At petitioner's state court trial on charges of killing five
people, the jury returned guilty verdicts on three counts of
first-degree murder, an essential statutory element of which, under
the circumstances, was a finding of intent "to kill or inflict
great bodily harm upon more than one person." At the penalty phase,
in response to notes from the jury indicating difficulty in
reaching a decision, the court twice polled the jury as to whether
further deliberations would be helpful in reaching a verdict, a
majority of the jurors answering affirmatively in each instance.
After the second poll, the judge reiterated earlier instructions,
declaring that he would impose a sentence of life imprisonment
without benefit of probation, parole, or suspended sentence if the
jurors were unable to reach a unanimous recommendation, and
admonishing them to consult and consider each other's views with
the objective of reaching a verdict, but not to surrender their own
honest beliefs in doing so. Defense counsel did not object to
either poll, to the manner in which they were conducted, or to the
supplemental instruction. The jury then returned a verdict in 30
minutes, sentencing petitioner to death on all three first-degree
murder counts upon finding the statutory aggravating circumstance
of "knowingly creat[ing] a risk of death or great bodily harm to
more than one person." After the Louisiana Supreme Court upheld
petitioner's convictions and sentences, the Federal District Court
denied him habeas corpus relief, and the Court of Appeals
affirmed.
Held:
1. When considered in context and under all the circumstances,
the two jury polls and the supplemental charge did not
impermissibly coerce the jury to return a death sentence. The
supplemental charge is similar to the traditional
Allen
charge long approved by this Court on the ground that it is an
attempt to secure jury unanimity, which reasoning applies with even
greater force here, since this charge does not speak specifically
to the minority jurors. Although not without constitutional weight,
the fact that one of the purposes served by such a charge -- the
avoidance of the societal costs of a retrial -- is not present
here, because Louisiana law requires the court to impose a life
sentence if the jury is hung, does not render the charge
impermissible under the Due Process
Page 484 U. S. 232
Clause and the Eighth Amendment in light of the State's strong
interest in having capital sentencing juries express the conscience
of the community on the ultimate question of life or death.
Jenkins v. United States, 380 U.
S. 445, and
United States v. United States Gypsum
Co., 438 U. S. 422,
cannot aid petitioner, since the supplemental instruction given in
this case did not require the jury to reach a decision. Similarly,
Brasfield v. United States, 272 U.
S. 448, cannot help petitioner, since the questions
asked the jury here did not require it to reveal the nature or
extent of its division on the merits. Although coercion is
suggested by the fact that the jury returned its verdict soon after
receiving the supplemental instruction, defense counsel's failure
to object to either the polls or the instruction at the time
indicates that the potential for coercion argued now was not then
apparent. Pp.
484 U. S.
237-241.
2. The death sentence does not violate the Eighth Amendment
simply because the single statutory "aggravating circumstance"
found by the jury duplicates an element of the underlying offense
of first-degree murder. To pass constitutional muster, a capital
sentencing scheme must
"genuinely narrow the class of persons eligible for the death
penalty, and must reasonably justify the imposition of a more
severe sentence on the defendant compared to others found guilty of
murder."
Zant v. Stephens, 462 U. S. 862,
462 U. S. 877;
cf. Gregg v. Georgia, 428 U. S. 153.
This narrowing function may constitutionally be provided in either
of two ways: the legislature may broadly define capital offenses
and provide for narrowing by jury findings of aggravating
circumstances at the penalty phase, as most States have done, or
the legislature may itself narrow the definition of capital
offenses so that the jury finding at the guilt phase responds to
this concern, as Louisiana has done here.
See Jurek v.
Texas, 428 U. S. 262.
Thus, the duplicative nature of the statutory aggravating
circumstance did not render petitioner's sentence infirm, since the
constitutionally mandated narrowing function was performed at the
guilt phase, and the Constitution did not require an additional
aggravating circumstance finding at the penalty phase. Pp.
484 U. S.
241-246.
817 F.2d 285, affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and in Part III
of which, except for the last sentence thereof, STEVENS, J.,
joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
J., joined, and in Part I of which STEVENS, J., joined,
post, p.
484 U. S.
246.
Page 484 U. S. 233
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
*
Petitioner, sentenced to death by the Louisiana state courts,
makes two federal constitutional attacks on his sentence. He first
contends that the trial court impermissibly coerced the jury to
return a sentence of death by inquiries it made to the jury and a
supplemental charge which it gave to the jury following the receipt
of a communication from that body. Petitioner's second contention
is that the death sentence violates the Eighth Amendment to the
United States Constitution because the single "aggravating
circumstance" found by the jury and upheld by the Supreme Court of
Louisiana merely duplicates an element of the underlying offense of
first-degree murder of which he was convicted at the guilt stage.
We reject both of these contentions.
I
Petitioner was charged with killing a woman with whom he had
lived, three members of her family, and one of her male friends.
The jury found petitioner guilty of two counts of manslaughter and
three counts of first-degree murder; an essential element of the
latter verdicts was a finding that petitioner intended "to kill or
inflict great bodily harm upon more than one person."
La.Rev.Stat.Ann. § 14:30A(3) (West 1986).
Page 484 U. S. 234
The jury commenced its sentencing deliberations on the same day
that it returned the verdict of guilt, and the judge's charge to
them in this second phase of the trial included the familiar
admonition that the jurors should consider the views of others with
the objective of reaching a verdict, but that they should not
surrender their own honest beliefs in doing so. The court also
charged the jury that, if it were unable to reach a unanimous
recommendation, the court would impose a sentence of life
imprisonment without the possibility of probation, parole, or
suspension of sentence.
The jury was allowed to retire late in the evening and reconvene
the next day. During the afternoon of that day, a note came from
the foreman of the jury stating that the jury was unable to reach a
decision at that time, and requesting that the court again advise
the jury as to its responsibilities. The jury was called back. The
court provided a piece of paper to each juror and asked each to
write on the paper his or her name and the answer to the question
whether "further deliberations would be helpful in obtaining a
verdict." The jurors complied, and were asked to retire to the jury
room. The papers revealed eight answers in the affirmative -- that
more deliberation would be helpful -- and four in the negative.
Defense counsel renewed a previously made motion for a mistrial,
arguing that the jury was obviously hung. The trial court denied
the motion, noting that this was the first sign that the jury was
having trouble reaching a verdict in the penalty phase. The court
directed that, as previously agreed upon, the jury would return to
the courtroom and be instructed again as to its obligations in
reaching a verdict.
When the jurors returned to the courtroom, a new note from them
was given to the judge. This note stated that some of the jurors
had misunderstood the question previously asked. The judge polled
the jury again using the same method but changing the question
slightly; the judge asked, "Do you feel that any further
deliberations will enable you to arrive at a verdict?" App. 55.
This time 11 jurors answered
Page 484 U. S. 235
in the affirmative and 1 in the negative. The court then
reinstructed the jury:
"Ladies and Gentlemen, as I instructed you earlier, if the jury
is unable to unanimously agree on a recommendation, the Court shall
impose the sentence of Life Imprisonment without benefit of
Probation, Parole, or Suspension of Sentence."
"When you enter the jury room, it is your duty to consult with
one another to consider each other's views and to discuss the
evidence with the objective of reaching a just verdict if you can
do so without violence to that individual judgment."
"Each of you must decide the case for yourself, but only after
discussion and impartial consideration of the case with your fellow
jurors. You are not advocates for one side or the other. Do not
hesitate to reexamine your own views and to change your opinion if
you are convinced you are wrong, but do not surrender your honest
belief as to the weight and effect of evidence solely because of
the opinion of your fellow jurors, or for the mere purpose of
returning a verdict."
Id. at 56.
Defense counsel did not object to either poll, to the manner in
which the polls were conducted, or to the supplemental instruction.
The jury resumed its deliberations, and in 30 minutes returned with
a verdict sentencing petitioner to death on all three counts of
first-degree murder. In support of all three sentences, the jury
found the statutory aggravating circumstance of "knowingly
creat[ing] a risk of death or great bodily harm to more than one
person." La.Code Crim.Proc.Ann., Art. 905.4(d) (West 1984). One
death sentence was additionally supported by the aggravating
circumstance that "the victim was a witness in a prosecution
against the defendant. . . ." Art. 905.4(h).
On direct appeal, the Louisiana Supreme Court upheld the
convictions and sentences.
State v.
Lowenfield, 495 So. 2d
1245 (1985),
cert. denied, 476 U.S. 1153 (1986). The
court
Page 484 U. S. 236
ruled that the evidence was insufficient to support the
aggravating circumstance that the victim was a witness in a
prosecution against the defendant, but concluded that the remaining
aggravating circumstance was established by the evidence, and was
sufficient to support the sentences. 495 So. 2d at 1256-1258. The
court went on to hold that the trial court had not abused its
discretion in declining to declare a mistrial during sentencing
when the jury indicated that it was having difficulty reaching a
verdict. "This court has rejected the construction that the court
is required to declare a deadlock at the first sign of trouble."
Id. at 1259. Finally, the court rejected petitioner's
argument that the judge had coerced the sentence recommendations
from the jury.
"It is a well settled proposition that, when the court is
informed by a jury that they are having difficulty in agreeing, it
is not error for the court to impress upon them the importance of
the case, urge them to come to agreement, and send them back for
further deliberation."
Ibid.
Subsequently, petitioner sought habeas corpus from the United
States District Court for the Eastern District of Louisiana.
Petitioner raised,
inter alia, the two issues now before
this Court: whether a sentence of death may validly rest upon a
single aggravating circumstance that is a necessary element of the
underlying offense of first-degree murder, and whether the judge
had coerced the sentence verdicts from the jury. The District Court
denied relief, and a divided panel of the United States Court of
Appeals for the Fifth Circuit affirmed. 817 F.2d 285 (1987). The
panel unanimously rejected the aggravating circumstance claim.
Id. at 289. The majority went on to conclude: "there is no
showing of coercion; the record certainly does not demonstrate
coercion sufficient to render the trial fundamentally unfair."
Id. at 293. The dissenting judge argued that the
combination of the supplemental instruction to the jury and the
polling of the jury as to the usefulness of further deliberations
constituted improper coercion.
Id. at 299-303.
Page 484 U. S. 237
II
Our review of petitioner's contention that the jury was
improperly coerced requires that we consider the supplemental
charge given by the trial court "in its context, and under all the
circumstances."
Jenkins v. United States, 380 U.
S. 445,
380 U. S. 446
(1965) (per curiam). The use of a supplemental charge has long been
sanctioned. Nearly a century ago, in
Allen v. United
States, 164 U. S. 492
(1896), this Court reviewed a charge similar, but by no means
identical, to that given to the Louisiana jury here, and concluded
that it was not reversible error even within the federal system.
The defendant in that case had been sentenced to death by Judge
Parker in the Western District of Arkansas, exercising a
jurisdiction unique among federal courts. The judge's charge is not
set out verbatim in the opinion of this Court, but it differed from
the charge given in the present case in that the
Allen
charge urged the minority to consider the views of the majority and
ask themselves whether their own views were reasonable under the
circumstances. This Court upheld the conviction and sentence
against the defendant's claim of coercion, saying:
"The very object of the jury system is to secure unanimity by a
comparison of views, and by arguments among the jurors themselves.
It certainly cannot be the law that each juror should not listen
with deference to the arguments and with a distrust of his own
judgment, if he finds a large majority of the jury taking a
different view of the case from what he does himself. It cannot be
that each juror should go to the jury room with a blind
determination that the verdict shall represent his opinion of the
case at that moment; or, that he should close his ears to the
arguments of men who are equally honest and intelligent as
himself."
Id. at
164 U. S.
501-502.
The continuing validity of this Court's observations in
Allen are beyond dispute, and they apply with even
greater
Page 484 U. S. 238
force in a case such as this, where the charge given, in
contrast to the so-called "traditional
Allen charge," does
not speak specifically to the minority jurors. [
Footnote 1] But, in this case, one of the purposes
served by such a charge -- the avoidance of the societal costs of a
retrial -- is not present, because Louisiana law provides that, if
the jury hangs, the court shall impose a sentence of life
imprisonment. La.Code Crim.Proc.Ann., Art. 905.8 (West 1984).
Petitioner naturally urges that this difference makes the charge
here impermissible under the Due Process Clause and the Eighth
Amendment. The difference between the division of function between
the jury and judge in this case and the division in
Allen
obviously weighs in the constitutional calculus, but we do not find
it dispositive. The State has, in a capital sentencing proceeding,
a strong interest in having the jury "express the conscience of the
community on the ultimate question of life or death."
Witherspoon v. Illinois, 391 U. S. 510,
319 U. S. 519
(1968). Surely, if the jury had returned from its deliberations
after only one hour and informed the court that it had failed to
achieve unanimity on the first ballot, the court would
incontestably have had the authority to insist that they deliberate
further. This is true even in capital cases such as this one and
Allen, even though we are naturally mindful in such cases
that the "qualitative
Page 484 U. S. 239
difference between death and other penalties calls for a greater
degree of reliability when the death sentence is imposed."
Lockett v. Ohio, 438 U. S. 586, 604
(1978).
Petitioner relies on this Court's decision in
Jenkins v.
United States, supra, [
Footnote 2] but we think that case affords him no help.
There the jury had sent a note to the judge to the effect that it
was unable to agree upon a verdict; the judge then gave additional
instructions to the jury, in the course of which he said: "
You
have got to reach a decision in this case.'" Id. at 446.
This Court concluded that, "in its context and under all the
circumstances, the judge's statement had the coercive effect
attributed to it." Ibid. The difference between the
language used there and the language used in the present case is
sufficiently obvious to show the fallacy of petitioner's reliance.
The same is true of the colloquy between the judge and the foreman
of the jury in United States v. United States Gypsum Co.,
438 U. S. 422,
438 U. S. 459
(1978), upon which petitioner also relies.
Petitioner argues, however, that the coercive effect of the
supplemental charge was exacerbated by inquiries made to the jury
by the trial court. In
Brasfield v. United States,
272 U. S. 448
(1926), the trial court had, after deliberations stalled, inquired
as to how the jury was divided, and was informed simply that the
jury stood nine to three. The jury resumed deliberations, and
subsequently found the defendants guilty. This Court concluded that
the inquiry into the jury's numerical division necessitated
reversal because it was generally coercive and almost always
brought to bear "in some degree, serious although not measurable,
an improper influence upon the jury."
Id. at
272 U. S. 450.
Although the decision
Page 484 U. S. 240
in
Brasfield was an exercise of this Court's
supervisory powers, [
Footnote
3] it is nonetheless instructive as to the potential dangers of
jury polling.
Petitioner's attempt to fit the instant facts within the holding
of
Brasfield is, however, unavailing. Here the inquiry as
to the numerical division of the jury was not as to how they stood
on the merits of the verdict, but how they stood on the question of
whether further deliberations might assist them in returning a
verdict. There is no reason why those who may have been in the
minority on the merits would necessarily conclude that further
deliberation would not be helpful, or that those in the majority
would necessarily conclude otherwise. The two questions are clearly
independent of one another. We believe the type of question asked
by the trial court in this case is exactly what the Court in
Brasfield implicitly approved when it stated:
"[An inquiry as to numerical division] serves no useful purpose
that cannot be attained by questions not requiring the jury to
reveal the nature or extent of its division."
Ibid.
We are mindful that the jury returned with its verdict soon
after receiving the supplemental instruction, and that this
suggests the possibility of coercion.
United States Gypsum Co.,
supra, at
438 U. S. 462.
We note, however, that defense counsel did not object to either the
polls or the supplemental instruction. We do not suggest that
petitioner thereby waived this issue,
Wainwright v. Witt,
469 U. S. 412,
469 U. S. 431,
n. 11 (1985), but we think such an omission indicates that the
potential for coercion argued now was not apparent to one on the
spot. [
Footnote 4]
Id.
at
469 U. S.
430-431, and n. 11.
Page 484 U. S. 241
We hold that, on these facts, the combination of the polling of
the jury and the supplemental instruction was not "coercive" in
such a way as to deny petitioner any constitutional right. By so
holding, we do not mean to be understood as saying other
combinations of supplemental charges and polling might not require
a different conclusion. Any criminal defendant, and especially any
capital defendant, being tried by a jury is entitled to the
uncoerced verdict of that body. For the reasons stated we hold
there was no coercion here.
III
Petitioner advances as a second ground for vacating his sentence
of death that the sole aggravating circumstance found by the jury
at the sentencing phase was identical to an element of the capital
crime of which he was convicted. Petitioner urges that this overlap
left the jury at the sentencing phase free merely to repeat one of
its findings in the guilt phase, and thus not to narrow further in
the sentencing phase the class of death-eligible murderers. Upon
consideration of the Louisiana capital punishment scheme in the
light of the decisions of this Court, we reject this argument.
Louisiana has established five grades of homicide: first-degree
murder, second-degree murder, manslaughter, negligent homicide, and
vehicular homicide. La.Rev.Stat.Ann. § 14:29 (West 1986).
Second-degree murder includes intentional murder and felony murder,
and provides for punishment of life imprisonment without the
possibility of parole. § 14:30.1. [
Footnote 5] Louisiana defines first-degree murder to
include a narrower class of homicides:
Page 484 U. S. 242
"First degree murder is the killing of a human being:"
"(1) When the offender has specific intent to kill or to inflict
great bodily harm and is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, aggravated escape,
aggravated arson, aggravated rape, aggravated burglary, armed
robbery, or simple robbery;"
"(2) When the offender has a specific intent to kill or to
inflict great bodily harm upon a fireman or peace officer engaged
in the performance of his lawful duties;"
"(3) When the offender has a specific intent to kill or to
inflict great bodily harm upon more than one person; or"
"(4) When the offender has specific intent to kill or inflict
great bodily harm and has offered, has been offered, has given, or
has received anything of value for the killing."
"(5) When the offender has the specific intent to kill or to
inflict great bodily harm upon a victim under the age of twelve
years."
§ 14:30A.
An individual found guilty of first-degree murder is sentenced
by the same jury in a separate proceeding to either death or life
imprisonment without benefit of parole, probation, or suspension of
sentence. § 14:30C.
"A sentence of death shall not be imposed unless the jury finds
beyond a reasonable doubt that at least one statutory aggravating
circumstance exists and, after consideration of any mitigating
circumstances, recommends that the sentence of death be
imposed."
La.Code Crim.Proc.Ann., Art. 905.3 (West 1984). Louisiana has
established 10 statutory aggravating circumstances.
Page 484 U. S. 243
Art. 905.4. [
Footnote 6] If
the jury returns a sentence of death, the sentence is automatically
reviewable for excessiveness by the Supreme Court of Louisiana.
Art. 905.9.
Petitioner was found guilty of three counts of first-degree
murder under § 14.30.A.(3): "[T]he offender has a specific intent
to kill or to inflict great bodily harm upon more than one person."
The sole aggravating circumstance both found by the jury and upheld
by the Louisiana Supreme Court was that "the offender knowingly
created a risk of death or great bodily harm to more than one
person." Art. 905.4(d). In these circumstances, these two
provisions are interpreted in
Page 484 U. S. 244
a "parallel fashion" under Louisiana law.
See State v.
Williams, 480 So. 2d
721, 726-727 (La.1985). Petitioner's argument that the parallel
nature of these provisions requires that his sentences be set aside
rests on a mistaken premise as to the necessary role of aggravating
circumstances.
To pass constitutional muster, a capital sentencing scheme
must
"genuinely narrow the class of persons eligible for the death
penalty, and must reasonably justify the imposition of a more
severe sentence on the defendant compared to others found guilty of
murder."
Zant v. Stephens, 462 U. S. 862,
462 U. S. 877
(1983);
cf. Gregg v. Georgia, 428 U.
S. 153 (1976). Under the capital sentencing laws of most
States, the jury is required during the sentencing phase to find at
least one aggravating circumstance before it may impose death.
Id. at
428 U. S.
162-164 (reviewing Georgia sentencing scheme);
Profitt v. Florida, 428 U. S. 242,
428 U. S.
247-250 (1976) (reviewing Florida sentencing scheme). By
doing so, the jury narrows the class of persons eligible for the
death penalty according to an objective legislative definition.
Zant, supra, at
462 U. S. 878
("[S]tatutory aggravating circumstances play a constitutionally
necessary function at the stage of legislative definition: they
circumscribe the class of persons eligible for the death
penalty").
In
Zant v. Stephens, supra, we upheld a sentence of
death imposed pursuant to the Georgia capital sentencing statute,
under which
"the finding of an aggravating circumstance does not play any
role in guiding the sentencing body in the exercise of its
discretion, apart from its function of narrowing the class of
persons convicted of murder who are eligible for the death
penalty."
Id. at
462 U. S. 874.
We found no constitutional deficiency in that scheme, because the
aggravating circumstances did all that the Constitution
requires.
The use of "aggravating circumstances" is not an end in itself,
but a means of genuinely narrowing the class of death-eligible
persons, and thereby channeling the jury's discretion. We see no
reason why this narrowing function may not be
Page 484 U. S. 245
performed by jury findings at either the sentencing phase of the
trial or the guilt phase. Our opinion in
Jurek v. Texas,
428 U. S. 262
(1976), establishes this point. The
Jurek Court upheld the
Texas death penalty statute, which, like the Louisiana statute,
narrowly defined the categories of murders for which a death
sentence could be imposed. If the jury found the defendant guilty
of such a murder, it was required to impose death so long as it
found beyond a reasonable doubt that the defendant's acts were
deliberate, the defendant would probably constitute a continuing
threat to society, and, if raised by the evidence, the defendant's
acts were an unreasonable response to the victim's provocation.
Id. at
428 U. S. 269.
We concluded that the latter three elements allowed the jury to
consider the mitigating aspects of the crime and the unique
characteristics of the perpetrator, and therefore sufficiently
provided for jury discretion.
Id. at 271-274. But the
opinion announcing the judgment noted the difference between the
Texas scheme, on the one hand, and the Georgia and Florida schemes
discussed in the cases of
Gregg, supra, and
Proffitt,
supra:
"While Texas has not adopted a list of statutory aggravating
circumstances the existence of which can justify the imposition of
the death penalty, as have Georgia and Florida, its action in
narrowing the categories of murders for which a death sentence may
ever be imposed serves much the same purpose. . . . In fact, each
of the five classes of murders made capital by the Texas statute is
encompassed in Georgia and Florida by one or more of their
statutory aggravating circumstances. . . . Thus, in essence, the
Texas statute requires that the jury find the existence of a
statutory aggravating circumstance before the death penalty may be
imposed. So far as consideration of aggravating circumstances is
concerned, therefore, the principal difference between Texas and
the other two States is that the death penalty is an available
sentencing option -- even potentially -- for
Page 484 U. S. 246
a smaller class of murders in Texas."
428 U.S. at
428 U. S.
270-271 (citations omitted).
It seems clear to us from this discussion that the narrowing
function required for a regime of capital punishment may be
provided in either of these two ways: the legislature may itself
narrow the definition of capital offenses, as Texas and Louisiana
have done, so that the jury finding of guilt responds to this
concern, or the legislature may more broadly define capital
offenses and provide for narrowing by jury findings of aggravating
circumstances at the penalty phase.
See also Zant, supra,
at
462 U. S. 876,
n. 13, discussing
Jurek and concluding: "[I]n Texas,
aggravating and mitigating circumstances were not considered at the
same stage of the criminal prosecution."
Here, the "narrowing function" was performed by the jury at the
guilt phase when it found defendant guilty of three counts of
murder under the provision that "the offender has a specific intent
to kill or to inflict great bodily harm upon more than one person."
The fact that the sentencing jury is also required to find the
existence of an aggravating circumstance in addition is no part of
the constitutionally required narrowing process, and so the fact
that the aggravating circumstance duplicated one of the elements of
the crime does not make this sentence constitutionally infirm.
There is no question but that the Louisiana scheme narrows the
class of death-eligible murderers, and then, at the sentencing
phase, allows for the consideration of mitigating circumstances and
the exercise of discretion. The Constitution requires no more.
The judgment of the Court of Appeals for the Fifth Circuit is
accordingly
Affirmed.
* JUSTICE STEVENS joins Part III of this opinion, except for the
last sentence.
[
Footnote 1]
All of the Federal Courts of Appeals have upheld some form of a
supplemental jury charge.
See United States v. Angiulo,
485 F.2d 37 (CA1 1973);
United States v. Burke, 700 F.2d
70, 80 (CA2),
cert. denied, 464 U.S. 816 (1983);
United States v. Fioravanti, 412 F.2d 407, 414-420 (CA3),
cert. denied sUb nom. Panaccione v. United States, 396
U.S. 837 (1969);
United States v. Sawyers, 423 F.2d 1335
(CA4 1970);
United States v. Kelly, 783 F.2d 575, 576-577
(CA5),
cert. denied, 479 U.S. 889 (1986);
United
States v. Scott, 547 F.2d 334 (CA6 1977);
United States v.
Silvern, 484 F.2d 879 (CA7 1973) (en banc);
Potter v.
United States, 691 F.2d 1275 (CA8 1982);
United States v.
Bonam, 772 F.2d 1449, 1450 (CA9 1985);
United States v.
McKinney, 822 F.2d 946 (CA10 1987);
United States v.
Rey, 811 F.2d 1453 (CA11),
cert. denied, 484 U.S. 830
(1987);
United States v. Thomas, 146 U.S.App.D.C. 101, 449
F.2d 1177 (1971) (en banc).
[
Footnote 2]
We note that our ruling in
Jenkins v. United States was
based on our supervisory power over the federal courts,
cf.
United States v. Hale, 422 U. S. 171,
422 U. S. 180,
n. 7 (1975), and not on constitutional grounds. The
Jenkins Court cited no provision of the Constitution, but
rather relied upon other cases involving the exercise of
supervisory powers. 380 U.S. at
380 U. S.
446.
[
Footnote 3]
Our decision in
Brasfield makes no mention of the Due
Process Clause or any other constitutional provision. The Federal
Courts of Appeals have uniformly rejected the notion that
Brasfield's per se reversal approach must be followed when
reviewing state proceedings on habeas corpus.
E.g., Williams v.
Parke, 741 F.2d 847, 851 (CA6 1984),
cert. denied,
470 U.S. 1029 (1985);
Locks v. Sumner, 703 F.2d 403,
405-407 (CA9),
cert. denied, 464 U.S. 933 (1983).
[
Footnote 4]
The mistrial motions referred to by the dissent,
post
at
484 U. S. 254,
n. 3, were unrelated to the actions of the trial court -- the polls
and the supplemental instruction -- that now form the core of
petitioner's argument and the dissent's attack, and there is no
reason defense counsel would have been dissuaded from objecting to
these latter actions because of the unsuccessful mistrial
motions.
[
Footnote 5]
"Second degree murder is the killing of a human being:"
"(1) When the offender has a specific intent to kill or to
inflict great bodily harm; or"
"(2) When the offender is engaged in the perpetration or
attempted perpetration of aggravated rape, aggravated arson,
aggravated burglary, aggravated kidnapping, aggravated escape,
armed robbery, or simple robbery, even though he has no intent to
kill or to inflict great bodily harm."
La.Rev.Stat.Ann. § 14:30.1 (West 1986).
[
Footnote 6]
"The following shall be considered aggravating
circumstances:"
"(a) the offender was engaged in the perpetration or attempted
perpetration of aggravated rape, aggravated kidnapping, aggravated
burglary, aggravated arson, aggravated escape, armed robbery, or
simple robbery;"
"(b) the victim was a fireman or peace officer engaged in his
lawful duties;"
"(c) the offender was previously convicted of an unrelated
murder, aggravated rape, or aggravated kidnapping or has a
significant prior history of criminal activity;"
"(d) the offender knowingly created a risk of death or great
bodily harm to more than one person;"
"(e) the offender offered or has been offered or has given or
received anything of value for the commission of the offense;"
"(f) the offender at the time of the commission of the offense
was imprisoned after sentence for the commission of an unrelated
forcible felony;"
"(g) the offense was committed in an especially heinous,
atrocious, or cruel manner; or"
"(h) the victim was a witness in a prosecution against the
defendant, gave material assistance to the state in any
investigation or prosecution of the defendant, or was an eyewitness
to a crime alleged to have been committed by the defendant or
possessed other material evidence against the defendant."
"(i) the victim was a correctional officer or any other employee
of the Louisiana Department of Corrections who, in the normal
course of his employment was required to come in close contact with
persons incarcerated in a state prison facility, and the victim was
engaged in his lawful duties at the time of the offense."
La.Code Crim.Proc.Ann., Art. 905.4 (West 1984).
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, and JUSTICE
STEVENS joins as to Part I, dissenting.
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment prohibited by the
Page 484 U. S. 247
Eighth and Fourteenth Amendments,
Gregg v. Georgia,
428 U. S. 153,
428 U. S.
231-241 (1976) (MARSHALL, J., dissenting), I would
vacate the decision below insofar as it left undisturbed the death
sentence imposed in this case.
Even if I did not hold this view, I would vacate petitioner's
sentence of death for two independent reasons. First, the jury that
sentenced Leslie Lowenfield was subjected during the penalty phase
of the trial to a combination of practices that courts have viewed
as coercive in far less sensitive situations. The use of these
practices in this case presents an unacceptable risk that the jury
returned a sentence of death for reasons having nothing to do with
proper constitutional considerations. Second, even in the absence
of coercion, the jury's sentence of death could not stand because
it was based on a single statutory aggravating circumstance that
duplicated an element of petitioner's underlying offense. This
duplication prevented Louisiana's sentencing scheme from adequately
guiding the discretion of the sentencing jury in this case, and
relieved the jury of the requisite sense of responsibility for its
sentencing decision. As we have recognized frequently in the past,
such failings may have the effect of impermissibly biasing the
sentencing process in favor of death in violation of the Eighth and
the Fourteenth Amendments.
I
After many hours of deliberations, petitioner's sentencing jury
informed the court that it was "having great distress" and unable
to reach a verdict. App. 17. Had the jury remained deadlocked,
petitioner would have received a sentence of life imprisonment by
the operation of Louisiana law. But the presiding judge intervened
to aid the jury in reaching a verdict, and petitioner now charges
that the judge's intervention was coercive.
Two principles should guide our evaluation of petitioner's
claim. First, recognizing that "impartiality" is a state difficult
to define and "coercion" an event difficult to discern in concrete
situations, we must be careful to focus on the particular
Page 484 U. S. 248
facts of this case in order to assess "all the circumstances"
surrounding the jury's progress from deadlock to unanimity.
Jenkins v. United States, 380 U.
S. 445,
380 U. S. 446
(1965) (per curiam). Second, we often have acknowledged that the
unique nature of the death penalty demands a greater degree of
reliability in capital sentencings than in other criminal
proceedings.
See, e.g., Lockett v. Ohio, 438 U.
S. 586,
438 U. S. 604
(1978) (opinion of Burger, C.J., joined by Stewart, Powell, and
STEVENS, JJ.);
Woodson v. North Carolina, 428 U.
S. 280,
428 U. S. 305
(1976) (opinion of Stewart, Powell, and STEVENS, JJ.).
The Court in this case pays mere lipservice to these concerns,
citing the relevant portions of
Jenkins and
Lockett, but then proceeding to ignore their teachings.
The Court offers a sanitized rendition of the facts, ignoring or
glossing over evidence of coercion in its examination of "all the
circumstances" of the sentencing proceeding. The Court then
performs a mechanical and cramped application of our precedents
regarding jury coercion, essentially restricting these cases to
their facts. Moreover, the Court focuses on the impact of each
challenged practice in isolation, never addressing their cumulative
effect. Finally, the Court neglects to consider how the capital
sentencing context of this case affects the application of
principles forged in other contexts. In sum, the Court's approach
fails to take seriously petitioner's challenge, and consequently
fails to recognize its force. The Court's decision to condone the
coercive practices at issue here renders hollow our pronouncement
that "the decision whether a man deserves to live or die must be
made on scales that are not deliberately tipped toward death."
Witherspoon v. Illinois, 391 U. S. 510,
391 U. S.
521-522, n. 20 (1968).
The starting point for any determination of jury coercion is the
facts of a given case. The opinion of the Court, however, does not
keep its promise to examine "all the circumstances," failing to
mention several significant events in evaluating whether the trial
court's conduct improperly influenced the
Page 484 U. S. 249
jury's decision. First, the Court treats as irrelevant all
events preceding the polling of the jury and the administration of
the
Allen charge.
Allen v. United States,
164 U. S. 492
(1896). The Court fails to recognize that the guilt phase of
petitioner's trial, which immediately preceded the sentencing
phase, shaped the jury's collective state of mind and relationship
to the court. The jury's deliberations on the issue of guilt or
innocence lasted 13 hours over 2 days. After 11 hours of
deliberation, the jury informed the court that it was experiencing
"much distress," and requested to view some physical evidence. App.
16. The court refused the request, and stated: "I
order
you to go back to the jury room and to deliberate and
arrive at a verdict."
Id. at 24 (emphasis added).
Defense counsel objected to this instruction and raised that
objection again during the penalty phase on the ground that it
might have a "residual effect" on the sentencing process.
Id. at 51. After the jury returned its guilt phase verdict
at 3 p.m., the court gave the jury only an hour's break before
conducting the sentencing hearing and sending the jury to
deliberate at 8:17 p.m. These events might well have suggested to
the jury that the court was anxious far a verdict to be reached,
and reached quickly. That impression might have received further
support when, at 11:55 p.m., and after a total of more than 13
hours that day in court, the jury requested permission to retire
for the night, and the court inquired: "Is there any way you could
continue deliberating tonight and arrive at a verdict?"
Id. at 48. This background, which the Court ignores, is
important to an understanding and evaluation of the jury's reaction
to the polling procedures and the modified
Allen charge of
the following day.
Second, although the Court notes that the jury was instructed at
the commencement of the sentencing phase that its failure to reach
a verdict would result in a life sentence, rather than a second
sentencing hearing, the Court fails to observe that this
instruction was repeated three more times
Page 484 U. S. 250
during the proceeding. First, the jury sent a note specifically
asking whether a life sentence would result automatically from a
failure to reach a verdict, to which the court responded
affirmatively. Second, the court repeated this instruction before
polling the jury as to whether further deliberations would be
helpful. Finally, the court repeated it again immediately after
twice polling the jury, and immediately before giving the modified
Allen charge. The court's reiteration of the consequences
of failing to reach a verdict before the jury poll and again before
the verdict-urging charge may well have been understood by the jury
as an expression by the court of reluctance to impose only a life
sentence, and an admonition to reach a verdict.
Third, the Court does not mention the refusal of defense
counsel's specific request that the jury be instructed that it was
not required by law to return a verdict. In
Hyde v. United
States, 225 U. S. 347
(1912), we rejected a claim of jury coercion by relying on the
court's statement to the jurors that, if "
they could not
conscientiously and freely agree upon a verdict, they would be
discharged.'" Id. at 225 U. S. 382.
We concluded that
"[i]t is hard to believe that . . . with that promise expressly
made to them, they were coerced by a threat of confinement to
acquit those who they were convinced were guilty or convict those
who they were convinced were innocent."
Id. at
225 U. S. 383.
In the decided absence of such an instruction, the possibility of
coercion runs much stronger.
None of the above circumstances is, by itself, a reason to
conclude that the jury was coerced in this case. But these
circumstances, as well as those recounted by the Court, make up the
"totality" in light of which we must judge the practices challenged
in this case. Both the polling procedures and the
Allen
charge administered by the court must be examined against this
background, first individually and then as a cumulative whole.
The Court makes quick work of petitioner's challenge to the
court's polling of the jury in this case. Observing that
Page 484 U. S. 251
the court's inquiries regarding the helpfulness of further
deliberations were "clearly independent" of an inquiry regarding
the jury's stance on the merits, the Court concludes that the
pollings of the jury did not "
reveal the nature or extent of
its division.'" Ante at 484 U. S. 240
(quoting Brasfield v. United States, 272 U.
S. 448, 272 U. S. 450
(1926)). Such a conclusion might be accurate in an ordinary trial
setting, where a hung jury leads only to retrial. But the Court
ignores the fact that the jury in this case had been instructed
repeatedly that failure to reach a verdict would automatically
result in a life sentence. With this background knowledge, a
juror's vote against further deliberations indicated acceptance of
the life sentence that would necessarily follow. The jury's
response to the polling questions in this case thus very probably
revealed the nature and extent of its substantive
division.
Not only does the Court refuse to acknowledge that the polling
in this case is similar in nature to the polling we condemned in
Brasfield, it also ignores the ways in which this case is
worse than
Brasfield. The court here polled the jury not
once, but twice, increasing whatever coercive effect a single poll
would have had. Moreover, the second poll whittled down the
minority jurors from 4 to 1, creating enormous pressure on the lone
holdout, as compared to the minority of three jurors in
Brasfield. Finally, the jurors in this case were asked to
identify themselves by name in both polls, exposing the identities
of the minority jurors to the court. Under such circumstances, the
polling procedures used here posed an even greater risk of
"improper influence upon the jury" than the poll we examined and
rejected in
Brasfield. Id. at
272 U. S.
450.
The Court's treatment of petitioner's challenge to the
Allen charge is similarly dismissive. The Court begins by
suggesting that the validity of such charges is "beyond dispute,"
citing cases from all of the Circuits in which some form of an
Allen charge has been upheld.
Ante at
484 U. S.
237-238, and n. 1. This sweeping statement denigrates
the serious reservations
Page 484 U. S. 252
expressed by many federal [
Footnote
2/1] and state [
Footnote 2/2]
courts concerning the coercive nature of the traditional
Allen charge. These reservations, voiced in the context of
ordinary criminal trials, have particular significance for the
instant case. The usual justifications for a verdict-urging charge
are the time, expense, and possible loss of evidence that a new
trial would entail. None of these justifications was present here,
where a hung jury would have resulted in a life sentence. Moreover,
in an ordinary criminal trial, an
Allen charge will not
steer the jury one way or the other on the merits, because it is as
likely that the minority jurors are for conviction as for
acquittal. Here, the charge inevitably made a verdict of death more
likely, because a continued deadlock would have achieved a
substantive outcome of a life sentence, rather than simply another
sentencing hearing. These considerations indicate that the State's
interest in a verdict in this case was relatively weak, whereas the
defendant's interest in preserving the integrity of a dissenting
vote was correspondingly strong. The general reservations voiced by
other courts
Page 484 U. S. 253
about the coerciveness of verdict-urging charges should be given
special attention under these circumstances.
The opinion of the Court, however, persistently refuses to
recognize the unique posture of this case. Instead, it blandly
notes that this case is factually distinguishable from our other
significant jury coercion cases,
Jenkins v. United States,
380 U. S. 445
(1965), and
United States v. United States Gypsum Co.,
438 U. S. 422
(1978). This analysis, if such it may be called, fails to recognize
the animating principle of both
Jenkins and
Gypsum: if the jury might believe from the trial court's
statements or actions that the court is insisting upon a verdict
"
one way or the other,'" 438 U.S. at 438 U. S. 460,
that message poses an impermissible risk of jury coercion. Just
such a risk was posed here, when the court gave a verdict-urging
charge to a jury that knew, and indeed had just been instructed,
that its failure to reach unanimity would result in the substantive
outcome of a life sentence.
The Court's most significant analytical failure, however, lies
in its refusal to consider petitioner's charge of coercion in other
than a piecemeal fashion. Content that the polling procedures did
not contravene
Brasfield and that the verdict-urging
charge satisfied
Allen, the Court never considers the two
practices in tandem. Other federal courts have recognized that an
Allen charge given on the heels of a jury poll poses
special risks of coercion.
See United States v. Sae-Chua,
725 F.2d 530, 532 (CA9 1984);
Cornell v. Iowa, 628 F.2d
1044, 1048, n. 2 (CA8 1980),
cert. denied, 449 U.S. 1126
(1981);
Williams v. United States, 119 U.S.App.D.C.190,
193, 338 F.2d 530, 533 (1964). These courts have noted that, when a
jury poll is followed by an
Allen charge,
"the impression is inherently conveyed to the jury that the
revelation of their division prompted the giving of the subsequent
verdict-urging instruction, and that it is, therefore, directed
toward the minority jurors."
Cornell v. Iowa, supra, at 1048, n. 2. In this case,
the charge was given after the polling had pared down the minority
to a single juror, identified
Page 484 U. S. 254
to the court by name. That juror could not help feeling that the
verdict-urging charge was directed at him and him alone. The
polling and the charge in this case, together, created an
atmosphere far more charged with coercion than either practice
alone possibly could have engendered. Such coercion is strongly
evidenced by the fact that the jury returned a verdict of death a
mere 30 minutes after the court gave the verdict-urging charge.
[
Footnote 2/3]
It is an open and a far closer question whether the practices
challenged in this case should be deemed coercive in an ordinary
criminal context. We have recognized often, and reiterated last
Term, that practices entirely appropriate in other contexts may be
improper in capital sentencing proceedings.
See Booth v.
Maryland, 482 U. S. 496,
482 U. S. 509,
n. 12 (1987). The Court in this case, however, fails to recognize
this principle, and makes no attempt to assess how the capital
sentencing context affects the legitimacy of the challenged
practices. This failure is troubling, not only because we require
greater reliability in capital sentencings, but also because the
nature of the capital sentencing process makes the practices
challenged here more dangerous. The capital sentencing jury is
asked to make a moral decision about whether a particular
individual should live or die. Despite the objective factors that
are introduced in an attempt to guide the exercise of the jurors'
discretion, theirs is largely a subjective
Page 484 U. S. 255
judgment. Given the amorphous and volatile nature of their
inquiry, capital sentencing juries that have reached an impasse in
their deliberations may be particularly prone to coercion from the
court. This concern leads me to conclude that the jury polling and
Allen charge used in this case created an unacceptable
risk of jury coercion, and thus were "inconsistent with the
reasoned decisionmaking we require in capital cases."
Booth v.
Maryland, supra, at
482 U. S. 509
(footnote omitted).
II
Even had the jury reached its verdict free from any improper
influence by the court, that verdict still could not stand. The
principles established by our prior cases preclude the imposition
of the death penalty when it is based on a single statutory
aggravating circumstance that merely duplicates an element of the
underlying offense. We have insisted repeatedly that the discretion
of the sentencer be guided by a narrowing of the class of people
eligible for the death penalty, and that the sentencer be fully
cognizant of its responsibility for the imposition of a sentence of
life or death. Both of these principles have been violated by the
operation of the Louisiana sentencing scheme in this case.
Since our decision in
Furman v. Georgia, 408 U.
S. 238 (1972), we have required that there be a
"meaningful basis for distinguishing the few cases in which [the
death sentence] is imposed from the many cases in which it is not."
Id. at
408 U. S. 313
(WHITE, J., concurring). We have held consistently that statutory
aggravating circumstances considered during the sentencing process
provide one of the means by which the jury's discretion is guided
in making such constitutionally mandated distinctions.
See,
e.g., McCleskey v. Kemp, 481 U. S. 279,
481 U. S. 305
(1987) (describing "the role of the aggravating circumstance in
guiding the sentencing jury's discretion");
Zant v.
Stephens, 462 U. S. 862,
462 U. S. 877
(1983) (holding that "an aggravating circumstance must genuinely
narrow the class of persons eligible for the death penalty");
Gregg
Page 484 U. S. 256
v. Georgia, 428 U.S. at
428 U. S. 197
(opinion of Stewart, Powell, and STEVENS, JJ.) (explaining that the
finding of statutory aggravating circumstances helps the jury "to
consider the circumstances of the crime and the criminal before it
recommends sentence").
The Court today suggests that our emphasis on aggravating
circumstances has been mere happenstance, and holds that the
critical narrowing function may be performed prior to, and distinct
from, the sentencing process. [
Footnote
2/4] This holding misunderstands the significance of the
narrowing requirement. The Court treats the narrowing function as a
merely technical requirement that the number of those eligible
for
Page 484 U. S. 257
the death penalty be made smaller than the number of those
convicted of murder. But narrowing the class of death-eligible
offenders is not "an end in itself," any more than aggravating
circumstances are.
See ante at
484 U. S. 244.
Rather, as our cases have emphasized consistently, the narrowing
requirement is meant to channel the discretion of the sentencer. It
forces the capital sentencing jury to approach its task in a
structured, step-by-step way, first determining whether a defendant
is eligible for the death penalty, and then determining whether all
of the circumstances justify its imposition. The only conceivable
reason for making narrowing a constitutional requirement is its
function in structuring sentencing deliberations. By permitting the
removal of the narrowing function from the sentencing process
altogether, the Court reduces it to a mechanical formality entirely
unrelated to the choice between life and death.
The Court's relegation of the narrowing function to the guilt
phase of a capital trial implicates the concerns we expressed in
another context in
Caldwell v. Mississippi, 472 U.
S. 320 (1985). In
Caldwell, we vacated
petitioner's sentence of death when the prosecutor had argued to
the jury that the appellate court would review the imposition of
the death sentence for correctness, concluding that
"it is constitutionally impermissible to rest a death sentence
on a determination made by a sentencer who has been led to believe
that the responsibility for determining the appropriateness of the
defendant's death rests elsewhere."
Id. at
472 U. S.
328-329. Here, the sentencing jurors were led to believe
that petitioner's eligibility for the death sentence was already
established by their findings during the guilt phase -- findings
arrived at without any contemplation of their implication for
petitioner's sentence. Indeed, the court specifically instructed
the jury at the start of its guilt phase deliberations: "You are
not to discuss, in any way, the possibility of any penalties
whatsoever." Record 2283. Then, during the penalty hearing, the
prosecutor twice reminded the jury that
Page 484 U. S. 258
it had already found during the guilt phase one of the
aggravating circumstances that the State urged was applicable to
petitioner's sentence.
Id. at 2311, 2319. The prosecutor's
argument might well have convinced the jury that it had no choice
about, and hence no responsibility for, the defendant's eligibility
for the death penalty. This situation cannot be squared with our
promise to ensure that
"a capital sentencing jury recognizes the gravity of its task
and proceeds with the appropriate awareness of its 'truly awesome
responsibility.'"
Caldwell v. Mississippi, supra, at
472 U. S.
341.
In sum, the application of the Louisiana sentencing scheme in
cases like this one, where there is a complete overlap between
aggravating circumstances found at the sentencing phase and
elements of the offense previously found at the guilt phase,
violates constitutional principles in ways that will inevitably
tilt the sentencing scales toward the imposition of the death
penalty. The State will have an easier time convincing a jury
beyond a reasonable doubt to find a necessary element of a capital
offense at the guilt phase of a trial if the jury is unaware that
such a finding will make the defendant eligible for the death
penalty at the sentencing phase. Then the State will have an even
easier time arguing for the imposition of the death penalty,
because it can remind the jury at the sentencing phase, as it did
in this case, that the necessary aggravating circumstances already
have been established beyond a reasonable doubt. The State thus
enters the sentencing hearing with the jury already across the
threshold of death eligibility, without any awareness on the jury's
part that it had crossed that line. By permitting such proceedings
in a capital case, the Court ignores our early pronouncement
that
"a State may not entrust the determination of whether a man
should live or die to a tribunal organized to return a verdict of
death."
Witherspoon v. Illinois, 391 U.S. at
391 U. S. 521
(footnote omitted).
Page 484 U. S. 259
III
After a total of 22 hours of almost continuous deliberations
regarding petitioner's guilt and appropriate sentence, the jury in
this case informed the court that it was in "great distress." Had
the jury not broken its deadlock, petitioner would have been
entitled to a life sentence without retrial. Thus, at 3 p.m. on May
16, 1984, Leslie Lowenfield's life hung delicately in the balance.
It is impossible to know what finally prompted the jury to return
its sentence of death, but the coercive practices engaged in by the
trial court, or the prosecutor's argument that a key aggravating
circumstance already had been established at the guilt phase, may
well have tipped the balance. Neither of these factors has any
place in capital sentencing deliberations, and their presence in
this case convinces me that petitioner was denied the
individualized and reasoned consideration of his penalty that the
Constitution promises him. I dissent.
[
Footnote 2/1]
See, e.g., United States v. Rey, 811 F.2d 1453, 1458,
1460 (CA11) ("The modern judicial trend . . . is against the
Allen charge. . . . As we see it, the
Allen
charge interferes with the jurors when they are performing their
most important role: determining guilt or innocence in a close
case. It unjustifiably increases the risk that an innocent person
will be convicted as a result of the juror's abandoning his
honestly-held beliefs"),
cert. denied, 484 U.S. 830
(1987);
United States v. Blandin, 784 F.2d 1048, 1050
(CA10 1986) ("We have approved the
Allen instruction as
permissible in the Tenth Circuit, but urge caution in its use. . .
. It should not be given during the course of deliberations");
United States v. Seawell, 550 F.2d 1159, 1162, 1163 (CA9
1977) ("Problems arising from the inherently coercive effect of the
Allen charge have caused other courts of appeals and state
courts to prohibit or to restrict severely its use. . . . A single
Allen charge, without more, stands at the brink of
impermissible coercion") (footnotes omitted).
[
Footnote 2/2]
See, e.g., People v. Gainer, 19 Cal. 3d
835, 566 P.2d 997 (1977) (banning use of traditional
Allen charge in all criminal cases);
State v.
Czachor, 82 N.J. 392,
413 A.2d
593 (1980) (same);
Kersey v. State, 525
S.W.2d 139 (Tenn.1975) (same).
[
Footnote 2/3]
The Court argues that the failure of petitioner's counsel to
object to the polling or the
Allen charge suggests that
their coercive potential was not "apparent."
Ante at
484 U. S. 240.
The Court fails to acknowledge, however, that, at the time of the
polling and charge, defense counsel had already moved three
separate times for a mistrial during the sentencing phase: once
when the jury had been out for more than five hours, again when the
jury sent a note indicating its deadlock, and again after the first
polling revealed an 8-to-4 division as to whether further
deliberations would be helpful. Defense counsel may well have
reasoned that renewing his motions during the second polling or the
Allen charge would be unavailing. In any case, counsel's
repeated mistrial motions clearly demonstrate his awareness of the
jury's confusion and distress.
[
Footnote 2/4]
The Court argues that our opinion in
Jurek v. Texas,
428 U. S. 262
(1976), establishes that the narrowing requirement may
constitutionally be met at the guilt phase, rather than the
sentencing phase. It focuses on dicta in the opinion announcing the
judgment to the effect that the classes of capital murder
established by the Texas Legislature serve "
much the same
purpose'" as a list of statutory aggravating circumstances.
Ante at 484 U. S. 245
(quoting Jurek v. Texas, supra, at 428 U. S. 270
(opinion of Stewart, Powell, and STEVENS, JJ.)). The Court ignores
our later recognition that the three questions posed to the jury
during the sentencing phase under the scheme approved in
Jurek establish additional aggravating circumstances not
already determined during the guilt phase. See, e.g., Skipper
v. South Carolina, 476 U. S. 1,
476 U. S. 5 (1986)
("[E]vidence that a defendant would in the future pose a danger to
the community if he were not executed may be treated as
establishing an `aggravating factor' for purposes of capital
sentencing"); Adams v. Texas, 448 U. S.
38, 448 U. S. 46
(1980) (In answering the three sentencing questions affirmatively,
jurors in Texas "must consider both aggravating and mitigating
circumstances, whether appearing in the evidence presented at the
trial on guilt or innocence or during the sentencing proceedings").
Hence, Jurek cannot establish our approval of a divorce of
the narrowing requirement from the sentencing proceedings.
Moreover, even if
Jurek did stand for the proposition
advanced by the Court, it would still be distinguishable from the
instant case. Under the Texas capital sentencing statute evaluated
in
Jurek, jurors are explicitly instructed at the guilt
phase that their findings would make the defendant eligible for the
death penalty.
See Jurek v. State, 522
S.W.2d 934, 938 (Tex.Crim.App.1975). In the instant case, the
jurors were specifically instructed not to consider the penalty
that might result from their findings during the guilt phase.
See Record 2283.