Alright, go on and make the full expression so the
Jury will not be confused. I think it proper that the jury realizes
that it is reviewable automatically as the death penalty commands.
I think that information is now needed by the Jury so they will not
be confused."
"ASSISTANT DISTRICT ATTORNEY: Throughout their remarks, they
attempted to give you the opposite, sparing the truth. They said
'Thou shalt not kill.' If that applies to him, it applies to you,
insinuating that your decision is the final decision, and that
they're gonna take Bobby Caldwell out in the front of this
Courthouse in moments and string him up, and that is terribly,
terribly unfair. For they know, as I know, and as Judge Baker has
told you, that the decision you render is automatically
Page 472 U. S. 326
reviewable by the Supreme Court. Automatically, and I think it's
unfair, and I don't mind telling them so."
Id. at 21-22.
On review, the Mississippi Supreme Court unanimously affirmed
the conviction, but divided 4-4 on the validity of the death
sentence, thereby affirming the sentence by an equally divided
court.
443 So. 2d
806 (1983). Relying on this Court's decision in
California
v. Ramos, 463 U. S. 992
(1983), the prevailing opinion flatly rejected the contention that
the prosecutor's comments could constitute a violation of the
Eighth Amendment: "By [Ramos'] reasoning, states may decide whether
it is error to mention to jurors the matter of appellate review."
443 So. 2d at 806. The dissent did not dispute this view of
Ramos, but did argue that, as a matter of state law the
prosecutor's argument was sufficiently unfair as to require that
the death sentence be vacated. 443 So. 2d at 815 (Lee, J.,
dissenting). The prevailing justices, however, found no basis in
state law for disturbing the sentence.
Id. at 806-807.
Petitioner argues to this Court, as he argued below, that
Ramos does not control this case, and that the
prosecutor's comments violated the Eighth Amendment.
II
Respondent first argues that this Court lacks jurisdiction to
decide this issue because the decision of the Mississippi Supreme
Court rests on adequate and independent state grounds.
See Herb
v. Pitcairn, 324 U. S. 117
(1945). Although petitioner interposed a contemporaneous objection
to the prosecutor's argument, he did not initially assign the issue
as error on appeal. Under Mississippi rules,
"[n]o error not distinctly assigned shall be argued by counsel,
except upon request of the Court, but the Court may, at its option,
notice a plain error not assigned or distinctly specified."
Miss.Sup.Ct.Rule 6(b) (1976). In this case, the State Supreme
Court raised the issue of the prosecutor's
Page 472 U. S. 327
comments
sua sponte. It was discussed at oral argument,
in postargument briefs submitted by both sides, and in the opinion
of the State Supreme Court. Respondent nevertheless argues that the
decision below rests on the state law ground of failure to comply
with Rule 6.
The mere existence of a basis for a state procedural bar does
not deprive this Court of jurisdiction; the state court must
actually have relied on the procedural bar as an independent basis
for its disposition of the case.
See Ulster County Court v.
Allen, 442 U. S. 140,
442 U. S.
152-154 (1979). Moreover, we will not assume that a
state court decision rests on adequate and independent state
grounds when the
"state court decision fairly appears to rest primarily on
federal law, or to be interwoven with the federal law, and when the
adequacy and independence of any possible state law ground is not
clear from the face of the opinion."
Michigan v. Long, 463 U. S. 1032,
463 U. S.
1040-1041 (1983).
"If the state court decision indicates clearly and expressly
that it is alternatively based on bona fide separate, adequate, and
independent grounds, we, of course, will not undertake to review
the decision."
Id. at
463 U. S.
1041
An examination of the decision below reveals that it contains no
clear or express indication that "separate, adequate, and
independent" state law grounds were the basis for the court's
judgment. Indeed, the reference to the waiver issue in the
prevailing opinion below, although somewhat cryptic, argues against
the position urged by respondent. The State Supreme Court
stated:
"
Prueitt v. State, 261 So. 2d
119 (Miss.1972), is a case in which we dealt with the situation
where counsel sought to argue a question not raised by the
assignment of error. Writing for the Court in that case, Justice
Jones states 'We do not deem these matters [those not assigned]
plain error. . . .'
Bell v. State, 360 So. 2d
1206 (Miss.1978) . . . is analogous to the present case, in
Page 472 U. S. 328
that
Bell dealt with errors 'not urged or argued in the
briefs. . . .'"
443 So. 2d at 814.
Prueitt was a noncapital case decided by the
Mississippi Supreme Court on the basis of procedural bar. But in
Bell, a capital case, that court refused to rest on the
procedural bar, raising on its own motion certain claims not
assigned as error on appeal. It then decided those claims on the
merits, explicitly holding that they were unmeritorious. 360 So. 2d
at 1215. Because
Bell explicitly rested on the merits, and
because the court below described
Bell as "analogous to
the present case in that that [it]
dealt with errors
not urged or argued in the briefs,'" 443 So. 2d at 814
(emphasis added), we can read the opinion below only as meaning
that procedural waiver was not the basis of the decision.
This conclusion is substantially bolstered by the fact that the
Mississippi court discussed the challenge to the prosecutor's
argument at some length, evaluating it as a matter of both federal
and state law before rejecting it as unmeritorious. Moreover, this
conclusion is consistent with the Mississippi Supreme Court's
behavior in other capital cases, where it has a number of times
declined to invoke procedural bars.
See, e.g., Williams v.
State, 445 So. 2d
798, 810 (1984) (explicitly citing
Bell as authority
for the proposition that "we have in death penalty cases the
prerogative of relaxing our contemporaneous objection and plain
error rules when the interests of justice so require");
Culberson v. State, 379 So. 2d
499, 506 (1979) (reaching merits "only because this is a
capital case" where counsel failed to follow Rule requiring prior
objections to jury instructions). Given the standards of
Michigan v. Long and
Ulster County Court, it is
apparent that we have jurisdiction.
III
A
On reaching the merits, we conclude that it is constitutionally
impermissible to rest a death sentence on a determination
Page 472 U. S. 329
made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the
defendant's death rests elsewhere. This Court has repeatedly said
that, under the Eighth Amendment,
"the qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the
capital sentencing determination."
California v. Ramos, 463 U.S. at
463 U. S.
998-999. Accordingly, many of the limits that this Court
has placed on the imposition of capital punishment are rooted in a
concern that the sentencing process should facilitate the
responsible and reliable exercise of sentencing discretion.
See, e.g., Eddings v. Oklahoma, 455 U.
S. 104 (1982);
Lockett v. Ohio, 438 U.
S. 586 (1978) (plurality opinion);
Gardner v.
Florida, 430 U. S. 349
(1977) (plurality opinion);
Woodson v. North Carolina,
428 U. S. 280
(1976). [
Footnote 2]
In evaluating the various procedures developed by States to
determine the appropriateness of death, this Court's Eighth
Amendment jurisprudence has taken as a given that capital
sentencers would view their task as the serious one of determining
whether a specific human being should die at the hands of the
State. Thus, as long ago as the pre-
Furman case of
McGautha v. California, 402 U. S. 183
(1971), Justice Harlan, writing for the Court, upheld a capital
sentencing scheme in spite of its reliance on jury discretion. The
sentencing scheme's premise, he assumed, was
"that jurors confronted with the truly awesome responsibility of
decreeing
Page 472 U. S. 330
death for a fellow human will act with due regard for the
consequences of their decision. . . ."
Id. at
402 U. S. 208.
Belief in the truth of the assumption that sentencers treat their
power to determine the appropriateness of death as an "awesome
responsibility" has allowed this Court to view sentencer discretion
as consistent with -- and indeed as indispensable to -- the Eighth
Amendment's "need for reliability in the determination that death
is the appropriate punishment in a specific case."
Woodson v.
North Carolina, supra, at
428 U. S. 305
(plurality opinion).
See also Eddings v. Oklahoma, supra;
Lockett v. Ohio, supra.
B
In the capital sentencing context, there are specific reasons to
fear substantial unreliability as well as bias in favor of death
sentences when there are state-induced suggestions that the
sentencing jury may shift its sense of responsibility to an
appellate court.
(1)
Bias against the defendant clearly stems from the institutional
limits on what an appellate court can do -- limits that jurors
often might not understand. The "delegation" of sentencing
responsibility that the prosecutor here encouraged would thus not
simply postpone the defendant's right to a fair determination of
the appropriateness of his death; rather, it would deprive him of
that right, for an appellate court, unlike a capital sentencing
jury, is wholly ill-suited to evaluate the appropriateness of death
in the first instance. Whatever intangibles a jury might consider
in its sentencing determination, few can be gleaned from an
appellate record. This inability to confront and examine the
individuality of the defendant would be particularly devastating to
any argument for consideration of what this Court has termed
"[those] compassionate or mitigating factors stemming from the
diverse frailties of humankind."
Woodson supra, at
428 U. S. 304.
When we held that a defendant has a constitutional right to the
consideration of such factors,
Eddings, supra; Lockett,
supra, we
Page 472 U. S. 331
clearly envisioned that that consideration would occur among
sentencers who were present to hear the evidence and arguments and
see the witnesses. As the dissenters below noted:
"The [mercy] plea is made directly to the jury, as only they may
impose the death sentence. Under our standards of appellate review,
mercy is irrelevant. There is no appellate mercy. Therefore, the
fact that review is mandated is irrelevant to the thought processes
required to find that an accused should be denied mercy and
sentenced to die."
443 So. 2d at 817 (Lee, J., joined by Patterson, C.J., and
Prather and Robertson, JJ., dissenting).
Given these limits, most appellate courts review sentencing
determinations with a presumption of correctness. This is the case
in Mississippi, where, as the dissenters below pointed out:
"Even a novice attorney knows that appellate courts do not
impose a death penalty, they merely review the jury's decision and
that review is with a presumption of correctness."
Id. at 816 (Lee, J., joined by Patterson, C.J., and
Prather and Robertson, JJ., dissenting).
See also
Miss.Code Ann. § 99-19-105 (Supp.1984) (defining scope of appellate
review of capital sentencing).
(2)
Writing on this kind of prosecutorial argument in a prior case,
JUSTICE STEVENS noted another reason why it presents an intolerable
danger of bias toward a death sentence: even when a sentencing jury
is unconvinced that death is the appropriate punishment, it might
nevertheless wish to "send a message" of extreme disapproval for
the defendant's acts. This desire might make the jury very
receptive to the prosecutor's assurance that it can more freely
"err because the error may be corrected on appeal."
Maggio v.
Williams, 464 U. S. 46,
464 U. S. 54-55
(1983) (concurring in judgment). A defendant might thus be
executed, although no
Page 472 U. S. 332
sentencer had ever made a determination that death was the
appropriate sentence.
(3)
Bias could similarly stem from the fact that some jurors may
correctly assume that a sentence of life in prison could not be
increased to a death sentence on appeal.
See Arizona v.
Rumsey, 467 U. S. 203,
467 U. S. 211
(1984). The chance that this will be the assumption of at least
some jurors is increased by the fact that, in an argument like the
one in this case, appellate review is only raised as an issue with
respect to the reviewability of a death sentence. If the jury
understands that only a death sentence will be reviewed, it will
also understand that any decision to "delegate" responsibility for
sentencing can only be effectuated by returning that sentence. But
for a sentencer to impose a death sentence out of a desire to avoid
responsibility for its decision presents the specter of the
imposition of death based on a factor wholly irrelevant to
legitimate sentencing concerns. The death sentence that would
emerge from such a sentencing proceeding would simply not represent
a decision that the State had demonstrated the appropriateness of
the defendant's death. [
Footnote
3] This would thus also create the danger of a defendant's
being executed in the absence of any determination that death was
the appropriate punishment.
(4)
In evaluating the prejudicial effect of the prosecutor's
argument, we must also recognize that the argument offers jurors a
view of their role which might frequently be highly
Page 472 U. S. 333
attractive. A capital sentencing jury is made up of individuals
placed in a very unfamiliar situation and called on to make a very
difficult and uncomfortable choice. They are confronted with
evidence and argument on the issue of whether another should die,
and they are asked to decide that issue on behalf of the community.
Moreover, they are given only partial guidance as to how their
judgment should be exercised, leaving them with substantial
discretion.
See, e.g., Eddings v. Oklahoma, 455 U.
S. 104 (1982);
Lockett v. Ohio, 438 U.
S. 586 (1978);
Woodson v. North Carolina,
428 U. S. 280
(1976). Given such a situation, the uncorrected suggestion that the
responsibility for any ultimate determination of death will rest
with others presents an intolerable danger that the jury will, in
fact, choose to minimize the importance of its role. Indeed, one
can easily imagine that, in a case in which the jury is divided on
the proper sentence, the presence of appellate review could
effectively be used as an argument for why those jurors who are
reluctant to invoke the death sentence should nevertheless give
in.
This problem is especially serious when the jury is told that
the alternative decisionmakers are the justices of the state
supreme court. It is certainly plausible to believe that many
jurors will be tempted to view these respected legal authorities as
having more of a "right" to make such an important decision than
has the jury. Given that the sentence will be subject to appellate
review only if the jury returns a sentence of death, the chance
that an invitation to rely on that review will generate a bias
toward returning a death sentence is simply too great.
C
It is, therefore, not surprising that legal authorities almost
uniformly have strongly condemned the sort of argument offered by
the prosecutor here. For example, this has been the view of almost
all of the State Supreme Courts that have dealt with this question
since
Furman v.
Georgia, 408
Page 472 U. S. 334
U.S. 238 (1972). [
Footnote
4] Indeed, even before
Furman, the sort of argument
offered by the prosecutor here was viewed as clearly improper by
most state courts, whether in capital or noncapital cases.
[
Footnote 5] The American Bar
Association, in its standards for prosecutorial conduct, agrees
with this judgment. [
Footnote
6] And even the Mississippi Supreme Court, since deciding
Caldwell, has adopted the position that arguments very
similar to that used here are sufficiently improper to merit
vacating a death sentence.
See Wiley v.
State, 449 So. 2d
756 (1984);
Williams v. State, 445 So. 2d
798 (1984).
Page 472 U. S. 335
IV
The State advances three arguments for why the death sentence
should be upheld despite the prosecutor's comments. First, the
State argues that, under
California v. Ramos, 463 U.
S. 992 (1983), each State may decide for itself the
extent to which a capital sentencing jury should know of
postsentencing proceedings. Second, it defends the prosecutor's
comments as "invited," in the sense that they were a reasonable
response to defense counsel's arguments. Last, the State asserts
that an application of this Court's decision in
Donnelly v.
DeChristoforo, 416 U. S. 637
(1974), precludes a finding of constitutional error based on the
sort of impropriety that the state prosecutor's comments are said
to contain. None of these arguments is persuasive.
A
Both respondent and the prevailing justices of the Mississippi
Supreme Court interpreted
California v. Ramos, supra, as
if it had held that States are free to expose capital sentencing
juries to any information and argument concerning postsentencing
procedures. This is too broad a view of
Ramos.
Ramos concerned the constitutionality of California's
statutory requirement that capital sentencing juries be informed
that the State Governor could commute a sentence of life
imprisonment without possibility of parole into a lesser sentence
that included the possibility of parole. In upholding this
requirement, the Court rested on a determination that this
instruction was both accurate and relevant to a legitimate state
penological interest -- that interest being a concern for the
future dangerousness of the defendant should he ever return to
society. 463 U.S. at
463 U. S.
1001-1006. The Court concluded that this legitimate
sentencing concern gave the jury a valid interest in accurate
information on the possibility of parole.
Page 472 U. S. 336
In contrast, the argument at issue here cannot be said to be
either accurate or relevant to a valid state penological interest.
The argument was inaccurate, both because it was misleading as to
the nature of the appellate court's review and because it depicted
the jury's role in a way fundamentally at odds with the role that a
capital sentencer must perform. Similarly, the prosecutor's
argument is not linked to any arguably valid sentencing
consideration. That appellate review is available to a capital
defendant sentenced to death is no valid basis for a jury to return
such a sentence if otherwise it might not. It is simply a factor
that, in itself, is wholly irrelevant to the determination of the
appropriate sentence. The argument here urged the jurors to view
themselves as taking only a preliminary step toward the actual
determination of the appropriateness of death -- a determination
which would eventually be made by others and for which the jury was
not responsible. Creating this image in the minds of the capital
sentencers is not a valid state goal, and
Ramos is not to
the contrary. Indeed,
Ramos itself never questioned the
indispensability of sentencers who "appreciat[e] . . . the gravity
of their choice and . . . the moral responsibility reposed in them
as sentencers."
Id. at
463 U. S.
1011.
B
Respondent next defends the view of the Mississippi Supreme
Court that the prosecutor's argument must be understood as a
response to the defense counsel's argument, and that it was not
unreasonable in that context. But neither respondent nor the court
below explains how the prosecutor's argument was less likely to
have distorted the jury's deliberations because of anything defense
counsel said.
The Mississippi Supreme Court was less than clear as to the
theory of "context" it embraced. The prevailing justices commented
on two aspects of the defense's arguments. First,
"during defense counsel's argument, . . . he inaccurately sought
to convince the jury that, if they meted out a life sentence, the
defendant would remain in prison the remainder
Page 472 U. S. 337
of his life. He left them with the impression that there would
be no parole or commutation of sentence."
443 So. 2d at 814. Second, the opinion noted that "[defense
counsel had] emphasized his pitch for mercy by referring to the Ten
Commandments, Jesus and the Heavenly Father."
Ibid.
The first of these arguments, of course, recalls
Ramos,
in which the Court stated that an instruction describing the
alternative to a death sentence as
"'life imprisonment without possibility of parole' may generate
the misleading impression that the Governor could not commute this
sentence to one that included the possibility of parole."
463 U.S. at
463 U. S.
1004-1005, n.19. But although in
Ramos the
Court concluded that this possible misimpression underscored a
valid sentencing need to give more information on the Governor's
power to commute life sentences, there is no rational link between
the possibility of this specific misimpression and the argument
used by the prosecutor in this case. The prosecutor's argument
simply had nothing to do with the consequences that would flow from
the life sentence mentioned by defense counsel.
The connection between defense counsel's references to religious
themes and texts and the prosecutor's arguments regarding appellate
review is similarly unclear. As the dissenting justices noted:
"Assuming without accepting the majority's position that the
defense counsel's argument invited error, it did not invite this
error. Asking the jury to show mercy does not invite comment on the
system of appellate review. This is true whether the plea for mercy
discusses Christian, Judean or Buddhist philosophies, quotes
Shakespeare, or refers to the heartache suffered by the accused's
mother."
443 So. 2d at 817.
C
The State seeks to bolster its argument regarding the context of
the prosecutor's comments by arguing that, under this Court's
decision in
Donnelly v. DeChristoforo, supra, the comments
of a state prosecutor should rarely be considered
Page 472 U. S. 338
violative of federal constitutional rights. The State points out
that
Donnelly stands for the proposition that
"not every trial error or infirmity which might on direct appeal
of a federal conviction call for an application of a federal
appellate court's . . . supervisory powers correspondingly
constitute the denial of due process."
Brief for Respondent 25. But although
Donnelly does
clearly warn against holding every improper and unfair argument of
a state prosecutor to be a federal due process violation, it does
not insulate all prosecutorial comments from federal constitutional
objections. For a number of reasons, this case is substantially
different from
Donnelly.
Donnelly was a first-degree murder case in which a
state prosecutor responded to defense counsel's expression of hope
that the jury would return a verdict of not guilty by saying
"I quite frankly think that [the defendant and his attorney]
hope that you find him guilty of something a little less than
first-degree murder."
416 U.S. at
416 U. S. 640.
DeChristoforo's attorney objected, and the trial judge later gave
this curative instruction:
"Closing arguments are not evidence for your consideration. . .
."
"Now in his closing, the District Attorney, I noted made a
statement:"
"I don't know what they want you to do by way of a verdict. They
said they hope that you find him not guilty. I quite frankly think
that they hope you find him guilty of something a little less than
first-degree murder."
"There is no evidence of that whatsoever, of course, you are
instructed to disregard that statement made by the District
Attorney."
"Consider the case as though no such statement was made."
Id. at
416 U. S.
641.
"The Supreme Judicial Court of Massachusetts viewed the
prosecutor's comment as improper, but"
"held that it was not so prejudicial as to require a mistrial,
and further stated that the trial judge's instruction 'was
sufficient to safeguard the
Page 472 U. S. 339
defendant's rights.'"
Ibid. Although the District Court denied habeas relief,
the Court of Appeals granted it. This Court reversed because an
"examination of the entire proceedings" did not support the
contention that the "prosecutor's remark . . . , by itself, so
infected the trial with unfairness as to make the resulting
conviction a denial of due process."
Id. at
416 U. S.
643.
Two important factors, both emphasized in
Donnelly,
distinguish
Donnelly from Caldwell's case. Most important,
the trial judge in
Donnelly, who observed the prosecutor's
remarks as well as the whole of the trial, had agreed that those
remarks were improper, had believed that the unfairness was
correctable through an instruction, and had in fact given the jury
a strong curative instruction. As this Court said:
"[T]he trial court took special pains to correct any impression
that the jury could consider the prosecutor's statements as
evidence in the case. The prosecutor, as is customary, had
previously told the jury that his argument was not evidence, and
the trial judge specifically reemphasized that point. Then the
judge directed the jury's attention to the remark particularly
challenged here, declared it to be unsupported, and admonished the
jury to ignore it. Although some occurrences at trial may be too
clearly prejudicial for such a curative instruction to mitigate
their effect, the comment in this case is hardly of such
character."
Id. at
416 U. S. 644
(footnotes omitted). The trial judge in this case not only failed
to correct the prosecutor's remarks, but in fact openly agreed with
them; he stated to the jury that the remarks were proper and
necessary, strongly implying that the prosecutor's portrayal of the
jury's role was correct.
Second, the prosecutor's remarks in
Donnelly were quite
different from the remarks challenged here. The
Donnelly
Court emphasized that the prosecutor's comment was "admittedly
Page 472 U. S. 340
an ambiguous one,"
id. at
416 U. S. 645,
and declared that the case was not one
"in which the prosecutor's remarks so prejudiced a specific
right, such as the privilege against compulsory self-incrimination,
as to amount to a denial of that right."
Id. at
416 U. S. 643
(citing
Griffin v. California, 380 U.
S. 609 (1965)). Here, in contrast, the prosecutor's
remarks were quite focused, unambiguous, and strong. They were
pointedly directed at the issue that this Court has described as
"the principal concern" of our jurisprudence regarding the death
penalty, the "procedure by which the State imposes the death
sentence."
California v. Ramos, 463 U.S. at
463 U. S. 999.
In this case, the prosecutor's argument sought to give the jury a
view of its role in the capital sentencing procedure that was
fundamentally incompatible with the Eighth Amendment's heightened
"need for reliability in the determination that death is the
appropriate punishment in a specific case."
Woodson v. North
Carolina, 428 U.S. at
428 U. S. 305 (plurality opinion). Such comments, if
left uncorrected, might so affect the fundamental fairness of the
sentencing proceeding as to violate the Eighth Amendment. [
Footnote 7]
Page 472 U. S. 341
V
This Court has always premised its capital punishment decisions
on the assumption that a capital sentencing jury recognizes the
gravity of its task and proceeds with the appropriate awareness of
its "truly awesome responsibility." In this case, the State sought
to minimize the jury's sense of responsibility for determining the
appropriateness of death. Because we cannot say that this effort
had no effect on the sentencing decision, that decision does not
meet the standard of reliability that the Eighth Amendment
requires. The sentence of death must therefore be vacated.
Accordingly, the judgment is reversed to the extent that it
sustains the imposition of the death penalty, and the case is
remanded for further proceedings.
It is so ordered.
JUSTICE POWELL took no part in the decision of this case.
[
Footnote 1]
Petitioner also raises a challenge to his conviction, arguing
that there was constitutional infirmity in the trial court's
refusal to appoint various experts and investigators to assist him.
Mississippi law provides a mechanism for state appointment of
expert assistance, and in this case the State did provide expert
psychiatric assistance to Caldwell at state expense. But petitioner
also requested appointment of a criminal investigator, a
fingerprint expert, and a ballistics expert, and those requests
were denied. The State Supreme Court affirmed the denials because
the requests were accompanied by no showing as to their
reasonableness. For example, the defendant's request for a
ballistics expert included little more than "the general statement
that the requested expert
would be of great necessarius
witness.'" 443 So.
2d 806, 812 (1983). Given that petitioner offered little more
than undeveloped assertions that the requested assistance would be
beneficial, we find no deprivation of due process in the trial
judge's decision. Cf. Ake v. Oklahoma, 470 U. S.
68, 470 U. S. 82-83
(1985) (discussing showing that would entitle defendant to
psychiatric assistance as matter of federal constitutional law). We
therefore have no need to determine as a matter of federal
constitutional law what if any showing would have entitled a
defendant to assistance of the type here sought.
[
Footnote 2]
See also Barefoot v. Estelle, 463 U.
S. 880,
463 U. S. 924
(1983) (BLACKMUN, J., dissenting) (
Woodson's concern for
assuring heightened reliability in the capital sentencing
determination "is as firmly established as any in our Eighth
Amendment jurisprudence");
Eddings v. Oklahoma, 455 U.S.
at
455 U. S. 118
(O'CONNOR, J., concurring) ("[T]his Court has gone to extraordinary
measures to ensure that the prisoner sentenced to be executed is
afforded process that will guarantee, as much as is humanly
possible, that the sentence was not imposed out of whim, passion,
prejudice, or mistake");
Godfrey v. Georgia, 446 U.
S. 420,
446 U. S. 443
(1980) (BURGER, C.J., dissenting) ("[I]n capital cases, we must see
to it that the jury has rendered its decision with meticulous
care").
[
Footnote 3]
We note that in Mississippi, for example, "[i]f the jury does
not make the findings requiring the death sentence," the court must
impose a sentence of life imprisonment. Miss.Code Ann. §
99-19-101(3)(c) (Supp.1984). Indeed, "[i]f the jury cannot, within
a reasonable time, agree as to punishment," the court must
similarly impose a sentence of life imprisonment. § 99-19-103.
[
Footnote 4]
See, e.g., Hawes v. State, 240 Ga. 327, 333,
240 S.E.2d
833, 839 (1977) (setting aside death sentence in spite of
counsel's failure to object to prosecutor's argument);
Fleming
v. State, 240 Ga. 142, 146,
240 S.E.2d 37,
40 (1977) (setting aside death sentence in spite of curative
instruction);
State v. Willie, 410 So.
2d 1019, 1034-1035 (La.1982) (use of this argument by
prosecutor calls for setting aside death sentence even in the
absence of other improprieties);
State v. Jones, 296 N.C.
495, 498-499,
251 S.E.2d
425, 427 (1979) (ordering new trial on issue of guilt in
capital case where argument was used during guilt phase, even
though there was no contemporaneous objection);
State v.
White, 286 N.C. 395, 404-405,
211 S.E.2d
445, 450 (1975) (ordering new trial on issue of guilt in
capital case where argument was used during guilt phase, even
though trial judge gave curative instruction);
State v.
Gilbert, 273 S.C. 690, 696-698,
258 S.E.2d
890, 894 (1979) (setting aside death sentence in spite of
defendant's failure to raise issue on appeal).
[
Footnote 5]
See, e.g., People v. Morse, 60 Cal. 2d
631, 649-653, 388 P.2d 33, 44-47 (1964);
Pait v.
State, 112 So. 2d
380, 383-384 (Fla.1959);
Blackwell v. State, 79 So.
731, 735-736 (Fla.1918);
People v. Johnson, 284 N.Y. 182,
30 N.E.2d 465 (1940);
Beard v. State, 19 Ala. App. 102, 95
So. 333 (1923).
See generally Annot., Prejudicial Effect
of Statement of Prosecutor that, if Jury Makes Mistake in
Convicting It Can Be Corrected by Other Authorities, 3 A.L.R. 3d
1448 (1965); Annot., Prejudicial Effect of Statement of Court that,
if Jury Makes Mistake in Convicting It Can Be Corrected by Other
Authorities, 5 A.L.R. 3d 974 (1966).
[
Footnote 6]
See ABA Standards for Criminal Justice 3-5.8 (2d
ed.1980) ("References to the likelihood that other authorities,
such as the governor or the appellate courts, will correct an
erroneous conviction are impermissible efforts to lead the jury to
shirk responsibility for its decision").
Id. at 3.90.
[
Footnote 7]
The dissent argues that
Donnelly does, in fact, control
this case because the prosecutor's argument regarding appellate
review was "corrected" by later prosecutorial comments, even if
uncorrected by the judge. We disagree.
In the dissent's view, because the prosecutor did later say that
the jury played an important role in the sentencing process, the
argument, as a whole, merely emphasized "that the jury was not
solely responsible for petitioner's sentence."
Post at
472 U. S. 348.
But even if the prosecutor's later comments did leave the jury with
the view that they had an important role to play, the prosecutor
did not retract, or even undermine, his previous insistence that
the jury's determination of the appropriateness of death would be
reviewed by the appellate court to assure its correctness. As we
have discussed, in one crucial sphere of a system of capital
punishment, the capital sentencer comes very near to being
"
solely responsible for [the defendant's] sentence,"
ibid., and that is when it makes the often highly
subjective, "unique, individualized judgment regarding the
punishment that a particular person deserves."
Zant v.
Stephens, 462 U. S. 862,
462 U. S. 900
(1983) (REHNQUIST, J., concurring in judgment). It is beyond
question that an appellate court, performing its task with a
presumption of correctness, would be relatively incapable of
evaluating the "literally countless factors that [a capital
sentencer] consider[s,]"
id. at
462 U. S. 901,
in making what is largely a moral judgment of the defendant's
desert. The prosecutor's erroneous suggestion that a moral judgment
in favor of death would be reviewed for error -- a suggestion
endorsed by the trial judge -- was never corrected.
JUSTICE O'CONNOR, concurring in part and concurring in the
judgment.
I join the judgment and the opinion of the Court, with the
exception of Part IV-A. I write separately to express my views
about the Court's discussion of
California v. Ramos,
463 U. S. 992
(1983), in Part
472 U. S. I do
not read
Ramos to imply that the giving of
nonmisleading and
accurate information regarding
the jury's role in the sentencing scheme is irrelevant to the
sentencing decision.
The Court distinguishes the prosecutor's remarks regarding
appellate review in this case from the Briggs instruction in
Ramos, which informed the jury that the Governor could
Page 472 U. S. 342
commute a life sentence without parole. The Court observes that
the Briggs instruction in
Ramos was
"both accurate and relevant to a legitimate state penological
interest -- that interest being a concern for the future
dangerousness of the defendant should he ever return to
society."
Ante at
472 U. S. 335.
The statement here, the Court concludes, was neither accurate nor
relevant. In my view, the prosecutor's remarks were impermissible
because they were inaccurate and misleading in a manner that
diminished the jury's sense of responsibility. I agree there can be
no "valid state penological interest" in imparting inaccurate or
misleading information that minimizes the importance of the jury's
deliberations in a capital sentencing case.
Ante at
472 U. S.
336.
The Court, however, seems generally to characterize information
regarding appellate review as "wholly irrelevant to the
determination of the appropriate sentence."
Ibid. The
Court correctly observes that
Ramos does not imply that
"States are free to expose capital sentencing juries to any
information and argument concerning postsentencing procedures" no
matter how inaccurate.
Ante at
472 U. S. 335.
Certainly, a misleading picture of the jury's role is not
sanctioned by
Ramos. See California v. Ramos,
supra, at
463 U. S.
1010. But neither does
Ramos suggest that the
Federal Constitution prohibits the giving of accurate instructions
regarding postsentencing procedures.
See 463 U.S. at
463 U. S.
1004, n.19, 1012, n. 27.
Jurors may harbor misconceptions about the power of state
appellate courts or, for that matter,
this Court to
override a jury's sentence of death. Should a State conclude that
the reliability of its sentencing procedure is enhanced by
accurately instructing the jurors on the sentencing procedure,
including the existence and limited nature of appellate review, I
see nothing in
Ramos to foreclose a policy choice in favor
of jury education.
As the Court notes, however, the Mississippi prosecutor's
argument accomplished the opposite result. In telling the jurors,
"your decision is not the final decision . . . [y]our job
Page 472 U. S. 343
is reviewable," the prosecutor sought to minimize the sentencing
jury's role, by creating the mistaken impression that automatic
appellate review of the jury's sentence would provide the
authoritative determination of whether death was appropriate. In
fact, under Mississippi law, the reviewing court applies a
"presumption of correctness" to the sentencing jury's verdict.
443 So.
2d 806, 817 (1983) (Lee, J., dissenting). The jury's verdict of
death may be overturned only if so arbitrary that it "was against
the overwhelming weight of the evidence," or if the evidence of
statutory aggravating circumstances is so lacking that a "judge
should have entered a judgment of acquittal notwithstanding the
verdict."
Williams v. State, 445 So.
2d 798, 811 (Miss.1984).
Laypersons cannot be expected to appreciate without explanation
the limited nature of appellate review, especially in light of the
reassuring picture of "automatic" review evoked by the sentencing
court and the prosecutor in this case.
Ante at
472 U. S.
325-326. Although the subsequent remarks of the
prosecutor to which JUSTICE REHNQUIST refers in his dissent,
post at
472 U. S.
345-346, may have helped to restore the jurors' sense of
the importance of their role, I agree with the Court that they
failed to correct the impression that the appellate court would be
free to reverse the death sentence if it disagreed with the jury's
conclusion that death was appropriate.
See ante at
472 U. S.
340-341, n. 7. I believe the prosecutor's misleading
emphasis on appellate review misinformed the jury concerning the
finality of its decision, thereby creating an unacceptable risk
that "the death penalty [may have been] meted out arbitrarily or
capriciously,"
California v. Ramos, supra, at
463 U. S. 999,
or through "whim . . . or mistake,"
Eddings v. Oklahoma,
455 U. S. 104,
455 U. S. 118
(1982) (concurring opinion).
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE WHITE
join, dissenting.
The Court holds that, under the Eighth Amendment, it is
"constitutionally impermissible to rest a death sentence on
Page 472 U. S. 344
a determination made by a sentencer who has been led to believe
that the responsibility for the appropriateness of the defendant's
death rests elsewhere."
Ante at
472 U. S.
328-329. Even if I were to agree with this proposition
in the abstract, I do not believe that, under the circumstances of
this case, it can properly be applied to justify the overturning of
petitioner's death sentence.
Petitioner robbed a grocery and bait shop owned by a Mr. and
Mrs. Faulkner. When Mrs. Faulkner screamed, petitioner shot her
twice and fled with a bank bag taken from the counter. After a
trial, the jury found petitioner guilty of capital murder, and the
case proceeded to the sentencing phase. At that point, the
prosecution sought to prove four aggravating factors under
Mississippi law, including the facts that the offense was committed
while petitioner was engaged in a robbery, and that petitioner had
previously been convicted of four felonies involving the use of
threats or violence to the person. With respect to the latter
factor, the prosecution introduced evidence that petitioner had
been convicted of felonies four times since 1975 -- twice for armed
robbery, once for attempted armed robbery, and once for aggravated
assault. In mitigation, petitioner introduced testimony from family
and friends emphasizing petitioner's youth and his sound
upbringing, and indicating that he was a nice person and a hard
worker.
At the guilt phase, the jurors had been instructed that they
were the "sole judges of the facts," and that it was their duty to
find those facts in accordance with the evidence presented, and to
apply the rules of law charged by the judge to the facts found. The
jurors were also charged that statements made by counsel were not
evidence. Prior to closing argument at the sentencing phase, the
judge further charged the jury that it "must now decide whether the
Defendant will be sentenced to death or to life imprisonment." To
return the death penalty, the jury was instructed that it must find
at least one aggravating circumstance, and that the aggravating
circumstances found must outweigh the mitigating circumstances.
Page 472 U. S. 345
Counsel then presented closing arguments. Pursuant to
Mississippi law, the prosecutor spoke first and last; his initial
statement for the most part argued the aggravating factors, and
petitioner does not complain of anything said there. Defense
counsel then spoke; as the Court indicates, this argument consisted
mostly of a plea for mercy, which emphasized the jury's "awesome
responsibility." The prosecutor then made the rebuttal argument of
which petitioner complains. Because the Court mischaracterizes the
prosecutor's statements, it is worth noting again what the
prosecutor actually said:
"I'm in complete disagreement with the approach the defense has
taken. . . . I think it's unfair. . . . Now, they would have you
believe that you're going to kill this man, and they know -- they
know that your decision is not the final decision. My God, how
unfair can you be? Your job is reviewable."
At this point, defense counsel objected, but the trial court
allowed the prosecutor to continue after stating:
"I think it proper that the jury realizes that it is reviewable
automatically as the death penalty commands. I think that
information is now needed by the jury so they will not be
confused."
Counsel continued:
"[Defense counsel] insinuat[ed] that your decision is the final
decision, and that they're gonna take Bobby Caldwell out in front
of this Courthouse in moments and string him up, and that is
terribly, terribly unfair. For they know, as I know, and as Judge
Baker has told you, that the decision you render is automatically
reviewable by the Supreme Court."
The Court's account stops here, but the prosecutor went on to
state:
"Now, thank God, you have a yardstick to follow. Thank God, you
have a set of rules and regulations like they do in a football
game. What are the rules and
Page 472 U. S. 346
regulations that you, under your oath, must follow in
determining the punishment? Number 1, under your oath, you must
decide the facts. That's your job. Not mine, not theirs, not the
Judge's, not anybody's -- yours. You decide what those facts are. I
can't tell you what they are, and you take the rules of law -- this
right here -- the rule book, and you apply them, and you render a
fair and impartial trial without passion, without prejudice,
without sympathy."
The prosecutor then recounted some of the recent history of
capital punishment in this country, explaining that this Court
originally struck down state capital punishment statutes because of
its perception that the death penalty was being imposed
arbitrarily. The prosecutor concluded by noting that, in response
to this Court's concern over arbitrariness,
"our Mississippi Legislature . . . adopted the very procedure
that you are undergoing now. They said before the death penalty is
arbitrarily automatically imposed, the Jury -- the people -- the
people, not the Court --
the people, the heart of the system,
must determine -- must determine -- that the aggravating
circumstances, those which tend to say that the death penalty is
justified must outweigh the mitigating circumstances, those which
say that the lesser should be applied. So, that's how it all
evolved, and that's why you're in the Jury Box to determine the
punishment, and that's why, I think it's totally improper to
put you in the picture of hangman with a black mask on. That's not
fair. You must take the rules, apply the law, and render a fair
verdict."
(Emphasis supplied.)
At several points in its opinion, the Court supplies its own
characterization of the prosecutor's argument. Thus, the Court
states that this is a case where "a sentencer . . . has been led to
believe that the responsibility for determining the appropriateness
of the defendant's death rests elsewhere,"
Page 472 U. S. 347
ante, at
472 U. S. 329,
and that
"[t]he argument here urged the jurors to view themselves as
taking only a preliminary step toward the actual determination of
the appropriateness of death -- a determination which would
eventually be made by others, and for which the jury was not
responsible."
Ante at
472 U. S. 336.
See also ante at
472 U. S. 333.
The Court then builds on this characterization by supplying a
further assumption -- that a jury that has a lowered sense of
responsibility is more likely to vote for the death penalty. The
Court hypothesizes that a capital sentencing jury may wish to "send
a message" of disapproval even though it is not convinced that
death is the appropriate punishment, and that a jury that has been
assured that any "error" in imposing the death penalty can be
corrected on appeal may feel comfortable with "delegating" its
responsibility by voting for death. This "delegation" of
responsibility to the appellate courts violates the Eighth
Amendment, the Court reasons, because an appellate court is unable
to confront and examine the individual circumstances of the
defendant firsthand, and is further bound to review the jury's
determination with a presumption of correctness. Finally, after
distinguishing our decisions in
California v. Ramos,
463 U. S. 992
(1983), and
Donnelly v. DeChristoforo, 416 U.
S. 637 (1974), the Court concludes that the sentence
here must be overturned because the prosecutor's argument was
"fundamentally incompatible with the Eighth Amendment's
heightened 'need for reliability in the determination that death is
the appropriate punishment in a specific case.'"
Ante at
472 U. S. 340
(quoting
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 305
(1976) (plurality opinion)).
In
Donnelly v. DeChristoforo, this Court rejected a
claim that a state murder conviction should be overturned on due
process grounds because of statements made by the prosecutor during
closing argument. We there stressed that
"not every trial error or infirmity which might call for
application of supervisory powers correspondingly constitutes a
'failure to observe that fundamental fairness essential to the
Page 472 U. S. 348
very concept of justice.'"
416 U.S. at
416 U. S. 642
(quoting
Lisenba v. California, 314 U.
S. 219,
314 U. S. 236
(1941)). Similarly, this Court's recent opinions concerning the
Eighth Amendment, while recognizing that the "qualitative
difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital
sentencing determination,"
California v. Ramos, supra, at
463 U. S.
998-999, have also noted that, in general, the Eighth
Amendment is satisfied where the procedures ensure that the
sentencer's discretion is "suitably directed and limited so as to
minimize the risk of wholly arbitrary and capricious action."
Zant v. Stephens, 462 U. S. 862,
462 U. S. 874
(1983);
Barclay v. Florida, 463 U.
S. 939,
463 U. S. 950
(1983) (plurality opinion). Thus, in both
Zant and
Barclay, we upheld death sentences despite the fact that
they had been based in part on invalid aggravating circumstances,
where the jury also had found valid aggravating circumstances.
Donnelly, Zant, and
Barclay teach that a death
sentence need not be vacated in every case where the procedures by
which it is imposed are in some way flawed. If the prosecutor in
this case actually had argued to the jury that it should go ahead
and impose the death sentence because it did not really matter --
the appellate court would correct any "mistake" the jury might make
in choice of sentence -- and if the trial judge had not corrected
such an argument, I might well agree that the process afforded did
not comport with some constitutional norm related to procedural
fairness. But despite the Court's sweeping characterization, the
argument here fell far short of telling the jury that it would not
be responsible for imposing the death penalty. Admittedly, some of
the remarks early in the prosecutor's rebuttal indicated that the
jury's decision was not "final" because it was subject to appellate
review. But viewed in its entirety,
cf. Cupp v. Naughten,
414 U. S. 141
(1973), it is evident that the thrust of the prosecutor's argument
was that the jury was not solely responsible for petitioner's
sentence. In addition
Page 472 U. S. 349
to appellate review, the prosecutor referred to the decision of
the Mississippi Legislature to allow capital punishment, to the
rules that the jury must follow in determining the appropriate
sentence, and to the jury's ultimate responsibility under the law
to render a "fair verdict," "without passion, without prejudice,
without sympathy."
There is nothing wrong with urging a capital sentencing jury to
disregard emotion and render a decision based on the law and the
facts. Despite the Court's rhetorical references to the need for
"reliable" sentencing decisions rendered by jurors that comprehend
their "awesome responsibility," I do not understand the Court to
believe that emotions in favor of mercy must play a part in the
ultimate decision of a capital sentencing jury. Indeed, much of our
Eighth Amendment jurisprudence has been concerned with eliminating
emotion from sentencing decisions. Here the prosecutor
did
not suggest that the prospect of appellate review should lead
the jurors to lean toward the death penalty, and the prosecutor's
statements that followed the challenged portion of the argument
forcefully emphasized the jury's important role under Mississippi
law in determining whether to impose death.
Indeed, under the circumstances here, the importance of the
jury's role could hardly have been lost on the jurors themselves.
The charge at the guilt phase highlighted the jurors' role as
factfinders and their duty to follow the law in reaching their
conclusions. The importance of their role at sentencing was evident
from the charge, from the impassioned plea for mercy from
petitioner's counsel, petitioner, and petitioner's mother, as well
as from the prosecutor's rebuttal. It is indeed difficult to agree
with the Court that a group subjected to all this attention
nevertheless interpreted a few remarks by the prosecutor to mean
that the group's decision was no more than a sideshow -- a mere
"preliminary step" toward the ultimate sentencing
determination.
Once it is recognized that the Court has overstated the
seriousness of the prosecutor's comments, the Court's analysis
Page 472 U. S. 350
tumbles like a house of cards. Given that it is highly unlikely
that the jury's sense of responsibility was diminished, there is no
need to respond to the Court's conjecture that the jury would in
addition have "delegated" its responsibility by erring in favor of
imposing the death penalty. And even assuming that the challenged
statements were in some way infirm, I believe this is a case where
we should heed the directives of
Donnelly, Zant, and
Barclay and hold that any error did not amount to
constitutional error. During the course of a heated trial
prosecutors may make many statements that stray from debating
society rules as to relevancy, but the ultimate inquiry must be
whether the statements rendered the proceedings as a whole
fundamentally unfair. I do not believe this analysis is
substantially altered because the challenged statements were made
during a capital sentencing proceeding. Although the fact that this
is a capital case calls for careful review of applicable legal
principles, it seems to me that the Court's concern would be
essentially the same if, at the guilt phase, the prosecutor had
told the jury to go ahead and convict, because any mistakes would
be corrected on appeal.
Cf. ante at
472 U. S. 334,
n. 5, and authorities cited therein.
I therefore find unconvincing the Court's scramble to identify
an independent Eighth Amendment norm that was violated by the
statements here. The Court's string citations to our prior cases,
many of which yielded only plurality opinions, which hold that
capital sentencing juries must be allowed to consider all forms of
mitigating evidence so as to facilitate individualized and rational
determinations of the appropriateness of capital punishment, simply
highlight the lack of authority for the path that the Court now
takes. Nor do I find particularly illuminating the citation to
dicta that the Eighth Amendment requires procedures that will
ensure a "reliable" determination that death is an appropriate
punishment. Although the Eighth Amendment requires certain
processes designed to prevent the arbitrary imposition of
Page 472 U. S. 351
capital punishment, it does not follow that every proceeding
that strays from the optimum is
ipso facto
constitutionally unreliable.
Zant and
Barclay
hold as much.
Nor does the Eighth Amendment prohibit any and all communication
to a capital sentencing jury concerning the availability of
appellate review. In
California v. Ramos, we upheld
against Eighth Amendment challenge a California statute that
required capital sentencing juries to be informed that the sentence
of life without possibility of parole was subject to commutation by
the Governor. We noted,
inter alia, that the instruction
was "merely an accurate statement of a potential sentencing
alternative," 463 U.S. at
463 U. S.
1009, and held that informing the jury of the
possibility of commutation did not inject too speculative a concern
into the jury's deliberations. Although we noted in
Ramos
that the challenged information bore more than marginal relevance
to the jury's sentencing determination,
Ramos is not
distinguishable from this case on that ground; there is no
constitutional requirement that all information received by a
sentencing jury be "relevant." In any event, the fact that the
jury's determination is subject to appellate review, if not common
knowledge, is in any event information concerning the judicial
process that one would think the jury is entitled to know. Nor do I
think this case distinguishable from
Ramos because here
the prosecutor's statements "misrepresented" the appellate process.
There are circumstances where misrepresentations by prosecutors
will violate due process,
see Miller v. Pate, 386 U. S.
1 (1967);
Brady v. Maryland, 373 U. S.
83 (1963), but here the reference to appellate review
certainly did not include an express statement that such review was
de novo, and any implication along those lines was cured
by the later statements emphasizing the jury's responsibility under
the Mississippi sentencing scheme.
This Court should avoid turning every perceived departure from
what it conceives to be optimum procedure in a capital case into a
ground for constitutional reversal. In this case,
Page 472 U. S. 352
the State of Mississippi proved four aggravating factors,
including that petitioner previously had been convicted of four
crimes involving threat of violence to a person. The jury was
instructed to find the facts based upon the evidence and to apply
those facts to the law as charged; at the sentencing proceeding, it
was told that it must find that the aggravating factors outweighed
the mitigating factors, and the prosecutor's argument stressed
these aspects of the jury's singular duty. There is no indication
in the record that the jury returned the death sentence on any
basis other than the evidence adduced, nor is there any reason to
question the jury's conclusion. Under those circumstances, I do not
think that the Eighth Amendment or any other provision of the
Constitution requires that petitioner's death sentence be
overturned.
* I would affirm
the judgment of the Mississippi Supreme Court.
* The Court notes that other state courts have condemned the
type of argument challenged here,
ante at
472 U. S. 334,
and that the Mississippi Supreme Court, since its decision in this
case, has also found such an argument to be reversible error.
See Williams v. State, 445 So. 2d
798 (1984). But these facts suggest that draconic intervention
by this Court in the name of the Eighth Amendment generally is not
required to correct aspects of state procedure that appear less
than ideal to all of us. Doctrinal development in the tradition of
the common law, where state court decisions commend themselves not
by their authority but by their reason, ultimately bids fair to
remedy such minor departures from procedural norms as may be
involved in this case.