493 U.S. 879 (1989)

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U.S. Supreme Court

ROBERTSON v. CALIFORNIA , 493 U.S. 879 (1989)

493 U.S. 879

Andrew Edward ROBERTSON, petitioner,
CALIFORNIA. No. 88-7619.

Supreme Court of the United States

October 2, 1989

Rehearing Denied Nov. 27, 1989.

See 493 U.S. 985.

See 498 U.S. 926.

Petition for writ of certiorari to the Supreme Court of California.


Leave to File Second Petition for Rehearing Denied Oct. 15, 1990.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 2973, 49 L. Ed.2d 859 (1976) (MARSHALL, J., dissenting), I would grant the petition for certiorari and vacate the death penalty in this case. Even if I did not take this view, I would grant the petition because it raises the recurring issue whether evidence of prior unadjudicated criminal conduct may be introduced at the sentencing stage of a capital trial. As I have noted before, see, e.g., Miranda v. California, 486 U.S. 1038 (1988) (MARSHALL, J., dissenting from denial of certiorari); Williams v. Lynaugh, 484 U.S. 935 (1987) (MARSHALL, J., dissenting from denial of certiorari), the States' highest courts have reached varying conclusions on this issue.

In addition, the petition poses a second question of profound constitutional significance: whether a defendant's waiver of his [ Robertson v. California 493 U.S. 879 (1989)


Page 493 U.S. 879 , 880

right to a jury in a capital sentencing proceeding is voluntary, knowing, and intelligent when no evidence indicates that he was aware of a state statute requiring the court to impose a life sentence if the sentencing jury failed to reach a unanimous decision. The California statute at issue here provides that "[i]f the trier of fact [at the sentencing stage] is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and impose a punishment of confinement in state prison for life without possibility of parole." 1977 Cal.Stats., ch. 316, 12. State high courts faced with the issue whether a defendant must be aware of similar capital sentencing provisions have reached differing conclusions. Compare Harris v. State, 295 Md. 329, 339-340, 455 A.2d 979, 984 (1983) (holding that a court must explain the effect of a jury deadlock for a waiver to be effective), with People v. Morgan, 112 Ill.2d 111, 141-142, 97 Ill.Dec. 430, 442-443, 492 N.E.2d 1303, 1315-1316 (1986) (holding that a court need only explain that a unanimous vote is required before a jury can impose the death penalty), cert. denied, 479 U.S. 1101 (1987).

In 1978, a jury convicted Andrew Robertson of murder and sentenced him to death. On appeal, the California Supreme Court vacated that sentence and remanded the case to the trial court. 33 Cal.3d 21, 188 Cal. Rptr. 77, 655 P.2d 279 (1982). In a second sentencing proceeding, Robertson indicated his intention to waive his right to a jury. The court then asked him several questions in an attempt to ascertain if Robertson was aware of the effects of a waiver. At no time during the colloquy did the judge read or paraphrase the jury deadlock provision; instead, the court simply stated: "You understand, also, that if you do waive jury and submit [your sentencing] to the Court, the Court will act solely. If you have a jury trial, before a verdict can be returned either way, it requires unanimous agreement of all twelve jurors; do you understand that ?" Pet. for Cert. 8. Robertson answered that he understood and then waived his right to a sentencing jury. He was again sentenced to death; this time, the California Supreme Court affirmed.

Robertson now claims that his sentence should be overturned because his agreement to waive a jury in the second sentencing proceeding was not voluntary, knowing, and intelligent. Petitioner concedes that the court's instruction was literally correct; if the jurors were not unanimous in recommending life imprisonment, they could not return a verdict to that effect. It is [493 U.S. 879 , 881]

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